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2020-12-01 15:00:24.80003+00

http://media.ca11.uscourts.gov/opinions/pub/files/201813714.pdf

USCA11 Case: 18-13714 Date Filed: 12/01/2020 Page: 1 of 23 [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 18-13714 ________________________ D.C. Docket No. 8:16-cv-01477-CEH-CPT MEDICAL & CHIROPRACTIC CLINIC, INC., Plaintiff - Appellant, versus DAVID M. OPPENHEIM, an individual, BOCK LAW FIRM, LLC, d.b.a. Bock, Hatch, Lewis & Oppenheim, LLC, Defendants - Appellees. ________________________ Appeal from the United States District Court for the Middle District of Florida ________________________ (December 1, 2020) Before WILSON, NEWSOM, Circuit Judges, and PROCTOR, * District Judge. * Honorable R. David Proctor, United States District Judge for the Northern District of Alabama, sitting by designa  USCA11 Case: 18-13714 Date Filed: 12/01/2020 Page: 2 of 23 PROCTOR, District Judge: In 1966, the modern version of the class action rule was born. See Fed. R. Civ. P. 23. The new rule was intended to make it easier for parties to litigate complex lawsuits involving many claimants. Under that new rule, when a defendant engaged in conduct that violated the rights of others, it could find itself defending against a single class action involving hundreds or thousands of class members instead of facing hundreds or thousands of individual suits. That was in 1966. Things have continued to evolve since then. Now, over 50 years later, when a defendant engages in questionable business practices on a widespread basis, it may not only face one class action, but several. And, when there are multiple competing class actions against a defendant, there are usually multiple lawyers competing to be appointed as class counsel. That is what occurred in this case. Buccaneers Limited Partnership (“the Buccaneers”) does business as the Tampa Bay Buccaneers. Well before it signed Tom Brady and Rob Gronkowski to play in the 2020 football season, it was sued in at least five class action complaints.1 Each one alleged that the Buccaneers sent telefax advertisements in violation of the Telephone Consumer Protection Act (“TCPA”). 47 U.S.C. § 227 . 1 Cin-Q Autos., Inc. v. Buccaneers Ltd. P’ship, No. 8:13-cv-1592-AEP (M.D. Fla.); Technology Training Assocs., Inc. v. Buccaneers Ltd. P’ship, No. 8:16-cv-1622-AEP (M.D. Fla.) (originally filed but dismissed in state court); Accounting To You, Inc. v. Buccaneers Ltd. P’ship, No. 8:13-cv-2929-AEP (M.D. Fla.); Stein, D.D.S., M.S.D., P.A. v. Buccaneers Ltd. P’ship, No. 8:13-cv-2136-AEP (M.D. Fla.); and Cinque v. Buccaneers Ltd. P’ship, No. 09-CA-21839 (Fla. Circuit Ct., Hillsborough County). 2  USCA11 Case: 18-13714 Date Filed: 12/01/2020 Page: 3 of 23 Two of those class actions are relevant here. In the first, lawyers at the firm of Anderson & Wanca (“the AW Firm”), who had previously filed suit on behalf of a different plaintiff, added another class action representative, Medical & Chiropractic Clinic, Inc. (“M&C”). A mediation was conducted but it was unsuccessful. Shortly after it concluded, David Oppenheim, an attorney at the AW Firm who was principally involved in the mediation, jumped ship to join the Bock Law Firm, LLC (“the Bock Firm”). Within a month of Oppenheim’s departure from the AW Firm, the Bock Firm filed a separate class action against the Buccaneers raising the same TCPA claims. And, within two months of filing the second class action, the Bock Firm reached a proposed settlement with the Buccaneers. M&C and its attorneys were not happy. Brian Wanca, a principal at the AW Firm, encouraged M&C to sue the Bock Firm in state court and allege they had breached fiduciary duties owed to it as a named class representative. M&C and its counsel claimed Oppenheim gave attorneys at the Bock Firm confidential information about settlement negotiations in the AW Firm’s class action, which assisted the Bock Firm in settling their class action quickly and to the detriment of the class. After the case was removed, the parties filed cross-motions for summary judgment. The district court concluded that Oppenheim and the Bock Firm did not 3  USCA11 Case: 18-13714 Date Filed: 12/01/2020 Page: 4 of 23 violate any fiduciary duty and, in any event, no damages resulted from any such breach. Therefore, the district court granted summary judgment in favor of Oppenheim and the Bock Firm. This appeal followed. M&C and Wanca argue the district court erred in granting summary judgment. We disagree. In explaining our decision, we are required to address a unique question: does class counsel owe a duty of loyalty and confidentiality to a named class representative that is distinct from the duty owed to the putative class? We conclude, consistent with our precedent, that the duties owed to a class representative do not differ from the duties owed to a class. We also take this opportunity to clarify the duties owed by class counsel in class actions generally and in the context of this case specifically. And, we determine that in filing this action M&C and Wanca launched an impermissible collateral attack on the Bock Firm’s attempt to certify and settle a class action. Their assertions should have been made only before the court that was exercising jurisdiction over the Rule 23 putative class action — the court in which the request to certify a settlement class and approve the settlement was made. I. Background Because, as we have noted above, the fiduciary duty claims in this case are intertwined with two previously-referenced class actions (and Oppenheim’s successive employment at the two of the law firms that worked on those actions), 4  USCA11 Case: 18-13714 Date Filed: 12/01/2020 Page: 5 of 23 we begin our discussion with a more fulsome description of those cases and Oppenheim’s move from the AW Firm to the Bock Firm. A. The Cin-Q Class Action In June 2013, Cin-Q Autos, Inc. filed a putative class action against the Buccaneers for alleged TCPA violations. Cin-Q Autos, Inc. v. Buccaneers Ltd. P’ship, No. 8:13-cv-1592-AEP (M.D. Fla), (Doc. # 1) (“Cin-Q”). The original Cin- Q complaint was filed by Michael Addison of the Addison & Howard firm and Wanca and Ryan Kelly of the AW Firm. M&C was not an original plaintiff in that class-action complaint but was later joined in the Cin-Q class action as one of several named class representatives. Like other plaintiffs in Cin-Q, M&C is primarily represented by the AW Firm. Although the AW Firm was a major player in litigating the Cin-Q class action, Oppenheim played a relatively minor role during much of that litigation. But, that changed after the parties agreed to mediate. Addison and Wanca retained final authority over whether to accept any settlement offer, but the record indicates that Oppenheim took over the role of “closer.” 2 2 The record is unclear as to whether Oppenheim took over an increased role when the parties began mediating or whether his larger role only occurred with regard to the mediation before Judge Anderson (there were several rounds of mediation). However, the record is more clear on this point: during the course of those negotiations, Oppenheim never received any information that was proprietary, unique, or specific to M&C. In fact, Oppenheim’s only Cin-Q-related communications with M&C occurred at dinner the night before the mediation and the next day during the mediation. 5  USCA11 Case: 18-13714 Date Filed: 12/01/2020 Page: 6 of 23 Mediating Cin-Q proved difficult because Wanca wanted a larger settlement than the Buccaneers were willing to pay. Wanca refused to settle for less than a $99,000,000 “settlement fund” and a $24,750,000 attorney fee (25% of the settlement fund). 3 When talks stalled, Addison suggested the parties negotiate the fund in a bracket between $10,000,000 and $50,000,000. Wanca was less than enthusiastic and responded, “I am NOT going down to $50 million on this case.” Mediation failed soon thereafter, and the Cin-Q plaintiffs moved for class certification. That publicly-filed motion included an expert report by Robert Biggerstaff (“the Biggerstaff Report”), which listed the telephone numbers used by the Buccaneers in sending the fax advertisements. Cin-Q, No. 8:13-cv-1592-AEP, (Docs. # 207-5; 207-6). B. Oppenheim’s Move from the AW Firm to the Bock Firm A week after the Cin-Q plaintiffs moved for class certification, Phillip Bock recruited Oppenheim to leave the AW Firm and join the Bock Firm. Bock and Oppenheim met on April 3, 2016, to work out the details. At that time, they did not discuss the Cin-Q case or any of the other class actions filed against the Buccaneers. Four days after meeting with Bock, Oppenheim gave notice to the 3 The TCPA allows recovery of actual monetary loss or statutory damages of $500 per telefax, whichever is greater. 47 U.S.C. § 227 (b)(3)(B). The parties negotiated on the basis of a virtual “settlement fund” against which class members could make claims, with any unclaimed monies reverting to Buccaneers. With approximately 343,000 faxes at issue, Buccaneers’ total estimated potential exposure was $170,000,000. But the parties estimated that the claims rate would be no more than ten per cent (10%) of the fund. 6  USCA11 Case: 18-13714 Date Filed: 12/01/2020 Page: 7 of 23 AW Firm that he had accepted employment with the Bock Firm. When Oppenheim left the AW Firm, he believed that he and Wanca would continue to work together amicably on cases jointly handled by the Bock Firm and the AW Firm. 4 As it turns out, Oppenheim was wrong. Oppenheim’s departure from the AW Firm was the catalyst that set the stage for this lawsuit. Before leaving, Oppenheim copied the hard drive on his AW Firm computer to the computer he planned to use at the Bock Firm. The hard drive contained briefs, pleadings, and other documents he had worked on at the Bock Firm along with a year’s worth of his e-mails. But, most important to this appeal, Wanca complains that within weeks of beginning at the Bock Firm, Oppenheim shared inside knowledge of the Cin-Q litigation with Bock. Bock had e-mailed Oppenheim to ask why Wanca had rejected Judge Anderson’s proposal in another mediation involving the AW Firm and the Bock Firm. Oppenheim responded that Wanca likely rejected the proposal because he “doesn’t like how the Tampa Bay Bucs mediation process went and resents Andersen’s continued efforts [in that case].” Oppenheim later elaborated, “Yeah. [Wanca] wants to set a record above the Capital One $75 million 4 The Bock Firm and the AW Firm had previously appeared together in dozens of TCPA class actions. Indeed, before 2009, Wanca and Bock, the two firms’ principals, agreed to prosecute all of their TCPA class actions jointly. And, although Wanca decided to stop partnering with the Bock Firm with regard to new cases, the firms planned to remain co-counsel on previously-filed, pending cases. 7  USCA11 Case: 18-13714 Date Filed: 12/01/2020 Page: 8 of 23 settlement. The magistrate judge it’s in front of is squeamish and is giving the Defendants a broad shot at disproving [vicarious liability]. Sort of like Sarris.”5 At the end of this exchange, Bock remarked, “[Buccaneers’ counsel] is a settler.” Oppenheim replied, “That was Andersen’s read.” C. The TTA State and Federal Class Actions Before hiring Oppenheim, the Bock Firm conducted several mail-marketing campaigns to identify potential plaintiffs for future TCPA class actions. Some of the recipients of those communications -- including Technology Training Associates (“TTA”) -- already had expressed interest in pursuing TCPA claims before Oppenheim moved to the Bock Firm. By cross-referencing those that responded to their marketing efforts with the names listed on the Biggerstaff Report, the Bock Firm was prepared to file a TCPA class action against the Buccaneers to compete with the AW Firm’s efforts in Cin-Q. About a month after hiring Oppenheim and two weeks after Oppenheim’s email exchange with Bock, the Bock Firm filed a class action in a Florida state court against the Buccaneers. Technology Training Assocs., Inc. v. Buccaneers Ltd. P’ship, No. 16-CA-4333 (Fla. Cir. Ct.) (Doc. 1) (“the TTA state class action”). 5 Oppenheim was apparently referring to a TCPA case in which a district court granted summary judgment to defendants, in part, because of its determination that plaintiffs failed to establish liability under an agency theory. See Palm Beach Golf Center-Boca, Inc. v. Sarris, 981 F. Supp. 2d 1239 , 1253 (S.D. Fla. 2013). A panel of this court later reversed and remanded. See Palm Beach Golf Center-Boca, Inc. v. Sarris, 781 F.3d 1245 , 1257-58 (11th Cir. 2015). 8  USCA11 Case: 18-13714 Date Filed: 12/01/2020 Page: 9 of 23 Like the Cin-Q class action, the TTA state class action alleged TCPA claims against the Buccaneers. Although the Bock Firm represented the named plaintiffs and putative class in the TTA state class action, the firm screened Oppenheim from any involvement. Soon after the Bock Firm filed the TTA state class action, the Buccaneers filed a Notice of Pendency of Related Action in the Cin-Q case, which disclosed the existence of the TTA state class action to the Cin-Q plaintiffs. The turf war began. The Cin-Q plaintiffs moved to intervene in the TTA state class action and, in Cin-Q, filed a Motion to Enjoin Defendant from Proceeding in a Competing Case. The Bock Firm responded by voluntarily dismissing the TTA state class action. However, though the Bock Firm dismissed the TTA state class action, the firm began mediating with the Buccaneers. And, in June 2016, the Bock Firm reached a proposed settlement with the Buccaneers.6 The Bock Firm refiled this class action complaint in federal court and immediately sought preliminary approval of the class settlement. Technology Training Assocs., Inc. v. Buccaneers Ltd. P’ship, No. 8:16-cv-1622-AEP (M.D. Fla.) (Docs. # 1, 18). M&C and Cin-Q, both plaintiffs in the Cin-Q action, moved to intervene in the now federal TTA action. The district court denied the motion 6 Under the terms of the settlement agreement, the Buccaneers agreed to create a $19.5 million settlement fund and pay the Bock Law Firm $4,875,000 in attorneys’ fees. 9  USCA11 Case: 18-13714 Date Filed: 12/01/2020 Page: 10 of 23 and granted preliminary approval of the class settlement. On interlocutory appeal, however, this court reversed the district court’s decision on the motion to intervene before remanding the case for further proceedings. Tech. Training Assocs., Inc. v. Buccaneers Ltd. P’ship, 874 F.3d 692 , 697 (11th Cir. 2017). That decision allowed M&C and Cin-Q to intervene in the federal TTA case to protect their interests. D. The Filing of this Case and the Subsequent Conclusion of the TTA Federal Case On June 1, 2016, less than two weeks before the Buccaneers filed for preliminary approval of the settlement in the federal TTA case, M&C filed this breach of fiduciary duty suit against Oppenheim and the Bock Firm in Florida state court. M&C alleged that Oppenheim breached the fiduciary duties owed to it as a named class representative—specifically the duties of loyalty and confidentiality. The complaint also asserted that the Bock Firm aided and abetted Oppenheim in the breach. M&C sought money damages, attorney’s fees, and (quite oddly) an injunction preventing the Bock Firm from representing clients in the TTA action or reaching a settlement in any matter substantially related to the Cin-Q action. To be clear, M&C agreed to pursue fiduciary breach litigation, but Wanca promised to pay all of their fees and expenses in doing so. He did so because he thought the Bock Firm and Oppenheim had stolen “his” case. The record indicates Wanca and the AW Firm have spent over $500,000 financing this action. 10  USCA11 Case: 18-13714 Date Filed: 12/01/2020 Page: 11 of 23 Oppenheim and the Bock Firm removed the case to the Middle District of Florida, and the parties filed cross motions for summary judgment. The district court found (1) that Oppenheim did not owe an individual fiduciary duty to M&C, (2) that even assuming such a duty existed, M&C failed to show Oppenheim or the Bock Firm breached that duty, and (3) that, in any event, M&C failed to prove damages. Consistent with these findings, the district court granted Oppenheim’s and the Bock Firm’s motion for summary judgment, denied M&C’s motion for summary judgment, and entered judgment in favor of Oppenheim and the Bock Firm. M&C appealed. Soon after filing this appeal, the Cin-Q intervenors (including M&C) in the federal TTA action filed a renewed motion to decertify the settlement class. TTA, No. 8:16-cv-01622-AEP, (Doc. # 131). The court in that action granted the motion and decertified the TTA class under Rule 23(a)(4), after finding that (1) class counsel in the federal TTA action may have undercut Cin-Q’s counsel’s negotiating position and (2) unlike the plaintiffs in Cin-Q, the TTA plaintiffs’ claims were potentially barred by the statute of limitations. Id., (Doc. # 169). Although the federal TTA action is now decertified, this appeal remains. II. Standard of Review We review a district court’s order granting summary judgment de novo. Jones v. UPS Ground Freight, 683 F.3d 1283 , 1291 (11th Cir. 2012). Summary 11  USCA11 Case: 18-13714 Date Filed: 12/01/2020 Page: 12 of 23 judgment is appropriate where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). We “tak[e] all of the facts in the record and draw[] all reasonable inferences in the light most favorable to the non-moving party.” Peppers v. Cobb Cty., 835 F.3d 1289 , 1295 (11th Cir. 2016) (citations omitted). III. Analysis M&C asserts the district court erred in finding (1) Oppenheim did not owe an individual fiduciary duty to M&C separate from the duty owed to the class and (2) M&C failed to prove damages resulting from Oppenheim’s breach. We agree with the district court on both counts and take this opportunity to clarify class counsel’s fiduciary obligations in this unique context. A federal court sitting in diversity jurisdiction applies the substantive law of the forum state (in this case, Florida) alongside federal procedural law. Global Quest, LLC v. Horizon Yachts, Inc., 849 F.3d 1022 , 1027 (11th Cir. 2017). M&C claims that Oppenheim violated a fiduciary duty owed to it and that the Bock Firm aided and abetted that violation. So, we turn to Florida law to evaluate the merits of those claims. We note that to establish a breach of fiduciary duty under Florida law, a plaintiff must prove three elements: the existence of a fiduciary duty, a breach of that duty, and that the plaintiff’s damages were proximately caused by the breach. Gracey v. Eaker, 837 So.2d 348 , 353 (Fla. 2002). Further, to prove 12  USCA11 Case: 18-13714 Date Filed: 12/01/2020 Page: 13 of 23 aiding and abetting a breach of fiduciary duty, a plaintiff must show: “(1) a fiduciary duty on the part of the primary wrongdoer, (2) a breach of this fiduciary duty, (3) knowledge of the breach by the alleged aider and abettor, and (4) the aider and abettor’s substantial assistance or encouragement of the wrongdoing.” AmeriFirst Bank v. Bomar, 757 F. Supp. 1365 , 1380 (S.D. Fla. 1991). We begin by examining the fiduciary obligations owed by counsel in class action litigation. A. Duty The parties all agree that, as putative class counsel, Oppenheim owed fiduciary duties to the class as a whole. But, that is not the issue we must address. M&C does not argue (at least in this case) that Oppenheim violated a duty owed to the class. Rather, M&C and Wanca assert that Oppenheim owed a heightened fiduciary duty to M&C as a putative class representative. Therefore, in evaluating this claim, we must first determine whether class counsel owes a fiduciary duty to class representatives that is distinct from the fiduciary duty owed to the class. We conclude class counsel does not. M&C offers a simple syllogism to explain why class counsel owes a separate and heightened fiduciary duty to class representatives: (1) if all attorney- client relationships create duties of loyalty and confidentiality and (2) if class counsel’s representation of class representatives (but of not the rest of the class) creates an attorney-client relationship, then it follows that (3) class counsel’s 13  USCA11 Case: 18-13714 Date Filed: 12/01/2020 Page: 14 of 23 representation of class representatives creates duties of loyalty and confidentiality separate from the duties owed to the class. However, this syllogism breaks down under proper scrutiny. As support for its assertion that all attorney-client relationships create duties of loyalty and confidentiality, M&C cites to Florida case law and the Florida Rules of Professional Conduct (“Florida Rules”).7 See Fla. Bar v. Padgett, 481 So.2d 919 , 919 (Fla. 1986) (“Attorneys owe a fiduciary duty to their clients….”); Florida Rules 4-1.9(c) (stating that a lawyer who has formerly represented a client may not afterwards “reveal information relating to the representation except as these rules would permit or require with respect to a client”). Of course, M&C is correct that Florida courts, interpreting the Florida Rules, have found that attorneys generally owe duties of confidentiality and loyalty to former clients. See, e.g., Tambourine Comercio Int’l S.A. v. Solowsky, No. 06-20682-Civ, 2007 WL 689466 , at *29 (S.D. Fla. Mar. 4, 2007) (“Florida courts have recognized that an attorney owes both a duty of confidentiality and a duty of loyalty to former clients with respect to matters that are substantially related.”). For example, it is obviously impermissible for a lawyer to misuse a client’s funds or to represent adverse parties in substantially related matters. See Fla. Bar v. Bailey, 803 So.2d 683 , 694 (Fla. 7 The Preamble to the Florida Rules, however, states: “[The Florida Rules] are not designed to be a basis for civil liability.” R. Regulating Fla. Bar 4, Preamble. 14  USCA11 Case: 18-13714 Date Filed: 12/01/2020 Page: 15 of 23 2001) (“[Counsel]’s self-dealing constitutes a complete abdication of his duty of loyalty to his client.”); Estright v. Bay Point Improvement Ass’n, Inc., 921 So.2d 810 , 811 (Fla. 1st DCA 2006) (concluding trial court correctly disqualified petitioners’ attorney because petitioners’ attorney represented adverse parties in substantially related matters). M&C, however, fails to point to any class action- specific authority extending duties of loyalty or confidentiality to an attorney’s representation of a class representative in a class action.8 And this is where M&C’s syllogism breaks down. M&C relies heavily on rules and decisions from outside the class action context. But class actions, wherein lawyers represent absent parties, involve different considerations than cases in which counsel is actually retained by a client (or multiple clients). 8 M&C cites two district court cases for the proposition that an attorney-client relationship exists between class counsel and class representatives that is distinct from that between class counsel and the class. However, we are not persuaded by either decision. First, neither decision cited by M&C applies the Florida Rules. See In re Katrina Canal Breaches Consol. Litig., No. 05-4182, 2008 WL 4401970 (E.D. La. Sept. 22, 2008); Morisky v. Pub. Serv. Elec. & Gas Co., 191 F.R.D. 419 (D. N.J. 2000). Second, both decisions addressed the narrow issue of whether class counsel could assert privileges with respect to absent class member before class certification—not the scope of class counsel’s duty to the class versus the named class representatives. See In re Katrina Canal Breaches Consol. Litig., 2008 WL 4401970 , at *2-3 (holding class counsel cannot prevent defendants from contacting absent class members before class certification); Morisky, 191 F.R.D. at 424 (holding that the attorney-client privilege is inapplicable to communications with absent class members). 15  USCA11 Case: 18-13714 Date Filed: 12/01/2020 Page: 16 of 23 In Kincade v. General Tire & Rubber Co., 635 F.2d 501 (5th Cir. 1981), the former Fifth Circuit, in a decision still binding on us,9 dealt with the ethical quandaries specific to class actions. The Kincade court determined that attorney- client relationships in class actions are “unique” because (1) “the ‘client’ in a class action consists of numerous unnamed class members as well as the class representatives” and (2) “the class itself often speaks in several voices.” Id. at 508 (quoting Pettway American Cast Iron Pipe Co., 576 F.2d 1157 , 1216 (5th Cir. 1978)). Because of this unique attorney-client relationship, the Kincade court determined counsel in class actions have different ethical duties to their clients than in ordinary cases. As an illustration of that difference, the Kincade court decided that cases “holding that an attorney cannot settle his individual client’s case without the authorization of the client are simply inapplicable” to class actions. Kincade, 635 F.2d at 508 . What, then, determines the scope of class counsel’s ethical duties? One cardinal rule defines the scope of counsel’s ethical obligations in class actions: class counsel owes a duty to the class as a whole and not to any individual member of the class. 10 Applying this rule, courts like Kincade have rejected 9 In Bonner v. City of Prichard, 661 F.2d 1206 , 1207 (11th Cir. 1981), the en banc Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down before October 1, 1981. 10 As one of our sister circuits has recognized, however, defining the outer parameters of these duties can be difficult. See Zimmer Paper Prod., Inc. v. Berger & Montague, P.C., 758 16  USCA11 Case: 18-13714 Date Filed: 12/01/2020 Page: 17 of 23 attempts by class members to derail settlements beneficial to the class. See Kincade, 635 F.2d at 508 . But, an important corollary stems from this principle: class counsel does not owe a particular duty to any group comprised of class members, such as class representatives, distinct from the duty owed to the class. See Parker v. Anderson, 667 F.2d 1204 , 1211 (5th Cir. 1982) (holding the duty of counsel in the class-action context “is to the entire class and is not dependent on the special desires of the named plaintiffs”). To hold otherwise would threaten one of the defining purposes of class actions—the consolidation of claims into one suit where a class of plaintiffs may speak with one voice. See Pettway, 576 F.2d at 1176 (“The interests of the named plaintiffs and those of other class members may diverge, and a core requirement for preventing abuse of the class action device is some means of ensuring that the interests and rights of each class member receive consideration by the court.”). If courts required class counsel to give special ethical considerations to class representatives (or any other subset of the class), the remaining class members would necessarily receive reduced ethical considerations in comparison. And, in cases where the interests of the class representative diverge from the interests of class members, class counsel would be required to choose the interests of some class members over the rest of the class. Such outcomes could F.2d 86, 91 (3d Cir. 1985) (“The bounds of fiduciary duty are undoubtedly not easy to define.”). But, this case simply does not involve the outer parameters of the duties owed by class counsel to the class. 17  USCA11 Case: 18-13714 Date Filed: 12/01/2020 Page: 18 of 23 splinter class actions, lead to costly litigation between class members, and encourage class members to opt-out. By deciding that Oppenheim did not owe a heightened duty to M&C because of its status as a class representative, the district court faithfully followed the case law adopted by our circuit as set forth in Kincade. Furthermore, the district court did not err when it rejected M&C’s request that it apply the Florida Rules to Oppenheim’s behavior. The Florida Rules are intended to instruct attorneys in the representation of clients outside of the class action context and are “simply inapplicable” to this case. Kincade, 635 F.2d at 508 . The precedent of our circuit implicitly (if not explicitly) warned the district court not to apply such ethical rules to class counsel. Pettway, 576 F.2d at 1176 (“Certainly it is inappropriate to import the traditional understanding of the attorney-client relationship into the class action context by simply substituting the named plaintiffs as the client.”). The absence of a traditional attorney-client relationship between Oppenheim and M&C, the unique relationship between class counsel and class representatives, and application of our Kincade precedent all lead us to affirm the district court’s ruling. However, we are obliged to make one additional observation. M&C’s filing of this suit in state court against Oppenheim and the Bock Firm strikes us as an attempt to end run around the TTA court, which was solely responsible for making 18  USCA11 Case: 18-13714 Date Filed: 12/01/2020 Page: 19 of 23 all Rule 23 determinations related to the Bock Firm’s requests to certify a class and approve a class settlement. Rule 23 makes clear that the district court in which a class action is filed operates as a gatekeeper. It is that court, and that court alone, that has the task of deciding a number of Rule 23 questions, including whether to certify a class, whether to appoint class counsel, and whether to approve a proposed class settlement. We are aware that, separate and apart from filing this action, M&C and Wanca objected to the TTA settlement and attempted to intervene in the TTA action. 11 And, although the TTA court preliminarily approved the settlement, ultimately that court reversed course and decertified the class. But, that was not until well after M&C and Wanca filed this action in state court. We are troubled by that filing. We have no hesitation in calling it what it was: a thinly-veiled attempt to derail the TTA settlement. 12 That is clear because of certain aspects of the relief 11 The district court denied the Cin-Q plaintiff’s motion to intervene ruling that the “Cin- Q plaintiffs may assert [their] objections in the normal course of these proceedings, as anticipated by Rule 23.” TTA, No. 8:16-cv-01622-AEP (Docs. # 56). It also preliminarily approved the settlement. A panel of this court reversed the decision to deny the intervention motion. Tech Training Assocs., Inc. v. Buccaneers Ltd. P’ship, 874 F.3d 692 (11th Cir. 2017). And after remand, the objections asserted by the AW Firm proved successful as the TTA settlement failed after the district court granted a motion filed by the AW Firm (on behalf of the Cin-Q plaintiffs) to decertify the TTA settlement class. TTA, No. 8:16-cv-1622-AEP (Docs. # 131, 169). 12 To the extent that Wanca and the AW Firm protest that they filed this action to protect the interests of the class and M&C, we firmly remind them that a class’s interests are due to be protected in a manner consistent with Rule 23—that is, by filing an objection in the federal court where the class action resides and any class settlement is proposed. 19  USCA11 Case: 18-13714 Date Filed: 12/01/2020 Page: 20 of 23 sought in this action. M&C claimed not only money damages and attorneys’ fees, but it also requested an injunction preventing the Bock Firm from proceeding as class counsel in the TTA action or settling that action. So, in filing this suit, M&C and its counsel asked a state court judge to enjoin putative class counsel in a separate federal class action. As the saying goes, that won’t work. There is only one gatekeeper under Rule 23 and it was wholly inappropriate for M&C and its counsel to go to state court in an attempt to employ another one. M&C and Wanca may contend that their substantive objections were valid. After all, once M&C was permitted to intervene, the district court eventually decertified the class and rejected the settlement. But, that is precisely the point. It is emphatically the role of the district court to address those matters, for it is the only forum in which such a challenge should have been launched—certainly not a different court. So, regardless of the merits of the objections, M&C crossed a line by attempting to litigate them in another court. For these reasons, we affirm the district court’s holding that M&C failed to prove the first element of both of its claims, i.e., that Oppenheim owed a fiduciary duty to M&C separate from the fiduciary duty he owed to the class. 20  USCA11 Case: 18-13714 Date Filed: 12/01/2020 Page: 21 of 23 B. Damages In the alternative, the district court determined that M&C failed to show it suffered damages as a result Oppenheim’s alleged fiduciary breach. We also agree with that ruling. M&C argues that it was harmed by Oppenheim’s and the Bock Firm’s conduct. It contends that, “[b]ut for Oppenheim’s sharing of confidential and mediation privileged information with [the Bock Firm], [the Bock Firm] would not have filed the TTA State Court and Federal Actions.” As a result of the Bock Firm filing the TTA federal action, M&C claims it was injured by having its position as putative class representative usurped and by being “forced to expend time and other resources to prevent an improper settlement between [the Bock Firm] and the Buccaneers resulting from [the Bock Firm] and the Buccaneer’s aligned interests.” M&C asserts these injuries occurred only because the TTA federal action settled for an artificially and improperly low amount due to the Bock Firm’s rush to undercut the AW Firm’s settlement efforts in the Cin-Q action.13 But, M&C’s theory of damages in this case necessarily relies on it proving that the proposed TTA settlement was to the detriment of the class. As we noted above, the proper forum to raise that objection was in the federal TTA action. Our 13 This scenario is sometimes referred to as a “reverse auction.” See, e.g., Lipuma v. American Express Co., 406 F. Supp. 2d 1298 , 1305 (S.D. Fla. 2005). 21  USCA11 Case: 18-13714 Date Filed: 12/01/2020 Page: 22 of 23 observations about M&C’s attempt to circumvent the TTA court’s handling of the class action before it are equally applicable here. Rule 23 provides class members and objectors like M&C with procedural mechanisms to file these types of challenges. And, Rule 23 squarely places the responsibility for ruling on such challenges in the district court that has jurisdiction over the class action claims, not a state court. Again, in accordance with Rule 23, it is the district court -- and only the district court -- that is tasked with making determinations about class certification, class counsel, and class settlements. See Reynolds v. Beneficial Nat. Bank, 288 F.3d 277 , 280 (7th Cir. 2002) (stating that, in the context of approving or disapproving a class settlement, some courts “have gone so far as to term the district judge in the settlement phase of a class action suit a fiduciary of the class”). Neither a lone putative class member, a competing putative class representative such as M&C,14 nor competing putative class counsel, such as Wanca and the AW Firm, may circumvent the district court’s Rule 23 role by launching a collateral attack in another court against class counsel. For these reasons, any objections to the federal TTA settlement, or any claim that the TTA settlement somehow injured M&C, should have been raised before the 14 As part of its claim for monetary damages, M&C also sought to recover the loss of its incentive award in the Cin-Q class action. However, a panel of this court recently concluded that such service awards are foreclosed by Supreme Court precedent. See Johnson v. NPAS Solutions, LLC, 975 F.3d 1244 , 1260 (11th Cir. 2020) (en banc petition pending). 22  USCA11 Case: 18-13714 Date Filed: 12/01/2020 Page: 23 of 23 court in the federal TTA case in accordance with Rule 23. The district court did not permit M&C to circumvent the TTA judicial officer and the text of Rule 23. We will not either. We find no error in the district court’s determination that M&C failed to establish that it was damaged by any alleged breach of a fiduciary duty owed to it by Oppenheim. IV. Conclusion For all these reasons, we affirm the district court’s grant of summary judgment in favor of Oppenheim and Bock Law Firm. AFFIRMED. 23

2020-12-01 15:00:29.333237+00

http://media.ca11.uscourts.gov/opinions/unpub/files/202010630.pdf

USCA11 Case: 20-10630 Date Filed: 12/01/2020 Page: 1 of 8 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 20-10630 Non-Argument Calendar ________________________ Agency No. A205-209-641 PAULINE NADEGE BINAM, Petitioner, versus U.S. ATTORNEY GENERAL, Respondent. ________________________ Petition for Review of a Decision of the Board of Immigration Appeals ________________________ (December 1, 2020) Before JILL PRYOR, LUCK and MARCUS, Circuit Judges. PER CURIAM: Pauline Binam, a native and citizen of Cameroon, seeks review of the Board of Immigration Appeals’ (“BIA”) order affirming, in relevant part, the Immigration  USCA11 Case: 20-10630 Date Filed: 12/01/2020 Page: 2 of 8 Judge’s (“IJ”) denial of her application for cancellation of removal under the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1229b(b). In her petition, Binam argues that: (1) the BIA legally erred in finding that her previous conviction for possession of stolen goods, under N.C. Gen. Stat. § 14-71.1 , qualifies as a crime involving moral turpitude (“CIMT”) under the categorical approach; (2) her previous conviction for concealment of merchandise, under N.C. Gen. Stat. § 14-72.1 (a), is not a CIMT; (3) the BIA legally erred in applying Matter of Diaz-Lizarraga, 26 I. & N. Dec. 847 (BIA 2016), retroactively; and (4) she is statutorily eligible for the petty offense exception under 8 U.S.C. § 1182 (a)(2)(A)(ii). After careful review, we deny her petition. The INA strips appellate courts of jurisdiction to review, in relevant part, “any judgment regarding the granting of relief under section . . . 1229b . . . of this title.” 8 U.S.C. § 1252 (a)(2)(B)(i). Nevertheless, we still retain jurisdiction over “constitutional claims or questions of law.” Id. § 1252(a)(2)(D). Whether a previous conviction qualifies as a CIMT is a legal question we review de novo. Gelin v. U.S. Att’y Gen., 837 F.3d 1236 , 1240 (11th Cir. 2016). Retroactivity is also a question of law that we review de novo. Rendon v. U.S. Att’y Gen., 972 F.3d 1252 , 1264 n.10 (11th Cir. 2020). “When the BIA issues a decision, we review only that decision, except to the extent that the BIA expressly adopts the [IJ’s] decision” or explicitly agrees with the 2  USCA11 Case: 20-10630 Date Filed: 12/01/2020 Page: 3 of 8 IJ’s findings. Juene v. Att’y Gen., 810 F.3d 792 , 799 (11th Cir. 2016). We do not reach issues not considered by the BIA. Gonzalez v. U.S. Att’y Gen., 820 F.3d 399 , 403 (11th Cir. 2016). First, we are unpersuaded by Binam’s argument that her North Carolina conviction for possession of stolen goods did not qualify as a crime involving moral turpitude. The Attorney General has discretion to grant cancellation of removal to nonpermanent residents who show, inter alia, that they have not been convicted of a CIMT. 8 U.S.C. §§ 1182 (a)(2)(A)(i)(I), 1229b(b)(1)(C). While undefined by statute, we’ve said that a CIMT “involves [a]n act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellow men, or to society in general, contrary to the accepted and customary rule of right and duty between man and man.” Cano v. U.S. Att’y Gen., 709 F.3d 1052 , 1053 (11th Cir. 2013) (quotations omitted). The BIA has concluded that, “[t]o involve moral turpitude, a crime requires two essential elements: reprehensible conduct and a culpable mental state.” Matter of Silva-Trevino, 26 I. & N. Dec. 826 , 834 (BIA 2016). “[I]n deciding whether a particular offense constitutes a crime involving moral turpitude, we apply the categorical approach and look to the statutory definition of the crime rather than the underlying facts of the conviction.” Cano, 709 F.3d at 1053. Under that approach, “we analyze whether the least culpable conduct necessary to sustain a conviction under the statute meets the standard of a 3  USCA11 Case: 20-10630 Date Filed: 12/01/2020 Page: 4 of 8 crime involving moral turpitude.” Id. at 1053 n.3 (quotations omitted). “If a conviction requires that a defendant acted knowingly or intentionally, the statute requires a sufficiently culpable mental state to constitute a CIMT.” Pierre v. U.S. Att’y Gen., 879 F.3d 1241 , 1251 (11th Cir. 2018) (quotations omitted). We’ve also recognized that, “[g]enerally, a crime involving dishonesty or false statement is considered to be one involving moral turpitude.” Walker v. U.S. Att’y Gen., 783 F.3d 1226 , 1229 (11th Cir. 2015) (quotations omitted). “[T]he version of state law that the defendant was actually convicted of violating” must be analyzed under the categorical approach. McNeill v. United States, 563 U.S. 816 , 821, 824 (2011) (applying the categorical approach to determine whether the defendant’s convictions qualified as “serious drug offenses” under the Armed Career Criminal Act). In analyzing whether an offense constitutes a CIMT, we “may rely on court decisions in the convicting jurisdiction that interpret the meaning of the statutory language.” Gelin, 837 F.3d at 1243. North Carolina’s possession-of-stolen-goods statute says, in relevant part: If any person shall possess any chattel, property, money, valuable security or other thing whatsoever, the stealing or taking whereof amounts to larceny or a felony, either at common law or by virtue of any statute made or hereafter to be made, such person knowing or having reasonable grounds to believe the same to have been feloniously stolen or taken, he shall be guilty of a Class H felony . . . . N.C. Gen. Stat. § 14-71.1 . Under North Carolina common law, “[t]he elements of possession of stolen goods are: (1) possession of personal property; (2) which has 4  USCA11 Case: 20-10630 Date Filed: 12/01/2020 Page: 5 of 8 been stolen; (3) the possessor knowing or having reasonable grounds to believe the property to have been stolen; and (4) the possessor acting with a dishonest purpose.” State v. Tanner, 695 S.E.2d 97 , 100 (N.C. 2010) (quotations omitted). “[R]easonable grounds to believe” is the equivalent of “implied guilty knowledge.” State v. Parker, 341 S.E.2d 555 , 560 (N.C. 1986). “Dishonest purpose is an essential element of possession of stolen goods,” and a “[d]ishonest purpose is equivalent to felonious intent.” State v. Withers, 432 S.E.2d 692 , 698 (N.C. 1993). As an initial matter, we have jurisdiction to address whether the categorical approach applies to Binam’s conviction for possession of stolen goods because it is a legal question. See Gelin, 837 F.3d at 1240. But even though we agree that the categorical approach applies, we can give Binam no relief on her claim. The categorical approach requires an analysis of the elements of the conviction, and North Carolina courts have interpreted their possession-of-stolen- goods statute as requiring a dishonest purpose. See Mathis, 136 S. Ct. at 2248; Tanner, 695 S.E.2d at 100; Gelin, 837 F.3d at 1243. We’ve held that, “[g]enerally, a crime involving dishonesty or false statement is considered to be one involving moral turpitude.” Walker, 783 F.3d at 1229 (quotations omitted). Thus, Binam’s conviction for possession of stolen goods qualifies as a CIMT. See id. Because we’ve held that the dishonest purpose element provides a sufficient mens rea to render a conviction a CIMT, see id., Binam’s reliance on Matter of 5  USCA11 Case: 20-10630 Date Filed: 12/01/2020 Page: 6 of 8 Salvail, 17 I. & N. Dec. 19 (BIA 1979) -- which held that a Canadian statute that required actual knowledge of the stolen nature of the goods qualified as a CIMT -- is immaterial. Further, to the extent Binam relies on State v. Martin, 387 S.E.2d 211 (N.C. Ct. App. 1990), to argue that the categorical approach requires courts to limit themselves to the language of the statute, she is mistaken; that case dealt with the validity of an indictment, not the elements of a conviction. See id. at 213-14 . As for Binam’s reliance on Matter of Deang, 27 I. & N. Dec. 57 (BIA 2017), that case is inapplicable because it dealt with whether a conviction under North Dakota law for receipt of stolen property qualified as an “aggravated felony” under the INA. Id. at 58-64 . Here, the issue is whether a conviction for possession of stolen property -- which does not require an intent to permanently deprive -- qualifies as a CIMT, and, as we’ve said, this can be shown by establishing that the crime involved dishonesty. See Walker, 783 F.3d at 1229. Likewise, Matter of Machado Brindis, A078 968 678 (BIA Oct. 3, 2017), is inapplicable because, in North Carolina, “reasonable grounds to believe” has been equated with “implied guilty knowledge,” unlike the Florida statute at issue in that case, where “should know” meant criminal negligence. See Parker, 341 S.E.2d at 560. Moreover, Machado Brindis is of no precedential value because it is unpublished. Accordingly, we 6  USCA11 Case: 20-10630 Date Filed: 12/01/2020 Page: 7 of 8 conclude that the BIA did not err in finding that Binam’s conviction for possession of stolen goods qualifies as a CIMT, and we deny her petition as to this issue. 1 We also deny Binam’s petition concerning her argument that the BIA erred by applying retroactively Matter of Diaz-Lizarraga, 26 I. & N. Dec. 847 (BIA 2016) -- which she says announced a new rule regarding theft offenses -- to her case. As the record makes clear, the BIA’s passing reference to Matter of Diaz-Lizarraga did not retroactively apply its holding in determining whether Binam’s North Carolina convictions qualified as CIMTs. Thus, we need not reach this issue. Finally, we find no merit to Binam’s claim that she is eligible for cancellation of removal pursuant to the petty offense exception. In the cancellation-of-removal context, the petty-offense exception applies when: (1) a person has committed only one CIMT; (2) the maximum possible sentence for the CIMT did not exceed imprisonment for a term of one year; and (3) a sentence of six months or less was imposed. 8 U.S.C. § 1229b(b)(1)(c); id. § 1182(a)(2)(A)(ii). In 2008, a conviction for possession of stolen goods under North Carolina law constituted a Class H 1 Binam also has a previous conviction for concealment of merchandise under N.C. Gen. Stat. § 14-72.1 , which proscribes “without authority, willfully conceal[ing] the goods or merchandise of any store, not theretofore purchased by such person, while still upon the premises of such store.” N.C. Gen. Stat. § 14-72.1 (a). However, the BIA did not reach the issue of whether Binam’s conviction for concealment of merchandise qualifies as a CIMT, so we need not address it. See Gonzalez, 820 F.3d at 403. 7  USCA11 Case: 20-10630 Date Filed: 12/01/2020 Page: 8 of 8 felony, which carried a maximum possible sentence of 25 months’ imprisonment. N.C. Gen. Stat. § 14-71.1 . 2 Binam concedes in her brief that her conviction for misdemeanor larceny, under N.C. Gen. Stat. § 14-72 (a), qualifies as a CIMT, but contrary to her claims, this is not her only conviction for a CIMT. As we’ve already discussed, her conviction for possession of stolen goods constitutes a CIMT as well. In addition, that conviction alone disqualifies her for the exception because it carried a possible sentence of more than one year. See 8 U.S.C. § 1182 (a)(2)(A)(ii). Therefore, Binam is statutorily ineligible for the petty offense exception, see id., and we deny her petition in full.3 DENIED. 2 Felony Punishment Chart and Minimum/Maximum Table for Offenses Committed on or after December 1, 1995 to December 1, 2009, N.C. JUD. BRANCH, https://www.nccourts.gov/assets/documents/publications/felonychart_12_01_95maxchart.pdf?R CA2u_.9En4i.e8d67rDmBML2kHzGSQs. 3 In her brief, Binam does not contest the denial of her applications for withholding of removal or for relief under the Convention Against Torture (“CAT”), and therefore, she has abandoned these issues. See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226 , 1228 n.2 (11th Cir. 2005). 8

2020-06-05 07:03:33.97693+00

https://efast.gaappeals.us/download?filingId=cdd5554b-9d45-4645-b7af-0196ac506658

FIFTH DIVISION REESE, P. J., MARKLE and COLVIN, JJ. NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. Please refer to the Supreme Court of Georgia Judicial Emergency Order of March 14, 2020 for further information at (https://www.gaappeals.us/rules). May 22, 2020 In the Court of Appeals of Georgia A20A0526. PURNELL v. THE STATE. REESE, Presiding Judge. Ian Michael Purnell was convicted of burglary in the first degree. On appeal, Purnell argues that the trial court erred in declining to strike the venire. The State asked each of the panel members if anyone had been a victim of a crime, and two potential jurors answered the question in the affirmative and expressed dissatisfaction with the sentences the perpetrators received. For the reasons set forth infra, we affirm. Prior to trial, the State informed the court and Purnell of its intent to seek a recidivist sentence under OCGA § 17-10-7. The State subsequently moved in limine to exclude any reference to the sentence Purnell was facing if convicted. The court granted the motion, noting that Purnell had conceded that any reference to his potential sentence would be improper. The court allowed, however, testimony and evidence related to the plea agreement between Purnell’s co-defendant and the State. During voir dire, the State asked the jury panel whether anyone had been the victim of a crime. One of the potential jurors answered: “Back in 2010, my house was broken into and they took just about everything out of it. It was three gentlemen.” The potential juror continued that she was not satisfied with the criminal process, and noted that the defendants had received “ten years and they served two and they’re still in the ten years.” Purnell moved for a mistrial outside the presence of the jury. Purnell argued that the juror’s answer had tainted the jury pool because it mentioned a potential sentence for burglary. The State responded that the answer had not affected the other jurors’ ability to hear the case and did not reference a potential sentence for Purnell. The State noted that, if the jury had been tainted, the court could bring in another jury pool and restart the process. The court contemplated a curative instruction, but ultimately decided to deny Purnell’s motion without issuing a curative instruction because there was no evidence the answer had influenced the other jurors. The State continued to ask potential jurors whether any of them had been the victim of a crime. Another potential juror answered that she had been the victim of 2 an “especially aggravated assault and attempted murder and they — the State worked out a plea of thirty years, but then he was paroled in seven.” The juror stated that she was not satisfied with the outcome because the defendant was eventually paroled: “The first time he came up after six years, they denied parole, but then the second — the next year he came up again and was released.” Purnell renewed his previous motion for a mistrial, which the trial court denied, but the court allowed a continuing objection. Neither of the potential jurors who commented on a sentence or parole served on Purnell’s jury. During the jury charge at the conclusion of trial, the court instructed the jury as to the State’s burden of proof, the presumption of innocence, and the definition of reasonable doubt. The court additionally instructed: “You are only concerned with whether the State has carried its burden of proving the guilt of the defendant beyond a reasonable doubt. You are not to concern yourselves with punishment.” After the charge, Purnell renewed his objection as to the court’s failure to give a limiting instruction during voir dire. The court overruled the objection. The jury returned a guilty verdict. Purnell filed a motion new trial, arguing that the trial court erred in denying his motion for mistrial after the comments from the two potential jurors. The trial court 3 denied the motion, finding that the comments were not inherently prejudicial and that the court had cured any harm through its instructions to the jury. This appeal followed. We review issues regarding jury panel dismissal for an abuse of discretion.1 “[I]n this area as in other areas of voir dire practice, appellate courts should give substantial deference to the decisions made by trial judges, who oversee voir dire on a regular basis, are more familiar with the details and nuances of their cases, and can observe the parties’ and the prospective jurors’ demeanor.”2 With these guiding principles in mind, we now turn to Purnell’s specific claim of error. In his sole enumerated error on appeal, Purnell argues that the trial court erred in denying his motion for a mistrial after two potential jurors commented on punishment and parole. He contends that the comments were prejudicial because they distracted the jury from considering the lesser included offense of theft by taking. As an initial matter, “[t]he time for making a motion for mistrial is not ripe until the case has begun, and the trial does not begin until the jury has been impaneled 1 See Lester v. State, 343 Ga. App. 618 , 623 (2) (807 SE2d 922) (2017). 2 Herrington v. State, 300 Ga. 149 , 152 (3) (794 SE2d 145) (2016) (punctuation and citation omitted). 4 and sworn.”3 In response to prejudicial comments before the venire, the proper procedural vehicle is a “challenge to the poll” or a motion to strike the panel and impanel new jurors who had not heard the remark.4 “However, where the clear import of the motion is that the jury panel be excused and another panel be made available, the defendant’s use of incorrect nomenclature may be disregarded.”5 Here, Purnell sought to strike the venire and restart the process. Thus, despite the nomenclature of the motion, the trial court appropriately considered the merits of Purnell’s motion for mistrial.6 In determining whether a trial court is required to excuse a jury panel for remarks made during voir dire, the inquiry is whether the remarks were inherently prejudicial and deprived [the defendant] of his right to begin his trial with a jury free from even a suspicion of prejudgment or fixed opinion. If so, then the trial court’s failure to excuse the panel constitutes an abuse of discretion.7 3 Sharpe v. State, 272 Ga. 684 , 687 (5) (531 SE2d 84) (2000) (citation and punctuation omitted). 4 Id. 5 Herrington, 300 Ga. at 153 (4) (citation and punctuation omitted). 6 See id. 7 Johnson v. State, 340 Ga. App. 429 , 435 (3) (797 SE2d 666) (2017) (citation and punctuation omitted). 5 Additionally, [g]enerally, dismissal of a jury panel is required when, during voir dire, a prospective juror relays information that is specific to the defendant and germane to the case for which the defendant is on trial. Dismissal is not required, however, when the statements establish only gossamer possibilities of prejudice.8 In this case, the potential jurors’ comments on sentencing and parole were not inherently prejudicial. The comments did not relate to Purnell specifically and “did not imply that [Purnell] was guilty of the crime with which he was charged.”9 Moreover, the trial court instructed the jury that it was not to concern itself with punishment, “and qualified jurors under oath are presumed to follow the instructions 8 Id. 9 Logan v. State, 265 Ga. App. 134 , 137 (3) (593 SE2d 14) (2003). Compare, e.g., Heng v. State, 251 Ga. App. 274 , 278-279 (4) (554 SE2d 243) (2001) (trial court did not abuse its discretion in declining to strike the entire panel after a juror commented that the defendant “looked like a punk” and “[came] over here and commit[ted] crimes”), with Sinyard v. State, 243 Ga. App. 218 , 221 (2) (531 SE2d 140) (2000) (juror comment that a friend had been cheated by the defendant was inherently prejudicial and required the trial court to strike the jury panel in defendant’s trial for theft by conversion). 6 given by the trial court.”10 Accordingly, the trial court did not abuse its discretion in denying Purnell’s motion for mistrial and declining to strike the jury panel. Purnell additionally argues that the State was estopped from opposing Purnell’s motion for a mistrial because the State sought and received a motion in limine ruling excluding discussion regarding Purnell’s potential sentence. While Purnell contends that the estoppel was from a “record or judgment unreversed” under OCGA § 24-14- 26 (b) (1),11 his arguments are more akin to judicial estoppel. Under the doctrine of judicial estoppel, “[w]here a party assumes a certain position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter, simply because his interests have changed, assume a contrary position, especially if it be to the prejudice of the party who has acquiesced in the position formerly taken by him.”12 10 State v. Johnson, 280 Ga. 511 , 513 (630 SE2d 377) (2006) (citation omitted). 11 See OCGA § 24-14-26: (a) Conclusive presumptions of law are termed estoppels; averments to the contrary of such presumptions shall not be allowed. Estoppels are not generally favored. (b) Estoppels include presumptions in favor of: (1) A record or judgment unreversed[.] 12 Roberts v. State, 278 Ga. 610 , 611-612 (604 SE2d 781) (2004) (citation and punctuation omitted). 7  In a criminal prosecution, “application of the doctrine of judicial estoppel is inappropriate.”13 “[J]udicial estoppel should not be applied in criminal proceedings against either the State or the defendant.”14 Regardless, the State did not adopt a contrary position to its motion in limine because it did not solicit or capitalize on the prospective jurors’ comments.15 Accordingly, the State was not estopped from opposing Purnell’s motion for mistrial. Judgment affirmed. Markle and Colvin, JJ., concur. 13 Roberts, 278 Ga. at 613 . 14 Id. at 612-613. 15 See Period Homes v. Wallick, 275 Ga. 486 , 488-489 (2) (569 SE2d 502) (2002). 8

2020-12-01 15:00:30.202518+00

http://media.ca11.uscourts.gov/opinions/unpub/files/201914032.pdf

USCA11 Case: 19-14032 Date Filed: 12/01/2020 Page: 1 of 10 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 19-14032 ________________________ D.C. Docket No. 6:17-cv-02208-JA-EJK LLOYD WICKBOLDT, Plaintiff - Appellant, versus MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY, A foreign corporation, Defendant - Appellee. ________________________ Appeal from the United States District Court for the Middle District of Florida ________________________ (December 1, 2020) Before MARTIN, LUCK, and BRASHER, Circuit Judges. MARTIN, Circuit Judge:  USCA11 Case: 19-14032 Date Filed: 12/01/2020 Page: 2 of 10 Lloyd Wickboldt appeals the District Court’s order denying him summary judgment and granting summary judgment to Massachusetts Mutual Life Insurance Co. (“MassMutual”). He claims the terms of his disability policy, and attached riders and other documents, entitle him to a cost of living adjustment in addition to his monthly disability benefit for the rest of his life. After careful consideration, and with the benefit of oral argument, we affirm the District Court’s order. I. FACTUAL BACKGROUND In 1985, Dr. Wickboldt, then a 33-year-old dermatologist, bought a disability insurance policy from MassMutual’s predecessor. 1 Dr. Wickboldt purchased a basic policy (the “Basic Policy”) as well as a Cost of Living Rider (the “COLA Rider”). One year later he bought a Lifetime Total Disability Benefits Rider (the “Lifetime Rider”). We’ll refer to these documents collectively as the “policy documents.” In 2000, when he was 48 years old, Dr. Wickboldt became totally disabled. MassMutual began paying Dr. Wickboldt $8,000 per month under the Basic Policy. After one year, MassMutual also began paying Dr. Wickboldt an additional sum under the COLA Rider. From May 2015 to August 2017, Dr. Wickboldt was receiving about $16,000 per month in disability benefits under the 1 The fact that the disability policy was originally issued by a different company (which MassMutual acquired) has no impact on this case. 2  USCA11 Case: 19-14032 Date Filed: 12/01/2020 Page: 3 of 10 Basic Policy and the COLA Rider. But after September 1, 2017, and according to its interpretation of the policy documents, MassMutual stopped paying Dr. Wickboldt monthly benefits under the Basic Policy as modified by the COLA Rider. It then started paying Dr. Wickboldt’s monthly payments of $8,000, which was the new calculation of benefits provided under the Lifetime Rider. Dr. Wickboldt, however, claims he is entitled to the additional COLA Rider benefits for the rest of his life. He filed suit to recover those benefits. In December 2018, Dr. Wickboldt filed for summary judgment. MassMutual opposed Dr. Wickboldt’s motion. A few months later, the District Court issued an order denying Dr. Wickboldt’s motion for summary judgment and directing the clerk to enter judgment for MassMutual. The District Court found that the policy documents were not ambiguous and the plain language indicated that, “after September 1, 2017, Dr. Wickboldt is entitled to receive $8,000 in benefits under the Lifetime Rider but is not entitled [to] benefits under the Basic Policy or to past or future benefit increases under the COLA Rider.” The District Court’s finding was based on a termination provision in the COLA Rider, which the District Court said made “clear that benefit increases would not be paid beyond September 1, 2017—the policy Anniversary on or after Dr. Wickboldt’s 65th birthday.” The District Court thus rejected each of Dr. Wickboldt’s theories of interpretation. 3  USCA11 Case: 19-14032 Date Filed: 12/01/2020 Page: 4 of 10 II. THE POLICY DOCUMENTS The Basic Policy sets forth several definitions that apply with equal force to the terms in the attached riders. For example, “Maximum Benefit Period” is defined as “The maximum length of time we’ll pay benefits, whether for total disability, residual disability or a combination of both.” The Basic Policy pays out benefits for Total Disability, but MassMutual will “only pay up to the maximum benefit period.” The COLA Rider describes itself as “provid[ing] monthly benefit increases while you’re totally or residually disabled.” In relevant part, the COLA Rider provides: When We’ll Pay Monthly Benefit Increases. We’ll pay monthly benefit increases while you’re receiving total or residual disability benefits. ... How Long We’ll Pay Benefit Increases. While you’re totally or residually disabled, we’ll pay benefit increases until the earliest of: • the date your total or residual disability ends; • the date the maximum benefit period under this rider ends; [or] • the anniversary on or after your 65th birthday. ... Termination. This rider will end on the earliest of the following dates: • 31 days after the due date of any unpaid premium; 4  USCA11 Case: 19-14032 Date Filed: 12/01/2020 Page: 5 of 10 • as of the next premium due date upon your written request; • the anniversary on or after your 65th birthday; [or] • the date that your policy ends. The Lifetime Rider says it “provides monthly total disability benefits to be paid beyond the Anniversary on or after your 65th birthday. Benefits will be paid for life.” The Lifetime Rider also includes the following terms: When We’ll Pay Monthly Total Disability Benefits. If you’re eligible,2 your monthly benefits under this rider will start after the Anniversary on or after your 65th birthday. We’ll make the first payment 1 month after that Anniversary. We’ll continue to make monthly payments as long as you remain totally disabled. Monthly Total Disability Benefit. The largest amount of monthly benefit you will receive under this rider is shown on the current Coverage Page of your policy. ... Termination. This rider will end on the earliest of the following dates. • 31 days after the due date of any unpaid premium, • as of the next premium due date upon your written request, • the Anniversary on or after your 65th birthday, 3 [or] • the date that your policy ends. 2 There is no dispute that Dr. Wickboldt is eligible for benefits under the Lifetime Rider. 3 We do not read this termination provision as being in conflict with the provision describing when benefits begin. Because the purpose of the Lifetime Rider “is to provide benefits . . . beyond the age of 65,” this termination provision makes clear that the Lifetime Rider terminates at age 65 if the insured does not become totally disabled before the age of 65. See Oral Argument Recording at 29:15–31:03 (Nov. 18, 2020). 5  USCA11 Case: 19-14032 Date Filed: 12/01/2020 Page: 6 of 10 Finally, the “Coverage Page” referred to in the Monthly Total Disability Benefit under the Lifetime Rider sets forth, in pertinent part: EFFECTIVE COVERAGE MONTHLY MAXIMUM * BENEFIT ANNUAL DATE BENEFIT PERIOD PREMIUM SEP 01 1985 BASIC MONTHLY $8,000 TO 65 $1,940.20 BENEFIT WITH THEREAFTER $3,049.00 ADJUSTABLE BENEFIT SEP 01 1985 PARTIAL DISABILITY $4,000 $360.00 SEP 01 1986 LIFETIME $8,000 $475.20 ACCIDENT/SICKNESS SEP 01 1985 COST OF LIVING RIDER $763.20 MAXIMUM 7.50% SEP 01 1985 OWN OCCUPATION/ $8,000 THEREAFTER $220.00 PRESUMPTIVE DIS $368.80 RIDER YOUR MAXIMUM MONTHLY BENEFIT IS $8,000 The asterisk in Maximum Benefit Period refers to the statement that “[y]our benefit period for disability is your specified benefit period, but not beyond SEP 01 2017. . . . Your benefit period may be extended beyond SEP 01 2017 if you qualify for benefits under the Lifetime Accident/Sickness Rider. See your rider for details.” III. STANDARD OF REVIEW We review de novo a summary judgment ruling, viewing the evidence and all factual inferences therefrom in the light most favorable to the party opposing the motion. Grange Mut. Cas. Co. v. Slaughter, 958 F.3d 1050 , 1056 (11th Cir. 2020). We also review de novo the interpretation of an insurance contract. Id. 6  USCA11 Case: 19-14032 Date Filed: 12/01/2020 Page: 7 of 10 IV. DISCUSSION “Where the language in an insurance contract is plain and unambiguous, a court must interpret the policy in accordance with the plain meaning so as to give effect to the policy as written.” See Wash. Nat’l Ins. Corp. v. Ruderman, 117 So. 3d 943 , 948 (Fla. 2013). And in construing insurance contracts, we must read the policy documents as a whole, “endeavoring to give every provision its full meaning and operative effect.” Id. (quotation marks omitted). We must also avoid simply concentrating on certain provisions to the exclusion of others. Id. Dr. Wickboldt argues that the Lifetime Rider “altered and enhanced” the termination provisions in the Basic Policy and the COLA Rider in such a way as to entitle him to COLA Rider benefits after the Lifetime Rider benefits begin. He says the Lifetime Rider expressly “extended the maximum benefit period for all of Wickboldt’s ‘monthly, total disability benefits’ to which he was entitled under his entire Policy ‘for life,’” so the Lifetime Rider “did not just extend the entitlement to benefits under only [that] portion of the Policy.”4 MassMutual, however, says that the COLA Rider unambiguously limited the duration of coverage—in two separate provisions—to the anniversary after Dr. Wickboldt’s 65th birthday. In 4 Dr. Wickboldt also says that if his interpretation and MassMutual’s interpretation of the policy documents are both reasonable, then we should conclude the policy is ambiguous and construe it in his favor. However, because Dr. Wickboldt does not argue that any provisions of the policy documents are indeed ambiguous, he has failed to “plainly and prominently” raise this argument and has therefore abandoned it. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678 , 681 (11th Cir. 2014). 7  USCA11 Case: 19-14032 Date Filed: 12/01/2020 Page: 8 of 10 MassMutual’s view, the Lifetime Rider neither extends monthly benefit increases under the COLA Rider nor renews any other provision in the Basic Policy. We thus begin with Dr. Wickboldt’s contention that the Lifetime Rider extended all benefits he was receiving on the date the Lifetime Rider went into effect. We do not read the Lifetime Rider to extend benefits under either the Basic Policy or the COLA Rider. The Lifetime Rider contains its own benefits provision, beginning one month “after the Anniversary on or after your 65th birthday” and awarding “monthly total disability benefits [that will] be paid beyond the Anniversary on or after your 65th birthday . . . for life.” These benefits are “base[d] . . . on your loss of income” and “multipl[ied] . . . by the ratio of your loss of income to your predisability income.” In other words, the Lifetime Rider creates a new set of benefits—wholly unrelated to benefits paid out under the Basic Policy and based on a new means of calculating those benefits—that are not due to be paid until one month after the Anniversary on or after Dr. Wickboldt’s 65th birthday. By the time Lifetime Rider benefits begin, benefits under both the Basic Policy and the COLA Rider benefits have ended. Dr. Wickboldt agreed with this interpretation before the District Court. See, e.g., R. Doc. 34: 2–3 (stating that base monthly benefits are paid “only until the policy anniversary date following his sixty-fifth birthday, or until September 1, 2017”). Based on the plain, 8  USCA11 Case: 19-14032 Date Filed: 12/01/2020 Page: 9 of 10 unambiguous language of the policy documents,5 there is nothing to support Dr. Wickboldt’s argument that the Lifetime Rider extends, restarts, or revives benefits under the COLA Rider. See Ruderman, 117 So. 3d at 948. Dr. Wickboldt also relies on Colt v. Massachusetts Mutual Life Insurance Co., 2012 WL 1739145 (Mass. Super. Ct. May 1, 2012) (unpublished), to advance his Lifetime Rider-extension argument. In Colt, the court interpreted a policy that appears to be identical to the one Dr. Wickboldt purchased. See id. at *1–3. The Colt court found the Lifetime Rider extended payment of total disability benefits “despite clear language” limiting payment of benefits to age 65. Id. at *5. This was based, in part, on MassMutual’s concession “that the Lifetime Rider acts to extend the basic monthly benefit for life,” as reflected in the Coverage Page. Id. The court thus rejected the argument that the Lifetime Rider did not also extend the COLA Rider benefit, which was also reflected in the Coverage Page. See id. Lending further support, the court said, was the asterisk following “Maximum Benefit Period” on the Coverage Page, which said that “your benefit period may be extended . . . if you qualify for benefits under the [Lifetime Rider].” Id. 5 Not only has Dr. Wickboldt failed to point to any ambiguous provision, see supra at 7 n.4, but we do not read the policy documents as being ambiguous. Under Florida law, ambiguities arise only if the “policy language is susceptible to more than one reasonable interpretation, one providing coverage and another limiting coverage.” Garcia v. Fed. Ins. Co., 969 So. 2d 288 , 291 (Fla. 2007). There is one reasonable interpretation of the policy documents here, and it does not support Dr. Wickboldt’s position. 9  USCA11 Case: 19-14032 Date Filed: 12/01/2020 Page: 10 of 10 MassMutual has not made the concession here that it did in Colt. Neither do we read the Coverage Page as being inconsistent with the termination provisions in the Basic Policy and the COLA Rider. 6 Rather, the Coverage Page explains exactly how much Dr. Wickboldt is entitled to under the Basic Policy and each Rider. Based on the plain meaning of the policy documents, the maximum monthly benefits to which Dr. Wickboldt is entitled is $8,000—exactly what he is receiving under the Lifetime Rider. See Ruderman, 117 So. 3d at 948. V. CONCLUSION For the reasons set forth above, we AFFIRM the District Court’s order granting MassMutual summary judgment. 6 The parties presented the District Court with two different versions of the Coverage Page. Dr. Wickboldt seems to imply that these are inconsistent, pointing out that the copy he provided “is blank in the column for ‘Maximum Benefit Period’ for the row for the [COLA] Rider,” whereas MassMutual’s copy says “TO 65” in the row for the COLA Rider. Dr. Wickboldt says his version, which does not contain a maximum benefit period, should control. But even when viewing the Coverage Page in the light most favorable to Dr. Wickboldt, see Grange Mut., 958 F.3d at 1056, we are still required to read the policy documents as a whole, Ruderman, 117 So. 3d at 948. And because the Coverage Page does not expressly contradict the termination provisions in the COLA Rider, we must endeavor to give them their full meaning and operative effect. See id. 10

2020-01-17 22:01:36.558238+00

Mokeis

*806OPINION. Mokeis : McCallum having died in 1924 and the books and records containing the transactions here in dispute having been lost, hence not available as evidence at the hearing of this proceeding, the peti*807tioner’s counsel was decidedly handicapped, and was necessarily compelled to resort to secondary evidence in the presentation of his case. McCallum’s bookkeeper, who recorded these transactions and who was in intimate touch with the affairs of Cressler & McCallum Co. during the year in controversy, gave testimony based upon his personal knowledge of these transactions, and from his testimony we are satisfied that McCallum did, in fact, sustain a loss of $4,000 in September, 1920, because of the sale in that month of his interest in a royalty which proved unprofitable. With respect to the other item of expense here in dispute, it appears from the testimony that the amount is $8,013.40 instead of $8,018.40, as set forth in the allegation of error herein. The record shows that McCallum and his associate had expended $26.20 in the Otto Creek Oil Co. project and that because of disputes arising among the interested parties they withdrew therefrom in 1920, sustaining a loss of the amount so expended; that the item of $339.67 was the amount incurred and paid during the taxable year for stenographic salaries and office expenses; that the sum of $1,868.75 represented the purchase of a lease in Butler County upon which work was suspended and the lease assigned to one McClintick in 1920 without compensation; and that the amounts denominated Taylor, Randle, Wenger, and Huffman & Weber leases were rentals paid under those leases which were, because of the failure of developments, allowed to lapse. The record further shows that the sum of $1,192.54 was expended in the development of an oil well under a lease in Oklahoma which was abandoned in 1920 for the reason that the well was found to be dry; and that a $50 loss was sustained in 1920 because of the failure of the McHarg Brokerage Co., which went into the hands of receivers and was dissolved in 1920. While we have no direct evidence of the actual expenditure of some of the various amounts included in the deduction of $8,013.40, we do have the undisputed testimony of the bookkeeper who recorded these transactions and who was in intimate touch with the business of McCallum, and who prepared his return fo.r 1920, that they were recorded in the books of account and that in his opinion these losses were actually sustained. In the absence of a showing to the contrary we must infer that the books of account correctly set forth the amounts of income and expenses and that the explanations made in good faith are correct. There has been no showing on the part of the respondent that these amounts are incorrectly recorded in the books of account, and since they purport to record the actual expenditures made, we assume that they were in fact made as represented. We are satisfied from the evidence that the petitioner is entitled to deduct the amounts which we have discussed in the *808preceding paragraph in the computation oí McCallum’s net income for 1920. The evidence with respect to the “Mineral Lease — Seneca, Mo.,” the Princess Oil Co., and the Butler County project, in our opinion, is insufficient to establish the validity of the deductions claimed. With respect to the mineral lease, all that the record shows is that the $166.78' represents a coal lease which was acquired and surrendered in 1920, and, with respect to the Princess Oil Co. transactions, we are told that the sum of $357 represents total payments made according to the books of account in the organization of a small company and operation of a lease. All that we know about the Butler County project is that the amount in question was advanced to the drilling contractor for the completion of an oil well in that county and that the well came in dry. We do not know the nature of the contract under which the work proceeded. Without more we are unable to grasp the true significance of these transactions and we must, therefore, approve the findings of the respondent insofar as they are concerned. Judgment will be entered under Rule 50.

2020-12-01 15:01:19.44874+00

http://www.uscourts.cavc.gov/documents/DallmanDA_18-4075 (11-30-20).pdf

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS No. 18-4075 DONALD A. DALLMAN, APPELLANT, V. ROBERT L. WILKIE, SECRETARY OF VETERANS AFFAIRS, APPELLEE. On Appeal from the Board of Veterans' Appeals (Argued July 16, 2020 Decided November 30, 2020) Ethan F. Maron, of Washington, D.C., for the appellant. Melissa A. Timbers, with whom James M. Byrne, General Counsel; Mary Ann Flynn, Chief Counsel; and Edward V. Cassidy, Jr., Deputy Chief Counsel, all of Washington, D.C., were on the brief for the appellee. Before GREENBERG and MEREDITH, Judges, and SCHOELEN,1 Senior Judge. SCHOELEN, Senior Judge: The appellant, Donald A. Dallman, appeals an April 4, 2018, Board of Veterans' Appeals (Board) decision that denied an increased disability rating in excess of 30% for a right knee disability, status post total right knee replacement; and denied both an earlier effective date and an initial disability rating in excess of 10% for radiation proctitis with fecal urgency. The Board also granted service connection for a bilateral heel disability. The Board's award of service connection is favorable to Mr. Dallman and therefore the Court will not disturb it. See Medrano v. Nicholson, 21 Vet.App. 165 , 170 (2007) (stating that the Court is not permitted to reverse the Board's favorable findings of fact), aff'd in part and dismissed in part sub nom. Medrano v. Shinseki, 332 F. App'x 625 (Fed. Cir. 2009). Additionally, the Board found that a December 1999 rating decision denying service connection for right thigh hematoma residuals was final; found that the appellant submitted new and material evidence sufficient to reopen the claim; and remanded the matter for further adjudication.2 1 Judge Schoelen is a Senior Judge acting in recall status. In re Recall of Retired Judge, U.S. VET. APP. MISC. ORDER 04-20 (Jan. 2, 2020). 2 Further, the Board noted that "in July 2016 the Veteran submitted a Notice of Disagreement (NOD) with a July 2015 rating action of the [VA regional office (RO)]" and that "[t]hese matters are being developed for appellate  On December 13, 2019, the Court issued a memorandum decision dismissing the right thigh hematoma claim for lack of jurisdiction and vacating and remanding the Board decision as to all other issues. On January 3, 2020, Mr. Dallman filed a motion for reconsideration or, in the alternative, for panel review, arguing that the Court had committed legal error in dismissing the right thigh hematoma claim for lack of jurisdiction. Appellant's Motion (Mot.) for Reconsideration at 3. In particular, Mr. Dallman asserted that the finality determination regarding the December 1999 rating decision is a discrete legal issue appealable at this stage of litigation because it could have an adverse effect on the downstream issue of the proper effective date. Appellant's Mot. at 3-4. The Court withdrew its previous memorandum decision on May 1, 2020, and assigned a panel to determine whether the Board's finality determination is an independently appealable issue. For the following reasons, the Court holds that the Board's finding that the December 1999 rating decision was final does not constitute a final decision, and thus the Court lacks jurisdiction to hear Mr. Dallman's right thigh hematoma residuals argument. As to the denial of a disability rating in excess of 30% for a right knee disability, and the denial of an earlier effective date and an initial disability rating in excess of 10% for radiation proctitis with fecal urgency, the Court will vacate the decision on appeal and remand the matters for further adjudication consistent with this opinion. I. JURISDICTION OVER REMANDED RIGHT THIGH HEMATOMA RESIDUALS CLAIM A. Procedural History Mr. Dallman served on active duty in the U.S. Air Force from June 1966 to April 1970. R. at 1364. In June 1982, the RO granted service connection for a right knee disability, and in December 1983, the Board awarded a 10% disability rating. R. at 4542-45, 4613. The RO, in a December 1999 rating decision, denied Mr. Dallman service connection for an "infected hematoma as secondary to the service[-]connected disability of the right knee." R. at 4315-17. Mr. Dallman submitted a statement in January 2000, which he titled as a "reply and a[n] consideration, but have not yet been fully adjudicated by the Agency of Original Jurisdiction (AOJ)." Amended Record of Proceedings (R.) at 5. The Board therefore found that it lacked jurisdiction over the matters, and the appellant does not contend on appeal that the Board erred in its jurisdictional determination. Accordingly, the Court will dismiss the matters and not address them further. See Pederson v. McDonald, 27 Vet.App. 276 , 285 (2015) (en banc) (holding claims not argued on appeal are deemed abandoned and dismissing the matters). 2 appeal" to the December 1999 rating decision. R. at 4311-13. This submission asked VA to "please assure me that my claim is still active and that [it] will be sent to Washington for the appeals Board." R. at 4311-13. Following a December 2010 request to reopen, in June 2012, VA denied Mr. Dallman service connection for a resolved right thigh hematoma associated with his right knee surgery. R. at 2532-40, 2735.3 After disagreeing with that decision, he timely filed a Substantive Appeal in October 2013. R. at 1544-47; see R. at 1644. In the decision on appeal, the Board found that the December 1999 rating decision denying Mr. Dallman's claim was final, but that he had submitted new and material evidence dated in December 2001 (in the form of a VA outpatient treatment record) sufficient to reopen that decision. R. at 9-10. Accordingly, the Board remanded the matter for Mr. Dallman to undergo a medical examination to ascertain the current nature and etiology of any right thigh hematoma and for the RO to readjudicate the matter. R. at 29-30. This appeal followed. B. Analysis The Court has exclusive jurisdiction to review decisions of the Board. 38 U.S.C. § 7252 (a). Under 38 U.S.C. § 7266 (a), for a claimant to obtain review of a Board decision by this Court, that decision must be final. See In re Quigley, 1 Vet.App. 1 , 1 (1990). A Board remand is not a final decision within the meaning of 38 U.S.C. § 7252 (a). See Kirkpatrick v. Nicholson, 417 F.3d 1361 , 1365 (Fed. Cir. 2005). To provide some context for the parties' arguments, the Court notes that, pursuant to 38 U.S.C. § 5108 , "[i]f new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim." 38 U.S.C. § 5108 (2018). To satisfy this requirement, the evidence "must be both new and material." Smith v. West, 12 Vet.App. 312 , 314 (1999) (emphasis omitted). Further, under the applicable version of 38 U.S.C. § 5110 (a), which governs the assignment of effective dates for awards of benefits, 3 The Court notes that, in the June 2012 decision, the RO did not address whether new and material evidence had been submitted to reopen the previously disallowed claim for an infected hematoma secondary to the service- connected right knee disability. See R. at 2532-40. However, the Board is required to make that jurisdictional determination de novo and did so in the April 2018 decision on appeal. R. at 9-11; see Woehlaert v. Nicholson, 21 Vet.App. 456 , 460 (2007) (describing the "jurisdictional nature of the new and material evidence requirement" and holding that "the Board [has] to decide whether new and material evidence [has] been presented, regardless of the RO's prior decision or subsequent actions"). 3  the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110 (a) (2018). VA's implementing regulation similarly provides that the effective date generally will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (2018).4 Mr. Dallman asserts that the Board erred in finding that the December 1999 rating decision denying service connection for right thigh hematoma residuals was final, contending that he submitted a January 2000 "reply and an appeal" that constituted an informal NOD. Appellant's Brief (Br.) at 14 (citing R. at 4311-12, 4315-17). He further asserts that the Board's finality determination is an independently appealable issue over which the Court has jurisdiction. Appellant's Mot. at 3-4 ("[B]oth 'claims for reopening' and the underlying claim of entitlement to service connection are entitled to 'one review on appeal to the Secretary,' and the Board produces final decisions on both matters." (quoting Hickson v. Shinseki, 23 Vet.App. 394 , 399-400 (2010))). Fundamentally, Mr. Dallman contends that "[t]he Board's erroneous determination that the December 1999 rating decision became final would preclude entitlement to an effective date for service connection earlier than the date of the subsequent claim for reopening." Appellant's Br. at 14 (emphasis omitted). The Secretary counters that the Court does not have jurisdiction to hear Mr. Dallman's argument because he attempts to prematurely raise an argument as to the effective date of the award of service connection for right thigh hematoma, which was not awarded until after the decision on appeal. Secretary's Br. at 17. Mr. Dallman's assertion as to the purportedly preclusive nature of the Board's finality determination is unsupported by relevant caselaw. In Myers v. Principi, the Board found final a 1958 denial of service connection for a back condition, reopened that claim (via the appellant's 4 Effective February 19, 2019, Congress amended section 5108 and portions of section 5110 of title 38 of the U.S. Code, and VA amended portions of 38 C.F.R. § 3.400 , to comply with the appeals processing changes mandated by the Veterans Appeals Improvement and Modernization Act of 2017, Pub. L. No. 115-55, 131 Stat. 1105 (Aug. 23, 2017). See Pub. L. No. 115-55, § 2(x), 131 Stat. at 1115 (providing the effective date of statutory amendments); VA Claims and Appeals Modernization, 84 Fed. Reg. 138 , 170 (Jan. 18, 2019) (final rule); VA Claims and Appeals Modernization, 84 Fed. Reg. 2449 , 2449 (Feb. 7, 2019) (notification of effective date for regulatory amendments). However, the regulatory changes apply only to claims in which an initial decision is issued after February 19, 2019, unless a "legacy" claimant elects to use the modernized review system. 84 Fed. Reg. at 177. There is no assertion that the new statutes or rule should apply here. 4 1994 request to "reopen"), and remanded the reopened claim for adjudication of the service connection issue. 16 Vet.App. 228 , 229-30 (2002). Upon remand, the RO granted service connection, and on appeal, the appellant challenged the effective date, asserting that VA had failed to address a purported NOD he had filed in April 1959. Id. at 230 . This Court agreed with the appellant, holding that the April 1959 filing was an NOD that VA had failed to address, and because "the RO never took further action in response to that [application for review]" and the appellant did not "receive a . . . [Board] decision regarding his claim," the 1958 claim was still open when he was awarded service connection. Id. at 232, 235-36 . Thus, the Court concluded that the "original service-connection claim [was] part of the current claim stream" when service connection was awarded and remanded the matter for "the Board to assign an appropriate effective date." Id. at 236 . Myers clearly stands for the proposition that, to the extent that the Board's finding of finality regarding a prior rating decision – in the context of addressing whether a claim should be reopened – could affect a veteran's effective date, the issue can be adjudicated at a later date after service connection is granted. The only question left, therefore, is whether the Court could address the issue now, or if review is solely appropriate downstream during effective-date litigation. Acosta v. Principi, 18 Vet.App. 53 (2004), not cited by either party, counsels this Court that once the Board reopens a claim and remands it for adjudication of service connection on the merits, the finality issue may only be litigated downstream. In Acosta, a January 1998 Board decision found final a March 1983 rating decision that denied service connection for a psychiatric condition. 18 Vet.App. at 56. It granted a February 1995 request to reopen, based on the submission of new and material evidence after the 1983 decision, and remanded the matter for further adjudication. Id. at 56. In October 1998, the RO awarded service connection and assigned an effective date of February 1995. Id. The appellant filed an NOD in November 1998 contesting the effective date, arguing that he had continuously pursued his appeal since 1983. Id. On appeal, Mr. Acosta asserted that a document he filed in June 1984 should have been treated as a request for an extension of time to file a Substantive Appeal, but was never acknowledged or adjudicated, and thus his original claim remained pending. Id. at 56-57. The Board in 2001 denied Mr. Acosta an earlier effective date, finding that "the issue of timeliness or adequacy of [a] [S]ubstantive [A]ppeal following the March 1983 RO denial of service connection for psychiatric disability [was] not now before the Board," because the January 1998 Board decision had already found that 5 Mr. Acosta had not appealed the 1983 RO decision. Id. at 57 (citations omitted) (emphasis in original). On appeal to the Court, the Secretary argued that the Board's January 1998 finality determination regarding the March 1983 rating decision controlled and that because Mr. Acosta had not appealed the 1998 decision instead of the 2001 decision, the Court could not revisit the issue. Id. at 59. The Court disagreed and vacated the 2001 Board decision on appeal, stating: In Breeden v. Principi, 17 Vet.App. 475 (2004), the Court held that the Board's remand of the veteran's claim to the RO was not an adverse final decision over which the Court had jurisdiction. See also 38 C.F.R. § 20.1100 (b). Similarly, in this case the Board's remand in January 1998 of Mr. Acosta's claim did not constitute a final decision of his earlier claim because further development of the claim could affect the decision on the award's effective date. Furthermore, at the time of the remand, Mr. Acosta had not been awarded service connection. Thus, no effective[-]date determination was required. Only after he was awarded service connection and assigned an effective date, and those decisions had been reviewed finally by the Board, could he appeal to this Court concerning the effective date or rating assigned. See Matthews v. Principi, 15 Vet.App. 138 , 139 (2001) (dismissing for lack of jurisdiction because no final Board decision had been made). Acosta, 18 Vet.App. at 59 (emphasis added). Acosta, therefore, stands for the proposition that this Court cannot consider an appellant's contentions regarding the Board's finality determination after reopening, but prior to the award of service connection, because that finality decision, along with the decision to reopen and remand a matter, does not constitute a final Board decision as to his service-connection claim or the effective date of an award. Here, just as in Acosta, Mr. Dallman asserts that there is a previously submitted document that has the effect of keeping open his original service-connection claim, and thus entitles him to an earlier effective date. This may be so. But it is for the RO or Board to adjudicate after service connection has been granted. This Court cannot assert jurisdiction over the matter where there is no final decision on the service-connection claim.5 See Maggitt v. West, 202 F.3d 5 Nothing in this decision should be read as precluding a veteran from asserting before the RO that there is a pending, unadjudicated matter. If a veteran believes he or she submitted a document such as an NOD that VA failed to address, the veteran is not barred from arguing that point before the RO in the first instance. DiCarlo v. Nicholson, 20 Vet.App. 52 , 56-57 (2006) ("[A] claim may remain in an unadjudicated state due to the failure of the Secretary to process it. In such instances, the appropriate procedure for a claimant to press a claim believed to be unadjudicated (and for which there is no final decision that arguably failed to consider the claim) is to pursue a resolution of the original claim."), aff'd sub nom. Dicarlo v. Peake, 280 F. App'x 988 (Fed. Cir. 2008). Rather, we simply conclude that, whenever the Board has deemed a rating decision final and reopened and remanded the matter, arguments regarding effective date – which include arguments as to the finality issue – are not appropriate for judicial review until after the effective date is assigned, and that element of the claim is the subject of a final Board decision. See, e.g., Grantham v. Brown, 114 F.3d 1156 , 1158 (Fed. Cir. 1997) (stating that the "first decision regarding a claim for 6 1370, 1376 (Fed. Cir. 2000) ("A 'decision' of the Board, for purposes of [this Court's] jurisdiction under [ 38 U.S.C. § 7252 ], is the decision with respect to the benefit sought by the veteran . . . ."); Ledford v. West, 136 F.3d 776 , 779 (Fed. Cir. 1998) (holding that this Court's "jurisdiction is premised on and defined by the Board's decision concerning the matter being appealed"); Jarrell v. Nicholson, 20 Vet.App. 326 , 330-32 (2006) (en banc). Further, "[t]he concept of res judicata requires that there be only one valid decision on any adjudicated issue or claim," DiCarlo, 20 Vet.App. at 55, and therefore it would be inappropriate to permit litigation on the finality issue at the service-connection stage and the earlier-effective-date stage. Simply put, we find no legal basis for Mr. Dallman's argument that he will be precluded from an earlier effective date for his service-connected disability if he is not allowed to adjudicate the Board's finality determination now. To the contrary, the Board's threshold finality determination has no preclusive effect on potential effective dates during the downstream earlier- effective-date litigation.6 Accordingly, because the Board's finality determination is not a final Board decision as to the ultimate issue of service connection, and thus not a final decision within the meaning of sections 7252(a) and 7266, the Court will dismiss the issue for lack of jurisdiction.7 benefits might not resolve, or even address, all necessary elements of the application for benefits" and holding that an NOD appealing "the logically up-stream element of service-connectedness" from an initial RO decision "[cannot] concern the logically down-stream element of compensation level"). 6 Mr. Dallman and the Secretary both note that, subsequent to the Board remand, the RO issued a January 2019 decision granting service connection for the right thigh hematoma residuals. Appellant's Br. at 15; Secretary's Br. at 17 n.1. The Secretary further addresses Mr. Dallman's attachment of the RO's January 2019 decision as an appendix to his principal brief and asks this Court to "strike the exhibit from its calculus" because it would be inappropriate for us to consider records not before the Board. Secretary's Br. at 17 n.1. To the extent that the Secretary asks this Court to literally strike the appendix from the appellant's principal brief, we note that a motion cannot be contained within a party's brief. See U.S. VET. APP. R. 27. However, we agree with the Secretary that this attachment was inappropriate, and have not considered it in resolving the legal questions before the Court. See 38 U.S.C. § 7252 (b) ("Review in the Court shall be on the record of proceedings before the Secretary and the Board."); see also Murillo v. Brown, 8 Vet.App. 278 , 280 (1995) (per curiam order) ("For the Court to base its review on documents not included in the Board's calculus at the time it rendered its decision would render the Court a fact finder de novo, exceeding its authority under the statutory scheme which establishes the Court as an appellate body."). 7 As a final matter, even if the Court could address the finality of a prior rating decision in this context, the Court's determination on the matter would amount to nothing more than an improper advisory opinion unless and until entitlement to benefits is granted. Cf. Ingram v. Nicholson, 21 Vet.App. 232 , 254 (2007) (per curiam) ("[D]eciding whether or not a claim was reasonably raised below on the possibility that it might be relevant to a future effective- date determination amounts to nothing more than an advisory opinion."). 7  II. REMAINING ISSUES ON APPEAL The legal underpinnings of the remaining issues on appeal are not disputed, and the Secretary conceded at oral argument that he does not dispute any of the holdings in the Court's revoked memorandum decision as to these remaining issues. Oral Argument (OA) at 30:30-30:52, http://www.uscourts.cavc.gov/oral_arguments_audio.php. Therefore, for the reasons set forth below, the Court will vacate the Board decision as to all remaining issues on appeal and will remand the matters for further adjudication. A. Failure to Discuss Rating by Analogy to Diagnostic Code 7332 for Radiation Proctitis 1. Procedural History In December 2003, the RO granted service connection for prostate cancer, effective September 2003. R. at 3863-69. Over the years, the RO also granted service connection for residuals of Mr. Dallman's prostate cancer, including radiation proctitis with fecal urgency, gastroesophageal reflux disease with Barrett's esophagus, erectile dysfunction, and presumed embolization/migration of a brachytherapy seed to the left lower lung. R. at 105-06. Meanwhile, Mr. Dallman filed an increased rating claim in October 2009 for his prostate cancer residuals. R. at 3069-86. During a May 2010 VA examination, the examiner first diagnosed Mr. Dallman with radiation proctitis and reported that Mr. Dallman's radiation proctitis had "more than likely" produced fecal incontinence. R. at 2491-93. In August 2014, VA granted Mr. Dallman service connection for radiation proctitis, effective May 2010, and rated him by analogy under Diagnostic Code (DC) 7399-7319 for irritable colon syndrome. R. at 1383-87, 1426-31. In August 2015, Mr. Dallman appealed, arguing for an increased disability rating as well as an earlier effective date of May 2009. He also asserted that VA chose the incorrect DC and that he should instead be rated by analogy under DC 7332. R. at 1039-40. In July 2016, he asserted in part that he was entitled to a 60% disability rating under DC 7332. R. at 358-61. The Board decision on appeal in relevant part did not discuss Mr. Dallman's argument that he is entitled to a 60% disability rating for his radiation proctitis under DC 7332. 2. Analysis The Board is required to consider all theories of entitlement to VA benefits that are either raised by the claimant or reasonably raised by the record, Schroeder v. West, 212 F.3d 1265 , 1271 (Fed. Cir. 2000); Robinson v. Peake, 21 Vet.App. 545 , 553 (2008), aff'd sub nom. Robinson 8 v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009), and the Court has jurisdiction to review whether the Board erred in failing to consider such issues, Barringer v. Peake, 22 Vet.App. 242 , 244 (2008). Indeed, before making a decision, the Board must adjudicate all issues reasonably raised by a liberal reading of all documents and oral testimony in the record. Brannon v. West, 12 Vet.App. 32 , 34 (1998). As always, the Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for its decision, as well as to facilitate review in this Court. 38 U.S.C. § 7104 (d)(1); see Allday v. Brown, 7 Vet.App. 517 , 527 (1995); Gilbert v. Derwinski, 1 Vet.App. 49 , 57 (1990). To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet.App. 498 , 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Preliminarily, the appellant's principal brief notes his assertions in July 2016 that he is entitled to a 60% disability rating for his radiation proctitis under DC 7332 and argues that the Board erroneously declined to assess this theory of entitlement in the decision on appeal. Appellant's Br. at 8-9. The Secretary concedes that remand is appropriate for the Board to discuss the issue in the first instance. Secretary's Br. at 16. Because the Board must address all theories of entitlement raised by the appellant, and because it failed to do so in this instance, the Court agrees with the parties and will remand the matter for the Board to address the matter in the first instance. Robinson, 21 Vet.App. at 553; see Brannon, 12 Vet.App. at 34. B. Earlier Effective Date for Radiation Proctitis As noted above, 38 U.S.C. § 5110 governs the assignment of effective dates for awards of benefits: [T]he effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110 (a) (2018). Similarly, the implementing regulation states that the effective date of an award shall be the date of receipt of the claim or the date entitlement arose, whichever is later, unless the claim is received within 1 year after separation from service. See 38 C.F.R. § 3.400 (2014). An exception to this general rule occurs in "an award of increased compensation." 38 U.S.C. § 5110 (b)(3); see 38 C.F.R. § 3.400 (o)(2). An effective date for such an award may 9 date back as much as 1 year before the date of the formal application for increase, if it is factually "ascertainable that an increase in disability had occurred" within that timeframe. 38 U.S.C. § 5110 (b)(3); see Harper v. Brown, 10 Vet.App. 125 , 126 (1997); 38 C.F.R. § 3.400 (o)(2). The Board's determination of the proper effective date for an award of VA benefits is a finding of fact reviewed under the "clearly erroneous" standard of review set forth in 38 U.S.C. § 7261 (a)(4). See Hanson v. Brown, 9 Vet.App. 29 , 32 (1996). A finding of material fact is clearly erroneous when the Court, after reviewing the entire evidence, "'is left with the definite and firm conviction that a mistake has been committed.'" Gilbert, 1 Vet.App. at 52 (quoting United States v. U.S. Gypsum Co., 333 U.S. 364 , 395 (1948)). In the decision on appeal, the Board noted that VA granted an effective date of May 26, 2010, to Mr. Dallman for radiation proctitis because that was the date of a gastrointestinal examination that revealed he had developed fecal urgency and incontinence over the course of the previous year. R. at 28. The Board then noted that Mr. Dallman had not filed a formal or informal claim for this disability, and the medical examination was the earliest medical demonstration of these complaints. Id. Therefore, the Board concluded that May 26, 2010, was the earliest date upon which it could determine that entitlement to service connection for radiation proctitis arose. Id. Mr. Dallman argues that the Board provided an inadequate statement of reasons or bases for denying an effective date earlier than May 2010 for his radiation proctitis. Appellant's Br. at 9-11. Currently pending before a panel of the Court in Bailey v. Wilkie, U.S. Vet. App. No. 19-2661 (argued July 27, 2020), is the question of how VA should evaluate symptoms related to prostate cancer and whether, after March 24, 2015 (the date VA amended 38 C.F.R. § 3.155 to eliminate informal claims), claimants must file formal claims when the evidence reasonably raises the issue of secondary service connection. However, a decision in Bailey is not necessary for the resolution of the instant appeal, because both parties have agreed that remand is required in these circumstances for the Board to provide adequate reasons or bases. OA at 30:30-30:52 (the Secretary conceded that he does not dispute any of the holdings in the Court's revoked memorandum decision). Therefore, the Court will remand the matter for further adjudication. See Tucker v. West, 11 Vet.App. 369 , 374 (1998) (holding that remand is the appropriate remedy "where the Board has incorrectly applied the law, failed to provide an adequate statement of reasons or bases for its determinations, or where the record is otherwise inadequate"). On remand, 10 the Board should carefully discuss the applicability of § 3.400(o)(2), with emphasis on whether Mr. Dallman's radiation proctitis falls within the scope of his October 2009 increased rating claim for prostate cancer residuals. C. Increased Compensation Claim for Right Knee Disability 1. Procedural History As mentioned above, VA granted Mr. Dallman service connection for a right knee disability in June 1982 and awarded him a 10% disability rating under DC 5257 in December 1983. R. at 4542-45, 4613. In July 1997, Mr. Dallman filed an increased rating claim for his right knee disability. R. at 4490-95. After right knee surgery, the RO assigned a temporary total disability rating for convalescence, then restored Mr. Dallman's 10% disability rating, effective January 1998. R. at 4462-63, 4467-68. A December 2003 rating decision increased Mr. Dallman's disability rating to 30% under DC 5256. R. at 3826-29, 3863-69. An August 2004 VA treatment note stated that Mr. Dallman's right knee "gave way," leading to a fall and a left knee skin abrasion. R. at 3605. Mr. Dallman retold this account at a January 2006 Board hearing. R. at 3514 ("My knee totally gave out and I fell directly on the other knee."). Mr. Dallman subsequently underwent additional surgical procedures, including a total right knee replacement in July 2008. R. at 1768, 3091-95. VA awarded a 100% disability rating for the year following surgery and restored the 30% disability rating, effective September 2009. R. at 105. In May 2010, Mr. Dallman underwent a compensation and pension examination for his right knee, which did not include measurements of his range of motion in passive, weight-bearing, and nonweight-bearing modes. R. at 968-71. March 2013 and September 2014 examinations of the right knee documented range-of-motion tests but did not include measurements of Mr. Dallman's range of motion in active and passive, weight-bearing, and nonweight-bearing modes. R. at 775-86, 1299-303. Following extensive procedural development, the Board in the decision on appeal stated that all the medical opinions of record were adequate, provided by qualified medical professionals, and predicated on a full reading of the available records. R. at 7. Thus, the Board found that VA's duty to assist had been met. Id. Relying on the examinations of record, the Board denied a 11 disability rating in excess of 30% for Mr. Dallman's right knee disability for the entire period on appeal. 2. Analysis A medical examination or opinion is adequate "where it is based upon consideration of the veteran's prior medical history and examinations," Stefl v. Nicholson, 21 Vet.App. 120 , 123 (2007), "describes the disability, if any, in sufficient detail so that the Board's 'evaluation of the claimed disability will be a fully informed one,'" id. (internal quotation marks omitted) (quoting Ardison v. Brown, 6 Vet.App. 405 , 407 (1994)), and "sufficiently inform[s] the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion," Monzingo v. Shinseki, 26 Vet.App. 97 , 105 (2012) (per curiam). A VA joints examination that fails to account for the factors listed in 38 C.F.R. §§ 4.40 and 4.45, including those experienced during flare-ups, is inadequate for evaluation purposes. DeLuca v. Brown, 8 Vet.App. 202 , 206-07 (1995). Section 4.59, title 38, Code of Federal Regulations, concerns painful motion of the musculoskeletal system, and the last sentence of that regulation states that the "joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight- bearing and, if possible, with the range of the opposite undamaged joint." 38 C.F.R. § 4.59 (2020). The Court has held that the testing listed in the final sentence of § 4.59 is required unless the medical examiner determines that it cannot or should not be done. Correia v. McDonald, 28 Vet.App. 158 , 169-70 (2016). "Whether a medical opinion is adequate is a finding of fact, which this Court reviews under the 'clearly erroneous' standard." D'Aries v. Peake, 22 Vet.App. 97 , 104 (2008) (per curiam); see Gilbert, 1 Vet.App. at 52. The appellant currently contends that the Board provided inadequate reasons or bases for denying an increased disability rating for a right knee disability by failing to explain why it relied upon inadequate VA examinations, failing to define subjective terms of degree, and failing to discuss favorable medical evidence in the record. Appellant's Br. at 11. As to his first contention, the appellant argues that all the medical examinations of record are inadequate because they all failed to include measurements of his "range of motion in active and passive, weight-bearing and non-weight-bearing modes." Id. at 12 (emphasis omitted). Next, the appellant argues that the Board denied entitlement to a disability rating of 60% for residuals of his knee replacement under 38 C.F.R. § 4 .71a, DC 5055, but provided no definition or benchmark for "severe" painful motion or weakness, and thus failed to define "'subjective terms of degree.'" Id. (quoting Johnson 12 v. Wilkie, 30 Vet.App. 245 , 254 (2018)). Lastly, the appellant asserts that the Board failed to discuss two relevant strands of medical evidence: (1) A March 2013 medical opinion that opined that his loss of motion postarthroplasty was "severe"; and (2) an August 2004 VA treatment note and a January 2006 Board hearing transcript that evidences the appellant's right knee instability was "so severe that he could only climb the stairs in his home on his hands and knees" (which the appellant contends evidences joint instability that would warrant a separate evaluation under DC 5257). Id. at 12-13. Initially in his brief, the Secretary contended that the appellant's arguments are so broad and overreaching that they "fail to account for the various staged ratings he has been assigned during the course of the appeal." Secretary's Br. at 6. In particular, the Secretary noted that VA assigned the appellant a 30% disability rating from August 1, 1997, to September 30, 1997; from January 1, 1998, to July 16, 2008; and from September 1, 2009, onward. Id. The Secretary noted that, for all other periods on appeal, the appellant was granted a 100% disability rating for "convalescence purposes or following his total right knee replacement surgery." Id. For the first period (August 1, 1997, to September 30, 1997), the Secretary argued that the appellant fails to espouse any argument showing why he is entitled to a rating in excess of 30% for this period, and thus he has abandoned his arguments as to this point pursuant to Pederson, 27 Vet.App. 285 . Id. at 7. For the second period (January 1, 1998, to July 16, 2008), the Secretary conceded that the 1998, 2000, and 2006 examinations the appellant contends are inadequate do not indicate whether range-of-motion testing was performed in accordance with § 4.59; however, the Secretary argued that this inadequacy cannot be corrected, as the appellant had a total knee replacement on July 7, 2008, and therefore it would be futile to conduct a new examination because that knee is "simply not the same knee [the] [a]ppellant had during this appeal period." Id. at 7-8 (citing R. at 3458-59, 4306-07, 4435-36). For the final and current period (September 1, 2009, onward), the Secretary conceded that a contemporaneous examination that complies with Correia is warranted because, although the 2010 and 2013 examinations considered the impact of weight-bearing on the appellant's right knee, the examinations did not comply with the final sentence of § 4.59. Id. at 11. Moreover, as noted above, the Court initially issued a single-judge memorandum decision remanding as to the entire period on appeal based on a finding that the examinations of record were inadequate, and the Secretary subsequently conceded at oral argument that he does not dispute that holding. OA at 30:30-30:52. 13  The Court finds that the Board clearly erred when it determined that the medical examinations of record were adequate. See 38 U.S.C. § 7261 (a)(4); D'Aries, 22 Vet.App. at 103; Gilbert, 1 Vet.App. at 52. Upon review of the record, we agree with the Secretary's concession in his brief that neither the 2010 or 2013 examinations considered the impact of weight-bearing on the appellant's right knee, and thus do not comply with Correia or § 4.59. See Secretary's Br. at 12. Further, regarding the other periods in question, we will accept the Secretary's concession at oral argument that remand is necessary. Accordingly, the Court will remand the matter for a new medical examination. Hicks v. Brown, 8 Vet.App. 417 , 421 (1995) (holding that the Board's reliance on an inadequate medical examination is cause for remand). D. Remand On remand, the appellant is free to submit additional evidence and argument on the remanded matters, and the Board is required to consider any such relevant evidence and argument. See Kay v. Principi, 16 Vet.App. 529 , 534 (2002) (stating that on remand, the Board must consider additional evidence and argument in assessing entitlement to the benefit sought); Kutscherousky v. West, 12 Vet.App. 369 , 372-73 (1999) (per curiam order). Because the appellant is free to submit additional evidence, and because new examinations may provide clarity as to all periods on appeal for his right knee, we will not address the parties' remaining assertions. See Best v. Principi, 15 Vet.App. 18 , 20 (2001) (per curiam order) ("A narrow decision preserves for the appellant an opportunity to argue those claimed errors before the Board at the readjudication, and, of course, before this Court in an appeal, should the Board rule against him."). The Court reminds the Board that "[a] remand is meant to entail a critical examination of the justification for the decision," Fletcher v. Derwinski, 1 Vet.App. 394 , 397 (1991), and the Board must proceed expeditiously, in accordance with 38 U.S.C. § 7112 . III. CONCLUSION After reviewing the parties' pleadings and record on appeal, the appeal of the Board's April 4, 2018, decision as to the right thigh hematoma claim is DISMISSED for lack of jurisdiction. As to the denial of a disability rating in excess of 30% for a right knee disability, and the denial of an earlier effective date and an initial disability rating in excess of 10% for radiation proctitis with fecal urgency, the decision on appeal is VACATED and the matters are REMANDED for readjudication. 14

2020-12-01 15:08:29.4509+00

https://www.courts.mo.gov/file.jsp?id=169813

In the Missouri Court of Appeals Western District STATE OF MISSOURI, ) ) Respondent, ) WD82819 ) v. ) OPINION FILED: December 1, 2020 ) JUSTIN ANDREW TODD, ) ) Appellant. ) Appeal from the Circuit Court of Boone County, Missouri The Honorable Michael W. Bradley, Judge Before Division Four: Cynthia L. Martin, Chief Judge, Presiding, Karen King Mitchell, Judge and Anthony Rex Gabbert, Judge Justin Andrew Todd ("Todd") appeals his convictions of one count of kidnapping in the first degree, two counts of rape in the first degree, and one count of sodomy in the first degree following a jury trial. Todd asserts that the trial court erred in overruling his motion for a mistrial based on alleged juror misconduct, and in permitting the admission of testimony and an exhibit suggesting that Todd may have multiple personalities. Finding no error, we affirm.  Factual and Procedural History Todd does not challenge the sufficiency of the evidence to support his convictions of one count of kidnapping in the first degree, two counts of rape in the first degree, and one count of sodomy in the first degree. Viewed in the light most favorable to the verdict,1 the evidence established that, in May 2017, M.M. ("Victim") was eighteen years old, lived in Mexico, Missouri, and worked at Walmart as a cashier. While working at Walmart, Victim met Danielle Todd ("Danielle"),2 Todd's wife. Victim offered to babysit for Danielle's three children in the future. On the evening of Friday, May 26, 2017, Victim went to Danielle's house in Mexico, Missouri to babysit the children. Danielle left, and while she was gone, Danielle contacted Victim to ask whether Victim could help move some boxes. Victim agreed. Danielle returned late Friday night or during the early hours of Saturday morning with a man Victim did not know. The man then stayed with Danielle's children, and Victim left with Danielle in a minivan. The passenger seat and the middle row of the minivan Danielle was driving were filled with large items, so Victim sat in the back seat of the minivan, next to Todd. Victim had never met Todd before, so Danielle introduced him to Victim. As Danielle started to drive away from her home, Victim put her hand down on the seat and felt a gun next to her. Todd told Victim that he used the gun for protection. Victim noticed that Danielle was "kind of out of it" and was swerving all over the road. Danielle stopped at a gas station in Centralia, Missouri. Todd convinced Victim to 1 We view the evidence in the light most favorable to the jury's verdict, disregarding all contrary evidence and inferences. State v. Campbell, 600 S.W.3d 780 , 784 n.1 (Mo. App. W.D. 2020). 2 Because Justin Todd and Danielle Todd share a surname, we refer to Danielle Todd by her first name for the purpose of clarity. No familiarity or disrespect is intended. 2 drive because he could not drive and Danielle did not seem able to drive. Victim initially told Todd that she was not comfortable driving at night, but she eventually relented. Neither Todd nor Danielle told Victim where they were going. Instead, Todd gave Victim directions while Todd and Danielle sat in the back seat of the minivan and giggled. Victim felt nervous and uncomfortable. The trio eventually arrived at a trailer located in a trailer park on Brown Station Road in Columbia, Missouri. Kate Carter ("Carter"), a woman with whom Todd had a romantic relationship, lived in the trailer. However, Carter was not home, as she was working as a nurse that evening for Sleep Diagnostic Services in Wentzville, Missouri. Victim did not know where she was or to whom the trailer belonged. Todd and Danielle exited the minivan. Victim stayed behind momentarily and sent messages to her friend, Eduardo Rodriguez Velez ("Rodriguez Velez"), because she felt uncomfortable and "had a really bad feeling." Those messages, sent around 4:20 A.M. on Saturday, May 27, 2017, alarmed Rodriguez Velez, so he forwarded the messages to Victim's mother, S.B. ("Mother"), and asked whether Mother had heard from Victim. Victim got out of the minivan and went into the trailer, where she found Danielle lying on the couch. Victim checked on Danielle because she "seemed really out of it" and was not acting normally. Todd told Victim that the stuff that needed to be moved was in the back bedroom, located just off the kitchen. Victim went to the back bedroom, where she saw an animal cage, a bed, a chair, and a dresser. Todd told Victim that the items that needed to be moved were in the closet, and then left the room. 3  When Todd returned, he closed the door and was holding a gun behind his back. Victim asked what was going on. Todd then gave Victim a cup and told her to drink its contents or he would shoot her. Victim described the liquid inside the cup as appearing "cloudy," as if it contained crushed up pills. In an effort to avoid drinking the liquid, Victim lied, telling Todd that she was pregnant so that she needed to know what was in the cup. Rather than answer her question, Todd told Victim that the drink was his "own little concoction," and that it would be fine. Victim drank the liquid, which she described as tasting "chalky" and "gross." Todd then forced Victim to lie on her stomach on the bed. Todd used zip ties to bind Victim's wrists behind her back and to bind her ankles together. Todd asked Victim what her biggest fear was. When Victim responded that her biggest fear was being killed, Todd told Victim that most people would say being raped. Todd then placed duct tape over Victim's mouth and around her head before leaving the room. While she was alone, Victim was able to remove the duct tape over her mouth using her teeth. Todd returned to the bedroom with a glass pipe. He lit the pipe and instructed Victim to inhale from the pipe three or four times. Todd told Victim to tell him when the effects of the smoke took effect, and left the room again. When Todd returned, he had Victim's cell phone and accused of her of revealing their location. Todd then put Victim's head under a pillow and sat on top of her. Todd pulled down Victim's pants and inserted his penis into her vagina. Victim told Todd to stop and that she wanted to go home. Todd did not stop, and instead forced Victim to have vaginal intercourse while telling her that she was a good girl. While doing so, Todd had 4 a gun touching Victim's lower back and moved it down to Victim's anus. After forcing Victim to have vaginal intercourse, Todd pulled up Victim's pants and left the room to check on Danielle. When Todd returned to the bedroom, he removed the zip ties from Victim and helped her to the bathroom connected to the bedroom. Victim obeyed Todd's instruction to take a shower. While in the shower, Victim began feeling numb and had trouble breathing. Todd gave Victim a towel after she exited the shower. Todd gave Victim different clothes to wear and took Victim's clothes, telling her that he "wasn't going to get caught for anything." Victim dressed and then, as instructed by Todd, sat on the bed. Todd placed zip ties on Victim's ankles again. Todd retrieved the glass pipe and forced Victim to inhale several more times while holding a gun to her head. Todd told Victim that he "wanted to make her tired." Todd then went to the sink, and when he came back, he took off one of Victim's socks and injected something into her foot. Todd poured the remaining liquid from the syringe into a cup and forced Victim to drink the liquid. Todd told Victim that the liquid would make her "forget everything." Todd told Victim to tell him when she started feeling the effects of the substances he had forced her to ingest. After drinking the liquid, Victim began to feel ill, like she was going to vomit. Todd gave Victim a trash can and, at her request, removed the zip ties. Todd then had Victim sit on a chair in the bedroom, and told her that she would have to do it again. Victim protested, telling Todd that she could not. At that point, Todd held a gun to Victim's head, pulled down his pants, and put his penis in Victim's mouth. While Victim was no longer bound by zip ties, she felt like she could not move her body. 5 Todd then pulled Victim's pants down, and again he placed his penis in her vagina and forced Victim to have vaginal intercourse. Then Todd again ordered Victim to take a shower. After Victim followed his command, Todd placed Victim in zip ties again. Todd told Victim that "he wasn't a horrible guy." Victim responded by telling him that he had just raped her twice. Throughout the evening of Friday, May 26, 2017, and into the early morning hours of Saturday, May 27, 2017, Todd had been sending text messages to Carter while she was at work. Todd told Carter that there was an emergency at her home and that she needed to return immediately. When Carter asked if it could wait until the end of her shift (at 6:30 on Saturday morning), Todd said that it could wait. Todd asked Carter "not [to] abandon him" and "not [to] forsake him." Todd told Carter that he needed her help and that he needed to know that she had his back. Carter responded that she did. Todd also sent a text message to Carter that asked whether phones keep records of text messages and told her that he was "involved in something bad" and that he "need[ed] a rescue." At one point in his text messages to Carter, Todd stated that he was "Ash" and that he needed Carter's help. According to Carter, Todd claimed to have a multiple personality disorder and "Ash" spoke through Todd. Todd texted Carter to tell her that they would have "cleanup to do," and asked that Carter promise to help. She did. Later, Todd sent a text to Carter that said "[Oh my God] please hurry and [I']ve done something bad," and then asked her to tell him when she was on her way home. In the early morning hours of Saturday, May 27, 2017, Todd sent Carter a text message that said, "Ash fucked me over." Todd also told Carter to "think of his fantasy," and explained 6 "[t]hat's what your [sic] walking into." Carter asked Todd who Ash "fuck[ed] over," and Todd answered, "[p]retty much all of us." Later, Todd sent Carter a text message that read, "We could zi[p] tie her up and fuck," and another that said, "[s]he has to get to a certain point before we could [cut] her loose." Todd told Carter that he was grabbing Carter's taser "in case [he] need[ed] it." After her shift ended at 6:30 A.M. on Saturday, May 27, 2017, Carter drove directly from her job in Wentzville to her home in Columbia. When Todd met Carter at the door, he was holding a small black handgun. Danielle was no longer in the trailer when Carter returned home.3 Todd escorted Carter into the back bedroom, where Carter saw Victim sitting and wearing Carter's clothes, but Carter did not know why Victim was there. Carter did not believe that Victim was "in her right mind" because Victim was acting as though she was a cashier running a cash register. Carter described Victim's pupils as large. Carter asked Todd what was happening. Todd ushered Carter into the kitchen, and told Carter that "he did not know what he had done to this lady." Todd explained to Carter that Victim was wearing Carter's clothes because she had soiled herself. Carter then went back into the bedroom to speak with Victim, but Carter had difficulty maintaining a conversation with Victim because Victim was not following along with the conversation. Carter did learn, however, Victim's name. Carter and Todd decided that Todd and Victim would go with Carter to Wentzville that evening (Saturday, May 27, 2017), and that Todd and Victim would stay in a hotel 3 The record does not indicate when Danielle left the trailer or where Danielle went when she left the trailer. 7 room while Carter worked overnight. Carter believed that Victim could use the time in the hotel room to sober up. Carter drove Todd and Victim to Wentzville in her truck. During the drive, Todd was quiet, but Victim was sweaty and her thoughts did not make sense. They checked into a hotel room once they arrived in Wentzville. While in the hotel room, Victim was hallucinating and talking nonstop without making sense. Carter left the hotel room around 5:30 P.M. to go to work, and Todd and Victim stayed in the hotel room. Todd again forced Victim to drink a cup of chalky liquid that tasted terrible. Todd sent Carter multiple text messages while she was at work. One message included a rhyme that indicated "she" drank something and was inebriated. Carter understood that "she" referred to Victim. Carter felt nervous for Victim. Mother attempted to contact Victim on the evening of Saturday, May 27, 2017, but phone calls went straight to voicemail, and Victim did not answer text messages. Mother received a text message from Victim's phone in the early morning hours of Sunday, May 28, 2017, that said, "With friends, call later." Mother thought the response was odd because Victim did not talk to her like that. Instead, Victim would typically write something like, "Mom, I know it's late, I'll give you a call in the morning. You're probably asleep." After she finished her shift on the morning of Sunday, May 28, 2017, Carter went back to the hotel. She was relieved to find Victim alive. However, Victim "spoke in a manner that was not herself," and that "[s]he spoke like Ash" in that Victim was speaking more authoritatively and with more gusto. Victim said that "she preferred people with 8 [Todd's] personality disorder." Victim also referred to Todd as her brother Shawn, which seemed to irritate Todd. The trio left the hotel and drove back to Carter's trailer in Columbia. When they arrived at the trailer, Todd asked Carter to stay in the front room while he and Victim went to the bedroom, where Todd used zip ties to attach Victim's hands to a pole by the bed. Danielle returned to the trailer while Carter was in the front room. Carter told Todd that she was not pleased that Danielle was in her home. Todd gave Carter two cell phones and asked her to throw the phones in a lake. Carter did not do as instructed. Instead, she hid the phones under a tree trunk. Carter then went to a nearby motel to meet a friend. At approximately 11:00 A.M. on Sunday, May 28, 2017, Victim called Mother. Victim whispered that she was unable to tell Mother where and with whom she was. Victim was otherwise delusional during the phone call, telling Mother that she was with her brothers in a hotel in Columbia. Mother knew that was untrue because Victim's brothers were with Mother. Nonetheless, Victim told Mother that she would meet her at the Dairy Queen in Mexico, Missouri. Mother waited for two hours, but Victim never came. Instead, Victim was in the trailer with Todd. When Todd learned of Victim's conversation with Mother, he placed a gun to Victim's head and told her to cooperate. Todd sent Carter a text message that warned Carter to be careful when she returned home because "some glass got broken in the st[r]uggle." Another text message from Todd indicated that he was "moving to a different site to finish the job." In particular, Todd indicated that they would be going to Truxton, Missouri, and Todd asked 9 Carter to "do a preliminary sweep" of the trailer, including the living room, bedroom, and bathroom, for "any incriminating stuff." When Victim did not meet Mother at Dairy Queen as planned, Mother called the Mexico Police Department. Mother was informed that, because Victim was eighteen years old and Mother had spoken to her earlier that day, Mother could not report Victim as missing. Unsatisfied with that answer, Mother contacted the Columbia Police Department at approximately 3:00 P.M. on Sunday, May 28, 2017, because Victim had told Mother she was in a hotel in Columbia the previous night. Mother reported Victim missing because she had not heard from Victim in a couple days and Victim did not show up to work. The Columbia Police Department took a report and issued a be-on-the- lookout dispatch. At approximately 4:15 P.M. on Sunday, May 28, 2017, Columbia Police Department officers were dispatched to an abduction call at Carter's trailer. Carter's next- door neighbor, John Snipes ("Snipes"), called 911 to report a possible abduction after he saw a woman lead another woman with a bandana around her eyes into a white van. Snipes saw Todd walk out of Carter's trailer with a duffle bag or backpack and climb into the passenger side of the van. The white van then drove away. Snipes wrote down the van's license plate and called 911. Maria Decarr ("Decarr"), Snipes's step-daughter, confirmed Snipes's account of what happened. Officers forced themselves into Carter's trailer. No one was there, but officers saw zip ties, a cut bra, and broken glass on the floor of the back bedroom. 10  After speaking with Snipes and Decarr, the police believed that Carter was the blindfolded woman, so they pinged Carter's cell phone to determine her location.4 The police learned that Carter's cell phone was located at a motel near a truck stop just west of Columbia. Police immediately went to the motel where they found Carter, and learned she was not the blindfolded woman. After questioning Carter, however, they learned that Todd was in the van and was heading to Truxton, Missouri. Officers issued a "be-on-the- lookout" dispatch for Danielle's white van, and asked other agencies to stop the van to check the welfare of its occupants. At approximately 6:00 P.M. on Sunday, May 28, 2017, Sergeant Jeff Scanlon ("Sergeant Scanlon") of the Warren County Sheriff's Department saw the white van in the parking lot of a truck stop just off Interstate 70 in Warren County, Missouri. Sergeant Scanlon made eye contact with the female driver of the van. As soon as Sergeant Scanlon did so, the driver, who was Danielle, started driving toward the parking lot's exit. Sergeant Scanlon stopped the van. He instructed Danielle to turn off the vehicle, and then instructed the two passengers sitting in the third row of the van--Todd and Victim-- to put their hands on the glass. Once other officers arrived, Todd and Danielle were taken to the Warren County Sheriff's Department to wait for officers from the Columbia Police Department. Victim was offered medical assistance at the scene, which she refused, so Victim was also taken to the Warren County Sherriff's Department to wait for Columbia Police 4 Officer Justin Thomas of the Columbia Police Department described "pinging a phone" as a law enforcement tool used in emergencies to learn a cell phone's location using cell phone towers. 11 Department officers and her Mother to arrive. Victim looked as though she had not slept in several days and appeared mentally exhausted. While Victim was initially calm, she broke down crying once she was separated from Danielle and Todd, and she started telling officers what she had undergone. And while Victim seemed lucid, at times she hallucinated, including claiming to see Mother in the white van pointing and laughing at her. While waiting, Sergeant Scanlon took photographs of Victim's wrists because she said that she had been tied to Todd's bed and there were red marks on her wrists. Victim also told Sergeant Scanlon that she had been choked, so he took pictures of her upper chest and neck, which appeared to have red discoloration. The white van was taken into police custody. Columbia Police Department officers later obtained a search warrant for the white van in question. During a search of the vehicle, officers found zip ties, wadded up duct tape with hair stuck to it, a bandana, blue jeans that appeared to have been cut along an inside seam, and scrubs wrapped in duct tape; a red backpack belonging to Todd containing a roll of duct tape, a package of syringes, Drano, a wallet containing a business card from a hotel located in Wentzville, additional zip ties, and a black H&K BB pistol with a magazine and a holster; and a green purse containing a white plastic vial containing white powder, four lighters, two knives, an open packages of syringes, a glass smoking device, and clear plastic capsules. When Mother came to the Warren County Sheriff's Department to get Victim, she noted that Victim "looked horrible" in that her clothes were "disgusting," she was not wearing shoes, her hair was in disarray, her pupils were incredibly large, and she had marks on her wrists, ankles, and neck. Mother took Victim directly to University 12 Hospital in Columbia for an examination, including the completion of a rape kit, performed by a sexual assault nurse examiner, Meghan McGee ("McGee"), during the early hours of Monday, May 29, 2017. During her examination of Victim, McGee noted that that Victim had suffered the following physical injuries: petechiae5 on the upper- posterior aspect of her neck, skin discoloration on the anterior aspect of her neck, ligature marks around her wrists and ankles, and bruising to the lateral aspect of her right foot. McGee noted that Victim had no needle marks or puncture wounds on her feet. McGee took samples of Victim's urine and blood, and took swabs of Victim's external genitals, cervix, and cervical pool as well as oral and buccal swabs. The Missouri State Highway Patrol Crime Lab performed testing on the rape kit. Analysis of Victim's blood sample revealed that, at the time of collection, diphenhydramine, methamphetamine and amphetamine, and metronidazole were in her bloodstream. The urinalysis similarly revealed that Victim's urine contained diphenhydramine, tramadol, N-desmethyltramadol, and methamphetamine and amphetamine. While some of these substances found in Victim's blood and urine are depressants that would cause drowsiness, sluggish behavior, and disorientation, other substances acted as stimulants that would cause talkativeness, restlessness, agitation, euphoria, paranoia, delusions, and hallucinations. Analysis of the swabs taken during McGee's examination of Victim revealed the presence of seminal fluid on the swabs taken from Victim's cervix, posterior fourchette, labia majora, and labia minora. DNA 5 McGee explained that petechiae is the medical term for "small areas of ruptured capillaries underneath the skin." 13 analysis determined that Todd was a major contributor to the DNA in the sperm fraction taken from the swab of Victim's cervix. Officers from the Columbia Police Department executed a search warrant at Carter's trailer. During the search, officers found an empty zip tie package, used and unused zip ties, and a cut blue and white rope in the back bedroom; black zip ties, a wad of duct tape, and forty-one clear plastic capsules similar to those found in the white van in the kitchen trash can; fragments of broken glass in a hallway near an exterior door; and a capsule containing a yellow powdery substance inside a safe located in the residence. The State charged Todd with one count of kidnapping in the first degree in violation of section 565.1106 ("Count I") for unlawfully confining Victim for a substantial period without her consent by binding her with zip ties and duct tape with the purpose of inflicting physical injury on or terrorizing Victim; one count of rape in the first degree in violation of section 566.030 ("Count II") for knowingly having sexual intercourse with Victim by use of forcible compulsion; one count of sodomy in the first degree in violation of section 566.060 ("Count III") for knowingly having deviate sexual intercourse with Victim by inserting his penis into Victim's mouth while she was in a drug-induced state and therefore incapable of consent; and another count of rape in the first degree in violation of section 566.030 ("Count IV") for knowingly having sexual intercourse with Victim while she was in a drug-induced state and therefore incapable of consent. 6 All statutory references are to RSMo 2016, as supplemented through the dates of the crimes, unless otherwise indicated. 14  After a four-day jury trial in February 2019, the jury returned its verdicts in just over two hours, finding Todd guilty of each charge. The trial court, which had previously found Todd to be a persistent misdemeanor offender pursuant to section 558.016, sentenced Todd to ten years' imprisonment for kidnapping, and to life imprisonment for each of the rape and sodomy counts, with all sentences to run consecutively to one another. Todd filed a motion for new trial, which the trial court denied. Todd appeals. Analysis Todd raises three points on appeal. In his first point on appeal, he challenges the trial court's decision to overrule his request for a mistrial based on alleged juror misconduct. Todd's second and third points on appeal concern the trial court's admission of evidence that Todd may have multiple personalities. Point One: Refusal to Grant Mistrial Todd's first point on appeal asserts that the trial court abused its discretion in refusing to grant his request to discharge four jurors who were sleeping during the trial, which would have required a mistrial because too few jurors would have remained. Todd argues that the record "clearly show[s]" that Jurors 10, 26, 39, and 51 slept through parts of the trial so that they were not able to accurately assess the voluminous evidence presented. Todd claims that, by allowing jurors who slept during trial to stay on the jury, the trial court violated Todd's right to a fair trial, an impartial jury, and due process guaranteed by the Fifth, Sixth, and Fourteenth Amendments of the United States 15 Constitution, and by Article I, sections 10 and 18(a) of the Missouri Constitution, and that these constitutional errors are structural in nature. "[T]o prevail upon a claim of juror misconduct, it must be shown that the conduct was prejudicial to the defendant, and much lies in the discretion of the [trial] court." State v. Whitman, 788 S.W.2d 328 , 337 (Mo. App. E.D. 1990) (citation omitted). "The trial court is in the best position to determine a juror's ability to effectively discharge his or her duties." State v. Williams, 427 S.W.3d 259 , 264 (Mo. App. E.D. 2014) (quoting State v. Rose, 169 S.W.3d 132 , 134 (Mo. App. E.D. 2005)). We will not disturb the trial court's ruling absent an abuse of discretion. Id. Todd has not sustained his burden to establish that the trial court abused its discretion in refusing to discharge jurors. Because it was not an abuse of discretion to refuse to discharge jurors at Todd's request, Todd's contention that the trial court would have been required to grant a mistrial after discharging four jurors is rendered moot. During a break in Victim's testimony on the second day of trial, each of the two attorneys representing Todd informed the trial court that two jurors seemed to be asleep: Defense counsel no. 1: I just want to go ahead and make a record that a couple of the jurors seemed to be asleep. Number 39, his head sort of bounced down toward his chin, and Number 51 had his eyes closed for a lot of the time. Trial court: I noticed they had their eyes closed. I did not think they were asleep, but we'll have to . . . Defense counsel no. 2: 39 was definitely asleep. [Court reporter] is nodding her head. He was definitely asleep. Trial court: Will you put on the record what you saw? 16  Court reporter: I saw Number 39 bob his head, and it jerked like you're falling asleep. Defense counsel no. 1: I also saw Number 51 with his eyes closed, but he was like most of that yesterday, like he sits and thinks with his eyes closed. I tried to keep my eyes on if he was just resting their eyes or thinking, and then they'd perk back up and it wasn't a concern. But those two specifically 39 and 51. Juror 51 was already one of the alternate jurors. The trial court's solution was to take no action at the time, but instead to make Juror 39 the second alternate when the jury retired for deliberation. Defense counsel again raised concerns about jurors sleeping on the third day of trial: Defense counsel no. 1: And Your Honor, I'm just wanting to make a record that Jurors Number 10 and 26, who are different jurors than yesterday, were both sleeping during different points of the testimony. Juror Number 26, [I] kept seeing her head again kind of fall down and towards her chest. . . . Juror 10, her head kept falling down. Juror 26, her head kept falling back and at one point I was watching her breathe and she was taking really deep, even breaths like she was asleep, and her eyes were closed at that time. Trial court: Okay. I've been watching. I'm not specific on those two jurors. I've been watching them and I've counted, they all seem to be coming back before I can count to ten, so that's kind of been my handle on it. So what's your request going to be with the sleeping jurors? Defense counsel no. 1: With the sleeping jurors, the fact that there's four of them is troublesome, but I'm going to be asking to strike all of the ones that have been missing the evidence. Trial court: If you strike all of them, I'm declaring a mistrial. Defense counsel no. 1: I understand that. Trial court: Are you asking to strike all four of them? Defense counsel no. 1: I am. Trial court: Okay. What's the State's position? 17  State: I have not witnessed it, Your Honor, so I mean, we want to finish this trial. But I feel at a loss. I have not witnessed jurors sleeping. The moments I've looked at the jury, they've all been awake and I've found to be attentive. Defense counsel no. 2: Your Honor, if I may, during the video in particular, I know we talked about Juror 39 sleeping yesterday. Trial court: Uh-huh. Defense counsel no. 2: We had already decided that he would be an alternate, but during the video, a great portion of it, both Juror 297 and 10 slept through a great portion of it. And then after the video concluded and the State was going through all of the evidence on the back bench there, both Juror 26 and 10 continued to sleep. It wasn't just for brief moments here and there, but for a huge portion of the video shown, they were sleeping. Trial court: Okay. Let's do this. . . . Which of the jurors do you wish to question? Defense counsel no. 1: Today, it was 26 and 10. Yesterday it was 39 and 51. Defense counsel No. 2: Correct. The trial court separately brought each of the four jurors who were allegedly sleeping during trial into the courtroom to question them. In response to the trial court's questions, Juror 10 admitted that she "probably nodded here and there," but she said that "[couldn't] promise that [she] fell asleep because [she felt] like [she] heard everything" and that, to her knowledge, she had not missed anything. Juror 26 stated that she had not fallen asleep and instead was merely listening with her eyes closed. Juror 39 indicated that, on a couple occasions, he may have "dozed off for just a second" before catching himself. Juror 39 did not believe that he had missed any testimony. Juror 51 stated that 7 The transcript indicates that defense counsel no. 2 referenced juror 29 even though juror 29 is not otherwise mentioned in the discussion of sleeping jurors. It is not apparent from context whether defense counsel no. 2 was intending instead to refer to juror 26 or juror 39. 18 she had not fallen asleep and instead put her head down because it helped her hear better. Defense counsel, despite being given the opportunity to do so by the trial court, did not question any of the four jurors. The trial court denied Todd's request to discharge any of the jurors. As a result, there was no need for the trial court to consider whether to declare a mistrial. This was not an abuse of discretion. Juror 51 was seated as an alternate juror, and based on defense counsel's initially expressed concern about Juror 39, that juror was made an alternate as well. Neither party objected to Juror 39 being removed from the jury and made an alternate. Regardless, neither Juror 39 nor Juror 51 participated in the jury's deliberations. Their service as alternate jurors who did not participate in deliberations could have not prejudiced Todd, even if they were sleeping during the trial. See Whitman, 788 S.W.2d at 337 ("In order to prevail upon a claim of juror misconduct, it must be shown that the conduct was prejudicial to the defendant . . . ."). With respect to Jurors 10 and 26, the trial court was able to observe whether those jurors were attentive during trial. Though the trial court observed jurors closing their eyes during trial, on each occasion the subject juror opened his or her eyes before the trial court could count to ten. Despite no observed concerns with Jurors 10 and 26, the trial court questioned both jurors. Both Jurors 10 and 26 admitted that they had closed their eyes during the trial. Juror 10 told the trial court that she probably nodded off a few times, but believed she had heard all of the evidence. At most, Juror 10 confessed to a lapse of attention, which is not grounds to remove a juror. See Whitman, 788 S.W.2d at 337 ("A lapse of attention is not grounds to remove a juror for sleeping."). Juror 26 said 19 that she was listening to the evidence with her eyes closed, and never dozed off. It was well within the trial court's sound discretion to conclude, based on its own observations of the jury and based on testimony from the jurors in question, that the behavior of Jurors 10 and 26 did not warrant disqualification from the jury and thus did not warrant declaring a mistrial. As a result, the circumstances in this case are distinguishable from those in State v. Youngblood, 648 S.W.2d 182 (Mo. App. S.D. 1983), on which Todd relies to claim error based on the refusal to discharge jurors. In Youngblood, the trial court discharged a juror after the juror was observed sleeping while evidence was being presented. Id. at 188 . The Southern District affirmed the trial court's decision, reasoning that "[jurors] cannot determine facts from evidence they have not heard." Id. Here, however, the trial court determined that Jurors 10 and 26 were not sleeping through the presentation of evidence. Youngblood does not alter our decision, and merely reinforces that a trial court's determination of whether juror misconduct has occurred sufficient to warrant ameliorative action is subject to review for abuse of discretion. Todd's reliance on section 494.485 to support his claim of error is also not persuasive. Section 494.485 provides: If in any case to be tried before a jury it appears to the court to be appropriate, the court may direct that a number of jurors in addition to the regular jury be called and impaneled to sit as alternate jurors. Alternate jurors, in the order in which they are called, shall replace jurors who, prior to the time the jury retires to consider its verdict, become or are found to be unable or disqualified to perform their duties. Alternate jurors shall be selected in the same manner, shall have the same qualifications, shall be subject to the same examination and challenges, shall take the same oath and shall have the same functions, powers, facilities and privileges as the 20  principal jurors. Alternate jurors who do not replace principal jurors shall be discharged after the jury retires to consider its verdict. Each side is entitled to one peremptory challenge in addition to those otherwise allowed by law for each two alternate jurors to be impaneled. The additional peremptory challenge may be used against an alternate juror only, and the other peremptory challenges allowed by law shall not be used against the alternates. "Section 494.485 regulates the jury process in a manner consistent with the constitutionally mandated unanimous verdict," and failure to comply with the statute is reversible error. State v. Amick, 462 S.W.3d 413 , 416 (Mo. banc 2015). Todd's contention that section 494.485 was violated is necessarily limited to the trial court's recasting of juror 39 from a principal juror to an alternate, as there is nothing about the initial designation of jurors 10 and 26 as principal jurors, or of juror 51 as an alternate juror, that can be said to violate section 494.485. Todd's contention that section 494.485 was violated when the trial court replaced juror 39 with an alternate juror and then made juror 39 an alternate juror (in lieu of discharging juror 39) is not preserved for our review. Todd did not object at trial to the manner in which the trial court resolved his complaint about juror 39. At best, Todd's claim on appeal that the trial court violated section 494.485 when it recasting juror 39 as an alternate is subject to plain error review. Under that standard of review, even if we assume, arguendo, that a trial court has no authority under section 494.485 to remove a juror as a principal juror and to instead make the juror an alternate, Todd cannot establish that he suffered manifest injustice or a miscarriage of justice. As explained, supra, juror 39 did not deliberate in his case. Though juror 39 arguably should have been discharged outright, and not recast as an alternate, any error was not prejudicial to Todd. 21  Point One is denied.8 Points Two and Three: Admission of Evidence Todd's second and third points on appeal concern the admission of evidence suggesting that Todd claimed to suffer from multiple personalities. In his second point on appeal, Todd argues that the trial court abused its discretion is allowing Carter to testify that Todd may have multiple personalities. Todd's third point on appeal asks us to conclude that the trial court plainly erred in admitting parts of State's Exhibit 145A, printouts of the text messages sent between Todd and Carter, because that exhibit allowed the jury to hear that Todd may have a multiple personality disorder. Todd asserts that the evidence about his multiple personalities was highly prejudicial, and thus not legally relevant, because it portrayed him as someone who is disturbed. Todd claims that, had this testimony and evidence not been admitted, he would not have been convicted of Counts III and IV.9 The trial court has broad discretion in choosing to admit or exclude evidence. State v. Wilson, 602 S.W.3d 328 , 332 (Mo. App. W.D. 2020). As such, we review preserved errors regarding the trial court's decision either to admit or exclude evidence for an abuse of discretion. Id. A trial court abuses its discretion "when a ruling is clearly against the logic of the circumstances and is so unreasonable as to indicate a lack of 8 Because the trial court did not abuse its discretion in refusing to discharge Jurors 10 and 26, and because Todd suffered no prejudice as a matter of law as Jurors 39 and 51 did not deliberate, we need not address Todd's contention that the refusal to discharge these jurors constituted constitutional error that was structural in nature. We observe, however, that Todd cited no authority for this proposition. See State v. Steidley, 533 S.W.3d 762 , 778 (Mo. App. W.D. 2017) ("Mere conclusions and the failure to develop an argument with support from legal authority preserve nothing for review." (quoting Kimble v. Div. of Emp't Sec., 388 S.W.3d 634 , 641 (Mo. App. W.D. 2013))). 9 Todd acknowledges that the evidence supporting Todd's guilt of Counts I and II arguably was overwhelming, so he focuses his discussion of prejudice on Counts III and IV. 22 careful consideration." State v. Marshall, 596 S.W.3d 156 , 158-59 (Mo. App. W.D. 2020) (quoting State v. Suttles, 581 S.W.3d 137 , 145 (Mo. App. E.D. 2019)). "Our review is for prejudice, not error alone; and we 'will reverse only if the error was so prejudicial it deprived the defendant of a fair trial.'" Wilson, 602 S.W.3d at 332 (quoting State v. Hein, 553 S.W.3d 893 , 896 (Mo. App. E.D. 2018)). An error is prejudicial if there is a reasonable probability that, but for the trial court's error, the result of the trial would have been different. Id. If a defendant fails to object to the admission of evidence at trial, however, we have discretion to review the alleged error for plain error "affecting substantial rights" if we conclude that a "manifest injustice or miscarriage of justice has resulted therefrom." Rule 30.20.10 Plain error review is a two-step process. State v. Garretson, 598 S.W.3d 643 , 649 (Mo. App. W.D. 2020). First, we must determine whether the claimed error "facially establishes substantial grounds for believing that manifest injustice or miscarriage of justice has resulted." Id. (quoting State v. Baumruk, 280 S.W.3d 600 , 607- 08 (Mo. banc 2009)). In other words, the alleged plain error must be "evident, obvious, and clear." Id. (quoting Baumruk, 280 S.W.3d at 607-08 ). If we find the error was evident, obvious, and clear, then we proceed to the second step: determining whether the error resulted in a manifest injustice or a miscarriage of justice. Id. (citing Baumruk, 280 S.W.3d at 607-08 ). Prior to trial, Todd filed a motion in limine that sought to exclude evidence at trial that established he had a multiple personality disorder and evidence that, at some point, 10 All Rule references are to the Missouri Supreme Court Rules (2020), unless otherwise indicated. 23 Todd was possessed by a demon. Todd argued that this evidence would not be legally relevant because its probative value would be outweighed by its prejudicial impact. The State responded that it would be unable to introduce evidence of the text message discussions between Carter and Todd without explaining that references to "Ash" and "Jay" committing crimes or engaging in wrongdoings were, in fact, references to Todd. The State also argued that the text messages amounted to Todd's admissions that he committed the offenses, albeit in a manner that tried to explain and justify his behavior. The State assured the trial court that it would not be arguing that Todd suffers from a multiple personality disorder, and that it did not intend to put on any psychiatric testimony. Todd's counsel suggested to the trial court that the witness simply say that Todd referred to himself as "Ash" and as "Jay." The trial court granted the motion to exclude the terms "multiple personality disorder" and "demon possession" from the evidence at trial, but otherwise deferred its ruling on admissibility of the text messages and of Carter's testimony about the text messages. At trial, Carter testified that when she returned to the hotel on Sunday, May 28, 2017, Victim "spoke in a manner that was not herself." When asked by the State to explain, Carter said that Victim "spoke like Ash." The State then asked, "And what does that mean?" Defense counsel objected, raising the issue presented in Todd's motion in limine. After hearing arguments from counsel, the trial court concluded that it would allow Carter could testify about Todd's statements to her because the evidence went to Todd's mental state, and permitted Carter to explain her testimony that Victim was acting as though she was possessed by "Ash." 24  Carter then testified that Victim sounded like "Ash" in that Victim spoke with "more authority or more gusto." Carter testified that Victim said that "she preferred people with [Todd's] personality disorder." Carter explained that Todd had previously told her that he had a multiple personality disorder and that he may not seem like himself at times. Carter testified that, when Todd refers to himself as Ash, he would be more authoritative than usual. During Carter's testimony, the State attempted to introduce State's Exhibit 145A, a printout of text messages between Todd and Carter during the weekend of Friday, May 26, 2017, to Sunday, May 28, 2017. Defense counsel objected on the basis of foundation. The trial court overruled the objection and admitted the exhibit into evidence. Carter then testified about the content of the text messages without further objection. The text messages between Todd and Carter indicated that Todd was in trouble and needed Carter's help. Among other things, Todd told Carter, "This is Ash." Carter testified without objection that "Ash speaks through [Todd]." Later in the text conversation, Todd told Carter, "[Oh my God] please hurry and [I']ve done something bad," followed by "[t]ell me your [sic] on your way." Todd sent another text message that said "Ash fucked me over" which, according to Carter, meant that Todd was himself again. Todd sent Carter text messages that said, "Think of his fantasy," and "That's what your [sic] walking into." Carter sent a text message to Todd asking "Who did he fuck over?" and Todd responded, "Pretty much all of us." Todd also sent Carter a message that said, "i m jay," and then other messages that said, "I just came to this shit." and "It's nuts." Carter identified "Jay" as another one of Todd's personalities. 25  Todd's second and third points on appeal challenge the legal relevance of Carter's testimony, and the content of Exhibit 145A, referencing Todd's multiple personalities. To be admissible, evidence must be both logically and legally relevant. State v. Taylor, 588 S.W.3d 632 , 638 (Mo. App. W.D. 2019). "Evidence is logically relevant if it tends to make the existence of a material fact more or less probable." Id. (quoting State v. Prince, 534 S.W.3d 813 , 817 (Mo. banc 2017)). Legal relevance, on the other hand, "weighs the probative value of the evidence against its costs--unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste of time, or cumulativeness." Id. (quoting State v. Prince, 534 S.W.3d 813 , 818 (Mo. banc 2017)). If the potential prejudice of the evidence outweighs its probative value, then the evidence should be excluded. Id. Todd's argument that the contested evidence was not legally relevant is premised on a contention that evidence he claimed to have multiple personalities had no probative value. In other words, although Todd does not argue that the evidence in dispute was not logically relevant, he effectively contends as much by arguing the prejudicial value of the evidence outweighed its probative value because it had no probative value. We disagree. Carter's testimony was logically relevant to explain that Todd, not third persons named "Ash" and "Jay," sent all of the text messages from Todd's phone to Carter over the weekend in question, and thus all of the text messages in State's Exhibit 145A. The text messages and Carter's explanation of the text messages was also logically relevant to establish that Todd engaged in the conduct that led to him being charged with kidnapping, rape, and sodomy. Portions of the evidence were also logically relevant to 26 show Todd's consciousness of guilt and his desire to conceal his offenses. See State v. Barton, 998 S.W.2d 19 , 28 (Mo. banc 1999) ("Conduct and declarations of a defendant that are relevant to show a consciousness of guilt or a desire to conceal the offense are admissible because they tend to establish the defendant's guilt of the charged crime."). Some of the text messages established that Todd asked Carter whether phones keep records of text messages; established that Todd knew he was "involved in something bad," and that he "need[ed] a rescue" from Carter; established that "Ash" had "fucked [Todd] over" by acting on "his fantasy"; established that Todd asked Carter if he could "play with her," and suggested that they "could zi[p] tie her up and fuck," presumably referring to Victim in each instance; established Todd's awareness of Victim's intoxication, including his characterization of Victim as "a corpse," and his recognition that Victim "has to get to a certain point before [they] could [cut] her loose"; established that Todd knew that they "[had] to move you know who somewhere," and that he was "moving to a different site to finish the job"; and established that he asked Carter to "do a preliminary sweep of the living room[,] our room[,] and bathroom for any incriminating stuff." We therefore reject Todd's contention that Carter's testimony and State's Exhibit 145A were not legally relevant because the evidence was logically relevant. Beyond this flawed analysis, Todd asserts that evidence that he purportedly had multiple personalities "only served to inflame the passions of the jury against [Todd] and to encourage them to punish him for being a person who was generally of bad moral character or 'dangerous'" despite the absence of any evidence from a mental health professional diagnosing Todd 27 with a mental health condition. [Appellant's Brief, pp. 52-53, 61] However, the State was not attempting to demonstrate that Todd had multiple personalities and had no obligation to do so. Instead, the State intended only to establish that Todd claimed to have multiple personalities in an effort to diffuse responsibility for his actions. We fail to see how this evidence was unduly prejudicial. It is, instead, highly probative of issues in dispute in the case. The trial court was in the best position to weigh the potential prejudicial effect of Carter's testimony and State's Exhibit 145A against its probative value. See State v. Thompson, 489 S.W.3d 312 , 324 (Mo. App. W.D. 2016). We cannot conclude that the trial court abused its discretion, much less committed plain error, in concluding that the evidence was more probative than prejudicial.11 Points Two and Three are denied. Conclusion The Judgment is affirmed. __________________________________ Cynthia L. Martin, Judge All concur 11 Todd devotes much of his discussion of Points Two and Three to an argument that the trial court's admission of the evidence was not harmless error because the evidence supporting the jury's verdicts for and subsequent convictions of Counts III and IV was not overwhelming. Because we conclude that the trial court did not abuse its discretion or commit plain error in admitting the evidence in question, we do not reach the issue of whether the evidence supporting Todd's convictions for Counts III and IV was overwhelming. 28

2021-01-26 18:12:16.203996+00

http://www.pacourts.us/assets/opinions/Superior/out/J-S35039-20m - 104671828126279399.pdf

J-S35039-20 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : VICTOR PEREZ : : Appellant : No. 1950 EDA 2019 Appeal from the Judgment of Sentence Entered May 22, 2019 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0004137-2017 BEFORE: BOWES, J., STABILE, J., and COLINS, J.* MEMORANDUM BY COLINS, J.: FILED JANUARY 26, 2021 Appellant, Victor Perez, appeals from the aggregate judgment of sentence of 10 to 20 years of confinement, which was imposed after his jury trial convictions for: manufacture, delivery, or possession with intent to manufacture or deliver a controlled substance by a person not registered (“PWID”); intentionally possessing a controlled or counterfeit substance by a person not registered; use of or possession with intent to use drug paraphernalia; persons not to possess, use, manufacture, control, sell or transfer firearms; possession of firearm with altered manufacturer’s number; and criminal conspiracy to commit PWID.1 On appeal, Appellant asserts, inter ____________________________________________ * Retired Senior Judge assigned to the Superior Court. 1 35 P.S. §§ 780-113(a)(30), (16), (32); 18 Pa. C.S. §§ 6105(a)(1), 6110.2(a), and 903, respectively. J-S35039-20 alia, that the trial court erred in denying his pre-trial motion filed pursuant to Pa.R.Crim.P. 600. Upon careful review, we concur with Appellant and are compelled to vacate his judgment of sentence. In its opinion pursuant to Pa.R.A.P. 1925(a), the trial court fully and correctly set forth the relevant facts of this case. See Trial Court Opinion, dated October 15, 2019, at 1-3. Therefore, we have no reason to restate them. On June 6, 2017, Sergeant Michael Regan of the Cheltenham Township Police Department executed a written criminal complaint against Appellant.2 On July 11, 2017, Appellant requested discovery. On September 6, 2017, the Commonwealth e-mailed a discovery packet to defense counsel. On September 12, 2017, a pre-trial conference was held before the Honorable Gary S. Silow. Appellant later represented that, at the time of this conference: It is also very important to note the Commonwealth had failed to comply with its[] requirements pursuant PA Rule of Criminal Procedure 573 as full discovery had not been provided. [Appellant] and his attorney were not able to properly defend the case without complete discovery. Assis[t]ant DA ____________________________________________ 2 The handwritten date on the complaint was June 5, 2017. The docket lists the “Initiation Date” as June 6, 2017. The date-stamp on the complaint is June 7, 2017. In their briefs, both parties state that criminal charges were filed against Appellant on June 6, 2017, and we will accept this date as the “start date” for this action. Appellant’s Brief at 11; Commonwealth’s Brief at 4. -2- J-S35039-20 [Robert Joseph] Kolansky agreed to provide full discovery to the undersigned counsel. [Appellant]’s Memorandum in Support of Motion to Dismiss Criminal Charges Pursuant to PA Rule of Criminal Procedure 600, 10/24/2018, at 2 (not paginated) § C.3 Another pre-trial conference was held before Judge Silow on October 25, 2017. Appellant again later stated that, at this conference, “the Commonwealth had failed to comply with its[] requirements pursuant PA Rule of Criminal Procedure 573 as full discovery had not been provided. [Appellant] and his attorney were not able to properly defend the case without complete discovery.” Id. at 3 § D. On November 30, 2017, Appellant had a scheduled “Call of the Trial List” court appearance but requested that his case be re-listed for the next term. For this date, Appellant once again noted that “the Commonwealth had failed to comply with its[] requirements pursuant PA Rule of Criminal Procedure 573 as full discovery had not been provided. [Appellant] and his attorney were not able to properly defend the case without complete discovery.” Id. at 3-4 § E. Again, on December 21, 2017, Appellant had a scheduled “Call of the Trial List” court appearance but requested that his case be re-listed. Appellant also later represented that, by this date, ____________________________________________ 3 The Commonwealth did not file a memorandum in response to Appellant’s memorandum and thus did not contest these representations nor any other representations therein. -3- J-S35039-20 the Commonwealth had failed to comply with its[] requirements pursuant PA Rule of Criminal Procedure 573 as full discovery had not been provided. [Appellant] and his attorney were not able to properly defend the case without complete discovery. Assis[t]ant DA Kolansky agreed to provide full discovery to the undersigned counsel. Id. at 4 § F. This sequence repeated on January 24, 2018, and Appellant again observed, that, on this date: It is also very important to note the Commonwealth had failed to comply with its[] requirements pursuant PA Rule of Criminal Procedure 573 as full discovery had not been provided. [Appellant] and his attorney were not able to properly defend the case without complete discovery. Assis[t]ant DA Kolansky agreed to provide full discovery to the undersigned counsel. Id. at 5 § G. Unlike the previous continuances, the “Call of the Trial List Order” included a handwritten notation: “600 Waiver Signed /for RL Motions.”4 However, no such waiver appears in the certified record nor listed on the certified docket. Appellant would later represent that “[t]here was no Rule 600 Waiver executed by” him on that date. Id. at 4-5 § G. On February 21, 2018, Appellant requested that his matter be re-listed for the May 2018 “Call of the Trial List.” He once more later asserted about this date: It is also very important to note the Commonwealth had failed to comply with its[] requirements pursuant PA Rule of Criminal Procedure 573 as full discovery had not been provided. [Appellant] and his attorney were not able to properly defend the ____________________________________________ 4We believe that “RL Motions” means that the case was relisted for a hearing on certain motions, but there is no additional explanation in the record. -4- J-S35039-20 case without complete discovery. Assis[t]ant DA Kolansky agreed to provide full discovery to the undersigned counsel. Id. at 5 § H. Two days later, Appellant made a further request that his case be moved to the June 2018 “Call of the Trial List,” which was granted. On May 11, 2018, Appellant filed an omnibus pretrial motion that included the following motion to compel additional discovery: 6. The initial discovery packet, provided on September 6, 2017 via email, is not complete. 7. The Commonwealth has failed to provide any written statements of other individuals who were arrested along with [Appellant], namely: Robert Stephenson, Ronald Raffle, Pamela Desantis and Jeffrey Christianson. 8. The Commonwealth has failed to provide the criminal record of Robert Stephenson, Ronald Raffle, Pamela Desantis and Jeffrey Christianson. 9. The Commonwealth has failed to provide the results and reports of any scientific tests of all evidence recovered by the Cheltenham Police Department. 10. The Commonwealth has failed to provide all documents, photographs, and fingerprint analysis of all evidence recovered by the Cheltenham Police Department. 11. The Commonwealth has failed to provide the names and addresses of any witnesses it intends to call at trial against [Appellant]. 12. The Commonwealth has failed to provide fingerprint impressions, blood samples, clothing, hair, fiber, or other materials that have been tested by any scientific laboratory as part of this investigation[.] Omnibus Pre-trial Motion, 5/11/2018, at ¶¶ 6-12. The omnibus pre-trial motion also included a motion to suppress evidence. Id. at ¶¶ 19-23. -5- J-S35039-20 A hearing was scheduled on the suppression motion on May 16, 2018. Although all parties were present, the Commonwealth requested a continuance, which the trial court granted, rescheduling the hearing for July 27, 2018. While Appellant’s counsel and the prosecutor were in the courtroom in May 2018, the Commonwealth gave Appellant’s counsel a statement of a witness, Pamela Desantis, that had been taken on the day of the incident on June 5, 2017; this statement had not previously been provided in discovery. N.T., 10/24/2018, at 5-6. On July 19, 2018, Appellant again had a scheduled “Call of the Trial List” court appearance but requested a re-list. The suppression hearing was then continued again due to a court conflict. On August 30, 2018, the trial court held a hearing on the suppression motion, at which the Commonwealth provided a dash-cam video of Appellant’s arrest; defense counsel noted for the record that he was seeing the video for the first time that day, as it had not been provided in discovery. N.T., 8/30/2018, at 56. The trial court denied the suppression motion. On October 11, 2018, Appellant’s counsel filed a Motion to Dismiss Charges Pursuant to PA Rule of Criminal Procedure 600 (“Rule 600 Motion”),5 ____________________________________________ 5Appellant had filed a pro se motion to dismiss on August 27, 2018. His motion was incorporated into the counseled Rule 600 Motion. -6- J-S35039-20 contending that the Commonwealth had violated Pa.R.Crim.P. 600(A)(2).6 Rule 600 Motion, 10/11/2018, at ¶ 6. The Rule 600 Motion pleaded that, as of the date that it was filed, “the case has been pending for 493 days,”7 because the Commonwealth “did not exercise due diligence” in bringing Appellant’s case to trial. Id. at ¶¶ 8, 13. On October 15, 2018, the Commonwealth filed an Answer to the Rule 600 Motion; the answer did not discuss whether the Commonwealth had failed to provide any discovery to Appellant nor give any reasons for any delay in delivering discovery to him. See generally Answer to Rule 600 Motion, 10/15/2018. On October 15 and 24, 2018, the trial court held hearings on the Rule 600 Motion. At the hearings, Appellant’s counsel stated: [T]here [are] a number of continuances that I would propose to the Court that were not requested by the defense. . . . And essentially, I would point out to Your Honor that, throughout the pendency of this case, I had consistently requested from Mr. Kolansky discovery to be complete and full and provided, so that my client and I are able to prepare for trial. N.T., 10/24/2018, at 4. Appellant’s counsel continued that, on the day that the suppression hearing was originally scheduled to occur in May 2018, ____________________________________________ 6 Pa.R.Crim.P. 600(A)(2) lists five “time periods” by which “[t]rial shall commence[.]” The only one applicable to Appellant is Pa.R.Crim.P. 600(A)(2)(a): “Trial in a court case in which a written complaint is filed against the defendant shall commence within 365 days from the date on which the complaint is filed.” 7The Commonwealth did not dispute Appellant’s figure of 493 days. See generally Answer to Rule 600 Motion, 10/15/2018. -7- J-S35039-20 I’m getting a witness statement that has been handed to me on May 16th, 2018 that was taken June 5th of 2017. It says it right on the witness statement. The woman’s name is Pamela Desant[i]s. She is one of the individuals that was allegedly part of the car stop and was in one of the cars. Id. at 6. Appellant’s counsel added that, when the suppression hearing finally occurred on August 30, 2018, the Commonwealth – hands me for the first time a copy of a [d]ash[-]cam video from the police car of one of the witnesses who testified at the suppression hearing of the whole incident on video. Now, once again, obviously, that is 14 months post arrest. The video was created contemporaneously right with when the incident occurred. And once again, my client and I are not able to properly prepare for a hearing or for the case in general when we are not being provided full discovery. Id. at 7. The Commonwealth answered these allegations as follows: [W]ith regard to the discovery issues brought up by [Appellant’s counsel] today, I think [Appellant’s counsel] would agree with me that on both of those occasions when discovery was turned over pursuant to my continuing duty to disclose, both items were made -- I was made aware of on the day they were disclosed. It was never a situation where I knew of the existence of something, I sat on it for a while, I chose not to give it to the defense and then I gave it to them. On both of those dates, because they were, in fact, court dates that we should be here to litigate the case or to handle a matter related to the case, I was provided with new discovery from police, made copies immediately and came prepared to turn them over to defense counsel that day. So I don’t believe that there is any delay that was caused by either of those. In fact, on one of those days, we went forward with [Appellant]’s motion to suppress. We litigated it that day. So there was no delay that should be attributed to the disclosure of discovery pursuant to my continuing duty to disclose when I became aware of something. Id. at 8. -8- J-S35039-20 On October 25, 2018, the trial court entered an order denying the Rule 600 Motion and determining the final Rule 600 run date – i.e., the date by which trial must commence – to be April 19, 2019, which had not yet occurred as of the date of the order. Order, 10/25/2018. The order was accompanied by findings of fact and conclusions of law, which included the following: [Appellant] continued the case numerous times: a. On November 30, 2017[, Appellant] requested a relist - exclude 21 days. b. On December 21, 2017, [Appellant] requested a relist - exclude 34 days. c. On January 24, 2018, [Appellant] requested a relist - exclude 28 days. d. On February 21, 2018, [Appellant] requested a relist - exclude 84 days. e. On July 19, 2018, [Appellant] requested a relist - exclude 27 days. f. On September 26, 2018, [Appellant] requested a relist - exclude 85 days. Th[e trial c]ourt finds that all the above-mentioned defense continuances are excludable time and should not be included in the calculation of the Adjusted Run Date.[8] Further, th[e trial c]ourt finds that the July 18, 2018, scheduling order from th[e trial c]ourt rescheduling [Appellant]’s Suppression hearing from July 27, 2018 until August 30, 2018 was not the result of any lack of due diligence on the part of the Commonwealth and therefore this additional 34 days is excusable time within the meaning of Rule 600. . . . In conclusion, th[e trial c]ourt finds that there is a total of 313 days of excludable and/or excusable time[.] ____________________________________________ 8The concepts of “adjusted run date,” “excludable time,” and “excusable time” are discussed in more detail below. -9- J-S35039-20 Findings of Fact and Conclusions of Law, 10/25/2018, at 4-5. On January 29, 2019, jury selection finally occurred, and Appellant’s trial commenced the next day.9 After a two-day trial, Appellant was convicted of the aforementioned charges. On May 22, 2019, the trial court sentenced Appellant. On June 3, 2019, trial counsel filed a motion for reconsideration of sentence, which was denied. Appellant thereafter filed this timely direct appeal.10 On December 24, 2020, this Court ordered -- the Commonwealth and/or the trial court to produce the written waiver referenced in the “Call of the Trial List Order” dated January 24, 2018, within thirty days after receipt of this order. If no written waiver is located, the trial court must indicate as much to us. The record, including the waiver if located, should thereafter be forwarded back to this Court. Order, 12/24/2020, at 2. On January 5, 2021, the Commonwealth responded: “The Commonwealth was ordered by this Court to produce the written Rule 600 waiver in the above-captioned case. After a diligent search, the Commonwealth has concluded that it is not in possession of the defendant’s written Rule 600 Waiver.” Letter from Marissa A. Booth, Assistant District ____________________________________________ 9 The total number of calendar days that elapsed between the filing of the criminal charges on June 6, 2017, and the commencement of Appellant’s trial on January 30, 2019, was 603 days – which is greater than the 365 days allotted by Pa.R.Crim.P. 600(A)(2)(a). However, Appellant’s challenge only applies to the period prior to the suppression hearing on August 30, 2018. Appellant’s Brief at 12. 10On October 1, 2019, Appellant filed his statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On October 15, 2019, the trial court entered its opinion pursuant to Pa.R.A.P. 1925(a). - 10 - J-S35039-20 Attorney, to Benjamin Kohler, Esquire, Deputy Prothonotary (January 5, 2021). Appellant now presents the following issues for our review: 1. Did the trial court err in failing to dismiss the criminal charges against Appellant for violation of his speedy trial rights under Rule 600 of the Pennsylvania Rules of Criminal Procedure? 2. Did the trial court err in failing to suppress evidence derived from Appellant’s illegal seizure? 3. Did the trial court abuse its discretion in sentencing the Appellant to an aggregate ten (10) to twenty (20) year prison sentence? 4. Did the Commonwealth violate the Appellant’s due process right guaranteed under Article 1, Section 9 of the Pennsylvania Constitution and the 14th Amendment of the United States Constitution in failing to disclose evidence in its possession and control until commencement of trial? Appellant’s Brief at 5 (unnecessary capitalization omitted). Appellant first challenges the trial court’s denial of his Rule 600 Motion and its “finding excusable and excludable delay where the Commonwealth failed to exercise due diligence by failing to disclose mandatory discoverable materials.” Id. at 10. “[P]rompt-trial rulings are reviewed by the appellate courts for an abuse of discretion.” Commonwealth v. Barbour, 189 A.3d 944 , 953 (Pa. 2018) (citation omitted). The proper scope of review is limited to the evidence on the record of the Rule 600 evidentiary hearing, and the findings of the trial court. An appellate court must view the facts in the light most favorable to the prevailing party. Additionally, when considering the trial court’s ruling, this Court is not permitted to ignore the dual purpose behind Rule 600. Rule - 11 - J-S35039-20 600 serves two equally important functions: (1) the protection of the accused’s speedy trial rights, and (2) the protection of society. In determining whether an accused’s right to a speedy trial has been violated, consideration must be given to society’s right to effective prosecution of criminal cases, both to restrain those guilty of crime and to deter those contemplating it. Commonwealth v. Peterson, 19 A.3d 1131 , 1135 (Pa. Super. 2011) (en banc) (emphasis added) (citations and internal ellipses omitted). “By the terms of Rule 600, the Commonwealth must bring a defendant to trial within 365 days from the date upon which a written criminal complaint is filed.” Barbour, 189 A.3d at 947. This first step “provides the mechanical run date.” Commonwealth v. Bethea, 185 A.3d 364 , 371 (Pa. Super. 2018) (emphasis in original) (citation omitted). “A defendant, however, is not automatically entitled to discharge under Rule 600 where trial starts more than 365 days after the filing of the complaint.” Commonwealth v. Roles, 116 A.3d 122 , 125 (Pa. Super. 2015). [T]he Rule 600 run date may be adjusted pursuant to the computational directives set forth in Subsection (C) of the Rule. For purposes of the Rule 600 computation, “periods of delay at any stage of the proceedings caused by the Commonwealth when the Commonwealth has failed to exercise due diligence shall be included in the computation of the time within which trial must commence.” [Pa.R.Crim.P.] 600(C)(1). “Any other periods of delay,” including those caused by the defendant, “shall be excluded from the computation.” Id. Barbour, 189 A.3d at 947 (emphasis added). “[D]ue diligence is fact-specific, to be determined case-by-case; it does not require perfect vigilance and punctilious care, but merely a showing the - 12 - J-S35039-20 Commonwealth has put forth a reasonable effort.” Commonwealth v. Bradford, 46 A.3d 693 , 701–02 (Pa. 2012). Absent a demonstration of due diligence, establishing that the Commonwealth has done everything reasonable within its power to guarantee that the trial begins on time, the Commonwealth’s failure to bring the defendant to trial before the expiration of the Rule 600 time period constitutes grounds for dismissal of the charges with prejudice. Barbour, 189 A.3d at 947 (internal brackets, citation, and quotation marks omitted). In the current action, the Commonwealth presented no evidence that it ever contacted the investigating officer to request Desantis’s statement or the dash-cam video or to inquire about any possibly missing discovery after Appellant filed his omnibus pre-trial motion. See Omnibus Pre-trial Motion, 5/11/2018, at ¶¶ 6-12. In a Rule 600 proceeding, it is the Commonwealth’s burden to demonstrate, by a preponderance of the evidence, that it put forth reasonable effort. Commonwealth v. Selenski, 994 A.2d 1083 , 1089 (Pa. 2010); Commonwealth v. Rigoberto Ramos, 936 A.2d 1097 , 1102 (Pa. Super. 2007) (en banc) (“the Commonwealth bears the burden of proving its efforts were reasonable and diligent”). In Commonwealth v. Taylor, 598 A.2d 1000 , 1001 (Pa. Super. 1991), this Court held that a defense continuance, requested in order to conduct an investigation based on newly-received discovery, was properly charged to the Commonwealth, where the Commonwealth failed to act with due diligence in obtaining the discovery materials from police. In that appeal, the - 13 - J-S35039-20 Commonwealth made “two or three” follow-up requests to the police over a period of slightly more than three months. Id. at 1002 . In reversing the trial court’s finding of due diligence, this Court stated that “[s]urely, the Commonwealth could have done more in its attempt to secure the report from the police than merely requesting the report two or three times.” Id. This Court concluded that “[i]ts failure to do so show[ed] a lack of due diligence.” Id. at 1002-03 . See also Commonwealth v. Preston, 904 A.2d 1 , 12 (Pa. Super. 2006) (“[I]f the delay in providing discovery is due to either intentional or negligent acts, or merely stems from the prosecutor’s inaction, the Commonwealth cannot claim that its default was ‘excusable.’”) (emphasis added). Likewise, in the recent case of Commonwealth v. Felix Ramos, No. 3634 EDA 2018, unpublished memorandum at 10-11 (Pa. Super. filed May 22 2020),11 this Court found that the Commonwealth’s efforts “or lack thereof” to obtain video evidence were not reasonable based on the record before it, explaining: More than one year passed between the date the investigating officer requested the video surveillance evidence . . . and the date the video evidence was passed to the defense. In that time, the ____________________________________________ 11 Pursuant to Pa.R.A.P. 126(b) (effective May 1, 2019): (1) As used in this rule, “non-precedential decision” refers to an unpublished non-precedential memorandum decision of the Superior Court filed after May 1, 2019 . . . (2) Non-precedential decisions as defined in (b)(1) may be cited for their persuasive value. - 14 - J-S35039-20 prosecution apparently made no efforts to ascertain the status of that request; nor did the Commonwealth provide an explanation for the failure of the police to act more diligently in obtaining the video. . . . When defense counsel—who was otherwise prepared to proceed to trial—was compelled to ask for additional time to review the video, it was as a direct result of the Commonwealth’s lack of due diligence in obtaining the evidence and providing it to the defense. As such, the trial court improperly excluded the ensuing 217-day delay from its Rule 600 calculation. Id. at 11 . Analogously, we do not find that the Commonwealth’s efforts to provide outstanding discovery, including Desantis’s statement and the dash-cam video, were reasonable based on the record before us. See id. at 10-11 . More than 11 months passed between the date of the investigation and the date that Desantis’s statement was passed to the defense, and more than 14 months passed between the date of the investigation and the date that the video evidence was passed to the defense. Compare id. at 11 with N.T., 8/30/2018, at 56; N.T., 10/24/2018, at 5-7. In that time, the Commonwealth apparently made no efforts to ascertain additional discovery, as requested in Appellant’s omnibus pre-trial motion, nor did it provide an explanation for the failure of the police to hand over the witness statement and video evidence promptly and diligently. Compare Felix Ramos, No. 3634 EDA 2018, at 11, with Omnibus Pre-trial Motion, 5/11/2018, at ¶¶ 7, 10; Answer to Rule 600 Motion, 10/15/2018; N.T., 10/24/2018, at 8. Even though the prosecutor represented that he handed over all discovery to Appellant’s counsel as soon as it was given to him, N.T., 10/24/2018, at 8, he could have done more to - 15 - J-S35039-20 secure this additional discovery, and his inaction amounted to a lack of due diligence. See Taylor, 598 A.2d at 1002 (“[s]urely, the Commonwealth could have done more in its attempt to secure the report from the police”; “[i]ts failure to do so shows a lack of due diligence”); see also Preston, 904 A.2d at 12 (if delay “merely stems from the prosecutor’s inaction,” its time cannot be excluded from the Rule 600 calculation). Appellant’s counsel was compelled to ask for continuances as a direct result of the Commonwealth’s lack of due diligence in obtaining the evidence and providing it to the defense. See Felix Ramos, No. 3634 EDA 2018, at 11. As such, this period of delay was properly chargeable to the Commonwealth as a result of its delay in producing mandatory discovery, and the trial court improperly excluded this period of delay from its Rule 600 calculation. See id. We note that the time period challenged in Appellant’s Rule 600 Motion ends on August 30, 2018. Appellant’s Brief at 12. The trial court improperly excluded a total of 194 days from its Rule 600 calculation prior to August 30, 2018. Findings of Fact and Conclusions of Law, 10/25/2018, at 5 ¶¶ a.-e. We reach that total based on the following calculation: 21 days + 34 days + 28 days + 84 days + 27 days = 194 days We include the 28 days between January 24 and February 21, 2018, because (1) no signed waiver appears in the certified record nor on the certified docket, even after this Court explicitly ordered the Commonwealth and/or the trial court to produce said written waiver; (2) the note on the “Call of the Trial - 16 - J-S35039-20 Order” for January 24, 2018, that the action was relisted for a hearing on motions could refer to the outstanding suppression claims – it is ambiguous as to whether the waiver related to Appellant’s challenges to the incomplete discovery; and (3) Appellant represented in his memorandum in support of his Rule 600 Motion that no waiver was signed that day, a claim that the Commonwealth, by failing to file a response to Appellant’s memorandum, did not contest. [Appellant]’s Memorandum in Support of Motion to Dismiss Criminal Charges Pursuant to PA Rule of Criminal Procedure 600, 10/24/2018, at 4-5 § G; Order, 12/24/2020, at 2; Letter from Marissa A. Booth, Assistant District Attorney, to Benjamin Kohler, Esquire, Deputy Prothonotary (January 5, 2021). In other words, there is no factual support in the record for the trial court’s conclusion that these 28 days are excludable time. See Findings of Fact and Conclusions of Law, 10/25/2018, at 5. Adding that sum of 194 days to the 180 undisputed includable days12 between the filing of the complaint and the suppression hearing brings the Rule 600 calculation to 374 days – nine days in excess of the 365-day period provided by Rule 600. Accordingly, we are constrained to vacate Appellant’s ____________________________________________ 12 493 days – 313 days = 180 days. See Rule 600 Motion, 10/11/2018, at ¶ 8 (“the case has been pending for 493 days”); Findings of Fact and Conclusions of Law, 10/25/2018, at 5 (“th[e trial c]ourt finds that there is a total of 313 days of excludable and/or excusable time”). - 17 - J-S35039-20 judgment of sentence and to discharge him.13 See Barbour, 189 A.3d at 947 (“the Commonwealth’s failure to bring the defendant to trial before the expiration of the Rule 600 time period constitutes grounds for dismissal of the charges with prejudice”). In doing so, we share in the sentiment expressed by our colleagues in Felix Ramos, No. 3634 EDA 2018: We are cognizant of the dual purposes underpinning Rule 600— i.e., the protection of society, as well as of an accused’s speedy trial rights. We do not take lightly the nullification of a duly entered jury verdict. However, where the Commonwealth’s sustained lack of due diligence over the pendency of a relatively uncomplicated prosecution deprives a defendant of his right to a speedy trial under our rules of court, we are left with no choice but to vindicate that right, unfortunately at the expense of society’s right to effective prosecution of criminal cases. The Commonwealth can and must do better. Id. at 14-15 n.5; see also Peterson, 19 A.3d at 1135 (discussing dual purpose behind Rule 600). Judgment of sentence vacated. Appellant discharged. Jurisdiction relinquished. ____________________________________________ 13As we vacate Appellant’s judgment of sentence on his first claim, we need not address his remaining issues. - 18 - J-S35039-20 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 1/26/2021 - 19 -

2021-01-26 18:12:16.419561+00

http://www.pacourts.us/assets/opinions/Superior/out/J-A26012-20m - 104671839126279692.pdf

J-A26012-20 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : LARRY NIBBLINS : : Appellant : No. 2570 EDA 2019 Appeal from the Judgment of Sentence Entered August 23, 2019 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0008692-2012 BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E.* MEMORANDUM BY BENDER, P.J.E.: FILED JANUARY 26, 2021 Appellant, Larry Nibblins, appeals from the judgment of sentence of 2½ to 5 years’ imprisonment, imposed after the trial court revoked his probation for his conviction of possessing an instrument of crime (PIC). Appellant challenges the legality and discretionary aspects of his sentence. We affirm. On January 21, 2014, Appellant was convicted, following a non-jury trial, of aggravated assault, PIC, simple assault, and criminal mischief. Appellant’s convictions were based on evidence that he entered the home of Andre Coles and struck Coles in the head with a brick. Coles required eight staples in his head as a result of the attack. On March 12, 2014, Appellant was sentenced to 1½ to 5 years’ incarceration for his aggravated assault offense, followed by 5 years’ probation for PIC. Additionally, “[m]andatory ____________________________________________ * Former Justice specially assigned to the Superior Court. J-A26012-20 supervision under the Mental Health Unit was ordered as part of Appellant’s conditions of probation. He was committed to SCI Graterford on March 21, 2014[,] and was subsequently paroled nearly a year later on March 4, 2015.” Trial Court Opinion (TCO), 5/12/20, at 1. However, he violated his parole and was recommitted until December of 2018. See Appellant’s Brief at 8. Upon Appellant’s release from prison, he began serving his probationary sentence for his PIC offense. However, Appellant repeatedly failed to report to his probation officer, and “a probation violation bench warrant was filed on March 11, 2019.” TCO at 2. At a violation of probation hearing on July 3, 2019, [Appellant’s] supervision was revoked. After the completion of a Presentence Investigation Report, including a full mental health evaluation, as well as a thorough review of the guidelines and facts and circumstances of the underlying case, Appellant was sentenced on August 23, 2019[,] to … [2½ to 5] years’ incarceration on the original charge of … [PIC]. Original probation conditions were applied, including supervision under the Mental Health Unit. Id. Appellant filed a timely, post-sentence motion for reconsideration of his sentence, which the court denied. He then filed a timely notice of appeal on September 3, 2019. On October 18, 2019, the trial court ordered Appellant to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal within 21 days. Appellant untimely filed his concise statement on November 19, 2019. Notably, however, the court’s order did not advise Appellant that his failure to comply with the order could result in his issues being deemed waived. See Greater Erie Indus. Development Corp. v. Presque Isle -2- J-A26012-20 Downs, Inc., 88 A.3d 222 , 225 (Pa. Super. 2014) (en banc) (“[I]n determining whether an appellant has waived his issues on appeal based on non-compliance with Pa.R.A.P. 1925, it is the trial court’s order that triggers an appellant’s obligation[.] ... [T]herefore, we look first to the language of that order.”) (citations omitted). Additionally, the court addressed Appellant’s issues in its Rule 1925(a) opinion filed on May 12, 2020. Under these circumstances, we will review the merits of Appellant’s sentencing issues. See Commonwealth v. Burton, 973 A.2d 428 , 433 (Pa. Super. 2009) (holding that where an appellant files an untimely Rule 1925(b) statement, “this Court may decide the appeal on the merits if the trial court had adequate opportunity to prepare an opinion addressing the issues being raised on appeal”). Appellant raises the following three claims for our review, which we have reordered for ease of disposition: [I.] Whether the imposition of a sentence of [2½] to 5 years in state custody after Appellant completed state parole for Appellant’s very first violation was unreasonable and excessive? [II.] Whether the [c]ourt abused its discretion in imposing a sentence of [2½] to 5 years in state custody after Appellant completed state parole for Appellant’s very first violation? [III.] Whether the imposition of a sentence of [2½] to 5 years in state custody after Appellant completed state parole for Appellant’s very first violation was cruel and unusual [punishment]? Appellant’s Brief at 7. Appellant’s first two issues implicate the discretionary aspects of his sentence. -3- J-A26012-20 Challenges to the discretionary aspects of sentencing do not entitle an appellant to review as of right. Commonwealth v. Sierra, 752 A.2d 910 , 912 (Pa. Super. 2000). An appellant challenging the discretionary aspects of his sentence must invoke this Court’s jurisdiction by satisfying a four-part test: We conduct a four-part analysis to determine: (1) whether [the] appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. 720; (3) whether [the] appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S.[] § 9781(b). Commonwealth v. Evans, 901 A.2d 528 , 533 (Pa. Super. 2006), appeal denied, 589 Pa. 727 , 909 A.2d 303 (2006). Objections to the discretionary aspects of a sentence are generally waived if they are not raised at the sentencing hearing or in a motion to modify the sentence imposed. Commonwealth v. Mann, 820 A.2d 788 , 794 (Pa. Super. 2003), appeal denied, 574 Pa. 759 , 831 A.2d 599 (2003). The determination of what constitutes a substantial question must be evaluated on a case-by-case basis. Commonwealth v. Paul, 925 A.2d 825 , 828 (Pa. Super. 2007). A substantial question exists “only when the appellant advances a colorable argument that the sentencing judge’s actions were either: (1) inconsistent with a specific provision of the Sentencing Code; or (2) contrary to the fundamental norms which underlie the sentencing process.” Sierra, supra at 912–13. Commonwealth v. Griffin, 65 A.3d 932 , 935 (Pa. Super. 2013) (quoting Commonwealth v. Moury, 992 A.2d 162 , 170 (Pa. Super. 2010)). Here, as set forth supra, Appellant has timely appealed. In his post- sentence motion, he averred that his sentence of incarceration should be amended to a sentence of mental health treatment because he is “[s]ignificantly mentally ill[,]” he is a veteran who was honorably discharged, -4- J-A26012-20 and “it would best serve [Appellant] and society as a whole for [him] to receive psychiatric treatment as opposed to state incarceration.” Post-Sentence Motion, 8/26/19, at 2 (unnumbered). Notably, Appellant has not included a Rule 2119(f) statement in his brief. However, the Commonwealth has not objected to that omission and, therefore, we will overlook it and decide if Appellant has presented a substantial question for our review. See Commonwealth v. Kiesel, 854 A.2d 530 , 533 (Pa. Super. 2004) (“[W]hen the appellant has not included a Rule 2119(f) statement and the appellee has not objected, this Court may ignore the omission and determine if there is a substantial question that the sentence imposed was not appropriate, or enforce the requirements of [Rule] 2119(f) sua sponte, i.e., deny allowance of appeal.”). In his first two issues, Appellant contends that his sentence of 2½ to 5 years’ incarceration is excessive when considering the factors set forth in 42 Pa.C.S. § 9721(b), specifically, “the gravity of [Appellant’s] technical violation, the need for public protection, or his needs for rehabilitation.” Appellant’s Brief at 19. Appellant stresses that he is a diagnosed schizophrenic, and that his probation officer recommended he be “parole[d] to an appropriate treatment facility….” Id. at 24. He argues that, given his mental illness, his probation officer’s recommendation, and the fact that he committed only technical violations of his probation, “his rehabilitative needs would be better served in the community in a mental health treatment facility….” Id. at 23. -5- J-A26012-20 Appellant further argues that a sentence of incarceration was not justified under 42 Pa.C.S. § 9771(c), which states: (c) Limitation on sentence of total confinement.--The court shall not impose a sentence of total confinement upon revocation unless it finds that: (1) the defendant has been convicted of another crime; or (2) the conduct of the defendant indicates that it is likely that he will commit another crime if he is not imprisoned; or (3) such a sentence is essential to vindicate the authority of the court. 42 Pa.C.S. § 9771(c). According to Appellant, incarceration in this case was not warranted, because he was not convicted of another crime, and [t]here was no evidence to suggest that [he] was likely to commit another crime if not imprisoned. Since this was only a technical violation, a state sentence of incarceration was not essential to vindicate the authority of the court. Rather, Appellant’s mental illness and history of schizophrenia warrants a sentencing option of less than incarceration, which is reflected in [his probation o]fficer[’s] … recommendation for immediate parole to an appropriate treatment facility. Appellant’s Brief at 17-18. We conclude that Appellant has presented a plausible argument that his sentence violates provisions of the Sentencing Code, namely sections 9721(b) and 9771(c). See Commonwealth v. Derry, 150 A.3d 987 , 995 (Pa. Super. 2016) (holding that a claim that the violation-of-probation court failed to consider the section 9721(b) factors presents a substantial question for our review); Commonwealth v. Crump, 995 A.2d 1280 , 1282 (Pa. Super. 2010) (“A substantial question is raised when the appellant sets forth a plausible -6- J-A26012-20 argument that the sentence violates a provision of the [S]entencing [C]ode or is contrary to the fundamental norms of the sentencing process.”) (citation omitted). Nevertheless, Appellant is not entitled to sentencing relief. We are mindful that, [s]entencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion. In this context, an abuse of discretion is not shown merely by an error in judgment. Rather, the appellant must establish, by reference to the record, that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision. Commonwealth v. Shugars, 895 A.2d 1270 , 1275 (Pa. Super. 2006). Here, in explaining its sentencing rationale, the trial court stated: In the instant matter, Appellant was found guilty of [a]ggravated [a]ssault, [PIC], [s]imple [a]ssault, and [c]riminal [m]ischief. On March 12, 2014, he was sentenced to one and a half (1½) to five (5) years[’] state incarceration for [a]ggravated [a]ssault, followed by five (5) years reporting probation for PIC ([s]imple [a]ssault merged, and no further penalty was imposed for [c]riminal [m]ischief). Mandatory supervision under the Mental Health Unit was ordered as part of Appellant’s conditions of probation. Appellant served his time in prison and was released from [SCI] Phoenix on December 25, 2018. On December 28, 2018, [Appellant’s] [p]robation [o]fficer[,] Crystal Erb[,] spoke with Mr. Maxwell from the Veteran’s Reentry Program. Officer Erb subsequently spoke with Chris Yarborough, [with] who[m] Appellant stated he would be residing…. Mr. Yarborough informed Officer Erb that Appellant did not believe he had a probation period to follow his incarceration. (N.T.[,] 7/3/2019, [at] 5). In January of 2019, Officer Erb continued to contact representatives from the Veterans Association (“VA”), Mr. Maxwell and Mr. Hazel, who had regularly been attempting to get in touch with Appellant to provide him with services. Appellant -7- J-A26012-20 failed to appear for both probation appointments and VA appointments. Not only had Appellant absconded, but also, he was not enrolled in mental health therapy or taking prescribed medications and was thus in violation of the probation condition that he be supervised by the Mental Health Unit. Wanted cards were issued for Appellant on March 11, 2019. A violation of probation (“VOP”) hearing was conducted on July 3, 2019. At that time, Appellant relayed that he had been residing with his friend, Mr. Yarborough, and that he [had] not [been] taking medications from his release date until June, when he started taking Prinivil, Maraviroc, and Zoloft[,] as prescribed by a nurse practitioner at the Veteran’s Medical Center. (Id. at 11-12). At the conclusion of the hearing, Appellant’s probation was revoked. Appellant now complains that the trial court erred by imposing a sentence of total confinement after revoking probation based on technical violations. Although the offenses that triggered Appellant’s probation revocation, namely his failure to appear for appointments and enroll with the Mental Health Unit, were not assaultive or independently criminal, “technical violations are sufficient to trigger the revocation of probation.” Commonwealth v. Sierra, … 752 A.2d 910 , 912 [(Pa. Super. 2000) (citation omitted).] In Appellant’s 1925(b) [s]tatement, he claims that the sentenc[e] of [2½ to 5] years’ incarceration after a revocation of probation is “unreasonable and excessive” as well as “cruel and unusual,” and that the sentencing court abused its discretion. Upon sentencing following a revocation of probation, the trial court is limited only by the maximum sentence that it could have imposed originally at the time of the probationary sentence. Commonwealth v. Coolbaugh, 770 A.2d 788 , 792 (Pa. Super. 2001). *** Following revocation, a sentencing court need not undertake a lengthy discourse for its reasons for imposing a sentence of total confinement, but the record as a whole must reflect the sentencing court’s consideration of the facts of the crime as well as character of the offender. … Crump, 995 A.2d [at] 1283…. In Commonwealth v. Fowler,[ 893 A.2d 758 , 767 (Pa. Super. -8- J-A26012-20 2006)], the Superior Court noted[:] “When a sentencing court has reviewed a presentence investigation report, we presume that the court properly considered and weighed all relevant factors in fashioning the defendant’s sentence.” Here, the record reflects that the [c]ourt did not err or abuse its discretion when resentencing Appellant. The [c]ourt succinctly stated the reasons for the imposed sentence and incorporated all relevant sentencing factors after conducting a full evidentiary hearing. The evidence introduced at the hearing abundantly supported this [c]ourt’s findings that Appellant had repeatedly violated the terms of this [c]ourt’s probation and the cited reasons amply justified the Order of Sentence imposed. The [c]ourt first took note of Appellant’s lengthy criminal history, which includes nineteen (19) arrests, ten (10) convictions, six (6) commitments, [and] six (6) violations corresponding to three (3) revocations of previous orders of probation and/or parole. Furthermore, the record reflects that the [c]ourt reviewed and incorporated Appellant’s presentence investigation report and mental health assessment. (N.T.[,] 8/23/19, [at] 13). The gravity of the underlying offense was considered -- Appellant had bashed a man’s head with a brick and threatened to kill the man and his grandmother.[1] [Appellant’s] penchant for violence was not only demonstrated by the underlying offense, but also by his record while he was incarcerated. His prison record reflected assaultive conduct, threatening employees, abusive and inappropriate behavior, and at least three (3) major violations. Appellant indicated that he began smoking marijuana and drinking alcohol during his teenage years but denied taking any other illegal substances, although he tested positive for cocaine. (Id. at 15-16). Although Appellant claims he had no knowledge of his probationary period, he was reminded that he had signed forms informing him of his probation. Because of the foregoing reasons, the argument for the imposition of another period of probation lacked prudence. Appellant flagrantly disregarded this [c]ourt’s authority and ignored the ____________________________________________ 1 In arguing that the gravity of his offense did not warrant the sentence the court imposed, Appellant focuses on his technical violations of probation, rather than the PIC offense for which he was being sentenced. We agree with the trial court’s consideration of the PIC crime in assessing the gravity of Appellant’s offense under section 9721(b). -9- J-A26012-20 rehabilitative conditions and purposes of probation that were imposed when this [c]ourt entered the original merciful sentence. This [c]ourt’s original Order had reflected a sentence at the very bottom range of the recommended sentencing guidelines at issue. Appellant repeatedly and blatantly ignored the authority of the Criminal Justice System and the evidence unmistakably demonstrated that he was not amenable to probation. Confinement was deemed necessary because Appellant’s actions combined with his lack of respect for authority demonstrates that he constitutes a threat to the safety of the Philadelphia community, as there is a high risk of recidivism. Parole and probation were ineffective in rehabilitating Appellant, therefore further incarceration of this degree was appropriate, and was not an abuse of discretion. Appellant’s arguments lack merit because the imposed sentence constituted a reasonable exercise of judicial discretion. TCO at 5-9. Our review of the record and the court’s opinion demonstrates that it considered the section 9721(b) factors, and found that the gravity of Appellant’s underlying offense, the protection of the public, and Appellant’s failure to take advantage of the rehabilitation opportunities that had been previously provided to him weighed in favor of a sentence of incarceration. The court further concluded that such a sentence was necessary under section 9771(c)(2) and (3) to vindicate its authority, and because Appellant’s recidivism risk was high, considering his lengthy prior record, misconduct in prison, and his inability to adhere to the conditions of his parole and probation. Given this record, we discern no abuse of discretion in the court’s sentencing decision. - 10 - J-A26012-20 We also disagree with Appellant that his sentence violates the Eighth Amendment’s prohibition against cruel and unusual punishment.2 In support of this claim, Appellant states only that, “[g]iven [his] mental illness[,] within the context of a technical violation where [his probation o]fficer … recommended placement at [a] mental health facility, a state sentence of incarceration was clearly cruel and unusual [punishment,] warranting that it be vacated and [his case] remanded for resentencing.” Appellant’s Brief at 21-22. Appellant cites no legal authority to support his position. Moreover, as the Commonwealth observes, he “does not proffer any evidence as to why a period of incarceration constitutes cruel and unusual punishment. Nor does he demonstrate why he would have fared better with an alternative sentence.” Commonwealth’s Brief at 12. The Commonwealth further stresses that “the court was aware of [Appellant’s] mental health needs and addressed those needs in rendering his sentence. The court ordered that [Appellant] receive mental health treatment while incarcerated and upon release. There is no evidence here indicating that the medical services and treatment available through the state correctional institution would be inadequate for [Appellant’s] condition.” Id. (citation omitted). ____________________________________________ 2 While not raised in his post-sentence motion, Appellant’s claim implicates the legality of his sentence and, therefore, it is non-waivable. See Commonwealth v. Brown, 71 A.3d 1009 , 1016 (Pa. Super. 2013) (“[A] claim that a sentence constitutes cruel and unusual punishment raises a question of the legality of the sentence, and … can be raised for the first time on direct appeal.”). - 11 - J-A26012-20 We agree that Appellant’s scant argument fails to demonstrate that his sentence of incarceration constitutes cruel and unusual punishment simply because he believes his mental health issues would be better served with treatment outside of prison. See Commonwealth v. Lankford, 164 A.3d 1250 , 1254 (Pa. Super. 2017) (noting that this Court has previously “held that a sentence is not cruel and unusual punishment simply because a lesser sentence, e.g. [a] proposed alternative probationary scheme, might better accommodate a defendant’s mental health needs”). Appellant was afforded an opportunity to receive treatment while serving probation, and he failed to do so. Accordingly, his third and final challenge to his sentence is meritless. Judgment of sentence affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 1/26/2021 - 12 - J-A26012-20 - 13 -

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http://www.pacourts.us/assets/opinions/Superior/out/J-A29003-20m - 104671532126251258.pdf

J-A29003-20 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : AURIC INVESTMENT HOLDINGS, LLC : : Appellant : No. 1998 MDA 2019 Appeal from the Judgment of Sentence Entered November 15, 2019 In the Court of Common Pleas of Lackawanna County Criminal Division at No(s): CP-35-SA-0000081-2019 BEFORE: DUBOW, J., KUNSELMAN, J., and COLINS, J.* MEMORANDUM BY DUBOW, J.: FILED JANUARY 26, 2021 Auric Investment Holdings, LLC (“Auric LLC”) purports to appeal from the Judgment of Sentence, entered on November 15, 2019, after the trial court found it guilty of violating a local ordinance.1 After careful review, we ____________________________________________ * Retired Senior Judge assigned to the Superior Court. 1 Jurisdiction over this appeal properly lies in the Commonwealth Court because it involves the application and interpretation of a local ordinance. 42 Pa.C.S. § 762(a)(4)(i)(B). However, the Commonwealth has not filed an objection to proceeding in this Court, and we will exercise our discretion and decide this appeal. Pa.R.A.P. 741. Furthermore, we respectfully disagree with the Dissent's interpretation of Mohn v. Bucks Cty. Republican Comm., 218 A.3d 927 , 934 (Pa. Super. 2019) (en banc), and its conclusion that Superior Court must transfer this case to Commonwealth Court. The en banc Court in Mohn did not hold that Superior Court must always transfer a case to Commonwealth Court; rather, the Mohn Court left the decision to Superior Court. In particular, the Mohn Court set forth the factors Superior Court should consider when deciding whether to transfer and concluded that Superior Court should transfer an appeal “where the interests of the parties and matters of judicial economy are outweighed by other factors, such as J-A29003-20 conclude that the trial court lacked jurisdiction to try Auric LLC; thus, its Judgment of Sentence is a nullity without legal effect. In addition, we quash this appeal for lack of appellate jurisdiction. On October 31, 2018, a code enforcement officer from the City of Scranton (“the City”) informed Auric LLC by certified mail that the City had deemed its property located at 300-302 William Street (“the Property”) unfit for human occupancy and, therefore, condemned.2 Auric LLC appealed to the City Board of Appeals, which upheld the condemnation. On February 22, 2019, a code enforcement officer returned to the Property and determined that, notwithstanding the condemnation, Auric LLC had rented the Property to new tenants in violation of City Ordinance LO §64 ____________________________________________ whether our retention will disrupt the legislatively ordained division of labor between the intermediate appellate courts; or whether there is a possibility of establishing two conflicting lines of authority on a particular subject.” Id. at 934. In this case, we find that the interest of judicial economy outweighs the other factors, which have minimal relevancy in this case. Superior Court is familiar with criminal proceedings and has applied well established law. Therefore, we decline to transfer this case to Commonwealth Court. 2 The City condemned the Property under International Property Maintenance Code (“IPMC”) § 108.1.3, which provides that “[a] structure is unfit for human occupancy whenever the code official finds that such structure is unsafe, unlawful or, because of the degree to which the structure is in disrepair or lacks maintenance, is insanitary, vermin or rat infested, contains filth and contamination, or lacks ventilation, illumination, sanitary or heating facilities or other essential equipment required by this code, or because the location of the structure constitutes a hazard to the occupants of the structure or to the public.” -2- J-A29003-20 §§ QOL-021. Therefore, the City issued a summary criminal citation to Auric LLC. On June 5, 2019, the magisterial district court found Auric LLC guilty. The record does not indicate whether counsel represented Auric LLC before the magisterial district court. On June 17, 2019, the Lackawanna County Clerk of Courts signed and accepted a Notice of Summary Appeal from the district court conviction on behalf of Auric LLC. The summary appeal form includes entry space for an appellant to identify its counsel. In this case, however, Auric LLC’s Notice of Summary Appeal does not identify counsel. On November 12, 2019, the court of common pleas held a trial de novo. The City Solicitor appeared on behalf of the City to prosecute its case, but no counsel appeared on behalf of Auric LLC. Steve Garanin, a non-attorney, appeared and testified on behalf of Auric LLC. Mr. Garanin conceded that the City had condemned the Property and that Auric LLC had nonetheless continued to rent the Property to tenants. A code enforcement officer testified on behalf of the City, and the trial court permitted Mr. Garanin to conduct cross-examination of the officer. At the conclusion of the trial de novo, the court found Auric LLC guilty. On November 15, 2019, the court entered its Judgment of Sentence.3 ____________________________________________ 3 The Lackawanna County Clerk of Courts assessed a penalty consisting of a fine and costs for $1,091.25. -3- J-A29003-20 On December 12, 2019, Mr. Garanin filed a Notice of Appeal on Auric LLC’s behalf. The court of common pleas did not direct Auric LLC’s compliance with Pa.R.A.P. 1925(b) but issued a Memorandum in support of its decision. On December 23, 2019, Attorney Paul G. Batyko III, Esq. entered his appearance in this Court on behalf of Auric LLC. We glean the following issues from Auric LLC’s Brief: 1. Whether the City condemned the Property without proper notice or an opportunity to make repairs in a reasonable time; 2. Whether condemnation of the Property was improper and constitutes further evidence of the City’s ongoing wrongful conduct that is the subject of federal litigation; and 3. Whether the City failed to establish a “prohibited occupancy” of the Property, in violation of City Ordinance LO § 64 §§ QOL- 021, because the City failed to present evidence to support condemnation of the Property. See Auric LLC’s Br. at 7, 13, 14.4 As a prefatory matter, we consider whether we have jurisdiction over this appeal. Commonwealth v. Parker, 173 A.3d 294 , 296 (Pa. Super. 2017) (“A court may consider the issue of jurisdiction sua sponte.”). Because we conclude that the trial court lacked jurisdiction to proceed with a trial de ____________________________________________ 4 Auric LLC has not included a proper Statement of Questions Involved in its Brief. “The statement of the questions involved must state concisely the issues to be resolved, expressed in the terms and circumstances of the case but without unnecessary detail.” Pa.R.A.P. 2116. In its Brief, Auric LLC merely sets forth several standards of appellate review; it does not identify, in terms and circumstances of this case, the issues that it wants resolved. See Auric LLC’s Br. at 4. Nevertheless, we decline to find waiver on this ground because its error has not hindered our review. -4- J-A29003-20 novo and impose a Judgment of Sentence, we are without jurisdiction to consider this appeal and are constrained to quash. Commonwealth v. Garcia, 43 A.3d 470 , 477-78 (Pa. 2012); McCutcheon v. Phila. Elec. Co., 788 A.2d 345 , 350-51 (Pa. 2002); Commonwealth v. Martinez, 141 A.3d 485 , 490-91 (Pa. Super. 2016) (“Where there is no jurisdiction, there is no authority to pronounce judgment.”) (citation omitted); see also Martin v. Zoning Hearing Bd. of W. Vincent, 230 A.3d 540 , 544 (Pa. Cmwlth. 2020) (“[T]he law is well-established that if an adjudicative body below lacks subject matter jurisdiction, an appellate court does not acquire jurisdiction by an appeal.”) (quotation marks and citation omitted). It is well-settled that “a corporation may appear in court only through an attorney at law admitted to practice before the court.” Walacavage v. Excell 2000, Inc., 480 A.2d 281 , 284 (Pa. Super. 1984) (citations omitted). The rule applies even if the corporation has only one shareholder. Id. More recently, this Court has extended the rule and made it applicable to limited liability companies (“LLCs”) to hold that the trial court’s jurisdiction is not invoked in a trial de novo where the summary appeal was filed by a non- attorney member of the LLC on behalf of the LLC. David R. Nicholson, Builder, LLC v. Jablonski, 163 A.3d 1048 , 1056 (Pa. Super. 2017) (“Jablonski”).5 ____________________________________________ 5There are two exceptions to this rule that are inapplicable here. See Walacavage, 480 A.2d at 284 (recognizing (1) informal rules applicable in -5- J-A29003-20 Following our review of the certified record, we see no evidence that counsel represented Auric LLC throughout these proceedings. We infer from the Notice of Summary Appeal that counsel did not file it. See Notice of Summary Appeal, 6/17/19 (lacking signature from licensed attorney). In addition, the lower court docket is devoid of the entry of an attorney’s appearance prior to this appeal, and the Notes of Testimony further confirm that counsel did not represent Auric LLC at the trial de novo. See N.T. Trial, 11/12/19, at 3.6 Finally, Mr. Garanin, a non-attorney, filed the Notice of Appeal to this Court on Auric LLC’s behalf. See Notice of Appeal, 12/12/19 (signed by Mr. Garanin).7 ____________________________________________ small claims courts may permit or require that litigants appear without an attorney and (2) stockholder derivative actions may proceed without an attorney); see also, e.g., Pa.R.C.P.M.D.J. 207(A)(3) (“Corporations or similar entities and unincorporated associations may be represented by an attorney at law, by an officer of the corporation, entity, or association, or by an employee or authorized agent of the corporation, entity, or association with personal knowledge of the subject matter of the litigation and written authorization from an officer of the corporation, entity, or association to appear as its representative.”). 6 Additionally, the trial court erred in permitting Mr. Garanin to cross-examine the City code enforcement officer. See N.T. Trial at 7-8. As a layperson, Mr. Garanin is not licensed to practice law and could not represent Appellant in a criminal case before the court of common pleas. Jablonski, 163 A.3d at 1064; cf. U.S. v. Cocivera, 104 F.3d 566 , 571-73 (3d Cir. 1996) (holding that the district court’s decision to permit defendant corporations to proceed in criminal proceedings represented only by non-attorney, chief executive officer violated Sixth Amendment right to counsel). 7 In criminal proceedings, because a notice of appeal protects a constitutional right, the Superior Court is required to accept and “docket a pro se notice of appeal[.]” Commonwealth v. Williams, 151 A.3d 621 , 624 (Pa. Super. -6- J-A29003-20 Pursuant to the law set forth above, and in light of the certified record, Auric LLC failed to invoke the jurisdiction of the court of common pleas, and therefore, the court was not competent to conduct a trial de novo or enter the Judgment of Sentence. The court’s ruling constitutes a legal nullity for lack of jurisdiction. Jablonski, 163 A.3d at 1056. Because the court of common pleas lacked jurisdiction to impose a Judgment of Sentence, rendering it a legal nullity, we are without jurisdiction to consider the issues Auric LLC purports to raise. We, therefore, quash this appeal. Garcia, 43 A.3d at 477-78. Finally, in this Court, Auric LLC filed an Application for Relief to preclude the City from oral argument in this case. See Application for Relief, 10/21/20. No oral argument occurred. Therefore, we deny the Application for Relief as moot. ____________________________________________ 2016). Here, Mr. Garanin was not a named party; thus, his filing was not a pro se notice of appeal. Further, Mr. Garanin filed the Notice of Appeal on behalf of Auric LLC, a legally distinct entity. Pursuant to Jablonski, as a non- attorney, he may not do so. See also Commonwealth v. Carroll, 517 A.2d 980 , 982 (Pa. Super. 1986) (“[A] non-lawyer cannot represent another person in court[.]”). -7- J-A29003-20 Application for Relief denied as moot; Appeal quashed. Judge Colins joins the memorandum and files a concurring memorandum in which Judge Dubow joins. Judge Kunselman files a dissenting memorandum. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 1/26/2021 -8-

2021-01-26 18:12:16.954586+00

http://www.pacourts.us/assets/opinions/Superior/out/J-A29003-20dm - 104671532126251437.pdf

J-A29003-20 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : AURIC INVESTMENT HOLDINGS, LLC : : Appellant : No. 1998 MDA 2019 Appeal from the Judgment of Sentence Entered November 15, 2019, in the Court of Common Pleas of Lackawanna County, Criminal Division at No(s): CP-35-SA-0000081-2019. BEFORE: DUBOW, J., KUNSELMAN, J., and COLINS, J.* DISSENTING MEMORANDUM BY KUNSELMAN, J.:FILED JANUARY 26, 2021 Because subject matter jurisdiction over this case lies exclusively with the Commonwealth Court, I respectfully dissent. As this Court recently noted: Subject matter jurisdiction “relates to the competency of the individual court ... to determine controversies of the general class to which a particular case belongs.” Green Acres Rehab. & Nursing Ctr. v. Sullivan, 113 A.3d 1261 , 1268 (Pa. Super. 2015). “The want of jurisdiction over the subject matter may be questioned at any time. It may be questioned either in the trial court, before or after judgment, or for the first time in an appellate court, and it is fatal at any stage of the proceedings, even when collaterally involved ....” In re Patterson's Estate, 341 Pa. 177 , 19 A.2d 165 , 166 (1941). Moreover, it is “well settled that a judgment or decree rendered by a court which lacks jurisdiction of the subject matter or of the person is null and void ....” Com. ex rel. Howard v. Howard, 138 Pa. Super. 505 , 10 A.2d 779 , 781 (1940). The question of subject matter jurisdiction may be ____________________________________________ * Retired Senior Judge assigned to the Superior Court. J-A29003-20 raised at any time, by any party, or by the court sua sponte. Grimm v. Grimm, 149 A.3d 77 , 82 (Pa. Super. 2016). Strasburg Scooters, LLC v. Strasburg Rail Road, Inc., 210 A.3d 1064 , 1067-68 (Pa. Super. 2019). The majority acknowledges that this case properly lies in the Commonwealth Court under 42 Pa.C.S.A. § 762(a)(4)(a)(B), (Majority at *1, n.1), yet my colleagues dispose of the case anyway. This court sitting en banc last year observed that we should first address whether we have jurisdiction before proceeding with any case. Mohn v. Bucks County Republican Committee, 218 A. 3d 927 , 933 (Pa. Super. 2018). Indeed, we specifically overruled a case to the extent it stood for the proposition that this Court could entertain appeals involving matters within the exclusive jurisdiction of the Commonwealth Court. Id. at 934. Although I agree with the majority’s analysis and I appreciate the desire to resolve cases expeditiously, because this case clearly lies within the exclusive jurisdiction of the Commonwealth Court, I believe we should follow our en banc precedent and transfer this matter to the Commonwealth Court. -2-

2021-01-26 18:12:17.236429+00

http://www.pacourts.us/assets/opinions/Superior/out/J-A29003-20cm - 104671532126251525.pdf

J-A29003-20 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : AURIC INVESTMENT HOLDINGS, LLC : : Appellant : No. 1998 MDA 2019 Appeal from the Judgment of Sentence Entered November 15, 2019 In the Court of Common Pleas of Lackawanna County Criminal Division at No(s): CP-35-SA-0000081-2019 BEFORE: DUBOW, J., KUNSELMAN, J., and COLINS, J.* CONCURRING MEMORANDUM BY COLINS, J.: FILED JANUARY 26, 2021 I agree with the learned dissent’s conclusion that the majority correctly determined that the Court of Common Pleas lacked jurisdiction to consider Appellant Auric Investment Holdings, LLC’s de novo appeal from its summary conviction because Appellant, a limited liability company (“LLC”), did not appear through an attorney in the lower court. However, I depart from the dissent as I do not believe that the majority exceeded its authority by resolving this appeal instead of transferring it to the Commonwealth Court, where appellate jurisdiction properly lies.1 Therefore, I join the memorandum decision of the majority in full. ____________________________________________ * Retired Senior Judge assigned to the Superior Court. 1See 42 Pa.C.S. § 762(a)(4)(i)(B) (”[T]he Commonwealth Court shall have exclusive jurisdiction of appeals from final orders of the courts of common J-A29003-20 In Mohn v. Bucks County Republican Committee, 218 A.3d 927 (Pa. Super. 2019) (en banc), this Court explained: Ordinarily, Rule [of Appellate Procedure] 741 allows this Court to accept jurisdiction of an appeal that belongs in another appellate court when the parties do not object.[2] However, even where no party objects to this Court’s exercise of appellate jurisdiction . . ., we still have discretion under rule 741 to transfer the matter to the Commonwealth Court. Indeed, we should transfer the appeal where the interests of the parties and matters of judicial economy are outweighed by other factors, such as whether our retention will disrupt the legislatively ordained division of labor between the intermediate appellate courts; or whether there is a possibility of establishing two conflicting lines of authority on a particular subject. We now hold that, in deciding whether this Court has appellate jurisdiction, we must consider all of the potential issues underlying the parties’ theories of the case. If any potential substantive issue (or participation of a particular party) invokes the Commonwealth Court’s jurisdiction, transfer is appropriate, and we must transfer prior to reaching the merits of the appeal. Id. at 934 (internal citations omitted; emphasis in original). In Mohn, the appeal concerned whether the Bucks County Republican Party acted within its authority under the Election Code in removing a ____________________________________________ pleas in . . . [a]ll actions or proceedings . . . [involving] the application, interpretation or enforcement of any . . . local ordinance or resolution[.]”). 2 Rule of Appellate Procedure 741(a) provides: (a) General rule. The failure of an appellee to file an objection to the jurisdiction of an appellate court on or prior to the last day under these rules for the filing of the record shall, unless the appellate court shall otherwise order, operate to perfect the appellate jurisdiction of such appellate court, notwithstanding any provision of law vesting jurisdiction of such appeal in another appellate court. Pa.R.A.P. 741(a). -2- J-A29003-20 committeeperson for violation of the local party rules, which fell within the Commonwealth Court’s exclusive jurisdiction over appeals concerning “the application, interpretation or enforcement of . . . statute[s] relating to elections, . . . or other election procedures.” Id. at 929-30, 934-35 (quoting 42 Pa.C.S. § 762(a)(4)(i)(C)). As “the subject matter of th[e] appeal directly implicate[d] the Election Code and the Commonwealth Court’s precedents applying the Code’s provisions,” we therefore transferred the matter to Commonwealth Court. Id. at 935. Here, by contrast, the jurisdictional rule that underlies the majority’s disposition of this appeal is not derived from a statute within the exclusive purview of the Commonwealth Court, but rather it is a common law rule that applies broadly across courts of the Commonwealth. See Walacavage v. Excell 2000, Inc., 480 A.2d 281 , 284-85 (Pa. Super. 1984). Moreover, there is no material divergence between the application of that rule in Commonwealth Court as compared to this Court. See, e.g., Skotnicki v. Insurance Department, 146 A.3d 271 , 284 (Pa. Cmwlth. 2016), aff’d on other grounds, 175 A.3d 239 (Pa. 2017) (citing Walacavage and observing that corporations may not appear in court in Pennsylvania through a non- attorney, while recognizing an exception to this rule in some administrative proceedings); Spirit of the Avenger Ministries v. Commonwealth, 767 A.2d 1130 , 1130-31 (Pa. Cmwlth. 2001) (quashing appeal brought by church pastor because he was not an attorney and thus could not represent his church, a non-profit association, in appeal); see also Martin v. Zoning -3- J-A29003-20 Hearing Board of West Vincent Township, 230 A.3d 540 , 544 (Pa. Cmwlth. 2020) (where the lower court lacks jurisdiction, the appellate court is also without jurisdiction to hear the appeal); Selig v. Zoning Hearing Board of North Whitehall Township, No. 180 C.D. 2014, 2014 WL 3586255 , at *1-*2 (Pa. Cmwlth. filed July 22, 2014) (affirming trial court dismissal of appeal where non-attorney appeared on behalf of LLC, concluding that the rule prohibiting corporations from appearing through a non-attorney applied equally to LLCs and even where the litigant is the sole-owner of the LLC).3 Therefore, “our retention [of this appeal does not] disrupt the legislatively ordained division of labor between the intermediate appellate courts” and does not create the “possibility of establishing two conflicting lines of authority on a particular subject.” Id. at 934 . Accordingly, in the narrow circumstances presented here, I believe that Mohn permits our disposition of this appeal on jurisdictional grounds instead of transferring the matter to Commonwealth Court. Judge Dubow joins this concurring memorandum. ____________________________________________ 3 While not binding precedent, this unreported panel decision may be cited for its persuasive value. See Pa.R.A.P. 126(b) (non-precedential Commonwealth Court decisions filed after January 15, 2008 may be cited for their persuasive value). -4-

2021-01-26 18:12:26.349829+00

http://www.tsc.state.tn.us/sites/default/files/jack_edward_thomas_cca_opinion.pdf

01/26/2021 IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE November 17, 2020 Session STATE OF TENNESSEE v. JACK EDWARD THOMAS Appeal from the Criminal Court for McMinn County No. 19-CR-12 Sandra N. C. Donaghy, Judge No. E2020-00044-CCA-R3-CD The Defendant, Jack Edward Thomas, pled guilty to arson and received a five-year sentence, with one year of incarceration to be followed by four years of probation. Following a hearing, the trial court ordered restitution in the amount of $4,320, with the Defendant to make installment payments of $90 per month. The Defendant appeals the restitution award, arguing that the State failed to present sufficient evidence of the victim’s pecuniary loss because the victim’s testimony was uncertain and unreliable. The Defendant also asserts that the judgment form erroneously reflects a restitution award of $7,000, which was the victim’s total pecuniary loss as determined by the trial court, because it exceeded the total amount the trial court found that the Defendant was able to pay in $90 per month installments for four years ($4,320). After reviewing the record, we conclude that the State introduced inadequate proof regarding the valuation of the loss. Accordingly, we reverse and remand for a new restitution hearing. The Defendant’s alternative argument regarding correction of the judgment form is rendered moot, though it does have merit. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed; Case Remanded D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which JAMES CURWOOD WITT, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined. Brennan M. Wingerter, Appellate Director, District Public Defenders Conference (on appeal); and C. Richard Hughes, Jr., District Public Defender, and Timothy W. Wilson, Assistant Public Defender (at sentencing), for the appellant, Jack Edward Thomas. Herbert H. Slatery III, Attorney General and Reporter; Nicholas W. Spangler, Senior Assistant Attorney General; Stephen D. Crump, District Attorney General; and Clay Collins, Assistant District Attorney General, for the appellee, State of Tennessee.  OPINION FACTUAL BACKGROUND On September 30, 2019, the Defendant entered a best interest guilty plea to one count of arson, a Class C felony. See Tenn. Code Ann. § 39-14-301 . In exchange for his plea, the Defendant received an agreed-upon sentence of five years, with four years to be served on supervised probation after service of one year in jail; the State also agreed to “no bill” a charge pending before the grand jury against the Defendant for introduction of contraband into a penal institution. The parties further agreed that the issue of restitution would be decided by the trial court after a hearing. In addition, the Defendant, at the guilty plea hearing, expressly waived preparation of a presentence report. The factual basis articulated by the State at the guilty plea hearing indicated that on October 17, 2018, the Defendant went into Charles Spurling’s trailer to collect some belongings of the Defendant’s recently deceased father; the Defendant’s father had rented the trailer from Mr. Spurling. When the Defendant arrived at the trailer, however, he realized that someone had already removed or stolen many of his father’s belongings. Upon discovering this, the Defendant “got very upset” and used a lighter to ignite clothing in the trailer. The Defendant’s mother, Mr. Robert Fritts, and Ms. Jessica Croft were all present when the trailer was set on fire; Ms. Croft identified the Defendant as the perpetrator. The trailer was “damaged significantly” from the fire. Thereafter, a restitution hearing was held on December 9, 2019. The State’s proof consisted of Mr. Spurling’s testimony. According to Mr. Spurling, he bought the three- bedroom two-bath trailer about eight years ago for approximately $4,800; however, he indicated that he got the trailer at a low price because it “needed some siding work.” He said that he spent an additional $1,500 for siding materials and $500 on labor to install the siding. In addition, Mr. Spurling testified that about five or six years ago, he and his “crew” built a “12-by-24 front porch” onto the trailer. Mr. Spurling estimated that he “spent about $4,000, . . . counting the labor and all,” constructing the porch. Mr. Spurling affirmed that he had been renting the trailer to the Defendant’s father at $250 per month for the last five or six years. When asked if he thought he would have been able to rent the trailer again after the Defendant’s father passed away, and but for its being burned, Mr. Spurling responded that he “already had somebody [who] wanted it.” In addition, when asked to estimate the value of the trailer at the time it was burned, Mr. Spurling said, “To me [the trailer] was worth $10,000 dollars.” On cross-examination, Mr. Spurling stated that he had the following additional expenses after purchasing the trailer: “$2,000 dollars to get it moved. $2,000 dollars to get it set up.” When asked about the condition of the trailer’s front porch at the time it was burned, Mr. Spurling admitted that he did not know what condition the porch was in at the -2- time because he had not been on the property or seen the trailer “probably in three years” prior to its burning. Mr. Spurling testified that the “last time” he was there, the porch was “in good shape.” Mr. Spurling acknowledged telling a detective on the day the trailer was burned that he estimated the trailer’s worth at $4,000; Mr. Spurling explained that at the time he told the detective such, he “was upset and wasn’t thinking straight” and that he had failed to take into consideration improvements to the trailer like the front porch. Mr. Spurling also admitted that during the pendency of this case, he had told the District Attorney’s Office that the trailer was worth $7,000, but Mr. Spurling insisted that $10,000 was a more accurate estimate because he had done some “more figuring.” Mr. Spurling did not have any insurance on the trailer; however, Mr. Spurling said that the Defendant’s father was supposed to have carried a renter’s policy according to their verbal agreement. Mr. Spurling explained, “Well, it’s almost impossible to get insurance on just the trailer.” Relative to ownership of the appliances in the trailer, Mr. Spurling indicated that he had bought some of them and that the Defendant’s father had provided some himself. Specifically, Mr. Spurling said that he had bought a stove, a refrigerator, and a deep freezer for the trailer “in the last couple of years.” As a final remark, Mr. Spurling confirmed that he had obtained a $13,000 personal loan by offering the trailer as collateral. The Defendant then presented his proof. According to the Defendant, his father had rented the now-burned trailer as his residence for at least “six or eight years,” and possibly as long as “ten or eleven years.” The Defendant, as well as the Defendant’s mother and uncle, had lived in the trailer with the Defendant’s father during various periods. The Defendant indicated that his father had moved out of the trailer sometime in 2018 because his father was in bad health, as well as due to the issues with the trailer that Mr. Spurling would not fix, such as the septic tank’s overflowing, “busted” water pipes, and the dilapidated condition of the porch. Though the Defendant’s father moved out of the trailer and moved in with the Defendant, his uncle remained living there. The Defendant’s father passed away in September 2018, and at some point thereafter, the Defendant’s uncle moved out of the trailer as well. The Defendant testified that over the years, he had purchased and installed several appliances in the trailer. The Defendant indicated that he made four purchases of appliances that “ended up being used” in the trailer. The Defendant produced four receipts evidencing his purchases—$235 on a water heater, $436 on a refrigerator, $300 on a washer and dryer set, and $300 on a stove and dishwasher. According to the Defendant, these appliances, to the best of his knowledge, were still present in the trailer at the time it was burned. -3-  The Defendant confirmed that he was inside the trailer on the day it burned. He stated that the trailer’s porch was so deteriorated at that time that it was impossible to enter or exit on the porch side because the porch’s roof was blocking the door. According to the Defendant, the porch was added to the trailer about ten years ago. Though the porch was in decent shape when it was built, it was sort of a “cobbled up” job and “wasn’t exactly professionally built,” in the Defendant’s opinion. As for the inside of the trailer, the Defendant said that it looked “like somebody [had] run through it with a bobcat.” He saw “holes in the walls,” “windows that were knocked out,” and pieces of dressers lying in the floor, making it impossible to walk through. When asked about his employment status, the Defendant testified that he suffered from cerebral palsy and had been on disability “[p]retty much all [his] life.” His only income was a monthly disability check for $771. The Defendant stated that he would be living on “[his] property” with his mother and daughter once released. According to the Defendant, as far as his monthly bills, he had a $400 trailer payment, about $200 in utilities, and a loan payment of somewhere between $100 and $200. He asserted that his monthly expenses “[ate] up just about all of” his monthly disability check, and he estimated that he had approximately $90 left each month after expenses. Timothy Lankford, who had been acquainted with the Defendant for twenty years or more, testified that he had been to the trailer “many times” to visit the Defendant and the Defendant’s father. Mr. Lankford said that he had last seen the trailer “[a]round the end of July” 2018, which was about three months before it burned. Mr. Lankford described the condition of the trailer at that time: “[T]here w[ere] holes all in the walls, and roaches crawling everywhere—rats[,] drop cords running all over the floor; the septic tank outside didn’t have [a] cover on it, or [any]thing.” According to Mr. Lankford, he could not even let his daughter go outside and play on that occasion because he “was afraid she might fall into the septic tank.” Relative to the condition of the front porch, Mr. Lankford said that it was not “attached to the trailer” and was “ready to fall down.” Mr. Lankford confirmed that he and his fiancée had sold several appliances to the Defendant, including a washer and dryer for $150 apiece, a stove, and a dishwasher. Mr. Lankford further testified that he had either seen the appliances installed in the trailer or had helped to install some of them. Linda Carnahan, the Defendant’s mother, confirmed that she was there the day the trailer burned, and she described the condition of the trailer at that time. Ms. Carnahan testified that the front porch “had f[allen] in” and that “the door steps were gone,” which made it was impossible to enter or exit the trailer from the porch side. The back side of the trailer, the only usable entrance, “was barely hanging on,” according to Ms. Carnahan. As for the inside of the trailer, Ms. Carnahan recalled that “[a]ll the [electrical] receptacles were hanging out the wall.” -4-  Ms. Carnahan said that she lived in the trailer with the Defendant’s father about ten years prior. At that time, “the oven on the stove” did not work, so she could not cook Thanksgiving dinner. The front porch had not been added then. According to Ms. Carnahan, even when the front porch was first built, it had “knots” in the wood, and when someone stepped on the knots, “the knots fell through and left holes.” Sidney Smith testified that he had known the Defendant’s father, and consequently the Defendant, for thirty years or more. He frequented the trailer and sometimes mowed the yard at no charge to the Defendant’s father, who was not in good health and could not afford to pay for yard service. Mr. Smith, who had last mowed the yard in June 2018, described the overall condition of the trailer as “[v]ery poor.” Mr. Smith confirmed that the porch was in “bad shape” and that the porch roof had collapsed, making it impossible to use the front door. Relative to the inside condition of the trailer, Mr. Smith said that it was likewise “[v]ery, very bad.” He testified that none of the electrical receptacles worked inside the trailer, meaning that the Defendant’s father had to operate his oxygen machines and lamps “off of drop cords” running from the meter outside. When Mr. Smith asked the Defendant’s father why he continued to live there, the Defendant’s father replied that he could not afford to live elsewhere. Mr. Smith further stated that as he attempted to leave the trailer that day, he put his hand on the trailer’s wall, which was warm to the touch and very concerning. According to Mr. Smith, the Defendant’s father indicated that he had tried to have Mr. Spurling come fix this issue, but his efforts were to no avail. At the conclusion of the proof, the trial court first recounted Mr. Spurling’s testimony and determined that Mr. Spurling’s total “expenses” for the trailer were $14,800, which included the purchase price ($4,800), the cost to move and set up the trailer ($4,000), the cost of the porch ($4,000), and the cost of the siding and labor ($2,000). The trial court noted that Mr. Spurling estimated the trailer’s worth at $10,000 at the time of the fire even though Mr. Spurling had not been to the trailer in three years and that a victim may testify regarding his property’s value. The trial court then recounted the testimony of the defense witnesses, who had seen the trailer more recently, about the deteriorated condition of the trailer before it was burned. The trial court noted that although the Defendant had purchased appliances that were inside the trailer at the time it was burned, the Defendant would only owe the money for their value to himself. The trial court then remarked, “Property depreciates with age. Property that is not properly maintained depreciates at a faster rate than property that is maintained, but nobody has given me any facts on which to draw any of those conclusions.” Observing that Mr. Spurling had given conflicting statements about the trailer’s value, the trial court commented that at the time of the fire, Mr. Spurling told the detective that the trailer was worth $4,000, though Mr. Spurling had attempted to explain how he -5- came up with that estimate, his being upset and that he had not taken into consideration any improvements to the trailer. The trial court further commented that Mr. Spurling, at some point during the pendency of this case, had told the District Attorney’s Office that the trailer was worth $7,000. The trial court acknowledged that Mr. Spurling himself had provided values between $4,000 and $10,000. Next, the trial court commented, “All of [the defense] witnesses speak to the terrible condition of the property, but nobody has provided me any photographs, or statements, or comparable listings that would allow me to attribute a factual basis to the poor condition.” The trial court remarked that “very limited facts” had been presented for the court’s consideration. The trial court then determined that Mr. Spurling’s pecuniary loss was $7,000, “tak[ing] Mr. Spurling’s three estimates of value and averag[ing] them. So $4,000 plus $7,000; plus $10,000, divided by three is $7,000.” Next, the trial court examined the Defendant’s financial resources and ability to pay. The trial court indicated that the Defendant had “not given very finite information as to his expenses.” The trial court also reviewed the affidavit of indigency in the record. The trial court noted that the Defendant stated in the affidavit that he owned property valued at $9,500 and that he had expenses for health insurance and food, but that he did not indicate any payments for rent or utilities. The trial court described the affidavit as “woefully inadequate” and then recounted the Defendant’s testimony that he received a monthly disability check of $771 and had about $90 remaining each month after expenses. Finding that the Defendant could pay his $90 left each month towards restitution, the trial court multiplied the monthly payment obligation of $90 by the number of months in the Defendant’s four-year probationary term (forty-eight), and set a total restitution award of $4,320. Following the hearing, an amended judgment form1 was entered that same day to add the restitution order. The December 9, 2019 amended judgment form provided for a total restitution amount of $7,000 (Mr. Spurling’s total pecuniary loss) and a payment schedule of $90 per month.2 Thereafter, the Defendant filed a timely notice of appeal on January 9, 2020.3 1 The trial court first entered a judgment form on November 12, 2019. 2 The December 9, 2019 amended judgment form erroneously increased the Defendant’s sentence from five years to six years, as well as increasing his corresponding probationary term from four years to five years. Thereafter, the trial court entered a corrected judgment form on May 22, 2020, which reflected the proper agreed-upon sentence and the same restitution amount of $7,000 with a $90 per month payment schedule. 3 The Defendant’s notice of appeal complies with Tennessee Rule of Appellate Procedure 20(a). It was sent to the clerk’s office by certified return receipt mail on January 7, 2020, which was within the time fixed for filing. -6-  ANALYSIS On appeal, the Defendant argues that the trial court’s restitution award should be reversed because the State did not present any documentation or reliable testimony to show the pecuniary loss of Mr. Spurling’s dilapidated trailer and that this court should order a restitution amount of $0. Alternatively, the Defendant argues that the trial court’s order of $7,000 restitution in the judgment form should be corrected because, while it was the amount the trial court determined to be Mr. Spurling’s total pecuniary loss, it was not the amount the trial court found that the Defendant was able to pay in $90 per month installments for four years ($4,320). The States responds that the trial court acted within its broad discretion by ordering monthly restitution payments limited to Mr. Spurling’s pecuniary loss and equaling what the Defendant could pay within the duration of his sentence. Responding to the Defendant’s alternative argument, the State acknowledges that the judgment form erroneously reflects a restitution amount of $7,000 and that it should be amended to reflect the proper amount of $4,320. A trial court, in conjunction with a probated sentence, may order a defendant to make restitution to the victims of the offense. See Tenn. Code Ann. § 40-35-304 (a). The amount is determined based on “the nature and amount of the victim’s pecuniary loss.” Tenn. Code Ann. § 40-35-304 (b). “Pecuniary loss,” in the context of this section, means “[a]ll special damages, but not general damages, as substantiated by evidence in the record or as agreed to by the defendant” and “[r]easonable out-of-pocket expenses incurred by the victim resulting from the filing of charges or cooperating in the investigation and prosecution of the offense[.]” Tenn. Code Ann. § 40-35-304 (e)(1)-(2). However, the restitution award “does not have to equal or mirror the victim’s precise pecuniary loss.” State v. Smith, 898 S.W.2d 742 , 747 (Tenn. Crim. App. 1994); see State v. Mathes, 114 S.W.3d 915 , 919 (Tenn. 2003). The sentencing court must consider not only the victim’s loss but also the financial resources and future ability of a defendant to pay. Tenn. Code Ann. § 40-35-304 (d); State v. Bottoms, 87 S.W.3d 95 , 108 (Tenn. Crim. App. 2001). In ordering restitution, the trial court shall specify the amount of time for payment and may permit payment or performance of restitution in installments. Tenn. Code Ann. § 40-35-304 (c). The court may not, however, establish a payment or schedule extending beyond the expiration of the sentence. Tenn. Code Ann. § 40-35-304 (g)(2). Further, upon expiration of the time of payment or the payment schedule imposed, any unpaid portion of the restitution may be converted to a civil judgment. Tenn. Code Ann. § 40-35-304 (h)(1); Bottoms, 87 S.W.3d at 108 . -7-  This court has held that we review a trial court’s restitution order for an abuse of discretion, granting a presumption of reasonableness to within range sentences reflecting a proper application of the purposes and principles of the Sentencing Act. State v. David Allen Bohanon, No. M2012-02366-CCA-R3-CD, 2013 WL 5777254 , at *5 (Tenn. Crim. App. Oct. 25, 2013) (relying on State v. Bise, 380 S.W.3d 682 , 707 (Tenn. 2012), and State v. Caudle, 388 S.W.3d 273 , 278-79 (Tenn. 2012)); see also Tenn. Code Ann. § 40-35 - 104(c)(2) (providing that restitution is authorized by the statute governing alternative sentences). “A trial court abuses its discretion when it applies incorrect legal standards, reaches an illogical conclusion, bases its ruling on a clearly erroneous assessment of the proof, or applies reasoning that causes an injustice to the complaining party.” State v. Phelps, 329 S.W.3d 436 , 443 (Tenn. 2010). While there is no set formula for determining restitution, State v. Johnson, 968 S.W.2d 883 , 886 (Tenn. Crim. App. 1997), above all, the restitution amount must be reasonable. Smith, 898 S.W.2d 742 , 747 (Tenn. Crim. App. 1994). The Defendant initially argues that the testimony from Mr. Spurling about his pecuniary loss was uncertain and unreliable, noting (1) that Mr. Spurling provided a wide range of estimates regarding the trailer’s value, anywhere between $4,000 and $10,000; (2) that Mr. Spurling could not testify as to the condition of the trailer at the time it was burned because he had not been there in three years; and (3) that the defense witnesses provided testimony about the deteriorated condition of the trailer. According to the Defendant, “the State failed entirely in its duty to present documentation of the nature and amount of Mr. Spurling’s pecuniary loss[,]” and the burden of proof was improperly shifted to the Defendant, his being faulted by the trial court “for not providing photographs of the trailer to show its condition before and after it burned.” The Defendant concludes that “the trial court’s restitution order must be reversed because the court set the total amount of $7,000 based on an arbitrary average of the various, contradictory amounts of loss claimed by the property owner[.]” The Defendant asks this court to set the restitution amount at $0. The State responds that substantial evidence establishes Mr. Spurling’s pecuniary loss of at least $4,320, arguing that Mr. Spurling gave consistent testimony at the restitution hearing that the trailer was worth $10,000, though he admitted giving prior inconsistent statements that did not account for the improvements to the trailer; the State also notes that the lowest estimate provided by Mr. Spurling was $4,000, “merely $320 shy of the total restitution payments ordered.” According to the State, based on Mr. Spurling’s testimony about the trailer’s size, amenities, purchase price, improvement investments, rent potential, and value as loan collateral, “a reasonable mind could agree with the trial court’s conclusion that [the D]efendant caused a pecuniary loss of $7,000 by burning down the trailer.” The State continues, “[M]ore to the point, a reasonable mind could easily agree that [the D]efendant caused a pecuniary loss of at least $4,320—the total of restitution payments ordered by the trial court—by burning down the trailer.” -8-  Pecuniary loss must be substantiated by the evidence in the record or agreed to by the defendant. Tenn. Code Ann. § 40-35-304 (e)(1); David Allan Bohanon, 2013 WL 5777254 , at *6. Because an order of restitution may be converted to a civil judgment, the burden of proof may not fall far below that required in a civil suit in order to prevent criminal courts from becoming “a haven for ‘victims’ who think their losses might not meet the level of proof necessary to recover in a civil case.” Bottoms, 87 S.W.3d at 108 (quoting State v. Larry Lee McKinney, No. 03C01-9309-CR-00307, 1994 WL 592042 , at *4 (Tenn. Crim. App. Oct. 26, 1994)). The victim must present sufficient evidence to allow the trial court to make a reasonable determination of loss. Bottoms, 87 S.W.3d at 108 . “While a victim’s testimony alone may be sufficient to establish special damages for purposes of restitution, general statements regarding the amount of loss without explanation as to how the value was determined are insufficient.” David Allan Bohanon, 2013 WL 5777254 , at *7; see State v. Jerry Lee Truette, No. M2005-00927-CCA-R3-CD, 2006 WL 2000540 , at *3 (Tenn. Crim. App. July 19, 2006) (quoting State v. Charles R. Turner, No. M2003-02064-CCA-R3-CD, 2004 WL 2775485 , at *8 (Tenn. Crim. App. Dec. 1, 2004)). Documentation supporting testimony regarding loss is “helpful.” State v. Jennifer Murray Jewell, No. M2015-02141-CCA-R3-CD, 2017 WL 65242 , at *8 (Tenn. Crim. App. Jan. 6, 2017) (citing State v. Tarojee M. Reid, No. M2014-01681-CCA-R3- CD, 2015 WL 3989127 , at *3 (Tenn. Crim. App. June 30, 2015) (quoting State v. Wendell Gary Gibson, No. M2001-01430-CCA-R3-CD, 2002 WL 1358711 , at *2 (Tenn. Crim. App. June 24, 2002))). Furthermore, an order of restitution may not be based on arbitrary estimates. Jerry Lee Truette, 2006 WL 2000540 , at *4. In his initial brief, the Defendant, in making his argument that Mr. Spurling’s testimony is unreliable and unsupported by documentation, cites to the subsection of the restitution statute that requires documentation in the presentence report to substantiate the nature and amount of loss to the victim. That subsection reads, “Whenever the court believes that restitution may be proper or the victim of the offense or the district attorney general requests, the court shall order the presentence service officer to include in the presentence report documentation regarding the nature and amount of the victim’s pecuniary loss.” Tenn. Code Ann. § 40-35-304 (b). Insofar as the Defendant’s argument can be read as an objection to the lack of documentation in the presentence report, we agree with the State that the Defendant cannot now claim error when he affirmatively waived preparation of the pre-sentence report at the guilty plea hearing. See Tenn. R. App. P. 36(a) (providing that “[n]othing . . . shall be construed as requiring relief [to] be granted to a party responsible for an error or who failed to take whatever action was reasonably available to prevent or nullify the harmful effect of an error”). Moreover, in his reply brief and during oral argument, the Defendant seemingly changed course, emphasizing merely a lack of documentation by Mr. Spurling at the restitution hearing, and not an affirmation that documentation in the presentence report was required to support a restitution award. Finally, this court has consistently held that any error in technical noncompliance with the -9- documentation requirement of the restitution statute is harmless when the defendant has the opportunity to respond to and contest any documentation and when the defendant is given “full consideration under the law regarding restitution.” State v. Moore, 814 S.W.2d 381 , 384 (Tenn. Crim. App. 1991); see Jennifer Murray Jewell, 2017 WL 65242 , at *8. As noted above, documentation supporting testimony regarding loss is “helpful,” but such is not required. See Jennifer Murray Jewell, 2017 WL 65242 at *8; Tarojee M. Reid, 2015 WL 3989127 , at *3. Relative to whether the State presented sufficient evidence of Mr. Spurling’s pecuniary loss, we find guidance in State v. Jennifer Murray Jewell. In that case, the defendant, who served as an office manager, pled guilty to one count of theft of property against her employer, and the State presented testimony from two of the victim’s employees regarding the approximate amounts of loss. Jennifer Murray Jewell, 2017 WL 65242 , at *1, *9. The trial court subsequently determined that the amount of the victim’s loss was $372,000 and imposed a restitution award of $100,000. Id. at *4 . This court held that “origin of” the figure for the victim’s total loss was “completely unclear given the more specific testimony regarding categories of loss.” Id. at *9 . This court, utilizing the abuse of discretion standard of Bise, concluded that there was an inadequate explanation as to how this figure was calculated and that the trial court could not have reliably found the amount of the loss. Id. at *9-10 . We reversed and remanded for a new hearing and a new determination regarding the value of the loss despite acknowledging that a restitution amount of $100,000 was far below the claimed value of the loss at $372,000. Id. at *10 . In rendering its decision, the Jewell court also relied upon the cases which follow. Id. at *8-9 . In State v. David Allan Bohanon, two victims testified to their losses by theft. While the victims’ testimony regarding specific stolen items, accompanied by the victims’ estimation of the value of the items, was held to be sufficient evidence to uphold the restitution award, this court concluded that the testimony of one victim that he was missing tools valued at $10,000 was insufficient to sustain the award as to that loss. David Allan Bohanon, 2013 WL 5777254 , at *7. Applying the Bise abuse of discretion standard, this court reversed the award regarding the $10,000 in tools, noting that the victim had at first testified the tools were worth $50,000 and that he provided no specific evidence regarding which tools were missing, merely stating that they were “expensive” and “everything a mechanic would need.” Id. We concluded that this testimony was insufficient to allow the trial court to make a reasonable or reliable determination of value regarding these items. Id. Ultimately, a new restitution hearing was ordered. Id. at *8 . In State v. Bottoms, this court, applying the appropriate de novo standard of review at that time, likewise found the amount of restitution unsubstantiated. 87 S.W.3d at 108 . The victim in Bottoms testified that he completed repairs after an arson at this rental house - 10 - and that $28,000 was a “relatively” accurate assessment of the cost. Id. at 107 . He provided an estimate from a contractor for approximately $28,600 worth of repairs, but only provided an invoice for approximately $6,096 of repairs and testified that he had completed many repairs himself and had not brought his other bills. Id. This court concluded that the victim’s actual loss was “uncertain[]” and that the trial court could not determine the loss with reliability. Id. at 109 . Like in Jennifer Murray Jewell, this court, despite the fact that the $10,000 restitution award had been set far below the claimed value of the loss of $28,000, reversed and remanded for a new hearing and determination of the value of the loss. Id. In State v. Smith, this court concluded that the estimates of the arson victim’s loss regarding value and damages were not adequately proven. 898 S.W.2d at 747 (also conducting de novo review). While the victim provided an estimate regarding the value of the destroyed residence, the value of its contents, the amount of damages, and the amount that the insurance company paid, the victim did not provide an “explanation as to how these figures were calculated,” and there was a possibility that the values were “highly inflated.” Id. We remanded for a new restitution hearing for the trial court to “determine the actual loss, based on realistic values, the amount the [defendant was] paid, and the [defendant’s] expenses that [were] reasonably incurred.” Id. In line with these cases, we agree with the Defendant that there was insufficient evidence presented to establish the pecuniary loss to Mr. Spurling at the time the trailer was burned. Mr. Spurling testified that he bought the three-bedroom two-bath trailer about eight years earlier for approximately $4,800. Relative to the trailer’s value at the time of the fire, Mr. Spurling gave widely varying estimates, providing three different estimates of $4,000, $7,000, and $10,000. At the restitution hearing, Mr. Spurling insisted that $10,000 was a more accurate estimate because he had done some “more figuring.” Ultimately, the trial court credited Mr. Spurling’s testimony that his initial figures did not include the improvements to the trailer that Mr. Spurling had performed over the years, and then, with little further explanation, the trial court took Mr. Spurling’s three estimates and averaged them to determine Mr. Spurling’s total pecuniary loss, arriving at the $7,000 figure. The trial court itself remarked that “very limited facts” had been presented for the court’s consideration to properly determine the pecuniary loss to Mr. Spurling. As stated above, an order of restitution may not be based on arbitrary estimates. Jerry Lee Truette, 2006 WL 2000540 , at *4. Moreover, a victim’s testimony regarding the amount for which the property was purchased years ago was also held to be insufficient to sustain the award of restitution because the value at the time of the offense was not established. State v. John Edward Lewis, No. M2014-01912-CCA-R3-CD, 2015 WL 3541424 , at *3 (Tenn. Crim. App. June 5, 2015). - 11 -  In addition, the trial court noted that “[p]roperty depreciate[d] with age” and that property not “properly maintained depreciate[d] at a faster rate.” The trial court then stated that “nobody ha[d] given . . . any facts on which to draw any of those conclusions” regarding depreciation of the trailer, as well as commenting, “All of these witnesses speak to the terrible condition of the property, but nobody has provided me any photographs, or statements, or comparable listings that would allow me to attribute a factual basis to the poor condition.” The Defendant correctly observes that as the victim of the arson, it was Mr. Spurling’s responsibility to provide sufficient facts about his property for the trial court to make a reasonable determination about the amount of pecuniary loss, not the Defendant’s. See Bottoms, 87 S.W.3d at 108 . Most importantly, while the value of property can be established through the victim’s testimony alone, Mr. Spurling admitted that he had not seen the trailer in three years and had no idea what condition it was in at the time it burned. Therefore, Mr. Spurling’s estimates could not have been based upon the value of the trailer at the time of the offense. See Lewis, 2015 WL 3541424 , at *3. The only testimony of the condition of the trailer at the time of the fire came from the defense witnesses, who testified consistently with each other about the very poor condition of the trailer and the porch. Accordingly, we conclude that Mr. Spurling’s testimony regarding his actual loss at the time of the offense was uncertain and that the trial court could not determine the loss with reliability. The question of the appropriate remedy remains. This case is strikingly similar to John Edward Lewis. There, the defendant was convicted of vandalism of property, a mobile home. On appeal, this court found that the only proof presented at the sentencing hearing “as to the value of the damaged property was the amount [the victim] paid to purchase the property in 2008” and that “[n]o evidence was presented as to the value of the mobile home at the time of the offense or as to the cost to repair the home.” John Edward Lewis, 2015 WL 3541424 , at *3. Because there was no proof in the record evidencing the value of the victim’s mobile home at the time of the offense, we remanded for a new restitution hearing. Id. The Defendant argues that we should vacate the restitution award entirely due to Mr. Spurling’s lack of knowledge of the trailer’s condition at the time of the offense and impose a restitution amount of $0. The State argues that we should affirm because the lowest estimate of the trailer’s worth provided by Mr. Spurling was $4,000, “merely $320 shy of the total restitution payments ordered.” However, neither party’s assertion for an appropriate remedy is supported by our analysis of the caselaw. In all of the cases cited above, this court remanded for a new hearing to determine the amount of pecuniary loss, even in those cases where the restitution award was much lower than the claimed loss. Given that all of these cases remanded for a new hearing, we decline to part ways from this remedy, though it may be extremely difficult for Mr. Spurling to establish at the time of - 12 - the offense his pecuniary loss beyond arbitrary estimates if he had not been to the trailer in three years and is unable to provide any additional information at the new hearing. Relative to the appropriate remedy, we also feel constrained to note that pursuant to Tennessee Code Annotated section 40-35-304(f), a defendant, victim, or district attorney may petition the trial court at any time, and the trial court may hold a hearing and, if appropriate, waive, adjust, or modify its order regarding restitution. Accordingly, we reverse the restitution order of the trial court and remand for a new restitution hearing. Were we not reversing the restitution award, we would agree with the parties that the judgment form reflects an improper amount of restitution, $7,000. While this amount was found to be the total pecuniary loss to Mr. Spurling, it was not the amount of the restitution award after considering the Defendant’s ability to pay, $4,320.4 Moreover, the payment of this amount would extend beyond the expiration of the Defendant’s probationary sentence. CONCLUSION Upon review, we reverse the trial court’s restitution award. We remand the case for a new restitution hearing and reconsideration as to Mr. Spurling’s pecuniary loss regarding the trailer at the time of the offense and any additional information regarding the Defendant’s financial resources and future ability to pay. D. KELLY THOMAS, JR., JUDGE 4 The record supports the conclusion that the trial court weighed and considered the Defendant’s ability to pay the ordered restitution. Although the Defendant in his brief takes umbrage with this determination, he does not raise the trial court’s decision in this regard as an issue on appeal. However, if necessary, this issue may also be revisited upon remand. - 13 -

2020-12-01 15:09:17.920438+00

http://www.judiciary.state.nj.us/attorneys/assets/opinions/appellate/unpublished/a2755-17.pdf

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-2755-17T1 STATE OF NEW JERSEY, Plaintiff-Respondent, v. QUINNIZEL J. CLARK, Defendant-Appellant. _________________________ Argued October 7, 2020 – Decided December 1, 2020 Before Judges Fuentes, Rose, and Firko (Judge Rose concurring in part and dissenting in part). On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 17-01- 0033. Daniel S. Rockoff, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Daniel S. Rockoff, of counsel and on the briefs). Valeria Dominguez, Deputy Attorney General, argued the cause for respondent (Gurbir S. Grewal, Attorney General, attorney; Kayla E. Rowe, Deputy Attorney General, of counsel and on the brief).  Appellant filed a pro se supplemental brief. PER CURIAM Defendant Quinnizel J. Clark appeals from a judgment of conviction for murder and unlawful possession of a weapon and the life sentence imposed by the trial court. Based on our review of the record in light of applicable law, we are convinced that the cumulative effect of errors committed during the trial rendered the trial unfair. Accordingly, we reverse defendant's conviction, vacate his sentence, and remand for further proceedings. I. These are the facts adduced at trial. Defendant and the victim, sixty-eight- year-old James Dewyer, who was physically disabled and homeless, were acquaintances who knew each other from a circle of individuals who stayed at the Riverfront Motel located on Route 130 in Mansfield Township and gambled together. Defendant resided at the Riverfront Motel, a state-run low-income shelter. Dewyer was a retired corrections officer with a substantial pension and was known to give rides and spend time with individuals living at the Riverfront Motel. Dewyer was defendant's gambling companion, and defendant called him "Jimmy Dean." Both men enjoyed betting horse races. A-2755-17T1 2  On January 3, 2016, at approximately 4:17 p.m., Sergeant Daniel Pachuta of the Mansfield Township Police Department responded to a 9-1-1 call made from Kinkora Road between Stratton Avenue and Third Street on a one-hundred- foot-long unfinished side street called Monica Drive. Sergeant Pachuta arrived at the location and met the caller, Dan Michal, who pointed to a parked vehicle facing the woods. Michal testified that he approached the vehicle and saw a man, later identified as Dewyer, inside with his head slumped as if he was "drunk" or "sleeping." Sergeant Pachuta approached the vehicle and saw Dewyer in an upright position in the passenger seat facing forward wearing his seatbelt but unresponsive to attempts to get his attention. Dewyer was warm to the touch but had no pulse and was not breathing. When paramedics arrived and lifted Dewyer out of the car seat, blood poured out of a wound to his abdomen. Dewyer never regained consciousness. Paramedics informed Sergeant Pachuta that Dewyer was shot multiple times. At trial, the medical examiner testified Dewyer sustained a prominent gunshot wound on his left side underneath his ribs. Five bullets created three overlapping entrance wounds, which left a large hole in the side of Dewyer's body. Near his underarm was a "two-and-a-half-inch zone of dense gunpowder A-2755-17T1 3 stippling and soft tissue abrasion," meaning the gun "was stuck into Dewyer's side and touching it when it was discharged." In addition, the medical examiner testified that Dewyer had used heroin within thirty minutes of his death. The officers concluded that three cartridges found inside the vehicle were all fired from the same weapon. However, the weapon was never recovered. Investigator Tim Horne from the Burlington County Prosecutor's Office took over the case and collected evidence, including Dewyer's wallet containing his driver's license, his retirement credentials, a one-dollar bill, and a Delaware Park Casino betting ticket from the morning stamped 9:52 a.m. Several officers went to the casino and obtained video footage depicting Dewyer. The footage also showed a black male, later identified as defendant, buying the betting ticket and handing it to Dewyer. The investigator also found a Burlington County Jail bail receipt in Dewyer's glove compartment box, indicating Dewyer had posted $1500 bail for defendant on October 30, 2015. Video footage obtained from the Riverfront Motel, where defendant was registered, showed Dewyer arriving in his vehicle at 7:00 a.m. on the day of the murder. Defendant emerged from a residential area at 7:08 a.m., and the two drove away. They arrived at the casino at 8:34 a.m. as confirmed by video footage. At 11:01 a.m., defendant and Dewyer left the casino and returned to A-2755-17T1 4 the Riverfront Motel at 12:21 p.m. in Dewyer's vehicle, a silver Dodge Avenger. Defendant drove Dewyer's vehicle because Dewyer complained of leg pain. After returning to the Riverfront Motel, Dewyer remained in his vehicle and smoked a cigarette while defendant went to his room for about an hour. At 1:34 p.m., defendant placed a backpack on the back seat, and the two drove away. On January 13, 2016, officers interrogated defendant. In a recorded statement, defendant told the officers that on January 3, 2016, around 1:00 p.m. to 1:30 p.m., Dewyer dropped him off in the Roebling section of Florence because defendant had to complete a transaction in that area. Defendant thought Dewyer planned to pick up young women afterwards, something that he "always" did. According to defendant, he walked back to the Riverfront Motel in twenty or thirty minutes after he completed his transaction in Roebling. Video footage from the Riverfront Motel showed defendant returning at 3:37 p.m. with an unidentified woman. They left together in a vehicle shortly thereafter, and defendant returned alone eight minutes later at 3:45 p.m. Defendant had the backpack he carried when he entered Dewyer's vehicle earlier that morning. Dewyer was not with defendant and the woman. When officers pressed defendant for an alibi, he repeatedly requested assistance of counsel , but his request was not heeded. A-2755-17T1 5  The surveillance footage from the Riverfront Motel showed defendant wearing dark blue jeans with white sneakers and a light-colored long sleeve shirt when he and Dewyer returned from Delaware. Later in the afternoon, defendant was depicted on surveillance footage wearing a dark colored hoodie. When he returned to the motel at 3:28 p.m., he was still wearing a dark colored hoodie, dark pants, and white sneakers. Although defendant told law enforcement officers that he was in Roebling, surveillance footage reviewed by the officers did not bear out his claim. When questioned about where he was after leaving the Riverfront Motel, defendant could not provide an alibi. Defendant simply told investigators that Dewyer dropped him off in Roebling because he had something to do there. On January 18, 2017, defendant was charged under indictment number 17- 01-0033 with first-degree murder, N.J.S.A. 2C:11-3(a)(1) and 2C:11-3(a)(2) (count one); second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1) (count two); and second-degree unlicensed possession of a handgun, N.J.S.A. 2C:39-5(b)(1) (count three). Prior to trial, defendant moved first to suppress his July 8, 2016 statement and later to suppress his January 13, 2016 statement to the police. Defendant argued that his January 13, 2016 statement should be suppressed because he was A-2755-17T1 6 effectively under arrest at the time of interrogation, and the failure of the officers to inform him of his custodial status impacted a knowing, voluntary, and intelligent waiver of his Miranda1 rights. The trial court previously denied defendant's motion to suppress his July 8, 2016 statement, noting in an oral decision that it's "[seventy-four] pages of denial" and "wouldn't harm the defendant." In a written memorandum and order, the trial court also denied defendant's motion to suppress his January 13, 2016 statement. At the time of his interrogation on January 13, 2016, there was an outstanding municipal warrant for defendant's arrest, which police did not disclose prior to questioning him. Before the interrogation began, the police informed defendant, "You're not under arrest, but it's a murder investigation." Defendant consented to the interrogation. However, when the interrogation ended, the officers arrested defendant on the outstanding municipal warrant. The trial court concluded that "the decision of the police to withhold information about the outstanding municipal warrant had no bearing on defendant's knowing, voluntary and intelligent waiver of his rights." 1 Miranda v. Arizona, 384 U.S. 436 (1966). A-2755-17T1 7  During the subsequent jury trial, the State presented two pieces of evidence to challenge defendant's claim that he left Dewyer in Roebling. Sandra and Jeffrey Carver testified that at 2:30 p.m. on January 3, 2016, they drove their tractor past a man walking along Kinkora Road where Dewyer was found dead. The Carvers noticed a silver car pulled to the side of an unfinished road between Second and Third streets. They slowed down and saw a man walking up Kinkora Road. Sandra2 described a "large, tall" man, "over six f[ee]t and over 200 pounds," "in blue jeans," carrying a "black" backpack, and possibly wearing a "red," "orange," or "yellow" hoodie. She further testified that the man "definitely was not black," but "could have been a mix." 3 Jeffrey testified that the man wore "dark pants," a "dark jacket," a "black backpack" with a "silver trim," and "a little bit of red or bright color around the neck area," or "red and white," possibly from a "hooded sweatshirt." According to Jeffrey, the man's "skin coloring was a light tan. He wasn't a white person." After loading their tractor onto their pickup truck, the Carvers stopped to see if 2 Because these two witnesses have the same last name, we will refer to them by their first names. We do not intend any disrespect. 3 We recognize the word "mix" in this context may be considered offensive or racially insensitive. We have nevertheless decided to quote the witness' testimony verbatim in the interest of clarity. A-2755-17T1 8 anyone was inside the oddly parked silver car. They did not notice anyone in the silver car and went home. The Carvers never identified defendant in court or from a photo array, or in any other type of identification procedure. Nonetheless, during his summation to the jury, the assistant prosecutor argued that based upon the Carvers' "description," the person they saw that day "was the defendant." The State also presented other witnesses, including John Hauger, an FBI special agent, who was qualified and admitted, without objection, as an expert witness "in the area of cellphone technology, cell cite analysis and cellular records analysis." Hauger testified about defendant's historical cellular site data on the day of the murder. Defendant voluntarily gave his cellphone number to the investigating officers. After reviewing defendant's cellphone records, Hauger opined that between 2:06 p.m. and 3:09 p.m., defendant's cellphone was in a cellular coverage area that encompassed the crime scene. Of the twenty - three calls and text messages made from defendant's cellphone on the afternoon in question, Hauger concluded "none" were "made in the section that included Kinkora Road and the crime scene," and "none" were "generated in Roebling." A Riverfront Motel resident, Charlene Rivera, overheard a conversation between defendant and Dewyer a few weeks before the murder. According to A-2755-17T1 9 Rivera, she heard the two men "hollering and screaming" about money in front of her motel room door. Rivera also testified that she gave Dewyer coffee before he and defendant left for the casino, and she gave Dewyer lunch when they returned at 12:21 p.m. She testified the two appeared "friendly" and "normal." Nancy Cristinzio, another Riverfront Motel resident, testified that Dewyer lived in his vehicle, but was at the motel on a daily basis giving rides to residents. Cristinzio and Rivera both denied ever seeing defendant with a firearm . But Cristinzio heard defendant talking about a firearm in the several weeks preceding Dewyer's murder. Cristinzio testified that defendant asked Dewyer to retrieve a firearm from room number eleven, and Dewyer refused to do so. At least part of the time, defendant resided in room eleven. Defendant did not testify at trial. During his summation to the jury, the prosecutor referred to the video recording from the casino, depicting defendant and Dewyer, in a manner intended to malign defendant's character: Now, [defendant] acknowledges James Dewyer has these bad legs, he could hardly get around. But does his good friend, Quinnizel Clark, drop [Dewyer] off at the front door of that casino? No, he goes and parks, gets out of the car, leaves [Dewyer] in the car, walks into the casino, is gambling for a period of time and then finally you see [Dewyer] come walking out. He doesn't try to help him into the casino. He doesn't try A-2755-17T1 10  to walk with him. He doesn't stay with him. He's not his friend. He's using him. Without any evidential basis in the record, the prosecutor then told the jury that defendant changed his clothes when he arrived at the Riverfront Motel the afternoon of the murder to avoid identification. The prosecutor argued: "Well, why in that short nine minute period of time does he have to change clothes? Well, I submit to you, he just killed somebody and he's trying not to be seen in the same clothing so he can't be identified." Then, without defendant having the benefit of counsel at the time he gave his recorded statement, the prosecutor argued to the jury: You heard his statement, when he tells Detective Raynor he's down there doing business in Roebling, Detective Raynor practically begged him, well, who you were with, tell us you're with, we'll go out, track it down and talk to this person. No, I'm not gonna tell you who I was with. [Emphasis added.] The jury convicted defendant of murder, second-degree possession of a handgun for an unlawful purpose, and second-degree unlawful possession of a handgun. The sentencing judge imposed life imprisonment subject to the requirements of the No Early Release (NERA), N.J.S.A. 2C:43-7.2. This appeal followed. A-2755-17T1 11  II. Defendant's counsel presents the following arguments for our consideration: POINT I THE COURT ERRED BY NOT GIVING ANY IDENTIFICATION INSTRUCTION AFTER THE PROSECUTOR ARGUED THAT EYEWITNESSES SAW [DEFENDANT] AT THE HOMICIDE SCENE. (Not Raised Below). 1. THE PROSECUTOR'S THEORY AT TRIAL WAS THAT, DESPITE THE DEFENDANT'S DENIAL, EYEWITNESSES SAW HIM AT THE CRIME SCENE. 2. THE COURT FAILED TO INSTRUCT JURORS THAT THE PERPETRATOR'S IDENTITY WAS AKIN TO AN ELEMENT WHICH THE STATE HAD THE BURDEN OF PROVING BEYOND A REASONABLE DOUBT. 3. THE COURT FAILED TO INSTRUCT JURORS ON ESTIMATOR VARIABLES, WHICH WERE ESSENTIAL TO EVALUATING THE RELIABILITY OF THE EYEWITNESS TESTIMONY. 4. THE COURT'S FAILURE TO ADMINISTER ANY IDENTIFICATION INSTRUCTION WAS CLEARLY CAPABLE OF CAUSING AN UNJUST RESULT. A-2755-17T1 12  POINT II THE COURT ERRED BY ADMITTING AN FBI AGENT'S OPINION THAT CELLPHONE LOCATION DATA WAS INCULPATORY. 1. THE CELLPHONE LOCATION DATA SHOULD HAVE BEEN SUPPRESSED, BECAUSE IT WAS THE POISONED FRUIT OF INTERROGATORS' FAILURE TO HONOR THE DEFENDANT'S UNEQUIVOCAL INVOCATION OF HIS RIGHT TO COUNSEL. 2. AS IN STATE V. CARRERA,4 AN FBI AGENT'S OPINION DISPARAGING THE DEFENSE SHOULD HAVE BEEN EXCLUDED AS UNRELIABLE. THE AGENT FAILED TO FOLLOW BEST PRACTICES, AND IMPARTIAL EVIDENCE CONTRADICTED HIM. 3. BECAUSE THE STATE COULD NOT PROVE THAT THE DEFENDANT TOOK THE PHONE WITH HIM WHEN HE LEFT THE MOTEL, THE CELLPHONE EVIDENCE WAS NOT PROBATIVE OF THE DEFENDANT'S 4 State v. Richard Carrera, A-5486-16 (App. Div. Aug. 26, 2019) (slip. op.), is an unpublished opinion. Pursuant to Rule 1:36-3, "no unpublished opinion shall constitute precedent or be binding upon any court." Unreported decisions "serve no precedential value, and cannot reliably be considered part of our common law." Trinity Cemetery v. Wall Twp., 170 N.J. 39 , 48 (2001) (Verniero, J. concurring). A-2755-17T1 13  LOCATION, AND SHOULD HAVE BEEN EXCLUDED. 4. THE COURT ALSO ERRED BY ADMITTING THE FBI AGENT'S MISLEADING BLOWN-UP MAP IN SUPPORT OF HIS OPINION TESTIMONY. 5. THE PREJUDICIAL IMPACT OF THE FBI AGENT'S OPINION WAS CLEARLY CAPABLE OF CAUSING AN UNJUST RESULT. POINT III THE COURT ERRED BY LETTING JURORS HEAR, WITHOUT ANY LIMITING INSTRUCTION, THAT THE DEFENDANT EXERCISED HIS RIGHTS TO COUNSEL, BAIL, AND THE KEEPING OF A FIREARM IN THE HOME. (Not Raised Below). 1. THE COURT ERRED BY ADMITTING EVIDENCE, WITHOUT ANY LIMITING INSTRUCTION, THAT THE DEFENDANT INVOKED HIS FIFTH AMENDMENT RIGHT TO COUNSEL WHEN INTERROGATORS ASKED HIM ABOUT HIS ALIBI. 2. THE COURT ERRED BY ADMITTING EVIDENCE, WITHOUT ANY LIMITING INSTRUCTION, THAT THE DEFENDANT HAD PREVIOUSLY BEEN INCARCERATED AND WAS OUT ON BAIL AT THE TIME OF THE OFFENSE. A-2755-17T1 14  3. THE COURT FAILED TO INSTRUCT THE JURY THAT IT IS LEGAL TO KEEP EVEN AN UNLICENSED FIREARM IN ONE'S OWN RESIDENCE. POINT IV A RESENTENCING REMAND IS REQUIRED BECAUSE THE COURT IMPOSED A LIFE TERM WITHOUT EXPLAINING WHY THE [THIRTY]- YEAR STATUTORY MINIMUM WOULD NOT SUFFICE. In his pro se supplemental brief, defendant presents the following arguments: POINT I PROSECUTION COMMITTED MISCONDUCT AND BRADY5 VIOLATION BY FAILING TO PROVIDE AUDIO TRANSCRIPTS OF ALL WITNESSES TO THE DEFENSE. TRIAL COURT ERRED IN ADMITTING WITNESS TESTIMONY OF NANCY CHRISTINZIO AND CHARLENE RIVERA, WHERE THE DEFENSE HAD NOT RECEIVED THEIR TRANSCRIPTS. TRIAL COURT ERRED IN ALLOWING THE PROSECUTION TO VIOLATE SEVERAL N.J. COURT RULES WHICH CAUSED A MANIFEST DENIAL OF JUSTICE UNDER THE LAW. POINT II TRIAL COURT ERRED BY FAILING TO BASE RULINGS "ON THE LAW" AND "ON THE FACTS." 5 Brady v. Maryland, 373 U.S. 83 (1963). A-2755-17T1 15  TRIAL COURT ERRED IN BASING RULINGS OFF OF FACTS NOT IN EVIDENCE. TRIAL COURT ERRED IN ABUSING ITS DISCRETION. POINT III TRIAL COURT ERRED BY ABUSING ITS DISCRETION WITH BIASED AND HIGHLY PREJUDICIAL STATEMENTS THAT DENIED THE DEFENDANT A FAIR TRIAL. POINT IV TRIAL COURT ERRED VIOLATING DEFENDANT'S FIFTH, SIXTH, AND FOURTEENTH AMENDMENT RIGHTS GUARANTEED BY THE UNITED STATES CONSTITUTION. Defendant challenges his conviction based on numerous claims concerning alleged errors by the trial court, most of which were not raised before the trial court. Therefore, unless otherwise noted, we consider the alleged errors under the plain error standard. R. 2:10-2. "'A defendant who does not raise an issue before a trial court bears the burden of establishing that the trial court's actions constituted plain error'" because "'to rerun a trial when the error could easily have been cured on request[] would reward the litigant who suffers an error for tactical advantage either in the trial or on appeal.'" State v. Santamaria, 236 N.J. 390 , 404-05 (2019) (quoting State v. Ross, 229 N.J. 389 , 407 (2017)). A-2755-17T1 16  Under the plain error standard's "high bar," id. at 404 , "[w]e may reverse . . . only if the error was 'clearly capable of producing an unjust result,'" Ross, 229 N.J. at 407 (quoting R. 2:10-2). "The possibility of an unjust result must be 'sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached.'" Ibid. (quoting State v. Williams, 168 N.J. 323 , 336 (2001)). Although we are compelled to assess most of defendant's arguments under the plain error standard, we must also consider the cumulative effect these errors had on defendant's fundamental right to a fair trial. State v. Jenewicz, 193 N.J. 440 , 473 (2008). In doing so, we must determine whether "the probable effect of the cumulative error was to render the underlying trial unfair," State v. Wakefield, 190 N.J. 397 , 538 (2007), thereby "dictat[ing] the grant of a new trial before an impartial jury." Ibid. (quoting State v. Orecchio, 16 N.J. 125 , 129 (1954)). For the first time on appeal, defendant contends the trial court erred by not giving an identification instruction after the prosecutor presented evidence and argued in summation that the Carvers saw defendant at the crime scene. More particularly, defendant argues the State had the burden of proving the perpetrator's identity beyond a reasonable doubt but instead convicted him on A-2755-17T1 17 purely speculative proofs in violation of his Fifth, Sixth, and Fourteenth Amendment rights. U.S. Const. Amends V, VI, and XIV and N.J. Const. Art. I, para.10. Defendant further asserts the prosecutor reinforced the notion that the Carvers saw him at the homicide scene when in fact no identification procedure ever took place during the course of the investigation, and no in -court identification of defendant was made. The Carvers merely testified in a general manner about their observations of a man they saw on the day in question near the murder scene. The prosecutor noted in his summation that there were no eyewitnesses to Dewyer's murder but defendant was the man the Carvers saw based on the timeline defendant provided, his lack of cellphone activity at that time, and what the Carvers said they saw about a man matching defendant's description. “[I]f the defendant does not object to the charge at the time it is given [. . .] there is a presumption that the charge was not error and was unlikely to prejudice [his] case.” State v. Singleton, 211 N.J. 157 , 182 (2012) (citing State v. Macon, 57 N.J. 325 , 333-34 (1971)). The appellate court reviews the jury charge for plain error and evaluates the charge as a whole. State v. Mann, 132 N.J. 410 , 417-18 (1993). Model Jury Charges (Criminal) "Identification: No In- A-2755-17T1 18 or Out-of-Court Identification" (approved October 26, 2015) provides for a jury instruction when defendant's defense is that he or she did not commit the crime, and the State is seeking to prove his or her guilt without adducing direct identification evidence: (Defendant), as part of his/her general denial of guilt, contends that the State has not presented sufficient reliable evidence to establish beyond a reasonable doubt that he/she is the person who committed the alleged offense. The burden of proving the identity of the person who committed the crime is upon the State. For you to find this defendant guilty, the State must prove beyond a reasonable doubt that this defendant is the person who committed the crime. The defendant has neither the burden nor the duty to show that the crime, if committed, was committed by someone else, or to prove the identity of that other person. You must determine, therefore, not only whether the State has proven each and every element of the offense charged beyond a reasonable doubt, but also whether the State has proven beyond a reasonable doubt that this defendant is the person who committed it. Here, the trial court explained the difference between direct and circumstantial evidence to the jurors and that they should carefully scrutinize any circumstantial evidence. Further, the trial court explained the elements of murder the State had to prove beyond a reasonable doubt "that the defendant caused [Dewyer's] death" and "the defendant did so purposely or knowingly." Defense counsel agreed to the jury charge and acknowledged she had no A-2755-17T1 19 objections. Nonetheless, we are concerned that the Carvers' testimony was impermissibly suggestive and prejudicial to defendant, and the jury may have erroneously drawn a conclusion that he was the perpetrator. Although not briefed by the parties, we are convinced that on remand, the trial court should conduct a Rule 104(a) hearing outside the presence of the jury as to the admissibility of Sandra and Jeffrey Carver's testimony. 6 Indeed, Rule 104(a) provides for a hearing when the admissibility of evidence "is in issue." A Rule 104(a) hearing addresses "preliminary evidence questions that are the exclusive province of the court . . . ." See Biunno, Current N.J. Rules of Evidence, comment on Rule 104(a) (2020-2021). The matter under review does not fall under the ambit of United States v. Wade, 388 U.S. 218 (1967), 7 because it does not involve show-up identification. Defense counsel did not object to 6 Rule 104 provides in pertinent part: (a) In General. (1) The court shall decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible . . . (2) The court may hear and determine such matters out of the presence or hearing of the jury. 7 A Wade hearing is conducted for the purpose of determining whether an out- of-court identification was made in unduly suggestive circumstances and, if so, whether or not any ensuing in-court identification procedure would be fatally tainted thereby. State v. Henderson, 208 N.J. 208 , 238 (2011). A-2755-17T1 20 admission of the Carvers' testimony at trial. Nonetheless, we conclude that the trial court must conduct a Rule 104(a) hearing to ascertain if the proffered testimony by the Carvers would aid the jury as the trier of fact in deciding the merits of the controversy or whether the Carvers' testimony may cause undue prejudice in the minds of the jurors and should be barred. If after the Rule 104(a) hearing the trial court finds from the totality of the circumstances that the Carvers' testimony should not be suppressed, and their testimony should be admitted at trial, then the court "should provide appropriate, tailored jury instructions" explaining how the evidence is to be considered. Henderson, 208 N.J. at 289. III. Next, defendant argues that in order to challenge his defense that he was never at the crime scene, the prosecutor had special FBI agent Hauger opine that a servicer's data about a cellphone was incriminating. Defendant argues that the trial court erred by admitting Hauger's testimony because (1) law enforcement's knowledge of defendant's cellphone was the fruit of a statement impermissibly taken by the interrogator after he invoked his right to counsel under Miranda; (2) Hauger's testimony was demonstrably unreliable; and (3) the blown-up map supplementing Hauger's opinion was highly misleading. A-2755-17T1 21  Defendant provided his cellphone number and cellular service provider to Detective Wayne Raynor after being advised of his rights. With this information, the historical cell site data analysis was obtained and given to Hauger, who in turn explained the concept to the jury. On January 13, 2016, Detective Raynor went to the Riverfront Motel to contact defendant—a person of interest in Dewyer's murder—based on the casino surveillance footage. Defendant agreed to speak with officers at the police station. As they entered the interview room, Detective Raynor advised defendant of his Miranda rights, and asked whether he felt comfortable speaking with them, to which defendant agreed. Defendant explained how he knew Dewyer and how he was his "gambling buddy." He explained that Dewyer was living at the Riverfront Motel, sleeping in his car, or a nearby truck stop's massage chairs. On January 3, 2016, defendant explained he went with Dewyer to Delaware Parks Casino, as they did every Sunday. Defendant further volunteered that when they returned, Dewyer wanted to go to another casino, but defendant had a date that night and declined to go. Defendant was hesitant about telling detectives about his transaction in Roebling, but detectives reassured him they just wanted A-2755-17T1 22 information about where Dewyer was at the time so they could figure out what happened to him that day. Defendant proceeded to inform the detectives he assumed Dewyer took Route 130 to pick up a friend's daughter from a truck stop. After finishing his business in Roebling, defendant returned to the Riverfront Motel and went on his date—dinner at Carlucci's in Delran and ending at the Aloft hotel. After detectives steered the discussion as to what happened with Dewyer, defendant became defensive, stating: "You say it's game over, charge me, call my attorney, Mr. Keesler over here, charge me and let's go. Plain and simple." Defendant reiterated that he wanted his attorney and was arrested on an outstanding municipal warrant for a traffic violation. The detective searched defendant and asked several basic questions including, "What's your phone?" In reply, defendant provided his cellphone number, which led to Detective Raynor learning defendant's cellphone provider was T-Mobile. On August 29, 2017, defendant moved to suppress his January 13, 2016 statement arguing that police did not inform him he was the target of a homicide investigation or there was an outstanding warrant. Consequently, defendant argued since his statement should be found inadmissible, Hauger's opinion should likewise be barred. A-2755-17T1 23  On September 1, 2017, the trial court issued a written decision and aptly noted that defendant did not admit guilt in either statement he gave to police. The court observed that defendant "was informed of the nature and focus of the inquiry, a murder investigation, and expressed a willingness to speak with the police." Defendant was informed he was a suspect and the detectives had no obligation to tell him about a non-existent charge. Moreover, the trial court correctly determined that the case defendant relied upon, State v. A.G.D., 178 N.J. 56 (2003), did not hold that the target of an interrogation must be advised of all outstanding complaints or arrest warrants unrelated to the subject of the interrogation. Miranda's protection extends only to acts of police officers "reasonably calculated to elicit an incriminating response." State v. Bohuk, 269 N.J. Super. 581 , 594 (App. Div. 1994) (quoting State v. Lozada, 257 N.J. Super. 260 , 268 (App. Div. 1992)). "To fall afoul of that rule, the defendant's statement must have been the product of police questioning or its functional equivalent." Ibid. Thus, interrogation under Miranda denotes questions, words, or actions by the police that they "should know are reasonably likely to elicit an incriminating response from the suspect." Rhode Island v. Innis, 446 U.S. 291 , 301 (1980) (footnotes omitted). A-2755-17T1 24  "[B]ooking procedures and the routine questions associated [with that process] are ministerial in nature and beyond the right to remain silent." Bohuk, 269 N.J. Super. at 593 (second alteration in original) (quoting State v. Mallozzi, 246 N.J. Super. 509 , 515 (App. Div. 1991)). "[U]nexpected incriminating statements made by in-custody defendants in response to non-investigative questions by the police without prior Miranda warnings are admissible." Mallozzi, 246 N.J. Super. at 516 ; see State v. Ward, 240 N.J. Super. 412 , 419 (App. Div. 1990) (statements "voluntarily blurted out by an accused in custody where the police have not subjected him to an interrogative technique or where the police are about to begin giving the Miranda warnings are . . . admissible without Miranda warnings."). Thus, the arrest warrant for defendant's traffic violation was immaterial to the Miranda analysis. We consider whether a question asked by the police is reasonably related to a legitimate administrative concern. State v. Cunningham, 153 N.J. Super. 350 , 354 (App. Div. 1977). Our jurisprudence has broadly interpreted the scope of an officer's administrative duties and excepted from the definition of interrogation questions by police that are "ministerial in nature" or "normally attendant to arrest and custody." Mallozzi, 246 N.J. Super. at 515-16 ; State v. Stever, 107 N.J. 543 , 561 (1987). A-2755-17T1 25  In Cunningham, police detectives questioned the defendant at headquarters, and he invoked his right to remain silent. 153 N.J. Super. at 350 . The detectives then asked defendant for the names of any people living at his address, to which he obliged, lead the police to gather evidence. Id. at 351 . The trial court suppressed the evidence, but we reversed, ruling that the officer's subjective intent was not controlling. Id. at 353-54 . We held that "the information sought by the detective as to [Cunningham]'s address and the name of the person with whom he was living was ministerial in nature and outside the constitutional protection afforded against self-incrimination." Id. at 354 . The case under review here is analogous to Cunningham. After defendant invoked his right to an attorney, Detective Raynor asked him for his phone number, and defendant provided his cellphone number. In State v. Andrews, 243 N.J. 447 , 485 (2020), our Court recently held that a court order requiring a criminal defendant to disclose the passcodes to his passcode-protected cellphone did not violate the self-incrimination clause of the Fifth Amendment to the United States Constitution or New Jersey's common law or statutory protections against self-incrimination. Therefore, the trial court appropriately allowed the historical cell site data information and analysis based on defendant's admissible statement regarding same, and we discern no error. A-2755-17T1 26  We are not persuaded by defendant's argument that the judge erred in allowing Hauger to testify. Hauger explained the limitations of historical cell data analysis and defense counsel had an opportunity to cross-examine him. Moreover, defendant did not present a rebuttal witness on historical cell site data information. Expert testimony is admissible when "scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue" and the proposed expert has the requisite "knowledge, skill, experience, training, or education" to form an expert opinion. Rule 702. There are three requirements for admission of expert testimony: (1) the intended testimony must concern a subject matter that is beyond the ken of the average juror; (2) the field testified to must be at a state of the art such that an expert's testimony could be sufficiently reliable; and (3) the witness must have sufficient expertise to offer the intended testimony. [State v. Kelly, 97 N.J. 178 , 208 (1984).] It is well-established that New Jersey courts apply the general acceptance within a scientific community test set forth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), to determine the admissibility of expert testimony in criminal cases. While our Supreme Court "adopted the factors identified in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 , 593-95 (1993), and a methodology- A-2755-17T1 27 based approach for determining scientific reliability in certain areas of civil law, [the Court has] not altered [its] adherence to the general acceptance test for reliability in criminal matters." State v. Cassidy, 235 N.J. 482 , 492 (2018). "Proof of general acceptance within a scientific community can be elusive," and "[s]atisfying the test involves more than simply counting how many scientists accept the reliability of the proffered [technique]." State v. Harvey, 151 N.J. 117 , 171 (1997). General acceptance "entails the strict application of the scientific method, which requires an extraordinarily high level of proof based on prolonged, controlled, consistent, and validated experience." Ibid. (quoting Rubanick v. Witco Chem. Corp., 125 N.J. 421 , 436 (1991)). The proponent of the technique has the burden to "clearly establish" general acceptance, State v. Johnson, 42 N.J. 146 , 171 (1964), and may do so using "(1) expert testimony, (2) scientific and legal writings, and (3) judicial opinions," State v. Cavallo, 88 N.J. 508 , 521 (1982)[.] [Ibid. (alterations in original).] "Whether expert testimony is sufficiently reliable to be admissible under [Rule] 702 is a legal question we review de novo." State v. J.L.G., 234 N.J. 265 , 301 (2018). "When reviewing a decision on the admission of scientific evidence, an appellate court should scrutinize the record and independently review the relevant authorities, including judicial opinions and scientific literature." Harvey, 151 N.J. at 167 . A-2755-17T1 28  The trial court correctly allowed Hauger's testimony. His analysis was based on scientific methods generally accepted as reliable, particularly within the confines of this case. The coverage maps were illustrative of Hauger's opinion countering defendant's theory that he was not in the coverage area where Dewyer was murdered. The actual testimony at trial establishes that there was no plain error. We note that defendant never challenged the scientific reliability of the historical cell site data analysis or the coverage maps Hauger testified to. The jury heard Hauger offer an opinion and was free to give it whatever weight they deemed appropriate. IV. Lastly, defendant argues he was unfairly portrayed as a criminal with a guilty conscience because he invoked his right to counsel; exercised his right to pre-trial bail on unrelated charges; and possessed an unlicensed firearm in his home. Defendant also contends the prosecutor elicited improper testimony from Detective Raynor about being asked to track down witnesses to confirm his presence in Roebling, and the unsolicited comment by Rivera that he and Dewyer discussed bail money deprived him of a fair trial. Defendant did not raise any of these objections at trial. Accordingly, under the plain error standard, we will disregard the alleged errors unless they A-2755-17T1 29 are "clearly capable of producing an unjust result." R. 2:10-2. "Under that standard, defendant has the burden of proving that the error[s] [were] clear and obvious and that [they] affected [his] substantial rights." State v. Muhammad, 359 N.J. Super. 361 , 372 (App. Div. 1998) (quoting State v. Morton, 155 N.J. 383 , 421 (1998)). The errors claimed must be so egregious that they "raise a reasonable doubt as to whether it led the jury to a result it would otherwise not have reached." State v. Weston, 222 N.J. 277 , 294 (2015) (quoting Pressler & Verniero, Current N.J. Court Rules, cmt. 2.1 on R. 2:10-2). At trial, the prosecutor played the first part of defendant's statement for the jury, which included a discussion between defendant and Detective Raynor. The detective told defendant that he knew defendant had been with Dewyer all day on January 3, 2016. After being asked to elaborate on his story, Detective Raynor offered again to "run down" defendant's alibi. However, defendant declined to do so and asked for his attorney. The limited exchange shown to the jury could not have produced an unjust result. Rivera's reference to "bail money" was remediated by the prosecutor by pointing out that the argument she witnessed was solely about "money." In his summation, the prosecutor only referenced Dewyer withdrew $1050 out of his bank account for defendant, and no mention was made it was for bail money. A-2755-17T1 30  We also reject defendant's argument that the trial court improperly allowed Cristinzio to testify that defendant mentioned possessing a gun in his motel room that was not his and failed to give a curative instruction, also raised for the first time on appeal. At some point, "[defendant] asked [Dewyer] to go get the gun from someone else's room, [r]oom [eleven], and [Dewyer] said he didn't want to touch the gun." At times, defendant slept in room eleven but claimed it was "someone else's room," and not his residence at the Riverfront Motel. Therefore, no instruction on the propriety of keeping an unlicensed firearm in one's home was warranted, and there was no plain error. We have considered defendant's other arguments in his pro se supplemental brief and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). In sum, we conclude that the appropriate course of action is to remand for a Rule 104(a) hearing to determine the reliability of Sandra and Jeffrey Carver's statements and testimony as a condition for admissibility at the re-trial. We caution the parties that by mandating a Rule 104(a) hearing, we make no opinion or finding as to the admissibility of Sandra and Jeffrey Carver's proffered statements and testimony. Given our ruling for the trial court to conduct a Rule 104(a) hearing, we need not address defendant's argument on resentencing. A-2755-17T1 31 Instead, defendant's conviction and sentence are vacated, and the matter is remanded for further proceedings. Reversed and vacated. We do not retain jurisdiction. A-2755-17T1 32 ROSE, J.A.D., concurring in part and dissenting in part. I join in the majority opinion insofar as it expresses our decision to reject the arguments defendant raises on appeal. But I cannot agree with my colleagues that cumulative errors – some of which were not raised before the trial court or this court – warrant reversal of the jury's verdict and a preliminary hearing at a retrial. Accordingly, I respectfully dissent. I. I begin by addressing the majority's conclusion that cumulative errors denied defendant a fair trial, noting the nature and extent of those "errors" are not fully analyzed. Instead, the majority seemingly suggests four of the prosecutor's closing remarks exceeded the bounds of fair comment. I discern the majority concludes those comments – taken together and combined with the Carvers' "impermissibly suggestive and prejudicial" testimony – denied defendant his right to a fair trial. Although the prosecutor's comments are set forth in the majority's factual recitation, they are not analyzed in view of the context of the trial as a whole and the governing law. I therefore pause to recite well-established principles that govern the relevant analysis before turning to the evidence that supports the prosecutor's remarks. In reviewing a claim of prosecutorial misconduct, an appellate court considers whether: defense counsel raised "timely and proper objections"; "the offending remarks were withdrawn promptly"; "the trial court struck the remarks and provided appropriate instructions to the jury"; and "the offending remarks were prompted by comments in the summation of defense counsel." State v. Smith, 212 N.J. 365 , 403-04 (2012) (internal citations and quotation marks omitted). "Generally, if no objection was made to the improper remarks, the remarks will not be deemed prejudicial." State v. R.B., 183 N.J. 308 , 333 (2005) (citation omitted). "Failure to make a timely objection indicates that defense counsel did not believe the remarks were prejudicial at the time they were made," and "deprives the court of the opportunity to take curative action." State v. Timmendequas, 161 N.J. 515 , 576 (1999). Moreover, New Jersey courts have long recognized prosecutors "are afforded considerable leeway in making opening statements and summations." State v. Williams, 113 N.J. 393 , 447 (1988). They may even do so "graphically and forcefully." State v. Pratt, 226 N.J. Super. 307 , 323 (App. Div. 1988). Of course, "the primary duty of a prosecutor is not to obtain convictions but to see that justice is done." Smith, 212 N.J. at 402-03. A prosecutor's "duty is to prove the State's case based on the evidence and not to play on the passions of the jury or trigger emotional flashpoints, deflecting attention from the hard facts on which the State's case must rise or fall." State v. Blakney, 189 N.J. 88 , A-2755-17T1 2 96 (2006). "A prosecutor must 'conscientiously and ethically undertak[e] the difficult task of maintaining the precarious balance between promoting justice and achieving a conviction,' ensuring that at all times his or her 'remarks and actions [are] consistent with his or her duty to ensure that justice is achieved.'" State v. Jackson, 211 N.J. 394 , 408 (2012) (alterations in original) (quoting Williams, 113 N.J. at 447-48 ). Even if the prosecutor exceeds the bounds of proper conduct, however, that finding does not end an appellate court's inquiry. "[I]n order to justify reversal, the misconduct must have been 'so egregious that it deprived the defendant of a fair trial.'" State v. Smith, 167 N.J. 158 , 181 (2001) (quoting State v. Frost, 158 N.J. 76 , 83 (1999)). "To justify reversal, the prosecutor's conduct must have been clearly and unmistakably improper, and must have substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense." Timmendequas, 161 N.J. at 575 (citation omitted); see also State v. McNeil-Thomas, 238 N.J. 256 , 276 (2019). Against that legal backdrop, I turn to the comments at issue, recognizing defendant did not object to any of the prosecutor's remarks cited by the majority before the trial court. Two of those comments neither were raised before us in defense counsel's merits brief nor defendant's supplemental pro se submission. A-2755-17T1 3  Initially, I consider defendant's arguments to give context to the prosecutor's closing remarks. Defendant's strategy focused on his friendship with Dewyer, arguing he had no motive to kill his friend. Indeed, defense counsel characterized their relationship as "best friends." In response, the prosecutor cited the video evidence in the record, defendant's statements, and withdrawals from Dewyer's bank account prior to his murder to argue defendant "used" Dewyer "for his car" and "money." Notably, defendant told police, he often drove Dewyer's car because the victim "had bad legs." After making the comments the majority construes as "malign[ing] defendant's character," the prosecutor continued: I think [defendant] is in the[ ] [casino] for about an hour gambling. Jim Dewyer comes in and finally sits down at the slot machines next to him. He's not playing the slot machines. You can watch the entire video, if you want, of the casino. I played different portions of it but I submit to you, there's not one minute where he's putting any quarters or any money in that slot machine. He's not gambling. He's sitting there. He's looking at the paper. At one point it looks like [Dewyer]'s falling asleep on that chair. [Dewyer]'s waiting for his good friend . . . who is gambling at the craps table. When [defendant] is done, he comes, taps [Dewyer] on the shoulder, "let's go." And then [defendant] walks so far ahead of him. This man is having trouble walking, give him your arm, go get a wheelchair for him. Do something. Walk with your A-2755-17T1 4  good friend. [Defendant] doesn't do that. He walks way ahead of him. He'll come back every once in a while and then he's gone again. Is that a good friend? I submit to you it's not. The prosecutor's comments followed defense counsel's skillful attempt to argue defendant had no motive to kill his friend. Taken in context, the remarks that offend the majority were fair and based on the video footage that was admitted in evidence without objection. Further, defendant raised no objection to the prosecutor's comment before the trial court – or us. Accordingly, I discern no error, let alone plain error, in those remarks. The majority next cites the prosecutor's argument that defendant changed his clothes to avoid detection. In doing so, the majority concludes the record does not support that conclusion. According to video footage from t he Riverfront Hotel, however, when defendant arrived at 3:20 p.m. he was still wearing a dark colored hoodie, dark pants, and white sneakers. But nine minutes later, defendant appears to be wearing "plaid pajama pants" as described by High-Tech Crimes Unit Detective David Kohler, when the video is played for the jury during his testimony. Again, defendant did not challenge the prosecutor's remark before the trial court or on appeal. I discern no error, let alone plain error, in that comment, which is supported by the trial evidence. A-2755-17T1 5  The majority also references the prosecutor's remark that the lead detective "practically begged" defendant for his alibi witness during his custodial questioning. In doing so, the majority notes defendant did not "hav[e] the benefit of counsel." Implicit in the majority's comment is its conclusion that the prosecutor's comment was improper. Yet, the majority found no error in the court's denial of defendant's motion to suppress his statements. Because I agree that defendant's statements were properly admitted at trial, I discern no error in the prosecutor's comment. The final closing remark cited by the majority follows its observation that neither Sandra nor Jeffrey Carver identified defendant in or out of court. The prosecutor commented: "The person that the Carvers saw that day was the defendant." Again, the majority does not analyze whether or how that remark was improper, and if so, whether it rose to plain error. Again, the comment is taken out of context. A summary of the evidence bears repeating. During the multi-day jury trial, the State presented the testimony of seventeen witnesses and introduced in evidence numerous exhibits, including surveillance video; defendant's statements to police; and expert testimony concerning defendant's cellphone location data. No weapon was recovered, but forensic evidence revealed A-2755-17T1 6 Dewyer was shot in his left rib cage, at close range, while seated in the front passenger's seat of his car. No one witnessed the shooting, but surveillance video footage captured defendant and Dewyer together during most of the day. Much of the video footage depicted defendant driving Dewyer's silver car, with Dewyer in the front passenger's seat. Dewyer was last seen alive in that manner about three hours before police discovered his lifeless body – in the front passenger's seat of his car. Although neither Jeffrey nor Sandra Carver made an in-court or out-of- court identification, they observed a man fitting defendant's general description walking from the remote area where they observed a silver car parked askew. He was carrying a backpack with an orange, yellow or red color on top. Defendant did not testify, but his statements concerning his whereabouts at the time of the murder contradicted his cellphone activity. Notably, the majority upheld the admission of defendant's custodial statements to police and the experts' opinion concerning cellphone location. Typical of a circumstantial evidence case where, as here, identification is at issue, the prosecutor told the jury: "You have to look at the evidence in its totality. Much like this case – pieces of a puzzle – when you fit [them] together you can identify the defendant as the murderer." See State v. Michaels, 264 N.J. A-2755-17T1 7 Super. 579, 641 (App. Div. 1993) (finding the prosecutor could use a "puzzle analogy" to argue that the defendant was guilty). The prosecutor's summation spans thirty-six transcript pages; the remark at issue was made toward the end of the prosecutor's summation, after he argued: defendant was not Dewyer's friend; video from the casino and hotel placed Dewyer with defendant most of the day, with defendant driving Dewyer's silver car; defendant's statement claiming Dewyer dropped him off in Roebling, where defendant met with someone he refused to identify; and defendant's cellphone "never hits off of [the] Roebling [sector] between 1:34 and 3:30," but rather it hits off two sectors that overlap "and the crime scene is right on the border of that overlap." Among other things, the prosecutor recounted Cristinzio's testimony describing defendant's reaction when told Dewyer was dead: "And the interesting part about that is . . . the reaction that she told you [defendant] had. Not, 'oh, my God, my good friend Jimmy Dean is dead.' That's not the reaction he had." Defendant instead told Cristinzio, "Well, I was on a date." The prosecutor also recounted Rivera's testimony "that in the weeks leading up to [the] murder," Rivera overhead Dewyer and defendant arguing about money defendant owed the victim. A-2755-17T1 8  When discussing the Carvers' testimony, the prosecutor argued, in pertinent part: Now, on January 3 the Carvers are driving down Kinkora Road at about three o'clock, I believe the testimony was. And when they're driving down Kinkora Road they see the victim's vehicle parked in that cut-out, okay. The car's up into the woods a little bit. They see it. It's still daylight when they observe it. They drive past. And after they drive past they observe someone walking down the road, a person who appeared to be out of place to them. He's walking down the left-hand side of the road. And both of the Carvers described him as a large man. He was over six feet tall and over 200 pounds. They can't identify him. Much like if you're driving down the road in your neighborhood, you see somebody that you don't recognize, they just don't fit into that neighborhood for some reason, they're not a resident. These people grew up there. They've lived there for twenty-some-odd years. They knew the people walking back and forth. They thought it was the person that broke down possibly back in that car. But they knew he wasn't a regular in the neighborhood. They see him walking. And just like you, if you see somebody in your neighborhood and then you're asked four days and ten days later to describe what you saw, you're probably not going to know . . . he had a brown suit on, he had this on, he had that on. What you're going to remember are the things that stood out to you and the things that make that person stand out and be out of place. So, they remembered he was a large man, over 200 pounds, over six feet tall. They remembered he was not black but light skinned, maybe mixed race, or, you know, brown skin. They remember that as they A-2755-17T1 9 approached, he kept looking back and glancing over his shoulder at them. And they remember a backpack. And their description of the backpack was off. Sandra says it was, you know, yellow and orange possibly. But [Jeffrey] says, I believe it was black and I think it had some red or some silver in it. They can't identify it. They didn't witness the murder, by the way, so the fact that there's no identification in court, they tell you right up front, they can't identify him. They can't I.D. him. And in retrospect, that doesn't matter anyway because they didn't witness the murder, they just witnessed the person walking down the street. So, they remember the details, as I stated, that stand out to them. And then you look at the fingerprint card that . . . [is] in evidence. Look at the height and weight . . . . Six-foot [sic] three, 265 pounds. Certainly, a large man. He's brown skinned. He's over six-foot [sic] and he's over 200 pounds. That general description that the Carvers gave that day matches the defendant. They also remember that as he kept looking back at them and glancing back over his shoulder as he walked, he's carrying a backpack. Then when you look at the video of the motel – and [you] see him at about three, a little after three, a little before three [o'clock]. 3:28 p.m. at the motel, what do you see? You see a large brown-skinned male, carrying a backpack, coming from the direction of Kinkora Road. It's not a coincidence. The person that the Carvers saw that day was the defendant. They couldn't identify him and say yes, that's him, I see his face, it's definitely him but the general description matches. It's too much of a coincidence to not be him. [(Emphasis added).] A-2755-17T1 10  Earlier, when discussing the video footage depicting defendant leaving the Riverfront Hotel at approximately 1:30 p.m., the prosecutor said: "you see [defendant] grab a backpack. He grabs that backpack, it looks like it's black with red and silver on it, kind of like [Jeffrey] stated, and he puts that in the car." Surely, the Carvers' observations of a man fitting defendant's general description, who was seen walking from the direction of Dewyer's car, with a backpack that resembles the backpack captured on the Riverfront Hotel's video footage at 1:30, when defendant left the Riverfront Hotel with Dewyers, provided a sufficient basis for the prosecutor's comment. I therefore conclude the remark was a reasonable inference suggested by all the evidence adduced at trial. In sum, all four closing remarks that the majority apparently finds objectionable must be contextualized amid the circumstantial evidence that underscored defendant's guilt in response to counsel's arguments. And, given the lack of an objection, no unjust result occurred from those remarks – in part or in combination. II. Although the majority reverses defendant's conviction based on cumulative errors – including the prosecutor's remarks that I find acceptable for A-2755-17T1 11 the reasons stated – it appears its main bone of contention is the court's admission of the Carvers' testimony, without issuing a proper jury instruction. As my colleagues accurately observe, defendant neither challenged the admissibility of the Carvers' testimony nor sought an identification instruction from the trial court.1 Before us, defendant still does not claim the Carvers' testimony was admitted erroneously. A. In reaching its decision that an N.J.R.E. 104 hearing is necessary on retrial, the majority nonetheless generally acknowledges a pretrial Wade hearing was unnecessary because there was no "show-up identification" in this case. 2 I agree with that conclusion. Citing its "concern[s] that the Carvers' testimony was impermissibly suggestive and prejudicial to defendant, and the jury may have erroneously drawn a conclusion that he was the perpetrator," the majority nonetheless would have the trial court conduct a preliminary hearing to determine the admissibility 1 Defendant moved for a mistrial, acquittal, and new trial on other grounds. 2 More accurately, defendant was not entitled to a Wade-Henderson hearing inasmuch as there was no pretrial identification whatsoever of defendant by the Carvers. Henderson, 208 N.J. at 218-19 (holding a pretrial hearing is required when police conduct any out-of-court identification procedure). A-2755-17T1 12 of the Carvers' testimony at a retrial. In that regard, the majority concludes the trial court must determine whether the Carvers' testimony would "cause undue prejudice in the minds of the jurors and should be barred." In doing so, the majority conflates the rules regarding admission of relevant evidence – when that evidence was not challenged here – with our Supreme Court's jury instructions regarding pretrial identification procedures. In my view, the majority's outcome departs from well-established evidentiary principles. It is beyond peradventure that our review of evidentiary decisions is discretionary. See State v. Cole, 229 N.J. 430 , 449 (2017). We must uphold such decisions when they are supported by sufficient credible evidence in the record. See McNeil-Thomas, 238 N.J. at 272; State v. S.S., 229 N.J. 360 , 374 (2017). Of course, if the trial court applies the wrong legal test when analyzing admissibility issues, we apply de novo review. State v. Hyman, 451 N.J. Super. 429 , 441 (App. Div. 2017); see also State v. Nantambu, 221 N.J. 390 , 402-03 (2015) (recognizing "we accord no deference to the trial court's legal conclusions."). Here, apparently citing Henderson,3 the majority 3 In Henderson, the Court set forth a four-step framework for the admissibility of pretrial identification procedures. 208 N.J. at 288-89. The fourth step provides in relevant part: "[I]f after weighing the evidence presented a court finds from the totality of the circumstances that defendant has demonstrated a A-2755-17T1 13 seemingly concludes the trial court should have determined from "the totality of the circumstances" whether the Carvers' testimony should be suppressed or admitted at trial. However, even if Jeffrey or Sandra Carver had made a pretrial identification of defendant, Henderson does not require a preliminary hearing for the court to determine whether their proposed testimony is impermissibly suggestive; it requires the court to determine whether an identification procedure was impermissibly suggestive. 208 N.J. at 218-19. Because there was no identification procedure here, there was no basis for the trial court to conduct a Wade-Henderson or other preliminary hearing to determine the admissibility of the Carvers' testimony in the present trial. Pursuant to N.J.R.E. 403, evidence is presumed admitted unless the trial court finds its probative value is substantially outweighed by its prejudicial value, with the burden placed on the party seeking to exclude that evidence. Santamaria, 236 N.J. at 406; Cole, 229 N.J. at 452-53. My review of the record reveals the testimony of the Carvers was relevant and probative on the issue of identity: Sandra and Jeffrey testified about the general description of defendant very substantial likelihood of irreparable misidentification, the court should suppress the identification evidence. If the evidence is admitted, the court should provide appropriate, tailored jury instructions . . . ." Id. at 289. A-2755-17T1 14 – his weight; height; skin tone – and that they saw him walking from an oddly- parked silver car, carrying a backpack with red, orange or yellow on top, shortly before Dewyer's lifeless body was discovered in his silver car. That testimony tended to prove a fact in dispute, as corroborated by cell site data, and disprove defendant's uncorroborated claim he was in Roebling around the time of the murder. I therefore respectfully disagree with the majority that an N.J.R.E. 104 hearing is necessary to determine the admissibility of the Carvers' testimony. B. Turning to defendant's belated claims of error in the jury charge, the majority cites, without analyzing, the model jury charge, "Identification: No In - Or-Out-Of-Court Identification" (lack-of-identification charge). Notably, defendant now argues the trial court failed to issue the lack-of-identification charge and failed to instruct the jury about estimator variables pursuant to Henderson, 208 N.J. at 261. Because the majority does not analyze the lack-of- identification charge, I do so to better address defendant's argument. Without citation to caselaw, the footnote to the lack-of-identification charge suggests the "instruction should be given when defendant's defense is that he[] did not commit the crime and the State is seeking to prove his[] guilt without adducing any direct identification evidence, e.g., is relying on A-2755-17T1 15 circumstantial evidence to tie the defendant to the crime." This instruction advises jurors in circumstantial evidence cases, such as this one, that the identity of a criminal offender is a necessary element that the prosecution must prove beyond a reasonable doubt. The absence of positive identifications by the Carvers does not eliminate the utility of this instruction; instead that absence underscores the instruction's utility. I am therefore persuaded that the trial court – although it was not requested by defendant to do so – should have issued the lack-of-identification charge. That said, I disagree with the majority's implicit suggestion that th e omission of that instruction constitutes plain error that compels reversal. R. 2:10-2. As my colleagues observe, the jury was more generally advised of the State's burden to prove all elements of the charged offenses beyond a reasonable doubt. And the trial court did more than explain the difference between circumstantial and direct evidence. The court also instructed the jury: "A conviction may be based on circumstantial evidence alone, or by a combination of circumstantial evidence and direct evidence, provided, of course, here you are convinced of the defendant's guilt beyond a reasonable doubt." To be sure, while it would have been preferable for the court to have issued the lack -of- A-2755-17T1 16 identification charge, I am unable to conclude under our plain error standard that the failure to do so here constitutes reversible error. **** In sum, I discern no error – separate or cumulative – that requires reversal of defendant's convictions. Accordingly, I concur with the majority's decision to the extent it rejects defendant's arguments raised on appeal. 4 I respectfully dissent for all other reasons stated. 4 Notwithstanding my concurrence, I disagree with the majority's apparent criticism that "defendant did not present a rebuttal witness on historical cell site data information." On appeal, defendant asserts the trial judge failed to rule on his request for a Frye hearing. Although that contention is unsupported in the record, it is axiomatic that the burden of proving reliability of scientific evidence is on the party seeking to establish its reliability. See Harvey, 151 N.J. at 171 ; see also Cassidy, 235 N.J. at 492. As the burden the proof always rested with the State, see Model Jury Charges (Criminal),"Criminal Final Charge" (rev. May 12, 2014), defendant was under no obligation to present any evidence to rebut the reliability of Hauger's testimony. A-2755-17T1 17

2020-12-01 15:09:19.167337+00

http://www.judiciary.state.nj.us/attorneys/assets/opinions/appellate/published/a3781-19.pdf

RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3781-19T3 STATE OF NEW JERSEY, Plaintiff-Appellant, APPROVED FOR PUBLICATION December 1, 2020 v. APPELLATE DIVISION IAN P. STEINGRABER, Defendant-Respondent. Submitted October 15, 2020 – Decided December 1, 2020 Before Judges Whipple, Rose, and Firko. On appeal from the Superior Court of New Jersey, Law Division, Union County, Accusation No. 14-08- 0867. Lyndsay V. Ruotolo, Acting Union County Prosecutor, attorney for appellant (Michele C. Buckley, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). Ernest G. Ianetti, attorney for respondent. The opinion of the court was delivered by ROSE, J.A.D. This appeal requires us to decide whether the terms of a negotiated plea agreement waived the prosecutor's requirement to move for imposition of parole supervision for life (PSL) under N.J.S.A. 2C:43-6.4. We granted the State's motion for leave to appeal from an April 27, 2020 Law Division order, granting defendant Ian Steingraber's amended petition for post-conviction relief (PCR), as further amended by the PCR court sua sponte to a motion for reduction of sentence pursuant to Rule 3:21-10(b)(4). The PCR court concluded the trial court's imposition of PSL – in the absence of a motion by the prosecutor as required under the PSL statute – constituted an illegal sentence. Having conducted a de novo review of the record and governing principles, we are persuaded the PCR court erred as a matter of law. Accordingly, we reverse the PCR court's order, but remand for the trial court to consider whether PSL should have been imposed. I. In August 2014, defendant waived his rights to indictment and trial by jury, and pled guilty to an accusation charging him with second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(b)(5)(a). Defendant admitted he uploaded to the internet images "that depicted sexual intercourse between children less than eighteen" years old. In exchange for defendant's guilty plea, the State agreed to dismiss the remaining endangerment charge, and recommended sentencing defendant within the third-degree range, limited to a four-year term of imprisonment. See N.J.S.A. 2C:44-1(f)(2). Although A-3781-19T3 2 defendant was not required to submit to an evaluation at the Adult Diagnostic and Treatment Center in Avenel, defendant's plea was subject to "Megan's Law ramifications . . . including parole supervision for life." 1 Defendant acknowledged he initialed and signed each page of the plea form and signed the supplemental PSL and Megan's Law forms. The trial court also asked defendant whether he understood "parole supervision for life . . . mean[t] just that" because "[n]ormally there's a limitation o[n] how long you're on parole based upon the crime. But for certain crimes there's no limitation, it is for life." Defendant responded affirmatively. The court again asked whether defendant understood that under the terms of his plea bargain: "Avenel does not apply, Megan's Law does, parole supervision for life does." Defendant again responded, "Yes." The court accepted the guilty plea, finding defendant "underst[ood] his rights" and "freely and voluntarily" entered his guilty plea. Defendant was sentenced on November 21, 2014 by another judge and was represented at the hearing by another assigned counsel. The State urged 1 Effective February 1, 2018, the Legislature amended N.J.S.A. 2C:47-1 of the Sex Offender Act, N.J.S.A. 2C:47-1 to -10, to require a defendant convicted of second-degree endangering the welfare of a child under N.J.S.A. 2C:24- 4(b)(5)(a), to submit to a psychological evaluation at the Adult Diagnostic and Treatment Center. A-3781-19T3 3 the court to sentence defendant pursuant to the terms of the plea agreement. For reasons that are not relevant here, defense counsel argued defendant had overcome the presumption of imprisonment, N.J.S.A. 2C:44-1(d), and asked the court to sentence defendant to probation. Implicitly recognizing it could not place defendant on probation and PSL simultaneously, N.J.S.A. 2C:43 - 2(g), and finding three mitigating factors "significantly and substantially" outweighed the sole aggravating factor, the court sentenced defendant to a four-year term of imprisonment, but "suspend[ed] the imposition of that custodial sentence on condition that he successfully complete parole supervision for life; that he comply with all Megan's Law registration provisions." See N.J.S.A. 2C:43-2(b). The court elaborated: I gave you four years but you don't have to do that four years as long as you successfully complete your parole supervision for life. If you violate that, without anything further, you could be brought back to court and sentenced to four years in state prison. The same applies . . . with respect to computer access. If it's determined that between now and the time you are placed on parole supervision or anytime thereafter, that you have access to a computer, you could be violated on this sentence, the suspension of the custodial portion would be vacated and you could be sentenced to four years in state prison. A-3781-19T3 4 See State v. Rivera, 124 N.J. 122 , 126 (1991) (recognizing "[a] court may suspend the imposition of a sentence only after first determining that a non - custodial sentence is authorized and appropriate"). When asked whether he understood the terms of his sentence, defendant politely responded, "Yes, I do, Your Honor." Defense counsel further informed defendant on the record that in addition to a prison term of up to four years for a PSL violation, he could be charged with a separate fourth-degree offense for the violation. See N.J.S.A. 2C:43-6.4. Defendant again acknowledged he understood the ramifications of his sentence. Defendant did not file a direct appeal. In March 2017, defendant apparently was sentenced to a six-year term of imprisonment with five years of parole ineligibility for another conviction of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(b)(5)(a) (subsequent matter). 2 In May 2019, defendant filed a pro se petition for PCR; assigned counsel thereafter amended defendant's petition, asserting the "plea bargain impermissibly infringed on the court's sentencing discretion." According to the PCR court: "The crux of defendant's surviving claim [wa]s that the PSL sentence imposed by the court . . . [wa]s illegal because the State failed to 2 The record on appeal does not contain defendant's judgment of conviction for the subsequent matter. A-3781-19T3 5 make a formal application for the imposition of the sentence." Defendant further claimed the sentence violated his due process rights. In a written decision accompanying its April 27, 2020 order, the PCR court granted defendant's application. Strictly construing N.J.S.A. 2C:43 - 6.4(a), the PCR court found the statute "expressly and unequivocally required the State to file a motion for the imposition of . . . PSL, and reserved discretion to the [sentencing] court for its imposition." 3 In reaching its decision, the PCR court rejected the State's argument that the negotiated plea agreement, which included the PSL condition, waived "the prosecutor's filing requirements and the [sentencing] court's discretion" to impose PSL. Instead, the court concluded the State's motion was "a required presentencing condition, without which render[ed] the subsequent sentence illegal." On appeal, the State essentially argues defendant's sentence was authorized by law and, as such, it was not illegal. Acknowledging PSL is not mandated under N.J.S.A. 2C:24-4(b)(5), and the prosecutor was obligated to move to impose the condition here, the State maintains "the recording of the 3 The PCR court incorrectly determined the 2017 amendments to the PSL statute and N.J.S.A. 2C:24-4(b)(5)(a) "ma[de] a PSL sentence mandatory under the facts present[ed] here." That subsection of the endangerment statute still requires the State to move for the imposition of PSL. See n.3 below. A-3781-19T3 6 [PSL] provision on the plea form, which was signed by defendant and orally placed on the record by the court, served as the State's motion." II. We review the legality of a sentence de novo, "affording no special deference to the court['s] interpretation of the relevant statutes." State v. Nance, 228 N.J. 378 , 393 (2017). A court may correct an illegal sentence "at any time before it is completed." State v. Murray, 162 N.J. 240 , 247 (2000); see also R. 3:21-10(b). If a defendant's sentence is illegal, a reviewing court must remand for resentencing. See State v. Romero, 191 N.J. 59 , 80-81 (2007). "There are two categories of illegal sentences: those that exceed the penalties authorized for a particular offense, and those that are not auth orized by law." State v. Hyland, 238 N.J. 135 , 145 (2019). Both categories are "defined narrowly." Ibid. (quoting Murray, 162 N.J. at 246 ). The second category, which is at issue on this appeal, includes a sentence that "fails to satisfy required presentencing conditions." Murray, 162 N.J. at 247 . N.J.S.A. 2C:43-6.4 requires the State to move for PSL as a presentence condition to certain convictions for endangering the welfare of a child, including the conviction at issue here, N.J.S.A. 2C:24-4(b)(5)(a). At the time of defendant's sentence, the PSL statute provided in pertinent part: A-3781-19T3 7  Notwithstanding any provision of law to the contrary, . . . a court imposing sentence on a person who has been convicted of endangering the welfare of a child pursuant to paragraph (4) or (5) of subsection b. of N.J.S.A. 2C:24-4, . . . shall include, upon motion of the prosecutor, a special sentence of parole supervision for life in addition to any sentence authorized by Title 2C of the New Jersey Statutes, unless the court finds on the record that the special sentence is not needed to protect the community or deter the defendant from future criminal activity. [N.J.S.A. 2C:43-6.4(a) (2013) (emphasis added). 4] As the PCR court correctly recognized, "the State did not file" a motion for PSL and "the [trial] court made no findings regarding its imposition." Under Rule 1:6-2, however, a motion need not be filed formally; it may be made orally during a court hearing. Indeed, we have recognized "the rules of court permit oral motions if they are 'made during a trial or hearing,' or if 'the court permits it to be made orally.'" State v. Washington, 453 N.J. Super. 164 , 201-02 (App. Div. 2018) (quoting R. 1:6-2(a)). Nor do we agree with the PCR court's analysis, which compared the lack of a "forgiving provision" in the PSL statute with an express waiver provision in the sentencing rule governing extended terms. See R. 3:21-4 (e) and (f) 4 The present version of N.J.S.A. 2C:43-6.4(a) still requires a motion of the prosecutor but was amended to include "a person who has been convicted of endangering the welfare of a child pursuant to paragraph (4) or subparagraph (a) or sub-subparagraph (iii) of subparagraph (b) of paragraph (5) of subsection b. of N.J.S.[A.] 2C:24-4 . . . ." A-3781-19T3 8 (providing "[i]f the negotiated disposition includes the recommendation of an extended term, the prosecutor's oral notice and the recordation of the extended term exposure in the plea form completed by defendant and reviewed on the record shall serve as the State's motion"). The inclusion of the waiver provision in a court rule is not indicative of the Legislative intent of a statute. Nonetheless, we disagree with the State that the negotiated plea agreement substituted for the State's obligation to move for PSL. Although the plea agreement and the court expressly stated defendant's plea subjected him to PSL – as defendant acknowledged during the plea hearing – imposition of PSL is not mandated under N.J.S.A. 2C:43-6.4. Neither the plea agreement nor the court indicated defendant waived the sentencing court's ability to "find[] on the record that the special sentence [wa]s not needed to protect the community or deter . . . defendant from future criminal activity." N.J.S.A. 2C:43-6.4. At sentencing, the court failed to engage in that analysis. But that omission does not render defendant's sentence illegal here, where PSL is permitted under N.J.S.A. 2C:43-6.4., for defendant's violation of N.J.S.A. 2C:24-4(b)(5)(a). Accordingly, we reverse the PCR court's determination that defendant's sentence was illegal, but we remand to for a limited resentencing proceeding for the trial court to consider whether it would have imposed PSL when it sentenced defendant. In that regard, the trial court should consider whether A-3781-19T3 9 PSL was "not needed to protect the community or deter . . . defendant from future criminal activity" under the PSL statute. Unlike resentencing for an illegal sentence, however, on remand the trial court should not "view defendant as he stands before the court on that day." State v. Randolph, 210 N.J. 330 , 354 (2012). Instead, we direct the trial court to determine the applicability of the PSL provision "from the vantage point of the original sentencing." Ibid. Reversed and remanded. We do not retain jurisdiction. A-3781-19T3 10

2020-12-01 15:09:20.983649+00

http://www.judiciary.state.nj.us/attorneys/assets/opinions/appellate/unpublished/a5721-17.pdf

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-5721-17T1 STATE OF NEW JERSEY, Plaintiff-Respondent, v. GARY K. FLOYD, Defendant-Appellant. Submitted November 5, 2020 – Decided December 1, 2020 Before Judges Alvarez and Mitterhoff. On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 17-07-0449. Joseph E. Krakora, Public Defender, attorney for appellant (Joshua D. Sanders, Assistant Deputy Public Defender, of counsel and on the brief). Esther Suarez, Hudson County Prosecutor, attorney for respondent (Erin M. Campbell, Assistant Prosecutor, on the brief). PER CURIAM  Defendant Gary K. Floyd appeals the denial of his motion to suppress evidence, specifically, a handgun. After the judge denied the application, defendant entered a guilty plea 1 to the charge of second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b)(1). On July 23, 2018, in accordance with the negotiated plea, he was sentenced to five years imprisonment, subject to a year of parole ineligibility, pursuant to the Graves Act, N.J.S.A. 2C:43-6. We affirm for the reasons stated by Judge John A. Young, Jr., adding some brief comments. Jersey City Police Officer Patrick Marella testified at the suppression hearing that on April 28, 2017, he was on patrol in a marked vehicle with a partner, Officer Nick Lawson. At approximately 9:00 p.m., the officers observed a blue Buick with tinted windows fail to signal a left turn, and they pulled the car over. As Lawson approached the driver's side, he said to Marella, who stood on the passenger side, that he saw a bullet hole "on my side." 2 Lawson asked the occupants to lower their windows because the officers could not see 1 Defendant was separately indicted for the same offense, illegal gun possession, on a different occasion. The plea called for the same concurrent sentence on both indictments. 2 When shown a close-up photograph during the hearing of the bullet hole, Marella referred to it as a bullet hole in the rear driver's side door. A-5721-17T1 2 through the tinted glass. The driver was unable to produce his driver's license. Lawson performed a Terry3 frisk on the driver. Meanwhile, Marella saw defendant appearing to shift around in his seat in the rear, apparently nervous. Marella had been speaking to the front seat passenger, but when he noticed defendant's movements, he asked defendant to step out of the car. When defendant did so, with the aid of a flashlight, the officer saw a tightly secured black plastic bag tied around "the handle of a handgun sitting on the lip of [a] back pouch . . . of the passenger seat." The officer said he identified the object immediately upon seeing the gun handle, confirming his identification once he had his hand on the bag. Photographs of the interior and exterior of the car, as well as the bag and the gun itself, were admitted into evidence. Marella said they removed the gun immediately. The officers were outnumbered by the occupants of the car, it was dark, and Lawson and Marella did not know how close the backup officers were to the location of the stop. On cross-examination, the officer testified that he could not actually see the handle of the gun, only the shapes and contours inside the bag. He did not believe that the gun would have fit inside the pouch, as it contained other items. 3 Terry v. Ohio, 392 U.S. 1 , 27 (1968) (establishing a "narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer."). A-5721-17T1 3 Marella said he knew immediately when he looked at the bag that there was a gun inside. When Marella authored the complaint's probable cause narrative, he stated that he saw the "butt of [a] handgun near [a] plastic bag observed protruding from the rear pouch of the passenger seat." The judge found the facts as we have described them in the testimony. In addition, the judge found Marella to be a credible witness. Because Marella saw the handgun while standing outside of the car "during a lawful motor vehicle stop," the judge opined the plain view exception applied. The observation the officer made into the vehicle with the aid of his flashlight was not a search of the interior within the meaning of the Fourth Amendment. The judge also noted that the parties did not contest the initial motor vehicle stop. After having reviewed the relevant law as applied to the facts, the judge stated that because the handgun was in plain view, no warrant was required, the seizure was lawful, and the weapon would be admissible at trial. Now on appeal, defendant raises the following point: BECAUSE LAW ENFORCEMENT ORDERED MR. FLOYD, A PASSENGER, TO STEP OUT OF THE CAR WITHOUT OBJECTIVE FACTS TO SUPPORT A REASONABLE SUSPICION OF DANGER OR A NEED TO SECURE THE SCENE, THE MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED. A-5721-17T1 4  We note preliminarily that defendant did not argue at trial that the officers had no lawful basis to ask him to step out of the car. Defendant now attacks the circumstances, claiming that his movements and nervous appearance do not suffice as a matter of law to justify the request. As always, we defer to the trial court's factual findings on a motion to suppress unless clearly mistaken or so wide of the mark as to require our intervention. State v. Elders, 192 N.J. 224 , 245 (2007) (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261 , 279 (2007)). The judge's findings of fact and credibility determination on this record are amply supported. Our review of the trial judge's application of the law to these facts is de novo. State v. Harris, 181 N.J. 391 , 416 (2004) (holding appellate courts "review de novo the lower court's application of any legal rules to [the] factual findings."). We do not ordinarily consider questions that are raised for the first time on appeal. State v. Robinson, 200 N.J. 1 , 19 (2009). This is particularly true with regard to a suppression hearing. Raising the issue now means the judge had no opportunity to analyze it, make factual findings, and apply the law. See State v. Witt, 223 N.J. 409 , 419 (2015) (citing Robinson, 200 N.J. at 19 ). A-5721-17T1 5  Even if we were to consider defendant's argument, however, it is so lacking in merit as to not warrant much discussion in a written opinion. R. 2:11-3(e)(2). The cases defendant relies upon all lack the context of this unanticipated encounter between police and civilians. Unlike the cases defendant relies upon, in this case the officers had significant reasons to be concerned about their safety, namely, that a bullet hole was plainly visible in the body of the car. Because the windows were tinted and the officers could not see inside, they had no alternative but to ask the occupants to roll them down, and take the precaution of patting down the driver for their own safety. The pat- down occurred before Marella saw the gun handle. Given the bullet hole, the tinted windows, and defendant's nervous appearance while shifting in the back seat, Marella had sufficient basis to ask him to step outside of the car. In State v. Smith, 134 N.J. 599 , 618 (1994), the Court explained "that an officer must be able to point to specific and articulable facts that would warrant heightened caution to justify ordering the occupants to step out of a vehicle detained for a traffic violation." The standard is not as stringent as the Terry standard, and the officer need point only to some fact or facts in the totality of the circumstances that would create in a police officer a heightened awareness of danger that would warrant an objectively reasonable officer in A-5721-17T1 6  securing the scene in a more effective manner by ordering the passenger to alight from the car. [Ibid.] We conclude that the combination of circumstances here gave rise to concern for officer safety and constituted justification for asking the passenger, defendant, to step outside the vehicle. Defendant does not challenge the plain view observation made by the officer. His challenge on appeal is limited only to defendant's removal from the vehicle, which we have addressed. Affirmed. A-5721-17T1 7

2020-12-01 15:09:22.392459+00

http://www.judiciary.state.nj.us/attorneys/assets/opinions/appellate/unpublished/a0484-18.pdf

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-0484-18T4 STATE OF NEW JERSEY, Plaintiff-Respondent, v. DWAYNE N. WAKEFIELD, a/k/a DWAYNE M. WAKEFIELD, DEWAYNE N. WAKEFIELD, DWAYNE WAKEFIELD, and SUG WAKEFIELD, Defendant-Appellant. ________________________ Submitted October 27, 2020 – Decided December 1, 2020 Before Judges Haas, Mawla and Natali. On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment Nos. 16-11- 0979 and 17-12-0848. Joseph E. Krakora, Public Defender, attorney for appellant (Emma R. Moore, Assistant Deputy Public Defender, of counsel and on the brief).  Jeffrey H. Sutherland, Cape May County Prosecutor, attorney for respondent (Gretchen A. Pickering, Senior Assistant Prosecutor, of counsel and on the brief). PER CURIAM After the court denied defendant's motion to suppress, he pled guilty pursuant to a negotiated plea agreement to third-degree aggravated assault on a law enforcement officer, N.J.S.A. 2C:12-1(b)(5)(a), and second-degree possession with intent to distribute a controlled dangerous substance (CDS), cocaine, N.J.S.A. 2C:35-5(a)(1). The court sentenced defendant to an aggregate sixteen-year prison term with a fifty-four-month period of parole ineligibility and assessed applicable fines and penalties. In exchange for his plea, the State also agreed to dismiss seventeen additional charges in two separate indictments. Defendant raises the following issues on appeal: POINT I BECAUSE THE PROBABLE CAUSE AFFIDAVIT CONSISTED OF ONLY A FRAGILE TIP, SPARSELY[]DESCRIBED CONTROLLED BUYS, AND A STATE RECORDS CHECK, THE COURT BELOW ERRED IN DENYING MR. WAKEFIELD'S MOTION TO SUPPRESS. A. The CI's Tip Showed No Indication of Veracity or a Basis of Knowledge. B. The Criminal History Check Included No Convictions but Several Uncorroborated Tips. A-0484-18T4 2  The Remainder of the Records Checks Corroborated Only Innocent, Easy-to-Know Details. i. The DMV Records. ii. The Criminal History Check. iii. The Intelligence Reports. C. The Controlled Buys Did Not, Either Independently (as the Trial Judge Found) or In Combination with the Tip, Provide a Sufficient Basis for a Finding of Probable Cause. i. Controlled Buys On Their Own Are Always Insufficient to Establish Probable Cause. ii. The Suspected CDS Was Never Tested or Otherwise Identified. POINT II THE COURT BELOW IMPOSED A [SIXTEEN]- YEAR EXTENDED TERM WITHOUT OBSERVING STATUTORILY AND CONSTITUTIONALLY MANDATED PROCEDURE. MR. WAKEFIELD'S SENTENCE MUST THEREFORE BE VACATED. A. The State's Failure to Give Sufficient Notice That It Was Pursuing an Extended Term and the Basis Therefore and to Confirm Such Notice On the Record. B. The Prosecutor's Failure to Develop a Record Explaining Its Factual Grounds and Choice to Pursue the Extended Term. A-0484-18T4 3  C. The Court's Failure to Explain and Document Its Acceptance of the Extended[-]Term Recommendation. After reviewing the record in light of the contentions on appeal and the applicable law, we affirm. I. On September 7, 2016, Officer Michael Pastore (Pastore) of the Middle Township Police Department Street Crimes Unit (SCU) applied for a warrant to search defendant and Angel Davis'1 (Davis) Whitesboro residence. The application was supported by Pastore's affidavit which, among other information, detailed his interactions with a confidential informant (CI) in August 2016.2 According to the affidavit, the CI informed Pastore that he/she had "first - hand knowledge" that defendant and Davis were distributing crack cocaine. The CI further noted that he/she had previously purchased crack cocaine from them "in the past." The CI also stated that defendant and Davis were "currently 1 Davis was a co-defendant but is not a party to this appeal. 2 The affidavit incorrectly stated that Pastore met with the CI on September 22, 2016, which the State ascribes to a typographical error. We have considered, and reject, defendant's arguments that this error affects the "staleness" of the CI's tip for the reasons detailed on pages 12-18. A-0484-18T4 4 selling" cocaine from their home. Pastore conducted a New Jersey motor vehicle inquiry which confirmed that the address provided by the CI was defendant's residence. The CI further informed Pastore that defendant and Davis' five young children also lived in the home. During the week of August 29, 2016, Pastore coordinated with the CI to arrange a controlled purchase of crack cocaine from defendant and Davis. Prior to the purchase, the CI was searched and found to be free of any "contraband and money." Pastore then provided the CI with money and instructed the CI "to meet with [him] immediately upon completion of the transaction." SCU officers who were surveilling the transaction observed the CI enter the residence. The affidavit further noted that the SCU officers did not witness the CI contact any other individual outside of the home. The CI left the residence, met with Pastore, and handed him what was suspected to be crack cocaine purchased from Davis. A field test was not performed, and the purported narcotics were subsequently logged into evidence "pending analysis by the Cape May County Prosecutor's Laboratory." The CI further noted that both defendant, Davis, and the five children were present at the residence when the drug transaction occurred. A-0484-18T4 5  That same week, Pastore coordinated with the CI to arrange a second controlled purchase of crack cocaine from defendant and Davis at their home. The CI was again searched, provided with money, and observed by SCU officers. The CI purchased the suspected narcotics from Davis but once again, no field test was performed on the purported narcotics.3 In addition to describing the two controlled buys, the affidavit included a detailed account of defendant's criminal history. Pastore stated that he had obtained this information through a criminal history check, which revealed that the defendant had been arrested twenty-one times over a span of approximately thirty years for crimes including possession of narcotics, assault, and resisting arrest. The affidavit, however, did not provide the final dispositions of the defendant's prior arrests. The affidavit also included additional background information regarding defendant contained in intelligence reports provided by the Cape May County Prosecutor's Office. Specifically, the affidavit noted a January 20, 2016 incident where an informant "stated he could purchase firearms from [defendant]." The affidavit further provided that on two separate occasions concerned citizens 3 Defendant admitted at his plea hearing that the suspected narcotics seized were cocaine. A-0484-18T4 6 contacted the Cape May County Sheriff's tip line to report that they believed defendant was selling narcotics in the Whitesboro and Wildwood area. The affidavit also referenced an April 1, 2016 incident where defendant was listed as a suspect in a shooting. Based on the information in the affidavit, the court issued a "no-knock" search warrant for the defendant, Davis, and their residence. Pastore executed the search warrant and seized suspected cocaine, heroin, marijuana, approximately $1,200 in cash, a digital scale, two pistol crossbows, and a "3800 PC Type Ultra High Power Taser." Defendant moved to suppress the physical evidence seized pursuant to the search warrant. He principally asserted that the warrant lacked probable cause because it included the incorrect date for when Pastore met with the CI and that the CI's tip was not "sufficiently corroborated." The court rejected defendant's arguments and specifically found that the "independent corroboration in the form of two controlled buys . . . support[ed] a finding of probable cause." As defendant also challenges the court's imposition of an extended term, we briefly discuss the plea discussions. We also discuss relevant portions of defendant's bail and sentencing proceedings. A-0484-18T4 7  As noted, defendant pled guilty to third-degree aggravated assault on a law enforcement officer and second-degree possession with intent to distribute cocaine. Before and after defendant's plea, the State raised his extensive prior criminal history with the court. For example, at his bail hearing, the State opposed defendant's release and informed the court that defendant had "[twenty- one] arrests [and] [ten] indictable convictions." In his plea form, defendant responded to the first question by stating that the statutory maximum for the two offenses to which he intended to plead guilty was fifteen years, ten years for the second-degree possession with intent to distribute charge and five years for the third-degree assault offense. He acknowledged in response to question seven, however, that he was aware that the charges pled to required "a mandatory period of parole ineligibility or a mandatory extended term[.]" (emphasis added). He failed to complete fully the response to that question which indicated the length of those mandatory periods but provided additional relevant information in response to question thirteen where he acknowledged in handwritten notes that the "prosecutor has agreed to recommend . . . [a] [sixteen] year[] [sentence] . . . [with a fifty-four-month parole A-0484-18T4 8 ineligibility] pursuant to Brimage."4 Moreover, in a supplemental plea form defendant noted that "[he] entered into [an] agreement to provide for a lesser sentence or period of parole ineligibility than would otherwise be required[.]" (emphasis added). That same day at the defendant's plea hearing, the State expressed that "[defendant] is somebody that is mandatory pursuant to the Brimage guidelines." Specifically, the State noted that "even though it's a second-degree offense he would be sentenced in the first-degree range for the recommended sentence of . . . [sixteen years] with a [fifty-four-month parole ineligibility]." The court then confirmed that defendant's second-degree possession charge "would be sentenced as a first [degree][.]" 4 State v. Brimage, 153 N.J. 1 (1998). In Brimage, our Supreme Court directed the Attorney General to promulgate uniform plea offer guidelines. Id. at 25 . The guidelines are intended to provide standards for plea offers for Comprehensive Drug Reform Act of 1987, N.J.S.A. 2C:35-1 to 36-1 (CDRA) offenses and reduce the chance of disparity in sentencing. Brimage, 153 N.J. at 13 . Plea agreements under N.J.S.A. 2C:35-12 are governed by those guidelines, 153 N.J. at 24-25 ; see Revised Attorney General Guidelines for Negotiating Cases Under N.J.S.A. 2C:35-12 (July 15, 2004); State v. Fowlkes, 169 N.J. 387 , 389 (2001). As discussed, infra, the second-degree possession with intent to distribute a CDS charge was a Brimage-eligible CDRA offense that subjected defendant to a mandatory extended term sentence under N.J.S.A. 2C:43-6(f). Defendant does not contend that his negotiated plea was contrary to the Brimage guidelines. A-0484-18T4 9  The court also questioned the defendant extensively as to whether he accepted the plea voluntarily and knowingly: [The Court]: All right. In front of you are the yellow plea forms. Did you review those with your attorney? [Defendant]: Yes, ma'am. [The Court]: All right. And did you initial all of those pages? [Defendant]: Yes, ma'am. [The Court]: And does your signature appear on those pages? [Defendant]: Yes, ma'am [The Court]: Did you answer all the questions on the plea forms truthfully? [Defendant]: Yes. [The Court]: And do the circled responses indicate or represent your truthful answers? [Defendant]: Yes, ma'am. [The Court]: Okay. Do you understand what you're doing today? [Defendant]: Yes, ma'am. [The Court]: What are you doing? [Defendant]: I'm giving fact finding of the charges that . . . I'm pleading guilty to. A-0484-18T4 10  .... [The Court]: And if you have any reservations then I don't want you to enter a guilty plea. [Defendant]: I don't have any reservations. The court then directed the defendant to specific sections of the plea form to ensure that he understood its terms. [The Court]: Okay. Are you pleading guilty to these two charges of aggravated assault and possession with intent because you are, in fact, guilty of those charges? [Defendant]: Yes, ma'am. .... [The Court]: Okay. You heard the recommendation of the prosecutor for the sentence. That also appears on page [three] at number [thirteen]. [This] [i]ndicates that there is a four-year New Jersey state prison sentence flat to run concurrent with a [sixteen] year New Jersey State prison sentence of which you [must] serve [fifty-four] months. Do you understand that to be the recommendation? [Defendant]: Yes, ma'am. .... [The Court]: Okay. And if you look at the first page it indicates that the maximum sentence you could receive on these two charges combined is [fifteen] years. Do you understand that? A-0484-18T4 11  [Defendant]: Yes. [The Court]: Okay. And you also understand that pursuant to Brimage there is this mandatory period of parole ineligibility of [fifty-four] months? [Defendant]: Yes. At sentencing, the trial court found, and ascribed significant weight to aggravating factor three, N.J.S.A. 2C:44-1(a)(3) ("[t]he risk that the defendant will commit another offense") and nine, N.J.S.A. 2C:44-1(a)(9) ("[t]he need for deterring the defendant and others from violating the law"). The court also found and assigned "more than moderate-weight" to aggravating factor six, N.J.S.A. 2C:44-1(a)(6) ("[t]he extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted"). After the court concluded that the aggravating factors preponderated over the non-existent mitigating factors, the court sentenced defendant in accordance with the negotiated plea agreement. The court further noted that the plea deal was in accordance with "the Attorney General Guidelines mandated by [Brimage]" and that "[t]he sentence recommendation . . . is appropriate under the facts and circumstances of this case and appears to be in the interest of justice." A-0484-18T4 12  II. In defendant's first point, he contends that the court committed error in denying his motion to suppress because the search of his residence and person was based on an unconstitutional warrant that was issued without probable cause. Defendant specifically contends that the facts contained in the probable cause affidavit, individually or collectively, failed to establish that there was a fair probability that contraband would be found in defendant's residence or on him personally. We disagree. "[A] search executed pursuant to a warrant is presumed to be valid and . . . a defendant challenging its validity has the burden to prove 'that there was no probable cause supporting the issuance of the warrant or that the search was otherwise unreasonable.'" State v. Jones, 179 N.J. 377 , 388 (2004) (quoting State v. Valencia, 93 N.J. 126 , 133 (1983)). "Accordingly, courts 'accord substantial deference to the discretionary determination resulting in the issuance of the [search] warrant.'" State v. Keyes, 184 N.J. 541 , 554 (2005) (alteration in original) (quoting Jones, 179 N.J. at 388 ). When "reviewing a grant or denial of a motion to suppress [we] must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." State v. Gamble, 218 N.J. 412 , 424 (2014) A-0484-18T4 13 (citing State v. Elders, 192 N.J. 224 , 243 (2007)). We "should reverse only when the trial court's determination is 'so clearly mistaken that the interests of justice demand intervention and correction.'" Id. at 425 (quoting Elders, 192 N.J. at 244 ) (citation omitted). "A trial court's interpretation of the law, however, and the consequences that flow from established facts are not entitled to any special deference. " Ibid. (citations omitted). Thus, "a trial court's legal conclusions are reviewed de novo." Ibid. (citing State v. Gandhi, 201 N.J. 161 , 176 (2010)). Any "[d]oubt as to the validity of the warrant 'should ordinarily be resolved by sustaining the search.'" Keyes, 184 N.J. at 554 (quoting Jones, 179 N.J. at 389 ). The New Jersey Constitution provides, "no warrant shall issue except upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the papers and things to be seized." N.J. Const. art. I, ¶ 7. "When a court receives an application from the police for a search warrant, it should not issue that warrant 'unless [it] is satisfied that there is probable cause to believe that . . . evidence of a crime is at the place sought to be searched.'" State v. Smith, 212 N.J. 365 , 388 (2012) (quoting State v. Sullivan, 169 N.J. 204 , 210 (2001)) (alterations in original). A-0484-18T4 14  Probable cause requires "less than legal evidence necessary to convict though more than mere naked suspicion." Ibid. (quoting State v. Mark, 46 N.J. 262 , 271 (1966)). It exists when a police officer possesses "a 'well grounded' suspicion that a crime has been or is being committed." Sullivan, 169 N.J. at 211 . The court must "make a practical, common sense determination whether, given all of the circumstances, 'there is a fair probability that contraband or evidence of a crime will be found in a particular place.'" State v. O'Neal, 190 N.J. 601 , 612 (2007) (quoting Illinois v. Gates, 462 U.S. 213 , 238 (1983)). Further, probable cause must be determined "based on the information contained within the four corners of the supporting affidavit, as supplemented by sworn testimony before the issuing judge that is recorded contemporan eously." State v. Marshall, 199 N.J. 602 , 611 (2009) (quoting Schneider v. Simonini, 163 N.J. 336 , 363 (2000)). "Information related by informants may constitute a basis for probable cause, provided that a substantial basis for crediting that information is presented." Jones, 179 N.J. at 389 (citing Sullivan, 169 N.J. at 212 ). The issuing court must consider the totality of the circumstances in determining whether an informant's tip establishes probable cause, including the informant's "veracity and basis of knowledge." Ibid. (citing State v. Novembrino, 105 N.J. 95 , 123 A-0484-18T4 15 (1987)); see also Gates, 462 U.S. at 238-39 . These are the most important factors, and a deficiency in one may be compensated "by a strong showing as to the other, or by some other indicia of reliability." State v. Zutic, 155 N.J. 103 , 110-11 (1998). "[R]elevant corroborating facts may include a controlled drug buy performed on the basis of the tip, positive test results of the drugs obtained, records confirming the informant's description of the target location, the suspect's criminal history, and the experience of the officer who submitted the supporting affidavit." Keyes, 184 N.J. at 556 . Although no fact by itself establishes probable cause, "a successful controlled [drug] buy 'typically will be persuasive evidence in establishing probable cause.'" Ibid. (quoting Sullivan, 169 N.J. at 217 .) Here, we agree with the trial court that the affidavit established probable cause for the issuance of the warrant. In this regard, the affidavit detailed: 1) Pastore's observations of two separate controlled buys of narcotics at defendant's place of residence; 2) defendant's prior criminal record involving illicit narcotics; and 3) Pastore's relevant training and experience as a law enforcement A-0484-18T4 16 officer.5 Contrary to defendant's contention, the affidavit included ample evidence supporting "a practical, common sense determination [that], given all of the circumstances, there [was] a fair probability that contraband or evidence of a crime [would] be found in [the] particular place" for which the search warrants were issued. Marshall, 199 N.J. at 610 (quoting O'Neal, 190 N.J. at 612 ); see also Jones, 179 N.J. at 389 (noting the court must consider "the totality of the circumstances" in determining if there is probable cause for a search). We specifically reject defendant's claim that the affidavit was deficient because the items purchased in the two controlled buys were not tested to confirm they were controlled dangerous substances. A positive test for suspected narcotics is not essential to a finding of probable cause that items are controlled dangerous substances. See Jones, 179 N.J. at 394 . Here, as in Jones, "nothing presented . . . suggested that the purchased substance was anything other than what its sellers held it out to be." Id. at 395 . In that case, the court further noted that regardless of the chemical makeup of the purported narcotics, 5 We acknowledge the affidavit did not inform the court of the disposition of the charges and therefore was not in accordance with the instruction in Jones that "arrest records disclosed in supporting affidavits" for a "no-knock" warrant should "include the disposition of those arrests." 179 N.J. at 404 . Despite this omission, we are nevertheless satisfied that the affidavit provided more than sufficient information to establish probable cause for the issuance of the search warrant. A-0484-18T4 17 there was still sufficient information to find "probable cause that illegal narcotics activity was occurring." Ibid. Specifically, the court held that in the "totality of the circumstances," the officer's narcotics training, and the coordinated purchase of illegal drugs established "sufficient probable cause to issue the search warrant." Id. at 396-97 . The totality of the facts presented here—including the coordination of the controlled purchase of crack cocaine, the circumstances under which the controlled buys were made, and Pastore's training and experience—established probable cause to believe the purchased items were illicit narcotics. Although the items purchased during the two controlled buys were not tested at the time Pastore applied for the warrant "[t]he circumstances detailed in the warrant application plainly indicated that the sole purpose of the [controlled buys] between the informant and the suspects . . . was to exchange money for drugs." Id. at 395 . In sum, the facts contained in the affidavit conclude that there was "a fair probability that contraband or evidence of a crime [would] be found in a particular place." O'Neal, 190 N.J. at 612 . Specifically, the affidavit states that the CI knew that the defendant was "selling crack cocaine from [his] residence located in Whitesboro" and that he/she had "bought crack cocaine from A-0484-18T4 18 [defendant] . . . in the past." The affidavit further noted that this "tip" was corroborated when the CI had obtained what was purported to be crack cocaine from two controlled purchases at defendant's residence. III. Defendant next argues that his sixteen-year extended term sentence should be vacated because the court failed to "comply with mandatory procedural safeguards" and he was therefore sentenced contrary to his due process rights. Specifically, defendant asserts that the State failed to give sufficient notice that it was pursuing an extended term pursuant to Rule 3:21-4(e) and failed to delineate its reason for pursuing the sentence, claiming it is unclear from the record if the court's basis for imposing an extended term was pursuant to the mandatory provisions of N.J.S.A. 2C:43-6(f) or the discretionary provisions of N.J.S.A. 2C:44-3(a). In addition, the defendant contends that the court "fail[ed] to explain and document its acceptance of the extended term recommendation." We are not persuaded by any of these arguments. When reviewing a sentence imposed by the trial court, we apply a "deferential" standard of review. State v. Fuentes, 217 N.J. 57 , 70 (2014). We will "not substitute [our] judgment for that of the sentencing court." Ibid. We must uphold the trial court's sentencing decision unless: (1) the court did not A-0484-18T4 19 comply with the sentencing guidelines; (2) the court's findings on the aggravating and mitigating factors were not based upon competent and credible evidence in the record; or (3) "the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience." Ibid. (quoting State v. Roth, 95 N.J. 334 , 364-65 (1984)) (alteration in original). "These standards apply as well to sentences that result from guilty pleas, including those guilty pleas that are entered as part of a plea agreement." State v. Sainz, 107 N.J. 283 , 292 (1987) (citing State v. O'Connor, 105 N.J. 399 , 405-08 (1987)). We initially note that defendant failed to challenge his plea or raise any due process argument at any point in the trial court and for that reason alone we could reject his newly minted claims. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229 , 234 (1973). We have nevertheless considered the arguments on the merits and reject them. Defendant's arguments proceed on the assumption that a lack of clarity exists in the record as to his eligibility for a mandatory extended term under N.J.S.A. 2C:43-6(f), or a discretionary term under N.J.S.A. 2C:44-3(a). Based on our review of the record we disagree. N.J.S.A. 2C:43-6(f) provides that: A-0484-18T4 20  A person convicted of manufacturing, distributing, dispensing or possessing with intent to distribute any dangerous substance . . . under N.J.S.[A. ]2C:35-5 . . . who has been previously convicted of manufacturing, distributing, dispensing or possessing with intent to distribute a controlled dangerous substance . . . shall upon application of the prosecuting attorney be sentenced by the court to an extended term as authorized by subsection c of N.J.S.[A. ]2C:43-7 . . . . The term of imprisonment shall, except as may be provided in N.J.S.[A. ]2C:35-12, include the imposition of a minimum term. The minimum term shall be fixed at, or between, one-third and one-half of the sentence imposed by the court or three years, whichever is greater, not less than seven years if the person is convicted of a violation of N.J.S.[A. ]2C:35-6, or [eighteen] months in the case of a fourth degree crime, during which the defendant shall be ineligible for parole. [N.J.S.A. 2C:43-6(f) (emphasis added).] Here, defendant's presentence report, which the sentencing court expressly referenced and relied upon twice during the sentencing hearing (the court noted that it "reviewed and considered defendant's criminal history" and that its "decision is based in part upon confidential information contained in the pre-sentence investigation report"), and which was submitted without objection, confirms that defendant was convicted in 1988 and 1989 for distribution of CDS contrary to N.J.S.A. 2C:35-5(a)(1). He was also convicted of possession of CDS in 1989, N.J.S.A. 2C:35-10(a); resisting arrest in 1989, N.J.S.A. 2C:29-2; A-0484-18T4 21 loitering for purpose of illegally using, possessing, or selling CDS in 2002, N.J.S.A. 2C:33-2.1; hindering apprehension or prosecution in 2004, N.J.S.A. 2C:29-3(b)(2); criminal mischief in 2005, N.J.S.A. 2C:17-3(b)(2); and false imprisonment in 2016, N.J.S.A. 2C:13-3. Defendant also pled guilty to CDS- related offenses in 1996, 2007, and 2009. Defendant also had four municipal convictions for possession of a CDS , N.J.S.A. 2C:35-10(a). See State v. Irrizary, 328 N.J. Super. 198 , 203 (App. Div. 2000) (noting that intervening convictions weigh against a finding that a predicate act was too "remote" for the imposition of an extended term sentence). Although, defendant claims he does not "concede" that he was subject to a mandatory extended term, the record, as stated, establishes beyond peradventure that his repeated convictions for N.J.S.A. 2C:35-5(a)(1) and his later CDS- related convictions subjected him to the mandatory provisions of N.J.S.A. 2C:43-6(f). Further, the trial court clearly considered defendant's extensive criminal history when it found "[e]ight of the defendant's ten felony convictions resulted from CDS-related offenses." As a defendant subject to a mandatory extended term, any plea that reduced his mandatory or minimum term must be entered under N.J.S.A. 2C:35- A-0484-18T4 22 12 (Section 12). See State v. Courtney, 243 N.J. 77 , 88 (2020). Section 12 provides that: [w]henever an offense defined in this chapter specifies a mandatory sentence of imprisonment which includes a minimum term during which the defendant shall be ineligible for parole, [or] a mandatory extended term which includes a period of parole ineligibility . . . the court upon conviction shall impose the mandatory sentence . . . unless the defendant has pleaded guilty pursuant to a negotiated agreement . . . which provides for a lesser sentence [or] period of parole ineligibility . . . . The negotiated plea . . . may provide for a specified term of imprisonment within the range of ordinary or extended sentences authorized by law [or] a specified period of parole ineligibility . . . . In that event, the court at sentencing shall not impose a lesser term of imprisonment [or] lesser period of parole ineligibility . . . . [N.J.S.A. 2C:35-12 (emphasis added).] Here, defendant agreed to a negotiated plea under Section 12 as he pled guilty to an extended term sixteen-year aggregate sentence with a mandatory fifty-four months of parole ineligibility. Defendant, however, was subject to a sixty-four-month mandatory period of parole ineligibility and a term of imprisonment "between [ten] and [twenty] years," pursuant to N.J.S.A. 2C:43 - 6(f). Rule 3:21-4(e) governs the procedures for a motion "pursuant to . . . N.J.S.A. 2C:43-6(f) for the imposition of an extended term of imprisonment." A-0484-18T4 23 The Rule provides that when defendant accepts a negotiated disposition that includes a recommendation of an extended term "the prosecutor's oral notice and the recordation of the extended term exposure in the plea form completed by defendant and reviewed on the record shall serve as the State's motion." R. 3:21- 4(e). Here, appropriate notice of the extended term sentence was provided pursuant to Rule 3:21-4(e). That notice is reflected in the defendant's affirmative answer to the question posed in the plea form that asked "if [defendant] enter[ed] a plea of guilty to any charges that require a mandatory period of parole ineligibility or a mandatory extended term[.]" (Emphasis added). In addition, the plea form clearly indicates that the prosecutor recommended a sixteen-year sentence with fifty-four months of parole ineligibility "pursuant to Brimage." Moreover, in the supplemental plea form, the defendant acknowledged that he entered into the agreement "to provide for a lesser sentence or period of parole ineligibility than would otherwise be required[.]" In addition, the State provided oral notice of the extended term sentence at the defendant's plea hearing. Specifically, the State noted that "[defendant] is somebody that is mandatory pursuant to the Brimage guidelines. So even A-0484-18T4 24 though it's a second-degree offense he would be sentenced in the first-degree range for the recommended sentence of [sixteen years] with a [fifty-four-month parole ineligibility]." Defendant was also questioned extensively as to his understanding of the extended sentence by the trial court at his plea hearing. In this regard, the trial court directed defendant to "page [three] at number [thirteen]" of the plea form and confirmed that he understood "that there is a four-year . . . state prison sentence flat to run concurrent with a [sixteen] year . . . prison sentence of which you must serve [fifty-four] months." The court also confirmed that the defendant understood "that pursuant to Brimage there is this mandatory period of parole ineligibility of [fifty-four] months[.]" Further, defendant has been aware of a mandatory extended term sentence since his hearing for bail modification in September 2017. Indeed, defendant 's counsel expressly stated, "we do recognize that his offer is a Brimage offer." When taken into account with the continuous references to Brimage throughout the course of the prosecution and defendant's own acknowledgement of the extended term in the plea form, there is ample evidence to support a finding that defendant was not deprived of proper notice that the State was seeking a mandatory extended term. A-0484-18T4 25  We also find instructive the Supreme Court's discussion in its recent decision State v. Courtney, 243 N.J. 77 , 88 (2020). In Courtney, the Court addressed whether the State was required to file a formal application of its waiver of an extended term sentence in a plea negotiated under Section 12. Id. at 88. In that case, the defendant was subject to an extended term pursuant to N.J.S.A. 2C:43-6(f). Ibid. The Court noted that subsection (f) "requires the prosecutor to file an application to impose an extended term." Ibid. (quoting Brimage, 153 N.J. at 11 ). Notably, the Court stated that "[n]owhere in Section 12 is there a requirement for a formal procedure" and "Section 12 expressly permits the State to negotiate away its right to seek mandatory sentences." Ibid. (emphasis added). The Courtney Court also emphasized that it would be "clear in most cases whether a defendant is extended-term eligible under N.J.S.A. 2C:43-6(f)" but in those "small number of matters" where the issue is disputed, the Court proposed for consideration by the Criminal Practice Committee and the Court the following revisions to Rule 3:21-4(e)'s procedures: 1) If the prosecutor agrees not to file an application for an extended term as part of a plea agreement but intends to seek the benefit of Section 12 at sentencing, then the trial court shall ask the prosecution on the record whether defendant is extended-term eligible; A-0484-18T4 26  2) Defendant shall be given an opportunity to object; 3) If defendant does not object, the trial court's inquiry ends there, and the prosecution may proceed under the plea agreement without being required to file a formal motion; 4) If, however, defendant objects, then the prosecution would have to meet its burden of proof by demonstrating defendant's eligibility for an extended term; and 5) The trial court would then make a finding as to whether the prosecution has met its burden. [Id. at. at 90-91.] Finally, the Court requested "the Director of the Administrative Office of the Courts to revise the standard plea form to confirm whether the prosecution agrees not to request an extended term under N.J.S.A. 2C:43-6(f) but still seeks the benefit of a negotiated waiver of the CDRA's mandatory sentence requirements under Section 12." Id. at 91 .6 6 As we discussed, at the plea hearing the court stated that "if you look at the first page it indicates that the maximum sentence [defendant] could receive on these two charges combined is [fifteen] years." It is clear from a review of the entire record that the court was referring to question one of the plea form in which defendant identified the statutory maximum sentence for the two offenses to which he was pleading guilty as opposed to the potential extended term sentence to which he was clearly exposed. The court's later colloquy at the plea and sentencing hearings made clear that defendant was pleading guilty to sixteen, not fifteen years. And in this regard defendant did not claim in the trial A-0484-18T4 27  Although we have already concluded that it was clear that defendant was eligible for a mandatory extended term and that the State has provided sufficient notice under Rule 3:21-4(e), we are nevertheless satisfied that the State has satisfied its notice requirement under the Supreme Court's proposed revisions to Rule 3:21-4(e) as well. As noted, in addition to the colloquy noted at the bail and sentencing proceedings, at the plea hearing the trial court confirmed with the State that the second-degree possession charge "would be sentenced as a first [degree offense]." At no point did the defendant object to this statement. Finally, we reject defendant's argument that the trial court failed to "explain and document its acceptance of the extended-term recommendation." Rule 3:21-4(e) further provides that "the sentence shall include a determination as to whether the defendant was convicted and sentenced to an extended term of imprisonment as provided in . . . N.J.S.A. 2C:43-6(f) . . . and the commitment or order of sentence which directs the defendant's confinement shall so specify." As noted above, the trial court considered defendant's criminal history in its application of aggravating factors. Specifically, the court noted after reviewing the presentence report that "defendant's ten felony convictions court, or before us, that he understood that his plea imposed a fifteen rather than sixteen-year extended term sentence. A-0484-18T4 28 resulted from CDS-related offenses." The court further found that defendant's sentence was consistent with the "Attorney General Guidelines mandated by [Brimage]." Finally, the Judgment of Conviction memorialized that defendant was sentenced pursuant to the Attorney General Guidelines mandated by Brimage. We therefore conclude that the judge appropriately sentenced defendant to an extended term with a period of parole ineligibility less than that prescribed by N.J.S.A. 2C:43-6(f) and there is sufficient credible evidence in the record to support the judge's findings including those on the aggravating and mitigating factors. The sentence is reasonable and does not shock the judicial conscience. See Fuentes, 217 N.J. at 70 (quoting Roth, 95 N.J. at 364-65 ). To the extent we have not addressed any of defendant's remaining arguments it is because we have determined that they are without sufficient merit to warrant discussion in a written opinion. See R. 2:11-3(e)(2). Affirmed. A-0484-18T4 29

2020-12-01 15:09:23.864348+00

http://www.judiciary.state.nj.us/attorneys/assets/opinions/appellate/unpublished/a0436-18.pdf

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-0436-18T1 STATE OF NEW JERSEY, Plaintiff-Respondent, v. DARREN E. RICHARDSON, Defendant-Appellant. ______________________________ Submitted October 20, 2020 – Decided December 1, 2020 Before Judges Yannotti and Haas. On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 17-10-0966. Joseph E. Krakora, Public Defender, attorney for appellant (Robert Carter Pierce, Designated Counsel, on the brief). Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Mark Niedziela, Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief. PER CURIAM  Defendant was tried before a jury and found guilty of third-degree possession of a controlled dangerous substance (CDS), namely marijuana, with intent to distribute, and other offenses. He was sentenced to an aggregate term of eight years of incarceration, with four years of parole ineligibility. He appeals from the judgment of conviction dated July 26, 2018. We affirm. I. In October 2017, a Passaic County grand jury returned a twenty-four- count indictment in which defendant was charged with fourth-degree distribution of a CDS (marijuana), N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35- 5(b)(12) (count five); fourth-degree possession of a CDS (marijuana), N.J.S.A. 2C:35-10(a)(3) (count six); third-degree possession of a CDS (marijuana), with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(11) (count seven); third-degree distribution of a CDS (marijuana), N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(11) (count eight); fourth-degree possession of a CDS (hashish), N.J.S.A. 2C:35-10(a)(3) (count nine); and third-degree possession of a CDS (hashish), with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(11) (count ten). Beatrice J. Ramirez, George E. Thomas, Shaina M. Harris, Daniel F. Valerio, Leonardo J. Barragan, and Kenneth Coe also were A-0436-18T1 2 charged in the indictment with various offenses related to the possession of a CDS.1 The trial court denied defendant's motion to dismiss count five of the indictment and his motion to sever certain counts in the indictment. In addition, the court denied defendant's motions to suppress evidence based upon a warrantless search, preclude the State from presenting certain laboratory evidence, compel the State to provide additional discovery, and require the State to disclose the identity of a confidential informant. Prior to trial, Barragan pled guilty to count twenty-two of the indictment, in which he was charged with third-degree possession of marijuana with intent to distribute. In addition, Coe pled guilty to count twenty-three in which he was charged with fourth-degree possession of marijuana. It is unclear from the record how the charges against Cespedes and Harris were resolved. Defendant, Ramirez, and Valerio were tried before a jury. At the trial, Detective Vincent Ricciardelli testified that in August 2017, he was employed by the Wayne Township Police Department (WTPD) and assigned to its Special Operations and Narcotics Bureau. He was assisting the 1 The State and defendant refer to Thomas as George Thomas Cespedes. A-0436-18T1 3 Passaic County Prosecutor's Office (PCPO) in its investigation of Harris and Cespedes regarding the illegal possession and distribution of marijuana. Ricciardelli said the officers had search warrants for Harris's residences on Lake Drive in Haskell, New Jersey, and on Front Street in Paterson, New Jersey, but Harris could not be found at those locations. The officers contacted an informant who told them Harris was going to be at a Ramada Inn in Wayne. On August 2, 2017, Ricciardelli and Detective Paul Kindler of the WTPD went to that location. Ricciardelli testified that he observed Harris enter the hotel. Ricciardelli and Kindler then set up surveillance at the hotel, using the hotel's surveillance cameras. Ricciardelli saw defendant, whom he knew from a prior narcotics investigation. According to Ricciardelli, defendant was supposed to be on home detention as a condition of bail related to other CDS charges. The hotel manager informed Ricciardelli that defendant was staying in Room 245. Ricciardelli stated that it appeared drug activity was taking place in and around defendant's room. Ricciardelli observed several persons coming in and out of the room. Early in the afternoon, Ricciardelli observed a female, who was later identified as Ramirez, arrive at the hotel in a white Mercedes. She A-0436-18T1 4 parked in the rear parking lot near Room 245 and used a key card to enter the room. Ramirez thereafter exited the room, got into the Mercedes, and drove to the front of the hotel. She later drove the Mercedes to the rear of the building and parked the car alongside a Jeep. She used a key fob to open the doors to the Jeep and placed an object in that vehicle. She then returned to Room 245. On August 3, 2017, Ricciardelli and Kindler continued their surveillance at the hotel. Ricciardelli observed defendant and Barragan entering and exiting Room 245. He saw defendant leave the room with a brown paper bag, go to the white Mercedes, place the bag on the car's rear passenger seat, and return to the room. A short time later, defendant left the room with a small paper bag, which he placed in the front passenger seat of the Mercedes. Defendant then returned to the room, while Ramirez and an unknown male drove off in the Mercedes. That afternoon, Ricciardelli observed a white Nissan Maxima arrive and park in the rear of the Ramada Inn. Two males, who were later identified as Coe and Valerio, exited the car. Coe had been driving the Nissan and Valerio was the passenger. They met defendant on the second-floor balcony outside Room 245 and had a short conversation. Coe entered the room but remained in the A-0436-18T1 5 open doorway. Coe had a black plastic bag in his hand. He appeared to open the bag and show defendant its contents. Ramirez and Barragan left the room. A short time later, Coe emerged from the room. He was holding a small, white plastic shopping bag. Coe and Valerio went down the stairs and departed in the white Nissan Maxima. Ricciardelli radioed police units in the area and informed them that it appeared a drug transaction had taken place. He directed the units to make an investigatory stop of the car. At the time, Detective Gary Bierach of the Totowa Police Department (TPD) and another detective were stationed at a location on Route 46 in Totowa, a short distance from the hotel. They followed the Nissan and conducted a motor vehicle stop. Bierach reported to Ricciardelli what had happened during the stop. Ricciardelli decided to secure Room 245 at the Ramada Inn and either obtain consent to search the room or apply for a search warrant. He was concerned evidence could be altered or destroyed. Ricciardelli knocked on the door and loudly announced, "Police." The door was ajar and he could smell a heavy odor of raw marijuana. Defendant, Ramirez, and Barragan were in the room. The officers placed them under arrest and removed them from the room. The officers closed and locked the door. Two A-0436-18T1 6 officers were posted outside to ensure no one went in or out of the room. Officers also monitored the Mercedes. Ricciardelli and another detective submitted an affidavit in support of an application for search warrants for defendant's room and the Mercedes. On August 4, 2017, a judge issued the warrants, which were executed that day. Ricciardelli testified that on a writing desk, the officers found a partially- smoked marijuana cigarette, a box of unused sandwich bags, a box of tin foil, an open roll of black garbage bags, a box of rubber bands, a pipe used to s moke tetrahydrocannabinol (THC) oil, and two containers with a residue of oil. In a wastepaper basket under the table, the officers found a clear Tupperware container with a digital scale and two bags of suspected raw marijuana. Behind the door, the officers found a black garbage bag with trash. In the bag, the officers recovered a large food bag with suspected marijuana and a bag containing three empty plastic bags. On the bed, the officers found an open suitcase with a food saver bag. They found $3055 in cash on the nightstand, of which $3000 was wrapped in $1000 bundles with rubber bands. In the refrigerator, the officers found two sheets of THC wax wrapped in wax paper. In a compartment in the trunk of the Mercedes, the officers recovered $17,500 in cash, of which $17,000 was wrapped in $1000 bundles with rubber A-0436-18T1 7 bands similar to those found in the room. The money was in white and black plastic bags, which were stuffed inside an empty box that had been placed into another box. On cross-examination, Ricciardelli stated that he contacted the Passaic County Sheriff's Office and requested a K-9 team to examine Room 245 and the Mercedes for the presence of CDS. The team arrived after the officers secured the room. Ricciardelli said the dog sniffed the Mercedes and the area of the room but did not provide a conclusive "alert" of the presence of CDS at either location. Bierach testified that in August 2017, he was employed by the TPD and assigned to the PCPO's Narcotics Task Force. He stated that on August 3, 2017, he was with another detective in an unmarked car. After receiving a communication from Ricciardelli, Bierach observed the white Nissan traveling east on Route 46. Bierach activated the lights and sirens on his vehicle and stopped the Nissan. Coe and Valerio were in the car. Bierach approached the car from the driver's side and detected a strong odor of marijuana. He asked Coe and Valerio to exit the vehicle. According to Bierach, Valerio blurted out that he had "a bag A-0436-18T1 8 of weed."2 He removed the bag from the waistband of his pants and handed it to Bierach. Valerio and Coe were arrested. Bierach performed a visual search of the interior of the car. He observed a white plastic bag and marijuana. On the passenger side door, Bierach found a pull-string bag that contained marijuana and a grinding device. In a compartment in the trunk, the officers recovered $17,500 in cash bundled in rubber bands similar to those found in the room. Valerio and Coe were taken to the TPD. Bierach transported the evidence to police headquarters and then returned to the Ramada Inn to assist in securing the individuals found Room 245. The following day, he returned to the hotel and assisted the other officers in executing the search warrants. Lieutenant Harrison Dillard of the Morris County Prosecutor's Office testified as an expert in street-level drug distribution. Dillard described marijuana and its characteristics, including its odor. He discussed the use of hotel rooms and automobiles in drug-distribution schemes and the packaging of 2 During trial, the court conducted a N.J.R.E. 104 hearing and struck from the record Bierach's testimony that Valerio said he had a "bag of weed" on the basis that it was made in violation of Miranda v. Arizona, 384 U.S. 436 (1966). Consequently, Valerio's charge was reduced to the possession of marijuana, a disorderly persons offense. A-0436-18T1 9 marijuana. He described THC, THC wax, and the significance of the packaging of cash in bundles using rubber bands. Valerio testified that on August 3, 2017, he went with Coe to the Ramada Inn in Coe's white Nissan. Valerio acknowledged that earlier that day, he had smoked marijuana. Valerio and Coe got out of the car and went to defendant's room. Coe was carrying a black plastic bag with White Owl cigars. Defendant greeted them. Coe went into the room and Valerio remained outside on the second-floor balcony, smoking a cigarette. Valerio testified that when Coe left the room, he was carrying a white plastic bag but he did not know what was in the bag. They got into the car. Valerio said he did not know what Coe did with the white plastic bag. They left the hotel and drove to Totowa. On the way, the police stopped the car. Defendant did not testify at trial; however, he called his mother as a witness. She stated that she had been living with defendant, Harris,3 and others at a home on Lake Drive in Haskell. Defendant's mother said the family had to vacate the Lake Drive residence by the end of July 2017. She moved to a hotel in Ramsey, and defendant rented a room at the Ramada Inn in Wayne. She 3 Harris is defendant's sister. A-0436-18T1 10 testified that suitcases from Harris's room at the Lake Drive residence were transported to defendant's room at the Ramada Inn. The judge dismissed count eight in which defendant was charged with third-degree distribution of marijuana. The jury found defendant guilty on counts five (fourth-degree distribution of marijuana), six (fourth-degree possession of marijuana), seven (third-degree possession of marijuana, with intent to distribute), and nine (fourth-degree possession of hashish). The jury found defendant not guilty on count ten (third-degree possession of hashish, with intent to distribute. The jury also found Ramirez guilty on count three (fourth- degree possession of hashish), and Valerio not guilty of the disorderly persons charge of possession of marijuana. As stated previously, the trial court sentenced defendant to an aggregate term of eight years of incarceration with four years of parole ineligibility . The court filed a judgment of conviction dated July 26, 2018. This appeal followed. On appeal, defendant's attorney raises the following arguments: POINT I [DEFENDANT'S] CONVICTIONS FOR THIRD- DEGREE POSSESSION OF ONE OUNCE OR MORE OF MARIJUANA WITH THE INTENT TO DISTRIBUTE, POSSESSION OF FIFTY GRAMS OR MORE OF MARIJUANA AND POSSESSION OF FIVE GRAMS OR MORE OF HASHISH MUST BE REVERSED BECAUSE THE TRIAL COURT A-0436-18T1 11 PROVIDED ERRONEOUS JURY CHARGES AND A FATALLY FLAWED VERDICT SHEET. (Not Raised Below). A. THE JURY DID NOT DETERMINE THE QUANTITY OF THE MARIJUANA POSSESSED WITH THE INTENT TO DISTRIBUTE OR THE AMOUNT OF MARIJUANA AND HASHISH POSSESSED. B. THE INDICTMENT DID NOT PROVIDE FOR AGGREGATION OF WEIGHT. C. THE JURY INSTRUCTION WAS ERRONEOUS. POINT II THE TRIAL COURT ERRED BY NOT SUPPRESSING THE EVIDENCE FROM THE WARRANTLESS SEARCH OF [DEFENDANT'S] HOTEL ROOM. POINT III THE TRIAL COURT ERRED BY NOT SUPPRESSING THE PHYSICAL EVIDENCE OBTAINED FROM THE SEARCH WARRANTS OF [DEFENDANT'S] ROOM AND RAMIREZ'[S] MOTOR VEHICLE BECAUSE THERE WERE MATERIAL MISSTATEMENTS IN THE SEARCH WARRANT AFFIDAVIT. POINT IV THE TRIAL COURT ERRED BY PERMITTING DETECTIVE RICCIARDELLI TO PROVIDE HEARSAY EXPERT TESTIMONY AS TO WHY K-9 JUSTUS DID NOT ALERT TO CDS AT [DEFENDANT'S] ROOM OR RAMIREZ'[S] MOTOR VEHICLE. A-0436-18T1 12  POINT V THE TRIAL COURT ERRED BY DENYING [DEFENDANT'S] REQUEST FOR AN ADVERSE INFERENCE JURY CHARGE FOR THE STATE'S FAILURE TO CALL THE K-9 HANDLER AS A WITNESS AND A SPOLIATION JURY CHARGE FOR THE STATE'S FAILURE TO SECURE THE VIDEO SURVEILLANCE TAPE FROM THE RAMADA INN. POINT VI THE TRIAL COURT COMMITTED PLAIN ERROR BY NOT STRIKING, SUA SPONTE, INADMISSIBLE N.J.R.E. 404(B) EVIDENCE THAT [DEFENDANT] CONTINUALLY SMOKED MARIJUANA AND THEN FAILING TO GIVE THE JURY A CURATIVE INSTRUCTION. (Not Raised Below). POINT VII THE TRIAL COURT ERRED BY NOT RULING ON [DEFENDANT'S] MOTION FOR A NEW TRIAL. POINT VIII THE TRIAL COURT ERRRED BY NOT ADJOURNING [DEFENDANT'S] ACCELERATED SENTENCING DATE. Defendant filed a pro se supplemental brief, in which he argues: POINT I THE LOWER COURT'S ORAL DECISION WAS IN CLEAR CONFLICT WITH THE NEW JERSEY SUPREME COURT'S RULING IN BROWN v. STATE, 230 N.J. 84 (2017). A. THE LOWER COURT ERRED BY AGREEING WITH LAW ENFOCEMENT OFFICIALS THAT A-0436-18T1 13 THEIR INITIAL [WARRANTLESS] ENTRY INTO THE HOTEL ROOM WAS CONSTITUTIONALLY PERMITTED IN ORDER TO "SECURE" THE ROOM. B. THE LOWER COURT ERRED BY FAILING TO MAKE A DETERMINATION REGARDING THE WARRANTLESS SEIZURE OF DEFENDANTS, MADE UPON A WARRANTLESS ENTRY. C. THE LOWER COURT'S FINDING THAT OFFICERS CONDUCTED AN "INVESTIGATORY SWEEP," WHICH WAS WHOLLY THE STATE'S ARGUMENT IN ITS BRIEF AND AT THE FEBRUARY 21, 2018 NON-TESTIMONIAL HEARING, WAS IN EFFECT A FINDING THAT A WARRANTLESS SEARCH WAS CONDUCTED. i. IF AN "INVESTIGATORY SWEEP" IS A "PROTECTIVE SWEEP," SUCH ACTION WAS NOT PERMISSIBLE IN THIS MATTER. POINT II THE LOWER COURT ERRONEOUSLY BASED ITS DECISION UPON MISAPPLICATION OF STATE v. ALVAREZ, 238 N.J. SUPER. 560 (APP. DIV. 1990). POINT III THE LOWER COURT ERRONEOUSLY BASED ITS DECISION UPON MISAPPLICATION OF STATE v. CLEVELAND, 371 N.J. SUPER. 286 (APP. DIV. 2004). A. THE LOWER COURT ERRONEOUSLY FOUND THAT DEFENDANT'S HOTEL ROOM'S INTERIOR WAS VISIBLE, CONTRARY TO THE FACTS PRESENTED BY THE STATE. A-0436-18T1 14 B. STATE v. CLEVELAND DEALT WITH THE "PLAIN VIEW" EXCEPTION, WHICH IS NOT CONSISTENT WITH THE CASE AT BAR. C. STATE v. CLEVELAND PERMITTED ENTRY INTO A HOTEL ROOM PURSUANT TO A VALID ARREST WARRANT BECAUSE "MILLER FACTORS" WERE SATISFIED TO JUSTIFY A WARRANTLESS ENTRY TO ARREST AN ARMED FUGITIVE. POINT IV THE LOWER COURT'S BRIEF GENERAL CLAIM OF EXIGENCY WAS UNSUPPORTED AND NO OBJECTIVELY REASONABLE BASIS WAS PROVIDED TO JUSTIFY A FINDING THAT THERE WAS AN OPPORTUNITY FOR DESTRUCTION OF EVIDENCE. A. DESTRUCTION OF EVIDENCE WAS NOT IMMINENT IN THIS MATTER[] AND WAS NOTHING MORE THAN POLICE-CLAIMED SPECULATION. B. THE LOWER COURT FAILED TO CONSIDER WHETHER "INVESTIGATIVE DETENTION" OF THE OCCUPANTS OF THE WHITE NISSAN WAS AN OPTION PENDING A WARRANT APPLICATION; OR, WHETHER AN ANTICIPATORY WARRANT WAS AN OPTION; OR, WHETHER POLICE COULD HAVE TIMELY OBTAINED A TELEPHONIC WARRANT. C. THE LOWER COURT IMPROPERLY CONSIDERED THAT AN OPENED BAG OF MARIJUANA HAD A STRONG ODOR IN THE COURTROOM. A-0436-18T1 15  II. Defendant argues, for the first time on appeal, that his convictions on counts six, seven, and nine must be reversed because the trial court provided the jury with erroneous instructions regarding these charges and a fatally flawed verdict sheet regarding these offenses. "[C]lear and correct jury charges are essential to a fair trial . . . ." Wade v. Kessler Inst., 172 N.J. 327 , 341 (2002) (alteration in original) (quoting Das v. Thani, 171 N.J. 518 , 527 (2002)). "Jury charges 'must outline the function of the jury, set forth the issues, correctly state the applicable law in understandable language, and plainly spell out how the jury should apply the legal principles to the facts as it may find them . . . .'" Velazquez v. Portadin, 163 N.J. 677 , 688 (2000) (quoting Jurman v. Samuel Braen, Inc., 47 N.J. 586 , 591-92 (1966)). Generally, "an appellate court will not disturb a jury's verdict based on a trial court's instructional error 'where the charge, considered as a whole, adequately conveys the law and is unlikely to confuse or mislead the jury, even though part of the charge, standing alone, might be incorrect.'" Wade, 172 N.J. at 341 (quoting Fischer v. Canario, 143 N.J. 235 , 254 (1996)). The same standard applies "when evaluating the adequacy of a jury's interrogatories or A-0436-18T1 16 verdict sheet." Ibid. (citing Mogull v. CB Com. Real Est. Grp., Inc., 162 N.J. 449 , 467-68 (2000)). "Without an objection at the time a jury instruction is given, 'there is a presumption that the charge was not error and was unlikely to prejudice the defendant's case.'" State v. Montalvo, 229 N.J. 300 , 320 (2017) (quoting State v. Singleton, 211 N.J. 157 , 182 (2012)). When a party fails to object to a jury instruction, an appellate court reviews the instruction for plain error. Ibid. (citing R. 1:7-2; State v. Wakefield, 190 N.J. 397 , 472-73 (2007)). "Plain error refers to any error 'clearly capable of producing an unjust result.'" Id. at 320-21 (quoting R. 2:10-2). "Regarding a jury instruction, 'plain error requires demonstration of legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.'" Id. at 321 (quoting State v. Chapland, 187 N.J. 275 , 289 (2006)). N.J.S.A. 2C:35-5(c) states "[w]here the degree of the offense for violation of this section depends on the quantity of the substance, the quantity involved shall be determined by the trier of fact." The Model Jury Charge provides that: N.J.S.A. 2C:35-5 grades this offense for sentencing purposes by the type, quantity and purity of the CDS A-0436-18T1 17  involved. In certain cases, the defendant is guilty of an offense regardless of the quantity and purity of the CDS distributed. This charge is sufficient for such cases. However, in cases in which the quantity and/or purity of the CDS is an element of the offense, N.J.S.A. 2C:35-5c requires that this element be determined by the jury. In such a case, this charge would have to be supplemented to add this element. [Model Jury Charges (Criminal), "Possession of a Controlled Dangerous Substance with Intent to Distribute (N.J.S.A. 2C:35-5)" (rev. June 8, 2015).] The supplemental charge referred to above states: [THE FOLLOWING IS TO BE CHARGED WHEN MARIJUANA OR HASHISH IS INVOLVED N.J.S.A. 2C:35-5(b)(10) - (12)] Specifically, you must determine which one of the following quantities has been proven: . . . 2. (One (1) ounce) or more of (marijuana) (hashish) . . . including any adulterants and dilutants. 3. Less than (one (1) ounce) (five (5) grams) of (marijuana) (hashish) including any adulterants and dilutants. After determining which one of these quantities the State has proven beyond a reasonable doubt, you should mark the appropriate section of the verdict sheet which will be supplied to you. [Model Jury Charges (Criminal), "Supplemental Charge to Offenses Set Forth in N.J.S.A. 2C:35-5" (rev. Feb. 3, 1992).] A-0436-18T1 18  At trial, the parties agreed to a stipulation that provided, among other things, that: (1) the marijuana in the State's exhibits S-1, S-3, and S-4 had a combined weight of 368.5 grams, which is more than one ounce but less than five pounds; (2) the marijuana in exhibits S-5 through and including S-7 had a combined weight of 58.51 grams which is in excess of 50 grams, and (3) the hashish in exhibit S-2 had a combined weight of 24.3 grams which is in excess of five grams but less than one pound. 4 In count six, defendant was charged under N.J.S.A. 2C:35-10(a)(3) with possession of marijuana in a quantity in excess of fifty grams. The jury found defendant guilty of this offense. The jury also found defendant unlawfully possessed S-1, S-3, and S-4. As noted, the parties stipulated that the combined weight of these three exhibits was 368.5 grams. Furthermore, in count seven, defendant was charged under N.J.S.A. 2C:35-5(a)(1) and 35-5(b)(11) with possession of marijuana, in a quantity of one ounce or more but less than five pounds, with intent to distribute. The jury found defendant guilty of this offense. As noted above, the jury found defendant 4 The record indicates that the exhibits were: a partially-smoked marijuana cigar (S-1); THC wax (S-2); two bags of marijuana from Room 245 (S-3); a vacuum- sealed package containing marijuana from Room 245 (S-4); a bag of marijuana seized from defendant's pants (S-5); two plastic bags containing marijuana from the Nissan (S-6); and a pull-string jewelry bag containing marijuana (S-7). A-0436-18T1 19 unlawfully possessed S-1, S-3, and S-4. According to the stipulation, these three exhibits had a combined weight of 368.5 grams, which is more than one ounce but less than five pounds. In addition, in count nine, defendant was charged under N.J.S.A. 2C:35- 10(a)(3) with possession of hashish in a quantity of more than five grams. As noted, the parties stipulated that the hashish in S-2 had a combined weight of 24.3 grams. Defendant contends the judge erred by failing to instruct the jury that it must find beyond a reasonable doubt that he possessed the requisite quantities of CDS to be found guilty on counts six, seven, and nine. We disagree. The stipulation obviated the need for specific instructions or findings by the jury on the weight of the CDS required for conviction on each count. Nevertheless, i n charging the jury on these three counts, the judge instructed the jury that it had to find that defendant possessed the CDS in the specific quantities applicable to each charge. In addition, the jury specifically found that defendant possessed S-1, S-3, and S-4, which represented a determination that defendant possessed marijuana in the quantities charged under counts six and seven. Moreover, the jury's A-0436-18T1 20 decision on count nine represents a determination that defendant possessed hashish in the amount charged. Defendant further argues that the trial judge erred by failing to instruct the jury on the manner for aggregating the weight of the drugs in the State's exhibits. Again, we disagree. N.J.S.A. 2C:35-5(c) states that "[w]here the indictment or accusation so provides, the quantity involved in individual acts of . . . possessing with intent to distribute may be aggregated in determining the grade of the offense . . . ." Defendant asserts that under State v. Rodriguez, 234 N.J. Super. 298 , 306- 10 (App. Div. 1989), aggregation of the quantity of the CDS is only permissible "if the indictment so provides." In this case, the indictment clearly placed defendant on notice of the quantities of CDS charged in counts six, seven, and nine. Thus, aggregation was permissible. Moreover, the parties stipulated to the combined amounts of marijuana and hashish in certain exhibits. Thus, defendant's reliance upon Rodriguez is misplaced. Defendant also contends the jury instructions were flawed because the stipulation did not set forth the individual weight of the CDS is certain exhibits, the judge "lumped" the hashish with the marijuana, and did not give the jury the A-0436-18T1 21 opportunity to exclude some of the marijuana. These arguments are without merit. As noted, defense counsel agreed to the stipulation and had no objection to the instructions. In addition, the stipulation separately addressed the marijuana and hashish, and there was no basis in the evidence for the jury to exclude some of the marijuana. Even if a more specific instruction should have been provided to the jury regarding aggregation of the CDS, the absence of such an instruction did not rise to the level of plain error. It was not an error "clearly capable of producing an unjust result." R. 2:10-2. Defendant's remaining arguments concerning the jury instructions and verdict sheet regarding counts six, seven, and nine lack sufficient merit to warrant discussion. R. 2:11-3(e)(2). III. Next, defendant argues the trial judge erred by denying his motion to suppress the evidence obtained from the search of the hotel room. Here, the judge found that the law enforcement officers had a reasonable belief that a crime had been committed and the officers acted lawfully in securing the room and detaining defendant, Ramirez, and Barragan while they sought the search A-0436-18T1 22 warrants. Defendant argues that the State failed to establish exigent circumstances that justified the warrantless entry into the hotel room. When reviewing the denial of a motion to suppress, we defer to the trial court's findings of fact "so long as those findings are supported by sufficient evidence in the record." State v. Hubbard, 222 N.J. 249 , 262 (2015). We disregard those findings of fact only if "clearly mistaken." Ibid. However, a trial court's legal conclusions are not entitled to special deference and are reviewed de novo. Id. at 263. "The Fourth Amendment to the United States Constitution and Article I, paragraph [seven] of the New Jersey Constitution require that police officers obtain a warrant 'before searching a person's property, unless the search falls within one of the recognized exceptions to the warrant requirement.'" State v. Cassidy, 179 N.J. 150 , 159-60 (2004) (quoting State v. DeLuca, 168 N.J. 626 , 631 (2001); U.S. Const. amend IV; N.J. Const. art. I, ¶ 7). "Exigent circumstances" is a recognized exception to the warrant requirement, and when "coupled with the existence of probable cause, will excuse a police officer's failure to have secured a written warrant prior to a search for criminal wrongdoing." Cassidy, 179 N.J. at 160 (citations omitted). "[C]ircumstances have been found to be exigent when they 'preclude A-0436-18T1 23 expenditure of the time necessary to obtain a warrant because of a probability that the suspect or the object of the search will disappear, or both.'" Ibid. (quoting State v. Smith, 129 N.J. Super. 430 , 435 (App. Div. 1974)). In determining if there is an exigency, the court should consider: the degree of urgency and the amount of time necessary to obtain a warrant; the reasonable belief that the evidence was about to be lost, destroyed, or removed from the scene; the severity or seriousness of the offense involved; the possibility that a suspect was armed or dangerous; and the strength or weakness of the underlying probable cause determination. [Deluca, 168 N.J. at 632 .] When the State contends the threatened removal of drugs from a residence is an exigent circumstance, the court must consider "whether the physical character of the premises is conducive to effective surveillance, as an alternative to a warrantless entry," while the officers seek a warrant. State v. De La Paz, 337 N.J. Super. 181 , 196 (App. Div. 2001) (quoting State v. Alvarez, 238 N.J. Super. 560 , 568 (App. Div. 1990)). Exigent circumstances that arise "from unreasonable investigative conduct cannot justify [a] warrantless home entr[y]." Ibid. Here, the trial judge noted that the officers at the hotel had observed defendant go back and forth from the room to the Mercedes several times and A-0436-18T1 24 place a bag in the car. The officers also observed Coe arrive at the hotel and show defendant a bag. Coe entered the room and later left with a different bag. The judge found that, based on their training and experience, the officers had a good faith basis for believing defendant and others had committed a crime. The judge also noted that after Coe and Valerio left the hotel, the officers at the hotel had Coe's Nissan stopped on Route 46. Bierach approached the car and detected the odor of marijuana. The judge found that Bierach had a reasonable suspicion to believe the Nissan contained narcotics. The judge stated that the officers validly undertook a warrantless search of the Nissan. The judge further found that thereafter, the officers at the hotel had sufficient information to undertake an investigatory sweep of Room 245 and detain defendant and the other occupants of the room so that the suspected CDS in the room was not destroyed. The judge rejected the assertion that the officers created an exigency. We are convinced there is sufficient credible evidence in the record to support the trial court's findings. Defendant argues, however, that there is no evidence indicating he had knowledge he was under police investigation and surveillance at the hotel, or that he posed a threat to the police or the public. He contends the distribution A-0436-18T1 25 of thirty grams of marijuana to Coe is a fourth-degree offense, and that such a minor offense did not justify the warrantless entry into the hotel room. We are convinced, however, that there is sufficient credible evidence in the record to support the trial court's finding that the officers' entry into the hotel room was justified because, under the circumstances, there was an opportunity for the alteration or destruction of the evidence, particularly after the officers stopped and arrested Valerio and Coe. Moreover, a fourth-degree offense is a felony and not a minor offense. In support of his argument that there was no exigency to justify the warrantless entry into the hotel room, defendant cites Brown v. State, 230 N.J. 84 (2017). In that case, the Court considered whether the defendant member of the State Police was entitled to qualified immunity on the plaintiff's claim under the New Jersey Civil Rights Act, N.J.S.A. 10:6-1 to -2. Id. at 89 . In Brown, the plaintiff loaned her vehicle to her boyfriend, who was a suspect in a home invasion. Id. at 91 . State Troopers stopped the vehicle, arrested the plaintiff's boyfriend for driving with a suspended license, impounded the vehicle, and notified the plaintiff. Ibid. The State Police kept the impounded vehicle for a week while continuing to investigate the home invasion. Ibid. A-0436-18T1 26  Thereafter, the State Police obtained a warrant to search the vehicle and found contraband, a gun holster, and other items that linked the car to the home invasion. Ibid. The officers did not, however, find a locket that had been reported stolen in the home invasion. Ibid. Accordingly, the State Police decided to search the plaintiff's apartment. Ibid. The plaintiff refused to consent to the search. Id. at 92 . The defendant told the plaintiff that if she refused consent, he would seek a search warrant and, in the interim, either prevent her from entering the home or allow her access, accompanied by police, to prevent loss or destruction of evidence. Ibid. The plaintiff decided to enter the apartment with an officer. Id. at 93 . The State Police obtained a search warrant several hours later and returned to search the apartment. Ibid. The State Police found a black drawstring bag that was similar to a bag described by the victims and eyewitnesses to the home invasion, but they did not find the locket. Ibid. The Court held that under the circumstances, the defendant State Trooper was entitled to qualified immunity because "regardless of whether his conduct amount[ed] to a violation of [the plaintiff's] constitutional right, that right was not clearly established at the time that he acted." Id. at 110 (citing Pearson v. Callahan, 555 U.S. 223 , 227 (2009)). A-0436-18T1 27  The Court also provided guidance regarding application of the exigency exception to the warrant requirement. Ibid. The Court stated that a police- created exigency does not justify a warrantless entry into a home, "in comparison to exigency that arises 'as a result of reasonable police investigative conduct intended to generate evidence of criminal activity,' which can justify entry." Id. at 111 (quoting State v. Hutchins, 116 N.J. 457 , 460 (1989)). Moreover, a person's refusal to consent to a search "cannot be the justification for the warrantless entry into a home." Ibid. (quoting State v. Frankel, 179 N.J. 586 , 611 (2004)). The Court also stated that law enforcement officers may not enter an apartment to secure the premises while awaiting a search warrant. Id. at 111-12. "They must get a warrant and, if reasonably necessary, may secure the apartment for a reasonable period of time from the outside." Id. at 112. In our view, defendant's reliance on Brown is misplaced. Here, the trial court found that the exigency was not police-created, but rather the result of the officers' investigation of the suspected drug-distribution activity involving the hotel room and the Mercedes. The exigency arose when the police stopped Valerio and Coe. A-0436-18T1 28  It was reasonable for the officers at the hotel to assume defendant could learn that Valerio and Coe had been stopped and arrested, and defendant and the other occupants of the hotel room might destroy evidence. Furthermore, the police reasonably chose to enter the room to remove the occupants to ensure they did not alter or destroy evidence therein, while they sought the search warrants. IV. Defendant contends the trial court erred by denying his motion to suppress evidence obtained in the execution of the search warrants for the hotel room and Mercedes. Defendant argues there were material misstatements and omissions in the application for the search warrants which rendered the searches invalid. It is well-established that an affidavit for a search warrant is presumed to be valid. Franks v. Delaware, 438 U.S. 154 , 171 (1978). A defendant who challenges the validity of a search warrant affidavit is entitled to a Franks hearing only if the "defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause . . . ." Id. at 155- 56. A-0436-18T1 29  In making this showing, the defendant "must allege 'deliberate falsehood or reckless disregard for the truth,' pointing out with specificity the portions of the warrant that are claimed to be untrue." State v. Howery, 80 N.J. 563 , 567 (1979) (quoting Franks, 438 U.S. at 171 )). The defendant also must show that the misstatements claimed to be false are material "to the extent that when they are excised from the affidavit, that document no longer contains facts sufficient to establish probable cause." Id. at 568 (citing Franks, 438 U.S. at 171 ). Here, defendant argues the affidavit submitted in support of the application for the search warrants did not include certain facts that "rendered the affidavit materially false." He asserts that Ricciardelli willfully failed to disclose that the K-9 officer had reported that the dog did not alert to the presence of CDS. However, Ricciardelli testified that the dog did not provide a conclusive positive "alert." These facts had no material bearing on whether a warrant should issue. Defendant also contends that in the affidavit, the officers falsely stated they continued their surveillance at the hotel in an attempt to locate Harris, with negative results. He contends this statement was willfully false because the police had already seen Harris in Paterson. A-0436-18T1 30  The record shows, however, that the detectives learned through a confidential informant that Harris would be visiting the hotel. They saw Harris enter the hotel, where the officers observed defendant and others engage in what appeared to be the unlawful distribution of CDS and therefore continued the surveillance. The statement regarding the investigation of Harris was not false or material to the issuance of the warrants. In addition, defendant contends that in the affidavit, the officers failed to state that when Ricciardelli inserted the key card into the slot on the door to the hotel room, the door was already open. Defendant has not shown, however, that this fact had any bearing on the probable cause determination. Thus, defendant has not shown that the alleged misstatements and omissions were material, were made deliberately or with reckless disregard for the truth. Furthermore, the other facts in the affidavit established probable cause for the search of the hotel room and the Mercedes. Therefore, the judge did not err by denying defendant's motion to suppress evidence recovered in the search of the hotel room and Mercedes. V. Defendant argues that the trial judge erred by allowing Ricciardelli to testify as to the reasons that the K-9 team's dog did not provide a conclusive A-0436-18T1 31 alert to the presence of CDS in the hotel room or the Mercedes. Defendant contends this testimony was inadmissible hearsay. We disagree. "A statement, made other than by the witness while testifying, offered to prove the truth of the content of the statement is hearsay evidence and is inadmissible unless it falls within one of the hearsay exceptions." State v. Savage, 172 N.J. 374 , 402 (2002) (quoting State v. Phelps, 96 N.J. 500 , 508 (1984)). "If evidence is not offered for the truth of the matter asserted, the evidence is not hearsay and no exception to the hearsay rule is necessary . . . ." State v. Long, 173 N.J. 138 , 152 (2002) (citing State v. Chavies, 345 N.J. Super. 254 , 274 (App. Div. 2001)). During cross-examination, Ricciardelli acknowledged that in the affidavit for the search warrants, he did not state that the K-9 team's dog did not give a positive "alert" for CDS in the room or Mercedes. Defense counsel did not permit Ricciardelli to explain his reasons for omitting this information. On redirect, Ricciardelli stated that the K-9 officer informed him the dog could not pinpoint the location of the CDS because of windy conditions and the overwhelming odor of marijuana in the area. The judge correctly found that this testimony was not hearsay because it was not "offered for the truth of the matter asserted . . . ." Long, 173 N.J. at A-0436-18T1 32 152. Rather, Ricciardelli's testimony explained why he did not include that information in the affidavit for the search warrants. See Russell v. Rutgers Cmty. Health Plan, 280 N.J. Super. 445 , 456-57 (App. Div. 1995) (noting that statements are not hearsay when made to explain the reasons for the witness's actions). VI. Next, defendant argues that the trial judge erred by denying his request for an adverse inference charge based on the State's failure to call the K-9 dog's handler as a witness at trial. We disagree. We review a lower court's decision on whether to provide an adverse inference charge for abuse of discretion. State v. Dabas, 215 N.J. 114 , 132 (2013). On appeal, we rely on the lower court's "dispassionate assessment of the circumstances to determine whether reference to an inference in summation is warranted and, further, whether a jury instruction should be injected into the mix of the parties' arguments, informing the jurors that they may draw such an inference from a party's failure to call a witness." State v. Hill, 199 N.J. 545 , 561 (2009) (citing State v. Clawans, 38 N.J. 162 , 172 (1962)). "Care must be exercised because the inference is not invariably available whenever a party does not call a witness who has knowledge of relevant facts." A-0436-18T1 33  Ibid. When making a decision on an application for an adverse inference, the trial judge should consider the following: (1) that the uncalled witness is peculiarly within the control or power of only the one party, or that there is a special relationship between the party and the witness or the party has superior knowledge of the identity of the witness or of the testimony the witness might be expected to give; (2) that the witness is available to that party both practically and physically; (3) that the testimony of the uncalled witness will elucidate relevant and critical facts in issue [;] and (4) that such testimony appears to be superior to that already utilized in respect to the fact to be proven. [Ibid. (quoting State v. Hickman, 204 N.J. Super. 409 , 414 (App. Div. 1985)).] Here, defendant argues the State should have called the K-9 team's dog handler to testify about the dog's reactions concerning the possible presence of CDS at the hotel room and Mercedes. The trial judge denied defendant's request for an adverse charge but permitted defendant's counsel "to argue to the jury in any way" regarding the State's failure to call this witness. The K-9 officer was "within the control" of and available to the State "both practically and physically." Id. at 561. In addition, the officer's testimony about the dog's reactions would have been "superior" to Ricciardelli's testimony on this issue. Ibid. A-0436-18T1 34  However, the officer's testimony would not have addressed a critical fact at issue in this case. Although the dog did not provide a conclusive, positive "alert" for the presence of CDS in the hotel room or the Mercedes, the State presented evidence that the police recovered CDS in both locations. The judge did not mistakenly exercise his discretion by refusing to provide the jury with an adverse inference charge. Defendant also argues that the judge erred by failing to provide the jury with a spoliation charge. He contends the charge was warranted because the State did not preserve the surveillance videos from the hotel. Again, we disagree. A spoliation inference "allows a jury . . . to presume that the evidence the spoliator destroyed or otherwise concealed would have been unfavorable to him or her." Dabas, 215 N.J. at 140 n.12 (quoting Rosenblit v. Zimmerman, 166 N.J. 391 , 401-02 (2001)). "An adverse inference charge balances the equities, in that the factfinder is permitted to presume that the evidence the spoliator destroyed or concealed would have been unfavorable to him or her. " Bldg. Materials Corp. of Am. v. Allstate Ins. Co., 424 N.J. Super. 448 , 472 (App. Div. 2012). "When the duty to preserve evidence is violated, the party is responsible regardle ss of A-0436-18T1 35 whether the spoliation occurred because of intentional or negligent conduct. " Id. at 472-73 . In this case, Ricciardelli used the surveillance camera in the hotel manager's office to observe defendant. Ricciardelli returned to the hotel a week or a week-and-a-half after the surveillance to obtain a recording of the hotel's surveillance footage. He testified that he was told the footage had been "overwritten." There is no evidence that Ricciardelli ever possessed or exerted control of the footage, or that he "destroyed" or "concealed" evidence that would have been "unfavorable" to the State. Id. at 472 . The trial court found Ricciardelli's testimony to be credible. The court's refusal to provide a spoliation charge was not an abuse of discretion. VII. Defendant argues that the trial judge committed plain error by failing to strike, sua sponte, Valerio's testimony regarding his use of marijuana. Valerio testified that he and defendant smoked marijuana together "whenever we get a chance . . . ." He stated that defendant asked him and Coe for marijuana. He also testified that "Coe went inside [the hotel room] and rolled a cigar for him." Defendant's attorney did not object to the testimony. A-0436-18T1 36  N.J.R.E. 404(b)(1) does not permit the admission of evidence of other crimes, wrongs, or acts "to prove a person's disposition in order to show that on a particular occasion the person acted in accordance with such disposition." Such evidence may, however, "be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity , or absence of mistake or accident when such matters are relevant to a material issue in dispute." N.J.RE. 404(b)(2). In determining whether to admit evidence of another crime, wrong or act, the trial court must apply the four-part analysis established in State v. Cofield, 127 N.J. 328 , 338 (1992). Under Cofield, the evidence: (1) must be relevant to a material issue; (2) it must be similar in kind and reasonably close in time to the offense charged; (3) the evidence of the other crime, bad act or wrong must be clear and convincing; and (4) the apparent prejudice from the admission of the evidence must outweigh its probative value. Ibid. See also State v. Green, 236 N.J. 71 , 81-82 (2018) (noting that Cofield test must be applied in determining whether to admit evidence pursuant to N.J.R.E. 404(b)). Where, as here, there is no objection to the admission of the evidence, we review the admission of the evidence for plain error. State v. Wint, 236 N.J. 174 , 205 (2018). Therefore, we must determine whether the trial court erred by A-0436-18T1 37 admitting the evidence and, if so, whether the error was "clearly capable of producing an unjust result." R. 2:10-2. Here, Valerio's testimony about defendant's use of marijuana met the test for admission under Cofield. The testimony was relevant. It corroborated Ricciardelli's testimony as to what he observed at the hotel. The evidence regarding defendant's possession and use of marijuana was reasonably close in time to the offenses charged in the indictment. Valerio's testimony also was clear and convincing, and its probative worth was not outweighed by any potential for undue prejudice. Even if the trial judge erred by failing to strike the testimony sua sponte, the error does not rise to the level of plain error. R. 2:10-2. In view of the other evidence presented regarding defendant's possession and distribution of CDS, Valerio's testimony about defendant's use of marijuana was not "clearly capable of producing an unjust result." Ibid. VIII. As noted previously, defendant has filed a pro se supplemental brief in which he argues that the trial judge erred by denying his motion to suppress evidence obtained in the search of the hotel room and the Mercedes. He A-0436-18T1 38 contends the trial court erroneously relied on Alvarez and misapplied State v. Cleveland, 371 N.J. Super. 286 (App. Div. 2004). Defendant further argues that the trial court's decision on the suppression motion is inconsistent with Brown, and the court erred by finding that the officer's warrantless entry into the hotel room was permissible. Defendant also contends the trial court erred by failing to make a decision regarding the warrantless seizure of defendants, and by finding that the search was the product of a "protective sweep" or "investigatory sweep." He asserts the record does not support the court's finding that the interior of the hotel room was visible to the officers conducting surveillance, and the court erroneously found an exigency existed that justified the officers' entry into the hotel room to secure the evidence. We have addressed the arguments regarding the searches of defendant 's hotel room and the Mercedes. Defendant's additional arguments on these and other issues lack sufficient merit to warrant discussion in this opinion. R. 2:11- 3(e)(2). Affirmed. A-0436-18T1 39

2020-12-01 15:09:25.197653+00

http://www.judiciary.state.nj.us/attorneys/assets/opinions/appellate/unpublished/a0034-18.pdf

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-0034-18T2 STATE OF NEW JERSEY, Plaintiff-Respondent, v. BEATRICE J. RAMIREZ, Defendant-Appellant. ____________________________ Submitted October 20, 2020 – Decided December 1, 2020 Before Judges Yannotti and Haas. On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 17-10-0966. Joseph E. Krakora, Public Defender, attorney for appellant (Michele A. Adubato, Designated Counsel, on the brief). Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Mark Niedziela, Assistant Prosecutor, of counsel and on the brief). PER CURIAM  Defendant was tried before a jury, found guilty of unlawful possession of a controlled dangerous substance (CDS), and sentenced to one year of probation. She appeals from the judgment of conviction dated August 14, 2018. We affirm. I. In October 2017, a Passaic County grand jury returned a twenty-four- count indictment charging defendant with fourth-degree possession of a CDS (marijuana), N.J.S.A. 2C:35-10(a)(3) (count one); third-degree possession of a CDS (marijuana), with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(11) (count two); fourth-degree possession of a CDS (hashish), N.J.S.A. 2C:35-10(a)(3) (count three); and third-degree possession of a CDS (hashish) with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35- 5(b)(11) (count four). Darren E. Richardson, George E. Thomas, Shaina M. Harris, Daniel F. Valerio, Leonardo J. Barragan, and Kenneth Coe also were charged in the indictment with various offenses related to the possession of a CDS.1 Defendant filed a motion to suppress evidence, which the trial court denied. Prior to trial, Barragan pled guilty to count twenty-two of the indictment, in which he was charged with third-degree possession of marijuana 1 The State and defendant refer to Thomas as George Thomas Cespedes. A-0034-18T2 2 with intent to distribute. In addition, Coe pled guilty to count twenty-three in which he was charged with fourth-degree possession of marijuana. It is unclear from the record how the charges against Cespedes and Harris were resolved. Defendant, Richardson, and Valerio were tried before a jury. At the trial, Detective Vincent Ricciardelli testified that in August 2017, he was employed by the Wayne Township Police Department (WTPD) and assigned to its Special Operations and Narcotics Bureau. He was assisting the Passaic County Prosecutor's Office (PCPO) in its investigation of Harris and Cespedes regarding the illegal possession and distribution of marijuana. Ricciardelli said the officers had search warrants for Harris's residences on Lake Drive in Haskell, New Jersey, and on Front Street in Paterson, New Jersey, but Harris could not be found at those locations. The officers contacted an informant who told them Harris was going to be at a Ramada Inn in Wayne . On August 2, 2017, Ricciardelli and Detective Paul Kindler of the WTPD went to that location. Ricciardelli testified that he observed Harris enter the hotel. Ricciardelli and Kindler then set up surveillance at the hotel, using its surveillance cameras. He saw Richardson, whom he knew from a prior narcotics investigation. Ricciardelli knew Richardson was supposed to be on home A-0034-18T2 3 detention as a condition of bail for other CDS charges. The hotel manager informed Ricciardelli that Richardson was staying in Room 245. Ricciardelli stated that it appeared drug activity was taking place in and around Room 245. Ricciardelli observed several persons coming in and out of the room. Early in the afternoon, Ricciardelli observed a female, later identified as defendant, arrive at the hotel in a white Mercedes. She parked in the rear parking lot, near Room 245. She used a key card to enter the room. She then exited the room, got into the Mercedes, and drove around to the front of the building. Defendant later drove to the rear of the building and parked the Mercedes alongside a Jeep. She used a key fob to open the doors to the Jeep and placed an object into that vehicle. She then returned to Room 245. On August 3, 2017, Ricciardelli and Kindler continued their surveillance at the hotel. Ricciardelli saw Richardson and Barragan coming in and out of Room 245, and he observed Richardson leave the room with a brown paper bag. Richardson went to the white Mercedes, placed the bag on the rear passenger seat, and returned to the room. A short time later, Richardson exited Room 245 with a small paper bag which he placed in the front passenger seat of the Mercedes. Richardson returned to the room, while defendant and an unknown male drove off in the Mercedes. A-0034-18T2 4  That afternoon, Ricciardelli observed a white Nissan Maxima arrive and park in the rear of the Ramada Inn. Two males, who were later identified as Coe and Valerio, exited the car. Coe had been driving the Nissan, and Valerio was the passenger. They met Richardson on the second-floor balcony outside Room 245 and had a short conversation. Coe entered Room 245 but remained in the open doorway. He had a black plastic bag in his hand. He appeared to open the bag and show Richardson its contents. Defendant and Barragan left the room. A short time later, Coe emerged from the room. He was holding a small, white plastic shopping bag. Coe and Valerio went down the stairs and departed in the white Nissan Maxima. Ricciardelli radioed units in the area and informed them that a drug transaction apparently had taken place. He directed the units to make an investigatory stop of the car. At the time, Detective Gary Bierach of the Totowa Police Department (TPD) and another detective were stationed on Route 46 in Totowa, a short distance from the hotel. They followed the Nissan and conducted a motor vehicle stop. Bierach reported to Ricciardelli what had happened during the stop. Ricciardelli decided to secure Room 245 at the Ramada Inn and either obtain consent to search the room or apply for a search warrant. He was concerned that evidence could be altered or destroyed. A-0034-18T2 5  Ricciardelli knocked on the door and loudly announced, "Police." The door was ajar and he could smell a heavy odor of raw marijuana. Richardson, Barragan, and defendant were in the room. The officers placed them under arrest. They then closed and locked the door. Two officers were posted outside to ensure no one went in or out of the room. Officers also monitored the Mercedes. Ricciardelli and another detective submitted an affidavit in support of an application for a search warrant for Richardson's room and the Mercedes. On August 4, 2017, a judge issued the warrants, which were executed that day. On a writing desk, the officers found a partially-smoked marijuana cigarette, a box of unused sandwich bags, a box of tin foil, an open roll of black garbage bags, a box of rubber bands, a pipe used to smoke tetrahydrocannabinol (THC) oil, and two containers with a residue of oil. In a wastepaper basket under the table, the officers found a clear Tupperware container with a digital scale and two bags of suspected raw marijuana. Behind the door, the officers found a black garbage bag with trash. In the bag, the officers recovered a large food bag with suspected marijuana and a bag containing three empty plastic bags. On the bed, the officers found an open suitcase with a food saver bag. They found $3,055 in cash on the nightstand, of A-0034-18T2 6 which $3,000 was wrapped in $1,000 bundles with rubber bands. In the refrigerator, the officers found two sheets of THC wax, which were wrapped in wax paper. In a compartment in the trunk of the Mercedes, the officers recovered $17,500 in cash, of which $17,000 was wrapped in $1,000 bundles with rubber bands similar to those found in the room. The money was in white and black plastic bags, which were stuffed inside an empty box that had been placed into another box. On cross-examination, Ricciardelli stated that he contacted the Passaic County Sheriff's Office and requested a K-9 team to examine Room 245 and the Mercedes for the presence of a CDS. The team arrived after the officers secured the room. Ricciardelli said the dog sniffed the Mercedes and the area of the room but did not provide a conclusive "alert" of the presence of a CDS at either location. Bierach testified that in August 2017, he was employed by the TPD and assigned to the PCPO's Narcotics Task Force. He stated that on August 3, 2017, he was with another detective in an unmarked car. After receiving a communication from Ricciardelli, Bierach observed the white Nissan traveling A-0034-18T2 7 east on Route 46. Bierach activated the lights and sirens on his vehicle and stopped the Nissan. Coe and Valerio were in the car. Bierach approached the car from the driver's side and detected a strong odor of marijuana. He asked Coe and Valerio to exit the vehicle. According to Bierach, Valerio blurted out that he had "a bag of weed,"2 removed the bag from the waistband of his pants and handed it to Bierach. Valerio and Coe were arrested. Bierach performed a visual search of the interior of the car. He observed a white plastic bag and marijuana. On the passenger side door, Bierach found a pull-string bag that contained marijuana and a grinding device. In a compartment in the trunk, the officers recovered $17,500 in cash bundled in rubber bands similar to those found in the room. Valerio and Coe were transported to the TPD. Bierach transported the evidence to police headquarters and then returned to the Ramada Inn to assist in securing the individuals in Room 245. The following day, he returned to the hotel and assisted the other officers in executing the search warrants. 2 During trial, the court conducted a N.J.R.E. 104 hearing and struck from the record Bierach's testimony that Valerio said he had a "bag of weed" on the basis that it was made in violation of Miranda v. Arizona, 384 U.S. 436 (1966). Consequently, Valerio's charge was reduced to the possession of marijuana, a disorderly persons offense. A-0034-18T2 8  Lieutenant Harrison Dillard of the Morris County Prosecutor's Office testified as an expert in street-level drug distribution. Dillard described marijuana and its characteristics, including its odor. He discussed the use of motel rooms and automobiles in drug-distribution schemes. He also discussed the packaging of marijuana. He described THC, THC wax, and the significance of the packaging of cash in bundles using rubber bands. Valerio testified that on August 3, 2017, he went with Coe to the Ramad a Inn in Coe's white Nissan. He admitted that earlier that day, he smoked marijuana. They got out of the car and went to Richardson's room. Coe was carrying a black plastic bag with White Owl cigars. Richardson greeted them. Coe went into the room, and Valerio remained outside on the second-floor balcony, smoking a cigarette. Valerio testified that Coe was carrying a white plastic bag when he left the room, but he did not know what was in the bag. They got into the car. Valerio said he did not know what Coe did with the white plastic bag. They left the hotel and drove to Totowa. On the way, the police stopped the car. Richardson did not testify at trial. However, he called his mother as a witness. She stated that she had been living with defendant, Harris,3 and others 3 Harris is Richardson's sister. A-0034-18T2 9 at a home on Lake Drive in Haskell. Richardson's mother said the family had to vacate the Lake Drive residence by the end of July 2017. She moved to a hotel in Ramsey, and Richardson rented a room at the Ramada Inn in Wayne. She said suitcases from Harris's room at the Lake Drive residence were transported to Richardson's room at the Ramada Inn. Defendant did not testify. She did not call any witnesses. The jury found defendant not guilty on counts one, two, and four, but guilty on count three (fourth-degree possession of a CDS, hashish). The jury found Richardson guilty on counts five (fourth-degree distribution of a CDS, marijuana), six (fourth-degree possession of a CDS, marijuana), seven (third-degree possession of a CDS, marijuana, with intent to distribute), and nine (fourth-degree distribution of a CDS, hashish). In addition, the jury found Valerio not guilty on the disorderly persons charge of possession of marijuana. As we stated previously, the trial court sentenced defendant to one year of probation and entered a judgment of conviction dated August 14, 2018. Defendant appeals and raises the following arguments: POINT I SINCE THE EVIDENCE SEIZED FROM THE HOTEL ROOM AND MERCEDES VIOLATED DEFENDANT'S RIGHTS AGAINST UNLAWFUL A-0034-18T2 10  SEARCH AND SEIZURE GUARANTEED BY THE UNITED STATES AND NEW JERSEY CONSTITUTIONS, THE MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED. POINT II THE ADMISSION OF CERTAIN INFLAMMATORY EVIDENCE OVER THE DEFENSE OBJECTION DEPRIVED DEFENDANT OF A FAIR TRIAL. POINT III THE SUPPRESSION OF EXCULPATORY EVIDENCE BY THE STATE VIOLATED BRADY v. MARYLAND[, 373 U.S. 83 (1963)]. POINT IV THE TESTIMONY OF THE DRUG EXPERT EXCEEDED THE BOUNDS OF ACCEPTABLE EXPERT TESTIMONY AND DEPRIVED DEFENDANT OF A FAIR TRIAL. POINT V IT WAS ERROR FOR THE TRIAL COURT TO DENY DEFENDANT'S MOTION FOR A MISTRIAL. POINT VI THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION FOR ACQUITTAL AT THE END OF THE STATE'S CASE. II. Defendant argues that the trial court erred by denying her motion to suppress evidence obtained in the search of Room 245 at the Ramada Inn and her white Mercedes. She contends the officers' initial warrantless entry into A-0034-18T2 11 Room 245 was unconstitutional. She also contends the officers had no concrete basis to believe exigent circumstances existed or that defendants would destroy evidence. When reviewing the denial by a trial court of a motion to suppress evidence, we defer to a trial court's findings of fact "so long as those findings are supported by sufficient evidence in the record." State v. Hubbard, 222 N.J. 249 , 262 (2015). An appellate court should disregard those findings of fact only if they are "clearly mistaken." Ibid. On the other hand, a trial court's legal conclusions are not entitled to special deference and are reviewed de novo. Id. at 263 . "The Fourth Amendment to the United States Constitution and Article I, paragraph [seven] of the New Jersey Constitution require that police off icers obtain a warrant 'before searching a person's property, unless the search falls within one of the recognized exceptions to the warrant requirement.'" State v. Cassidy, 179 N.J. 150 , 159-60 (2004) (quoting State v. DeLuca, 168 N.J. 626 , 631 (2001); U.S. Const. amend IV; N.J. Const. art. I, ¶ 7). "Exigent circumstances" constitutes a "predominant exception" to the warrant requirement. Cassidy, 179 N.J. at 160 . "[E]xigent circumstances, coupled with the existence of probable cause, will excuse a police officer 's A-0034-18T2 12 failure to have secured a written warrant prior to a search for criminal wrongdoing." Ibid. This doctrine "lacks neatly defined contours" and courts "must conduct a fact-sensitive and objective analysis . . . ." Ibid. "[C]ircumstances have been found to be exigent when they 'preclude expenditure of the time necessary to obtain a warrant because of a probability that the suspect or the object of the search will disappear, or both.'" Ibid. (quoting State v. Smith, 129 N.J. Super. 430 , 435 (App. Div. 1974)). Courts should also consider: The degree of urgency and the amount of time necessary to obtain a warrant; the reasonable belief that the evidence was about to be lost, destroyed, or removed from the scene; the severity or seriousness of the offense involved; the possibility that a suspect was armed or dangerous; and the strength or weakness of the underlying probable cause determination. [Deluca, 168 N.J. at 632-33 .] "Where the threatened removal of drugs from a residence is offered as an exigent circumstance, 'whether the physical character of the premises is conducive to effective surveillance, as an alternative to a warrantless entry, while a warrant is procured' must be considered." State v. De La Paz, 337 N.J. Super. 181 , 196 (App. Div. 2001) (quoting State v. Alvarez, 238 N.J. Super. 560 , 568 (App. Div. 1990)). Further, "[p]olice-created exigent circumstances A-0034-18T2 13 which arise from unreasonable investigative conduct cannot justify warrantless home entries." Ibid. Here, the judge noted that occupants of a hotel room have expectations of privacy that differ from those in a residence. The judge noted that the officers observed Richardson go back and forth to defendant's car several times and place a bag in the car. The officers also observed Coe arrive at the hotel and show Richardson a bag. Coe entered the room and later left with a different bag. The judge found that, based on their training and experience, the officers had a good faith basis for believing a crime had been committed. The judge also noted that after Coe and Valerio left the hotel, the officers had Coe's Nissan stopped on Route 46. Bierach approached the car and detected the odor of marijuana. The judge found that Bierach had a reasonable suspicion to believe the Nissan contained narcotics. The judge stated that the officers validly undertook a warrantless search of the Nissan. The judge further found that thereafter, the officers at the hotel had sufficient information to undertake an investigatory sweep of Room 245 and detain defendant and Richardson so that the suspected marijuana inside the room was not destroyed. The judge rejected the assertion that the officers created an A-0034-18T2 14 exigency. We are convinced there is sufficient credible evidence in the record to support the trial court's findings. We reject defendant's contention that the officers had sufficient time to obtain a warrant before entering the hotel room. The judge noted that under the circumstances, there was an opportunity for the destruction of evidence. Indeed, as the State points out, after Coe and Valerio were stopped, they could have informed defendant of the stop, which could have led to the destruction of evidence. Defendant contends the officers obtained the warrant in an attempt to legitimatize the unconstitutional warrantless search of the room. However, the record supports the judge's finding that the officers lawfully entered the room to remove the occupants and secure the premises to ensure evidence would not be lost or destroyed. The judge noted that the officers did not search the room until after they obtained a warrant. Defendant further argues that the judge erred by finding the search of the room and Mercedes was constitutionally permissible. She contends the search warrant application contained lies, misstatements, and omissions of material facts. She asserts that the warrant affidavit erroneously stated that Valerio blurted out that he was in possession of marijuana. Defendant also asserts the A-0034-18T2 15 affidavit falsely stated that the surveillance at the hotel was for the purpose of executing the warrants for Harris. In addition, she asserts that the affidavit did not state that the K-9 failed to provide a positive alert for contraband. "It is well settled that a search executed pursuant to a warrant is presumed to be valid and that a defendant challenging its validity has the burden to prove 'that there was no probable cause supporting the issuance of the warrant or that the search was otherwise unreasonable.'" State v. Jones, 179 N.J. 377 , 388 (2004) (quoting State v. Valencia, 93 N.J. 126 , 133 (1983)). "[T]he probable cause standard 'is a well-grounded suspicion that a crime has been or is being committed.'" State v. Moore, 181 N.J. 40 , 45 (2004) (quoting State v. Nishina, 175 N.J. 502 , 515 (2003)). Here, the warrant affidavit contained sufficient facts to establish probable cause for issuance of the search warrants. The affidavit indicated that the officers had stopped the Nissan, detected the odor of marijuana coming from the car, and found marijuana in the back seat. In addition, the affidavit noted the exchange of bags at the hotel, one of which was found in the car containing marijuana. The failure to state that the K-9 had not provided an "alert" of the presence of CDS at the hotel room or Mercedes did not render the affidavit A-0034-18T2 16 constitutionally deficient. As Ricciardelli explained, the dog's failure to provide a conclusive alert of CDS at those locations was due to the open-air nature of the area and odor of marijuana throughout the entire area. The failure to include these facts in the affidavit was not a material omission. Moreover, the record does not support defendant's assertion that the surveillance was conducted solely for the purpose of obtaining information about Richardson. The officers were attempting to execute the warrants regarding Harris when they observed Richardson engage in what appeared to be illegal activity at the hotel. The detectives knew Richardson from previous investigations of illegal drug activity. The trial court correctly found that the facts stated in the warrant affidavit established probable cause for the issuance of the warrants to search the hotel room and Mercedes. The affidavit did not omit material facts or include misstatements of fact material to the probable cause determination. III. Next, defendant argues she was denied a fair trial because the trial court permitted the State to introduce evidence that the officers recovered $17,500 from the Mercedes. She contends the State failed to establish a sufficient nexus A-0034-18T2 17 between that money and any unlawful activity in Room 245. She also argues the evidence was unduly prejudicial. We disagree. A trial court's evidentiary rulings "should be upheld 'absent a showing of an abuse of discretion, i.e., there has been a clear error of judgment.'" State v. Perry, 225 N.J. 222 , 233 (2016) (quoting State v. Brown, 170 N.J. 138 , 147 (2001)). "An appellate court applying this standard should not substitute its own judgment for that of the trial court, unless 'the trial court's ruling was so wide of the mark that a manifest denial of justice resulted.'" Ibid. (quoting State v. Marrero, 148 N.J. 469 , 484 (1997)). Rule 402 states that "[a]ll relevant evidence is admissible," unless otherwise prohibited under the rules of evidence or the law. N.J.R.E. 402. Rule 401 defines relevant evidence as "evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. However, relevant evidence may be excluded "if its probative value is substantially outweighed by the risk of: (a) [u]ndue prejudice, confusi ng the issues, or misleading the jury; or (b) [u]ndue delay, wasting time, or needlessly presenting cumulative evidence." N.J.R.E. 403. The record supports the trial judge's finding that there was a nexus between the money found in the Mercedes and the unlawful activity in Room A-0034-18T2 18 245. The judge noted that the money was packaged in "the same way" as the money found in the room. Moreover, defendant was seen coming and going from the room, and Richardson also was seen entering the Mercedes and placing bags in the car. There also was no basis for excluding this evidence under N.J.R.E. 403. The evidence was probative to the charges against defendant, and the probative value of the evidence outweighed any prejudice to defendant from its admission. IV. Defendant contends the State violated Brady by failing to disclose certain evidence in discovery. She contends the evidence would have been favorable to the defense. Again, we disagree. "[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady, 373 U.S. at 87 . In determining if there has been a Brady violation, we consider: (1) the evidence at issue must be favorable to the accused, either as exculpatory or impeachment evidence; (2) the State must have suppressed the evidence, either purposely or inadvertently; and (3) the evidence must be material to the defendant's case. A-0034-18T2 19  [Brown, 236 N.J. at 518.] "The existence of those three elements evidences the deprivation of a defendant's constitutional right to a fair trial under the due process clause." Ibid. In most cases, consideration of the first two elements "is a straightforward analysis." Ibid. When considering the third element, a court should "'examine the circumstances under which the nondisclosure arose' and '[t]he significance of a nondisclosure in the context of the entire record.'" Ibid. (quoting State v. Marshall, 123 N.J. 1 , 199-200 (1991)). Then, the court should "consider the strength of the State's case, the timing of disclosure of the withheld evidence, the relevance of the suppressed evidence, and the withheld evidence's admissibility." Id. at 519. Further, "[e]stablishing materiality 'does not require demonstration by a preponderance that disclosure of the suppressed evidence would have resulted ultimately in the defendant's acquittal.'" Id. at 520 (quoting Kyles v. Whitley, 514 U.S. 419 , 434 (1995)). Rather, the primary inquiry is "whether in the absence of the undisclosed evidence the defendant received a fair trial, 'understood as a trial resulting in a verdict worthy of confidence.'" State v. Nelson, 155 N.J. 487 , 500 (1998) (quoting Kyles, 514 U.S. at 434 ). A-0034-18T2 20  Defendant contends the State failed to disclose that the K-9 team's dog did not provide a positive alert of marijuana at the hotel room or Mercedes. At trial, Ricciardelli stated that the dog did not provide a conclusive alert. He said that if the dog had done so, he would have mentioned it in his report. Furthermore, the record shows that prior to trial, defendants knew about the dog's reactions during the sweep and questioned Ricciardelli about it on cross-examination. Defendant has not shown that the evidence would have been favorable to the defense or that she was prejudiced by the State's failure to provide the information earlier. Defendant also contends the State failed to disclose that Valerio did not spontaneously state that he possessed marijuana. Defendant asserts that the record shows Valerio made the statement in response to the question, "Do you have anything on you." However, as noted previously, the trial judge conducted a N.J.R.E. 104 hearing and suppressed the statement that Valerio made during the motor vehicle stop. The judge found the statement was elicited in violation of Miranda. In any event, the evidence regarding Valerio's statement was not material to the defense. A-0034-18T2 21  V. Defendant argues that Dillard's testimony exceeded the bounds of acceptable expert testimony and deprived her of a fair trial. Dillard testified that the money the officers recovered in the hotel room and Mercedes was in small denominations and packaged in a manner indicative of past distribution of drugs. Defendant asserts Dillard impermissibly provided an opinion on an ultimate issue in the case. To be admissible, an expert's testimony must address "a subject matter that is beyond the ken of the average juror." State v. Kelly, 97 N.J. 178 , 208 (1984). The testimony must assist "the trier of fact [in] understand[ing] the evidence or determin[ing] a fact in issue." State v. Nesbitt, 185 N.J. 504 , 514 (2006) (citing State v. Berry, 140 N.J. 280 , 291 (1995)). Here, the trial judge found that Dillard had not provided an opinion on an ultimate issue in the case. The judge instructed the jury that Dillard testif ied "that the denominations of money that were confiscated . . . were indicative of past distributions." The judge instructed the jury "to disregard any inference or suggestion that there was a distribution other than what is charged in this indictment . . . ." A-0034-18T2 22  We are convinced that the judge did not err by admitting Dillard's testimony regarding the money recovered in the hotel room and Mercedes. Dillard explained that the denominations were indicative of money used in "past distributions" of drugs. This was permissible expert testimony. Moreover, the judge provided a curative instruction and directed the jury to disregard any inference or suggestion that the money could have been derived from drug distributions other than those at issue in the case. VI. Defendant argues that the trial judge erred by denying her motions for a mistrial. The record shows that defendant sought a mistrial after Ricciardelli testified that a detective informed her of her Miranda rights when she was removed from the hotel room. Defendant also moved for a mistrial after Dillard testified that the denominations and bundling of the money found in the hotel room and Mercedes were indicative of "past drug distributions." "A mistrial should only be granted 'to prevent an obvious failure of justice.'" State v. Smith, 224 N.J. 36 , 47 (2016) (quoting State v. Harvey, 151 N.J. 117 , 205 (1997)). "Whether an event at trial justifies a mistrial is a decision 'entrusted to the sound discretion of the trial court.'" Ibid. (quoting Harvey, 151 N.J. at 205 ). "Appellate courts 'will not disturb a trial court's ruling on a motion A-0034-18T2 23 for a mistrial, absent an abuse of discretion that results in a manifest injustice. '" Ibid. (quoting State v. Jackson, 211 N.J. 394 , 407 (2012)). When considering a motion for a mistrial, courts should consider the "unique circumstances of the case." Ibid. (citing State v. Allah, 170 N.J. 269 , 280 (2002)); State v. Loyal, 164 N.J. 418 , 435-36 (2000). "If there is 'an appropriate alternative course of action,' a mistrial is not a proper exercise of discretion." Ibid. (citing Allah, 170 N.J. at 281 ). Where inadmissible evidence has been introduced, the judge must consider whether it may be addressed by a "cautionary or limiting instruction" or whether it "requires the more severe response of a mistrial . . . ." State v. L.P., 352 N.J. Super. 369 , 379 (App. Div. 2002) (quoting State v. Winter, 96 N.J. 640 , 646-47 (1984)). Here, the trial judge did not err by finding Ricciardelli's statement that defendant had been informed of her Miranda rights did not warrant a mistrial. The trial judge noted that jurors are well aware that persons who are arrested are informed of their Miranda rights. The judge pointed out that Ricciardelli did not comment on defendant's silence after she was informed of her Miranda rights. In addition, the judge instructed the jury to disregard Ricciardelli's statement about informing defendant of her Miranda rights. The denial of the motion for a mistrial was not an abuse of discretion. A-0034-18T2 24  We reach the same conclusion on defendant's motion for a mistrial regarding Dillard's testimony that the money found in the hotel room and Mercedes were in denominations and packaged in a manner indicative of "past drug distributions." As we stated previously, Dillard's testimony did not address an ultimate issue in the case, and the judge instructed the jury to disregard any inference or suggestion that the money could have been derived from drug distributions other than those at issue in the case. VII. Defendant further argues that the trial judge erred by denying her motion for a judgment of acquittal. Defendant asserts she was never in physical possession of the CDS, was not registered at the hotel, was not present in the room when any alleged drug transaction took place, and was not seen placing anything in the car. Defendant therefore contends the State failed to present sufficient evidence to support a finding by the jury that she possessed a CDS with intent to distribute beyond a reasonable doubt. "[T]he broad test for determination of . . . an application [for a judgment of acquittal] is whether the evidence at that point is sufficient to warrant a conviction of the charge involved." State v. Reyes, 50 N.J. 454 , 458 (1967). In ruling on the motion, the trial judge "must determine . . . whether, viewing the A-0034-18T2 25 State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt." Id. at 458-59 (citing State v. Fiorello, 36 N.J. 80 , 90-91 (1961)). On appeal, we "apply the same standard as the trial court to decide if a judgment of acquittal was warranted." State v. Felsen, 383 N.J. Super. 154 , 159 (App. Div. 2006) (citing State v. Moffa, 42 N.J. 258 , 263 (1964)). In this case, defendant was charged under N.J.S.A. 2C:35-10(a)(3) with fourth-degree unlawful possession of a CDS (hashish). "Possession signifies intentional control and dominion, the ability to affect physically and care for the item during a span of time." State v. Davis, 68 N.J. 69 , 82 (1975). "Intentional control and dominion, in turn, means that the defendant was aware of his or her possession." State v. McCoy, 116 N.J. 293 , 299 (1989) (citing State v. DiRienzo, 53 N.J. 360 , 370 (1969)). Possession can be either actual or constructive. Ibid. "Physical or manual control of the proscribed item is not required as long as there is an intention to exercise control over it manifested in circumstances where it is reasonable to infer that the capacity to do so exists." State v. Brown, A-0034-18T2 26  80 N.J. 587 , 597 (1979) (citations omitted). "Thus, constructive possession exists when a person intentionally obtains a measure of control or dominion over the stolen goods although they are under the physical control of another. " McCoy, 116 N.J. at 299 (citing State v. Kimbrough, 109 N.J. Super. 57 , 64 (App. Div. 1970)). "'Mere presence' at the place where the contraband is located is insufficient to establish constructive possession." State v. Randolph, 441 N.J. Super. 533 , 558 (App. Div. 2015) (citing State v. Whyte, 265 N.J. Super. 518 , 523 (App. Div. 1992)). "There must 'be circumstances beyond mere presence' that permit a reasonable inference of the defendant's intention and capacity to exercise control over the object and the defendant's knowledge of what the object is." Id. at 559 (citing Whyte, 265 N.J. Super. at 523 ). However, "[o]wnership in conjunction with possession is not a required element . . . [because] one can knowingly control something without owning it . . . ." Brown, 80 N.J. at 598 . We are convinced the judge did not err by finding that the State presented sufficient evidence upon which the jury could find defendant guilty of unlawful possession of a CDS beyond a reasonable doubt. Defendant was not observed A-0034-18T2 27 in actual possession of any CDS, but defendant was arrested in a hotel room in which the officers recovered CDS and drug paraphernalia. Moreover, the officers recovered money in the Mercedes that was packaged like the monies recovered in the hotel room. In addition, the officers observed defendant driving the Mercedes and coming and going from Room 245 in the hotel. She also was present when the officers came to secure the room. There was sufficient evidence that defendant's possession of the CDS was beyond "mere presence" when such CDS was recovered. The evidence was sufficient to "permit a reasonable inference of the defendant's intention and capacity to exercise control over the [CDS] and . . . defendant's knowledge of what the [CDS] is." Randolph, 441 N.J. Super. at 558-59. Affirmed. A-0034-18T2 28

2020-12-01 15:09:26.605466+00

http://www.judiciary.state.nj.us/attorneys/assets/opinions/appellate/unpublished/a1825-18.pdf

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-1825-18T4 JOANN DALY, Plaintiff-Respondent, v. PETER DALY, Defendant-Appellant. ________________________ Submitted October 5, 2020 – Decided December 1, 2020 Before Judges Rothstadt and Susswein. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FM-16-0073-15. Previte Nachlinger, PC, attorneys for appellant (Michael J. Evans, on the briefs). Kalman Harris Geist, attorney for respondent. PER CURIAM In this dissolution matter, defendant Peter Daly appeals from portions of the Family Part's August 29, 2018 Final Judgment of Divorce (JOD) and its December 7, 2018 order denying defendant's motion for reconsideration. On appeal, defendant challenges the trial judge's alimony and child support award to plaintiff Joann Daly, k/n/a Joann DePinto, as well as certain aspects of the judge's decision relating to equitable distribution, and the judge's denial of his motion for a Mallamo credit.1 We have considered defendant's contentions in light of the record and the applicable principles of law. We affirm almost all of the provisions of the JOD, substantially for the reasons stated by the trial judge in her comprehensive and thoughtful oral decision placed on the record on August 28 and August 29, 2018.2 However, we are constrained to remand one aspect of the judgment as it related to an asset that the judge determined was subject to equitable distribution. I. The parties were married in 1994 and they had one child, a son who was born in 1999. Throughout the marriage, defendant, a certified public accountant, was the primary wage-earner earning an average of approximately $178,000 per 1 Mallamo v. Mallamo, 280 N.J. Super. 8 , 12–17 (App. Div. 1995). 2 The judge's decision was placed on the record on those two days and it spanned across approximately 140 transcript pages. A-1825-18T4 2 year, including bonuses, as a finance manager for a major telecommunications company. Plaintiff worked part-time as a claims examiner for an insurance agency, earning approximately $80,000 annually. The parties also had unearned income from investments. During the marriage, the parties maintained an upper middle class lifestyle, which allowed them to, among other things, own a single family home and a rental property, exchange expensive gifts, take vacations outside of the country, and save for their son's college education. Defendant was primarily responsible for managing the family's financial matters and, beginning in approximately 2000, defendant also began managing his father's finances and received a number of financial gifts from his father intended to be advances on his inheritance, some of which were to be shared with his two brothers. In June 2014, the parties' relationship ended under circumstances that for our purposes need not be discussed in this opinion. We only observe that those circumstances traumatized the parties' son, led to his estrangement from defendant as recommended by mental health professionals, and caused defendant to leave the marital home. A-1825-18T4 3  Plaintiff filed her complaint in 2014, which she amended in 2016. Throughout the pendency of the matter, the parties engaged in contentious litigation, much of which involved issues relating to their son. As to their finances, in May 2015, the trial judge entered an order for defendant to pay to plaintiff, pendente lite, $950 per week in unallocated support for plaintiff and their son, which was nontaxable to plaintiff. That order was amended on June 2, 2015, to allocate the weekly support payments to reflect $250 in child support and $700 in alimony, nontaxable to plaintiff. As part of his pendente lite support obligation, defendant was also required to maintain medical and life insurance coverage for the family and contribute $350 per month to their son's college savings account. In 2016, defendant's motion to reduce his support obligation was denied, but the college savings contributions requirement was suspended. The trial was held over seven nonconsecutive days beginning in December 2017 and ending with the trial judge's entry of the JOD in August 2018. At trial, the parties testified in detail as to their income, assets, debts, and overall lifestyle. Defendant also testified about his handling of his father's finances and his receipt of gifts from his father, who passed away in 2016 during the pendency of this matter, and advances on his inheritance that he received during his A-1825-18T4 4 father's lifetime. The father's Last Will was never offered into evidence to support any of defendant's contentions about his father's estate, nor was it admitted to probate despite the fact his father passed away. In addition, defendant's brothers were never presented to corroborate his testimony about their father's estate. Following trial, the judge rendered her thorough oral decision and then entered the comprehensive JOD incorporating her findings. In her decision, after reciting the facts, the judge placed her detailed credibility findings on the record and concluded that while plaintiff was more credible, with some exceptions, both parties were generally "credible in their testimony" and "sincere in their perceptions." However, the judge maintained she had "lingering uncertainties about the myriad of financial transactions that purportedly took place between [defendant] and his father," but for the most part did not believe that defendant dissipated marital assets. The judge found that "the parties [were not] equal partners in the marriage," concluding that defendant was "the proverbial head of household . . . who managed the family's finances." Then, as to each issue that she needed to address regarding alimony, child support, college expenses, and equitable A-1825-18T4 5 distribution, the judge engaged in an exhaustive review of each of the applicable statutory factors before formulating her award. As to alimony, after engaging in a detailed analysis of the parties' income and expenses, and determining their marital lifestyle, the judge found that $6900 per month was needed to maintain the marital lifestyle, but pursuant to plaintiff's request, the judge awarded plaintiff only $3125 per month open durational alimony, tax deductible to defendant and taxable to plaintiff. Defendant was also ordered to secure this obligation with life insurance in the amount of $400,000. As to child support, the judge awarded $290 per week, and that it be paid retroactive to September 1, 2017. She also ordered the parties to maintain $50,000 in insurance coverage to secure this obligation. Addressing the son's college expenses, the judge similarly went through a detailed analysis of the child's needs and the factors set forth in Newburgh v. Arrigo, 88 N.J. 529 , 544 (1982), and determined how those expenses should be paid by the parties. The judge found that the son had approximately $159,000 available for college through the parties' 529 accounts and approximately $40,000 in savings bonds. She directed that the savings bonds be used towards the son's contribution to his undergraduate costs at the rate of $5700 per year, after applying a scholarship he received, with the balance of the bonds to be left A-1825-18T4 6 available for graduate study. Of the remaining costs for undergraduate study, plaintiff was to be responsible for 48% and defendant was responsible for 52%. As to equitable distribution, the judge identified and addressed each of the parties' assets and made findings as to whether they were part of the marital estate or exempt from distribution. A significant portion of the judge's decision addressed assets that defendant claimed were exempt from distribution. In accordance with the parties' stipulation, the judge ordered that the marital home and the rental property be sold immediately, with the proceeds to be equally divided between the parties. She also distributed the marital portion of all retirement accounts equally divided between the parties. As to certain Hudson City Bank accounts, the judge found that defendant closed the account and kept the proceeds of $2370, and therefore ordered him to reimburse plaintiff $1185. Addressing a Valley National Bank account, the judge ordered defendant to reimburse plaintiff $3500, which was one half its balance. Among the other assets addressed were the proceeds of a $61,473.48 check from 2008 payable to the parties and purportedly endorsed by them from an E-Trade account. Plaintiff denied that she ever saw the check before and testified that neither of the signatures to the endorsement was hers. Defendant remembered there had been an account but could not recall what happened to A-1825-18T4 7 the proceeds. The judge found it unusual that although defendant was highly detailed in his testimony about all other assets and financial matters generally , including the family's income and expenses, he could not recall what happened to the substantial check. The judge ordered defendant to reimburse plaintiff $30,736.74 as her share of the proceeds. As to exempt assets, the judge found that funds at TD Bank had belonged to defendant's father and were exempt from equitable distribution. Similarly, she found a Bank of America account that ultimately became a Goldman Sachs account contained inheritance advances, and was also exempt because defendant "manifested an intention to keep this account separate and apart" and the small deposits of marital funds that were made into it did not alter the character of this account as an exempt account. However, she rejected defendant's contention that stocks in a Computershare account containing AT&T, Vodafone, Verizon, Teradata, and LSI Corp. stocks, were gifted from defendant's father because there was no proof where the stock came from or any evidence corroborating defendant's claim. The judge ordered that the stock account be divided equally between the parties. The judge also denied defendant's request for a Mallamo adjustment to credit him for the value of the tax benefit he lost while paying pendente lite A-1825-18T4 8 support. According to the judge, it was appropriate for plaintiff to take the tax exemption for their son, as she was the parent of primary residence. The judge also awarded credits to which she determined the parties were entitled, placing her reasons as to each on the record. Credits in plaintiff's favor related to one half the son's various living and educational expenses that plaintiff paid without reimbursement from defendant, and for the amount plaintiff paid to satisfy the mortgage that had encumbered the marital home. The judge rejected plaintiff's claims for $18,350 for reimbursement of property taxes paid and an alleged $9000 loan from her mother. The judge ordered defendant to reimburse plaintiff $2250 of the $4500 paid to an expert and $850 for a refund from their mediator. Finally, the judge addressed the parties' claims for counsel fees and costs. Here too the judge reviewed each of the factors under Rule 5:5-3(c) and concluded that neither party acted in bad faith despite their claims to the contrary and, based on their financial positions, neither party was entitled to an award of fees or costs. After the judge entered the JOD, defendant filed a motion for reconsideration on September 18, 2018, seeking the judge to exempt the stock account from equitable distribution, rescind the credit to plaintiff for the E- A-1825-18T4 9 Trade check, and award the Mallamo credit. Moreover, defendant sought a reconsideration of the judge's decision regarding credits for charges plaintiff made to a credit card for counsel fees and a vacation. The judge denied the motion on December 7, 2018, again placing her reasons on the record on that date. In her explanation, she concluded defendant failed to meet his burden on reconsideration, making numerous references to the evidence adduced at trial, or that which was never presented at trial, and to her specific findings as to each issue that she made in her original decision. This appeal followed. II. A. We begin our review by acknowledging it is limited. Thieme v. Aucoin- Thieme, 227 N.J. 269 , 282–83 (2016); Cesare v. Cesare, 154 N.J. 394 , 411 (1998). We accord deference to Family Part judges due to their "special jurisdiction and expertise" in family law matters. Cesare, 154 N.J. at 413 . We are bound by the judge's findings after a trial so long as they "are supported by adequate, substantial, credible evidence." Id. at 411–12. We will not disturb the factual findings and legal conclusions unless convinced they are "so manifestly unsupported by or inconsistent" with the evidence presented. Id. at 412 . However, challenges to legal conclusions, as well as a trial judge's A-1825-18T4 10 interpretation of the law are subject to our de novo review. Est. of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369 , 382 (2010). B. With those guiding principles in mind, we first address defendant's challenge to the trial judge's alimony determinations. According to defendant, the judge failed to properly apply certain statutory factors under N.J.S.A. 2A:34- 23(b). Specifically, he alleges that the judge erred in determining: plaintiff's actual need and the parties' ability to pay; the standard of living established in the marriage and the likelihood that each party can maintain a reasonable comparable standard of living; the parental responsibilities for the child; the equitable distribution ordered; and the income available to either party through investment of assets. We find these contentions to be without merit. "A Family Part judge has broad discretion in setting an alimony award." Clark v. Clark, 429 N.J. Super. 61 , 71 (App. Div. 2012). However, "the exercise of this discretion is not limitless[,]" and is "frame[d]" by the statutory factors set forth in N.J.S.A. 2A:34-23(b). Steneken v. Steneken, 367 N.J. Super. 427 , 434 (App. Div. 2004), aff'd as modified, 183 N.J. 290 (2005). We will not disturb an alimony award if the trial judge's conclusions are consistent with the law and not "manifestly unreasonable, arbitrary, or clearly contrary to reason or A-1825-18T4 11 to other evidence, or the result of whim or caprice." Foust v. Glaser, 340 N.J. Super. 312 , 316 (App. Div. 2001). The question is whether the trial judge's factual findings are supported by "adequate, substantial, credible evidence" in the record and the judge's conclusions are in accordance with the governing principles. Ibid. Furthermore, [a] trial court's findings regarding alimony should not be vacated unless the court clearly abused its discretion, failed to consider all of the controlling legal principles, made mistaken findings, or reached a conclusion that could not reasonably have been reached on sufficient credible evidence present in the record after considering the proofs as a whole. [Heinl v. Heinl, 287 N.J. Super. 337 , 345 (App. Div. 1996).] "[T]he goal of a proper alimony award is to assist the supported spouse in achieving a lifestyle that is reasonably comparable to the one enjoyed while living with the supporting spouse during the marriage." Crews v. Crews, 164 N.J. 11 , 16 (2000). It is "critical" and "essential" to "[i]dentify[] the marital standard of living at the time of the original divorce decree . . . regardless of whether the original support award was entered as part of a consensual agreement or of a contested divorce judgment." Id. at 25 . As already noted, in awarding alimony, the judge must consider the thirteen factors enumerated in N.J.S.A. 2A:34-23(b), along with any other A-1825-18T4 12 factors deemed relevant. Heinl, 287 N.J. Super. at 344 . Under the statute, the judge must articulate specific findings of fact and conclusions of law with respect to the alimony award. N.J.S.A. 2A:34-23(b). The statutory factors are: (1) The actual need and ability of the parties to pay; (2) The duration of the marriage or civil union; (3) The age, physical and emotional health of the parties; (4) The standard of living established in the marriage or civil union and the likelihood that each party can maintain a reasonably comparable standard of living, with neither party having a greater entitlement to that standard of living than the other; (5) The earning capacities, educational levels, vocational skills, and employability of the parties; (6) The length of absence from the job market of the party seeking maintenance; (7) The parental responsibilities for the children; (8) The time and expense necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment, the availability of the training and employment, and the opportunity for future acquisitions of capital assets and income; (9) The history of the financial or non-financial contributions to the marriage or civil union by each A-1825-18T4 13  party including contributions to the care and education of the children and interruption of personal careers or educational opportunities; (10) The equitable distribution of property ordered and any payouts on equitable distribution, directly or indirectly, out of current income, to the extent this consideration is reasonable, just and fair; (11) The income available to either party through investment of any assets held by that party; (12) The tax treatment and consequences to both parties of any alimony award, including the designation of all or a portion of the payment as a non-taxable payment; (13) The nature, amount, and length of pendente lite support paid, if any; and (14) Any other factors which the court may deem relevant. [Ibid.] Here, the trial judge systematically and carefully addressed all of the applicable factors. The judge considered the parties' CISs, their testimony about lifestyle and financial matters, and all of the written evidence in finding that the parties' lifestyle was "upper middle class." The totality of the circumstances, as demonstrated by the record, supported this finding. In determining plaintiff's need for spousal support, the trial judge rightly considered the wide variety of evidence in the record, including her CIS. A-1825-18T4 14 Plaintiff's trial testimony explained the purported bases for these amounts. The judge "extrapolated" the parties' son's expenses from plaintiff's needs "since they should not be included in plaintiff's post-divorce needs." The trial judge then weighed this information against defendant's CIS and testimony. Evidence in the record, which established recent spending for the family as being approximately $12,420 per month reasonably supported the judge's conclusion that the budget for plaintiff alone was $11,327 per month, or $135,924 per year. The judge then appropriately fashioned an arrangement that would provide plaintiff with the support she required: Subtracting plaintiff's annual net salary from the total need left a shortage of $82,797 per year, or roughly $6900 per month. But plaintiff only requested $37,500 per year, or $3125 per month. The judge found that defendant was able to pay this amount, and thus reasonably granted plaintiff's request. Contrary to defendant's contention on appeal that the judge erred in considering plaintiff's prospective housing cost, without recognizing that he too would have a similar expense, the judge recognized that "both [plaintiff] and [defendant] will have a housing expense that they did not have during the pendency of this divorce" in light of the anticipated sale of the parties' mortgage - free properties. The judge also considered defendant's testimony that he could A-1825-18T4 15 rent a suitable one-bedroom apartment for $1800 per month, and only allowed $2500 per month towards a new mortgage for plaintiff, which was less than her testified need of $3200 per month for that purpose. Significantly, the judge did not award the full amount that she calculated the plaintiff needed and limited the alimony award to that which plaintiff requested. Similarly, defendant's other contention that the judge erred by including in plaintiff's expenses costs for the son despite his living away at college is belied by the fact that the judge repeatedly acknowledged that she adjusted plaintiff's award based on the son's living arrangement, explaining that she "extrapolated" his costs from plaintiff's requested budget. And, defendant's additional contention that the judge's opinion was "completely devoid" of any analysis of defendant's ability to maintain a reasonably comparable standard of living is equally without merit. The judge clearly was cognizant of defendant's needs. Again, she acknowledged that both parties would incur new housing expenses and specifically considered the assets available to defendant to use following equitable distribution. When determining that defendant was able to pay the $3125 monthly alimony award, she particularly focused on his income of approximately $200,000 per year, which included both earned and unearned income. A-1825-18T4 16  Defendant also argues that his son did not require the parental care contemplated by the statute because of his age. He argues that his son did not need childcare or transportation in the same manner as a young child would. However, the judge's decision clearly acknowledged the son's age and recognized the corresponding costs associated with his age. The judge's commentary throughout the opinion suggests that the award reflected her recognition of the child's age and needs. Finally, defendant also argues that the alimony ordered did not account for the income produced by the stocks awarded in equitable distribution, and that the alimony award was based on earned income only. But the judge understood that the stocks would produce income, as such income was referenced and attributed to defendant in the alimony analysis. The judge simply stated that plaintiff did not have such assets or income available to her prior to equitable distribution, not afterward. And, as already described, the judge nonetheless awarded plaintiff less than half of her $6900 calculated need. C. Next, we address defendant's challenge to the trial judge's equitable distribution of the parties' assets. The equitable distribution award is also left to the discretion of the trial judge and will not be disturbed on appeal "as long A-1825-18T4 17 as the trial [judge] could reasonably have reached [the] result from the evidence presented, and the award is not distorted by legal or factual mistake." La Sala v. La Sala, 335 N.J. Super. 1 , 6 (App. Div. 2000) (citing Perkins v. Perkins, 159 N.J. Super. 243 , 247–48 (App. Div. 1978)). Under equitable distribution, the statutory factors enumerated in N.J.S.A. 2A:34-23.1, "used in concert with the facts of each case," inform the otherwise "broad discretion" accorded to the trial judge. Steneken, 367 N.J. Super. at 434– 35. As a result, "[w]here the issue on appeal concerns which assets are available for distribution or the valuation of those assets, it is apparent that the standard of review is whether the trial judge's findings are supported by adequate credible evidence in the record." Borodinsky v. Borodinsky, 162 N.J. Super. 437 , 443– 44 (App. Div. 1978). And, relatedly, when the issue involves the manner in which the trial court allocated the marital assets, the trial court's determination is subject to an abuse of discretion standard. Id. at 444 . (i). Defendant argues that the judge erred in her equitable distribution determination by failing to accept his testimony as to the exempt assets and thus erred in including the Computershare account containing the stocks allegedly gifted from his father in equitable distribution. We disagree. A-1825-18T4 18  N.J.S.A. 2A:34-23.1 provides the statutory factors to be considered in determining equitable distribution. The goal of equitable distribution is a "fair and just division of marital assets." Steneken, 183 N.J. at 299. In determining the equitable distribution of marital assets, the trial judge applies a three-prong analysis. Rothman v. Rothman, 65 N.J. 219 , 232 (1974). The judge must determine what assets are available for equitable distribution, value the distributable assets, and allocate the assets to the parties. Ibid. Certain assets, including gifts and premarital assets, are exempt from equitable distribution. Painter v. Painter, 65 N.J. 196 , 214 (1974). Such gifts may be included in equitable distribution where they are clearly commingled with marital assets. Wadlow v. Wadlow, 200 N.J. Super. 372 , 380–81 (App. Div. 1985). The burden of establishing immunity of an asset from equitable distribution rests with the party asserting immunity. Weiss v. Weiss, 226 N.J. Super. 281 , 291 (App. Div. 1988); Painter, 65 N.J. at 214 . Here, defendant bore the burden of proof to demonstrate that the stocks in the Computershare account were gifted from his father and thus exempt from equitable distribution. The only evidence of a gift at trial was defendant's testimony. There was no corroborative evidence, which had been provided as to the other assets allegedly gifted. The stock account statements did not reveal A-1825-18T4 19 the origins of these assets. The trial judge reasonably found defendant's testimony to lack credibility, particularly when compared to his detailed testimony regarding other assets. For example, in contrast to the lack of corroboration regarding the Computershare account, defendant provided detailed information as to the TD Bank and Goldman Sachs accounts and presented specific checks representing the deposit of funds into the cited accounts, with credible explanations as to the source, such as rental income, Medicare reimbursements, and annual gifts. Nonetheless, defendant argues that the judge made "inconsistent credibility findings" by accepting his testimony as to the other assets purportedly gifted from his father, but not the Computershare stock account. However, the evidence in the record supports the judge's conclusion because the TD Bank account statements revealed deposits of checks payable to his father, as well as Medicare reimbursements. And, as to the Goldman Sachs account, the record revealed checks payable to defendant from his father with corresponding deposit slips. No such evidence sufficiently established the origins of the Computershare stock account, with the only real evidence as to its origins being defendant's testimony that it was gifted to him around 2012. After deeming such testimony to lack credibility, the judge reasonably concluded that defendant did A-1825-18T4 20 not meet his burden of proof to show this account was exempt. (ii). Defendant also challenges the trial judge's distribution of the E-Trade account that she found existed prior to the parties' separation . In distributing that asset, the judge relied upon the copy of the check from 2008, to which the judge gave minimal weight, and on defendant's testimony that the account existed but that he could not recall what happened to the funds on deposit. On appeal, defendant argues that the copy of the check for $61,473.49 from the account should not have been entered into evidence, and that the judge erred in concluding that the value of this check should be included in equitable distribution because there was no evidence that he dissipated this asset. We find merit to his latter contention. Dissipation of marital assets must be considered in equitable distribution. N.J.S.A. 2A:34-23.1(i). Generally, the distributable marital estate will include assets diverted by a spouse in contemplation of divorce. Vander Weert v. Vander Weert, 304 N.J. Super. 339 , 349 (App. Div. 1997). "Intentional dissipation of marital assets by one spouse would constitute a 'fraud on [the] marital rights'" of the other spouse. Kothari v. Kothari, 255 N.J. Super. 500 , 510 (App. Div. 1992) (quoting Monte v. Monte, 212 N.J. Super. 557 , 567–68 A-1825-18T4 21 (App. Div. 1986)). The party alleging dissipation bears the burden of proof. See Monte, 212 N.J. Super. at 567–68 (discussing the burden of proof where a husband incurred debt as a result of dissipation). The concept of dissipation "is a plastic one, suited to fit the demands of the individual case." Kothari, 255 N.J. Super. at 506 . In determining whether a spouse has dissipated marital assets, trial judges should consider the following factors: (1) the proximity of the expenditure to the parties' separation; (2) whether the expenditure was typical of expenditures made by the parties prior to the breakdown of the marriage; (3) whether the expenditure benefitted the "joint" marital enterprise or was for the benefit of one spouse to the exclusion of the other, and (4) the need for, and amount of, the expenditure. [Id. at 507 (quoting Lee R. Russ, Annotation, Spouse's Dissipation of Marital Assets Prior to the Divorce as a Factor in Divorce Court's Determination of Property Division, 41 A.L.R. 4th 416 , 421 (1985)).] "The question ultimately to be answered by a weighing of these considerations is whether the assets were expended by one spouse with the intent of diminishing the other spouse's share of the marital estate." Ibid. A-1825-18T4 22  Here, in her distribution of the E-Trade check proceeds, the trial judge did not consider any of the Kothari factors, and instead awarded half of its value simply because the account once existed and there was no evidence that the proceeds were redeposited in marital accounts. The mere possible existence of an asset ten years before trial, without further evidence of its ownership and ultimate disposition, does not entitle plaintiff to a share of that account in equitable distribution. Under these circumstances, we are constrained to remand this issue to the trial judge for reconsideration under Kothari. By remanding, we do not suggest an outcome. D. We turn our attention to defendant's argument that the judge erred in failing to credit him under Mallamo for the overpayment of pendente lite support. According to defendant, he was entitled to the credit because his pendente lite support was not deductible by him as was his ultimate alimony obligation. We find no merit to this contention. To be sure, "pendente lite support orders are subject to modification prior to entry of final judgment . . . ." Mallamo, 280 N.J. Super. at 12 ; see also Tannen v. Tannen, 416 N.J. Super. 248 , 284 (App. Div. 2010). These adjustments are permitted in recognition of the temporary nature of pendente lite awards that are A-1825-18T4 23 by their nature based upon limited information as compared to the information adduced at a trial. See Mallamo, 280 N.J. Super. at 16 . Any changes in the initial orders rest with the trial judge's discretion. Jacobitti v. Jacobitti, 263 N.J. Super. 608 , 617 (App. Div. 1993). Here, although the trial judge initially denied an adjustment because defendant did not request the tax deduction earlier, she fairly determined that a Mallamo adjustment was not required because, contrary to defendant's assertion, the initial pendente lite award was too low. That award called for $700 per week in spousal support and $250 per week in child support. The judge's ultimate award, as described above and supported by the competent evidence in the record, was $3125 per month in alimony and $1160 per month in child support. Thus, any alleged "windfall" was offset by the underpayment in pendente lite support, which lasted for more than three years. On that basis, defendant was not entitled to the adjustment. We discern no abuse in the judge's discretion in this regard. E. (i). Defendant next argues that the judge erred in using the child support guidelines to calculate child support because the guidelines were inapplicable as A-1825-18T4 24 the parties' son was residing at school. He also contends that the alimony award reflected increased expenses for his son and thus the child support amount should not have included such expenses and therefore was unsupported by the record. We disagree. Child support awards and modifications are left to the sound discretion of the trial judge and we are limited to determining whether there was an abuse of discretion. Innes v. Innes, 117 N.J. 496 , 504 (1990); Raynor v. Raynor, 319 N.J. Super. 591 , 605 (App. Div. 1999). "The trial [judge] has substantial discretion in making a child support award." Tannen, 416 N.J. Super. at 278 . A child support determination will not be set aside unless shown to be unreasonable, unsupported by substantial evidence, or "'the result of whim or caprice.'" Ibid. (quoting Foust, 340 N.J. Super. at 315 ). There was no dispute that the parties combined incomes exceed the Guideline's ceiling. Rule 5:6A provides that the Guidelines "shall be applied in an application to establish child support" and may only be modified for good cause shown. Where the family income exceeds $187,200, "the court shall apply the guidelines up to $187,200 and supplement the guidelines-based award with a discretionary amount based on the remaining family income" together with the factors specified in N.J.S.A. 2A:34-23. Child Support Guidelines, A-1825-18T4 25 Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A, www.gannlaw.com (2017). See also Isaacson v. Isaacson, 348 N.J. Super. 560 , 581 (App. Div. 2002) ("The maximum amount provided for in the guidelines should be 'supplemented' by an additional award determined through application of the statutory factors set forth in N.J.S.A. 2A:34-23(a)."). "When 'faced with the question of setting child support for college students living away from home,' however, the guidelines are inapplicable[,] and the court must determine support based on the factors set forth in N.J.S.A. 2A:34-23(a). . . . Reliance exclusively upon the guidelines in these situations constitutes reversible error." Avelino-Catabran v. Catabran, 445 N.J. Super. 574 , 595–96 (App. Div. 2016) (citations omitted) (emphasis added) (quoting Jacoby v. Jacoby, 427 N.J. Super. 109 , 113 (App. Div. 2012)). Under N.J.S.A. 2A:34-23(a), in determining the amount to be paid by a parent for support of the child and the period during which the duty of support is owed, a trial judge should consider the following factors: (1) Needs of the child; (2) Standard of living and economic circumstances of each parent; (3) All sources of income and assets of each parent; (4) Earning ability of each parent, including A-1825-18T4 26  educational background, training, employment skills, work experience, custodial responsibility for children including the cost of providing childcare and the length of time and cost of each parent to obtain training or experience for appropriate employment; (5) Need and capacity of the child for education, including higher education; (6) Age and health of the child and each parent; (7) Income, assets and earning ability of the child; (8) Responsibility of the parents for the court-ordered support of others; (9) Reasonable debts and liabilities of each child and parent; and (10) Any other factors the court may deem relevant. [N.J.S.A. 2A:34-23(a).] Here, as the trial judge recognized, "in such cases as this where the child is living away at college and 18 years of age the guidelines do not strictly apply and the court must, also, consider the factors enumerated in N.J.S.A. 2A:34 - 23(a)." The judge then went on to consider the statutory factors and calculated the child's needs during his time away from school as well as the fixed costs that continue even when he was not at home. The trial judge reduced the child support amount to reflect the time the son spent living away at college using fixed and variable expenses of the household and the child, and properly A-1825-18T4 27 supplemented that award for additional expenses such as gasoline for the child's car, car insurance, and the child's cell phone. Moreover, as already discussed, the judge reduced alimony which reflected the son's living situation and did not award the full amount of alimony plaintiff required. In doing so, the judge did not abuse her discretion as her decision was supported by the evidence and consistent with the controlling legal principles. (ii). Defendant also argues that the trial judge erred in not applying all of the child's savings bonds to his undergraduate costs but instead allocated some to his anticipated graduate school expenses as well. Specifically, he alleges that the judge's determination to withhold part of the bonds in the event the son attends graduate school violates N.J.S.A. 2A:17-56.67, and that the judge erred in speculating that the child would actually attend graduate school. He contends that the statute does not extend the obligation to fund educational programs beyond college. We disagree. "In appropriate circumstances, parental responsibility includes the duty to assure children of a college and even of a postgraduate education," Newburgh, 88 N.J. at 544 , even though the child would otherwise be emancipated under N.J.S.A. 2A:17-56.67. A trial judge determining whether a parent should A-1825-18T4 28 contribute to a child's higher education is required to consider the twelve factors set forth in Newburgh, which "the Legislature essentially approved . . . when amending the support statute, N.J.S.A. 2A:34-23(a)." Gac v. Gac, 186 N.J. 535 , 543 (2006). Here, in applying the Newburgh factors while rendering her decision, the trial judge observed that the parties acknowledged their son's plan to complete undergraduate studies and then pursue a graduate program in physical therapy. Under the fifth Newburgh factor, 88 N.J. at 545 , the relationship of the requested contribution to the kind of school or course of study sought by the child, the judge found that the son planned to pursue a seven-year program in physical therapy, which could necessitate the use of his savings bonds for post graduate study. In her analysis of factor eight under Newburgh, the financial resources of the child, ibid., the judge found that the son had approximately $159,000 available for college, which reflected bank accounts and approximately $40,000 worth of savings bonds. The judge ruled that the savings bonds would be used towards the son's contribution to college costs in the amount of $5700 per year, with the balance to be left available for his anticipated graduate study. As to Newburgh factor twelve, the relationship of the education requested with prior training and the long range goals of the child, ibid., the judge found A-1825-18T4 29 that given the son's current major in biology, his aspirations to pursue graduate study in physical therapy was reasonable. Based on these factors, the judge concluded that the parties' savings were "clearly intended to cover the son's post- secondary education" and the savings bonds in his name would be used as his own contribution to the cost of college and graduate school. Here, the trial judge crafted a sensible plan for the son's education based upon the evidence presented at the trial. Under that plan, the child's savings bonds would be available for his entire education, rather than just undergraduate study. Clearly, the judge could have ordered, as defendant suggests, that all of the bonds be used for undergraduate studies, but then the parties would have to make up for those costs they would have covered for his anticipated graduate education. Under these circumstances, we again do not discern any abuse of the judge's discretion. We have no cause to disturb her thoughtful plan for the parties' child's education. F. We conclude that defendant's remaining arguments that we have not otherwise addressed, including that the trial judge's erred by refusing to reconsider her decision, except as to the E-Trade check, and about charges A-1825-18T4 30 plaintiff allegedly made to a certain credit card, are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Affirmed in part; vacated and remanded in part for further proceedings consistent with our opinion. We do not retain jurisdiction. A-1825-18T4 31

2021-01-26 19:00:37.368392+00

http://www.ca5.uscourts.gov/opinions/unpub/19/19-40229.1.pdf

Case: 19-40229 Document: 00515719946 Page: 1 Date Filed: 01/26/2021 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 19-40229 United States Court of Appeals Fifth Circuit FILED January 26, 2021 UNITED STATES OF AMERICA, Lyle W. Cayce Plaintiff - Appellee Clerk v. JAMES BAYLOUS WHITE, Defendant - Appellant Appeal from the United States District Court for the Eastern District of Texas USDC No. 4:13-CV-166 ON PETITION FOR REHEARING Before DENNIS, SOUTHWICK, and HO, Circuit Judges. PER CURIAM:* The prior opinion is withdrawn. A federal inmate filed a motion for relief from his conviction based on ineffective assistance of counsel. The inmate’s newest argument focuses on his counsel’s failure to advise him about the availability of the option of an open plea. The district court denied relief. On rehearing, a valid question about the analysis of the mandate rule is raised. We revise and again AFFIRM. *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: 19-40229 Document: 00515719946 Page: 2 Date Filed: 01/26/2021 No. 19-40229 FACTUAL AND PROCEDURAL BACKGROUND In January 2010, a federal grand jury in the Eastern District of Texas, Sherman Division, indicted James Baylous White on two counts of conspiracy to manufacture, distribute, or possess with intent to manufacture or distribute methamphetamine and pseudoephedrine. The Government offered a plea agreement through which White would plead guilty to Count One concerning methamphetamine and stipulate that he “was an organizer, leader, manager or supervisor,” making United States Sentencing Guidelines Section 3B1.1(b) applicable. 1 In return, the Government would dismiss Count Two and agree that a three-level reduction for acceptance of responsibility would apply. White did not accept the offer, and the case proceeded to trial on both counts. At trial, the Government called White’s girlfriend, Bertha Mae Russell, as a witness. Russell had pled guilty to an offense and agreed to cooperate with the Government by testifying against White. Apparently, the testimony was unexpected and sufficiently compelling that White decided to change his plea. White pled guilty to Count Two of the indictment without the benefit of a written plea agreement, an option known as an open plea. In response, the Government dismissed Count One. At the sentencing hearing, White objected to the Presentence Report (“PSR”). White first objected to a two-level enhancement under Guidelines Section 2D1.11(b)(1) for possession of a dangerous weapon, and the district court overruled the objection. White also objected to a three-level enhancement under Section 3B1.1(b) for his supervisory role in the offense, and the district court again overruled the objection. The district court also concluded White 1 To be clear, the Presentence Report listed Sentencing Guideline Section 3B1.1(c). That provision, however, was cited in error, and the transcript of the sentencing hearing clarifies that Section 3B1.1(b) provides for the three-level enhancement and that the citation to subsection (c) was erroneous. The parties at the evidentiary hearing appear to carry this incorrect reference to Section 3B1.1(c). 2  Case: 19-40229 Document: 00515719946 Page: 3 Date Filed: 01/26/2021 No. 19-40229 was not eligible for a reduction for acceptance of responsibility because he did not enter his guilty plea until after his jury trial had begun. The district court imposed a 240-month term of imprisonment followed by 3 years of supervised release. White’s direct appeal was unsuccessful. See United States v. White, 495 F. App’x 549, 552 (5th Cir. 2012). White filed for post-conviction relief, claiming that his trial counsel, Phillip Linder, provided ineffective assistance. See 28 U.S.C. § 2255 . Relevant to this appeal is White’s claim that he rejected the plea offer based on Linder’s inaccurate advice during plea negotiations that a three-level enhancement could not be applied to him under the law and that White had to go to trial to challenge any sentencing enhancement. White also asserted that Linder had not informed White that he could lose credit for acceptance of responsibility if White went to trial. White contended that he would have accepted the plea offer but for the alleged incorrect advice. The district court denied the Section 2255 motion. This court granted a certificate of appealability (“COA”) on two of White’s claims: whether Linder’s inaccurate advice caused White to reject the plea offer, and relatedly, whether the district court abused its discretion by denying relief on this claim without holding an evidentiary hearing. Later, we vacated the district court’s judgment in part and remanded to the district court for further proceedings on the ineffective-assistance claim. See United States v. White, 715 F. App’x 436, 438 (5th Cir. 2018). A magistrate judge conducted an evidentiary hearing on remand. Linder testified that after he negotiated a plea offer and then reviewed the offer with his client, White “was adamant about wanting to go to trial.” White did not believe that his girlfriend, Russell, would testify against him, and based on that belief, White did not think that the Government could establish his guilt. 3  Case: 19-40229 Document: 00515719946 Page: 4 Date Filed: 01/26/2021 No. 19-40229 Linder denied that he had told White that a leadership-role enhancement could not be applied. Linder also denied that he had told White that it was necessary to go to trial to challenge the role enhancement. Linder testified that he explained to White that sentencing enhancements could be challenged in objections to the PSR, but White did not want to plead guilty and admit that a role enhancement should be applied. Linder also advised White that he would lose credit for acceptance of responsibility if White went to trial. During Linder’s testimony, White’s counsel introduced a letter White had written to the Government’s attorney. In the letter, White stated he was willing to plead guilty if the Government would “drop the leadership role and the gun enhancement” and provide its assurance that these enhancements “will not be used by the probation officer.” Linder testified that the Government provided him with a copy of the letter during his representation of White, but Linder knew that the Government would not agree to abandon the role enhancement and that the Government would argue at sentencing that the gun enhancement applied. White testified that Linder never told him he would not receive credit for acceptance of responsibility if he went to trial; in fact, Linder never discussed acceptance of responsibility with him at all. If Linder had done so, White would have accepted the plea offer even though he did not want to stipulate to the role enhancement. White testified he went to trial solely to challenge the role enhancement, believing it was the only way to make that challenge, and White decided to plead guilty after Russell gave testimony that supported the role enhancement. White further testified that Linder did not explain the differences between what would happen if White did or did not plead guilty. White claimed that he was never presented the option of entering an open plea before trial began. 4  Case: 19-40229 Document: 00515719946 Page: 5 Date Filed: 01/26/2021 No. 19-40229 The magistrate judge issued a report finding that (1) White would not have accepted the plea offer, “regardless of what he was told about the plea agreement”; (2) White wanted to go to trial and did not believe Russell would testify against him; (3) White had failed to show deficient performance on the part of Linder; and (4) Linder reviewed the terms of the plea agreement with White, but White was not interested in the details of the agreement, as he had already decided to reject the plea offer. The magistrate judge recommended that the Section 2255 motion be denied. Over White’s objections, the district court adopted the report and recommendation. The court dismissed the Section 2255 motion but granted a COA “with respect to the claim that counsel’s deficient performance caused [White] to reject the Government’s pre-trial plea offer.” White timely appealed. DISCUSSION White was represented by counsel in the Section 2255 proceedings in district court but filed a pro se notice of appeal and appellate brief. He contends the district court erred by denying him relief for these defects in his counsel’s assistance: (1) failing to advise him that he would not receive credit for acceptance of responsibility if he went to trial; (2) erroneously advising him that he had to go to trial to challenge the role enhancement; and (3) failing to advise him of the possibility of entering an open plea. We consider the first two arguments together because they are within the scope of the COA. White’s third argument will be treated separately because of a threshold issue of whether the COA allows us to resolve it. 5  Case: 19-40229 Document: 00515719946 Page: 6 Date Filed: 01/26/2021 No. 19-40229 I. Whether trial counsel’s deficient performance caused White to reject the Government’s plea offer On appeal from a district court’s grant or denial of a Section 2255 motion, we review that court’s legal conclusions de novo and its factual findings for clear error. United States v. Cavitt, 550 F.3d 430 , 435 (5th Cir. 2008). Claims of ineffective assistance of counsel are mixed questions of law and fact, reviewed de novo. United States v. Phea, 953 F.3d 838 , 841 (5th Cir. 2020). Credibility determinations are factual findings, which are not clearly erroneous so long as the findings are plausible in light of the record as a whole. United States v. Montes, 602 F.3d 381 , 384 (5th Cir. 2010). An attorney renders constitutionally ineffective assistance if his performance falls below an objective standard of reasonableness; that deficient performance also must prejudice the client. Strickland v. Washington, 466 U.S. 668 , 687–88 (1984). For prejudice, White “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694 . A failure to establish either deficient performance or prejudice defeats the claim. Id. at 697 . When a defendant like White contends that counsel’s deficient performance caused the defendant to reject a plea offer, the Strickland prejudice inquiry requires the defendant to show that: (1) but for counsel’s ineffective advice, there is a reasonable probability that the defendant would have accepted the plea; (2) the court would have accepted its terms; and (3) under the plea, the sentence would have been less severe than the one imposed. Lafler v. Cooper, 566 U.S. 156 , 164 (2012). White argues that the evidence shows that he would have been willing to accept the Government’s plea offer if Linder had properly advised him. At the evidentiary hearing on White’s claim for ineffective assistance of counsel, 6  Case: 19-40229 Document: 00515719946 Page: 7 Date Filed: 01/26/2021 No. 19-40229 White testified that Linder failed to advise him that by going to trial, White would not receive credit for acceptance of responsibility. Linder testified to the contrary. The district court found Linder’s testimony more credible and determined that Linder indeed reviewed with White “the risk of losing credit for acceptance of responsibility by going to trial.” Because this factual finding is plausible in light of the record as a whole, it is not clearly erroneous. See Montes, 602 F.3d at 384 . White has therefore failed to show that Linder performed deficiently by failing to advise him that he would lose the credit for acceptance of responsibility by going to trial. White next argues that Linder erroneously advised that the only choices were to accept the plea offer or, if White wanted to challenge the role enhancement, go to trial. According to White, the record shows that he would have accepted a plea deal had he been properly advised. The district court did not address the factual question of what choices were described by White’s counsel. The court did determine, though, that White “was not going to accept the plea offer, regardless of what he was told about the plea agreement.” In view of the testimony that Linder informed White about the plea agreement but that White was adamant about going to trial in part because he did not believe Russell would testify against him, the district court’s factual determination is plausible and not clearly erroneous. See id. White thus fails to establish prejudice because he has not shown that, but for Linder’s deficient advice, there is a reasonable probability that White would have accepted the plea offer. II. Whether White’s trial counsel was ineffective for failing to advise White of the possibility of entering an open plea White’s third argument of ineffective assistance of counsel is that Linder failed to advise him of the possibility of entering an open plea, i.e., a plea without any agreement with the government as to a recommended sentence. 7  Case: 19-40229 Document: 00515719946 Page: 8 Date Filed: 01/26/2021 No. 19-40229 As a preliminary consideration, we must determine whether this argument is within the scope of the COA granted by the district court. This court determined that this issue would benefit from assistance of pro bono counsel. Attorney Paulette C. Miniter agreed to serve in that capacity. We thank her for her able assistance to her client and this court. Her supplemental brief addressed “whether the claim that trial counsel was deficient in failing to advise Appellant of his right to enter an open plea falls within the grant of the [COA], and, if so, the merits of this claim.” The Government submitted a response. A. Claims covered by the certificate of appealability We will not consider claims that exceed the scope of issues on which a COA is granted. United States v. Kimler, 150 F.3d 429 , 430–31 (5th Cir. 1998). If a party expressly seeks a COA on additional issues, which White has not done, this court may certify those issues if the party meets the requirements for a COA. See id. at 431 . Thus, we first consider whether the open-plea claim is within the scope of the COA granted by the district court. We begin with a review of the procedural history of White’s Section 2255 motion. In the motion, White alleged Linder told him that “the only way to challenge any enhancement at sentencing is” to go to trial, and Linder “did not inform [him] that he could lose the ‘acceptance of responsibility’ credit” if he went to trial. White claimed that “[b]ut for [Linder’s] incorrect advice, [he] would have accepted the plea offer made by the Government.” White did not explicitly reference in the motion the now-raised open-plea argument. On March 31, 2016, the district court denied the motion. In this court’s order of May 30, 2017, we summarized White’s argument, then stated that “a COA is GRANTED on this ineffective assistance claim, as well as on the related issue” of whether to have an evidentiary hearing. We wrote that the claim 8  Case: 19-40229 Document: 00515719946 Page: 9 Date Filed: 01/26/2021 No. 19-40229 concerns the advice provided by counsel in connection with a proposed pretrial plea bargain, which, among other provisions, called for him to receive an enhancement for his role in the offense and for him to receive credit for acceptance of responsibility. White asserts that he was erroneously advised by counsel that a role enhancement could not be applied under the law, but that he had to go to trial in order to challenge the enhancement. He further asserts that counsel failed to advise him that he risked losing credit for acceptance of responsibility if he did not plead guilty prior to trial. We issued an opinion on the COA on March 22, 2018, in which we remanded for “further proceedings on the ineffective-assistance claim on which the COA was granted.” White, 715 F. App’x at 438. This court thus expressly granted the COA on White’s argument that ineffective assistance led to his rejection of the Government’s plea offer and not whether counsel was ineffective for failing to advise of the possibility for an open plea. The “mandate rule” affects the district court’s review. See United States v. Lee, 358 F.3d 315 , 321 (5th Cir. 2004). “Absent exceptional circumstances, the mandate rule compels compliance on remand with the dictates of a superior court and forecloses relitigation of issues expressly or impliedly decided by the appellate court.” Id. “A mandate controls on all matters within its scope, but a district court on remand is free to pass upon any issue which was not expressly or impliedly disposed of on appeal.” Newball v. Offshore Logistics Int’l, 803 F.2d 821 , 826 (5th Cir. 1986). It “bars litigation of issues decided by the district court but foregone on appeal or otherwise waived, for example because they were not raised in the district court.” Lee, 358 F.3d at 321 . Our concern is the impact of the mandate rule on White’s open-plea claim. It is clear that the open-plea issue was not presented to this court in the first appeal. White’s only argument in his request for the COA was that his trial counsel was ineffective in providing accurate information on the plea offer from the Government. The open-plea issue was neither expressly nor 9  Case: 19-40229 Document: 00515719946 Page: 10 Date Filed: 01/26/2021 No. 19-40229 impliedly disposed of during the previous appeal. On remand, White’s newly appointed counsel injected the issue into the case, first mentioning it at the evidentiary hearing when counsel asked White whether Linder advised him of an open-plea option and whether he would have entered such a plea had he been told it was an option. The open-plea issue was not considered by this court in the initial appeal, and we have urged caution before allowing an issue that was not raised in the district court prior to the first appeal to be litigated on remand. Id. at 320–21. “Remand is [generally] not the time to bring new issues that could have been raised initially.” ODonnell v. Goodhart, 900 F.3d 220 , 225 (5th Cir. 2018). White argues that even if the mandate rule generally prevents litigation of a waived issue, he could amend his Section 2255 motion to include the open-plea issue on remand. The liberality under the Federal Rules of Civil Procedure for parties to amend pleadings applies to habeas petitions. See United States v. Saenz, 282 F.3d 354 , 355–56 (5th Cir. 2002). Further, the district court allowed White to supplement the record regarding the open-plea issue after the hearing. Therefore, we do not hold that there was any error for the district court to allow the open-plea claim to be considered. Whether we can consider it now, though, depends on whether the current COA includes it. We summarize the consideration of the open-plea issue in district court. The magistrate judge allowed testimony about an open plea at the hearing then also allowed supplemental briefing on the issue. The magistrate judge’s later report and recommendation, however, discussed the open-plea testimony broadly and analyzed only the ineffective-assistance claims related to White’s rejection of the plea agreement that we discussed earlier. White filed objections, emphasizing his open-plea argument. The district court adopted the magistrate judge’s report and concluded, without elaboration, that White’s objections were unmeritorious. 10  Case: 19-40229 Document: 00515719946 Page: 11 Date Filed: 01/26/2021 No. 19-40229 The district court granted a COA “with respect to the claim that counsel’s deficient performance caused Movant to reject the Government’s pre-trial offer.” The only two issues wrapped up in White’s rejection argument are the same two issues upon which we have granted a COA for the first appeal. White’s argument about an open plea is distinct from his arguments about counsel’s ineffectiveness regarding the plea deal. Accordingly, even if the district court properly heard the open-plea issue without violating the mandate rule, the open-plea issue was not the basis for the district court’s COA, and White has not sought an amendment of the COA to include that issue. 2 The new COA could be narrower, but in light of the district court’s similar language, we will apply the language of our 2017 COA order but without the issue of an evidentiary hearing being again before us. White also argues that the COA permits his open-plea argument because he made the argument before the district court, then the court granted a COA on ineffective assistance of counsel relating to rejection of the Government’s plea offer that did not detail any specific parts of that argument. White cites one of our opinions which held that because a district court granted a COA that used “broad, general language” instead of a specific list of issues for which the ineffective-assistance claim was granted, the COA “effectively permit[ted]” all claims of ineffective assistance. Jones v. Cain, 227 F.3d 228 , 230 (5th Cir. 2000). The “broad, general language” was not quoted in Jones for us to compare to that used here. Regardless, the language used in either the previous COA from this court or the COA below is not broad enough to 2 On Petition for Rehearing, White argues that his initial pro se brief for this appeal could have been construed as a motion to amend the COA. Though this is true, we subsequently appointed counsel for White on this exact issue — whether the open-plea issue fell within the COA’s reach — and this argument was not raised nor an amendment to the COA sought. 11  Case: 19-40229 Document: 00515719946 Page: 12 Date Filed: 01/26/2021 No. 19-40229 encompass the open-plea issue, as both were limited to consideration of White’s ineffective-assistance claim related to the Government’s plea bargain. The 2017 COA from this court allowed consideration on remand of alleged ineffective assistance that caused White to be told “that he had to go to trial in order to challenge” an enhancement for his role in the offense, and that counsel failed to advise White “that he risked losing credit for acceptance of responsibility if he did not plead guilty prior to trial.” Both of those ineffective- assistance claims insist that better advice would have caused him to accept the offered plea bargain. Of course, plea bargaining is a process in which counsel for a criminal defendant negotiates with the prosecution in pursuit of a mutually agreeable bargain. A criminal defendant is entitled to effective counsel during those negotiations. See Missouri v. Frye, 566 U.S. 134 , 144 (2012). White’s claim is based on a factual predicate that he needed to be informed of the benefits of rejecting a bargain, while the COA is for deficiencies of counsel that failed to inform him of harms from rejecting a bargain. White argues that the open-plea claim sufficiently relates to the claims that are clearly within the scope of the COA, and he relies on two of this court’s opinions. One concerned a COA that had been granted “on the issues [of] whether trial counsel failed to advise [the defendant] about his appellate rights and whether counsel failed to file a notice of appeal as requested by” the defendant. United States v. Camargo, 119 F. App’x 670, 671 (5th Cir. 2005). The government had argued that the COA did not reach the issue of counsel’s possible failure to consult the defendant about whether the defendant wished to appeal. Id. The court held that the differences among the issues were mere “nuance”; all were “sufficiently interrelated” to consider. Id. Camargo is an unpublished opinion and therefore is nonprecedential. In any event, that decision is consistent with our result here as the difference between bad advice 12  Case: 19-40229 Document: 00515719946 Page: 13 Date Filed: 01/26/2021 No. 19-40229 causing a rejection of a plea bargain and bad advice failing to explain the existence of an option to reject the bargain is not nuanced. White also relies on a decision in which a COA was granted on the claim that the defendant’s counsel on direct appeal should have presented certain issues about discrimination in jury selection. Higgins v. Cain, 720 F.3d 255 , 260 (5th Cir. 2013). Then, once in this court, a new claim was raised that counsel was ineffective because of a failure to obtain a transcript of the jury voir dire. Id. at 261 . We held that even if the issues identified in the COA did not mention a transcript, acquiring one would be irrelevant without the jury- selection issues identified in the COA. Id. at 261 n.14. The transcript issue was not so much new as it was a means to resolve what was already presented. Based on these two cases, White contends the open-plea argument is sufficiently related because an “open plea is of a piece with advising that the only way to challenge the enhancement was by standing trial,” and similarly, that Linder’s failing to advise White of “his right to plead open is of ‘no moment’ absent [Linder’s] advising” White that the only way to challenge the role enhancement is to stand trial. We conclude that the COA is explicitly limited to ineffectiveness that led to rejection of the offered plea bargain. The argument about advice concerning an open plea is not sufficiently related. Nonetheless, we briefly analyze whether, even if the COA would permit the argument, White has shown prejudice by not being informed about open pleas. B. Prejudice If this issue were within the scope of the COA, White would have to show that Linder’s failure to provide advice about open pleas was constitutionally deficient and that White was prejudiced. Strickland, 466 U.S. at 687–88. “If it is easier to dispose of an ineffectiveness claim on the ground of lack of 13  Case: 19-40229 Document: 00515719946 Page: 14 Date Filed: 01/26/2021 No. 19-40229 sufficient prejudice, which we expect will often be so, that course should be followed.” Id. at 697 . We will examine only the issue of prejudice. Prejudice in this context includes showing that but for Linder’s failure to advise, there is a reasonable probability that White would have entered an open guilty plea before trial. See Cooper, 566 U.S. at 164 . According to White, his testimony shows that “he would have pleaded guilty without an agreement before trial if he had known of that option.” White also discusses a letter that he wrote before trial to the prosecutor that White now says indicated he “was willing to plead guilty if he could do so without stipulating to the sentencing enhancements the Government sought.” The letter actually states he was willing to plead to one count if the prosecutor would be “willing to drop the leadership role and the gun enhancement.” That is not showing interest in an open plea; it is pursuing a bargain. There is additional evidence shedding light on the possibility White would have made an open plea had he only known of it. Linder testified that White “was adamant about wanting to go to trial,” and that White told him, “I’m not going to plead, I want to go to trial, [Russell’s] not going to testify against me.” Russell testified that one month before trial, White wrote a letter telling her not to testify against him, but urging that if she did, to lie and testify that White ingested the pseudoephedrine pills instead of using them to manufacture methamphetamine, which he thought would undermine both charges brought against him. There was ample evidence that White was unconcerned about Russell as a witness and thought he could win at trial. White cannot show a reasonable probability that he would have entered an open guilty plea before trial. Thus, any ineffectiveness of counsel in failing to explain open pleas could not have prejudiced him. White’s petition for rehearing is DENIED. The district court’s decision remains AFFIRMED. 14

2020-12-01 17:00:19.207397+00

https://ecf.ca8.uscourts.gov/opndir/20/12/193724U.pdf

United States Court of Appeals For the Eighth Circuit ___________________________ No. 19-3724 ___________________________ United States of America lllllllllllllllllllllPlaintiff - Appellee v. Derrick Dwayne Downs lllllllllllllllllllllDefendant - Appellant ____________ Appeal from United States District Court for the Southern District of Iowa - Davenport ____________ Submitted: October 19, 2020 Filed: December 1, 2020 [Unpublished] ____________ Before LOKEN, MELLOY, and GRUENDER, Circuit Judges. ____________ PER CURIAM. On August 26, 2010, the district court1 sentenced Derrick Downs to 300 months imprisonment after he pleaded guilty to conspiracy to distribute at least 50 grams of 1 The Honorable John A. Jarvey, Chief Judge of the United States District Court for the Southern District of Iowa. cocaine base and stipulated to a prior felony drug conviction and to distributing “at least 1500 grams of cocaine base.” See 21 U.S.C. § 841 (b)(1)(A)(iii) (2010). Downs now appeals the court’s order declining to reduce his sentence pursuant to Section 404 of the First Step Act of 2018. Pub. L. No. 115-391, § 404, 132 Stat. 5194 , 5222 (2018). Section 404(b) provides that, if the statutory penalty for an offense was modified by section 2 or 3 of the Fair Sentencing Act of 2010 (Pub. L. No. 111-220, 124 Stat. 2372 ), the district court may “impose a reduced sentence as if sections 2 and 3 . . . were in effect at the time the covered offense was committed.” Downs asserts arguments that have been rejected in our recent decisions resolving First Step Act issues. Reviewing for abuse of discretion, we affirm. United States v. McDonald, 944 F.3d 769 , 771 (8th Cir. 2019) (standard of review). In September 2012, the court denied Downs’s pro se Motion for Retroactive Application of the Sentencing Guidelines: The Fair Sentencing Act of 2010 is retroactively applicable to [Downs] pursuant to the Supreme Court’s decision in Dorsey v. United States, [ 567 U.S. 260 ] (2012). The Fair Sentencing Act increased the amount of crack cocaine necessary for a ten year mandatory minimum sentence from 50 to 280 grams. [Downs’s] admission to responsibility for 3 kilograms of crack cocaine moots any issue under the Fair Sentencing Act and Dorsey. In December 2014, after Guidelines Amendment 782 retroactively reduced Downs’s base offense level by two levels, the court sua sponte reduced his sentence to 269 months, applying the career offender guidelines range of 262-327 months.2 2 The government concedes Downs is eligible for First Step Act relief because the Fair Sentencing Act increased the minimum quantity of cocaine base that triggers a sentence mandated by § 841(b)(1)(A)(iii). See United States v. Banks, 960 F.3d 982 , 984 (8th Cir. 2020), and McDonald, 944 F.3d at 771. However, the court in these two orders recognized that Downs did not need the First Step Act to qualify for Fair -2-  In 2019, the district court emailed a proposed order denying Downs relief other than a one-year reduction in his supervised release term: The defendant is a career offender. He admitted to responsibility for 1500 grams of crack cocaine in his plea agreement. In an amended judgment filed December 29, 2014, he was determined to have a total offense level of 34 and a criminal history category VI. This resulted in a sentencing guideline range of 262 to 327 months' incarceration. Because the maximum punishment for his drug offense remains at life imprisonment, his career offender sentencing guideline has not changed and, therefore, the defendant is entitled to no relief as to his term of incarceration pursuant to the First Step Act of 2018. For these reasons, the court would decline to exercise [its] discretion to reduce the defendant's sentence if it has the power to do so because of the First Step Act. Representing Downs, the Federal Public Defender’s Office objected to the proposed order, requesting a reduced sentence based on post-conviction rehabilitation and the § 3553(a) sentencing factors. The district court entered the proposed order. Downs argues the court committed procedural error by failing to understand the scope of its authority under the First Step Act, and by failing to consider a “significantly more expansive array of factors,” including the 18 U.S.C. § 3553 (a) sentencing factors. We disagree. The First Step Act permits but “does not mandate that district courts analyze the section 3553 factors for a permissive reduction in sentence.” Sentencing Act relief under Dorsey and granted a reduction in response to Amendment 782. These actions seemingly preclude First Step Act relief because § 404(c) provides that “[n]o court shall entertain a motion made under this section to reduce a sentence if the sentence was previously imposed or previously reduced in accordance with the amendments made by sections 2 and 3 of the Fair Sentencing Act.” As the government failed to raise this issue, we put it aside. -3- United States v. Hoskins, 973 F.3d 918 , 921 (8th Cir. 2020) . The court is “not required to make an affirmative statement acknowledging its broad discretion under Section 404.” United States v. Booker, 974 F.3d 869 , 871 (8th Cir. 2020), citing Banks, 960 F.3d at 985. The court’s plain statement that it would decline to exercise discretion to reduce the defendant's sentence “closes the matter.” United States v. Howard, 962 F.3d 1013 , 1015 (8th Cir. 2020). Downs’s assertion that the court did not actually exercise its discretion is without merit. See Hoskins, 973 F.3d at 921. Nor was Downs denied a complete review of his motion on the merits. A complete review under the First Step Act “means that the district court considered petitioner’s arguments in the motion and had a reasoned basis for its decision.” United States v. Moore, 963 F.3d 725 , 728 (8th Cir. 2020), quoting Rita v. United States, 551 U.S. 338 , 356 (2007). While the final order did not address all arguments Downs made in opposing the proposed order, the final order provided a reasoned basis for the court’s decision -- the quantity of cocaine base Downs admitted he conspired to distribute and his extensive criminal history. “[N]ot every reasonable argument advanced by a defendant requires a specific rejoinder by the judge.” Banks, 960 F.3d at 985 (quotation omitted). We presume the court considered and implicitly rejected the arguments raised by a defendant, particularly when the court denying a sentence reduction also presided over the defendant’s initial sentencing and prior sentence reduction motions. The Order of the district court dated December 5, 2019, is affirmed. ______________________________ -4-

2020-12-01 15:09:27.733407+00

http://www.judiciary.state.nj.us/attorneys/assets/opinions/appellate/unpublished/a5478-18.pdf

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-5478-18T2 JESSE DAISEY, Appellant, v. NEW JERSEY DEPARTMENT OF CORRECTIONS, Respondent. ___________________ Submitted November 9, 2020 - Decided December 1, 2020 Before Judges Sabatino and Gooden Brown. On appeal from the New Jersey Department of Corrections. Jesse Daisey, appellant pro se. Gurbir S. Grewal, Attorney General, attorney for respondent (Jane C. Schuster, Assistant Attorney General, of counsel; Nicholas Falcone, Deputy Attorney General, on the brief). PER CURIAM  In this prison disciplinary matter, Jesse Daisey, a state inmate, appeals a determination by the Department of Corrections that he committed prohibited acts *.803 (attempting to commit, aiding another person to commit, or making plans to commit any Category A or B offense), and *.207 (possession of currency over $50.00 without authorization). We affirm. The violations stemmed from a corrections staff member's inspection on July 1, 2019 of a package sent to appellant by his aunt. The package contained a pair of sneakers. The staff member discovered a total of $140 in cash hidden under the soles of the sneakers, a sum above the $50 currency limit allowed by the institution's policies. Prison staff suspected appellant had conspired with his aunt to have her send him the money illicitly. Another staff member, Keith Hooper, listened to recordings of phone calls between the aunt and appellant that occurred on June 29, two days before the cash was discovered. According to his written report, Hooper heard the aunt say on the recording that she had glued the money under the sneaker soles, which would be “very hard to detect.” Appellant thanked her on the phone call for doing so. When confronted with this, appellant initially denied trying to have cash smuggled into the prison. He later changed his story and claimed he had only A-5478-18T2 2 asked his aunt to send him money through legitimate means such as a money order. Appellant was charged with the above noted infractions, and a disciplinary hearing was conducted. Appellant's counsel substitute entered a guilty plea at the hearing, but appellant subsequently claimed the plea was without his approval. The audio of the aunt’s calls and the video of appellant on the phone with her unfortunately were not playable at the disciplinary hearing. The hearing officer did consider Hooper’s written report, along with other evidence, and found those inculpatory proofs more persuasive than appellant’s attempted explanation. Upon finding appellant guilty of the charged infractions, the hearing officer imposed upon him sanctions of 121 days of administrative segregatio n, thirty days' loss of recreation privileges, and 121 days of lost commutation time. Appellant then filed an administrative appeal internally within the Department. That appeal was denied on July 15, 2019. Appellant contends in his letter brief that he was denied procedural due process and that the disciplinary decision is not supported by substantial evidence in the record. We disagree. A-5478-18T2 3  It is well established that our courts generally will not disturb the Department's administrative decision to impose disciplinary sanctions upon an inmate, unless the inmate demonstrates that the decision is arbitrary, capricious , or unreasonable, or that the record lacks substantial, credible evidence to support that decision. Henry v. Rahway State Prison, 81 N.J. 571 , 579-80 (1980); Figueroa v. N.J. Dep't of Corr., 414 N.J. Super. 186 , 190 (App. Div. 2010). The evidence considered by the hearing officer, even without a playing of the recorded conversation, is more than ample proof to support the charged infractions. The prohibited amount of currency was indisputably hidden in appellant's sneakers found in a package mailed by his relative to him. There is reasonable circumstantial evidence, including the investigation reports, that appellant arranged with his aunt to have her send him the hidden cash by this furtive means. Appellant's constructive possession of the contraband was reasonably established. Moreover, prisoners in disciplinary matters are afforded only limited due process protections, such as fair notice of charges, an opportunity to confront witnesses, and a chance to present opposing evidence. McDonald v. Pinchak, 139 N.J. 188 , 193-99 (1995); Avant v. Clifford, 67 N.J. 496 , 528-32 (1975). These minimal requirements were met here. Appellant declined the opportunity A-5478-18T2 4 to call witnesses, testify in his own behalf, or confront the Department's witnesses. He had the aid of a counsel substitute. Due process was satisfied. Affirmed. A-5478-18T2 5

2020-12-01 15:09:28.872582+00

http://www.judiciary.state.nj.us/attorneys/assets/opinions/appellate/unpublished/a5605-17.pdf

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-5605-17T2 IN THE MATTER OF JASEN MITCHELL, BOROUGH OF WILDWOOD CREST, DEPARTMENT OF PUBLIC SAFETY. __________________________ Submitted October 19, 2020 – Decided December 1, 2020 Before Judges Messano and Smith. On appeal from the New Jersey Civil Service Commission, Docket No. 2013-618. Fusco & Macaluso Partners, LLC, attorneys for appellant Jasen Mitchell (Amie E. DiCola, on the brief). Blaney & Karavan, PC, attorneys for respondent Borough of Wildwood Crest (Kyle D. Weinberg, on the brief). Gurbir S. Grewal, Attorney General, attorney for respondent New Jersey Civil Service Commission (Debra A. Allen, Deputy Attorney General, on the statement in lieu of brief). PER CURIAM  After being injured while on duty as an emergency medical technician (EMT) for the Borough of Wildwood Crest (the Borough) in 2010, and following two surgeries on his knee, appellant Jasen Mitchell reached the maximum level of rehabilitation before being medically cleared for "modified duty." The physical restrictions placed on Mitchell made it impossible for him to perform the duties of an EMT, and the Borough offered him another newly created position as a police dispatcher at a higher salary and with the same benefits and seniority rights.1 The new position required Mitchell to attend training sessions which were scheduled at the Borough's expense. Mitchell failed to appear for the training, without excuse and without the Borough's approval. The Borough filed a preliminary notice of disciplinary action, charging Mitchell with "resignation not in good standing." See N.J.A.C. 4A:2-6.2. After a departmental hearing, the Borough filed a final notice of disciplinary action, removing Mitchell from his position. He appealed to the Civil Service Commission (CSC), which forwarded the matter to the Office of Administrative Law and a hearing before an administrative law judge (ALJ). 1 The new position was officially titled, "Public Safety Telecommunicator," within the police department. A-5605-17T2 2  After considering the testimony and evidence, the ALJ concluded the Borough had proven by a preponderance of the evidence that Mitchell's "absence from training effectuated a resignation not in good standing." See N.J.A.C. 4A:2-6.2(b) ("Any employee who is absent from duty for five or more consecutive business days without the approval of his or her superior shall be considered to have abandoned his or her position and shall be recorded as a resignation not in good standing."). The CSC accepted and adopted the findings and conclusions of the ALJ and, in its final agency action, found the Borough's action "in removing and resigning [Mitchell] not in good standing was justified." This appeal followed. Before us, in a single point, Mitchell contends the ALJ's decision "was manifestly mistaken, not supported by the record," and the Borough "failed to meet its burden of proof[.]"2 We disagree and affirm. 2 The agency head reviews an initial decision "de novo . . . based on the record" before the ALJ. In re Parlow, 192 N.J. Super. 247 , 248 (App. Div. 1983). We, in turn, review the agency's final decision, not the initial decision of the ALJ. See R. 2:2-3(a)(2) (granting the Appellate Division exclusive jurisdiction to review as of right any appeal from "final . . . actions of any state administrative agency or officer"); King v. N.J. Racing Comm'n., 103 N.J. 412 , 420 (1986) ("[W]hile the OAL is possessed of significant authority in the actu al conduct of administrative hearings in contested cases on behalf of administrative agencies, the agency itself retains the exclusive right ultimately to decide these cases." (citing In re Uniform Admin. Procedure Rules, 90 N.J. 85 , 96 (1982)), A-5605-17T2 3  A strong presumption of reasonableness attaches to the CSC's decision and our review is limited. In re Carroll, 339 N.J. Super. 429 , 437 (App. Div. 2001). We "do not ordinarily overturn such a decision 'in the absence of a showing that it was arbitrary, capricious or unreasonable, or that it lacked fair support in the evidence[.]'" In re Carter, 191 N.J. 474 , 482 (2007) (quoting Campbell v. Dep't of Civil Serv., 39 N.J. 556 , 562 (1963)). We may not substitute our judgment for that of the agency when "substantial credible evidence supports [the] agency's conclusion[.]" Greenwood v. State Police Training Ctr., 127 N.J. 500 , 513 (1992) (citing Clowes v. Terminix Int'l Inc., 109 N.J. 575 , 587 (1988)). One of the CSC's enumerated powers is to render the final administrative decision on the "removal" of "permanent career service employees," such as Mitchell. N.J.S.A. 11A:2-6(a)(1). Our deference to agency decisions applies to the review of disciplinary sanctions imposed by the CSC. In re Hendrickson, 235 N.J. at 160–61. "[W]hen reviewing administrative sanctions, 'the test . . . is whether such punishment is so disproportionate to the offense, in light of all the superseded by statute on other grounds, In re Hendrickson, 235 N.J. 145 , 158 (2018)). A-5605-17T2 4 circumstances, as to be shocking to one's sense of fairness.'" In re Herrmann, 192 N.J. 19 , 28–29 (2007) (quoting In re Polk, 90 N.J. 550 , 578 (1982)). In his initial decision, the ALJ recited the testimony from the Borough's witnesses detailing the circumstances surrounding the offer of the police dispatcher's position to Mitchell, and their understanding that he would appear for the scheduled training. The Borough administrator, Kevin Yecco, acknowledged receiving Mitchell's May 30, 2012 letter right before the training commenced. The letter said Mitchell was applying for an accidental disability pension, and pending approval of retirement, he would "remain on sick leave[.]" Yecco testified that the Borough would not approve Mitchell's disability pension because his doctor certified that Mitchell was not "totally and permanently incapacitated." The ALJ noted Yecco's testimony that he observed Mitchell "lifting heav[y] lighting and sound equipment" at a local school on the very day he was to begin the training. The ALJ also cited the testimony of Neil Young, the Borough's former chief financial officer, who met with Mitchell, the chief of police, and Yecco. Young returned Mitchell's application for accidental disability pension benefits to the Division of Pension and Benefits stating Mitchell was not qualified because he was "not totally and permanently disabled." Young believed A-5605-17T2 5 Mitchell had expressed some concerns about the dispatcher position, but "subsequently accepted" the offer. The ALJ recounted Mitchell's testimony, and the claim that he "never accepted the position and . . . would let [the Borough] know." He noted Mitchell's contention that "he did not go to training because he did not want to go and . . . rejected the job to pursue his pension claim." The ALJ observed that Mitchell believed an accidental disability pension would cost the Borough "'one[-]to[-]two million dollars' over the course of his life[,]" and the job offer of a dispatcher's position was a scam. In his findings of fact which were adopted by the CSC, the ALJ noted "the underlying facts . . . [were] somewhat uncontested[,]" in that Mitchell was "injured and offered the job of dispatcher." The ALJ, however, focused on "the divergence [of] explanations on how it was offered and why [Mitchell] failed to show for the training." In this regard, the ALJ found the Borough's witnesses were "especially credible and persuasive," and Mitchell's "explanation . . . lack[ed] credibility." The ALJ found Mitchell "was evasive and condescending in the tone of his testimony as well as sarcastic." He rejected Mitchell's claims of being "bullied by the Borough in[to] taking the dispatcher job[,]" and the ALJ found Mitchell's "conspiracy theory . . . against him . . . fell short on A-5605-17T2 6 believability." The ALJ agreed that Mitchell's decision to file an application for disability retirement pension benefits did not excuse his five-day absence from the required training for the dispatcher position. As a result, the Borough proved that Mitchell violated N.J.A.C. 4A:2-6.2(b). Mitchell argues to us that the CSC failed to consider his May 30, 2012 letter "wherein he informed the Borough he was not attending training[.]" Respectfully, the letter says no such thing. It simply states that Mitchell intended to pursue his accidental disability pension, and, without any authority or approval by the Borough, he intended to remain on sick leave. Mitchell contends that the CSC failed to consider that he never accepted the dispatcher position. As an appellate court, however, "it is not for us . . . to disturb [the] credibility determination[s]" of the ALJ, as adopted by the CSC, "made after due consideration of the witnesses' testimony and demeanor during the hearing." H.K. v. State, 184 N.J. 367 , 384 (2005) (citing Clowes, 109 N.J. at 587 ). The ALJ cited our opinion in State-Operated School District of Newark v. Gaines, 309 N.J. Super. 327 (App. Div. 1998). There, writing for our court, Judge Baime said, "The objectives of our civil service laws . . . include rewarding employees for 'meritorious performance' and 'separat[ing]' others A-5605-17T2 7 whose conduct of their duties is less than adequate." Id. at 332 (alteration in original) (quoting N.J.S.A. 11A:1-2(c)). "Our laws, as they relate to discharges or removal, are designed to promote efficient public service, not to benefit errant employees." Id. at 334 . The decision of the CSC "is supported by sufficient credible evidence on the record as a whole[.]" R. 2:11-3(e)(1)(D). Affirmed. A-5605-17T2 8

2020-12-01 15:09:31.050506+00

http://www.judiciary.state.nj.us/attorneys/assets/opinions/appellate/unpublished/a5326-18.pdf

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-5326-18T2 ALEX PULLEN, Appellant, v. NEW JERSEY DEPARTMENT OF CORRECTIONS, Respondent. ___________________________ Submitted October 7, 2020 – Decided December 1, 2020 Before Judges Sumners and Mitterhoff. On appeal from the New Jersey Department of Corrections. Alex Pullen, appellant pro se. Gurbir S. Grewal, Attorney General, attorney for respondent (Jane C. Schuster, Assistant Attorney General, of counsel; Chanell Branch, Deputy Attorney General, on the brief). PER CURIAM  Alex Pullen, an inmate at South Woods State Prison, appeals from an April 11, 2019 final order of the New Jersey Department of Corrections (DOC), adjudicating him guilty of *.002, assault; *.203, possession of a prohibited substance; and .257, violating a condition of a Residential Community Release Program.1 Pullen was sanctioned with 181 days of administrative segregation, 120 days' loss of commutation time, and 15 days' loss of recreation privileges for the *.002 violation; and a consecutive 91 days of administrative segregation, permanent loss of contact visits, and 365 days urine monitoring for the *.203 violation. The .257 violation was reduced to an "on the spot charge" with a sanction of 5 days' loss of recreational privileges. The DOC has requested a limited remand to rescind the .257 charge as duplicative. Based on our review of the record and the governing law, we affirm the findings of guilt with regard to the *.002 and *.203 infractions, vacate the finding of guilt with regard to the .257 infraction, and remand the matter to allow the DOC to rescind the .257 violation. 1 N.J.A.C. 10A:4-5.1 includes a schedule of sanctions broken into five categories lettered A-E. Level A infractions are the most severe while level E are the least severe. Violations denoted with a "*" are the most severe and subject to level A and B sanctions. A-5326-18T2 2  Pullen is currently incarcerated at South Woods State Prison. At all times relevant to this appeal, however, he was incarcerated at the Kintock Group, which is a Residential Community Release Program. 2 The essential facts, adduced before a hearing officer, were based on the staff reports of three Resident Supervisors (R/S), an incident report prepared by a facility manager, and a video of the incident. The hearing officer also considered: (1) a preliminary incident report, (2) an application for prehearing disciplinary housing placement (PHD), (3) the hold slip created for PHD, (4) a medical report clearing defendant for PHD, (5) a seizure of contraband report describing the items taken from defendant during the incident, (6) photocopies of the contraband seized, (7) a disciplinary discharge summary, and (8) the narcotics field test report. On April 7, 2019, R/S White was conducting a tour in the cafeteria when he observed an inmate pass something off to Pullen in the courtyard. Id. R/S White called for backup. Id. R/S Hancock, R/S Ferrer, and facility manager Porter responded. Id. The staff members removed both inmates from the courtyard and escorted them to the lobby to be searched. Id. 2 A Residential Community Release Program is an "Assessment and Treatment Center, halfway house, or Substance Use Disorder Treatment Program under contract with the New Jersey Department of Corrections." N.J.A.C. 10A:20- 1.3. The program provides counseling and treatment services to help inmates transition from incarceration to release. https://reentrycoalitionofnj.org/ A-5326-18T2 3  Pullen removed his shoes, was sent through a metal detector, and patted down. Id. He was then ordered to turn his pockets inside out. Id. Upon doing so, R/S Ferrer noticed a folded paper in his possession. Id. When R/S Ferrer confiscated the paper, Pullen grabbed his arm with one hand and reached over with the other in an attempt to retrieve it. Id. A brief scuffle ensued. Id. No one was injured. Id. Pullen was immediately placed in a holding cell before being transported to South Woods State Prison. A green leafy substance was found in the paper that a field test determined was synthetic cannabinoids. At the disciplinary hearing, Pullen, with the assistance of a counsel substitute, presented a written statement he prepared describing the incident. Pullen asserted that he fully complied with the search and was attacked by R/S Ferrer while putting his boots back on. Id. He denied possessing any contraband and claimed he did not know where the paper containing synthetic cannabinoids came from. Id. Pullen also presented a written statement prepared by the other inmate involved in the altercation. That statement corroborated Pullen's version of events and indicated the inmate did not see R/S Ferrer retrieve anything from him. Pullen, counsel substitute, and the hearing officer also watched a video that captured the incident. At the conclusion, the hearing officer found Pullen A-5326-18T2 4 guilty of all charges, noting specifically the inmate statements were contradicted by the video evidence. Pullen administratively appealed the decision of the hearing officer. On April 11, 2019, a DOC Assistant Superintendent upheld the determinations of guilt and sanctions imposed. Id. On appeal, Pullen presents the following issues for our review: POINT I THE HEARING OFFICER'S FINDING OF GUILT WAS NOT BASED ON SUBSTANTIAL EVIDENCE TO SUPPORT APPELLANT COMMITTED PROHIBITED ACT BY A CONCLUSION OF LAW AND FACTS POINT II THE DECISION OF THE HEARING OFFICER WAS NOT BASED ON SUBSTANTIAL EVIDENCE Our review of an administrative agency's decision is limited. See In re Stallworth, 208 N.J. 182 , 194 (2011). We "afford[] a 'strong presumption of reasonableness' to an administrative agency's exercise of its statutorily delegated responsibilities." Lavezzi v. State, 219 N.J. 163 , 171 (2014) (quoting City of Newark v. Nat. Res. Council, Dep't of Env't Prot., 82 N.J. 530 , 539 (1980)). Thus, "[w]ithout a 'clear showing' that it is arbitrary, capricious, or A-5326-18T2 5 unreasonable, or that it lacks fair support in the record, an administrative agency's final . . . decision should be sustained, regardless of whether a reviewing court would have reached a different conclusion in the first instance." Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1 , 9 (2009). An inmate is not accorded the full panoply of rights in a disciplinary proceeding afforded a defendant in a criminal prosecution. Avant v. Clifford, 67 N.J. 496 , 522 (1975). Instead, prisoners are entitled to: (1) written notice of the charges at least twenty-four hours prior to the hearing; (2) an impartial tribunal; (3) a limited right to call witnesses and present documentary evidence; (4) a limited right to confront and cross-examine adverse witnesses at a hearing; (5) a right to a written statement of the evidence relied upon and the reasons for the sanctions imposed; and (6) where the charges are complex, the assistance of a counsel substitute. Id. at 525-33 ; accord Jacobs v. Stephens, 139 N.J. 212 , 215 (1995); McDonald v. Pinchak, 139 N.J. 188 , 192 (1995). N.J.A.C. 10A:4-9.15(a) requires a finding of guilt at a disciplinary hearing to be supported by substantial evidence. "'Substantial evidence' means 'such evidence as a reasonable mind might accept as adequate to support a A-5326-18T2 6 conclusion.'" Figueroa v. New Jersey Dep't of Corr., 414 N.J. Super. 186 , 191- 92 (quoting In re Pub. Serv. Elec. & Gas Co., 35 N.J. 358 , 376 (1961)). We are satisfied Pullen received all the procedural protections afforded to inmates during disciplinary proceedings. Timely notice was given of the charges against him, and he received the assistance of a counsel substitute during the hearing. Pullen was allowed to testify in his defense, present the written statement of another inmate, and view video footage of the incident. He also received a description of the evidence the hearing officer relied upon in making in its determination. We reject Pullen's argument that there was insufficient evidence to sustain the findings of guilt. The evidence the hearing officer relied upon in making the determination included corroborating staff reports of four facility employees who were either involved in or witnessed the incident. Each gave a first-hand account of Pullen being taken from the courtyard to the lobby where a physical altercation between him and R/S Ferrer took place. The staff reports also indicated Pullen was in possession of a folded paper containing a prohibited substance. The video footage of the incident is fatal to Pullen's account of the incident. It clearly depicts him placing something into his right pocket moments A-5326-18T2 7 before he was confronted by staff members. Pullen and the other inmate were then escorted to the lobby to be searched. After Pullen turned his right pocket inside out, R/S Ferrer took something from him, which a narcotics field test later confirmed was synthetic cannabinoids. The video corroborates the staff reports prepared by R/S Ferrer, R/S Hancock, and R/S White as well as Porter's incident report. Conversely, the video belies both statements prepared by the inmates. It shows R/S Ferrer was not the aggressor and that Pullen possessed an object later identified as contraband. Based on the substantial evidence in the record, we discern no basis to disturb the DOC's findings of guilt. We grant the DOC's request for a partial remand to rescind the charge of .257–violating a condition of any Residential Community Release Program, as duplicative of the *.002 charge. R. 2.5-5(b). Therefore, we vacate the hearing officer's determination of guilt with respect to the .257 violation and remand so the DOC may rescind the duplicative charge. To the extent we have not addressed any of Pullen's remaining arguments, we conclude that they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Affirmed in part and vacated and remanded in part. A-5326-18T2 8

2020-12-01 15:18:32.779445+00

http://www.courts.state.va.us/opinions/opncavwp/0464203.pdf

COURT OF APPEALS OF VIRGINIA Present: Judges Humphreys, Petty and Huff UNPUBLISHED Argued by videoconference RONALD GENE EDWARDS, JR. MEMORANDUM OPINION* BY v. Record No. 0464-20-3 JUDGE GLEN A. HUFF DECEMBER 1, 2020 COMMONWEALTH OF VIRGINIA FROM THE CIRCUIT COURT OF HENRY COUNTY David V. Williams, Judge Michael A. Nicholas (Daniel, Medley & Kirby, P.C., on brief), for appellant. Sharon M. Carr, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee. Ronald Gene Edwards, Jr. (“appellant”) appeals his conviction for receipt of stolen property, in violation of Code § 18.2-108. Following a bench trial in the Circuit Court of Henry County (the “trial court”), appellant was sentenced to ten years’ incarceration with nine years suspended for a period of five years. On appeal, he contends that the evidence was insufficient to convict him of receiving stolen property. For the following reasons, this Court affirms appellant’s conviction. I. BACKGROUND On appeal, “we consider the evidence and all reasonable inferences flowing from that evidence in the light most favorable to the Commonwealth, the prevailing party at trial.” Williams v. Commonwealth, 49 Va. App. 439 , 442 (2007) (en banc) (quoting Jackson v. Commonwealth, 267 Va. 666 , 672 (2004)). So viewed, the evidence is as follows: * Pursuant to Code § 17.1-413, this opinion is not designated for publication.  At 6:00 in the morning on February 21, 2018, Chris Braddock noticed that several items were missing from his property in Henry County, including (but not limited to) an ATV, a Husqvarna leaf blower, and his wife’s nine-millimeter Ruger handgun. Braddock then called the Henry County Sheriff’s Office to report that his property had been stolen. Lieutenant Tim Compton of the Henry County Sheriff’s Office responded to Mr. Braddock’s call and arrived at the scene. After discussing the matter with Braddock and conducting an initial investigation of the premises, Lieutenant Compton noticed a trail of ATV “tracks leading from the building where the [ATV] was kept at, down the side of the driveway and the yard and towards where the road was at.” Lieutenant Compton followed the tracks of the stolen ATV and discovered the ATV at a residence located at 1520 Eggleston Falls Road. That residence was “basically right across the road from [appellant’s] residence[,]” which was located at 1805 Eggleston Falls Road. Following Lieutenant Compton’s discovery, Braddock arrived at the 1520 Eggleston Falls Road residence, identified the ATV as his, and then loaded it on the trailer and returned it to his home. Early in the morning on the date Braddock discovered his property was missing, John David Stanley had observed his son Casey Stanley as well as Robert Donovant and two other men loading a variety of items into a barn on John David Stanley’s property. John David Stanley believed that one of the other men accompanying Donovant and his son looked like appellant. Around noon the same day, he observed Donovant, Chance Combs, an older female, and “a guy with one leg” whom he believed to be appellant return to his property and load items from the barn into a car.1 Among the items loaded into the car were “two tool bags” and “a leaf blower[.]” John David Stanley equivocated as to whether the “guy with one leg” was appellant or 1 someone else. In a written statement, he characterized the “guy with one leg” as appellant. At -2-  On February 24, 2018, John David Stanley was instructed by his son Casey to go to the residence of Chad Combs–the brother of Chance Combs–to retrieve a firearm and “get rid of it.” On the same day, John David Stanley arrived at Chad Combs’ home, retrieved the firearm, and took it home. At some point soon after, Officer Bruce Young was informed by Chad Combs that John David Stanley was in possession of the firearm believed to be the same one that was stolen from Braddock’s home. On February 26, 2018, Officer Young and Deputy Corey Waddell went to the Stanley home to investigate the situation. After speaking with John David Stanley, the officers retrieved the firearm which turned out to be the same nine-millimeter Ruger handgun stolen from the Braddock residence days earlier. The firearm was subsequently returned to Braddock. On February 25 or 27, 2018,2 the Henry County Sheriff’s Office received an anonymous tip requesting police presence at a residence belonging to a man named Charles Dillon. Deputy Waddell and Officer Young arrived at the Dillon residence and spoke with Charles Dillon, who informed the officers that he had purchased a Husqvarna leaf blower from appellant for $40. The officers then retrieved the leaf blower, determined it was the same one stolen from Braddock, and returned it to him. On February 28, 2018, Deputy Alan Jones from the Henry County Sheriff’s Office arrested appellant. On March 4, 2018, Lieutenant Compton interviewed appellant in the Henry County jail. Following a waiver of his Miranda rights, appellant told Lieutenant Compton that trial, however, he testified that he was unsure if that individual was appellant. Viewing that conflicting evidence in the light most favorable to the Commonwealth and resolving evidentiary ambiguities in its favor, this Court assumes that appellant was the person John David Stanley observed loading items into his shed. 2 Deputy Waddell testified that the tip and their response to it took place on February 25, whereas Officer Young testified that the response took place on February 27. -3- Donovant offered to sell him a Stihl leaf blower and a Stihl chainsaw around the time Braddock discovered his property missing. Appellant claimed to have rejected both offers from Donovant. He nonetheless admitted that at some point around the same time Charles Dillon gave him a “Stihl leaf blower,” which appellant claimed to have later dropped off at a friend’s house. On April 23, 2018, appellant approached Lieutenant Compton on his own initiative to “clear the air” about some of the statements he made to the lieutenant in their previous conversation. Specifically, appellant claimed that it was not Robert Donovant who had approached him to sell a leaf blower and chainsaw, but rather an individual named “Robert Bailey.” On July 15, 2019, a grand jury indicted appellant on one count each of breaking and entering with the intent to commit larceny, in violation of Code § 18.2-91; grand larceny, in violation of Code § 18.2-95(ii); grand larceny of a firearm, in violation of Code § 18.2-95(iii); possession of a firearm by a violent felon, in violation of Code § 18.2-308.2(A); and possession of ammunition by a felon, in violation of Code § 18.2-308.2(A). Appellant pled not guilty to each count. A bench trial took place on December 9, 2019, where appellant and co-defendant Casey Stanley were jointly tried. At the close of the Commonwealth’s evidence, appellant moved to strike the charges of grand larceny. In that motion, appellant’s counsel contended that the evidence was insufficient: among other assertions, counsel specifically argued that there was “no evidence that he actually took possession of [the leaf blower] or that he knew at the time the nature of the leaf blower to have been stolen.” Appellant’s counsel then asserted that “at most, you could arguably make out a case for receipt of stolen property, but I would submit there is not even a prima facie case there.” The trial judge overruled the motion to strike. -4-  At the close of all evidence, appellant’s counsel renewed the motion to strike. Counsel prefaced the renewed motion by stating “I would re-state and re-allege every argument I made at motion to strike.” He then repeated the argument that “[a]t most, it is recei[pt] [of] stolen property.” Further, he stated that “it was certainly not proof beyond a reasonable doubt that the court could convict him of the primary offense, and I would ask that the court, without waiving any prior argument, ask the court to find him not guilty.” The trial court denied that motion as well. The trial court found appellant not guilty of breaking and entering, grand larceny of a firearm, and possession of a firearm by a convicted violent felon. Although appellant was not found guilty of the grand larceny charge, the trial court did find him guilty of the lesser-included offense of receipt of stolen property–i.e., the leaf blower–in violation of Code § 18.2-108. The trial court also found appellant guilty of possession of ammunition by a convicted felon.3 This appeal followed. II. STANDARD OF REVIEW “When reviewing the sufficiency of the evidence to support a conviction, [this] Court will affirm the judgment unless the judgment is plainly wrong or without evidence to support it.” Bolden v. Commonwealth, 275 Va. 144 , 148 (2008). On appeal, this Court “does not ‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’” Wilson v. Commonwealth, 53 Va. App. 599 , 605 (2009) (quoting Jackson v. Virginia, 443 U.S. 307 , 318-19 (1979)). “Rather, the relevant question is whether ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’” Id. (quoting Jackson, 443 U.S. at 319 ). 3 Appellant does not challenge his conviction for possession of ammunition by a convicted felon on appeal, so recitation of the facts relevant to that conviction is not necessary. -5-  Additionally, in assessing whether the evidence was sufficient to find a defendant guilty beyond a reasonable doubt at trial, this Court “review[s] the evidence in the light most favorable to the prevailing party, including any inferences the factfinder may reasonably have drawn from the facts proved.’” Camp v. Commonwealth, 68 Va. App. 694 , 701 (2018) (quoting Hannon v. Commonwealth, 68 Va. App. 87 , 92 (2017)). “This ‘examination is not limited to the evidence mentioned by a party in trial argument or by the trial court in its ruling . . . . [A]n appellate court must consider all the evidence admitted at trial that is contained in the record.’” Jennings v. Commonwealth, 67 Va. App. 620 , 625 (2017) (quoting Perry v. Commonwealth, 280 Va. 572 , 580 (2010)). III. ANALYSIS Appellant contends that the trial court erred in finding the evidence sufficient to convict him of receiving stolen property.4 He specifically argues that the evidence was insufficient to prove that he knew of the leaf blower’s stolen nature at the time he possessed it. Notably, he does not dispute on appeal that the leaf blower he received from Charles Dillon was the one stolen from Braddock. Thus, the only question for this Court’s consideration is whether the trial court could rationally infer guilty knowledge from appellant’s possession of the leaf blower. This Court answers that question in the affirmative and holds that the trial court’s determination 4 The Commonwealth contends that appellant’s argument is procedurally defaulted under the doctrines of approbate/reprobate and invited error as well as Rule 5A:18. Although, as conceded in oral argument by appellant’s counsel, the motion to strike at the conclusion of all the evidence was less than precise, in the exercise of judicial restraint this Court finds that addressing the merits of appellant’s sufficiency claim is the narrowest and best grounds for decision in the instant matter. Therefore, this Court will assume, without deciding, that appellant did not waive or otherwise fail to preserve his sufficiency argument. See Commonwealth v. Swann, 290 Va. 194 , 196 (2015) (“The doctrine of judicial restraint dictates that we decide cases on the best and narrowest grounds available.” (internal citation and quotation marks omitted)); Nunez v. Commonwealth, 66 Va. App. 152 , 157 (2016) (emphasizing that “judicial restraint” counsels courts to assume legal principles without deciding them). -6- that appellant unlawfully received stolen property was not plainly wrong or without evidence to support it. To prove appellant guilty of receiving stolen property, the Commonwealth was required to show that the property “was (1) previously stolen by another, and (2) received by defendant, (3) with knowledge of the theft, and (4) a dishonest intent.” Bynum v. Commonwealth, 23 Va. App. 412 , 419 (1996). As mentioned, the element of guilty knowledge is the only element at issue in this appeal. Guilty knowledge “is sufficiently shown if the circumstances proven . . . must have made or caused the recipient of stolen goods to believe they were stolen.” Reaves v. Commonwealth, 192 Va. 443 , 451 (1951). Proof of recent possession of stolen property, as opposed to “mere naked possession of stolen goods,” constitutes “prima facie evidence that the defendant received the stolen goods with guilty knowledge.” Roberts v. Commonwealth, 230 Va. 264 , 271 (1985). Here, the leaf blower was stolen on February 21, 2018. Appellant admitted in an interview with Lieutenant Compton on March 4 that he was shown a leaf blower and a chainsaw around the same time the leaf blower was stolen.5 While appellant claimed he rejected those items in his encounter with Donovant, he admitted in the same interview that he received a leaf blower from Dillon–the same individual from whom the leaf blower was ultimately recovered–only a few days after the leaf blower was stolen from Braddock’s property. From that admission, the trial court rationally could infer guilty knowledge from the close proximity in 5 In his interview with Lieutenant Compton, appellant referred to the leaf blower he possessed as a “Stihl” leaf blower, whereas the leaf blower that belonged to Braddock was a Husqvarna. Appellant does not argue on appeal that this discrepancy between the characterization of the leaf blower brands constitutes a basis for reversal. Additionally, any confusion or mistakes made between those two brands is understandable. For one thing, both companies make orange landscaping equipment. For another, even counsel and witnesses below mistakenly referred to the stolen leaf blower as a “Stihl” and later corrected themselves and properly referred to it as a Husqvarna. -7- time between appellant’s possession of the leaf blower and the date that leaf blower was stolen. See id. (affirming an inference of guilty knowledge when the appellant was found in possession of property stolen a month prior). Moreover, the trial court could have rationally relied on the discrepancies in appellant’s statements to Lieutenant Compton in inferring appellant’s guilty knowledge. See Parham v. Commonwealth, 64 Va. App. 560 , 567 (2015) (“The fact finder was entitled to . . . infer that the appellant’s inconsistent statements were additional evidence of his guilt.” (citation omitted)). In his initial interview with Lieutenant Compton, appellant claimed that he was shown a leaf blower by Donovant, a person who, at a minimum, was involved in the transportation of Braddock’s stolen property. Changing his story a few weeks later, appellant re-approached Lieutenant Compton to “clear the air” and claimed that it was someone else, “Robert Bailey,” who presented him with a leaf blower. A rational finder of fact could have inferred from appellant’s inconsistent statements that he was attempting to distance himself from the relevant participants in a last-ditch effort to exonerate himself and could further infer that such was evidence of appellant’s guilt. These facts, combined with John David Stanley’s observation of appellant transporting stolen items from his barn to a vehicle, permitted a rational trier of fact to find appellant guilty of receiving stolen property. Therefore, the trial court’s conclusion that appellant was guilty of receiving stolen property was not plainly wrong or without evidence to support it. IV. CONCLUSION For the foregoing reasons, this Court affirms the judgment below. Affirmed. -8-

2020-12-01 15:18:40.59311+00

http://www.courts.state.va.us/opinions/opncavwp/1275192.pdf

COURT OF APPEALS OF VIRGINIA Present: Chief Judge Decker, Judge Humphreys and Senior Judge Annunziata PUBLISHED Argued by videoconference RICHARD PAUL STEVENS OPINION BY v. Record No. 1275-19-2 CHIEF JUDGE MARLA GRAFF DECKER DECEMBER 1, 2020 COMMONWEALTH OF VIRGINIA FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY David E. Johnson, Judge Susan E. Allen (The Law Office of Susan E. Allen, Attorney at Law, PLLC, on briefs), for appellant. Elizabeth Kiernan Fitzgerald, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee. Richard Paul Stevens appeals his convictions for object sexual penetration, aggravated sexual battery, and taking indecent liberties with a child, in violation of Code §§ 18.2-67.2, -67.3, and -370. He argues that the trial court erred by permitting a particular witness to testify as an expert. The appellant further claims that the trial court erred by admitting the expert’s testimony about delayed disclosures of abuse and memory formation. For the reasons that follow, we conclude that the trial court did not err by ruling that the witness was qualified to testify as an expert. Further, the appellant waived his objection to the expert’s testimony about delayed disclosures. Finally, the trial court acted within its discretion by admitting the expert’s testimony about memory formation. For these reasons, we affirm the convictions.  I. BACKGROUND1 At the appellant’s trial, the twenty-one-year-old victim testified that the appellant, a close family member, sexually abused her. She explained that the abuse occurred from when she was four years old until she was approximately six years old. The victim did not tell anyone about the abuse until 2017, when she was twenty years old. According to the victim, she had not reported the abuse earlier because she was not “ready to talk about it” and was scared of the appellant. The Commonwealth called Lisa Johnston as an expert witness on child abuse and disclosure. Johnston testified that it is “very common” for child victims of abuse to wait weeks, months, or years to initially report the offense. She also stated that, due to the memory formation process for young children, victims younger than ten often confuse details about the abuse. Johnston acknowledged that some disclosures of sexual abuse are false. The appellant testified in his defense. He denied ever touching the victim inappropriately. The defense also presented expert testimony from Susan Fiester, a psychiatrist. She too testified about memory formation. According to Fiester, younger children generally “have difficulty remembering things.” Fiester also testified that it is “not uncommon” for victims of childhood abuse to delay reporting. The jury found the appellant guilty of three counts each of object sexual penetration, aggravated sexual battery, and taking indecent liberties with a child. The trial court imposed the jury’s sentences totaling fifty-four years in prison for the nine offenses, as well as an additional 1 In accordance with familiar principles of appellate review, the facts are recited in the light most favorable to the Commonwealth, as the prevailing party at trial. Stoltz v. Commonwealth, 297 Va. 529 , 529, cert. denied, 140 S. Ct. 653 (2019); Kilby v. Commonwealth, 52 Va. App. 397 , 401 (2008). -2- three years, which it suspended upon condition of three years of post-release supervision, and fines of $150,000. II. ANALYSIS The appellant challenges the admission of the testimony of the Commonwealth’s expert witness on three grounds. First, he contends that Johnston was not qualified to testify as an expert. Second, he argues that her testimony regarding delayed disclosure was inadmissible because it merely bolstered the victim’s credibility. Third, he suggests that Johnston’s testimony regarding the formation of memory impermissibly exceeded the scope of her expertise. The standard of review for each of the appellant’s three assignments of error dealing with expert testimony is whether the trial court abused its discretion. See Wakeman v. Commonwealth, 69 Va. App. 528 , 535 (2018) (qualifications), aff’d, 298 Va. 412 (2020) (per curiam order); Schmuhl v. Commonwealth, 69 Va. App. 281 , 299 (2018) (admissibility of expert testimony), aff’d, 298 Va. 131 (2019) (per curiam order); Kilby v. Commonwealth, 52 Va. App. 397 , 410 (2008) (admissibility of expert testimony). A reviewing appellate court will not decide that “an abuse of discretion has occurred” unless “reasonable jurists could not differ” on the conclusion that the court erred. Du v. Commonwealth, 292 Va. 555 , 564 (2016) (quoting Grattan v. Commonwealth, 278 Va. 602 , 620 (2009)). “This bell-shaped curve of reasonability governing our appellate review rests on the venerable belief that the judge closest to the contest is the judge best able to discern where the equities lie.” Id. (quoting Sauder v. Ferguson, 289 Va. 449 , 459 (2015)). A. Expert Qualifications The appellant suggests that Johnston was not qualified to testify as an expert. He raises two challenges to her qualifications. He argues that she lacked the general qualifications to testify as an expert in the field of child abuse and disclosure. Further, he contends that she -3- lacked the expertise to testify as an expert in this case specifically because it involves an adult accuser and Johnston is a child forensic examiner.2 Expert testimony may be presented in a criminal proceeding if three conditions are met. First, the witness must be “qualified as an expert by knowledge, skill, experience, training, or education.” Va. R. Evid. 2:702(a)(i)-(ii). Second, the testimony must comprise “scientific, technical, or other specialized knowledge [that] will assist the trier of fact to understand the evidence or to determine a fact in issue.” Id. Third, the subject matter must be “beyond the knowledge and experience of ordinary persons, such that the jury needs expert opinion in order to comprehend the subject matter, form an intelligent opinion, and draw its conclusions.” Va. R. Evid. 2:702(a)(ii). At the time Johnston testified, she worked at the Chesterfield Child Advocacy Center as a forensic interviewer. While employed there, she performed over 150 forensic interviews. Prior to working at the center in Chesterfield, Johnston worked at a child advocacy center in Arkansas, where she performed over 130 forensic interviews. Johnston has a Bachelor of Science degree with a double major in criminology and sociology. She received specialized training in order to become a forensic interviewer. The training consisted of instruction on child development, the “dynamics of child abuse,” and “the 2 The Commonwealth argues that the appellant did not object below with sufficient specificity to preserve for appeal the general argument that the trial court erred by letting Johnston testify as an expert regarding child abuse and disclosure. See Rule 5A:18. At trial, the appellant objected to Johnston’s qualifications as an expert because the victim was no longer a child. The appellant’s specific challenge is integrally tied to the broader question of whether Johnston had specialized knowledge in the area of child abuse and disclosure. Significantly, the prosecutor argued that the witness was qualified to testify as an expert on child abuse and disclosure, and the trial court ruled that she was qualified to testify in these areas. See Scialdone v. Commonwealth, 279 Va. 422 , 440 (2010). The question of Johnston’s qualifications to testify as an expert on the general subjects of child abuse and disclosure was squarely before the circuit court. Consequently, we conclude that the appellant is not precluded by Rule 5A:18 from raising this argument on appeal. -4- process of disclosure.” Johnston participated in mock forensic interviews and passed a licensing examination before obtaining her certification. In addition, during her time as a forensic interviewer, she attended other specialized training including conferences and workshops. Finally, she testified that she had been peer-reviewed eight to ten times, a process which involves being observed while performing interviews and receiving constructive criticism. According to Johnston, on a weekly basis, she “stay[ed] current in studies involving child sexual abuse” and “how and why people disclose” such abuse. The record makes clear that Johnston possessed “a degree of knowledge of [the] subject matter[s]” of child abuse and reporting of such abuse “beyond that of persons of common intelligence and ordinary experience.” See Justiss v. Commonwealth, 61 Va. App. 261 , 271 (2012) (quoting Conley v. Commonwealth, 273 Va. 554 , 560 (2007)). Although she did not profess to have specialized training in adult disclosures, Johnston testified generally about why children sometimes do not disclose sexual abuse for many years, a matter at issue in this case. Additionally, the sexual abuse occurred when the victim was a young child, not when she was an adult. In fact, a significant portion of the delay in reporting occurred during the victim’s childhood years. The reporting gap essentially spanned the victim’s childhood. Johnston did not interview the victim, nor did she testify specifically about her. Instead, Johnston simply gave general testimony about the circumstances faced by child sexual abuse victims and the reasons why they often delay reporting the abuse. Johnston’s testimony given in this context was appropriate for the jury’s consideration. Contrary to the appellant’s suggestion, the fact that the child victim delayed reporting until after she became an adult does not alter this analysis. The appellant’s argument fails to account for the fact that the sexual abuse occurred when the victim was a young child. Further, although the delayed reporting extended into the victim’s adulthood, it was delayed through -5- many years of childhood. These circumstances rendered Johnston’s testimony relevant to that period of delayed reporting, a subject area in which she was entirely qualified to testify. The appellant cites Davison v. Commonwealth, 18 Va. App. 496 (1994), in support of the proposition that Johnston was not qualified to testify as an expert. In that case, the victims’ therapist, who had read a single article on child recantation, testified about reasons a child victim may recant. Id. at 499-501. This Court held that the testimony was inadmissible. Id. at 503. The Court concluded that the Commonwealth failed to qualify the witness “as an expert to explain ‘the phenomenon’” of the recantation of claims of sexual abuse by children. Id. at 499, 503-04. The holding in Davison, that reading a single article on the specific subject of child recantation does not make one an expert on that subject, has no bearing on the instant case. The trial court’s acceptance of Johnston’s qualifications as an expert on the subjects of child abuse and reporting or disclosure of such abuse was supported by her extensive education, training, and specific professional experience as a child forensic interviewer. Davison simply does not apply to the facts of this case. See Kilby, 52 Va. App. at 411 (distinguishing Davison based on the expert witness’ extensive experience and training). For these reasons, the trial court acted within its discretion by admitting Johnston’s expert testimony on the subjects of child abuse and disclosure both generally and in a case in which the child victim became an adult before disclosing the abuse. B. Admissibility of Testimony Regarding Delay in Disclosure The appellant argues that the trial court erred by allowing the Commonwealth’s expert witness to testify regarding a child victim’s reasons for delay in reporting sexual abuse. The -6- Commonwealth counters that the appellant waived this objection to the expert testimony by introducing his own expert who addressed the topic of delayed disclosure.3 The law in this area is well established. When “an accused unsuccessfully objects to evidence which he considers improper and then on his own behalf introduces evidence of the same character, he thereby waives his objection, and [the appellate court] cannot reverse for the alleged error.” Hubbard v. Commonwealth, 243 Va. 1 , 9 (1992) (quoting Saunders v. Commonwealth, 211 Va. 399 , 401 (1970)). In short, this concept provides that a party “cannot . . . avail[ ]” himself of an objection to evidence if he “has, at some other time during the trial,” either “voluntarily elicited the same evidence” or “permitted it to be brought out by [the opposing party] without objection.” Burns v. Bd. of Supers., 227 Va. 354 , 363 (1984) (emphasis omitted) (quoting Whitten v. McClelland, 137 Va. 726 , 741 (1923)); see also Nat’l Coll. of Bus. & Tech., Inc. v. Davenport, 57 Va. App. 677 , 690 n.16 (2011). This legal maxim is sometimes called the “same-evidence principle.” Isaac v. Commonwealth, 58 Va. App. 255 , 260 (2011). This principle applies to “exactly the same evidence” as well as three additional types of evidence. Id. at 264. The first category is “evidence dealing ‘with the same subject.’” Id. (quoting Pettus v. Gottfried, 269 Va. 69 , 79 (2005)). The second type is “evidence fairly considered to be ‘of the same character.’” Id. (quoting Combs v. Norfolk & W. Ry., 256 Va. 3 The appellant suggests that the Commonwealth waived this argument by not raising it at “the petition[] stage” of the case. However, an appellee is not required to file a brief in opposition to the petition for appeal. See Rule 5A:13(a) (“A brief in opposition to granting the appeal may be filed . . . .” (emphasis added)). The Supreme Court of Virginia has declined to hold that an appellee waives an argument by failing to “assert it in response to a petition for a writ of error.” S’holder Representative Servs., LLC v. Airbus Ams., Inc., 292 Va. 682 , 690 n.4 (2016); see also Meyers v. Commonwealth, No. 150962, at 6 (Va. Jan. 12, 2017) (reaching the same conclusion in a criminal context). Consequently, the Commonwealth is not foreclosed from making the argument it raises in its brief. That legal argument, as discussed above, provides a basis for affirming the trial court. -7- 490, 499 (1998)). The third kind encompasses “evidence ‘similar to that to which the objection applies.’”4 Id. (quoting Snead v. Commonwealth, 138 Va. 787 , 802 (1924)). Johnston testified that it is “very common” for child victims of sexual abuse to wait weeks or even years before initially reporting it. She provided several reasons for delayed reporting: fear, shame, embarrassment, and the misperception of such behavior as normal. The defense expert, Fiester, confirmed that it was “not uncommon” for children to delay disclosures. She likewise stated that victims may delay reporting abuse for a variety of reasons, including shame and reluctance to disrupt family relationships. Both experts testified that it is common for child victims of sexual abuse to delay disclosure. Fiester’s testimony about some of the reasons that child victims of sexual abuse may delay reporting the offense deals with the same subject and was of the same character as that portion of Johnston’s testimony challenged by this assignment of error, “purport[ing] to explain delayed disclosure.” In addition, Fiester’s testimony about reasons that children may delay reporting partially overlapped with Johnston’s testimony on this point. The testimony of both experts established reasons why a child may wait to disclose abuse. The appellant’s introduction, “during his case in chief,” of “sufficiently similar evidence” to Johnston’s testimony on the aspects of child victims’ delayed disclosure of sexual abuse constituted a waiver of his challenge to Johnston’s testimony on this point. See Isaac, 58 Va. App. at 264. Therefore, we do not address this assignment of error on the merits. 4 The same-evidence waiver principle “should be narrowly construed” when it involves evidence that is merely of the same kind or character, such as a “type of evidence” like hearsay or leading questions. See Kent Sinclair, The Law of Evidence in Virginia § 2-3[c], at 126 (8th ed. 2018) (emphasis omitted). Nonetheless, there is no exception to this principle “when the defendant presents in his case in chief the same or similar evidence he previously objected to in order to explain it away or to offer a more favorable interpretation.” Isaac, 58 Va. App. at 261-62 (explaining that “a criminal defendant’s case in chief . . . by its very nature, seeks to [counter] . . . the Commonwealth’s evidence”). -8-  C. Admissibility of Testimony Regarding Memory Formation The appellant claims that the trial court erred by admitting Johnston’s expert testimony regarding the formation of memory because she was qualified only as an expert in the field of child abuse and disclosure. He contends that her testimony about memory exceeded the scope of her expertise. An expert witness must be “qualified as an expert by knowledge, skill, experience, training, or education” on the subject. Va. R. Evid. 2:702(a)(i)-(ii). Johnston indicated that she had experience with and read literature about how children “under the age of seven remember things.” She also explained that memories “can get blurred the younger . . . [the children] are” and that when multiple instances of abuse occur, the child victims’ “memories tend to crisscross a little bit and get confused as far as details [regarding] when something happened or how many times or things of that nature.” As demonstrated through Johnston’s testimony, the issue of memory formation and retention is inextricably linked to a child’s disclosure of sexual abuse. A child’s report of abuse is necessarily based on his or her memory of the event or events. In addition to Johnston’s training and review of literature, her past interviews of around 300 children provided her with considerable experience concerning how children remember abuse. She based her testimony on her “training, experience, and . . . [the] literature.” The record supports the conclusion that Johnston possessed “a degree of knowledge of [the] subject matter[s]” of memory formation and recall by children “beyond that of persons of common intelligence and ordinary experience.” See Wakeman, 69 Va. App. at 536 (first alteration in original) (quoting Justiss, 61 Va. App. at 271). Accordingly, the trial court acted within its discretion by admitting Johnston’s testimony about the memory of young children in the context of sexual abuse and disclosure. -9-  III. CONCLUSION We hold that Johnston’s education, training, knowledge, and experience supported the trial court’s ruling that she was qualified to testify as an expert in the areas of child abuse and disclosure. The trial court acted within its discretion by allowing her testimony even though the victim was an adult at the time of trial, because the abuse and most of the delay in her reporting occurred when she was a child. Additionally, the appellant waived his objection to Johnston’s testimony on delayed disclosure by introducing substantially similar evidence. Finally, Johnston’s testimony about how young children form memories of abuse was within the scope of her expertise. For these reasons, we affirm the convictions but remand the case for the correction of a clerical error.5 Affirmed and remanded. 5 The summary section of the sentencing order incorrectly provides that the total sentence is fifty-four years, as opposed to fifty-seven years, and does not note that three years of that sentence is suspended upon the condition of three years of post-release supervision. Consequently, we remand to the trial court solely for a correction of this clerical error. See Code § 8.01-428(B); Howell v. Commonwealth, 274 Va. 737 , 739 n.*, 742 (2007); Atkins v. Commonwealth, 68 Va. App. 1 , 10 (2017). - 10 -

2020-12-01 15:18:41.150254+00

http://www.courts.state.va.us/opinions/opncavwp/1146194.pdf

COURT OF APPEALS OF VIRGINIA Present: Chief Judge Decker, Judges Malveaux and Athey PUBLISHED Argued by videoconference PAULA JO SMITH OPINION BY v. Record No. 1146-19-4 CHIEF JUDGE MARLA GRAFF DECKER DECEMBER 1, 2020 COMMONWEALTH OF VIRGINIA FROM THE CIRCUIT COURT OF STAFFORD COUNTY Victoria A.B. Willis, Judge James Joseph Ilijevich for appellant. Lauren C. Campbell, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee. Paula Jo Smith appeals her conviction for defrauding an innkeeper in violation of Code § 18.2-188. On appeal, she contends that the evidence was insufficient to support her conviction because it did not prove she had the requisite intent to defraud. The appellant also maintains that the trial court erred by making numerous evidentiary rulings that improperly limited her ability to show that she had difficulty paying for her stay at the hotel. We hold that the evidence established that the appellant formed the requisite intent to defraud the hotel owner. Regarding the challenged evidentiary rulings, the appellant’s failure to proffer the related line of questioning and expected answers bars this Court’s review of one of the alleged errors. Further, in another instance, in which the appellant made a proper proffer, the trial court did not abuse its discretion by excluding evidence on relevance grounds. Finally, we hold that if the trial court erred by limiting the appellant’s testimony in two additional areas, any such errors were harmless. Accordingly, we affirm the conviction.  I. BACKGROUND1 The appellant lived with her children at a hotel for about a year. After falling behind in her room payments, she moved out of the hotel without paying her outstanding balance. As a result, the Commonwealth charged her with one count of defrauding an innkeeper. At trial, the evidence established that when the appellant began living in the hotel in 2016, she paid for her room in advance each week in order to receive a discounted rate of $40 per day. However, in June 2017, she began falling behind on her payments. The hotel manager, Shanita Smith, and the hotel’s owner, Nilaykumar Patel, spoke with the appellant about her outstanding balance. She assured them that she would pay in full “before she left.” Patel allowed the appellant to remain at the hotel but increased her daily rate to $59.99. Patel testified that after he spoke with the appellant in the middle of June about her outstanding balance, she started complaining about bugs in her room. Patel offered her a different room, but she declined to move. No other guests had complained about bugs, but Patel nevertheless had a pest control company treat the appellant’s room. The appellant made a $140 cash payment toward her room balance in late June and a $300 cash payment in early July. However, she made no further payments after July 4, and when she left the hotel on July 27, 2017, she had an outstanding balance of more than $2,000. She moved to a different hotel, using $1,000 that she had saved from her disability checks. On the morning of July 27, 2017, Hotel Manager Smith learned that the appellant had left without “check[ing] out . . . at the front desk.” After unsuccessful attempts to contact the appellant, Smith and Patel reported her actions to Sergeant W. Kreider of the Stafford County 1 When considering a challenge to the sufficiency of the evidence on appeal, this Court “view[s] the evidence, and all inferences reasonably drawn from it, in the light most favorable to the Commonwealth,” the party who prevailed in the trial court. Reid v. Commonwealth, 65 Va. App. 745 , 753 (2016) (quoting Muhammad v. Commonwealth, 269 Va. 451 , 536 (2005)). -2- Sheriff’s Office. Kreider spoke with the appellant on the phone. She told him that she was “going to get a job and try to work out arrangements to make payments.” The appellant subsequently phoned Patel and told him that she wanted to set up a payment plan. However, she did not return to the hotel or make any payments despite having income from a new job that she started on August 13, 2017. The appellant testified in her own defense. She said that she did not fall behind in her room payments until after her rate increased in June 2017. She claimed that she first complained about bugs in her room in late 2016. According to the appellant, Patel did not have her room treated for bugs until she showed “the infestation” to a health inspector who came to her room over six months later, in late July 2017. The appellant alleged that when she returned to the hotel after her room had been treated, Patel “verbally assaulted” her. She said that she was embarrassed by the incident and decided to leave the hotel later that night. She also explained that she abruptly left the hotel with her children for her “safety,” “health,” and “well-being.” Further, she testified that she was upset that Patel had “changed [her] payment at the last minute.” The appellant said that after paying “$25,000 to $30,000” to live there, she believed that she “had given [Patel] enough money.” According to the appellant, because Patel “chang[ed her] bills at the last minute,” she did not think it was “right for [her] to have to pay [him] any[ ]more money than [she] already had.” The appellant moved to strike the evidence at the end of the Commonwealth’s case-in-chief and at the close of all the evidence. The trial court denied both motions. The jury convicted the appellant of defrauding an innkeeper. The court imposed the jury’s sentence of one week in jail and a fine of $2,500. It also ordered the appellant to pay restitution of $2,284. -3-  II. ANALYSIS The appellant challenges the sufficiency of the evidence to support her conviction for defrauding an innkeeper. She also maintains that the trial court made several erroneous rulings on the admissibility of certain evidence. A. Sufficiency of the Evidence The appellant suggests that the evidence is insufficient to prove that she acted with the requisite intent because it does not show that she intended to defraud the owner at the time she “put up” at the hotel. Intent is the only element of the offense that she contests on appeal. When reviewing the sufficiency of the evidence, “this Court ‘must affirm the conviction unless it is plainly wrong or without evidence to support it.’” Brown v. Commonwealth, 68 Va. App. 746 , 786-87 (2018) (quoting Gerald v. Commonwealth, 68 Va. App. 167 , 172 (2017)). “This deferential standard ‘requires us to “discard the evidence of the accused in conflict with that of the Commonwealth[] and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn”’ from that evidence.” Green v. Commonwealth, 72 Va. App. 193 , 200 (2020) (alteration in original) (quoting Vasquez v. Commonwealth, 291 Va. 232 , 236 (2016)). “This standard ‘applies not only to the historical facts themselves, but [also to] the inferences from those facts.’” Id. (alteration in original) (quoting Clanton v. Commonwealth, 53 Va. App. 561 , 566 (2009) (en banc)). Further, “[t]o the extent our analysis of the sufficiency of the evidence requires us to examine the statutory language, we review issues of statutory construction de novo on appeal.” Miller v. Commonwealth, 64 Va. App. 527 , 537 (2015). The relevant statute, Code § 18.2-188(1), states in pertinent part that “[i]t shall be unlawful for any person, without paying therefor, and with the intent to cheat or defraud the owner or keeper to . . . [p]ut up at a hotel.” Under this statute, the Commonwealth must prove -4- that the defendant harbored an “intent to cheat or defraud” at the time she “[p]ut up at a hotel.” Code § 18.2-188(1). A person who “[p]ut[s] up at a hotel” without intending to pay for her stay has violated the statute. Id. The appellant relies on the language in the statute, which makes clear that the intent to defraud must exist at the time that the defendant “put up” at a hotel. She suggests that “put up” references the specific time when she checked in or began lodging at the hotel. In support of this argument, she cites Caldwell v. Commonwealth, ___ Va. ___ (Apr. 9, 2020). This sufficiency challenge requires the Court first to determine what the term “put up” means in the context of Code § 18.2-188(1) and then, applying appropriate deference to the determinations of the trier of fact, to look to the facts in this case. The phrase “put up” is not defined in the statute, so we rely on settled principles of statutory construction to determine its meaning. We begin our analysis with “the plain meaning of the words contained in the statute,” which reflect the General Assembly’s intent. Salazar v. Commonwealth, 66 Va. App. 569 , 577 (2016); see Jones v. Commonwealth, 296 Va. 412 , 415 (2018). “[C]ourts ‘are required to ascertain and give effect to the intention of the legislature, which is usually self-evident from the statutory language.’” Armstead v. Commonwealth, 55 Va. App. 354 , 360 (2009) (quoting Johnson v. Commonwealth, 53 Va. App. 608 , 612 (2009)). When we consider the meaning of particular language in context, the Court “adhere[s] to rules of statutory construction that discourage any interpretation of a statute that would render any part of it useless, redundant or absurd.” Spratley v. Commonwealth, 298 Va. 187 , 195-96 (2019) (quoting Owens v. DRS Auto. FantomWorks, Inc., 288 Va. 489 , 497 (2014)). -5-  The meaning of the phrase “put up” has not been analyzed with regard to its use in the statute that proscribes defrauding an innkeeper.2 Consequently, we turn to the most applicable dictionary definition of the term and its usage in other Virginia statutes. See Eley v. Commonwealth, 70 Va. App. 158 , 165 (2019) (noting that a court interpreting undefined statutory terminology may consult dictionary definitions); Moyer v. Commonwealth, 33 Va. App. 8 , 35 (2000) (en banc) (noting that “[t]he Code of Virginia constitutes a single body of law[] and other sections can be looked to where the same phraseology is employed” (first alteration in original) (quoting Hart v. Commonwealth, 18 Va. App. 77 , 79 (1994))). “Put up,” used as an intransitive verb, means to “lodge.” Put up, Webster’s Third New International Dictionary (2002). The given usage of the intransitive verb form of the term “put up” in Webster’s Dictionary is as follows: syn see RESIDE Id. We assume that when the General Assembly crafted the statute in 1894 and used the term “put up,” it kept in mind the “common, ordinary and accepted meaning” of the term in light of the specific prohibition that the statute addresses. See 1893-1894 Va. Acts ch. 841; Pittman v. Commonwealth, 69 Va. App. 632 , 637 (2019) (quoting Bennett v. Commonwealth, 60 Va. App. 656 , 666 (2012)). Similarly, when a court analyzes the language of a statute and applies it to the facts of a case, it uses definitions that unambiguously apply in the context of the particular statute. See Branch v. Commonwealth, 14 Va. App. 836 , 839 (1992). Accordingly, given the 2 The term “put up,” which dates back to the origin of the statute in 1894, is a phrase with many uses and definitions. See 1893-1894 Va. Acts ch. 841; Put up, Webster’s Third New International Dictionary (2002) (listing fourteen definitions for the term). The phrase has been used in different ways in appellate opinions over the years. See, e.g., Collins v. First Union Nat’l Bank, 272 Va. 744 , 746-47 (2006) (using the term “put up” to explain that victims in a fraud scheme were not required to provide collateral to secure loans ostensibly being used to qualify them for business investment visas); Slater v. Moore, 86 Va. 26 , 28 (1889) (using the phrase “put up” to indicate that goods had been placed or stored in a store). -6- conduct that Code § 18.2-188(1) proscribes, we hold that “put up” means to “lodge” or reside in a hotel. The General Assembly used the term in just such a context in a related statute enacted in 1914, which then provided for licensing and taxing hotels. See 1914 Va. Acts ch. 241 (defining a “hotel” in part as a place where “guests are fed or lodged” and using the term “put up” to discuss how long a guest remained lodged at the hotel).3 Manifestly, both the plain meaning of “put up” and its usage elsewhere in the Virginia Code near the time of the statute’s enactment indicate that the term applies to any period for which one arranges to lodge at a hotel. The recent decision of the Supreme Court of Virginia in Caldwell does not support a different result. Caldwell, which was rendered under a different subsection of the statute, involved a one-time transaction for which a diner was convicted of defrauding a restaurant based on a refusal to pay for her breakfast. ___ Va. at ____. On those facts, the Court held that the Commonwealth was required to establish that Caldwell formed an intent to defraud before she ate the single breakfast at issue, and it ruled that the evidence was insufficient to meet that burden. Id. at ___, ___. In this case, by contrast, the appellant engaged in recurring transactions with the hotel. She paid by the week and received a reduced daily room rate as a result. The hotel charged the appellant for her room on a daily basis, a fact of which she was aware. Consequently, a conviction under the statute did not require proof that the appellant had the intent to defraud when she first checked in at the hotel. Instead, the Commonwealth was required to prove only that she had the necessary criminal intent prior to any one of her daily transactions with the hotel to support the single count of defrauding an innkeeper. 3 The appellant contends, without citing any controlling authority, that “putting up” specifically refers to the precise moment in time when she “checked in” or “moved in” to her room at the hotel. Her suggested narrow meaning of “put up” stretches any established definition of the term and is inconsistent with a “plain meaning” analysis. -7-  Having resolved the threshold issue of the meaning of the term “put up” as used in Code § 18.2-188(1), we now turn to whether the evidence proved that the appellant had the requisite criminal intent at the time of any one of her relevant transactions with the hotel. Intent is typically proved by circumstantial evidence. Secret v. Commonwealth, 296 Va. 204 , 229 (2018). As in “all . . . fraud cases, fraudulent intent can be inferred from ‘the conduct and representations of the defendant.’” Dennos v. Commonwealth, 63 Va. App. 139 , 145 (2014) (quoting Rader v. Commonwealth, 15 Va. App. 325 , 329 (1992)); see Austin v. Commonwealth, 60 Va. App. 60 , 66 (2012). Notably, “[w]hether the required intent exists is generally a question of fact for the trier of fact.” Brown, 68 Va. App. at 787 (quoting Nobles v. Commonwealth, 218 Va. 548 , 551 (1977)). Here, the jury was presented with sufficient evidence to support a finding that the appellant formed the specific intent to defraud Patel, the hotel owner, in conjunction with her later transactions for lodging during her long-term stay. The evidence established that because the appellant failed to keep up with her payments in May and June 2017, she lost the preferred rate of $40 a day, and her daily room rate increased. The appellant made two payments for the room at the new rate. However, she stopped paying for her room after July 4, 2017, and nevertheless remained there for an additional twenty-two days without paying anything for the room over that period of time or thereafter. The timing of the appellant’s failure to pay and her related behavior are important factors. She began falling behind on her payments around June 16, 2017. When she was confronted about her delinquent bills, she promised the hotel management that she would pay her balance “before she left.” The record establishes that she did not do so. Ultimately, the appellant left the hotel at night without paying what she owed or even checking out at the front desk. She never returned to the hotel to make another payment, despite the fact that she had saved up $1,000. -8- Additionally, although the appellant secured employment about two weeks after abandoning her hotel room, she neither paid what she owed nor contacted hotel management to set up a payment plan for her outstanding balance as she had promised to do. All of this evidence alone supports the jury’s conclusion that after July 4 the appellant made a conscious decision to remain “put up” in her room for a period of time without paying for it. However, in addition, the appellant’s own testimony makes clear that she intended to defraud Patel. When the appellant testified, she explained her furtive departure and subsequent refusal to make any payments by stating that because Patel “chang[ed her] bills at the last minute,” she did not think it was “right for [her] to have to pay [him] any[ ]more money than [she] already had.” Based on her own testimony, the jury could reasonably have concluded that because the appellant was upset about the increase in her room rate in mid-June, she decided to “put up” at the hotel for the final three weeks without paying Patel any additional money for the room. See Blankenship v. Commonwealth, 71 Va. App. 608 , 619 (2020) (“The sole responsibility to determine the credibility of witnesses, the weight to be given to their testimony, and the inferences to be drawn from proven facts lies with the fact finder.” (quoting Ragland v. Commonwealth, 67 Va. App. 519 , 529-30 (2017))). Further, the jury could reasonably infer fraudulent intent based on the appellant’s avoidance of attempts by hotel staff to contact her after she left.4 See Dennos, 63 Va. App. at 145-46 (holding that a defendant’s “efforts to avoid communicating with the [victims]” and “subsequent failure to perform the work” in a construction fraud case were evidence of “fraudulent intent”); see also Simon v. Commonwealth, 4 The jury was free to disbelieve the appellant’s claims that a roach infestation or any of the other alleged problems at the hotel influenced her decision to leave or somehow negated her intent to “put up” without paying. See Bazemore v. Commonwealth, 42 Va. App. 203 , 213 (2004) (en banc) (explaining that the jury is “free to believe or disbelieve, in part or in whole, the testimony of any witness”). -9-  58 Va. App. 194 , 206 (2011) (noting that “conduct of an accused after the events that constitute the charged crime may also be relevant circumstantial evidence of intent”). Accordingly, the evidence presented supports the jury’s finding that the appellant formed the requisite intent to defraud the owner while she resided at the hotel and stayed there for several weeks without paying, did not settle her bill when she left, and never set up a payment plan despite her representations that she would do so. For these reasons, we hold that the evidence, viewed under the proper standard, proved that the appellant intended to defraud Patel when she “put up” at the hotel during the three-week period following her last payment on July 4, 2017.5 B. Evidentiary Rulings The appellant also argues that the trial court erred by “exclud[ing] or significantly limit[ing]” evidence regarding several subjects brought up during trial. She maintains that these evidentiary errors occurred because the judge misunderstood the elements of Code § 18.2-188, specifically, the requirement for proof of intent to defraud. We consider first whether the judge misunderstood the law and then turn to the appellant’s individual evidentiary claims. 1. The Trial Court’s Understanding of the Law To support her contention that the trial judge misunderstood the law, the appellant points to a short discussion between the judge and the attorneys during the appellant’s 5 The appellant also argues that she entered into a credit arrangement with the hotel and therefore could not be found guilty of procuring the accommodation by fraud. See Code § 18.2-188(4). However, she did not preserve this specific argument below. Although she directed the trial court’s attention to Louis v. Commonwealth, 40 Va. App. 228 (2003), which involved the impact of a line of credit on a charge of defrauding an innkeeper, she referenced the case for an unrelated principle. Therefore, we hold that the argument is barred by Rule 5A:18. See Bethea v. Commonwealth, 297 Va. 730 , 743-44 (2019); Hicks v. Commonwealth, 71 Va. App. 255 , 266 (2019). The appellant has not requested that the Court consider the argument pursuant to an exception to Rule 5A:18, and we will not do so sua sponte. See Edwards v. Commonwealth, 41 Va. App. 752 , 761 (2003) (en banc), aff’d by unpub’d order, No. 040019 (Va. Oct. 15, 2004)), cited with approval in Jones v. Commonwealth, 293 Va. 29 , 39 n.5 (2017). - 10 - cross-examination of the hotel manager. The prosecutor questioned the relevance of testimony that the appellant characterized as the hotel’s response to “issues” that the appellant “raised with [the hotel].” She suggested that hotel staff treated her differently than other guests with outstanding balances and sought to “punish[]” her. The judge observed that such evidence was “neither here nor there” because it was “like speeders on the highway.” After some additional discussion regarding relevance and whether the questioning was better directed toward the hotel’s owner rather than its manager, counsel for the appellant began, “I just, again for the record—” The prosecutor interjected, stating, “It’s basically strict liability.” Following these comments, the judge said, “Yes.” Counsel for the appellant replied, “Well, that’s the Commonwealth’s position. But ultimately . . . it goes towards her intent to defraud if she thinks she is being punished.” The judge responded that the appellant could “argue that in . . . closing” but adhered to her ruling sustaining the objection on relevance grounds. The appellant relies on the single “Yes” response by the judge during the back-and-forth exchange with counsel to argue that the court misunderstood the law. She frames the judge’s response as an acceptance of the prosecutor’s statement that a charge of defrauding an innkeeper hinges on the simple failure of a hotel guest to pay for particular services and is “basically strict liability.” An appellate court, however, “will not fix upon isolated statements of the trial judge taken out of the full context in which they were made[] and use them as a predicate for holding the law has been misapplied.” Yarborough v. Commonwealth, 217 Va. 971 , 978 (1977); see also Duggins v. Commonwealth, 59 Va. App. 785 , 789 n.2 (2012) (“[W]e presume [trial] judges know the law and correctly apply it.” (second alteration in original) (quoting White v. White, 56 Va. App. 214 , 217 (2010))). The trial court’s “Yes” response came during a multifaceted discussion and does not compel the conclusion that the judge accepted the prosecutor’s assertion that the offense was - 11 - “basically” one of “strict liability.” Additionally, the exchange does not paint a full picture of everything else that occurred at trial. Despite the brief discussion, the record as a whole clearly reflects that the judge understood the elements of the offense. Later, following the exchange at issue, the appellant made a motion to strike and argued that the Commonwealth had not shown that she had an intent to defraud the hotel owner. The prosecutor disputed this point and noted that the question of intent was a factual one for the jury. The judge denied the motion and mentioned that “[i]ntent . . . can be inferred from the actions of the individuals.” The judge added that whether the requisite intent existed was “a factual issue for the jury to determine.” When the appellant renewed her motion to strike, she again argued that the Commonwealth had failed to prove that she had an intent to defraud the hotel owner. The prosecutor responded that the question was whether she failed to pay “because she intended to cheat [the owner],” and he noted that the appellant’s own testimony shed light on this subject. He concluded by reiterating that the issue of intent was a factual question for the jury. The trial judge denied the renewed motion to strike, correctly ruling that intent was a question for the trier of fact. Consistent with the trial court’s rulings, the jury was properly instructed on the elements of the offense and, specifically, that the Commonwealth was required to prove that the appellant had failed to pay the owner “with the intent to cheat or defraud.” Consequently, the record as a whole makes clear that the trial judge understood that proof of intent was required under the statute. 2. Challenges to Specific Evidentiary Rulings The appellant contends that the trial court erred by limiting her presentation of evidence with regard to several subjects: (a) alleged bias toward her by hotel staff; (b) the hotel owner’s financial practices regarding other guests; (c) the appellant’s financial situation; and (d) her claim that the Commonwealth’s Attorney’s office directed her to remain at the hotel. The - 12 - appellant argues that “these lines of questioning w[ere] relevant to whether her non[]payment . . . and her abrupt departure from the [hotel] were carried out with fraudulent intent” and therefore should have been allowed. a. Evidence of Bias of Hotel Management At trial the appellant’s counsel attempted to question the hotel manager regarding an assault complaint that the appellant had made against an employee of the hotel. The Commonwealth objected based on relevance. The appellant’s counsel explained that the questions related to whether the hotel management had “some vendetta” against the appellant and alleged that Patel harbored bad feelings toward her. The court noted that the questions were probably “more appropriate to ask Mr. Patel” and ruled that the inquiry was not relevant when questioning the hotel manager. It is well established that a party who wishes to challenge the trial court’s exclusion of evidence on appeal must provide a proffer of that evidence that is adequate to permit this Court to determine whether the lower court erred. See, e.g., Tynes v. Commonwealth, 49 Va. App. 17 , 23 (2006) (noting that absent a proper proffer, the appellate court could not determine whether the trial court erred by excluding testimony or whether that exclusion was prejudicial). Here, when the trial court ruled against the appellant, she failed to proffer the testimony she expected Hotel Manager Smith to deliver. The failure to proffer is fatal to this particular claim. Without a proffer of the hotel manager’s expected testimony, this Court is unable to determine whether any such information was relevant and admissible and whether its exclusion was prejudicial. Consequently, we do not consider this claim of error. b. Patel’s Efforts to Collect from Other Guests The appellant challenges the trial court’s ruling excluding Patel’s testimony about what actions he typically took regarding other clientele with unpaid hotel bills. - 13 -  “Evidence is admissible if it is both relevant and material.” Castillo v. Commonwealth, 70 Va. App. 394 , 462 (2019) (quoting Patterson v. Commonwealth, 62 Va. App. 488 , 493 (2013)). The trial court ruled that Patel’s testimony about how he typically handled the unpaid hotel bills of other guests was not relevant to the case. We hold that this ruling is correct. See Coe v. Commonwealth, 231 Va. 83 , 87 (1986) (noting that “evidence of collateral facts and facts incapable of supporting an inference on the issue presented are irrelevant and cannot be accepted in evidence” because “[s]uch irrelevant evidence tends to draw the jurors’ attention toward immaterial matters”). Patel’s past practices with other individuals have no bearing on the appellant’s intent to defraud or the time at which she formed that intent. Nor do Patel’s practices with others address any of the other elements of the offense. See id. For these reasons, the trial court acted properly within its discretion by not allowing testimony on this point.6 c. Evidence of Financial Impact of Medical Costs The appellant argues that the trial court improperly excluded a line of questions involving whether medical care for the appellant and her son from May to July 2017 affected her ability to pay her hotel bills. She attempted to testify that she had been hospitalized with cancer and her son had sustained an injury that required surgery, but the testimony was excluded. The trial court ruled that any such testimony was not relevant. Assuming without deciding that evidence concerning the cost and timing of the medical treatment was relevant to the jury’s consideration of the element of intent, we hold that any error in excluding it was harmless. See Commonwealth v. White, 293 Va. 411 , 419 (2017) (observing the duty of appellate courts to decide cases on the best and narrowest ground and noting that one such ground may be concluding that any error was harmless). In a case involving alleged 6 We note that despite the ruling, Patel ultimately gave testimony confirming that he pursued legal action, whether criminal or civil, against guests who failed to pay their bills “[e]very single time.” Thus, the proposed evidence was before the jury. - 14 - non-constitutional error, any error is harmless when it “plainly appears from the record and the evidence given at the trial that the parties have had a fair trial on the merits and substantial justice has been reached.” Anderson v. Commonwealth, 282 Va. 457 , 466 (2011) (quoting Rose v. Commonwealth, 270 Va. 3 , 11-12 (2005) (quoting Code § 8.01-678)). “If, when all is said and done,” the reviewing court is “sure that the [non-constitutional] error did not influence the jury, or had but slight effect, the verdict and the judgment should stand.” Clay v. Commonwealth, 262 Va. 253 , 260 (2001) (quoting Kotteakos v. United States, 328 U.S. 750 , 764 (1946)). In the context of the required test, such error is harmless where “other evidence of guilt is ‘so overwhelming and the error so insignificant by comparison that the error could not have affected the verdict.’” Salahuddin v. Commonwealth, 67 Va. App. 190 , 212 (2017) (quoting McLean v. Commonwealth, 32 Va. App. 200 , 211 (2000)); see also Davies v. Commonwealth, 15 Va. App. 350 , 353 (1992) (recognizing that a court must be able to reach this conclusion “without usurping the jury’s fact finding function” (quoting Lavinder v. Commonwealth, 12 Va. App. 1003 , 1005 (1991) (en banc))). In this case, any error in the trial court’s evidentiary ruling was harmless given the forthright nature of some of the appellant’s additional, more specific testimony relating to her intent. See Code § 8.01-678; Clay, 262 Va. at 260 .7 Although the appellant admitted saving $1,000 from her disability benefits before leaving the hotel, she departed furtively from the hotel at night without paying any of her outstanding balance. When the appellant was asked why she left without paying, she explained that Patel “had changed [her] payment at the last minute for [her] dog and [her] room,” and she candidly shared her belief that she had already “given [Patel] 7 This conclusion is also supported by the seminal principle that a litigant can rise no higher than the “facts within [her] own knowledge and . . . to which [she] has testified.” See Travis v. Bulifant, 226 Va. 1 , 4-5 (1983) (quoting Massie v. Firmstone, 134 Va. 450 , 462 (1922)), cited with approval in Williams v. Commonwealth, 234 Va. 168 , 176 (1987). - 15 - enough money.” Although she secured a job within a few weeks after leaving the hotel, she never made any effort to pay her outstanding hotel bill. The appellant’s candid admission that she believed she had paid Patel “enough money,” coupled with her furtive nighttime departure, avoidance of hotel management’s attempts to contact her after she left, and failure to make any additional payments on her outstanding balance despite her savings and new job, clearly established that she never intended to pay Patel for her last three weeks of occupancy. The evidence of the appellant’s guilt in this case, viewed in its totality, was overwhelming. Any possible error made by the trial court in limiting her testimony regarding her family medical bills was insignificant compared to her forthright testimony and the evidence of her actions, which belied any intent to pay her outstanding balance with the hotel. The record plainly demonstrates that the appellant had “a fair trial on the merits and substantial justice has been reached.” See Code § 8.01-678. Accordingly, we hold that if the trial court erred in excluding any of the alleged evidence, such an error was harmless. d. Evidence Related to an Order Requiring the Appellant to Stay at the Hotel The appellant claims that she should have been permitted to offer evidence about an alleged order from the Stafford County Commonwealth’s Attorney’s office specifically directing her to remain at the hotel because her son was a witness in a trial. She suggests that this evidence was relevant to negate the Commonwealth’s claim that her remaining at the hotel without paying demonstrated her fraudulent intent. When the appellant first attempted to introduce evidence regarding the purported order, the trial court sustained the Commonwealth’s objection that it was not relevant. However, the appellant ultimately mentioned the alleged order briefly without objection while testifying on direct examination and then again on cross-examination. The trial court in fact noted that the appellant mentioned more than once in her testimony “that she was ordered to stay [at the - 16 - hotel].” As a result, despite the court’s prior ruling that the evidence was not admissible, it permitted the Commonwealth to briefly explore the issue further on cross-examination. Consequently, we conclude that the court’s original ruling regarding the admissibility of testimony concerning the existence of the purported order, if erroneous, was harmless because the appellant later testified about the order on both direct examination and cross-examination.8 See King v. Cooley, 274 Va. 374 , 380 (2007) (holding that because proffered testimony was “merely cumulative” of other testimony, its exclusion “could not have affected the jury’s determination and, thus, was harmless error”). Accordingly, the jury was able to consider the appellant’s claim that she had been ordered to remain at the hotel by the Commonwealth’s Attorney for whatever weight it chose to give that testimony.9 Finally, to the extent that the appellant complains that she was improperly prohibited from testifying to her belief about what she was allowed to do while subject to the alleged order, she failed to proffer her proposed testimony to the trial court. Therefore, this Court cannot consider the relevance of that specific line of questioning. See Murray v. Commonwealth, 71 Va. App. 449 , 458 (2020). III. CONCLUSION The evidence was sufficient to prove that the appellant did not intend to pay for the last three weeks of her stay at the hotel, which established that she “put up” there with the requisite 8 We further note that the appellant failed to offer a copy of the purported order as evidence at trial. 9 To the extent that the appellant challenges the trial court’s ruling that questions related to this topic were irrelevant when posed to Hotel Manager Smith, that ruling was not an abuse of discretion. Nothing in the record suggests that Smith knew about the alleged order. See Tynes, 49 Va. App. at 23 (explaining that without a proffer, the appellate court could not determine the admissibility of proposed testimony). Even if she did, any questions posed to her would have elicited only hearsay and conjecture. See generally Robinson v. Commonwealth, 258 Va. 3 , 6 (1999) (discussing the burden of proof and admissibility of hearsay testimony). - 17 - intent to defraud. Additionally, with regard to the evidentiary issues raised by the appellant, none provide a basis for reversal. First, the record does not show that the trial judge misunderstood the law. Second, none of the appellant’s specific evidentiary objections establish reversible error because either the appellant failed to proffer adequate evidence at trial to permit appellate review of the challenge, the evidence was irrelevant and properly excluded, or the exclusion, if error, was harmless. Consequently, we affirm the appellant’s conviction for defrauding an innkeeper. Affirmed. - 18 -

2020-12-01 15:18:42.447785+00

http://www.courts.state.va.us/opinions/opncavwp/0930202.pdf

VIRGINIA: In the Court of Appeals of Virginia on Tuesday the 1st day of December, 2020. PUBLISHED Norman T. Johnson, Petitioner, against Record No. 0930-20-2 Commonwealth of Virginia, Respondent. Upon a Petition for a Writ of Actual Innocence Before Judges O’Brien, Malveaux, and Senior Judge Frank Norman T. Johnson petitions this Court for a Writ of Actual Innocence pursuant to Chapter 19.3 of Title 19.2 of the Code of Virginia. He contends that he is innocent of robbery, for which he was convicted in the Circuit Court of Dinwiddie County. By final order entered on May 5, 2011, the circuit court sentenced Johnson to forty years’ imprisonment with twenty years suspended. Johnson asserts that he is entitled to relief based on a discrepancy between the Virginia Crime Code (VCC) on his arrest warrant and the VCC on the indictment the grand jury returned. He asserts that the indictment is invalid and that he was never arraigned on the indictment. In addition, Johnson relies on a clerical error in the conviction order, which states the crime of conviction is “Robbery: residence” although the indictment includes the VCC for a bank robbery. Johnson asserts that he is innocent of robbery of a residence. Johnson alleges the information became known or available to him “after July 27, 2010.” Having examined the petition and the record, we conclude that Johnson is not entitled to relief. BACKGROUND On May 18, 2010, the grand jury for Dinwiddie County returned an indictment against Johnson for robbery. The indictment includes a caption styled “Commonwealth of Virginia v. Norman T. Johnson,” along with the case number and Johnson’s race, gender, date of birth, and Social Security Number. The body of the document provides as follows:  The Grand Jurors of the Commonwealth of Virginia, in and for the County of Dinwiddie, sitting on May 18, 2010, upon their oaths, present that, in the County of Dinwiddie, Virginia the above named defendant committed the following offense against the peace and dignity of the Commonwealth: On or about July 14, 2009, Norman T. Johnson did unlawfully and feloniously rob Chestney Simmons by assault or otherwise putting a person in fear of serious bodily harm, in violation of § 18.2-58 of the Code of Virginia (1950) as amended. VCC: ROB-1211-F9 Robbery A Class U Felony Grand Jury Witness(s): Captain William B. Knott, III Dinwiddie County Sheriff’s Office The indictment is marked “A True Bill” and bears the signatures of the grand jury foreman and the clerk. The parties appeared before the trial court on July 27, 2010, and the presiding judge read the indictment to Johnson, who entered a guilty plea. Before accepting Johnson’s guilty plea, the trial court conducted a careful colloquy with him to ensure his plea was knowing and voluntary. Among other things, Johnson assured the trial court that he had decided for himself to enter a guilty plea because he was, in fact, guilty of the offense. Johnson also confirmed that no threats or promises had induced his guilty plea and there was no plea agreement with the Commonwealth. The trial court found that Johnson entered his plea knowingly, voluntarily, and with full knowledge of the nature of the charge and the consequences of his guilty plea. The Commonwealth proffered that had the case proceeded to trial, its evidence would show that on July 14, 2009, Johnson entered a branch of Bank of Southside Virginia in Dinwiddie County and approached the counter where Simmons was working as a teller. Johnson placed a note on the counter that said, “$100 bills, two stacks. Don’t move. Gun on hand, two money stacks, one hundred dollar bills, don’t move, gun, bomb.” Simmons noted that Johnson had his hands under his shirt, so she believed he had a gun. Simmons began to gather money and had some together when another bank employee began to approach. Johnson directed Simmons to just give him what she had. Johnson then exited the bank and ran toward a vehicle. -2- Another bank employee happened to arrive late that day and saw Johnson run from the bank and enter a vehicle. The employee found the behavior suspicious and noted the license plate number of the vehicle Johnson had entered. The bank employee provided the license plate information and a description of the car in which Johnson left, a black PT Cruiser. Deputies stopped the car later that day; Johnson was a passenger and his co-defendant was driving. When officers brought Simmons to the area where the PT Cruiser had been detained, she identified Johnson as the bank robber but noted that he had changed his clothes. Simmons described the clothes Johnson wore when he entered the bank; her description was consistent with the bank’s surveillance footage. Some of the clothes Johnson had worn during the bank robbery were located at his residence. Officers also found a t-shirt and $560 taken from the bank in the PT Cruiser. DNA from the t-shirt recovered from the PT Cruiser matched Johnson. Johnson’s counsel confirmed with the trial court that the Commonwealth’s proffer was a “full and fair” summary of the evidence. Counsel stated that he had reviewed the surveillance photos and they were “very, very good.” The trial court convicted Johnson and continued the matter for sentencing.1 Before the scheduled sentencing hearing, Johnson filed several pro se motions alleging various defects in the proceedings and claiming that his trial counsel had been ineffective. On September 8, 2010, Johnson filed a pleading styled “Discovery,” in which he noted a discrepancy between the VCC stated on his warrant and the VCC recited in the indictment. On September 14, 2010, Johnson filed a motion to strike or set aside his conviction, a motion to strike the indictment, and a motion to withdraw his guilty plea. In each motion, Johnson noted the discrepancy in the VCC stated on the warrant and the VCC stated on the indictment and 1 The trial court entered a conviction order on August 24, 2010. -3- asserted that the indictment was invalid and his guilty plea was unknowing because he had been misled by the incorrect VCC.2 When the parties appeared before the trial court on October 20, 2010, for the scheduled sentencing hearing, Johnson asked that counsel be relieved. Johnson advised the trial court that he had discovered “a major fatal error” in the case and that he had pleaded guilty to a crime he did not commit. Specifically, Johnson argued that the warrant had noted the VCC for robbery of a residence but the indictment stated the VCC for robbery of a bank. Johnson asserted that the change of the VCC number “changed the character” of the offense. He noted that counsel and the Commonwealth’s Attorney should have noticed the discrepancy, and he asked to represent himself. The trial court excused counsel and continued the matter. Johnson appeared before the trial court again on December 9, 2010. He explained to the trial court that he had been “arrested for one thing and indicted for another.” He claimed that he had pleaded guilty to “a charge that don’t have anything to do with my arrest” because the charging documents reflected two different offenses. Johnson requested new counsel. The trial court agreed to appoint new counsel and continued the case. The parties appeared before the trial court again on March 16, 2011. Johnson’s new counsel moved to withdraw. Johnson reiterated that he was “being charged with a crime I didn’t commit.” Counsel advised the trial court of Johnson’s position concerning the VCC and stated that he had “explained that the variance doesn’t change the nature and character of the offense” and there was a statute that made a variance in the VCC “irrelevant” but that Johnson disagreed with counsel’s assessment. Counsel represented to the trial court that he was ethically unable to file the motion Johnson wanted. The Commonwealth noted that the VCC on the indictment correctly reflected robbery of a bank; the Commonwealth had reviewed the indictment “to see if we could amend something to address” Johnson’s concern, but “the indictment is absolutely correct.” 2 The record reflects that between September 8, 2010 and the sentencing hearing on March 16, 2011, Johnson filed more than two dozen pleadings and letters with the trial court arguing about the discrepancy in the VCC numbers and seeking to withdraw his guilty plea and to have the indictment dismissed. -4-  The trial court invited Johnson to state his position concerning the indictment. Johnson told the trial court, “I was never served an indictment on that indictment. I was never arrested or arraigned on that indictment. It was never served to me. I have the paperwork from the Piedmont Regional Jail indicating that I was never served an indictment or arrested for that indictment.” When asked by the trial court, Johnson stated that he was unaware of the discrepancy in the VCC before he entered his guilty plea. He explained: I was never charged or arrested for that indictment. That indictment is not a true bill. I was never arraigned or fingerprinted on that indictment. It is insufficient to my warrant of arrest because a bank and a residen[ce] is two different offenses according to the Virginia Crime Code of robbery. I was never arrested for it. I have the documents right here. The Commonwealth responded that the indictment stated the correct VCC and that only one indictment had been secured against Johnson. It noted that Johnson was arraigned on the indictment on July 27, 2010, and pleaded guilty to the charge in the indictment. The Commonwealth stated that the facts of the case were that Johnson robbed a bank; he approached the teller and robbed a bank. The Commonwealth noted that there was a scrivener’s error on the conviction order because it stated “robbery: residence” but the conviction order reflected the correct VCC. Johnson continued to insist that he had pleaded guilty according to this paperwork on robbery of a residen[ce] not robbery of a bank. I pleaded guilty to an offense that I didn’t commit whether the offense code is incorrect or not. My plea was based on robbery of a residen[ce] according to this documentation that came from this Dinwiddie Circuit Court. The trial court found “I think the record shows you were indicted for bank robbery. You pled guilty to bank robbery. You were found guilty of bank robbery. That is what you are going to be sentenced for.” After hearing evidence and argument, the trial court found that Johnson’s criminal record was “atrocious” and sentenced him to forty years’ imprisonment with twenty years suspended by final order entered on May 5, 2011. Johnson appealed to this Court, arguing that the trial court erred in not permitting him to withdraw his guilty plea based on the discrepancy in the VCC numbers noted on the warrant and the indictment. This -5- Court denied Johnson’s appeal by order of November 17, 2011. See Johnson v. Commonwealth, No. 0668-11-2 (Nov. 17, 2011).3 In rejecting Johnson’s petition, the Court noted that the “Virginia Crime Codes are used for administrative purposes only, as stated on the warrant,” and that the failure to include the VCC or any mistake in the VCC does not render an indictment invalid as a matter of law. Id. at 2; see also Code § 19.2-226(10). The Court found that Johnson “was arraigned on the indictment on July 27, 2010,” and pleaded guilty. Johnson, No. 0668-11-2, at 2. The Commonwealth’s summary of evidence, we found, “clearly” indicated “the robbery occurred in a bank, with the threat of use of a firearm.” Id. Considering that both the warrant and indictment referenced Code § 18.2-58 and the Commonwealth’s proffer of facts, we concluded that Johnson did not enter his plea under mistake of any material fact or misconception of the nature of the charge. Id. Johnson filed a previous petition for a writ of actual innocence in this Court, again alleging that he is innocent and that the indictment is invalid because of the discrepancy in the VCC on the warrant and the indictment. See Johnson v. Commonwealth, No. 0918-19-2. This Court summarily dismissed the petition for lack of jurisdiction to consider it under the then-controlling codification of Code § 19.2-327.10 because Johnson had pleaded guilty to the robbery. Johnson v. Commonwealth, No. 0918-19-2 (Nov. 18, 2019). PETITION FOR WRIT OF ACTUAL INNOCENCE Johnson filed another petition for a writ of actual innocence on August 13, 2020. In it, he again seeks relief from his conviction based on the discrepancy in the VCC noted on the warrant and the VCC stated on the indictment. He alleges that the information upon which he relies became known or available to him “after July 27, 2010” and that it is material because “the indictment is invalid.” Johnson alleges that there is no court record for bank robbery, no arraignment for bank robbery, and no plea for bank robbery. 3 The Court also granted Johnson’s counsel leave to withdraw, consistent with Anders v. California, 368 U.S. 738 , 744 (1967). Johnson, No. 0668-11-2, at 3. -6-  ANALYSIS Before this Court may consider the merits of a case, it must determine whether it has jurisdiction. Minor v. Commonwealth, 66 Va. App. 728 , 738 (2016). The Court’s power to adjudicate a class of cases or controversies is acquired only through a grant of such authority in the Constitution or a statute. Cilwa v. Commonwealth, 298 Va. 259 , 266 (2019). This Court has subject matter jurisdiction over claims of actual innocence only “in such cases and in such manner as may be provided by the General Assembly.” Waller v. Commonwealth, 70 Va. App. 772 , 775 (2019) (quoting In re Brown, 295 Va. 202 , 209 (2018)). This case implicates two recent statutory amendments, both of which involve the Court’s jurisdiction over petitions for a writ of actual innocence. We address each in turn. Effective July 1, 2020, Code § 19.2-327.10 was amended to remove the requirement that a petitioner seeking a writ of actual innocence must have entered “a plea of not guilty.” See 2020 Va. Acts chs. 993, 994. A petitioner may now seek a writ of actual innocence challenging a felony conviction, irrespective of his or her plea in the circuit court. Id. Thus, although Johnson pleaded guilty in the circuit court, we now have jurisdiction to consider his petition. Code § 19.2-327.10. In addition, the statutory amendments removed the limitation that a petitioner may only file one petition seeking a writ of actual innocence challenging a felony conviction. See 2020 Va. Acts chs. 993, 994. Accordingly, Johnson’s prior petition, which we summarily dismissed, does not bar him from filing the instant petition and we have jurisdiction to consider the instant petition on the merits. Code § 19.2-327.10. Having determined that we have jurisdiction to consider the petition, we turn now to the merits of Johnson’s claim. “Code § 19.2-327.10 confers original jurisdiction upon this Court to consider a petition for a writ of actual innocence based on non-biological evidence.” Phillips v. Commonwealth, 69 Va. App. 555 , 562 (2018) (quoting Bush v. Commonwealth, 68 Va. App. 797 , 803 (2018)). To be entitled to a non-biological writ of actual innocence, the petitioner must present evidence that was previously unknown or unavailable to him, and the evidence “is such as could not, by the exercise of diligence, have been discovered or obtained -7- before the expiration of 21 days following entry of the final order of conviction” in the circuit court. Code § 19.2-327.11(A)(iv) and (vi); Bush, 68 Va. App. at 804; In re Neal, 44 Va. App. 89 , 90 (2004) (emphasis added in all). In a criminal case, the final order is the sentencing order.4 Burrell v. Commonwealth, 283 Va. 474 , 478 (2012); see also Minor, 66 Va. App. at 739. “[T]he writ of actual innocence is statutorily limited to the late discovery of previously unknown or unavailable evidence that could not have been gained through diligent efforts at the time of trial and that would cause no rational trier of fact to find the petitioner guilty had it been available.” In re Adams, 44 Va. App. 266 , 268 (2004) (emphasis added). Here, the record and petition itself affirmatively demonstrate that Johnson had the information upon which he relies “before the expiration of 21 days following entry of the final order of conviction.” Code § 19.2-327.11(A)(vi) (emphasis added). The trial court entered the final order of conviction on May 5, 2011; thus, that is the date that controls the claim Johnson presents here. As noted above, after Johnson entered his guilty plea but before his sentencing, he filed numerous pro se motions noting that the VCC noted on his arrest warrant was different from the VCC Code recited in the indictment. Johnson expressly argued the point he raises in the instant petition to the trial court at hearings on October 20, 2010, December 9, 2010, and March 16, 2011. Thus, Johnson is not eligible for the writ of actual innocence because the evidence upon which he relies was available to him before his conviction became final in the circuit court. Code § 19.2-327.11(a)(iv); In re Walker, 44 Va. App. 12 , 13 (2004) (denying writ of actual innocence where counsel received psychological reports before conviction became final). Accordingly, Johnson is not entitled to the writ and his petition is summarily dismissed. 4 As the Supreme Court has explained, “the [trial] court retains authority to reconsider its judgment of conviction—as it may reconsider any ruling—until twenty-one days have elapsed from the entry of the final judgment.” Lewis v. Commonwealth, 295 Va. 454 , 467 n.3 (2018). Final judgment is the sentencing order. Id. -8- This order shall be published. A Copy, Teste: original order signed by the Clerk of the Court of Appeals of Virginia at the direction of the Court Clerk -9-

2020-12-01 15:18:43.833045+00

http://www.courts.state.va.us/opinions/opncavwp/0176202.pdf

COURT OF APPEALS OF VIRGINIA Present: Chief Judge Decker, Judge Humphreys and Senior Judge Annunziata PUBLISHED Argued by videoconference NICHOLAS LEE THOMAS OPINION BY v. Record No. 0176-20-2 JUDGE ROBERT J. HUMPHREYS DECEMBER 1, 2020 COMMONWEALTH OF VIRGINIA FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Phillip L. Hairston, Judge Daniel W. Hall (Law Office of Daniel W. Hall, on brief), for appellant. Rosemary V. Bourne, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee. On May 23, 2018, a grand jury for the Circuit Court of the City of Richmond (“circuit court”) indicted appellant Nicholas Lee Thomas (“Thomas”) on one count each of: first-degree murder, in violation of Code § 18.2-32; use of a firearm in the commission of first-degree murder, in violation of Code § 18.2-53.1; robbery, in violation of Code § 18.2-58; and use of a firearm in a robbery, in violation of Code § 18.2-53.1. Thomas filed a motion to suppress statements he made to police while in custody. After an evidentiary hearing on the motion to suppress, the circuit court found the statements admissible and denied Thomas’s motion. Thomas then entered a conditional nolo contendere plea to first-degree murder, pursuant to Code § 19.2-254, and the Commonwealth agreed to move for a nolle prosequi on each of the three remaining charges. The plea agreement preserved Thomas’s right to appeal the ruling on the motion to suppress. Subsequently, the circuit court sentenced Thomas to fifty years’ incarceration and three years of post-release supervision.  On appeal, Thomas argues that the circuit court erred in denying his motion to suppress because police interrogated him in violation of his Fifth Amendment rights after he unequivocally invoked his right to remain silent. I. BACKGROUND On May 11, 2018, Russell Long (“Long”) was fatally shot seven times during a robbery. Detective Mark Godwin (“Detective Godwin”), of the Richmond Police Department, identified Thomas as a suspect in the murder investigation. On May 15, 2018, police detained Thomas during the execution of a search warrant at his home and subsequently took him to the Richmond Police Department Headquarters to be interviewed. Thomas’s interview with police was recorded, and the video of Thomas’s interactions with the detectives is part of the record before us. During the interview, Thomas told Detective Godwin that it was not the first time his rights had been read to him. Detective Godwin advised Thomas of his right to remain silent and his right to counsel pursuant to Miranda v. Arizona, 384 U.S. 436 , 479 (1966),1 and Thomas subsequently signed a written waiver of his so-called “Miranda rights.” Detective Godwin interviewed Thomas for less than an hour. The detective felt the interview was not productive and ended it, asking Thomas if he would be willing to give them a DNA sample instead of continuing the conversation, to which Thomas consented. Detectives Russell (“Detective Russell”) and Bridges (“Detective Bridges”) entered the interview room a short time later. They questioned Thomas while taking a DNA swab and continued questioning him after it was complete. After several moments, Thomas stated, “Imma stop talking.” Detective Russell immediately stood up and asked him, “Listen to me. Did we treat you right?” Thomas nodded affirmatively. Detective Russell continued, “Nobody mistreated you, 1 Thomas does not contest that Detective Godwin properly advised him of his Miranda rights before and during any questioning. -2- right? We gave you every opportunity to talk to us, is that fair?” Thomas nodded yes again. Detective Russell asked, “Okay, so you can’t say we didn’t try, right?” The detective paused until Thomas answered, “Yes.” Detective Russell then stated, “Okay, I’m asking, I want to be fair, if there’s something you need me to correct, let’s do it.” Thomas was silent and nonresponsive. Detective Russell then asked, “Okay, we’re basically friends here, right? It’s just a job, right? Can you shake my hand?” and put his outstretched hand in front of Thomas, who did not respond. Detective Russell asked, “You can’t do that for me?” When Thomas did not respond, Detective Russell patted him on the arm. Detective Bridges then asked for Thomas’s mother’s phone number so he could call her. Thomas provided his mother’s name and number. Immediately afterward, as Detective Russell was on his way out of the room, he turned and asked Thomas if he knew what charges were pending against him. Thomas did not respond. The detective turned toward Thomas and said, “What do you think it is?” Thomas was silent. Detective Bridges suggested, “Robbery?” Thomas flicked his hand and said “Robbery.” Detective Russell said, “Robbery, use of a firearm, first-degree murder, and use of a firearm.” Detective Russell then asked if Thomas was aware of the penalties for those crimes. Thomas said nothing and rubbed his face. Detective Russell said, “I’ll be more than glad to explain it if you’d like me to.” Thomas nodded yes. Detective Russell stated the penalties: “First-degree murder carries a life sentence. Life. Robbery is five to forty.2 Of course, they’re gonna ask for a jury, because of this guy’s, you know, how he was. And the jury sentences you, you’re twenty, the other young man is seventeen, he’s going to catch a break.” Thomas immediately asked Detective Russell why the other suspect would “catch a break” and if it was because he was a juvenile. Detective Russell replied, “Well, he 2 The detective was mistaken. Robbery is punishable in Virginia by a minimum sentence of five years and a maximum of life imprisonment. Code § 18.2-58. -3- talked.” Detective Bridges said, “He got the story. You don’t think he should get as much of a break?” Shortly afterward, Thomas admitted his involvement in Long’s killing. On May 22, 2019, Thomas filed a motion to suppress the statements he made to police asserting that the detectives violated his right to remain silent by continuing to question him after he invoked his right to silence. The circuit court denied the motion to suppress. Specifically, the circuit court held that Thomas’s statement was not a clear and unequivocal invocation of his right to remain silent and that his statements to police were entirely voluntary. This appeal follows. II. ANALYSIS A. Invocation of the Right to Remain Silent “We review the circuit court’s factual findings in denying a motion to suppress for clear error but review its application of the law de novo.” Commonwealth v. Quarles, 283 Va. 214 , 220 (2012) (citing Brooks v. Commonwealth, 282 Va. 90 , 94-95 (2011)). The contents of a defendant’s statements are a question of fact that we review only for clear error. Commonwealth v. Redmond, 264 Va. 321 , 327 (2002). Whether a statement sufficiently invokes or waives the right to silence is a legal question we review de novo. Id. (citing United States v. Uribe-Galindo, 990 F.2d 522 , 523 (10th Cir. 1993)). “In reviewing the [circuit] court’s denial of the motion to suppress, we view the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences deducible therefrom.” Giles v. Commonwealth, 28 Va. App. 527 , 532 (1998). The Fifth Amendment of the United States Constitution guarantees that, “[N]o person . . . shall be compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V. Upon taking a suspect into custody, police are required to warn him of his right to an attorney and the right to remain silent during questioning by police. Miranda, 384 U.S. at 479 . If the defendant indicates that he wishes to remain silent at any point prior to or during questioning, “the -4- interrogation must cease.” Edwards v. Arizona, 451 U.S. 477 , 482 (1981). Here, Thomas argues that he affirmatively invoked his right to remain silent by saying, “Imma stop talking.” Both the right to remain silent and the right to counsel require the suspect to unambiguously invoke them. Berghuis v. Thompkins, 560 U.S. 370 , 381 (2010). In the context of the right to counsel, “[A]mbiguity arises from the circumstances leading up to the statement, along with the statement itself, rather than the words of the statement alone.” Stevens v. Commonwealth, 57 Va. App. 566 , 577 (2011). Similarly, in determining whether a suspect unambiguously invoked his right to silence, we consider the substance of the statement as well as the context in which it was made. See Midkiff v. Commonwealth, 250 Va. 262 , 267 (1995). This Court has previously held that a suspect’s statement that he “didn’t have anything more to say” and the questioning detective should “buckle up for the long ride,” accompanied by the suspect’s turning his chair away, putting his foot up on the wall, and closing his eyes was not a clear and unambiguous assertion of the right to remain silent. Green v. Commonwealth, 27 Va. App. 646 , 654 (1998). The Supreme Court of Virginia has held that “Do I have to talk about it now?” was not a valid invocation of the right to silence, nor was “I just don’t think that I should say anything.” Burket v. Commonwealth, 248 Va. 596 , 610 (1994); Akers v. Commonwealth, 216 Va. 40 , 45-46 (1975). Similarly, the statement “I ain’t got shit to say to y’all” did not constitute a sufficiently unambiguous invocation of the right to counsel. Mitchell v. Commonwealth, 30 Va. App. 520 , 526-27 (1990). Here, when Thomas stated, “Imma stop talking,” Detective Russell immediately stood up and moved away from the interview table. Because Thomas had his head in his hands and spoke the words very softly, the audio of his statement is such that it is difficult to clearly discern whether this statement was directed at the detectives or himself. Assuming without deciding that Thomas’s statement amounted to a clear and unambiguous assertion of his right to remain silent, we must -5- decide whether the detectives’ questioning violated Thomas’s right to remain silent, and whether he waived that right. B. The Roots of Miranda The Fifth Amendment privilege is part of a broader evidentiary family of “testimonial privileges.” See Hartigan v. Commonwealth, 31 Va. App. 243 , 249 (1999). Other members of the family include the spousal privilege, the attorney-client privilege, the doctor-patient privilege, and the priest-penitent privilege. However, the privilege against compelled self-incrimination is the only one that enjoys constitutional status. See Husske v. Commonwealth, 252 Va. 203 , 204 (1996) (discussing the constitutional privilege against answering questions in either civil or criminal proceedings where the suspect’s answers may incriminate him). Nevertheless, as with all testimonial privileges, the privilege against self-incrimination is a limited exemption from a basic obligation. The fundamental societal rule is that in the pursuit of full disclosure in the courtroom, in civil and criminal trials alike, “the public has a right to every man’s evidence.” Kastigar v. United States, 406 U.S. 441 , 443 (1972). However, public policy sometimes justifies an exemption from that testimonial obligation. Because such exemptions are generally disfavored, the party asserting a testimonial privilege bears the burden of first, expressly claiming it, Rogers v. United States, 340 U.S. 367 , 370 (1951), and second, demonstrating an entitlement to it, Hoffman v. United States, 341 U.S. 479 , 486 (1951). The [Fifth A]mendment speaks of compulsion. It does not preclude a witness from testifying voluntarily in matters which may incriminate him. If, therefore, he desires the protection of the privilege, he must claim it or he will not have been considered to have been “compelled” within the meaning of the Amendment. United States v. Monia, 317 U.S. 424 , 427 (1943). -6-  Although Miranda was held by Dickerson v. United States, 530 U.S. 428 , 438 (2000) to be of “constitutional status,” the Supreme Court has consistently held Miranda’s dual warnings or advisements to be purely a set of prophylactic rules designed to implement the foundational Fifth Amendment privilege. See id. at 437-38 . In Oregon v. Elstad, 470 U.S. 298 , 309 (1985), Justice O’Connor distinguished Miranda’s implementing rules from the underlying constitutional privilege: “If errors are made by law enforcement officers in administering the prophylactic Miranda procedures, they should not breed the same irremediable consequence as police infringement of the Fifth Amendment itself.” In Connecticut v. Barrett, 479 U.S. 523 , 528 (1987) (emphasis added), the Supreme Court similarly stated, “It remains clear, however, that this prohibition on further questioning . . . is not itself required by the Fifth Amendment’s prohibition on coerced confessions, but is instead justified only by reference to its prophylactic purpose.” The Supreme Court observed in Davis v. United States, 512 U.S. 452 (1994), with respect to the Miranda right to counsel: “The right to counsel established in Miranda was one of a ‘series of recommended “procedural safeguards” . . . [that] were not themselves rights protected by the Constitution but were instead measures to insure that the right against compulsory self-incrimination was protected.’” Id. at 457 (alteration in original) (emphasis added). See also Montejo v. Louisiana, 556 U.S. 778 (2009); Withrow v. Williams, 507 U.S. 680 , 690-91 (1993) (“Miranda’s safeguards are not constitutional in character.”); McNeil v. Wisconsin, 501 U.S. 171 , 176-77 (1991); Michigan v. Harvey, 494 U.S. 344 , 350-51 (1990); Duckworth v. Eagan, 492 U.S. 195 (1989); Solem v. Stumes, 465 U.S. 638 , 644-45 (1984). Distinguishing between a mere implementing rule and the underlying constitutional protection it implements is important to any Miranda analysis. To understand the coverage of an implementing rule, in terms of both its reach and its limits, one must necessarily understand the -7- coverage of the thing that the rule implements; the latter that controls the former. As the Maryland Court of Special Appeals explained in Reynolds v. State, 594 A.2d 609 , 614 (Md. Ct. Spec. App. 1991), “The scope of an implementing rule can be no broader than the scope of the undergirding constitutional protection being implemented.” The starting point for any inquiry into the coverage of Miranda is the Fifth Amendment to the Constitution of the United States. That amendment is broad in its scope. One of its five provisions is the privilege against compelled self-incrimination. U.S. Const. amend. V. The confluence of the implementing rule and the thing implemented was squarely stated in United States v. Mandujano, 425 U.S. 564 , 579 (1976): “[Miranda] expressly rested on the privilege against compulsory self-incrimination; the prescribed warnings sought to negate the ‘compulsion’ thought to be inherent in police station interrogation.” A Fifth Amendment and Miranda analysis is incomplete without examining the facts for an element of compulsion. Miranda’s prophylactic safeguards are designed to protect the individual’s constitutional right to be free from being “compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V. The constitutional privilege guards against only one form of self-incrimination: compelled self-incrimination. Elstad, 470 U.S. at 306-07 (“The Fifth Amendment prohibits use by the prosecution in its case in chief only of compelled testimony.”). Because volunteered statements of any kind do not implicate the Fifth Amendment, they are unaffected by Miranda’s precautionary evidentiary rules. Miranda, 384 U.S. at 478 . There is no such thing as a general constitutional privilege against self-incrimination. Nor does there exist a constitutional privilege against inadvertent self-incrimination or against self-incrimination as a result of stupidity. See United States v. Washington, 431 U.S. 181 , 186-87 (1977) (“[I]t is . . . axiomatic that the [Fifth] Amendment does not automatically preclude self-incrimination, whether spontaneous or in response to -8- questions put by government officials.”). The constitutional privilege guards against only one form of self-incrimination: compelled self-incrimination. C. Custodial Interrogation Miranda announced a bright-line formula that the combination of custody and interrogation will be deemed to be presumptively coercive, though as with most presumptions, it is rebuttable. See Miranda, 384 U.S. at 467 . Nevertheless, custodial interrogation gives rise to the presumption of compulsion, catalyzing the therapeutic, implementing rule of Miranda. See Edwards, 451 U.S. at 481-82 . Absent the combination of both custody and interrogation, there is no presumption of compulsion and there is, therefore, no call for Miranda’s implementing countermeasures. See Washington, 431 U.S. at 187-88 (“The Constitution does not prohibit every element which influences a criminal suspect to make incriminating admissions . . . [t]he constitutional guarantee is only that the witness not be compelled to give self-incriminating testimony.”). In the case before us here, there is no question that Thomas was in custody. The question is whether his incriminating statements were the result of interrogation and, if so, whether he voluntarily waived his right to silence before making them. In its simplest form, interrogation is an easy concept to grasp. It is a police officer asking a suspect about his involvement in a crime after the suspect has been taken into custody or otherwise deprived of his freedom of action in any significant way. See Miranda, 384 U.S. at 444 . The exact definition of what constitutes an interrogation is nebulous and, at times, not well-defined. See Blain v. Commonwealth, 7 Va. App. 10 , 15 (1988) (discussing the functional equivalent of interrogation). It is not always an orchestrated set of alternating questions and answers. Every “question” by police does not necessarily actually end with a question mark. See Gates v. Commonwealth, 30 Va. App. 352 , 355-56 (1999). -9-  Fourteen years after Miranda, the Supreme Court first took up this problem in Rhode Island v. Innis, 446 U.S. 291 (1980). Innis held that for Miranda purposes, interrogation includes police communication that is the functional equivalent of questioning. Id. at 300-01 . Words or actions constitute the functional equivalent of questioning when the officers should know their communication is “reasonably likely to elicit an incriminating response from the suspect.” Timbers v. Commonwealth, 28 Va. App. 187 , 195 (1998) (quoting Innis, 446 U.S. at 301 ). Coercive police activity is a “necessary predicate” to finding that a confession was involuntary. See Colorado v. Connelly, 479 U.S. 157 , 167 (1986). Further, a suspect may be visibly emotional, confused, or depressed during questioning, but that does not automatically render his confession or waiver invalid, nor does it necessarily indicate that the police methods were coercive. Harrison v. Commonwealth, 244 Va. 576 , 583 (1992) (citation omitted). The ultimate test is whether, considering the totality of the circumstances, the free will of the suspect was overborne. See Rogers v. Richmond, 365 U.S. 534 , 544 (1961). When making a voluntariness determination, we examine the specific facts of the case to determine whether the officers’ methods constituted coercive police activity. See id. at 584 . Put another way, in the context of their brief conversation with Thomas, we must determine if the detectives should have known that Thomas would likely be moved to make a self-incriminating response to their questions and statements. If they did not, we must then decide if Thomas’s responses to the detectives’ statements constituted a voluntary waiver of his previous decision to remain silent. Whereas straightforward interrogation can be easily identified, there is also ambiguous police behavior that may or may not be deemed the functional equivalent of interrogation. When determining if an interaction between a suspect and the police constituted interrogation, the reviewing court must look outside the box of literal “interrogation” to the larger picture. See - 10 - Gwaltney v. Commonwealth, 19 Va. App. 468 , 472 (1995) (“Whether [such] a statement was voluntary or the result of coercive police activity is a legal question to be determined from a review of the totality of the circumstances.”). The court must examine whether police behavior involved the sort of coercion, defined as conduct that actually implicates the compulsion element of the privilege against compelled self-incrimination, that Miranda was designed to prevent. See Blain, 7 Va. App. at 15 (“If a suspect’s statement was not foreseeable, then it was volunteered.”). In deciding whether particular police conduct is interrogation, we must remember that the purpose behind the Miranda and Edwards decisions was preventing government officials from using the coercive nature of confinement to extract confessions that would not be given in an unrestrained environment. See Doe v. United States, 487 U.S. 201 , 212 (1988); Hartigan, 31 Va. App. at 249. We think the Sixth Circuit most accurately and succinctly described the scope of Fifth Amendment Miranda rights: “If a reasonable person, using all of the facts and circumstances available, would view the police as attempting to obtain a response to use at trial, it is an ‘interrogation.’” Bachynski v. Stewart, 813 F.3d 241 , 246 (6th Cir. 2015). D. Waiver of the Right to Silence “[I]t is well settled that even if invoked, the Miranda right to silence can ‘be waived by the suspect if the waiver is made knowingly and intelligently.’” Medley v. Commonwealth, 44 Va. App. 19 , 34 (2004) (en banc) (quoting Jackson v. Commonwealth, 266 Va. App. 423 , 432 (2003)). Miranda and its progeny do not require a waiver regarding the right to silence be in writing or verbally expressed, nor do they preclude a conclusion that a waiver occurred based on the defendant’s course of conduct. See Angel v. Commonwealth, 281 Va. 248 , 259 (2011) (citing Harrison, 244 Va. at 582). As such, waiver may be inferred from the words and actions of the - 11 - person being interrogated. Harrison, 244 Va. at 582 (quoting North Carolina v. Butler, 441 U.S. 369 , 373 (1979)). We find our prior holding in Medley instructive. In that case, we found that while Medley understood his right to remain silent and his choice to invoke his rights, he affirmatively waived his previously invoked right to silence by voluntarily reinitiating conversation with the police. Medley, 44 Va. App. at 36-37. An individual’s relinquishment of his right to silence must be a voluntary, free, and deliberate choice and not the result of police intimidation, coercion, or deception. Id. at 37 (quoting United States v. Cristobal, 293 F.3d 134 , 139-40 (4th Cir. 2002)). Additionally, any waiver must be made with a full awareness of the nature of the right being abandoned and the consequences of the decision to abandon it. Id. (quoting Cristobal, 293 F.3d at 139-40 ). We determine whether both prongs of this test are met by evaluating the totality of the circumstances surrounding the interrogation. Id. (quoting Cristobal, 293 F.3d at 139-40 ). “Factors relevant to this determination include ‘the defendant’s age, intelligence, mental and physical condition, background and experience with the criminal justice system, the conduct of the police, and the circumstances of the interview.’” Keepers v. Commonwealth, 72 Va. App. 17 , 37 (2020) (quoting Washington v. Commonwealth, 43 Va. App. 291 , 302-03 (2004)). Thomas relies upon the last two factors and argues that despite his assertion of his right to silence, the detectives continued to interrogate him in order to obtain incriminating evidence. Once a suspect invokes his right to remain silent, police are prohibited from interrogating him further unless the suspect voluntarily reinitiates questioning or a significant amount of time passes. See Michigan v. Mosley, 423 U.S. 96 , 106 (1975). This Court has previously recognized a routine booking question exception “which exempts from Miranda’s coverage questions to secure the biographical data necessary to complete booking or pretrial services.” Watts v. Commonwealth, 38 Va. App. 206 , 215-16 (2002). However, the exception “does not mean . . . that any question - 12 - asked during the booking process falls within that exception. . . . [T]he police may not ask questions, even during booking, that are designed to elicit incriminatory admissions.” Id. at 216 (alterations in original) (quoting Pennsylvania v. Muniz, 496 U.S. 582 , 602 n.14 (1990)). We held that the test to determine if there was a police interrogation is “whether an objective observer would view an officer’s words or actions as designed to elicit an incriminating response.” Id. at 217 (quoting Gates v. Commonwealth, 30 Va. App. 352 , 355-56 (1999)). The issue in this case is whether the detectives’ statements regarding Thomas’s charges and their potential penalties, as well as their reference to the minor defendant being treated more leniently, were objectively designed to elicit an incriminating admission. We find our jurisprudence on the right to counsel to be instructive: [T]here are undoubtedly situations where a bare inquiry by either a defendant or by a police officer should not be held to ‘initiate’ any conversation or dialogue. There are some inquiries, such as a request for a drink of water or a request to use a telephone, that are so routine that they cannot be fairly said to represent a desire on the part of the accused to open up a more generalized discussion relating directly or indirectly to the investigation. Giles v. Commonwealth, 28 Va. App. 527 , 534 (1998) (quoting Oregon v. Bradshaw, 462 U.S. 1039 , 1045 (1983)). Similarly, not every statement by an accused can fairly be considered further conversation that effectively waives the accused’s right to silence. Nor can every statement made by an officer, after a suspect invokes his or her right, be accurately described as communication designed to elicit an incriminating response. Questions that arise out of and during the routine incidents of the custodial relationship are distinct from those coercive in nature. See id. As we noted in Giles, asking a suspect if he would like something to eat or drink or if he would like to use the bathroom would not be considered coercive as likely to elicit an incriminating response. Id. However, those questions do not seek biographical “booking” information, either. - 13 - The lack of a coercive element to police conduct and not strictly the content of any statement is the distinguishing factor between what Miranda allows and what it forbids. See Gwaltney, 19 Va. App. at 472 (“The burden is upon the Commonwealth to prove that extra-judicial inculpatory statements were made voluntarily before they can be admitted in evidence . . . .”). “Fidelity to the doctrine announced in Miranda requires that it be enforced strictly, but only in those types of situations in which the concerns that powered the decision are implicated.” Berkemer v. McCarty, 468 U.S. 420 , 437 (1984). Although not previously comprehensively addressed by the appellate courts of the Commonwealth, many of our sister federal and state courts have addressed the parameters of questions and conduct by the police that do not constitute interrogation. These included police conduct that was uncoercive in nature, questions by police that did not relate to a suspect’s involvement in a crime, or communication that did not constitute biographical information necessary for case processing or pre-trial services, all of which fall outside the prophylactic remedy of Miranda.3 Indeed, as the United States Supreme Court has noted, “[F]ar from being prohibited by the Constitution, admissions of guilt by wrongdoers, if not coerced, are inherently desirable.” Washington, 431 U.S. at 187 . Therefore, if a suspect’s statements “represent a desire on the part of an accused to open up a more generalized discussion relating directly or indirectly to the investigation,” officers may 3 See, e.g., Illinois v. Perkins, 496 U.S. 292 (1990) (statements to undercover officer posing as a prisoner while in prison were not the result of custodial interrogation); United States v. Payne, 954 F.2d 199 (4th Cir. 1992) (declaratory statement by federal agent that police had found a gun in defendant’s house did not constitute interrogation requiring Miranda warnings); Prioleau v. State, 984 A.2d 851 (Md. 2009) (“What’s up?” was a general term of salutation, and it was not reasonable to view phrase as designed to elicit an incriminating response); State v. Spencer, 826 A.2d 546 (N.H. 2003) (showing a defendant bank surveillance photographs prior to apprising her of her Miranda rights was not the functional equivalent of custodial interrogation); State v. Hambly, 726 N.W.2d 697 (Wis. Ct. App. 2006) (detective’s statement to defendant that his arrest was related to three cocaine sales to a named informant was not functional equivalent of interrogation for Miranda purposes), aff’d, 745 N.W.2d 48 (Wis. 2008). - 14 - reasonably conclude that the suspect has implicitly waived his right to remain silent and may resume interrogation. Bradshaw, 462 U.S. at 1045 . In Harrison, the Supreme Court of Virginia held that a suspect validly reopened the dialogue with police and waived his Miranda rights by inquiring “what was going to happen to him.” Harrison, 244 Va. at 583. We find two cases with factual similarities to this case particularly persuasive. The Ninth Circuit has held that a government agent’s statements to an arrestee after he had received his Miranda warnings and had invoked his right to remain silent did not constitute interrogation as the agent merely told the arrestee that a large quantity of cocaine had been seized and that the arrestee “was in serious trouble.” United States v. Moreno-Flores, 33 F.3d 1164 , 1169 (9th Cir. 1994). Such statements were not express questions that reasonably would call for an incriminating response, and the fact that police statements to the suspect “may have struck a responsive chord” was insufficient to find them the functional equivalent of interrogation. Id. at 1169-70 . Likewise, the Seventh Circuit considered a factually similar case and held that an officer’s statement regarding the evidence and possible consequences of a conviction did not rise to the level of interrogation. Easley v. Frey, 433 F.3d 969 (7th Cir. 2006). “As the Fourth Circuit observed in United States v. Payne, ‘information about the evidence against a suspect may also contribute to the intelligent exercise of his judgment regarding what course of conduct to follow.” Id. at 974 (quoting United States v. Payne, 954 F.2d 199 , 202 (4th Cir. 1992)). The questions posed to Thomas by Detectives Russell and Bridges after he said “Imma stop talking now” were not of the variety that police should know are reasonably likely to elicit an incriminating response. Likewise, telling a suspect about the charges filed against him and their corresponding penalties would not reasonably call for an incriminating response. Neither were the detectives’ statements regarding the minor co-defendant coercive or deceitful. Pursuant to current Code § 19.2-291.1, the Commonwealth requires that adult defendants be both tried and sentenced - 15 - by a jury. Conversely, although juvenile offenders may be tried by jury, they may only be sentenced by a judge. Code § 16.1-272. Detective Russell simply explained that sentencing distinction to Thomas when Thomas re-engaged in conversation with the officers. Instead of remaining silent, Thomas re-opened the conversation with Detective Russell when he asked why his co-defendant would likely get a lesser sentence and then inquired if it was because the co-defendant was a juvenile. Thomas clearly indicated his waiver of the right to remain silent by his voluntary verbal interactions with the detectives. The totality of the circumstances reveals that Thomas had already been informed of his right to counsel and his right to remain silent. Further, Thomas confirmed to Detective Godwin that his Miranda rights were communicated to him on a previous occasion in police custody and that he was familiar with them. When all the facts in this case are considered in conjunction with one another and in the light most favorable to the Commonwealth as the party that prevailed in the circuit court, we conclude that Thomas was not subject to the type of police conduct that would compel a reasonable person to incriminate themself in violation of the Fifth Amendment and Thomas’s voluntary communication with police demonstrated a knowing, intelligent, and voluntary waiver of any previously invoked right to silence. The judgment of the circuit court is therefore affirmed. Affirmed. - 16 -

2020-12-01 16:00:20.24614+00

http://www.ca2.uscourts.gov/decisions/isysquery/5cd95885-35a5-4226-b02b-4f4bffdb2691/4/doc/19-1523_so.pdf

19-1523-cv Wierzbic et al., v. Howard, et al. UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 1st day of December, two thousand twenty. PRESENT: BARRINGTON D. PARKER, DENNY CHIN, Circuit Judges, TIMOTHY C. STANCEU Judge. * - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x RAYMOND WIERZBIC, BERNICE WIERZBIC, BRIAN WIERZBIC, and ANGELENE WIERZBIC, Plaintiffs-Appellants, -v- 19-1523-cv TIMOTHY HOWARD, ERIE COUNTY SHERIFF, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY, MICHAEL HOOCK, DEPUTY ERIE COUNTY SHERIFF, INDIVIDUALLY AND IN * Chief Judge Timothy C. Stanceu, of the United States Court of International Trade, sitting by designation. HIS OFFICIAL CAPACITY, Defendants-Cross-Claimants-Appellees. ∗∗ - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x FOR PLAINTIFFS-APPELLANTS: Paul E. Fallon, Amherst, New York. FOR DEFENDANTS-CROSS-CLAIMANTS-APPELLEES: Jennifer Persico and Eric M. Soehnlein, Lippes Mathias Wexler Friedman LLP, Buffalo, New York. Appeal from the United States District Court for Western District of New York (Foschio, M.J.). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED. Plaintiffs-appellants Raymond Wierzbic ("Raymond"), Bernice Wierzbic ("Bernice"), Brian Wierzbic ("Brian"), and Angelene Wierzbic (collectively "plaintiffs") appeal from the May 9, 2019 judgment of the district court granting judgment as a matter of law to defendants-appellees Erie County Sheriff Timothy Howard and Deputy Erie County Sheriff Michael Hoock (collectively "defendants") pursuant to Federal Rule of Civil Procedure 50(b) on their false arrest claims and limiting recovery on their trespass claim to nominal damages. Plaintiffs brought the initial action against ∗∗ The Clerk of the Court is directed to amend the caption to conform to the above. Numerous other parties were named below, but they are not involved in this appeal. 2 defendants and others under 42 U.S.C. § 1983 and New York law, alleging violations of the U.S. Constitution, federal civil rights laws, and New York common law after Hoock's efforts to serve a civil subpoena on Raymond at the Wierzbic residence resulted in a physical altercation and, ultimately, the arrests of Raymond, Brian, and Bernice. We assume the parties' familiarity with the underlying facts, the procedural history, and the issues on appeal. I. The Facts 1 On July 2, 2012, Hoock, at the direction of the Erie County Sheriff's Office, drove to 49 Willis Road to serve a civil subpoena on Raymond in connection with a collections action. As Hoock approached the residence, he observed one individual (Brian) walking toward him, and another individual (Raymond) working nearby on a tractor. Hoock asked Brian if Raymond was present, and Brian responded that Raymond did not live there. Brian asked Hoock to instead give him the papers, and to leave. Hoock declined to leave. He looked up and observed Raymond, then at the tractor approximately ten yards away, waving a pair of "Channellock" pliers at head level and shouting profanities at him to leave the property. Hoock asked Raymond to put down the pliers, but he did not, at which point Hoock told both Brian and 1 We construe the facts regarding the false arrest claim in plaintiffs' favor, and the facts relevant to the trespass claim in favor of defendants. See Figueroa v. Mazza, 825 F.3d 89 , 98 (2d Cir. 2016). 3 Raymond that they were under arrest. Hoock then pursued Raymond, and an altercation between Hoock and Raymond ensued. Ultimately, three East Aurora police department officers arrived at the scene and, with their help, Hoock was able to handcuff and arrest Raymond. The East Aurora police officers also arrested Bernice and Brian, and the three Wierzbics were brought into custody and charged criminally. II. Procedural History Plaintiffs commenced this action below on September 27, 2013. The complaint asserted eleven counts against defendants and others under 42 U.S.C. § 1983 and state law, including false arrest claims stemming from the arrests of Raymond and Brian. After the parties cross-moved for summary judgment, the district court (Skretny, J.) denied plaintiffs' motion, granted in part and denied in part defendants' motion, and deemed the complaint amended to add a claim of common law trespass. The parties subsequently consented to jurisdiction before a magistrate judge (Foschio, M.J.), see 28 U.S.C. § 636 (c), and trial commenced on the remaining claims, along with the newly added trespass claim, on November 5, 2018. Both sides moved for judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50(a). The district court reserved decision as to both motions, and submitted the claims to the jury. The jury was unable to reach a verdict, however, and on November 13, 2018, the district court declared a mistrial. On December 11, 2018, 4 defendants renewed their motion for judgment as a matter of law under Federal Rule of Civil Procedure 50(b). In an Opinion and Order issued May 6, 2019, the district court granted judgment to defendants as to the false arrest claims, holding that defendants were entitled to qualified immunity as to Raymond's arrest and that the claim failed as to Brian because Hoock had not arrested Brian. As to the trespass claim, the district court concluded that Hoock committed trespass under New York law and granted judgment to Brian, Raymond, and Bernice on the claim. The district court declined, however, to award plaintiffs anything beyond nominal damages of $1 each, concluding that defendant's trespass had not resulted in any cognizable damages. This appeal followed. DISCUSSION I. Standard of Review We review the grant of judgment as a matter law pursuant to Rule 50(b) de novo. See Mazza, 825 F.3d at 98. "Judgment as a matter of law is appropriate when a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue." Black v. Finantra Capital, Inc., 418 F.3d 203 , 208 (2d Cir. 2005) (internal quotation marks omitted). Where that standard is satisfied, a district court may grant judgment as a matter of law following a jury deadlock, see Noonan v. Midland Capital Corp., 453 F.2d 459 , 462-63 (2d Cir. 1972), or 5 following a jury verdict in favor of the nonmovant, see Hernandez v. Keane, 341 F.3d 137 , 149 (2d Cir. 2003). II. False Arrest Claims Plaintiffs first contend that the district court erred in granting judgment as a matter of law on their false arrest claims because a reasonable juror could have found in their favor on the claims as to both Raymond and Brian. We disagree. A. Raymond The district court granted judgment to defendants as to Raymond's false arrest claim because it concluded that defendants were entitled to qualified immunity as a matter of law. The defense of qualified immunity "shields law enforcement officers from § 1983 claims for money damages[,] provided that their conduct does not violate clearly established constitutional rights of which a reasonable person would have been aware." Zalaski v. City of Hartford, 723 F.3d 382 , 388 (2d Cir. 2013). "In the context of § 1983 actions predicated on allegations of false arrest, we have held that an arresting officer is entitled to qualified immunity so long as 'arguable probable cause' was present when the arrest was made." Mazza, 825 F.3d at 100 (quoting Zalaski, 723 F.3d at 390). Probable cause to arrest, in turn, "exists when the arresting officer has knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that the person to be arrested has committed or is committing a crime." Id. at 99 (internal quotation marks omitted). 6  Here, the crime for which defendants allege probable cause existed as to Raymond's arrest, and the crime with which Raymond was ultimately charged, was Menacing in the Third Degree, which occurs under New York law when a defendant "intentionally places or attempts to place another person in fear of death, imminent serious physical injury or physical injury." N.Y. Penal Law § 120.15 . When Raymond was approximately ten yards away from Hoock, Raymond waved a pair of Channellock pliers at head level and shouted profanities and told Hoock to get off of the property. Further, Raymond refused to put down the pliers despite Hoock's instructions to do so. On the undisputed facts here, Hoock had at least arguable probable cause to believe Raymond was intentionally attempting to place Hoock in fear of physical injury. See Oliveira v. Mayer, 23 F.3d 642 , 649 (2d Cir. 1994) (qualified immunity "should be decided by the court . . . where the facts concerning the availability of the defense are undisputed") (internal quotation marks and citation omitted). Accordingly, the district court properly granted judgment to defendants on this claim. B. Brian The district court also did not err in granting judgment as a matter of law to defendants on Brian's false arrest claim because the undisputed evidence showed that Hoock did not arrest Brian. Although Hoock told Brian that he was under arrest, Brian testified at trial that he did not believe Hoock had the authority to arrest him, and 7 that he instead believed he could continue to move freely, and that indeed he did so until he was restrained and handcuffed by an officer from the East Aurora Police Department. See Dist. Ct. Dkt. No. 132 at, 36-38, 42-44, 136-141 (Brian agreeing that even after Hoock told him he was under arrest, he "could have gone anywhere [he] wanted"); see also Simon v. City of New York, 893 F.3d 83 , 99 (2d Cir. 2018) (individual only arrested for Fourth Amendment purposes where "a reasonable person would have believed that he was not free to leave"). Thus, the district court properly granted judgment to defendants on this claim. See Warren v. Pataki, 823 F.3d 125 , 136 (2d Cir. 2016) ("To establish a section 1983 claim, a plaintiff must establish a given defendant's personal involvement in the claimed violation . . . .") (internal quotation marks omitted)). III. Trespass Claim Plaintiffs' final contention is that the district court erred in limiting recovery on their trespass claim to $1 in nominal damages. Under New York law, however, "damages for trespass are limited to consequences flowing from the interference with possession and not for separable acts more properly allocated under other categories of liability." Costlow v. Cusimano, 311 N.Y.S.2d 92 , 97 (4th Dep't 1970). Here, plaintiffs sought reimbursement for the cost of tomato plants they were unable to timely plant on July 2, 2012, as well as emotional distress damages. The district court rightly concluded that defendants were not liable for the aforementioned damages 8 because it was plaintiffs' own conduct, not Hoock's trespass, that led to plaintiffs' arrests and resulting expenses. To the extent plaintiffs argue that they are entitled to "legal costs" on their trespass claim, Plaintiffs' Brief at 28, that argument is rejected. They have offered no justification to depart from the general American rule that "the prevailing litigant is ordinarily not entitled to collect a reasonable attorneys' fee from the loser." Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240 , 247 (1975). * * * We have considered plaintiffs' remaining arguments and conclude they are without merit. For the foregoing reasons, we AFFIRM the judgment of the district court. FOR THE COURT: Catherine O'Hagan Wolfe, Clerk of Court 9

2020-09-04 20:00:34.041715+00

http://www.opn.ca6.uscourts.gov/opinions.pdf/20a0521n-06.pdf

NOT RECOMMENDED FOR PUBLICATION File Name: 20a0521n.06 No. 19-5673 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT UNITED STATES OF AMERICA, FILED ) Sep 04, 2020 Plaintiff-Appellee, ) DEBORAH S. HUNT, Clerk ) v. ) ) ON APPEAL FROM THE UNITED KIMBERLY JONES, ) STATES DISTRICT COURT FOR ) THE EASTERN DISTRICT OF Defendant-Appellant. ) KENTUCKY ) Before: BATCHELDER, STRANCH, and MURPHY, Circuit Judges. ALICE M. BATCHELDER, Circuit Judge. A jury convicted Kimberly Jones, a registered pharmacist, of knowingly dispensing Schedule II controlled substances outside the scope of professional practice and not for a legitimate medical purpose in violation of 21 U.S.C. § 841(a)(1). Jones appeals her conviction, arguing that there was insufficient evidence to support it and that the district court erred by allowing an unqualified expert named Taylor Carr to testify for the government. Both claims are meritless, and we therefore AFFIRM. I. Jones owned and operated Kim’s Hometown Pharmacy (KHP) in Williamsburg, Kentucky. In 2017, the Drug Enforcement Agency (DEA) learned that KHP had filled large quantities of prescriptions for controlled substances from several out-of-state doctors who had been investigated and indicted on criminal charges based on their medical practices. The DEA conducted an audit 1 No. 19-5673, United States v. Jones of KHP’s inventory for the period between December 31, 2015 and August 3, 2017: 869 oxycodone 30mg pills and 1,882 hydrocodone 10mg pills were unaccounted for. The DEA’s subsequent investigation revealed that KHP had filled thousands of out-of-state prescriptions from numerous different doctors for large quantities of Schedule II controlled substances such as oxycodone, oxymorphone, and hydrocodone. See 21 U.S.C. §§ 802(6), 812. It appeared that KHP had developed a regular clientele with the same customers filling multiple out-of-state prescriptions every year. One of KHP’s regulars, Leslie Meadows, received varying dosages of oxycodone and oxymorphone between 2010 and 2017, which had been prescribed by twenty-eight different doctors in fifteen cities across five states. Despite these unusual patterns, Jones had failed to regularly use Kentucky’s All Schedule Prescription Electronic Reporting (KASPER) system, a database that allows prescribers and pharmacists to monitor patients’ prescription histories. Pharmacists are not legally required to use KASPER; it is an optional tool to help pharmacists combat “doctor shopping” and “overprescribing.” R. 109, PageID: 1111, 1114. Nonetheless, Jones never ran a KASPER report on Meadows. In fact, from 2014 to 2018, Jones generated reports on only about nine KHP customers. Moreover, some KHP customers reported that Jones never asked them about their medical histories, even though they paid hundreds of dollars in cash for their out-of-state prescriptions. Indeed, KHP had a reputation among opioid addicts as a “convenient” place to fill out-of-state prescriptions. R. 108, PageID: 843–44. DEA investigators also found that Jones had “loaned” pills to customers without valid prescriptions. “Pill loaning” is a three-step process: (1) a customer runs out of pills early; (2) the pharmacist loans the number of pills necessary for the customer to reach his next refill date; and (3) the pharmacist subtracts the number of loaned pills from the customer’s prescription refill. DEA investigators recovered handwritten and electronic notes from KHP’s records that referenced 2 No. 19-5673, United States v. Jones pill loaning. And a second audit of KHP’s inventory from December 2015 to March 2018 revealed an even higher number of missing controlled substances than had been found in the first audit. DEA investigators met with Jones several times throughout the investigation. During questioning about the pill shortage, her story changed several times. After denying that she had ever loaned pills, Jones said she could not remember which customers had borrowed pills from KHP. But Jones later identified some customers who had borrowed pills, admitting that she would loan pills “if she knew the doctor was going to write a refill or if the prescription was going to fall on a Saturday” and “she wanted to provide pills for the patient for the weekend.” R. 108, PageID: 924. Jones also told DEA investigators that she suspected her former employee, Jeff Holmes, of stealing pills. At the time of the DEA’s investigation, Holmes worked at another pharmacy. Jones told investigators that she had spoken to Holmes’s supervisor who reported that several pills were stolen. Investigators later learned that Jones had called Holmes’s supervisor in the fall of 2017. Jones had asked the supervisor if he suspected Holmes of stealing any drugs; the supervisor had responded in the negative.1 A federal grand jury charged Jones with thirty-five counts of knowingly and intentionally distributing Schedule II controlled substances outside the scope of professional practice and not for a legitimate medical purpose in violation of 21 U.S.C. § 841(a)(1). After an eight-day trial, a jury convicted her of seven counts of unlawfully dispensing Schedule II controlled substances.2 Counts 5 and 6 were based on two prescriptions that Jones filled for Leslie Meadows; Counts 30– 35 were based on pill loaning. After the district court denied Jones’s Rule 29 motion for judgment 1 Jones accused another employee, Gary McPherson, of stealing pills in May 2018. The government investigated, and McPherson was subsequently convicted of stealing from KHP. 2 The remaining counts charged Jones with maintaining a drug-involved premises in violation of 21 U.S.C. § 856(a)(1), and health-care fraud in violation of 18 U.S.C. § 1347. The jury acquitted her of these charges. 3 No. 19-5673, United States v. Jones of acquittal, Jones appealed, arguing that the evidence was insufficient to support her conviction and that the district court erred by allowing an unqualified expert to testify. II. Jones argues that the government failed to introduce sufficient evidence to sustain her convictions under 21 U.S.C. § 841(a)(1). In reviewing sufficiency-of-the-evidence challenges, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307 , 319 (1979). It is the jury’s responsibility, not ours, to “resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Id. The Controlled Substances Act (CSA) makes it unlawful for any unauthorized person to knowingly3 distribute or dispense Schedule II controlled substances, such as oxycodone, oxymorphone, and hydrocodone. See 21 U.S.C. § 841(a)(1). Pharmacists are protected from liability so long as they dispense controlled substances pursuant to the CSA’s implementing regulation, which provides: A prescription for a controlled substance to be effective must be issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice. The responsibility for the proper prescribing and dispensing of controlled substances is upon the prescribing practitioner, but a corresponding responsibility rests with the pharmacist who fills the prescription. An order purporting to be a prescription issued not in the usual course of professional treatment or in legitimate and authorized research is not a prescription within the meaning and intent of section 309 of the Act (21 U.S.C. 829) and the person knowingly filling such a purported prescription, as well as the person issuing it, shall be subject to the penalties provided for violations of the provisions of law relating to controlled substances. 3 The mens-rea requirement is “knowingly or intentionally.” § 841(a). But the term “intentionally” is often omitted from the list of elements. See Sixth Cir. Crim. Pattern Jury Instr. 14.02A (updated as of July 1, 2019), https://www.ca6.uscourts.gov/sites/ca6/files/documents/pattern_jury/pdf/crmpattjur_full.pdf. 4 No. 19-5673, United States v. Jones 21 C.F.R. § 1306.04(a) (emphasis added). The regulation’s “corresponding responsibility” language prohibits pharmacists from filling prescriptions if they have reason to know that the prescriptions were not issued for legitimate medical purposes. See United States v. Veal, 23 F.3d 985 , 988 (6th Cir. 1994) (per curiam); United States v. Hughes, 895 F.2d 1135 , 1143 n.11 (6th Cir. 1990). Reasonable measures include “paying attention to the ‘number of prescriptions issued, the number of dosage units prescribed, the duration and pattern of the alleged treatment,’ the number of doctors writing prescriptions and whether the drugs prescribed have a high rate of abuse.” Med. Shoppe- Jonesborough v. Drug Enf’t Admin., 300 F. App’x 409, 412 (6th Cir. 2008) (quoting Ralph J. Bertolino Pharmacy, Inc., 55 Fed. Reg. 4,729, 4,730 (Feb. 9, 1990)). Accordingly, to have convicted Jones under § 841(a)(1), the jury must have found that Jones filled prescriptions for Schedule II substances knowing that the prescriptions were outside the scope of professional practice and that they were not for a legitimate medical purpose. See Veal, 23 F.3d at 987 –88. “To prove the requisite knowledge, the government [is] required to show, at a minimum, that the defendant deliberately closed [her] eyes to wrongdoing that should have been obvious to [her].” Id. So, for Counts 5 and 6–the invalid-prescription counts—the government must have sufficiently shown that Jones knowingly filled prescriptions for Leslie Meadows that were not being used for a legitimate medical purpose. And for Counts 30–35—the pill-loaning counts—the government must have sufficiently shown that pill loaning falls below the professional standard of pharmaceutical practice and that Jones knowingly loaned pills to customers without prescriptions. A. Jones knowingly filled invalid prescriptions for Meadows. The government showed that Jones knowingly filled invalid prescriptions for Leslie Meadows. Two expert pharmacists—Katie Busroe and Paula York—testified regarding the 5 No. 19-5673, United States v. Jones professional standard of pharmaceutical practice. They testified that there are common “red flags” that indicate prescription-drug abuse, including out-of-state prescriptions, frequent changes of prescribers, long-term use of certain combinations of pills, and payment in large sums of cash. See R. 109, PageID: 1173; R. 111, PageID: 1500–14. Busroe and York opined that Jones failed in her professional responsibility by repeatedly ignoring red flags raised by Leslie Meadows’s prescription history. Jones contends that she filled Meadows’s prescriptions in good faith. She says that a deviation from the professional standard of care cannot alone establish a knowing mens rea, arguing that the evidence “leaves open the possibility that [Jones] made an error in judgment or [that she] simply committed negligence.” Appellant Br. at 13. A pharmacist’s claim of good-faith compliance with proper pharmaceutical practice is judged by an objective standard, see, e.g., Veal, 23 F.3d at 988 , which asks “whether a reasonable [pharmacist] under the circumstances could have believed, albeit mistakenly, that [s]he had acted within the scope of ordinary professional medical practice for a legitimate medical purpose,” see United States v. Godofsky, 943 F.3d 1011 , 1026 (6th Cir. 2019). The volume of Schedule II painkillers dispensed by KHP to Meadows over the course of seven years—roughly 12,000 pills in varying quantities prescribed by twenty-eight out-of-state doctors—belies Jones’s claim of good-faith compliance with professional standards. Expert testimony asserted that any reasonable pharmacist would have been suspicious of Meadows’s long pharmaceutical history, which included out-of-state prescriptions for oxycodone and oxymorphone—a highly addictive combination of pills typically prescribed for short-term use after a traumatic accident or for end-of-life care. See R. 110, PageID: 1252 (explaining that Schedule II drugs “are the most misused, most abused, most addictive legal drugs that we have in the United States”). Despite these patterns, Jones failed to take basic precautionary measures to confirm the 6 No. 19-5673, United States v. Jones validity of Meadows’s prescriptions, such as running KASPER reports. A reasonable juror could easily conclude that Jones failed to act in good faith compliance with the regulations when she filled his prescriptions. Jones points to testimony from Rebecca Meadows, Leslie Meadows’s wife, who testified that she was “good friends” with Jones. R. 110, PageID: 1300, 1310. Mrs. Meadows admitted that her husband was addicted to painkillers but said that Leslie had “real pain issues” and “still” experienced pain at the time of Jones’s trial. Id. at 1307. Jones argues that, given her friendship with Mrs. Meadows, it follows that Jones “would be aware of Leslie’s medical problems causing him to need Schedule II drugs.” Appellant Br. at 14. But a juror could also conclude from these facts that Jones was aware of Leslie Meadows’s addiction to painkillers. That inference, in addition to Meadows’s long prescription history, is sufficient for reasonable jurors to find the requisite mens rea: “that [Jones] deliberately closed [her] eyes to wrongdoing that should have been obvious to [her].” See Veal, 23 F.3d at 988 B. Jones knowingly loaned pills to customers without prescriptions. Jones concedes that she loaned Schedule II drugs to five customers without prescriptions. But she says that the government failed to show that she knowingly loaned pills for illegitimate purposes. Again, the question is whether any reasonable juror could have found that Jones failed to make an objective, good-faith attempt to comply with professional pharmaceutical practice. See Godofsky, 943 F.3d at 1026 . The CSA provides that no Schedule II controlled substances “may be dispensed without the written prescription of a [prescriber].” 21 U.S.C. § 829(a). The government presented ample evidence regarding the professional standard of care regarding pill loaning. Busroe and York explained that loaning pills was not a matter of pharmaceutical discretion and “that a prescription has to be presented before it can be filled for a controlled substance.” R. 111, PageID: 1495; see 7 No. 19-5673, United States v. Jones R. 109, PageID: 1165. Another pharmacist, Samuel Moore, agreed with the experts’ assessment, testifying that pharmacists should “never” loan Schedule II controlled substances to customers without prescriptions. R. 109, PageID: 1125. A former pharmacy technician at KHP—April Bryant—said that even non-pharmacist employees know that “you’re not supposed to give out medications without a prescription.” Id. at 1071. The jury also heard testimony about KHP’s pill shortages, Jones’s notes referencing pill loaning, and Jones’s attempt to mislead investigators by blaming the missing pills on Jeff Holmes, her former employee. A juror could reasonably conclude from the evidence presented that Jones knowingly violated professional standards by loaning pills to customers without prescriptions. Jones contends that Busroe’s and York’s expert opinions are “not probative of [Jones’s] actual mental state at the time of pill loaning” and that the “net effect of the expert testimony” amounted to a “strict liability criminal standard of a practice that occurs in pharmacies every day.” Appellant Br. at 16. This argument fails for several reasons. First, Busroe’s and York’s testimony was not the only evidence of a knowing mens rea; a reasonable juror could have inferred knowledge through the other evidence presented. Second, Jones has not challenged the district court’s jury instructions regarding § 841(a)(1)’s knowledge requirement. Nor has she developed any argument regarding the inadmissibility of Busroe’s and York’s expert testimony. Her strict- liability argument is therefore meritless. In any event, Busroe and York testified about “the requirements of federal regulations and what the routine practices of pharmacists should be according to the regulations.” See United States v. Seelig, 622 F.2d 207 , 213 (6th Cir. 1980). They did not opine on whether Jones did or did not have the requisite mens rea to violate § 841(a)(1). See Fed. R. Evid. 704(b). 8 No. 19-5673, United States v. Jones The government provided sufficient evidence to support the jury’s convictions on both the invalid-prescription counts and the pill-loaning counts. Jones’s sufficiency-of-evidence claims therefore fail. III. Jones claims that the district court erred by allowing Taylor Carr, a former pharmacy technician at KHP, to offer an expert opinion in violation of Federal Rule of Evidence 701. At the time of Jones’s trial, Carr was a first-year pharmacy student at the University of Kentucky; Jones complains that some of his testimony amounted to unqualified expert testimony. The parties questioned Carr—a government witness—about his observations at KHP and whether those observations were consistent with what he had learned at pharmacy school. Carr testified that Jones frequently loaned pills to her regular customers. The government asked whether Carr had been concerned about the pill loaning: Q. [P]utting yourself in that situation as a pharmacy tech and just a person who lives in the area and has reasonable common sense, at the time, was there anything about [the pill loaning] that gave you concern? A. I mean, maybe, but I . . . hadn’t been to pharmacy school, and this was my first pharmacy job, so I was -- just assumed that ... Q. Okay. Well, what about now? A. Now, yes, I realize that you can’t do that. Q. Well, just, again, kind of drawing from your life’s experience, if somebody walks in, and they ran out a few days earlier, let’s say, of their hydrocodone, what’s the big deal about giving them a new one? A. Now I know that it’s a controlled substance, and you’re not allowed to dispense a controlled substance like that. You have to be extra careful with them. And there are specific laws . . . that deal with, like, the monitoring of controlled substances. Q. But even then, back then as a pharmacy tech, if somebody ran out of their medication early, did you have any concerns about what might have happened to that medicine? 9 No. 19-5673, United States v. Jones A. I can’t remember any specific instances where I was worried. R. 108, PageID: 1020–21. Later, the government asked Carr to “reflect” on his observations at KHP, but Jones’s attorney objected, arguing that the government had impermissibly solicited expert testimony. The government admitted that the question called for Carr’s opinion but contended that any participant in a crime could “reflect” on his “life experiences” without giving an expert opinion. R. 108, PageID: 1033. Although the district court sustained Jones’s objection, it instructed the government to ask whether the process at KHP was “consistent with what [Carr had] learned in pharmacy school.” Id. After the colloquy with the court, however, the government decided to instead move on and ask Carr a different question altogether. During cross-examination, the following exchange took place between Carr and Jones’s attorney: Q: Did you ever know Ms. Jones to ever tell somebody, “I’m not going to give you a prescription?” A. I have seen that before, yes. Q. Okay. Why wouldn’t she give them a prescription? A. I can, just off the top of my head for, if for weren’t [sic], like, a customer there, she’d refused customers before. Q. Okay. Well, you’re a student, so let’s -- all right. I realize you’re in pharmacy school, but, you know, that person’s got a prescription, some doctor wrote a prescription, and she won’t give it to ’em? Did you ever ask her why not? A. It was just my understanding that because they weren’t already a patient. Q. Okay. Now, you were talking a little bit about that occasionally they would loan people pills, correct? A. Yes, sir. 10 No. 19-5673, United States v. Jones Q. Okay. And let’s be clear: The people who would get those advance on pills or loans on pills, they already had prescriptions, correct? A. As far as I know, yes. Q. And I just want to be clear, it wasn’t like somebody just came off the street and said, Give me ten oxycodone, I have no prescription; that wouldn’t happen, would it? A. I don’t recall ever seeing that happen. R. 108, PageID: 1040–41. The prosecutor approached the bench before redirect and argued that the defense had “opened the door” to Carr’s opinion testimony as a pharmacy student. In defense, Jones’s attorney said the question “really went to the loaning issue, that [KHP wasn’t] just giving away pills.” R. 108, PageID: 1042. But the government sought the court’s permission to ask: “You’re in pharmacy school. Is it enough just for a doctor [to write] a prescription?” Id. at 1044. Jones’s attorney did not object, and the government asked Carr whether Jones’s practice of pill loaning was consistent with what he had learned in pharmacy school: Q. You were asked a question as referenced to you being in pharmacy school, and there was a question about, Well, a doctor writes a prescription, and that’s brought to the pharmacy. So you’re in pharmacy school. Is it enough for a doctor to just write a prescription? A. No, sir. Q. Is there any doubt about that in your mind? A. Not from what I’ve been taught since I’ve been in pharmacy school. R. 108, PageID: 1045. Jones challenges the admission of Carr’s redirect testimony, arguing that Carr was not qualified to opine on “whether it was legal to perform a certain pharmaceutical practice in a certain way based on his limited training in pharmacy school.” Reply Br. at 10. And she contends that 11 No. 19-5673, United States v. Jones Carr’s testimony was especially prejudicial because he opined on the scope of professional practice while testifying as a fact witness who had worked at KHP. We review for abuse of discretion a district court’s evidentiary rulings on witness testimony. United States v. White, 492 F.3d 380 , 398 (6th Cir. 2007).4 “A court abuses its discretion when it ‘relies on clearly erroneous findings of fact, improperly applies the law, or employs an erroneous legal standard,’ or when we are ‘firmly convinced’ that the trial court ‘committed a clear error of judgment.’” United States v. Kilpatrick, 798 F.3d 365 , 378 (6th Cir. 2015) (quoting United States v. Miner, 774 F.3d 336 , 348 (6th Cir. 2014)). Even if we find that the district court abused its discretion, we reverse only if the erroneous admission of evidence affected the substantial rights of the party. Id. A lay witness’s opinions are limited to those which are “(a) rationally based on the witness’s perception; (b) helpful to clearly understanding the witness’s testimony or to determining 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. Jones’s objection is based on the third limitation, which serves to “eliminate the risk that the reliability requirements set forth in Rule 702 will be evaded through the simple expedient of proffering an expert in lay witness clothing.” Fed. R. Evid. 701 advisory committee’s note (2000). To determine whether a lay witness impermissibly offered an expert opinion we look to the witness’s reasoning: “lay testimony ‘results from a process of reasoning familiar in everyday life,’ whereas ‘an expert’s testimony results from a process of 4 The government argues that we should review this claim for plain error because Jones did not reiterate her objection to Carr’s testimony during redirect. But Jones’s attorney objected to the question during the government’s direct examination. And before redirect, Jones’s attorney argued that he had not “opened the door” to Carr’s opinion testimony. Under these circumstances, we find that Jones maintained a standing objection to Carr’s testimony and decline to apply the plain-error standard of review. See United States v. Kilpatrick, 798 F.3d 365 , 378 (6th Cir. 2015) (declining to “parse out the challenged testimony that was not subject to objection at trial” because “the defendants maintained a standing objection throughout the trial to virtually all of the [witnesses’] testimony”). 12 No. 19-5673, United States v. Jones reasoning which can be mastered only by specialists in the field.’” White, 492 F.3d at 401 (quoting State v. Brown, 836 S.W.2d 530 , 549 (Tenn. 1992)). Here, the district court did not abuse its discretion by admitting Carr’s opinion testimony. First, a reasonable juror could not have mistaken Carr for an expert—Carr testified that he had completed only one semester of pharmacy school. We therefore cannot characterize Carr as “an expert in lay witness clothing.” See Fed. R. Evid. 701 advisory committee’s note (2000). Second, Carr reached his opinion using “a process of reasoning familiar in everyday life” rather than “reasoning which can be mastered only by specialists in the field.” See White, 492 F.3d at 401 (quoting Brown, 836 S.W.2d at 549 ). He testified that his short time in pharmacy school only confirmed what he “maybe” already knew as a pharmacy technician: that it is not “enough for a doctor to just write a prescription.” R. 108, PageID: 1020, 1045. Carr might have impermissibly veered into expert-opinion territory if, for example, he had defined an ambiguous term, cf. United States v. Cruz, 363 F.3d 187 , 195–97 (2d Cir. 2004), or explained a technical concept, cf. White, 492 F.3d at 403 –04. But we cannot say Carr’s testimony was based on anything beyond his everyday life experience, such as “scientific, technical, or other specialized knowledge.” See Fed. R. Evid. 701(c). Indeed, another pharmacy technician at KHP—April Bryant—did not require a semester of pharmacy school to understand that “you’re not supposed to give out medications without a prescription.” R. 109, PageID: 1071. Jones’s claim therefore fails. IV. For the foregoing reasons, we AFFIRM Jones’s convictions. 13

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18-1928-cr United States v. Feaster UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 1st day of December, two thousand twenty. PRESENT: BARRINGTON D. PARKER, DENNY CHIN, Circuit Judges, TIMOTHY C. STANCEU, Judge. * - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x UNITED STATES OF AMERICA, Appellee, -v- 18-1928-cr EMMANUEL FEASTER, Defendant-Appellant. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x * Chief Judge Timothy C. Stanceu, of the United States Court of International Trade, sitting by designation. FOR APPELLEE: SEAN C. ELDRIDGE, Assistant United States Attorney, for James P. Kennedy, Jr., United States Attorney for the Western District of New York, Rochester, New York. FOR DEFENDANT-APPELLANT: ANDREW LEVCHUK, Andrew Levchuk, Counsellor at Law, LLC, Amherst, Massachusetts. Appeal from the United States District Court for the Western District of New York (Geraci, Ch. J.). UPON DUE CONSIDERATION, IT IS ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED. Defendant-appellant Emmanuel Feaster appeals from a final judgment entered June 26, 2018 convicting him, following a jury trial, of possession of a firearm and ammunition following a felony conviction in violation of 18 U.S.C. §§ 922 (g)(1) and 924(a)(2). He was sentenced principally to 60 months' imprisonment. On appeal, Feaster argues that (i) the district court erred in instructing the jury on § 922(g)(1) and (ii) his sentence was both procedurally and substantively unreasonable. We assume the parties' familiarity with the underlying facts, the procedural history of the case, and the issues on appeal. Just after midnight on September 27, 2015, Feaster was pulled over by a Rochester police officer after he was observed driving an all-terrain vehicle ("ATV") -- -2- without a license plate and headlights off -- against traffic. When the police officer asked Feaster for his driver's license, Feaster ran off, but he tripped over a curb and fell. After Feaster attempted to get up, the pursuing officer pushed him to the ground. A struggle ensued, and the officer observed Feaster reach for his waistband and throw an object. The officer then heard what sounded like metal hitting the pavement. After Feaster was arrested, a specialist on the police force recovered a loaded handgun from the area where the officer heard metal hit the pavement. Feaster, who was 19 years old and had at least one prior felony conviction, was indicted for possession of a firearm and ammunition after a felony conviction. Feaster represented himself at trial, with the assistance of standby counsel. He stipulated that prior to the events in question, he was convicted "of a crime punishable by imprisonment for a term exceeding one year." App'x at 129. He also admitted that he understood that his prior conviction, which resulted in a sentence of two years in state prison, was a felony. When the district court instructed the jury, it did not explain that the jury, to return a guilty verdict, had to find that Feaster knew he possessed a firearm and also knew at the time of his possession that he had been convicted of a felony punishable by a year or more of incarceration. At the time, the Supreme Court had not yet decided United States v. Rehaif, in which it held that "the word 'knowingly' [in § 922(g)] applies both to the defendant's conduct and to the defendant's status." 139 S. Ct. 2191 , 2194 (2019). Under Rehaif, "[t]o convict a defendant, -3- the Government therefore must show that the defendant knew he possessed a firearm and also that he knew he had the relevant status when he possessed it." Id. The jury returned a guilty verdict. At sentencing, the district court explained how it arrived at Feaster's offense level, reviewed Feaster's criminal history and characteristics, and explained that it was required to "consider a number of factors, including the seriousness of [Feaster's] offense." App'x at 201. The court adopted the Findings of Fact and Guidelines calculation set forth in the presentence investigation report (the "PSR") with one minor correction that is not relevant to this appeal. The district court sentenced Feaster principally to 60 months' imprisonment, which it acknowledged was an upward variance from the Guidelines range of 27-33 months' imprisonment. The court explained that it imposed an above-Guidelines sentence "based upon the defendant's history and based upon the seriousness of his conduct in this case as well as in the previous case." App'x at 202. It also noted its sentence was intended to deter Feaster's conduct and the conduct of others. This appeal followed. 1. Jury Instructions Because Feaster did not object to the jury instructions at trial, we review his challenge for plain error. United States v. Prado, 815 F.3d 93 , 100 (2d Cir. 2016). Under plain error review, we will reverse only if "(1) there is an error; (2) the error is clear or obvious, rather than subject to reasonable dispute; (3) the error affected the -4- appellant's substantial rights . . . ; and (4) the error seriously affects the fairness, integrity or public reputation of judicial proceedings." Id. The government concedes that Feaster has satisfied the first two prongs of the plain error standard, but it argues that Feaster's claim fails on the third and fourth prongs. In United States v. Miller, which involved a Rehaif claim on similar facts as those presented here, this Court affirmed the lower court's conviction and sentence under the fourth prong of plain error review. 954 F.3d 551 , 559-60 (2d Cir. 2020). We reasoned that because the defendant would have likely sought to exclude -- and been successful in excluding -- the details pertaining to his prior offense as an "unnecessary and prejudicial embellishment" on his stipulation to his § 922(g) qualifying status, we would not penalize the government for failing to introduce evidence that, "prior to Rehaif, it would have been precluded from introducing." Id. We also considered that the defendant's PSR showed that the defendant's prior conviction resulted in a term of imprisonment greater than one year, thereby removing any doubt that the defendant was aware of his § 922(g) qualifying status. Id. Here, the same is true, as Feaster concedes. See Appellant's Reply Br. at 2. Feaster's PSR indicates that he pled guilty to a felony -- attempted criminal possession of a weapon -- and that he was sentenced to two years' imprisonment. Moreover, he stipulated that he was convicted "of a crime punishable by imprisonment for a term exceeding one year." App'x at 129. Additionally, if the government had attempted to introduce evidence about his prior -5- felony conviction, Feaster likely would have sought to exclude such evidence and been successful in doing so. Accordingly, the district court's erroneous jury instruction did not rise to the level of reversible plain error because it did not "seriously affect[] the fairness, integrity or public reputation of judicial proceedings," Prado, 815 F.3d at 100, and we affirm his conviction. 2. Sentence Generally, "[t]his court reviews the procedural and substantive reasonableness of a sentence under a deferential abuse-of-discretion standard." United States v. Richardson, 958 F.3d 151 , 153 (2d Cir. 2020) (internal quotation marks and brackets omitted). Where, as here, a defendant did not object to his sentence below, we review for plain error. United States v. Erskine, 717 F.3d 131 , 135 (2d Cir. 2013). In reviewing the procedural reasonableness of a sentence, this Court considers whether the district court committed a "significant procedural error." United States v. Rosa, 957 F.3d 113 , 117 (2d Cir. 2020) (internal quotation marks omitted). A district court commits procedural error where it "fails to calculate the Guidelines range," "makes a mistake in its Guidelines calculation," "treats the Guidelines as mandatory," or "does not consider the [18 U.S.C.] § 3553(a) factors, or rests its sentence on a clearly erroneous finding of fact." United States v. Cavera, 550 F.3d 180 , 190 (2d Cir. 2008) (en banc). "A sentence is substantively unreasonable if it is manifestly unjust or shocks the conscience." Richardson, 958 F.3d at 153-54 (internal quotation marks and brackets -6- omitted). When a district court imposes a sentence outside of the recommended Guidelines range, it "must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance." Cavera, 550 F.3d at 189 . "[A] district court's decision to vary from the Guidelines may attract greatest respect when the sentencing judge finds a particular case outside the heartland to which the Commission intends individual Guidelines to apply." Id. at 192 (internal quotation marks omitted). "Where, instead, the sentencing judge varies from the Guidelines based solely on the judge's view that the Guidelines range fails properly to reflect § 3553(a) considerations even in a mine-run case, . . . [a] closer review may be in order." Id. (internal quotation marks omitted). Feaster's sentence was procedurally reasonable. The district court properly calculated Feaster's Guidelines range and considered the § 3553(a) sentencing factors, including defendant's characteristics, the seriousness of his crime, and the need to deter such conduct. See Rosa, 957 F.3d at 119 (noting that "[w]e have declined to insist that the district court . . . discuss every § 3553(a) factor individually" (internal quotation marks omitted)). Moreover, "[a] district court may satisfy [its] obligation" to make factual findings supporting a sentence enhancement "by adopting the factual findings in the PSR, either at the sentencing hearing or in the written judgment." United States v. Espinoza, 514 F.3d 209 , 212 (2d Cir. 2008). Shortly after the district court imposed an upward variance, it explicitly adopted the findings in the PSR, which outlined, inter alia, -7- the defendant's past conduct. Accordingly, Feaster's sentence was procedurally reasonable. Feaster's sentence was also substantively reasonable. It does not "shock the conscience," Richardson, 958 F.3d at 155, that Feaster's conduct -- namely, driving recklessly, resisting arrest, and carrying and throwing a loaded handgun -- would be punishable by 60 months' imprisonment, in light of his criminal history. Importantly, the district court explained on the record why it decided to give an above-Guidelines sentence: It was concerned about Feaster's past criminal conduct and the seriousness of the offense. The district court noted that the instant conviction was Feaster's second serious illegal firearm conviction, his criminal history category was a level IV, and he committed this offense while on parole for a prior offense. Further, the district court noted the dangers posed by Feaster's behavior; by removing the loaded weapon from his waistband and throwing it away, Feaster could have seriously injured himself or the law enforcement officer. The district court explicitly stated that it needed to deter such future conduct. These justifications were "sufficiently compelling to support the degree of the variance," Cavera, 550 F.3d at 189 , and Feaster's challenge cannot overcome plain error review. Accordingly, we affirm the district's court's judgment. * * * -8-  We have considered Feaster's remaining arguments and conclude they are without merit. For the foregoing reasons, the judgment of the district court is AFFIRMED. FOR THE COURT: Catherine O'Hagan Wolfe, Clerk -9-

2020-12-01 16:00:22.315374+00

http://www.ca2.uscourts.gov/decisions/isysquery/5cd95885-35a5-4226-b02b-4f4bffdb2691/1/doc/19-2947_so.pdf

19-2947-cv United States of America ex rel. Borzilleri v. AbbVie Inc., et al. UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 1st day of December, two thousand twenty. PRESENT: BARRINGTON D. PARKER DENNY CHIN, Circuit Judges, JANE A. RESTANI, Judge. * - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x UNITED STATES OF AMERICA ex rel. JOHN R. BORZILLERI, M.D., DISTRICT OF COLUMBIA ex rel. JOHN R. BORZILLERI, M.D., STATE OF MARYLAND ex rel. JOHN R. BORZILLERI, M.D., STATE OF TENNESSEE ex rel. JOHN R. BORZILLERI, M.D., STATE OF NORTH CAROLINA ex rel. JOHN R. BORZILLERI, M.D., STATE OF WASHINGTON ex rel. JOHN R. BORZILLERI, STATE OF HAWAII ex rel. JOHN R. BORZILLERI, STATE OF RHODE ISLAND ex * Judge Jane A. Restani, of the United States Court of International Trade, sitting by designation. rel. JOHN R. BORZILLIERI, M.D., STATE OF MONTANA ex rel. JOHN R. BORZILLERI, M.D., STATE OF CONNECTICUT ex rel. JOHN R. BORZILLERI, M.D., STATE OF OKLAHOMA ex rel. JOHN R. BORZILLERI, STATE OF MINNESOTA ex reL. JOHN R. BORZILLERI, M.D., STATE OF COLORADO ex rel. JOHN R. BORZILLERI, STATE OF TEXAS ex rel. JOHN R. BORZILLERI, M.D., STATE OF WISCONSIN ex rel. JOHN R. BORZILLERI, M.D., STATE OF NEW YORK ex rel. JOHN R. BORZILLERI, M.D., STATE OF NEW MEXICO ex rel. JOHN R. BORZILLERI, STATE OF VIRGINIA ex rel. JOHN R. BORZILLERI, M.D., STATE OF MICHIGAN ex rel. JOHN R. BORZILLERI, M.D., STATE OF NEW HAMPSHIRE ex rel. JOHN R. BORZILLERI, M.D., STATE OF MASSACHUSETTS ex rel. JOHN R. BORZILLERI, M.D., STATE OF NEVADA ex rel. JOHN R. BORZILLERI, M.D., STATE OF IOWA ex rel. JOHN R. BORZILLERI, M.D., STATE OF DELAWARE ex rel. JOHN R. BORZILLERI, M.D., STATE OF CALIFORNIA ex rel. JOHN R. BORZILLERI, M.D., STATE OF INDIANA ex rel. JOHN R. BORZILLERI, M.D., STATE OF ILLINOIS ex rel. JOHN R. BORZILLERI, M.D., STATE OF LOUISIANA ex rel. JOHN R. BORZILLERI, M.D., STATE OF NEW JERSEY ex rel. JOHN R. BORZILLERI, M.D., STATE OF GEORGIA ex rel. JOHN R. BORZILLERI, M.D., STATE OF Florida ex rel. JOHN R. BORZILLERI, M.D., COMMONWEALTH OF MASSACHUSETTS ex rel. JOHN R. BORZILLERI, M.D., COMMONWEALTH OF VIRGINIA ex rel. JOHN R. BORZILLERI, M.D., Plaintiffs-Appellants, -v- 19-2947-cv -2- ABBVIE, INC., AMGEN, INC., BRISTOL- MYERS SQUIBB COMPANY, ELI LILLY AND COMPANY, NOVARTIS PHARMACEUTICALS COMPANY, PFIZER, INC., SANOFIAVENTIS U.S. LLC, AETNA, INC., CIGNA CORPORATION, CVS HEALTH CORPORATION, EXPRESS SCRIPTS HOLDING COMPANY, HUMANA, INC., and UNITEDHEALTH GROUP, INC., Defendants-Appellees. and UNITED STATES OF AMERICA, Appellee. ** - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x FOR RELATOR: MARY ANN H. SMITH, Idaho Falls, Idaho. FOR DEFENDANTS-APPELLEES: DANIEL MERON (Michael Clemente, on the brief), Latham & Watkins LLP, Washington, DC, and Michael G. McGovern, Ropes & Gray LLP, New York, New York; Enu Mainigi, Sarah Lochner O'Connor, Matthew Greer, Williams & Connolly LLP, Washington, DC; David S. Rosenbloom, McDermott Will & Emery LLP, Chicago, Illinois; Jessica L. Ellsworth, Hogan Lovells US LLP, Washington, DC; Aaron F. Jaroff, McGuireWoods LLP, New York, New York; Matthew A. Fitzgerald, McGuireWoods LLP, Richmond, Virginia; Glenn C. Colton, Arent Fox LLP, New York, New York; Michael F. Dearington, Arent Fox LLP, Washington, DC; Michael A. Rogoff, Arnold & Porter Kaye Scholer LLP, New York, New York; Rajeev Muttreja, Jones Day, New York, New York; and ** The Clerk of the Court is respectfully directed to amend the official caption to conform to the above. -3-  Andrew J. Hoffman, DLA Piper LLP (US), Los Angeles, California, on the brief. FOR APPELLEE: CHARLES S. JACOB, Assistant United States Attorney (Benjamin H. Torrance, Assistant United States Attorney, on the brief), for Audrey Strauss, Jr., United States Attorney for the Southern District of New York, New York, New York. FOR AMICUS CURIAE: Jeffrey S. Bucholtz, Jeremy M. Bylund, King & Spalding LLP, Washington, DC, and Steven P. Lehotsky, Tara S. Morrissey, U.S. Chamber Litigation Center, Inc., Washington, DC, for United States Chamber of Commerce. Appeal from the United States District Court for the Southern District of New York (Furman, J.). UPON DUE CONSIDERATION, IT IS ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED. Dr. John R. Borzilleri, serving as qui tam relator, appeals from a judgment of the United States District Court for the Southern District of New York entered July 17, 2019 dismissing his claims. By memorandum opinion and order entered July 16, 2019, the district court granted the government's motion to dismiss this action brought pursuant to the False Claims Act (the "FCA"), 31 U.S.C. § 3729 et seq., and state law. We assume the parties' familiarity with the underlying facts, the procedural history of the case, and the issues on appeal. -4-  Borzilleri alleges that defendants-appellees -- various drug manufacturers and pharmacy benefit managers ("PBMs") -- schemed to defraud Medicare Part D, a federal prescription-drug program, in violation of the FCA and state law, through the manufacturers' practice of paying to the PBMs kickback payments disguised as service fees. From early 2016 to March 2018, the government investigated Borzilleri's allegations. In March 2018, the government declined to intervene in this case. On December 21, 2018, the government moved to dismiss the case pursuant to § 3730(c)(2)(A) of the FCA, citing three grounds: (1) the case would likely require significant expenditure of government resources; (2) the relator's claims were unlikely to result in any material recovery for the United States; and (3) the relator was not an appropriate advocate for the government. The district court granted the government's motion, dismissing his claims under the FCA with prejudice and state law claims without prejudice. The FCA permits relators to bring suit "in the name of the Government" against those who knowingly defraud the United States. 31 U.S.C. § 3730 (b)(1). After such a qui tam action is filed, the government may intervene in and litigate the case. Id. § 3730(b)(2). If the government declines to intervene, the relator may conduct the litigation, although "the Government remains the real party in interest in any such action." United States ex rel. Mergent Servs. v. Flaherty, 540 F.3d 89 , 93 (2d Cir. 2008) -5- (internal quotation marks omitted). In most relevant part, the FCA also provides that the government "may dismiss the action notwithstanding the objections of the person initiating the action if the person has been notified by the Government of the filing of the motion and the court has provided the person with an opportunity for a hearing on the motion." 31 U.S.C. § 3730 (c)(2)(A). The FCA is silent as to what standard applies to a government's decision to dismiss a qui tam action. Courts of appeals are split on this question. The Ninth and Tenth Circuits have adopted a two-step analysis: the government must demonstrate a "valid government purpose" for dismissal and "a rational relation between dismissal and accomplishment of [that] purpose." United States ex rel. Sequoia Orange Co. v. Baird- Neece Packing Corp. ("Sequoia"), 151 F.3d 1139 , 1145 (9th Cir. 1998) (internal quotation marks omitted); accord Ridenour v. Kaiser-Hill Co., 397 F.3d 925 , 936 (10th Cir. 2005). The D.C. Circuit has adopted a less stringent standard, holding that the government's right to dismiss a relator's action is "unfettered." Swift v. United States, 318 F.3d 250 , 252 (D.C. Cir. 2003) ("We hesitate to adopt the Sequoia test . . . [D]ecisions not to prosecute, which is what the government's judgment in this case amounts to, are unreviewable."); see also Hoyte ex rel. United States v. Am. Nat'l Red Cross, 518 F.3d 61 , 65 n. 4 (D.C. Cir. 2008). We review a district court's grant of a motion to dismiss a qui tam action de novo. See United States v. Quest Diagnostics Inc., 734 F.3d 154 , 163 (2d Cir. 2013). -6-  As the district court noted, we have not previously adopted either the Sequoia or Swift standard of review. Like the district court, we do not decide which standard should govern, as the relator fails even the more stringent Sequoia standard. 1 The government has articulated a valid government purpose for seeking dismissal: to avoid the costs and burdens of further investigation so that it may expend its finite resources elsewhere. See Sequoia, 151 F.3d at 1146 ("[T]he government can legitimately consider the burden imposed on the taxpayers by its litigation[;] . . . even if the relators were to litigate the FCA claims, the government would continue to incur enormous internal staff costs."); Swift, 318 F.3d at 254 ("[T]he government's goal of minimizing its expenses is . . . a legitimate objective, and dismissal of the suit furthered that objective."); Chang v. Child. Advoc. Ctr. of Delaware Weih Steve Chang, 938 F.3d 384 , 387 (3d Cir. 2019) ("[T]he government has an interest in minimizing unnecessary or burdensome litigation costs" and "dismissing a case is, of course, the easiest way to achieve that objective."). The district court concluded that the government's investigations into the relator's claims were "lengthy, costly, and substantial," and spanned across "years and multiple offices and agencies." S. App'x at 5. 1 We have previously cited Sequoia in dicta, noting that we need not determine whether the government’s decision to dismiss is reasonable, but only that it is supported by a valid governmental purpose that is not arbitrary or irrational and has some rational relation to the dismissal. See U.S. ex rel. Stevens v. State of Vt. Agency of Nat. Res., 162 F.3d 195 , 201 (2d Cir. 1998), rev'd on other grounds, 529 U.S. 765 (2000). -7-  Once the government satisfies the first step of the Sequoia standard, the burden shifts to the relator to show that the dismissal is "fraudulent, arbitrary and capricious, or illegal." Sequoia, 151 F.3d at 1145 . Here, the relator has failed to make a colorable showing that the government's dismissal was fraudulent, arbitrary and capricious, or illegal. The relator argues that the district court erred by failing to provide him an evidentiary hearing. The plain language of the FCA provides a relator an "opportunity for a hearing" when the government moves to dismiss. 31 U.S.C. § 3730 (c)(2)(A). The Ninth and Tenth Circuits have cited a 1986 Senate committee report which explained that a hearing is to be granted if the relator presents a "colorable claim" that the dismissal is unreasonable in light of existing evidence. Sequoia, 151 F.3d at 1145 ; Ridenour, 397 F.3d at 931 ("These hearings . . . are only to be granted if relators can show a 'substantial and particularized need for a hearing.'") (citing S. Rep. No. 99-345, at 26 (1986)). The relator failed to present a colorable claim here that the government's dismissal was unreasonable, and the district court provided the relator an opportunity to be heard as it considered the parties' briefing on the issue. In these circumstances, the district court did not abuse its discretion in declining to hold an evidentiary hearing. * * * -8-  We have considered the relator's remaining arguments and conclude they are without merit. For the foregoing reasons, we AFFIRM the judgment of the district court. FOR THE COURT: Catherine O'Hagan Wolfe, Clerk -9-

2020-12-01 16:00:23.390817+00

http://www.ca2.uscourts.gov/decisions/isysquery/5cd95885-35a5-4226-b02b-4f4bffdb2691/2/doc/19-3987_so.pdf

19-3987-cr Lowell v. Vermont Dep't for Children and Families UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 1st day of December, two thousand twenty. PRESENT: BARRINGTON D. PARKER, DENNY CHIN, Circuit Judges, JANE A. RESTANI, Judge. * - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x MIRIAM LOWELL, SETH HEALEY, Plaintiffs-Appellants, v. 19-3987-cv VERMONT DEPARTMENT OF CHILDREN AND FAMILIES, "DCF," KENNETH SCHATZ, COMMISSIONER, DCF, KAREN SHEA, DEPUTY COMMISSIONER FOR THE FAMILY SERVICES DIVISION ("FSD"), DCF, CHRISTINE JOHNSON, DEPUTY COMMISSIONER FOR FDS, DCF, EMILY CARRIER, DISTRICT DIRECTOR, DCF, * Judge Jane A. Restani, of the United States Court of International Trade, sitting by designation. CATHERINE CLARK, DIRECTOR, COMMISSIONER'S REGISTRY REVIEW UNIT, DCF, KATHLEEN SMITH, FAMILY SERVICES SUPERVISOR,CHRISTINE GADWAH, FAMILY SERVICES WORKER, DCF, KATHLEEN GREENMUN, SUBSTANTIATION HEARING OFFICER, DCF, Defendants-Appellees, JOHN AND JANE DOES 1-10, Defendants. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x FOR PLAINTIFFS-APPELLANTS: COLIN R. HAGAN, Shlansky Law Group, LLP, Chelsea, Massachusetts. FOR DEFENDANTS-APPELLEES: BENJAMIN D. BATTLES, Solicitor General, for Thomas J. Donovan, Jr., Attorney General, Montpelier, Vermont. Appeal from the United States District Court for the District of Vermont (Crawford, Ch. J.). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the decision of the district court is AFFIRMED. Plaintiffs-appellants Miriam Lowell and Seth Healey ("plaintiffs") appeal the decision of the district court issued November 18, 2019, denying their motion for a temporary restraining order and preliminary injunction. Plaintiffs brought the action below seeking declaratory and injunctive relief as well as damages against defendant- appellant Vermont Department for Children and Families ("DCF") and certain DCF -2- officials. DCF had brought a proceeding against plaintiffs seeking to determine whether to substantiate a report of child abuse or neglect. Contending that the allegations were false, plaintiffs sought injunctive relief to stop DCF from conducting an administrative hearing and listing their names on Vermont's child protection registry. In its ruling, the district court concluded that the Younger abstention doctrine barred plaintiffs' claims for injunctive relief. See Younger v. Harris, 401 U.S. 37 (1971). The court also denied defendants' motion to dismiss the action, noting that Younger abstention did not apply to plaintiffs' claims for damages. This appeal followed. We assume the parties' familiarity with the underlying facts, procedural history of the case, and the issues on appeal. We review de novo whether the requirements for abstention have been met. See Disability Rights New York v. New York, 916 F.3d 129 , 133 (2d Cir. 2019); Diamond "D" Constr. Corp. v. McGowan, 282 F.3d 191 , 197-98 (2d Cir. 2002). Although the findings of facts are reviewed for clear error, whether those facts support a finding that the case meets an exception to the Younger abstention doctrine is a mixed question of law and fact that is reviewed de novo. See id. at 198 . As a general matter, Younger abstention requires federal courts to abstain from exercising jurisdiction over state-level proceedings. Three types of proceedings trigger Younger abstention: 1) "ongoing state criminal prosecutions," 2) state "civil enforcement proceedings," and 3) proceedings involving state courts "perform[ing] their -3- judicial functions." Sprint Commc'ns, Inc. v. Jacobs, 571 U.S. U.S. 69, 70 (2013). Moreover, after applying the categorical Sprint approach, this court will consider three additional, non-dispositive factors to determine whether abstention is appropriate: 1) whether there is a "pending state proceeding," 2) whether that proceeding "implicates an important state interest," and 3) whether "the state proceeding affords an adequate opportunity for judicial review of . . . federal constitutional claims." Falco v. Justices of Matrimonial Parts of Supreme Ct. of Suffolk Cnty., 805 F. 3d 425 , 427 (2d Cir. 2015) (citing Middlesex Cnty. Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423 (1982). Altogether, even if Younger's prerequisites are satisfied, a federal court may exercise jurisdiction if the plaintiff can make a showing of "bad faith, harassment or any other unusual circumstance that would call for equitable relief." Id. (quoting Younger, 401 U.S. at 54 ). The district court correctly concluded that Vermont's substantiation process is akin to a criminal prosecution, falling within Younger's second category. In determining whether a civil enforcement action is akin to a criminal proceeding, we consider whether the action involved a state sanctioning a party "for some wrongful act," was "initiated [by the State] to sanction the federal plaintiff," and involved "[i]nvestigations [that] culminat[e] in the filing of a formal complaint or charges." Sprint, 571 U.S. at 79-80. The substantiation process at issue here possessed these features. Therefore, DCF's proceeding constituted an ongoing state proceeding akin to a criminal prosecution. -4-  The substantiation proceedings also satisfy the additional Middlesex factors. Vermont has a vital interest in protecting the well-being of its children. See Moore, 442 U.S. at 435 ("Family relations are a traditional area of state concern."). Moreover, the state proceedings provide a sufficient forum for review of federal constitutional claims. After an accusation of wrongdoing, DCF can initiate an investigation. Vt. Stat. Ann. Tit. 33 § 4915, 4915a, 4915b. If DCF finds that the claims are substantiated, it provides notice of that fact to the accused. It also informs the accused that DCF can place the individual on the child protection registry. Vt. Stat. Ann. tit. 33 § 4916a(a). The accused is notified of the right to request administrative review of the decision, id., which is conducted by a neutral arbiter who is not an employee of DCF, id. § 4916a(f). The burden of proof rests on DCF and the accused has the right to present documentary evidence and other evidence. Id. §§ 4916a(d), a(e). A person's name is not placed on the registry until after the accused is granted an administrative review, and the substantiation is upheld. Id. § 4916a(h). The accused can appeal that decision to the Human Services Board. Id. §§ 4916a(i), b. That decision, in turn may be appealed to the Vermont Supreme Court. Id. tit. 3 § 3091(f). Accordingly, plaintiffs have an opportunity to raise their constitutional claims at the hearing before the Human Services Board and before the Vermont Supreme Court. Plaintiffs argue that this review of their constitutional claims arrives too late, beyond the point that their names are listed on the child protection registry, -5- potentially affecting their employment in an irreparable way. Plaintiffs' names, however, have not been placed on the child-protection registry, and the district court stayed the administrative review process pending this appeal. Moreover, in Spargo v. New York State Comm'n on Judicial Conduct, 351 F.3d 65 , 79 (2d Cir. 2003), this Court held that the "ability to raise constitutional claims in subsequent 'state-court judicial review of [an underlying] administrative proceeding' is sufficient to provide plaintiffs with a meaningful opportunity to seek effective relief through state proceedings and bar federal courts from taking jurisdiction over the same claims while the state proceeding is pending" (emphasis added). Thus, the state process provides sufficient opportunity to raise constitutional claims. Plaintiffs also argue that federal court should have applied the "bad faith" exception to Younger, and exercised jurisdiction because they have shown "bad faith" and "harassment" by defendants. Diamond "D," 282 F.3d at 198 (quoting Younger, 401 U.S. at 54 ). The district court correctly held that the actions alleged in the complaint are not sufficient to sustain a finding of bad faith. To show bad faith, a plaintiff must show that "the state proceeding was initiated with and is animated by a retaliatory, harassing, or other illegitimate motive" and "ha[s] no reasonable expectation of obtaining a favorable outcome." Diamond "D," 282 F.3d at 199 . A state proceeding that "is legitimate in its purposes, but unconstitutional in its execution -- even when the violations of constitutional rights are egregious -- will not warrant the application of the -6- bad faith exception." Id. (internal citation omitted). Here, the case was initially brought to the attention of a mental health counselor by the accusations of Lowell's daughter, not by the reporting of a DCF employee. Hence, the suggestion that the state proceeding was therefore initiated with a harassing or retaliatory motive, or that the state had no reasonable expectation of a favorable outcome, is not plausible, and plaintiffs have not met their burden of showing that the bad faith exception should apply. We have reviewed plaintiffs' remaining arguments on appeal and conclude they are without merit. Accordingly, we AFFIRM the order of the district court denying plaintiffs' claims for a temporary restraining order and preliminary injunctive relief. FOR THE COURT: Catherine O'Hagan Wolfe, Clerk -7-

2020-12-01 16:00:28.775652+00

http://www.opn.ca6.uscourts.gov/opinions.pdf/20a0679n-06.pdf

NOT RECOMMENDED FOR PUBLICATION File Name: 20a0679n.06 No. 19-4079 UNITED STATES COURTS OF APPEALS FOR THE SIXTH CIRCUIT FILED Dec 01, 2020 UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk ) Plaintiff-Appellee, ) ) ON APPEAL FROM THE v. ) UNITED STATES DISTRICT ) COURT FOR THE KEVIN BISH, ) NORTHERN DISTRICT OF ) OHIO Defendant-Appellant. ) ) BEFORE: CLAY, GIBBONS, and NALBANDIAN, Circuit Judges. JULIA SMITH GIBBONS, Circuit Judge. On November 1, 2019, defendant Kevin Bish was sentenced to 140 months of imprisonment for his role in a conspiracy to distribute and possess with intent to distribute methamphetamine. The only issue on appeal is whether the district court properly applied a two-level sentencing enhancement for possession of firearms during the offense. Because the district court did not clearly err, we affirm. I. From December 1, 2018 until on or about March 27, 2019, defendant Kevin Bish engaged in a conspiracy with Alan Blenman and Brandon A. Butler to distribute methamphetamine. For most of the conspiracy, Bish was in custody for state misdemeanor offenses. While he was detained, Bish participated in the conspiracy through his wife Brandy Bish (“Brandy”). Bish called Brandy from a jailhouse phone and directed her to set up drug purchases and sales. On at least No. 19-4079, United States v. Bish two occasions, on February 7 and 21, 2019, Brandy sold methamphetamine to a confidential source in the back room of Blenman’s garage at Bish’s direction. On February 22, 2019, law enforcement officers executed a search warrant for a garage on Blenman’s property. Blenman’s garage contained two rooms: a front room that operated as a standard garage and a back room with a separate entrance. During the search, officers found a bag containing a number of firearms and holsters in the back room of Blenman’s garage. In the same room, officers found bags of suspected methamphetamine,1 ammunition, marijuana, and a digital scale labeled “Moneymaker.” Some of the items, including the ammunition and marijuana, were found in a safe, to which Brandy had the combination. Bish’s fingerprints were not found on any of the items recovered from the garage. The same day that they searched Blenman’s garage, officers also searched the Bish residence where they found methamphetamine, a handgun, ammunition, a ledger, and several thousand dollars, which Brandy told officers was payment for one pound of methamphetamine. On March 27, 2019, defendant Kevin Bish was indicted for conspiracy to distribute and possess with intent to distribute methamphetamine under 21 U.S.C. § 846 and three counts of using a communication facility in furtherance of drug trafficking under 21 U.S.C. § 843 (b). On July 8, 2019, Bish pled guilty to the conspiracy charge. As part of the factual basis for the plea agreement, Bish admitted that “in the location from which [he] was distributing methamphetamine . . . [he] was in possession of multiple firearms.” DE 37, Plea Agreement. Page ID 102. The plea agreement also stated, however, that the parties “have no agreement regarding the two-level 1 During the sentencing hearing, Drug Enforcement Administration agent Shaun Moses testified that law enforcement recovered methamphetamine from Blenman’s garage. The methamphetamine recovered from the garage, however, was not sent to a lab for testing. -2- No. 19-4079, United States v. Bish [sentencing] enhancement for the possession of multiple firearms at the location from which the defendant was distributing methamphetamine as part of the conspiracy.” Id. at Page ID 99. At Bish’s sentencing hearing, the primary dispute was whether the two-level sentencing enhancement for possession of firearms under U.S.S.G. § 2D1.1(b)(1) applied to Bish.2 Specifically, the parties disputed whether the firearms found in Blenman’s garage could be attributed to Bish. The only witness at the hearing was Drug Enforcement Administration agent Shaun Moses. Moses was present during the execution of the search warrant of Blenman’s garage and interviewed Bish, Brandy, and Blenman. In addition to testifying about the guns, drugs, and ammunition recovered from the back room of Blenman’s garage, Moses testified about a series of telephone calls Bish made to Brandy while he was in jail. Moses did not listen to the telephone recordings himself, but he reviewed summaries of the recordings prepared by a detective. The transcript of the phone calls was provided as the government’s Exhibit 28; the recording itself, which was played for the court during the sentencing hearing, was admitted into evidence. In particular, Moses testified about a telephone call Bish made to Brandy on December 12, 2018. During the call, Bish told Brandy that he wanted her “to get all those guns out of Dad’s and take them to Rick’s.” DE 85-4, Sentencing Ex., Page ID 723. Bish said that the guns “are all in that room, I don’t want them left there if I’m gone for a long time. . . . . I just want them to be somewhere safer and secure. . . . It’s not very good moisture climate in there I don’t want them sitting in there rusting.” Id. Bish told Brandy that the guns were “hidden back by, they’re hidden in there. There in a big bag. And they’re hidden. But they’re in that room. Believe me, a whole bunch of sh*t ton of them.” Id. Brandy told Bish that she would move the guns. At the hearing, Moses opined that “Dad” referred to 2 U.S.S.G. § 2D1.1(b)(1) provides that “[i]f a dangerous weapon (including a firearm) was possessed, increase by 2 levels.” U.S. SENT’G GUIDELINES MANUAL § 2D1.1(b)(1). -3- No. 19-4079, United States v. Bish Blenman and that he believed Bish was telling Brandy to move guns out of Blenman’s garage. Moses admitted, however, that he had no personal knowledge of who “Dad” was and that he was relying on the summary of the report provided by the detective. At the conclusion of the evidence, the district court initially appeared skeptical of the government’s ability to prove that Bish possessed the firearms found in Blenman’s garage given that there was no evidence in the record of whether Blenman was “Dad.” Ultimately, however, the district court concluded that the enhancement applied. First, the district court determined that the firearms found in Blenman’s garage were the firearms Bish described in his phone call with Brandy. The district court relied on Bish’s “telephone call and the exhibits, the items [where] they were located, when they were discovered” and Bish’s description of “the rooms where [the firearms] were located and where they could be found which [was] consistent with the government’s exhibits” showing Blenman’s garage. DE 72, Sentencing Hr’g Tr., at Page ID 520:16–24. The district court also found that Bish had control over the firearms because he directed Brandy to move them from Dad’s to Rick’s. Therefore, the district court found that Bish had constructive possession of the guns even though there was no evidence that Blenman was Dad. The district court did not rely on the factual admission in Bish’s plea agreement. Second, the court held that the firearms found in Blenman’s garage were used in the commission of the methamphetamine conspiracy because the firearms were found near a digital scale, ammunition, and methamphetamine. Thus, the district court applied the enhancement. Consequently, the district court sentenced Bish to 140 months of imprisonment. Bish filed this timely appeal, challenging the application of the sentencing enhancement for possession of firearms. -4- No. 19-4079, United States v. Bish II. We review the district court’s interpretation of the Sentencing Guidelines de novo and its findings of fact for clear error.3 United States v. Greeno, 679 F.3d 510 , 514 (6th Cir. 2012). Under the clear-error standard, this court will not overrule the district court’s factual finding simply “because we ‘would have decided the case differently.’” Easley v. Cromartie, 532 U.S. 234 , 242 (2001) (quoting Anderson v. Bessemer City, 470 U.S. 564 , 573 (1985)). Rather, we ask “whether on the entire evidence [we are] left with the definite and firm conviction that a mistake has been committed.” United States v. West, 962 F.3d 183 , 187 (6th Cir. 2020) (quoting United States v. Orlando, 363 F.3d 596 , 603 (6th Cir. 2004)). III. Under Sentencing Guideline § 2D1.1(b)(1), a two-level sentencing enhancement is added to a defendant’s base offense level if the defendant possessed a dangerous weapon such as a firearm. U.S. SENT’G GUIDELINES MANUAL § 2D1.1(b)(1). For the enhancement to apply, the government must prove two elements by a preponderance of the evidence. West, 962 F.3d at 187. First, it must show that “the defendant actually or constructively possessed the weapon.” Id. (quoting United States v. Hill, 79 F.3d 1477 , 1485 (6th Cir. 1996)). “Constructive possession of an item is the ‘ownership, or dominion or control’ over the item itself, ‘or dominion over the premises’ where the item is located.” Hill, 79 F.3d at 1485 (quoting United States v. Sanchez, 928 3 In his initial brief, Bish argues that the district court’s improper application of the Sentencing Guidelines was procedurally unreasonable. (CA6 R. 23, Appellant Br., at 16) (citing United States v. Catalan, 499 F.3d 604 , 606 (6th Cir. 2007) (“[W]e consider sentences predicated on a guideline miscalculation to be procedurally unreasonable.” (internal quotation omitted))). This court reviews the procedural reasonableness of a defendant’s sentence for abuse of discretion. United States v. West, 962 F.3d 183 , 187 (6th Cir. 2020). However, because this appeal concerns a factual dispute, Bish’s characterization of the sentence as procedurally unreasonable does not affect the standard of review. See United States v. Benson, 591 F.3d 491 , 504 (6th Cir. 2010) (“A district court’s finding that a defendant possessed a firearm during a drug crime is a factual finding subject to the clearly erroneous standard of review.” (internal quotations omitted)). Furthermore, despite arguing that the district court’s decision was procedurally unreasonable, Bish does not claim that the abuse-of-discretion standard applies. -5- No. 19-4079, United States v. Bish F.2d 1450, 1460 (6th Cir.1991) (abrogated on other grounds)); see also United States v. Houston, 813 F.3d 282 , 295 (6th Cir. 2016) (“Constructive possession occurs when a person has the power and intention to exercise dominion and control over an object.”). Constructive possession can be established by either direct or circumstantial evidence. United States v. Bailey, 553 F.3d 940 , 944 (6th Cir. 2009). Whether the defendant possessed the firearm is a factual finding that this court reviews for clear error. West, 962 F.3d at 187. Second, the government must demonstrate that the defendant possessed the weapon during the commission of the offense or during relevant conduct. United States v. Faison, 339 F.3d 518 , 520 (6th Cir. 2003). “Relevant conduct” includes “all acts and omissions . . . that were part of the same course of conduct or common scheme or plan as the offense of conviction.” Id. (quoting U.S. SENT’G GUIDELINES MANUAL § 1B1.3(a)(2)); see also United States v. Ward, 506 F.3d 468 , 475 (6th Cir. 2007) (“Relevant conduct under the Sentencing Guidelines includes: ‘in the case of jointly undertaken criminal activity . . . all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity.’”). When determining whether the firearms were connected to the particular offence, this court considers factors such as “the proximity of the firearm to the drugs, the type of firearm involved, whether the firearm was loaded, and any alternative purpose offered to explain the presence of the firearm.” United States v. Moses, 289 F.3d 847 , 850 (6th Cir. 2002) (citing Hill, 79 F.3d at 1486 ). If the government proves both elements, then “the burden shifts to the defendant to show that it was ‘clearly improbable’ that the weapon was connected to the offense.” United States v. Catalan, 499 F.3d 604 , 606 (6th Cir. 2007) (quoting Hill, 79 F.3d at 1485 ). The defendant “must present evidence, not mere argument, in order to meet his or her burden.” Greeno, 679 F.3d at 514 (citing United States v. Hough, 276 F.3d 884 , 894 (6th Cir. 2002)). -6- No. 19-4079, United States v. Bish First, the district court did not clearly err by finding that a preponderance of the evidence shows that Bish constructively possessed the firearms found in Blenman’s garage. The district court reasoned that it did not need to determine whether Blenman was “Dad” because the call between Brandy and Bish and the exhibits presented at Bish’s sentencing hearing were sufficient to find that more likely than not Bish was referring to the firearms found in Blenman’s garage when he told Brandy to “get all those guns out of Dad’s and take them to Rick’s.” DE 85-4, Sentencing Ex., Page ID 723. During the call, Bish told Brandy that the guns were “all in that room . . . . they’re hidden back by, they’re hidden in there. There in a big bag. And they’re hidden. But they’re in that room. Believe me, a whole bunch of sh*t ton of them.” Id. He explained that he wanted Brady to move the guns to “Rick’s” because it was a poor moisture climate where they were currently stored. Id. In sum, Bish told Brandy that the guns were in a big bag hidden in the back in a room with a poor moisture climate. In combination with the knowledge that Bish was directing Brandy to sell methamphetamine from the back room of Blenman’s garage, this evidence is enough to prove that Bish was more likely than not referring to the firearms later recovered from Blenman’s garage. Based on the record that the district court considered, we are not left with a definite and firm conviction that the district court’s finding was erroneous. In addition, although it is not necessary, Bish’s plea agreement lends further support to the finding that Bish constructively possessed the firearms found in Blenman’s garage. Cf. United States v. Webb, 403 F.3d 373 , 381 (6th Cir. 2005) (considering admissions in the plea agreement as a basis for the application of a sentencing enhancement); United States v. Henderson, 135 F. App’x 858, 862 (6th Cir. 2005) (same); United States v. Patino, 150 F. App’x 453, 457 (6th Cir. 2005) (same). This court may affirm the district court’s finding based “on any grounds supported by the record,” even if not -7- No. 19-4079, United States v. Bish explicitly considered by the lower court. Vowell v. United States, 938 F.3d 260 , 263 (6th Cir. 2019); City Mgmt. Corp. v. United States Chem. Co., 43 F.3d 244 , 251 (6th Cir. 1994). Thus, even though the district court did not rely on it, this court can consider Bish’s plea agreement as additional support for the finding that he was referring to the firearms found in Blenman’s garage. In the plea agreement, Bish acknowledged that “in the location from which [he] was distributing methamphetamine from, 4756 Stanhope Kellogsville Road, Kingsville Township, [he] was in possession of multiple firearms.” DE 37, Plea Agreement, Page ID 102. 4756 Stanhope Kellogsville Road was Blenman’s residence. Bish argues that this court should disregard the statement in his plea agreement because the plea agreement also states that the “parties have no agreement regarding the two-level enhancement for the possession of multiple firearms at the location from which the defendant was distributing methamphetamine as part of the conspiracy.” DE 37, Plea Agreement, Page ID 99. Bish appears to characterize the inclusion of the factual statement that Bish possessed firearms at Blenman’s property as “poor drafting by attorneys.” CA6 R.33, Reply Br., at 5. Bish claims, without citing case law, that this alleged poor drafting should not be held against him. Bish also claims that he “was tricked into signing the Plea Agreement” and that the government is seeking “to avoid its bargain.” Id. at 6. Bish does not argue, however, that he entered into the plea agreement involuntarily. Furthermore, the government read the entirety of the factual basis section of the plea agreement, including the section that Bish now disputes, during the plea hearing. When asked whether he admitted that he engaged in the stated conduct, Bish responded that he did. Defense counsel also did not object to the factual findings during the plea hearing. Simply put, Bish’s arguments for why this court should not consider the plea agreement are misguided. -8- No. 19-4079, United States v. Bish When considering Bish’s statement in the plea agreement that he possessed firearms at Blenman’s property alongside the evidence the government presented at the sentencing hearing, the district court’s conclusion—that Bish was discussing the firearms in Blenman’s garage during his December 12 phone call with Brandy—was not clearly erroneous. The guns were found “in a big bag” in the back of a garage at a property where Bish admitted to possessing firearms. DE 85- 4, Sentencing Ex., Page ID 723; DE 72, Sentencing Hr’g Tr., at Page ID 500–02. Furthermore, Bish demonstrated that he had the power and intention to exercise control over the firearms when he told Brandy to move them to a different location to store them somewhere safer and then Brandy agreed to move them. See Houston, 813 F.3d at 295 (“Constructive possession occurs when a person has the power and intention to exercise dominion and control over an object.”). In conclusion, district court did not clearly err by finding that Bish had constructive possession. Second, the district court did not clearly err by finding that Bish possessed the firearms found in Blenman’s garage during the commission of the offense or relevant conduct. The charged conspiracy in this case existed from December 1, 2018 until at least March 27, 2019. During that time, Brandy conducted drug transactions from Blenman’s garage under Bish’s instruction. Additionally, Bish himself admitted that he distributed methamphetamine from Blenman’s property before he was arrested. When the officers searched Blenman’s garage, they found the firearms near drugs, ammunition, and a digital scale. See Moses, 289 F.3d at 851 (finding that the defendant failed to meet his burden where he failed to prove that a pistol stored in his bedroom closet did not have proximity to the drug activity). Several of the firearms were also models that are frequently used in drug trafficking, such as .22 caliber revolvers. See id. Thus, the district court did not clearly err by finding that Bish possessed the firearms during the commission of the -9- No. 19-4079, United States v. Bish conspiracy. Accordingly, the government proved by the preponderance of the evidence that the firearm sentencing enhancement should apply. Because the district court did not clearly err in finding that the government met its burden, the burden shifted to Bish to demonstrate that it was clearly improbable that the firearms recovered from Blenman’s garage were involved in the conspiracy to distribute methamphetamine. See Moses, 289 F.3d at 850 . Bish failed to meet this burden. Bish’s counsel at the sentencing hearing did not present any evidence; she only cross-examined the government’s witness. See Greeno, 679 F.3d at 516 (finding that the defendant did not meet his burden when he failed to present any evidence). IV. The district court’s application of the two-level firearm enhancement to Bish’s base offense level was not clearly erroneous. The judgment of the district court is affirmed. -10-

2020-12-01 16:00:29.674146+00

http://www.opn.ca6.uscourts.gov/opinions.pdf/20a0372p-06.pdf

RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 20a0372p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT ┐ UNITED STATES OF AMERICA, │ Plaintiff-Appellee, │ > No. 20-5229 │ v. │ │ KENNETH DEWAYNE WILLIS, │ Defendant-Appellant. │ ┘ Appeal from the United States District Court for the Western District of Kentucky at Louisville. No. 3:19-cr-00086-1—David J. Hale, District Judge. Decided and Filed: December 1, 2020 Before: MOORE, GILMAN, and GRIFFIN, Circuit Judges. _________________ COUNSEL ON BRIEF: Frank W. Heft, Jr., Chastity R. Beyl, OFFICE OF THE FEDERAL DEFENDER, Louisville, Kentucky, for Appellant. Terry M. Cushing, UNITED STATES ATTORNEY’S OFFICE, Louisville, Kentucky, for Appellee. _________________ OPINION _________________ RONALD LEE GILMAN, Circuit Judge. Kenneth Dewayne Willis has been charged with one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922 (g). He seeks to dismiss the indictment on the grounds that the current federal prosecution constitutes double jeopardy and violates the collateral-estoppel doctrine because Willis has already been prosecuted in state court based on the same underlying conduct. The district court denied  No. 20-5229 United States v. Willis Page 2 Willis’s motion to dismiss. For the reasons set forth below, we DISMISS Willis’s appeal for lack of appellate jurisdiction. I. BACKGROUND In July 2016, the Commonwealth of Kentucky charged Willis in state court with murder, possession of a handgun by a convicted felon, and first-degree possession of a controlled substance. The gun charge was severed from the other two charges prior to trial, with the trial beginning in February 2019. At trial, a directed verdict in Willis’s favor was granted on the drug charge. Willis was also acquitted by a jury on the murder charge, but he was convicted of the lesser offense of reckless homicide. He was sentenced to five years of imprisonment in April 2019. The United States indicted Willis in federal court on the current charge of being a felon in possession of a firearm the following month. The Commonwealth dismissed the state gun charge shortly thereafter. Willis subsequently filed a motion to dismiss for prosecutorial vindictiveness, which the district court denied. He then filed a motion to dismiss based on double jeopardy. The district court denied that motion as well, holding that neither double jeopardy nor collateral estoppel applies when two sovereigns—here, the United States and Kentucky—prosecute a defendant based on the same underlying conduct. Furthermore, the district court concluded that Willis had not demonstrated that he was the victim of a “sham prosecution,” an exception to the dual-sovereignty doctrine. This interlocutory appeal followed. II. ANALYSIS A. Jurisdiction Generally, our jurisdiction is limited to appeals from final judgments. 28 U.S.C. § 1291 . An order denying dismissal on double-jeopardy grounds lacks finality, but is appealable under the collateral-order doctrine provided that the claim is “colorable.” Richardson v. United States, 468 U.S. 317 , 322 (1984) (“[W]e have indicated that the appealability of a double jeopardy claim depends upon its being at least ‘colorable.’”) (quoting United States v. MacDonald, 435 U.S. 850 , 862 (1978)); see also United States v. Pi, 174 F.3d 745 , 748 (6th Cir. 1999) (“[W]e must  No. 20-5229 United States v. Willis Page 3 exercise jurisdiction to the extent necessary to determine whether or not defendants’ double jeopardy claim is colorable.”). A colorable claim, the Supreme Court has observed, “presupposes that there is some possible validity to a claim.” Richardson, 468 U.S. at 326 n.6. B. Willis’s double-jeopardy claim is not colorable 1. Willis was charged with different crimes The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution guarantees that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const. amend. V. This Clause, however, does not protect individuals from being twice prosecuted “for the same conduct or actions,” but instead from being twice prosecuted “for the same offence.” Gamble v. United States, 139 S. Ct. 1960 , 1965 (2019) (internal citation and quotation marks omitted). Because the Clause’s focus is on the statutory offenses for which a defendant is prosecuted, the “general test for compliance with the double jeopardy clause looks to ‘whether each [statute] requires proof of a fact which the other does not.’” United States v. Gibbons, 994 F.2d 299 , 301 (6th Cir. 1993) (quoting Blockburger v. United States, 284 U.S. 299 , 304 (1932)). In this case, Willis contends that the current federal prosecution charging him with being a felon in possession of a handgun violates the double-jeopardy principle because he was previously convicted in state court of committing reckless homicide with the same handgun. The crime of being a felon in possession of a handgun, however, requires proof of different facts from those required for the crime of reckless homicide. Under federal law, the crime of possessing a gun after a felony conviction has the following elements: (1) the defendant was a felon; (2) the defendant knew he was a felon (from Rehaif); (3) the defendant knowingly possessed a firearm; and (4) that the firearm had traveled through interstate commerce. United States v. Ward, 957 F.3d 691 , 696 (6th Cir. 2020) (citing Rehaif v. United States, 139 S. Ct. 2191 , 2200 (2019)). The crime of reckless homicide, under Kentucky law, contains none of these elements. “A person is guilty of reckless homicide [in Kentucky] when, with recklessness  No. 20-5229 United States v. Willis Page 4 he causes the death of another person.” Ky. Rev. Stat. Ann. § 507.050 (1). Because these two crimes contain different elements, Willis’s double-jeopardy claim is not colorable. 2. Willis was prosecuted by different sovereigns And even if Willis had been convicted of the same crime in state court as the crime charged in his federal indictment, his appeal would still fail. Pursuant to the dual-sovereignty doctrine, a “State may prosecute a defendant under state law even if the Federal Government has prosecuted him for the same conduct under a federal statute.” Gamble, 139 S. Ct. at 1964. “Or the reverse may happen, as it did [in Gamble]” and as it did here. Id. Willis’s response is to focus on the dissent in Gamble as having the better argument. But Gamble remains the controlling law and we will “appl[y] [this] precedent without qualm or quibble.” Id. at 1967. Willis’s collateral-estoppel claim fails for the same reason. The Constitution’s protection against double jeopardy embodies the principle of collateral estoppel, which provides “that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” Ashe v. Swenson, 397 U.S. 436 , 443 (1970). In this case, however, Willis’s state and federal prosecutions involve different parties. Because two sovereigns are permitted to prosecute Willis for the same offense, Gamble, 139 S. Ct. at 1964 , “it would be anomalous indeed” if the United States were denied the “lesser power of proving the underlying facts of such offenses.” United States v. Tirrell, 120 F.3d 670 , 676 (7th Cir. 1997); see also United States v. Kummer, 15 F.3d 1455 , 1461 (8th Cir. 1994) (“The collateral estoppel and res judicata doctrines do not apply when different sovereigns and, thus, different parties are involved in criminal litigation.”) (internal citations omitted); United States v. Douglas, 336 F. App’x 11, 14 (2d Cir. 2009) (“Pursuant to the ‘dual sovereign’ doctrine, neither double jeopardy nor collateral estoppel precluded the federal government from bringing charges based on the same events that inspired the state law charges for which Douglas was previously tried and acquitted.”) (citing Heath v. Alabama, 474 U.S. 82 , 88–89 (1985)).  No. 20-5229 United States v. Willis Page 5 3. The “sham-prosecution” exception does not apply Willis, however, invokes the “sham prosecution” exception to the dual-sovereignty doctrine. The Supreme Court suggested this exception to the dual-sovereign doctrine when it noted in dicta that [the record] does not support the claim that the State of Illinois in bringing its prosecution was merely a tool of the federal authorities, who thereby avoided the prohibition of the Fifth Amendment against a retrial of a federal prosecution after an acquittal. It does not sustain a conclusion that the state prosecution was a sham and a cover for a federal prosecution, and thereby in essential fact another federal prosecution. Bartkus v. Illinois, 359 U.S. 121 , 123–24 (1959). We have recognized that “the Bartkus sham- prosecution exception is a narrow one and, so far as this circuit is concerned, it is an exception that has yet to affect the outcome of a single case.” United States v. Djoumessi, 538 F.3d 547 , 550 (6th Cir. 2008). Willis falls far short of meeting this narrow exception. He has not made the “startling showing” that the “Federal Government was ‘merely a tool’ of the State of [Kentucky] in undertaking this prosecution, somehow ceding its sovereign authority to prosecute and acting only because the State told it to do so.” Id. (quoting Bartkus, 359 U.S. at 123 ). Although Willis asserts that the “federal prosecution is a reaction to the favorable verdict he received in state court”, he offers no evidence to support such speculation. Nor does Willis offer any evidence tending to show that the federal prosecution was a tool of, or a cover for, the Commonwealth’s prosecution. Moreover, Willis’s argument falls well outside the scope of the sham-prosecution exception. The exception addresses the concern that one sovereign might “sidestep the constraints of the Double Jeopardy Clause through a ‘sham’ prosecution by an ostensibly different sovereign.” Djoumessi, 538 F.3d at 550 . In this case, however, there were no constraints for the Commonwealth to sidestep. The state trial court severed the handgun charge before trial, leaving the Commonwealth free to pursue that charge after the trial concluded. Because the Double Jeopardy Clause did not bar the Commonwealth’s later prosecution of the  No. 20-5229 United States v. Willis Page 6 handgun charge, any contention that the federal prosecution was “merely a tool” of the State, allowing the State to circumvent the strictures against double jeopardy, is without merit. III. CONCLUSION For all of the reasons set forth above, we DISMISS Willis’s appeal for lack of appellate jurisdiction.

2020-12-01 16:00:30.601442+00

http://www.opn.ca6.uscourts.gov/opinions.pdf/20a0678n-06.pdf

NOT RECOMMENDED FOR PUBLICATION File Name: 20a0678n.06 No. 20-5206 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Dec 01, 2020 DEBORAH S. HUNT, Clerk ) UNITED STATES OF AMERICA, ) ) ON APPEAL FROM THE Plaintiff–Appellee, ) UNITED STATES DISTRICT ) COURT FOR THE MIDDLE v. ) DISTRICT OF TENNESSEE ) JAMES SHERRILL, ) ) OPINION Defendant–Appellant. ) ) Before: MOORE, GILMAN, and GRIFFIN, Circuit Judges. KAREN NELSON MOORE, Circuit Judge. James Sherrill, a pretrial detainee with drug-induced psychosis, appeals the district court’s order granting the government’s motion for involuntary medication to restore his competency for trial. For the reasons set forth in this opinion, we AFFIRM the district court’s order to medicate Sherrill involuntarily. I. BACKGROUND In June 2017, the government indicted Sherrill for one count of conspiracy to distribute Oxycodone and methamphetamine, in violation of 21 U.S.C. § 846 ; one count of distribution of Oxycodone, in violation of 21 U.S.C. § 841 (a)(1); and three counts of distribution of five grams or more of methamphetamine, in violation of 21 U.S.C. § 841 (a)(1). R. 8 (Indictment at 1–4) (Page ID #14–17). Sherrill’s charges arose from three sales of illegal drugs to a confidential source. See id.; R. 3 (Compl. at 3–6) (Page ID #7–9). No. 20- 5206, United States v. Sherrill In an order dated August 14, 2017, the district court directed a psychiatric or psychological evaluation of Sherrill to determine whether he was competent to stand trial. R. 28 (Order for Psychiatric or Psych. Evaluation of Def. at 1) (Page ID #96). The district judge then entered an order requiring that Sherrill be committed to the Attorney General’s custody for evaluation at a suitable facility. R. 35 (Order) (Page ID #109). Dr. Jeremiah Dwyer, Ph.D., a forensic psychologist employed by the Federal Bureau of Prisons (“BOP”), diagnosed Sherrill with substance-induced psychotic disorder, substance use disorder, and potentially antisocial personality disorder, and concluded that he “does suffer from a mental disorder that significantly impairs his present ability to understand the nature and consequences of the court proceedings against him.” R. 45 (Dwyer Psychiatric Evaluation at 8, 16) (Page ID #130, 138). After the district court reviewed the government’s competency evaluation and conducted a competency hearing, it determined that Sherrill was not competent to stand trial and committed him to the Attorney General’s custody to determine if the BOP could render Sherrill competent. R. 48 (Order Committing the Def.) (Page ID #141–42). The BOP transferred him to the Mental Health Unit of Federal Medical Center-Butner (“FMC-Butner”) for evaluation. R. 54 (Letter from Warden J.C. Holland at 1) (Page ID #152). On August 9, 2018, the Warden of FMC-Butner filed a certificate, pursuant to 18 U.S.C. § 4241 (d), stating that the center had found that Sherrill was not competent to stand trial. R. 60 (Letter from Warden) (Page ID #184). Dr. Adeirdre Stribling Riley, a forensic psychologist at FMC-Butner, diagnosed Sherrill with inhalant use disorder, stimulant use disorder, inhalant- induced psychotic disorder, amphetamine-induced psychotic disorder, and antisocial personality disorder. Id. (Riley Report at 12) (Page ID #195). Her report stated that Sherrill’s “symptoms of 2 No. 20- 5206, United States v. Sherrill psychosis, clairvoyance, and personality disturbance” would impair “his rational understanding and ability to assist in his defense.” Id. at 19 (Page ID #202). Despite Sherrill’s significant mental health conditions and substance abuse history, she concluded that “there is a substantial likelihood that Mr. Sherrill may improve to such an extent his competency to proceed may be improved in the foreseeable future with medication treatment.” Id. Throughout this case, Sherrill has refused to take the recommended antipsychotic medication for his mental health conditions. R. 121 (Sell Hr’g Tr. at 30) (Page ID #399). Much of Sherrill’s reticence to take medication stems from his prior negative experiences with medication. When he was administered fluoxetine (Prozac) in 2002 or 2003, he reported that “he perceived [taking the medication] as them poisoning him and said that as a result of taking the Prozac, he was forced to pull out his toenails and his fingernails.” Id. at 8 (Page ID #377); see also R. 45 (Dwyer Forensic Evaluation at 5) (Page ID #128); R. 60 (Riley Psychiatric Rep. at 4) (Page ID #187) (reporting that Prozac “damn near killed me”). He also cited negative experiences that his family has had with psychiatric medication. He reported that his mother was previously hospitalized for mental health concerns and treated with medication, and “that after the medication, she went crazy.” R. 121 (Sell Hr’g Tr. at 8) (Page ID #377). After his uncle began taking medication, Sherrill stated that his uncle “went crazy.” Id. Sherrill also refuses to take medication because he does not believe that he has a mental illness. Id. at 90–91 (Page ID #459–60); see also R. 45 (Dwyer Psychiatric Report at 7) (Page ID #129) (reporting that Sherrill has “denied any current or past mental health concerns”). In light of Sherrill’s continued refusal to take antipsychotic medications, FMC-Butner requested that the district court issue an order permitting involuntary medication of Sherrill to 3 No. 20- 5206, United States v. Sherrill restore his competency. R. 60 (Riley Psychiatric Rep. at 18–20) (Page ID #201–03). The government subsequently filed a Motion for Involuntary Medication to restore Sherrill to competency. R. 62 (Mot. for Involuntary Medication to Restore Def. to Competency) (Page ID #206–07). Upon the government’s Motion for Involuntary Medication, the district court conducted a Sell hearing.1 The government submitted the testimony and written reports of Dr. Logan Graddy, the chief psychiatrist at FMC-Butner, R. 70 (Graddy Forensic Addendum & Treatment Plan) (Page ID #221–225); R. 70-1 (Sell App.) (Page ID #226–237), and Dr. Adeirdre Stribling Riley, a forensic psychologist at FMC-Butner, R. 60 (Riley Psychiatric Rep.) (Page ID #184–203). In opposition to the government’s Motion for Involuntary Medication, Sherrill relied on the written report and testimony of Dr. Lyn McRainey, a psychologist, R. 87-1 (Forensic Evaluation Rep.) (Page ID #274–81), and the written report of Dr. Stephen Montgomery, the Director of Vanderbilt University’s Forensic Psychiatry group, R. 96-1, (Forensic Evaluation) (Page ID #312–13). Dr. McRainey conducted a four-hour-long evaluation of Sherrill and reviewed his mental health records. R. 87-1 (McRainey Psychological Report at 5) (Page ID #278). She diagnosed Sherrill with drug-induced psychosis and potentially Post-Traumatic Stress Disorder. R. 121 (Sell Hr’g Tr. at 32–33) (Page ID #401–02). She agreed with the other experts that antipsychotic medication would be helpful to Sherrill’s mental health and competency. Id. at 17, 19 (Page ID #386, 388). However, she recommended that the BOP first make “a sincere and intense effort to establish some level of rapport with him” to persuade him to agree to try medication before 1 The hearing is named for Sell v. United States, 539 U.S. 166 (2003), which governs requests to permit involuntary medication of a pretrial detainee when they are not a danger to themselves or others. 4 No. 20- 5206, United States v. Sherrill resorting to involuntary medication. Id. at 10 (Page ID #379); see also R. 87-1 (McRainey Psychological Report at 7) (Page ID #280) (“Mr. Sherrill should be given the opportunity to participate in a therapeutic relationship with a mental health provider who can establish rapport and eventually provide support to Mr. Sherrill regarding issues of medication.”). Building the necessary rapport would require therapeutic sessions two to three times a week, for six months. R. 121 (Sell Hr’g Tr. at 11) (Page ID #380). She contended that forcing a patient to take a medication over their objection could negatively impact the “life effectiveness” or “behavioral expression” of the medication, although she admitted that it would not impact the “chemical effectiveness” of the medication. Id. at 14–16 (Page ID #383–85). Forced medication would only “feed into Mr. Sherrill’s delusions about what we do, what law enforcement does, what the mental health profession does.” Id. at 20 (Page ID #389); see also R. 87-1 (McRainey Psychological Report at 7–8) (Page ID #280–81) (“Given the strength of Mr. Sherrill’s delusions and the force of his refusal, it is difficult to imagine that giving him medication against his will is going to be successful.”). Defendant’s psychiatric expert, Dr. Montgomery, reviewed the reports of experts and Sherrill’s medical records, although he did not personally evaluate Sherrill. R. 96-1 (Forensic Evaluation) (Page ID #312–13). He “concurred with the majority of the evaluators that Mr. Sherrill’s mental health could be improved with antipsychotic medications” and that these medications “will likely enable Mr. Sherrill to be restored to competency to stand trial.” Id. at 1 (Page ID #312). These medications are the “standard treatment” for psychosis and should at least reduce the intensity of Sherrill’s delusions. Id. Dr. Montgomery specifically recommended newer antipsychotic medications, such as aripiprazole (Abilify), because they have fewer side effects 5 No. 20- 5206, United States v. Sherrill than older antipsychotic medications. Id. at 1–2 (Page ID #312–13). Dr. Montgomery did not testify at Sherrill’s Sell hearing, but defense counsel introduced his report into the record. R. 121 (Sell Hr’g Tr. at 36) (Page ID #405). The government’s experts, Dr. Logan Graddy and Dr. Adeirdre Stribling Riley, agreed that medication is necessary to bring Sherrill to competency to stand trial and treat his underlying mental illness. Dr. Riley testified that “antipsychotic medication is the standard treatment for psychotic disorder.” R. 121 at 56 (Page ID #425). According to Dr. Riley and Dr. Graddy, there is a high likelihood that Sherrill would be restored to competency with medication. Id. at 55 (Page ID #424). Dr. Logan Graddy, a psychiatrist, described the medication they were considering prescribing to Sherrill and its side effects. His preference was to treat Sherrill with haloperidol (Haldol), an antipsychotic medication. Id. at 109 (Page ID #478); R. 70 (Graddy Forensic Add. & Treatment Plan at 5) (Page ID #225). He chose this medication because it is well-studied and better tolerated than other antipsychotic medications. R. 121 (Sell Hr’g Tr. at 109–12) (Page ID #478–81). Practically, Haldol also has a short-acting injectable formulation, which would allow the facility to ensure that the medication does not cause any serious side effects before placing Sherrill on a long-lasting formulation. Id. at 108 (Page ID #477). Dr. Graddy acknowledged that antipsychotic medication can have severe, even fatal, side effects, such as sudden death from heart arrhythmias and neuroleptic malignant syndrome, but he noted that these side effects are exceedingly rare. Id. at 117–18 (Page ID #486–87). Other serious side effects, such as diabetes, high cholesterol, high blood pressure, and neuromuscular conditions are uncommon, and Dr. Graddy assured the district court that the facility will monitor Sherrill for these side effects and 6 No. 20- 5206, United States v. Sherrill change the medication type or dosage or provide adjuvant medication if necessary. Id. at 121 (Page ID #490) (describing the metabolic side effects of medication); id. at 143–51 (Page ID #512– 20) (describing potential neuromuscular side effects); R. 70-1 (Sell App. at 4–7) (Page ID #229– 32) (describing antipsychotic medication’s side effects). Both Dr. Graddy and Dr. Riley testified that therapy alone would not improve Sherrill’s mental illness and competency, although therapy could be a helpful adjuvant to medication. Dr. Riley focused on illness management and recovery programs, which are an evidence-based form of therapy for persons with severe mental illnesses. R. 121 (Sell Hr’g Tr. at 48) (Page ID #417). Dr. Riley testified that she had offered to place Sherrill in an illness management and recovery program, but he refused this intervention. Id. at 49–50 (Page ID #418–19). Further, she believed that an illness management and recovery program without medication would not be effective in Sherrill’s case, because the program requires that participants have “some understanding that they have a mental illness and that they need treatment,” and that they have adequate treatment of symptoms to participate actively in treatment. Id. at 50 (Page ID #419). Dr. Graddy also concluded that “alternative, less intrusive treatments are unlikely to achieve substantially the same results as involuntary medication.” R. 70 (Graddy Forensic Addendum & Treatment Plan at 4) (Page ID #224). After the district court conducted its Sell hearing, it granted the government’s Motion for Involuntary Medication. United States v. Sherrill, 439 F. Supp. 3d 1007 , 1019 (M.D. Tenn. 2020). Sherrill timely appeals this order. R. 135 (Notice of Appeal) (Page ID #720–21); R. 136 (Corrected Notice of Appeal) (Page ID #722–23). The district court entered a stay of its order pending our resolution of his appeal. R. 134 (Order) (Page ID #718–19). We have jurisdiction over Sherrill’s 7 No. 20- 5206, United States v. Sherrill appeal under the collateral-order doctrine. Sell, 539 U.S. at 176 (citing Coopers & Lybrand v. Livesay, 437 U.S. 463 , 468 (1978)). II. ANALYSIS In Sell v. United States, 539 U.S. 166 (2003), the Supreme Court approved the involuntary medication of pretrial detainees to restore competency in limited circumstances. The Supreme Court listed four factors that the district court must find in order to grant an order to permit involuntary medication: (1) “important governmental interests are at stake”; (2) “involuntary medication will significantly further those concomitant state interests”; (3) “involuntary medication is necessary to further those interests”; and (4) “administration of the drugs is medically appropriate, i.e., in the patient’s best medical interest in light of his medical condition.” Id. at 180–81. This framework recognizes that “[a]n individual has a constitutionally protected liberty interest in avoiding the unwanted administration of medication, and the Government may not deprive him of this liberty without an essential or overriding interest in doing so.” United States v. Mikulich, 732 F.3d 692 , 696 (6th Cir. 2013). We approach this issue of involuntary medication with consciousness of defendants’ “significant liberty interest in avoiding the unwanted administration of antipsychotic drugs.” Washington v. Harper, 494 U.S. 210 , 221 (1990). “The drastic step of administering these powerful drugs to an unwilling criminal defendant should be taken rarely, and only when absolutely necessary to fulfill an important governmental interest . . . .” United States v. Berry, 911 F.3d 354 , 357 (6th Cir. 2018). On appeal, we review de novo the district court’s determination that important governmental interests are at stake. Id. at 360 . The remaining three factors involve factual 8 No. 20- 5206, United States v. Sherrill findings, so we review the district court’s determination under the clear-error standard. United States v. Green, 532 F.3d 538 , 552 (6th Cir. 2008). WE AFFIRM the district court’s order because it did not err in concluding that the government has adequately proven all four Sell factors. A. Important Governmental Interest The district court did not err in concluding that the government had an important governmental interest in prosecuting Sherrill because any special circumstances present in Sherrill’s case do not outweigh the length of his potential sentences. We first consider the seriousness of the crime, and then turn to whether any special circumstances mitigate its seriousness. Berry, 911 F.3d at 361. 1. Seriousness of the Charged Crime When determining whether a crime involves sufficiently important government interests, we “look[] to the maximum penalty authorized by statute.” Mikulich, 732 F.3d at 696. Our emphasis on the maximum possible penalty reflects that it is the “most objective means of determining the seriousness of a crime.” Green, 532 F.3d at 549 . Sherrill potentially faces substantial mandatory sentences: conspiracy to distribute Oxycodone and methamphetamine, 21 U.S.C. § 846 , carries a maximum potential sentence of life imprisonment and a mandatory minimum sentence of ten years’ imprisonment; distribution of Oxycodone, 21 U.S.C. § 841 (a)(1), carries a maximum penalty of twenty years’ imprisonment; and distribution of 5 grams or more of methamphetamine, 21 U.S.C. § 841 (a)(1), carries a maximum penalty of forty years’ imprisonment and a mandatory minimum sentence of five years’ imprisonment. “[W]e have not set a numeric threshold at which a crime may be deemed 9 No. 20- 5206, United States v. Sherrill ‘serious’ . . . .” Mikulich, 732 F.3d at 697. In Mikulich and Green, however, we held that a maximum potential sentence of life imprisonment was sufficiently serious. Id.; Green, 532 F.3d at 549 (noting that the maximum penalty of life imprisonment and mandatory-minimum sentence of ten years’ imprisonment “represent a decision by the legislature that possession of crack cocaine with the intent to distribute is a ‘serious’ crime warranting a serious punishment”); cf. Berry, 911 F.3d at 362 (declining to determine whether a five-year maximum sentence is per se serious enough to warrant involuntary medication). Sherrill’s potential lengthy sentences, coupled with the potential mandatory-minimum sentences, support the district court’s conclusion that his offenses are sufficiently serious. 2. Mitigating Circumstances In addition to the seriousness of the crime, we must consider “[s]pecial circumstances” in a defendant’s case that may undercut the government’s interest. Sell, 539 U.S. at 180 . “No single [mitigating] factor necessarily controls this analysis.” Mikulich, 732 F.3d at 697. The defendant bears the burden of proving that special circumstances exist. Id. at 699 (“[W]e look to the defendant to demonstrate that the special circumstances of his case undermine the Government’s interest once it is established that he stands accused of a serious crime.”). Sherrill cites four special circumstances that weigh against finding an important governmental interest: his offenses are non-violent, he is not a threat to himself or others, he was not arrested until after the government engaged in multiple controlled buys, and he is likely to be civilly committed if not prosecuted. Def.’s Br. at 29–34. We agree with the district court that these special circumstances do not undercut the government’s important interest in prosecuting him. 10 No. 20- 5206, United States v. Sherrill First, he argues that his crimes are non-violent drug offenses, and that their non-violent character undermines the government’s interest. Id. at 30. The district court concluded that possession of Oxycodone and methamphetamine with intent to distribute is a serious crime. Sherrill, 439 F. Supp. 3d at 1014. In support, the district court cited Green, 532 F.3d at 548–49, in which we held that the distribution of crack cocaine was a serious crime for the purpose of Sell. Sherrill, 439 F. Supp. 3d at 1014. In fact, as we mentioned in Green, the Supreme Court in Sell listed fraud as an example of a serious offense. Green, 532 F.3d at 548 (citing Sell, 539 U.S. at 180 ). But see Berry, 911 F.3d at 364 (noting that defendant’s making a false report of explosives and planting a fake bomb outside a bank were non-violent crimes militating against an important government interest for the purposes of Sell). Second, Sherrill notes that none of the experts concluded that he was a threat to himself or others. Def.’s Br. at 31. In Berry, we emphasized that the “uncontested evidence that in his current setting he poses no appreciable risk to himself or others undercuts the governmental interest necessary to medicate him.” 911 F.3d at 365. Although this factor weighs in Sherrill’s favor, it does not on its own overcome the seriousness of his offense. See id. at 366 (observing that “[n]o factor on its own outweighs the governmental interest”). Third, Sherrill advances a novel theory that his charges are not serious because the government engaged in multiple controlled buys over three months before it arrested him. Def.’s Br. at 31–33. Sherrill also notes that the lengthy potential sentences for his case stem from the government’s decision to arrest him only after he had participated in multiple controlled buys. Id. at 32. To begin, Sherrill’s argument fails because we have already considered drug-distribution offenses to be serious crimes. Green, 532 F.3d at 548–49. Moreover, his argument approaches 11 No. 20- 5206, United States v. Sherrill the theory of sentencing entrapment, which we have not adopted. See United States v. Hammadi, 737 F.3d 1043 , 1048 (6th Cir. 2013) (collecting cases); see also R. 121 (Sell Hr’g Tr. at 194–95) (Page ID #563–64) (noting that Sherrill raises a “sentencing/entrapment-type” argument as a special circumstance). Sherrill’s argument lacks support. In Green, we concluded that the defendant’s charges for drug distribution were serious even when the defendant sold the illegal drugs to a confidential informant. 532 F.3d at 549 . Fourth, Sherrill argues that the government does not have an important interest in forcibly medicating him because he is likely to be civilly confined if not prosecuted. In Sell, the Supreme Court listed the likelihood of civil commitment as a special circumstance because “that would diminish the risks that ordinarily attach to freeing without punishment one who has committed a serious crime.” 539 U.S. at 180 . In addition, in United States v. Grigsby, 712 F.3d 964 , 970–71, 976 (6th Cir. 2013), we reversed a district court’s involuntary medication order because—among other things—the defendant provided extensive evidence that he would likely be civilly confined if not made competent for trial and the district court did not adequately consider whether civil commitment was appropriate. Sherrill points to Dr. Riley’s conclusion that Sherrill has drug-induced psychosis and that “in the community, it is quite likely that he would continue to use substances, as he has stated through many clinical interviews.” R. 121 (Sell Hr’g Tr. at 43) (Page ID #412). The present case differs from Grigsby, however, because no expert has stated that Sherrill would be a candidate for civil commitment. The only reference to civil commitment at Sherrill’s Sell hearing is when defense counsel asked Dr. Graddy if Sherrill would be a candidate for civil commitment. Id. at 173–75) (Page ID #542–44.) Dr. Graddy responded that he was unable to give an opinion on civil 12 No. 20- 5206, United States v. Sherrill commitment. Id. at 173 (Page ID #542). Although “a defendant is not required to manifest an absolute certainty of future civil confinement in order to undermine the Government[’]s interest in prosecution,” “‘the government’s interest in prosecution is not diminished if the likelihood of civil commitment is uncertain.’” Mikulich, 732 F.3d at 699 (quoting United States v. Gutierrez, 704 F.3d 442 , 450 (5th Cir. 2013)). In the present case, the district court correctly concluded that “Sherrill’s likelihood for [civil] commitment is far too speculative to diminish the government’s interest in prosecution.” Sherrill, 439 F. Supp. 3d at 1015. Any mitigating special circumstances present in Sherrill’s case do not outweigh the seriousness of his offenses. Therefore, the government has an important interest in prosecuting Sherrill. B. Medication Will Significantly Further the Government’s Interest The district court did not clearly err in determining that antipsychotic medication would significantly further the government’s interest. In analyzing this factor, we “require[] proof both that administration of the medication is substantially likely to render the defendant competent to stand trial and is substantially unlikely to cause side effects that will interfere significantly with the defendant’s ability to assist counsel in conducting the trial defense.” Grigsby, 712 F.3d at 969. The government has provided adequate evidence that administration of antipsychotic medication is substantially likely to make Sherrill competent to stand trial. In his report, Dr. Graddy stated that in his “opinion, with reasonable medical certainty, involuntary medications are substantially likely to render Mr. Sherrill competent to stand trial.” R. 70 (Graddy Forensic Addendum & Treatment Plan at 4) (Page ID #224). He repeated this conclusion at Sherrill’s Sell hearing. R. 121 (Sell Hr’g Tr. at 123) (Page ID #492). 13 No. 20- 5206, United States v. Sherrill Sherrill does not challenge the government experts’ conclusions. Dr. Montgomery, the defendant’s expert psychiatrist, stated in his report that medication “will likely enable Mr. Sherrill to be restored to competency to stand trial.” R. 96-1 (Montgomery Forensic Eval. at 1) (Page ID #312). In response to the government’s questioning at Sherrill’s Sell hearing, Dr. McRainey admitted that that she did not disagree with Dr. Montgomery’s conclusion. R. 121 (Sell Hr’g Tr. at 19) (Page ID #388). Medication may reduce the “intensity and fixation” of Sherrill’s delusions and “allow the defendant to allow himself to focus on other issues without being consumed by his delusional beliefs.” Id. Even Sherrill acknowledges that medication is likely to return him to competency. Def.’s Br. at 34. We next consider whether the side effects may impair Sherrill’s ability to participate in his defense. Dr. Graddy testified to the side effects of potential medications and addressed them in his Sell Appendix. The side effects of the potential antipsychotic medications, although not trivial, are unlikely to impair his ability to participate in his defense. R. 121 (Sell Hr’g Tr. at 124) (Page ID #493). Sherrill does not challenge the impact of the antipsychotic medications on his competency to stand trial, but instead focuses on their impact on his general health. Def.’s Br. at 35. He criticizes Dr. Graddy’s testimony as “not credible” because Dr. Graddy “was able to give a medical opinion on the un-likelihood of potential future medical side effects for Appellant, but could not give an opinion on future medical civil commitment possibilities.” Id. at 36 (citing R. 121 (Sell Hr’g Tr. at 173, 192) (Page ID #542, 561)). The district court did not clearly err in concluding that the government had proven that antipsychotic medication would significantly further Sherrill’s ability to participate in his defense. 14 No. 20- 5206, United States v. Sherrill Dr. Graddy stated that the antipsychotic medication that he was considering for Sherrill would not significantly impair his ability to participate in his defense, but rather would “substantially likely” render him competent to stand trial. R. 70 (Graddy Forensic Addendum & Treatment Plan at 4) (Page ID #224). Sherrill’s experts did not provide any evidence to the contrary.2 Further, the district court included restrictions in its order to guard against the risk of potential side effects. Sherrill, 439 F. Supp. 3d at 1019. The safeguards detailed in the order include requiring that the psychiatrist prescribe the lowest effective dose, submit a report to the district court describing the first administration of the medication and any side effects Sherrill might experience, and provide the court with more detailed reports 60 and 120 days after Sherrill receives a copy of the order. R. 131 (Involuntary Medication Order at 2, 6) (Page ID #709, 713). C. Involuntary Medication Is Necessary to Further the Government’s Interest In the present case, neither the government’s experts nor Sherrill’s experts indicated that non-pharmaceutical therapies are an adequate replacement for medication. Dr. McRainey, Sherrill’s expert psychologist, testified that medication is necessary to treat Sherrill’s mental health conditions and restore his competency, although she believed that it would be more effective if Sherrill agreed to take the medication. R. 121 (Sell Hr’g Tr. at 10–11) (Page ID #379–80). Dr. Riley, the government’s expert psychologist, discussed a potential non-pharmaceutical treatment, an illness management and recovery program, but concluded that the program would be ineffective 2 In Grigsby, the defendant raised concerns that antipsychotic medication would impact his ability to assist in his own defense because neuromuscular side effects would “impair his ability to maintain a dignified appearance before the jury and would make it difficult for him to assist his counsel or testify in his own behalf.” 712 F.3d at 975. We concluded that the government had failed to show that the antipsychotic medications are substantially unlikely to interfere with Grigsby’s ability to participate in his defense. Id. Neither Sherrill nor his experts have raised this issue here. 15 No. 20- 5206, United States v. Sherrill without the assistance of antipsychotic medication. Id. at 87–89 (Page ID #456–58). Moreover, Sherrill has refused to participate in the illness management and recovery program or other therapy. Id. at 49–50 (Page ID #418–19). The expert testimony and reports in Sherrill’s case all support the district court’s conclusion that medication is necessary to restore Sherrill to competency. Therefore, we conclude that the district court did not clearly err in finding medication was necessary to restore Sherrill to competency. D. Involuntary Medication is Medically Indicated The fourth Sell factor requires that the district court “conclude that administration of the drugs is medically appropriate, i.e., in the patient’s best medical interest in light of his medical condition.” Sell, 539 U.S. at 181 . For this factor, “[t]he specific kinds of drugs at issue may matter,” because “[d]ifferent kinds of antipsychotic drugs may produce different side effects and enjoy different levels of success.” Id. The district court did not clearly err when it concluded that antipsychotic medication was medically indicated for Sherrill’s mental health conditions. Sherrill, 439 F. Supp. 3d at 1018. Dr. Graddy testified that antipsychotic medication is “the only medically appropriate treatment” for Sherrill’s mental health conditions. R. 121 (Sell Hr’g Tr. at 184) (Page ID #553). The district court emphasized that Dr. Graddy submitted an individualized treatment plan for Sherrill, which included beginning any medication with short-lasting, low doses to ensure that it is tolerated and explaining to Sherrill the risks and benefits of different medications and seeking his input. As a result, the district court concluded that antipsychotic medication was medically appropriate for 16 No. 20- 5206, United States v. Sherrill Sherrill. Sherrill, 439 F. Supp. 3d at 1018 (citing R. 70 (Graddy Psychiatric Evaluation 4–5) (Page ID #224–25)). Because no expert has disagreed that medication is medically appropriate for Sherrill, we will not disturb the district court’s finding. III. CONCLUSION For the foregoing reasons, we AFFIRM the district court’s order to medicate Sherrill involuntarily. 17

2020-12-01 16:00:31.471983+00

http://www.opn.ca6.uscourts.gov/opinions.pdf/20a0677n-06.pdf

NOT RECOMMENDED FOR PUBLICATION File Name: 20a0677n.06 No. 20-3367 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED ) Dec 01, 2020 UNITED STATES OF AMERICA, DEBORAH S. HUNT, Clerk ) ) Plaintiff-Appellee, ) ON APPEAL FROM THE ) v. UNITED STATES DISTRICT ) COURT FOR THE ) ANTHONY HAYNE, NORTHERN DISTRICT OF ) OHIO ) Defendant-Appellant. ) BEFORE: SUHRHEINRICH, McKEAGUE, and READLER, Circuit Judges. SUHRHEINRICH, Circuit Judge. After attempting to blow up the Brecksville-Northfield High Level Bridge (“Route 82 Bridge”) near Cleveland, Ohio with an improvised explosive device, Anthony Hayne and his four coconspirators were charged on May 3, 2012, with conspiring to use weapons of mass destruction, in violation of 18 U.S.C. §§ 2332a(a)(2)(B) and (D); attempting to use weapons of mass destruction, in violation of 18 U.S.C. § 2332a(a)(2)(B) and (D) and 18 U.S.C. § 2 ; and attempting to damage or destroy property used in interstate commerce by means of explosives, in violation of 18 U.S.C. § 844 (i) and 18 U.S.C. § 2 . Hayne pleaded guilty to all three charges pursuant to a plea agreement. On November 30, 2012, the district court sentenced Hayne to 72 months of imprisonment to be followed by a lifetime period of supervised release, pursuant to 18 U.S.C. §§ 3583 (j) and 2332b(g)(5)(B). The district court felt that a “period of supervised release for life will likely persuade the defendant to resist any temptation for additional criminal conduct.” No. 20-3367, United States v. Hayne This court affirmed the district court’s application of the 12-level terrorist enhancement under USSG § 3A1.4 (which put Hayne in criminal history category VI). Section 3A1.4 applies to “a felony that involved, or was intended to promote, a federal crime of terrorism,” as defined in 18 U.S.C. § 2332b(g)(5). See USSG § 3A1.4(a) & cmt. n.1. We explained that: Section 2332b(g)(5) sets forth two requirements for an offense to be considered a federal crime of terrorism: first, the offense must be “calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct,” and second, the underlying act must be included within an enumerated list of eligible offenses. This list includes violations of 18 U.S.C. § 844 (i) (arson and bombing of property used in interstate commerce) and § 2332a (use of weapons of mass destruction). United States v. Wright, 747 F.3d 399 , 407 (6th Cir. 2014) (citing 18 U.S.C. § 2332b(g)(5)(B)(i)). Because “[t]he defendants d[id] not dispute that they were charged with offenses making them eligible for the terrorism enhancement,” we turned to their challenge “that the government ha[d] not met its burden of showing that they intended ‘to influence or affect the conduct of government’ or ‘retaliate against government conduct.’” Id. at 408. We then held that the phrase “calculated to influence or affect the conduct of [the] government” imposes a specific-intent requirement. Id. A majority concluded that Hayne had the requisite intent. Id. at 418–19. We therefore affirmed Hayne’s sentence. Id. at 419. We did not overtly address whether the district court was authorized to impose a lifetime term of supervised release based on the charges of conviction. However, in rejecting a codefendant’s argument challenging the reasonableness of his lifetime supervision sentence, we noted that under § 3583(j), “[t]he authorized term of supervised release for any offense listed in section 2332b(g)(5)(B) is any term of years or life,” and that USSG § 5D1.2(b)(1) “authoriz[es] [a] term of supervised release ‘up to life’ for ‘any offense listed in 18 U.S.C. § 2332b(g)(5)(B)’”. Id. at 416. -2- No. 20-3367, United States v. Hayne After being released from prison in July 2017, and while under supervision, Hayne violated the terms of his supervised release by testing positive for cocaine use, failing to attend cognitive behavioral therapy, and failing to attend mental health counseling. These behaviors prompted the district court to revoke Hayne’s supervised release on March 28, 2019, and sentence him to four months of incarceration, and further order that, upon release Hayne “continue[] on” the lifetime supervision imposed at sentencing. After the four-month stint and back on supervised release, Hayne repeatedly violated the terms of his supervised release and was arrested again on November 13, 2019. He also failed to contact law enforcement about an outstanding state court warrant charging him with Felony-Three Domestic Violence, a charge to which he later pleaded guilty. On March 23, 2020, the district court sentenced Hayne to 51 months of imprisonment based on Hayne’s admitted violations of the conditions of his supervised release, “to wit: drug and alcohol use and [a] new law violation.” The court further held that the “[l]ifetime term of supervised release remains in effect.” It is this re-imposition of lifetime supervision that Hayne challenges in this appeal. Hayne asserts that the district court was not authorized to re-impose lifetime supervised release because § 3583(j) provides that lifetime supervision is explicitly limited to “terrorism” violations under § 2332b (“relating to acts of terrorism transcending national boundaries”), and he pleaded guilty to § 2332a (“relating to use of weapons of mass destruction”) (emphases added). He therefore claims that the district court erred in re-imposing a term of supervised release that lacked a legal basis from the outset. We disagree and affirm the judgment of the district court. As we explained in Wright, § 3583(j) provides that “[t]he authorized term of supervised release for any offense listed in section 2332b(g)(5)(B) is any term of years or life.” Wright, -3- No. 20-3367, United States v. Hayne 747 F.3d at 416 Section 844(i) “[offenses] relating to arson and bombing of property used in interstate commerce” and § 2332a “[offenses] relating to use of weapons of mass destruction” are listed in § 2332b(g)(5)(B). The district court therefore was clearly authorized to impose a lifetime term of supervised release for all three of Hayne’s underlying convictions under the plain language of § 3583(j). And it had the authority to re-impose lifetime supervised release after Hayne’s 51-month term of imprisonment ended because § 3583(h) allows a court to: include a requirement that the defendant be placed on a term of supervised release after imprisonment . . . not [to] exceed the term of supervised release authorized by statute for the offense that resulted in the original term of supervised release, less any term of imprisonment imposed for the supervision violation. 18 U.S.C. § 3583 (h). Because the underlying statutes of conviction qualify for lifetime supervision, the district court did not err in re-imposing the same lifetime term for Hayne’s supervision violation. Hayne asks us to apply the rule of lenity. That doctrine has sway when a criminal statute is ambiguous. See United States v. Boucha, 236 F.3d 768 , 774 (6th Cir. 2001). The one at issue is not. Section 3583(j) clearly authorizes any term of supervised release, including a lifetime term, for all crimes listed in § 2332b(g)(5)(B). Hayne’s claim that § 3583(j) covers only those listed in § 2332b(a) is incorrect. In short, this appeal is without merit. We AFFIRM. -4-

2020-12-01 16:00:32.388236+00

http://www.opn.ca6.uscourts.gov/opinions.pdf/20a0373p-06.pdf

RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 20a0373p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT ┐ UNITED STATES OF AMERICA ex rel. GURPREET MAUR, │ M.D., │ Plaintiff-Appellant, │ v. │ > No. 20-5301 │ ELIE HAGE-KORBAN; DELTA CLINICS, PLC, dba The │ Heart and Vascular Center of West Tennessee; │ KNOXVILLE HMA HOLDINGS, LLC, dba Tennova │ Healthcare; JACKSON HOSPITAL CORPORATION, dba │ Regional Hospital of Jackson; DYERSBURG HOSPITAL │ COMPANY, LLC, dba Dyersburg Regional Medical │ Center, │ Defendants-Appellees. │ ┘ Appeal from the United States District Court for the Western District of Tennessee at Jackson. No. 1:17-cv-01079—S. Thomas Anderson, District Judge. Argued: October 7, 2020 Decided and Filed: December 1, 2020 Before: SILER, SUTTON, and LARSEN, Circuit Judges. _________________ COUNSEL ARGUED: Shelby Serig, MORGAN & MORGAN P.A., Jacksonville, Florida, for Appellant. Jeffrey Scott Newton, BAKER DONELSON BEARMAN CALDWELL & BERKOWITZ, PC, Jackson, Mississippi, for Appellees Elie Hage-Korban and Delta Clinics. Brian D. Roark, BASS, BERRY & SIMS PLC, Nashville, Tennessee, for Appellees Knoxville HMA Holdings and Dyersburg Hospital Company. ON BRIEF: Shelby Serig, MORGAN & MORGAN P.A., Jacksonville, Florida, for Appellant. Jeffrey Scott Newton, Micahel Thomas Dawkins, Joseph Lott Warren, BAKER DONELSON BEARMAN CALDWELL & BERKOWITZ, PC, Jackson, Mississippi, for Appellees Elie Hage-Korban and Delta Clinics. Brian D. Roark, BASS, BERRY & SIMS PLC, Nashville, Tennessee, for Appellees Knoxville HMA Holdings and Dyersburg  No. 20-5301 United States ex rel. Maur v. Hage-Korban Page 2 Hospital Company. David J. Chizewer, GOLDBERG KOHN LTD., Chicago, Illinois, for Amicus Curiae. _________________ OPINION _________________ LARSEN, Circuit Judge. In this qui tam action, Dr. Gurpreet Maur accuses Dr. Elie Hage-Korban (“Korban”) of submitting false claims to Medicare for unnecessary cardiac testing and procedures, in alleged violation of the False Claims Act (FCA). See 31 U.S.C. § 3729 (a)(1)(A)–(C), (G). The district court dismissed Maur’s complaint pursuant to the FCA’s public-disclosure bar, 31 U.S.C. § 3730 (e)(4). Because we conclude Maur’s allegations are “substantially the same” as those exposed in a prior qui tam action and Maur is not an “original source” as defined in the FCA, we AFFIRM the district court’s dismissal. I. Dr. Korban, along with his medical practice Delta Clinics, is engaged in the private practice of diagnostic and interventional cardiology. This is not the first time he has been accused of this alleged scheme to defraud the government. A. In June 2007, Dr. Wood Deming filed a qui tam action (the “Deming action”) under the FCA against two of the defendants in this case—Korban and Regional Hospital of Jackson (“Jackson Regional”)—as well as other Tennessee hospitals where Korban performed cardiac procedures. See United States ex rel. Deming v. Jackson-Madison Cnty. Gen. Hosp., No. 1:07-cv-01116-SHL-egb (W.D. Tenn. June 13, 2007). In essence, Deming charged the defendants with submitting fraudulent claims to federal government insurance programs by “ignor[ing] blatant overutilization of cardiac medical services . . . by Korban.” The United States intervened in the Deming action and ultimately settled the case for cardiac procedures performed between 2004 and 2012.  No. 20-5301 United States ex rel. Maur v. Hage-Korban Page 3 Two of those settlements are pertinent here. First, as a condition of his settlement, Korban entered into an Integrity Agreement (the “Korban IA”) with the Office of Inspector General for the United States Department of Health and Human Services (the “Inspector General”). The Korban IA was in effect from November 13, 2013 through November 13, 2016 and was publicly available on the Inspector General’s website during that time. It required Korban to engage an Independent Review Organization to monitor “[c]oding, billing, and claims submission to all Federal health care programs by or on behalf of Korban, and reimbursement records for cardiology items.” The Korban IA further called for the Organization to conduct a review of “[c]ardiac procedures including interventional cardiac procedures . . . performed by Korban” and to “evaluate and analyze the medical necessity and appropriateness” of those procedures. It was then to generate quarterly reports of these findings for the Inspector General, who retained ultimate supervisory authority over Korban’s medical practice. The U.S. Department of Justice issued a press release on December 19, 2013 that detailed the exposed fraudulent scheme and outlined the terms of Korban’s settlement. In the second agreement, entered into in July 2015, defendant Jackson Regional agreed to a $510,000 settlement with the Inspector General. The Justice Department and Jackson Regional both issued press releases concerning that settlement too. B. Now to the present allegations. Plaintiff-Relator Dr. Maur is a cardiologist who began working for Korban’s medical practice, Delta Clinics, in 2016. At bottom, he alleges that Korban is “simply up to his old tricks.” Specifically, his complaint lists five examples of “unnecessary angioplasty and stenting” and four examples of “unnecessary cardiology testing” performed by Korban on patients between March and November 2016. Those allegedly unnecessary procedures were paid for in part by Medicare. In his complaint, Maur recognizes that “this exact scheme was previously detailed and exposed in” the Deming action, though the named defendants differ slightly. In addition to Korban and Jackson Regional, Maur has also sued Jackson Regional’s corporate parent (Tennova Healthcare), a second Tennova subsidiary where Maur performed cardiac procedures (Dyersburg Regional Medical Center), and Tennova’s corporate parent (Community Health  No. 20-5301 United States ex rel. Maur v. Hage-Korban Page 4 Systems). He alleges these entities knew or should have known that many of Korban’s procedures were medically unnecessary. C. Maur filed his initial qui tam complaint in April 2017. The United States declined to intervene. The defendants then moved to dismiss, arguing that Maur’s claims could not proceed because of the FCA’s public-disclosure bar, 31 U.S.C. § 3730 (e)(4). The district court agreed. It found that “[a]lthough Maur includes several new Defendants, and describes different specific patient examples, there is not only ‘substantial identity’ between the fraudulent scheme he alleges in his Amended Complaint and the fraudulent scheme that the Deming qui tam action publicly exposed—it is the same fraudulent scheme.” United States ex rel. Maur v. Hage- Korban, No. 1:17-cv-01079-STA-jay, 2020 WL 912753 , at *5 (W.D. Tenn. Feb. 25, 2020). The district court further determined that “Maur is not an original source” as defined in the FCA. Id. Thus, it dismissed Maur’s qui tam action in its entirety. Id. Maur appealed. II. The FCA “prohibits submitting false or fraudulent claims for payment to the United States, [31 U.S.C.] § 3729(a), and authorizes qui tam suits, in which private parties bring civil actions in the Government’s name, § 3730(b)(1).” Schindler Elevator Corp. v. United States ex rel. Kirk, 563 U.S. 401 , 404 (2011). The Act encourages relators “to act as private attorneys- general in bringing suits for the common good,” United States ex rel. Poteet v. Medtronic, Inc., 552 F.3d 503 , 507 (6th Cir. 2009) (internal quotation mark omitted), and provides often-lucrative incentives to do so. If the government proceeds with the action, the qui tam plaintiff is entitled to “at least 15 percent but not more than 25 percent of the proceeds of the action or settlement of the claim.” 31 U.S.C. § 3730 (d)(1). If the government chooses not to intervene, the qui tam plaintiff can recover even more—“not less than 25 percent and not more than 30 percent” of the same. Id. § 3730(d)(2). To guard against potential “parasitic lawsuits” and “opportunistic plaintiffs,” Congress included a public-disclosure bar in the FCA. Poteet, 552 F.3d at 507 (citation omitted); see 31 U.S.C. § 3730 (e)(4)(A). That provision “bars qui tam actions that merely feed off prior public  No. 20-5301 United States ex rel. Maur v. Hage-Korban Page 5 disclosures of fraud.” United States ex rel. Holloway v. Heartland Hospice, Inc., 960 F.3d 836 , 843 (6th Cir. 2020). The bar is “wide-reaching,” but it “stop[s] short of ‘wiping out qui tam suits that rest on genuinely new and material information.’” Id. at 851 (alteration adopted) (citations omitted). As most recently amended in 2010, the FCA’s public-disclosure bar directs that: The court shall dismiss an action or claim under [the FCA], unless opposed by the Government, if substantially the same allegations or transactions as alleged in the action or claim were publicly disclosed— (i) in a Federal criminal, civil, or administrative hearing in which the Government or its agent is a party; (ii) in a congressional, Government Accountability Office, or other Federal report, hearing, audit, or investigation; or (iii) from the news media, unless the . . . person bringing the action is an original source of the information. 31 U.S.C. § 3730 (e)(4)(A). We employ a three-step analysis to decide whether this public-disclosure bar applies. First, we ask whether, before the filing of the qui tam complaint, there had been any public disclosures from which fraud might be inferred. Holloway, 960 F.3d at 844. Second, we assess whether the allegations in the complaint are “substantially the same” as those contained in the public disclosures. Id. at 849. And third, we ask whether the qui tam plaintiff is nevertheless an “original source of the information.” See id. at 843. Maur claims that the district court erred at all three steps. A. At the first step, Maur concedes that the Deming action and the press releases were all publicly disclosed. However, he contends that the Korban IA was not a public disclosure as defined in the FCA. As an initial matter, Maur has forfeited this argument by failing to raise it below. See Armstrong v. City of Melvindale, 432 F.3d 695 , 700 (6th Cir. 2006). The hospital defendants specifically argued in their motion to dismiss that the Korban IA was a public disclosure.  No. 20-5301 United States ex rel. Maur v. Hage-Korban Page 6 Yet Maur failed to contest this argument in his response. But even if the issue were not forfeited, we would still conclude that the contents of the Korban IA qualify as a public disclosure. The Korban IA was publicly available through the Inspector General’s website from November 2013 to November 2016. And it undoubtedly qualifies as a “Federal report” within the meaning of 31 U.S.C. § 3730 (e)(4)(A). The “sources of public disclosure in § 3730(e)(4)(A) . . . suggest that the public disclosure bar provides ‘a broa[d] sweep.’” Schindler Elevator, 563 U.S. at 408 (second alteration in original) (quoting Graham Cnty. Soil & Water Conservation Dist. v. United States ex rel. Wilson, 559 U.S. 280 , 290 (2010)). Consistent with this “generally broad scope,” the Supreme Court has interpreted “‘report’” expansively to include “‘something that gives information’ or a ‘notification.’” Id. at 407–08 (quoting Webster’s Third New International Dictionary 1925 (1986)); see also Random House Dictionary 1634 (2d ed. 1987) (“an account or statement describing in detail an event, situation, or the like”). Applying this ordinary meaning here, the Korban IA constitutes a “Federal report.” It gave information about the term and scope of the agreement, an extensive list of Korban’s obligations following the settlement, and detailed requirements for engaging an Independent Review Organization that would report to the Inspector General. By posting the Korban IA on its publicly available website, the Inspector General “release[d] the information into the public domain.” United States ex rel. Whipple v. Chattanooga-Hamilton Cnty. Hosp. Auth., 782 F.3d 260 , 270 (6th Cir. 2015); accord United States ex rel. Oliver v. Philip Morris USA Inc., 826 F.3d 466 , 476 (D.C. Cir. 2016). Thus, the district court properly considered the Korban IA as a public disclosure. B. We next consider whether the publicly disclosed sources present “substantially the same allegations or transactions” as Maur’s complaint. 31 U.S.C. § 3740 (e)(4)(A). We hold that they do. “To decide whether a claim has been publicly disclosed, courts look at the essential elements of alleged fraud to determine if enough information exists in the public domain to expose the fraudulent transaction.” United States ex rel. Ibanez v. Bristol-Myers Squibb Co.,  No. 20-5301 United States ex rel. Maur v. Hage-Korban Page 7 874 F.3d 905 , 918 (6th Cir. 2017). The key inquiry is whether the disclosures could have “put[] the government on notice of the fraud alleged in the qui tam complaint.” Holloway, 960 F.3d at 851. Yet there need not be a “complete identity of allegations, even as to time, place, and manner” to trigger the public-disclosure bar. Poteet, 552 F.3d at 514 (citation omitted).1 There need be only a “‘substantial identity’” between the public disclosures and the qui tam complaint such that “the prior disclosures depict ‘essentially the same’ scheme.” Holloway, 960 F.3d at 848 (quoting Poteet, 552 F.3d at 514 ). This is because “once the government knows the essential facts of a fraudulent scheme,” it generally “has enough information to discover related frauds.” Poteet, 552 F.3d at 516 (citation omitted); accord Holloway, 960 F.3d at 848, 851; United States ex rel. Armes v. Garman, 719 F. App’x 459, 464 (6th Cir. 2017); United States ex rel. Antoon v. Cleveland Clinic Found., 788 F.3d 605 , 616 (6th Cir. 2015). 1. Maur himself states in his complaint that this “exact scheme was previously detailed and exposed in” the Deming action. He readily admits that his “complaint make[s] nearly identical claims” about the “same types” of fraudulent conduct. And he does not purport to offer any “unique new details or dramatic twists to the aforementioned scheme, which was previously investigated and seemingly resolved.” Indeed, he copies much of the Deming complaint verbatim. Maur nonetheless protests that our decision in Ibanez allows his case to proceed. In Ibanez, we stated in considered dictum2 that “the mere resemblance of . . . allegations to a scheme resolved years earlier [was] not by itself enough to trigger the public disclosure bar.” Ibanez, 874 F.3d at 919. Once the integrity agreements in that case had “putatively ended the scheme,” we could not “assume[] that the government [was] aware” that the fraud “continue[d] 1 Though Poteet interpreted the pre-2010 public-disclosure bar, “we have adopted principles from our pre- amendment cases that are compatible with the amended statutory text.” Holloway, 960 F.3d at 851. The amended version of the statute expressly incorporates the “substantial identity” standard that this circuit and most other circuits had applied before 2010. Id. at 850. 2 Ibanez went on to dismiss the claims because the relators “failed to plead a violation of the FCA with adequate particularity.” 874 F.3d at 922. Thus, the discussion as to why the amended public-disclosure bar was not implicated in that case was neither necessary nor sufficient to support the judgment. Wright v. Spaulding, 939 F.3d 695 , 701 (6th Cir. 2019).  No. 20-5301 United States ex rel. Maur v. Hage-Korban Page 8 (or was restarted) simply because [the government] had uncovered, and then resolved, a similar scheme before.” Id. This was true, we hypothesized, at least “to the extent that the new allegations [were] temporally distant from the previously resolved conduct.” Id. at 919 n.4. Maur argues that because this case, like Ibanez, alleges fraud occurring after the execution of an integrity agreement, the new allegations cannot be “substantially the same” as those publicly disclosed. For their part, the defendants claim that the rigorous oversight mechanism contained in the Korban IA distinguishes this case from Ibanez. Because the Korban IA “requires substantial independent oversight, review, and reports to the government,” Maur, 2020 WL 912753 , at *4, the defendants contend that the government here must have had “notice of the likelihood of related fraudulent activity” by Korban, United States ex rel. Gilligan v. Medtronic, Inc., 403 F.3d 386 , 389 (6th Cir. 2005). In defendants’ view, then, Maur’s new allegations should be treated as “substantially the same” as those previously disclosed. We cannot fully embrace either party’s understanding. Both theories falter because the presence (or lack) of a robust mechanism for reporting future fraud to the government has no bearing on whether “substantially the same allegations or transactions” of fraud have been previously “publicly disclosed.” 31 U.S.C. § 3730 (e)(4)(A); see also United States ex rel. Booker v. Pfizer, Inc., 9 F. Supp. 3d 34 , 46 (D. Mass. 2014). Indeed, we have rejected the view that “disclosure to the government in an audit or investigation would be sufficient to trigger the bar,” because then “the term ‘public’ would be superfluous.” Whipple, 782 F.3d at 268. Instead, the “operative question” for deciding whether allegations are “substantially the same” is whether the public disclosures would themselves be “sufficient to set the government on the trail of the alleged fraud without the relator’s assistance.” United States ex rel. Reed v. KeyPoint Gov’t Sols., 923 F.3d 729 , 744 (10th Cir. 2019) (alteration adopted) (internal quotation marks omitted); see Holloway, 960 F.3d at 848; United States ex rel. Lager v. CSL Behring, L.L.C., 855 F.3d 935 , 944 (8th Cir. 2017); United States ex rel. Winkelman v. CVS Caremark Corp., 827 F.3d 201 , 210 (1st Cir. 2016); Oliver, 826 F.3d at 473. If so, then regardless of what the government knows or how the government behaves, the relator’s allegations are “substantially the same” as those contained in the disclosures.  No. 20-5301 United States ex rel. Maur v. Hage-Korban Page 9 That being said, we agree with defendants, and with the district court, that the character of the government’s oversight arrangements can sometimes matter. And we agree with Ibanez, and with Maur, that post-settlement allegations of a substantially similar fraudulent scheme can sometimes serve to avoid the public-disclosure bar. See 874 F.3d at 919. But we think that both insights are best applied in conducting the “original source” inquiry, rather than when asking whether new allegations are “substantially the same” as those previously “publicly disclosed.” 2. Even if a qui tam complaint contains “substantially the same allegations or transactions” as those previously “publicly disclosed,” the suit may continue if “the person bringing the action is an original source of the information.” 31 U.S.C. § 3730 (e)(4)(A). One way a relator may qualify as an “original source” is to show that he “has knowledge that is independent of and materially adds to the publicly disclosed allegations or transactions” and that he “voluntarily provided the information to the Government before filing” suit. Id. § 3730(e)(4)(B)([ii]). Post-settlement allegations that a substantially similar scheme has continued or restarted could provide the government with “knowledge that is independent of and materially adds” to the public disclosures. See Booker, 9 F. Supp. 3d at 48. At the same time, the presence of ongoing government monitoring might detract from the conclusion that these allegations have anything material to add. But analyzing these considerations under the “original source” exception is, in our view, more consistent with the public-disclosure bar’s text than the approach either party proposes. Cf. Reed, 923 F.3d at 757; Winkelman, 827 F.3d at 211. For only the original source exception—which focuses on the “material[ity]” of the new allegations—asks us to consider how a relator’s allegations might actually “affect[] the government’s decision- making.” United States ex rel. Advocates for Basic Legal Equal., Inc. v. U.S. Bank, N.A., 816 F.3d 428 , 432 (6th Cir. 2016) [hereinafter ABLE]. The structure of the public-disclosure bar further supports this interpretation. The question whether a relator’s information “materially adds” to disclosures will “often overlap[]” with “whether the relator’s allegations are substantially the same as those prior revelations.” Winkelman, 827 F.3d at 211. But “the ‘materially adds’ inquiry must remain conceptually  No. 20-5301 United States ex rel. Maur v. Hage-Korban Page 10 distinct; otherwise, the original source exception would be rendered nugatory.” Id. at 211–12. If, as the defendants argue, both inquiries were to focus on what “the government may have expected” and how the integrity agreements would influence the government’s actions, Ibanez, 874 F.3d at 919 & n.4, that would have “the effect of collapsing the materially-adds inquiry into the substantially-the-same inquiry,” Reed, 923 F.3d at 757. We decline to accept that construction “[a]bsent clear evidence that Congress intended this surplusage.” Nat’l Ass’n of Mfrs. v. Dep’t of Def., 138 S. Ct. 617 , 632 (2018); see Davis v. Helbling, 960 F.3d 346 , 355 (6th Cir. 2020). The defendants’ interpretation would leave an exception that excepts nothing. Hence, we are left with two distinct inquiries to apply. First, Maur’s allegations are “substantially the same” if there exists a “‘substantial identity’” between the public disclosures and his complaint such that “the prior disclosures depict ‘essentially the same’ scheme.” Holloway, 960 F.3d at 848, 851 (quoting Poteet, 552 F.3d at 514 ). For purposes of this inquiry, “[i]t is not enough” for Maur “to allege new, slightly different, or more detailed factual allegations.” Id. at 848; accord ABLE, 816 F.3d at 432–33; Armes, 719 F. App’x at 464. Second, even if Maur has depicted essentially the same scheme, he may still clear the public- disclosure bar under the “original source” exception if he has proffered independently obtained information that “materially adds” to the public disclosures. 31 U.S.C. § 3730 (e)(4)(B)([ii]); see Holloway, 960 F.3d at 843–44; Reed, 923 F.3d at 757. 3. Turning to the first inquiry, we conclude that Maur’s allegations are “substantially the same” as the public disclosures. Indeed, our caselaw demands such a result. In Holloway, a relator brought a qui tam action alleging the defendant had “orchestrat[ed] a corporate-wide scheme to submit false claims.” 960 F.3d at 839. She claimed that the scheme persisted from 2004 through 2018. See id. at 842. However, because her “allegations [were] substantially the same as those made” in three qui tam actions that had been voluntarily dismissed in 2008, we held that the public-disclosure bar applied. Id. at 845, 851. We did so even though those previous actions from a decade earlier “were focused on a single hospice facility,” as opposed to “the corporate-wide conduct alleged in [Holloway].” Id. at 849. What drove our decision was that, as in this case, the prior complaints publicly revealed that the “same . . . actor” had engaged  No. 20-5301 United States ex rel. Maur v. Hage-Korban Page 11 in “the same type of fraud” alleged. Id. at 847, 851. Because those “prior disclosure[s] put[] the government on notice of the fraud alleged,” adding “new details to describe essentially the same scheme” was insufficient even to “survive the more lenient post-amendment public-disclosure bar.” Id. at 850–51. So too here. “If anything, [Maur]’s allegations add some new details to describe essentially the same scheme by [Dr. Korban].” Id.; see also Bellevue v. Universal Health Servs. of Hartgrove, Inc., 867 F.3d 712 , 720 (7th Cir. 2017) (finding allegations were “substantially similar” to public disclosures where the defendant’s “conduct in subsequent years” was simply part of a “continuing practice” by the “same entity” (citation omitted)); Oliver, 826 F.3d at 473 (similar). Both the public disclosures and Maur’s complaint were levied against the same actor for the same type of fraud. Both accuse Dr. Korban of performing unnecessary cardiac and stent procedures. Both charge him of doing so at western Tennessee hospitals owned by Tennova Healthcare. And both allege that the wrongful procedures were paid for by Medicare. It also does not matter that Maur has added another Tennova subsidiary, its parent, and Korban’s personally owned business as additional defendants. See Holloway, 960 F.3d at 849 (concluding that earlier allegations “focused on a single hospice facility” were sufficient to put the government “on notice of the corporate-wide conduct alleged”); Poteet, 552 F.3d at 511, 514 (barring claims where the “defendants involved [were] slightly different,” because public disclosures “revealed the same kind of fraudulent activity”). What matters instead is that Maur has presented “substantially the same allegations” concerning a scheme perpetuated by Korban. As Maur admits, that “exact scheme” has already been publicly disclosed. The “wide-reaching public disclosure bar” therefore forecloses Maur’s qui tam suit unless he qualifies as an “original source.” Schindler Elevator, 563 U.S. at 408 ; see 31 U.S.C. § 3730 (e)(4)(A). We now turn to that final inquiry. C. The amended public-disclosure bar defines “original source” in two ways. First, it covers an individual who “prior to a public disclosure under subsection (e)(4)([A]) has voluntarily disclosed to the Government the information on which allegations or transactions in a claim are  No. 20-5301 United States ex rel. Maur v. Hage-Korban Page 12 based.” 31 U.S.C. § 3730 (e)(4)(B)(i). Second, it includes one “who has knowledge that is independent of and materially adds to the publicly disclosed allegations or transactions, and who has voluntarily provided the information to the Government before filing an action.” Id. § 3730(e)(4)(B)([ii]). Maur claims to meet both definitions. We disagree. 1. Maur does not fall within the first definition of an “original source” for a simple reason. He does not allege that he relayed anything to the government “prior to a public disclosure under subsection (e)(4)([A]).” Id. § 3730(e)(4)(B)(i). As already explained, those disclosures include the Deming action, the Korban IA, and the press releases, all of which preceded Maur’s complaint. In response, Maur urges that his allegations are not “based” upon those prior public disclosures because they describe conduct occurring after that covered by the Deming action. Yet this is just an attempt to repackage the argument that his allegations are not “substantially the same” as the disclosures. Cf. Armes, 719 F. App’x at 463 (“A later qui tam complaint is based upon a publicly disclosed fraud when a substantial identity exists between the publicly disclosed allegations or transactions and the qui tam complaint.” (internal quotation marks omitted)). Because Maur did not communicate anything to the government prior to those public disclosures, he does not fit within the first definition of an “original source.”3 2. Nor does Maur fall within the second definition of an “original source.” He did not provide any additional, “material[]” information to the government before filing the present 3 Maur points us to language from Rockwell International Corporation v. United States, 549 U.S. 457 (2007), for support. But that case interpreted the pre-2010 version of the FCA’s original source definition. See id. at 470–71. This case concerns the post-2010 enactment. And those two provisions differ in important respects. The old version did not have any pre-public disclosure notification requirement. Compare 31 U.S.C. § 3730 (e)(4)(B) (1986) (defining “original source” as “an individual who has direct and independent knowledge of the information on which the allegations are based and has voluntarily provided the information to the Government before filing an action under this section which is based on the information”), with 31 U.S.C. § 3730 (e)(4)(B) (2010) (defining “original source” to include “an individual who . . . prior to a public disclosure under subsection (e)(4)([A]), has voluntarily disclosed to the Government the information on which allegations or transactions in a claim are based”). See also United States ex rel. Davis v. District of Columbia, 679 F.3d 832 , 839 n.4 (D.C. Cir. 2012) (explaining the import of the amendment).  No. 20-5301 United States ex rel. Maur v. Hage-Korban Page 13 complaint. 31 U.S.C. § 3730 (e)(4)(B). “Materiality in this setting requires the claimant to show [he] had information ‘[o]f such a nature that knowledge of the item would affect a person’s decision-making,’ is ‘significant,’ or is ‘essential.’” ABLE, 816 F.3d at 431 (second alteration in original) (quoting Black’s Law Dictionary 1124 (10th ed. 2014)); accord Reed, 923 F.3d at 756; Winkelman, 827 F.3d at 211. In other words, the relator must bring something to the table that would add value for the government. See Reed, 923 F.3d at 759; United States ex rel. Hastings v. Wells Fargo Bank, NA, Inc., 656 F. App’x 328, 332 (9th Cir. 2016). Here, Maur cites nine additional patient examples, but there “is nothing significant or new” about them. ABLE, 816 F.3d at 431. Maur even concedes in his complaint that his allegations are “not new” and provide “no unique new details.” Yet that alone is not necessarily fatal to Maur’s claim. We noted in Ibanez that “the mere resemblance of [the current] allegations to a scheme resolved years earlier is not by itself enough to trigger the public disclosure bar.” 874 F.3d at 919. But here, Maur’s allegations are neither novel nor so removed from the “resolved” conduct that we can say that he has added anything “material” to the “prior problematic [procedures] already disclosed” by the Deming action. ABLE, 816 F.3d at 431; see Armes, 719 F. App’x at 464. To see why, compare this case to one like Ibanez. There, the defendants’ scheme persisted seven years after they entered the integrity agreements, and two years after both had expired. In those circumstances, we could not “assume[] that the government [was] aware [the] fraudulent scheme continue[d] (or was restarted) simply because it had uncovered, and then resolved, a similar scheme before.” Ibanez, 874 F.3d at 919. Bringing to light that the scheme had in fact continued well after the execution of the agreements—after they had expired even— might well have “affected the government’s decision-making.” ABLE, 816 F.3d at 432; see Ibanez, 874 F.3d at 919 n.4. By contrast, Maur alleges the perpetuation of—in his words—the “exact scheme” exposed in the Deming action, only months after the 2015 settlement and while the Korban IA was still in effect. This temporal proximity to the prior settlement, combined with the ongoing effect of the Korban IA, dooms Maur’s claim that he is an original source. The Korban IA  No. 20-5301 United States ex rel. Maur v. Hage-Korban Page 14 required Korban to engage an Independent Review Organization for the submission of quarterly reviews to the federal government throughout the period of Maur’s allegations. The point of this oversight arrangement was to subject Korban to heightened scrutiny—to monitor whether the fraudulent scheme was continuing. With this arrangement in place, “simply asserting a longer duration for the same allegedly fraudulent practice does not materially add to the information already publicly disclosed.” Winkelman, 827 F.3d at 212. The government was still dealing with the Deming allegations and scrutinizing the precise set of transactions Maur believes were fraudulent, with the benefit of an independent reviewer’s assistance. And that robust review system suggests “the government may have expected” the fraud to continue even “after the agreement[ was] entered.” Ibanez, 874 F.3d at 919 n.4. Thus, by merely providing additional instances of the same type of fraud during the oversight period, Maur has failed to offer information of “such a nature that knowledge” of it “would affect” the “government’s decision-making.” ABLE, 816 F.3d at 431–32. After all, in these circumstances, where there is no allegation of falsification in the reports,4 it can “be assumed that the government [would be] aware” if the same “fraudulent scheme continue[d] (or was restarted).” Ibanez, 874 F.3d at 919. One final point bears mentioning. We agree with Maur and Amicus that “[e]ngaging in a scheme to defraud cannot immunize a fraudulent action from qui tam suits regarding related forms of fraud in perpetuity; what was once a hot trail of fraud must cool at some point.” Booker, 9 F. Supp. 3d at 45; see Ibanez, 874 F.3d at 919. But not only did the public disclosures here “set the government on the trail of the alleged fraud without [Maur’s] assistance,” Reed, 923 F.3d at 744 (citation omitted), the government was still in fact on that trail. Maur does not allege that Korban did anything to throw the government off that scent. Accordingly, Maur has 4 We do not speculate whether this case might have come out differently if Maur had alleged that Korban was submitting fraudulent reports or masking some transactions from review during the oversight period. Perhaps such allegations would “change [government] decisions made regarding the allegations of wrongdoing” and thereby materially add to the public disclosures. United States ex rel. Vitale v. MiMedx Grp., Inc., 381 F. Supp. 3d 647 , 658 (D.S.C. 2019) (citing ABLE, 816 F.3d at 431). But there are no such allegations here. At oral argument, Maur claimed that Korban violated his integrity agreement by failing to train Maur properly. But this “alleged breach of the[] agreement[] did not, by itself, constitute an obligation to pay the government,” as such a breach only “‘may’ have led to obligations to pay stipulated penalties.” Ibanez, 874 F.3d at 922; see R. 51-2, PageID 325–27 (providing that the Inspector General “may” “exercise its contractual right to demand payment” for certain failures by Korban “after determining that Stipulated Penalties are appropriate”).  No. 20-5301 United States ex rel. Maur v. Hage-Korban Page 15 proffered no new information that materially adds to what is already contained in public disclosures. He does not qualify as an original source. And he cannot overcome the public- disclosure bar. *** For the foregoing reasons, we hold that Maur’s action is foreclosed by the FCA’s public- disclosure bar. We therefore AFFIRM the district court’s dismissal.

2020-12-01 17:00:21.730642+00

http://www.ca10.uscourts.gov/opinions/19/19-1158.pdf

FILED United States Court of Appeals PUBLISH Tenth Circuit UNITED STATES COURT OF APPEALS December 1, 2020 Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________ UNITED STATES OF AMERICA, Plaintiff - Appellee, v. No. 19-1158 SCOTT RAYMOND TIGNOR, Defendant - Appellant. _________________________________ Appeal from the United States District Court for the District of Colorado (D.C. No. 1:18-CR-00524-PAB-1) _________________________________ Kathleen Shen, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, with her on the briefs), Denver, Colorado, for the Defendant-Appellant. Karl L. Schock, Assistant United States Attorney (Jason R. Dunn, United States Attorney, with him on the brief), Denver, Colorado, for the Plaintiff- Appellee. _________________________________ Before LUCERO, KELLY, and BACHARACH, Circuit Judges. _________________________________ BACHARACH, Circuit Judge. _________________________________ This appeal involves a guilty plea for possessing a firearm after a felony conviction. 18 U.S.C. § 922 (g)(1). When defendant Mr. Scott Tignor pleaded guilty, our case law said that someone would incur guilt by knowingly possessing a firearm after obtaining a felony conviction. United States v. Griffin, 389 F.3d 1100 , 1104 (10th Cir. 2004). Under this case law, defendants would remain guilty even if they hadn’t known that their prior convictions involved felonies. United States v. Games-Perez, 667 F.3d 1136 , 1140–42 (10th Cir. 2012). But soon after Mr. Tignor pleaded guilty, the case law changed when the Supreme Court decided Rehaif v. United States, 139 S. Ct. 2191 (2019). There the Supreme Court held that the government needed to prove that the defendant had known that his status prohibited possession of a firearm. 139 S. Ct. at 2200 . Given the holding in Rehaif, the government needed to prove that Mr. Tignor had known that his prior conviction was punishable by more than a year in prison. United States v. Trujillo, 960 F.3d 1196 , 1200–01 (10th Cir. 2020). Invoking Rehaif, Mr. Tignor urges vacatur of his guilty plea because he wasn’t told about the newly recognized element. For this issue, the parties agree that the plain-error standard applies. Under this standard, we consider whether Mr. Tignor showed a reasonable probability that he would not have pleaded guilty if he’d known that the government needed to prove knowledge of his prohibited status. Id. at 1207–08. We answer “no” because Mr. Tignor lacked a plausible defense. We thus affirm his conviction. 2 I. Mr. Tignor’s prior conviction was punishable by over a year in prison. In 2002, Mr. Tignor was convicted in Texas of aggravated assault causing serious bodily injury. Under Texas law, aggravated assault constituted a second-degree felony punishable by 2 to 20 years’ imprisonment. See Tex. Penal Code §§ 22.02(a)(1), (b), 12.33(a). For the conviction on aggravated assault, Mr. Tignor was sentenced to 10 years of shock probation. 1 But the court later revoked probation and imposed a prison term of 7 years. Mr. Tignor served about 2 years of that sentence and was released about 13 years ago. After obtaining release, he moved to Colorado. While living in Colorado, Mr. Tignor asked for someone in the Sheriff’s Department to come to his house to investigate a theft. Unbeknownst to Mr. Tignor, the officers had a warrant for his arrest. So they came to his house prepared to arrest him. Unaware of the warrant, Mr. Tignor announced that he had a firearm. The officers retrieved the firearm, which led to a federal charge of unlawfully possessing a firearm after a felony conviction. See 18 U.S.C. § 922 (g)(1). The charge culminated in a 1 At that time, Texas used the term “shock probation” to refer to a term of probation after the defendant had already spent time in confinement. State v. Garza, 442 S.W.3d 585 , 587–88 (Tex. App. 2014). 3 guilty plea. Afterward, Mr. Tignor said that he had known about a Texas law that he thought would allow him to possess a firearm at his home. II. Mr. Tignor’s forfeiture of his appellate argument triggers plain- error review. Mr. Tignor did not raise his appellate argument in district court, so we apply the plain-error standard. United States v. Trujillo, 960 F.3d 1196 , 1201 (10th Cir. 2020). Under this standard, Mr. Tignor must show an obvious error that affects his substantial rights and “seriously affects the fairness, integrity or public reputation of judicial proceedings.” Id. (quoting United States v. Samora, 954 F.3d 1286 , 1293 (10th Cir. 2020)). III. The district court committed an obvious error. The government concedes the existence of an obvious error, and we accept this concession. The Federal Rules of Criminal Procedure require district courts to inform a defendant of the nature of the charge before accepting a guilty plea. Fed. R. Crim. P. 11(b)(1)(G). Given this requirement, the court must inform defendants of the elements before accepting their guilty pleas. Hicks v. Franklin, 546 F.3d 1279 , 1284 (10th Cir. 2008). Despite this requirement, the district court accepted Mr. Tignor’s guilty plea without telling him that the government needed to prove knowledge of his prohibited status. The omission is understandable, but it is still an obvious error under current law. See Trujillo, 960 F.3d at 1201 4 (“While the district court correctly applied the law as it existed at the time, the court’s failure to inform Defendant of the knowledge-of-status element constitutes error that is plain on appeal.”). IV. Mr. Tignor hasn’t proven a reasonable probability that he would have pleaded not guilty without the error. Even though an obvious error took place, Mr. Tignor needed to show that the error had affected his substantial rights. Id. The required showing entails a reasonable probability that, without the error, Mr. Tignor would have pleaded not guilty. Id. at 1208. A. Mr. Tignor did not waive this argument. The government argues that Mr. Tignor waived this argument by failing to address it in his opening brief. There he argued that the district court had committed a structural error, requiring reversal of the conviction even if he couldn’t show a reasonable probability of a different result. At the time, we hadn’t decided whether to characterize this error as a structural error and a circuit split existed elsewhere. Compare United States v. Williams, 946 F.3d 968 , 972–73 (7th Cir. 2020) (concluding that this error was not structural), with United States v. Gary, ___ F.3d ___, 2020 WL 1443528 , at *4 (4th Cir. Mar. 25, 2020) (concluding that this error was structural). Given this circuit split, the government argued that we should join those courts declining to characterize this error as structural. After the briefing was complete, we decided the issue, agreeing with the government 5 that the error was not structural. United States v. Trujillo, 960 F.3d 1196 , 1207–08 (10th Cir. 2020). But the government then argued that Mr. Tignor had waived this argument by failing to address it in his opening brief. We disagree. When briefing was complete, we hadn’t yet decided whether this error was structural. Given the circuit split, Mr. Tignor could reasonably urge the existence of a structural error and he did. Under these circumstances, Mr. Tignor reasonably replied to the government by arguing that he’d satisfied the standard embraced by the government. See United States v. Zander, 794 F.3d 1220 , 1232 n.5 (10th Cir. 2015) (allowing the appellant to urge plain error in the reply brief after urging in the opening brief that the error had been preserved). We thus address the argument that Mr. Tignor newly presented in his reply brief. B. Mr. Tignor has not shown a reasonable probability that he would have pleaded not guilty without the error. Mr. Tignor urges a reasonable probability that he would have pleaded differently if he had known that the government needed to prove knowledge of his prohibited status. According to Mr. Tignor, he would have pleaded not guilty because he  had not known that his Texas offense was punishable by more than one year imprisonment and  had believed that the government restored all of his civil rights. 6 See 18 U.S.C. § 921 (a)(20) (defining a “crime punishable by imprisonment for a term exceeding one year” to exclude “[a]ny conviction . . . for which a person . . . has had civil rights restored”). 1. A crime punishable by more than one year in prison Mr. Tignor argues that the government couldn’t prove knowledge that his prior offense was punishable by over a year in prison. In support, he argues that  he may have forgotten the details of his Texas conviction because it had been imposed roughly sixteen years earlier and  the original sentence entailed ten years of shock probation (not imprisonment) and he served two years in prison only after his probation had been revoked. Given these facts, Mr. Tignor argues that he could have plausibly defended on the current charge by denying knowledge that his Texas crime had carried a potential prison sentence exceeding a year. We disagree. Even if Mr. Tignor had forgotten some of the details, he knew that he was a convicted felon. For example, Mr. Tignor argued at sentencing that he thought that a Texas law allowed him to possess a firearm. But that law applied only to convicted felons. See Tex. Penal Code § 46.04(a)(1)–(2) (stating that individuals convicted of a felony commit a crime by possessing a firearm outside their homes more than five years after release from confinement). 7  Of course, if the current case had gone to trial, it wouldn’t have been enough for the government to prove knowledge of a felony conviction; the government would also have needed to prove knowledge that the conviction entailed “a crime punishable by imprisonment for a term exceeding one year.” 18 U.S.C. § 922 (g)(1). But two pieces of evidence suggest that Mr. Tignor had known that the Texas felony was punishable by more than a year in prison. First, when Mr. Tignor’s probation was revoked, he was sentenced to seven years’ imprisonment. For this sentence, he served roughly two years in prison. Mr. Tignor presumably wouldn’t forget that he’d spent well over a year in prison after obtaining the conviction. Second, when Mr. Tignor pleaded guilty to aggravated assault, Texas law required the state court to inform him of the possible sentencing range. See Tex. Code Crim. Proc. Ann. art. 26.13(a)(1) (stating that “[p]rior to accepting a plea of guilty . . . , the court shall admonish the defendant of” “the range of the punishment attached to the offense”). That range was 2 to 20 years’ imprisonment. See Tex. Penal Code §§ 22.02(a)(1) and (b), 12.33(a). So Mr. Tignor likely knew that aggravated assault was punishable by more than one year in prison. See United States v. Burghardt, 939 F.3d 397 , 404 (1st Cir. 2019) (noting that when a state’s law “requires a judge to make sure that a defendant knows the maximum possible sentence when entering a guilty plea,” it was “virtually certain” that he was so informed). 8  For both reasons, Mr. Tignor faces an “uphill battle” to show that the error affected his substantial rights: [A]ny § 922(g) defendant who served more than a year in prison on a single count of conviction will face an uphill battle to show that a Rehaif error in a guilty plea affected his substantial rights—at least on a silent record. [The Defendant] faces an even steeper climb because his record is not truly silent, and the little evidence available further supports the conclusion that he would have decided to plead guilty even if he had been informed of the government’s burden of proof. United States v. Williams, 946 F.3d 968 , 974 (7th Cir. 2020) (citing United States v. Vonn, 535 U.S. 55 , 74 (2002)). Mr. Tignor points out that he obtained the seven-year sentence only after the state court revoked his probation. But Mr. Tignor didn’t just get his probation revoked; he also spent roughly two years in prison. Because he actually served roughly two years in prison, he knew that the prior conviction ultimately led to a prison term of over a year. See id. at 973 (stating that a defendant who served more than a year in prison on a conviction “cannot plausibly argue that he did not know his conviction had a maximum punishment exceeding a year”); see also Trujillo, 960 F.3d at 1208 (concluding that the defendant could not show a reasonable probability that, if he had been advised of the government’s need to prove knowledge of his prohibited status, he would not have pleaded guilty because he had “served a total of four years in prison for six felony offenses”). We thus conclude that Mr. Tignor lacked a plausible argument 9 that he hadn’t known that his prior conviction was punishable by more than a year in prison. 2. Restoration of civil rights after a conviction Mr. Tignor points out that defendants can possess firearms after obtaining restoration of their civil rights. 18 U.S.C. § 921 (a)(20). Relying on this provision, Mr. Tignor argues that he could have defended based on a belief that his civil rights had been restored. In support, Mr. Tignor cites  the Texas law, which permits convicted felons to possess a firearm at their own homes more than five years after release (Tex. Penal Code § 46.04(a)(1)–(2)),  a Texas election law, which defines a “qualified voter” to include convicted felons who have “fully discharged” their sentences (Tex. Elec. Code § 11.002), and  his statement to the arresting officers that he was armed. We have not yet decided whether the government must prove knowledge that the defendant hadn’t obtained restoration of his civil rights. But even if the government had this burden, Mr. Tignor’s arguments would fail for two reasons. First, Texas law didn’t apply. The crime was federal, and Mr. Tignor possessed the firearm after he’d already moved from Texas to Colorado. Second, Mr. Tignor presumably knew that some of his civil rights had not been restored. In United States v. Flower, 29 F.3d 530 (10th Cir. 1994), we considered whether a defendant had obtained restoration of his civil rights. The defendant had a previous Utah felony conviction, which 10 prevented him from serving on a jury. Id. at 536 . Because of this one unavailable right, he hadn’t had his civil rights restored. Id. So defendants obtain restoration of their civil rights only if they have reacquired all of their civil rights. Mr. Tignor couldn’t plausibly assert a belief that all of his civil rights had been restored. Indeed, he relies on a law that prevented him from taking the firearm anywhere outside his home. See Tex. Penal Code § 46.04(a)(1)–(2). So Mr. Tignor presumably knew that at least some of his civil rights hadn’t been restored. * * * For these reasons, we conclude that Mr. Tignor failed to show a reasonable probability that he would have pleaded not guilty if he’d known of the newly recognized element. 2 Mr. Tignor thus failed to show a reasonable probability that he would have pleaded not guilty in the absence of the error. So we affirm his conviction. 2 The government makes three additional arguments: (1) Mr. Tignor obtained a three-level sentence reduction for accepting responsibility when he pleaded guilty, (2) the evidence of guilt was overwhelming, and (3) the underlying facts of the prior conviction would have been admissible at trial to show knowledge that the crime was punishable by more than one year. We need not address these additional arguments. 11

2020-12-01 17:00:22.138132+00

http://www.ca10.uscourts.gov/opinions/20/20-3007.pdf

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT December 1, 2020 _________________________________ Christopher M. Wolpert Clerk of Court KEVIN D. LOGGINS, SR., Plaintiff - Appellant, v. No. 20-3007 (D.C. No. 5:18-CV-03254-DDC) REBECCA L. PILSHAW, District Court (D. Kan.) Judge, Sedgwick County District Court; DIANA NICHOLS, Court Reporter, Sedgwick County District Court; DAVID KAUFMAN, Assistant District Attorney, Sedgwick County District Attorney Office; LOU ANN HALE, Court Reporter, Sedgwick County District Court; ERIC R. YOST, District Court Judge, Sedgwick County District Court; J. PATRICK WALTER, District Court Judge, Sedgwick County District Court; ANTHONY J. POWELL, JR., District Court Judge, Sedgwick County District Court; PAUL W. CLARK, District Court Judge, Sedgwick County District Court; JAMES R. FLEETWOOD, Chief Judge, Sedgwick County District Court; HENRY W. GREEN, Judge, Kansas Court of Appeals; (FNU) LEWIS, Judge, Kansas Court of Appeals; JOHN J. BUKATY, District Court Judge; MELISSA T. STRANDRIDGE, Judge, Kansas Court of Appeals; STEPHEN D. HILL, Judge, Kansas Court of Appeals; PATRICK D. MCANANY, Judge, Kansas Court of Appeals; (FNU) BRAZIL, Retired Judge, Kansas Court of Appeals; G. GORDON ATCHESON, Judge, Kansas Court of Appeals; THOMAS MALONE, Judge, Kansas Court of Appeals; (FNU) ELLIOTT, Judge, Kansas Court of  Appeals; (FNU) WAHL, Judge, Kansas Court of Appeals; (FNU) GREENE, Judge, Kansas Court of Appeals; MICHAEL B. BUSER, Judge, Kansas Court of Appeals; STEVEN A. LEBEN, Judge, Kansas Court of Appeals; KATHRYN A. GARDNER, Judge, Kansas Court of Appeals; BERNADINE LAMBRERAS, Clerk of the Court, Sedgwick County District Court; LAURA KELLY, Governor, State of Kansas; DAVID M. UNRUH, Sedgwick County Commissioner; TIM R. NORTON, Sedgwick County Commissioner; KARL PETERJOHN, Sedgwick County Commissioner; RICHARD RANZAU, Sedgwick County Commissioner; RICHARD A. EUSON, Sedgwick County Counselor; JEFF EASTER, Sedgwick County Sheriff; ROGER WERHOLTZ, Interim Secretary of Corrections, Kansas Department of Corrections; DOUGLAS SHIMA, Clerk of the Court, Kansas Court of Appeals; WARREN WILBERT, District Court Judge, Sedgwick County District Court; SAM CROW, U.S. District Court Judge, State of Kansas; DALE SAFFELS, former U.S. District Court Judge, State of Kansas; RICHARD D. ROGERS, U.S. District Court Judge, State of Kansas, Defendants - Appellees. _________________________________ ORDER AND JUDGMENT* * After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 2  _________________________________ Before HARTZ, McHUGH, and CARSON, Circuit Judges. _________________________________ Kevin D. Loggins Sr., a Kansas prisoner proceeding pro se, appeals from the district court’s dismissal of his claims brought under 42 U.S.C. § 1983 and the court’s denial of various motions. Exercising jurisdiction under 28 U.S.C. § 1291 , we affirm. I. BACKGROUND & PROCEDURAL HISTORY Loggins is a prisoner in the custody of the Kansas Department of Corrections (KDOC). He was sentenced in 1996 to a prison term of 678 months “based on his Kansas state convictions for aggravated robbery, aggravated kidnaping, aggravated burglary, aggravated sexual battery, and criminal possession of a firearm,” all arising out of “two residential armed robberies in 1995.” Loggins v. Hannigan, 45 F. App’x 846, 848 (10th Cir. 2002). In September 2018, Loggins filed suit under 42 U.S.C. § 1983 , raising claims related to that conviction. His core allegations are as follows: Sedgwick County (Kansas) District Judge Rebecca L. Pilshaw, who presided over his prosecution, “abandon[ed] her color as a neutral, detached and impartial adjudicator and became an advocate and partisan for the prosecutor[’]s case,” R. vol. 1 at 9, when she added a charge of aggravated sexual battery to the criminal complaint, despite the prosecution “declin[ing]” to add such a charge on its own, id. A different judge arraigned him later that day on the new charge, although the amended criminal complaint had not 3 yet been filed and Loggins was not present for that arraignment. After trial, Judge Pilshaw and her court reporter “sploitated” (i.e., spoliated) the record to conceal Judge Pilshaw’s advocacy, and the “sploitated portion of the record was not made available” to Loggins until 2003. Id. at 17 . Also, the court reporter for the arraignment never produced her transcripts, despite certifying to the Kansas Court of Appeals that she had. Based on these accusations, Loggins sued Judge Pilshaw, the two court reporters, the Sedgwick County clerk of court, the assistant district attorney who prosecuted him, the county sheriff who delivered him into KDOC custody, the secretary of KDOC, the clerk of the Kansas Court of Appeals, the governor of Kansas, and apparently every state and federal judge who worked on his direct appeal, postconviction motions, postconviction appeals, and federal habeas proceedings. Loggins claims that all these defendants participated in or acted upon “void judgments” against him, given “the structu[r]al defect in the case [apparently referring to Judge Pilshaw’s alleged bias, as evidenced by her sua sponte insertion of the sexual battery charge] and the trial court[’]s failure to properly invoke the court[’]s jurisdiction [referring to his arraignment in absentia on a not-yet-filed amended complaint].” Id. at 18 . He also sued the Sedgwick County commissioners and county attorney, alleging they participated in creating a policy that led to “destruction of the documents which could establish that plaintiff’s rights [were] violated.” Id. at 14 . He did not elaborate on the nature of these documents or the circumstances of their destruction. 4  Loggins claimed violations of his Fifth, Sixth, Eighth, Thirteenth, and Fourteenth Amendment rights, and the Kansas Bill of Rights. He requested monetary damages from various defendants, “injunctive relief . . . to release [him] from the false imprisonment,” and a declaration that his convictions are “nullities.” Id. at 25 . Acting under 28 U.S.C. § 1915A(a), the district court screened Loggins’s amended complaint and dismissed the case on the following grounds:  Loggins cannot seek release from confinement—a habeas remedy— through a § 1983 action;  most of the defendants are protected by immunity: the Eleventh Amendment bars relief to the extent Loggins seeks damages from a state official in his or her official capacity; judicial immunity bars relief against the federal and state judges named as defendants; prosecutorial immunity bars relief against the assistant district attorney who prosecuted him; and quasi-judicial immunity bars relief against the sheriff who transported him to KDOC custody, and against the KDOC secretary;  Loggins cannot seek damages for his allegedly unlawful imprisonment without first invalidating his sentence through other means (such as habeas). In light of the dismissal on these grounds, the court denied Loggins’s motions for summary and default judgment as moot. It also denied his motion to change venue, a motion for a temporary restraining order and preliminary injunction, a motion for 5 hearing, a motion to recuse the district judge, and various motions seeking the status of his case. II. ANALYSIS A. Screening Disposition (28 U.S.C. § 1915A) 1. Legal Standards Section 1915A requires the federal district courts to “review . . . a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a). The court is to “identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint—(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief.” Id. § 1915A(b). We review de novo a § 1915A dismissal for failure to state a claim. See Young v. Davis, 554 F.3d 1254 , 1256 (10th Cir. 2009). This court has never stated an explicit standard for reviewing § 1915A dismissals based on immunity. Outside the § 1915A context, however, we review de novo a district court’s determination regarding each of the immunities at issue here. See Arbogast v. Kan., Dep’t of Labor, 789 F.3d 1174 , 1181 (10th Cir. 2015) (Eleventh Amendment); Crowe & Dunlevy, P.C. v. Stidham, 640 F.3d 1140 , 1153 (10th Cir. 2011) (judicial); Guttman v. Khalsa, 446 F.3d 1027 , 1033 (10th Cir. 2006) (prosecutorial and quasi-judicial). We see no reason to do otherwise in the § 1915A context. 6  2. Application The district court’s first ground for dismissal was the rule of Preiser v. Rodriguez: “[W]hen a state prisoner is challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus,” 411 U.S. 475 , 500 (1973). The ruling was correct. Preiser forecloses Loggins’s § 1983 claims seeking an injunction ordering his release from prison and a declaratory judgment that his convictions were nullities. See Wilkinson v. Dotson, 544 U.S. 74 , 81 (2005); Duncan v. Gunter, 15 F.3d 989 , 991 (10th Cir. 1994). The district court’s other two grounds for dismissal disposed of the claims for damages. The court ruled that most of the defendants are protected from liability by Eleventh Amendment, judicial, prosecutorial, or quasi-judicial immunity. Only one argument by Loggins against this ruling merits a response. He contends that the district court should not have raised these issues under § 1915A because immunities are affirmative defenses. But even if immunities are affirmative defenses and district courts should not ordinarily dismiss a complaint based on an affirmative defense, § 1915A states that “the court shall . . . dismiss the complaint, or any portion of the complaint, if [it] . . . seeks monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b)(2) (emphasis added). This fairly recent statutory provision overrides any contrary rule under the Federal Rules of Civil Procedure. See Autoskill v. Nat’l Educ. Support Sys., 994 F.2d 1476 , 1485 (10th Cir. 1993), 7 overruled on other grounds by TW Telecom Holdings Inc. v. Carolina Internet Ltd., 661 F.3d 495 , 496–97 (10th Cir. 2011). Thus, the district court properly raised and ruled on the issues of Eleventh Amendment, judicial, prosecutorial, and quasi- judicial immunity. See, e.g., Payton, 2020 WL 6058589 , at *2 (affirming § 1915A dismissal on judicial, prosecutorial, and Eleventh Amendment immunity grounds); Coleman v. Farnsworth, 90 F. App’x 313, 317–18 (10th Cir. 2004) (affirming § 1915A dismissal on quasi-judicial immunity grounds). Although not every defendant was held to be immune from liability by the district court, the court’s third ground for dismissal does apply to them all. Under Heck v. Humphrey, “[if] a [§ 1983] judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence . . . , the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated,” 512 U.S. 477 , 487 (1994). This rule obviously applies but, as with the immunity issue, Loggins argues that the Heck issue is an affirmative defense that the district court should not have raised sua sponte. We disagree. Rather than creating an affirmative defense, Heck adds an element to the claim. As the Supreme Court explained: [T]o recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254 . A claim for damages 8  bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983. Heck, 512 U.S. at 486–87 (additional emphasis added; footnote omitted). We have accordingly recognized that “a plaintiff c[an]not bring a civil-rights claim for damages under § 1983 based on actions whose unlawfulness would render an existing criminal conviction invalid.” Havens v. Johnson, 783 F.3d 776 , 782 (10th Cir. 2015) (emphasis added). See, e.g., Payton v. Ballinger, No. 20-3101, ___ F. App’x ___, 2020 WL 6058589 , at *2 (10th Cir. Oct. 14, 2020) (analyzing § 1915A Heck dismissal under failure-to-state-a-claim rubric); cf. Higgins v. City of Tulsa, 103 F. App’x 648, 652 (10th Cir. 2004) (affirming a sua sponte dismissal under Fed. R. Civ. P. 12(b)(6) when the Heck infirmity was “patently obvious” (internal quotation marks omitted)). Since all the damages sought by Loggins are based on actions by defendants that allegedly caused his convictions or prevented the convictions from being set aside, the district court properly applied Heck to dismiss his claims. In sum, we see no error in the district court’s § 1915A disposition. B. Recusal Loggins also challenges the district judge’s denial of his motion to recuse. “We . . . review a district court’s denial of a motion to recuse or disqualify a judge for abuse of discretion.” Mathis v. Huff & Puff Trucking, Inc., 787 F.3d 1297 , 1308 (10th Cir. 2015). Loggins’s argument for recusal rests on his belief that the district judge showed bias by raising affirmative defenses on defendants’ behalf. But his rulings are not evidence of bias. See, e.g., Liteky v. United States, 510 U.S. 540 , 555 9 (1994) (“[J]udicial rulings alone almost never constitute a valid basis for a bias or partiality motion.”); Green v. Branson, 108 F.3d 1296 , 1305 (10th Cir. 1997) (“[A]dverse rulings cannot in themselves form the appropriate grounds for disqualification.” (internal quotation marks omitted)). And in any event, as we have just explained, the judge ruled appropriately. He did not abuse his discretion when he denied Loggins’s motion to recuse. C. Other Motions Finally, Loggins challenges the district court’s denial of his summary- judgment motion, default-judgment motion, motion for TRO and preliminary injunction, and motion to change venue. Our affirmance of the district court’s § 1915A dismissal moots these issues, so we need not address them. III. CONCLUSION We affirm the district court’s judgment. Entered for the Court Harris L Hartz Circuit Judge 10

2020-12-01 17:00:22.64125+00

http://www.ca10.uscourts.gov/opinions/19/19-7056.pdf

FILED United States Court of Appeals PUBLISH Tenth Circuit UNITED STATES COURT OF APPEALS December 1, 2020 Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________ AUSTIN P. BOND, as Special Administrator of the ESTATE OF DOMINIC F. ROLLICE, deceased, Plaintiff - Appellant, v. No. 19-7056 CITY OF TAHLEQUAH, Oklahoma; BRANDON VICK; JOSH GIRDNER, Defendants - Appellees. _________________________________ Appeal from the United States District Court for the Eastern District of Oklahoma (D.C. No. 6:18-CV-00257-RAW) _________________________________ Robert M. Blakemore (Daniel Smolen and Bryon D. Helm with him on the brief), Smolen & Roytman, Tulsa, Oklahoma, for Plaintiff - Appellant. Scott B. Wood, Wood, Puhl & Wood, PLLC, Tulsa, Oklahoma, for Defendants - Appellees. _________________________________ Before MATHESON, BACHARACH, and McHUGH, Circuit Judges. _________________________________ McHUGH, Circuit Judge. _________________________________  On August 12, 2016, Officers Brandon Vick and Josh Girdner shot and killed Dominic Rollice. The administrator of Dominic’s1 estate brought a § 1983 claim against Officers Vick and Girdner alleging they used excessive force against Dominic in violation of his Fourth Amendment rights.2 The district court granted summary judgment to Officers Vick and Girdner on the basis of qualified immunity. Exercising jurisdiction pursuant to 28 U.S.C. § 1291 , we reverse because a reasonable jury could find facts under which Officers Vick and Girdner would not be entitled to qualified immunity. I. BACKGROUND A. Factual History3 On August 12, 2016, Dominic’s ex-wife, Joy, called 911. She requested police assistance: “Hey, can I get somebody to come over to my house, my ex-husband is in the garage, he will not leave, he’s drunk and it’s going to get ugly real quick.” Ex. 1 1 For clarity, we refer to Dominic Rollice and his ex-wife, Joy Rollice, by their first names. 2 Robbie Burke, the administrator of Dominic’s estate when the suit commenced, passed away during the pendency of this case. On September 25, 2020, we granted Austin Bond’s motion to be substituted for Ms. Burke. 3 This factual recitation focuses on the information the officers had at the time of the encounter. Information not available to the officers, such as what happened earlier that day or who legally owned the residence, is immaterial because the reasonableness of the officers’ actions is “judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham v. Connor, 490 U.S. 386 , 396 (1989). 2 at 00:01–00:13.4 The dispatcher responded, “If we send somebody out there, he will go to jail for being intoxicated in public, if that’s what you want to happen.” Ex. 1 at 00:22–00:28. Joy replied, “Yes, that is.” Ex. 1 at 00:29–00:30. The dispatcher then asked whether Dominic lived at the residence, to which Joy responded, “No, he doesn’t live here. He’s a registered sex offender and lives in Park Hill. He’s my ex- husband. He’s still got tools in the garage. He doesn’t live here.” Ex. 1 at 00:30– 00:45. Officer Josh Girdner responded to Joy’s 911 call, and Officer Chase Reed responded as Officer Girdner’s backing officer. Officer Brandon Vick, the patrol shift supervisor, also responded to the call. It is disputed exactly how much information the officers received from the dispatcher, but it is undisputed they knew Dominic was Joy’s ex-husband, he was intoxicated, and Joy wanted him gone. See, e.g., App., Vol. II at 320 (Officer Girdner knew “that [Joy’s] ex-husband was at her house and he was intoxicated and she feared . . . [what might] happen”). Officer Girdner and Officer Reed arrived at about the same time and met Joy in the front yard. Officer Girdner spoke with Joy, who told him why she called 911.5 4 We refer to the conventionally filed exhibits in this case by the exhibit numbers used in the summary judgment filings before the district court. App., Vol. II at 309, 376. Exhibit 1 is a recording of Joy’s 911 call, and Exhibit 7 is Officer Reed’s bodycam footage. 5 There is no dispute this conversation occurred. Aplt. Br. at 4 (citing App., Vol. II at 344–45). But it is disputed how much Joy told Officer Girdner, specifically whether Joy explained Dominic did not live there. See Aplt. Br. at 4 (“Officers Reed, Girdner, and Vick did not know that [Dominic] no longer lived at the residence.”). 3 Joy then showed Officers Girdner and Reed to the side entrance of the garage, where they met Dominic. Officer Vick arrived while Officers Girdner and Reed were talking to Dominic at the side door to the garage. Officer Girdner believes he explained to Dominic why they were there. Dominic expressed concern that the officers intended to take him to jail, and Officer Girdner told him they were not going to do that. Instead, they were “going to try to get him a ride out of there.” App., Vol. II at 325; see also App., Vol. II at 203, 351. Dominic informed the officers that he had a ride coming. During the conversation, Officer Girdner perceived Dominic as “fidgety.” App., Vol. I at 198; see also App., Vol. II at 325 (“He kept fidgeting with his hands.”); Ex. 7 at 00:00–00:13. Based on that perception, Officer Girdner asked to pat down Dominic.6 Dominic refused. Officer Reed’s body camera began capturing video at some point during this exchange.7 It is difficult to tell if the video starts before, during, or after Officer Girdner’s request to pat down Dominic because there is no audio for the first thirty seconds of video. 6 There is some dispute as to whether Dominic was wearing clothing in which he could easily conceal a weapon. See Aplt. Br. at 5–6 (citing App., Vol. II at 326). 7 The parties do not dispute that the video is an accurate depiction of the subsequent events. Rather, they dispute what the video shows. Because this is an appeal from a grant of summary judgment, we describe the facts viewing the video in the light most favorable to the Estate, as the nonmoving party. Emmett v. Armstrong, 973 F.3d 1127 , 1131 (10th Cir. 2020). 4  The video appears to show Dominic talking to Officer Girdner and gesturing with his hands. Dominic also appears to be fidgeting with something in his hands.8 Officer Girdner then begins gesturing with his hands and takes a step toward the doorway, causing Dominic to take a step back.9 Officer Girdner continues gesturing and walking toward Dominic, through the doorway and into the garage. Dominic turns and walks to the back of the garage, as Officer Girdner continues to point at and follow him. Officers Reed and Vick then follow Dominic and Officer Girdner into the garage. The officers claim that before the sound starts on the video, Officer Girdner ordered Dominic to stop.10 When Dominic reaches the back of the garage, he turns around briefly to face the officers. Then he turns to the work bench on the back wall of the garage and grabs a hammer hanging above it. As Dominic faces the officers with the hammer, the officers back up and draw their guns. Dominic initially grasps the hammer with 8 Neither party has identified this object. 9 The district court and the officers view the video as showing that Dominic backed away and the officers followed him into the garage. But the video shows Officer Girdner took the first step toward Dominic, and Dominic took a step back only after Officer Girdner moved toward him. At the very least, a jury could so view it, and the facts must be taken in the light most favorable to the Estate in this procedural posture. 10 The officers also claim that before the sound starts, Dominic said, “One of us is going to fucking die tonight.” The Estate disputes this claim, and the district court did not consider it as part of its analysis. App., Vol. III at 600 n.4. Because we must view the facts in the light most favorable to the Estate, we also do not consider the alleged statement. 5 both hands, as if preparing to swing a baseball bat. But then he drops his left hand down, holding it out in front of him as if to signal the officers to stop or to create distance between himself and them. Dominic holds the hammer in his right hand just above his head. At this point, Officer Reed is standing in the middle of the three officers with Officer Girdner to Officer Reed’s left, and Officer Vick to Officer Reed’s right. The audio starts about this time and records the officers yelling at Dominic to drop the hammer. The officers repeatedly shout at Dominic, telling him to drop it, and he repeatedly refuses, saying “No.” Ex. 7 at 00:30–00:40. During this exchange Dominic slowly moves to the officers’ left, coming from behind furniture, so that the officers are the only obstruction between Dominic and the exit. Officer Girdner estimated there were about eight to ten feet between himself and Dominic. At this point, Officer Reed states he has decided to “go less lethal,” and he holsters his gun and pulls out his taser. The officers continue to order Dominic to drop the hammer, and Dominic responds, “I have done nothing wrong here, man. I’m in my house. I’m doing nothing wrong.” Ex. 7 at 00:45–00:49.11 Officer Reed then takes a few steps toward Dominic, and Dominic says, “I see your taser.” Ex. 7 at 00:50–00:52. An officer then yells, “Drop it now,” and Dominic again says, “No.” 11 Despite this statement, the wording in the district court’s order, and the Estate’s briefing that Dominic was killed in “his own garage,” Aplt. Br. at 13, 20, the property was legally owned by Joy at the time of this incident. Dominic may have had permission to be on the property earlier that day or at other times to access the tools he kept in the garage. 6 Ex. 7 at 00:50–00:52. During this exchange, Dominic appears to pull the hammer back behind his head. But he is still talking to the officers, relatively calmly, with one hand outstretched. In response to Dominic’s movement with the hammer, Officers Girdner and Vick fire multiple shots. Dominic doubles over into a squatting position as the bullets hit him. Still holding the hammer, he groans and raises the hammer. Officer Girdner fires again. The officers yell one last time for Dominic to drop the hammer, and he does. Next, the officers order Dominic to get on the ground and he rocks back, falling to the ground. Emergency Medical Services later transported Dominic to a hospital where he was pronounced dead. B. Procedural History The Estate filed the operative Second Amended Complaint on October 23, 2018, in which it asserted a § 1983 claim against Officers Vick and Girdner as well as a Monell claim against the City of Tahlequah (the “City”). The officers and the City filed separate motions for summary judgment. The district court entered two orders on September 25, 2019: one granted summary judgment to the officers on the basis of qualified immunity and one granted summary judgment to the City. The Estate filed a timely appeal on October 25, 2019. The appeal challenges only the district court’s grant of summary judgment to the officers. II. DISCUSSION A. Standard of Review “We review grants of summary judgment based on qualified immunity de novo.” McCoy v. Meyers, 887 F.3d 1034 , 1044 (10th Cir. 2018) (quotation marks 7 omitted). We will affirm when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “In applying this standard, we view the evidence and the reasonable inferences to be drawn from the evidence in the light most favorable to the nonmoving party.” Schaffer v. Salt Lake City Corp., 814 F.3d 1151 , 1155 (10th Cir. 2016) (quotation marks omitted). “A fact is material if, under the governing law, it could have an effect on the outcome of the lawsuit.” Smothers v. Solvay Chems., Inc., 740 F.3d 530 , 538 (10th Cir. 2014) (quotation marks omitted). “When the record on appeal contains video evidence of the incident in question . . . we will accept the version of the facts portrayed in the video . . . only to the extent that it ‘blatantly contradict[s]’ the plaintiff’s version of events.” Emmett v. Armstrong, 973 F.3d 1127 , 1131 (10th Cir. 2020) (alterations in original) (quoting Scott v. Harris, 550 U.S. 372 , 380 (2007)). B. Legal Background 1. Qualified Immunity “The doctrine of qualified immunity shields officials from civil liability so long as their conduct ‘does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’” Mullenix v. Luna, 557 U.S. 7 , 11 (2015) (per curiam) (quoting Pearson v. Callahan, 555 U.S. 223 , 231 (2009)). A defendant’s assertion of qualified immunity from suit under 42 U.S.C. § 1983 results in a presumption of immunity. Estate of Smart by Smart v. City of Wichita, 951 F.3d 1161 , 1168 (10th Cir. 2020). A plaintiff “can overcome this presumption 8 only by showing that (1) the officers’ alleged conduct violated a constitutional right, and (2) it was clearly established at the time of the violation, such that every reasonable official would have understood, that such conduct constituted a violation of that right.” Reavis ex rel. Estate of Coale v. Frost, 967 F.3d 978 , 984 (10th Cir. 2020) (citation and internal quotation marks omitted). The plaintiff must satisfy both prongs to overcome a qualified immunity defense, and we may exercise our discretion as to which prong to address first. See Pearson, 555 U.S. at 236 . 2. Excessive Force Under the Fourth Amendment “Excessive force claims can be maintained under the Fourth, Fifth, Eighth, or Fourteenth Amendment, depending on where the plaintiff finds himself in the criminal justice system at the time of the challenged use of force.” McCowan v. Morales, 945 F.3d 1276 , 1282–83 (10th Cir. 2019) (internal quotation marks omitted). Where, as here, the alleged excessive force occurred prior to arrest, it is the Fourth Amendment that applies. Estate of Booker v. Gomez, 745 F.3d 405 , 419 (10th Cir. 2014). “To state an excessive force claim under the Fourth Amendment, plaintiffs must show both that a seizure occurred and that the seizure was unreasonable.” Thomas v. Durastanti, 607 F.3d 655 , 663 (10th Cir. 2010) (internal quotation marks omitted). “[A]pprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment.” Tennessee v. Garner, 471 U.S. 1 , 7 (1985). Reasonableness is “judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham v. 9 Connor, 490 U.S. 386 , 396 (1989). “The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.” Id. at 396–97. “[T]he ‘reasonableness’ inquiry in an excessive force case is an objective one: the question is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Id. at 397 . This is a “totality of the circumstances” analysis. Garner, 471 U.S. at 8–9. When considering “the facts and circumstances of each particular case,” we specifically consider three factors outlined by the Supreme Court in Graham: (1) “the severity of the crime at issue,” (2) “whether the suspect poses an immediate threat to the safety of the officers or others,” and (3) “whether he is actively resisting arrest or attempting to evade arrest by flight.” 490 U.S. at 396 . We need touch only briefly on the first and third factors, which the district court found favored the Estate, because the parties largely agree the district court evaluated them correctly.12 12 The officers argue with regard to the first factor that “[a]lthough the initial encounter only involved a misdemeanor trespass the actions of [Dominic] during the encounter raised concern . . . including [Dominic’s] ‘fidgety’ stance and refusal to be patted down for weapons . . . [and] intentional retreat into the garage.” Aple. Br. at 15 (quoting App., Vol. I at 198). But the officers do not claim they suspected Dominic of a more severe crime. And the officers do not address the third factor at all. The Estate, for its part, does not disagree with the district court’s analysis of the first and third factors, but asserts these factors were improperly underweighted. 10  Our precedents instruct that the Graham factors are applied to conduct which is “immediately connected” to the use of deadly force. Romero v. Bd. of Cnty. Comm’rs of Cnty. of Lake, 60 F.3d 702 , 705 n.5 (10th Cir. 1995) (quotation marks omitted). Officers’ conduct prior to the seizure is also relevant to this inquiry: “The reasonableness of [officers’] actions depends both on whether the officers were in danger at the precise moment that they used force and on whether [their] own reckless or deliberate conduct during the seizure unreasonably created the need to use such force.” Sevier v. City of Lawrence, 60 F.3d 695 , 699 (10th Cir. 1995) (footnote omitted). We have held that even when an officer uses deadly force in response to a clear threat of such force being employed against him, the Graham inquiry does not end there. Allen v. Muskogee, 119 F.3d 837 , 839, 841 (10th Cir. 1997) (holding a rational jury could conclude officers’ reckless conduct created lethal situation and that would constitute a violation of a decedent’s Fourth Amendment rights). Instead, we consider whether the Graham factors were met under the totality of the circumstances, including whether the officers approached the situation in a manner they knew or should have known would result in escalation of the danger. See id. at 841 . For example, in Allen, the decedent, Terry Allen, “left his home after an altercation with his wife and children.” 119 F.3d at 839 . The altercation was reported to police, along with information that Mr. Allen had several guns and ammunition with him and had threatened family members. Id. Shortly thereafter, Mr. Allen’s sister reported that Mr. Allen was parked in front of her house and was threatening 11 suicide. Id. When police arrived, Mr. Allen was “sitting in the driver’s seat with one foot out of the vehicle. He had a gun in his right hand, which was resting on the console between the seats.” Id. After removing the bystanders, a Lieutenant Smith repeatedly told Mr. Allen to drop the gun, but he refused. Id. Two additional officers arrived on the scene, and the situation soon escalated: Lt. Smith then reached into the vehicle and attempted to seize Mr. Allen’s gun, while Officer [McDonald] held Mr. Allen’s left arm. Officer Bryan Farmer, who arrived with Officer [McDonald], approached Mr. Allen’s car from the passenger side, and attempted to open a passenger side door. Mr. Allen reacted by pointing the gun toward Officer Farmer, who ducked and moved behind the car. Mr. Allen then swung the gun toward Lt. Smith and Officer McDonald, and shots were exchanged. Lt. Smith and Officer McDonald fired a total of twelve rounds into the vehicle, striking Mr. Allen four times. The entire sequence, from the time Lt. Smith arrived to the time Mr. Allen was killed, lasted approximately ninety seconds. Id. Mr. Allen’s estate sued, asserting that the officers used excessive force. After the district court granted the individual officers summary judgment on the ground their actions did not violate the Fourth Amendment, we reversed, holding that “the officers’ preceding actions were so ‘immediately connected’ to Mr. Allen’s threat of force that they should be included in the reasonableness inquiry,” and that “a reasonable jury could conclude . . . that the officers’ actions were reckless and precipitated the need to use deadly force.” Id. at 841 (quoting Romero, 60 F.3d at 705 n.5). We reached a similar conclusion in Estate of Ceballos. There, Quianna Vigil called police to report her husband Jamie Ceballos “was in their driveway with a baseball bat ‘acting crazy,’ and that he was drunk and probably on drugs.” Estate of 12 Ceballos, 919 F.3d at 1208–09. Ms. Vigil indicated she had left the home but wanted Mr. Ceballos removed so she could return to put her seventeen-month-old child to bed. Id. at 1209. Defendant William Husk and several other police officers responded, finding Mr. Ceballos alone in the driveway. Id. at 1209–10. They repeatedly ordered Mr. Ceballos to drop his bat, but instead he went into his garage. Id. at 1210. Officer Husk drew his firearm and another officer drew a taser. Id. Mr. Ceballos then came out of the garage and began advancing toward the officers, who did not retreat. Id. at 1210–11. Instead, they repeatedly ordered him to drop the bat. Id. at 1210. When Mr. Ceballos did not comply, Officer Husk fired, killing him. Id. at 1211. Mr. Ceballos’s family sued, claiming the officers acted recklessly, thereby creating the need for deadly force. We agreed, and further concluded that our earlier “decision in Allen would have put a reasonable officer on notice that the reckless manner in which Husk approached Ceballos and his precipitous resort to lethal force violated clearly established Fourth Amendment law.” Id. at 1220. We also applied Allen in Hastings v. Barnes, 252 F. App’x 197 (10th Cir. 2007) (unpublished).13 There, Todd Hastings telephoned Family and Children 13 Although this decision is unpublished, we relate the facts in some detail to explain why we find it persuasive. See Noreja v. Comm’r, SSA, 952 F.3d 1172 , 1176 (10th Cir. 2020) (“[I]n appropriate circumstances [we look] to an unpublished opinion if its rationale is persuasive and apposite to the issue presented.”); 10th Cir. R. 32.1(A) (“Unpublished decisions are not precedential, but may be cited for their persuasive value.”). 13 Services, expressing thoughts of suicide and a plan to asphyxiate himself. Id. at 198 . Four police officers responded to perform a well-being check, after being informed that Mr. Hastings was suicidal, non-violent, and not known to be armed. Id. at 198-99 . The officers arrived at Mr. Hastings’s residence, engaged him in conversation, and confirmed he had threatened to harm himself. Id. at 199 . When an officer asked Mr. Hastings to step onto the front porch and talk, Mr. Hastings seemed nervous and said he wanted to get his shoes. Id. Before Mr. Hastings could shut the door, one officer blocked it with his foot and all four officers entered the house and cornered Mr. Hastings in his bedroom. Id. As the officers opened the bedroom door, Mr. Hastings picked up a Samurai sword, initially holding it “in a defensive manner, not aggressively.” Id. at 199–200. The officers repeatedly told Mr. Hastings to put the sword down, but he did not comply Id. at 200 . When one of the officers employed pepper-spray, Mr. Hastings “turned the sword toward the officers and began moving toward them.” Id. The officers “attempted to retreat[,] but it was too crowded in the bedroom’s doorway.” Id. Two of the officers fired at Mr. Hastings, killing him. Id. Mr. Hastings’s brother sued the officers who fired shots. Id. at 198 . The officers moved for summary judgment on the issue of qualified immunity, but the district court denied their motion. Id. On appeal, this court affirmed. We acknowledged that, “[a]t the moment of the shooting, [Mr. Hastings] was advancing toward [the officers] with the sword.” Id. at 203 . Thus, “viewed in isolation, the shooting was objectively reasonable under the Fourth Amendment.” Id. Nevertheless, we looked to Allen and Sevier, along with Medina v. Cram, 252 F.3d 14 1124, 1132 (10th Cir. 2001), and Jiron v. City of Lakewood, 392 F.3d 410 , 415 (10th Cir. 2004), for the general principle that officers’ reckless and deliberate conduct in creating a situation requiring deadly force may result in a Fourth Amendment violation. Id. Applying that principle, we held that viewing the facts in the light most favorable to [the plaintiff], a constitutional violation occurred. [Mr. Hastings] was not a criminal suspect. He was a potentially mentally ill/emotionally disturbed individual who was contemplating suicide and had called for help. Rather than attempt to help [Mr. Hastings, the officers] crowded themselves in [his] doorway (leaving no room for retreat), issued loud and forceful commands at him and pepper- sprayed him, causing him to become even more distressed. At the time they pepper-sprayed him, [Mr. Hastings] was not verbally or physically threatening them. At least one of the officers heard [Mr. Hastings] say “‘help me’” or “‘they are coming to get me.’” (R. App. at 210.) Although [Mr. Hastings] had a sword, his stance, at least up until the time he was pepper-sprayed, was defensive not aggressive, posing no threat to anyone but himself. A reasonable jury could find that under these facts [the officers’] actions unreasonably escalated the situation to the point deadly force was required. Id. (footnote omitted). Moreover, we held the officers were put on notice this would be a violation by Allen and Sevier, which “clearly establish[ed] that an officer acts unreasonably when he aggressively confronts an armed and suicidal/emotionally disturbed individual without gaining additional information or by approaching him in a threatening manner” Id. at 206. Allen, Ceballos, and Hastings teach that the totality of the facts to be considered in determining whether the level of force was reasonable includes any immediately connected actions by the officers that escalated a non-lethal situation to a lethal one. Accordingly, the totality of the circumstances includes application of the 15 Graham and Estate of Larsen factors to the full encounter, from its inception through the moment the officers employed force. C. Analysis The Estate makes three arguments why the officers are liable: (1) the use of deadly force was not justified when the officers opened fire because Dominic’s movements were defensive; (2) Officer Girdner’s final shot was unjustified because even if Dominic originally presented a threat, he was no longer a threat when Officer Girdner fired the final shot; and (3) even if the use of deadly force was justified at the instance of shooting, the officers are nonetheless liable because they recklessly and deliberately created the circumstances necessitating deadly force. The officers argue that Dominic posed a serious threat to their safety through his aggressive actions, justifying the use of deadly force, and that Dominic’s arming himself with the hammer was not the result of their actions. The parties also dispute whether, if the officers’ conduct violated Dominic’s rights, decisions from the Supreme Court or this court clearly established such conduct was unlawful. The district court agreed with the officers, but it did so based on findings from the video evidence that demonstrate a failure to view that evidence in the light most favorable to the Estate. First, the district court found Dominic precipitated the retreat into the garage. As indicated, we conclude that a reasonable jury could view the video as showing that Officer Girdner took the first step forward, and Dominic responded by moving deeper into the garage. The district court also described Dominic’s conduct in the garage, right before shots were fired, as “rais[ing] the 16 hammer still higher as if he might be preparing to throw it, or alternatively, charge the officers.” App., Vol. III at 600. Although this is one fair interpretation of the video, we are not convinced it is the only way it can be viewed. A reasonable jury could find that Dominic was assuming a defensive, rather than an aggressive, stance. Viewing the facts in the light most favorable to the nonmoving party—that Dominic acted defensively—does not, by itself, warrant reversal if the facts, properly construed, still support qualified immunity. We undertake that analysis now, ultimately concluding that, if the facts are found by the jury in the light most favorable to the Estate, the officers are not entitled to qualified immunity. We therefore reverse the decision of the district court. 1. Constitutional Violation To determine whether a reasonable jury could find that the officers violated Dominic’s constitutional right to be free from excessive force, we apply the Graham factors to the facts in the light most favorable to the Estate. For purposes of discussion, we consider the first and third factors before turning to the crucial second factor. 17  a. The Graham factors i. Severity of the crime Based on the 911 call, the officers may have had probable cause to believe the initial encounter involved misdemeanor trespass.14 It is undisputed that the officers knew Dominic was Joy’s ex-husband, he was intoxicated, and Joy wanted him removed from the property. There is no indication from the body camera video that Dominic was violent or otherwise belligerent at the beginning of his encounter with the officers. Accordingly, the severity of this nonviolent misdemeanor is low. When the severity of the crime is low, such as when the alleged crime was a misdemeanor or unaccompanied by violence, this factor weighs against an officer’s use of force. See Fogarty v. Gallegos, 523 F.3d 1147 , 1160 (10th Cir. 2008) (concluding the severity of the crime was low when the suspect engaged in disorderly conduct, a petty misdemeanor under New Mexico law, “and the amount of force used should have been reduced accordingly”). ii. Active resistance or evasion of arrest It is undisputed that the officers did not intend to arrest Dominic when they first encountered him in the garage doorway. If the officers had no intent to arrest Dominic, he could not have been actively resisting arrest or attempting to evade 14 Although the dispatcher on the 911 call told Joy that Dominic would be arrested for public intoxication, neither the district court nor the parties identify this as the crime at issue. 18 arrest by flight when he backed into the garage in response to Officer Girdner’s approach. The first and third Graham factors therefore weigh against finding the officers’ use of force reasonable. iii. Immediacy of threat “The second Graham factor . . . is undoubtedly the ‘most important’ and fact intensive factor in determining the objective reasonableness of an officer’s use of force.” Pauly v. White, 874 F.3d 1197 , 1215–16 (10th Cir. 2017) (quoting Bryan v. MacPherson, 630 F.3d 805 , 826 (9th Cir. 2010)). This is particularly true in deadly force cases, because “deadly force is justified only if a reasonable officer in the officer’s position would have had probable cause to believe that there was a threat of serious physical harm to himself or others.” Cordova v. Aragon, 569 F.3d 1183 , 1192 (10th Cir. 2009). In evaluating the degree of threat we consider “(1) whether the officers ordered the suspect to drop his weapon, and the suspect’s compliance with police commands; (2) whether any hostile motions were made with the weapon towards the officers; (3) the distance separating the officers and the suspect; and (4) the manifest intentions of the suspect.” Estate of Larsen ex rel. Sturdivan v. Murr, 511 F.3d 1255 , 1260 (10th Cir. 2008). The Estate makes three arguments as to why the second Graham factor should weigh in its favor. First, it contends Dominic did not pose a threat of serious physical harm because he was “‘armed’ only with a hammer . . ., did not charge or lunge at the 19 [o]fficers and did not swing or slash the hammer toward the [o]fficers.” Aplt. Br. at 16. According to the Estate, when Dominic moved the hammer back behind his head, he did so “in a defensive stance.” Aplt. Br. at 17. Second, the Estate contends, “there was clearly no reasonable basis for [Officer] Girdner to fire another shot into [Dominic] after he was already, and obviously, critically wounded, crouched over and helpless.” Aplt. Br. at 20. Third, the Estate argues “any arguable threat posed by [Dominic] was directly attributable to the officers’ own reckless or deliberate conduct during the seizure.” Aplt. Br. at 18. The officers disagree and argue that, by refusing to put the hammer down, Dominic indisputably posed a threat to them. They suggest Dominic was “rais[ing] the hammer higher” and taking “a stance which looked like he was going to charge at the officers or throw the hammer at them,” and they thus reasonably believed he posed an immediate threat of serious bodily injury. Aple. Br. at 16–17. With respect to the final shot, Officer Girdner contends he fired in response to Dominic “yell[ing] out and rais[ing] the hammer again.” Aple. Br. at 17. Thus, the officers contend, the use of deadly force was reasonable. There is no dispute Dominic repeatedly refused to obey the officers’ commands to drop his weapon. It is also undisputed that Officer Girdner was within eight to ten feet of Dominic. And Officer Reed, having moved in with his taser, was even closer. Whether Dominic made any hostile movements toward the officers is less clear. Viewing the evidence in the light most favorable to the Estate, Dominic moves 20 the hammer behind his head in a defensive stance, and Dominic does not charge or lunge at the officers. Dominic’s manifest intentions are also susceptible to conflicting interpretations. Although Dominic does raise the hammer above his head, the video shows no winding up movements made by Dominic in preparation of throwing it at the officers. Moreover, immediately before raising the hammer in response to Officer Reed’s approach, Dominic says, in a relatively calm manner, “I have done nothing wrong here, man. I’m in my house. I’m doing nothing wrong.” Ex. 7 at 00:45–00:49. Thus, while the district court’s interpretation of the video evidence is plausible, a reasonable jury could conclude Dominic did not make any movements to put the officers in fear of serious physical harm. This does not end the inquiry, however, because “[t]he ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396 . Accordingly, we must analyze whether the officers may have reasonably misperceived this conduct, which we do in part II.C.1.a.v, infra. Before undertaking that analysis, however, we first apply the Graham factors to the final shot, which is separately challenged by the Estate. iv. The final shot The Estate argues that even if the initial shots could be justified, the final shot—fired while Dominic was wounded and on the ground—cannot be. In Estate of Smart, we considered a similar claim. There, we explained that where an officer has an “opportunity to perceive that any threat had passed by the time he fired his final 21 shots,” he violates the Fourth Amendment by shooting anyway. 951 F.3d at 1175–76. The Estate argues that occurred here. The officers disagree, painting the garage encounter as a rapidly developing, highly charged incident that required them to make split-second decisions. Aple. Br. at 19–20 (quoting Plumhoff v. Rickard, 572 U.S. 765 , 777 (2014) (“It stands to reason that, if police officers are justified in firing at a suspect in order to end a severe threat to public safety, the officers need not stop shooting until the threat has ended.”)). See also Cordova, 569 F.3d at 1188 (“Reasonableness ‘must be judged from the perspective of a reasonable officer on the scene,’ who is ‘often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.’”) (quoting Graham, 490 U.S. at 396–97). It is true that the speed of the encounter makes it difficult to separate the analysis of the first shots and the final one. The first and third factors from Graham—the severity of the crime and whether Dominic was evading arrest—are not altered by the intervening shots. Applying the Estate of Larsen factors to assess the immediacy of the threat under the second Graham factor, Dominic’s failure to comply with police commands continued after the first shots and the distance between the officers and Dominic did not materially change, although the officers appear to take a step back. With respect to hostile movements and manifest intent, there are at most two seconds between the initial shots and the last one, during which Dominic does appear to lift the hammer. But he is in a crouched position and angled 22 away from the officers when he does so, and it is unclear whether the cry he utters is due to pain or aggression. Thus, as with the initial volley, the circumstances surrounding the final shot are subject to different interpretations. And those facts are part of the totality of the circumstances that we must consider in determining whether the officers are entitled to qualified immunity. v. Reasonable mistake Even if the officers misperceived Dominic’s defensive movements as aggressive, they are entitled to qualified immunity if the misperception was reasonable. Estate of Turnbow v. Ogden City, 386 F. App’x 749, 753 (10th Cir. 2010) (unpublished) (“The officers are not required to be correct in their assessment of the danger presented by the situation, only that their assessment be objectively reasonable.”). This applies both to the officers’ possible misperception that Dominic’s defensive movements were aggressive prior to firing and to Officer Girdner’s possible misperception that Dominic remained a threat after the first volley of shots. That Dominic had only a hammer rather than a gun or other long-range weapon, was engaging verbally with the officers, and never dropped his left arm from what can be interpreted as a defensive position, could allow a jury to find that the officers unreasonably misperceived his raising the hammer as an aggressive movement. And that Dominic was on his knees angled away from the officers when he again raised the hammer could allow a jury to conclude Officer Girdner’s final 23 shot was also based on an unreasonable misperception of Dominic as a continuing threat. To be sure, a reasonable jury could also find the officers acted reasonably under the circumstances they perceived, even if they were mistaken. Taken together, the Graham factors as applied to the few seconds in which Dominic was wielding a hammer would present a close call on whether summary judgment was proper. But we need not and do not reach any conclusion on that issue because our review is not limited to that narrow timeframe. Instead, we consider the totality of circumstances leading to the fatal shooting, including the actions that resulted in Dominic being cornered in the back of the garage by three armed police officers. See Sevier, 60 F.3d at 699 (“The reasonableness of [officers’] actions depends both on whether the officers were in danger at the precise moment that they used force and on whether [their] own reckless or deliberate conduct during the seizure unreasonably created the need to use such force.” (footnote omitted)). b. Conduct of police officers The district court found “no issue for a reasonable jury” as to whether the officers’ conduct toward Dominic unreasonably created the need for the use of deadly force. App., Vol. III at 603. The district court likely arrived at this conclusion based on its view that Dominic “backed up and then turned and walked away from [Officer] Girdner to the back of the garage.” App., Vol. III at 599. But, as explained, the video seems to depict Officer Girdner taking the first step toward Dominic, causing Dominic to step back from the side door into the garage. Then, as Officer Girdner continues to move forward, Dominic retreats further into the garage, eventually 24 reaching the work bench and retrieving the hammer. When the encounter began, the officers had no basis for an involuntary frisk15 and no intention of arresting Dominic. When the video is viewed in the light most favorable to the Estate, Officer Girdner backs Dominic into the garage and the other officers follow. By the time Dominic turns around to face the officers, he is effectively cornered in the garage. The three officers, who claimed they had no intention of arresting him and wanted only to get him a ride out of there, are now blocking the only exit from the garage and the only path to the ride that Dominic claims is on the way. Dominic, who the officers knew to be intoxicated, then grabs a hammer and extends one arm toward the officers. When Dominic pulls the hammer back, he does so in response to Officer Reed’s advance with the taser.16 Thus, we must determine whether a jury could conclude Officer Girdner’s initial advance toward Dominic and the officers’ 15 Officer Girdner stated he asked to pat Dominic down because he “acted nervous and fidgety when I encountered him,” App., Vol. I at 198, and “was wearing clothes at the time where it would have been . . . easy to conceal a weapon,” App., Vol. II at 326. But the “fidgeting,” according to Officer Reed, was Dominic touching his own chest. App., Vol. II at 354–55. This movement was accompanied by Dominic stating “Look, I don’t have anything” in response to Officer Girdner’s request to pat him down. App., Vol. II at 354–55. A jury could therefore disbelieve Officer Girdner’s testimony that Dominic was fidgeting prior to the request, believing instead Officer Reed’s testimony that, not only was the fidgeting a response to the request, it was made as part of Dominic’s overall communication that he was unarmed. Further, “nervousness alone cannot support reasonable suspicion.” United States v. Harris, 313 F.3d 1228 , 1236 (10th Cir. 2002) (quotation marks omitted). In the absence of an argument to the contrary from the officers, we assume Officer Girdner lacked reasonable suspicion for an involuntary pat down. 16 Because Officer Reed is not a defendant, the reasonableness of his actions, i.e., his advancement toward Dominic with the taser, is not at issue in this case. 25 subsequent cornering of Dominic in the back of the garage recklessly created the situation that led to the fatal shooting. The Estate claims the jury could reach that finding, pointing to our decisions in Allen v. Muskogee, 119 F.3d 837 (10th Cir. 1997), and Estate of Ceballos v. Husk, 919 F.3d 1204 (10th Cir. 2019). We agree those decisions are instructive. As discussed above, in each of those decisions we held officers violated the Fourth Amendment where they recklessly confronted armed and impaired individuals, creating the need for the use of deadly force. Here, after Dominic declined Officer Girdner’s request to frisk him, Officer Girdner advanced toward Dominic, and Dominic retreated into the garage. All three officers followed, cornering Dominic in the garage where he armed himself with a hammer. The full encounter, from the request to frisk to Dominic’s collapse on the floor, took less than a minute and is properly considered as part of the totality of the circumstances. See Allen, 119 F.3d at 841 (“The entire incident, from the time [the officer] arrived to the time of the shooting, took only ninety seconds. Clearly, the officers’ preceding actions were so immediately connected to Mr. Allen’s threat of force that they should be included in the reasonableness inquiry.” (internal quotation marks omitted)). As in Allen and Estate of Ceballos, the officers here advanced upon an impaired individual, likely escalating the tension and fear. See Allen, 119 F.3d at 841, 843 (describing the officers’ approach and characterizing Mr. Allen as an “armed mentally ill or emotionally upset person[]”); see also Estate of Ceballos, 919 F.3d 26 at 1217 (“[T]he responding officers knew Ceballos’s capacity to reason was diminished, whatever the underlying reason might have been—mental health problems, emotional distress, drunkenness, or drugs.”). And like the officers in Hastings, the officers here followed Dominic into an enclosed space and blocked the exit, resulting in Dominic picking up a handy implement to defend himself. Hastings, 252 F. App’x at 199. The officers in both cases drew their weapons in response to the individual grabbing a weapon and fired only after the individual made what the officers perceived as an offensive movement. But the arming and perceived offensive movements were in direct response to the officers’ conduct. Id. at 199, 203 . Thus, a jury could reasonably determine that the officers here, like those in Estate of Ceballos, Allen, and Hastings, unreasonably escalated a non-lethal situation into a lethal one through their own deliberate or reckless conduct. c. Synthesis Our analysis of the Graham factors at the moment the officers used deadly force was inconclusive, but instructive. We determined a reasonable jury could conclude Dominic’s movement was purely defensive, but we reached no conclusion as to whether a misperception would be reasonable. This is because any analysis of whether a reasonable jury could find that the use of force here was not justified, must include the fact that an intoxicated and unarmed Dominic was backed into the garage by three armed officers, at which point Dominic armed himself with the hammer. The application of Allen, Hastings, and Estate of Ceballos shows that the officers’ role in causing this essential set of facts is not only relevant, but 27 determinative here. When the officers first made contact with Dominic, the Graham analysis would likely not have justified any force, let alone deadly force. A jury could find that the officers recklessly created a lethal situation by driving Dominic into the garage and cornering him with his tools in reach. When Dominic grabbed the hammer, the officers drew firearms and began shouting. A reasonable jury could find that the officers’ reckless conduct unreasonably created the situation that ended Dominic’s life. *** Viewing the facts in the light most favorable to the Estate, including the actions of the police officers that may have recklessly escalated the situation, a reasonable jury could find that Officers Girdner and Vick violated Dominic’s Fourth Amendment right to be free from unreasonable seizure. 2. Clearly Established Law We have concluded that summary judgment was improper on the first prong of qualified immunity—violation of a constitutional right. But we must uphold the grant of summary judgment unless the Estate can also establish the second prong necessary to overcome the presumption of qualified immunity—that the constitutional right violated was clearly established. Pearson, 555 U.S. at 237, 243 . In making that determination, we may “not . . . define clearly established law at a high level of generality.” City of Escondido v. Emmons, 139 S. Ct. 500 , 503 (2019) (per curiam) (quoting Kisela v. Hughes, 138 S. Ct. 1148 , 1152 (2018) (per curiam)). And this directive “is particularly important in excessive force cases.” Id. 28 “Nevertheless, our analysis is not a scavenger hunt for prior cases with precisely the same facts, and a prior case need not be exactly parallel to the conduct here for the officials to have been on notice of clearly established law.” Reavis, 967 F.3d at 992 (quotation marks omitted); see Weigel v. Broad, 544 F.3d 1143 , 1153 (10th Cir. 2008) (“The plaintiff is not required to show . . . that the very act in question previously was held unlawful . . . .” (quotation marks omitted)). Rather, “‘the salient question is whether the state of the law’ at the time of an incident provided ‘fair warning’ to the defendants ‘that their alleged [conduct] was unconstitutional.’” Tolan v. Cotton, 572 U.S. 650 , 656 (2014) (alteration in original) (quoting Hope v. Pelzer, 536 U.S. 730 , 741 (2002)). This requirement is satisfied where there exists “a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains.” Halley v. Huckaby, 902 F.3d 1136 , 1149 (10th Cir. 2018) (quotation marks omitted). Having held that a reasonable jury could find the officers violated the Fourth Amendment under the Allen line of cases, our analysis of clearly established law narrows to Allen and Sevier.17 As an unpublished decision, Hastings “provides little 17 The Estate also relies on Tenorio v. Pitzer, 802 F.3d 1160 (10th Cir. 2015), Walker v. City of Orem, 451 F.3d 1139 (10th Cir. 2006), and Zuchel v. City & County of Denver, 997 F.2d 730 (10th Cir. 1993). Those cases, it proffers, clearly establish that because Dominic was “holding ‘only’ a hammer, ‘not a gun’” and “did not charge or lunge at the [o]fficers and . . . made no other aggressive move towards the [o]fficers,” the officers violated clearly established law even setting aside their conduct in creating the need for deadly force. Appellant Br. at 22 (quoting Walker, 451 F.3d at 1160 ). 29 support for the notion that the law is clearly established.” Grissom v. Roberts, 902 F.3d 1162 , 1168 (10th Cir. 2018) (quotation marks omitted). Estate of Ceballos was decided after the underlying events here and, as we explained there, resolution of the clearly established law prong is necessarily governed by cases published before the alleged violation. 919 F.3d at 1219. But Ceballos does advance our analysis because it concludes that Allen, an opinion issued before the officers’ actions here, clearly established that an officer violates the Fourth Amendment when his or her reckless or deliberate conduct results in the need for lethal force or when the officers rely on lethal force unreasonably as a first resort in confronting an irrational suspect who is armed only with a weapon of short-range lethality and who has been confined on his own property.18 Estate of Ceballos, 919 F.3d at 1219. This clearly established law is directly applicable to the facts in this case: Here, the officers knowingly confronted a potentially irrational subject (Dominic was Having utilized the traditional Graham analysis to pinpoint what factors may have made the use of force justified at the moment of the shooting, we declined to limit our analysis to that moment. Accordingly, we need not determine whether, as the Estate asserts, Tenorio, Walker, and Zuchel clearly establish that, at the moment of the shooting, deadly force was unjustified. Instead, we focus on the Allen line of cases and the question of whether it was clearly established that in the totality of the circumstances, the officers’ conduct (including reckless conduct creating the need for the use of deadly force) violated Dominic’s rights. 18 The inclusion of the phrase “on his own property” in Estate of Ceballos might seem to distinguish this case in a material manner, but that qualifier is a description of the facts in Estate of Ceballos, not Allen. In Allen, the decedent was approached and killed in front of his sister’s residence, not his own. 119 F.3d at 839 . 30 inebriated) who was armed only with a weapon of short-range lethality (a hammer) and who had been confined (in a garage). Allen established that applying lethal force after deliberately or recklessly manufacturing the need to do so in such a scenario is a constitutional violation. Id.;see also Hastings, 252 F. App’x at 206 (holding officers’ conduct violated law clearly established by Allen and Sevier “that an officer acts unreasonably when he aggressively confronts an armed and suicidal/emotionally disturbed individual without gaining additional information or by approaching him in a threatening manner (i.e., running and screaming at him).”). Moreover, the distinction in facts between this case and Allen tends to show why this matter is further from the line of reasonableness, not closer. In Allen, the officers had not threatened the decedent, but here Officer Girdner was moving toward Dominic, in an apparent effort to search him without a reasonable suspicion Dominic was armed. In Allen, the decedent was already armed when the officers arrived, whereas Dominic did not arm himself until after the officers had cornered him. And in Allen, the decedent had a gun; Dominic had only a hammer. See Estate of Ceballos, 919 F.3d at 1216 (“Allen was armed with a weapon—a gun—capable of harming someone from a much greater distance and with greater lethal potential than Ceballos’s baseball bat (or at worst, his pocket knife)” so there was “stronger justification for the police shooting at issue there”). Our conclusion that Allen clearly established the officers’ conduct was unconstitutional when viewed in the light most favorable to the Estate, is bolstered by our similar holdings in Hastings and Estate of Ceballos. A reasonable officer, faced 31 with the circumstances here and presumptively aware of our decision in Allen, would have known that cornering Dominic in the garage might recklessly or deliberately escalate the situation, such that an officer’s ultimate use of deadly force would be unconstitutional. III. CONCLUSION For these reasons, we REVERSE the district court’s grant of summary judgment to Officers Girdner and Vick and REMAND for further proceedings consistent with this opinion. 32

2020-12-01 17:01:33.417974+00

http://www.azcourts.gov/Portals/0/OpinionFiles/Supreme/2020/CV190247PR.pdf

IN THE SUPREME COURT OF THE STATE OF ARIZONA STATE OF ARIZONA, EX REL. MARK BRNOVICH, ATTORNEY GENERAL, Plaintiff/Appellant, v. ARIZONA BOARD OF REGENTS, Defendant/Appellee. No. CV-19-0247-PR Filed November 25, 2020 Appeal from the Superior Court in Maricopa County The Honorable Connie Contes, Judge No. CV2017-012115 AFFIRMED IN PART, REVERSED IN PART, AND REMANDED Memorandum Decision of the Court of Appeals, Division One 1 CA-CV 18-0420 Filed August 20, 2019 VACATED COUNSEL: Mark Brnovich, Arizona Attorney General, Brunn “Beau” W. Roysden III (argued), Solicitor General, Joseph A. Kanefield, Chief Deputy and Chief of Staff, Evan G. Daniels, Drew C. Ensign, Robert J. Makar, Katherine H. Jessen and Dustin D. Romney, Assistant Attorneys General, Phoenix, Attorneys for State of Arizona Paul F. Eckstein, Joel W. Nomkin (argued), Shane R. Swindle, Thomas D. Ryerson, and Austin C. Yost, Perkins Coie LLP, Phoenix, Attorneys for Arizona Board of Regents  STATE EX REL. MARK BRNOVICH V. ABOR Opinion of the Court William G. Klain (argued), Michelle H. Swann, Brian J. Pouderoyen and Jason A. Clark, Lang & Klain, P.C., Attorneys for Amici Curiae John A. “Jack” LaSota, Robert Corbin, Terry Goddard and Thomas Horne Whitney DuPree, King & Spalding LLP, Atlanta GA; Paul Alessio Mezzina, King & Spalding LLP, Washington, DC; Matthew Warren, King & Spalding LLP, Chicago, IL, Attorneys for Amici Curiae Law Professors Noel Fidel, Law Office of Noel Fidel, Phoenix, Attorneys for Amici Curiae Secretary of State and Superintendent of Public Instruction Aaron M. Duell, Burch & Cracchiolo, P.A., Phoenix, Attorney for Amicus Curiae The James G. Martin Center for Academic Renewal Dominic E. Draye (argued), Greenberg Taurig, LLP, Phoenix, Attorneys for Amici Curiae Governors of the State of Arizona Brett W. Johnson, Colin P. Ahler, and Tracy A. Olson, Snell & Wilmer, L.L.P., Phoenix, Attorneys for Amici Arizona State Treasurer Kimberly Yee, Arizona Commerce Authority, Arizona Chamber of Commerce and Industry, Greater Phoenix Chamber of Commerce, Greater Phoenix Economic Council, Greater Phoenix Leadership, League of Arizona Cities and Towns, Arizona Chapter of NAIOP: The Commercial Real Estate Development Association, Southern Arizona Leadership Council, and Valley Partnership JUSTICE BOLICK authored the opinion of the Court, in which VICE CHIEF JUSTICE TIMMER, JUSTICES GOULD, LOPEZ, BEENE, MONTGOMERY and JUDGE ESPINOSA joined. * *Chief Justice Robert Brutinel has recused himself from this case. Pursuant to article 6, section 3 of the Arizona Constitution, the Honorable Philip G. Espinosa, Judge of the Arizona Court of Appeals, Division Two, was designated to sit in this matter. 2  STATE EX REL. MARK BRNOVICH V. ABOR Opinion of the Court JUSTICE BOLICK, opinion of the Court: ¶1 The Attorney General filed a lawsuit against the Arizona Board of Regents (“ABOR” or the “Board”) alleging that (1) its tuition- setting policies violate article 11, section 6 of the Arizona Constitution and (2) subsidizing in-state tuition for students who are not “lawfully present” constitutes an unlawful expenditure of public funds. The trial court dismissed the action, holding that the Attorney General lacked constitutional or statutory authority to litigate it, and the court of appeals affirmed. We agree with those courts that the Attorney General is not authorized to proceed with the first set of claims, but we hold that the trial court erred by granting the motion to dismiss the latter challenge. BACKGROUND ¶2 The Attorney General’s lawsuit against ABOR consists of six counts. Counts I–V allege that the Board’s policies violate the constitutional guarantee that instruction provided by Arizona postsecondary institutions “shall be as nearly free as possible.” Ariz. Const. art. 11, § 6. Count VI alleges that by subsidizing in-state tuition for students who are not “lawfully present,” ABOR violated A.R.S. §§ 15-1803(B) and -1825(A), failed to collect monies as required by A.R.S. § 35-143, and caused illegal payment of public monies in violation of A.R.S. § 35-212. The initial complaint requested declaratory, injunctive, and special action relief. The Attorney General subsequently amended his complaint to seek recovery of illegally spent public monies. The trial court dismissed the complaint with prejudice, concluding that the Attorney General lacked authority to bring the lawsuit. ¶3 While this case was pending on appeal, this Court ruled in State ex rel. Brnovich v. Maricopa Community College District Board that it was illegal for state postsecondary institutions to award in-state tuition to students who were not lawfully present. 243 Ariz. 539 , 540 ¶ 1 (2018). Thereafter, ABOR announced it would discontinue providing in-state tuition to such students. 3  STATE EX REL. MARK BRNOVICH V. ABOR Opinion of the Court ¶4 The court of appeals in this case affirmed the trial court. Citing Arizona State Land Department v. McFate, 87 Ariz. 139 (1960), the appeals court concluded that the Attorney General only possesses authority that is specifically granted by statute and that A.R.S. § 41-193 did not provide authority to bring Counts I–V. State v. Arizona Bd. of Regents (ABOR), No. 1 CA-CV 18-0420, 2019 WL 3941067 , at *3 ¶¶ 12–13 (Ariz. App. Aug. 20, 2019) (mem. decision). 1 As for Count VI, the court noted that because ABOR ceased providing in-state tuition to students who were not lawfully present, the request for injunctive relief was moot, but it proceeded to assess the claim because the Attorney General also sought declaratory and monetary relief. Id. at *2 ¶¶ 10–11. The court concluded that, because “collecting tuition does not constitute a ‘payment’ under A.R.S. § 35-212,” and “the State did not identify any qualifying ‘payment’” that constituted an illegal expenditure, Count VI was also properly dismissed. Id. at *3 ¶¶ 15–16. ¶5 All three members of the appeals court panel joined in a concurring opinion asserting that “McFate’s interpretation of ‘prosecute’ in A.R.S. § 41-193(A)(2) appears to be flawed.” Id. at *4 ¶ 22 (Morse, J., joined by Campbell & Cruz, JJ., specially concurring). Although acknowledging that legislative acquiescence and stare decisis might counsel against overruling McFate, the judges closely examined the meaning of the term “prosecute” in the statute and suggested it was at odds with its narrow application in McFate. Id. at *4–6 ¶¶ 23–33. ¶6 We granted review to determine whether the Attorney General’s complaint was authorized by A.R.S. § 41-193(A)(2) and/or § 35-212—a question that necessarily encompasses considering the fate of McFate, which the Attorney General asks us to reconsider—and, if the complaint was authorized, whether dismissal of Counts I–V was required on the grounds of political question or whether legislative immunity 1 The court noted that the Attorney General acknowledged McFate’s foreclosure of its argument that A.R.S. § 41-193 provides an independent basis for bringing the complaint but was preserving the question to present to this Court. Id. at *3 n.2. 4  STATE EX REL. MARK BRNOVICH V. ABOR Opinion of the Court required dismissal of the complaint in its entirety. All of these are issues of statewide importance. We have jurisdiction pursuant to article 6, section 5 of the Arizona Constitution. DISCUSSION ¶7 We review dismissal of a complaint de novo. Coleman v. City of Mesa, 230 Ariz. 352 , 355 ¶ 7 (2012). Dismissal is appropriate “only if ‘as a matter of law [] plaintiffs would not be entitled to relief under any interpretation of the facts susceptible of proof.’” Id. at 356 ¶ 8 (quoting Fid. Sec. Life Ins. Co. v. State Dep’t of Ins., 191 Ariz. 222 , 224 ¶ 4 (1998)). Looking only to the pleadings, we “must assume the truth of all well-pleaded factual allegations and indulge all reasonable inferences from those facts, but mere conclusory statements are insufficient.” Id. ¶ 9. Counts I–V ¶8 In Arizona, unlike some other states, the Attorney General has no inherent or common law authority. Instead, our constitution provides that “[t]he powers and duties of . . . [the] attorney-general . . . shall be as prescribed by law.” Ariz. Const. art. 5, § 9. Therefore, the authority of the Attorney General must be found in statute. See, e.g., Shute v. Frohmiller, 53 Ariz. 483 , 488 (1939) (observing that the Attorney General has no common law powers and that the term “prescribed by law” in article 5, section 9 refers to statutes), overruled in part on other grounds by Hudson v. Kelly, 76 Ariz. 255 (1953). ¶9 The Attorney General asserts he is authorized to challenge ABOR’s policies that allegedly violate the “nearly free as possible” provision by A.R.S. § 41-193, which establishes the Department of Law and specifies its duties. Section 41-193(A)(2) provides that the department “shall . . . [a]t the direction of the governor or when deemed necessary by the attorney general, prosecute and defend any proceeding in a state court other than the supreme court in which the state or an officer thereof is a party or has an interest.” 5  STATE EX REL. MARK BRNOVICH V. ABOR Opinion of the Court ¶10 The Attorney General interprets this language as conferring upon him the authority to file a lawsuit, even against other state agencies, when he finds that the state has an interest in the matter. The “interest” he identifies is “requiring governmental actors to demonstrate compliance with constitutional commands”: here, complying with the constitutional mandate that the state provide university tuition as nearly free as possible. By this broad reading of § 41-193(A)(2), the Attorney General would generally be free to initiate legal challenges against other state officers and agencies any time he concludes they are violating the law. ¶11 The Attorney General recognizes that McFate forecloses such a broad reading of § 41-193(A)(2). There, the Court considered “whether the Attorney General had standing to institute on behalf of the State of Arizona” an action against the Arizona State Land Department to enjoin a land sale that, inter alia, allegedly violated the state constitution. 2 87 Ariz. at 140–41. The Court held that § 41-193(A)(2) did not authorize the action, id. at 145–46, basing its holding on two propositions. First, “the assertion by the Attorney General in a judicial proceeding of a position in conflict with a State department is inconsistent with his duty as its legal advisor”; hence, such an action is permissible only if specifically authorized by statute. Id. at 144. Second, the statute “presupposes a properly instituted proceeding in which the State or an officer thereof ‘is a party or has an interest’ and does not permit the Attorney General, in the absence of specific statutory power, to initiate an original proceeding.” Id. at 145. The Court derived that holding from its conclusion that the term “prosecute,” in the context of § 41-193(A)(2), did not encompass commencing an action but only litigating an existing one. Id. at 145–46. 2 McFate and other cases use the term “standing” to describe the question of the Attorney General’s authority. But under Arizona law, “standing” is a prudential doctrine. See, e.g., Arizonans for Second Chances, Rehab., & Pub. Safety v. Hobbs, 249 Ariz. 396 , 405 ¶ 22 (2020). The present case and the other cases discussed herein determine whether the Attorney General possesses constitutional or statutory authority to take a particular action, which is different from standing. 6  STATE EX REL. MARK BRNOVICH V. ABOR Opinion of the Court ¶12 The Attorney General argues that we should overrule McFate because (1) it conflicts with State ex rel. Morrison v. Thomas, 80 Ariz. 327 (1956), and (2) it is based on an erroneous understanding of the term “prosecute” in § 41-193(A)(2). ¶13 In Morrison, the Attorney General filed a petition for review of a superior court judgment overturning the denial of a liquor license after the state liquor board declined to appeal that judgment. 80 Ariz. at 329 . The Court reviewed the “narrow question” of “whether the Attorney General can represent the State without the permission of the administrative officer whose department has been given the authority to handle such affairs generally.” Id. at 331 . The Court concluded that the Attorney General was authorized to seek review based on the predecessor to § 41-193(A)(1), which also required the Department of Law to “[p]rosecute and defend in the supreme court all causes in which the state or an officer thereof in his official capacity is a party.” 3 Id. at 332. This provision did not give the Attorney General control over the agency, the Court observed, but confirmed that “he may, like the Governor, go to the courts for protection of the rights of the people.” Id. ¶14 McFate distinguished Morrison on the ground that the Attorney General’s action in Morrison was in support of an agency determination, in the context of an ongoing case in which the state already was a party. 87 Ariz. at 147 . In the McFate context, where the Attorney General asserted that the agency was acting illegally, the Court held that the Arizona Constitution vests in the governor the exclusive authority “to protect the interests of the people and the State by taking care that the laws are faithfully executed.” Id. at 148 (citing Ariz. Const. art. 5, § 4, which provides that the governor “shall take care that the laws be faithfully executed”). We agree with McFate that its holding is not inconsistent with the resolution of the narrow question presented in Morrison. 3 The predecessor and current provisions contain identical language. 7  STATE EX REL. MARK BRNOVICH V. ABOR Opinion of the Court ¶15 However, we find merit in the Attorney General’s argument and the court of appeals’ concurrence that one of McFate’s core premises— that “prosecute” in § 41-193(A)(2) does not encompass initiating litigation—is flawed. The court of appeals’ concurrence meticulously examined usage of the term “prosecute” throughout Arizona history, including contemporaneously with the adoption of the statute, and found it ordinarily encompassed both the initiation and continuation of litigation in both the criminal and civil contexts. ABOR, 2019 WL 3941067 , at *5 ¶¶ 24–26 (Morse, J., specially concurring) (citing, inter alia, Black’s Law Dictionary 1450–51 (3d ed. 1933) and 1385 (4th ed. 1951), which defines “prosecute” and “prosecution” to include commencement of litigation); see also Florida ex rel. Shevin v. Exxon Corp., 526 F.2d 266 , 270 n.16 (5th Cir. 1976) (“We must reject any argument . . . that the right to ‘prosecute’ an action does not include the right to institute the action.”). The concurrence noted that the examples cited by McFate involved statutes of limitations and venue, in which more precise measures are appropriate, and therefore the term “prosecute” might logically be construed more narrowly. ABOR, 2019 WL 3941067 , at *5–6 ¶¶ 27–31. We agree with the concurrence that McFate’s interpretation of “prosecute” to exclude commencing litigation reflects an exception to the rule that is not applicable in this statutory context. To the extent the Attorney General is empowered to “prosecute” cases under § 41-193(A)(2), that authority includes initiating litigation. ¶16 But we affirm McFate’s core holding that § 41-193(A)(2) does not provide the Attorney General with authority to right constitutional wrongs committed by state officials and agencies. We do so as a matter of stare decisis, statutory construction, and legislative validation of McFate. ¶17 The doctrine of stare decisis is based upon the value to the rule of consistency, continuity, and predictability. See Galloway v. Vanderpool, 205 Ariz. 252 , 256 ¶ 16 (2003) (“[S]tare decisis . . . seeks to promote reliability so that parties can plan activities knowing what the law is.”). The doctrine is most salient when we interpret statutes, because it is easier for the legislature to correct any misinterpretations it perceives we have made in that context. See, e.g., Kimble v. Marvel Ent., 576 U.S. 446 , 456 (2015); Galloway, 205 Ariz. at 256 ¶ 16 (“Importantly, our deference to precedent is strongest when prior decisions construe a statute.”); Antonin 8  STATE EX REL. MARK BRNOVICH V. ABOR Opinion of the Court Scalia & Bryan A. Gardner, Reading Law: The Interpretation of Legal Texts 255 (2012) (Stare decisis “has special force in statutory cases” because a legislature “can change the law whose meaning the prior judicial interpretation established.”). ¶18 As we are construing a statute, stare decisis holds considerable sway, as do the duration and stability of the precedent the Attorney General asks us to overturn. McFate has been the law for sixty years, and its demise would mark a significant expansion in the Attorney General’s power that neither the constitution nor legislature contemplated. Although McFate is flawed precedent, we need not throw the baby out with the bathwater: its flaws can be corrected without overturning its sound core holding. ¶19 Indeed, bestowing upon the Attorney General the open- ended grant of authority he urges is inconsistent with the language and context of § 41-193(A)(2). As the Governor points out in his amicus brief, § 41-193 lists duties, not powers. That is so because it provides that the Department of Law “shall” perform certain tasks, among which are representing the state and public officials in specified instances. The term “shall” is usually mandatory. See, e.g., Ariz. Downs v. Ariz. Horsemen's Found., 130 Ariz. 550 , 554 (1981). All the duties the statute imposes are specific and granular. As to subsection (A)(2), the Attorney General shall “[a]t the direction of the governor or when deemed necessary by the attorney general, prosecute and defend any proceeding . . . in which the state or an officer thereof is a party or has an interest.” In the context of other duties—such as prosecuting and defending all proceedings in this Court in which the state or an officer is a party (subsection (A)(1)), assisting county attorneys in certain circumstances (subsection (A)(5)), and providing legal opinions to various public officials (subsection (A)(7))—the statute clearly created duties of legal representation rather than broad grants of authority. ¶20 This construction of the pertinent statute is buttressed by the fact that, as ABOR points out, the legislature enacted more than one hundred statutes after McFate expressly empowering the Attorney General to take specified legal actions, including against state officers and agencies. 9  STATE EX REL. MARK BRNOVICH V. ABOR Opinion of the Court See, e.g., A.R.S. § 44-1528 (Attorney General may seek relief under the Arizona Consumer Fraud Act); A.R.S. § 37-908 (may initiate actions regarding state claims to public lands); A.R.S. § 13-2314(A), (G) (may file actions enforcing Arizona Racketeering Act); A.R.S. § 15-107(K) (may bring actions regarding school board member training requirements); A.R.S. § 41-1279.07(G) (may apply for relief when political subdivisions fail to comply with uniform expenditure reporting system); A.R.S. § 41-194.01(A)–(B) (may take action against municipalities for ordinances that conflict with state law). Indeed, § 35-212, on which Count VI is based, is one of the statutes that expressly authorizes action by the Attorney General against state officers and agencies. ¶21 None of those statutes would have been necessary had § 41-193(A)(2), as the Attorney General argues, conferred upon him open- ended discretion to prosecute any action he deems necessary to advance the state’s interest. ABOR argues that these enactments constitute “legislative acquiescence” in our McFate decision. We are reluctant to presume that legislative silence as to the specific provision at issue is an expression of legislative approval. Lowing v. Allstate Ins. Co., 176 Ariz. 101 , 106 (1993). Here, however, the sheer volume of express, specific grants of authority makes it clear that the legislature shares our view, as held in McFate, that § 41-193(A)(2) was not intended to confer expansive powers on the Attorney General. Instead, each legislative act is the means by which “[t]he powers and duties of . . . [the] attorney-general . . . [have been] prescribed by law.” Ariz. Const. art. 5, § 9. And, as the Attorney General possesses only such powers as the legislature grants him, we cannot construe the broader language of § 41-193(A)(2) to subsume and render superfluous the scores of narrower and more specific grants of authority enacted over the past sixty years. Those statutes give the Attorney General extensive authority to initiate litigation in a wide variety of contexts; but no one here, including the Attorney General, asserts that any of them expressly authorizes Counts I–V of this action. ¶22 Finally, the Attorney General argues that § 35-212, which authorizes him to enjoin the illegal payment of public monies and on which Count VI is based, permits him to bootstrap Counts I–V to that claim. For support he relies on Fund Manager, Public Safety Personnel Retirement 10  STATE EX REL. MARK BRNOVICH V. ABOR Opinion of the Court System v. Corbin, which held that “the Attorney General’s discretionary power under A.R.S. § 35-212(A) necessarily includes the authority to press any ethically permissible argument he deems appropriate to aid him in preventing the allegedly illegal payment of public monies or in recovering public monies alleged to have been illegally paid.” 161 Ariz. 348 , 354 (App. 1988). But unlike the claim made in Fund Manager, here Counts I–V are conceptually and substantively distinct from Count VI because they are not aimed at aiding the Attorney General in preventing or recovering illegal payments, which is all that the statute authorizes. Thus, § 35-212 does not provide a basis for Counts I–V, and those claims were properly dismissed for lack of authority on the part of the Attorney General to prosecute them. As a result, we need not reach the political question and legislative immunity arguments raised by ABOR. Count VI ¶23 Section 35-212(A) provides that the Attorney General may, in his discretion, “bring an action in the name of the state to: 1. Enjoin the illegal payment of public monies . . . [and] 2. Recover illegally paid public monies . . . .” ¶24 The gravamen of Count VI is that ABOR was illegally subsidizing in-state tuition for students who were unlawfully present. ABOR and the court of appeals point out that collection of tuition is not “payment” of public funds under § 35-212(A) and that the complaint was deficient on its face because it failed to identify a specific illegal payment. ¶25 But in reality, the action expressly challenges both ABOR’s “fail[ure] to collect [public] monies” and “illegal payment of public monies.” Cf. A.R.S. § 15-1664 (providing that “[a]ll monies for the use and benefit of an institution under its jurisdiction shall be expended under the direction and control of the Arizona board of regents”). The Attorney General alleged in his first amended complaint that “[s]tudents who attend any of the Universities and pay only in-state tuition are receiving a subsidy in the form of expenditure of public monies toward their education.” The Attorney General subsequently argued that because the amount of in-state 11  STATE EX REL. MARK BRNOVICH V. ABOR Opinion of the Court tuition is less than the cost of education, ABOR necessarily illegally expended public funds when it extended in-state tuition to students who were unlawfully present. ABOR vigorously contests that assertion, but in deciding a motion to dismiss, the court should look only to the complaint and assume all well-pled allegations are true. Coleman, 230 Ariz. at 356 ¶ 9. To the extent the trial court resolved this factual issue against the Attorney General in dismissing the complaint before discovery that might support his claim, it did so prematurely. ¶26 ABOR and the court of appeals rely on Biggs v. Cooper for the proposition that a complaint alleging a violation of § 35-212(A) is properly dismissed where it “does not establish any identifiable payment that may be prevented or recovered.” 234 Ariz. 515 , 522 ¶ 19 (App. 2014), aff'd in part, vacated in part on other grounds by 236 Ariz. 457 (2014). Given that Arizona is a notice-pleading jurisdiction, Coleman, 230 Ariz. at 356 ¶ 9, we do not think that identifying a specific expenditure is necessary when the complaint states that an agency is engaging in what is essentially a pattern and practice of illegal expenditures. ¶27 Indeed, we rejected that precise argument in State ex rel. Woods v. Block, 189 Ariz. 269 (1997). There, the Constitutional Defense Council (“CDC”) contested the Attorney General’s authority to challenge the constitutionality of the CDC under § 35-212(A) because he had not challenged any particular expenditure of funds by the CDC. Id. at 274. The Court held that § 35-212(A) conferred such authority, observing that “CDC’s power to employ attorneys for litigation is meaningless without funding,” and therefore “the Attorney General’s request to prohibit CDC from exercising its power to litigate necessarily includes a request to prohibit payment for such litigation.” Id.; see also Fund Manager, 161 Ariz. at 354–55 (explaining that the Attorney General “is acting pursuant to a specific grant of statutory authority” in challenging constitutionality of statute that entails improper expenditure of funds); cf. Turken v. Gordon, 223 Ariz. 342 , 348 ¶ 22 (2010) (holding that, in the context of the constitution’s gift clause, a “forbidden subsidy” is demonstrated by the difference between a public expenditure and what is received in return). The Attorney General is entitled to prove that, in providing in-state tuition on behalf of students who were unlawfully present, ABOR illegally expended funds 12  STATE EX REL. MARK BRNOVICH V. ABOR Opinion of the Court beyond the amount of tuition collected, but ultimately, he bears the burden of identifying such expenditures. Should he fail to establish facts supporting his claim, the matter can be adjudicated in ABOR’s favor through summary judgment or otherwise. Further, the Attorney General’s authority under the statute is expressly limited to seeking injunctive relief against and recovery of illegally expended funds. ¶28 ABOR also argues that the entire action is precluded by legislative immunity. This argument fundamentally misperceives the concept of legislative immunity, which is extended to shield individual officials from personal liability for their legislative acts. It has nothing to do with shielding governmental entities from challenges to claimed illegal actions. Ariz. Indep. Redistricting Comm’n v. Fields, 206 Ariz. 130 , 136–38 ¶¶ 15–19 (App. 2003). The Attorney General is suing to recover alleged illegal payments from ABOR, which is expressly authorized by § 35-212(A), and is not suing officials for personal liability in their individual capacities. Therefore, legislative immunity is inapplicable. ¶29 For the foregoing reasons, dismissal of Count VI was improper. ATTORNEY FEES AND DISPOSITION ¶30 ABOR requests attorney fees under A.R.S. § 12-348.01. As this is a split decision, with ABOR prevailing on Counts I–V and the Attorney General succeeding in having Count VI reinstated, we conclude there is no “successful party” and therefore each side shall bear its own fees and costs. ¶31 We affirm the trial court’s dismissal of Counts I–V, reverse it as to dismissal of Count VI, vacate the opinion of the court of appeals, and remand to the trial court for further proceedings pursuant to this opinion. 13

2020-11-21 03:13:56.385371+00

CHARLES HARTMANN, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. Hartmann v. Commissioner Docket No. 18930. United States Board of Tax Appeals 14 B.T.A. 146; 1928 BTA LEXIS 3019; November 13, 1928, Promulgated *3019 Deduction allowed of loss sustained upon the sale of certain shares of stock in the year 1923. Robert P. Smith, Esq., and Hobart Richey, Esq., for the petitioner. R. H. Ritterbush, Esq., for the respondent. SMITH *146 SMITH: This proceeding is for the redetermination of a deficiency of $1,655.91 in income tax for the year 1923. The petitioner contends that the respondent erred in not allowing the deduction in that year of an alleged loss upon the sale of certain shares of stock. Instead of allowing the loss claimed by the petitioner the respondent has increased petitioner's income by the amount of $45, representing gain derived from the sale of the stock. The facts are that the petitioner purchased, in November, 1919, 1,000 shares, par value $10 per share, of stock in the Boger Oil Corporation for a consideration of $10,000. The Boger Oil Corporation was organized and financed by Otis & Co. and Hallgarten & Co., brokers of Cleveland, Ohio, and New York, respectively. During the year 1920 the Boger Oil Corporation was placed in the hands of a receiver. The receivership was instituted by the sponsors of the *147 company and*3020 was said to have been for the protection of the stockholders. One of the reasons for the sponsors desiring the receivership was that they wished to relieve the company of the management of one of its officers who had a five-year contract with the company and whose management had proved unsatisfactory. The petitioner as one of the stockholders was notified prior to the receivership, by a representative of Otis & Co., that the Boger Oil Corporation would be placed in receivership for the purpose of reorganization and that the investments of the stockholders would not be jeopardized. The petitioner was further advised that the Boger Oil Corporation would be reorganized and that he would receive share for share of stock in the new corporation in exchange for his stock in the Boger Oil Corporation. Like notice was also given to the other stockholders of the Boger Oil Corporation. At a receivership sale the assets of the Boger Oil Corporation were purchased by representatives of the said company or its sponsors for an amount less than the company's liabilities and were all paid into a new corporation known as the Crystal Oil Corporation. The stock of the Crystal Oil Corporation was*3021 issued share for share to the stockholders of the Boger Oil Corporation. The stock of the Crystal Oil Corporation was of the same par value of that of the Boger Oil Corporation. In purchasing his shares of stock of the Boger Oil Corporation in 1919, the petitioner paid to George W. Baron & Co., representatives of Otis & Co., of Cleveland, $1,500 in cash and his note for $5,000, which was later paid. He also secured a release from George W. Baron & Co. of 500 shares of said stock which he used as collateral for a loan of $3,500 with the Bank of Cameron, of Cameron, West Virginia. This loan was carried by the Bank of Cameron until April or May in the year 1923, when it was paid by the petitioner. The Bank of Cameron was informed in the year 1920 of the receivership of the Boger Oil Corporation and the organization of the Crystal Oil Corporation and agreed to accept, share for share, stock of the Crystal Oil Corporation instead of stock of the Boger Oil Corporation as collateral on the loan. In the year 1922 the Bank of Cameron called upon the petitioner for additional collateral which was furnished by the petitioner. During the year 1923 the Crystal Oil Corporation proved*3022 a business failure and the petitioner sold his shares of stock in the company for $45. The evidence clearly establishes that the petitioner received shares of stock of the Crystal Oil Corporation in exchange for his shares of stock in the Boger Oil Corporation and not as a gift as the respondent contends. There is nothing to indicate that the shares of stock of the *148 Crystal Oil Corporation had any greater or lesser value than the shares of stock of the Boger Oil Corporation. The petitioner sustained his loss in the year 1923 when he sold the shares of stock of the Crystal Oil Corporation and is entitled to deduct this loss in that year. Judgment of no deficiency will be entered for the petitioner.

2020-12-01 16:00:40.7175+00

https://www.cadc.uscourts.gov/internet/opinions.nsf/0/FD52D9F99C86FCAD85258631005340F9/$file/20-5048-1873760.pdf

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT Argued September 23, 2020 Decided December 1, 2020 No. 20-5048 MOOSE JOOCE, ET AL., APPELLANTS v. FOOD & DRUG ADMINISTRATION, ET AL., APPELLEES Consolidated with 20-5049, 20-5050 Appeals from the United States District Court for the District of Columbia (No. 1:18-cv-00203) (No. 1:18-cv-01615) (No. 1:19-cv-00372) Jonathan Wood argued the cause for appellants. With him on the briefs were Damien M. Schiff and Oliver Dunford. Lindsey Powell, Attorney, U.S. Department of Justice, argued the cause for appellees. With her on the brief were Mark B. Stern and Joshua Revesz, Attorneys, Robert P. Charrow, General Counsel, U.S. Department of Health and  2 Human Services, and Peter G. Dickos, Associate Chief Counsel, Food and Drug Administration. Before: ROGERS and PILLARD, Circuit Judges, and SENTELLE , Senior Circuit Judge. Opinion of the Court by Circuit Judge ROGERS. ROGERS, Circuit Judge: Less than a year ago, the court rejected three challenges by an e-cigarette manufacturer and distributor, and an e-cigarette industry group to a rule deeming e-cigarettes to be “tobacco products” subject to regulation under the Family Smoking Prevention and Tobacco Control Act, Pub. L. No. 111-31, 123 Stat. 1776 (2009) (“the Act”). In Nicopure Labs, LLC v. FDA, 944 F.3d 267 , 271 (D.C. Cir. 2019), the court held that it was “entirely rational and nonarbitrary [for the Food and Drug Administration (“FDA”)] to apply to e-cigarettes the Act’s baseline requirement that, before any new tobacco product may be marketed, its manufacturer show the FDA that selling it is consistent with the public health.” The court also rejected First Amendment objections to the Act’s barring of claims that e-cigarettes are safer than existing products absent such a demonstration and ban on the distribution of free e-cigarette samples. Id. at 272. Now other e-cigarette manufacturers and retailers, and a nonprofit organization focused on tobacco harm reduction raise two constitutional challenges to the rule. Under this court’s precedents, their Appointments Clause challenge lacks merit and their First Amendment challenge is foreclosed. Accordingly, we affirm the grant of summary judgment to the FDA.  3 I. The Act authorizes the Secretary of the Department of Health and Human Services to regulate the manufacture, sale, and distribution of tobacco products. It permits the Secretary to deem products to be “tobacco products” subject to the Act’s requirements. 21 U.S.C. § 387a(b) (2018). One such requirement is the preclearance pathway for manufacturers seeking to market a “modified risk tobacco product,” defined as “any tobacco product that is sold or distributed for use to reduce harm or the risk of tobacco-related disease associated with commercially marketed tobacco products.” Id. § 387k(b)(1). Under the Act, a modified risk tobacco product may be commercially marketed only if the Secretary determines that the manufacturer has demonstrated that the product, as actually used by consumers, meets two requirements. Id. § 387k(g)(1). First, the product will “significantly reduce harm and the risk of tobacco-related disease to individual tobacco users.” Id. § 387k(g)(1)(A). Second, it will “benefit the health of the population as a whole taking into account both users of tobacco products and persons who do not currently use tobacco products.” Id. § 387k(g)(1)(B). The Secretary of the Department delegated rulemaking authority to the FDA Commissioner. See, e.g., FDA Staff Manual Guide § 1410.10 (Aug. 26, 2016); id. § 1410.10 (Nov. 17, 2015). The FDA Commissioner, in turn, redelegated rulemaking authority to the FDA Associate Commissioner for Policy. See id. § 1410.21(1)(G) (July 5, 2012). According to the 2012 FDA Staff Manual Guide, the Associate Commissioner for Policy had the authority to “perform any of the functions of the Commissioner with respect to the issuance of [Federal Register] notices and proposed and final regulations of the Food and Drug Administration.” Id.  4 In April 2014, the FDA published a proposed rule to deem e-cigarettes, among other items, “tobacco products” under the Act. See 79 Fed. Reg. 23,142 , 23,143 (Apr. 25, 2014). The comment period was extended until August 8, 2014. See id. at 35,711 (June 24, 2014). After considering comments, FDA Associate Commissioner for Policy Leslie Kux promulgated a rule in May 2016 that deemed e-cigarettes to be “tobacco products” subject to the Act’s requirements. See Deeming Products To Be Subject to the Federal Food, Drug, and Cosmetic Act, as Amended by the Family Smoking Prevention and Tobacco Control Act, 81 Fed. Reg. 28,974 , 28,976 (May 10, 2016) (codified at 21 C.F.R. §§ 1100 , 1140, 1143) (“Deeming Rule”). On January 30, 2018, appellants sued the FDA challenging the Deeming Rule under the Appointments Clause and the First Amendment of the Constitution. The district court, exercising its discretion to consider the Appointments Clause challenge even though it was not raised during the rulemaking, granted summary judgment to the FDA. Appellants appeal, and our review is de novo, see Mayo v. Reynolds, 875 F.3d 11 , 19 (D.C. Cir. 2017). II. The Appointments Clause requires that “all . . . Officers of the United States” be appointed by the President “by and with the Advice and Consent of the Senate.” U.S. CONST. art. II, § 2, cl. 2. “This requirement is the ‘default manner of appointment,’ Edmond v. United States, 520 U.S. 651 , 660, 117 S. Ct. 1573 , 137 L.Ed.2d 917 (1997), with the only exception being that Congress may vest the appointment of ‘inferior Officers’ in ‘the President alone,’ ‘Courts of Law,’ and ‘the Heads of Departments,’ U.S. CONST . art. II, § 2, cl. 2.” Guedes  5 v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 920 F.3d 1 , 11 (D.C. Cir. 2019). Appellants contend that the position of Associate Commissioner for Policy may be filled by only a properly appointed officer of the United States, and that Kux was not appointed as either an inferior or principal officer. They maintain that Kux’s issuance of the Deeming Rule was consequently in violation of the Appointments Clause and void ab initio. See Appellants’ Br. 49–60. The FDA rejects the challenge to Kux’s authority and points further to ratifications of the Deeming Rule by FDA Commissioners Robert Califf and Scott Gottlieb. Either ratification, it maintains, suffices to render the Rule constitutional. See Appellees’ Br. 16–27, 31– 38. “Ratification occurs when a principal sanctions the prior actions of its purported agent.” Doolin Sec. Sav. Bank, F.S.B. v. Office of Thrift Supervision, 139 F.3d 203 , 212 (D.C. Cir. 1998) (citing RESTATEMENT (SECOND ) OF AGENCY § 82 (1958)), superseded by statute on other grounds, Federal Vacancies Reform Act of 1998, Pub. L. No. 105-277, 112 Stat. 2681 (1998) (codified at 5 U.S.C. §§ 3345 to 3349d), as this court recognized in Guedes, 920 F.3d at 13. This court has repeatedly recognized that ratification can remedy a defect arising from the decision of an improperly appointed official, such as the alleged defect arising from the issuance of the Deeming Rule by Associate Commissioner for Policy Kux. Wilkes-Barre Hosp. Co., LLC v. NLRB, 857 F.3d 364 , 371 (D.C. Cir. 2017) (citing Intercollegiate Broad. Sys., Inc. v. Copyright Royalty Bd., 796 F.3d 111 , 117–21, 124 (D.C. Cir. 2015)). Even assuming for purposes of argument, as appellants object, that Kux’s issuance of the Deeming Rule violated the Appointments Clause and that Commissioner Califf’s general ratification of prior actions by the FDA as part of an agency  6 reorganization was invalid, Commissioner Gottlieb’s ratification cured any Appointments Clause defect. A. On April 3, 2019, noting that the “authority under which the Deeming Rule was issued has been questioned in litigation,” then-FDA Commissioner Scott Gottlieb stated: “To resolve these questions, I hereby affirm and ratify the Deeming Rule as of the date it was published in the Federal Register on May 10, 2016, including all regulatory analysis certifications contained therein.” Ratification of the Deeming Rule, 81 Fed. Reg. 28,974 (May 10, 2016) (signed by Scott Gottlieb, M.D., on Apr. 3, 2019). He specified: “I undertake this action based on my careful review of the rule, my knowledge of its provisions, and my close involvement in policy matters relating to this rule and its implementation, as well as its public health importance.” Id. Appellants’ challenges to the effectiveness of Commissioner Gottlieb’s ratification fail. They maintain that Commissioner Gottlieb lacked the authority to ratify the Deeming Rule after they filed suit in federal district court. Even assuming this challenge is not forfeited by their failure to raise it in the district court, see Salazar ex rel. Salazar v. District of Columbia, 602 F.3d 431 , 437 (D.C. Cir. 2010), appellants fail to distinguish FEC v. Legi-Tech, Inc., 75 F.3d 704 , 707–09 (D.C. Cir. 1996), where the court held that the Federal Election Commission effectively ratified its prior actions even though its ratification occurred after Legi-Tech alleged an Appointments Clause violation. Appellants further maintain that “Commissioner Gottlieb lacked the power to issue the Deeming Rule in April 2019 because to do so would have been arbitrary and capricious.”  7 Appellants’ Br. 28. In appellants’ view, for ratification to be effective, a ratifying party “should be able not merely to do the act ratified at the time the act was done, but also at the time the ratification was made.” Id. (quoting FEC v. NRA Political Victory Fund, 513 U.S. 88 , 98 (1994)). Relying on Butte County v. Hogen, 613 F.3d 190 (D.C. Cir. 2010), for the proposition that administrative officials must consider new evidence in order to make non-arbitrary, reasoned decisions, appellants note that during the nearly three years between the Deeming Rule’s issuance and Commissioner Gottlieb’s ratification, “dozens of public comments submitted to FDA had pointed the Commissioner to a wealth of new evidence regarding the benefits of vaping to public health.” Appellants’ Br. 30. Butte County does not advance appellants’ position. In that case, the agency failed to consider a report that was submitted while the “issue was still pending before the Secretary.” Butte County, 613 F.3d at 195 . Here, the rulemaking record closed in 2016 and consequently Commissioner Gottlieb had no such obligation to consider new evidence in 2019. Therefore, it was not arbitrary and capricious for him to ratify the Deeming Rule without considering the new evidence that appellants reference. Furthermore, nothing in the record indicates that Commissioner Gottlieb, when he ratified the Deeming Rule, failed “to conduct an independent evaluation of the merits,” Intercollegiate Broadcasting, 796 F.3d at 117, or to make “a detached and considered judgment,” Doolin Sec., 139 F.3d at 213. Nor do appellants suggest that Commissioner Gottlieb was “actually biased.” Legi-Tech, 75 F.3d at 709 . Because Commissioner Gottlieb effectively ratified the Deeming Rule, the court need not consider appellants’ Appointments Clause objections to Commissioner Califf’s ratification or to Associate Commissioner for Policy Kux’s  8 issuance of the Rule. Given that the Act does not mandate administrative exhaustion as a prerequisite to judicial review, the court also need not address the FDA’s alternative contention that appellants forfeited their Appointments Clause claim by failing to raise it before the agency. See Darby v. Cisneros, 509 U.S. 137 , 147 (1993); 21 U.S.C. § 387l (2018). B. Notwithstanding Commissioner Gottlieb’s effective ratification, appellants contend that Appointments Clause violations are per se harmful, not curable by ratification, and so the court should consider the merits of their challenge to the Deeming Rule and the asserted “continuing prejudice” they suffer. Appellants’ Br. 41–46. They suggest that a different notice-and-comment process might “affect the contents or even the existence of a new Deeming Rule” in view of the “new evidence accumulated since the Deeming Rule’s issuance” and the “FDA’s post-promulgation guidances . . . [that] have effectively, though only informally, eased some of the original Deeming Rule’s effects.” Id. at 42–45. In Legi-Tech, 75 F.3d at 708–09, this court rejected the view that prejudice must be presumed for Appointments Clause violations. Subsequently, in Intercollegiate Broadcasting, 796 F.3d at 124, the court emphasized that “not every possible kind of taint is fatal” and that “speculative taint” such as the possibility that an invalid action was subsequently affirmed “simply out of agency solidarity” is insufficient. Appellants demonstrate no “continuing prejudice.” In the preamble to the Rule, the FDA acknowledged that there was uncertainty about the health effects of e-cigarettes, but concluded that the regulation of e-cigarettes “will still benefit public health” even if e-cigarettes “may eventually be shown to have a net benefit on or harm to public health at the  9 population level.” Deeming Rule, 81 Fed. Reg. 28,974 , 28,984 (May 10, 2016). Absent record evidence of continuing prejudice, the court will take Commissioner Gottlieb’s ratification “at face value and treat it as an adequate remedy.” Wilkes-Barre Hosp., 857 F.3d at 372 (quoting Legi-Tech, 75 F.3d at 709 ). Contrary to appellants’ suggestion that ratification of an action “merely moots an Appointments Clause claim, and the voluntary cessation exception to mootness applies,” Appellants’ Br. 46, this court has “repeatedly held that a properly appointed official’s ratification of an allegedly improper official’s prior action, rather than mooting the claim, resolves the claim on the merits by ‘remedy[ing] [the] defect’ (if any) from the initial appointment.” Guedes, 920 F.3d at 13 (quoting Wilkes-Barre Hosp., 857 F.3d at 371). Commissioner Gottlieb’s ratification, for the reasons discussed, cured any potential Appointments Clause defect arising from Associate Commissioner for Policy Kux’s issuance of the Deeming Rule. II. Appellants further challenge the Act’s preclearance pathway for modified risk tobacco products, which the Deeming Rule makes applicable to e-cigarettes, as violative of the First Amendment. This challenge is foreclosed by Nicopure Labs, LLC, 944 F.3d 267 . There, the court found unpersuasive the objection that appellants make now, namely that the Deeming Rule violates the First Amendment because it places the burden on manufacturers to show that certain of their marketing claims are truthful and not misleading before they make them. See id. at 282–90; Appellants’ Br. 60–64. The court sustained the preclearance pathway even when applied to modified-risk statements that manufacturers insist are “accurate” — such as claims that e-cigarettes contain less  10 of or are free of specified ingredients — because “modified risk claims that might be technically accurate if viewed in isolation are in fact often misunderstood by consumers.” Id. at 287. Accordingly, we affirm the grant of summary judgment to the FDA.

2020-12-01 16:00:42.872017+00

http://www.cadc.uscourts.gov/internet/judgments.nsf/EB1A122316F9EDA98525863100549A99/$file/19-1261-1873774.pdf

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 19-1261 September Term, 2020 FILED ON: DECEMBER 1, 2020 BIRDSBORO KOSHER FARMS CORP., PETITIONER v. SECRETARY OF LABOR, RESPONDENT Consolidated with 20-1028 On Petition for Review and Cross-Application for Enforcement of Orders of the Occupational Safety & Health Review Commission Before: GARLAND, PILLARD and WILKINS, Circuit Judges. JUDGMENT This petition was considered on the record from the Occupational Safety & Health Review Commission and on the briefs filed by the parties. See Fed. R. App. P. 34(a)(2); D.C. Cir. R. 34(j). The court has accorded the issues full consideration and has determined that they do not warrant a published opinion. See D.C. Cir. R. 36(d). For the reasons stated in the memorandum accompanying this judgment, it is ORDERED and ADJUDGED that the petition for review be DENIED and the Occupation Safety & Health Review Commission’s cross-application for enforcement be GRANTED. Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or hearing en banc. See Fed. R. App. P. 41(b); D.C. Cir. R. 41. Per Curiam FOR THE COURT: Mark J. Langer, Clerk BY: /s/ Michael C. McGrail Deputy Clerk 2 Birdsboro Kosher Farms Corp. v. Secretary of Labor, No. 19-1261 MEMORANDUM Birdsboro Kosher Farms Corporation petitions for review of an adverse order by the Occupational Safety and Health Review Commission. Birdsboro contends the Commission erred when it affirmed two citations issued by the Occupational Safety and Health Administration (OSHA) after March and April 2016 inspections of the company’s Birdsboro, Pennsylvania, poultry processing facility. Birdsboro specifically asks us to vacate and/or reduce the severity of six of the violations supporting the pair of citations. We have jurisdiction, see 29 U.S.C. § 660 (a), and because substantial record evidence supports each challenged violation, see id.; Fabi Constr. Co. v. Sec’y of Labor, 508 F.3d 1077 , 1081 (D.C. Cir. 2007), we deny the petition for review and grant the application for enforcement of the Commission’s order. 1 First, Birdsboro challenges the Commission’s determination that two of its violations were “willful.” Those violations arose from Birdsboro’s (1) noncompliance with OSHA’s lockout/tagout requirements, 29 C.F.R. § 1910.147 (c)(4)(i), and (2) failure periodically to review lockout/tagout procedures, id. § 1910.147(c)(6)(i). Birdsboro does not dispute that it violated those rules but argues that the record lacks the “substantial evidence of voluntary and intentional disregard for or indifference to the law” necessary to prove willfulness rather than simple negligence. Kaspar Wire Works, Inc. v. Sec’y of Labor, 268 F.3d 1123 , 1127 (D.C. Cir. 2001). “[E]vidence of an employer’s failure to take corrective measures despite prior warnings and citations for similar violations provides a sufficient basis for sustaining a willfulness finding.” AJP Constr., Inc. v. Sec’y of Labor, 357 F.3d 70 , 75 (D.C. Cir. 2004). The Commission recounted in detail that Birdsboro had already repeatedly been cited for similar violations, so was well aware of the lockout/tagout requirements. Substantial evidence of fresh violations on the heels of citations under the same rules, and in the face of written settlements committing Birdsboro to abate the same type of shortcoming, see J.A. 454-56 (citing settlements involving lockout/tagout violations in 2013 and 2014), supports these violations’ willfulness. Second, and closely related, the Commission also found that Birdsboro’s failure to train employees on lockout/tagout procedures as required by 29 C.F.R. § 1910.147 (c)(7)(i)(A) was a “repeat” violation (though the Commission disagreed with the Secretary’s contention that the failure to train was itself “willful”). J.A. 479. Birdsboro admits it did not provide the training in question, Pet’r Br. at 18-19, yet asks this court to vacate this violation or reduce its severity classification. Birdsboro contends that it did not realize its failure at the time, pointing the finger at its training consultant for not covering these issues in its training. But the adequacy of the consultant’s training is Birdsboro’s responsibility, and the record evidence supports the 1 We note that the statute suggests proper venue for the Secretary’s enforcement action is “the United States court of appeals for the circuit in which the alleged violation occurred or in which the employer has its principal office,” 29 U.S.C. § 660 (b), which in this case would be the Third Circuit. Birdsboro has not disputed venue, however, and this court in any event has authority to “make and enter . . . a decree . . . enforcing [the Commission’s order] to the extent that such order is affirmed or modified.” Id. § 660(a). 3 Commission’s determination that Birdsboro knew or in the exercise of reasonable diligence should have known of the shortcomings of the training. See AJP Constr., 357 F.3d at 71 . Birdsboro had been cited previously for its lack of lockout/tagout procedures and failure to provide the corresponding training, J.A. 478-80, and senior Birdsboro officials acknowledged their awareness of those violations and the need to remediate them, J.A. 65, 158-59. Had Birdsboro exercised reasonable diligence in the circumstances—for instance, by directing its consultant to administer training that satisfied the standard and then verifying that it was doing so—Birdsboro would have discovered the consultant’s failure to deliver the training Birdsboro knew it was required to provide its employees. Substantial evidence thus supports the Commission’s determination that this was a repeat infraction. Third, we reject Birdsboro’s request that we vacate or reduce the severity classification of a violation stemming from its failure to install controls to reduce noise levels in the facility’s “picking room,” which the Commission characterized as a “serious” violation of 29 C.F.R. § 1910.95 (b)(1). Birdsboro contends that this violation was not serious because Birdsboro had, at the time of the inspection, furnished its employees with personal protective equipment and installed quieter motors. Pet’r Br. at 20. The rule requires installation of all “feasible administrative or engineering controls,” 29 C.F.R. § 1910.95 (b)(1), and the record includes substantial evidence both that Birdsboro’s mitigation efforts fell far short of lowering noise levels to within acceptable limits, J.A. 498-500, and that there were additional feasible controls available to Birdsboro that it did not put in place, J.A. 35-36. For instance, only after Birdsboro was cited for failure to mitigate unlawful noise levels did it install sound-dampening panels in the picking room, id., illustrating at least one available control it failed to timely deploy. See SeaWorld of Fla., LLC v. Perez, 748 F.3d 1202 , 1215 (D.C. Cir. 2014). Fourth, Birdsboro denies that it failed to supply the “variety of suitable hearing protect[ive]” equipment to its employees required by 29 C.F.R. § 1910.95 (i)(3), and seeks vacatur of the corresponding violation. As explained in testimony before the Commission, the regulation’s variety requirement is designed to ensure that employees have access to equipment that fits comfortably, such as protection appropriate for “different sizes of ears,” increasing the likelihood they will use the equipment continuously and correctly. J.A. 172; see also OSHA, Standard Interpretations Letter (Oct. 2, 2000), https://www.osha.gov/laws- regs/standardinterpretations/2000-10-02 (“At the very minimum, a choice of at least one type of ear plug and one type of earmuffs must be provided (preferably more)”). Birdsboro specifically complains that the record shows that it did give employees multiple hearing-protective equipment options—earmuffs and earbuds. Pet’r Br. at 21-22. At the outset, Birdsboro’s argument that by providing both earmuffs and earbuds it satisfied OSHA’s minimum standard is forfeit as it was not raised in the administrative proceedings below, see 29 U.S.C. § 660 (a), and was not raised in Birdsboro’s opening brief before this court, Am. Wildlands v. Kempthorne, 530 F.3d 991 , 1001 (D.C. Cir. 2008). The argument also fails on its merits: Birdsboro’s representatives testified during its administrative hearing that Birdsboro had provided only “one kind of earmuff and one kind of earbud,” J.A. 108, under circumstances in which all employees were required to wear both kinds of protective equipment at once, id. (describing “double hearing protection” requirement). By Birdsboro’s own acknowledgement, then, its employees were not, as the rule requires, “given 4 the opportunity to select their hearing protectors from a variety of suitable [options].” 29 C.F.R. § 1910.95 (i)(3). Fifth, Birdsboro disputes the “serious” classification of its violation of 29 C.F.R. § 1910.132 (a), which requires personal protective equipment be “maintained in a sanitary and reliable condition.” Substantial evidence supports this violation, too. Inspectors reported seeing Birdsboro employees in the “kill room” wearing torn protective equipment that exposed their skin, and seeing employees wearing into the facility’s cafeteria the same personal protective equipment required to be kept sanitary and worn only in the facility’s production area—both of which Birdsboro acknowledged before the Commission. J.A. 37-40, 90-95, 109-10, 509-10. We affirm the Commission’s classification of this violation as “serious” for three reasons: (1) Birdsboro addresses only the cafeteria incident and does not dispute the kill room event, see Pet’r Br. at 22- 23; Pet’r Reply at 22-23; (2) Birdsboro forfeited this challenge by failing to raise it during administrative proceedings, see 29 U.S.C. § 660 (a); and, (3) in any event, substantial evidence in the form of testimony from the OSHA Area Director about the risks of inappropriate use of personal protective equipment in the context of poultry processing—including risks of illness from exposure to animal blood, feces, or bacteria—supports the Commission’s “serious” classification, J.A. 175-77; see also J.A. 109-10. Because substantial evidence supports the Commission’s determinations as to each of the challenged violations and their severity classifications, we deny Birdsboro’s petition for review and grant the Commission’s cross-application for enforcement in accordance with this judgment. 5

2020-03-05 22:02:28.493312+00

http://www.courts.ca.gov/opinions/documents/D074442.PDF

Filed 3/5/20 CERTIFIED FOR PUBLICATION COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA MATTHEW MATSON et al., D074442 Plaintiffs and Appellants, v. (Super. Ct. No. 37-2017-00008676- CU-OR-CTL) S.B.S. TRUST DEED NETWORK et al., Defendants and Respondents. APPEAL from a judgment of the Superior Court of San Diego County, John S. Meyer, Judge. Affirmed. Scali Rasmussen; Halbert B. Rasmussen, Jeffrey W. Erdman and Madeleine K. Lee, for Plaintiffs and Appellants. Mulvaney Barry Beatty Linn & Mayers; Everett G. Barry and Christopher B. Ghio for Defendants and Respondents. Plaintiffs Matthew Matson and Matson SDRE Group, LLC (collectively plaintiffs) purchased a deed of trust at a nonjudicial foreclosure sale. S.B.S. Trust Deed Network (SBS) was the trustee and Bank of Southern California, N.A. (BSC) (referred to collectively as defendants) was the beneficiary of the deed of trust. Matson, relying on a software application called PropertyRadar, believed that the deed of trust was in first position on the property. He purchased the deed of trust for $502,000 at the foreclosure auction, then learned that the lien was in second position, with a much lower fair market value than the price paid. Plaintiffs filed a first amended complaint against defendants for rescission of the sale and declaratory relief, relying on Matson's unilateral mistake of fact and the unconscionable price he paid for the deed of trust. The parties filed cross-motions for summary judgment. The court granted summary judgment for defendants. Plaintiffs have appealed. We affirm the judgment. BACKGROUND Undisputed Facts The deed of trust that is the subject of this lawsuit was recorded in 2007, securing a Small Business Administration loan in the original amount of $475,000. It was in second place, as a first deed of trust had been recorded in 2004 and assigned to Bank of America in 2016. SBS, the trustee, recorded a notice of default and election to sell on June 10, 2016. BSC, the beneficiary, notified SBS that a total of $414,510.62 was due on the note and deed of trust. BSC authorized a flat opening bid of $71,000 on its behalf. A "flat bid" means that the beneficiary did not authorize any increases in its bid. SBS recorded a notice of sale indicating a sale date of February 1, 2017, later continued to March 1, 2017. The notice of sale stated, "The sale will be made, but without covenant or warranty, express or implied, regarding title, possession, or encumbrances, to pay the 2 remaining principal sum of the note(s) secured by the Deed of Trust . . . ." It also gave notice to bidders that they were bidding on a lien, which might be a junior lien. The notice encouraged bidders to investigate the lien through the county recorder's office or a title insurance company. In January 2017, Matson learned about the property and potential foreclosure from PropertyRadar. The PropertyRadar user agreement stated that, "You should not rely on these Sites and the information and resources contained on these Sites as a replacement or substitute for any professional, financial, legal or other advice or counsel."1 Matson did not follow up with any further investigation on the deed of trust until the morning of the sale, March 1, 2017, when he saw notice of the sale on PropertyRadar again. PropertyRadar identified the loan as being in position "1." Based on his review of the information on PropertyRadar, Matson believed that the loan being foreclosed was a refinance of the original purchase loan, and therefore that it was in first position to the title. Defendants disputed this, pointing out that the PropertyRadar profile also showed the 2004 deed of trust securing the original purchase loan by Countrywide Home Loans and its 2016 assignment of the deed of trust to Bank of America. We accept both Matson's statement of his belief and defendants' response that the profile contained sufficient information to ascertain that the 2004 loan remained in first position. 1 Plaintiffs objected to consideration of PropertyRadar's user agreement. The trial court did not rule on the objections. Counsel for defendants repeated these terms of the user agreement at the summary judgment motion hearing. Plaintiffs did not object. 3  Matson obtained a 94-page profile on the property from a title company about an hour before the sale. Matson did not read the full property profile. He reviewed only the notice of sale and verified that the amount of the loan on the about-to-be foreclosed deed of trust was consistent with the information listed on PropertyRadar. Matson called a telephone number that he believed to be SBS, but it was actually a separate company, Superior Default Services (SDS). SBS had hired SDS to conduct the foreclosure sale. Matson asked an SDS representative if "the first had cleared for sale," and the representative responded, "Yes, it's cleared for sale." Matson never asked, and the representative never confirmed whether the deed being sold at auction was a first-priority lien. Matson went to the foreclosure sale with cashier's checks totaling $505,000. There were two other bidders at the sale, successively raising their bids from BSC's opening bid of $71,000 until plaintiffs' bid of $502,000 was accepted as the winning bid. A BSC representative was surprised by the price paid at the auction because she knew there was limited equity available in the property. Matson tendered his cashier's checks, and received and executed a receipt of funds. A disclaimer on the receipt of funds stated, "Buyer and Buyer's Agent agree that neither the Trustee nor its Agents make any express or implied warranties with respect to the real property being purchased. . . . Buyer and Buyer's Agent acknowledge that it has not relied upon any representation by the Trustee or its Agent. Buyer and Buyer's agent agree that the real property is being sold on an "AS IS" basis. Buyer and Buyer's Agent agrees [sic] that all funds received by Trustee or its Agents are non-refundable for any reason." Plaintiffs contend that the receipt of funds does not contain any disclaimers 4 about the title of the property. Matson thought the disclaimers applied only to the physical condition of the property. Later that evening, Matson contacted a real estate agent who had an active listing on the property. As a result of the contact, Matson learned that the deed of trust he purchased might be in second position, not first. Matson tried to stop payment on the cashier's checks the next day. He signed declarations under penalty of perjury stating that the cashier's checks had been stolen. Nonetheless, the bank paid all three cashier's checks. Matson also sent a letter to defendants stating his belief that he had been defrauded and did not wish to purchase the deed of trust. He sent a formal notice of rescission on March 9. When the trustee mailed the trustee's deed upon sale to Matson on March 10, Matson returned it with a notice of rejection. The trustee however, recorded the deed and a preliminary change of ownership. The SBS employee who recorded the deed had never before recorded a deed over a buyer's objection, but the SBS employee most qualified to testify about normal practice and procedure said that SBS had recorded trustee's deeds and preliminary change of ownership forms numerous times. Ruling at Trial The trial court found no basis for rescission because plaintiffs could not show irregularity, unfairness or fraud in the nonjudicial foreclosure notice and sale process itself. Plaintiffs' mistakes were based on reliance on the PropertyRadar software and calls to SDS, mistakenly thought to be SBS. Moreover, plaintiffs had a property report from a title company, but failed to read the entire document. None of these information 5 sources was part of the sales process. The court further stated, at the hearing on the summary judgment motions, that (1) Matson made a mistake in failing to adequately investigate before engaging in the foreclosure sale, which was known to be a risky enterprise; (2) Matson had a property report that contained information on all the deeds of trust on the property but did not fully read it; and (3) Matson took the risk of engaging in a sale without fully investigating the terms of the sale or failing to take the time to understand them. The court granted summary judgment for defendants and dismissed the complaint with prejudice. Plaintiffs then filed this appeal. DISCUSSION Plaintiffs claim they are entitled to a judgment of rescission because they made a unilateral mistake of fact that resulted in an unconscionable loss to them and a corresponding unconscionable windfall to defendants. We conclude that plaintiffs are not entitled to rescission of the nonjudicial foreclosure sale because there was no irregularity in the sale. Under the common law claim of unilateral mistake, plaintiffs bore the risk of mistake, and thus relief cannot be granted on that ground. Standard of Review We review the record and the decision of the trial court de novo to determine if facts not subject to triable dispute warrant judgment for the moving party. (Biancalana v. TD Services Co. (2013) 56 Cal. 4th 807 , 813 (Biancalana).) To prevail, defendants must show that plaintiffs have not produced material facts that could be interpreted to support their claim. In other words, defendants must show that an element of the plaintiffs' claim 6 cannot be established with all the available facts. (Code Civ. Proc., § 437c, subd. (c); Kahn v. East Side Union High School Dist. (2003) 31 Cal. 4th 990 , 1002–1003 (Kahn).) The facts here are not disputed in any material way. The parties dispute only the conclusions of law that can be drawn from the facts. Nonjudicial Foreclosure Sales "Civil Code sections 2924 through 2924k[2] . . . govern nonjudicial foreclosure sales pursuant to a power of sale contained in a deed of trust. 'The purposes of this comprehensive scheme are threefold: (1) to provide the creditor/beneficiary with a quick, inexpensive and efficient remedy against a defaulting debtor/trustor; (2) to protect the debtor/trustor from wrongful loss of the property; and (3) to ensure that a properly conducted sale is final between the parties and conclusive as to a bona fide purchaser. [Citations.]' '[T]he statutory scheme also evidences an intent that a properly conducted sale be a final adjudication of the rights of the creditor and debtor [citations] and the sanctity of title of a bona fide purchaser be protected.' [Citation.] 'The trustee at a foreclosure sale, moreover, has a duty to conduct the sale fairly and openly, and to secure the best price for the trustor's benefit.' [Citation.]" (Biancalana, supra , 56 Cal.4th at pp. 813–814; Lona v. Citibank, N.A. (2011) 202 Cal. App. 4th 89 , 101 (Lona).) "A bid at a trustee's sale is deemed by statute to be an irrevocable offer by that bidder to purchase the 2 All further statutory references are to the Civil Code. 7 property for that amount. [Citation.]" (Alliance Mortgage Co. v. Rothwell (1995) 10 Cal. 4th 1226 , 1237 (Alliance Mortgage); § 2924h, subd. (a).)3 "[A]s a general rule, a trustee's sale is complete upon acceptance of the final bid." (Nguyen v. Calhoun (2003) 105 Cal. App. 4th 428 , 440–441 (Nguyen); § 2924h, subd. (c) ["the trustee's sale shall be deemed final upon the acceptance of the last and highest bid"].) The trustee conveys the lien or property by delivery of a trustee's deed to the purchaser. "Absent defects in the foreclosure procedure itself, delivery of the trustee's deed following a foreclosure sale is " 'merely a ministerial act.' " (Nguyen, at p. 441; see also Residential Capital v. Cal-Western Reconveyance Corp. (2003) 108 Cal. App. 4th 807 , 819 (Residential Capital).) " 'If the trustee's deed recites that all statutory notice requirements and procedures required by law for the conduct of the foreclosure have been satisfied, a rebuttable presumption arises that the sale has been conducted regularly and properly.' " (Biancalana, supra , 56 Cal.4th at p. 814.) This presumption becomes conclusive upon delivery of the trustee's deed to a bona fide purchaser. (Ibid., Lona, supra , 202 Cal.App.4th at p. 102.) The trustee's deed delivered to plaintiffs here contained the requisite recitals. A party can move in equity to set aside a nonjudicial foreclosure sale if there are irregularities in the notice or procedure of the sale. ( Lona, supra , 202 Cal.App.4th at 3 Section 2924h, subdivision (a) states: "Each and every bid made by a bidder at a trustee's sale under a power of sale contained in a deed of trust or mortgage shall be deemed to be an irrevocable offer by that bidder to purchase the property being sold by the trustee under the power of sale for the amount of the bid." (Italics added.) 8 pp. 103–104.) "[T]he elements of an equitable cause of action to set aside a foreclosure sale are: (1) the trustee or mortgagee caused an illegal, fraudulent, or willfully oppressive sale of real property pursuant to a power of sale in a mortgage or deed of trust; (2) the party attacking the sale (usually but not always the trustor or mortgagor) was prejudiced or harmed; and (3) in cases where the trustor or mortgagor challenges the sale, the trustor or mortgagor tendered the amount of the secured indebtedness or was excused from tendering." (Id. at p. 104.) " ' " '[G]ross inadequacy of price coupled with even slight unfairness or irregularity is a sufficient basis for setting the sale aside.' " ' " (Biancalana, supra , 56 Cal.4th at p. 814.) Inequity of price is not sufficient alone to set aside a sale, however. " 'Where there is no irregularity in a nonjudicial foreclosure sale and the purchaser is a bona fide purchaser for value, a great disparity between the sales price and the value of the property is not a sufficient ground for setting aside the sale.' " (Alliance Mortgage, supra , 10 Cal.4th at p. 1237, quoting Moeller v. Lien (1994) 25 Cal. App. 4th 822 , 832 (Moeller).) There must be some unfairness or irregularity in the sale process, although the irregularity or unfairness may be slight, to rescind a nonjudicial foreclosure sale. (Biancalana, at p. 814; Lona, at p. 104.) The trial court granted judgment for defendants because it found "there was no irregularity, unfairness, or fraud in the notice and procedural requirements for the foreclosure sale." We also conclude, after independent review, that plaintiffs produced no evidence demonstrating an irregularity in the notice and procedure of the sale. Plaintiffs first contend that irregularity was shown by the trustee's "forc[ing of] the trustee's deed upon [plaintiffs] over Mr. Matson's objection." Delivery of the trustee's 9 deed, however, is a ministerial act after the sale has been completed by accepting the highest bid. (§ 2924h, subd. (c)4; Residential Capital, supra , 108 Cal.App.4th at p. 819; Nguyen, supra , 105 Cal.App.4th at p. 441.) Although, plaintiffs notified the trustee that they were rejecting the deed of trust and returned the deed to the trustee, these actions had no legal effect as the sale was completed upon acceptance of the final bid. Delivery of the deed by the trustee makes conclusive the presumption that the sale was properly conducted (Biancalana, supra , 56 Cal.4th at p. 814), and recordation of the deed perfects the title. (§ 2924h, subd. (c).) Although the purchaser ordinarily records the trustee's deed to perfect his title to the deed, the law does not specify who must record the deed. (Ibid.) The employee of the trustee who had the most knowledge about the practices and procedures of the trustee stated that the trustee had recorded the deed numerous times. We further note that recording of the deed of trust by the trustee is not an irregularity in the notice or procedure of the sale because again, it occurs after the sale has been completed. Irregularities that are outside or "dehors" the notice and procedure of the sale may not be used to set aside a nonjudicial foreclosure sale. ( Nguyen, supra , 105 Cal.App.4th at p. 445; 6 Angels, Inc. v. Stuart–Wright Mortgage, Inc. (2001) 85 Cal. App. 4th 1279 , 1285; Crofoot v. Tarman (1957) 147 Cal. App. 2d 443 , 447.) Plaintiffs cited no authority in support of their claim that the recording of the deed of trust was part 4 Section 2924h, subdivision (c), states in part: "[T]he trustee's sale shall be deemed final upon the acceptance of the last and highest bid, and shall be deemed perfected as of 8 a.m. on the actual date of sale if the trustee's deed is recorded within 15 calendar days after the sale, or the next business day following the 15th day if the county recorder in which the property is located is closed on the 15th day." 10 of the sale procedure in their opening brief, and cited only one case in their reply brief, Schep v. CapitalOne Bank, N.A. (2017) 12 Cal.App.5th 1331. Schep, however, was not an action for rescission but for slander of title. In that context, the court held that the trustee's recording of a notice of sale, notice of default, and the trustee's deed were within the privilege for communications made without malice. (Id. at p. 1337.) Schep did not define or identify the actions that are part of the sale procedure and does not support plaintiffs' position. Recording of the trustee's deed occurred after the sale was concluded and does not satisfy the requirement of an irregularity in the notice and procedure of the sale. Plaintiffs also claim that the trustee's recording of the deed after plaintiffs attempted to reject it was "willfully oppressive." However, nothing about the sale was willfully oppressive as plaintiffs voluntarily bid at the auction. Plaintiffs further claim the sale was irregular because an employee of BSC, the beneficiary, was surprised at the high price paid for the deed of trust. Again, plaintiffs cite no legal authority for this claim. BSC's surprise occurred after the conclusion of the sale and had no influence on plaintiffs' decision to submit a bid of $502,000. BSC did not intentionally take advantage of plaintiffs' mistake. In M.F. Kemper Const. Co. v. City of L.A. (1951) 37 Cal. 2d 696 (Kemper), where the city had knowledge of a contractor's unreasonably low bid before accepting that bid, the court found it would be unjust and unfair to permit the city to take advantage of the contractor's mistake. (Id. at pp. 702– 703.) Here, BSC's representative did not know the amount of the bid until after the sale was already completed by plaintiffs' submission of their irrevocable offer of $502,000. 11 BSC did not intentionally take advantage of plaintiffs' mistake, as the city did in Kemper. The surprise of the BSC employee was outside the sale process. We conclude defendants established that plaintiffs cannot prove their claim for rescission of the nonjudicial foreclosure sale because they have produced no evidence suggesting an irregularity, fraud or unfairness in the nonjudicial foreclosure notice and sale proceedings. (Biancalana, supra , 56 Cal.4th at p. 814; Lona, supra , 202 Cal.App.4th at 104.) Unilateral Mistake of Fact Plaintiffs contend that their claim may, and should, be reviewed under the common law contract principle of unilateral mistake of fact, relying on California Golf, L.L.C. v. Cooper (2008) 163 Cal. App. 4th 1053 , 1070 (California Golf) for the application of common law remedies to nonjudicial foreclosure sales. In California Golf, as here, the buyers at a nonjudicial foreclosure sale had a change of mind after purchasing a deed with cashier's checks. The buyers sought to cancel the sale by falsely telling the bank that had issued the cashier's checks that the checks had been lost. Unlike here, the bank cancelled the cashier's checks, depriving the lender of the proceeds of the sale. (California Golf, supra , 163 Cal.App.4th at pp. 1058– 1059.) The court held that the nonjudicial foreclosure sale statutory scheme did not prevent the loan beneficiary from suing the buyers for fraud and breach of warranty due to their fraudulent affidavits causing cancellation of the cashier's checks. The court stated, "although the statutory scheme governing nonjudicial foreclosures has, in certain circumstances, been held to constitute the exclusive civil remedy for wrongdoing in the 12 context of a nonjudicial foreclosure, that exclusivity cannot be applied to immunize the fraudulent and apparently felonious conduct of [the buyers] in this case. . . . [¶] California courts have repeatedly allowed parties to pursue additional remedies for misconduct arising out of a nonjudicial foreclosure sale when not inconsistent with the policies behind the statutes." (Id. at pp. 1067, 1070, italics added.) We note plaintiffs are not pursuing a remedy for misconduct by defendants. Rather, they are seeking to set aside their own irrevocable offer and the procedurally correct notice and sale, based on their own mistake. That is inconsistent with the policies behind the nonjudicial foreclosure statutes. (See California Golf, supra , 163 Cal.App.4th at p. 1070.) Permitting a common law claim of mistake by the buyer to void the sale would deprive the beneficiary of a quick, inexpensive and efficient remedy. It would upend the finality of the sale and the statutory intent that a properly conducted sale be final among the parties. (Moeller, supra , 25 Cal.App.4th at p. 830 [nonjudicial foreclosure sale statutes prevent debtor from contesting validity of nonjudicial foreclosure sale in which property sold for one-quarter of its value].) A buyer's withdrawal from an irrevocable offer due to its own mistake "would be inconsistent with the comprehensive and exhaustive statutory scheme regulating nonjudicial foreclosures to incorporate another unrelated cure provision into statutory nonjudicial foreclosure proceedings." (Id. at p. 834.) Nonetheless, the trial court considered this argument at the hearing on the motion for summary judgment and found that plaintiffs could not rescind the nonjudicial foreclosure sale based on their own unilateral mistake. The trial court found that the 13 plaintiffs bore the risk of mistake by engaging in the sale. It stated that Matson should have investigated the lien more closely. The court continued, "[T]he mistake can't be the result of neglect of a legal duty. You can't be careless and [Matson] was careless." The court emphasized the riskiness of purchasing deeds of trust at foreclosure sales, and the fact that Matson had a title report but did not take the time to read it. After independent review, we reach the same conclusion. Plaintiffs also contend they have a common law remedy based on Donovan v. RRL Corp. (2001) 26 Cal. 4th 261 , 281–282 (Donovan). In Donovan, an automobile dealer placed an advertisement in a newspaper to sell a car. The newspaper made typographical and proofreading errors that resulted in the advertisement listing a price that was significantly below the intended sales price. Buyers offered the advertised price for the car. The dealer refused to accept the erroneous offer. The buyers sued the dealer for breach of contract. (Id. at pp. 266–267.) The Supreme Court held that although a Vehicle Code section required the dealer to sell at an advertised price, that statute did not exclude common law principles authorizing rescission of a contract on the ground of mistake. Rescission was warranted because the seller's unilateral failure to discover typographical and proofreading errors was made in good faith, the seller did not bear the risk of the mistake, and enforcement of the contract with the erroneous price would be unconscionable. (Id. at p. 267.) The dealer did not neglect a legal duty because the mistake was a matter of ordinary negligence or carelessness, such as sometimes occurs in the conduct of "reasonable and cautious businesspersons." (Id. at p. 283.) 14  The Donovan court set forth the following grounds for a party to establish rescission based upon unilateral mistake (changing the identification of parties to fit the facts of this case); "Where the [defendant] has no reason to know of and does not cause the [plaintiff's] unilateral mistake of fact, . . . : (1) the [plaintiff] made a mistake regarding a basic assumption upon which the [plaintiff] made the contract; (2) the mistake has a material effect upon the agreed exchange of performances that is adverse to the [plaintiff]; (3) the [plaintiff] does not bear the risk of the mistake; and (4) the effect of the mistake is such that enforcement of the contract would be unconscionable." (Donovan, supra , 26 Cal.4th at p. 282.) Plaintiffs here concentrate their argument on claiming that enforcement of the contract would be unconscionable as to them, because the price they paid substantially exceeded the fair market value of the deed of trust. They cannot, however, meet the third requirement, that they do not bear the risk of mistake. In Donovan, the court examined section 154 of the Restatement Second of Contracts. (Donovan, supra , 26 Cal.4th at p. 283.) That section states, "A party bears the risk of a mistake when . . . (b) he is aware, at the time the contract is made, that he has only limited knowledge with respect to the facts to which the mistake relates but treats his limited knowledge as sufficient. . . ." (Ibid.) That was the case here. Matson obtained a 94-page title report but did not read it thoroughly. (See also Amin v. Superior Court (2015) 237 Cal. App. 4th 1392 .) Acting with limited knowledge was not the error in Donovan. The court granted relief to the car dealer because he acted with the care common to a "reasonable and cautious businessperson" in delegating to the newspaper the printing of the car price in 15 the advertisement. (Donovan, supra , 26 Cal.4th at p. 283.) Matson, on the other hand, did not act as a cautious businessperson in deciding to bid at a nonjudicial foreclosure sale in full reliance on a private software application, without his own thorough investigation of the liens on the property. Here, Matson intended to make an offer of $502,000, in order to submit the highest bid over two other bidders. He did not make a mere clerical error. Plaintiffs were not entitled to relief under the common law principle of a unilateral mistake of fact due to their error in judgment in intentionally making that high offer. DISPOSITION The judgment is affirmed. Defendants are to recover costs on appeal. BENKE, Acting P. J. WE CONCUR: O'ROURKE, J. IRION, J. 16

2020-12-01 16:00:46.797696+00

http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/19-2078.OPINION.12-1-2020_1693794.pdf

Case: 19-2078 Document: 130 Page: 1 Filed: 12/01/2020 NOTE: This disposition is nonprecedential. United States Court of Appeals for the Federal Circuit ______________________ GARY E. ALBRIGHT, ET AL., Plaintiffs-Appellants CLAUDE J. ALLBRITTON, ET AL., Plaintiffs v. UNITED STATES, Defendant-Appellee ------------------------------------------- PERRY LOVERIDGE, ET AL., Plaintiffs NEAL ABRAHAMSON, ET AL., Plaintiffs-Appellants v. UNITED STATES, Defendant-Appellee ------------------------------------------- GARY E. ALBRIGHT, ET AL., Plaintiffs DANIEL EARL HIGGINS, III, MICHAEL J. OPOKA, Case: 19-2078 Document: 130 Page: 2 Filed: 12/01/2020 2 ALBRIGHT v. UNITED STATES ZELDA L. OPOKA, Plaintiffs-Appellants v. UNITED STATES, Defendant-Appellee ______________________ 2019-2078, 2019-2080, 2019-2090, 2019-2316 ______________________ Appeals from the United States Court of Federal Claims in Nos. 1:16-cv-00912-NBF, 1:16-cv-01565-NBF, 1:18-cv-00375-NBF, Senior Judge Nancy B. Firestone. ______________________ Decided: December 1, 2020 ______________________ THOMAS SCOTT STEWART, Stewart Wald & McCulley, LLC, Kansas City, MO, argued for all plaintiffs-appellants. Plaintiffs-appellants Neal Abrahamson, Randy Anderson, Judy Anderson, Braukman Loving Trust, Hannelore Drugg, James Haley, Deslee Kahrs, Donna Kahrs, Won Wha Kim, Jeong Ho Kim, Terry Kline, Debbie Kline, Mas- cott, LLC, Terry S. McCamman, Cheryl A. McCamman, Sharon Newman, Cheryl D. Runnels Trust, Barbara L. Thompson Revocable Living Trust, William E. Waibel Liv- ing Trust and Pamela A. Waibel Living Trust, Diane Wal- ters, Richard Young, Advance Resorts of America, Inc., William Appleton, Jacqueline Appleton, Berrie Beach, LLC, Maureen Berrie-Lawson, Angelina Best, Brecht Fam- ily Trust, Neil Brown, Randall S. Burbach Trust, Douglas Burrows, Chastain Family Limited Partnership, Gary L. Dowen, Mary E. Dowen, Scott Ford, Rosalie Gehlen, Len- hart A. Gienger Trust, Rick Hass, Barbara Hass, Cheri Heath-Rickert, James Henriksen, David Hirschfield, Case: 19-2078 Document: 130 Page: 3 Filed: 12/01/2020 ALBRIGHT v. UNITED STATES 3 Roberta J. Hoffard Revocable Living Trust, Claudia Jame- son, Darleen Johnson, Betsy A. King Revocable Trust, Wil- liam Neuman, Ruffo Family Revocable Living Trust, Patricia Shotwell, Kevin Thomas, Carol Thomas, Shirley M. Thomas Revocable Living Trust, Zapp Family Revoca- ble Living Trust, Paul D. Ancheta, Donald Aten, Linda Aten, Brummund Family Revocable Living Trust, David William Bruneau Trust, Kim Kristina Bruneau Trust, Daniel Stokes, Judith Stokes, Franklin Byrnes, Alice Yetka, Mark Escriva, Maryann Escriva, Falconer Family Trust, Farmington Hubbard Adams Enterprises, LLC, Ei- leen George, Martha Lynn Trost Gray, James Harper, Georgia Gettman, Stephan Jones, Teresa Jones, Ronald Koch, Julie Koch, LOLA OTT IV, LLC, Ebben McCarty, James McDonald, Sally McDonald, Synthia McIver, Zhim- ing Mei, Oregon Conference of the Methodist Church, Ore- gon-Idaho Annual Conference of the United Methodist Church, Oregon Writers Colony, Inc., Ardyce K. Osborn Revocable Living Trust, Rockaway Sandwood Ltd., Michael Sabin, Jerry Schlegel, Van's Camp LLC, Fred Wale, An- drea Lynn Wallace, Mary Judith Upright Living Trust also represented by ELIZABETH MCCULLEY; MICHAEL JAMES SMITH, STEVEN WALD, St. Louis, MO. JAMES H. HULME, Arent Fox LLP, Washington, DC, for plaintiffs-appellants Edward J. Bates, Judith A. Bates, Todd A. Bridge, Rebecca A. Bridge, Sherry D. Crocker, Howard N. Dietrich, Sr., Bradley C. Donohue, Erickson Re- alty, Ltd., Joseph A. Evers, Beverly J. Evers, Evers Family Farms, Inc., Roderick Michael Gordon Living Trust, Daniel Earl Higgins, III, Jason Hitz, Christy Hitz, Mark Beer, Carol Beer, JC Purinton Group, LLC, Dmitri Kosten, Kurt Langeberg, Linda Langeberg, Lardner Family Revocable Trust, M& GT Land Management LLC, James E. McConnell, Rita J. McConnell, Michael J. Opoka, Zelda L. Opoka, Lyal T. Purinton, Sandra K. Purinton, Barbara Reimers Family Trust, Schwietert Enterprises II, LLC, Brady A. Smith, Patrick Toews, Dominique Toews, Upper Case: 19-2078 Document: 130 Page: 4 Filed: 12/01/2020 4 ALBRIGHT v. UNITED STATES Crust Real Estate, LLC, Eric P. Williams, Karen J. Wil- liams, Charles Winders, James P. Calpin Trust, Carla C. Albright, Gary E. Albright. Also represented by DONALD B. MITCHELL, JR. MEGHAN S. LARGENT, LewisRice, St. Louis, MO, for plaintiffs-appellants Carole J. Bellisario, Martha Bush, George W. DeGeer, Tracy J. Keegan, David L. Hubbell, Gregory K. Hulbert Trust, Jamieson Land and Timber, LLC, Gail M. Kessinger, James A. Kliewer, Susan M. Kliewer, Little Family Trust, James C. Miller, Diane Foeller Miller, Daniel Mathias Foeller, Thomas Charles Foeller, Thomas J. Rinck and Sandra Gift Trust, Switzer Family Trust, Steven Michael Van Doren, Linda Ann Van Doren, Willa Worley, Richard John Vidler, Jr., Arlene Frances Wolever Trust. Also represented by LINDSAY BRINTON. ANNA KATSELAS, Environment and Natural Resources Division, United States Department of Justice, Washing- ton, DC, argued for defendant-appellee. Also represented by JEFFREY B. CLARK, ERIC GRANT. MARK F. HEARNE, II, True North Law Group, LLC, St. Louis, MO, for amicus curiae National Association of Re- versionary Property Owners. Also represented by STEPHEN S. DAVIS. ______________________ Before PROST, Chief Judge, LINN and TARANTO, Circuit Judges. PROST, Chief Judge. These consolidated appeals stem from a “rails-to-trails” conversion in Oregon. The Court of Federal Claims deter- mined that the twenty-six deeds at issue each conveyed fee simple title, not an easement, from Appellants’ Case: 19-2078 Document: 130 Page: 5 Filed: 12/01/2020 ALBRIGHT v. UNITED STATES 5 predecessors-in-interest to the railroad. 1 See generally Loveridge v. United States, No. 16-912L, 2019 WL 495578 (Fed. Cl. Feb. 8, 2019) (“Reconsideration”); Loveridge v. United States, 139 Fed. Cl. 122 (2018) (“Decision”). For that reason, the Court of Federal Claims concluded that Appellants have no compensable property interest in the land to which the deeds pertain. Appellants appealed. We affirm. I The United States Surface and Transportation Board (“STB”) has regulatory authority over rail carriers who wish to discontinue or abandon any part of their railroad line. 49 U.S.C. §§ 10501 (b), 10903. Discontinuance “allows a railroad to cease operating a line for an indefinite period while preserving the rail corridor for possible reactivation of service in the future.” Preseault v. Interstate Commerce Comm’n, 494 U.S. 1 , 4 n.3 (1990) (“Preseault I”). Abandon- ment “removes the line from the national rail system and 1 Like the parties, we identify the deeds by the gran- tor’s name or, if the grantor executed more than one deed, by both the grantor’s name and the book and leading page number. The deeds at issue on appeal are Beals 18/40 (J.A. 20, 1219); Bryden (J.A. 24, 1234); Burgholzer 83/99 (J.A. 26, 1238); Cummings (J.A. 35, 1263); DuBois 24/40 (J.A. 41, 1281); Friday (J.A. 44, 1296); Galvani (J.A. 45, 1300); Gattrell (J.A. 46, 1302); Goodwin (J.A. 50, 1310); Hagen (J.A. 51, 1312); Jeffries (J.A. 63, 1357); Rinck (J.A. 88, 1438); Rupp (J.A. 92, 1446); Slattery (J.A. 96, 1462); Smith (J.A. 97, 4871); Stowell (J.A. 100, 1473); Thayer 11/355 (J.A. 103, 1478); Watt 12/343 (J.A. 112, 1478); Watt 12/344 (J.A. 113, 1502); Watt 12/345 (J.A. 114, 1504); Westinghouse 85/39 (J.A. 117, 1504); Wheeler Lum- ber 16/3 (J.A. 119, 2133); Wheeler Lumber 16/5 (J.A. 120, 4773); Wilson 75/244 (J.A. 122, 1524); Woodbury 16/481 (J.A. 123, 4864); and Woodbury 23/399 (J.A. 124, 4829). Case: 19-2078 Document: 130 Page: 6 Filed: 12/01/2020 6 ALBRIGHT v. UNITED STATES terminates the railroad’s common carrier obligation for the line.” Chi. Coating Co., LLC v. United States, 892 F.3d 1164 , 1166 (Fed. Cir. 2018). A railroad seeking to abandon any part of its railroad line must either file a standard abandonment application under 49 U.S.C. § 10903 or seek an exemption under 49 U.S.C. § 10502 . See Caldwell v. United States, 391 F.3d 1226 , 1228 & n.3 (Fed. Cir. 2004). A provision of the National Trails System Act Amend- ments of 1983, Pub. L. No. 98-11, sec. 208(1), 97 Stat. 42 , 48 (codified as amended at 16 U.S.C. § 1247 (d)), provides an alternative to abandonment called “railbanking,” which preserves the possibility of future use of the land for rail- road purposes but permits a trail sponsor to both take re- sponsibility for the land and convert it in the interim to a recreational trail. Preseault I, 494 U.S. at 6–7; Chi. Coat- ing, 892 F.3d at 1167. To initiate this process, a prospec- tive trail sponsor must first notify the STB of its interest to repurpose the land to interim trail use. Preseault I, 494 U.S. at 7 n.5; Chi. Coating, 892 F.3d at 1167 & n.3. If the railroad agrees to negotiate an interim trail use/rail- banking agreement with the prospective trail sponsor, the STB issues a Certificate of Interim Trail Use (“CITU”) or, in the case of exemption proceedings, a Notice of Interim Trail Use (“NITU”). See 49 C.F.R. § 1152.29 (c)–(d); Caquelin v. United States, 959 F.3d 1360 , 1363 (Fed. Cir. 2020); Chi. Coating, 892 F.3d at 1167. The CITU or NITU provides the parties with a period of time to negotiate a trail use agreement. See 49 C.F.R. § 1152.29 . If the parties reach an agreement, upon notifying the STB, the corridor is railbanked, and the trail sponsor may convert the rail segment to a trail. See Preseault I, 494 U.S. at 7 . Turning now to this case, on May 26, 2016, the Port of Tillamook Bay Railroad (“POTB”) filed an exemption notice with the STB to abandon the portion of its rail line located between milepost 775.1 (near Banks, Oregon) and milepost 856.08 (near Tillamook, Oregon). On June 7, 2016, the Salmonberry Trail Intergovernmental Agency (“STIA”) Case: 19-2078 Document: 130 Page: 7 Filed: 12/01/2020 ALBRIGHT v. UNITED STATES 7 asked the STB to issue a NITU for the segment. The STB issued the NITU on July 26, 2016, after POTB expressed its willingness to negotiate with STIA for interim trail use and railbanking. STIA and POTB ultimately reached an interim trail use agreement and notified the STB of the agreement on October 23, 2017. Shortly after the NITU issued, Plaintiffs-Appellants filed the underlying action in the Court of Federal Claims, alleging that the conversion of the land to interim trail use amounted to a Fifth Amendment taking. One hundred thirty-two deeds were initially at issue in the case. Twenty-six deeds remain at issue in this appeal. Appel- lants contend that “their predecessors-in-interest granted only easements to the railroad which terminated when the railroad became dormant” and, as a result, “conversion of the rail corridor gave rise to a” compensable Fifth Amend- ment taking. See Decision, 139 Fed. Cl. at 127. In re- sponse, the government argued that there was no compensable taking because the deeds at issue “conveyed the property within the rail corridor to the railroads in fee simple absolute.” Id. The Court of Federal Claims agreed with the government, concluding on partial summary judg- ment that the twenty-six deeds at issue conveyed fee sim- ple title to the railroad and that, therefore, no Fifth Amendment taking occurred. Appellants appealed. We have jurisdiction under 28 U.S.C. § 1295 (a)(3). II We review de novo the decision of the Court of Federal Claims on summary judgment. Cienega Gardens v. United States, 331 F.3d 1319 , 1328 (Fed. Cir. 2003); see also Chi. Coating, 892 F.3d at 1169. “Summary judgment is appro- priate where there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a mat- ter of law.” Arko Exec. Servs., Inc. v. United States, 553 F.3d 1375 , 1378 (Fed. Cir. 2009) (citing Anderson v. Case: 19-2078 Document: 130 Page: 8 Filed: 12/01/2020 8 ALBRIGHT v. UNITED STATES Liberty Lobby, Inc., 477 U.S. 242 , 247 (1986)); see also R. Ct. Fed. Cl. 56(a). The Fifth Amendment of the Constitution provides that “private property [shall not] be taken for public use, without just compensation.” U.S. CONST. amend. V, cl. 4. Here, the only issue on appeal is whether the twenty-six deeds at issue conveyed to the railroad an estate in fee sim- ple absolute or an easement. If the deeds conveyed only an easement, then the Appellants might have a valid takings claim. See Preseault v. United States, 100 F.3d 1525 , 1533 (Fed. Cir. 1996) (en banc) (“Preseault II”); see also Chi. Coating, 892 F.3d at 1170; Ellamae Phillips Co. v. United States, 564 F.3d 1367 , 1373 (Fed. Cir. 2009). But if the railroad “obtained fee simple title to the land over which it was to operate, and that title inures, as it would, to its suc- cessors, the [Appellants] would have no right or interest in those parcels and could have no claim related to those par- cels for a taking.” Preseault II, 100 F.3d at 1533 ; see also Chi. Coating, 892 F.3d at 1170; Ellamae Phillips, 564 F.3d at 1373 . To determine the nature of the conveyance, we apply Oregon law as it is “the law of the state where the property interest[s] arise[].” Chi. Coating, 892 F.3d at 1170. For the reasons below, we agree with the Court of Fed- eral Claims that each of the twenty-six deeds conveyed fee simple title to the railroad and, accordingly, Appellants have no compensable Fifth Amendment takings claim re- lating to these deeds. A Under Oregon law, “[w]hether an instrument conveys ownership of land or only an easement depends upon the intention of the parties.” 2 Bouche v. Wagner, 293 P.2d 203 , 2 The parties dispute whether, under Oregon law, it is presumed that the parties intended to convey a fee Case: 19-2078 Document: 130 Page: 9 Filed: 12/01/2020 ALBRIGHT v. UNITED STATES 9 208 (Or. 1956) (internal quotation marks omitted); see also Bernards v. Link, 248 P.2d 341 , 344 (Or. 1952). In Wason v. Pilz, a case that did not involve a railroad deed, the Oregon Supreme Court considered a deed convey- ing a parcel of land for road purposes. 48 P. 701 , 701–02 (Or. 1897). The court concluded that because the convey- ance granted land only for limited purposes, the language of the conveyance was “indicative of an easement only” and was “controlling as the measure of the estate granted.” Id. In Bernards, the Oregon Supreme Court held that the railroad deed at issue granted an easement, not a fee sim- ple estate, and stated: It will be observed from the deed that (1) it was en- titled “Right of Way Deed”; (2) a conveyance of the strip was made “for use as a right of way”; (3) the consideration was only $1 [i.e., the consideration was nominal]; (4) the conveyance was subject to a condition subsequent which revested all title in the grantors in the event the stipulated condition oc- curred; (5) the grantees were required to construct for the use of the grantors a cattle crossing; (6) the description included the phrase “over and across and out of the land of the grantors”; (7) the phrase- ology employed repeatedly the term “strip of land”; [and] (8) the grantee was required to “build and keep in repair a good and substantial fence along each side of the strip.” Bernards, 248 P.2d at 343–44. Although “[v]arious tests ha[d] been suggested by the commentators for facilitating simple estate unless the intent to pass a lesser estate was expressly stated or necessarily implied. We need not de- cide this issue to resolve the case, as we conclude that the deeds at issue convey a fee simple estate even if there is no presumption that they did so. Case: 19-2078 Document: 130 Page: 10 Filed: 12/01/2020 10 ALBRIGHT v. UNITED STATES a determination whether a deed like the one before [the court] grants an easement or conveys the fee,” the court “deem[ed] it unnecessary to set forth . . . a review of the many authorities cited by the parties” because “the [Wa- son] decision is determinative of the issues under consider- ation.” Id. at 343–44. In particular, like the deed in Wason, the deed in Bernards similarly conveyed land only for a limited purpose: specifically, the deed “convey[ed] . . . for its use as a right of way for a railroad, a strip of land.” Id. at 342 (emphasis added. The Oregon Supreme Court considered another rail- road deed in Bouche but this time concluded that the deed conveyed fee simple title. 293 P.2d at 210. As in Bernards, the court stressed the importance of what the deed pur- ports to convey. Specifically, the court explained: A study of the cited cases suggests that the courts have little difficulty, where a railroad company is the grantee, in declaring that the instrument cre- ates only an easement whenever the grant is a use to be made of the property, usually, but not invari- ably, described as for use as a right of way in the grant. On the other hand, . . . [c]onveyances to railroads, which purport to grant and convey a strip, piece, parcel, or tract of land, and which do not contain additional language relating to the use or purpose to which the land is to be put or in other ways cut- ting down or limiting, directly or indirectly, the es- tate conveyed, are usually construed as passing an estate in fee. Id. at 209 (internal quotation marks omitted). The court further remarked that courts had “ex- press[ed] a divergence of opinion when the conveyance merely has a reference to the use or purpose to which the land is to be put, and which is contained in either the Case: 19-2078 Document: 130 Page: 11 Filed: 12/01/2020 ALBRIGHT v. UNITED STATES 11 granting or habendum clause, and, except for the reference, would uniformly be construed as passing title in fee.” Id. The court explained that the “confusion . . . arises for the most part in the failure to distinguish the twofold meaning of the words ‘right of way.’” Id. Specifically, the term right of way is “sometimes used to describe a right belonging to a party, a right of passage over any tract; and it is also used to describe that strip of land which railroad companies take upon which to construct their road-bed.” Id. (quoting Joy v. City of St. Louis, 138 U.S. 1 , 44 (1891) (emphasis omit- ted)). In considering the 1921 deed at issue in the case, the court concluded that “it was the intention of the parties that the fee in the land should pass,” reasoning: The conveyance is not entitled (1) a “right of way deed”; (2) the granting clause conveys land, not a right; (3) the consideration was substantial ($650); (4) there is no reverter provided for; (5) the words “over and across the lands of the grantors” do not appear; and (6) the land conveyed is described with precision. Id. at 206, 209–10. The court explained further that “[t]he only indication that the parties may have intended an ease- ment should pass is the incidental reference to a ‘right of way’ in the covenant following the granting and habendum clause,” but that term “could have referred to either the right of passage or to the land itself,” and there was noth- ing in the deed that limited the use the grantee might make of the land. Id. at 209. The court also concluded that the 1919 deed at issue “conveyed the fee simple title to the land involved,” reason- ing: [The deed] contained no mention of a right of way; it described the subject of the grant as “a strip of land,” not as a “right,” and there was no statement Case: 19-2078 Document: 130 Page: 12 Filed: 12/01/2020 12 ALBRIGHT v. UNITED STATES of the purposes for which it was granted; it de- scribed the land conveyed with a relatively high de- gree of precision; and the habendum clause is of the type usually employed to convey a fee simple title. Id. at 206–07, 210. B We conclude that each of the twenty-six deeds con- veyed fee simple title, not merely an easement, and we thus affirm the decision of the Court of Federal Claims. Importantly, the granting clauses of all twenty-six deeds at issue purport to convey land—not an easement, not a right of way, and not property for specified purposes. Seventeen of the deeds provide, with at most minor and immaterial grammatical differences: “[The grantors] bar- gain, sell, grant, convey, and confirm” to the railroad com- pany “and to its successors and assigns forever, all of the following described real property . . . to wit: a strip of land . . . .” (emphasis added). 3 Four deeds provide, again with at most minor and immaterial grammatical differences: “[The grantors] grant, bargain and sell, convey[,] and con- firm . . . all that certain lot, piece, parcel and tract of land . . . .” (emphasis added). 4 Four more deeds provide, yet again with at most minor immaterial grammatical differ- ences: “[The grantors] bargain, sell, grant, convey[,] and confirm . . . a strip of land . . . .” (emphasis added). 5 And 3 These deeds are Beals 18/40, Burgholzer 83/99, Cummings, DuBois 24/40, Goodwin, Jeffries, Rinck, Slat- tery, Smith, Thayer 11/355, Watt 12/343, Watt 12/344, Watt 12/345, Westinghouse 85/39, Wheeler Lumber 16/3, Wheeler Lumber 16/5, and Wilson 75/244. 4 These deeds are Friday, Galvani, Hagen, and Stow- ell. 5 These deeds are Gattrell, Rupp, Woodbury 16/481, and Woodbury 23/399. Case: 19-2078 Document: 130 Page: 13 Filed: 12/01/2020 ALBRIGHT v. UNITED STATES 13 the remaining deed—Bryden—provides: “[The grantors] grant, bargain, sell and convey . . . all of the following bounded and described real property . . . a strip of land . . . .” (emphasis added). Although four of the deeds—Bryden, Friday, Smith, and Stowell—include the word “right of way,” the deeds do so only in their descriptions of the property conveyed and only to describe the land itself, not to describe what was being conveyed. Reconsideration, 2019 WL 495578 , at *51–52, 56–57; see Bouche, 293 P.2d at 209 (discussing the “twofold meaning” of right of way). In addition, although seven deeds—DuBois, Gattrell, Goodwin, Rinck, Slattery, Wheeler Lumber 16/3, and Wheeler Lumber 16/5—further indicate that the right to operate a railroad is conveyed, this language is clearly em- ployed merely to confirm that the conveyance includes that right, not to limit the interest conveyed to that right. E.g., J.A. 50–51, 1310 (providing that “real property” is con- veyed to the railroad “and to its successors and assigns for- ever[,] . . . together with the appurtenances[,] tenements[,] and hereditaments thereunto belonging or in anywise ap- pertaining, together also with the right to maintain and op- erate a railroad thereover” (emphasis added)); J.A. 120– 121, 4773 (providing that “real property” is conveyed to the railroad “and to its successors and assigns forever . . . [t]ogether with the appurtenances, tenements[,] and here- ditaments thereunto belonging or in anywise appertain- ing[,] . . . grantors confirming also to the grantee, its successors and assigns, the right to build, maintain and op- erate a line of railway thereover” (emphasis added)). In addition, none of the deeds provide for a reverter or otherwise contain language limiting the use that the grantee could make of the land. To the contrary, each of the deeds purport to convey land to the grantee and “to its successors and assigns forever.” And twenty-five of the twenty-six deeds specify that the land is conveyed with all Case: 19-2078 Document: 130 Page: 14 Filed: 12/01/2020 14 ALBRIGHT v. UNITED STATES appurtenances, tenements and hereditaments. The deeds at issue are thus much more akin to the 1921 deed in Bouche than to the deed in Bernards. Compare Bouche, 293 P.2d at 209 (concluding that the 1921 deed conveyed a fee simple in part because “there [was] no reverter provided for”), with Bernards, 248 P.2d at 342 (deed at issue provid- ing that “should [the grantee] fail so to build such railroad, this grant shall become null and void, and the title to said strip so conveyed shall revert to said grantors and their successors in interest”). In sum, like the granting clause at issue in Bouche, the granting clauses in all the deeds at issue here plainly pur- port to convey real property. And the deeds state that the property is conveyed to the grantee and its successors and assigns “forever.” The granting clauses do not purport to convey an easement, a right of way, or something else that would indicate an intent to convey an easement, such as property for specific purposes like the deed at issue in Ber- nards. Nor do the deeds provide for reverter or otherwise limit the uses the grantee can make of the land. These ob- servations strongly support the conclusion that the deeds transferred fee simple absolute title to the land. See Bouche, 293 P.2d at 209–10; Bernards, 248 P.2d at 342–44. Nothing points us to a different conclusion. Appellants argue that the deeds’ use of the phrase “strip of land” evi- dences that the deeds conveyed only an easement. Appel- lants rely on Bernards’s “observation” that the deed at issue, which the court construed as conveying an easement, “employed repeatedly the term ‘strip of land.’” Bernards, 248 P.2d at 343. Appellants’ argument is unpersuasive. For starters, the Bouche court stated that “[c]onveyances to railroads, which purport to grant and convey a strip . . . of land” and do not otherwise limit the estate conveyed “are usually con- strued as passing an estate in fee.” Bouche, 293 P.2d at 209. The Bouche court also specifically concluded that Case: 19-2078 Document: 130 Page: 15 Filed: 12/01/2020 ALBRIGHT v. UNITED STATES 15 the 1919 deed at issue conveyed fee simple title in part be- cause “it described the subject of the grant as ‘a strip of land,’ not as a ‘right.’” Id. at 210. Accordingly, although the deeds describe the land conveyed as a strip, that fact, standing alone, does not evidence that the parties to the deed intended to convey only an easement. Even assuming Appellants are correct that Bernards attached significance to the deeds’ use of the term “strip of land,” Bouche appears to have reduced or eliminated such significance. And it is not at all clear that Bernards did attach great significance to the term, considering Bernards merely observed that the deed included the term but oth- erwise rested heavily on Wason—which did not relate to the significance of the term strip of land—in reaching its decision. See Bernards, 248 P.2d at 343–44. Furthermore, at most Bernards attached significance to “repeated[]” use of the term strip of land, but here the deeds use the term infrequently: most use the term only once to describe the land being conveyed, and the deeds that more often use the term do so only because they describe more than one strip of land. Appellants further point to a number of Oregon Su- preme Court cases stating that it is against public policy to have numerous strips of land all held separately in fee sim- ple absolute. See, e.g., Cross v. Talbot, 254 P. 827 , 828 (Or. 1927). This argument is also unpersuasive. Our deci- sion relies on the relevant Oregon case law, including Ber- nards and Bouche. Appellants have failed to persuade us that Bernards and Bouche are not good law or otherwise do not already account for this public policy, particularly con- sidering that the Oregon Supreme Court announced this public policy long before Bernards and Bouche. Further- more, we note that it is beyond question that, under Oregon law, railroads sometimes obtained fee simple title to strips of land used for their rail lines. See, e.g., Bouche, 293 P.2d 203 . This is such a case. Case: 19-2078 Document: 130 Page: 16 Filed: 12/01/2020 16 ALBRIGHT v. UNITED STATES In addition, Appellants contend that the deeds do not describe the land with precision, which favors finding that the deeds convey an easement. This argument falls short because each of the deeds describes the land conveyed with at least some precision. In particular, each deed identifies the boundaries of the strip of land conveyed in reference to the centerline of the railroad that had been surveyed and located before executing the deeds. Under such circum- stances, it can hardly be said that the deeds failed to ade- quately specify the boundaries of the land conveyed. See, e.g., Restatement (First) of Property § 471 (1944) (observ- ing that “a conveyance creating an estate” can describe the land conveyed “in any of many different ways,” including “by reference to an area to be located by survey with refer- ence to a known point or points”). Appellants also highlight that many of the deeds use the term “through” or “across,” which they contend is simi- lar to the Bernards deed’s usage of “over and across and out of the land of the grantors.” Bernards, 248 P.2d at 342–43. We are not convinced. The deed in Bernards used that phrase in the granting clause to describe what was con- veyed, and the usage suggested that the deed conveyed not a possessory interest in the property itself but rather a nonpossessory right of way over and across the land. See id. In contrast, here the deeds do not use “through” and “across” to limit what was conveyed by the deed. Rather, the deeds use the terms only in the description of the prop- erty conveyed and merely to communicate that the railroad had been located through certain property. Furthermore, Appellants argue that, for many of the deeds, the stated consideration was nominal, which Appel- lants contend evidences that the parties intended to convey only an easement. Under these circumstances, reciting nominal consideration is insufficient to overcome the other factors supporting a determination that the deeds convey an estate in fee simple absolute. We also note that, on at least one occasion, an Oregon appellate court gave little Case: 19-2078 Document: 130 Page: 17 Filed: 12/01/2020 ALBRIGHT v. UNITED STATES 17 weight to a pre-1967 deed’s recitation of nominal consider- ation of $1 on the basis that “[i]t was not until 1967 that the legislature” began “requiring that conveyances state true and actual consideration,” and there was “no evidence that one dollar was the true consideration.” Realvest Corp. v. Lane Cnty., 100 P.3d 1109 , 1118 & n.6 (Or. Ct. App. 2004). Likewise, the deeds at issue here were all executed prior to 1967, and there is no evidence that the recited con- sideration is the true consideration. Finally, Appellants contend that we should construe the deeds as passing an easement because each deed spe- cifically states that the railroad had already surveyed and located a railway across the grantor’s land prior to execut- ing the deed. Appellants rely on our decision in Preseault II. There, we interpreted Vermont law as providing that where a railroad company’s survey and location of the rail- way precedes the execution of a written instrument, the survey and location, not the subsequent written instru- ment, “is the operative determinant.” Preseault II, 100 F.3d at 1536–37. We explained that railroads in Ver- mont had eminent domain power to acquire easements in land necessary to operate rail lines. Id. We reasoned that where a railroad company surveys and locates its right of way prior to any written agreement, such action evidences the company’s intent to acquire only an easement pursuant to its eminent domain authority, and any subsequent writ- ten conveyance “retain[s] [that] eminent domain flavor.” Id. Appellants’ reliance on Preseault II is unpersuasive. Preseault II applied Vermont law, not Oregon law, and we are unaware of any authority in Oregon that supports Ap- pellants’ position. To the contrary, the 1921 deed con- strued in Bouche plainly indicated that it was executed after the railroad was “located and established,” and the Bouche court gave no significance whatsoever to that. Bouche, 206 Or. at 206, 209. We do not accept Appellants’ invitation to depart from Bouche. Case: 19-2078 Document: 130 Page: 18 Filed: 12/01/2020 18 ALBRIGHT v. UNITED STATES Furthermore, even the Supreme Court of Vermont has not interpreted Preseault II to support Appellants’ position. In Old Railroad Bed, LLV v. Marcus, the Supreme Court of Vermont explained that “[t]o the extent that . . . Pre- seault [II] holds that a location survey automatically con- verts a subsequent fee-simple conveyance into an easement, we know of no law in Vermont or elsewhere to support such a claim.” 196 Vt. 74 , 79 (2014). Indeed, a lo- cation survey does not “preclude[] a railroad from subse- quently purchasing, or the landowner from subsequently conveying, a deeded fee-simple interest.” Id. at 81. For at least these reasons, we do not read Preseault II as broadly as Appellants, and even if we did, Preseault II would nev- ertheless not justify departing from Bouche and Bernards. In short, we conclude that the twenty-six deeds at issue here each conveyed an estate in fee simple absolute, not an easement, to the railroad company. Importantly, each of the deeds purports to convey land, not an easement, right of way, or property for specified purposes. In addition, the deeds purport to convey the land forever and do not provide for reverter or otherwise restrict the use the grantee could make of the land. Even though some of the deeds recite only nominal consideration and the deeds were executed after the railroad was surveyed and located, on balance and under these circumstances, we conclude that the parties conveyed estates in fee simple absolute to the railroad com- pany. 6 6 We further note that even if we were to conclude, for one or more deeds, that there was irreconcilably con- flicting language between the granting clause and other parts of the deed, the granting clause—which purports to convey land, not a right of way or property for specified purposes—would control. Palmateer v. Reid, 254 P. 359 , 361 (Or. 1927); see also First Nat’l Bank of Or. v. Townsend, 555 P.2d 477 , 478 (Or. Ct. App. 1976) (“There is also Case: 19-2078 Document: 130 Page: 19 Filed: 12/01/2020 ALBRIGHT v. UNITED STATES 19 III We have considered Appellants’ remaining arguments but find them unpersuasive. For the foregoing reasons, we affirm the decision of the Court of Federal Claims. AFFIRMED authority for the more technical proposition that if the in- tent of the parties cannot be discerned from the deed and there is, as here, an irreconcilable conflict between the granting clause and other parts of the deed, the estate con- veyed in the granting clause will prevail.”).

2020-12-01 16:01:03.109041+00

https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2019cv3292-17

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA BOZZUTO CONTRACTORS, INC., Plaintiff, v. Case No. 1:19-cv-03292 (TNM) KEDRICK EVANS, Defendant. MEMORANDUM ORDER Plaintiff Bozzuto Contractors, Inc. (“Bozzuto”) moves for default judgment against Defendant Kedrick Evans, who has yet to appear or participate in this breach of contract suit. But Bozzuto seeks to score a run without rounding all the bases. Because Bozzuto has not yet met its burden of establishing subject matter jurisdiction, the Court will deny the motion for default judgment. The Court will require Bozzuto to file more evidence supporting subject matter jurisdiction, liability, and damages. I. Bozzuto is a Maryland corporation with its principal place of business in Greenbelt, Maryland. See First Am. Compl. (“Am. Compl.”) ¶ 1, ECF No. 7. The company served as the general contractor of a construction project in Washington, D.C., known as the Conway Center. Id. ¶ 7. Bozzuto hired an entity purporting to do business as the Washington Sprinkler Corporation (“Washington Sprinkler”) to design and install a fire suppression system for the project for $950,000. Id. ¶¶ 8, 12. Evans signed two subcontracts with Bozzuto on behalf of Washington Sprinkler as its president. Id. ¶¶ 11, 13. Washington Sprinkler did not live up to expectations. According to Bozzuto, the work was subpar, behind schedule, and noncompliant with the relevant fire codes. Pl.’s Mot. for Entry of Judgment by Default (“Mot.”) ¶ 6, ECF No. 16. Bozzuto incurred $353,821 in costs to fix deficient work and complete the project. Id. ¶ 8. Washington Sprinkler also failed to pay its employees in violation of federal regulations, which led to an enforcement action against Bozzuto and an obligation to pay the missing wages and damages. Id. ¶¶ 9–11. Under the subcontracts, Washington Sprinkler had agreed to indemnify Bozzuto against all claims arising from its failure to comply with regulations. Id. ¶ 9. Bozzuto first sued a D.C. corporation, WSC, Inc., believing it to be a trade name for Washington Sprinkler. See Pl.’s Resp. to Court’s Show Cause Order (“Pl.’s Resp.”) ¶ 3, ECF No. 12. Bozzuto later filed an Amended Complaint against WSC, Inc. and Kedrick Evans that raises two claims: Breach of Contract for Failure to Perform Work (Count I) and Breach of Contract for Failure to Pay Prevailing Wages in violation of government regulations (Count II). Am. Compl. ¶¶ 2–3, 17–40. Further investigation revealed that Washington Sprinkler is not incorporated in the District of Columbia or any other jurisdiction and is not a legal entity. Pl.’s Resp. ¶ 3. Nor does WSC, Inc. have any connection to Washington Sprinkler. Id. ¶ 4. So Bozzuto dropped its claims against WSC, Inc. and now proceeds only against Evans. Id. ¶ 5; Pl.’s Notice of Voluntary Dismissal, ECF No. 11. Bozzuto identified Evans as a domiciliary of Virginia in its Amended Complaint. Am. Compl. ¶ 3. When trying to serve him, however, Bozzuto’s process server learned that he had moved. Pl.’s Resp. ¶ 8. About two months after filing the Amended Complaint, Bozzuto served 2 the complaint on Evans’s wife at the home she shares with Evans in Potomac, Maryland. See Return of Service, ECF No. 13. Bozzuto then moved for a default entry. Pl.’s Request for Entry of Default, ECF No. 14. The Clerk entered default against Evans. Clerk’s Entry of Default, ECF No. 15. Bozzuto now moves for a default judgment. In support of its motion, Bozzuto submits an affidavit from David Schorr, Bozzuto’s Chief Accounting Officer, who asserts damages totaling $838,988.36. See Mot. Ex. 1 ¶ 13. There still had been no response from Evans. II. Federal Rule of Civil Procedure 55 establishes a two-step process for default judgments. First, the Clerk of Court enters a default on the docket if the “party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend.” Fed. R. Civ. P. 55(a). Then the plaintiff moves for a default judgment under Rule 55(b). Entry of a default judgment, however, “is not automatic.” Mwani v. bin Laden, 417 F.3d 1 , 6 (D.C. Cir. 2005). In particular, “the procedural posture of a default does not relieve a federal court of its affirmative obligation to determine whether it has subject matter jurisdiction over the action.” Cohen v. Islamic Republic of Iran, 238 F. Supp. 3d 71 , 79 (D.D.C. 2017) (cleaned up). In so doing, “the court may consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.” Coal. for Underground Expansion v. Mineta, 333 F.3d 193 , 198 (D.C. Cir. 2003) (cleaned up). The party seeking default judgment bears the burden of establishing subject matter jurisdiction, so if the complaint “fails facially to plead facts sufficient to establish subject matter jurisdiction, the Court may dismiss the complaint.” Herbin v. Seau, 317 F. Supp. 3d 568 , 572 (D.D.C. 2018) (cleaned up). 3  III. The Court must satisfy itself that it has Article III jurisdiction over this case before proceeding to the merits. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 , 94–95 (1998). Bozzuto has thus far failed to establish that the Court has subject matter jurisdiction. The Amended Complaint invokes the Court’s diversity jurisdiction under 28 U.S.C. § 1332 . See Am. Compl. ¶ 4. Diversity jurisdiction requires complete diversity—that is, it exists only when no plaintiff is a citizen of the same state as any defendant. See Saadeh v. Farouki, 107 F.3d 52 , 54–55 (D.C. Cir. 1997). For purposes of diversity jurisdiction, an individual is a citizen of the state in which he is domiciled, and domicile “requires physical presence in a state as well as the intent to remain there for an unspecified or indefinite period of time.” Herbin, 317 F. Supp. 3d at 572 (cleaned up). A corporation is a citizen of any state in which it is incorporated, as well as in the state in which it has its principal place of business. 28 U.S.C. § 1332 (c). Here, the Amended Complaint makes clear that Bozzuto is a citizen of Maryland—the state where it is incorporated and has its principal place of business. Am. Compl. ¶ 1. And it asserts that Evans is domiciled in Virginia. Id. ¶ 3. But the proof of service muddies the waters. Bozzuto’s process server says that he served Evans’s wife at Evans’s home in Maryland and that she confirmed that he resides there. Return of Service at 1. 1 In a previous filing, Bozzuto explained that it learned as early as March 10, 2020, that Evans “had recently moved from the Springfield, Virginia address Bozzuto had understood to be Mr. Evans’s home address.” Pl.’s Resp. ¶ 8. Bozzuto ultimately discovered Evans’s new Maryland residence in May or June. Id. ¶¶ 11–12. But there is no indication of when Evans moved out of Virginia, and there is 1 All page citations refer to the pagination generated by the Court’s CM/ECF system. 4 substantial reason to believe that he was already a domiciliary of Maryland when Bozzuto filed the Amended Complaint on February 25, 2020. 2 In sum, it is unclear where Evans was domiciled when Bozzuto filed the Amended Complaint; if it was Maryland, then this case cannot proceed in federal court. To permit the Court to confirm jurisdiction, Bozzuto must submit more evidence on Evans’s domicile as of the date of the Amended Complaint. If Bozzuto cannot meet its burden of establishing jurisdiction, then the Court will dismiss this action. Even if Bozzuto can establish subject matter jurisdiction, the Court must still ensure that a default judgment is warranted under Rule 55’s two steps. On liability, although the “defaulting defendant is deemed to admit every well-pleaded allegation in the complaint,” the Court “may, in its discretion, require some proof of the facts that must be established in order to determine liability.” Herbin, 317 F. Supp. 3d 573 –74 (cleaned up); accord 10A Charles Alan Wright et al., Federal Practice & Procedure § 2688.1 (4th ed.). On damages, the Court “must make an independent evaluation of the damages to be awarded and has considerable latitude in determining the amount of damages.” Ventura v. L.A. Howard Constr. Co., 134 F. Supp. 3d 99 , 103 (D.D.C. 2015) (cleaned up). As with subject matter jurisdiction—and perhaps not unlike Washington Sprinkler— Bozzuto leaves the job unfinished. The entirety of Bozzuto’s evidence is a four-page affidavit that largely just restates portions of the Amended Complaint. See Mot. Ex. 1. Bozzuto’s claims 2 Even if Evans changed his domicile between the filing of the Complaint and the Amended Complaint, his citizenship at the latter date is what matters. See Rockwell Int’l Corp. v. United States, 549 U.S. 457 , 473–74 (2007) (“[W]hen a plaintiff files a complaint in federal court and then voluntarily amends the complaint, courts look to the amended complaint to determine jurisdiction.”); see also Farar v. Coffield, No. 1:17-cv-2072 (RMM), 2019 WL 329597 , at *3–5 (D.D.C. Jan. 25, 2019) (noting distinction and determining domiciliary at time of amended complaint). 5 rely on the existence of two subcontract agreements purportedly signed by Evans on behalf of Washington Sprinkler that detailed the scope of the work, the amounts owed, and a duty to indemnify Bozzuto against claims arising from violations of certain government regulations. See Mot. ¶¶ 5–9. Presumably Bozzuto is in possession of these subcontract agreements, and the Court would find them relevant and helpful in assessing liability. The Court especially needs more—and more specific—information when it comes to damages. Bozzuto “must prove its entitlement to the amount of monetary damages requested using detailed affidavits or documentary evidence on which the court may rely.” Boland v. Providence Constr. Corp., 304 F.R.D. 31 , 36 (D.D.C. 2014) (cleaned up). But Bozzuto’s affidavit “simply list[s] the dollar figures . . . without any explanation as to their calculation.” GAG Enters., Inc. v. Rayford, 312 F.R.D. 230 , 234 (D.D.C. 2015) (denying without prejudice motion for default judgment based on insufficient evidence of damages). To secure the $838,988.36 it seeks, Bozzuto needs to submit documentary evidence justifying the damages it alleges and an explanation of its calculations. IV. For these reasons, it is hereby ORDERED that Bozzuto’s Motion for Entry of Judgment by Default is DENIED WITHOUT PREJUDICE, and it is further ORDERED that Bozzuto shall, on or before December 30, 2020, (1) show cause why this case should not be dismissed for lack of subject matter jurisdiction, and (2) submit evidence regarding subject matter jurisdiction and, if appropriate, liability and damages. SO ORDERED. 2020.12.01 09:51:01 -05'00' Dated: December 1, 2020 TREVOR N. McFADDEN, U.S.D.J. 6

2021-01-26 19:01:11.970999+00

http://www.uscourts.cavc.gov/documents/GarnerRV_17-95.pdf

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS No. 18-5865 RONALD V. GARNER, APPELLANT , V. DAT P. TRAN, ACTING SECRETARY OF VETERANS AFFAIRS, APPELLEE. On Appeal from the Board of Veterans' Appeals (Argued May 21, 2020 Decided January 26, 2021) Zachary M. Stolz, with whom Brittani L. Howell and April Donahower, were on the brief, all of Providence, Rhode Island, for the appellant. Jacqueline Kerin, with whom James M. Byrne, General Counsel; Mary Ann Flynn, Chief Counsel; and Anna Whited, Deputy Chief Counsel, were on the brief, all of Washington, D.C., for the appellee. Before BARTLEY, Chief Judge, and MEREDITH and TOTH, Judges. BARTLEY, Chief Judge: Veteran Ronald V. Garner appeals through counsel an August 31, 2018, Board of Veterans' Appeals (Board) decision denying service connection for obstructive sleep apnea (OSA), including as secondary to service-connected major depressive disorder (MDD). Record (R.) at 3-8. This appeal is timely, and the Court has jurisdiction to review the Board decision pursuant to 38 U.S.C. §§ 7252 (a) and 7266(a). This matter was referred to a panel of the Court, with oral argument, to address what is necessary to reasonably raise the issue of obesity as an intermediate step toward service connection in the causal chain between the veteran's service-connected disabilities and the claimed disability, OSA. This is an issue of first impression, and today we provide guidance to the Board for adjudication of these types of claims. The Court concludes that the record in this case does not reasonably raise the issue of obesity as an intermediate step toward secondary service connection. Nevertheless, because the Board relied on examinations that were inadequate to allow the Board to make a fully informed decision as to any relationship between the OSA and the veteran's service-connected MDD, we will set aside the August 2018 Board decision and remand the matter for further development and readjudication consistent with this decision.  I. FACTS Mr. Garner served on active duty in the U.S. Air Force from June 1972 to May 1992. R. at 1410. He reports that between 1972 and 1973, he worked 12-hour shifts, 7 days a week on the flight line. R. at 3201. In December 1972, Mr. Garner sought treatment for pain and swelling in both knees. R. at 2619. He was diagnosed with chondromalacia and ordered to light duty. Id. In September 1976, Mr. Garner injured his left knee playing football. R. at 2623. The following month, he still had effusion in his left knee and was diagnosed with prepatellar bursitis. R. at 2626. In November 1979, Mr. Garner injured his right ankle playing basketball. R. at 2610, 2612-13. At that time, he was diagnosed with a ligament/tendon strain. R. at 2613. In November 2010, Mr. Garner filed a claim for service connection for various disabilit ies, including left knee, right ankle, and left shoulder disabilities. R. at 3877. In December 2011, a VA regional office (RO) granted service connection for, among other things, left knee and right ankle disabilities, assigning a 10% disability evaluation for each condition. R. at 3222-38. In June 2012, Mr. Garner subsequently sought VA mental health treatment for severe chronic depression, anxiety, labile mood swings, disillusionment, and social withdrawal. R. at 3201. He continued to experience pain and stiffness in his left ankle, knee, and shoulder, and expressed that the resulting limitations from these conditions impacted his mood: "I was once a lot more physically active, but now it depresses me[;] . . . because of my [ankle, knee, and shoulder disabilities,] I can no longer do the things that made my life enjoyable." Id. Noting that Mr. Garner was in the process of applying for compensation benefits for his mood disorder, id., the VA psychologist opined that Mr. Garner's psychiatric condition was "more likely than not" related to his service-connected disabilities, R. at 3202. In October 2012, Mr. Garner filed a claim for service connection for a mood disorder as secondary to his service-connected musculoskeletal conditions. R. at 3199. In September 2013, a VA examiner diagnosed an Axis I mood disorder, not otherwise specified (NOS), and under Axis III, noted hypertension.1 R. at 1182-87. In May 2014, the RO granted service connection for a 1 The Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), which was in effect in 2013, used a multiaxial system for classifying mental disorders. Axis I referred to clinical disorders and other conditions that may be a focus of clinical attention, while Axis III referred to general medical conditions "that are potentially relevant to the understanding or management of the individual's mental disorder." DIAGNOSTIC AND STATISTICAL M ANUAL OF M ENTAL DISORDERS 27, 29 (4th ed., text revision 2000). The current version, the DSM-5, uses a nonaxial system. See DIAGNOSTIC AND STATISTICAL M ANUAL OF M ENTAL DISORDERS 16 (5th ed., 2013). 2 mood disorder, NOS, as secondary to service-connected left shoulder osteoarthritis, and assigned a 50% evaluation. R. at 2452-57. In November 2013, Mr. Garner sought treatment for a sleep disorder. R. at 2516-18. He stated that his wife and daughter described that he would fall asleep and stop breathing. R. at 2517. He reported that he would frequently fall asleep while resting in the evening, and his wife would observe him gasping and choking upon waking. Id. Mr. Garner described waking up frequently during the night and experiencing dry mouth in the mornings. Id. The physician noted that Mr. Garner's symptoms were suggestive of OSA and ordered a polysomnogram for a definitive diagnosis. Id. Testing revealed mild OSA and poor sleep efficiency. R. at 2042. In February 2014, Mr. Garner filed a claim for service connection for OSA, R. at 2570-72, which the RO denied in June 2014, R. at 2395-96. Mr. Garner timely filed a Notice of Disagreement (NOD), asserting his belief that his OSA was brought on by his service-connected mood disorder. R. at 2327-28. In September 2015, a VA examiner diagnosed OSA. R. at 2031-32. The examiner opined that the veteran's OSA was less likely than not proximately due to or the result of a service - connected condition, noting that "[e]xtensive review of medical literature[] revealed that mood disorder is not one of the known risk factors" for OSA. R. at 2034. Instead, he indicated that the veteran's risk factors for OSA included "his age, male gender and obesity." Id. In November 2015, a VA mental health examiner noted the veteran's diagnosis of unspecified depressive disorder. 2 R. at 1922. The examiner noted that complaints of pain in multiple sites, including the left shoulder, both feet, and both hands, as well as hypertension and OSA, were relevant to the understanding or management of the veteran's mental health disorder. Id. Mr. Garner arrived at the appointment in a hospital wheelchair, but was able to ambulate into the office using a cane. R. at 1926. That same month, the RO issued a Statement of the Case (SOC) continuing to deny service connection for OSA as secondary to a mood disorder NOS. R. at 1979-2000. Mr. Garner timely appealed the RO's decision, stating that as a result of his OSA he was falling asleep at the wheel and that his breathing would stop. R. at 1824. He noted that his symptoms were worsening and 2 Although Mr. Garner was previously diagnosed with mood disorder NOS, that diagnosis does not appear in the DSM-5; accordingly, his diagnosis was updated in 2015 to unspecified depressive disorder. See R. at 1922. 3 that his activity was limited as a result of his OSA. Id. Two months later, he submitted a statement in support of claim reiterating that his condition was worsening. R. at 1813. In August 2016, Mr. Garner underwent a mental health diagnostic assessment through VA for the continued management of his psychiatric condition, then diagnosed as MDD.3 R. at 1610- 18. The physician noted that Mr. Garner continued to have periods of depression, "perpetuated and precipitated by pain and other medical issues." R. at 1611. The physician indicated that the veteran "struggle[s] with pain and associated physical limitations," id., and recorded Mr. Garner's report of severe pain that he rated a 6 or 7 out of 10, R. at 1614. The physician noted that pain interfered with the veteran's normal daily activities and resulted in decreased physical capacity. Id. Finally, the physician documented the veteran's body mass index (BMI) of 31, which is obese. R. at 1615. Mr. Garner declined to participate in the MOVE! (Managing Overweight Veterans Everywhere) weight management/health promotion program. R. at 1615, 1617. In June 2017, a VA mental health examiner noted Mr. Garner's report that pain related to his knees, shoulders, wrists, and back impacted his mood on a daily basis. R. at 912. The examiner recorded Mr. Garner's statement: "I used to be a strong individual and well controlled, but now feel worthless. I feel broken. I'm not half the man I used to be." R. at 914. The examiner indicated that Mr. Garner's diminished concentration and lack of interest in doing anything were compounded by his physical limitations. Id. The examiner noted that the veteran walked with an unsteady gait and at a slow pace, with use of a walking cane. R. at 916. In November 2017, a VA examiner opined that the veteran's OSA was less likely than not aggravated beyond its natural progression by his service-connected mood disorder. R. at 574-75. The examiner noted that, while Mr. Garner's mood disorder contributes to his insomnia, "it has no effect on the etiology . . . or progression of his sleep apnea[,] which is due to collapse of the oropharyngeal tissue." R. at 575. The RO issued a Supplemental SOC continuing to deny entitlement to service connection for OSA as secondary to MDD. R. at 620-36. In August 2018, the Board issued the decision currently on appeal. R. at 3-8. The Board reviewed the evidence of record and concluded that there was no link between the claimed disability and the veteran's service or service-connected MDD. R. at 8. The Board stated that the September 2015 and November 2017 examiners made it clear that Mr. Garner's OSA was not 3 By 2016, the veteran's psychiatric diagnosis had been changed to MDD. See R. at 1616. 4 related to service or to his service-connected MDD; rather, OSA was caused by a collapse of the oropharyngeal tissue. R. at 7. The Board noted the September 2015 examiner's statement that mood disorder is not one of the known risk factors for the development of OSA. R. at 6. Instead, the 2015 examiner opined that Mr. Garner's age, male gender, and obesity were all risk factors. R. at 7. The Board also relied on the 2017 examiner's opinion that, although the veteran's MDD contributed to insomnia, it had no effect on the etiology or progression of OSA. R. at 7. The Board acknowledged the 2017 examiner's note that the veteran's claustrophobia was impairing compliance with the continuous positive airway pressure (CPAP) machine, but determined that this was not aggravation of OSA. Id. Accordingly, the Board denied Mr. Garner's claim for service connection for OSA as secondary to service-connected MDD. Id. This appeal followed. II. ANALYSIS A. Reasonably Raising Obesity as an Intermediate Step Toward Secondary Service Connection4 1. The Parties' Arguments Mr. Garner argues that the Board erred in failing to consider the reasonably raised theory that his service-connected MDD, right ankle, or left knee conditions caused or aggravated his obesity, which in turn caused or aggravated his OSA. Appellant's Brief (Br.) at 15-20. He points to evidence that his service-connected orthopedic (knee and ankle) conditions reduced his physical activity levels and to evidence that his service-connected MDD left him feeling "broken and worthless," lacking motivation to engage in activities that might promote fitness or weight loss. Id. at 16 (citing R. at 914). Mr. Garner argues that this evidence, when viewed in conjunction with the September 2015 examiner's opinion that the veteran's obesity was a risk factor for the development of OSA, see R. at 2034, as well as evidence that he gained weight over the same period, was sufficient to reasonably raise the theory that his OSA was proximately related to the service-connected conditions, with obesity as the intermediate step between service-connected MDD, right ankle, and left knee conditions and OSA. Appellant's Br. at 16-17. As support for his contentions, Mr. Garner cites to Alexander v. Shulkin, No. 16-0799, 2017 WL 2333080 (Vet. App. May 30, 2017), a nonprecedential memorandum decision that remanded the appeal for the Board 4 Although the Court ultimately remands on a different theory of entitlement, that does not render moot the appellant's arguments that the Board also erred with respect to this theory of entitlement and the Court will thus, in its discretion, address the parties' arguments in this regard. See Quirin v. Shinseki, 22 Vet.App. 390 , 395 (2009). 5 to address a reasonably raised theory of secondary service connection based on obesity as an intermediary step between the veteran's claimed disability and service-connected disabilities. Appellant's Br. at 19. The Secretary responds that the record evidence marshaled by Mr. Garner to support such a theory of service connection is "attenuated at best." Secretary's Br. at 13. He argues that there is no evidence connecting Mr. Garner's weight gain of approximately 12-20 pounds over the period of 25 years following service to any of his service-connected disabilities. Id. Finally, the Secretary notes that Alexander was not a precedential decision. Id. at 15 . To the extent that the Court might be persuaded by Alexander, the Secretary distinguishes the facts of this case, observing that Mr. Alexander experienced extremely severe mobility problems due to his service-connected conditions. Id. at 14-15 (citing Alexander, 2017 WL 2333080 , at *3). 2. Governing Law & Application to this Appeal Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet.App. 289 , 293 (2013). In evaluating a veteran's claim, the Board is required to consider all theories of entitlement to VA benefits that are either raised by the claimant or reasonably raised by the record. DeLisio v. Shinseki, 25 Vet.App. 45 , 53 (2011) ("[T]he Secretary generally must investigate the reasonably apparent and potential causes of the veteran's condition and theories of service connection that are reasonably raised by the record or raised by a sympathetic reading of the claimant's filing."); Robinson v. Peake, 21 Vet.App. 545 , 555 (2008) (holding that the Board errs when it fails to adequately address all issues expressly raised by the claimant or reasonably raised by the evidence of record), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). In Barringer v. Peake, the Court concluded that it has jurisdiction to determine in the first instance whether the record reasonably raised a particular issue. 22 Vet.App. 242 , 244 (2008). Although in other cases, including Robinson and Lynch v. Wilkie, we articulated that whether an issue is reasonably raised is essentially a factual question, the Board in those cases did not assess whether a pertinent issue was raised, and the Court proceeded to determine in the first instance whether the issue was reasonably raised before the Board. Lynch v. Wilkie, 30 Vet.App. 296 , 304- 06 (2018); Robinson, 21 Vet.App. at 552-57. Notably, the U.S. Court of Appeals for the Federal 6 Circuit (Federal Circuit) in Robinson acknowledged the Court's approach in upholding that decision. 557 F.3d at 1362 . Because in Mr. Garner's case the Board did not address whether obesity as an intermediate step toward secondary service connection was reasonably raised, the approach that the Court took in Lynch and Robinson applies, and the Court will determine in the first instance whether the issue of obesity as an intermediate step was reasonably raised to the Board.5 In January 2017, VA's Office of General Counsel issued a precedential opinion addressing the status of obesity for the purposes of establishing entitlement to service connection. VA. Gen. Coun. Prec. 1-2017 (Jan. 6, 2017) [hereinafter G.C. Prec. 1-2017]; see 38 U.S.C. § 7104 (c) (providing, in relevant part, that the Board is bound by precedential decisions of VA's Office of General Counsel); see Walsh v. Wilkie, 32 Vet.App. 300 , 305 (2020) (noting that "because [General Counsel] opinions lack the formalities of notice-and-comment rulemaking, the Court defers to them in accordance with their 'power to persuade'" (quoting Wanless v. Shinseki, 618 F.3d 1333 , 1338 (Fed. Cir. 2010)). The General Counsel noted that obesity per se is not a disease or injury, and therefore, may not be service connected on a direct basis. G.C. Prec. 1-2017 at 1, ⁋ 1. However, the General Counsel determined that "[o]besity may be an 'intermediate step' between a service-connected disability and a current disability that may be service connected on a secondary basis under 38 C.F.R. § 3.310 (a)." Id. at 2 , ⁋ 5. The General Counsel's opinion addressing obesity as an intermediate step provides guidance for the adjudication of such claims; this guidance received the Court's endorsement as to the soundness of its analysis in Walsh. 32 Vet.App. at 305-07. The opinion discusses the hypothetical case of a veteran whose service-connected back disability causes obesity due to lack of exercise; the obesity in turn leads to hypertension. G.C. Prec. 1-2017 at 9, ⁋ 14. To decide entitlement to secondary service connection in such a case, the General Counsel advises that the Board would be required to resolve (1) whether the service-connected back disability caused the veteran to become obese; (2) if so, whether obesity, as a result of the service-connected disability , was a substantial factor in causing the claimed secondary disability, hypertension; and (3) whether hypertension would not have occurred but for obesity caused by the service-connected back disability. Id. at 9-10, ⁋15. Affirmative answers to these questions would support a determination 5 Under a deferential standard of review, any implied Board conclusion that obesity as an intermediate step toward secondary service connection was not reasonably raised would be determined not to be clearly erroneous, and the end result here would not differ. 7 of service connection for hypertension secondary to the veteran's back disability. In Walsh, we held that the General Counsel opinion requires the Board to consider aggravation in addition to causation in the context of claims where a theory of secondary service connection, with obesity as an intermediate step, is explicitly raised by the veteran or reasonably raised by the record. 32 Vet.App. at 307. Taken together, our holding in Walsh and the General Counsel's opinion illustrate the mechanism by which obesity as an intermediate step could result in secondary service connection; however, they do not provide guidance regarding what factual circumstances would give rise to claims for secondary service connection via this theory. Although the Court has not addressed that issue in a precedential decision, a survey of single-judge decisions reveals factors that the Court has considered relevant to this determination. Review of a broad array of factual circumstances here will help to illuminate the type and quality of evidence that may be sufficient to reasonably raise a theory of secondary service connection via obesity as an intermediate step. See generally William L. Reynolds & William M. Richman, The Non-Precedential Precedent—Limited Publication and No-Citation Rules in the United States Courts of Appeals, 78 COLUM . L. REV. 1167, 1190 (1978) ("[T]he accumulation of a large number of routine decisions on a discrete point may suggest to courts, practitioners, or scholars that problems exist in that area, problems that may require doctrinal reform."). To that end, we note that considerations that could give rise to a reasonably raised theory of secondary service connection with obesity as an intermediate step may include, but are not limited to, mobility limitations or reduced physical activity as a result of a service-connected physical disability (in particular, orthopedic conditions or chronically painful conditions);6 reduced physical activity or inability to follow a course of exercise or diet as a result of service-connected mental disabilit y; 7 side effects of medication (e.g., weight gain), where the medication is prescribed for a service- connected disability;8 treatise evidence suggesting a connection between all or some combination of obesity, service-connected disability, and the claimed condition;9 lay statements by a veteran 6 See, e.g., Davis v. Wilkie, No. 17-1481, 2018 WL 6204582 , at *2 (Vet. App. Nov. 29, 2018); Lanham v. Shulkin, No. 16-2666, 2018 WL 480539 , at *6 (Vet. App. Jan. 19, 2018); Alexander, 2017 WL 2333080 , at *2-4. 7 See, e.g., Milliken v. Wilkie, No. 18-4155, 2019 WL 4584251 , at *2-3 (Vet. App. Sept. 23, 2019); Simonsen v. Wilkie, No. 18-2724, 2018 WL 9669512 , at *2-3 (Vet. App. Sept. 25, 2018). 8 See, e.g., Simonsen, supra note 6. 9 See, e.g., Dodson v. Wilkie, No. 19-0921, 2020 WL 425131 , at *4 (Vet. App. Jan. 28, 2020). 8 attributing weight gain or obesity to the service-connected disability;10 and statements by treating physicians or medical examiners attributing weight gain or obesity to the service-connected disability.11 We do not identify these factors in an attempt to limit any reasonably raised theory of obesity as an intermediate step to a circumscribed set of circumstances. Rather, we note that these considerations encompass a diverse array of factual situations, but share a critical commonality: in each case, there is some evidence in the record which draws an association or suggests a relationship between the veteran's obesity, or weight gain resulting in obesity, and a service- connected condition. Cf. Robinson, 21 Vet.App. at 553 (noting that the duty to assist is triggered when "some evidence . . . 'indicates' that the disability 'may be associated' with . . . service" (quoting 38 U.S.C. § 5103A(d)(2)(B))). In Mr. Garner's case, no such relationship can be found in the record. Although there is evidence demonstrating Mr. Garner has gained weight since service and is now considered obese, compare R. at 2676 (1986 service treatment record indicating the veteran's weight of 203 pounds), with 3321 (2010 treatment record indicating veteran's weight of 220 pounds and BMI of 31.57), and 1649 (2016 orthopedic treatment note indicating veteran's weight of 234.3 pounds and BMI of 31), there is no evidence linking his service-connected orthopedic conditions and resulting mobility limitations to weight gain, see R. at 3201 (2012 outpatient treatment note reflecting the veteran's report that he reduced his physical activity due to his service-connected medical conditions, but with no mention of his weight or of weight gain), 1618 (2016 primary care treatment note indicating the veteran regularly exercised for 60 minutes twice weekly). Similarly, no evidence connects the veteran's service-connected depressive disorder to behaviors associated with weight gain (e.g., difficulties following a course of diet or exercise, or overeating). There are no lay statements by the veteran associating his service-connected conditions specifically with weight gain or obesity. See R. at 914 (June 2017 VA Disability Benefits Questionnaire with the veteran's lay statement associating his depressive disorder with a general loss of motivation); see also R. at 2328 (October 2014 NOD with the veteran's lay statement associating his OSA with a variety of psychiatric symptoms). And in the veteran's 10 See, e.g., Lanham, supra note 6. 11 See, e.g., Milliken and Simonsen, both supra note 7. 9 extensive treatment records, none of the medical providers of record note any connection between the veteran's service-connected conditions and weight gain or obesity. See, e.g., R. at 1615 (August 2016 treatment record reflecting the veteran's referral to the MOVE! program). We hold that, where, as here, the record reflects only incidental references to the veteran's weight or weight gain, the evidence of record is insufficient to reasonably raise the theory of secondary service connection via obesity as an intermediate step. B. Adequacy of the September 2015 and November 2017 VA Examinations as to the Relationship between MDD and OSA 1. The Parties' Arguments Mr. Garner argues that neither the September 2015 nor the November 2017 VA examinations are adequate for adjudication purposes, and that the Board erred when it relied on those examinations. Appellant's Br. at 8-15. Mr. Garner specifically contends that the examinations are inadequate because each examiner failed to provide sufficient rationale for the conclusion that his service-connected MDD did not aggravate his OSA. Appellant's Br. at 8-15. The Secretary disputes these contentions and urges the Court to affirm the Board decision. Secretary's Br. at 4- 11. 2. Adequacy of VA Medical Examinations When the Secretary undertakes to provide a veteran with a VA medical examination or obtain an opinion, he must ensure that the examination or opinion provided is adequate. Barr v. Nicholson, 21 Vet.App. 303 , 311 (2007). A VA medical examination or opinion is adequate "where it is based upon consideration of the veteran's prior medical history and examinations," Stefl v. Nicholson, 21 Vet.App. 120 , 123 (2007), "describes the disability . . . in sufficient detail so that the Board's 'evaluation of the claimed disability will be a fully informed one,'" id. (quoting Ardison v. Brown, 6 Vet.App. 405 , 407 (1994)), and "sufficiently inform[s] the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion," Monzingo v. Shinseki, 26 Vet.App. 97 , 105 (2012) (per curiam). See also Acevedo v. Shinseki, 25 Vet.App. 286 , 293 (2012) ("[A]n adequate medical report must rest on correct facts and reasoned medical judgment so as [to] inform the Board on a medical question and facilitate the Board's consideration and weighing of the report against any contrary reports."); Nieves-Rodriguez v. Peake, 22 Vet.App. 295 , 301 (2008) ("[A] medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two."). Of particular 10 relevance here, a medical examination or opinion that fails to address whether a service-connected disability aggravated the claimed disability is inadequate to inform the Board on the issue of secondary service connection. El-Amin v. Shinseki, 26 Vet.App. 136 , 140 (2013). The Court reviews the Board's determination as to the adequacy of a medical examination or opinion under the "clearly erroneous" standard of review set forth in 38 U.S.C. § 7261 (a)(4). See D'Aries v. Peake, 22 Vet.App. 97 , 104 (2008) (per curiam). "A factual finding 'is "clearly erroneous" when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'" Hersey v. Derwinski, 2 Vet.App. 91 , 94 (1992) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364 , 395 (1948)). The Board must support its material determinations of fact and law with adequate reasons or bases. 38 U.S.C. § 7104 (d)(1); Pederson v. McDonald, 27 Vet.App. 276 , 286 (2015) (en banc); Allday v. Brown, 7 Vet.App. 517 , 527 (1995); Gilbert v. Derwinski, 1 Vet.App. 49 , 56-57 (1990). To comply with this requirement, the Board must analyze the credibility and probative value of evidence, account for evidence it finds persuasive or unpersuasive, and provide reasons for its rejection of material evidence favorable to the claimant. Caluza v. Brown, 7 Vet.App. 498 , 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). 3. Aggravation and Secondary Service Connection This Court has explicitly rejected the "permanent worsening" standard in the context of claims for secondary service connection of a non-service-connected injury or disease, holding that "any additional impairment of earning capacity—in non-service-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase— regardless of its permanence" is compensable. Ward v. Wilkie, 31 Vet.App. 233 , 239 (2019); see 38 U.S.C. §§ 1110 , 1131; Allen v. Brown, 7 Vet.App. 439 , 448 (1995) (en banc). As the Federal Circuit noted in Saunders v. Wilkie, 886 F.3d 1356 , 1363 (Fed. Cir. 2018), "disability" under section 1110 "refers to the functional impairment of earning capacity, not the underlying cause of said disability." Here, the Board summarized the examination reports and concluded that the VA opinions carried "significant weight" and that the examiners "made it clear" that the veteran's service - connected MDD did not aggravate the OSA. R. at 7. The Board did not expressly discuss its reasons for finding the VA examinations adequate. Rather, the Board, in relying on these 11 examinations, implicitly found that they were adequate. In other words, the Court is able to discern the Board's reasons from its discussion of the relative probative value. The Court disagrees with the Secretary that the Board's reliance on the 2015 and 2017 examinations was appropriate. See Secretary's Br. at 4-11. These opinions provide no insight into the relevant inquiry, which is whether service- connected MDD aggravated any functional impairment associated with the veteran's OSA. See Ward, 31 Vet.App. at 239. Indeed, the Board's summary reveals, and the Secretary concedes, that the September 2015 opinion fails to address aggravation at all: "[E]xtensive review of medical literature[] revealed that mood disorder is not one of the known risk factors for development of [OSA]. In the case of the [v]eteran, his risk factors include[] his age, male gender[,] and obesity." R. at 6 (quoting R. at 2034 (emphasis added)); see Secretary's Br. at 11. This language focuses on the etiology of the veteran's OSA, rather than any potential relationship between the OSA and the service-connected MDD. See El-Amin, 26 Vet.App. at 140. The Board explained that the November 2017 examiner acknowledged that there is a relationship between the veteran's MDD and insomnia, but the Board's summary reflects that she similarly focused on the etiology of OSA: "'[The veteran's] mood disorder [is] contributing to his insomnia[. H]owever, it has no effect on the etiology and[/]or progression of sleep apnea which [is] due to [collapse] of the oropharyngeal tissue.'" R. at 7 (quoting R. at 575). The focus on the underlying cause of the OSA—in this case, the collapse of the oropharyngeal tissue—fails to illuminate whether the veteran's MDD results in any additional functional impairment associated with the OSA. See Saunders, 886 F.3d at 1363; Ward, 31 Vet.App. at 239. Therefore, the Court concludes that the Board clearly erred in finding the VA examinations adequate to adjudicate the claim. See D'Aries, 22 Vet.App. at 104; Ardison, 6 Vet.App. at 407 (holding that the Board errs when it relies on an inadequate medical examination). Consequently, the Court holds that remand is warranted for a VA examiner to address whether the veteran's service-connected MDD caused a functional increase in the severity of his OSA. See Tucker v. West, 11 Vet.App. 369 , 374 (1998) ("Generally, where the Board has incorrectly applied the law, failed to provide an adequate statement of reasons or bases for its determinations, or where the record is otherwise inadequate, a remand is the appropriate remedy."). In accordance with Kutscherousky v. West, 12 Vet.App. 369 , 372-73 (1999) (per curiam order), the Court will not preclude Mr. Garner on remand from presenting to the Board the theory 12 of service connection for OSA as secondary to his service-connected conditions, with obesity as an intermediate step. That theory of service connection was expressly raised before this Court and the Board is therefore obligated to address it. See DeLisio, 25 Vet.App. at 53; Robinson, 21 Vet.App. at 553. He may also submit any additional arguments and evidence, including any additional arguments he made to this Court; the Board must consider any such evidence or argument submitted. See Kay v. Principi, 16 Vet.App. 529 , 534 (2002). The Court reminds the Board that "[a] remand is meant to entail a critical examination of the justification for the [Board's] decision," Fletcher v. Derwinski, 1 Vet.App. 394 , 397 (1991), and must be performed in an expeditious manner in accordance with 38 U.S.C. § 7112 . III. CONCLUSION Upon consideration of the foregoing, the August 31, 2018, Board decision is SET ASIDE, and the matter is REMANDED for further development and readjudication consistent with this decision. 13

2021-01-26 19:02:25.41088+00

http://www.courts.ca.gov/opinions/documents/B301382.PDF

Filed 1/26/21 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SIX DAVID BRESLIN, as Trustee, 2d Civ. No. B301382 etc., (Super. Ct. No. 56-2018- 00521839-PR-TR-OXN) Plaintiff and Respondent, (Ventura County) v. PAUL G. BRESLIN et al., Defendants and Respondents; PACIFIC LEGAL FOUNDATION et al., Defendants and Appellants. The trustee of a decedent’s trust petitioned the probate court to determine the trust beneficiaries. The probate court ordered the matter to mediation. The potential beneficiaries received notice of the mediation, but some did not participate. The participating parties reached a settlement that excluded the nonparticipating parties as beneficiaries. The probate court approved the settlement. The nonparticipating parties Pacific Legal Foundation et al.1 (collectively “the Pacific parties”) appeal. We affirm. A party receiving notice who fails to participate in court-ordered mediation is bound by the result. FACTS Don Kirchner died in 2018 leaving an estate valued at between $3 and $4 million. Kirchner had no surviving wife or children, but he was survived by a number of nieces and nephews. Kirchner’s estate was held in a living trust dated July 20, 2017. The trust was amended and restated on November 1, 2017 (restated trust). David Breslin (Breslin) was named the successor trustee in the restated trust. Breslin found the restated trust, but initially could not find the original trust. The restated trust makes four $10,000 specific gifts and directs that the remainder be distributed to the persons and charitable organizations listed on exhibit A in the percentages set forth. The restated trust did not have an exhibit A attached to it, and no such exhibit A has ever been found. But in a pocket of the estate planning binder containing the restated trust, Breslin found a document titled “Estates Charities (6/30/2017).” The document listed 24 charities with handwritten notations that appear to be percentages. Breslin filed a petition in the probate court to confirm him as successor trustee and to determine the beneficiaries of the 1The nonparticipating parties are: Pacific Legal Foundation, Judicial Watch, Save the Redwoods League, Concerned Women of America, Catholics United for Life, Catholic League, Sacred Heart Auto League, National Prolife Action Center dba Liberty Counsel, and Orbis International. 2. trust in the absence of an attached exhibit A. Breslin served each of the listed charities. Only three of the listed charities filed formal responses. The Pacific parties did not. The probate court confirmed Breslin as successor trustee and ordered mediation among interested parties, including Kirchner’s intestate heirs and the listed charities. One of the listed charities, the Thomas More Law Center (TMLC), sent notices of the mediation to all the interested parties, including the Pacific parties. The mediation notices included the following: “Mediation may result in a settlement of the matter that is the subject of the above-referenced cases and of any and all interested·persons' and parties' interests therein. Settlement of the matter may result in an agreement for the distribution of assets of the above-referenced Trust and of the estate of Don F. Kirchner, Deceased, however those assets may be held. Settlement of the matter may also result in an award of attorneys' fees to one or more parties under Smith v. Szeyller (2019) 31 Cal.App.5th 450 . Interested persons or parties who do not have counsel may attend the mediation and participate. “Non-participating persons or parties who receive notice of the date, time and place of the mediation may be bound by the terms of any agreement reached at mediation without further action by the Court or further hearing. Smith v. Szeyller (2019) 31 Cal.App.5th 450 . Rights of trust beneficiaries or prospective beneficiaries may be lost by the failure to participate in mediation. “All represented parties (or his, her or their counsel) and all unrepresented parties that intend to participate in the mediation are requested to advise the undersigned of his, her or their 3. intention to be present and participate by making contact via either email . . . or U.S. Mail. Notice to participate in mediation will not be accepted via telephone.” Only five of the listed charities appeared at the mediation, including TMLC. The intestate heirs also appeared. The Pacific parties did not appear. The appearing parties reached a settlement. The settlement agreement awarded specific amounts to various parties, including the appearing charities, and attorney fees with the residue to the intestate heirs. The agreement excluded the Pacific parties. Breslin filed a petition to confirm the settlement. When the Pacific parties received notice of the petition, they filed objections. Prior to the hearing on the petition, Breslin filed a supplemental declaration stating that he found the original trust document. The restated trust had no exhibit A attached, but he found attached to the original trust an exhibit A listing the same charities as were found on the document in the binder with the restated trust. The probate court granted Breslin’s petition to approve the settlement. The court denied the Pacific parties’ objections on the ground that they neither filed a response to Breslin’s petition to determine the beneficiaries nor appeared at the mediation. The Pacific parties appeal. DISCUSSION I Standard of Review The Pacific parties contend that because the issues here do not involve findings of fact, the standard of review is de novo. The standard of review for the probate court’s approval of a 4. settlement is abuse of discretion. (Estate of Green (1956) 145 Cal.App.2d 25 , 28.) The dispute is academic, however. The result is the same under either standard. II Forfeiture of Rights The probate court has the power to order the parties into mediation. (See Prob. Code,2 § 17206 [“The court in its discretion may make any orders and take any other action necessary or proper to dispose of the matters presented by the petition”].) The court did so here. The Pacific parties received notice of the mediation, but chose not to participate. In Smith v. Szeyller, supra, 31 Cal.App.5th 450 , 458, we held that a party who chooses not to participate in the trial of a probate matter cannot thereafter complain about a settlement reached by the participating parties. The Pacific parties point out that there was no trial here. True, but the mediation ordered by the probate court, like the trial in Smith, was an essential part of the probate proceedings. The Pacific parties may not ignore the probate court’s order to participate in the proceedings and then challenge the result. The probate court’s mediation order would be useless if a party could skip mediation and challenge the resulting settlement agreement. The Pacific parties complain they were denied an evidentiary hearing. But the probate court has the power to establish the procedure. (§ 17206.) It made participation in mediation a prerequisite to an evidentiary hearing. By failing to participate in the mediation, the Pacific parties waived their right to an evidentiary hearing. It follows that the Pacific parties were not entitled to a determination of factual issues, such as 2 All statutory references are to the Probate Code. 5. Kirchner’s intent, and cannot raise such issues for the first time on appeal. (Ehrlich v. City of Culver City (1996) 12 Cal.4th 854 , 865, fn. 4 [court will not address issues raised for the first time on appeal].) Estate of Bennett (2008) 163 Cal.App.4th 1303 , 1310, is of no help to the Pacific parties. There the Court of Appeal held that estate beneficiaries who petitioned to set aside a settlement agreement were entitled to an evidentiary hearing. But Bennett did not involve a party’s failure to respond to a mediation order. The Pacific parties argue the only way they can forfeit their interest is by filing a written disclaimer. They rely on section 275. That section provides, “A beneficiary may disclaim any interest, in whole or in part, by filing a disclaimer as provided in this part.” (Ibid.) The disclaimer must be in writing signed by the disclaimant. (§ 278.) But no one contends or even suggests the Pacific parties disclaimed their interest. Instead, they forfeited their interest when they failed to participate in mediation as ordered by the court. III Trustee’s Duties (a) Impartiality The Pacific parties contend the trustee failed in his duty to deal impartially with all beneficiaries. (§ 16003 [“If a trust has two or more beneficiaries, the trustee has a duty to deal impartially with them”].) But all interested parties received notice of the mediation and had an opportunity to participate. The Pacific parties’ failure to participate was not the fault of the trustee. 6.  (b) Trustee’s Personal Profit The Pacific parties contend the trustee breached fiduciary duties by approving large gifts to Kirchner family members, including himself, who stood to gain little or nothing under the trust. But all parties who participated in the mediation approved the settlement, not just the trustee. The Pacific parties may not refuse to participate and then complain that they received nothing. Moreover, the Pacific parties’ argument assumes the beneficiaries of the trust are known. The court did not determine the identity of the beneficiaries. The Pacific parties may have requested an evidentiary hearing on the matter had they abided by the probate court’s order and participated in the mediation. They chose not to do so. (c) Notice The Pacific parties contend that the trustee failed to keep them reasonably informed about the mediation and his intent to execute the settlement agreement. The Pacific parties do not claim they had no notice of the mediation. Had they participated, they would have been fully informed of all the developments, including the trustee’s willingness to sign the settlement agreement. The Pacific parties apparently believe the trustee and participating parties should have gone through mediation, reached a settlement, and, before the settlement was signed, notified the Pacific parties so that they could come in and object. That would have made the mediation a waste of time, money, and effort. 7.  The Pacific parties cite section 16060 for the proposition that the trustee has a duty to keep the beneficiaries of the trust reasonably informed of the trust and its administration. The information provided pursuant to section 16060 must be the information reasonably necessary to enable the beneficiary to enforce the beneficiary’s rights under the trust or prevent or redress a breach of trust. (Salter v. Lerner (2009) 176 Cal.App.4th 1184 , 1187.) First, the probate code did not determine that the Pacific parties were beneficiaries of the trust. Second, assuming they were beneficiaries, the notice of mediation was all the information necessary for them to protect their interest. The Pacific parties argue that the mediation notice failed to inform them that they could forfeit their interest if they did not participate. But the notice stated that nonparticipating persons or parties may be bound by the terms of any agreement reached at the mediation, and the rights of trust beneficiaries or prospective beneficiaries may be lost by the failure to participate in the mediation. The Pacific parties argue that the loss of rights referred to in the notice may be read as only referring to procedural rights. But the notice says that nonparticipating parties may be bound by any agreement reached during mediation. The notice obviously refers to substantive rights. IV Extrinsic Fraud The Pacific parties contend the probate court’s order approving the settlement should be set aside for extrinsic fraud. The Pacific parties’ contention is based on TMLC’s response to the trustee’s petition to determine trust beneficiaries. TMLC 8. urged the probate court to find that the charities listed on the paper found with the restated trust are the beneficiaries. TMLC also requested attorney fees if successful because all the charities listed would benefit by its success. TMLC was not claiming to be the legal representative for all the charities on the list. It was only claiming that by representing its own interest other parties will benefit and should share in the burden of attorney fees under the substantial benefit doctrine. (See Smith v. Szeyller, supra, 31 Cal.App.5th at p. 460.) There was no extrinsic fraud. V Attorney Fees The intestate beneficiaries contend they should be awarded attorney fees under the substantial benefit doctrine. That is a matter to be decided by the probate court. DISPOSITION The judgment (order) is affirmed. Costs are awarded to respondents. CERTIFIED FOR PUBLICATION. GILBERT, P. J. We concur: YEGAN, J. TANGEMAN, J. 9.  Robert L. Lund, Judge Superior Court County of Ventura ______________________________ Ferguson Case Orr Paterson, Joshua S. Hopstone and David B. Shea for Defendants and Appellants Pacific Legal Foundation, Judicial Watch, Save the Redwoods League, Concerned Women of America, Catholics United for Life, Catholic League, Sacred Heart Auto League, National Prolife Action Center and Orbis International. Staker Law Tax and Estate Planning Law Corporation, Kevin G. Staker and Brandon P. Johnson for Plaintiff and Respondent David Breslin, Trustee. Jones, Lester, Schuck, Becker & Dehesa, Mark A. Lester, Katherine H. Becker and Eric A. Hirschberg, for Defendants and Respondents Paul G. Breslin and Kathleen Breslin LaForgia. 10.

2021-01-26 19:02:27.221077+00

http://www.courts.ca.gov/opinions/documents/C091845.PDF

Filed 1/26/21 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Tehama) ---- THE PEOPLE, C091845 Plaintiff and Respondent, (Super. Ct. No. NCR91608) v. JOHNATHON RAMIREZ, Defendant and Appellant. APPEAL from a judgment of the Superior Court of Tehama County, C. Todd Bottke, Judge. Affirmed. Allan E. Junker, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. Appointed counsel for defendant Johnathon Ramirez asked this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) We dismiss the appeal. We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106 , 110, 124.) 1  FACTS AND PROCEDURAL HISTORY In 2014, defendant pleaded guilty to possession of a controlled substance for sale (Health & Saf. Code, § 11377, subd. (a)) and animal cruelty (Pen. Code, § 597, subd. (a); statutory section references that follow are to the Penal Code unless otherwise stated.) In taking the plea, the trial court advised defendant “[I]f you are not a citizen of this country, by entry of your plea today and conviction herein, it can result in your deportation, denial of readmission into this country, or affect your ability to become a naturalized citizen.” Defendant confirmed he understood that consequence of his plea. The plea form also advised that offenses that would result in immigration action included controlled substance offenses. Defendant initialed his understanding of that consequence. The trial court sentenced defendant in accordance with the agreed-to maximum sentence to an aggregate term of three years of formal probation. In 2020, defendant filed a motion to vacate the sentence and withdraw the plea, claiming he was not properly advised of the immigration consequences of his plea. After briefing and a hearing, the trial court denied the motion. DISCUSSION Review pursuant to Wende or its federal constitutional counterpart Anders v. California (1967) 386 U.S. 738 [ 18 L.Ed.2d 493 ] is required only in the first appeal of right from a criminal conviction. (Pennsylvania v. Finley (1987) 481 U.S. 551 , 555 [ 95 L.Ed.2d 539 , 545-546]; Conservatorship of Ben C. (2007) 40 Cal.4th 529 , 536-537 (Ben C.); People v. Serrano (2012) 211 Cal.App.4th 496 , 500-501 (Serrano).) The right to Anders/Wende review applies only at appellate proceedings where a defendant has a previously established constitutional right to counsel. (Serrano, supra, 211 Cal.App.4th at p. 500; Ben C., supra, 40 Cal.4th at pp. 536-537.) The constitutional right to counsel extends to the first appeal of right, and no further. (Serrano, at pp. 500- 501.) While a criminal defendant has a right to appointed counsel in an appeal from an 2 order after judgment affecting his or her substantial rights (§§ 1237, 1240, subd. (a); Gov. Code, § 15421, subd. (c)), that right is statutory, not constitutional. Thus, a defendant is not entitled to Wende review in such an appeal. (See Serrano, at p. 501 [no Wende review for denial of postconviction motion to vacate guilty plea pursuant to section 1016.5].) The appeal before us, “although originating in a criminal context, is not a first appeal of right from a criminal prosecution, because it is not an appeal from the judgment of conviction.” (Serrano, supra, 211 Cal.App.4th at p. 501.) Applying Serrano here, defendant has no right to a Wende review of the denial of his motion to vacate the judgment pursuant to section 1473.7. DISPOSITION The appeal is dismissed. HULL, Acting P. J. We concur: ROBIE, J. MURRAY, J. 3

2020-12-01 16:01:05.944634+00

https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2018cv1349-29

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA RUTH SCHWARTZ, et al., Plaintiffs, v. Civil Action No. 18-1349 (RDM) THE ISLAMIC REPUBLIC OF IRAN, Defendant. MEMORANDUM OPINION AND ORDER This civil action for compensatory and punitive damages arises under the terrorism exception to the Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C. § 1605A. The seventeen plaintiffs are the victims and their families of a terrorist attack that occurred on November 19, 2015 “at Gush Etzion Junction in the Palestinian Territories.” Dkt. 1 at 1–2 (Compl. ¶ 2). Plaintiffs contend that Defendant, the Islamic Republic of Iran (“Iran”), “knowingly provided material support to” the Islamic Resistance Movement (“Hamas”), which, in turn, carried out the attack. Iran was at all relevant times designated under U.S. law as a state sponsor of terrorism. To establish subject-matter jurisdiction, Plaintiffs invoke the state-sponsored terrorism exception to the FSIA, 28 U.S.C. § 1605A(a). And to supply their federal cause of action, Plaintiffs rely on § 1605A(c), which permits suits by “national[s] of the United States” seeking to recover against “[a] foreign state that is or was a state sponsor of terrorism.” In support of that statutory cause of action, Plaintiffs assert four theories of liability: (1) intentional infliction of emotional distress; (2) assault; (3) battery; and (4) wrongful death. Dkt. 24 at 16; Dkt. 1 at 15– 20 (Compl. ¶¶ 99–136).  Iran has neither answered nor otherwise appeared in this action. Consequently, at Plaintiffs’ request, the clerk of the Court entered a default against Iran on January 2, 2019. Dkt. 16. Plaintiffs subsequently moved for the entry of a default judgment against Iran. Dkt. 22. That motion is now ripe for the Court’s consideration, and, for the reasons that follow, the motion is GRANTED. The Court will refer the matter to a Special Master for a report and recommendation on compensatory damages and will defer entry of compensatory or punitive damages awards pending receipt of that report. I. INTRODUCTION Plaintiffs, sixteen United States nationals and the estate of a seventeenth, bring this action against the Islamic Republic of Iran, alleging that it “gave substantial aid, assistance and encouragement to Hamas, and provided massive financial and other forms of material support to Hamas, all with the specific intention of causing and facilitating the commission of acts of extrajudicial killing, hostage taking and international terrorism,” Dkt. 1 at 13 (Compl. ¶ 91), which ultimately included the extrajudicial killing and attempted extrajudicial killings at issue here. Plaintiffs effected service on Defendant on October 24, 2018. Dkt. 14 at 1. Defendant has not answered, filed a motion under Federal Rule of Civil Procedure 12, or otherwise appeared, and, accordingly, the clerk of the Court entered a default on January 2, 2019. Dkt. 16. Plaintiffs now seek entry of a default judgment with respect to liability and damages. Dkt. 22. The entry of a default judgment “is not automatic,” Mwani v. Bin Laden, 417 F.3d 1 , 6 (D.C. Cir. 2005), but instead rests with the “sound discretion” of the district court, Boland v. Yoccabel Const. Co., Inc., 293 F.R.D. 13 , 17 (D.D.C. 2013) (citing Jackson v. Beech, 636 F.2d 831 , 836 (D.C. Cir. 1980)). Before entering default judgment, the Court must, at a minimum, satisfy itself that it has subject-matter jurisdiction over the claims and personal jurisdiction over 2 the defendants. See Jerez v. Republic of Cuba, 775 F.3d 419 , 422 (D.C. Cir. 2014) (“A default judgment rendered in excess of a court’s jurisdiction is void.”); Mwani, 417 F.3d at 6 (explaining that the Court must “satisfy itself that it has personal jurisdiction before entering judgment against an absent defendant”). In cases brought against a foreign state, the Court’s discretion to enter a default judgment is further circumscribed. By statute, no federal or state court may enter a default judgment against a foreign state or instrumentality “unless the claimant establishes his claim or right to relief by evidence satisfactory to the court.” 28 U.S.C. § 1608 (e). This is the same standard that applies to default judgments against the United States under Federal Rule of Civil Procedure 55(d). See Owens v. Republic of Sudan, 864 F.3d 751 , 785 (D.C. Cir. 2017) (“Owens IV”), vacated in part and remanded on other grounds sub nom. Opati v. Republic of Sudan, 140 S. Ct. 1601 (2020); Hill v. Republic of Iraq, 328 F.3d 680 , 683 (D.C. Cir. 2003). Accordingly, where, as here, a plaintiff alleges that a foreign state materially supported acts of terrorism, the Court must determine “how much and what kinds of evidence the plaintiff must provide.” Han Kim v. Democratic People’s Republic of Korea, 774 F.3d 1044 , 1047 (D.C. Cir. 2014). In doing so, the Court must be guided by Congress’s purpose in enacting § 1605A: to “compensat[e] the victims of terrorism [so as to] punish foreign states who have committed or sponsored such acts and [to] deter them from doing so in the future,” id. at 1048 (quoting Price v. Socialist People’s Libyan Arab Jamahiriya, 294 F.3d 82 , 88–89 (D.C. Cir. 2002)) (first alteration in original). The Court must also remain mindful of the difficulty in obtaining “firsthand evidence and eyewitness testimony . . . from an absent and likely hostile sovereign.” Owens IV, 864 F.3d at 785. 3  To obtain a default judgment against Iran, Plaintiffs must (1) carry their burden of producing evidence sufficient to show that their claims fall within the state-sponsored terrorism exception to the FSIA, see 28 U.S.C. § 1605A(a); Owens IV, 864 F.3d at 784; (2) establish that Iran was served in accordance with the FSIA, see 28 U.S.C. § 1608 (a); and (3) establish their right to relief under federal, see id. § 1605A(c), or state law, Owens IV, 864 F.3d at 809 (“the pass-through approach remains viable”), by offering evidence “satisfactory to the court,” 28 U.S.C. § 1608 (e). When evaluating Plaintiffs’ evidence, the Court must abide by the Federal Rules of Evidence, while also recognizing that, first, it has the “obligation[] to ‘adjust [evidentiary requirements] to . . . differing situations,’” Han Kim, 774 F.3d at 1048 (quoting Bundy v. Jackson, 641 F.2d 934 , 951 (D.C. Cir. 1981)) (modifications in Han Kim), and, second, that it need not “step into the shoes of the defaulting party and pursue every possible evidentiary challenge,” Owens IV, 864 F.3d at 785. Accordingly, whether through expert testimony or other competent evidence, the Court must determine whether the Plaintiffs have sufficiently “substantiate[d] [the] essential element[s] of jurisdiction,” as well as their claim or right to relief, with admissible evidence. Id. at 786. 1 The Court now makes the following findings of fact and conclusions of law. II. FINDINGS OF FACT The record before the Court consists of the following materials: (1) the declaration of Patrick L. Clawson, “an expert on the Islamic Republic of Iran” who has “extensively studied 1 Expert testimony is often sufficient to meet this burden in “terrorism cases, . . . because firsthand evidence of terrorist activities is difficult, if not impossible to obtain. Owens IV, 864 F.3d at 787–88. The Court has reviewed the qualifications of Plaintiffs’ expert witnesses and concludes that each is qualified to offer the opinions discussed below. Dkt. 25 at 1–7 (Clawson Decl. ¶¶ 1–13); Dkt. 26 at 1–3 (Spitzen Decl. ¶¶ 1–6); see also Dkt. 27 at 1–2 (Wolf Decl. ¶ 1– 2). 4 and researched Iran and its sponsorship of terrorism,” Dkt. 25 at 1 (Clawson Decl. ¶ 2); (2) the declaration of Colonel Arieh Dan Spitzen, an expert on Hamas and its role in terrorism perpetrated against civilians, Dkt. 26 at 3 (Spitzen Decl. ¶ 6); (3) the declaration of Steven A. Wolf, an expert on the calculation of economic loss in terrorism cases, Dkt. 27 at 1 (Wolf Decl. ¶ 6); and (4) the declarations of each of the Plaintiffs (or a proper representative), see Dkt. 28 at 1–2; see also Dkt. 23-1; Dkt. 23-2. 2 Based on the foregoing, the Court finds that (1) Iran provided Hamas with extensive support in the form of arms and financial assistance, as well as training and technical expertise; (2) Hamas carried out the terror attack at issue here, which caused the death of Plaintiff Ezra Schwartz, the injuries to Plaintiffs Michael Benzakein and Jason Geller, and the injuries to the Schwartz, Benzakein, and Geller families; and (3) Hamas could not have committed the attack without Iran’s support. A. Iran’s Material Support to Hamas As part of its longstanding opposition to Israeli interests in the Middle East, Iran has for over thirty years “provided funding and training for terrorism operations that targeted United States and Israeli citizens.” Dkt. 25 at 13 (Clawson Decl. ¶ 28). As a result, the United States designated Iran as a state sponsor of terrorism in 1984 and has continued that designation ever since then. Id. at 9 (Clawson Decl. ¶ 22). One significant recipient of Iran’s aid is Hamas, “the 2 On October 17, 2019, Plaintiffs moved to file under seal portions of their proposed findings of fact and the declarations of two minors in the Geller family. Dkt. 23. Applying the six-factor test set forth in United States v. Hubbard, 650 F.2d 293 (D.C. Cir. 1980), the Court agrees that these materials, which include confidential, personal information—namely information related to the mental health diagnoses of one Plaintiff—may be filed under seal. The Court will, accordingly, grant Plaintiffs’ motion to seal. 5 largest and most significant Islamist organization” in the Israel-Palestine arena. Dkt. 26 at 5 (Spitzen Decl. ¶ 13). Hamas was “founded in the Gaza Strip in December 1987,” id. (Spitzen Decl. ¶ 11), by a group of “Palestinian Sunni Islamist militants committed to globalizing jihad and destroying the State of Israel,” Dkt. 25 at 9 (Clawson Decl. ¶ 23). The organization’s name means “zeal” in Arabic and is also an acronym for “Ḥarakat al-Muqāwamah al-Islāmiyyah,” which translates to the “Islamic Resistance Movement.” Dkt. 26 at 5 (Spitzen Decl. ¶ 12) (italics and internal quotation marks omitted). “From its inception, Hamas [has] perpetrated terrorist attacks in Israel and the Palestinian Territories,” Dkt. 25 at 9 (Clawson Decl. ¶ 24), and the organization “considers terrorism . . . a central way of attracting political and financial support from the Palestinian public and larger Islamic world,” Dkt. 26 at 6 (Spitzen Decl. ¶ 16). Since the early 1990s, Hamas has received multiple forms of aid from Iran, including: (1) weapons, including gunpowder, mortar propellant, mortar shells, and rockets, Dkt. 25 at 17, 18, 20 (Clawson Decl. ¶¶ 46, 49, 50, 52); (2) military training on intelligence gathering, “establishing camouflage, constructing sophisticated explosive charges, and operating advanced anti-tank missiles,” id. at 17 (Clawson Decl. ¶ 45); (3) strategic advice from its Revolutionary Guard Corps Qods Force, id. at 16 (Clawson Decl. ¶ 43); and (4) millions to hundreds of millions of dollars in financial aid, id. at 14–15, 18 (Clawson Decl. ¶¶ 34, 36, 39, 47). There is near-universal agreement that Iran “has supplied substantial material support to Hamas” over the past two-and-a-half decades. Id. at 23 (Clawson Decl. ¶ 59). Iran began providing financial and logistical support for Hamas in 1993 “as a result of Hamas’s willingness to perpetrate terrorist activities and bus bombings”—attacks that “Iran strongly and publicly encouraged” in order “to disrupt the Middle East peace process.” Id. at 6 13–14 (Clawson Decl. ¶ 31). In the years that followed, “Hamas operatives received military training in Iran.” Id. One such operative planned a 1996 bombing of a bus in Jerusalem, an act that then-Palestinian Authority Chairman Yasser Arafat claimed Iran had “ordered.” Id. at 14 (Clawson Decl. ¶¶ 31–32). Iran also “gave Hamas millions of dollars” over this period, which, “among other things, supported Hamas’s terrorist activities” by, for example, “bringing Hamas into contact with potential terrorist recruits and by providing legitimate front activities behind which Hamas could hide its terrorist activities.” Id. at 14 (Clawson Decl. ¶ 34). Iran, moreover, undertook to pay Hamas “generously” for successful terrorist attacks; in return, Hamas “commit[ed] numerous bombings during this time,” which Iran praised on “Iranian state-owned television, radio, print media and Iran’s other propaganda networks throughout the Arab world.” Id. (Clawson Decl. ¶¶ 33–34). Although the Iran-Hamas relationship “cooled” from the late 90s to 2005—with an uptick in 2003 when Iran provided Hamas an estimated $3 million in financial support—by 2006, after Hamas “won a plurality in the Palestinian parliament,” “Iranian support, finances, and arms rose exponentially.” Id. at 15 (Clawson Decl. ¶¶ 35–36, 39). According to Israel’s Intelligence and Terrorism Information Center, Iran pledged “$250 million to Hamas’s then-Prime Minister Ismail Haniyeh” that year and the next. Id. (Clawson Decl. ¶ 39). And “[a]lthough the Egyptian authorities are reported to have confiscated some of these funds, large sums of Iranian money flowed into the Gaza Strip earmarked for Hamas.” Id. In 2007, Iran and Hamas “grew even closer after . . . Hamas took complete control of the Gaza Strip.” Id. (Clawson Decl. ¶ 40). Hamas began sending operatives to Iran “for training that would last months and maybe years,” while Iran continued to funnel “more money and arms” to Hamas. Id. at 15–16 (Clawson Decl. ¶ 40). Indeed, in March 2008, British 7 correspondent Marie Colvin reported that “150 members of . . . Hamas’s military wing, the al- Qassam Brigades[,] have passed through training in Tehran, where they study for between 45 days and six months at a closed military base under the command of the elite Revolutionary Guard force.” Id. at 16–17 (Clawson Decl. ¶ 44) (internal brackets omitted). The provision of military training was supplemented by arms-giving: that same year, in 2008, “Israeli forensic investigators concluded” that certain mortar shells that Hamas had twice fired at Israel “had been manufactured in Iran.” Id. at 17 (Clawson Decl. ¶ 46). Iran continued to supply Hamas arms even during a temporary Hamas-Israel ceasefire in early 2008 by smuggling weapons in tunnels from Egypt to the Gaza Strip. Id. (Clawson Decl. ¶ 47). Hamas was appreciative: soon after fighting between it and Israel returned in late December 2008 and early January 2009, “Hamas leader Khaled Mashal . . . visited Tehran and thanked Iran for its support during the conflict, calling it a ‘partner in victory.’” Id. at 17–18 (Clawson Decl. ¶ 48). Iran’s support remained strong through the following year when, according to Clawson, “there is strong reason to believe” that “a ship carrying 3,000 cases of powder for 120 and 130mm guns as well as over 800 cases of propellant for 125mm mortars” was bound for Gaza before authorities in Cyprus intercepted it. Id. at 18 (Clawson Decl. ¶ 49). In 2012, “Iranian and Hamas officials became much blunter about Iranian support for Hamas rocket attacks on Israel.” Id. (Clawson Decl. ¶ 50). For instance, “[o]n November 20, Ziad al-Nakhla, deputy head of PIJ [the Palestinian Islamic Jihad, id. at 10 (Clawson Decl. ¶ 27)], told the pro-Hezbollah Lebanese Al Manar television station” that “[t]he arms of the resistance, including those of Hamas, are Iranian, from the bullet to the missile.” Id. at 18 (Clawson Decl. ¶ 50) (internal quotation marks omitted). A day later, Hamas leader “Khaled Mashal thanked Iran for ‘arms and funding.’” Id. at 18–19 (Clawson Decl. ¶ 50). 8  In July of the following year, after the Egyptian military had overthrown “the Morsi government which had been close to Hamas, “Bassam Naim, a[] senior Hamas official,” stated that “new blood” had been brought “back into [Hamas’s] relationship with Iran.” Id. at 19 (Clawson Decl. ¶ 51). Then, in 2014, “Hamas stepped up its terror activities,” “kidnap[ping] and murder[ing] three teenagers[,] including [an] American citizen,” and targeting rocket attacks at Israel. Id. at 19–20 (Clawson Decl. ¶ 52). “Iran issued statements strongly supporting Hamas’s activities during this time and in the aftermath.” Id. at 19 (Clawson Decl. ¶ 52). It also continued providing material support: “a freighter carrying 40 medium-range rockets was intercepted by Israeli commandos in 2014 in the Red Sea, a shipment they say was destined for Gaza.” Id. at 20 (Clawson Decl. ¶ 52). Later that year, several Hamas officials, including Abu Obeida, a spokesman for Hamas’s Qassam Brigades, acknowledged and praised Iran for its support of Hamas’s fight against Israel, despite “Hamas’s usual policy . . . [that it] does not . . . reveal the mechanism and details of the support it receives.” Id. at 20–21 (Clawson Decl. ¶ 53). In 2015, a visit by “Hamas leader Khaled M[e]shal[] . . . to Saudi Arabia was not well received in Iran,” but Iran did not cut off Hamas and, instead, took “revenge on” Meshal by “bypass[ing]” him and providing support “‘directly to the leaders of the group’s military wing in the Gaza Strip.’” Id. at 21 (Clawson Decl. ¶ 55). By 2016, “Hamas-Iran relations were warm” again, “in no small part because Hamas had few alternative suppliers of arms and money.” Id. at 22 (Clawson Decl. ¶ 56). And in 2017, after a visit from Hamas senior leadership, Ali Akbar Velayati, the advisor to the Leader of the Islamic Revolution in Iran, stated: “We are proud of supporting the Palestinian resistance and Hamas Movement. The Iranian leadership and our people will continue to support the resistance led by Hamas and Islamic Jihad.” Id. (Clawson 9 Decl. ¶ 57). “The Iran-Hamas relationship . . . continued consistently” throughout 2019, up to the time Plaintiffs filed the pending motion. Id. at 23 (Clawson Decl. ¶ 58). Based on the foregoing, unrebutted expert testimony, the Court finds that Iran provided material support in the form of arms, training, funds, and technology to Hamas from 1993 to at least 2019, “including in the period immediately before, during, and immediately after the November 19, 2015 attack at Gush Etzion Junction in which Ezra Schwartz was killed and Plaintiffs Michael Benzakein and Jason Geller were injured.” Id. (Clawson Decl. ¶ 59). B. November 19, 2015 Attack 1. The Attack On November 19, 2015, Ezra Schwartz, Michael Benzakein, and Jason Geller, each United States nationals spending the year abroad in Israel to do volunteer work, were “riding in a passenger van on their way to deliver care packages to Israeli soldiers and to beautify a park in honor of three Israeli teenagers who had been kidnapped and murdered” the previous year. Dkt. 1 at 6 (Compl. ¶ 37); see also id. at 2–4 (Compl. ¶¶ 8, 16, 22); Dkt. 28-1 at 4 (Ruth Schwartz Decl. ¶ 18); Dkt. 28-6 at 3–4 (Michael Benzakein Decl. ¶¶ 4, 10–11); Dkt. 28-12 at 4–5 (Jason Geller Decl. ¶¶ 10–12). As Plaintiffs’ van approached the Gush Etzion Junction, a roundabout roughly twenty miles south of Jerusalem, “it encountered traffic and was forced to slow down.” Dkt. 1 at 6 (Compl. ¶ 38); see also Dkt. 28-6 at 3–4 (Michael Benzakein Decl. ¶ 13). A Toyota Corolla with Israeli license plates approached from the west. Dkt. 26 at 13–14, 26 (Spitzen Decl. ¶¶ 34–35, 65). In the driver’s seat was Muhammad Abd al-Basset Odeh al- Harub, “a Hamas operative” with a “longstanding intention to commit a terrorist attack,” who had earlier that day set out “from his home in the Dir Sammet village . . . toward Gush Etzion Junction . . . to perpetrate a terrorist attack.” Id. at 13–14, 18, 26 (Spitzen Decl. ¶¶ 34–35, 47, 10 64). Al-Harub was armed with “an Uzi submachine gun and three full magazines (75 bullets in all),” id. at 26 (Spitzen Decl. ¶ 64). Each bullet was spent. “[W]ith a line of cars heading from west to east” stalled in the junction, al-Harub “stuck his weapon outside the left window of his car” and began shooting. Id. at 14, 26 (Spitzen Decl. ¶¶ 35, 65); see also Dkt. 1 at 6–7 (Compl. ¶¶ 39, 42–43); Dkt. 28-6 at 4 (Michael Benzakein Decl. ¶ 14); Dkt. 28-12 at 2 (Jason Geller Decl. ¶ 1). He drove slowly, “taking aim at the nearby cars,” “a passenger bus,” and Plaintiffs’ van. Id. at 26–27 (Spitzen Decl. ¶¶ 66–67). His “shots killed Ezra Schwartz . . . and injured Michael Benzakein and Jason Geller.” Id. at 26 (Spitzen Decl. ¶ 66). When his three magazines of ammunition were expended, al-Harub “rammed his car forcefully into a car with Israeli license plates in order to injure more people.” Id. at 14, 26–27 (Spitzen Decl. ¶¶ 35, 67). “After what seemed like hours, but was probably only minutes, Israeli soldiers” arrived at the scene, Dkt. 28-12 at 6 (Jason Geller Decl. 19), subduing and arresting al-Harub, Dkt. 26 at 27 (Spitzen Decl. ¶ 68). Al-Harub was later “indicted and convicted by an Israeli military court for murdering three people and injuring several others.” Id. at 27 (Spitzen Decl. ¶ 68). One of the murdered was Ezra Schwartz; two of the injured were Michael Benzakein and Jason Geller. 2. The Injuries to Plaintiffs Ezra Schwartz’s estate and his immediate family, as well as Michael Benzakein, Jason Geller, and their immediate families, are the Plaintiffs here. The families seek damages for the “emotional pain and suffering[] and mental anguish” that they suffered as a result of their children’s injuries. Dkt. 1 at 16 (Compl. ¶ 107). The estate of Ezra Schwartz seeks damages for “wrongful death, lost wages and benefits, physical and emotional pain and suffering, and mental anguish.” Id. at 17 (Compl. ¶ 113). And Michael Benzakein and Jason Geller seek damages for 11 emotional distress, lost employment opportunities (including concomitant wages and benefits), physical and emotional pain and suffering, and mental anguish. Id. at 18–20 (Compl. ¶¶ 122–25, 133–35). Each Plaintiff’s claim of injury is substantiated. First, as to the direct victims of the attack: Ezra Schwartz “was shot in the head,” Dkt. 28-12 at 2 (Jason Geller Decl. ¶ 1), leading to his death, id. at 5–6 (Jason Geller Decl. ¶ 17). Shrapnel and glass lacerated Jason Geller’s knee and neck. Id. at 2, 7 (Jason Geller Decl. ¶¶ 1, 21). He attests that, after the attack, he “didn’t travel like [he] had before,” that he “was scared” while traveling, and that he “continued to dream about” Ezra. Id. at 8–9 (Jason Geller Decl. ¶ 30). Jason was also “referred to a trauma specialist while he was home, and . . . scheduled follow-up appointments with the specialist” for months afterword. Dkt. 28-13 at 5 (Marc Geller Decl. ¶ 13). Shrapnel “lodged in [Michael Benzakein’s] knee,” Dkt. 28-6 at 6 (Michael Benzakein Decl. ¶ 22), and he attests that, after the attack, he had “nightmares about the attack and also nightmares that were not about the attack, but in which someone ended up dying,” id. at 9 (Michael Benzakein Decl. ¶ 36); that he “fe[els] constantly restless;” id., that he has had to repeatedly visit a trauma specialist, id. (Michael Benzakein Decl. ¶ 37); that he cannot adequately pay attention in school, id. at 10 (Michael Benzakein Decl. ¶ 39); and that he has lost faith in his religion, developed anger issues, startles easily, has trouble sleeping, and “think[s] about the attack constantly,” id. at 10–11 (Michael Benzakein Decl. ¶¶ 40–45). Second, as to the families: Ezra Schwartz’s mother, Ruth Schwartz, attests that she “will always feel the trauma of that day,” Dkt. 28-1 at 4 (Ruth Schwartz Decl. ¶ 16); that she “cr[ies] every day;” and that on some days there are “too many tears and too much emotion to function properly,” id. at 8 (Ruth Schwartz Decl. ¶ 30). “The hardest part of Ezra’s death is that it is forever,” she recounts. Id. at 7 (Ruth Schwartz Decl. ¶ 26). “Our family is broken forever. . . . 12 My children will never have their brother. Their lives have been changed forever. They will bear the trauma of that terrible day and Ezra’s absence for their entire lives.” Id. at 7 (Ruth Schwartz Decl. ¶ 27). Similarly, Ezra’s father, Ari Schwartz, attests that “[t]he pain of that day [of Ezra’s death] and that week and the years that have followed cannot be described and cannot be quantified. . . . It doesn’t go away. The feelings change and the thoughts change but the pain stays. The pain does not ease, we just learn to live with it.” Dkt. 28-2 at 4 (Ari Schwartz Decl. ¶ 10). And “[d]espite doing [his] best with the hand that [he] was dealt,” Ari Schwartz attests, he “will never be the same person.” Id. at 5 (Ari Schwartz Decl. ¶ 17). Ezra Schwartz’s eldest sister’s declaration is to the same effect: “I often imagine my life if Ezra had not been killed. When I let myself think about it, I am still in utter shock. I was introduced to a certain type of pain the day Ezra died, and that pain sits dormant inside me as I go about my everyday life. . . . It is the kind of pain that melts you, from the inside out. . . . [It is a] disease without a treatment.” Dkt. 28-4 at 4 (Mollie Schwartz Decl. ¶ 15). Ezra’s younger brother likewise avers: “I still need[] my big brother. . . . I still think about Ezra. I still cry for him, and I still need the love and support of my older brother.” Dkt. 28-5 at 3 (H. Schwartz Decl. ¶ 12). Finally, in a declaration submitted by their parents on their behaves, Ezra’s two remaining siblings state that they “struggle with their feelings of fear and loss,” “do not really have a good place to deal with” those feelings, and, to this day “attend a bereavement camp for siblings and children of victims of terror in Israel twice a year.” Dkt. 28-3 at 6 (Ruth and Ari Schwartz on behalf of E. Schwartz and A. Schwartz, minors, Decl. ¶ 25). The Geller family’s declarations make similar points. See, e.g., Dkt. 23-2 at 4 (*SEALED*) (Jacqueline Geller Decl. ¶¶ 8–9); id. at 9 (*SEALED*) (Sandra Geller Decl. ¶¶ 12, 13 14); Dkt. 28-13 at 5 (Marc Geller ¶ 13) (Jason’s father acknowledging that he “must have been suppressing some anger” for months after the attack). And so too do the declarations submitted by the Benzakein family. See, e.g., Dkt. 28-7 at 11 (Betty Benzakein Decl. ¶ 36) (Michael’s mother stating that, for months after the attack, she “felt panicked, anxious, sleepless,” that she “didn’t have the energy” to go to therapy); Dkt. 28-8 at 7 (Ralph Benzakein Decl. ¶ 23) (Michael’s father explaining that “Michael’s decision not to be observant” after the attack “hurts [him] in the extreme.”); Dkt. 28-9 at 5 (Jacques Benzakein Decl. ¶ 16) (Michael’s brother stating that he felt the “need to walk on eggshells” around Michael for “the first few years” after the attack, and that it is “tough to see how Michael’s relationship with [his] parents has changed” since the attack.); Dkt. 28-11 at 3–4 (L. Benzakein Decl. ¶¶ 9–11) (Michael’s youngest sibling averring the same) Dkt. 28-10 at 4 (Sabrina Benzakein Decl. ¶¶ 17–8) (Michael’s sister explaining that she is now “more scared of being in Israel” and that her relationship with Michael has strained because she is “not sure [Michael’s] sudden bad moods will ever stop” and because Michael has “changed for good.”). Based on this evidence, the Court finds that each of the Plaintiffs suffered a “personal injury or death” as a result of the November 19, 2015 attack. 3. Attribution to Hamas According to Colonel Arieh Dan Spitzen, an expert on Islamic terrorist groups, “Hamas was responsible for the November 19, 2015 [a]ttack at Gush Etzion Junction.” Dkt. 26 at 32 (Spitzen Decl. ¶ 88); see also id. at 4 (Spitzen Decl. ¶ 10). Spitzen relies on three sources of evidence to reach his conclusion: “(1) public statements or acts that Hamas and al-Harub’s family members made following the [a]ttack, (2) al-Harub’s detailed and punctilious planning of 14 the [a]ttack, and (3) the resources needed and expended in perpetrating the [a]ttack.” Id. at 4–5 (Spitzen Decl. ¶ 10). First, as to the public statements or acts, Spitzen recounts that: • “[T]he day after the attack, Hamas expressed its congratulations in a poster praising and glorifying al-Harub’s deeds as heroic,” id. at 28 (Spitzen Decl. ¶ 72); • Three months after the attack, “Hamas issued a press release on its official website . . . calling upon the people in the Hebron area to support the famil[y] of . . . al-Harub,” who, the release states, was an “excellent symbol[] of [the] Hamas movement’s operatives,” id. (Spitzen Decl. ¶ 73) (emphasis added); • “Al-Harub’s mother declared in 2016 that the people of the Qassam Brigades [Hamas’s operational terror apparatus, id. at 4 (Spitzen Decl. ¶ 10)] . . . would free her son,” and she made express reference “to names of senior officials of Hamas and the Qassam Brigades” during interviews she provided to the media, id. at 29 (Spitzen Decl. ¶ 75); • Al-Harub’s parents spoke at “Hamas sites” and gave an interview to a Hamas-affiliated website; a “Hamas flag accompanied the report” of one of these interviews; “posters shown in the course of [an] interview as background . . . stated that al-Harub . . . belong[ed] to the Qassam Brigades;” and, during other interviews, “al-Harub’s organizational affiliation with Hamas and its operational terrorist apparatus was emphasized,” id. (Spitzen Decl. ¶ 76) (emphasis added); • “Posters explicitly noting that al-Harub was an operative of the Qassam Brigades . . . were displayed at al-Harub’s home on February 23, 2016, immediately after it was destroyed by the IDF [Israeli Defense Forces],” id. at 28–29 (Spitzen Decl. ¶ 74); • “[A]l-Harub’s father received compensation from Hamas for the destruction of the family home,” id. at 30 (Spitzen Decl. ¶ 77); and • “Hamas officially claims responsibility for the [a]ttack[:] a senior Hamas figure publicly described al-Harub as a ‘son of the Hamas movement,’” id. at 31 (Spitzen Decl. ¶ 87), a phrase that Hamas uses to refer to “its own operatives in various Hamas publications and posters [that] it distributed,” id. at 12 (Spitzen Decl. ¶ 33). In sum, as Spitzen explains, “[a]l-Harub’s mother’s public declarations supporting Hamas’s ideology, and her expressed confidence that the Qassam Brigades would arrange to 15 promptly free her terrorist son; declarations of other family members indicating support for Hamas; interviews supplied by the family to Hamas media and accompanied by Hamas symbols; . . . the family[‘s] [receipt of] compensation from Hamas for the destruction of their home by Israeli security forces . . . ; and the fact that no other terrorist organizations claimed responsibility for the [a]ttack—all support the conclusion that Hamas was responsible for the [a]ttack in which three people were killed, including Ezra Schwartz, and nine others were injured, including Plaintiffs Michael Benzakein and Jason Geller.” Id. (Spitzen Decl. ¶ 79). Second, further confirming Hamas’s responsibility for the attack, according to Spitzen, is the evidence of “al-Harub’s detailed and punctilious planning of the [a]ttack.” Id. at 4–5 (Spitzen Decl. ¶ 10). Spitzen notes that: • Al-Harub’s “Will describes his upcoming attack as an act of jihad for Allah’s sake and for ‘the defense of our nation and our honor,’ which was crushed by ‘the occupation and its herds of its settlers,’” id. at 16–17 (Spitzen Decl. ¶ 43), and Al-Harub “linked his decision to perpetrate a terrorist attack to his desire for vengeance against the Jews for the condition of the Palestinian people as well as the Jews’ purported damaging of the al-Aqsa Mosque,” id. at 16 (Spitzen Decl. ¶ 42); • Many months before the attack, “[i]n February 2015, al-Harub purchased an Uzi submachine gun and three magazines of ammunition from a Bedouin of the Ramadin tribe;” he subsequently “purchased further ammunition, he examined the condition of the weapon[], cleaned [it], and oiled [it] every month after his shooting practice;” and he “preventively painted” the weapon[] and “concealed [it] in a hiding place, wrapping [it] in airtight bags to prevent rusting and preserve [it] in good working order,” id. at 20–21 (Spitzen Decl. ¶¶ 52–54); • He engaged in “regular training in operating the weapon and target practice,” making “a point of practicing his shooting every month” at “an inconspicuous location outside his village so that he would not be discovered,” id. at 21 (Spitzen Decl. ¶ 55); and • His execution of the attack demonstrated a level of “operational performance clearly indicating prior training,” and his “tactical driving while shooting and switching magazines, which is a very difficult task and requires 16  advanced skill generally acquired through lengthy organized practice, id. at 27 (Spitzen Decl. ¶ 69). Based on these facts, Spitzen concludes that “[a]l-Harub’s behavior and spoken and written words before the [a]ttack demonstrate his adherence to the . . . ideology of Hamas and like- minded terrorist organizations,” id. (Spitzen Decl. ¶ 43); that “[h]is attention to operational preparedness . . . was far more consistent with the operational discipline exhibited by members of terror cells who operate within organizational frameworks,” id. at 21–22 (Spitzen Decl. ¶ 56); and that “the [a]ttack itself indicates long and precise preparation [consistent with] the behavior of a terrorist who belonged to an organized, established terrorist organization that provided logistical and operational backing to its operatives,” id. at 27 (Spitzen Decl. ¶ 70). Third, Spitzen explains that “the resources needed and expended in perpetrating the [a]ttack” and the date of the attack further support his conclusion that Hamas bore responsibility for the attack. Id. at 4–5 (Spitzen Decl. ¶ 10). Spitzen notes that al-Harub expended roughly $15,000 over two years accumulating weapons and ammunition. Id. at 20 (Spitzen Decl. ¶ 53). “That sum is exceptionally large and unusual for a young Palestinian,” and, in Spitzen’s view, “it is very difficult to believe that the purchase[s] [were] made from al-Harub’s own private resources.” Id. Finally, Spitzen explains that al-Harub selected the date of the attack— November 19—“in part because it was the anniversary of the death of the namesake of Hamas’s operational terror apparatus, the Izz al- Din al-Qassam Brigades.” Id. at 28 (Spitzen Decl. ¶ 71). All told, then, “[a]l-Harub’s conduct was far more consistent with the operational discipline exhibited by members of terror cells who operate within organizational frameworks.” Id. at 22 (Spitzen Decl. ¶ 56). Based on the foregoing, Spitzen offers the expert opinion that al-Harub “was a Hamas operative who committed the [a]ttack with the support and approval of Hamas,” because of: 17 (1) his “profile, which reflects extremist, Islamist beliefs,” id. at 28 (Spitzen Decl. ¶ 71); (2) his “decision to commit the [a]ttack on the anniversary of the death of Sheikh Izz al-Din al- Qassam,” id.; “the operation and the level of professionalism al-Harub exhibited in preparing for the [a]ttack,” id.; “the content of al-Harub’s Will, which reflected signature Hamas . . . themes,” id. at 4 (Spitzen Decl. ¶ 10); (5) the statements made by al-Harub’s parents and the payment made by Hamas to al-Harub’s father after the IDF destroyed the family home, id. at 29–30 (Spitzen Decl. ¶¶ 76–77); (6) the posters referring to al-Harub as “the Qassami prisoner,” id. at 28 (Spitzen Decl. ¶ 74); and (7) “Hamas’s celebration and identification of al-Harub after his arrest as one of its operatives,” id. at 4 (Spitzen Decl. ¶ 10). In light of Spitzen’s unrebutted declaration, and cognizant of how difficult it is to obtain “firsthand evidence and eyewitness testimony” in terrorism cases, Owens IV, 864 F.3d at 785, the Court finds that Hamas was responsible for the November 19 attack. III. CONCLUSIONS OF LAW Under the Foreign Sovereign Immunity Act, 28 U.S.C. § 1604 , a foreign state, including its instrumentalities, is immune from suit in state or federal court unless the case falls within an express statutory exception. See Kilburn v. Socialist People’s Libyan Arab Jamahiriya, 376 F.3d 1123 , 1126 (D.C. Cir. 2004). For present purposes, the sole relevant exception is found in the “state-sponsored terrorism exception,” 28 U.S.C. § 1605A, which both confers subject matter jurisdiction on federal district courts to hear certain terrorism-related claims, see 28 U.S.C. § 1330 (a), and recognizes a federal cause of action against those foreign states subject to the exception, see Owens IV, 864 F.3d at 764–65. The FSIA also addresses personal jurisdiction and specifies precise procedures that a plaintiff must follow to effect service on a foreign state. See 28 U.S.C. § 1608 . 18  The Court must satisfy itself that Plaintiffs have cleared each of these hurdles, notwithstanding Defendant’s failure to appear. First, the FSIA deprives courts of subject-matter jurisdiction in the absence of a relevant exception, and courts are “obligated to consider [their jurisdiction] sua sponte.” Gonzalez v. Thaler, 565 U.S. 134 , 141 (2012); see also Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480 , 493 n.20 (1983) (even where a defendant foreign state does not appear, the Court “still must determine that immunity is unavailable”). Second, with respect to the substance of a plaintiffs’ federal (or state) law claims, as noted above, the FSIA precludes courts from entering a default judgment against a foreign state unless the court is satisfied that the plaintiff has established her “right to relief by evidence satisfactory to the court.” 28 U.S.C. § 1608 (e); see also Owens, 864 F.3d at 784–86. And, because “the entry of a default judgment is not automatic,” courts must “satisfy [themselves] that [they have] personal jurisdiction before entering judgment against an absent defendant.” Mwani, 417 F.3d at 6 (footnote omitted). Each of these inquiries implicates a slightly different standard of proof. To establish subject-matter jurisdiction, a FSIA “plaintiff bears an initial burden of production to show [that] an exception to immunity, such as § 1605A, applies.” Owens IV, 864 F.3d at 784. When the plaintiff meets that burden of production, it must then “prove [its] case on the merits.” Id. To do so, the plaintiff must “establish his . . . right to relief by evidence satisfactory to the court.” 28 U.S.C. § 1608 (e). Although this provision’s “protection against an unfounded default judgment” does not altogether “relieve[] the sovereign from the duty to defend,” it does require the plaintiff to offer “admissible evidence” sufficient to “substantiate [the] essential element[s]” of his claim. Owens IV, 864 F.3d at 785–86 (quotations omitted). Finally, to establish personal jurisdiction 19 over a defaulting defendant, the plaintiff must make “a prima facie showing of [personal] jurisdiction.” Mwani, 417 F.3d at 6–7. As explained below, the Court concludes that it has subject-matter jurisdiction over Plaintiffs’ claims and personal jurisdiction over Iran. The Court also concludes that Plaintiffs have carried their burden of establishing a right to relief under the federal cause of action established in § 1605A. Finally, the Court will defer until the damages stage the determination of the damages to which each Plaintiff is entitled. A. Subject-Matter Jurisdiction and Liability for § 1605A(c) Claims “[T]he [federal] district courts . . . have original jurisdiction” over “any nonjury civil action against a foreign state” asserting “any claim for relief in personam with respect to which the foreign state is not entitled to immunity under” the FSIA. 28 U.S.C. § 1330 (a). This Court, accordingly, has subject-matter jurisdiction over the present “nonjury civil action” against Iran if, and only if, the conditions for the waiver of immunity found in 28 U.S.C. § 1605A are satisfied. As explained below, Plaintiffs have carried their burden of establishing the Court’s subject- matter jurisdiction. Under the state-sponsored terrorism exception, 28 U.S.C. § 1605A(a)(1), a foreign state is not immune from the jurisdiction of the federal (and state) courts in cases in which: [(1)] money damages are sought against a foreign state [(2)] for personal injury or death [(3)] that was caused by [(4)] an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources for such an act if such act or provision of material support or resources is [(5)] engaged in by an official, employee, or agent of such foreign state while acting within the scope of his or her office, employment, or agency. 28 U.S.C. § 1605A(a)(1). The exception, moreover, applies only to suits in which two additional requirements are met. First, the claimant or victim must be a U.S. national, a member of the U.S. armed forces, or a U.S. government employee or contractor at the time the act of terrorism 20 occurred. 28 U.S.C. § 1605A(a)(2)(A)(ii). Second, the foreign state must be designated as a state sponsor of terrorism both at the time the act occurred (or was so designated as a result of the act) and at the time the lawsuit was filed (or was so designated within the six-month period preceding the filing of the suit). 3 Id. § 1605A(a)(2)(A)(i)(I); see also Owens IV, 864 F.3d at 763–64. Several of the conditions for subject-matter jurisdiction are easily addressed in this case. First, Plaintiffs expressly seek only monetary relief, costs and expenses, and attorneys’ fees. Dkt. 1 at 21 (Compl. Prayer for Relief). Second, Iran was designated as a state sponsor of terrorism in 1984, see 49 Fed. Reg. 2836 –02 (Jan. 23, 1984) (statement of Secretary of State George P. Shultz) (Iran), and remains designated as such to this day, see U.S. Dep’t of State, State Sponsors of Terrorism, available at https://www.state.gov/state-sponsors-of-terrorism (last visited November 23, 2020). Third, at the time the Gush Etzion Junction attack occurred, each Plaintiff here was a United States national. Dkt. 1 at 4 (Compl. ¶ 26) As a result, the only substantial jurisdictional question left for the Court is whether Plaintiffs’ claims are for “personal injury or death that [were] caused by . . . act[s] of torture, extrajudicial killing . . . hostage taking, or the provision of material support or resources” by an “official, employee, or agent of” Iran or Syria. 28 U.S.C. § 1605A(a)(1). For the reasons explained below, the Court concludes as follows: (1) Hamas committed an act of “extrajudicial killing” within the meaning of the Torture Victim Protection Act; (2) Iran and its agents provided “material support or resources” for the extrajudicial killings that caused Plaintiffs’ injuries within 3 Section 1605A(a)(2) also requires that the foreign state have received “a reasonable opportunity to arbitrate the claim,” but only if the act of terrorism “occurred in the foreign state against which the claim has been brought.” 28 U.S.C. § 1605A(a)(2)(A)(iii). That requirement is inapplicable to the facts of this case because none of the alleged acts of terrorism occurred in Iran. 21 the meaning of 18 U.S.C. § 2339A; and (3) Iran’s provision of material support caused the injuries or deaths suffered by Plaintiffs. Plaintiffs’ claims against Iran, therefore, fall within the state-sponsored terrorism exception of 28 U.S.C. § 1605A(a)(1). 1. “Personal Injury or Death . . . Caused By” Defendant’s Conduct The FSIA effects a waiver of sovereign immunity for claims seeking to recover for “personal injury or death that was caused by” certain terrorist acts or the provision of material support for such acts. 28 U.S.C. § 1605A(a)(1). Here, Ezra Schwartz died and Plaintiffs Michael Benzakein and Jason Geller suffered physical injuries as a result of the Gush Etzion Junction terrorist attack. Their claims, accordingly, satisfy the personal injury requirement of § 1605A(a)(1). And because the statute is understood to encompass claims by close family members of those injured or killed for the distress caused by their relative’s injuries, also known as solatium actions, see 28 U.S.C. § 1605A(c); see also Salzman v. Islamic Republic of Iran, No. 17-1745, 2019 WL 4673761 , at *12 (D.D.C. Sept. 25, 2019), the close relatives of Ezra Schwartz, Michael Benzakein, and Jason Geller also satisfy the personal injury requirement of § 1605A(a)(1). A family member’s claim for solatium damages resulting from a terrorist attack may be considered for FSIA purposes as a variety of claim for an intentional infliction of emotional distress, see Oveissi v. Islamic Republic of Iran, 879 F. Supp. 2d 44 , 54–55 (D.D.C. 2012) (“Oveissi II”), and, as such, constitutes a “claim[] for personal injury,” id. at 55 . 2. Hamas’s Extrajudicial Killing To fall within the FSIA’s waiver of sovereign immunity, Plaintiffs’ “personal injur[ies] or death[s]” must also have been “caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources for such an act.” 28 U.S.C. § 1605A(a)(1). The FSIA looks to the Torture Victims Protection Act of 1991 (“TVPA”) 22 to define “extrajudicial killing.” 28 U.S.C. § 1605A(h)(7). Under the TVPA, “extrajudicial killing” means: a deliberated killing not authorized by a previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples. Such term, however, does not include any such killing that, under international law, is lawfully carried out under the authority of a foreign nation. TVPA, Pub. L. No. 102-256, § 3(a), 106 Stat. 73 . As the D.C. Circuit has explained, this definition “contains three elements: (1) a killing; (2) that is deliberated; and (3) is not authorized by a previous judgment pronounced by a regularly constituted court.” Owens IV, 864 F.3d at 770. a. Killing The Gush Etzion Junction attack constitutes an act of extrajudicial killing: Ezra Schwartz and others died as a result of the terrorist attack. Dkt. 28-12 at 2, 5–7 (Jason Geller Decl. ¶¶ 1, 17, 21); Dkt. 28-13 at 5 (Marc Geller Decl. ¶ 13); Dkt. 28-6 at 6, 9 (Michael Benzakein Decl. ¶ 22, 36). Although Jason Geller and Michael Benzakein were not killed, “[s]everal decisions from this district have held that individuals who are injured but not killed in an attack that results in the death of others may recover for their injuries under § 1605A.” Force v. Islamic Republic of Iran, 464 F. Supp. 3d 323 , 360 (D.D.C. 2020) (citing Karcher, 396 F. Supp. 3d at 58; Salzman v. Islamic Republic of Iran, No. 17-2475, 2019 WL 4673761 , at *12 (D.D.C. Sept. 25, 2019); Estate of Doe v. Islamic Republic of Iran, 808 F. Supp. 2d 1 , 6, 14 (D.D.C. 2011); Cohen v. Islamic Republic of Iran, 238 F. Supp. 3d 71 , 81 (D.D.C. 2017); Haim v. Islamic Republic of Iran, 784 F. Supp. 2d 1 , 11 (D.D.C. 2011)). Jason Geller and Michael Benzakein’s injuries were, like Ezra Schwartz’s, “caused by” the “act of . . . extrajudicial killing”—a shooting that killed three people and injured nine others, see Dkt. 26 at 13 (Spitzen Decl. ¶ 34). Salzman, 2019 WL 4673761 , at *12. Indeed, they sat close to Ezra Schwartz when he was shot in the 23 head, as al-Harub deliberately sprayed their van with bullets in an effort to kill as many innocent people as he could. It follows, moreover, that the personal injuries suffered by their family members were caused by the same act of extrajudicial killing. See 28 U.S.C. § 1605A(c); see also Salzman, 2019 WL 4673761 , at *12; Oveissi II, 879 F. Supp. 2d at 54–55. b. Deliberated and Unauthorized Plaintiffs must also show that the attacks that caused their injuries were “deliberated,” in order to qualify as an “extrajudicial killing.” “A ‘deliberated’ killing is simply one undertaken with careful consideration, not on a sudden impulse.” Owens v. Republic of Sudan, 174 F. Supp. 3d 242 , 263 (D.D.C. 2016) (“Owens III”) (subsequent history omitted) (citing Webster’s Third New International Dictionary 596 (1993); 4 The Oxford English Dictionary 414 (2d ed. 1989); Black’s Law Dictionary 492 (9th ed. 2009)). Here, there is ample evidence that the attacks in question were planned. As Plaintiffs’ expert Arieh Spitzen explains: “al-Harub prepared himself for the [a]ttack not only spiritually and emotionally, but also in the following ways: with intelligence-gathering, by selecting the site; with logistics, by purchasing the gun and ammunition; and operationally, by training to commit the attack.” Dkt. 26 at 18 (Spitzen Decl. ¶ 46); see also id. (Spitzen Decl. ¶ 47) (“Several unique features in the [a]ttack indicate al-Harub’s longstanding intention to commit a terrorist attack, including punctilious planning, financing, intelligence gathering and training – all characteristic activity of an official and organized organization like Hamas.”); id. at 27 (Spitzen Decl. ¶ 70) (“[Al-Harub’s] preparations for the [a]ttack and of the [a]ttack itself indicates long and precise preparation for its commission[:] Acquisition of weapons and logistical tools, operational and intelligence preparations, and strict secrecy . . . are all atypical of the 2015 terror wave, and they indicate the behavior of a terrorist who belonged to an organized, 24 established terrorist organization that provided logistical and operational backing for its operatives.”). Finally, the attack was, without a doubt, perpetrated without “a prior judgment affording judicial guarantees o[f] due process,” Foley, 249 F. Supp. 3d at 202; see also Owens IV, 864 F.3d at 770, or “under the [lawful] authority of a foreign nation,” TVPA § 3(a). To the contrary, Hamas, a non-state actor, claimed responsibility for al-Harub’s attack. See, e.g., Dkt. 26 at 28 (Spitzen Decl. ¶ 72) (“One day after the [a]ttack, Hamas expressed its congratulations in a poster praising and glorifying al-Harub’s deeds as heroic[.]”); id. (Spitzen Decl. ¶ 73) (“On February 24, 2016, Hamas issued a press release on its official website . . . calling upon the people in the Hebron area to support the famil[y] of the prisoner[] Muhammad Abd al-Basset al-Harub[.]” (quotation marks omitted)); id. (Spitzen Decl. ¶ 74) (“Posters explicitly noting that al-Harub was an operative of the Qassam Brigades, (referring to him as ‘the Qassami prisoner’), were displayed at al-Harub’s home on February 23, 2016 . . . and made clear publicly and openly that Hamas was claiming the perpetrator of the November 19, 2015 [a]ttack . . . .”): id. at 31 (Spitzen Decl. ¶ 87) (“Hamas officially claimed responsibility for the [a]ttack[, and] a senior Hamas figure publicly described al-Harub as a son of the Hamas movement . . . .” (quotation marks omitted)). * * * The Court, accordingly, concludes that the Gush Etzion Junction attack qualifies as an act of “extrajudicial killing” under 28 U.S.C. § 1605A(a)(1). 3. Iran’s Provision of Material Support for Hamas November 19, 2015 Extrajudicial Killing The FSIA’s terrorism exception applies when a plaintiff seeks money damages for “personal injury or death that was caused by . . . the provision of material support or resources 25 for” an “act of torture, extrajudicial killing, aircraft sabotage, [or] hostage taking,” so long as that support was provided by “an official, employee, or agent of such foreign state while acting within the scope of his or her office, employment, or agency.” 28 U.S.C. 1605A(a)(1). Section 1605A(h)(3) defines “material support or resources” by reference to 18 U.S.C. § 2339A, the criminal material support statute. Section 2339A defines “material support or resources” to mean: any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (1 or more individuals who may be or include oneself), and transportation, except medicine or religious materials. 18 U.S.C. § 2339A(b)(1). The Court has found that, during the years leading up to and surrounding the attacks at issue, Iran provided millions—if not hundreds of millions—of dollars to Hamas. See supra Part II.A. Iran also provided substantial operational aid to Hamas, including weapons, training, and strategic support. See id. The Court therefore concludes that Iran provided Hamas “material support” in the form of, inter alia, “currency,” “training,” “expert . . . assistance,” and “weapons” within the meaning the FSIA. 28 U.S.C. § 1605A(h)(4); 18 U.S.C. § 2339A(b)(1). 4. Causation The Court must also consider whether Plaintiffs’ injuries were “caused by” provision of material support to Hamas. 28 U.S.C. § 1605A(a)(1). Plaintiffs need not show that Iran “specifically knew of or intended its support to cause” the particular attacks in question, Owens IV, 864 F.3d at 798, or even that Iran’s material support was a “but for” cause of their injuries, Kilburn, 376 F.3d at 1128 . Instead, the FSIA requires only a “showing of ‘proximate cause,’” which is satisfied where a Plaintiff can show “some reasonable connection between the act or 26 omission of the defendant and the damage which the plaintiff has suffered.” Id. (quoting Prosser & Keeton on the Law of Torts 263 (5th ed. 1984)). This inquiry thus “contains two similar but distinct elements.” Owens IV, 864 F.3d at 794. “First, the defendant’s actions must be a ‘substantial factor’ in the sequence of events that led to the plaintiff’s injury.” Id. (quoting Rothstein v. UBS, 708 F.3d 82 , 91 (2d Cir. 2013)). “Second, the plaintiff’s injury must have been ‘reasonably foreseeable or anticipated as a natural consequence’ of the defendant’s conduct.” Id. (Rothstein, 708 at 91). Plaintiffs have offered no evidence tying the provision of specific support from Iran to the Gush Etzion Junction attack. But establishing that type of close nexus is unnecessary, because financial support and material aid are fungible and, more importantly, Iranian support helped make Hamas the force that it was in November 2015. The FSIA does not condition Plaintiffs’ recovery on Hamas’s “careful bookkeeping.” Kilburn, 376 F.3d at 1130 . Here, it is enough for Plaintiffs to have shown that Iran’s financial and military aid to Hamas played a significant role in aiding its operational capacity. It is uncontested that Iran provided material support to Hamas for nearly two-and-a-half decades, Dkt. 25 at 23 (Clawson Decl. ¶ 59); that Hamas accepted responsibility for the instant attack, claiming al-Harub as one of its own operatives, Dkt. 26 at 28 (Spitzen Decl. ¶ 73); and that Hamas’s resources were at a minimum used in the attack’s aftermath (payment to al-Harub’s parents after their house was destroyed by the IDF, id. at 28–29 (Spitzen Decl. ¶ 74), and were likely used in the attack itself, id. at 20 (Spitzen Decl. ¶ 53) (suggesting Hamas funded al-Harub’s purchase “of weapons and ammunition”). More generally, Iran’s resources allowed Hamas to function as it did; indeed, as Spitzen attests, “Hamas had few alternative suppliers of arms and money” around the time of the attack, Dkt. 25 at 22 (Clawson Decl. ¶ 56). The Court, accordingly, concludes that there is a 27 “reasonable connection” between Iran’s support of Hamas and the instant attack, and that, therefore, Iran’s support was a substantial factor in the attack that caused the Plaintiff’s injuries. The remaining question is whether Plaintiffs’ injuries resulting from the attacks at issue were “reasonably foreseeable” or “natural consequence[s]” of Defendant’s conduct. Owens IV, 864 F.3d at 794. They were. Iran not only materially supported Hamas, it actively encouraged Hamas to carry out attacks on civilians in Israel and provided Hamas the financial and military capabilities enabling those attacks. See supra Part II.A. Ezra Schwartz’s death, Jason Geller and Michael Benzakein’s injuries, and their families’ immense emotional pain was, by any measure, a foreseeable result of Iran’s sponsorship of terror. Owens IV, 864 F.3d at 797–98; see also Salzman, 2019 WL 4673761 , at *14. 6. Federal Cause of Action Having concluded that the Court possesses subject-matter jurisdiction, little else is required to show that Plaintiffs are entitled to relief under the federal cause of action that Congress enacted in 2008 as part of the National Defense Authorization Act. See Pub. L. No. 110-181, § 1083, 122 Stat. 338 –44 (2008) (codified at 28 U.S.C. § 1605A(c)). There is almost total “overlap between the elements of [§ 1605A(c)’s] cause of action and the terrorism exception to foreign sovereign immunity,” Foley, 249 F. Supp. 3d at 205, and a plaintiff that offers proof sufficient to establish a waiver of foreign sovereign immunity under § 1605A(a) has also established entitlement to relief as a matter of federal law—with one minor exception not relevant here: a foreign state is only liable to a limited class of individuals, namely, “a national of the United States,” “a member of the armed forces,” “an employee [or contractor] of the [U.S.] Government . . . acting within the scope of the employee’s employment,” or “the legal representative of ” any such person, 28 U.S.C. § 1605A(c); see also Dkt. 1 at 4 (Compl. ¶ 26) 28 (alleging that “[e]ach Plaintiff was a United States citizen at all relevant times, including at the time of the [a]ttack”). Accordingly, for the same reasons that the Court has subject-matter jurisdiction, Plaintiffs have a statutory claim to relief. B. Personal Jurisdiction The Court also concludes that it has personal jurisdiction over Defendant. Under the FSIA, the Court has personal jurisdiction over a foreign state “as to every claim for relief over which the [Court] ha[s] jurisdiction . . . where service has been made under section 1608.” 28 U.S.C. § 1330 (b). Thus, “[i]n order to sue a foreign state or one of its political subdivisions, a plaintiff must effect service in compliance with” 28 U.S.C. § 1608 (a). Barot v. Embassy of the Republic of Zambia, 785 F.3d 26 , 27 (D.C. Cir. 2015). Section 1608(a) “provides four methods of service in descending order of preference,” id.: (1) by delivery of a copy of the summons and complaint in accordance with any special arrangement for service between the plaintiff and the foreign state or political subdivision; or (2) if no special arrangement exists, by delivery of a copy of the summons and complaint in accordance with an applicable international convention on service of judicial documents; or (3) if service cannot be made under paragraphs (1) or (2), by sending a copy of the summons and complaint and a notice of suit, together with a translation of each into the official language of the foreign state, by any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the head of the ministry of foreign affairs of the foreign state concerned, or (4) if service cannot be made within 30 days under paragraph (3), by sending two copies of the summons and complaint and a notice of suit, together with a translation of each into the official language of the foreign state, by any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the Secretary of State in Washington, District of Columbia, to the attention of the Director of Special Consular Services--and the Secretary shall transmit one copy of the papers through diplomatic 29  channels to the foreign state and shall send to the clerk of the court a certified copy of the diplomatic note indicating when the papers were transmitted. 28 U.S.C. § 1608 (a). The first two mechanisms of effecting service—by delivery of the summons and complaint either “in accordance with any special arrangement for service between the plaintiff and the foreign state” under § 1608(a)(1) or “in accordance with an applicable international convention on service of judicial documents” under § 1608(a)(2)—were unavailable to Plaintiffs in this case. See Dkt. 24 at 14; Karcher, 2019 WL 4017636 , at *2. No “special arrangement” governs service between the United States and Iran, and Iran is not party to an international convention on service of judicial documents. See Braun v. Islamic Republic of Iran, 228 F. Supp. 3d 64 , 77–78 (D.D.C. 2017). As a result, Plaintiffs attempted service under the third alternative, which requires service by mail from “the clerk of the court to the head of the ministry of foreign affairs of the foreign state.” 28 U.S.C. § 1608 (a)(3). On June 20, 2018, Plaintiffs initiated service as to all Defendants under § 1608(a)(3), Dkt. 7 and, at Plaintiffs’ request, the Clerk of Court mailed the relevant documents to Iran on June 22, 2018, Dkt. 8. On July 9, 2018, the Court notified Plaintiffs that the documents sent to Iran were returned undelivered. Dkt. 9. Plaintiffs then proceeded to serve Iran pursuant to 28 U.S.C. § 1608 (a)(4). Dkt. 24 at 14. That provision requires service by mail from the clerk of court to the Secretary of State, who must then transmit the required material “through diplomatic channels to the foreign state.” 28 U.S.C. § 1608 (a)(4). The Department of State must then send “the clerk of the [C]ourt a certified copy of the diplomatic note indicating when the papers were transmitted.” Id. Plaintiffs provided the Clerk with the relevant documents and requested service pursuant to § 1608(a)(4) on August 22, 2018. Dkt. 11; see also Dkt. 12. The Clerk mailed these materials to the State 30 Department on August 24, 2018. Dkt. 13. On November 28, 2018, the State Department notified the Clerk that the documents had been delivered to Iran through the Swiss Ministry of Foreign Affairs. Dkt. 14 at 3. As the Department explained, “[b]ecause the United States does not maintain diplomatic relations with the Government of Iran,” the documents were transmitted to the Embassy of Switzerland in Tehran, Iran, which then transmitted the materials to the Iranian Ministry of Foreign Affairs on October 24, 2018. Id. at 1. After Iran failed to respond, the Clerk of Court entered a default. Dkt. 22. Because Plaintiffs accomplished service pursuant to 28 U.S.C. § 1608 (a)(4) on the Islamic Republic of Iran, the Court possesses personal jurisdiction over Iran. See 28 U.S.C. § 1330 (b). CONCLUSION For the foregoing reasons, it is hereby ORDERED that the motion for default judgment, Dkt. 22, and the motion to file certain documents under seal, Dkt. 23, are GRANTED. The Court will APPOINT a special master to hear Plaintiffs’ damages claims and to report to the Court a recommendation as to the appropriate award. A separate order appointing a special master and setting the terms of that appointment will follow. SO ORDERED. /s/ Randolph D. Moss RANDOLPH D. MOSS United States District Judge Date: November 30, 2020 31

2020-12-01 16:02:12.154352+00

http://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2020/CV%2020-0179%20Yslas%20v.%20SMS.pdf

NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. IN THE ARIZONA COURT OF APPEALS DIVISION ONE RAMON YSLAS, Plaintiff/Appellee, v. STERLING MOBILE SERVICES INC., Defendant/Appellant. No. 1 CA-CV 20-0179 FILED 12-1-2020 Appeal from the Superior Court in Maricopa County No. CV2018-008124 The Honorable Daniel J. Kiley, Judge AFFIRMED COUNSEL Giammarco Law Office, Chandler By Anthony Giammarco Counsel for Defendant/Appellant/Judgment Debtor Ramon Yslas, Tempe Plaintiff/Appellee/Judgment Creditor  YSLAS v. SMS Decision of the Court MEMORANDUM DECISION Presiding Judge Randall M. Howe delivered the decision of the Court, in which Judge Kent E. Cattani and Judge Cynthia J. Bailey joined. H O W E, Judge: ¶1 In a case arising from an employer’s non-payment of wages to a discharged employee, Sterling Mobile Services Inc. appeals the trial court’s granting its former employee, Ramon Yslas, summary judgment. Sterling argues that material issues of fact preclude summary judgment and that the trial court erred in awarding Yslas treble damages because Sterling had a good faith basis to dispute Yslas’s claim for unpaid wages. For the following reasons, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 Yslas worked for Sterling as a sales representative for more than four years and, along with a bi-weekly wage, earned a 30% commission for equipment sales on the difference between sales procured and equipment costs. The contract provided that commission payments would occur on the 15th day of each month following Sterling’s receipt of the customer’s payment. ¶3 In October 2018, Sterling discharged Yslas for poor performance. Two weeks later, Sterling paid Yslas the outstanding commissions owed from customer payments received before his discharge but refused to pay commissions on sales paid for after Yslas was discharged. Yslas, representing himself, sued Sterling for those unpaid commissions under A.R.S. § 23–353(A), and alleged that Sterling owed him treble the value of unpaid commissions under A.R.S. § 23–335. Sterling denied owing Yslas the unpaid commissions and counterclaimed for defamation, false light, and tortious interference with a business relationship. ¶4 Yslas moved for summary judgment, claiming that $17,668.94 in commissions remained unpaid and that that amount must be trebled to $53,006.82. He attached copies of the invoices that formed the basis of his claim, which he had obtained from Sterling’s initial disclosure statement. The attached invoices included handwritten equipment cost totals and 2  YSLAS v. SMS Decision of the Court commission calculations. He also attached two affidavits. In the first, he attested to the facts in his motion and supporting documents and stated that the full amount of commissions due was $17,668.94. In the second, one of Sterling’s clients attested that the counterclaims were meritless. Before Sterling submitted its response, Yslas filed a “Supplement to Motion for Summary Judgment,” which criticized Sterling’s discovery submissions and argued that the documents submitted with the motion were sufficient to establish that Yslas was entitled to summary judgment. ¶5 In response, Sterling did not deny Yslas’s statement of facts, address his supplement, or make any evidentiary objections. Sterling did, however, submit an affidavit from its owner stating that when it discharged an employee for poor performance, it was its policy to pay only those commissions for which it had received payment before the discharge. Sterling claimed that treble damages were consequently unwarranted. Sterling further claimed that it had withheld the commissions also because it had pending tort claims against Yslas for defamation, false light, and tortious interference with business affairs that would “set off,” or offset, any unpaid commissions. ¶6 The trial court granted Yslas summary judgment, finding that Sterling had conceded the amount of commissions due as being $17,668.94. The trial court noted that the “wages” to which a discharged salesperson is entitled under A.R.S. § 23–350(7) include commissions on sales that the salesperson procured before discharge, even if the employer does not receive payment from the customer until after the salesperson’s discharge. The trial court ruled that Sterling did not have a good faith basis for denying Yslas his earned wages and trebled the damages. The trial court later granted Yslas summary judgment on Sterling’s counterclaims for lack of a dispute of material fact. DISCUSSION ¶7 Sterling does not dispute the trial court’s granting summary judgment against it on its counterclaims, but contends that the trial court erred in granting Yslas summary judgment on his claim that it had improperly withheld commissions owed to him under A.R.S. § 23–353(A) and in awarding him treble damages for the violation of that statute. Neither claim has merit. 3  YSLAS v. SMS Decision of the Court I. Yslas is entitled to summary judgment for unpaid wages under A.R.S. § 23–353(A). ¶8 We review a grant of summary judgment de novo to determine whether any genuine issues of material fact exist and whether the trial court erred in its application of the law. Marco Crane & Rigging Co. v. Masaryk, 236 Ariz. 448 , 449 (App. 2014). We view the facts in the light most favorable to the party against whom judgment was entered and draw all justifiable inferences in its favor. Nat'l Bank of Ariz. v. Thruston, 218 Ariz. 112 ¶ 17 (App. 2008). ¶9 Under A.R.S. § 23–353(A), an employer who discharges an employee must pay the wages due the employee within seven working days or the end of its regular pay period, whichever is sooner. Wages are “nondiscretionary compensation due an employee in return for labor or services . . . for which the employee has a reasonable expectation to be paid . . . .” A.R.S. 23–350(7). Sales commissions are wages under this definition. Sanborn v. Brooker & Wake Property Mgmt., Inc., 178 Ariz. 425 , 427 (App. 1994). This includes commissions that are based on sales that the employee procured before the employee was discharged, even though the employer received payment on the sales after the employee was discharged. See Clark v. Ellsworth, 66 Ariz. 119 , 122 (1947) (holding that Arizona follows the “procuring cause” rule in determining when real estate sale commission is earned); accord Porter v. Ploughe, 77 Ariz. 33 , 35 (1954). ¶10 Sterling did not dispute that Yslas had procured the sales that gave rise to the commissions in question. Sterling argued only that its policy was to not pay commissions earned for sales paid after the employee was discharged if the employee had been discharged for poor performance, and that Yslas thus was not entitled to those commissions. Sterling’s owner admitted, however, that he had never communicated this policy to Yslas. Because an employer cannot refuse to pay wages for reasons not communicated to the employee, see Schade v. Diethrich, 158 Ariz. 1 , 13 (1988), Yslas was entitled to his unpaid commissions as a matter of law. ¶11 Sterling nevertheless argues that summary judgment was not appropriate because the information that Yslas attached to his summary judgment motion —including the handwritten notations—and presented in his supplement to his summary judgment motion created genuine disputes of fact about the amount of the commissions owed. Sterling also argues that the trial court erred in considering the additional material in ruling on the summary judgment motion. Sterling never raised these arguments to the trial court, however, and they are thus waived on appeal. Woyton v. Ward, 4  YSLAS v. SMS Decision of the Court 247 Ariz. 529 , 534 (App. 2019); see also A. Uberti & C. v. Leonardo, 181 Ariz. 565 , 568 (1995) (stating that evidentiary and foundational objections to sufficiency of supporting documents attached to summary judgment pleadings are necessary to allow offering party an opportunity to cure defects and that objections to evidence must be raised at trial court to be considered on review). Because Sterling did not raise its arguments before the trial court, the trial court properly deemed as true the facts attested in Yslas’s affidavit. Siner v. Stewart, 9 Ariz. App. 101 , 103 (1969) (“The appellant was obligated to file either affidavits or some other evidence controverting those facts alleged to be true by the appellee's affidavit. When [it] failed to do so, the facts stated by the appellee[] were to be considered as true.”). The trial court did not err in granting Yslas summary judgment on his non-payment of wages claim. II. The trial court did not err in finding that Sterling did not have a good faith basis for withholding commissions and did not abuse its discretion in trebling damages. ¶12 Sterling further contends that the trial court erred in awarding Yslas treble damages under A.R.S. § 23–355(A), which provides that when an employer “fails to pay wages due” to an employee, that employee “may recover . . . an amount that is treble the amount of the unpaid wages.” Employers are permitted to withhold employee wages when they reasonably dispute in good faith the amount of wages due, including any “set-off” the employer asserts against the employee. A.R.S. § 23–352(3). We review the trial court’s application of § 23–355 de novo, but if the withholding of wages is neither reasonable nor in good faith, we review the decision to award treble damages for an abuse of discretion. Swanson v. Image Bank, Inc., 202 Ariz. 226 , 238 (App. 2002), aff'd in part, vacated in part, 206 Ariz. 264 (2003). The trial court committed no error and did not abuse its discretion in awarding Yslas treble damages. ¶13 Sterling argues that treble damages were not appropriate because it had a good faith dispute about the amount of wages due in two respects. First, it claims that its policy of denying post-employment commissions to those employees, like Yslas, whom it discharges for poor performance created a good faith dispute about the amount owed. However, as Sterling’s owner admitted, Sterling never told Yslas about the policy, so it cannot be the basis of a good faith dispute. See Schade, 158 Ariz. at 13 (an employer cannot withhold wages for a reason not communicated to the employee). 5  YSLAS v. SMS Decision of the Court ¶14 Second, Sterling claims that it had a good faith dispute about the amount owed because it had tort claims against Yslas that could result in a set-off if damages were awarded. But although Section 23–352(3) allows an employer to withhold wages based on a counterclaim or “any claim of debt, reimbursement, recoupment or set-off” it may have against the employee, the claim or debt must arise out of the employment relationship. Op. Att. Gen. No. I85-107, 1985 WL 70323 . The tort counterclaims for defamation, false light, and tortious interference with business relations do not arise out of its employment relationship with Yslas, but concern independent, post-employment conduct. Moreover, even if Yslas’s conduct did relate to his employment relationship, Sterling did not present evidence about the amount of the set-off. An employer can withhold only that portion of wages necessary to satisfy the counterclaim or debt. See Sanborn, 178 Ariz. at 429 (holding that “only the portion of wages which is disputed in good faith is exempted from treble damages.”). Furthermore, the trial court granted Yslas summary judgment on the counterclaims, and Sterling has not appealed. This is a concession that the claims do not provide any basis for a set-off. See State Farm Mut. Auto. Ins. Co. v. Tarantino, 114 Ariz. 420 , 422 (1977) (failing to contest issue on appeal deemed a concession). Sterling had no reasonable good faith dispute with Yslas and thus no legal basis to deny him wages, which entitled the trial court to consider a treble damages award. ¶15 The trial court did not abuse its discretion in awarding Yslas treble damages. Yslas was entitled to the commissions he had earned, and Sterling provided no basis to deny paying those commissions or to dispute the amount of the commissions. The trial court acted within its discretion in finding that Sterling’s failure to pay the commissions was unjust and in bad faith. 6  YSLAS v. SMS Decision of the Court CONCLUSION ¶16 For the reasons stated, we affirm the grant of summary judgment for $17,668.94 in unpaid wages trebled to $53,006.82 pursuant to A.R.S. 23–335. Because Sterling did not prevail on appeal, we deny its request for attorneys’ fees. As the prevailing party, Yslas is entitled to his costs incurred in this appeal upon compliance with ARCAP 21. AMY M. WOOD • Clerk of the Court FILED: AA 7

2020-12-01 16:02:14.537317+00

http://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2020/1%20CA-CV%2020-0202%20Everson.pdf

NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. IN THE ARIZONA COURT OF APPEALS DIVISION ONE DEREK EVERSON, a married man, Plaintiff/Appellee, v. DAVID TUCCI and JANE DOE TUCCI, husband and wife; 137 ECOR, LLC, an Arizona limited liability company, et al ., Defendants/Appellants. No. 1 CA-CV 20-0202 FILED 12-1-2020 Appeal from the Superior Court in Yavapai County No. P1300CV201800555 The Honorable Krista M. Carman, Judge AFFIRMED COUNSEL The Cavanagh Law Firm PA, Phoenix By Kerry M. Griggs, Joshua M. Conway Counsel for Plaintiff/Appellee Davis Blase Stone & Holder PLLC, Scottsdale By Greg R. Davis, Robin L. Dugas Counsel for Defendants/Appellants  EVERSON v. TUCCI, et al. Decision of the Court MEMORANDUM DECISION Judge Cynthia J. Bailey delivered the decision of the Court, in which Presiding Judge Randall M. Howe and Judge Kent E. Cattani joined. B A I L E Y, Judge: ¶1 David Tucci and 137 ECOR, LLC (“ECOR”) (together, “Appellants”) argue the superior court erred in granting summary judgment to Derek Everson on Everson’s claims for breach of contract. We affirm. FACTS AND PROCEDURAL HISTORY ¶2 In December 2015, Tucci and Everson executed a writing titled, “Operating Agreement of 137 ECOR, LLC, an Arizona limited liability company” (“Agreement”). The Agreement contemplated the purchase and development of mobile home lots near Prescott. It provided that Tucci would contribute $1 million to finance the project and have a sixty percent interest in the company and be its managing member. Everson would have a forty percent interest and run the development. After the company acquired the acreage but before it could finish the development, Tucci reconsidered the wisdom of the project, and he eventually sold the property without consulting Everson. ¶3 Everson sued, alleging breach of contract, breach of the implied covenant of good faith and fair dealing, negligent misrepresentation, unjust enrichment, fraud, and conversion. Appellants moved for summary judgment on Everson’s claims for breach of contract and breach of good faith. Appellants argued that, assuming the Agreement was valid and in force, it allowed Tucci, as manager, to sell the property without Everson’s consent because Tucci was a majority owner of the company. Everson filed a cross-motion for summary judgment, arguing that the Agreement allowed the manager of the company to sell the property only with approval of a “majority” of the members. ¶4 The superior court denied Appellants’ motion and entered judgment for Everson on his claims that Appellants breached the Agreement (and the covenant of good faith) by selling the property without Everson’s consent. The court reasoned that the provision of the Agreement 2  EVERSON v. TUCCI, et al. Decision of the Court requiring the consent of a “majority” meant the consent of a majority of the members, not the consent of a member or members who hold a majority interest in the company. ¶5 Tucci moved for reconsideration, arguing for the first time that he did not sign the Agreement. He also argued the court incorrectly interpreted the contract due to disputed material facts. The court denied Tucci’s motion. ¶6 After the court granted Tucci’s motion to dismiss Everson’s unjust enrichment, fraud, and punitive damages claims, the remaining claims and the issue of damages went to a jury. The jury found in favor of Tucci on conversion but awarded Everson $158,576 in contract damages, $427,560 in implied warranty damages, and $20,440 in negligent misrepresentation damages. The court granted Everson $93,270 in attorneys’ fees pursuant to A.R.S. § 12-341.01. ¶7 Tucci filed a timely notice of appeal. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1) and -2101(A)(1). DISCUSSION ¶8 On appeal, Tucci argues only that the superior court erred by entering summary judgment against him based on the language of the Agreement. Summary judgment is appropriate if the moving party is entitled to judgment as a matter of law and there is no genuine dispute as to any material fact. Ariz. R. Civ. Proc. 56(a); S & S Paving & Const., Inc. v. Berkley Reg’l Ins. Co., 239 Ariz. 512 , 514, ¶ 7 (App. 2016). It is also appropriate where the facts supporting a claim “have so little probative value, given the quantum of evidence required,” that no reasonable person could find for its proponent. Orme Sch. v. Reeves, 166 Ariz. 301 , 309 (1990); see Ariz. R. Civ. P. 56(e). We review questions of law de novo but review the facts in the light most favorable to the party against whom judgment was entered. See Nelson v. Phx. Resort Corp., 181 Ariz. 188 , 191 (App. 1994). ¶9 The Agreement gave Tucci, as manager, broad powers to conduct the business of the company, except that it specifically stated that “[t]he affirmative vote of a Majority of the members is required to . . . sell . . . all of the assets, or any part thereof, of the company.” The Agreement did not define “Majority of the members,” and Appellants contend that Tucci constituted a majority of the members because he held a majority interest (60%) of the company. 3  EVERSON v. TUCCI, et al. Decision of the Court ¶10 “A general principle of contract law is that when parties bind themselves by a lawful contract, the terms of which are clear and unambiguous, a court must give effect to the contract as written.” Grubb & Ellis Mgmt. Servs., Inc. v. 407417 B.C., L.L.C., 213 Ariz. 83 , 86, ¶ 12 (App. 2006). When the terms of a contract are plain, its interpretation is a question of law for the court. Chandler Med. Bldg. Partners v. Chandler Dental Grp., 175 Ariz. 273 , 277 (App. 1993). “[T]he mere fact that the parties disagree as to its meaning does not establish ambiguity.” Id. ¶11 Appellants offer no legal authority for their argument that “Majority of the members” in the Agreement meant something other than the phrase’s plain meaning, which is a majority of the persons or entities who are members of the company. Moreover, the Agreement specified that there were two members of the company—Tucci and Everson—and specifically stated the percentages of ownership attributed to each of them. If the parties to the Agreement had intended “Majority of the members” to mean “members who hold a majority interest in the company,” we presume they would have said so. ¶12 Although Appellants now argue that the reference to “Majority of members” in the Agreement was ambiguous, they waived that contention by failing to timely raise it on summary judgment. See Sereno v. Lumbermens Mut. Cas. Co., 132 Ariz. 546 , 549 (1982). In fact, in their summary judgment motion, Appellants argued the Agreement plainly allowed him, as “Majority Member,” to sell the property without Everson’s consent. Although Appellants’ motion for reconsideration argued the Agreement’s reference to “majority” was ambiguous, we generally do not consider arguments raised for the first time in a motion for reconsideration. Powers v. Guar. RV, Inc., 229 Ariz. 555 , 561, ¶ 24 (App. 2012). ¶13 Appellants also argue that there were really three members of the company: Everson, Tucci, and Tucci’s trust. Appellants contend Tucci formed the company using his trust before any of the events at issue here, so that Everson effectively joined him and the trust as members in connection with the contemplated land transaction. Appellants thus argue that the required consent of the “Majority” of those three members was met because Tucci and his trust both approved of his sale of the property. But Appellants have waived this contention by failing to raise it in opposition to Everson’s motion for summary judgment. In any event, their assertion flies in the face of the plain language of the Agreement, which stated, “[t]he initial members of the company shall be David Tucci and Derek Everson,” without any mention of any trust. 4  EVERSON v. TUCCI, et al. Decision of the Court ¶14 Finally, Appellants argue that the superior court’s summary judgment ruling left many remaining issues about how the Agreement should be interpreted. Appellants have not shown, however, that any of those issues were material to the issue on which Everson’s contract claims turned, namely, whether the Agreement barred Tucci from selling the property without Everson’s consent. Factual disputes do not preclude summary judgment if the disputed facts are not material. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242 , 248 (1986). To be material, a fact must “affect the outcome of the suit under the governing law.” Id. The superior court correctly determined Everson was entitled to judgment as a matter of law because there was no genuine dispute as to any material fact. See S & S Paving, 239 Ariz. at 514, ¶ 7; Ariz. R. Civ. P. 56(a). ATTORNEYS’ FEES ¶15 We deny Appellants’ request for attorneys’ fees pursuant to A.R.S. § 12-341.01 because they did not prevail. We award Everson his costs on appeal, contingent upon compliance with Arizona Rule of Appellate Procedure 21. See A.R.S. § 12-341. CONCLUSION ¶16 For the reasons stated above, we affirm. AMY M. WOOD • Clerk of the Court FILED: AA 5

2020-12-01 16:02:15.964436+00

http://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2020/1%20CA-JV%2020-0218%20DAVID%20B.%20v.%20DCS%20A.B.pdf

NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. IN THE ARIZONA COURT OF APPEALS DIVISION ONE DAVID B., Appellant, v. DEPARTMENT OF CHILD SAFETY, A.B., Appellees. No. 1 CA-JV 20-0218 FILED 12-1-2020 Appeal from the Superior Court in Maricopa County No. JD533246 The Honorable Jeffrey A. Rueter, Judge AFFIRMED COUNSEL Robert D. Rosanelli Attorney at Law, Phoenix By Robert D. Rosanelli Counsel for Appellant Arizona Attorney General’s Office, Phoenix By Emily M. Stokes Counsel for Appellee Department of Child Safety  DAVID B. v. DCS, A.B. Decision of the Court MEMORANDUM DECISION Presiding Judge Jennifer M. Perkins delivered the decision of the Court, in which Judge David B. Gass and Judge Michael J. Brown joined. P E R K I N S, Judge: ¶1 David B. (“Father”) appeals from the juvenile court’s order adjudicating his son A.B. dependent as to him. Lorena B. (“Mother”) is not a party to this appeal. For the following reasons, we affirm the juvenile court’s order. FACTUAL AND PROCEDURAL BACKGROUND ¶2 Father and Mother are the biological parents of A.B., born in 2009. In February 2020, the Department of Child Safety (“DCS”) received a report that Father physically abused A.B. A.B. told a DCS investigator that Father grabbed him by his head and chin, lifted him off the floor, and threw him onto a couch. He reported being scared of Father. A.B. also reported he witnessed Father punch Mother and push her into a shower curtain at a hotel. Mother told DCS that Father had previously physically abused her. Father denied any wrongdoing, blaming all of the couple’s strife on A.B. ¶3 In early March, DCS removed A.B. from his parents and placed him with his half-sister and her husband. DCS then filed a dependency petition against both parents, alleging neglect based on domestic violence, substance abuse, and mental health. Specifically, the petition alleged A.B. witnessed Father engage in domestic violence altercations with Mother, who acknowledged several instances of abuse from Father. At a preliminary protective hearing in March 2020, Father agreed to attend an intake evaluation at TERROS to determine if he needed individual counseling with a domestic violence component. ¶4 The juvenile court held a dependency hearing at which both the DCS investigator and ongoing case manager testified. The DCS investigator testified that A.B. told her about witnessing domestic violence between Father and Mother. The investigator believed A.B. experienced emotional trauma from witnessing the domestic violence. She also noted Father, who blamed the domestic violence on A.B., failed to take responsibility for his involvement in these incidents. Father and Mother 2  DAVID B. v. DCS, A.B. Decision of the Court confirmed to the investigator they each had an order of protection against the other for domestic violence. Over the years, there were eight separate reports (some unsubstantiated) of child neglect and domestic violence between Father and Mother, leading the investigator to believe A.B. remained at great risk of harm. Father refused to participate in any domestic violence treatment services until the court ordered him to; the case manager believed Father was not taking the issues seriously because he would not address his domestic violence issues. ¶5 Father also testified. Father denied having a history of domestic violence with Mother, but he admitted to having arguments with Mother (mostly about A.B). He explained that after A.B. was removed, he was arrested for “hitting a box off [of a] chair” during an argument with Mother. A court in Fountain Hills required Father to participate in domestic violence classes as a result of that incident. Father admitted to the orders of protection he and Mother had obtained against each other, citing arguments over A.B. A judge quashed both orders. ¶6 After the hearing, the juvenile court found DCS proved, by a preponderance of the evidence, A.B. was dependent as to Father on three of the four alleged grounds. The court pointed to the testimony regarding the parents’ history of domestic violence incidents, including the dueling orders of protection. The court also noted Father’s admission of engaging in “verbal arguments” (but not domestic violence) and that Father recently pled guilty to a domestic violence offense involving Mother. Finally, the court relied on Father’s failure to seek treatment or complete any services to address his domestic violence issues. Father timely appealed. We have jurisdiction under Article 6, Section 9 of the Arizona Constitution, A.R.S. §§ 8-235(A) and 12-120.21(A)(1), and Arizona Rule of Procedure for Juvenile Court 103(A). DISCUSSION ¶7 We review dependency orders for an abuse of discretion. Shella H. v. Dep’t of Child Safety, 239 Ariz. 47 , 50, ¶ 13 (App. 2016). The juvenile court has a great deal of discretion in dependency cases because the primary concern is the child’s best interests. Arturo D. v. Dep’t of Child Safety, 249 Ariz. 20 , 25, ¶ 16 (App. 2020). We will accept the juvenile court’s findings of fact unless they are clearly erroneous and will affirm unless no reasonable evidence supports the dependency finding. Joelle M. v. Dep’t of Child Safety, 245 Ariz. 525 , 527, ¶ 9 (App. 2020). 3  DAVID B. v. DCS, A.B. Decision of the Court ¶8 A dependent child is one without a parent or guardian capable of exercising “proper and effective parental care and control” or one with an “unfit” home because of neglect. A.R.S. § 8-201(15)(a)(i), (iii). Neglect occurs when a parent is unable or unwilling “to provide [a] child with supervision, food, clothing, shelter or medical care if that inability or unwillingness causes unreasonable risk of harm to the child's health or welfare.” A.R.S. § 8-201(25)(a). The juvenile court will find a child dependent if DCS proves the allegations in the dependency petition by a preponderance of the evidence presented. A.R.S. § 8-844(C)(1)(a)(iii). ¶9 On appeal, Father argues that even if the past incidents between he and Mother are characterized as domestic violence, they do not rise to the level of neglect. He notes that DCS determined several reports of domestic violence between he and Mother were unsubstantiated and that A.B. did not witness some of those incidents. ¶10 A “substantiated and unresolved threat” of domestic violence is sufficient to support a finding of dependency even when the domestic violence is not “continuous or actively occurring.” Shella H., 239 Ariz. at 51, ¶ 16. This is particularly true when Father completely denies domestic violence is present. See id. The juvenile court found that Father refused to participate in domestic violence services or admit fault. The case manager testified that despite A.B. not witnessing all of the alleged domestic violence incidents, those incidents demonstrate the parents’ erratic behavior and an unwillingness to change their behavior for A.B.’s safety. And Father admitted to being arrested for a domestic violence offense after DCS removed A.B., indicating that the threat of domestic violence is unresolved. ¶11 DCS representatives testified to multiple domestic violence incidents involving Father. He attempted to contradict this evidence by downplaying these incidents as mere arguments or disagreements. “We defer to the superior court, which heard and weighed the evidence, observed the parties and witnesses, gauged credibility and resolved questions of fact.” Joelle M., 245 at 528, ¶ 18. We decline Father’s invitation to reweigh the evidence. See id. ¶12 The juvenile court did not abuse its discretion because the record contains reasonable evidence to support the allegation of neglect due to domestic violence. We need not address the remaining grounds in the dependency petition. See Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246 , 251, ¶ 27 (2000) (appellate court need not address other statutory grounds for terminating parent’s rights if there is sufficient evidence of one ground). 4  DAVID B. v. DCS, A.B. Decision of the Court CONCLUSION ¶13 We affirm the juvenile court’s dependency finding. AMY M. WOOD • Clerk of the Court FILED: AA 5

2020-12-01 16:02:16.955043+00

http://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2020/1%20CA-CV%2020-0069%20BROWN%20v.%20SMITH.pdf

NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. IN THE ARIZONA COURT OF APPEALS DIVISION ONE In re the Matter of: TARA JANE BROWN, Petitioner/Appellant, v. JEFFREY R. SMITH, Respondent/Appellee. No. 1 CA-CV 20-0069 FC FILED 12-1-2020 Appeal from the Superior Court in Maricopa County No. FC2012-090788 The Honorable Suzanne Scheiner Marwil, Judge AFFIRMED COUNSEL Alongi Law Firm PLLC, Phoenix By Thomas P. Alongi Counsel for Petitioner/Appellant Collins & Collins LLP, Phoenix By Joseph E. Collins Counsel for Respondent/Appellee  BROWN v. SMITH Decision of the Court MEMORANDUM DECISION Presiding Judge Jennifer M. Perkins delivered the decision of the Court, in which Judge David B. Gass and Judge Michael J. Brown joined. P E R K I N S, Judge: ¶1 Tara Brown (“Mother”) appeals two aspects of the superior court’s order: (1) the re-affirmation of joint legal decision-making and (2) the modification of parenting time. For the following reasons, we affirm. FACTS AND PROCEDURAL BACKGROUND ¶2 Mother filed for dissolution of her marriage to Jeffrey Smith (“Father”) in 2012. The parties have three minor children. Although the parties originally agreed to share joint legal decision-making, Mother filed a petition in September 2015 to modify legal decision-making, parenting time, and child support. After an evidentiary hearing in March 2016, the superior court issued an order reflecting the parties’ agreement to maintain joint legal decision-making. The court also adjusted the parties’ summer parenting time to clarify scheduling for church camp and vacations. ¶3 Within a six-year period Mother and Father filed more than eight pleadings seeking court intervention in their disputes regarding decision-making and parenting time. They often designated these issues as emergencies. For example, Father contested a prior superior court ruling pertaining to one child’s baptism, despite previously agreeing to raise the children in that faith. After Father moved to reconsider, Mother claims he became “extremely uncooperative.” In response, Mother filed an emergency petition in March 2015 to enforce the baptism. ¶4 Mother filed another petition in February 2019, giving rise to this appeal, requesting sole legal decision-making with a duty of reasonable consultation. Mother also asked to restrict Father’s parenting time. Father filed a counter-petition, asking for joint legal decision-making with him designated as the final decision maker. Father also sought clarification on when either party could schedule summer vacations. The superior court held an evidentiary hearing in November 2019 and issued an order denying both parties’ legal decision-making modification requests and re-clarifying summer parenting time. 2  BROWN v. SMITH Decision of the Court ¶5 The superior court found “a substantial and continuing change exists because since the entry of [the earlier agreement] the parties have shown high conflict and an inability to effectively co-parent absent court intervention.” The court then determined that awarding final decision-making authority to either parent would go against the children’s best interests because “appointing a tie-breaker would likely lead to even less communication between the parties.” ¶6 To improve the parties’ communication, the superior court ordered the parties to enroll in Co-Parenter, a scheduling and communication platform. The court also found that Father is “expressly deemed the primary parent of the children during the time school is not in session for summer break.” Mother’s summer parenting time includes the seven days after school breaks for summer and the seven days preceding the next academic year. The parties have until April 30 each year to pick a church camp for their children who are at least twelve years old, as the parties previously agreed. Church camp represents a seven-day exception to Father’s summer parenting time and all summer vacations must occur during each party’s assigned parenting time. ¶7 Mother timely appeals, and we have jurisdiction under Arizona Revised Statutes (“A.R.S.”) § 12-2101(A)(1). DISCUSSION ¶8 We review rulings on legal decision-making and parenting time for an abuse of discretion. See Owen v. Blackhawk, 206 Ariz. 418 , 420, ¶ 7 (App. 2003). We view the evidence in the light most favorable to sustaining the superior court’s findings and determine whether evidence in the record reasonably supports those findings. Vincent v. Nelson, 238 Ariz. 150 , 155, ¶ 17 (App. 2015). I. Legal Decision Making ¶9 Mother contends the superior court abused its discretion by imposing joint legal decision-making with no tie-breaking authority. She argues the court wrongfully characterizes both parties as “equal offenders” when it found a substantial and continuing change existed. When considering a petition for change of legal decision making, the court must first determine whether there has been a change in circumstances materially affecting the children’s welfare. Christopher K. v. Markaa S., 233 Ariz. 297 , 300, ¶ 15 (App. 2013). If the court finds such a change, it must then determine whether a change in legal decision making would be in the children’s best interests. Id. In a contested legal decision-making case, the 3  BROWN v. SMITH Decision of the Court court must consider eleven factors and then make explicit findings on the record about any factors it finds relevant. A.R.S. § 25-403(A). ¶10 After explaining the change in circumstances, the superior court made findings as to each factor. See id. Specifically, the court highlighted the parties’ escalating inability to communicate. The superior court also found that the children will “continue to need and benefit from dialogue between and input from both parents on their major life decisions.” Although Mother disagrees with the superior court’s order, arguing it is illogical and inconsistent, she fails to contest any specific factor from A.R.S. § 25-403, on which the superior court based its best interests finding. And the extensive pleadings filed by both parties support the court’s finding of mutual high conflict. ¶11 Mother also argues that joint legal decision-making, under these circumstances, contradicts Arizona law. See A.R.S. § 25-403.01(B)(3) (the court must consider the past, present, and future abilities of parents to cooperate in decision-making). But the superior court found that the parties avoid communicating and “clearly need the help of co-parenting supports such as Co-Parenter.” Supporting its findings, the court cited multiple instances of the parties’ poor communication, including Mother placing a GPS device on Father’s car, Father failing to notify Mother of their daughter receiving stitches, and Mother not sharing school schedules with Father. The superior court did not abuse its discretion in finding the children’s best interests support no modification of legal decision-making. II. Parenting Time ¶12 Mother argues the superior court erred by modifying the parties’ parenting time plan to grant Father an uninterrupted summer break, except for the seven days designated for church camp. The court highlighted the parties’ “difficulty interpreting the [c]ourt’s prior orders about scheduling regarding when they can schedule vacations and whether Father is intended to have more parenting time than Mother in the summer because he exercises long distance parenting time during the school year.” During the hearing, the court mentioned that it used summer parenting time to compensate Father for not being the primary parent during the school year. Then the court adjusted the parties’ parenting plan to avoid Mother receiving up to four weeks of parenting time during summer break. We find no reason to disrupt the superior court’s finding that the new summer parenting time is in the children’s best interests. 4  BROWN v. SMITH Decision of the Court ¶13 Mother also seems to argue that the superior court’s modification to summer parenting time amounts to a restriction, which can only be implemented if the child’s physical, mental, moral, or emotional health are endangered. See A.R.S. § 25-411(J). Limiting Mother’s options for taking summer vacations with the children to her allocated parenting time does not amount to a restriction under § 25-411(J). Mother did not disagree with how the court characterized the parties’ parenting situation, repeatedly describing it as “long-distance.” The court’s parenting time modification is consistent with other long-distance parenting plans. And the court found that the modifications to summer parenting time are in the children’s best interests, as required by § 25-411(J). We find no abuse of discretion. III. Attorneys’ Fees and Costs on Appeal ¶14 Mother requests attorneys’ fees and costs incurred in this appeal under A.R.S. § 25-324(A). We have considered the financial resources of both parties and the reasonableness of Mother’s arguments on appeal. We decline to award attorneys’ fees and costs. CONCLUSION ¶15 We affirm. AMY M. WOOD • Clerk of the Court FILED: AA 5

2020-12-01 16:02:17.890528+00

http://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2020/1%20CA-IC%2020-0011.pdf

NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. IN THE ARIZONA COURT OF APPEALS DIVISION ONE CLARK BARNELLA, Petitioner Employee, v. THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent, ISLAND TIME POOL SVC, Respondent Employer, WESCO INSURANCE CO, Respondent Carrier. No. 1 CA-IC 20-0011 FILED 12-1-2020 Special Action - Industrial Commission ICA Claim No. 20180-950445 Carrier Claim No. 2546393-1 The Honorable J. Matthew Powell, Administrative Law Judge AFFIRMED COUNSEL Clark Barnella, Surprise Petitioner Employee Industrial Commission of Arizona, Phoenix By Gaetano J. Testini Counsel for Respondent Broening Oberg Woods & Wilson, PC, Phoenix By Jerry T. Collen, Alicyn M. Freeman Counsel for Respondent Employer and Carrier MEMORANDUM DECISION Judge Paul J. McMurdie delivered the Court’s decision, in which Presiding Judge James B. Morse, Jr. and Judge Maria Elena Cruz joined. M c M U R D I E, Judge: ¶1 Clark Barnella filed this statutory special action to obtain a review of an award finding that his work-related injury is stationary and no longer needs active treatment. We find no error by the administrative law judge (“ALJ”) and, therefore, affirm. FACTS AND PROCEDURAL BACKGROUND ¶2 In 2017, while installing a swimming pool filter as an employee of Island Time Pool Svc., Barnella injured his left knee. His workers’ compensation claim was accepted by Wesco Insurance Co. (“Wesco”), and he received benefits. Shortly after the injury, Barnella had surgery to repair a torn meniscus in the knee. ¶3 In December 2017, Dr. Eric Feldman, who was treating Barnella, diagnosed him with chronic regional pain syndrome (“CRPS”). In May 2018, Wesco then sent Barnella to an IME conducted by Leon Ensalada, M.D., a pain management specialist with expertise in CRPS. Dr. Ensalada found that Barnella had chronic pain syndrome, complicated by disusing his left leg, but not CRPS. Dr. Ensalada also found that Barnella had reached maximum medical improvement for his knee injury.1 Barnella had another IME in November 2018 by a neurologist who found lower extremity 1 In his May 18 report, Dr. Ensalada wrote that Barnella had not reached maximum medical improvement, but in a July letter to the carrier’s lawyers he stated Barnella had reached maximum medical improvement. 2  BARNELLA v. ISLAND/WESCO Decision of the Court atrophy but did not recommend neurological treatment. In November 2018, a third IME was performed by an orthopedic surgeon who found that Barnella had reached maximum medical improvement with his knee. He rated Barnella with a permanent impairment of one percent of the whole person and three percent of the lower left extremity. He agreed that Barnella did not have CRPS. ¶4 In January 2019, Wesco discontinued temporary benefits and assessed Barnella with a three percent permanent disability of his lower left extremity. Barnella challenged that determination, claiming he had not reached maximum medical improvement. ¶5 The ALJ held a hearing at which Dr. Feldman testified about Barnella’s condition and recommended further treatment. He testified Barnella had CRPS, needed supportive care, and required work restrictions relating to his knee injury. He would not give an opinion regarding a permanent rating for Barnella’s knee impairment because he was “not trained in it” and did not “understand the whole system of grading disabilities.” Upon further questioning, he admitted that in December 2018, he had noted that Barnella had reached maximum medical improvement. He explained that statement as follows: I do not feel he’s going to see any further improvement at this time without -- I do feel there is further intervention that could help him, but I don’t necessarily see he’s going to get any better without any other treatment. Finally, he also testified that he “did not formally grade [Barnella’s] CRPS.” ¶6 The ALJ also heard testimony from Dr. Ensalada. He explained his reasons for concluding that Barnella did not have CRPS. He testified Barnella did not need any further active or supportive treatment for pain management, nor did he have any work restrictions. He stated that a better description of Barnella’s knee condition was “disuse atrophy.” ¶7 The ALJ issued an award finding Dr. Ensalada’s opinion to be more credible than Dr. Feldman’s. Accordingly, he issued an award finding that Barnella’s condition was stationary and closed the claim with a permanent impairment. This appeal followed. DISCUSSION ¶8 In reviewing workers’ compensation awards, we defer to the ALJ’s factual findings but independently review legal conclusions. Young v. 3  BARNELLA v. ISLAND/WESCO Decision of the Court Indus. Comm’n, 204 Ariz. 267 , 270, ¶ 14 (App. 2003). We will affirm an award if the evidence reasonably supports it after reviewing the evidence in a “light most favorable to sustaining the award.” Lovitch v. Indus. Comm’n, 202 Ariz. 102 , 105, ¶ 16 (App. 2002). An ALJ has the primary responsibility to resolve conflicts in medical opinion evidence. Carousel Snack Bar v. Indus. Comm’n, 156 Ariz. 43 , 46 (1988); Kaibab Indus. v. Indus. Comm’n, 196 Ariz. 601 , 609, ¶ 25 (App. 2000). We defer to the ALJ’s resolution of conflicting evidence and affirm the findings if any reasonable theory of the evidence supports them. Perry v. Indus. Comm’n, 112 Ariz. 397 , 398–99 (1975). ¶9 We see nothing in the record that would lead us to conclude the ALJ’s decision to give Dr. Ensalada’s opinion more weight than Dr. Feldman’s was unreasonable. Dr. Ensalada is a qualified expert, he explained his conclusions, and he described the information he used to arrive at them. Barnella’s dissatisfaction and disagreement with the ALJ’s decision to follow the IME physician’s opinion over a treating physician are not grounds to reverse an award. As noted, we defer to an ALJ’s resolution of conflicting evidence unless it is unreasonable. Carousel Snack Bar, 156 Ariz. at 46 (“Many factors enter into a resolution of conflicting evidence, including whether or not the testimony is speculative, consideration of the diagnostic method used, qualifications in backgrounds of the expert witnesses and their experience in diagnosing the type of injury incurred.”). CONCLUSION ¶10 We affirm the award. AMY M. WOOD • Clerk of the Court FILED: AA 4

2020-12-01 16:02:18.920546+00

http://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2020/1%20CA-JV%2020-0159%20ASAUNTE%20v.%20DCS,%20N.W.pdf

NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. IN THE ARIZONA COURT OF APPEALS DIVISION ONE ASAUNTE W., Appellant, v. DEPARTMENT OF CHILD SAFETY, N.W., Appellees. No. 1 CA-JV 20-0159 FILED 12-1-2020 Appeal from the Superior Court in Maricopa County No. JS519440 The Honorable Jennifer E. Green, Judge AFFIRMED COUNSEL John L. Popilek, PC, Scottsdale By John L. Popilek Counsel for Appellant Arizona Attorney General’s Office, Mesa By Amanda Adams Counsel for Appellee Department of Child Safety  ASAUNTE W. v. DCS, N.W. Decision of the Court MEMORANDUM DECISION Presiding Judge Jennifer M. Perkins delivered the decision of the Court, in which Judge Michael J. Brown and Judge Lawrence F. Winthrop joined. P E R K I N S, Judge: ¶1 Asaunte W. (“Mother”) appeals the juvenile court’s order terminating her parental rights to N.W. For the following reasons, we affirm. FACTUAL AND PROCEDURAL HISTORY ¶2 Mother gave birth to N.W. in May 2018. Mother consumed marijuana during pregnancy, and both tested positive for the drug at N.W.’s birth. The Department of Child Safety (“DCS”) intervened by filing an in-home dependency petition alleging that Mother was unable to parent due to substance abuse and mental health concerns. DCS referred Mother to Focused Family to receive individual, substance abuse, and domestic violence counseling. DCS also provided in-home services and implemented a family preservation team, hoping to keep N.W. with Mother. Mother complied with the family preservation team’s goals by completing the domestic violence and mental health portions but failing the sobriety component. ¶3 Mother initially struggled to regularly participate in domestic violence counseling. Although her counseling participation eventually improved, Mother could not avoid domestic violence incidents. In September 2018, police responded to an argument between Mother and her boyfriend (“Boyfriend”). No injuries were reported. Three months later, police returned under more troubling circumstances. During another argument with Mother, Boyfriend hurled her cellphone towards the ground, nearly hitting N.W. With a closed fist, Boyfriend also threw a punch, striking Mother in the face and knocking her down. Boyfriend turned his attention back to Mother’s cellphone, which he shattered. The arguing continued and escalated. Mother told Boyfriend to leave; instead, he grabbed a knife from a kitchen drawer. Sensing danger and screaming, Mother bolted from the apartment. This incident left Mother with a swollen lip, but she ultimately decided she did not want Boyfriend prosecuted for the incident. 2  ASAUNTE W. v. DCS, N.W. Decision of the Court ¶4 Approximately one month later, in January 2019, police responded to another domestic violence call involving Mother and Boyfriend. The incident began as a loud argument but became physical. Boyfriend pushed Mother in the chest, forcing her to the ground. Mother responded by angrily swinging a closed fist at Boyfriend’s car, cracking the windshield. Police consequently arrested Mother. ¶5 Mother had not disclosed her recent domestic violence incidents when DCS held a team decision making meeting (“TDM”) on January 28, 2019. Through this TDM, DCS sought to reengage Mother in attending services and ultimately decided to keep N.W. with Mother. When DCS received a hotline tip that Mother’s January 2019 domestic violence incident led to her arrest, it held another TDM on February 15, 2019. At the February TDM, DCS determined N.W. could not safely remain with Mother, who left the TDM before it concluded. ¶6 DCS’s concerns for N.W.’s safety intensified while trying to take custody of her. On the day before removal, DCS instructed Mother to place N.W. in daycare. Instead, Mother directed DCS’s employee to a smoke-filled apartment supposedly occupied by Mother’s friend, an unapproved caretaker. N.W. was “just apparently there for the day” and her diaper bag was “engrained with smoke.” The smoke worried DCS because of N.W.’s troubles with chronic congestion and difficulty breathing. Mother’s living arrangements also concerned DCS because Boyfriend and N.W.’s maternal great grandmother (“Grandmother”) were living in Mother’s apartment without DCS’s approval. ¶7 After removing N.W., DCS wanted Mother to reengage in domestic violence counseling. Mother’s relationship with Boyfriend and her previous relationship both involved domestic violence incidents, suggesting an ongoing concern. DCS first referred Mother to Terros for counseling, but Mother specifically requested to continue working with Focused Family for such counseling. DCS accommodated that request. Focused Family recommended Mother participate in twenty-six domestic violence group sessions, but Mother completed only five. In October 2019, DCS petitioned to terminate Mother’s parental rights on three grounds: substance abuse (marijuana); six months’ time in care; and prior termination. ¶8 The juvenile court held a one-day consolidated dependency and termination hearing in February 2020. By that time, N.W. had been in an out-of-home placement since February 2019. DCS called two case managers, Eileen Grant and Chelsea Jarman to testify. Both case managers 3  ASAUNTE W. v. DCS, N.W. Decision of the Court testified to Mother’s inconsistent participation in services provided by DCS. Specifically, Mother failed to provide consistent drug testing or regularly attend group counseling sessions. She also struggled to meaningfully participate in parental skill sessions. ¶9 Mother also missed more than half of her supervised visits with N.W. When Jarman tried to schedule supervised visits, Mother sometimes failed to confirm visits or adequately communicate about scheduling. For example, Jarman cancelled one visit in January 2020 because Mother was uncooperative. Mother’s supervised visit with N.W. was in Tempe. Two hours before the scheduled visitation time, Mother contacted Jarman to explain that she would be an hour late, despite already being in Tempe. Mother no-showed for another visit with N.W. on the following day. ¶10 Mother also testified. She acknowledged she was involved in domestic violence altercations even after successfully completing domestic violence courses in June or July 2018. She also testified to subsequently not completing domestic violence classes or counseling after the altercations with Boyfriend. ¶11 In April 2020, the juvenile court issued a twenty-two-page minute entry terminating Mother’s rights to N.W. on two grounds alleged in the petition. The juvenile court found severance to be in N.W.’s best interest because she is in a placement that is both adoptive and meets all of her needs. Mother timely appealed, challenging only the court’s ruling on the statutory grounds. DISCUSSION ¶12 We review the termination of parental rights for an abuse of discretion. Titus S. v. Dep’t of Child Safety, 244 Ariz. 365 , 369, ¶ 15 (App. 2018). This court will uphold the juvenile court’s findings of fact “if supported by adequate evidence in the record.” Christy C. v. Ariz. Dep’t of Econ. Sec., 214 Ariz. 445 , 452, ¶ 19 (App. 2007) (quoting State v. Smith, 123 Ariz. 243 , 247 (1979)). “The juvenile court, as the trier of fact in a termination proceeding, is in the best position to weigh the evidence, observe the parties, judge the credibility of witnesses, and make appropriate findings.” Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278 , 280, ¶ 4 (App. 2002). ¶13 Before irrevocably severing parental rights, “due process requires that the State support its allegations by at least clear and convincing evidence.” Santosky v. Kramer, 455 U.S. 745 , 747-48 (1982). “[S]uch a standard adequately conveys to the factfinder the level of 4  ASAUNTE W. v. DCS, N.W. Decision of the Court subjective certainty about his factual conclusions necessary to satisfy due process.” Id. at 769 . ¶14 To terminate the parent-child relationship, the juvenile court must find, by clear and convincing evidence, parental unfitness based on at least one statutory ground under A.R.S. § 8-533(B). Kent K. v. Bobby M., 210 Ariz. 279 , 284, ¶ 22 (2005). ¶15 The juvenile court may terminate parental rights based on six months’ time in care if: (1) the child is under three years old, (2) the child has been in an out-of-home placement for at least six months, (3) DCS “has made a diligent effort to provide appropriate reunification services,” and (4) “the parent has substantially neglected or willfully refused to remedy the circumstances that cause the child to be in an out-of-home placement.” A.R.S. § 8-533(B)(8)(b). The relevant circumstances are those existing at the time of termination. See Marina P. v. Ariz. Dep’t of Econ. Sec., 214 Ariz. 326 , 330, ¶ 22 (App. 2007). ¶16 This termination ground focuses on a parent’s efforts to cure the circumstances preventing reunification. Id. at 329, ¶ 20. Objectively demonstrated, good faith efforts to comply with reunification services will preclude termination on this basis. See Maricopa Cty. Juv. Action No. JS- 501568, 177 Ariz. 571 , 576 (App. 1994). Substantial noncompliance during the statutory time frame or making only “sporadic, aborted attempts to remedy” the circumstances (even if the parent later begins recovery efforts before the severance hearing) supports a finding of substantial neglect. See id. ¶17 Mother does not dispute N.W.’s age, time spent in care, or the adequacy of services. Instead, Mother argues DCS failed to prove she “substantially neglected or willfully refused to remedy the circumstances” leading to N.W.’s out-of-home placement. Specifically, Mother argues the juvenile court’s domestic violence analysis was a ruse, hiding its true concern for Mother’s chronic marijuana use. Mother claims to have remedied the circumstances underlying N.W.’s removal because she ended her relationship with Boyfriend. But the record supports the juvenile court’s finding to the contrary. DCS’s reunification plan and services included Mother attending twenty-six group counseling sessions to address domestic violence concerns. Mother only attended five of those sessions. The juvenile court noted that if Mother successfully completed DCS’s services, “reunification likely would have occurred.” These services included supervised visitation with N.W., and Mother missed more than half of these visitation opportunities. 5  ASAUNTE W. v. DCS, N.W. Decision of the Court ¶18 The record supports the juvenile court’s finding that Mother substantially neglected or willfully refused to remedy the circumstances necessitating N.W.’s out-of-home placement. Thus, it did not abuse its discretion by terminating Mother’s parental rights based on six months’ time in care. Given this determination, we need not address the remaining severance ground (termination of prior child relationship for the same ground within two years) in the petition. See Michael J. v. Dep’t of Econ. Sec., 196 Ariz. 246 , 251, ¶ 27 (2000). CONCLUSION ¶19 We affirm. AMY M. WOOD • Clerk of the Court FILED: AA 6

2020-12-01 16:02:55.612901+00

http://courts.delaware.gov/Opinions/Download.aspx?id=313630

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE STATE OF DELAWARE, ) ) v. ) ID Nos. 1710011753 ) Cr. A. Nos. IN17-11-0345, etc. RICHARD M. CUSHNER, ) Defendant.) Submitted: November 6, 2020 Decided: December 1, 2020 ORDER DISMISSING MOTION FOR POSTCONVICTION RELIEF AND GRANTING COUNSEL’S MOTION TO WITHDRAW (1) This 1st day of December, 2020, upon consideration of Defendant Richard M. Cushner’s Motion for Postconviction Relief (D.I. 39), his postconviction attorneys’ Motion to Withdraw and supplement (D.I. 50 and 51), and the record in this case, it appears to the Court that: (2) In July 2018, following a two-day jury trial, Richard M. Cushner, was convicted of one count of third degree burglary and related criminal mischief charges.1 (3) Several months later, Cushner was sentenced to serve, inter alia, a prison term under the provisions of the Habitual Criminal Act.2 1 D.I. 15. 2 D.I. 20-21.  (4) Cushner filed a direct appeal to the Delaware Supreme Court. His convictions and sentence were affirmed.3 (5) Cushner then filed a first and timely pro se motion for postconviction relief under Superior Court Criminal Rule 61 and a request for appointment of counsel to assist him with that motion.4 In sum, Cushner’s pro se prolix filing devolved to two main contentions with numerous subparts: (1) a claim of ineffective assistance of counsel complaining that his trial counsel failed to object to a leading question, failed to properly conduct cross-examination of a key witness, and failed to call witnesses he believed would provide exculpatory evidence; and (2) a sufficiency of evidence claim. (6) In accord with this Court’s Criminal Rule 61(e), Cushner was appointed postconviction counsel (“PCR Counsel”).5 PCR Counsel have now filed a Motion to Withdraw pursuant to Rule 61(e)(7) with a detailed supporting memorandum.6 PCR Counsel assert that, based upon a careful and complete examination of the record, there are no meritorious grounds for relief. 3 Cushner v. State, 214 A.3d 443 (Del. 2019). 4 D.I. 39 and 40. 5 D.I. 43. 6 D.I. 50 and 51. -2-  (7) Under this Court’s Criminal Rule 61(e)(7): If counsel considers the movant’s claim to be so lacking in merit that counsel cannot ethically advocate it, and counsel is not aware of any other substantial ground for relief available to the movant, counsel may move to withdraw. The motion shall explain the factual and legal basis for counsel’s opinion and shall give notice that the movant may file a response to the motion within 30 days of service of the motion upon the movant.7 (8) Cushner’s PCR Counsel have represented that, after careful review of Cushner’s case, they have determined that Cushner’s claims are so lacking in merit that they cannot ethically advocate them; and further, that PCR Counsel are not aware of any other substantial ground for relief.8 PCR Counsel provided Cushner with a copy of the Motion and advised Cushner of his ability under Rule 61(e)(7) to file a response within 30 days.9 Cushner filed no such response. (9) The Court gave Cushner an additional opportunity to file any response to the motion to withdraw and notice that the Court had—as required by Criminal Rule 61(d)—carefully reviewed his filings, those of postconviction counsel, and the complete record of the prior proceedings in this case. The Court gave further notice that from that thorough review, it plainly appeared that Cushner was not entitled to 7 SUPER. CT. CRIM. R. 61(e)(7). 8 Mot. to Withdraw at 27. 9 D.I. 50. -3- postconviction relief. And so, the Court warned that Cushner’s continued failure to file either a response to the motion to withdraw or other notice of his intent to further prosecute his postconviction application would be deemed his consent to the Court’s entry of summary dismissal under Criminal Rule 61(d)(5).10 Again, Cushner has failed to respond. (10) “In order to evaluate [Cushner’s Motion for Postconviction Relief], and to determine whether [PCR Counsel’s Motion to Withdraw] should be granted, the court should be satisfied that [PCR Counsel] made a conscientious examination of the record and the law for claims that could arguably support [Cushner’s] Rule 61 motion. In addition, the court should conduct its own review of the record in order to determine whether [Cushner’s] Rule 61 motion is devoid of any, at least, arguable postconviction claims.”11 (11) Having reviewed the record carefully, the Court has concluded that Cushner’s initial pro se claims (which he now appears to have abandoned) are without merit, that no other substantial ground for relief exists, and it plainly appears that Cushner is not entitled to postconviction relief. Accordingly, Cushner’s Motion 10 (D.I. 70). 11 State v. Coston, 2017 WL 6054944 , at *2 (Del. Super. Ct. Dec. 7, 2017) (internal citations and quotations omitted). -4- for Postconviction Relief is DISMISSED under Criminal Rules 61(d)(5) and (e)(7) and PCR Counsel’s Motion to Withdraw is GRANTED. IT IS SO ORDERED, /s/ Paul R. Wallace Paul R. Wallace, Judge Original to Prothonotary cc: Mr. Richard Cushner, pro se Brian L. Arban, Deputy Attorney General Marc C. Petrucci, Deputy Attorney General Patrick J. Collins, Esquire Kimberly A. Price, Esquire Nicole M. Walker, Esquire Andrew J. Meyer, Esquire -5-

2020-12-01 16:02:57.454818+00

http://courts.delaware.gov/Opinions/Download.aspx?id=313650

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE SHAYANA MCNAIR, ) ) Plaintiff, ) ) v. ) ) C.A. No. N19C-06-084 CLS KHALIL WILLIAMS, and ) ANTHONY M. TURNER ) ) Defendant. ) ) ) Date Submitted: August 28, 2020 Date Decided: November 30, 2020 Upon Defendants’ Motion for Summary Judgment DENIED. Upon Plaintiff’s Motion to Extend Discovery Deadlines GRANTED. Order Gary S. Nitsche, Esquire, Weik Nitsche & Dougherty LLC, Wilmington, Delaware, Attorney for Plaintiff. Robert T. Graney, Esquire, Graney, Chrissinger & Baumberger Law Offices, Wilmington, Delaware, Attorney for Defendant Khalil Williams. David C. Malatesta, Jr., Esquire, Kent & McBride, Wilmington, Delaware, Attorney for Defendant Anthony Turner. SCOTT, J.  Before the Court is Defendants’ Motion for Summary Judgment and Plaintiff’s Motion to Extend Discovery Deadlines. For the following reasons, the Defendants’ Motion is DENIED and Plaintiff’s Motion is GRANTED. BACKGROUND Plaintiff Shayana McNair (“Ms. McNair”) was a passenger in Mr. Williams’ vehicle when she allegedly incurred personal injuries related to a motor vehicle accident on May 7, 2018. On June 11, 2019, Ms. McNair initiated this suit by filing a Complaint against Defendants Khalil Williams (“Mr. Williams”) and Anthony M. Turner (“Mr. Turner”).1 On December 11, 2019, this Court entered a Trial Scheduling Order and scheduled a three-day trial to take place on April 14, 2021. Ms. McNair’s expert deadline was set for February 7, 2020. On September 25, 2019, Ms. McNair produced a “Narrative Report” from Dr. Damon Cary (“Dr. Cary”). It is unclear whether Ms. McNair’s “narrative report” is an expert report, however Ms. McNair has stated that she produced the “narrative report” in her Rule 3h document production.2 The Court has not received a copy of Dr. Cary’s Narrative Report. On July 15, 2020, after the close of discovery, Mr. Williams filed a Motion for Summary Judgment against Ms. McNair for Ms. McNair’s failure to identify any 1 Collectively, the “Defendants.” 2 Pl.’s Resp. to Def.’s Mot. For Summ. J. at p. 1. 1 experts by February 7, 2020 deadline. On July 23, 2020, Mr. Turner joined Mr. Williams in his Motion for Summary Judgment. On July 31, 2020, Ms. McNair filed a Motion to Extend the Discovery Deadlines. On August 12, 2020, Mr. Williams filed a Response to Ms. McNair’s Motion to Extend the Discovery Deadlines. On August 18, 2020, this Court reserved decision and stated that the Court would issue its decision with the decision for the pending Motion for Summary Judgment. On August 28, 2020, Ms. McNair filed her Response to Mr. Williams’ Motion for Summary Judgment. STANDARD OF REVIEW Under Superior Court Civil Procedure Rule 56, summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.3 Summary judgment will not be granted if material facts are in dispute or if “it seems desirable to inquire more thoroughly into the facts to clarify the application of the law to the circumstances.”4 The Court considers all facts in a light most favorable to the non-moving party.5 In a Motion for Summary Judgment, the moving party bears the initial burden 3 Super. Ct. Civ. R. 56(c). 4 Infante v. Horizon Servs., Inc., 2019 WL 3992101 , at *1 (Del. Super. Aug. 23, 2019). 5 Id. 2 of showing that there are no material issues of fact.6 If the moving party makes this showing, then the burden shifts to the nonmoving party to show that there are material issues of fact.7 PARTIES’ ASSERTIONS A. Mr. Williams’ Motion for Summary Judgment Mr. Williams moves for summary judgment “on the ground that [Ms. McNair] has not produced evidence the support the essential elements of the allegations in her Complaint.”8 Mr. Williams contends that, because Dr. Cary allegedly does not hold an active medical license, Dr. Cary is not a competent medical expert and precluded from testifying at trial. Notably, Mr. Williams uses no case law to support this contention. However, Mr. Williams does not stop here. Mr. Williams takes it one step further and states that, since Dr. Cary is not a competent medical expert, Ms. McNair has not identified a medical expert to establish proximate cause and, and a result, fails to make a prima facie case. In this statement, Mr. Williams implies here that a medical expert, in a personal injury matter arising from an automobile 6 Moore v. Sizemore, 405 A.2d 679 , 680 (Del. 1979). 7 Id. at 681 . 8 Def.’s Mot. for Summ. J. at paragraph 1. 3 accident, must hold an active medical license to testify as to matters of proximate causation at trial. B. Ms. McNair’s Response Ms. McNair submits that Mr. Williams’ Motion for Summary Judgment is premature and requests, pursuant to Superior Court Civil Rule 16, that the Scheduling Order be amended to accommodate further development of the record.9 Ms. McNair states that the reason for her Motion to Extend the Discovery Deadlines “is due to [Ms. McNair’s] additional treatment with Dr. Lingenfelter at First State Orthopedics.”10 Regarding the ability of Dr. Cary’s ability to testify as to proximate causation, Ms. McNair claims that Mr. Williams’ assertion is misleading because he confuses Dr. Cary’s license to practice medicine and his controlled substance license. Ms. McNair states that “one can still practice medicine without a controlled substance license.”11 Moreover, Ms. McNair claims that the evidence supporting Mr. Williams’ claim is contradictory because, although his controlled substance license indicates that his license is expired, the expiration date is listed as June 30, 2021. Last, Ms. McNair states that her “treatment with Dr. Cary and the narrative report 9 Pl.’s Resp. to Def.’s Mot. for Summ. J. at p. 2. 10 Pl.’s Resp. to Def.’s Mot. for Summ. J. at p. 2. 11 Pl.’s Resp. to Def.’s Mot. for Summ. J. at p. 3. 4 authored by Dr. Cary was [created] while Dr. Cary ha[d] an active medical license.”12 DISCUSSION A. Motion for Summary Judgment Rule 56(c) mandates the granting of summary judgment “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and one which that party will bear the burden of proof at trial.”13 Whether Dr. Cary, Ms. McNair’s medical expert, is qualified to testify as an expert witness concerns a material issue that this Court will approach closer to trial. It is unclear whether Dr. Cary is permanently suspended from practicing medicine. However, whether Dr. Cary has a license to practice medicine is not determinative of his ability to testify in this suit because an expert witness needs to only show qualification by knowledge, skill, experience, training, or education.14 B. Motion for Extension of Discovery Deadlines Trial is scheduled for April 14, 2021, but it is possible that this trial may be rescheduled for a later date due to COVID-19. Parties are to confer and submit an 12 Pl.’s Resp. to Def.’s Mot. for Summ. J. at p. 4. 13 Manucci v. The Stop’n’Shop Companies, Inc., 1989 WL 48587 , at *4 (Del. Super.). 14 D.R.E. 702. 5 amended Scheduling Order to permit Ms. McNair a reasonable amount of time to identify experts and submit any necessary expert reports. CONCLUSION For the forgoing reasons, Defendants’ Motion for Summary Judgment is DENIED and Ms. McNair’s Motion to Extend Discovery Deadlines is GRANTED. IT IS SO ORDERED. The Honorable Calvin L. Scott, Jr. 6

2020-12-01 16:02:58.400567+00

http://courts.delaware.gov/Opinions/Download.aspx?id=313640

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE SHANEIA HARRIS, ) ) Claimant-Appellant, ) ) v. ) C.A. No. N19A-11-005 VLM ) DELAWARE DEPARTMENT OF ) LABOR and ) THE UNEMPLOYMENT ) INSURANCE APPEAL BOARD ) ) Employer-Appellees. ) ORDER Date Submitted: September 3, 2020 Date Decided: November 30, 2020 Upon Consideration of Appellant’s Appeal of the Decision of the Unemployment Insurance Appeal Board, AFFIRMED. John D. Stant II, Esquire, Legal Services Corporation of Delaware, Inc., Wilmington, DE. Attorney for Appellant. Stacey X. Stewart, Esquire, Department of Justice, Wilmington, DE. Attorney for the Delaware Department of Labor. Monica L. Townsend, Esquire, Department of Justice, Wilmington, DE. Attorney for Appellee Unemployment Insurance Appeal Board. MEDINILLA, J. 1  I. INTRODUCTION Appellant, Shaneia Harris (“Harris”) appeals a decision of the Unemployment Insurance Appeal Board (“Board”) that found that the Delaware Department of Labor (“Employer”) discharged her for just cause, thereby disqualifying her from receiving unemployment insurance benefits pursuant to 19 Del. C. § 3314(2). Upon consideration of the arguments, submissions of the parties, and the record in this case, the Court hereby finds as follows: 1. Harris worked as part-time (casual employment) security guard for approximately six months from October 2018 to April 2019.1 In the early months of her employment, Harris’s supervisor appeared relatively flexible and allowed Harris to take days off as needed.2 It is undisputed that attendance and tardiness issues started in December and lasted through the remainder of her time with Employer. 3 2. On March 22, 2019, she was verbally warned that her attendance would have to improve. 4 On March 25, 2019, Harris’s supervisor sent an email confirming that her attendance needed to improve,5 stating, “further [attendance issues] will be 1 See Opening Brief, D.I. 9, at 1 [hereinafter Opening Br.]. 2 See Opening Br. at 1; R. at 23. 3 From December 27 through April 22, 2019, Employer recorded fifteen instances of lateness or absenteeism. R. at 55. 4 See Opening Br. at 2; R. at 26. 5 R. at 51. 2 considered insubordination and dealt with accordingly.” 6 Thereafter, Employer documented seven additional attendance issues and terminated her employment on April 24, 2019.7 3. Harris filed a claim for unemployment benefits with the Division of Unemployment Insurance. 8 On May 21, 2019, a Claims Deputy found that Employer discharged Harris for just cause disqualifying her from unemployment benefits pursuant to 19 Del. C. § 3314(2).9 Harris timely appealed to an Appeals Referee.10 On June 18, 2019, following a hearing, the Appeals Referee affirmed the Claims Deputy’s decision that Employer met its burden of proof that Harris’s termination was for just cause. Harris timely appealed the decision to the Unemployment Insurance Appeal Board (Board.)11 4. On October 23, 2019, the Board heard Harris’s appeal.12 Harris argued the Appeals Referee’s decision was legally incorrect because she never received an unequivocal warning. 13 The Board disagreed. On October 28, 2019, the Board upheld the Appeals Referee’s decision finding that the email Harris received from 6 Id. 7 See Opening Br. at 4; R. at 51. 8 See Opening Br. at 2. 9 See id.; R. at 1-2. 10 See Opening Br. at 2; R. at 7. 11 See Opening Br. at 2; R. at 54-55. 12 See Opening Br. at 4. 13 Id.; R. at 64. 3 her supervisor was a “clear warning” of the disciplinary consequences that occurred. 14 5. On November 6, 2019, Harris appealed the Board’s decision. On December 30, 2019, Harris, through counsel, filed her opening brief. On March 10, 2020, Employer filed its Response. The same day, the Board filed a letter stating it took no position. Due to the global pandemic, review of this matter was temporarily stayed.15 On July 21, 2020, Harris filed her Reply brief and this Court was assigned the matter on September 3, 2020. The matter is now ripe for review. II. STANDARD OF REVIEW 6. On an appeal from the Board, this “[C]ourt must determine whether the findings and conclusions of the Board are free from legal error” and whether they are “supported by substantial evidence in the record.” 16 Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”17 The Court does not “weigh the evidence or make determinations 14 R. at 75. 15 The United States of America and the State of Delaware declared states of emergency due to COVID-19 that resulted in court closures to address public safety concerns. Per Administrative Directives of the Supreme Court of the State of Delaware, “[u]nder the authority of 10 Del. C. § 2004, the judicial emergency for all State courts and their facilities in Delaware [was] extended for another 30 days effective November 5, 2020 . . . .” Administrative Order No. 12 Extension of Judicial Emergency (Del. Nov. 3, 2020). 16 Wilson v. Unemployment Ins. Appeal Bd., 2011 WL 3243366 , at *2 (Del. Super. July 7, 2011) (citing Unemployment Ins. Appeal Bd. v. Martin, 431 A.2d 1265 , 1266 (Del. 1981); Pochvatilla v. United States Postal Serv., 1997 WL 524062 , at *2 (Del. Super. June 9, 1997); 19 Del. C. § 3323(a)). 17 Byrd v. Westaff USA, Inc., 2011 WL 3275156 , at *1 (Del. Super. July 29, 2011) (quoting Oceanport Industries, Inc. v. Wilm. Stevedores, Inc., 636 A.2d 892 , 899 (Del. 1994)). 4 based on credibility or facts.”18 Absent an abuse of discretion by the Board, this Court will uphold the Board’s determination. 19 III. DISCUSSION 7. Pursuant to 19 Del. C. § 3314(2), an individual is disqualified from receiving unemployment benefits when terminated for “just cause.”20 Under Delaware law, just cause is a “willful or wanton act in violation of either the employee’s interests, or the employee’s duties, or of the employee’s expected standard of conduct.”21 An isolated absence will likely not suffice.22 When an employee is aware of a company policy and/or received adequate warning, “the court has held repeated absenteeism to be a ‘willful and wanton’ violation of the ‘employer’s interests’ and the ‘employee’s duty.’”23 8. Here, the Board considered whether Harris knew that her absences were in violation of Employer’s policy. The Employer presented evidence that various verbal discussions took place between Harris and her supervisor related to her 18 Id. (citing Johnson v. Chrysler Corp., 203 A.2d 64 , 66 (Del. 1965)). 19 See Funk v. Unemployment Ins. Appeal Bd., 591 A.2d 222 , 225 (Del. 1991). 20 19 Del. C. § 3314(2) provides that an individual shall be disqualified from benefits, “[f]or the week in which the individual was discharged from the individual's work for just cause in connection with the individual's work and for each week thereafter until the individual has been employed in each of 4 subsequent weeks (whether or not consecutive) and has earned wages in other employment equal to not less than 4 times the weekly benefit amount.” 21 Keim v. Greenhurst Farms, 2001 WL 1490060 , at *2 (Del. Super. Nov. 19, 2001) (citing Abex Corp. v. Todd, 235 A.2d 271 , 272 (Del. Super. 1967)). 22 See Martin v. Delaware Supermarkets, Inc., 2012 WL 2700460 , at *4 (Del. Super. July 5, 2012) (citing Weaver v. Emp’t Sec. Comm’n, 274 A.2d 446 , 447 (Del. Super. 1971); Boughton v. Division of Unemployment Ins. of Dept. of Labor, 300 A.2d 25 , 27 (Del. Super. 1972)). 23 Martin, 2012 WL 2700460, at *4 (quoting Kiem, 2001 WL 1490060 , at *2). 5 tardiness and absences. Harris claims the Employer was tolerant of the conduct and focuses primarily on the language of the sole written email that served to memorialize the then most recent communication between her and her supervisor to suggest that the Board erred in finding that the warning was unambiguous. This Court disagrees. 9. The Court considers and rejects Harris’s argument that because her supervisor may have previously tolerated her absences, her Employer failed to provide an unambiguous warning that termination would result for continued absences. A warning, written or otherwise, is only required when there has been prior acquiescence by the employer. 24 As noted, that was not the case here. While the supervisor may have been tolerant at first, Harris’s conduct did not improve despite attempts to speak to her about it. By March 2019, the record is clear that Harris received warning – first verbal, then in written form via email – that her absences and tardiness continued to be problematic. 25 10. Equally unavailing is Harris’s argument that the written warning was ambiguous because it did not explicitly state that her absences would result in termination. Delaware law does not require a warning inform the employee of 24 Ortiz v. Unemployment Ins. Appeals Bd., 317 A.2d 100 , 101 (Del. 1974) (fairness required a waring where employer condoned absenteeism for months but warning not always required); see also Smoot v. Comcast Cablevision, 2004 WL 2914287 , at *4 (Del. Super. Dec. 16, 2004) (“As long as the company policy is clearly communicated to the employee, the employer has given adequate notice to justify termination of employment after a single violation of that policy.”). 25 See R. at 26, 51. 6 termination.26 Instead, the warning must put employee on sufficient notice that her behavior was in violation of Employer’s Policy. 27 That was done. In addition to speaking directly with her on March 22, her supervisor memorialized the discussion via email reminding her that absences were against the employer’s policy, stating that “further acts of absenteeism would be considered insubordination and dealt with accordingly.”28 She was also directed to contact her supervisor if she was going to be late or not show up.29 In the last instance, she did neither.30 Even if Employer had tolerated Harris’s behavior at first (after perhaps the first seven instances of lateness or tardiness,) the Court finds that Employer did not continue to do so, providing an unambiguous warning in March 2019. 11. After both verbal and written warning, Harris then engaged in several “further incidents” of unchanged conduct before Employer took the forewarned disciplinary action of termination. As such, the Board had before it substantial evidence to support its ruling that the continued conduct was “willful or wanton,” 26 Delaware law does not require warnings to state the consequences of given acts to any particular level of specificity. Coleman v. Dept. of Labor, 288 A.2d 285 , 288 (Del. 1972) (“[The] absence of advanced warning concerning the consequences of given acts, as opposed to notice of their impropriety, does not preclude a discharge for willful misconduct.”); see also Powell v. Northeast Treatment Centers, Inc., 2003 WL 23274835 , at *5 (Del. Super. Dec. 17, 2003) (“This warning need not expressly state the ultimate consequences, but must give notice of the impropriety of the acts.”); Breese v. Unemployment Ins. Appeals Bd., 1993 WL 258853 , at *3 (Del. Super. June 24, 1993) (inferring that written warning of consequences is not required). 27 See Bear-Glasgow Dental v. Edwards, 2007 WL 1651988 , at *3 (Del. Super. May 29, 2007). 28 R. at 51 (emphasis added). 29 Id. at 28-29. 30 Id. at 29-30. 7 and her inability to show up for work on time or at all (albeit perhaps for good reasons) was nevertheless “in violation of either the employer’s interests, or the employee’s duties, or of the employee’s expected standard of conduct.” 31 12. The record supports a finding that Employer met its burden that Harris was terminated for just cause and not eligible for unemployment benefits. There is no error of law. For the foregoing reasons, the Board’s decision is AFFIRMED. IT IS SO ORDERED. /s/ Vivian L. Medinilla Vivian L. Medinilla Judge oc: Prothonotary 31 Kiem, 2001 WL 1490060 , at *2 (citing Abex Corp. v. Todd, 235 A.2d 271 ,272 (Del. Super. 1997)). 8

2020-12-01 16:02:59.286778+00

http://courts.delaware.gov/Opinions/Download.aspx?id=313660

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE JOSEPH FREDERICK, ) ) Claimant-Below, ) Appellant, ) ) v. ) C.A. No.: N19A-07-009 CLS ) A-DEL CONSTRUCTION CO., ) INC., ) ) Employer-Below, ) Appellee. Date Decided: November 30, 2020 Upon Consideration of Appellant Joseph Frederick’s Appeal from the Industrial Accident Board REMANDED. ORDER Jonathon B. O’Neill, Esquire, Kimmel, Carter, Roman, Peltz & O’Neill P.A., Christiana, Delaware, Attorney for Appellant Joseph Frederick. John W. Morgan, Esquire, Heckler and Frabizzio, Wilmington, Delaware and Tracey A. Burleigh, Esquire, Marshall Dennehey Warner Colleman & Goggin, P.C., Wilmington, Delaware, Attorneys for Appellee A-Del Construction Co., Inc. J. Scott 1  Before this Court is Appellant Joseph Frederick’s (“Mr. Frederick”) appeal from the Industrial Accident Board’s (the “Board”) finding of a joint employment relationship at the time of Mr. Frederick’s injury, thereby disqualifying Mr. Frederick from third-party liability. For the following reasons, the decision of the Board is REMANDED for a rehearing. Background Mr. Frederick contends that he worked solely for Colonial Trucking, Inc. (“Colonial”) as a truck driver.1 On March 28, 2016, Mr. Frederick sustained injuries to his face, head, neck and back while driving a Colonial dump truck. Mr. Frederick sought redress through a Workers’ Compensation claim against Colonial. Mr. Frederick later joined A-Del Construction (“A-Del”) as a third-party defendant. Most relevant here, Colonial and A-Del together alleged that Mr. Frederick was a joint employee of A-Del and Colonial.2 Mr. Frederick disagreed and argued that he was solely an employee of Colonial.3 On February 28, 2019, the Board held an evidentiary hearing to determine if Mr. Frederick was a joint employee of both Colonial and A-Del.4 The Board heard from two witnesses: (1) Mr. Frederick and 1 Frederick v. A-Del Construction Co., Inc., IAB Hearing No. 1440955 (June 24, 2019) at p. 1. 2 Id. 3 Id. 4 Id. 2 (2) Edward Charles Fairer (“Mr. Fairer”), the risk control officer and vice president of A-Del. On June 24, 2019, the Board found the existence of a joint employment relationship at the time of Mr. Frederick’s injury (the “Board’s Decision”). In the Board’s Decision, the Board stated the following factual findings: 1. Interchange in management with respect to the President of A-Del also serving as Vice President of Colonial; 2. A-Del and Colonial share the same business address of 10 Adel Drive, Newark, Delaware, 19702; 3. Colonial’s address on Mr. Frederick’s W-2 form and on the police report is 10 Adel Drive, Newark, Delaware 19702. 4. A-Del and Colonial operate as distinct corporate entities. A-Del and Colonial maintain separate income and expense records, as well as separate payroll-time records. 5. A-Del and Colonial did not share the same employees with respect to the function of hauling. 6. Mr. Frederick only drove Colonial trucks under the Colonial name. An A-Del employee would never drive a Colonial marked truck nor would a Colonial employee ever drive an A-Del marked truck. 7. Under the business construct of Colonial, Colonial employees are under the simultaneous control of A-Del and of Colonial. 8. Under the business construct of Colonial, Colonial employees ultimately performed services simultaneously for A-Del and Colonial. 9. A-Del and Colonial shared the same management in the office and out in the field. 3  10. A-Del bid for services of Colonial on Colonial’s behalf. Colonial did not solicit business. 11. A-Del determined the projects with which Colonial was involved. A- Del employees dispatched assignments to Colonial employees and served as supervisors of Colonial employees. 12. Colonial had no managerial, accounting, or human resource departments – but instead relied on A-Del employees to perform such functions. 13. A-Del bore the expense of Colonial’s insurance. 14. A-Del could operate business independently of Colonial, but Colonial did not operate business independently of A-Del. 15. A-Del is ultimately responsible for hauling. A-Del has its own trucks, but sometimes uses Colonial’s trucks or another company’s trucks for hauling.5 On June 24, 2019, Mr. Frederick filed his Notice of Appeal to this Court. Parties’ Assertions Mr. Frederick’s overarching contention is that he worked solely for Colonial as a truck driver. Mr. Frederick argues that: (1) his case is distinguishable from established case law; and (2) the Board committed an error of law in finding the joint employment relationship at the time of the accident. Specifically, Mr. Frederick claims that there was no simultaneous control over him and that the Board confused “interchangeability with dependency.” Second, Mr. Frederick argues that the two companies are distinguishable for 5 Id. at 10-12. 4 multiple reasons: (i) they are distinguished in their Zurich insurance policy, (ii) they do two different types of work, (iii) they have separate tax identification numbers, and (iv) Mr. Frederick received a paycheck only from Colonial. Finally, Mr. Frederick claims that he worked exclusively for Colonial and his employment was not interchangeable between the two businesses. In their Response, A-Del and Colonial argue that the Board did not abuse its discretion or commit an error of law when it found that A-Del and Colonial were in a “joint service relationship” at the time of Mr. Frederick’s injury. A-Del and Colonial argue that the Board’s decision follows the A. Mazzetti precedent because both Colonial and A-Del had simultaneous control over the Mr. Frederick. A-Del and Colonial argue that Colonial has no managerial, accounting, or human resources departments, and does not bid for contracts. A-Del and Colonial further argue that the second element, simultaneous performance, is also satisfied here. A- Del and Colonial contend that both companies share the same address, management, and A-Del’s accountant handles Colonials payroll. Finally, A-Del and Colonial argue that the final element requiring a close similarity of work is likewise satisfied in the instant case. A-Del and Colonial contend that A-Del was under contract to remove concrete from the jobsite, which means A-Del was also responsible for the hauling of the removed concrete. 5  In his Reply, Mr. Frederick argues that A-Del and Colonial’s argument must fail because A-Del and Colonial presented no evidence to support a finding of contractual relationship between the Mr. Frederick and A-Del. Mr. Frederick also reiterates his prior contention that none of the factors from A. Mazzetti are present in this case. Specifically, Mr. Frederick argues that he was not under the control of both companies and the two companies did not provide simultaneous services that were identical. Mr. Frederick also claims that there was no simultaneous control between A-Del and Colonial over him during the time of his injury. Further, Mr. Frederick argues that he did not perform services simultaneously for each employer and the services performed were not the same or closely related. Standard of Review In considering an appeal from an IAB decision, this Court’s only function is “to determine whether or not there was substantial competent evidence to support the finding of the board, and, if it finds such in the record, to affirm the findings of the board.”6 Substantial evidence is considered as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”7 This Court is not to “sit as a trier of fact with authority to weigh the evidence, determine questions of credibility, and make its own factual findings and conclusions.”8 6 Johnson v. Chrysler Corp., 59 Del. 48 , 66 (Del. 1965). 7 Id. 8 Id. 6  Discussion A. Joint Employment Test in A. Mazetti Delaware Workers’ Compensation Act § 2354(a) allows an employee to recover compensation from two or more employers if the employee is in the joint service of two or more employers at the time of the accident.9 The Delaware Supreme Court outlined a four-part test in A. Mazzetti & Sons, Inc. v. Ruffin10 to determine if a joint employment relationship exists: [A] joint employment relationship exists between a single employee and two employers when he or she is under contract with both employers and the employee: 1. is also under the simultaneous control of both employers; and 2. performs services simultaneously for both employers; and 3. the services performed for each are the same or closely related.11 1. “Under Contract With” The first determination made is whether the employee is “under contract with” both employers. In the A. Mazzetti case, there was no dispute that the employee was under contract with both employers. In the present case, substantial evidence has not been provided which suggests Mr. Frederick was under contract with both Colonial and A-Del at the time of his injury. The Board did not state on the record whether or not Mr. Frederick was under contract with both employers. Further, the testimony from Mr. Fairer that Mr. Frederick signed A-Del 9 19 Del C. § 2354(a). 10 A. Mazzetti & Sons, Inc. v. Ruffin, 437 A.2d 1120 (Del. 1981). 11 Id. at 1123 (emphasis added). 7 employment paperwork is contradicted by Mr. Frederick’s statement that he signed Colonial employment paperwork. As a result, on remand, the Board should inquire into whether Mr. Frederick was “under contract with” both Colonial and A-Del and whether any evidence, such as employment paperwork, is discoverable and supports their decision. 2. Simultaneous Control Under A. Mazetti, the next inquiry is whether Mr. Frederick was also under simultaneous control of both Colonial and A-Del. The Board found that Mr. Frederick was under the simultaneous control of A-Del and of Colonial. The Board sets forth a large list of factors, but does not specify which of the factors support its finding that Mr. Frederick was under the simultaneous control of A-Del and of Colonial. As a result, on remand, the Board should indicate which factors support its finding that Mr. Frederick was under the simultaneous control of A-Del and of Colonial. 3. Simultaneous Performance Under A. Mazetti, the third inquiry is whether Mr. Frederick performed services simultaneously for both Colonial and A-Del. It is not clear precisely which of the many factors considered by the Board allowed the Board to find that Mr. Frederick performed services simultaneously for both A-Del and Colonial. As a 8 result, on remand, the Board should indicate which factors support its finding that Mr. Frederick performed services simultaneously for both Colonial and A-Del. 4. Same or Closely Related Services Performed Under A. Mazetti, the last inquiry is whether the services that Mr. Frederick performed simultaneously for both A-Del and Colonial are the same or closely related. The Board found that the services Mr. Frederick performed simultaneously for both A-Del and Colonial are closely related. However, it is not clear precisely which of the many factors considered by the Board allowed the Board to find that the services Mr. Frederick performed simultaneously for both A-Del and Colonial are closely related. As a result, on remand, the Board should indicate which factors support its finding that the services that Mr. Frederick performed simultaneously for both Colonial and A-Del are closely related. B. Remedy 19 Del. C. § 2350(b) states in full: (b) In case of every appeal to the Superior Court the cause shall be determined by the Court from the record, which shall include a typewritten copy of the evidence and the finding and award of the Board, without the aid of a jury, and the Court may reverse, affirm or modify the award of the Board or remand the cause to the Board for a rehearing. In case any cause shall be remanded to the Board for a rehearing, the procedure and the rights of all parties to such cause shall be the same as in the case of the original hearing before the Board.12 12 19 Del. C. § 2150(b) (emphasis added). 9  According to 19 Del. C. § 2350(b), this Court must either (1) reverse, affirm or modify the award of the board or (2) remand the cause to the Board for a rehearing. Mr. Frederick stated that he filled out Colonial trucking paperwork.13 A-Del and Colonial’s witness, Mr. Fairer, contested Mr. Frederick’s claim here and stated that the application that Mr. Frederick filled out has “A-Del Construction on the top of it.”14 Since this concerns a factual dispute, and this Court may not engage in factual undertakings, the Board should develop the record with regards to the “contract” or application that Mr. Frederick signed. The Board should also identify the factual findings that support each portion of the A. Mazetti four-part test. Additionally, another inquiry that the Court would like the Board to make is whether the case could be heard under § 2354 since the parties have indicated that there’s only one insurance company and there does not appear to be substantial evidence in the record to demonstrate that these are two separate companies.15 Conclusion Based on the Court’s review of the Board’s record, the Court finds the Board overlooked a necessary element, “under contract with,” from A. Mazzetti. As a result, the record does not include substantial evidence to support the Board’s 13 Tr. Frederick, at 51 (lns. 24-25). 14 Id. at 61 (lns. 4-7). 15 See 19 Del. C. § 2354. 10 finding that a “joint employment” relationship existed. For the forgoing reasons, the decision of the Board is REMANDED to the Board for a rehearing. IT IS SO ORDERED. ___________________________________ The Honorable Calvin L. Scott, Jr. 11

2020-12-01 16:03:50.804914+00

http://www.in.gov/judiciary/opinions/pdf/12012001msm.pdf

IN THE Indiana Supreme Court Supreme Court Case No. 20S-CR-655 FILED Dec 01 2020, 9:46 am Michael D. Johnson CLERK Indiana Supreme Court Appellant (Defendant below) Court of Appeals and Tax Court –v– State of Indiana Appellee (Plaintiff below) Argued: June 29, 2020 | Decided: December 1, 2020 Appeal from the Madison Circuit Court, No. 48C01-1602-F5-402 The Honorable Angela G. Warner Sims, Judge On Petition to Transfer from the Indiana Court of Appeals, No. 19A-CR-975 Opinion by Justice Massa Chief Justice Rush and Justices David and Goff concur. Justice Slaughter dissents with separate opinion. Massa, Justice. Michael Johnson offered to sell a substance he called “white girl” to a stranger at Hoosier Park Casino in Anderson. After the solicited patron reported the incident to security, and the account was verified by video surveillance, a Gaming Enforcement Agent led Johnson back to an interview room. Once they entered the room, the agent told Johnson that he would need to pat him down. Upon this pat-down, the agent immediately felt what he deemed a “giant ball” in Johnson’s pocket. Consistent with his training, the agent immediately believed this lump was packaged drugs, and after removing the baggie containing white powder from Johnson’s pocket, placed him under arrest. At his trial, the court admitted, over Johnson’s objection, the evidence stemming from the pat-down. Because we find that the agent had reasonable suspicion that criminal activity was afoot (so he could stop Johnson), that Johnson could be armed and dangerous (so he could pat Johnson down after entering a confined space), and the lump in Johnson’s pocket was immediately apparent as contraband (so it could be seized), we affirm the admission of the evidence because the search and seizure proceeded within the bounds of the Fourth Amendment. Facts and Procedural History After hours of playing quarter slots with a friend at Hoosier Park Casino in Anderson, Brett Eversole was tired and fighting to stay awake on November 8, 2015. Just before he began to doze off, Eversole was approached by a stranger—Michael Johnson, the defendant in this case— who offered to sell him some “white girl.” Tr. Vol. 2, pp. 87–89. Believing that this slang referred to cocaine, or less likely in his view a prostitute, and having no interest in either, Eversole rejected Johnson’s offer. Rebuffed, Johnson walked away. After consulting with his friend about what “white girl” might mean, Eversole decided to tell security officers that a “man approached me when I was sitting at a slot machine and offered to sell me some drugs, I believe, and he called it white girl.” Id., p.92. A security supervisor then sought video surveillance that would Indiana Supreme Court | Case No. 20S-CR-655 | December 1, 2020 Page 2 of 13 show the encounter and “notified the gaming commission[,] who are law enforcement on the property.” Id., p.100. After viewing the soundless video and conferring with Eversole, Gaming Enforcement Agent Zach Wilkinson—who was a thirteen-year law enforcement veteran specially trained in “issues inside the casino,” including “drug trends” and “criminal issues”—quickly located Johnson because the Casino “wasn’t super crowded at that moment” and Johnson was easy to identify from Eversole’s description and the video’s depiction. Id., pp. 103–04, 109. Agent Wilkinson then told him that there had been “a report of him attempting to sell drugs to casino patrons,” and Johnson “voluntarily [went] back to the [gaming commission’s] interview room.” Id., p.111. After entering the room, Agent Wilkinson informed Johnson that he “needed to pat him down.” 1 Id. Upon this pat-down, Agent Wilkinson skimmed over a lump that—through his mandated yearly “training for identification of drug[s] by feel or by sight”—felt like a “ball of drugs.” Id., pp. 113–14. After Agent Wilkinson removed a baggie filled with “white powder” from Johnson’s pocket, he placed him under arrest. Id., p.114. Although this substance appeared to be cocaine, later testing merely revealed it to be sodium bicarbonate, also known as baking soda. The State later charged Johnson with “dealing in a look-a-like-substance,” a Level 5 felony under Indiana Code section 35-48-4-4.6. After unsuccessfully moving to suppress the admission of any evidence flowing from the search, a jury convicted Johnson of the charge, and he appealed, renewing his argument under the Fourth Amendment. The Court of Appeals reversed. While stating that “[i]t is incumbent upon the State to prove that the measures it used to conduct a search and seize evidence were constitutional,” the panel also implied that the State must parry every constitutional attack by refuting any claim that 1Although Johnson’s attorney asserted during oral argument that the pat-down occurred outside the room, Agent Wilkinson repeatedly testified that it occurred inside the room. This discrepancy does not impact the outcome. Indiana Supreme Court | Case No. 20S-CR-655 | December 1, 2020 Page 3 of 13 “suggests alternative scenarios” for how evidence was obtained. Johnson v. State, 137 N.E.3d 1038 , 1043–44 (Ind. Ct. App. 2019), reh’g denied, vacated. Ultimately, even though “Agent Wilkinson would arguably have . . . developed probable cause for an arrest,” the court concluded that “the evidence does not dispel concern that the ball of powder retrieved from Johnson’s pocket was obtained in violation of his Fourth Amendment right to be free from an unlawful search and seizure.” Id. at 1044 . The State sought transfer, which we now grant. Standard of Review “The trial court has broad discretion to rule on the admissibility of evidence.” Thomas v. State, 81 N.E.3d 621 , 624 (Ind. 2017) (citation omitted). Ordinarily, we review evidentiary rulings for an abuse of discretion and reverse only when admission is clearly against the logic and effect of the facts and circumstances. Id. But when a challenge to an evidentiary ruling is based “on the constitutionality of the search or seizure of evidence, it raises a question of law that we review de novo.” Id. Discussion and Decision “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV.2 The Fourth Amendment, then, generally requires warrants for searches and seizures, and any “warrantless search or seizure is per se unreasonable.” Jacobs v. State, 76 N.E.3d 846 , 850 (Ind. 2017) (quotation omitted). “As a deterrent mechanism, evidence obtained in violation of 2Although Johnson offhandedly mentioned Article 1, Section 11 of our Indiana Constitution, he has waived the assertion for lack of specific argument. Indiana Supreme Court | Case No. 20S-CR-655 | December 1, 2020 Page 4 of 13 this rule is generally not admissible in a prosecution against the victim of the unlawful search or seizure absent evidence of a recognized exception.” Clark v. State, 994 N.E.2d 252 , 260 (Ind. 2013). While the State can overcome this bar to admission by proving “that an exception to the warrant requirement existed at the time of” a warrantless search, Bradley v. State, 54 N.E.3d 996 , 999 (Ind. 2016) (quotation omitted), it need not disprove every alternative explanation forwarded by a defendant. Although the parties and the courts below largely focused on whether there was probable cause to arrest Johnson at the time of the search (potentially bringing the seizure within the search-incident-to-arrest exception to the Fourth Amendment), there is a clearer path to sustaining the evidence’s admission: “the encounter was along the lines of a Terry stop.” Appellant’s Br. at 10. To determine, then, whether the evidence here should be suppressed, we must resolve three issues: (1) whether Agent Wilkinson had justification to stop Johnson under Terry; (2) whether Agent Wilkinson could perform a Terry frisk of Johnson; and (3) whether Agent Wilkinson could seize the baggie felt in Johnson’s pocket. Answering yes to each in turn, we hold the evidence admissible. I. Agent Wilkinson was justified in stopping Johnson under Terry after watching the video and talking to Eversole. An officer can stop a person if the officer “observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot.” Terry v. Ohio, 392 U.S. 1 , 30 (1968). While this stop requires less than probable cause, an officer’s reasonable suspicion demands more than just a hunch: “the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion.” Id. at 21 . Agent Wilkinson knew that Eversole, a disinterested third-party, informed security officers that Johnson had tried to sell him “white girl,” which he believed to be cocaine and believed was offered because the Indiana Supreme Court | Case No. 20S-CR-655 | December 1, 2020 Page 5 of 13 stimulating effect of the drug could perk him up when he was nearly asleep. See Adams v. Williams, 407 U.S. 143 , 146 (1972) (“The informant here came forward personally to give information that was immediately verifiable at the scene.”). Eversole stayed at the scene, and confirmed this account with Agent Wilkinson, subjecting himself to false informing if he concocted the story. See Illinois v. Gates, 462 U.S. 213 , 233–34 (1983) (“[I]f an unquestionably honest citizen comes forward with a report of criminal activity—which if fabricated would subject him to criminal liability—we have found rigorous scrutiny of the basis of his knowledge unnecessary.”); Kellems v. State, 842 N.E.2d 352 , 355 (Ind. 2006) (“[T]he prospect of prosecution for making a false report heightens the likelihood of the report’s reliability.”), rev’d on reh’g on other grounds; Ind. Code § 35 - 44.1-2-3(d) (2015) (“A person who . . . gives a false report of the commission of a crime or gives false information in the official investigation of the commission of a crime, knowing the report or information to be false . . . commits false informing.”). Because “informants who come forward voluntarily are ordinarily motivated by good citizenship or a genuine effort to aid law enforcement officers in solving a crime,” Duran v. State, 930 N.E.2d 10 , 17 (Ind. 2010), there is scant reason to doubt the veracity of Eversole’s account. And ensuing police work bolstered the impartial tip. Surveillance video confirmed Eversole’s narrative, and the man in the video matched his earlier description of Johnson. See McGrath v. State, 95 N.E.3d 522 , 528 (Ind. 2018) (holding that an “independent investigation to confirm the street address, the color of the house, the names of the occupants, and the bright light” sufficiently augmented an anonymous tip to form probable cause that a house was being used to grow marijuana). Relatively few patrons populated the casino, narrowing the field of suspects who could match the specific description and depiction of Johnson. Abel v. State, 773 N.E.2d 276 , 279 (Ind. 2002) (finding reasonable suspicion supported when suspect “fit the general description of the sought-after person, was in the general area, and it was the early morning hours”) (quotation omitted). When “a tip from an identified informant or concerned citizen [is] coupled with some corroborative police investigation,” an officer has “reasonable Indiana Supreme Court | Case No. 20S-CR-655 | December 1, 2020 Page 6 of 13 suspicion for an investigative stop.” Kellems, 842 N.E.2d at 353. Agent Wilkinson had reasonable suspicion to stop Johnson under Terry. II. Agent Wilkinson could perform a Terry frisk of Johnson after they entered the interview room because it was reasonable to believe he was armed and dangerous. On appeal, Johnson asserted that even if reasonable suspicion supported a Terry stop, “the pat down search that revealed the substance exceeded the allowable legal scope” because “there was no evidence in the record that would have led officers to believe that Johnson was either armed or dangerous.” Appellant’s Br. at 11–12 (emphasis added). Not so. After making a Terry stop, an officer may, if he has reasonable fear that a suspect is armed and dangerous, frisk the outer clothing of that suspect to try to find weapons. Terry, 392 U.S. at 27 . The purpose of this protective search “is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence.” Minnesota v. Dickerson, 508 U.S. 366 , 373 (1993) (quotation omitted). “The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” Terry, 392 U.S. at 27 . To determine whether an officer acted reasonably, we consider the specific, reasonable inferences that the officer, in light of his experience, can draw from the facts. Id. Here, the facts supported the reasonableness of the pat-down: Agent Wilkinson suspected Johnson of trying to sell drugs and was about to interview him one-on-one in a small windowless room early in the morning. “[C]ourts have often considered evidence of drug involvement as part of the totality of the circumstances contributing to an officer’s reasonable belief that a subject is armed and dangerous.” Patterson v. State, 958 N.E.2d 478 , 486 (Ind. Ct. App. 2011). While our Court of Appeals has held that evidence of marijuana use by a driver may not create a reasonable fear that a suspect is armed, see Rybolt v. State, 770 N.E.2d 935 , 941 (Ind. Ct. Indiana Supreme Court | Case No. 20S-CR-655 | December 1, 2020 Page 7 of 13 App. 2002 ) (holding pat-down unjustified when officer merely believed “that individuals who use narcotics also carry weapons”), trans. denied, further evidence of other criminal activity can, see, e.g., Durstock v. State, 113 N.E.3d 1272 , 1277 (Ind. Ct. App. 2018) (holding pat-down search justified when officers, among other things, believed that a suspect “was involved in drug activity” and other evidence revealed that the situation could be dangerous—a loaded gun was found in an adjacent bathroom the suspect had just left), trans. denied. What’s more, “the right to frisk is automatic whenever the suspect has been stopped upon the suspicion that he has committed, was committing, or was about to commit a type of crime for which the offender would likely be armed,” in that case, a burglary. N.W. v. State, 834 N.E.2d 159 , 165–66. (Ind. Ct. App. 2005) (cleaned up), trans. denied. Based on the facts of this case, a reasonably prudent officer in Agent Wilkinson’s position would believe that his safety was potentially in danger. All information available to Agent Wilkinson suggested that Johnson, unlike the defendant in Rybolt, was trying to sell drugs—a crime for which Johnson could possibly be armed—to strangers on a casino floor. As the Supreme Court has acknowledged, officers know that it is “common for there to be weapons in the near vicinity of narcotics transactions.” Illinois v. Wardlow, 528 U.S. 119 , 122 (2000); see also Parker v. State, 662 N.E.2d 994 , 999 (Ind. Ct. App. 1996) (“Based on the informant’s tip, he believed that narcotics would be present. . . . [The officer] knew . . . that firearms were frequently present in drug transactions.”), trans. denied. “[F]irearms are ‘tools of the trade.’” United States v. Gilliard, 847 F.2d 21 , 25 (1st Cir. 1988) (quoting United States v. Trullo, 809 F.2d 108 , 113 (1st Cir. 1987)); see also Swanson v. State, 730 N.E.2d 205 , 211 (Ind. Ct. App. 2000) (acknowledging that “it is not uncommon for drug dealers to carry weapons”), trans. denied. Agent Wilkinson’s suspicion that Johnson attempted to sell drugs—supported by Eversole’s statements and surveillance footage—helped justify the pat-down. Whether a Terry stop occurs in a confined space can impact the reasonableness of the subsequent pat-down. See United States v. Post, 607 F.2d 847 , 852 (9th Cir. 1979). An experienced officer, “enclosed in a small room with a man he reasonably suspects to be a dealer in narcotics, [does Indiana Supreme Court | Case No. 20S-CR-655 | December 1, 2020 Page 8 of 13 not have to] be certain that a suspect is armed before he can make a limited pat-down for weapons.” Id. Here, Agent Wilkinson spoke with Johnson alone in the “pretty small” windowless interview room. Tr. Vol. 1, p.77. Given his “close proximity” to Johnson as they were about to discuss the attempted drug sale, it was reasonable for Agent Wilkinson to pat down Johnson. United States v. $109,179 in U.S. Currency, 228 F.3d 1080 , 1086–87 (9th Cir. 2000); see also United States v. $84,000 U.S. Currency, 717 F.2d 1090 , 1099 (7th Cir. 1983). The fact that another agent helped escort Johnson to the room and was, presumably, in the area does not make Agent Wilkinson’s decision any less reasonable. See Post, 607 F.2d at 852 (finding a pat-down reasonable even after “[f]our agents stopped and accompanied [the suspect] to the interview room” when only one agent entered the room with the suspect). The one-on-one nature of the interview also increased the danger for Agent Wilkinson. See id.; $84,000 U.S. Currency, 717 F.2d at 1099 (finding a pat-down justifiable when agents were “in a two-on-two situation” in a confined space). In a small confined space, it would have been easy for a suspect to attack Agent Wilkinson. Here, being alone with Johnson—suspected of trying to sell drugs—in the small interview room supports the reasonableness of Agent Wilkinson’s pat-down. Courts also consider “the time of day” to evaluate the reasonableness of a Terry frisk. United States v. Johnson, 921 F.3d 991 , 998 (11th Cir. 2019) (en banc), cert. denied, 140 S. Ct. 376 . Whether a frisk occurs early in the morning may impact its reasonableness. See id. (upholding frisk after considering that police found the suspect after 4:00 A.M.); Abel, 773 N.E.2d at 279; N.W., 834 N.E.2d at 166 (a pat-down was justified partially because “it was early in the morning”). Here, the attempted sale took place a little before 7:00 A.M., and Agent Wilkinson first learned of it at 7:15 A.M. Because Agent Wilkinson had limited, if any, knowledge about Johnson’s activities earlier that morning and the previous evening, it was reasonable for him to believe Johnson may have been armed and dangerous. Of course, not every act—nor every suspected crime—that occurs at an early hour automatically allows for a pat-down. But here, when combined with the suspected crime of selling drugs and the small interview room, the time furthers the pat-down’s reasonableness. Indiana Supreme Court | Case No. 20S-CR-655 | December 1, 2020 Page 9 of 13  “[T]o pursue his investigation without fear of violence,” Dickerson, 508 U.S. at 373 (quotation omitted), Agent Wilkinson patted down Johnson after they entered the interview room. Johnson’s suspected crime, the small interview room, and the early morning hour all support finding Agent Wilkinson’s decision to pat down Johnson was reasonable. III. Agent Wilkinson could seize the baggie when he immediately identified the lump as contraband the moment he grazed Johnson’s pocket. Johnson urged that the “pat down exceeded the scope of a pat down [u]nder Terry” when Agent “Wilkinson testified that upon feeling the item in Johnson’s pocket he knew that it was not a weapon.” Appellant’s Br. at 11–12. But this argument ignores later Supreme Court development of Terry, notably Dickerson. “If a police officer lawfully pats down a suspect’s outer clothing and feels an object whose contour or mass makes its identity immediately apparent”—even if that item is not a weapon— “there has been no invasion of the suspect’s privacy beyond that already authorized by the officer’s search for weapons.” Dickerson, 508 U.S. at 376 . When, for example, an officer performing a pat-down search for weapons “felt a ‘tubular object’ in [a suspect’s] pocket that was ‘consistent with being a syringe,’” it could be seized under Terry because its “identity was immediately apparent.” Durstock, 113 N.E.3d at 1278. Contraband was properly seized when officers “testified they immediately recognized [it], based on their experience and training, to be marijuana based on its feel.” Holbert v. State, 996 N.E.2d 396 , 400 (Ind. Ct. App. 2013), trans. denied. When an officer during a lawful pat-down “felt an object located in [a suspect’s] right front pants pocket, which she immediately recognized as ‘narcotics’ . . . due to its texture, describing it as ‘lumpy’ and ‘wadded,’” the seizure tracked the Fourth Amendment’s strictures. Patterson, 958 N.E.2d at 487–88. When, during a weapons frisk, an officer “felt an object, located in [a suspect’s] left front pants pocket, which he recognized, based on its packaging, shape, and feel to be rock cocaine,” the unlawful nature of the object was again immediately apparent and its seizure permissible. Indiana Supreme Court | Case No. 20S-CR-655 | December 1, 2020 Page 10 of 13 Wright v. State, 766 N.E.2d 1223 , 1233–34 (Ind. Ct. App. 2002). When an officer “conducted a pat down search for weapons” and “noticed a hard object” in a suspect’s left front shorts pocket, he “immediately determined its incriminating character” as cocaine, justifying its seizure. Parker, 662 N.E.2d at 999 . And when an officer “determined contemporaneously with his patdown search for weapons that the item in [a suspect’s] pocket was marijuana,” its seizure was Terry-authorized. Bratcher v. State, 661 N.E.2d 828 , 832 (Ind. Ct. App. 1996). On the other hand, if an officer must manipulate or further examine an object before its nature as contraband becomes apparent, the search exceeds Terry’s scope. See Dickerson, 508 U.S. at 378 (holding search unreasonable when “the officer determined that the lump was contraband only after squeezing, sliding and otherwise manipulating the contents of the defendant’s pocket—a pocket which the officer already knew contained no weapon”) (quotation omitted). In other words, “the reasonable suspicion that gives authority to a Terry stop does not, without more, authorize the examination of the contents of items carried by the suspicious person.” Berry v. State, 704 N.E.2d 462 , 466 (Ind. 1998) (emphasis added). A seizure violated the Fourth Amendment, for example, when an officer “did not claim that he could detect, from the limited touch, the incriminating nature of the object,” but instead just “suspected the object was something illegal[,] . . . ‘possibly a weapon.’” Peele v. State, 130 N.E.3d 1195 , 1200 (Ind. Ct. App. 2019) (quotation omitted). An unlawful seizure occurred when an officer felt and removed a pen cap from a suspect then, “‘upon further investigation and looking at it,’ he saw a baggie hanging from the pen cap, and based on previous experiences of finding narcotics in baggies in pen caps, he suspected that this baggie contained narcotics.” Clanton v. State, 977 N.E.2d 1018 , 1026 (Ind. Ct. App. 2012). And a seizure exceeded Terry when an officer removed a bottle from a suspect’s “pocket during a patdown for weapons, but the contraband was detected only after [the officer] shined a light into the bottle and opened it.” Harris v. State, 878 N.E.2d 534 , 539 (Ind. Ct. App. 2007), trans. denied. During the pat-down in the interview room, Agent Wilkinson quickly encountered something that “felt like a giant ball” in Johnson’s pocket. Tr. Indiana Supreme Court | Case No. 20S-CR-655 | December 1, 2020 Page 11 of 13 Vol. 2, p.113. Agent Wilkinson immediately recognized, consistent with his training and knowledge of the situation at hand, all the apparent hallmarks of narcotics packaged for sale: the lump felt “like a ball of drugs.” Id. Once the contour or mass is at once identified as contraband, as here, “its warrantless seizure [is] justified.” Dickerson, 508 U.S. at 375–76. Because Agent Wilkinson discerned the lump to be contraband as soon as he felt it without further manipulation, he was justified in seizing the powder-filled baggie from Johnson’s pocket. This “patdown search did not run afoul of the Fourth Amendment, and therefore the trial court did not abuse its discretion in admitting evidence obtained as a result.” O'Keefe v. State, 139 N.E.3d 263 , 268 (Ind. Ct. App. 2019). Conclusion Agent Wilkinson lawfully removed the baggie from Johnson’s pocket after immediately identifying it as contraband during the reasonable pat- down search. Because this seized evidence was properly admitted under the Fourth Amendment, we need not entertain any alternative explanations that could theoretically foreclose the baggie’s admission. We affirm. Rush, C.J., and David and Goff, JJ., concur. Slaughter, J., dissents with separate opinion. ATTORNEYS FOR APPELLANT Paul J. Podlejski Law Office of Paul J. Podlejski Anderson, Indiana ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Stephen R. Creason Chief Counsel Indiana Supreme Court | Case No. 20S-CR-655 | December 1, 2020 Page 12 of 13 Courtney L. Staton Deputy Attorney General Indianapolis, Indiana Indiana Supreme Court | Case No. 20S-CR-655 | December 1, 2020 Page 13 of 13 Slaughter, J., dissenting. The Court holds that the officer’s frisk of defendant, Michael Johnson, did not violate the Fourth Amendment. I agree with the Court that this is a close case. But I cannot join the Court’s careful analysis and write briefly to explain why. The issue here is when a law-enforcement officer can search a person’s outer clothing for weapons during an investigative stop—commonly known as a Terry stop and frisk. In Terry v. Ohio, 392 U.S. 1 (1968), the Supreme Court struck a fragile balance between a person’s rights under the Fourth Amendment and legitimate law-enforcement needs. Balancing these interests, Terry mandates that law enforcement may use a “self- protective search for weapons”—a frisk—only if an officer can “point to particular facts from which he reasonably inferred that the individual was armed and dangerous.” Sibron v. New York, 392 U.S. 40 , 64 (1968). Under this framework, the Court finds that Johnson’s frisk was permissible for three reasons. One, the officer received a tip that Johnson offered to sell “white girl”—a street term for cocaine—to a casino patron. Two, the tip occurred about 7 a.m. Three, the officer was one-on-one with Johnson in a small room. Ante, at 7. As the Court recognizes, Johnson’s suspected drug activity is the most suggestive that he might be armed and dangerous. Id. at 8. But, as the Court also recognizes, this alone is not enough. Id. at 7–8; United States v. Lopez, 907 F.3d 472 , 486 (7th Cir. 2018) (“The authority to frisk is not automatic in a drug investigation.”). Unlike the Court, I do not find that Johnson’s suspected drug activity, in combination with the time of the encounter and the fact that the officer was alone in a room with Johnson, gives rise to the crucial inference Terry requires. These facts do not suggest that Johnson was armed and dangerous. As to the timing, nothing in the record connects the early morning with any likelihood that Johnson (or any other casino patron) was armed. For instance, there is no evidence that 7 a.m. is a unique time when casino patrons, or even drug dealers in casinos, are more likely to be armed. As to the location, while a weapon may be more dangerous in a small, closed-off space, this location does not suggest that Johnson was armed in the first place. Yet that is the necessary inference. Because neither the time nor the location gives rise to the inference that Johnson was armed, Terry’s critical link is missing, and this protective weapons search was unconstitutional. Admittedly, this is a fine point on which to disagree. But Terry draws an intentionally fine line—one I do not wish to see eroded. After all, a frisk is not merely a “petty indignity . . . [but] a serious intrusion upon the sanctity of the person,” and one that can “inflict great indignity and arouse strong resentment.” Terry, 392 U.S. at 17 . Because law enforcement provides a vital service, this intrusion will often be worth the cost. But to protect rights guaranteed under the Fourth Amendment, we must respect Terry’s limitation. For these reasons, I respectfully dissent. Indiana Supreme Court | Case No. 20S-CR-655 | December 1, 2020 Page 2 of 2

2021-03-18 20:03:18.806334+00

https://www.courts.state.hi.us/wp-content/uploads/2021/03/CAAP-20-0000553dsm.pdf

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 18-MAR-2021 08:17 AM Dkt. 55 OGMD NO. CAAP-XX-XXXXXXX IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAI#I JIMMY FILOMENO ENOCENCIO, Defendant-Counterclaim Defendant/Appellant, v. KAMEHAMEHA SCHOOLS BISHOP ESTATE, AKA: KSBE; PRESIDENT, OFFICERS, BOARD OF DIRECTORS, TRUSTEES, AND DOES 1-10 INCLUSIVE; KAMEHAMEHA SCHOOLS-LAND ASSET DIVISION-HAWAI#I ISLAND, AKA: KS-LAD-HI NAMELY, MARISSA HARMON, LEANNE OKAMOTO, ALAPAKI NAHALE#A, JAIME WONG, DALE FERGUSTROM, TANYA ANDRADE, KA#E#O DUARTE, NEIL HANNAHS, Defendants-Counterclaimants/Appellees, and DOES 1-10 INCLUSIVE, Defendants APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT (CIVIL NO. 3CC181000090) ORDER GRANTING MOTION TO DISMISS APPEAL (By: Hiraoka, Presiding Judge, Wadsworth and Nakasone, JJ.) Upon consideration of the Motion to Dismiss Plaintiff- Appellant's Appeal (Motion), filed February 24, 2021, by Defendants-Counterclaimants/Appellees The Trustees of The Estate of Bernice Pauahi Bishop, the papers in support and in opposition, it appears we lack appellate jurisdiction over self- represented Defendant-Counterclaim Defendant/Appellant Jimmy Filomeno Enocencio's (Enocencio) appeal from the Circuit Court of the Third Circuit's July 21, 2020 First Amended Final Judgment (Amended Judgment), in Civil No. 3CC181000090, because the appeal is untimely. Enocencio did not file the notice of appeal within thirty days after entry of the Amended Judgment, as required by Hawai#i Rules of Appellate Procedure (HRAP) Rule 4(a)(1), and it  NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER appears he did not obtain an extension of time. "As a general rule, compliance with the requirement of the timely filing of a notice of appeal is jurisdictional, . . . and we must dismiss an appeal on our motion if we lack jurisdiction." Grattafiori v. State, 79 Hawai#i 10, 13, 897 P.2d 937 , 940 (1995) (cleaned up); see HRAP Rule 26(b) ("[N]o court or judge or justice is authorized to change the jurisdictional requirements contained in Rule 4 of these rules."). Because Enocencio did not timely file the notice of appeal, the court lacks appellate jurisdiction. Accordingly, IT IS HEREBY ORDERED that the Motion is granted and the appeal is dismissed for lack of appellate jurisdiction. DATED: Honolulu, Hawai#i, March 18, 2021. /s/ Keith K. Hiraoka Presiding Judge /s/ Clyde J. Wadsworth Associate Judge /s/ Karen T. Nakasone Associate Judge 2

2020-12-01 16:12:59.381523+00

http://www.tsc.state.tn.us/sites/default/files/pillow.brian_.opn_.pdf

12/01/2020 IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE July 14, 2020 Session BRIAN PILLOW v. STATE OF TENNESSEE Appeal from the Circuit Court for Maury County No. 25630 Stella L. Hargrove, Judge ___________________________________ No. M2018-01275-CCA-R3-PC ___________________________________ Petitioner, Brian Pillow, was convicted by a Maury County Jury of three counts of selling .5 grams or more of cocaine in a drug-free zone. He received an effective sentence of twelve years to be served in the Tennessee Department of Correction. Petitioner filed a petition seeking post-conviction relief, in which he alleged that he received the ineffective assistance of counsel and that the trial court should have granted a continuance when co-counsel was appointed. Following an evidentiary hearing, the post- conviction court denied his petition. We affirm the judgment of the post-conviction court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed THOMAS T. WOODALL, J., delivered the opinion of the court, in which ROBERT L. HOLLOWAY, JR. and TIMOTHY L. EASTER, JJ., joined. Michael Meise, Dickson, Tennessee (on appeal) and Kevin S. Latta, Columbia, Tennessee (at trial) for the appellant, Brian James Pillow. Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Assistant Attorney General; Brent A. Cooper, District Attorney General; and Adam Davis, Assistant District Attorney General, for the appellee, State of Tennessee. OPINION Background The evidence presented at trial, was as follows: Columbia Police Detective Jason Dark testified that in May 2012, Kevin Odie, a “street-level” drug dealer, was charged with narcotics offenses. Thereafter, Odie approached the District Attorney General and offered to work as a confidential informant in an attempt to obtain leniency on his charges. Odie spoke with Detective Dark about purchasing drugs from certain individuals, including the [Petitioner]. Detective Dark said that Odie purchased crack cocaine from the [Petitioner] on three occasions: May 2, 2012; May 4, 2012; and May 11, 2012. The procedures before and after each transaction were largely identical. Odie telephoned [Petitioner], who agreed to sell the drugs and gave directions to a specific location. Immediately after each call, officers searched Odie and his vehicle to ensure he had no contraband. The officers photocopied the money to be used during the purchase then gave Odie the cash to purchase two grams of cocaine. On May 2, Odie was given $100; on May 4, he was given $130; and on May 11, he was given $150. Detective Dark did not know why the price continually increased. Detective Dark recalled that before each transaction, Odie was equipped with an audio/video recording device. The recording equipment was set up so that Detective Dark could hear the transaction as it occurred, but he could not view the video until he recovered the device from Odie and downloaded the recording to a computer. Detective Dark said that after being searched and given money, Odie drove to 501 Martin Drive as directed by [Petitioner]. The location was approximately 698 feet from Fairview Park. The May 2 purchase occurred in a shed on the property, the May 4 purchase occurred in the yard, and the May 11 purchase occurred inside a maroon sport utility vehicle (SUV) that was parked in the driveway. Detective Dark said that the SUV was registered to Tonya Perry, who had “associated with” [Petitioner]. Detective Dark said that after each purchase, Odie met with the police and gave them a substance that was packaged in a plastic sandwich baggie and appeared to be crack cocaine. The detective sent the substances to the Tennessee Bureau of Investigation (TBI) crime laboratory for testing. He said that the amount of drugs Odie received was larger than the amount the police typically obtained for the amount of money provided. On cross-examination, Detective Dark said that the price for one gram of crack cocaine was usually $100; however, Odie received more than two grams during each purchase. Odie was given $150 for the third -2- transaction. After the transaction, Odie returned $10 and explained that he paid $140 for the drugs. Detective Dark said that prior to each transaction, Odie’s vehicle was searched in a well-lit garage. He could not recall whether he or another officer searched the vehicle but stated that [i]t’s just protocol. It’s something we do. He explained that the officers did not “strip search” an informant but that all of the informant’s pockets were checked. He did not check inside Odie’s socks or shoes because he trusted Odie. Detective Dark stated that [Petitioner] was not arrested on the day of the last transaction; however, he was arrested in December 2012 after the grand jury returned an indictment against him. At the time of his arrest, [Petitioner] was in possession of $1,400 in cash. None of the bills matched the serial numbers of the cash used in the controlled purchases. Detective Dark said that while working as a confidential informant, Odie made over 100 controlled buys from approximately forty individuals. Kevin Odie testified that he had three prior felony convictions, two for selling crack cocaine and one for selling marijuana. He also had two pending charges of selling crack cocaine in a school zone and one pending charge of selling marijuana. He volunteered to buy crack cocaine for the police, hoping that his assistance would keep him from being incarcerated. Odie testified that his nickname was “Kap.” He had known [Petitioner], whose nickname was “Bear,” for approximately one year. Odie’s first purchase of crack cocaine from [Petitioner] occurred on May 2, 2012. On that day, Odie called [Petitioner], and they arranged to meet so that Odie could buy one gram of cocaine. [Petitioner] told Odie the crack cocaine would cost $100. Odie went to the meeting with a woman he “used to call [his] wife.” Prior to leaving for the meeting, Odie, his companion, and the inside of the white Ford Explorer Odie was driving were searched by the police. The officers found no money or drugs. The police equipped Odie with recording equipment and provided him with money prior to the transaction. The video recording, which was played for the jury, captured the entire transaction. As the recording was played, Odie explained what was depicted. The video showed Odie driving to the meeting. During the drive, he called [Petitioner], who told him to come to a location near Fairview Park. Prior to his arrival, Odie called [Petitioner] to let him know he was on his way. During the conversation, [Petitioner] gave directions to his exact location. As they talked, Odie told [Petitioner], “‘I got a bill,’” which meant $100. -3- [Petitioner] responded, “‘I gotcha,’” and indicated that Odie should “come on.” Odie identified his and [Petitioner’s] voices on the recording. Odie said that after approximately ten or fifteen minutes, he arrived at the designated location. He saw a white house with an unattached brown shed, which he identified on the recording. As he walked toward the shed, [Petitioner] opened the door. Odie identified [Petitioner] as the person seen on the recording. Odie stepped inside the shed and saw another man with [Petitioner]. [Petitioner] said that he did not know whether Odie “wanted it soft or hard,” meaning powder or crack cocaine, respectively. Odie indicated he wanted crack cocaine. Odie explained that the video showed [Petitioner] getting the drugs out of a “dope sack.” [Petitioner] weighed the crack cocaine then told Odie, “‘I gave you 2.5 [grams],’” which was more than Odie had requested. Odie said that he would “definitely holler back at him again” for more crack cocaine. After [Petitioner] gave Odie the crack cocaine, Odie put $100 on the table; however, he never saw [Petitioner] pick up the money. Afterward, Odie returned to the Explorer, called Detective Dark, and advised him that he was on his way to meet with the officers. Odie did not stop anywhere along the way. As soon as he arrived at the designated location, Odie relinquished the crack cocaine to the officers and described the transaction. Odie said that on May 4, 2012, he again met with the officers prior to meeting with [Petitioner]. The police searched Odie, his vehicle, and his female companion and set up the recording equipment. The recording of the transaction was played for the jury, during which Odie again explained what was happening and identified [Petitioner]. Odie said that he thought he was supposed to try to buy a larger amount of crack cocaine. Once in Columbia, Odie called [Petitioner], but [Petitioner] was at a barbershop and promised to call Odie when he left the shop. [Petitioner] called a short while later and told Odie to return to the location of their previous meeting. When Odie arrived, [Petitioner] walked toward Odie and handed him a cigarette pack containing crack cocaine. Odie gave [Petitioner] $130. Odie told [Petitioner] that he would likely “holler at” him again. When the transaction was complete, Odie called Detective Dark and arranged to meet the officers. Upon arrival, Odie relinquished the drugs and provided details of the encounter. Odie said that the final purchase took place on May 11, 2012, at the same location near Fairview Park. Once again, the police gave Odie -4- recording equipment and searched Odie and his vehicle before he left. The recording of the transaction was played for the jury, and Odie narrated what transpired on the video. When Odie arrived at the location, [Petitioner] was sitting in the driver’s seat of a maroon SUV, and a man named Huey was sitting in the front passenger seat. Odie got into the backseat of the vehicle. [Petitioner] handed Odie the crack cocaine without turning around and indicated that he was giving Odie three grams of crack cocaine. Odie told [Petitioner] he had $150, but [Petitioner] said the price was only $140. Odie kept $10 and gave [Petitioner] $140. Afterward, Odie met with the officers, returned the $10, and relinquished the crack cocaine. Odie said that during each transaction, he dealt exclusively with [Petitioner]. The location of the transactions and the price of the drugs were determined by [Petitioner]. The State then asked the trial court to have [Petitioner] “step forward before the jury and display his bare arms to the jury.” Following the trial court’s instructions, [Petitioner] removed his long-sleeved shirt, rolled up the sleeves of his t-shirt, and showed his arms, which were tattooed, to the jury. On cross-examination, Odie said that the State had not promised him anything for his assistance but that he hoped his cooperation would work in his favor on his pending charges. He acknowledged that he made thirty or forty controlled drug buys for the police and that the purchases were made from several individuals. On redirect, Odie acknowledged that he was in “big trouble” as a result of his pending charges and that he had volunteered to help the State, hoping he could avoid returning to prison. He stated, however, that the State never asked him to purchase drugs specifically from [Petitioner]. Odie said that he did not see [Petitioner] pick up the money during the first transaction; however, he left the money on the table for [Petitioner] in exchange for the crack cocaine. After Odie testified, the parties stipulated that Fairview Park was a drug free zone pursuant to Tennessee Code Annotated section 39-17- 432(b)(1). Brett Trotter, a forensic scientist with the TBI, testified that he received three separate packages from the Columbia Police Department. Each package contained a plastic sandwich bag containing crack cocaine. The -5-  first bag contained 2.39 grams, the second bag contained 2.56 grams, and the third bag contained 2.90 grams. State v. Brian Pillow, No. M2014-01355-CCA-R3-CD, 2016 WL 1270263 , at *1-3 (Tenn. Crim. App. Mar. 31, 2016), perm. app. denied (Tenn. Aug. 18, 2016). Petitioner’s convictions and sentences were affirmed on direct appeal. Post-Conviction Hearing At the post-conviction hearing, Petitioner testified that he had three meetings with trial counsel prior to trial. They discussed a plea offer during one of those meetings. Petitioner agreed that the State made one plea offer to him but he understood that trial counsel was seeking a better offer. Petitioner testified: “So I wouldn’t took [sic] the offer because he’s saying he could possibly get me a better plea agreement. He didn’t say for sure that he was going to but he was going to let me know if he was or wasn’t.” Petitioner claimed that no one told him that the first plea offer was a final offer. He said that trial counsel came to the Turney Center and spoke with him three days prior to the trial date. Petitioner testified that trial counsel asked if he was ready for trial and noted that the State’s plea offer was “off the table.” He claimed that trial counsel never told him that there was a “timetable’ for acceptance of the State’s offer or that the offer was a final one. Petitioner testified that he did not give the plea offer the same consideration that he would have given had he known that the offer was a final offer. Petitioner asserted that he realized the morning of trial that no plea offer would be accepted. Petitioner testified that he felt that Kevin Odie’s testimony at trial was untruthful because he said that no promises or deals had been made with him prior to his testimony in Petitioner’s case. Petitioner asserted that Mr. Odie failed to acknowledge at trial that his bond had been significantly reduced in exchange for agreeing to work for police, which Petitioner said that he found out by reading this Court’s opinion in State v. Travis Lindsey, M2015-01954-CCA-R3-CD, 2016 WL 5937835 (Tenn. Crim. App. Oct. 12, 2016). As mentioned in that opinion, Officer Gray testified on cross-examination that Mr. Odie had pending charges for selling drugs and that Mr. Odie contacted police with information related to purchasing cocaine. As a result of his cooperation with police, Mr. Odie’s bond was reduced on April 5, 1012, from $100,000 to $2,500. Officer Gray admitted that Mr. Odie’s bond was reduced in order for him to help the police. He also agreed that “an informant who testified at trial generally received more consideration than one who remained confidential.” Id. at *2. Petitioner asserted at the post-conviction hearing that the State should have corrected Mr. Odie’s perjured testimony at his trial. He further asserted that the State knew that “deals” had been made with Mr. Odie, and Petitioner’s trial counsel should have known. Petitioner believed that Mr. Odie’s dishonesty on the witness stand about the bond reduction was one of Petitioner’s “greatest arguments” on post-conviction and -6- would have affected the outcome of his case. Petitioner was aware that Mr. Odie ultimately pled guilty in his own case and received a two-year suspended sentence. On cross-examination, Petitioner agreed that he had several drug convictions and a conviction for unlawful possession of a firearm on his record. All of the drug convictions involved possession of cocaine with intent to sell or the sale of cocaine. Petitioner testified that his discussions with trial counsel went in circles, and trial counsel told him that he might be able to get him a better deal if given more time. He also claimed that trial counsel told him that he did not feel as though he could ever win Petitioner’s case. Petitioner testified that the State’s plea offer was for the minimum sentence of “[e]ight years at 100 percent.” He said that trial counsel did not explain the elements of the crime that he was charged with but he explained the sentencing range for the crimes. Petitioner thought that he faced a potential sentence of thirty-six years if convicted. Petitioner testified that in the case of State v. Travis Lindsey, Officer Gray testified that Mr. Odie’s bond reduction was “part of a deal.” He said: Then Kevin O[die] further testified and agreed with Officer Gray saying that this was part of a deal. So I automatically assumed that my lawyer should have knew [sic] about this deal and should have br[ought] this deal to me. That could have also made me, I don’t want to go to trial, I’m going to go ahead and take this deal. But I wouldn’t have d[one] none of that with my lawyer telling me you’re going to give me a better deal. Petitioner testified that during Petitioner’s trial, trial counsel asked Mr. Odie if any deals or promises had been made to him, and Mr. Odie said no. Trial counsel testified that he met with Petitioner after being appointed to represent him. He went over each element of the offense with Petitioner and told him that the State would be required to prove each element beyond a reasonable doubt. Trial counsel testified that given the evidence in discovery, Petitioner had a very good chance of being found guilty at trial. Trial counsel did not have a plea offer from the State at the time. Trial counsel testified that the State eventually made a plea offer, and trial counsel timely communicated the offer to Petitioner. He agreed that there were scheduling orders used in Petitioner’s case, and there was a plea or settlement deadline in the case. Trial counsel testified that he communicated any plea offers to Petitioner prior to the plea or settlement deadline. He further testified that he spoke with Petitioner about the settlement deadline. Trial counsel asserted: “And that’s really one of the main points that I spoke to [Petitioner] about.” He never advised Petitioner not to worry about the original plea offer because he was going to obtain a better offer. However, trial counsel testified: -7-  I did talk to him about the possible better offer. I told [Petitioner] the offer, which was eight years at 100 percent. And it was a 100 percent sentence because it was within a thousand feet of Fairfield (sic) Park. And like I said a while ago, I went over each element of that offense with him. I told him that, look, we have got a plea deadline date. That is what is on the table. You don’t mess with Judge Hargrove when it comes to plea deadlines. You will go to trial if you don’t get it done. He was - - and I was very sympathetic to him. He was very concerned about his little girl, I believe, that he had just had. And he - - he was very immersed in that really more so than his case. And I have never been in his position. I can certainly understand that. But he was, no, I just can’t leave my little girl. And I told him, I said, look, the minimum time that you can get if you go to trial is eight years at 100 percent. That is if Judge Hargrove decides, if you are convicted of all three, that is if Judge Hargrove decides to run each of the offenses together, run them concurrently, and sentence you to the lowest number of years within the range, which is eight years. I said the worse [sic] case scenario would be for you to be sentenced to 12 years on each offense. * * * And Judge Hargrove ran them consecutively. And I said, given your prior background, given your criminal history, and given Judge Hargrove’s reputation as a tough judge, fair but tough, she might do that. And I urged [Petitioner] to think about his daughter in the manner of, you know, if you want to see your daughter, you know, you might want to take this plea. You have an opportunity to knock of[f] 15 percent and get it down to 85 percent for which he would have to serve. I said if you go to trial and you are convicted and the worst happens, you won’t ever see your daughter grow up. Trial counsel testified that he did not place Petitioner’s rejection of the plea offer in writing. He asserted that he last discussed the plea offer with Petitioner and reminded him of the plea deadline during a visit with Petitioner at the Turney Center prison. Trial counsel testified: I said, what I had told him at first, as I testified earlier, was that, okay, this is your plea deadline. This is your plea offer; however, you need to look at this as concrete. This, you have to do this if you want to guarantee and lock in this plea offer, if Judge Hargrove would have accepted it. I believe Her Honor would have. But I can try to get them -8-  to take the within 1,000 feet of a park, or whatever, off because anywhere you go in this town you are within 1,000 feet of a park or a school or a church or somewhere. And there is nowhere you could sell drugs in this town and not be within a thousand feet of something like that, just about. On cross-examination, trial counsel agreed that he filed a motion to withdraw as Petitioner’s counsel. A portion of the motion contained the following language: Undersigned counsel received an offer from Assistant District Attorney Brent Cooper and undersigned counsel conveyed that offer to the defendant and told the defendant that this Court required defendants to accept and enter into plea agreements roughly one month prior to the scheduled trial date. Undersigned counsel further explained to the defendant that if a criminal defendant did not so timely enter into a plea agreement, that this Court would only allow such a defendant to either, one, plead guilty to all charges in the indictment and have a subsequent sentencing hearing, in other words a blind plea, or have a jury trial. Trial counsel testified that he explained the scheduling order, which contained the plea deadline date, to Petitioner. Analysis Before proceeding into the analysis of Petitioner’s appellate issues, it is necessary to set forth that Petitioner’s counsel, who wrote Petitioner’s brief and ably presented oral arguments in Petitioner’s case, was appointed by this court to represent Petitioner. The appointment was necessary when Petitioner’s initial post-conviction counsel was allowed to withdraw as Petitioner’s counsel pursuant to a motion filed in this court. All of Petitioner’s complaints about post-conviction counsel discussed in this opinion refer to Petitioner’s initial counsel and not to counsel currently representing Petitioner. Initially, the State argues that Petitioner’s notice of appeal is a “nullity” because he filed his pro se notice of appeal while still represented by counsel, and therefore, his appeal is not properly before this court. It has long been the rule that a defendant may not be represented by counsel and simultaneously proceed pro se. State v. Davis, 141 S.W.3d 600 , 615-16 n. 12 (Tenn. 2004); State v. Burkhart, 541 S.W.2d 365 , 371 (Tenn. 1976). However, as acknowledged by the State, Tenn. R. App. P. 4 provides that “in all criminal cases the ‘notice of appeal’ document is not jurisdictional, and the filing of such document may be waived in the interest of justice. Tenn. R. App. P. 4 (a). “In determining whether waiver is appropriate, this [c]ourt will consider the nature of the issues presented for review, the reasons for and the length of the delay in seeking relief, and any other relevant factors presented in the particular case.” Gerry Hoover v. State, -9- No. M2011-02413-CCA-R3-PC, 2012 WL 4841608 , at *3 (Tenn. Crim. App. Oct. 10, 2012). In his reply brief, Petitioner asserts that the reason for filing a pro se notice of appeal was because of the “extremely poor communication between he and his initial post-conviction counsel as demonstrated throughout the record.” This is supported by the record. As pointed out by Petitioner in his reply brief, initial post-conviction counsel made the following statement at the post-conviction hearing: “And I will be the first to admit, [Petitioner], and I think I said this on the record before, certainly has a decent claim that I had not communicated well with him.” Petitioner’s initial post-conviction counsel also filed a motion to withdraw as counsel after the pro se notice of appeal was filed indicating that initial post-conviction counsel was unable to continue to maintain his legal practice. His motion states the following: As a direct and proximate result of the unceasing, unmitigated and utterly unmanageable requirements of attorney time and money necessarily expended by undersigned counsel stemming from the unrelenting and continuous appointment(s) of undersigned counsel (often in direct contravention of Tennessee Supreme Court Rule 13) to indigent defendants throughout the 22nd Judicial District and beyond; your undersigned counsel is no longer able to maintain a legal practice. We note that Petitioner’s notice of appeal in this case, if such a filing was appropriately filed by counsel, was timely. The order denying Petitioner’s petition for post-conviction relief was filed on July 2, 2018, and Petitioner’s pro se notice of appeal was filed on July 12, 2018. Because the pro se notice of appeal was timely filed, and due to the lack of communication between Petitioner and his initial post-conviction counsel, we waive the timely filing of the notice of appeal in the interest of justice. Gerry Hoover, 2002 WL 4841608 , *3; see also State v. Markettus L. Broyld, No. M2005-00299-CCA- R3-CO, 2005 WL 3543415 , at *1 (Tenn. Crim. App. Dec. 27, 2005). To obtain post-conviction relief, a petitioner must prove that his or her conviction or sentence is void or voidable because of the abridgement of a right guaranteed by the United States Constitution or the Tennessee Constitution. T.C.A. § 40-30-103 (2019); Howell v. State, 151 S.W.3d 450 , 460 (Tenn. 2004). A post-conviction petitioner bears the burden of proving his or her allegations of fact by clear and convincing evidence. T.C.A. § 40-30-110(f) (2019); Dellinger v. State, 279 S.W.3d 282 , 293-94 (Tenn. 2009). “Evidence is clear and convincing when there is no serious or substantial doubt about the correctness of the conclusions drawn from the evidence.” Grindstaff v. State, 297 S.W.3d 208 , 216 (Tenn. 2009) (quoting Hicks v. State, 983 S.W.2d 240 , 245 (Tenn. Crim. App. 1998)). - 10 -  The right to effective assistance of counsel is safeguarded by the Constitutions of both the United States and the State of Tennessee. U.S. Const. amend. VI; Tenn. Const. art. I, § 9. When a claim of ineffective assistance of counsel is made, the burden is on the petitioner to show (1) that counsel’s performance was deficient and (2) that the deficiency was prejudicial. Strickland v. Washington, 466 U.S. 668 , 687 (1984); see Lockhart v. Fretwell, 506 U.S. 364 , 368-72 (1993). Failure to satisfy either prong results in the denial of relief. Strickland, 466 U.S. at 697 . Accordingly, if we determine that either factor is not satisfied, there is no need to consider the other factor. Finch v. State, 226 S.W.3d 307 , 316 (Tenn. 2007) (citing Carpenter v. State, 126 S.W.3d 879 , 886 (Tenn. 2004)). Additionally, review of counsel’s performance “requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Strickland, 466 U.S. at 689 ; see also Henley v. State, 960 S.W.2d 572 , 579 (Tenn. 1997). We will not second-guess a reasonable trial strategy, and we will not grant relief based on a sound, yet ultimately unsuccessful, tactical decision. Granderson v. State, 197 S.W.3d 782 , 790 (Tenn. Crim. App. 2006). The deficient performance prong of the test is satisfied by showing that “counsel’s acts or omissions were so serious as to fall below an objective standard of reasonableness under prevailing professional norms.” Goad v. State, 938 S.W.2d 363 , 369 (Tenn. 1996) (citing Strickland, 466 U.S. at 688 ; Baxter v. Rose, 523 S.W.2d 930 , 936 (Tenn. 1975)). The prejudice prong of the test is satisfied by showing a reasonable probability that “but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694 . A reasonable probability is a “probability sufficient to undermine confidence in the outcome” of the trial. Id. The stronger the proof of guilt presented at trial, the more difficult it is to prove the prejudice prong of Strickland. When proof of guilt is overwhelming, proving prejudice is exceedingly difficult. See Proctor v. State, 868 S.W.2d 669 , 673 (Tenn. Crim. App. 1992); Randy Bray v. State, No. M2011-00665-CCA-R3-PC, 2012 WL 1895948 , at *6 (Tenn. Crim. App. May 23, 2012) (finding that, in light of overwhelming evidence, petitioner could not demonstrate prejudice); Raymond E. McNeil v. State, No. M2010-00671-CCA-R3-PC, 2011 WL 704452 , at *6 (Tenn. Crim. App. Mar. 1, 2011) (finding that overwhelming evidence of guilt precluded showing of prejudice from admission of item of evidence at trial). Petitioner first argues that trial counsel rendered deficient performance by failing to inform him of the deadline set by the trial court for accepting the State’s plea offer. The post-conviction court summarized the evidence presented at the post-conviction hearing concerning this ground and concluded: The Court finds [trial counsel] to be a knowledgeable attorney, experienced in criminal law and procedure. The Court finds his testimony credible. The Court has no doubt that [trial counsel] explained - 11 -  to [Petitioner] the deadline for accepting a plea agreement and entering a plea. Also, the Court is not aware that it is bound or compelled to accept any plea agreement tendered to it. The deadline for tendering a plea ran; the case was docketed for trial; and [Petitioner] was convicted. Now, it appears to the Court that [Petitioner] wishes he had accepted the plea agreement. The record in this case does not preponderate against the post-conviction court’s factual findings. At the post-conviction hearing, trial counsel testified that he timely communicated the State’s plea offer to Petitioner, and he informed Petitioner that there was a settlement date in the case. Trial counsel asserted: “And that’s really one of the main points that I spoke to [Petitioner] about.” He noted that he later spoke with Petitioner during a visit at the Turney Center prison about the plea offer and reminded him of the plea deadline. Trial counsel’s testimony is supported by the trial court’s scheduling order, issued the day after arraignment, which specifically set a deadline for the acceptance of plea offers. Additionally, trial counsel’s motion to withdraw contains the following language: Undersigned counsel received an offer from Assistant District Attorney Brent Cooper and undersigned counsel conveyed that offer to the defendant and told the defendant that this Court required defendants to accept and enter into plea agreements roughly one month prior to the scheduled trial date. Undersigned counsel further explained to the defendant that if a criminal defendant did not so timely enter into a plea agreement, that this Court would only allow such a defendant to either, one, plead guilty to all charges in the indictment and have a subsequent sentencing hearing, in other words a blind plea, or have a jury trial. The post-conviction court specifically found that trial court’s testimony was more credible and essentially concluded that Petitioner failed to prove his allegations of fact by clear and convincing evidence. This court will not re-weigh or re-evaluate the credibility determinations made by the post-conviction court. All questions concerning the credibility of witnesses, the weight and value to be given their testimony and the factual issues raised by the evidence are to be resolved by the trial court, not the appellate courts. Momon v. State, 18 S.W.3d 152 , 156 (Tenn. 1999). Petitioner is not entitled to relief on this basis. Next, Petitioner asserts that he expressed “absolute frustration” and “dissatisfaction” on the morning of his trial with trial counsel and requested new counsel. The trial court denied Petitioner’s request but appointed co-counsel to sit with trial - 12 - counsel throughout the trial. Petitioner argues that “if the court believed the remedy to a conflict between appointed counsel and his client was to appoint co-counsel, the court should have ordered a continuance to allow co-counsel time to prepare.” However, this issue was not raised in Petitioner’s amended post-conviction petition. Although Petitioner raised the issue of co-counsel being appointed in his original petition, the issue was abandoned in his amended petition. There was no evidence presented at the post- conviction hearing in support of this issue other than trial counsel’s testimony he did not recall co-counsel being in any way involved at Petitioner’s trial. There was no testimony about a continuance presented at the post-conviction hearing. Co-counsel did not testify at the post-conviction hearing, and the post-conviction court made no findings on this issue. The post-conviction hearing is limited to issues raised in the petition. Tenn. Sup. Ct. R. 28, § 8(D)(4). Since this ground for relief was abandoned in the amended petition, and no proof was presented at the post-conviction hearing on this specific ground, this issue is waived. Additionally, this issue is not cognizable in a post-conviction proceeding and should have been raised on direct appeal. “A post-conviction petition is not a vehicle to review errors of law as a substitute for direct appeal.” French v. State, 824 S.W.2d 161 , 163 (Tenn. 1992); see T.C.A. § 40-30-106(g) (“A ground for relief is waived if the petitioner personally or through an attorney failed to present it for determination in any proceeding before a court of competent jurisdiction in which the ground could have been presented . . .”). Petitioner is not entitled to relief on this issue. Finally, Petitioner contends that the State’s informant and witness, Kevin Odie, committed perjury at Petitioner’s trial by testifying that he had not been promised anything by the State in exchange for his cooperation. In the case of Travis Lindsey, which Petitioner read after he was denied relief on direct appeal, Petitioner learned that Mr. Odie’s bond for his own charges had been reduced from $100,000 to $2,500 so that he could work for police as an informant. Therefore, Petitioner argues, the State allowed perjured testimony at Petitioner’s trial and violated Brady v. Maryland, 373 U.S. 83 , 87 (1963) by not informing trial counsel of the bond arrangement with Mr. Odie. Initially, the State argues that this issue is waived because Petitioner withdrew this claim in his amended post-conviction petition filed by post-conviction counsel. As previously discussed, the post-conviction hearing is limited to issues raised in the petition. Tenn. Sup. Ct. R. 28, § 8(D)(4). A post-conviction court “may allow amendments and shall do so freely when the presentation of the cause will otherwise be subserved.” Tenn. Sup. Ct. R. 28, (D)(5); Smith v. State, 357 S.W.3d 322 , 658 n. 6 (Tenn. 2011) (the post-conviction court has “discretion to allow free amendment of post- conviction petitions”); See also James Patrick Stout v. State, No. W2011-00277-CCA- R3-PD, 2012 WL 3612530 , at *58 (Tenn. Crim. App. Aug. 23, 2012). Although Petitioner abandoned the claim concerning Mr. Odie’s alleged perjured testimony in his amended post-conviction petition, and the post-conviction court did not make specific - 13 - findings concerning this ground for relief, evidence, though scant, was presented at the post-conviction hearing on this ground. As to this ground for relief, Petitioner has failed to meet his burden of proof. To prove a Brady violation, a defendant must demonstrate that 1) he requested the information (unless the evidence is obviously exculpatory, in which case the state is bound to release the information whether requested or not); 2) that the state suppressed the information; 3) that the information was favorable to the defendant; and 4) that the information was material. Johnson v. State, 38 S.W.3d 52 , 56 (Tenn.2001). The evidence is deemed material if “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” United States v. Bagley, 473 U.S. 667 , 682, 105 S.Ct. 3375 , 3383, 87 L.Ed.2d 481 (1985). A Brady claim in a post-conviction proceeding is “governed by the same prejudice standard as an ineffective assistance of counsel claim.” Cauthern v. State, 145 S.W.3d 571 , 599 (Tenn. Crim. App. 2004). “[A] defendant must show that there is a reasonable probability that the result of the proceedings would have been different.” Id. at 598-99 . Concerning false testimony, this court has held: “[A] conviction obtained through the use of false evidence, known to be such by representatives of the State” deprives a defendant of due process. Napue v. Illinois, 360 U.S. 264 , 269, 79 S.Ct. 1173 , 1177, 3 L.Ed.2d 1217 (1959); see also Giglio v. United States, 405 U.S. 150 , 153, 92 S.Ct. 763 , 766, 31 L.Ed.2d 104 (1972); State v. Spurlock, 874 S.W.2d 602 , 617 (Tenn. Crim. App. 1993). “The same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears.” Napue v. Illinois, 360 U.S. at 269 , 79 S.Ct. at 1177 . Therefore, when a witness testifies falsely, either on direct or cross-examination, the state has an affirmative duty to correct such false testimony. State v. Spurlock, 874 S.W.2d at 617 . To prevail on a claim that the state knowingly presented false testimony, the [Petitioner] must show by a preponderance of the evidence “(a) that false or perjured testimony was admitted at trial, (b) that the state either knowingly used such testimony or knowingly allowed it to go uncorrected, and (c) that the testimony was material and deprived him of a fair trial.” Roger Morris Bell v. State, C.C.A. No. 03C01-9210-CR- 00364, 1995 Tenn. Crim. App. LEXIS 221 , at *9, Hamilton County (Tenn. Crim. App. filed March 15, 1995, at Knoxville), perm. to app. denied (Tenn. August 28, 1995); see also Phillip Shupe v. State, C.C.A. No. 03C01-9804-CC-00126, 1999 Tenn. Crim. App. LEXIS 111 , at *4, Bradley County (Tenn. Crim. App. filed February 9, 1999, at Knoxville). - 14 - James H. Register v. State, No. 01C01-9605-CC-00199, 1999 WL 333114 , at *6 (Tenn. Crim. App. May 26, 1999); see also Demarcus Ant-Juan Nelson v. State, No. E2017- 01418-CCA-R3-PC, 2018 WL 6721986 , at *13 (Tenn. Crim. App. Dec. 21, 2018). As pointed out by the State, trial counsel was not questioned about this issue at the post-conviction hearing to determine what he knew or did not know about Mr. Odie’s bond reduction. Also, the trial prosecutor was not called as a witness. The only proof presented was Petitioner’s testimony that he read the Travis Lindsey case and learned of the bond reduction. He further asserted that the State should have corrected Mr. Odie’s perjured testimony at his trial and that the State knew that “deals” had been made with Mr. Odie, and Petitioner’s trial counsel should have known of the deals. Petitioner believed that Mr. Odie’s dishonesty on the witness stand about the bond reduction was one of Petitioner’s “greatest arguments” on post-conviction and would have affected the outcome of his case. However, Petitioner failed to show that the State suppressed the information or knowingly used false information. As argued by the State in its brief, trial counsel could have possessed the information about Mr. Odie’s bond arrangement but chose not to use it. Additionally, it is not clear from the record that Mr. Odie actually committed perjury. Mr. Odie was asked at Petitioner’s trial only if he was “promised anything” in exchange for working with the State. Brian Pillow, 2016 WL 1270263 , at *2-3. It appears that the purpose of this line of questioning was to determine whether Mr. Odie was promised a favorable settlement of his own pending criminal charges. He admitted at Petitioner’s trial that he was seeking favor with the State but had no deal in place. This testimony was not false. Petitioner also has not demonstrated that Mr. Odie’s bond reduction was material to Petitioner’s case since the jury was already aware that Mr. Odie had motivation to lie in order to help his own case. Furthermore, as pointed out by the State, the revelation of Mr. Odie’s bond reduction in the Lindsey case did not help the defendant in that case who was convicted of similar drug offenses as Petitioner. Travis Lindsey, 2016 WL 5937835 , at *1. Petitioner is not entitled to relief on this issue. CONCLUSION Based on the foregoing, the judgment of the post-conviction court is affirmed. ____________________________________________ THOMAS T. WOODALL, JUDGE - 15 -

2020-11-21 03:15:47.786111+00

E. S. Shipp v. Commissioner. E. S. Shipp v. Commissioner Docket No. 36769. United States Tax Court 1953 Tax Ct. Memo LEXIS 210; 12 T.C.M. (CCH) 682; T.C.M. (RIA) 53212; June 15, 1953 Dexter D. Jones, Esq., for the petitioner. William P. Flynn, Esq., for the respondent. MURDOCK Memorandum Opinion MURDOCK, Judge: The Commissioner determined a deficiency of $1,451.42 in the petitioner's income tax for 1949. The only issue for decision is whether fees to an attorney and to an accountant in defense of a lawsuit are deductible as ordinary and necessary expenses under section 23 (a) (2). The facts have been stipulated and are found as stipulated. The petitioner*211 filed his individual return for 1949 with the collector of internal revenue for the Sixth District of California. The petitioner and Elaine Shipp were married on April 11, 1940 and continued as husband and wife until Elaine died on July 27, 1948. Her executor, one month later, filed an action in a California court against the petitioner, his two sons and five corporations in which the petitioner held stock. The principal purpose of the suit was to obtain for Elaine's estate stock in the corporations held by the petitioner, stock in one recently transferred to his sons after Elaine and the petitioner had separated, small amounts of money held by the petitioner in banks and large amounts allegedly due him from the corporations as salary, all of which was claimed by the executor as Elaine's share of the community property of herself and the petitioner. The complaint mentioned some other property which the petitioner, in his answer, admitted he had given to Elaine or which he denied owning. He admitted that he owned stock in the corporations and money in banks but denied it was community property and alleged it was his separate property. He denied that any money was due him from the*212 corporations. The Court decided, in accordance with the answer filed by the petitioner, that the stock and bank deposits held by the petitioner was his separate property and that none claimed by the executor was community property. The petitioner employed an attorney and an accountant to assist him in his defense against the claims of Elaine's executor and paid them $2,575 in 1949. He deducted that amount on his 1949 return as expenses in connection with the management, conservation or maintenance of property held for the production of income. The Commissioner disallowed the deduction. Legal and accounting fees paid in defending title to property are capital expenditures and are not deductible as ordinary and necessary expenses under section 23 (a) (1) or (2). ; , certiorari denied ; , affd. ; ; , certiorari denied ; ,*213 affd. ; , affd. on this point , aff'd. on other issues ; ; ; . There is here no question of allocation of the fees. Cf. Midco Oil Co., 20 T.C. -, (June 10, 1953. The primary purpose of the suit was to obtain title to property claimed by the petitioner as his separate property and the expenditures in question were for the purpose of defending that title. Decision will be entered for the respondent.

2021-01-26 19:02:33.210638+00

https://www.courts.ca.gov/opinions/nonpub/G058894.PDF

Filed 1/26/21 P. v. Sanchez CA4/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS 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 FOURTH APPELLATE DISTRICT DIVISION THREE THE PEOPLE, Plaintiff and Respondent, G058894 v. (Super. Ct. No. 00SF0657) LEONARDO PIMENTEL SANCHEZ, OPINION Defendant and Appellant. Appeal from a judgment of the Superior Court of Orange County, Gregg L. Prickett, Judge. Affirmed. Christine Vento, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. * * *  INTRODUCTION This is defendant Leonardo Pimentel Sanchez’s second appeal following his conviction for first degree murder. In his first appeal, we affirmed the judgment of conviction but remanded for the trial court to hold a resentencing hearing with the limited purpose of exercising its discretion whether to strike Sanchez’s two prior serious felony sentencing enhancements under Penal Code section 667, subdivision (a). (All further statutory references are to the Penal Code.) At the resentencing hearing, the trial court declined to strike the enhancements. Appointed appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), setting forth the facts of the case and requesting we review the entire record. Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders), counsel identified a potential issue to assist us in our independent review. We provided Sanchez 30 days to file written argument on his own behalf; he has submitted several pieces of handwritten correspondence, none of which identifies any appealable issue or related argument. We have independently examined the entire record, appointed appellate counsel’s Wende/Anders brief, and Sanchez’s correspondence; we have found no reasonably arguable issue. (Wende, supra, 25 Cal.3d 436 .) We therefore affirm. FACTS We provided a detailed summary of the underlying facts in our opinion from Sanchez’s first appeal, People v. Sanchez (July 10, 2019, G055222) [nonpub. opn.] (Sanchez I). In short, the prosecution presented evidence that in 1992, the partially- clothed body of then 19-year-old Cari Anne Parnes was found in an orange tree orchard. Parnes appeared to have suffered blunt force trauma to the upper left temple area of her head and had bruising and discoloration on her neck and left shoulder area. Heavy rains that occurred around the time Parnes’s body was discovered hindered the collection of evidence. 2  One year later, intact sperm was observed on vaginal swabs that had been collected from Parnes’s body. Further testing of the sample identified a single source DNA profile for the detected sperm which matched the standard DNA profile detected in a sample taken from Sanchez. The DNA profile obtained from the vaginal swab sample would be expected to be found in fewer than one in one trillion unrelated individuals. Eight years before Parnes’s murder, Sanchez pleaded guilty to committing one count of rape and one count of penetration by a foreign object against Irene T. Sanchez was sentenced to an eight-year prison term. He was released from prison in 1989. Irene T. testified in the instant case that in 1984, Sanchez had driven her to the same orange grove where Parnes’s body was found in 1992, parked the car, and became violent. He hit Irene T. in the face and raped her. When she tried to escape, Sanchez put his arm around her neck, raped her again, and repeatedly hit her in the face. After a helicopter appeared hovering overhead, Irene yelled and was eventually able to run away from Sanchez to a nearby house and get help. BACKGROUND In this case, a jury found Sanchez guilty of first degree murder. The trial court found true sentencing enhancement allegations that Sanchez had suffered two prior serious felony convictions. The trial court imposed a sentence of 25 years to life in prison plus a determinate term of 10 years. In Sanchez I, supra, G055222, we rejected Sanchez’s arguments that the trial court made prejudicially erroneous evidentiary rulings and that insufficient evidence supported his conviction. During the pendency of that appeal, Senate Bill No. 1393 (Stats. 2018, ch. 1013) (S.B. 1393) became effective, thereby amending sections 667, subdivision (a) and 1385, subdivision (b) to vest in the trial court discretion to strike the five-year prior serious felony conviction enhancement under section 667, subdivision (a)(1). This statutory change applied to Sanchez because it occurred while his case was 3 not yet final. We therefore affirmed the judgment of conviction but remanded with directions for the trial court to hold a resentencing hearing with the limited purpose of exercising its discretion whether to strike Sanchez’s prior serious felony convictions. At the resentencing hearing following remand at which Sanchez was present and represented by counsel, Sanchez’s counsel asked the court to exercise its discretion to strike his prior serious felony convictions given Sanchez’s “age and disability as related to his hearing and eyesight.” The prosecutor submitted on the court’s prior sentencing decision. The trial court declined to strike Sanchez’s prior serious felony convictions, noting “the nature of this offense, the facts and circumstances of the defendant’s prior, [and] the underlying aggravating and mitigating factors as stated at the [original] sentencing.” Sanchez appealed. ANALYSIS In the Wende/Anders brief filed in the instant appeal, appellate counsel suggests we consider whether the trial court abused its discretion in declining to strike the two prior serious felony convictions under section 667, subdivision (a), as amended by S.B. 1393. Sanchez filed four pieces of handwritten correspondence, none of which identifies any appealable issue or related argument. “We review a court’s decision to deny a motion to strike a five-year prior serious felony enhancement for an abuse of discretion.” (People v. Shaw (2020) 56 Cal.App.5th 582 , 587.) The court reaffirmed the imposition of the section 667, subdivision (a) prior serious felony conviction sentencing enhancements, referencing the same reasons it noted at Sanchez’s prior sentencing hearing. A resentencing court may consider the same factors it considered when issuing the original sentence. (People v. Pearson (2019) 38 Cal.App.5th 112 , 117.) Nothing in the record suggests the trial court abused its discretion in declining to strike the two prior serious felony convictions. 4  We have reviewed the record in accordance with Wende and Anders, and we find no arguable issues on appeal. (People v. Kelly (2006) 40 Cal.4th 106 , 110, 120, 124.) DISPOSITION The judgment is affirmed. FYBEL, J. WE CONCUR: O’LEARY, P. J. ARONSON, J. 5

2021-01-26 19:02:33.418359+00

https://www.courts.ca.gov/opinions/nonpub/F079785.PDF

Filed 1/26/21 P. v. Parker CA5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 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 FIFTH APPELLATE DISTRICT THE PEOPLE, F079785 Plaintiff and Respondent, (Super. Ct. No. P16900179-3) v. DEWAYNE KEITH PARKER, OPINION Defendant and Appellant. THE COURT* APPEAL from orders of the Superior Court of Fresno County. Mark E. Cullers, Judge. Peggy A. Headley, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent. -ooOoo- * Before Poochigian, Acting P.J., Meehan, J. and DeSantos, J.  Appointed counsel for defendant Dewayne Keith Parker asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 .) Defendant was advised of his right to file a supplemental brief within 30 days of the date of filing of the opening brief. Defendant did not respond. Finding no arguable error that would result in a disposition more favorable to defendant, we affirm. BACKGROUND On March 27, 2012, defendant was convicted by plea of vehicle manslaughter with gross negligence (Pen. Code, § 192, subd. (c)(1); count 1) and corporal injury to a spouse (Pen. Code, § 273.5, subd. (a)). The trial court sentenced him to eight years in prison. On July 9, 2016, defendant was released on parole. His parole was scheduled to expire on April 13, 2021. On July 26, 2019, defendant’s parole officer filed a petition for revocation of defendant’s parole, alleging various parole violations. At a parole violation hearing on July 30, 2019, defendant informed the trial court he wished to admit the allegation that he failed to enroll in an outpatient drug treatment program. Defense counsel stated the admission was against his advice. But defendant insisted. The court advised him of the various rights he was giving up and defendant responded that he understood. He also stated he had had enough time to discuss the rights with counsel. Defendant admitted the allegation, stating he was doing so because it was true; he said he knew the conduct was a violation of parole. The court found his admission voluntarily and knowingly made. The court found he had violated parole. It ordered 100 days in custody, awarded credits, and reinstated parole under the original terms and conditions. 2.  On August 6, 2019, defendant filed a letter stating he wished to appeal the court’s order. We have reviewed the record and find no arguable error that would result in a disposition more favorable to defendant. DISPOSITION The trial court’s July 30, 2019 orders are affirmed. 3.

2021-01-26 19:02:33.717159+00

https://www.courts.ca.gov/opinions/nonpub/C089590.PDF

Filed 1/26/21 P. v. Miller 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 (Sacramento) ---- THE PEOPLE, C089590 Plaintiff and Respondent, (Super. Ct. No. 18FE022888) v. DERRICK LANDON MILLER, Defendant and Appellant. A jury found defendant Derrick Landon Miller guilty of assault with a firearm, making a criminal threat, and being a felon in possession of a firearm. On appeal, he challenges the exclusion of evidence related to a prior conviction and the trial court’s refusal to provide a pinpoint jury instruction. We will affirm the judgment. BACKGROUND The victim was driving down a street one afternoon when defendant attempted to merge into his lane of traffic. The victim did not allow defendant to merge, so defendant followed the victim before pulling in front of him. Defendant got out of his car, pulled a gun from his waistband, put a magazine in the gun, and cocked it while walking towards 1 the victim’s truck. He walked up to the truck window, pointed the gun at the victim’s head, and said, “you don’t do that shit out here in Sacramento. We’ll blow your fucking brains out.” Defendant pulled out another magazine and told the victim “he was going to unload that one in [the victim’s] fucking head, as well.” Defendant then got back in his car and drove away. The victim called 911 and was interviewed by a sheriff’s deputy later that day. The victim identified defendant in a photographic lineup and at trial. The prosecution charged defendant with assault with a firearm (Pen. Code, § 245, subd. (b))1, making a criminal threat (§ 422), and being a felon in possession of a firearm (§ 29800, subd. (a)(1)). The prosecution further alleged defendant had personally used a firearm (§ 12022.5, subds. (a), (d)) with respect to the first two counts. A. Defendant’s Motion in Limine Defendant’s chief argument at trial was that he had pointed an imitation gun at the victim, rather than a real firearm. Defendant filed a motion in limine to admit evidence of a prior conviction for brandishing an imitation firearm (§ 417.4). In the prior incident, which occurred approximately one year before the charged crimes, defendant was driving past an off-duty police officer and mouthed “what the fuck are you looking at” to the officer. The officer shook his head “in disgust,” and defendant began waving what appeared to be a handgun while driving his car. Later that day, when defendant was pulled over and apprehended, an officer found a replica firearm in his car. Defendant pleaded no contest to brandishing an imitation firearm and was sentenced to serve 30 days in jail. Defense counsel contended the prior conviction should be admitted because it showed identity, plan, and intent in that it demonstrated defendant intended to threaten the victim “with something that looks like a firearm, but is not actually a firearm.” The 1 Undesignated statutory references are to the Penal Code. 2 trial court denied defendant’s motion, saying: “I don’t find that its probative value is substantially outweighed by undue prejudice. [¶] I think again this goes to some sort of lack of common plan or scheme. I don’t think identity is really an issue in this case, and I think with regard to intent, I do think it will require the jury to speculate as to what he had in this case based upon something that happened a few months ago prior to the incident in question.” The court determined the conviction could be used for impeachment, however, if defendant testified. B. Trial Proceedings Both parties introduced testimony about the gun defendant used. The victim testified that although he was not an expert on firearms, he had seen BB guns and pellet guns and knew what they looked like. He also knew what a handgun magazine looked like and how it looked to rack the slide of a handgun. The victim testified that when defendant was walking towards him and cocked the gun, the victim heard a “metal on metal” sound. He did not remember at trial whether the second magazine defendant pulled out was loaded, but did recall that he told the deputy who responded to the incident that both magazines were loaded. On cross-examination, the victim admitted he later told an investigator from the public defender’s office that he did not know whether the firearm was loaded, but explained he believed his initial statement to the responding deputy was more accurate. Deputy Jonathan Guibord, the deputy who initially interviewed the victim, testified the victim told him he had seen bullets in the magazine. District attorney investigator William Hutto testified as an expert in firearm recognition and discussed the characteristics of real firearms. In particular, he explained bullets in a semiautomatic firearm are contained in magazines that are loaded into the handle of the firearm; you would rack the slide on the firearm to load a round from the magazine into the firearm, and racking the slide creates a specific metal on metal sliding sound. Replica guns would not have bullets contained in a magazine or magazine-like cartridge, the rounds for a 3 replica gun would be very small, and the magazine of a real firearm would be clearly distinguishable from the magazine or magazine-like cartridge of a replica firearm. On cross-examination, Hutto testified he had never seen a replica gun with rounds stored in a magazine, although he had seen replica guns with carbon dioxide cartridges that looked like magazines. He also explained that a replica firearm is not considered a “firearm” under California law because “it doesn’t use powder.” Rather, they use “compressed air or gas.” Public defender investigator Kevin Baker testified he had interviewed the victim and the victim had said he was not paying attention to the sound defendant’s gun made when he racked the slide. The victim also told Baker he could not see any rounds in the magazines. Defendant testified when he threatened the victim, he was using an airsoft BB gun that looked like a semi-automatic firearm. The gun used carbon dioxide cartridges that loaded into the handle. Defense counsel elicited testimony that defendant had been convicted of brandishing a replica firearm in a road rage incident and had other convictions for possession of brass knuckles, petty theft, and receipt of stolen property. The officers that arrested defendant did not find the replica firearm because he had thrown it away and he never told anyone it was a replica firearm. C. Jury Instructions To instruct the jury on the assault with a firearm and felon in possession of a firearm charges, and the personal use of a firearm enhancements, the trial court used pattern jury instructions CALCRIM Nos. 875, 2510, and 3146. All three instructions contain a paragraph defining a firearm as “any device designed to be used as a weapon, from which a projectile is discharged or expelled through a barrel by the force of an explosion or other form of combustion.” Defendant filed a motion requesting a pinpoint jury instruction explaining “a BB gun is not a firearm, because toy guns don’t qualify as a firearm, pellet guns, BB guns. 4 [¶] Because instead of an explosion or a combustion, they use the force of air pressure, gas pressure or spring-action to expel a projectile, and that’s right out of People versus [Monjaras],[2] and that’s an accurate statement of the law.” The trial court noted Monjaras had not occurred in the context of jury instructions, so it “doesn’t necessarily mean that’s the instruction that you have to give,” but promised to consider the issue. Later that day, the court sent the parties a tentative jury instruction, which included a pinpoint instruction in CALCRIM No. 875 reading: “An imitation firearm is defined as ‘any BB device, toy gun, replica or a firearm, or other device that is so substantially similar in coloration and overall appearance to an existing firearm as to lead a reasonable person to perceive that the device is a firearm.’ A realistic replica gun, a pellet gun, or a BB gun is not a gun as a matter of law if it does not fire a projectile by means of combustion.” Early the next morning, defense counsel e-mailed a response to the draft instruction, saying it was “a true statement of the law,” but that the last line was misleading because such guns do not fire projectiles by means of combustion. Instead, she proposed the last line be edited to read: “A realistic replica gun, a pellet gun, or a BB gun is not a firearm as a matter of law.” Later that morning, the court noted it had reviewed the e-mail, and reconsidered offering the pinpoint instruction, stating: “But rather, having thought about it, the Court is going to leave the standard language in 875 as-is. “I believe the further language defining whether or not a replica gun or a BB gun or a pellet gun is a firearm because it doesn’t fire a projectile by use of combustion or gas, I think that’s a factual determination. I think for the Court to actually instruct the jury on that usurps the function of the jury as a fact-finder. 2 People v. Monjaras (2008) 164 Cal.App.4th 1432 . 5  “There was testimony from one of the witnesses, who was qualified as an expert in the use of firearms to that [effect], and I think it’s for the jury to make that finding. “I don’t believe it’s appropriate for the Court to actually give that and make that factual finding on its own, so . . . “And I understand -- I will tell you this: “I’ve read more cases with respect to this issue. Obviously the issue of replica guns versus real guns comes up in many cases. Not all of them are published. “But in the unpublished cases that I saw, none of them dealt with additional jury instructions or pinpoint instructions. Most of them dealt with substantial evidence and whether or not there was substantial evidence to support a conviction. “In all of those cases, the standard language was used without further elaboration or definition. “So in light of that and the possibility of confusion, because I think if I’m going to instruct on the law, then I need to instruct on 16060, which defines the [imitation] firearm, but I also think that’s confusing. “So I am going to go ahead and strike the pinpoint language in 875.” The court ultimately delivered the pattern jury instructions without the pinpoint language. The jury found defendant guilty on all counts and found true the personal use of a firearm allegations. DISCUSSION I Admission of Prior Conviction Defendant argues the trial court erred in excluding evidence of his prior conviction for brandishing a replica firearm because the conviction was highly probative of his intent to threaten the victim with a replica firearm. He asserts its exclusion prevented him from presenting a complete defense and violated his due process rights. We disagree. 6  Evidence Code section 1101, subdivision (a) prohibits the admission of evidence of uncharged offenses to prove propensity or disposition to commit the charged crime. (People v. Ewoldt (1994) 7 Cal.4th 380 , 393; People v. Hendrix (2013) 214 Cal.App.4th 216 , 238.) However, subdivision (b) of that section provides that such evidence is admissible “when relevant for a noncharacter purpose—that is, when it is relevant to prove some fact other than the defendant’s criminal disposition, such as ‘motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake [of fact] or accident.’ ” (Hendrix, at p. 238.) “ ‘Evidence of intent is admissible to prove that, if the defendant committed the act alleged, he or she did so with the intent that comprises an element of the charged offense. “In proving intent, the act is conceded or assumed; what is sought is the state of mind that accompanied it.” ’ ” (People v. Ghebretensae (2013) 222 Cal.App.4th 741 , 754.) “To be relevant, an uncharged offense must tend logically, naturally and by reasonable inference to prove the issue(s) on which it is offered.” (People v. Robbins (1988) 45 Cal.3d 867 , 879.) “ ‘ “When reviewing the admission of evidence of other offenses, a court must consider: (1) the materiality of the fact to be proved or disproved, (2) the probative value of the other crime evidence to prove or disprove the fact, and (3) the existence of any rule or policy requiring exclusion even if the evidence is relevant.” ’ ” (People v. Thompson (2016) 1 Cal.5th 1043 , 1114.) Even where prior acts evidence is not excludable under Evidence Code section 1101, “the admission of such evidence ‘ “ ‘must not contravene other policies limiting admission, such as those contained in Evidence Code section 352.’ ” ’ [Citations.] Under Evidence Code section 352, the probative value of a defendant’s prior acts must not be substantially outweighed by the probability that its admission would create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (People v. Davis (2009) 46 Cal.4th 539 , 602.) “ ‘We review for abuse of discretion a trial 7 court’s rulings on relevance and admission or exclusion of evidence under Evidence Code sections 1101 and 352.’ ” (Ibid.) Here, defendant was charged with assault with a firearm, which does not have a specific intent requirement. (People v. Golde (2008) 163 Cal.App.4th 101 , 108-109 [“ ‘Because the offensive or dangerous character of the defendant’s conduct, by virtue of its nature, contemplates such injury, a general criminal intent to commit the act suffices to establish the requisite mental state’ ”].) Defendant was also charged with making a criminal threat, which “does not require an intent to actually carry out the threatened crime. [Citation.] Instead, the defendant must intend for the victim to receive and understand the threat, and the threat must be such that it would cause a reasonable person to fear for his or her safety.” (People v. Wilson (2010) 186 Cal.App.4th 789 , 806.) Assuming defendant committed the charged acts, there was little evidence required of his intent because the acts themselves—pointing a gun at the victim and threatening to “blow [his] fucking brains out”—had a strong tendency to establish the requisite intent. That defendant had committed a similar act in the past would thus have only marginal value as to his intent. Moreover, the prior conviction would not make it more or less likely the gun defendant used in the charged crime was a replica unless the conviction was offered for an impermissible propensity purpose; in other words, to show defendant was using a replica firearm in this particular instance because he had previously used a replica firearm in similar circumstances. Defendant’s prior conviction, which involved defendant brandishing an imitation gun after a police officer shook his head at defendant, was not more inflammatory than the charged crime—the prior conviction was a misdemeanor, while the charged crimes were felonies. (§§ 245, subd. (b), 417.4, 422.) It would, however, be prejudicial in that it tended to show defendant had a short temper that was easily triggered while he was driving. And, as the trial court noted, it was highly likely the jury would attempt to use the conviction as propensity evidence to establish whether defendant was using a real 8 firearm in the charged crime. (People v. Doolin (2009) 45 Cal.4th 390 , 439 [evidence is unduly prejudicial where there is a “ ‘substantial likelihood the jury will use it for an illegitimate purpose’ ”].) Given the limited probative value the evidence offered, the trial court did not abuse its discretion when it determined the potential for undue prejudice substantially outweighed the prior conviction’s probative value. For similar reasons, defendant’s due process rights were not violated. (See People v. Kraft (2000) 23 Cal.4th 978 , 1035 [“Application of the ordinary rules of evidence generally does not impermissibly infringe on a capital defendant’s constitutional rights”].) Even were the exclusion error, it would be harmless. The court permitted the prior conviction to be used for impeachment purposes and defense counsel introduced testimony from defendant concerning the salient details of the prior conviction: that defendant had been convicted for brandishing an imitation firearm in a road rage incident. There was also substantial evidence the firearm used in the charged crime was real. The victim testified defendant was using a real firearm in the incident and observed several characteristics of the gun, including its appearance and the sound it made when it was cocked, that identified it as a real firearm. Although he acknowledged he was not a firearms expert, he had seen guns, including replica guns, and an expert witness testified the differences between a real and replica firearm magazine would be readily identifiable. Given this evidence, it is not reasonably probable the admission of any additional details of defendant’s prior conviction would have led to a more favorable verdict. (People v. Fudge (1994) 7 Cal.4th 1075 , 1103-1104 [exclusion of defense evidence analyzed under Watson3 standard]; People v. Malone (1988) 47 Cal.3d 1 , 22 [analyzing Evid. Code, § 1101, subd. (b) error under Watson].) 3 People v. Watson (1956) 46 Cal.2d 818 . 9  II Pinpoint Jury Instruction Defendant further asserts he was entitled to a pinpoint jury instruction explaining that BB guns, air guns, or other replica guns are not “firearms” as a matter of law. Because this is a correct statement of law, defendant claims, the trial court prejudicially erred when it used only the pattern jury instruction. We disagree. “ ‘Upon proper request, a defendant has a right to an instruction pinpointing the theory of defense . . . if the theory proffered by the defendant is supported by substantial evidence’ [citation], the instruction is a correct statement of law [citation], and the proposed instruction does not simply highlight specific evidence the defendant wishes the jury to consider [citation].” (People v. Jo (2017) 15 Cal.App.5th 1128 , 1174.) The trial court “ ‘may properly refuse an instruction offered by the defendant if it incorrectly states the law, is argumentative, duplicative, or potentially confusing [citation], or if it is not supported by substantial evidence.’ ” (People v. Bivert (2011) 52 Cal.4th 96 , 120.) “[W]here standard instructions fully and adequately advise the jury upon a particular issue, a pinpoint instruction on that point is properly refused.” (People v. Canizalez (2011) 197 Cal.App.4th 832 , 857.) “There is no error in a trial court’s failing or refusing to instruct on one matter, unless the remaining instructions, considered as a whole, fail to cover the material issues raised at trial.” (People v. Dieguez (2001) 89 Cal.App.4th 266 , 277.) We review claims of instructional error de novo. (People v. Posey (2004) 32 Cal.4th 193 , 218.) “We look to the instructions as a whole and the entire record of trial, including arguments of counsel. [Citation.] Where reasonably possible, we interpret the instructions ‘ “to support the judgment rather than [to] defeat it.” ’ ” (People v. Mason (2013) 218 Cal.App.4th 818 , 825.) Here, the trial court instructed the jury using jury instructions CALCRIM Nos. 875, 2510, and 3146, which all include a paragraph defining a firearm as “any device 10 designed to be used as a weapon, from which a projectile is discharged or expelled through a barrel by the force of an explosion or other form of combustion.” This definition, which matches the statutory definition of “firearm,” necessarily excludes any device, such as a pellet gun, BB gun, or air gun, that does not expel a projectile by the force of an explosion or other form of combustion. (§§ 12001, 16520, subd. (a) [“ ‘firearm’ means a device, designed to be used as a weapon, from which is expelled through a barrel, a projectile by the force of an explosion or other form of combustion”]; see People v. Monjaras, supra, 164 Cal.App.4th at p. 1435.) A further definition of the term which explicitly excludes such devices would thus be duplicative. Nor do we agree with defendant’s contention that the trial court’s refusal to provide the pinpoint instruction deprived the jury of its ability to determine whether a BB gun constituted a firearm. The jury instruction provided, which defined a firearm by explaining its use of explosive force to propel a projectile, could be easily applied given the evidence introduced at trial and the closing arguments by both parties. Both defense and prosecution witnesses testified about the differing means of propulsion for real and replica firearms, and both counsel applied these facts to the firearm definition in closing. The provided jury instructions fully and adequately defined the term “firearm” for the jury and gave defendant ample ground to argue his gun was not real and thus could not meet the elements required by his charges. We conclude the trial court did not err by refusing to instruct the jury with defendant’s proposed pinpoint instruction. III Cumulative Error Defendant contends that his conviction should be reversed because cumulative error deprived him of a fair trial. Because we have “ ‘either rejected on the merits defendant’s claims of error or have found assumed errors to be nonprejudicial[,] [w]e reach the same conclusion with respect to the cumulative effect of any [purported] errors.’ ” (People v. Cole (2004) 33 Cal.4th 1158 , 1235-1236.) 11  DISPOSITION The judgment is affirmed. /s/ RAYE, P. J. We concur: /s/ BLEASE, J. /s/ ROBIE, J. 12

2020-09-04 20:00:37.281455+00

http://www.opn.ca6.uscourts.gov/opinions.pdf/20a0519n-06.pdf

NOT RECOMMENDED FOR PUBLICATION File Name: 20a0519n.06 No. 19-2366 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT KURT HAMMOND, ) FILED ) Sep 04, 2020 Plaintiff-Appellee, ) DEBORAH S. HUNT, Clerk ) v. ) ) COUNTY OF OAKLAND, MICHIGAN, a ) ON APPEAL FROM THE Municipal Corporation; CHRISTOPHER ) UNITED STATES DISTRICT CADOTTE, JAMES SALYERS, and DAVID ) COURT FOR THE EASTERN WELCH, Deputies, in their individual capacities, ) DISTRICT OF MICHIGAN jointly and severally, ) ) Defendants-Appellants. ) Before: ROGERS, KETHLEDGE, and NALBANDIAN, Circuit Judges. KETHLEDGE, Circuit Judge. The facts of this case, as we are required to view them, are that three Oakland County sheriff’s deputies pinned Kurt Hammond to the ground, handcuffed him, and then ordered a police dog to bite him. The district court held that the deputies’ actions violated Hammond’s clearly established constitutional rights, thereby precluding qualified immunity. We affirm in part and reverse in part. We take the district court’s view of the facts in the light most favorable to Hammond. See Machan v. Olney, 958 F.3d 1212 , 1213 (6th Cir. 2020). On December 3, 2016, a woman stabbed Kurt Hammond in the chest, fled from his house, and called the police to report that Hammond had raped her. Several deputies—including Christopher Cadotte and his dog, Odin—went to Hammond’s house to investigate. Hammond was tending to his stab wound when he heard No. 19-2366, Hammond v. Oakland County, et al. banging on the back door. He thought the woman’s friends had come to harm him, so he threatened to call the police. The deputies responded, “We are the police!” Hammond told the deputies to go to the front door, which he unlocked. Then Hammond “ran back into the bedroom” to continue tending to his stab wound. The bedroom was out of the deputies’ sight, however, so they warned Hammond to come back out or they would release Odin into the house. Hammond says he never heard that warning. Instead, while he was treating his stab wound, he looked up and saw Odin inside, barking to indicate Hammond’s location to the deputies. Cadotte and deputies James Salyers and David Welch then entered the house as Hammond came out of the bedroom, within arm’s length of the deputies. Cadotte tackled Hammond to the ground, where Salyers and Welch pinned him down to restrain him with handcuffs. Hammond refused to show his hands, however, because he was clutching bandages to his chest wound. The deputies eventually rolled Hammond onto his stomach and handcuffed him. At that point, Hammond says that he “heard some kind of foreign language,” and then Odin started “ripping [him] in the back.” Seconds later, Hammond says that he heard “another foreign language,” and that Odin “changed positions on [his] back” and bit him again, this time on the right foot. Hammond cried out in pain and told the deputies that Odin was biting him, but, according to Hammond, the deputies replied that Odin “ain’t doing nothing but holding you.” Odin then shifted from Hammond’s feet to his legs, “chewing and chewing” while, according to Hammond, the deputies “stood by and let the dog do what it wanted to do[.]” Hammond says that he then heard a deputy tell Odin to “stop or something,” but the dog would not listen, even biting Cadotte in the process before finally being brought to heel. The entire takedown lasted approximately 20 seconds. Afterward Hammond was taken to a nearby hospital and treated for his injuries, including several broken bones in his foot. -2- No. 19-2366, Hammond v. Oakland County, et al. Hammond thereafter brought this claim under 42 U.S.C. § 1983, alleging that the deputies used excessive force in violation of the Fourth Amendment. Hammond also sued Oakland County, claiming that the County failed to have an effective dog policy and failed to train Odin. The defendants moved for summary judgment, the deputies specifically on the basis of qualified immunity. The district court denied the motion. This appeal followed. We review de novo the legal aspects of the district court’s denial of qualified immunity. Machan, 958 F.3d at 1214 . Determinations of qualified immunity require us to answer two questions: first, whether the officers violated a constitutional right; and second, whether that right was clearly established in light of the specific context of the case. Id. We may address those questions in whichever order we see fit. Pearson v. Callahan, 555 U.S. 223 , 236 (2009). But our jurisdiction is limited to the question whether the evidence, as considered by the district court in the light most favorable to Hammond, shows a violation of his clearly established constitutional rights. See Walker v. Davis, 649 F.3d 502 , 503 (6th Cir. 2011). Hammond first claims that the deputies violated “the Fourth Amendment’s prohibition on the use of excessive force by arresting and investigating officers.” See Hayden v. Green, 640 F.3d 150 , 153 (6th Cir. 2011). We analyze that claim based on “the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham v. Connor, 490 U.S. 386 , 396 (1989). In doing so, we consider “the severity of the crime at issue, whether the suspect pose[d] an immediate threat to the safety of the officers or others, and whether he [was] actively resisting arrest or attempting to evade arrest by flight.” Smoak v. Hall, 460 F.3d 768 , 783 (6th Cir. 2006) (internal quotation marks omitted). When, “as here, a plaintiff claims that excessive force was used multiple times, the court must segment the incident into its constituent parts and consider -3- No. 19-2366, Hammond v. Oakland County, et al. the officer’s entitlement to qualified immunity at each step along the way.” Wright v. City of Euclid, 962 F.3d 852 , 865 (6th Cir. 2020). Here, the first segment came before the dog bites. The deputies had come to Hammond’s house—an area unknown to them but familiar to Hammond—to investigate an allegation of rape. See Matthews v. Jones, 35 F.3d 1046 , 1051 (6th Cir. 1994). They had no idea whether Hammond was armed, and his unusual behavior—namely, unlocking the door and immediately retreating out of sight—only heightened their suspicions. See Matthews, 35 F.3d at 1051 . They warned Hammond that they would deploy Odin if he did not surrender himself, and though Hammond says he did not hear the warning, the officers could not have known that on the scene. See id. When the deputies finally encountered Hammond, he reappeared suddenly, within arm’s length of the deputies, his hands not visible. Moreover, though the deputies ordered Hammond to show his hands, Hammond admits that he refused. Thus, a reasonable officer could view Hammond’s actions as threatening. The deputies therefore did not use excessive force when they deployed Odin into the house to locate Hammond, tackled him to the ground, and pinned him there while handcuffing him. The next segment came when Cadotte ordered Odin to bite Hammond after the deputies had handcuffed him. We have held that police violate the Fourth Amendment when they order a dog to bite a suspect who posed no threat to the officers’ safety and was not resisting arrest or attempting to flee. See Campbell v. City of Springboro, 700 F.3d 779 , 787–89 (6th Cir. 2012). Here, after the deputies handcuffed Hammond, he was on his stomach, handcuffed, with his hands visible. Although he had refused to surrender his hands earlier, at that point the deputies could see that Hammond was unarmed. And Hammond says he did nothing after the deputies handcuffed him that could be interpreted as resistance. Yet after Cadotte gave Odin commands in a foreign -4- No. 19-2366, Hammond v. Oakland County, et al. language, the dog bit Hammond, first on his back and then on his leg and foot. Hammond could “hear [his] bones crackling in [his] head,” and despite his pleas for help Cadotte did nothing to stop the dog from doing “what it wanted to do[.]” A jury could therefore find that Cadotte used excessive force when he ordered Odin to bite a handcuffed suspect who was not resisting arrest. See id. Cadotte argues that Odin’s bites came as a result of a “spontaneous response” to Hammond’s “‘threatening’ movement into the dog’s defensive perimeter.” Dunigan v. Noble, 390 F.3d 486 , 493 (6th Cir. 2004). Dog bites violate the Fourth Amendment only if they come “through means intentionally applied.” Id.; see also Ashford v. Raby, 951 F.3d 798 , 802–03 (6th Cir. 2020). Cadotte says that Odin bit Hammond’s legs and feet only after Hammond “began flailing . . . and kicked toward Odin’s face,” but Hammond tells a different story. He insists that these bites—and Cadotte’s commands to instigate them—came after the deputies had handcuffed him and had pinned his legs down. Whether Hammond kicked toward Odin, as Cadotte claims, is thus a question of fact that we lack jurisdiction to consider. See Walker, 649 F.3d at 503 . Cadotte also argues that the law about the use of dogs was not clearly established at the time of this incident. But we have found a Fourth Amendment violation when “an inadequately trained canine” bit a handcuffed suspect. Campbell, 700 F.3d at 789 . Here, as there, Cadotte ordered Odin to bite a suspect “who [was] not actively fleeing and who, because of proximity, showed no ability to evade police custody.” Id. Any reasonable officer would have understood that commanding a dog to bite a handcuffed suspect who was not attempting to flee would violate the Fourth Amendment. Cadotte thus is not entitled to qualified immunity with respect to the bites. Hammond also claims that Deputies Salyers and Welch violated the Fourth Amendment when they failed to stop the bites. Whether they did depends upon whether they “had both the -5- No. 19-2366, Hammond v. Oakland County, et al. opportunity and the means to prevent the harm from occurring.” Burgess v. Fischer, 735 F.3d 462 , 475 (6th Cir. 2013). But Hammond cites no caselaw clearly establishing that officers who are not trained as dog handlers have a duty to intervene and control a dog notwithstanding the presence of the dog’s handler. Salyers and Welch are therefore entitled to qualified immunity from Hammond’s claim. Finally, Oakland County appeals the district court’s denial of its motion for summary judgment. Unlike a denial of qualified immunity, an order denying a county’s motion for summary judgment “is not an independently appealable final decision.” Hopper v. Plummer, 887 F.3d 744 , 760 (6th Cir. 2018). And here the resolution of the deputies’ qualified-immunity appeal does not resolve the County’s appeal. In that circumstance, the parties agree, we lack jurisdiction to hear the County’s appeal. Id. We affirm the denial of qualified immunity as to Deputy Cadotte’s commands to Odin to bite Hammond, reverse the denial as to the rest of Hammond’s claims, dismiss Oakland County’s appeal for lack of jurisdiction, and remand the case for proceedings consistent with this opinion. -6-

2020-12-01 16:22:58.546358+00

http://www.courts.wa.gov/opinions/pdf/372405_pub.pdf

FILED DECEMBER 1, 2020 In the Office of the Clerk of Court WA State Court of Appeals, Division III IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, ) No. 37240-5-III ) Respondent, ) ) v. ) PUBLISHED OPINION ) M.Y.G.,[1] ) ) Appellant. ) LAWRENCE-BERREY, J. — Must a juvenile offender who receives a deferred felony disposition provide a deoxyribonucleic acid (DNA) sample? RCW 43.43.754(1)(a) requires DNA to be collected from every adult or juvenile convicted of a felony. RCW 9.94A.030(9) defines “conviction” as including a finding of guilty. Because a trial court must enter a finding of guilty before ordering a deferred disposition, we answer yes to the above question. 1 To protect the privacy interests of the minor, we use his initials throughout this opinion. General Order for the Court of Appeals, In re Changes to Case Title, (Aug. 22, 2018), effective Sept. 1, 2018. No. 37240-5-III State v. M.Y.G. FACTS The State charged M.Y.G., a minor, with two counts of theft of a motor vehicle. Theft of a motor vehicle is a felony. RCW 9A.56.065(2). M.Y.G. moved for a deferred disposition, but objected to submitting a DNA sample. Judge Rachelle Anderson of the Spokane County Superior Court, Juvenile Division, presided over M.Y.G.’s deferred disposition hearing. The court granted M.Y.G.’s motion for a deferred disposition, but overruled his objection. In doing so, it entered findings of guilty on both of M.Y.G.’s charged offenses, but deferred disposition for nine months. In addition, it stayed, pending appeal, its requirement that M.Y.G. provide a DNA sample. M.Y.G. timely appealed. POSTAPPEAL PROCEDURE M.Y.G. recently completed the terms of his deferred disposition. The State filed a motion with this court to permit the trial court to enter an order of dismissal with prejudice. The State also asked that we decide the issue presented even though the appeal may be moot. M.Y.G. responded and agreed with the State. An appellate court may decide an issue in a technically moot case if it concerns a matter of continuing and substantial public interest and is capable of repetition yet easily evades review. Tacoma News, Inc. v. Cayce, 172 Wn.2d 58 , 64, 256 P.3d 1179 (2011). 2 No. 37240-5-III State v. M.Y.G. Here, there is no decisional authority on the issue presented, yet it impacts most, if not all, felony disposition orders entered in juvenile courts across this state. The issue also easily evades review, due to the 12-month limitation on the term of juvenile disposition orders. See RCW 13.40.127(2). By letter order, we granted the parties’ request to allow the trial court to dismiss the case with prejudice. And even though this case is technically moot, we agreed to decide whether the trial court improperly required M.Y.G. to provide a DNA sample.2 ANALYSIS We first discuss how a deferred disposition works. A deferred disposition is a sentencing alternative that allows a juvenile offender to not contest the State’s facts yet avoid significant consequences. When granting a deferred disposition, the court reviews a statement of uncontested facts and, if the facts are sufficient, finds the juvenile guilty but defers disposition pending satisfaction of court-ordered conditions. RCW 13.40.127. If the juvenile satisfies the conditions by the end of the supervision period, the conviction 2 The State’s motion also asked that we allow the trial court to retain jurisdiction to the extent necessary to effectuate relief, if any, granted on appeal. M.Y.G. seemingly agreed to this too, so our letter order reflects this agreement. We are not privy to the discussion between the parties and the court when the order of dismissal with prejudice was entered. We grant the trial court discretion, based on whatever discussion or additional order was entered, to effectuate relief consistent with this decision. 3 No. 37240-5-III State v. M.Y.G. is vacated and the case is dismissed with prejudice. State v. D.P.G., 169 Wn. App. 396 , 399, 280 P.3d 1139 (2012). RCW 43.43.754(1) directs that DNA samples be collected from persons convicted of certain crimes. For instance, one provision provides: “A biological sample must be collected for purposes of DNA identification analysis from . . . [e]very adult or juvenile individual convicted of a felony.” RCW 43.43.754(1)(a) (emphasis added). DNA collection from a juvenile convicted of a felony has been required since 1994. See LAWS OF 1994, ch. 271. DNA collection from an adult convicted of a felony has been required since 1990. See LAWS OF 1989, ch. 350. We next determine whether a juvenile subject to a deferred disposition order has been “convicted” within the meaning of the quoted provision. The term “convicted” is not defined in chapter 43.43 RCW. But “conviction” is defined in the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW. When the legislature uses a word in a statute, and subsequently uses the same word in a different statute, the word may be deemed to have been used in the same sense. See Pub. Util. Dist. No. 1 of Okanogan County v. State, 182 Wn.2d 519 , 537-38, 342 P.3d 308 (2015). Here, the legislature defined “conviction” in the SRA and subsequently used “convicted” in RCW 43.43.754(1)(a). We, thus, use the SRA definition of “conviction.” 4 No. 37240-5-III State v. M.Y.G. The SRA defines “conviction” as “an adjudication of guilt pursuant to Title 10 or [chapter] 13 RCW and includes a verdict of guilty, a finding of guilty, and acceptance of a plea of guilty.” RCW 9.94A.030(9). A deferred disposition requires a court to make a finding of guilty or the juvenile to plead guilty. See RCW 13.40.127(4). Here, the trial court found M.Y.G. guilty of the two charged felony offenses. This constitutes a “conviction” within the meaning of RCW 9.94A.030(9). M.Y.G. was thus “convicted” when the trial court found him guilty and entered the deferred disposition order. M.Y.G. argues the legislature’s interest in preserving juvenile offenders’ privacy is frustrated by requiring DNA collection even though successful completion of the deferred disposition order results in dismissal of the case. He argues DNA collection should occur only if the juvenile fails to comply with the order and deferment is revoked. We disagree. Juveniles receive many protections not available to adult offenders. The Juvenile Justice Act of 1977, chapter 13.40 RCW, was intended to establish a system capable of responding to the needs of youthful offenders while holding them accountable for their offenses. State v. S.J.C., 183 Wn.2d 408 , 416, 352 P.3d 749 (2015). “The primary goal of the Washington state juvenile justice system is the rehabilitation and reintegration of former juvenile offenders.” LAWS OF 2014, ch. 175, § 1. Those interests—rehabilitation and reintegration—outweigh the need for public availability of juvenile records. Those 5 No. 37240-5-III State v. M.Y.G. interests also support the administrative sealing of deferred disposition proceedings if and when the offender completes all conditions. We recognize the importance of protecting a juvenile’s privacy. Juveniles understandably do not want their offenses widely known by their communities. But unlike juvenile court records, which would unduly harm juvenile offenders if made public, DNA databases are not public. Biological samples “shall be used solely for the purpose of providing DNA or other tests for identification analysis and prosecution of a criminal offense or for the identification of human remains or missing persons.” Former RCW 43.43.754(7) (2019). We are not convinced the legislature intended to exempt juveniles with deferred felony dispositions from DNA collection, given that the DNA database is not public and is used solely for identification purposes. M.Y.G. next contends that the structure of RCW 43.43.7541 suggests collection of DNA occurs at sentencing, but not before. That statute requires a DNA collection fee to be imposed at sentencing. Because fees fund the DNA collection program, he argues it would be an absurd result to require samples without a payment mechanism. We are similarly unconvinced by this argument. The collection of DNA is an independent requirement imposed on convicted individuals. RCW 43.43.754(1)(a) mandates DNA collection from any adult or juvenile 6 No. 37240-5-III State v. MY G. convicted of a felony. The conviction triggers the requirement. Conversely, a $100 collection fee is part of the offender's sentence. RCW 43.43.7541. The sentencing triggers the fee. Juveniles who successfully complete deferred dispositions avoid legal financial obligations, including a DNA collection fee. The DNA collection program is funded by countless other offenders. It is not absurd that the legislature intended to collect DNA at conviction and collect DNA fees at sentencing. We conclude that deferred felony dispositions are "convictions" for purposes of the DNA collection statute. The trial court did not err in requiring M.Y.G. to submit to DNA collection. Affirmed. Lawrence-Berrey, J. WE CONCUR: Korsmo, A.CJ. Fearing, J. cf' 7

2021-01-26 19:02:34.4404+00

https://www.courts.ca.gov/opinions/nonpub/C091058.PDF

Filed 1/26/21 P. v. Filkins 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 (Butte) ---- THE PEOPLE, C091058 Plaintiff and Respondent, (Super. Ct. Nos. 17CM02342, 19CF04894) v. RONALD IRVING FILKINS II, Defendant and Appellant. Appointed counsel for defendant Ronald Irving Filkins II filed an opening brief setting forth the facts of the case and asking this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 .) After reviewing the entire record, we affirm the judgment. We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106 , 110, 124.) FACTUAL AND PROCEDURAL BACKGROUND In Butte County Superior Court case No. 17CM02342, defendant was charged with forgery (Pen. Code, § 470, subd. (d) [count 1]) and possession of a controlled 1 substance (Health & Saf. Code, § 11377 [count 2]). Pursuant to a negotiated plea agreement, defendant pleaded no contest to count 2. The parties stipulated to a factual basis for the plea. In exchange for defendant’s no contest plea, the remaining charge was dismissed. The trial court placed defendant on court probation for a term of three years. Subsequently, defendant had an argument with his wife and shoved her to the ground, choked her, and hit her in the head with his fists. In Butte County Superior Court case No. 19CF04894, defendant was charged with corporal injury to a spouse (Pen. Code, § 273.5, subd. (a) [count 1]); assault likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4) [count 2]); and resisting an officer, a misdemeanor (Pen. Code, § 148, subd. (a)(1) [count 3]). Pursuant to a negotiated plea agreement, defendant pleaded guilty to count 1. In exchange for defendant’s guilty plea, the remaining charges were dismissed. In light of this plea, the trial court also found that defendant violated his probation in case No. 17CM02342 and revoked probation. Following a consolidated sentencing hearing on both cases, in case No. 19CF04894, the trial court ordered defendant to serve the upper term of four years in state prison. In case No. 17CM02342, the trial court terminated defendant’s probation as unsuccessful and ordered him to serve a one-year sentence concurrently. The court ordered defendant to pay a conviction assessment of $30 (Gov. Code, § 70373), a court operations assessment of $40 (Pen. Code, § 1465.8), and a restitution fine of $300 (Pen. Code, § 1202.4, subd. (b)), with an additional $300 parole revocation fine, which was stayed pending successful completion of parole (Pen. Code, § 1202.45). The court awarded custody credits in the amount of 145 days (73 actual and 72 conduct), and restitution was reserved regarding the victim. Defendant filed a timely notice of appeal but did not obtain a certificate of probable cause. 2  DISCUSSION We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts and procedural history of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d 436 .) Defendant was advised by counsel of his right to file a supplemental brief within 30 days from the date the opening brief was filed. More than 30 days have elapsed, and defendant has not filed a supplemental brief. Having undertaken an examination of the entire record pursuant to People v. Wende, we find no arguable error that would result in a disposition more favorable to defendant. Accordingly, we affirm the judgment. DISPOSITION The judgment is affirmed. /s/ RAYE, P. J. We concur: /s/ ROBIE, J. /s/ MURRAY, J. 3

2021-01-26 19:02:33.982218+00

https://www.courts.ca.gov/opinions/nonpub/F078337.PDF

Filed 1/26/21 P. v. Lara CA5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 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 FIFTH APPELLATE DISTRICT THE PEOPLE, F078337 Plaintiff and Respondent, (Super. Ct. No. 17CMS-0637) v. ADALBERTO CARILLO LARA, OPINION Defendant and Appellant. APPEAL from a judgment of the Superior Court of Kings County. Donna L. Tarter, Judge. Audrey R. Chavez, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-  INTRODUCTION Defendant Adalberto Carillo Lara was under the influence of alcohol when he ran a stop sign at a speed of approximately 70 miles per hour and hit another vehicle, killing all three occupants. A jury convicted defendant on three counts of second degree murder (Pen. Code, § 187, subd. (a);1 counts 1-3), three counts of gross vehicular manslaughter while intoxicated (§ 191.5, subd. (a); counts 4-6), driving under the influence of alcohol and causing bodily injury (Veh. Code, § 23153, subd. (a); count 7), and driving with a blood- alcohol content of 0.08 percent or higher and causing bodily injury (Veh. Code, § 23153, subd. (b); count 8). As to counts 7 and 8 the jury found defendant had proximately caused bodily injury or death (Veh. Code, § 23558), and that his blood-alcohol concentration was 0.15 percent or more (Veh. Code, § 23578), and defendant admitted he had suffered a prior conviction for driving under the influence within the previous 10 years (Veh. Code, §§ 23152, subd. (b), 23560). He was sentenced to an aggregate term of 45 years to life and was ordered to pay a $10,000 restitution fine (§ 1202.4, subd. (b)), as well as other fines, fees, and assessments. On appeal, he contends there was insufficient evidence of malice to support his convictions for second degree murder, and that the fines, fees, and assessments imposed by the trial court violate his right to due process because he is unable to pay. We find the evidence sufficient to support the convictions. We reject defendant’s challenge to the fines, fees, and assessments on various grounds. However, we remand for the trial court to correct the sentencing minute order and the abstract of judgment to accurately reflect the court’s oral pronouncement of judgment. In all other respects, we affirm. 1 Subsequent statutory references are to the Penal Code, unless otherwise indicated. 2.  FACTS Defendant sold washing machines and dryers at a “flea market.” On March 27, 2017, Marcos C.,2 who sold fruits and vegetables in a nearby stall, saw defendant drink between one and three Budweiser or Miller beers sometime between 8:30 a.m. and 3:30 p.m. Around 3:30 p.m., defendant gave Marcos a ride home to Hanford. Defendant told Marcos he was going to a friend’s house to build a fence. Around 4:00 p.m., defendant arrived at the home of his friend Jose M. in Hanford. He assisted Jose with building a fence and remained there for approximately three and a half hours. During that time, defendant and Jose each drank two or three 12-ounce Budweiser beers.3 Defendant left in his truck at approximately 7:30 p.m. or 8:00 p.m. to drive home to Tulare. At about 8:30 p.m., defendant was traveling eastbound on Idaho Avenue in his Chevrolet pickup truck when he collided with a silver Chevrolet Equinox at the intersection of Idaho Avenue and Highway 43. Several other drivers saw the collision or its aftermath, and testified to what they saw. Anthony S. was driving northbound on Highway 43 with a female passenger when he saw defendant’s truck, which was heading east, run the stop sign at the intersection of Idaho Avenue and Highway 43 at a speed of approximately 75 to 80 miles per hour.4 2 Pursuant to California Rules of Court, rule 8.90, we refer to some persons by their first names. No disrespect is intended. 3 At trial, California Highway Patrol (CHP) Officer Lawson testified that, in July 2017, Julio S. came to the Hanford CHP office and indicated he wished to share information regarding the collision. Julio told Lawson that he saw defendant drink two or three Budweiser beers at the flea market around noon on the day of the collision. Julio reported that he later saw defendant working on a fence with Jose, and saw defendant drink two more beers and a glass of clear liquid around 4:30 p.m. At trial, Julio did not recall these prior statements and denied seeing defendant that day. 4 As explained below, there were stop signs on Idaho Avenue in both directions, and no stop on Highway 43. 3. Defendant’s truck hit the middle of an SUV (sport utility vehicle) that was traveling southbound on Highway 43 and knocked it into a field. Both cars flipped and debris went everywhere. Defendant’s truck landed on its wheels, while the SUV landed upside down. Anthony pulled over and he and his passenger checked on both vehicles. Defendant was unresponsive in his truck and appeared to be passed out. His vehicle smelled of alcohol. He had a grimace on his face as if from pain. In the SUV, Anthony saw a man, woman, and child. The air bags inside the vehicle had deployed. He heard someone groaning but could not tell who it was. He tried to open the doors but was unable to do so. He spoke with another witness who had arrived after him and had called 911. At that point, Anthony “freaked out and left.” The following month, he was contacted by CHP officers. Kevin S. was driving northbound on Highway 43 when he saw a vehicle driving eastbound on Idaho Avenue at a speed in excess of 65 miles per hour. He grew concerned the vehicle would go through the stop sign at the intersection with Highway 43. There was a car in front of Kevin, and Kevin crossed over the center divider into the southbound lane to determine whether there were any cars further ahead on Highway 43. As he did so, the car that had been traveling east on Idaho Avenue failed to stop at the stop sign and “the impact happened.” The car in front of Kevin pulled over and the occupants attended to the vehicles involved in the collision. Kevin pulled over and remained in his car. From there, he saw one person in the driver’s seat of the truck. At some point before emergency personnel arrived, the individuals who had been traveling in the vehicle in front of Kevin left. After emergency personnel arrived, Kevin saw the driver of the truck standing next to the truck, staring at the other vehicle. Kevin gave a CHP officer the vehicle license plate information for the vehicle that left the scene. Brian B. was pulled over facing northbound on Highway 43, about three quarters of a mile from the intersection with Idaho Avenue, when he saw a vehicle heading 4. eastbound on Idaho Avenue at approximately 70 to 80 miles per hour and thought, “[T]hat car is hauling butt.” He then saw headlights “all over the place” and knew there had been an accident. He pulled up to the scene and saw someone already on the phone. He saw defendant inside the truck and thought he was deceased because there was blood coming out of his ears. Brian could not see inside the other vehicle due to the airbags. He screamed, “Hello, how many people are in here,” but received no response. He then saw defendant crawl out of the truck through the windshield or side window. Officer Lawson arrived on scene at approximately 8:40 p.m. Defendant was kneeling by the driver side door of his truck, which had extensive front end damage. Lawson smelled alcohol on him immediately. Defendant’s speech was slow and slurred, and his eyes were red and watery. Lawson asked defendant if he had consumed any alcoholic beverages and defendant said no. The Equinox was overturned on its roof and had rollover damage to the entire vehicle, with a majority of the damage to the right side. The driver of the vehicle, Kristen W., appeared to be alive. She was groaning as fire personnel attempted to extricate her from the car. The front seat passenger, Alfonso W., and the rear seat passenger, Kyan W., appeared to be deceased. Alfonso and Kyan were pronounced deceased shortly thereafter and Kristen was transported by helicopter to the hospital but did not survive. All three died of blunt force trauma. Kyan, who was 13 years old, had “a very large laceration on the left forehead . . . [and] multiple skull fractures,” as well as blood in his chest cavity that likely resulted from a torn aorta, and a fractured right femur. Alfonso, who was 55 years old, suffered a basilar skull fracture and also had blood in his chest cavity. Kristen, who was 44, had blood in her chest cavity, swelling around her eye indicative of a fractured orbital wall, and multiple contusions throughout her body. At the scene of the collision, Lawson observed that defendant was unsteady on his feet, walked in a side to side manner, and stumbled twice as he walked to an ambulance. Lawson asked again whether defendant had consumed alcohol and defendant said he had 5. one beer. When Lawson asked again, defendant said he had two beers at noon. Defendant shook his head “no” when asked if he knew how the accident happened. Lawson administered field sobriety tests to defendant. On the horizontal gaze nystagmus test, defendant’s eyes immediately jerked involuntarily, which would typically indicate a blood-alcohol concentration above 0.08 percent. Lawson administered a preliminary alcohol screening test, which detected the presence of alcohol. Defendant refused to cooperate in the administration of a second test. Lawson formed the opinion that defendant “had been operating a vehicle while being under the influence of an alcoholic beverage” with a blood-alcohol concentration above 0.08 percent. Defendant was transported to the hospital by ambulance. A blood sample was taken from defendant at the hospital at 10:49 p.m. on March 27, 2017. Jessica Winn, a senior criminalist with the California Department of Justice Bureau of Forensic Services, analyzed the sample of defendant’s blood that was drawn at 10:49 p.m., and determined it showed a blood-alcohol content of 0.17 percent. She opined that a person with a blood-alcohol concentration between 0.01 and 0.06 percent will begin to experience mental impairment, including decreased attention to tasks such as driving, decreased judgment, decreased inhibitions, and altered perception of distance, speed, and time. Winn explained that a person with a blood-alcohol concentration above 0.06 percent would also begin to experience physical impairment, including altered balance, coordination, vision, hearing, speech, and reaction time. Winn further opined that a person with a blood-alcohol concentration of 0.17 percent would experience all of these mental impairments, and some, if not all, of these physical impairments. In Winn’s opinion, a person with a blood-alcohol content of 0.17 percent is “too impaired to safely operate a motor vehicle.” Winn opined that a person with a 0.17 percent blood-alcohol content at 10:49 p.m. would have had a 0.21 or 0.22 percent blood-alcohol content at 8:30 p.m. Such a person may have impaired judgment and increased confidence and, based thereon, may not be able to understand whether it is safe for him or her to drive. 6.  CHP Officer Machado investigated the collision and testified at trial regarding his findings. He noted Highway 43 had two lanes of travel, one northbound and one southbound, with no traffic controls. Idaho Avenue also had two lanes of travel, one eastbound and one westbound, with traffic in both directions controlled by stop signs. Stop signs were actually present and unobstructed in both directions on Idaho Avenue at the intersection. Additionally, there was a yellow “stop ahead” sign in the eastbound lane of Idaho Avenue, approximately 500 feet before the intersection, and the words “stop” and “ahead” were written in the eastbound lane. The intersection had a faded limit line at the intersection and only part of the word “stop” remained on the pavement. Machado opined that the Equinox was traveling 54 miles per hour when it was struck on its right side by the truck, which was traveling approximately 70 miles per hour, and that the driver of the truck caused the collision. Outside the presence of the jury, defendant admitted the prior conviction allegation (Veh. Code, § 23560) to counts 7 and 8, in that he was convicted on August 31, 2016, of driving with a blood-alcohol content greater than 0.08 percent (id., § 23152, subd. (b)) in Kings County Superior Court case No. 16CM-2266. Before the jury, the People introduced evidence that defendant pled no contest to that offense on that date. The People also presented evidence that defendant initialed the following advisement in his change of plea form, and that the advisement was read to him in Spanish by a qualified interpreter: “I understand that being under the influence of alcohol or drugs, or both, impairs my ability to safely operate a motor vehicle, and it is extremely dangerous to human life to drive while under the influence of alcohol or drugs, or both. If I continue to drive while under the influence of alcohol or drugs, or both, and as a result of my driving, someone is killed, I can be charged with murder.” 7. Furthermore, the People presented evidence that the court reiterated this potential consequence during defendant’s plea colloquy, and that defendant indicated he understood. The People also presented evidence that defendant was required, as a condition of his probation for his prior offense, to complete a nine-month driving under the influence of alcohol (DUI) program, to attend four Alcoholics Anonymous (AA) meetings per week, and to present in court weekly to demonstrate compliance with the AA meeting requirement. Defendant signed a contract with the DUI program and began attending on September 12, 2016.5 One of the objectives of the program was to educate participants about the effects of alcohol and other drugs and their impact on the individual, family, and community, including teaching people not to drink and drive. The DUI program required that defendant complete seven educational classes, 22 group sessions, and 19 individual counseling sessions. Defendant completed all seven educational classes, which discussed “what drinking and driving could cause,” including accidents and death. Defendant completed 11 of the 22 group sessions, and eight of the 19 individual counseling sessions. On February 15, 2017, defendant was declared out of compliance because he exceeded the number of sessions he was allowed to miss. The parties stipulated that defendant appeared in court, on the following dates, to show proof of his attendance in four AA meetings per week: September 7, 14, 21, and 29, 2016; October 12 and 19, 2016; November 11, 2016; December 14, 2016; January 25, 2017; and March 23, 2017. The parties stipulated that, on March 27, 2017, defendant weighed 165 pounds, was five feet nine inches tall, and was 42 years old. Defendant did not present any evidence or testify at trial. 5 The contract defendant signed was in Spanish. An English language version of the contract was also entered into evidence. 8.  DISCUSSION I. Evidence of Implied Malice Defendant contends the evidence of implied malice was insufficient to support a conviction for second degree murder. We disagree. “The test for evaluating a sufficiency of evidence claim is deferential: ‘whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.] We must ‘view the evidence in the light most favorable to the People’ and ‘presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’ [Citation.] We must also ‘accept logical inferences that the jury might have drawn from the circumstantial evidence.’ ” (People v. Flores (2020) 9 Cal.5th 371 , 411.) To support a finding of implied malice, the evidence must establish that the defendant deliberately committed an act, the natural consequences of which were dangerous to life, with knowledge of its danger to life and a conscious disregard of that danger. (People v. Watson (1981) 30 Cal.3d 290 , 300 (Watson).) “Phrased in everyday language, the state of mind of a person who acts with conscious disregard for life is, ‘I know my conduct is dangerous to others, but I don’t care if someone is hurt or killed.’ ” (People v. Olivas (1985) 172 Cal.App.3d 984 , 987-988 (Olivas).) A finding of implied malice requires that the defendant actually appreciated the risk involved. (Watson, supra, at pp. 296-297.) Watson is the leading case on vehicular murder involving implied malice. (Watson, supra, 30 Cal.3d 290 .) There, the defendant drove to a bar and consumed “large quantities of beer.” After leaving the bar, he drove through a red light and narrowly avoided a collision with another car. He then drove away at high speed, accelerating to 84 miles per hour before suddenly braking and skidding into an intersection where he collided with another car, killing two people. The defendant’s blood-alcohol level one-half hour after the collision was 0.23 percent. An information 9. charged him with two counts of second degree murder, but the trial court dismissed the murder counts. (Id. at pp. 293-294.) On the People’s appeal, our Supreme Court reversed the dismissal, holding there was sufficient evidence to uphold the second degree murder counts in the information. (Watson, supra, 30 Cal.3d at p. 301.) The court cited to the following evidence as sufficient to support a finding that the defendant acted with conscious disregard for life: the defendant’s blood-alcohol level was sufficient to find him legally intoxicated; he drove to the establishment where he was drinking knowing that he had to drive later; he was presumed to be aware of the hazards of driving while intoxicated; he drove at high speeds on city streets, creating a great risk of harm or death; and he was aware of the risk, as shown by the near collision and his belated attempt to brake before the fatal collision. (Id. at pp. 300-301.) Since Watson, appellate courts have upheld numerous murder convictions in cases where defendants have caused death while driving under the influence of alcohol. (E.g., People v. Wolfe (2018) 20 Cal.App.5th 673 , 679, 680, 683 (Wolfe) [driver had blood- alcohol level of 0.34 percent, was aware of dangers of drinking and driving and had previously used a taxi service, drank with intention of driving home, and continued driving her damaged vehicle after hitting a pedestrian]; People v. Autry (1995) 37 Cal.App.4th 351 , 358-359 (Autry) [driver had a blood-alcohol level of 0.22 percent, was warned of the dangers of drinking and driving, drank and drove throughout the day, had three near misses, and continued driving over protests of his passengers]; People v. Murray (1990) 225 Cal.App.3d 734 , 746-747 [driving wrong way on a freeway with a blood-alcohol level between 0.18 and 0.23 percent]; People v. McCarnes (1986) 179 Cal.App.3d 525 , 533 [crossing into oncoming traffic on two-lane highway with a blood- alcohol level of 0.27 percent]; Olivas, supra, 172 Cal.App.3d at p. 989 [extremely dangerous driving while under influence of PCP and “negligible” amount of alcohol].) These cases have generally relied on some or all the factors that were present in Watson: 10. “(1) blood-alcohol level above the .08 percent legal limit; (2) a predrinking intent to drive; (3) knowledge of the hazards of driving while intoxicated; and (4) highly dangerous driving.” (Autry, supra, at p. 358.) Considering these factors here, there was substantial evidence to support a finding of implied malice. There is no question defendant was intoxicated beyond the legal limit. His blood-alcohol concentration approximately two hours after the collision was 0.17 percent, and an expert opined it may have been as high as 0.22 percent at the time of the collision. Additionally, defendant had a predrinking intent to drive, inasmuch as he consumed several alcoholic beverages at the flea market before driving himself to Jose’s home and drinking more.6 Defendant also drove above the speed limit7 and through a well-marked stop sign without braking, conduct that is highly dangerous. A reasonable juror could conclude defendant was subjectively aware of the risk of this conduct. (People v. Moore (2010) 187 Cal.App.4th 937 , 941 [“Whether [the defendant] was subjectively aware of the risk is best answered by the question: how could he not be? It takes no leap of logic for the jury to conclude that because anyone would be aware of the risk, [the defendant] was aware of the risk.”].) Lastly, and significantly, defendant had knowledge of the hazards of driving while intoxicated, including the risk of killing someone and being charged with murder. (People v. David (1991) 230 Cal.App.3d 1109 , 1115 [“Prior convictions and exposure to 6 Defendant argues there was no evidence he had a preexisting intent to drink at any of the locations he went to on the date of the incident. However the relevant question is whether defendant had a predrinking intent to drive, not a preexisting intent to drink. (Autry, supra, 37 Cal.App.4th at p. 358.) Defendant drank alcohol, then drove himself to Jose’s house, where he drank more before attempting to drive home. The inescapable inference is that he drank alcohol, despite knowing he would drive later. (Watson, supra, 30 Cal.3d at pp. 300-301.) 7 Lawson testified that the speed limit on both Highway 43 and Idaho Avenue was 55 miles per hour. 11. mandatory educational programs are admissible to show the accused’s awareness of the life threatening risks of driving under the influence.”].) A reasonable juror could conclude that the foregoing factors, taken together, evidence defendant acted with conscious disregard for the danger defendant posed to the lives of others on the roadway. Defendant nonetheless presents several reasons he believes the evidence of his guilt is insubstantial. He points to evidence that he once slept on a trailer on Jose’s property, and asserts he may have intended to do so on the night in question, but instead chose to drive because he was too highly intoxicated to realize his driving was unsafe. Somewhat contrarily, he contends he did not drink an excessive amount of alcohol, despite his having an extremely elevated blood-alcohol concentration. He also claims there was no evidence the alcohol education programming he received following his prior arrest was conducted in Spanish, and that there was no evidence he had caused prior accidents or exhibited reckless driving before running the stop sign. Certainly, the jury could have considered the above factors in determining whether defendant acted with implied malice. However, considering the evidence in the light most favorable to the judgment, as we are required to do (People v. Hatch (2000) 22 Cal.4th 260 , 272), we have no difficultly concluding the evidence was sufficient to support a finding of implied malice. II. Fines, Fees, and Assessments Although he did not object below, defendant contends the fines, fees, and assessments imposed by the trial court violate his right to due process under the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution and article I, section 15 of the California Constitution because he is unable to pay. He contends the matter must be remanded for the trial court to conduct a hearing on his ability to pay, and to reset fines and fees in an amount that would not be burdensome in light of his indigency. In support, defendant relies on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), and Timbs v. Indiana (2019) 586 U.S. ___ [ 139 S.Ct. 682 ] (Timbs), both of 12. which were decided after his sentencing hearing. To the extent his arguments are forfeited, defendant alleges ineffective assistance of counsel. A. Additional Factual Background Because defendant did not argue in the trial court that he was unable to pay, the record regarding his financial circumstances is not developed. However, the probation officer’s report notes that defendant had six children between the ages of six and 16 years old, made approximately $900 per month as an appliance repair person, and earned supplemental income in an undisclosed amount selling used appliances. Additionally, as defendant points out, he was represented by appointed counsel at trial. The trial court imposed a $10,000 restitution fine (§ 1202.4, subd. (b)); a $10,000 parole revocation fine, stayed pending successful completion of parole (§ 1202.45); a $240 court facilities assessment (Gov. Code, § 70373); and a $320 court operations assessment (§ 1465.8). Victim restitution was reserved. The court also orally imposed a $390 penalty fine without citing to the statutory basis for the fine or the count on which it was imposed,8 a $390 state penalty assessment (§ 1464), a $78 state surcharge (§ 1465.7, subd. (a)), a $2309 county penalty assessment (Gov. Code, § 76000), a $195 court construction penalty assessment (Gov. Code, § 70372), a $4 Emergency Medical Air Transport Act penalty assessment (Gov. Code, § 76000.10, subd. (c)(1)), a $39 DNA funding penalty assessment (Gov. Code, § 76104.6), a $156 DNA funding penalty assessment (Gov. Code, § 76104.7), a $100 alcohol assessment program assessment (Veh. Code, § 23649), a $50 alcohol abuse and prevention assessment (Veh. Code, § 23645), and a $10 DMV notification assessment 8 It appears the fine may have been imposed pursuant to a Vehicle Code section 23560 enhancement to either count 7 or 8, which mandates imposition of a fine of not less than $390. However, sentence on both counts was stayed. 9 This amount appears to be in error. The statutory county penalty assessment on a $390 fine is $273. (Gov. Code, § 76000, subd. (a)(1).) 13. (Veh. Code, § 40508.6, subd. (b)). Neither the fine nor the assessments appear in the court’s minute order or abstract of judgment.10 The court is required to delineate all fines, fees, and assessments imposed on each count, and the statutory basis for each, in the abstract of judgment and the sentencing minute order. (People v. Hamed (2013) 221 Cal.App.4th 928 , 937-941; People v. High (2004) 119 Cal.App.4th 1192 , 1200.) The failure to do so may interfere with the Department of Corrections and Rehabilitation’s “statutory duty to collect and forward deductions from prisoner wages to the appropriate agency.” (High, at p. 1200.) Furthermore, to the extent any punitive fines or assessments were imposed in relation to a count that was stayed, those fines and assessments must also be stayed. (People v. Sharret (2011) 191 Cal.App.4th 859 , 869-870.) Here, the court’s failure to reduce the fine and assessments to writing leaves uncertain the statutory basis for the $390 fine and whether that fine and the related assessments are, or must be, stayed. Additionally, the omission has resulted in a numerical discrepancy between the oral pronouncement of judgment and the sentencing minute order with regard to the sum total financial burden imposed on defendant. We will remand for the court to correct the sentencing minute order and the abstract of judgment to accurately reflect the fines, fees, and assessments imposed by the court. This error does not materially affect our analysis of defendant’s constitutional challenge to the fines, fees, and assessments. 10 The court’s minute order lists a fine of “$0” on each count, a “Criminal Violation Distribution” of $70 on each of counts 1 through 6, a “1st DUI Distribution” of $1,695 on count 7, and a “1st DUI Distribution” of $70 on count 8. The sum total of restitution, “Criminal Violation Distribution[s],” and “1st DUI Distribution[s]” listed in the minute order is $12,185, while the sum total of fines, fees, and assessments orally imposed by the court is $12,202. There is no discernable explanation for the discrepancy. 14.  B. Dueñas Dueñas held that “due process of law requires the trial court to conduct an ability to pay hearing and ascertain a defendant’s present ability to pay” before it imposes any fines or fees. (Dueñas, supra, 30 Cal.App.5th at p. 1164; see id. at p. 1167.) This court has rejected that contention. (People v. Aviles (2019) 39 Cal.App.5th 1055 , 1069 (Aviles) [Dueñas “incorrectly relied upon a due process analysis to examine . . . constitutional objections to the [trial] court’s imposition of . . . fines, fees, and assessments . . . .”]; accord, People v. Lowery (2020) 43 Cal.App.5th 1046 , 1056-1057 [due process not violated when defendants are not denied access to the courts, are not prohibited from presenting a defense, are not incarcerated due to an inability to pay prior fees, fines or assessments, do not face ongoing unintended punitive consequences, and do not suffer a violation of a fundamental liberty interest].) Other courts have declined to extend the holding of Dueñas beyond the unique facts of that case, which involved an indigent, homeless, mother of two who subsisted on public aid while suffering from cerebral palsy (Dueñas, supra, 30 Cal.App.5th at pp. 1160-1161), and who accumulated repeated criminal conviction assessments and fines in a series of “cascading consequences” stemming from “criminal proceedings driven by, and contributing to, [the defendant’s] poverty” (id. at pp. 1163-1164). (See People v. Caceres (2019) 39 Cal.App.5th 917 , 928-929 [declining to apply Dueñas’s “broad holding” beyond its unique facts]; People v. Johnson (2019) 35 Cal.App.5th 134 , 138 [distinguishing Dueñas on its facts].) Here, we need not consider defendant’s Dueñas-based challenge because defendant has forfeited the issue. The court ordered defendant to pay the maximum restitution fine of $10,000. (§ 1202.4, subd. (b)(1).) When the court imposes a restitution fine greater than the $300 statutory minimum, “[s]ection 1202.4 expressly contemplates an objection based on inability to pay.” (People v. Frandsen (2019) 33 Cal.App.5th 1126 , 1153 (Frandsen); accord, Aviles, supra, 39 Cal.App.5th at p. 1073.) 15. While Dueñas had not been decided at the time of defendant’s sentencing hearing, defendant had the statutory right to object to the $10,000 restitution fine and to demonstrate his inability to pay, and such an objection “would not have been futile under governing law at the time of his sentencing hearing.” (Frandsen, at p. 1154; accord, Aviles, at pp. 1073-1074; People v. Gutierrez (2019) 35 Cal.App.5th 1027 , 1033 (Gutierrez) [“[E]ven before Dueñas a defendant had every incentive to object to imposition of a maximum restitution fine based on inability to pay because governing law as reflected in the statute [citation] expressly permitted such a challenge.”].) Similarly, the court had a statutory duty to determine whether defendant had the ability to pay the $100 alcohol assessment program assessment (Veh. Code, § 23649, subd. (b)), and the $50 alcohol abuse and prevention assessment (id., § 23645, subd. (c)), and we presume that it did so. Defendant’s failure to object in the trial court forfeits his challenge to these fines and assessments. The remaining fines, fees, and assessments are mandatory, and defendant lacked the statutory right to object based on ability to pay. Nonetheless, he forfeited the right to object to these assessments as a practical matter. Having chosen not to object to the $10,000 restitution fine or the $150 in alcohol-related assessments based on inability to pay, “he surely would not complain on similar grounds” regarding less than $2,000 in additional assessments. (Gutierrez, supra, 35 Cal.App.5th at p. 1033.) Furthermore, although the fees and assessments were mandatory, nothing in the record of the sentencing hearing indicates that defendant was foreclosed from challenging these assessments in the trial court in the first instance. (Aviles, supra, 39 Cal.App.5th at p. 1074; Frandsen, supra, 33 Cal.App.5th at p. 1154.) “[D]efendant plainly could have made a record had his ability to pay actually been an issue. Indeed, [he] was obligated to create a record showing his inability to pay the . . . restitution fine, which would have served to also address his ability to pay the assessments.” (Frandsen, at p. 1154; accord, Aviles, at p. 1074.) 16.  Defendant asserts that, if we find forfeiture, his trial counsel was ineffective for failing to object to the imposition of fines and fees based on an inability to pay. Defendant bears the burden of demonstrating ineffective assistance of counsel. (People v. Mickel (2016) 2 Cal.5th 181 , 198.) “ ‘[A] defendant claiming a violation of the federal constitutional right to effective assistance of counsel must satisfy a two-pronged showing: that counsel’s performance was deficient, and that the defendant was prejudiced, that is, there is a reasonable probability the outcome would have been different were it not for the deficient performance.’ [Citation.] Rarely is ineffective assistance of counsel established on appeal since the record usually sheds no light on counsel’s reasons for action or inaction.” (People v. Woodruff (2018) 5 Cal.5th 697 , 736.) In determining whether counsel’s performance was deficient, we consider whether “ ‘ “ ‘counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms.’ ” ’ ” (People v. Johnson (2016) 62 Cal.4th 600 , 653.) Reversal is permitted “ ‘only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation.’ ” (People v. Arredondo (2019) 8 Cal.5th 694 , 711.) We cannot say trial counsel had no conceivable tactical purpose for not requesting an ability to pay hearing. The record reflects defendant was 44 years old at the time of sentencing and was employed and had a side business earning an undetermined amount at the time he committed the offenses. It is conceivable counsel concluded defendant would have been able to pay his fines and fees over time. (Aviles, supra, 39 Cal.App.5th at pp. 1075-1077.) The record does not affirmatively exclude a rational basis for trial counsel’s choice. Defendant has failed to establish ineffective assistance of counsel. Finally, even if defendant did not forfeit the issue, any error under Dueñas is necessarily harmless since defendant has the ability to make payment on the fines, fees, and assessments over the course of his long prison sentence. (Aviles, supra, 39 17. Cal.App.5th at pp. 1075-1077.) “While it may take defendant some time to pay the amounts imposed in this case, that circumstance does not support his inability to make payments on these amounts from either prison wages or monetary gifts from family and friends during his lengthy prison sentence.” (Id. at p. 1077.) As defendant points out, it is possible he will not extinguish his debt while incarcerated. However, his prior employment history suggests he will be able to continue making payments on any remaining debt if and when he is released. C. Timbs The Eighth Amendment to the United States Constitution states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”11 Timbs held that the Eighth Amendment’s “excessive fines” clause was incorporated into the Fourteenth Amendment’s due process clause, and therefore applies to the states. (Timbs, supra, 139 S.Ct. at pp. 686-687.) We agree with defendant’s implicit argument that an Eighth Amendment analysis is appropriate to determine whether punitive fines, fees, and assessments in a particular case are excessive. (Aviles, supra, 39 Cal.App.5th at pp. 1069-1071.) “We may review de novo whether a fine is excessive under the Eighth Amendment.” (Aviles, supra, 39 Cal.App.5th at p. 1072.) “The touchstone of the constitutional inquiry under the Excessive Fines Clause is the principle of proportionality: The amount of the forfeiture must bear some relationship to the gravity of the offense that it is designed to punish. [Citations.] . . . [A] punitive forfeiture violates the Excessive Fines Clause if it is grossly disproportional to the gravity of a defendant’s offense.” (United States v. Bajakajian (1998) 524 U.S. 321 , 334; accord, 11 Article I, section 17 of the California Constitution similarly provides: “Cruel or unusual punishment may not be inflicted or excessive fines imposed.” Defendant does not cite article I, section 17 in his briefing. 18. People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707 , 728 (Lockyer); see Timbs, supra, 139 S.Ct. at pp. 688-689.) Federal circuit courts are divided on the question of whether ability to pay is relevant to the excessive fines analysis. (E.g., U.S. v. Viloski (2d Cir. 2016) 814 F.3d 104 , 111 [ability to pay is relevant to the proportionality inquiry]; U.S. v. Levesque (1st Cir. 2008) 546 F.3d 78 , 83-85 [ability to pay should be considered, in addition to proportionality inquiry]; U.S. v. Dubose (9th Cir. 1998) 146 F.3d 1141 , 1145-1146 [ability to pay has no bearing on analysis].) The United States Supreme Court has left this question open (see Timbs, supra, 139 S.Ct. at p. 688), but has noted the Eighth Amendment’s historical roots in prohibitions against monetary penalties that are “ ‘so large as to deprive [the defendant] of his livelihood’ ” (Timbs, at p. 688). This history has been interpreted to prohibit fines that are “ruinous,” or that affect the defendant’s “future ability to earn a living.” (Levesque, at pp. 84-85; accord, Viloski, at p. 111.) Meanwhile, our Supreme Court has concluded that ability to pay is relevant, and that the following should be considered in determining whether a fine is excessive for purposes of the Eighth Amendment: “(1) the defendant’s culpability; (2) the relationship between the harm and the penalty; (3) the penalties imposed in similar statutes; and (4) the defendant’s ability to pay.” (Lockyer, supra, 37 Cal.4th at p. 728.) Here, defendant does not argue that approximately $12,000 in fines, fees, and assessments are grossly disproportionate in light of his culpability and the harm he caused in driving with an elevated blood-alcohol level and murdering a family of three. And, the record does not suggest these monetary penalties are ruinous or are so large as to deprive him of his livelihood. (Timbs, supra, 139 S.Ct. at p. 688.) Accordingly, the fines, fees, and assessments are not excessive under the Eighth Amendment. DISPOSITION The matter is remanded for the court to correct the sentencing minute order and the abstract of judgment to accurately reflect the fines, fees, and assessments imposed by 19. the trial court. The court shall forward a copy of the corrected abstract of judgment to the appropriate authorities. In all other respects, the judgment is affirmed. DETJEN, J. WE CONCUR: HILL, P.J. SNAUFFER, J. 20.

2020-09-04 20:00:39.243829+00

http://www.opn.ca6.uscourts.gov/opinions.pdf/20a0295p-06.pdf

RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 20a0295p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT JOE CLARK MITCHELL, ┐ Petitioner-Appellant, │ │ > No. 19-6070 v. │ │ │ KEVIN GENOVESE, Warden, │ Respondent-Appellee. │ ┘ Appeal from the United States District Court for the Middle District of Tennessee at Columbia. No. 1:93-cv-00073—William Lynn Campbell, Jr., District Judge. Argued: May 7, 2020 Decided and Filed: September 4, 2020 Before: MERRITT, GUY, and STRANCH, Circuit Judges. _________________ COUNSEL ARGUED: Michael C. Holley, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Nashville, Tennessee, for Appellant. Michael M. Stahl, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellee. ON BRIEF: Michael C. Holley, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Nashville, Tennessee, for Appellant. Michael M. Stahl, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellee. _________________ OPINION _________________ JANE B. STRANCH, Circuit Judge. This is an unusually postured pre-AEDPA habeas case that turns on the Supreme Court’s modern procedural default jurisprudence. In 1986, Joe  No. 19-6070 Mitchell v. Genovese Page 2 Clark Mitchell—a black man—was convicted by an all-white jury of raping two white women in Tennessee. The Warden no longer disputes the assertion that the prosecution’s decision to strike a black prospective juror violated Batson v. Kentucky, 476 U.S. 79 (1986). The district court granted relief on Batson grounds in 1995, but we reversed, holding that Mitchell had to first establish “cause and prejudice” for failing to develop the claim before the state court. Mitchell v. Rees, 114 F.3d 571 , 579 (6th Cir. 1997) (“Mitchell I”). We have acknowledged that our holding was error. See Harries v. Bell, 417 F.3d 631 , 635 (6th Cir. 2005). Because Supreme Court precedent now enables Mitchell to show the necessary “cause,” and authorizes him to raise his underlying ineffective assistance of counsel (IAC) claim and to seek redress through a Rule 60(b) motion, we REVERSE the district court’s decision, GRANT Mitchell a conditional writ of habeas corpus, and REMAND the case for further proceedings. I. BACKGROUND In 1982, Mitchell was indicted on multiple felony charges relating to the rape and robbery of two women in Giles County, Tennessee. Mitchell is black; the crime victims white. The prosecutor later recalled that it was “a highly circumstantial case” against Mitchell. And because, according to the trial judge, “[t]he feelings in that community were so hot and so bad, so prejudicial,” a change of venue motion was granted and the case was tried in Columbia, Tennessee. The trial took place in 1986, months after the Supreme Court announced its seminal decision in Batson, prohibiting race discrimination in jury selection. 476 U.S. 79 . In Mitchell’s case, two prospective jurors were black; the rest were white. One potential black juror was stricken for cause, the other—Hattie Alderson—by the prosecution. The all-white jury convicted Mitchell of most of the crimes charged—including two counts of aggravated rape. The Tennessee Court of Criminal Appeals (“TCCA”) affirmed the convictions save one count of aggravated rape that it reduced to simple rape. No Batson challenge was brought on direct appeal. Mitchell was left with an effective sentence of life plus thirteen years. Mitchell sought post-conviction relief in the state trial court. What occurred there is critical because the relief Mitchell seeks here hinges on whether the state court reached his Batson and IAC-Batson challenges on the merits, or whether they were barred by a state  No. 19-6070 Mitchell v. Genovese Page 3 procedural rule and thereby procedurally defaulted on federal review. Mitchell’s counsel in state post-conviction proceedings was Daniel Runde, a public defender. Mitchell’s petition for post- conviction relief contained thirteen claims of ineffective assistance of counsel, including a claim that his trial counsel should have challenged the racial composition of the jury pool. His petition did not include a Batson claim, or claim that his trial or direct-appeal attorney was ineffective for not raising a Batson challenge. See Mitchell I, 114 F.3d at 573 –74. Nor did Mitchell’s petition otherwise challenge the prosecution’s use of a peremptory strike against Ms. Alderson or the racial composition of the petit jury. At the state post-conviction hearing, Runde orally moved to add a Batson claim. The prosecution objected, noting that Runde had enjoyed ample time to amend the petition, and the court moved on without ruling on the issue. At the evidentiary hearing, Runde asked the defendant and trial counsel to testify to their recollection of the prosecution’s strikes against black prospective jurors; but, as the TCCA would note, Runde failed to show how many peremptory strikes were used, who they were used against, or whether black prospective jurors remained in the venire. Mitchell v. State, No. 01-C01-9007-CC-00158, 1991 WL 1351 (Tenn. Crim. App. Jan. 11, 1991) (“TCCA Opinion”). The state post-conviction court denied relief. It ruled orally on each claim enumerated in the petition and did not address Batson or Mitchell’s attempt to add a Batson claim. Mitchell appealed the denial of state post-conviction relief to the TCCA. There, he raised a Batson claim in his written filings, and, for the first time, a claim that his trial counsel was ineffective for failing to raise a Batson challenge below. See Mitchell v. Rees, 36 F. App’x 752, 753 (6th Cir. 2002) (“Mitchell II”). The TCCA denied relief. It reasoned: “[w]e conclude the lack of evidence on the Batson issue does not justify this Court upsetting the judgment entered in the original cases.” TCCA Opinion, 1991 WL 1351 , at *1. The TCCA did not address Mitchell’s IAC-Batson claim. Id. In 1993, Mitchell filed a petition for habeas relief in federal court which included his Batson and IAC-Batson claims. The district court directed a magistrate judge to hold an evidentiary hearing on the Batson claim, where the prosecutor was questioned about his reason for striking Hattie Alderson. The prosecutor testified: Alderson “appeared to be an elderly lady,  No. 19-6070 Mitchell v. Genovese Page 4 and it was going to take some concentration, because we did not have any confession, we didn’t have any eyewitness identification, the offender had worn a ski mask the whole time, and there was just a lot of circumstantial evidence. . . . And I just didn’t think she would be able to follow that.” On cross-examination, the prosecutor explained: “There was something about her appearance or personality that just didn’t fit with me,” albeit denying on re-direct that Ms. Alderson was stricken because of her race. The district court granted habeas relief on Mitchell’s Batson claim, finding the prosecutor’s explanation for striking Ms. Alderson “not worthy of belief.” It did not address Mitchell’s IAC-Batson claim. The state appealed, arguing that the district court erred by holding an evidentiary hearing, and the Mitchell I Court agreed. 114 F.3d at 578 –79. We held that the court erred by holding an evidentiary hearing without first finding (1) cause and prejudice to overcome Mitchell’s failure to develop the factual basis for his Batson claim in state court, or (2) that a hearing was necessary to avoid a miscarriage of justice. We remanded to allow Mitchell an opportunity to make the cause-and-prejudice showing needed to overcome procedural default, such that he would be entitled to an evidentiary hearing under Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992). But we later acknowledged that under the pre-AEDPA authority that governed Mitchell’s habeas petition, our Mitchell I holding was wrong: it was within the district court’s authority to hold the evidentiary hearing on Mitchell’s Batson claim without a cause-and-prejudice showing. See Abdur’Rahman v. Bell, 226 F.3d 696 , 705–06 (6th Cir. 2000); Harries, 417 F.3d at 635 . On remand, the district court granted habeas relief again—this time on the merits of Mitchell’s IAC-Batson claim. It reasoned that Mitchell successfully showed cause and prejudice under Keeney to excuse procedural default, which established the propriety of the previously held evidentiary hearing. The district court went on to conclude that Mitchell was entitled to merits relief on both his Batson and IAC-Batson claims. To excuse procedural default and reach the merits determination that Mitchell’s IAC-Batson claim warranted habeas relief, however, the Report & Recommendation misguidedly reasoned that trial counsel’s performance provided cause to excuse post-conviction counsel’s failure to raise Mitchell’s Batson and IAC-Batson claims. We again reversed, reasoning that “[t]he threshold showing Mitchell was required to make in the proceedings on remand was that he had cause for his failure to develop that [sic]  No. 19-6070 Mitchell v. Genovese Page 5 state post-conviction record.” Mitchell II, 36 F. App’x at 754. Mitchell II instructed the district court to deny habeas relief because Mitchell failed to show cause under Keeney. Id. at 753–54. Mitchell’s case then entered a procedural thicket. He challenged the holding in Mitchell I pursuant to a Rule 60(b)(6) motion, and the district court granted habeas relief for a third time. But, for the third time, we reversed, reasoning that Mitchell’s motion should have been construed under Rule 60(b)(1) and thus was untimely. Mitchell v. Rees, 261 F. App’x 825, 828–30 (6th Cir. 2008) (“Mitchell III”) (“Mitchell I was erroneous when decided [but] . . . [i]t was an abuse of discretion to grant relief under Rule 60(b)(6).”). And yet, that too was wrong, and we later recognized our error and abrogated Mitchell III’s jurisdictional understanding of Rule 60(b)(1)’s time limit. Penney v. United States, 870 F.3d 459 , 462 (6th Cir. 2017). But not in time to help Mitchell. Meanwhile, Mitchell challenged his conviction under Rule 60(d). But we held that our “regrettable” error “in Mitchell I . . . was no more than an ‘ordinary legal error,’ fully anticipated by Rule 60(b)(1), and, therefore, not a ‘grave miscarriage of justice’ that would warrant an independent action under Rule 60(d).” Mitchell v. Rees, 651 F.3d 593 , 597 (6th Cir. 2011) (“Mitchell IV”). In 2012, the Supreme Court decided Martinez v. Ryan, holding that when a state limits the consideration of ineffective assistance of trial counsel claims to collateral review, a habeas petitioner may establish cause for procedural default if (1) state post-conviction counsel was ineffective under Strickland and (2) the underlying claim has “some merit.” 566 U.S. 1 , 14 (2012). This rule modified the Supreme Court’s previously unqualified holding in Coleman v. Thompson, 501 U.S. 722 , 752–53 (1991), that post-conviction counsel’s “ignorance or inadvertence in a postconviction proceeding,” including its failure to raise an ineffective assistance of trial counsel claim, does not qualify as cause to excuse procedural default. Martinez, 566 U.S. at 9 ; see also Buck v. Davis, 137 S. Ct. 759 , 770–71 (2017). In Trevino v. Thaler, the Supreme Court extended the Martinez exception to the Coleman rule to state collateral review systems that, without formally requiring defendants to reserve ineffective assistance of trial counsel claims for collateral review, deny them “a meaningful opportunity” to raise such claims on direct appeal. 569 U.S. 413 , 429 (2013).  No. 19-6070 Mitchell v. Genovese Page 6 In the wake of Martinez and Trevino, Mitchell moved for relief from judgment under Rule 60(b)(6). Construing this motion as a successive habeas petition, the district court transferred the case to the Sixth Circuit. We concluded, however, that the petition was not second or successive because the motion challenged a ruling “which precluded a merits determination;” the motion was properly construed under Rule 60(b)(6). In re: Mitchell, No. 13- 6614 (6th Cir. Aug. 21, 2014) (“Mitchell V”). On remand, the Magistrate Judge recommended that the district court reopen the petition under Rule 60(b)(6), find that Martinez applies, and grant habeas relief on the merits of Mitchell’s IAC-Batson claim. The district court disagreed, reasoning that as a matter of law, Sixth Circuit caselaw precluded Mitchell from using Martinez to seek relief. On that basis alone, the district court denied Mitchell’s Rule 60(b)(6) motion. But it granted a certificate of appealability.1 Mitchell now appeals. II. ANALYSIS A. Standard of Review The denial of a Rule 60(b) motion is reviewed for abuse of discretion. Tyler v. Anderson, 749 F.3d 499 , 509 (6th Cir. 2014) (citing Yeschick v. Mineta, 675 F.3d 622 , 628 (6th Cir. 2012)). “A district court abuses its discretion when it . . . improperly applies the law.” Ross v. Duggan, 402 F.3d 575 , 581 (6th Cir. 2004). This court reviews a district court’s interpretation of precedent de novo. Kelly Services, Inc. v. Creative Harbor, LLC, 846 F.3d 857 , 869 (6th Cir. 2017). B. Discussion Mitchell asks this court to reopen habeas proceedings under Rule 60(b)(6) and to grant a writ of habeas corpus—as the district court did in 1995, 1999, and 2006. To prevail, Mitchell must show that (1) he would be entitled to relief under Martinez and its Sixth Circuit progeny in light of the pre-AEDPA procedural default rules that govern his case; and (2) the facts and 1It concluded: “Reasonable jurists would find it debatable whether the petition states a valid ineffective- assistance-of-counsel/Batson claim, and reasonable jurists would find it debatable whether the Court is correct in its ruling on the Rule 60(b)/Martinez issue.”  No. 19-6070 Mitchell v. Genovese Page 7 history of his case present the requisite “extraordinary circumstances” for relief under Rule 60(b)(6). First, though, the Government makes a threshold argument that can be disposed of quickly. It argues that because “Martinez alone does not represent the type of ‘extraordinary circumstances’ sufficient to grant Rule 60(b)(6) relief,” the district court properly denied relief. But while Martinez alone does not amount to an exceptional circumstance under Rule 60(b), we have already determined that Martinez can unlock relief under Rule 60(b)(6) when coupled with a sufficient equitable justification. Miller v. Mays, 879 F.3d 691 , 698–700 (6th Cir. 2018); see also Moore v. Mitchell, 848 F.3d 774 , 776–77 (6th Cir. 2017); McGuire v. Warden, Chillicothe Correctional Institution, 738 F.3d 741 , 750 (6th Cir. 2013). Indeed, Rule 60(b)(6) is an equitable remedy to be decided as a “‘case-by-case inquiry’ . . . [that] ‘intensively balance[s] numerous factors, including the competing policies of the finality of judgments and the incessant command of the court’s conscience that justice be done in light of all the facts.’” Miller, 879 F.3d at 698 (quoting West v. Carpenter, 790 F.3d 693 , 697 (6th Cir. 2015)). As occurred in Buck, Martinez—if applicable—would open the door to equitable relief under Rule 60(b)(6). 137 S. Ct. at 779 –80. We now turn to the substantive issues in this case. 1. The Application of Martinez to Mitchell’s IAC-Batson Claim To obtain Rule 60(b)(6) relief, Mitchell must show that, as in Buck, “Martinez and Trevino, not Coleman, would govern his case were it reopened.” Buck, 137 S. Ct. at 780 . We therefore start by reviewing the application of Martinez to Mitchell’s claim. Before doing so, it is useful to list the issues that are not in dispute. The Warden does not challenge Mitchell’s contention that the prosecution struck Hattie Alderson in violation of Batson and that this constitutional violation would, if challenged directly, entitle Mitchell to a new trial. He does not dispute that the evidence presented at the federal evidentiary hearing in 1994 established a Batson violation, or the merits of Mitchell’s IAC-Batson claim. Nor does the Warden argue that we are bound by Mitchell I—a ruling expressly disavowed by binding caselaw. Abdur’Rahman, 226 F.3d at 705 –06; Harries, 417 F.3d at 635 . The Warden’s only  No. 19-6070 Mitchell v. Genovese Page 8 contention on appeal is that Mitchell simply does not have a viable procedural avenue to challenge Mitchell I’s mistake and the Batson and IAC-Batson violations preceding it. Considerable agreement also exists concerning Mitchell’s Martinez challenge. There is no dispute that the Martinez/Trevino exception applies in Tennessee. Sutton v. Carpenter, 745 F.3d 787 , 795 (6th Cir. 2014). And the Warden does not argue that Mitchell’s attempt to use the exception here is barred by Teague v. Lane, 489 U.S. 288 (1989) or the doctrine governing retroactivity of the Supreme Court’s criminal procedure decisions. See Buck, 137 S. Ct. at 780 . If, as the Magistrate Judge found, Martinez applies, its test is fulfilled: (1) state post-conviction counsel was constitutionally ineffective for failing to raise and develop the IAC-Batson issue, and (2) the underlying ineffective assistance of trial counsel claim has “some merit.” Martinez, 566 U.S. at 14 . The Warden has waived any argument to the contrary. And, indeed, a district court has already granted relief under Strickland on Mitchell’s IAC-Batson claim. Finally, the parties agree that because Mitchell’s habeas petition was filed before Congress passed AEDPA, AEDPA does not govern this case. The crux of the issue is whether Mitchell’s IAC-Batson claim was procedurally defaulted. If so, there is no dispute that Martinez and the Supreme Court’s cause-and-prejudice jurisprudence applies. But the district court held that Mitchell’s IAC-Batson claim was not procedurally defaulted in state post-conviction proceedings and was instead adjudicated on the merits such that Martinez does not apply. This is a change of course. Twice before, we applied the procedural default doctrine to reverse decisions by the district court to grant habeas relief to Mitchell, ruling that he had failed to show cause for not presenting or sufficiently developing his IAC-Batson and Batson claims on the merits. a. Pre-AEDPA Procedural Default Doctrine To assess whether Mitchell’s present claims were procedurally defaulted, it is necessary to call up the then-operative framework. Before Congress promulgated AEDPA, a state post- conviction court’s “determination . . . of a factual issue” was insulated with a “presumption of correctness,” unless, among other exceptions, the material facts that were the basis of its  No. 19-6070 Mitchell v. Genovese Page 9 determination were “not adequately developed at the State court hearing.” 28 U.S.C. § 2254(d)(3) (1993, repealed). In that era, district courts possessed the inherent authority to hold an evidentiary hearing to settle disputes of material fact. See Harries, 417 F.3d at 635 (“[D]espite the holding in Mitchell [I], a district court does have the inherent authority to order an evidentiary hearing.” (quoting Abdur’Rahman, 226 F.3d at 705 –06)). But there were also scenarios where pre-AEDPA Supreme Court precedent required district courts to hold an evidentiary hearing. Abdur’Rahman, 226 F.3d at 705 (citing Townsend v. Sain, 372 U.S. 293 (1963), overruled in part by Keeney, 504 U.S. 1 ). Though the district court’s prerogative to hold such hearing was “constrained only by his sound discretion,” Townsend enumerated six situations where a district court was required to hold a hearing, including when “material facts were not adequately developed at the state-court hearing.” 372 U.S. at 313 , 318. Note the overlap with 28 U.S.C. § 2254(d)(3) (1993, repealed). In Keeney, the Supreme Court overruled Townsend’s mandatory hearing directive “holding that the cause and prejudice test applies to a habeas petitioner’s failure to develop material facts at the state court level.” Abdur’Rahman, 226 F.3d at 705 (citing Keeney, 504 U.S. at 5 ). But it noted that the exceptions to the presumption of correctness listed in § 2254(d)— passed after Townsend—“indicate[] no assumption that the presence or absence of any of the statutory exceptions will determine whether a hearing is held.” Keeney, 504 U.S. at 10 n.5. In other words, Keeney did not purport to disturb the “viability of Townsend’s statement that a district court may order an evidentiary hearing” to resolve factual disputes even following § 2254(d). Abdur’Rahman, 226 F.3d at 705 –06 (emphasis added). The Abdur’Rahman Court explained: “Thus, Mitchell [I]’s statement that a district court is without authority to order an evidentiary hearing in the absence of one of the exceptions listed in § 2254(d) is overbroad in that it fails to recognize the inherent authority that a district court always has in habeas cases to order evidentiary hearings to settle disputed issues of material fact.” Id. at 706. Mitchell I’s error in 1997 was to mistake Keeney’s requirement that a petitioner show cause and prejudice to be entitled to a federal evidentiary hearing as an “express limitation on the district court’s jurisdiction,” 114 F.3d at 577 , and its then-existing discretionary authority to hold an evidentiary hearing absent a cause-and-prejudice showing. Abdur’Rahman, 226 F.3d at 705 –06; Harries, 417 F.3d at 635 .  No. 19-6070 Mitchell v. Genovese Page 10 How Mitchell I applied a misinterpretation of Keeney to Mitchell’s case matters to Mitchell’s ability to show that his IAC-Batson claim is procedurally defaulted. Critically, Keeney held that under Coleman, a habeas petitioner must show cause and prejudice to challenge state post-conviction counsel’s failure to raise or to properly develop a claim. Keeney, 504 U.S. at 7 –8. The Court explained: “[w]e appl[y] the cause-and-prejudice standard uniformly to state procedural defaults . . . it is similarly irrational to distinguish between failing to properly assert a federal claim in state court and failing in state court to properly develop such a claim.” Id. In Mitchell I, we held that while the district court abused its discretion in holding an evidentiary hearing, the “material facts were not adequately developed at the State court hearing,” such that the § 2254(d)(3) exception to the presumption-of-correctness applied. Mitchell I, 114 F.3d at 577 . Mitchell I concluded that this constituted a procedural default and reversed the district court’s decision granting Mitchell a new trial on the sole basis that he was unable to show cause under Keeney. b. The Present District Court Opinion Fast-forward to 2019. The district court opinion currently on appeal rejected the Magistrate Judge’s Report and Recommendation (that would have, for a fourth time, granted federal habeas relief) on the sole basis that in the Sixth Circuit, the Martinez exception to establish cause does not apply “in cases where a defendant’s state post-conviction counsel technically identifies an ineffective-assistance-of-trial-counsel claim in the state post-conviction proceeding, but (ineffectively) fails to present evidence to support that claim.” The decision sought to rely on West, 790 F.3d at 698 –99 and Moore v. Mitchell, 708 F.3d 760 , 785 (6th Cir. 2013). It acknowledged that our analyses in West and Moore turned on AEDPA caselaw—and specifically, Cullen v. Pinholster, where the Supreme Court held that a habeas petitioner who raised IAC claims in state post-conviction could not rely on new evidence presented in federal court to show that the state court unreasonably adjudicated his constitutional claim on the merits. See 563 U.S. 170 (2011). But the decision below reasoned that West governed this case, notwithstanding its recognition that Mitchell’s case occurred before AEDPA was passed.  No. 19-6070 Mitchell v. Genovese Page 11 Interpreting our opinion in Mitchell II as holding that the TCCA’s decision amounted to a ruling on the merits of Mitchell’s Batson and IAC-Batson claim, the decision below held that West barred relief. The decision quoted Mitchell II: As we pointed out in Mitchell I, and contrary to the finding of the district court on remand, it is clear from the record in the state court proceedings that Mitchell did not raise in his state court post-conviction petition either a Batson claim or a claim of ineffective assistance related to Batson. At the hearing on that petition, however, he was permitted, over the objection of the State, to present evidence with regard to the Batson claim. The state court found no merit to any of his claims and dismissed the petition. On appeal, Mitchell explicitly raised both a Batson claim and a Batson-related ineffective assistance of counsel claim. The state appellate court that reviewed the dismissal of Mitchell’s post-conviction petition found that “the lack of evidence on the Batson issue does not justify this Court in upsetting the judgment entered in the original cases,” and in Mitchell I, we held that to be a finding of fact that was “fairly supported” by the state court record. Id at 578–79. The district court was not free to overrule our conclusion. 36 F. App’x at 753 n.3, 754. In sum, the district court concluded: “[g]iven the Sixth Circuit’s conclusion that post-conviction counsel identified Petitioner’s claim and the state appeals court rejected the claim on the merits, and the West Court’s determination that such a claim does not fall within Martinez,” Mitchell was precluded from seeking relief under Rule 60(b). c. Arguments on Appeal In response to any claim that Mitchell II might be read to intimate that the state post- conviction court decided his IAC-Batson claim on the merits, Mitchell points out that we have repeatedly considered and treated his claim as procedurally defaulted. See, e.g., Mitchell I, 114 F.3d at 578 n.11, 579 n.13. He notes that contemporaneous Tennessee procedural law required that he present all claims for relief in his post-conviction petition, Tenn. Sup. Ct. R. 28 § 2(D), § 5(E)(3), and, as a result, the post-conviction court treated his Batson and IAC-Batson claims as waived. Alternatively, Mitchell argues that if we find he properly asserted a federal claim in state court—through post-conviction counsel’s direct examination of Mitchell and trial counsel and the inclusion of his IAC-Batson claim on appeal to the TCCA—then Keeney’s extension of Coleman’s cause-and-prejudice doctrine to insufficiently developed claims removes any doubt  No. 19-6070 Mitchell v. Genovese Page 12 that he falls within Martinez. Mitchell explains that Coleman’s cause doctrine was extended to his case when Keeney swept failure-to-develop claims under Coleman’s procedural default rule. The Mitchell I Court found that Mitchell had to show cause under Keeney/Coleman, and Martinez has retroactively modified Coleman’s cause doctrine. And so, Mitchell argues, “by modifying Coleman, Martinez now enables Mitchell to show the Coleman cause that this court demanded of him when denying relief in 1997 and 2002.” Mitchell asserts that Moore, West, and the other post-AEDPA caselaw cited by the Warden are inapposite to pre-AEDPA cases—that they stand only for the undisputed proposition that Martinez cannot be used post-AEDPA to circumvent Pinholster’s rule prohibiting federal habeas tribunals from admitting new evidence upon which to assess the reasonableness of a state court’s constitutional analysis. See Moore, 708 F.3d at 785 . And in West, Mitchell notes, while the IAC claim was defaulted on appeal from the state court’s post-conviction decision, West, unlike Mitchell, was permitted to present evidence below relating to the claim upon which the state post-conviction court based its merits ruling; in short, the claim was not in default. 790 F.3d at 696 –98. In contrast, Mitchell’s post-conviction counsel failed to present evidence to support his IAC-Batson claim. This is why Mitchell I remanded the case under Keeney for Mitchell to show cause. Mitchell asserts that his factual and procedural situation cannot be considered a merits determination akin to West. The Warden argues that because Mitchell’s IAC-Batson claim “was not procedurally defaulted, and was actually decided on the merits, Martinez provides no basis for relief.” He contends that despite this court’s consistent statement that Mitchell did not raise a Batson or IAC-Batson claim in his state post-conviction petition, see e.g., Mitchell II, 36 F. App’x at 753 n.3, Mitchell did present a Batson claim in a 1988 pro se petition that challenged the racial composition of the jury pool in Maury County. Second, the Warden asserts that the TCCA’s conclusion that “the lack of evidence on the Batson issue does not justify this Court in upsetting the judgment entered in the original cases,” was, by its terms, a decision on the merits. Third, the Warden argues that because Tennessee has not invoked an independent and adequate state procedural rule that would foreclose review of Mitchell’s claim on the merits, his claims are not procedurally defaulted. See Peoples v. Lafler, 734 F.3d 503 , 512 (6th Cir. 2013).  No. 19-6070 Mitchell v. Genovese Page 13 d. Analysis of Mitchell’s IAC-Batson Claim Martinez applies to Mitchell’s case for several reasons. First, we have repeatedly viewed post-conviction counsel’s failure to bring an IAC-Batson claim in Mitchell’s state habeas petition, and subsequent inability to rectify that mistake, to constitute a procedural default—and have declined to hear the merits of his claims on that basis. Second, Martinez is an equitable decision meant to relieve habeas petitioners who, like Mitchell, are unable to present their merits contentions to any court because they received two constitutionally inadequate lawyers in a row. Third, Sixth Circuit caselaw does not preclude a pre-AEDPA habeas petitioner from bringing a failure-to-develop IAC claim using Martinez. Neither the fact that Mitchell challenged the racial composition of the jury pool nor that the State did not cite a specific procedural rule barring Mitchell’s claim has any effect on this conclusion. We necessarily begin with Mitchell’s appeal from the denial of state post-conviction relief. There, the TCCA reviewed the testimony Runde elicited from Mitchell and trial counsel about the prosecution’s use of peremptory strikes, and Runde raised a written Batson claim for the first time. Denying relief, the TCCA ruled: The record does not show how many peremptory challenges were used by the state or whether the district attorney general exercised peremptory challenges to excuse those who were not a member of the minority class involved in this complaint; nor does the record show whether there were other black persons left in the venire who might have been called to serve in this case. We conclude the lack of evidence on the Batson issue does not justify this Court upsetting the judgment entered in the original cases. TCCA Opinion, 1991 WL 1351 , at *1. It is readily apparent that the TCCA denied Mitchell’s Batson claim because, without knowing the basic factual history of the claim—how peremptory strikes were actually used—he could not “establish a prima facie case of purposeful discrimination in selection of the petit jury.” Batson, 476 U.S. at 96 ; Mitchell I, 114 F.3d at 578 (“Without that evidence, the state court could not have determined whether the peremptory challenges were exercised in a ‘pattern’ of strikes.”). The TCCA’s holding was specifically predicated on a “lack of evidence” regarding the facts that pertain to a prima facie Batson claim. TCCA Opinion, 1991 WL 1351 , at *1. And when Runde sought to go back and provide the  No. 19-6070 Mitchell v. Genovese Page 14 missing facts relating to the race of the prospective jurors and the parties’ use of peremptory strikes, his request for a further hearing on remand was not granted. TCCA Opinion, 1991 WL 1351 , at *1. While the TCCA’s one-page opinion did not cite a then-existing state law procedural rule, Mitchell’s claims raised for the first time on appeal would have been waived under contemporaneous Tennessee law. See Black v. Blount, 938 S.W.2d 394 , 403 (Tenn. 1996). In his brief before this court, the Warden contends that Mitchell’s arguments challenging the racial composition of the jury pool in Maury County constitutes a Batson claim. Mitchell’s jury pool claim, however, was not a Batson claim, let alone an IAC-Batson claim. See Mitchell I, 114 F.3d at 574 n.5 (“None of these is a Batson claim.”). The jury pool challenge is a distinct issue: it did not purport to challenge the prosecution’s use of peremptory strikes and it did not address purposeful race discrimination by the prosecution during selection of the petit jury. Batson, 476 U.S. at 96 . Even Mitchell II’s characterization of Mitchell’s Batson and IAC-Batson, which is the Warden’s only support for the assertion that the TCCA decided these claims on the merits, recognized that the IAC-Batson claim was “raised for the first time in Mitchell’s appeal of his state court post-conviction petition.” 36 F. App’x at 753. In sum, the TCCA had no Batson or IAC-Batson claim before it to adjudicate on the merits. It simply commented on the lack of evidence and denied relief. The district court decision presently under review, however, concluded that the TCCA’s holding should be considered a merits decision based on its determination that one of our opinions had characterized it as such. Mitchell II is the only possible support for this conclusion—and it is fleeting. There, we did note that the TCCA’s decision declining to reopen Mitchell’s case because of a lack of evidence was a “finding of fact,” and that in Mitchell I we found such a finding was “fairly supported” by the state court record. Mitchell II, 36 F. App’x at 754 (quoting Mitchell I, 114 F.3d at 578 –79). But a review of Mitchell I adds necessary context. Mitchell I found it “fairly supported” that there was insufficient evidence in the record upon which the state courts could adjudicate Mitchell’s Batson and IAC-Batson claim. Mitchell I, 114 F.3d at 578 . The Mitchell I Court observed that “the state appellate court reviewed the evidence presented in the course of the hearing on the post-conviction petition, made findings of fact both  No. 19-6070 Mitchell v. Genovese Page 15 as to what the record did show and what it did not show in regard to the Batson claim,” but then recognized that it was dismissed for “lack of evidence.” Mitchell I, 114 F.3d at 576 –77. The TCCA opinion itself confirms this reading; its comment about “lack of evidence” directly follows its list of requisite Batson evidence missing from the record. TCCA Opinion, 1991 WL 1351 , at *1. Mitchell I observed that the TCCA “found that there was insufficient evidence in the record to rule upon th[at] claim;” it did not hold that the state court heard and rejected Mitchell’s Batson or IAC-Batson claims on the merits. Id. at 577. Our disposition confirms this: Mitchell I took away the new trial granted to Mitchell by the district court in 1995 because he was unable to show cause for his failure to bring the claim such that it could be decided on the merits. Id. at 579 . The 2019 decision before us was thus mistaken to conclude that Mitchell I viewed the TCCA decision as a rejection of Mitchell’s Batson or IAC-Batson claim on the merits and that it was not subject to procedural default. Quite the opposite. Noting that the state could have—but failed to—argue waiver , id. at 574 n.5, we held in Mitchell I that “petitioner’s failure to develop in the state court proceedings the material facts necessary to support his [Batson and IAC-Batson claims] is a procedural default.” 114 F.3d at 578 n.11 (emphasis added). Since Mitchell I, we have called Mitchell’s Batson and IAC-Batson claims procedurally defaulted. Most recently, in Mitchell V, we held that Mitchell’s present Rule 60(b)(6) motion is not a habeas petition because it “merely asserts that a previous ruling which precluded a merits determination was in error.” Mitchell V, No. 13-6614 at *5–6 (quoting Gonzalez v. Crosby, 545 U.S. 524 , 532 n.4 (2005) (giving procedural default as an example of a denial on non-merits grounds)). The Mitchell V Court concluded that, “under Gonzalez v. Crosby, Mitchell’s argument that Martinez v. Ryan and Trevino v. Thaler demonstrate ‘cause’ to excuse procedural default of his Batson claim does not assert a ‘claim’ and therefore should not be interpreted as a second or successive habeas petition.” Id. at *6. And the panel permitted Mitchell to move forward under Rule 60(b)(6). We have not simply called Mitchell’s claims procedurally defaulted; we have treated them as procedurally defaulted, beginning in 1997, under the ultimately mistaken view of a pre- AEDPA district court’s authority to hold an evidentiary hearing. Harries, 417 F.3d at 635 .  No. 19-6070 Mitchell v. Genovese Page 16 Mitchell’s “procedural default,” the Mitchell I Court reasoned, “can be excused by the federal habeas court only upon a showing of cause and prejudice.” 114 F.3d at 578 n.11. We therefore vacated the district court’s dismissal of the claim and remanded the case to decide whether Mitchell had made an adequate cause-and-prejudice showing under Keeney. Id. at 579 n.13 (“If petitioner were able to demonstrate that he was entitled under Keeney to an evidentiary hearing on his Batson claim, and if he were then able to demonstrate that that claim had merit . . . , then he might also be able to prevail on this related ineffective assistance claim.”) Recall that on appeal from the remand proceedings, we overturned habeas relief again; without citing Coleman directly, we reasoned that Mitchell was unable to show “cause for [his] failure to develop the record in the [state] post-conviction proceedings.” Mitchell II, 36 F. App’x at 754 (emphasis omitted). Mitchell has since been unable to present his evidence of a Batson or IAC- Batson violation to any court—apart from the district court that heard the evidence in 1994 and granted Batson relief in 1995. Our court’s treatment of Mitchell’s IAC-Batson claim is fully consistent with the label we gave his claims; both support the conclusion that Mitchell’s claim was procedurally defaulted. Martinez itself confirms its application to Mitchell’s case. It recognized “as an equitable matter, that the initial-review collateral [here, the state post-conviction] proceeding, if undertaken without counsel or with ineffective counsel, may not [be] sufficient to ensure that proper consideration was given to a substantial claim.” 566 U.S. at 14 . The Court was careful not to announce a constitutional right to counsel in post-conviction proceedings , id. at 16, instead holding that “[t]o protect prisoners with a potentially legitimate claim of ineffective assistance of trial counsel, it is necessary to modify the unqualified statement in Coleman that an attorney’s ignorance or inadvertence in a postconviction proceeding does not qualify as cause to excuse a procedural default.” Id. at 9. This is because, the Supreme Court reasoned, “[w]hen an attorney errs in initial-review collateral proceedings, it is likely that no state court at any level will hear the prisoner’s claim.” Id. at 10. The Court continued, “[a]nd if counsel’s errors in an initial- review collateral proceeding do not establish cause to excuse the procedural default in a federal habeas proceeding, no court will review the prisoner’s claims.” Id. at 10–11. Mitchell is caught in that very box. The Martinez Court’s equitable judgment that the provision of consecutive  No. 19-6070 Mitchell v. Genovese Page 17 constitutionally ineffective lawyers should not preclude a habeas petitioner from his day in court applies to Mitchell. See also Buck, 137 S. Ct. at 780 . West, Moore, and AEDPA decisions interpreting the application of Martinez to “failure- to-develop” claims do not alter this result. First, under the AEDPA version of § 2254(d), a federal habeas tribunal’s review of the state court’s constitutional analysis is limited to the record before the state court. Pinholster, 563 U.S. 180 –81. Where Pinholster and AEDPA apply, our circuit has declined to permit habeas petitioners to use Martinez to supplement the record in “failure-to-develop” cases. Moore, 708 F.3d at 785 . But, as the parties agree, Pinholster does not apply to Mitchell’s pre-AEDPA habeas petition.2 Those cases, moreover, involved other barriers to relief. In Moore, for example, the petitioner was permitted to raise his IAC claim on direct appeal and the Ohio Supreme Court rejected in it on the merits. Id. That scenario does not implicate Martinez. Similarly, in West, the petitioner brought his IAC claim in the initial-review collateral proceeding and received a ruling on the merits—post-conviction counsel simply failed to press the issue such that it was defaulted on appeal. 790 F.3d at 698 . These cases are doubly inapposite because they (1) do not involve claims that were defaulted in the initial-review collateral proceeding, and (2) apply Pinholster/AEDPA’s separate and independent limit on the availability of a federal evidentiary hearing. West and Moore do not preclude the application of Martinez to this case. Mitchell’s IAC-Batson claim was procedurally defaulted and the provision of two constitutionally inadequate lawyers operated to preclude any court from hearing his IAC-Batson claim on the merits. Martinez is applicable; Mitchell’s case falls within the narrow set of cases for which Martinez opens the door to equitable relief. 2Mitchell argues in the alternative, that even if AEDPA applied to his case, Pinholster and § 2254(d) would not bar relief because the TCCA’s decision did not constitute an adjudication of Mitchell’s Batson and IAC-Batson claims on the merits. See McClellen v. Rapelje, 703 F.3d 344 , 351 (6th Cir. 2013) (state court decision that made no “relevant factual findings” not an adjudication on the merits for purposes of § 2254(d)); see also Dickens v. Ryan, 740 F.3d 1302 (9th Cir. 2014) (en banc) (Facts presented in federal court that “fundamentally alter the legal claim already considered by the state courts” entail a new claim that is considered procedurally defaulted but restorable through Martinez (assuming its conditions are met) notwithstanding Pinholster’s rule against supplementing the record on claims already presented to the state courts.). Despite the viability of this argument, because the parties agree that AEDPA does not apply to Mitchell’s case, it need not be reached.  No. 19-6070 Mitchell v. Genovese Page 18 2. Equitable Considerations for Relief under Rule 60(b) Martinez applies but alone does not warrant relief. Miller, 879 F.3d at 700 . Extraordinary circumstances must be present. Gonzalez, 545 U.S. at 535 . These may include “the risk of injustice to the parties” and “the risk of undermining the public’s confidence in the judicial process.” Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847 , 863–64 (1988). In Buck, the underlying constitutional violation was severe: Buck’s own psychology expert testified “that one of the factors pertinent in assessing a person’s propensity for violence was his race.” 137 S. Ct. at 767 . The Supreme Court reasoned: “[r]elying on race to impose a criminal sanction ‘poisons public confidence’ in the judicial process. It thus injures not just the defendant, but ‘the law as an institution, . . . the community at large, and . . . the democratic ideal reflected in the processes of our courts.’ Such concerns are precisely among those we have identified as supporting relief under Rule 60(b)(6).” Buck, 137 S. Ct. at 778 (first quoting Davis v. Ayala, 135 S. Ct. 2187 , 2208 (2015); then quoting Rose v. Mitchell, 443 U.S. 545 , 556 (1979)). At this stage in Mitchell’s case, the Warden no longer disputes that Mitchell was tried by an all-white jury and that Hattie Alderson was stricken from the venire by the prosecution in violation of Batson v. Kentucky. The district court heard the evidence of this Batson violation in 1994—the only court ever to do so—and granted Mitchell relief. We overturned that relief in an opinion characterized as a “judicial travesty” by the dissent, an opinion that we have since concluded misapplied binding law. Abdur’Rahman, 226 F.3d at 705 –06; Harries, 417 F.3d at 635 . Our original error there was to reason, misguidedly, that the district court did not have the authority to hold an evidentiary hearing. And we did so under Keeney, treating the case as procedurally defaulted and thus requiring Mitchell to show cause and prejudice. Martinez, as discussed above, now provides Mitchell with an avenue to show that cause. Prejudice is clear: a district court has already granted habeas relief on Mitchell’s Batson claim, and separately, on his IAC-Batson claim. But for our error in Mitchell I, the remedy granted to Mitchell in 1995 would have resulted in Mitchell receiving a new trial free of unconstitutional race discrimination. Martinez opens the door to that remedy here, 25 years later. It is time—past time—that we rectify the “judicial travesty” that is Mitchell’s sentence. Mitchell I, 114 F.3d at 583 (Keith, J., dissenting). Striking black prospective jurors on the basis  No. 19-6070 Mitchell v. Genovese Page 19 of race “‘poisons public confidence’ in the judicial process,” Buck, 137 S. Ct. at 778 (quoting Ayala, 135 S. Ct. at 2208 ), because it suggests the justice system is complicit in racial discrimination. Denial of the opportunity to seek relief in such situations undermines respect for the courts and the rule of law. Mitchell I refused to review the merits of Mitchell’s Batson and IAC-Batson claims absent a showing of cause. Martinez removes that barrier. Mitchell’s case also evidences the danger Martinez sought to address—that the provision of two consecutive constitutionally ineffective lawyers would trap habeas petitions in a procedural double-bind through which they would be consigned to prison without a court ever hearing the merits of their constitutional claim. Buck confirms that Rule 60(b)(6) can be used to reopen cases that present the “risk of injustice to the parties” and “the risk of undermining the public’s confidence in the judicial process.” Buck, 137 S. Ct. at 778 . Mitchell’s case presents both; it establishes extraordinary circumstances and shows that denial of his Rule 60(b)(6) motion was error. Id. at 767. III. CONCLUSION We REVERSE the decision below and reopen Mitchell’s habeas petition under Rule 60(b)(6), GRANT Mitchell a conditional writ of habeas corpus, that will result in Mitchell’s release from prison unless the State of Tennessee commences a new trial against him within 180 days from the date of this opinion, and REMAND the case for further proceedings consistent with this opinion.

2020-01-17 22:01:37.822286+00

Akundell

*999OPINION. Akundell: The contract entered into on September 24, 1920, provided for an installment payment of $25,000 “ on the vacating of the premises ” by the petitioner; for the payment of interest on the unpaid purchase price from the date of the contract; for the entry of the premises for taxes in the name of the buyerfor the placement ot insurance on the buildings and other improvements on the land for the benefit of the petitioner; for the delivery of possession “ upon May 15, 1921,” and gave the seller the right to declare the whole purchase price immediately due and payable in case the vendee defaulted in the payment of any of the installments of principal, interest, taxes or insurance, and remained in default for a period of 30 days. The buyer paid interest on the unpaid purchase price of the property from the date of the agreement. The record does not disclose whether the vendee entered the property for taxes in its name or whether it covered the improvements on the premises with insurance, as it agreed to. For reasons not explained, the petitioner paid the city and county taxes on the property for the year 1920. *1000A situation similar to tbe one here was before the court in the case of Davidson & Case Lumber Co. v. Motter, 14 Fed. (2d) 137. The plaintiff in that case entered into a contract on November 20, 1919, with purchasers, at all times financially able to pay, for the sale of certain real property, conditioned alone on the title being-found satisfactory to the vendees. In December, 1919, the purchasers notified the seller that title -was satisfactory to them, and on June 1, 1920, in accordance with the terms of the contract, they paid the balance of the purchase price. Between December, 1919, and June, 1920, the seller was permitted to remain on the premises in consideration of its payment of taxes for one-half of the year 1920, After concluding that the dominion, control, burdens, and benefits of the property passed to the purchasers in the year 1919, the court, in holding that the profit realized on the sale was taxable in the year 1919, said: As the contract for the sale of the property, fixing the terms of the sale made, the amount of the purchase price to be paid, and all other of its terms, including the present payment of $10,000, was performed in the year 1919, the amount of profits taxable must have been determined as of that year as readily and absolutely as the date the conveyance was delivered and the deferred payment made. Counsel for the petitioner argues that the Davidson & Case Lumber Co. case is not in point, since the plaintiff in that proceeding remained on the property as a tenant after the sale was made absolute. At the time the contract in question here was entered into, the petitioner had a large quantity of lumber, doors, and other material on the premises which it desired to remove through sale in the regular course of its business as a retailer of lumber rather than transfer it to another yard at greater expense. Promptly upon the execution of the sales contract the petitioner proceeded to sell its stock of material without making any replacements. It had disposed of all the material by April 1, 1921, when it notified the buyer that it was ready to quit the premises and give the vendee possession. Petitioner’s vice president in 1920 and 1921, in answer to a question propounded to him in cross-examination as to the reason the buyer took possession on April 4, 1921, about six weeks prior to May 15, 1921, testified as follows : Just as we told them, they were to pay us $25,000 when we were ready to give them possession. We notified them that we were ready to give them possession and we would like the $25,000. From this testimony, and the acts of the parties, together with the fact that the contract provided for the making of the second payment, not on May 15, 1921, but “ on the vacating of the property,” it appears that the parties to the contract intended May 15, 1921, to be the latest date on which to transfer physical possession of the *1001premises, and that from September 24, 1920, the seller occupied the property with the permission of the vendee. Petitioner’s counsel concedes in his brief that a binding contract was entered into in 1920, that the vendee was at all times financially able to discharge its obligations under the agreement, and that the seller was also able and willing to carry out its part of the contract. That the parties to the agreement intended to close the sale with the execution of the instrument seems clear from the fact that the vendee paid interest on the unpaid purchase price from the date of the contract and agreed to list the property for taxes in its name, pay all taxes and assessments, and cover the improvements on the land with insurance, all of which are acts incident to ownership of the property. According to our view of the transaction, the buyer’s title to the property was as good in 1920 as it was in 192i, and the profit to be realized on the sale could have been determined as readily in the former year as in the latter one. With the exception of the second payment, the petitioner was as well off then as regards the closing of the deal as it was in the year 1921. Construing the contract as a whole in the light of the acts of the parties thereunder, wo are of the opinion that the sale was closed in 1920, and that the profit to be realized on the transaction is taxable in (hat year. Upon the execution of the contract of sale on September 24, 1920, the purchaser held the equitable title to the property and the petitioner held the legal title in trust for the vendee. Hooper v. Van Husen, 105 Mich. 592; 63 N. W. 522, and City of Marquette v. Michigan Iron & Land Co., 132 Mich. 130; 92 N. W. 934. 1 The purchase price of the property in question was $155,000, of j which $30,000, <sr about 20 per cent of the sale price, was paid in the year 1920. The initial payment being less than 25 per cent of the purchase price, the petitioner is entitled by the provisions of , sections 212 (d) and 1208 of the Revenue Act of 1926, and regula- ' tions promulgated thereunder, to return the income from the trans-1 action on the installment basis. Judgment will be entered under Rule 50.

2020-12-01 17:00:19.055464+00

https://ecf.ca8.uscourts.gov/opndir/20/12/193426U.pdf

United States Court of Appeals For the Eighth Circuit ___________________________ No. 19-3426 ___________________________ United States of America lllllllllllllllllllllPlaintiff - Appellee v. Matthew James Haymond, Sr. lllllllllllllllllllllDefendant - Appellant ____________ Appeal from United States District Court for the Southern District of Iowa - Davenport ____________ Submitted: September 21, 2020 Filed: December 1, 2020 [Unpublished] ____________ Before LOKEN, SHEPHERD, and ERICKSON, Circuit Judges. ____________ PER CURIAM. Matthew Haymond appeals an order of the district court1 denying a motion to reduce his sentence pursuant to Section 404 of the First Step Act of 2018. Pub. L. 1 The Honorable John A. Jarvey, Chief Judge of the United States District Court for the Southern District of Iowa. No. 115-391, § 404, 132 Stat. 5194 , 5222 (2018). With one exception, his arguments on appeal have been rejected in our prior recent decisions resolving First Step Act issues. We affirm. In 2008, Haymond pleaded guilty to conspiracy to distribute at least 50 grams of cocaine base in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A). Because Haymond was a career offender with two or more prior serious drug or violent felony convictions, the district court imposed a life sentence, as then mandated by 21 U.S.C. § 841 (b)(1)(A) (2009). Six years later, on motion by the government, the court reduced the sentence to 200 months. Section 404(b) of the First Step Act provides that, if the statutory penalty for an offense was modified by section 2 or 3 of the Fair Sentencing Act of 2010 (Pub. L. No. 111-220, 124 Stat. 2372 ), the district court may “impose a reduced sentence as if sections 2 and 3 . . . were in effect at the time the covered offense was committed.” The Fair Sentencing Act increased from 50 to 280 grams the minimum quantity of cocaine base that calls for a sentence mandated by § 841(b)(1)(A). Thus, Haymond is eligible for First Step Act relief. See United States v. Banks, 960 F.3d 982 , 984 (8th Cir. 2020); United States v. McDonald, 944 F.3d 769 , 771 (8th Cir. 2019). Haymond argued to the district court that, under the Fair Sentencing Act, his advisory guidelines range becomes the range as determined under the career offender provisions, not mandatory life imprisonment, and the court should reduce his sentence to the bottom of that range, 262 months, reduced by 50% to reflect the prior reduction of his initial sentence, in which case he would be released for time served. In his plea agreement, Haymond stipulated “that he distributed in excess of 50 grams of cocaine base (crack) in the course of the conspiracy and that he knew that others were involved with more than 4.5 kilograms of cocaine base.” In a Stipulation of Facts attached to the agreement, Haymond admitted receiving from a co-conspirator -2- between 63 and 126 grams of cocaine base every two to three days from mid-January 2008, when his brother was arrested, until February 27, 2008, when Haymond was arrested, a total amount in excess of 280 grams. Based on the guilty plea and these fact admissions, the district court denied Haymond’s motion for First Step Act relief: The defendant is entitled to retroactive application of the Fair Sentencing Act of 2010. If indicted today, given the amount of crack cocaine that the defendant admitted as a part of his conspiracy, he would still be subject to mandatory life in prison. Nothing has changed except for the requirement that the drug quantity was increased from 50 to 280 grams in order to trigger the mandatory minimum ten year term of incarceration. The defendant is not entitled to relief. On appeal, in addition to arguing he is eligible for First Step Act relief, which our recent cases have now established, Haymond argues the district court erred by failing to appreciate its broad discretion to grant a sentence reduction under the First Step Act. This argument is foreclosed by our recent decision in United States v. Booker, 974 F.3d 869 (8th Cir. 2020), in which we affirmed Chief Judge Jarvey’s denial of another First Step Act motion a few months before he issued the order here under review. In Booker, we confirmed that the district court is “not required to make an affirmative statement acknowledging its broad discretion under Section 404.” 974 F.3d at 871, citing Banks, 960 F.3d at 985. Rather, the standard for appellate review is whether the court “set forth enough to satisfy the appellate court that he has considered the parties’ arguments and has a reasoned basis for exercising [its] own legal decisionmaking authority.” Id., quoting Rita v. United States, 551 U.S. 338 , 356 (2007). Here, the district court -- which had sentenced Haymond in 2010 -- stated that “nothing has changed except for the [Fair Sentencing Act’s] requirement . . . to trigger the mandatory minimum,” and the sentencing record established that Haymond’s admitted offense conduct would still trigger a mandatory minimum life -3- sentence under 21 U.S.C. § 841 (b)(1)(B) in effect when the Fair Sentencing Act was enacted. Our recent cases have rejected Haymond’s assertion that the court erred by failing to consider a myriad of factors, including those under 18 U.S.C. § 3553 (a), in exercising its First Step Act discretion. The First Step Act permits but “does not mandate that district courts analyze the section 3553 factors for a permissive reduction in sentence.” United States v. Hoskins, 973 F.3d 918 , 921 (8th Cir. 2020), quoting United States v. Moore, 963 F.3d 725 , 727 (8th Cir. 2020); see Banks, 960 F.3d at 985. Haymond further argues the district court erred in finding that he admitted personal responsibility for more than 280 grams of crack cocaine. The question is important because, under the statutory penalties as amended by the Fair Sentencing Act, a person who committed an offense involving less than 280 grams of cocaine base “shall be sentenced” to a term not less than 10 years and not more than life. 21 U.S.C. § 841 (b)(1)(B)(iii) (2011). If that statute applies, then Haymond’s guidelines range under the Fair Sentencing Act would be determined by his career offender status, 262 to 327 months imprisonment, rather than a mandatory minimum life sentence, a change that would affect the district court’s analysis under the First Step Act. Reviewing the district court’s finding of drug quantity for clear error, we conclude the court did not clearly err in basing its more-than-280-gram finding on a Stipulation of Facts signed by Haymond and attached to his plea agreement. See United States v. Goodrich, 754 F.3d 569 , 572 (8th Cir. 2014), cert. denied, 577 U.S. 944 (2015) The Order of the district court dated October 28, 2019, is affirmed. ______________________________ -4-

2020-11-20 19:16:36.739449+00

TEXTILE MILLS SECURITIES CORPORATION, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. Textile Mills Sec. Corp. v. Commissioner Docket No. 75423. United States Board of Tax Appeals 38 B.T.A. 623; 1938 BTA LEXIS 842; September 28, 1938, Promulgated *842 The petitioner, a domestic corporation, was engaged generally in representing foreign interest respecting their property and business affairs in the United States. Because of its relationship to such foreign interests it was employed as an agent by various aliens whose property had been seized during the World War under the Trading with the Enemy Act, to present their claims to Congress with a view to obtaining, under anticipated Congressional enactment, either a return of their property or compensation therefor. The petitioner was to bear all expenses in connection with its employment and as compensation was to receive a stated percentage of the money or the value of the property it was able to recover. In pursuance of its employment the petitioner incurred certain expenses which had for their objective the enactment by Congress of the Settlement of the War Claims Act of 1928. Held, on the facts that such expenses constituted ordinary and necessary business expenses within the meaning of the statute and therefore are allowable deductions in determining taxable net income. E. S. Kochersperger, Esq., for the petitioner. J. H. Pigg, Esq., for the respondent. *843 TURNER *624 This proceeding involves a deficiency in income tax determined by the respondent in the amount of $14,085.27 for the year 1931. All issues raised in the petitioner have been disposed of by stipulation with the exception of certain expense items incurred by petitioner in the years 1929 and 1930, the disallowance of which by the respondent has reduced the amount of net loss claimed and carried forward by the petitioner to the taxable year. The expenses in question were incurred by the petitioner in its efforts to procure the enactment of legislation which would permit certain aliens to recover property seized by the United States during the World War under the Trading with the Enemy Act, and the question presented is whether or not the expenses so incurred constitute allowable deductions within the meaning of the statute. FINDINGS OF FACT. This proceeding was submitted upon a stipulation of facts and the stipulation is adopted as our findings herein. We shall set forth so much of the facts as is considered necessary for discussion of the issues to be determined. The petitioner was incorporated in 1924 under the laws of the State of Delaware. *844 Its income tax return for the taxable year was filed with the collector of internal revenue at Newark, New Jersey. Its books were kept and its returns for the years here under consideration were made on the accrual basis. During the years material to this proceeding the petitioner's business activities included trading in securities, investing in domestic and foreign properties, and acting as agent for foreign and domestic principals. All of petitioner's officers had official or stockholding connections with one or more textile manufacturing corporations. In 1924, through the personal contact of its officers with certain German textile interests whose properties in the United States had been seized during the World War under the provisions of the Trading with the Enemy Act, the petitioner was employed to represent *625 those interests in the United States with a view to procuring legislation which would permit the ultimate recovery of their properties. The properties involved had an estimated aggregate value of $60,000,000 and in the event of success the petitioner was to receive as compensation 10 percent of the amount or value of the property recovered. All costs*845 and expenses incident to the undertaking were to be borne by petitioner. The contract or contracts were to terminate at the close of the second session of the Sixty-ninth Congress unless in the meantime appropriate legislation had been enacted. In carrying on this campaign to procure the enactment of the desired legislation, the petitioner engaged the services of various persons and organizations, including Ivy Lee, Warren F. Martin, J. Reuben Clark, and F. W. Mondell. The Ivy Lee organization was employed to handle matters of publicity, including the making of arrangements for speeches, contacting the press, in respect of editorial comments, and news items. Warren F. Martin, a former special assistant to the attorney general and J. Reuben Clark, a former solicitor of the State Department, were employed in connection with the preparation of propaganda concerning international relations, treaty rights, and the historical policy of the United States relative to enemy-owned property in time of war. F. W. Mondell, an attorney and a former member of Congress, was employed in connection with the preparation and making of proposals and suggestions to members of Congress, "the aim of*846 which was to promote the speedy enactment of the desired legislation." Subsequently Mondell appeared as attorney before the Alien Property Custodian and certain courts on behalf of the alien individuals whose claims were in controversy. A bill for the settlement of war claims was introduced and passed the House of Representatives during the second session of the Sixty-ninth Congress and was favorably reported to the Senate by the Senate Finance Committee, but had not passed that body when Congress adjourned on March 4, 1927. Thereafter and prior to the opening of the first session of the Seventieth Congress on December 5, 1927, the petitioner undertook to negotiate new contracts similar in terms to those which had expired. Its efforts resulted in the procuring of new contracts from many of its former principals, but on terms less favorable than in the original contracts. The new contracts provided for the payment of 3 percent of the amount or value of property received by the claimant and for an additional 2 percent in respect of money or property paid over to the claimant within one year after enactment of the desired legislation. The new contracts also, as previously, required*847 that the petitioner pay all costs and expenses incurred in its performance *626 thereof. The new agreements were to run for a period of three years beginning with January 1, 1928. Under the original contracts petitioner had incurred considerable expenses in the form of fees and compensation. In several instances definite arrangements or agreements had not been made with the individuals employed as to the amounts of fees or compensation to be paid for their respective services. Without further arrangement or agreement, Lee, Martin, Clark, and Mondell continued their work after the close of the second session of the Sixty-ninth Congress on March 4, 1927. The objective of the campaign so carried on by the petitioner was accomplished during the Seventieth Congress by the passage of the "Settlement of the War Claims Act of 1928", subsequent to which no services were rendered to the petitioner by Lee, Martin, and Clark. Mondell continued to render services, however, during the remainder of the year 1928 and thereafter. These services were legal services, including appearances before the Alien Property Custodian and certain courts, as previously described. After the close*848 of the Sixty-ninth Congress on March 4, 1927, and during the latter part of 1928 petitioner made various payments to Lee, Martin, Clark, and Mondell, pursuant to the informal agreements or understandings above described, none of which payments are in controversy in this proceeding. Early in 1929 petitioner received a bill from Ivy Lee for $50,000 for services rendered in connection with the contracts mentioned. The amount claimed was in addition to the sums already paid. There was some controversy over the amount, but after discussion of the matter Lee was advised that his claim for additional compensation had been recognized and that payment would be made. He was thereupon credited upon the petitioner's books with the sum of $50,000 and payments in respect of that sum were subsequently made. In its return, however, petitioner claimed as a deduction only $45,000 of the $50,000 item just described. In the same year and under circumstances similar to those set forth with respect to the compensation credited to Lee the account of Mondell was credited with the sum of $46,000. In 1930, Warren F. Martin and J. Reuben Clark were credited on petitioner's books with sums of $40,000*849 and $7,500, respectively, as compensation for services rendered in connection with the above contracts and the amounts so credited were taken by the petitioner as deductions on its 1930 return. In its return for the year 1929 petitioner reported a net loss of $101,405.56 and for the year 1930 a net loss of $134,797.93. For 1931, the year before us, the petitioner brought forward from 1929 a net *627 loss in the amount of $94,873.48 and from 1930, a net loss, as adjusted, in the amount of $30,118.91, and reported on its return for 1931 a net loss in the amount of $7,615.15. In determining the deficiency herein the respondent reduced the net losses shown on the 1929 and 1930 returns by the disallowance of the deductions claimed by the petitioner in respect of the amounts credited Lee, Mondell, Martin, and Clark, as outlined above. It is now agreed between the parties that the amount credited to Mondell in 1929 was for legal services rendered "in connection with particular claims of petitioner's principal, after the enactment of the 'Settlement of War Claims Act of 1928'" and the deduction of that amount has been conceded by the respondent as proper. The respondent also*850 concedes that the amount credited to Ivy Lee in 1929 and the amounts credited to Martin and Clark in 1930 were properly accrued on the petitioner's books for those years, but does not concede that they were deductible. The deductibility of these items is the only matter left for our determination. In that respect it is stipulated that if the said items do not represent allowable deductions the correct deficiency for the year 1931 is $10,186.18 but if they do represent allowable deductions there is no deficiency for that year. OPINION. TURNER: In his notice of deficiency the respondent rested his disallowance of the deductions here in issue on the provisions of article 262 of Regulations 74, 1 which states in part that "Sums of money expended for lobbying purposes, the promotion or defeat of legislation, the exploitation of propaganda, including advertising other than trad advertising, and contributions for campaign expenses, are not deductible from gross income." He makes no claim that the acceptance of employment such as is involved in this proceeding was not within the scope of petitioner's powers or business. Neither does he make any claim that the expenses incurred were*851 not in fact ordinary and necessary in performing the services required of it under its contract. He now rests his claim wholly upon the decision *628 of the United States Circuit Court of Appeals for the Ninth Circuit in , which reversed the Board and approved the regulation cited. At the hearing his counsel stated that "the question in one sentence is whether the Board will follow that decision or whether it won't." *852 The petitioner admits that the expenses in question were incurred for services relating solely to the promotion of legislation, but claims that they were ordinary and necessary to the performance of the services required under its contracts and were therefore allowable deductions under the statute, section 23(a) of the Revenue Act of 1928. 2 In , the court states that the statute is "ambiguous because it makes no determination of what is or is not an 'ordinary and necessary' expense" and holds that article 262 of Regulations 74, which limits "the sweeping terms of the statute by prohibiting the deduction" of the expenditures made to avert the enactment of legislation unfavorable to the taxpayer is controlling since the statutory provision allowing the deduction of ordinary and necessary expenses has been reenacted without change in all of the revenue acts after*853 the Revenue Act of 1918, under which the regulation in question was first promulgated. The court further states that the Board in , and , as well as in the case there under consideration, took the view that the expenditures must have been for some illegal purpose to place them outside the provisions of the statute. It was held that such a conclusion was unsound in that it gave no consideration to the effect of the regulation and was equivalent to reading something into the regulation which could not there be found. The petitioner questions both the application of the decision in , to the facts in the instant case and the reasoning of the court as to the purpose and effect of the regulation. As to the latter, it is argued that article 262 is not an interpretation of the term "ordinary and necessary expenses", but has to do with contributions which depend for their allowance as deductions upon an entirely different provision of the statute, and under such circumstances that Congress can not be said to have*854 approved any such limitation or meaning of the term "ordinary and necessary expenses", as the respondent claims and the court has determined. While it is true that the article in question does appear in the Commissioner's regulation following the quotation of *629 that provision of the statute, section 23(n), 3 which deals with the allowance of charitable and other contributions as deductions, it is to be noted that the statute makes no allowance therein for the deduction of contributions or gifts made by a corporation, and the apparent purpose of the article is to show that, while expenditures made by a corporation may not be deducted as contributions after the manner of an individual taxpayer, such expenditures are proper deductions as "ordinary and necessary expenses" where they are made legitimately and for the purpose of procuring a direct benefit "to the corporation as an incident of its business." In other words, the article clearly and obviously shows that the test of deductibility of expenditures by corporations is to be found in that portion of the statute governing the deductibility of ordinary and necessary expenses rather than in the provision of the statute covering*855 the deductibility of contributions. Accordingly, the argument of petitioner that the Commissioner's regulation has no relation to the provision of the statute providing for the deduction of "ordinary and necessary expenses" must be regarded as unsound. On the facts a distinction can be drawn between the instant case and , but in our opinion the distinguishing facts do not take the instant case outside the ruling of the court. It is true that in Sunset Scavenger Co. v. Commissioner the legislation in respect of which the expenditure was made would have directly affected the business in which the taxpayer was engaged, while in the instant case the petitioner was not promoting or opposing legislation which directly affected the business in which it was regularly engaged, but, as an agent, was seeking to promote legislation for the benefit of others and its*856 compensation was to be received for services rendered as such agent and not from the possible effect the legislation might have on petitioner's business. In other words, the petitioner was lobbying in behalf of legislation for its own benefit only in so far as it would receive compensation for such lobbying activities from the parties who were to be directly affected and benefited. The activities, however, were none the less lobbying activities and the language of the regulation is sufficiently broad to cover the expenditures of both principal and agent. We are, therefore, unable to find the distinction claimed by the petitioner between the instant case and that of the Sunset Scavenger Co. *630 Accordingly, if we conclude, as did the court in Sunset Scavenger Co. v. Commissioner, that the regulation is to be applied in all cases where the activities in respect of which the expenditures are made may reasonably be said to fall within the terms of the regulation, we need go no further, even though the expenses are in fact ordinary and necessary to the conduct of the taxpayer's business. In applying the statute and the regulation, however, the Board has consistently*857 considered the facts in each particular case and has reached its conclusion as to whether or not the expenditures were in fact ordinary and necessary. See particularly , and With all due respect to the honorable court, we feel that the facts herein are such that obligatory application of the regulation would result in misapplication of the statute in the instant case. Compare , wherein it appears that there was some question as to the legality of the business in which petitioner was engaged, and , wherein it does not appear that the activities of the Southern Tariff Association, to which the petitioner made contributions, had a direct bearing on petitioner's business. In section 12 of the Trading with the Enemy Act, under which the property sought to be recovered was seized, it is stated that "after the end of the war any claim of any enemy or of an ally of enemy to any money or other property received and held by the Alien Property Custodian or deposited in the United States*858 Treasury, shall be settled as Congress shall direct." (40 Stat. 424.) Obviously the only recourse for the restitution of the property so seized was with Congress, and in our opinion the language of the statute was in effect an invitation to the parties whose whose preperty had been seized to present their claims to Congress at the end of the war. . They were aliens and consequently were at some disadvantage in preparing and presenting their claims, and it was logical that they should seek aid and assistance in this country. The petitioner was engaged generally in the representation of foreign interests in connection with their property and business affairs in the United States and it was in keeping with the circumstances of both parties and the relationship between them that the petitioner should be employed by the particular group of aliens referred to herein in their efforts to recover the preperty which had been siezed. The respondent has made no claim, as we have pointed out, that such employment was outside the scope of petitioner's powers or business and we have concluded from the record that the services*859 rendered were necessary for the accomplishment of the desired result. There has been no showing that the petitioner indulged in any questionable practices in carrying *631 out the purposes of its employment and no showing or claim that the activities in respect of which the expenses were incurred were against public policy. Cf. . Accordingly we are unable to reach any conclusion except that the expenses here in question were in fact "ordinary and necessary" in the conduct of petitioner's business and, having reached that conclusion, it is our opinion that the statute directs their allowance as deductions in determining petitioner's net income. Cf. , affirming . Reviewed by the Board. Decision will be entered under Rule 50. BLACK BLACK, dissenting: Article 262 of Treasury Regulations 74, quoted in the majority opinion, provides, among other things, as follows: "Sums of money expended for lobbying purposes, the promotion or defeat of legislation, the exploitation of propaganda, including*860 advertising other than trade advertising, and contributions for campaign expenses, are not deductible from gross income." I think this is a wholesome regulation and correctly interpretative of the law. There seems to be little, if any, doubt that the expenditures which the petitioner sought to deduct as ordinary and necessary business expenses and which the Commissioner has disallowed as deductions from gross income fall within the foregoing regulation. The majority opinion, as I read it, concedes that fact, but holds that the regulation, when applied to expenditures such as were made in the instant case and disallowed by the Commissioner, is too broad and reads something into the law which is not there. I am unable to agree with that interpretation. The Ninth Circuit, in the Sunset Scavenger Co. case, cited in the majority opinion, gave unqualified approval to the quoted Treasury regulation as being a reasonable and correct interpretation of the law. In , and , we cited and followed the court's opinion in the Sunset Scavenger Co. case. I am not convinced that we should depart*861 from that position in the instant case. It is perfectly true, as the majority opinion points out, that there are some differences in the facts in the Kyne and Kirby cases from the facts of the instant case, but I do not think these differences are sufficient to justify a distinction and a different fuling in the instant case from that which we made in the Kyne and Kirby cases. I, therefore, record my dissent from the majority opinion and think the decision on this point should be for the Commissioner. MELLOTT and DISNEY agree with this dissent. Footnotes

2020-01-17 22:03:05.355803+00

Murdock

*1098OPINION. Murdock: The petitioner has apparently abandoned its second assignment of error, at least no reference to it is made in the brief. However, if any doubt exists as to whether the contention has or has not been abandoned, it is sufficient to say that the books were kept upon the basis of a fiscal year ending April 30 and the applicable provisions of the taxing statutes require that “ net income shall be computed upon the basis of the taxpayer’s annual accounting period (fiscal year or calendar year, as the case may be),” and therefore the respondent’s action in computing income upon the basis of a fiscal year ending April 30 was proper. Sections 212 (b) and 232, Eevenue Acts of 1918, 1921, 1924 and 1926. The petitioner’s first contention is that, instead of accruing the total amount of its subscriptions when they are due and payable, the Connecticut Company should accrue only one-twelfth of a yearly subscription in each month of the period covered by the subscription. Section 212 (b) of the Eevenue Act of 1918 provides that “the net income shall be computed upon the basis of the taxpayer’s annual accounting period * * * in accordance with the method of accounting regularly employed in keeping the books of such taxpayer ; but * * * if the method employed does not clearly reflect the income, the computation shall be made upon such basis and in such manner as in the opinion of the Commissioner does clearly reflect the income.” Under section 213 (a), all items of income are to be included “ in the gross income for the taxable year in which *1099received by tbe taxpayer, unless, Under other methods of accounting permitted under subdivision (b) of section 212, any such amounts are to be properly accounted for as of a different period ⅜ * This provision of section 213 (a) has been interpreted by the Supreme Court as meaning that all items of income are to be included in the gross income for the taxable year in which received by the taxpayer, “ unless they may be properly accounted for on the accrual basis under section 212 (b).” See United States v. Anderson, 269 U. S. 422; Aluminum Castings Co. v. Routzahn, 282 TJ. S. 92; and Burnet v. Sanford & Brooks Co., 282 U. S. 359. All of the foregoing provisions of the 1918 Act were reenacted without substantial change in the Bevenue Acts of 1921,1924 and 1926. Under the provisions of the statutes, the taxable net income of the Connecticut Company was required to be computed in accordance with the method of accounting consistently employed for over fifty years in keeping its books, and any departure therefrom could only be justified on the ground that the method does not clearly reflect net income. Ribbon Cliff Fruit Co., 12 B. T. A. 13; Louis Kamper, 14 B. T. A. 767; M. Stanley Bent, 19 B. T. A. 181; Alfred E. Badgley, 21 B. T. A. 1055; and Russell G. Finn et al., 22 B. T. A. 799. This is not a case where the Commissioner has rejected the taxpayer’s method of accounting. He has adopted it and insists upon its use. He computed the tax liability of these companies for the years in controversy in accordance with the method of accounting regularly employed in keeping their books. The petitioner contends that the method it employed does not clearly reflect the income, and that the computation should be made upon such basis and in such manner as does clearly reflect the income. But it argues that, in order to change the method regularly employed in keeping its books to a proper method of reflecting income, it is only necessary to defer a portion of the total amount of the subscriptions. We agree that if a proper portion of the total subscriptions could be deferred, income would be more clearly reflected, but we can not agree that it would be proper, in reporting its income for the years in controversy, to defer the accrual by accruing one-twelfth of the amount of each subscription in each of the twelve months covered by the subscription. This is the only method urged by the petitioner and is the only one for which figures have been put in evidence for recomputation of the tax liability. We are, therefore, limited in the decision of this case. If we do not accept the method and the figures contended for by the petitioner, we must approve the Commissioner’s determination. No middle ground is available to us, and, indeed, it may be that it is impossible or at least impracticable to determine any figures for use in any modification of the method urged by the petitioner. *1100The petitioner’s method would result in a substantial reduction of net income and tax for the period in controversy. The reason for this is apparent; during a period of increasing expenses, the petitioner proposes to defer reporting some of the subscription income accrued in each year, until the following year when it will be offset to a greater extent by increased deductions for expenses. The Commissioner points out that he has computed the tax liability for the various years strictly in accordance with the method of accounting regularly employed in keeping the books of this company, a fact not denied by the petitioner. He admits that the Bradstreet Company is under an obligation to render some future service at some additional expense to it, which expense may be incurred in the year subsequent to the year in which the amount of the subscription was accrued on its books. But he argues that prior to the end of the taxable year in which a subscription is accrued, the petitioner has already incurred certain expenses which are related to the unexpired portion of the subscription period. He refers to such expenditures as the cost of securing the subscriptions and some part, perhaps a large part, of the cost of securing the data in the files at the end of a fiscal period, which data will be used during the remaining life of the subscription to furnish the service which the subscription calls for and to furnish service on new subscriptions received in the following year. The testimony is that the data in the files is kept up to date by constant revision, but it nowhere appears that all information is rechecked as often as every quarter. On the contrary, the changes made from one quarter to another in the published volumes are few in comparison with the mass of information given. The old information in the files is of substantial value to the company for a considerable time. The business of publishing monthly magazines differs from this case in a number of ways. One is that here the publications were quarterly. Therefore, says the respondent, it is improper, for example, to report in the following fiscal year two-thirds of the income from a subscription received in any January, since such a division of the subscription is inconsistent with the method of taking deductions for the expenses incident to the earning of the income from that subscription. In other words, if there is to be any allocation of the subscription between the two years, the part to be deferred to the latter period is not two-thirds, but is substantially less than two-thirds. Further, he argues that the petitioner has treated the subscriptions as income when accrued; they are usually paid in advance; and the money has been used to run the petitioner’s business, to pay substantial dividends to the stockholders, and to show a large surplus, whereas, if the books were now changed to reflect the method *1101of accruing subscriptions contended for by the petitioner, the assets would be so materially decreased that the affiliated group would have a deficit beginning with the year 1922, which deficit would grow from about $50,000 in that year to about $207,000 in the year 1926, Finally, he calls attention to the fact that' if the change contended for by the petitioner were allowed, it would require a change in invested capital for the years 1920 and 1921 for which there are no figures in the record. There are some additional objections to the method of accruing one-twelfth of the amount of a subscription in each month. The most important service to be rendered to a subscriber seems to be the lending of the rating books. The record does not show what edition of the rating books is loaned to one who subscribes in any given quarter, i. e., whether the edition before or the one after the subscription is received. We would suppose that this would depend upon the date of the subscription and the wishes of the subscriber. The taxable year begins on May 1. Suppose a standard subscription is received on June 1. If the subscriber receives first the July edition, there is no occasion to defer accruing any of the income until the following taxable year, since all four editions will be furnished him in the taxable year of his subscription. If he receives first the April edition, the petitioner’s position is even less tenable. Next, suppose a standard subscription is received on August 1. If the subscriber receives first the July edition, there is no occasion for deferring the accrual of one-fourth of the subscription until the next taxable year, for he will receive all four editions in the taxable year of his subscription. Next, suppose a subscription is received on December 1. If that subscriber receives the fall edition first, only one edition will be furnished him in the following taxable year. Why in such case should seven-twelfths of that subscription be reported in the following taxable year? Even if he receives six-twelfths of his service in the following taxable year, why should seven-twelfths of the subscription be reported in that year? Finally, suppose a subscription is received on April 1. If the subscriber receives the January and April editions, there would seem to be no good reason to report eleven-twelfths of the subscription in the following taxable year. Furthermore, if his subscription begins with the April edition so that three-fourths of the editions would be received in the next taxable year, still this fact would not justify reporting eleven-twelfths of the subscription in the next taxable year. In connection with all of these examples we must bear in mind the fact that the final spring edition goes to press some considerable time prior to the end of the fiscal year and the investigation made thereafter can only be reflected in the editions *1102of the next fiscal year. A similar example could be given for each month. The point is that the method contended for by the petitioner is not only not perfect, but it does not more clearly reflect income than the one now used. We have no way of properly modifying either method. Conservative accounting might justify the method urged, but sometimes, as perhaps here, good accounting dictates more conservatism than the necessities of income-tax reporting permit. The expense of gathering new data used in the rating books published and the reports made after the close of a fiscal year on prior subscriptions and the expense of publishing those books and reports has not been shown, so even if any relief in this connection were proper, we can not give it. Cf. Lucas v. American Code Co., 280 U. S. 445, and cases mentioned in footnote relating to reserves for contingent liabilities. The situation here is a complicated one. If the amount of income from any particular subscription which is earned in each of the two years involved could be determined, it would no doubt be proper to make an allocation on that basis. Obviously, some part of the income is earned in each year, but a larger portion is earned in the first year than the petitioner is willing to concede. In order to give the petitioner any relief, some method of accounting which would enable a proper allocation to be made or would at least be an improvement upon the method used in keeping its books and adopted by the Commissioner would have to be devised. No such method has been suggested. Perhaps there is no such method. So far as we know the petitioner has never adopted the method it now contends is proper. It seems strange that a company engaged in a business requiring a constant consideration of good accounting practices, in order to furnish reliable financial ratings of others, would itself use for half a century a method of accounting for its own earnings which would give an unwarrantedly favorable picture of its own financial condition, if a better practicable method could be devised. It is important to report income in such a way that it will be offset so far as possible by the- expenditures incident to earning it rather than by other expenditures related to the earning of other income. United States v. Anderson, supra; American National Co. v. United States, 274 U. S. 99; Ernest M. Bull, Executor, 7 B. T. A. 993; Moms-Poston Coal Co., 18 B. T. A. 344 (rev. 42 Fed. (2d) 620); art. 23, Reg. 69. In an ideal system of accounting, net income would be determined by deducting from gross income the expenses actually incurred in earning the gross. It is frequently impossible or impracticable to do this precisely in practice. Nevertheless, the *1103Government must have its revenues even at the expense of some niceties of accounting. The present case is one where the Commissioner has done the best he could with a difficult situation by adopting the taxpayer’s method, which on the whole clearly and satisfactorily reflects income, and where the taxpayer has not used or even devised a better practicable method of reporting its income. Cf. Murtha & Schmohl Go., 17 B. T. A. 442. The petitioner claims that the propriety of its contention is confirmed by the answers of four expert accountants to a hypothetical question. It is our opinion, however, that the question did not give a complete statement of the facts and that when all of the facts are considered our conclusion is the correct one for income-tax purposes. While some of the objections to the method contended for by the petitioner may seem rather unimportant, collectively they are of sufficient weight to entitle the respondent to judgment on this point. Automobile Underwriters, Inc., 19 B. T. A. 1160; O'Day Investment Co., 13 B. T. A. 1230; A. P. Schiro, Inc., 20 B. T. A. 1026; H. V. Greene Co., 5 B. T. A. 442; United States v. Boston Providence Railroad Corporation, 37 Fed. (2d) 670; Thomas Cronin Co. v. Lewellyn, 9 Fed. (2d) 974. Cf. Uvalde Co., 1 B. T. A. 932; Douglas Properties, Inc., 21 B. T. A. 347. The parties now agree that the case of American Hide & Leather Company v. United States, 284 U. S. 343, affects the decision of the third issue, but they disagree as to just what this effect is. Their differences arise over the question of what is the earliest period before the Board for which the tax liability is to be determined in this proceeding. The petitioner contends that it filed calendar year returns for the years 1918 and 1919; the Commissioner accepted the tax paid thereon in full settlement of its tax liability for those years; and, therefore, the first period before the Board should be a short period beginning January 1, 1920, and ending April 30, 1920. The Commissioner, however, has determined a deficiency for a fiscal year beginning May 1, 1919, and ending April 30, 1920, and he contends that the tax shown on the return filed for the calendar year 1920 must be applied against the tax liability determined for this fiscal period of twelve months. The petitioner’s accounting methods based on a fiscal year period remained unchanged throughout the entire period under discussion. Its tax liability should have been readjusted on the basis of fiscal year returns from January 1, 1918, forward. American Hide & Leather Company v. United States, supra. If the petitioner had proven its tax liability on a fiscal year basis for the period January 1, 1918, to April 30, 1918, and for the fiscal year ending April 30, 1919, and if in addition it *1104bad shown the amount of tax paid for the calendar years 1918 and 1919, we could have determined the effect of such proof upon the petitioner’s tax liability for the years before us in accordance with the American Hide & Leather Company decision. But the petitioner not only did not offer such evidence, does not claim it would be benefited thereby, but does 'not even seek the benefit, if any, which might thus result. In both cases the statute required a change in the method of reporting income from January 1, 1918, forward and thus required the use of a short period beginning on that date. But there is no similar reason nor any justification for the use here of a short period beginning January 1, 1920. Its use would eliminate the income of this taxpayer for the period May 1, 1919, to December 31, 1919, and require the Commissioner to limit his determination for the purpose of this case to the liability on the income from the short period only. He committed no error in using the period May 1, 1919, to April 30, 1920, as the basis for his determination of a deficiency, and there is nothing in the law to require him to shorten this period. If double taxation results, it results from an incorrect computation of prior tax liability and furnishes no excuse for an incorrect division of the periods before us. The Commissioner has correctly applied the taxes shown to be due on the erroneous calendar year returns except that he should have applied the excess (“ over-assessment ”) of the tax shown to be due on the 1922 return over the tax determined to be due for the fiscal year ending April 30, 1922, against the tax determined to be due for the fiscal year ending April 30, 1923, and a similar adjustment is necessary in regard to an excess for the fiscal year ending April 30, 1924. Judgment vntl he entered under Bule 50.

2020-12-01 16:23:00.217733+00

http://www.courts.wa.gov/opinions/pdf/371662_pub.pdf

FILED DECEMBER 1, 2020 In the Office of the Clerk of Court WA State Court of Appeals, Division III IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, ) ) No. 37166-2-III Respondent, ) ) v. ) PUBLISHED OPINION ) I.A.S.,[†] ) ) Appellant. ) SIDDOWAY, J. — I.A.S. and the State ask us to review the recurring issue of whether a juvenile who is granted a deferred disposition is required to submit to DNA1 collection upon conviction, or only if and when the deferred disposition is revoked and an order of disposition is entered. I.A.S. argues that DNA collection should be deferred and should not occur if the conviction is vacated. The State argues DNA collection is required upon conviction. [†] To protect the privacy interests of the minor, we use his initials throughout this opinion. General Order for the Court of Appeals, In re Changes to Case Title, (Aug. 22, 2018), effective Sept. 1, 2018. 1 Deoxyribonucleic acid. No. 37166-2-III State v. I.A.S. Plain language in former RCW 43.43.754 (2019) required that the juvenile submit to DNA collection upon conviction. We affirm the trial court’s order that a biological sample be collected from I.A.S. and that he fully cooperate in the testing.2 PROCEDURAL BACKGROUND The facts underlying the five criminal charges against I.A.S. for offenses committed when he was 17 are not important. I.A.S. moved for a deferred disposition of his charges. The trial court ordered a deferred disposition. Over a defense objection, it ordered DNA to be collected from I.A.S. as provided by RCW 43.43.754, but agreed not to impose the DNA fee provided by RCW 43.43.7541 until and unless the deferral was revoked and an order of disposition was entered on the findings that I.A.S. was guilty. A defense motion for reconsideration, renewing I.A.S.’s objection to collection of his DNA, was denied. The trial court granted I.A.S.’s request to stay collection of his DNA subject to a timely appeal. I.A.S. appeals. ANALYSIS I.A.S. argues the court did not have authority to order DNA collection before a final disposition. 2 A similar result is reached in State v. M.Y.G., case no. 37240-5-III, filed today, in which DNA collection upon conviction was challenged on somewhat different grounds. 2 No. 37166-2-III State v. I.A.S. Under RCW 13.40.127, juvenile courts have the authority to defer imposing a sentence for eligible juveniles through a deferred disposition. A juvenile offender granted a deferred disposition must plead guilty or otherwise submit to a finding of guilt and is placed on community supervision for a period not to exceed one year. RCW 13.40.127(2), (5). “The court may impose any conditions of supervision that it deems appropriate.” RCW 13.40.127(5). The court’s finding of guilt is consistently characterized by the deferred disposition statute as a “conviction.” At the conclusion of the period of supervision, if the court finds that the juvenile has completed the terms of supervision, “the juvenile’s conviction shall be vacated” and the court dismisses the case with prejudice. RCW 13.40.127(9)(b) (emphasis added) (“[A] conviction under RCW 16.52.205” is an exception.). “A deferred disposition shall remain a conviction unless the case is dismissed and the conviction is vacated pursuant to (b) of this subsection or sealed pursuant to RCW 13.50.260.” RCW 13.40.127(9)(c) (emphasis added). And see RCW 13.40.127(5) (evaluation authorized for juveniles “convicted of animal cruelty” whose disposition is being deferred). Under RCW 43.43.754(1), “[a] biological sample must be collected for purposes of DNA identification analysis from . . . [e]very adult or juvenile individual convicted of a felony” or certain other enumerated offenses, as well as anyone required to register as a sex offender. (Emphasis added.) At the time the trial court entered the order deferring I.A.S.’s disposition, the statute provided that for persons subject to the DNA collection 3 No. 37166-2-III State v. I.A.S. requirement who were serving a term of confinement in a city or county jail facility, the city or county jail facility was responsible for obtaining the biological samples. RCW 43.43.754(5)(a). For those who were serving or “are to serve” a term of confinement in a Department of Corrections (DOC) facility or a Department of Children, Youth and Families (DCYF) facility, the facility holding the person was responsible for collecting the biological sample. RCW 43.43.754(5)(c). For those like I.A.S. who would not be confined during the period of community supervision, the law provided: (5) Biological samples shall be collected in the following manner: .... (b) The local police department or sheriff's office shall be responsible for obtaining the biological samples for: (i) Persons convicted of any offense listed in subsection (1)(a) of this section or adjudicated guilty of an equivalent juvenile offense, who do not serve a term of confinement in a department of corrections facility, department of children, youth, and families facility, or a city or county jail facility; . . . .... (6) For persons convicted of any offense listed in subsection (1)(a) of this section or adjudicated guilty of an equivalent juvenile offense, who will not serve a term of confinement, the court shall order the person to report to the local police department or sheriff’s office as provided under subsection (5)(b)(i) of this section within a reasonable period of time established by the court in order to provide a biological sample. The court must further inform the person that refusal to provide a biological sample is a gross misdemeanor under this section. 4 No. 37166-2-III State v. I.A.S. Former RCW 43.43.754(5)(b)(i), (6) (2019) (emphasis added). Following amendment earlier this year, RCW 43.43.754(d) now provides that for persons who will not serve a term of confinement, “the court shall . . . if the local police department or sheriff’s office has a protocol for collecting the biological sample in the courtroom, order the person to immediately provide the biological sample to the local police department or sheriff’s office before leaving the presence of the court.” LAWS OF 2020, ch. 26, § 7. I.A.S. argues that he is entitled to avoid the DNA collection consequence of a conviction because of his deferred disposition. He points out that children receive many protections that are not available to adult defendants because of the rehabilitative focus of juvenile proceedings, and deferred dispositions are an example: the purpose of a deferred disposition is for the child to avoid the lasting consequences of a criminal conviction. He points to State v. M.C., 148 Wn. App. 968 , 972, 201 P.3d 413 (2009), in which the court held a victim penalty assessment may not be imposed when an order deferring disposition is entered under RCW 13.40.127 because an order deferring disposition is not a disposition. He points to the fact that a separate statute, RCW 43.43.7541, imposes a DNA fee on offenders at the time of sentencing, not at the time of conviction. He argues that the statutory provision that the court order a juvenile in I.A.S.’s circumstances to report to a local police department or sheriff’s department for collection “within a reasonable period of time established by the court” is ambiguous and, applying the rule of lenity, the ambiguity must be resolved in his favor. He contends the language can 5 No. 37166-2-III State v. I.A.S. reasonably be construed to mean the conclusion of the period of supervision, when (and if) the court enters an order of disposition. Statutory interpretation is a question of law reviewed de novo. State v. Armendariz, 160 Wn.2d 106 , 110, 156 P.3d 201 (2007). Our fundamental purpose in construing statutes is to ascertain and carry out the intent of the legislature. In re Marriage of Schneider, 173 Wn.2d 353 , 363, 268 P.3d 215 (2011). “If the statute’s meaning is plain on its face” we will “give effect to that plain meaning as the expression of what was intended.” Tracfone Wireless, Inc. v. Dep’t of Revenue, 170 Wn.2d 273 , 281, 242 P.3d 810 (2010). “For a statute to be ambiguous, two reasonable interpretations must arise from the language of the statute itself, not from considerations outside the statute.” Cerrillo v. Esparza, 158 Wn.2d 194 , 203-04, 142 P.3d 155 (2006). An amendment to a statute “may be strong evidence of what the Legislature intended in the original statute.” Moen v. Spokane City Police Dep’t, 110 Wn. App. 714 , 719, 42 P.3d 456 (2002). RCW 43.43.754(1)(a) unambiguously provides that a biological sample must be collected for purposes of DNA identification analysis from every juvenile convicted of a felony. I.A.S. does not dispute that he has been adjudicated, albeit on a provisional basis, of a qualifying crime. I.A.S. even acknowledges he falls in the category described in RCW 43.43.754(6). Br. of Appellant at 13. He merely argues that the “reasonable period of time” for the sample to be provided could mean waiting out the 6 No. 37166-2-III State v. I.A.S. period of supervision and deeming the collection requirement inapplicable if the case is dismissed and the conviction vacated. We are unpersuaded. Nothing in RCW 43.43.754 suggests that “reasonable time” is contingent on the conclusion of further proceedings. The presumptive time to collect the DNA of persons who are serving or are to serve a term of confinement in a DOC or DCYF facility is the earliest time it can be collected by the facility: as part of the intake process. RCW 43.43.754(5)(c). The statute now requires that a juvenile’s DNA be collected immediately, in the courtroom, if a law enforcement protocol for courtroom collection exists. Considering all that the legislature has said in the statute, it is absurd to construe “reasonable time” as meaning a period of time as long as nine months or a year. See Dep’t of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1 , 11, 43 P.3d 4 (2002) (Plain meaning is discerned from all that the legislature has said in the statute and related statutes that disclose legislative intent about the provision in question.). The fact that the DNA collection fee is imposed at the time of sentencing does not create ambiguity. Imposing the fee at that time is merely consistent with imposing other costs, fines, and restitution as part of the sentencing process. It is not a reason for construing RCW 43.43.754 as meaning something other than what it says. Finally, M.C. is not helpful to I.A.S.’s argument. It turned on plainly different statutory language. Division One of this court held that a victim penalty assessment could not be imposed at the time of an order deferring a disposition because the relevant 7 No. 37166-2-III State v. I.A.S. statute, former RCW 7.68.035(1)(b) (2000), provided that the fee was imposed when the juvenile was adjudicated of an offense “in any juvenile offense disposition.” (Emphasis added.) Relying on an earlier case in which it had considered the meaning of the key word “disposition,” the court held the statute “unambiguously provides that an order deferring disposition is not itself a disposition.” M.C., 148 Wn. App. at 972. RCW 43.43.754 does not provide that DNA collection takes place at the time of a “juvenile offense disposition.” Notably, RCW 7.68.035(1)(b) was amended following M.C. to drop the reference to a “juvenile offense disposition.” The statute now imposes the victim penalty assessment upon adjudication. Id., see LAWS OF 2015, ch. 265, § 8. The trial court’s order that a biological sample be collected from I.A.S. and that I.A.S. fully cooperate in the testing is affirmed. _____________________________ Siddoway, J. WE CONCUR: _____________________________ Pennell, C.J. _____________________________ Fearing, J. 8

2020-12-01 16:23:02.868948+00

http://www.courts.wa.gov/opinions/pdf/370640_unp.pdf

FILED DECEMBER 1, 2020 In the Office of the Clerk of Court WA State Court of Appeals Division III IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, ) ) No. 37064-0-III Respondent, ) ) v. ) UNPUBLISHED OPINION ) WAYNE BERT SYMMONDS, ) ) Appellant. ) FEARING, J. — A jury found Wayne Symmonds guilty of assaults against law enforcement officers, criminal trespass, and resisting arrest. On appeal, Symmonds argues the State breached CrR 3.5 by failing to schedule a pretrial hearing when it later presented testimony from law enforcement officers as to statements made by Symmonds. Symmonds also contends that the State violated orders in limine when officers used the words “assault” and “trespass” during testimony and when the State’s attorney showed a diagram to a witness before the witness’ testimony. We agree that the State should have scheduled a CrR 3.5 hearing, but find no prejudice. We disagree that the State violated the orders in limine. We affirm Symmonds’ convictions. No. 37064-0-III State v. Symmonds FACTS Procedural events hold more importance than the underlying facts in this appeal. We recap some of the facts, however. Wayne Symmonds annoyed customers outside a Conoco fuel station in Ephrata. Ida Cruz, the manager of the station, directed her employee, Thomas Longley, to ask Symmonds to leave. Symmonds refused. Longley called the police. Ephrata Police Department Sergeant Ryan Harvey and Officer Joseph Downey arrived at the Conoco fuel station. Sergeant Harvey requested that Wayne Symmonds leave. Symmonds responded, “Make me.” Report of Proceedings (RP) at 86. Twice more Harvey bade Symmonds to leave the fuel station. RP 87. Symmonds insisted that he could enter the store and purchase goods. After Sergeant Ryan Harvey’s third request, Wayne Symmonds attempted to pass the officer and enter the front door of the fuel station store. Sergeant Harvey grabbed Symmonds by his right arm and attempted to steer him from the entrance. Symmonds pushed Harvey. Officer Joseph Downey grabbed Wayne Symmonds’ left arm in an attempt to prevent Symmonds and Sergeant Ryan Harvey from crashing through a large window at the Conoco station. The officers ordered Symmonds to cease resisting and to place his hands behind his back. Symmonds freed his arm from Officer Downey’s grasp and 2 No. 37064-0-III State v. Symmonds cocked his fist. Downey reflexively raised his forearms to block Symmonds’ punch. Symmonds landed a punch on Officer Downey’s forearm and upper chest area. Sergeant Ryan Harvey shoved Wayne Symmonds, who fell off a curb and landed on his back. Sergeant Harvey grabbed Symmonds’ left arm, and he placed his right knee on Symmonds’ chest. Harvey requested that Symmonds roll onto his stomach and place his hands behind his back. Symmonds refused. Sergeant Harvey straddled Symmonds. Officer Joseph Downey joined Sergeant Harvey and Symmonds on the ground. Downey placed his right forearm against Symmonds’ cheek in order to hold Symmonds’ face away from him. Wayne Symmonds grabbed and squeezed Sergeant Ryan Harvey’s testicles. Wayne Symmonds asked: “‘How’s that feel?’” RP at 96. Symmonds remarked about police being terrorists. Sergeant Harvey broke from Symmonds’ grasp, stood, and warned Symmonds that he would be tased. When Symmonds continued to resist, Harvey deployed his taser at Symmonds’ thigh. The tasing did not end Wayne Symmonds’ defiance. Sergeant Ryan Harvey again deployed his taser, and the electroshock struck Wayne Symmonds’ shoulder. Symmonds grew compliant and laid on his stomach. The officers handcuffed Symmonds. PROCEDURE The State of Washington charged Wayne Symmonds with assault in the third degree for striking Sergeant Ryan Harvey, assault in the third degree for attacking Officer 3 No. 37064-0-III State v. Symmonds Joseph Downey, criminal trespass in the second degree, and resisting arrest. In the omnibus hearing order, the State advised the trial court that “no custodial statements [of Wayne Symmonds] will be offered in state’s case-in-chief or in rebuttal.” Clerk’s Papers (CP) at 18. The State scheduled no CrR 3.5 hearing before trial for purposes of court approval of introducing evidence of comments uttered by Symmonds. Before trial, Wayne Symmonds moved for three orders in limine. The written motion sought to: 1. Prohibit all witnesses from attending or viewing the trial until after their testimony is complete and they have been excused. ER 615. 2. Prohibit all witnesses from discussing the case or their completed testimony with other witnesses until all witnesses have completed their testimony and have been excused. ER 615. 3. Prohibit and exclude any evidence or testimony that a witness believed a crime had occurred or that the defendant committed a crime. State v. Dolan, 118 Wn. App. 323 , 73 P.3d 1011 (2003). (“[A] witness may not give, directly or by inference, an opinion of a defendant's guilt.”). CP at 50-51 (alterations in original). The State registered no objection to the first two motions in limine and the trial court granted the two motions. The following colloquy occurred when the trial court addressed Wayne Symmonds’ third motion in limine. MR. OWENS [the State’s attorney]: We do not believe we’re going to have anybody testify that a crime has been committed, but we are going to ask for testimony from witnesses, why they wanted the defendant trespassed from the property. THE COURT: Okay. Mr. Bierley? MR. BIERLEY [defense counsel]: I don’t object, your Honor, to them eliciting the testimony about why they wanted Mr. Symmonds to 4 No. 37064-0-III State v. Symmonds leave. But saying that he was trespassing or that he was trespassed or really that he was trespassing is a conclusion that the jury would have to make. That’s one of the counts here is trespassing in the second degree. The witnesses can’t simply state their opinion as to his guilt to that charge. They can say something like, we’d asked him to leave, he didn’t leave, so we called the cops, had them come over and advise him that he needed to leave. But if the witness is going to testify that he was trespassing, that’s making a conclusion that should be left to the jury, based upon the facts elicited, not their opinion. MR. OWENS: We’re not going to ask what crime they think the defendant was committing to have it—we’re going to ask, why did you want the defendant removed from the property? THE COURT: Okay. So there’s a nuance there, I see the nuance. I think that question and that type of testimony is fine. The actual, hey, he was trespassing, I think, is where Mr. Bierley is going at, with regard to prohibiting somebody from answering or giving testimony to the effect, he was trespassing, versus, we didn’t want him here on the property, we didn’t give him permission to be here anymore, something to that effect. MR. OWENS: Right. MR. BIERLEY: Correct. THE COURT: I see the distinction. It’s going to be granted. Obviously with that caveat that you’re going to be able to ask that question of why you wanted—or not you, but why the witness wanted Mr. Symmonds potentially removed from the premises. RP at 5-6 (emphasis added). During trial, the State asked witness Thomas Longley whether Wayne Symmonds said anything to him, to which question defense counsel objected. Counsel contended that CrR 3.5 required a pretrial hearing to admit any of Symmonds’ statements. Symmonds’ counsel asked that any statement to Longley be excluded because the State never gave notice of an intent to introduce the statement as evidence. The State responded that CrR 3.5 applied to statements uttered to law enforcement, not to lay 5 No. 37064-0-III State v. Symmonds witnesses. The trial court overruled the objection. Longley then declared that Symmonds made a vulgar statement about refusing to leave when asked to leave the station. During Officer Joseph Downey’s trial testimony, he said “trespassing” four times. Because of previous contacts, the name given to us by dispatch was somebody we believed we had contact with earlier that they had requested to be trespassed the day before. RP at 84 (emphasis added). Defense counsel objected on the ground that the State had not sought to admit separate incidents under ER 404(b) and 609. Counsel did not assert that Downey’s answer violated the third order in limine. The trial court sustained the objection. Later the prosecuting attorney and Officer Joseph Downey exchanged the following questions and answers: Q. And when you contacted him [Wayne Symmonds], did you inform him that he was not permitted to be at the gas station? A. Sergeant Harvey did something, yes. Q. And did he say anything to you? A. Yes. Q. What did he say? A. Sergeant Harvey said that he was trespassed from the gas station, he needed to leave, and Mr. Symmonds said, “Make me.” MR. BIERLEY: Your Honor, I still object to that sort of question under the reason we had a side bar about earlier. THE COURT: All right. Thank you. The objection is overruled. Noted. But go ahead, Mr. Nolta [prosecutor]. RP at 86 (emphasis added). The direct examination of Officer Joseph Downey 6 No. 37064-0-III State v. Symmonds continued: Q. Was he asked again to leave? A. He was. Sergeant Harvey again asked him, informed him he needed to leave, he was trespassing, and Mr. Symmonds informed us that he could go in there and buy his stuff— MR. BIERLEY: Objection, comment on guilt, move to strike the response. THE COURT: I’m going to have the jury disregard the last portion of the answer, but I’ll ask Mr. Nolta, can you ask the question more direct? BY MR. NOLTA: Q. Did the defendant leave? A. No. Q. Was he attempting to do something besides leave? A. At that time? After we told him the second time? Q. Yes. A. He still sat back down. No, he did nothing else. Q. Did you ask him a third time? A. He was asked a third time, he needed to leave, he was trespassing. MR. BIERLEY: Objection, again, comment on guilt, move to strike the response. THE COURT: I’m going to overrule that part of the objection. Go ahead. RP at 86-87 (emphasis added). During trial, Sergeant Ryan Harvey testified: Q. Okay. And then did he quit—how would you describe Mr. Symmonds’ actions when you were trying to put the—get him on his stomach to get the handcuffs on him? A. I would describe it as actively fighting. Q. All right. A. Not so much resisting as actually actively trying to assault. MR. BIERLEY: Objection, legal opinion. THE COURT: The jury is instructed to disregard that last statement or sentence from that answer. 7 No. 37064-0-III State v. Symmonds RP at 137 (emphasis added). During Officer Joseph Downey’s testimony, the State asked him to draw a diagram of the Conoco fuel station and the respective locations of Wayne Symmonds, Sergeant Ryan Harvey, and himself during the confrontation. Later, during a trial recess, the prosecuting attorney ushered Sergeant Harvey into the courtroom to familiarize Harvey with the diagram. After the recess, defense counsel moved for a mistrial based on the State’s violation of two of the orders in limine, the order excluding witnesses from attending the trial until after they testified and the order precluding witnesses from talking with other witnesses about testimony. The State responded that it showed Sergeant Harvey the diagram in order to save time since Harvey would be the next witness. The trial court denied the motion for mistrial. During trial, the State asked questions of Officer Joseph Downey about remarks uttered by Wayne Symmonds during Symmonds’ confrontation with the officers. Q. And did he say anything to you? A [Officer Joseph Downey]. Yes. Q. What did he say? A. Sergeant Harvey said that he was trespassed from the gas station, he needed to leave, and Mr. Symmonds said, “Make me.” MR. BIERLEY: Your Honor, I still object to that sort of question under the reason we had a side bar about earlier. THE COURT: All right. Thank you. The objection is overruled. Noted. But go ahead, Mr. Nolta. RP at 86. 8 No. 37064-0-III State v. Symmonds Q. What did he do? A [Officer Joseph Downey]. I was holding onto his left arm, attempting to roll him over for a handcuffing position. He was being given commands by Sergeant Harvey to stop resisting and to roll over, which he did not do. He brought his face back towards me and since he’s already punched at me, I put my right forearm against his cheek bone to hold his face away from me, so he wouldn't spit or try and bite. And I heard him say—Sergeant Harvey had his right arm, so I wasn’t totally seeing what’s going on there, when I heard him say, “How’s that feel?” And then Sergeant Harvey came up, and he had already—I’ll throw this in there, he already told him once, you’ve got to stop resisting, he might be tased. MR. BIERLEY: Objection, this is narrative again. THE COURT: All right. I’ll sustain on that last portion of the answer. The question wasn’t posed as to what the other person was doing. So the jury is to disregard that last portion of the answer. RP at 96-97. The State also asked questions of Sergeant Ryan Harvey about remarks uttered by Wayne Symmonds. Q. Okay. Did you give him a directive at that time? A. [Sergeant Ryan Harvey] Yes, I did. Q. And what directive is that? A. I told Mr. Symmonds that he needed to gather up his items and leave the property. Q. All right. And did Mr. Symmonds say anything back to you? A. Yes. He responded back by telling me that he could go inside if he wanted to. Q. All right. A. Or sorry. That was a response to another question. But his original response to me was, “Make me.” MR. BIERLEY: Your Honor, I still object to this line of questioning for the reason we discussed this morning. THE COURT: All right. Thank you. The objection is noted. RP at 117-18. 9 No. 37064-0-III State v. Symmonds Q. Okay. And then did you ask him a third time? A. [Sergeant Ryan Harvey] Yes, I did. Q. And what was the reply then? A. He replied at one point that he could go in the store if he wanted to. He also made a comment about police being terrorists. Q. Okay. MR. BIERLEY: Your Honor, I also object, as earlier. . . . The trial court then excused the jury for purposes of colloquy with counsel. THE COURT: . . . So when we talked about the statements before, I just heard you right now in my head, when the statements were being made directly to a witness, which was Mr.— MR. BIERLEY: Longley. THE COURT: Longley, the ruling was, hey, this is not a statement made to law enforcement, this is a witness, et cetera. And so that was the basis to say, yeah, I’m going to overrule the objection. Now, though, you’re asking actual statements that were made directly to law enforcement. And normally—correct me if I’m wrong, normally any statements made to law enforcement, the state files a document that says, hey, we’re going to use statements made by the defendant to law enforcement, and then we have a hearing, is it voluntary, was there a custodial detention at that point in time, et cetera. So now you’ve asked him questions that were made directly to law enforcement, but we didn’t have any type of 3.5 hearing on those issues. RP at 119-20. The State responded that the law enforcement officers had not yet placed Wayne Symmonds in custody when Symmonds spoke. The officers never interrogated Symmonds. Instead, Symmonds voluntary talked. Defense counsel responded that the State should have advanced its argument about lack of custody and a voluntary statement during the CrR 3.5 hearing, not in the middle of a witness’ testimony. Symmonds asked 10 No. 37064-0-III State v. Symmonds for a mistrial. The trial court denied the motion, but instructed the jury to disregard any statements made by Wayne Symmonds to law enforcement officers. The trial court reasoned that, although Symmonds was arguably not in custody, the court should have reviewed the question of custody in advance of trial. The jury found Wayne Symmonds guilty on all four counts. LAW AND ANALYSIS Wayne Symmonds repeats the cogent arguments he forwarded at trial. Symmonds contends the State violated an order in limine when witnesses voiced the words “trespass” and “assault.” Symmonds also maintains that the State violated an order in limine when one of its witnesses entered the courtroom, during a trial recess, and viewed a diagram drawn by another witness. Finally, Symmonds asserts that the State violated CrR 3.5 when it asked witnesses to repeat statements uttered by Symmonds without the State first gaining court approval to admit the statements. Symmonds argues that the trial court erred when refusing to grant him a mistrial either because of one of the State’s breaches of orders or rules or because of the cumulative effect of the violations. We agree the State should have scheduled a CrR 3.5 hearing, but we find no prejudice in this error. We hold that the State did not violate any order in limine. Because of only one nonprejudicial error, we do not address Wayne Symmonds’ argument of cumulative error. 11 No. 37064-0-III State v. Symmonds CrR 3.5 Hearing Wayne Symmonds asserts that the State committed prosecutorial misconduct by repeatedly eliciting statements made by him to law enforcement witnesses without first holding a CrR 3.5 hearing. Symmonds claims that the trial court should have granted his motion for a mistrial or dismissal as a result. The State responds that the elicited statements were not custodial, and thus a CrR 3.5 hearing was not required prior to introducing them. We disagree with the State’s reading of CrR 3.5. We agree with Symmonds that the State should have given him advance notice that it intended to introduce statements uttered by him as evidence. In turn, the State should have scheduled a pretrial CrR 3.5 hearing. Because the statements would have been admitted if the trial court had conducted a CrR 3.5 hearing, we find no prejudice. CrR 3.5(a) provides in relevant part: When a statement of the accused is to be offered in evidence, the judge at the time of the omnibus hearing shall hold or set the time for a hearing, if not previously held, for the purpose of determining whether the statement is admissible. (Emphasis added.) The rule does not place any qualifications on the type of statement or to whom the statement was made. The provisions of CrR 3.5 are mandatory. State v. Shelby, 69 Wn.2d 295 , 300, 418 P.2d 246 (1966); State v. Kidd, 36 Wn. App. 503 , 509, 674 P.2d 674 (1983). Before 12 No. 37064-0-III State v. Symmonds introducing evidence of a statement of the defendant, the court must hold a hearing to determine if the statement was freely given. State v. Kidd, 36 Wn. App. at 509. The purpose of a pretrial confession hearing under CrR 3.5 is to allow the court, prior to trial, to rule on the admissibility of sensitive evidence. State v. Fanger, 34 Wn. App. 635 , 636-37, 663 P.2d 120 (1983); State v. Taylor, 30 Wn. App. 89 , 92-93, 632 P.2d 892 (1981). The hearing serves the purpose of determining whether any incriminating statement constituted a custodial confession without advance Miranda warnings. The rule promotes judicial efficiency by insulating the jury from tainted evidence, thereby avoiding mistrials and continuances. State v. Rice, 24 Wn. App. 562 , 565, 603 P.2d 835 (1979). A confession hearing also enables the parties to determine the weaknesses in their cases and thus encourages settlement. State v. Fanger, 34 Wn. App. 635 , 637 (1983). To trigger the protections afforded by Miranda v. Arizona, 384 U.S. 436 , 86 S. Ct. 1602 , 16 L. Ed. 2d 694 , 10 A.L.R.3d 974 (1966), a suspect must be taken into custody or otherwise deprived of his freedom of action in a significant way. State v. McWatters, 63 Wn. App. 911 , 915, 822 P.2d 787 (1992). Custodial questioning must be preceded by Miranda warnings. Custodial interrogation engenders inherently compelling pressures that work to undermine the individual’s will to resist pressures applied by law enforcement and to compel one to speak when he would not otherwise speak freely. Miranda v. Arizona, 384 U.S. at 467 . 13 No. 37064-0-III State v. Symmonds The State contends that it need not have scheduled a CrR 3.5 hearing because such a hearing is required only to introduce custodial statements and Wayne Symmonds uttered no comments while in custody. We agree that language from some Washington decisions declare that CrR 3.5 applies only to custodial statements. State v. DeCuir, 19 Wn. App. 130 , 134, 574 P.2d 397 (1978); State v. Falk, 17 Wn. App. 905 , 909, 567 P.2d 235 (1977); State v. McFarland, 15 Wn. App. 220 , 222, 548 P.2d 569 (1976); State v. Harris, 14 Wn. App. 414 , 422, 542 P.2d 122 (1975). We fear that the State reads this principle too broadly, however, because the State uses the rule to authorize it to unilaterally determine whether an accused was in custody at the time of any statement. The trial court, not the prosecuting attorney, should determine whether the defendant spoke while in custody. Whether a police encounter constitutes a custodial interrogation is a legal conclusion for the court to make. Thompson v. Keohane, 516 U.S. 99 , 112-13, 116 S. Ct. 457 , 133 L. Ed. 2d 383 (1995). The principal cases, on which the State relies, bear some significant differences. In State v. Harris, 14 Wn. App. 414 (1975), the court applied the rule in the context of the accused making the statement to one other than a law enforcement officer. In State v. Falk, 17 Wn. App. 905 (1977), the accused voluntarily entered the police station to confess, and, when the State introduced the confession without a hearing, the trial court allowed a recess for the defendant to ponder how to respond to the evidence. 14 No. 37064-0-III State v. Symmonds Wayne Symmonds contends he was in custody when he uttered statements used at trial. Sergeant Ryan Harvey grabbed Symmonds as Symmonds attempted to enter the store. Officer Joseph Downey thereafter also clutched Symmonds. The State should have scheduled a CrR 3.5 hearing in order to defeat this contention. The State should have afforded Wayne Symmonds the opportunity to advance his contentions before trial, and the trial court should have been allowed to rule on the issue in advance of trial. We do not deem the failure to conduct a hearing reversible. The failure to hold a CrR 3.5 hearing does not render an otherwise admissible statement inadmissible. State v. Baker, 68 Wn.2d 517 , 521, 413 P.2d 965 (1966); State v. Kidd, 36 Wn. App. 503 , 509 (1983); State v. Falk, 17 Wn. App. 905 , 908 (1977). Also, the failure to conduct a CrR 3.5 hearing does not require reversal. State v. Falk, 17 Wn. App. 905 , 908. Wayne Symmonds complains about introduction of four statements he uttered to law enforcement officers. He told Sergeant Ryan Harvey to “make me,” when Harvey told him to leave the premises. Symmonds added that he could enter the Conoco station to buy goods. He asked Harvey “how does that feel,” when he grabbed Harvey’s testicles. He called police terrorists. We do not resolve whether Symmonds voiced the remarks while in custody. Symmonds suffered no prejudice from introduction of the comments because he did not make the comments in response to interrogation from officers. Officers asked him no questions that led to his offhand remarks. Symmonds voluntarily bespoke. 15 No. 37064-0-III State v. Symmonds To trigger the protections afforded by Miranda v. Arizona, a suspect must be subjected to interrogation. State v. Lewis, 32 Wn. App. 13 , 17, 645 P.2d 722 (1982). Interrogation involves express questioning likely to elicit an incriminating response. Rhode Island v. Innis, 446 U.S. 291 , 301, 100 S. Ct. 1682 , 64 L. Ed. 2d 297 (1980). Voluntary, unsolicited statements of an accused made before interrogation are not rendered inadmissible by the absence of a previous advisement of constitutional rights. State v. Eldred, 76 Wn.2d 443 , 448, 457 P.2d 540 (1969); State v. Kidd, 36 Wn. App. 503 , 509 (1983). A defendant’s incriminating statement that is not in response to an officer’s question is freely admissible. State v. Bradley, 105 Wn.2d 898 , 904, 719 P.2d 546 (1986). In State v. Kidd, 36 Wn. App. 503 (1983), this court affirmed a conviction despite the admission of an inculpatory statement uttered by Kidd to a law enforcement officer without the trial court having earlier conducting a CrR 3.5 hearing. Kidd’s statements were voluntary and unsolicited. Wayne Symmonds’ trial court told the jury to disregard the testimony of Symmonds’ comments to the law enforcement officers. The trial court need not have so instructed the jury. Therefore, Symmonds suffered no prejudice. Words of Guilt Wayne Symmonds asserts that the trial prosecuting attorney committed misconduct by repeatedly eliciting testimony that violated an order in limine. That order, 16 No. 37064-0-III State v. Symmonds according to Symmonds, barred conclusory and guilt opining language, including testimony that Symmonds was “trespassing” or engaged in an “assault.” We agree that the trial court barred expressions of guilt. We disagree that the trial court precluded the use of the words or a form of the words “trespass” or “assault.” We further disagree that any witness opined as to Symmonds’ guilt. Wayne Symmonds’ written motion in limine sought exclusion of any testimony that a witness believed the defendant committed a crime. The motion did not expressly ask that the trial court exclude the words “trespass” or “assault.” The trial court granted the motion, but entered no formal order. In its oral ruling, the trial court never expressly excluded the use of any words. Before the court ruled, the prosecutor and defense counsel jousted about use of specific words such as “trespass.” The State’s attorney commented that the State intended to elicit testimony as to Wayne Symmonds being “trespassed” from the Conoco station. Defense counsel objected. The prosecutor responded that the State did not intend to have any witness to testify that Symmonds was trespassing, only that the gasoline station wanted Symmonds “trespassed,” as in removed from the premises. The court recognized a “nuance.” The court commented: THE COURT: Okay. So there’s a nuance there, I see the nuance. I think that question and that type of testimony is fine. The actual, hey, he was trespassing, I think, is where Mr. Bierley is going at, with regard to prohibiting somebody from answering or giving testimony to the effect, he was trespassing, versus, we didn’t want him here on the property, we didn’t 17 No. 37064-0-III State v. Symmonds give him permission to be here anymore, something to that effect. MR. OWENS: Right. MR. BIERLEY: Correct. THE COURT: I see the distinction. It’s going to be granted. Obviously with that caveat that you’re going to be able to ask that question of why you wanted—or not you, but why the witness wanted Mr. Symmonds potentially removed from the premises. RP at 6. We read the ruling as allowing the word “trespass” to be used in the context of the reason for the officers traveling to the Conoco station and for the request for removal of Symmonds from the premises. We read the ruling as also permitting the use of the word “trespass” in a context in which a lay person would employ the word. The ruling prohibited use of the word “trespass” in the context of Symmonds being guilty of a crime and in the context of the legal meaning of the term. Symmonds could have, but did not, press the court for a specific ruling precluding the use of any particular word. Officer Joseph Downey used the word “trespass” or a form of the word four times. On the first occasion, Officer Downey mentioned that the gas station had asked that Wayne Symmonds be “trespassed” the day before. Defense counsel objected, but on the basis that the testimony mentioned earlier bad act of Symmonds and was precluded under ER 404(b). Counsel did not assert that Downey’s answer violated the third order in limine. So Symmonds did not believe the evidence violated the order. On the second occasion, Officer Downey mentioned that the gas station had “trespassed” Symmonds from the station in the sense that Symmonds “needed to leave.” RP at 86. The trial court, consistent with its earlier ruling, overruled an objection to the 18 No. 37064-0-III State v. Symmonds testimony. On the third occasion, Officer Joseph Downey answered the question of whether the officers asked Wayne Symmonds to leave the premises. Downey responded that Sergeant Ryan Harvey told Symmonds “he needed to leave” because “he was trespassing.” RP at 86-87. The trial court did not expressly sustain an objection on the basis of a comment on guilt, but the court directed the jury to disregard the testimony. The trial court also asked the prosecuting attorney to ask the question more direct. We are uncertain if the trial court deemed the testimony to violate the order in limine. The testimony could relate more to the point that the Conoco station did not wish Symmonds to be present, not to the point that Symmonds committed a crime. On the fourth occasion, the prosecutor asked Officer Joseph Downey if he asked Wayne Symmonds a third time to leave. Downey responded that he asked Symmonds a third time that “he needed to leave, he was trespassing.” RP at 87. The use of the term “trespass” was in the same context as Downey’s use of the term the third time. The trial court then overruled an objection to the evidence as commenting on guilt. This fourth ruling suggests that the trial court did not consider the third reference to “trespassing” as a comment on guilt. Wayne Symmonds in essence characterizes Officer Joseph Downey’s use of the word “trespass” as impermissible opinion testimony as to his guilt. Numerous factors determine whether witness statements are impermissible opinion testimony, including the 19 No. 37064-0-III State v. Symmonds type of witness involved, the specific nature of the testimony, the nature of the charges, the type of defense, and the other evidence before the trier of fact. City of Seattle v. Heatley, 70 Wn. App. 573 , 579, 854 P.2d 658 (1993). Testimony that is not a direct comment on the defendant’s guilt or on the veracity of a witness, that helps the jury, and that is based on inferences from the evidence is not improper opinion testimony. City of Seattle v. Heatley, 70 Wn. App. at 578 . In State v. Pearce, 296 N.C. 281 , 250 S.E.2d 640 (1979), Jerry Pearce complained that a physician and officer, both who testified on behalf of the State, used the word “rape” during testimony. Pearce argued that use of the word, in a rape prosecution, constituted an expression of opinion that was the ultimate fact for the jury to determine. The appellate court disagreed that use of the term used to name the crime constituted an opinion on a question of law. Instead, sometimes the word functions as a shorthand method of describing conduct. In United States v. Two Eagle, 318 F.3d 785 (8th Cir. 2003), the government convicted Duane Two Eagle of the federal crime of assault resulting in serious injury. On appeal, Two Eagle argued that the trial court abused its discretion by denying his motion in limine to prohibit the victims’ doctors from testifying that the victim sustained “serious bodily injury,” an element of the crime. Two Eagle maintained that the testimony invaded the province of the jury and that the testimony sought was a legal opinion. The court disagreed. The appeals court observed that testimony is not defective merely 20 No. 37064-0-III State v. Symmonds because it utilizes the words of the legal standard. Commonly used words and their plain meaning often match their legal meaning. We conclude that the trial court properly allowed testimony that included the word “trespassing” in its lay or common understanding. Officer Joseph Downey never rendered an inadmissible opinion of guilt. On appeal, Wayne Symmonds also complains that Sergeant Ryan Harvey used the word “assault” during his testimony. We resolve this assignment of error with the same reasoning employed in our ruling concerning the word “trespass.” The trial court never expressly barred use of the word “assault.” Harvey used the term as a shorthand method of describing conduct, not to opine about Symmonds’ guilt. Harvey’s Review of Diagram Wayne Symmonds next argues that the State breached the orders in limine, prohibiting witnesses from attending or viewing the trial until after being excused and from discussing testimony with another witness, when the prosecuting attorney brought Sergeant Ryan Harvey into the courtroom during a recess to review the diagram prepared by Officer Joseph Downey. Symmonds maintains that this violation warranted either a mistrial or the exclusion of Sergeant Harvey as a witness. We hold that the orders in limine did not preclude the prosecutor from discussing testimony with an upcoming witness or preclude a witness from entering the courtroom during a trial recess. The trial court entered the order excluding witnesses from the courtroom pursuant 21 No. 37064-0-III State v. Symmonds to ER 615. The first sentence of the rule declares: At the request of a party the court may order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. The rule does not preclude entry of a witness during a recess when no witness is on the stand. The rule does not preclude an attorney from preparing a witness in advance of the witness’ testimony by showing the witness an exhibit or discussing other witness’ testimony. In State v. Allison, 260 Iowa 176 , 147 N.W.2d 910 (1967), Edward Allison assigned error to State’s counsel’s reviewing an exhibit with a witness during a trial recess. The trial court had earlier ordered sequestration of all witnesses. The Supreme Court of Iowa ruled that the sequestration order did not preclude counsel from preparing a witness during a recess. The court concluded that the right of counsel on either side to consult with witnesses before examining them is a valuable right and should not be denied except by specific order of court for good reason. In Commonwealth v. Mathis, 317 Pa. Super. 362 , 464 A.2d 362 (1983), Joseph Mathis argued that the prosecuting attorney violated the trial court’s earlier order directing the witnesses be segregated when the attorney discussed testimony summaries with the witnesses during a recess and before they testified in rebuttal. The Pennsylvania court disagreed. Wayne Symmonds cites no legal authority to the contrary. 22 No. 37064-0-III State v. Symmonds A trial court may have authority to preclude counsel from discussing, during a trial recess, a previous witness’ testimony with an upcoming witness. But we do not reach this question because the court never entered such an order and because we do not know if the prosecuting attorney discussed another witness’ testimony with Sergeant Ryan Harvey. CONCLUSION We affirm the convictions of Wayne Symmonds. A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040. _________________________________ Fearing, J. WE CONCUR: ______________________________ Korsmo, A.C.J. ______________________________ Lawrence-Berrey, J. 23

2020-12-01 16:23:03.949303+00

http://www.courts.wa.gov/opinions/pdf/371590_unp.pdf

FILED December 1, 2020 In the Office of the Clerk of Court WA State Court of Appeals Division III IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, ) ) No. 37159-0-III Respondent, ) ) v. ) UNPUBLISHED OPINION ) T.P., ) ) Appellant. ) FEARING, J. — T.P. appeals his conviction, in juvenile court, for rape. He claims that the trial court admitted inadmissible and prejudicial testimony from the alleged victim’s parents as to her reputation for truthfulness. We agree and reverse his conviction. Because the juvenile court repeatedly admitted the inadmissible evidence, because of the critical nature of the victim’s credibility, and because the court considered all evidence when finding guilt, we decline to apply the presumption that the trial court, in a bench trial, never considered inadmissible evidence when rendering a verdict. FACTS We glean the facts from testimony during a juvenile court bench trial. T.P. and A.S., both 14 years old, attended the same junior high school. They never interacted, however, until T.P. posted a “story” on Snapchat, a multimedia messaging No. 37159-0-III State v. T.P. app. Report of Proceedings (RP) at 64. Snapchat permits the posting of messages, stories, and pictures, which expire from the application after twenty-four hours. T.P. inquired if anyone wanted to “kick it,” a chic term for relaxing with a friend. RP at 64. A.S. responded affirmatively, and she and T.P. spent time together at a park near the school later that day. During their first encounter, T.P. repeatedly told A.S. that he wanted to have sex and suggested that the two retire to the bushes. A.S. repetitively declined. Over the next weeks, T.P. and A.S. continued to socialize. Eventually T.P. visited A.S.’s home and became acquainted with A.S.’s parents. Neither T.P. nor A.S. know the number of times T.P. visited A.S.’s home. When at A.S.’s home, the two fourteen-year- olds played video games in A.S.’s bedroom. When apart, the two exchanged messages over Snapchat. Screenshots of some of the virtual messages show T.P.’s repeated requests to finger A.S.’s vagina. A.S. rejected the overtures. T.P. eventually announced his termination of the relationship due to A.S.’s lack of interest in his advances. Initially, A.S. concurred in ending the relationship. After two days of cessation of contact, A.S. contacted T.P. and told him that she would buy him a fancy coffee if he came and spent time with her at her home. T.P. accepted the invitation and came to A.S.’s home. A.S.’s parents were home, and the two went to A.S.’s upstairs bedroom and left the door open. While A.S. applied makeup in a nearby restroom, T.P sat on her bed and played a video game. The bathroom is located 2 No. 37159-0-III State v. T.P. near A.S.’s room but is not adjoining. T.P. later entered the restroom and twice attempted to force his hands down A.S.’s pants. A.S. told him no, and she moved his hand. An angry T.P. returned to the bedroom and continued playing video games. After applying her make-up, A.S. returned to the bedroom and sat on the bed with T.P. T.P. abruptly rested his videogame controller and kissed A.S. A.S. reciprocated T.P.’s kisses. But then, according to A.S., T.P. pushed A.S. down on the bed. T.P. sat on A.S. and repeatedly attempted to place his hands down her pants. A.S. constantly said “no” and “stop,” while moving his hand from her private area. According to A.S., T.P. held A.S.’s defensive hand and inserted a finger from another hand into her vagina. After an indiscernible period of time, T.P. got off A.S. He pulled his penis from his pants and twice demanded that A.S. perform oral sex. A.S. responded “no” each time. A.S.’s parents then called T.P. and A.S. downstairs to get coffee. A.S. testified to an awkward car ride to the coffee shop, and she does not recall whether T.P. stayed for dinner. She described the time until he went home as a blur. Two months after the incident, A.S. disclosed T.P’s conduct to her ex-boyfriend. Even months later, she disclosed the T.P.’s fingering of her vagina to her parents, who reported the occurrence to law enforcement. Douglas County Sheriff Detective Ramon Bravo interviewed T.P., and, at trial, the court listened to the recording of the interview. T.P. told Detective Bravo that he visited A.S.’s home two or three times and communicated with her through Snapchat. T.P. 3 No. 37159-0-III State v. T.P. acknowledged that, on one occasion while visiting, he and A.S. kissed and he went into the bathroom to see where A.S. had gone. In the bathroom, he talked to her. A.S.’s dad came upstairs, and he and T.P. talked. T.P. told the detective that he wished to finger T.P, but did not attempt such conduct because of the presence of A.S.’s parents in the residence. PROCEDURE The State of Washington charged T.P. with rape in the third degree. At trial, the State called four witnesses: A.S., A.S.’s mother, A.S.’s father, and Detective Ramon Bravo. A.S.’s parents testified before she did. On direct examination, A.S.’s mother testified that, since the alleged incident in her home, A.S. became more depressed. A.S. had nightmares, took additional medication, and her appetite decreased. The prosecution then inquired into A.S.’s reputation for truthfulness: Q Does A.S. have a reputation in the community as being somebody who makes things up? MR. BARKER [Defense Counsel]: Well, first you have to define the community, so I’m going to object to that as well. And who she talked to about this, etc. THE COURT: The Court will overrule that objection. [A.S.’s mother]: No, she’s not the kind of person that would make something up, no. .... Q Does she have a reputation in the community as being somebody who would do things purely for attention? Mr. BARKER: Same objection, Your Honor . . . he’s asking for character evidence once again. 4 No. 37159-0-III State v. T.P. .... THE COURT: I’ll allow that question. [A.S.’s mother]: No, she does not. RP at 45-46. On cross-examination, defense counsel questioned A.S.’s mother regarding from whom she gained knowledge of A.S.’s reputation for truthfulness: Q Have you ever talked to anybody about her rep—about her making things up? Anybody? A No. RP at 46. Defense counsel proceeded to ask the mother questions related to her and A.S.’s father’s decision to homeschool A.S. at the time the alleged incident took place. Q And A.S. back in March was homeschooled, is that correct? A Yes. Q When did she start homeschooling? A She started homeschool January 29th—well, she started this year, January 29th was the first day that she started homeschool this year. Q What about last year? A Last year she went to the junior high for 8th grade. Q What about the year before that? A She was homeschooled for her 7th grade year. Q And she was homeschooled because she was having troubles in school, true? A She was being bullied. Q She was be calling—been calling names by people in school? A Yes. Q Other girls? A Yes. Q They were calling her a slut? MR. PARRISH [State’s Attorney]: I’m going to object as to relevance, Your Honor. 5 No. 37159-0-III State v. T.P. THE COURT: Mr. Barker? MR. BARKER: He brought up her depression, Your Honor. I think I should be allowed to explore that depression. MR. PARRISH: Your Honor, but that was as to effects of a particular incident in a point in time. I don’t know that delving into a 15- year-old’s juvenile educational and social history is appropriate. MR. BARKER: He timed it, I didn’t it. THE COURT: For now, I’ll allow the question. BY MR. BARKER: Q Is that true? A Yes. Q And so you chose to homeschool her? A Yes, I did. Q And you’re saying she wasn’t depressed at that time? A Not—no. Q Okay. So she’s being bullied at school, you decide to take her out of school in order to get rid of that. A Yes. Q And she’s not depressed—that’s your testimony? A Yes. RP at 46-48. Because A.S.’ mother admitted she spoke with no one regarding A.S.’s reputation, defense counsel moved to strike her statements regarding A.S.’s reputation about fabricating untruths. In response, the State argued that A.S. must have a truthful reputation, otherwise someone would have complained to her mother. The court denied the motion to strike while reasoning that, since no one had spoken to the mother about A.S. possessing a reputation for lying, A.S. must not have a reputation for prevaricating. During the questioning of A.S.’s father, the prosecution repeated a similar line of questioning. 6 No. 37159-0-III State v. T.P. Q Mr. [S.], to your understanding, does A.S. in the community have a reputation for truthfulness? A Yes. MR. BARKER: Again, I would object. Now he’s asking a leading question and he’s also asking the wrong question for character evidence. He’s not laid any foundation for why this particular witness would have any indication as to why that’s true. MR. PARRISH: I don’t believe that’s necessary, Your Honor. MR. BARKER: I understand you don’t, but the Rule does. THE COURT: I’m going to overrule the objection. RP at 56-57. A.S.’s father testified that his daughter battled depression, encountered difficulty cultivating friendships, and spent time in her room alone. He described her emotional state, before the alleged rape, as “[v]ery outgoing; very bubbly personality; would introduce herself to anybody.” RP at 53. On cross-examination, the father conceded that A.S. suffered from depression before the rape and he observed no changes in A.S.’s personality on the day of the incident. A.S. testified to the events in her bedroom on the day of the charged crime. T.P.’s counsel asked her no questions on cross-examination. The defense did not call any witnesses to testify. In closing argument, defense counsel asked the juvenile court to find that A.S. consented to the sexual fingering. [T]he Court has to think about what this case is really about. It’s not about whether or not sexual activity occurred because it did. Whether or not it consensually occurred because it did. They kissed—she testified that 7 No. 37159-0-III State v. T.P. they made out. What does that mean? We never really got into it—made out; made out how; made out how much? .... What this case is about is her intention. It’s not about his intention . . . She tells him after he says well I’m not going to hang out with you if you don’t let me do that and then she contacts him, but she puts a carrot in front of him that says look, I’ll take you out for coffee; I’m attracting you to me. That is her intention. And her intention knows what his intention is. At that moment in time, even if we believe everything that A.S. says, it’s her intention at that moment in time to do that and she’s told him that by her actions. So there’s not a lack of consent here. There is a consent at the very beginning of this. Now, does that change; does it not change? I don’t know; I wasn’t there and the Court wasn’t there. But what clearly happened was she invited him over for a purpose that she knew—she did; there’s no question about that. .... So what the Court is left with here is absolutely no physical evidence, absolutely no crying out during the time or anybody knowing that something is happening upstairs—you know, there’s other people in the house right downstairs. There’s no other corroborative evidence there. What we have is two people that say it happened in a different way. And I don’t think that’s beyond a reasonable doubt. . . . .... . . . [H]e’s clearly saying this is what I want to do, this is what I’m going to do, and I’m not going to hang out with you anymore if you don’t let me do it. And then she asks me to hang out. I don’t know what—what more of a yes you can say there. So I would suggest to the Court that there is obviously reasonable doubt as to what happened, based upon A.S.’s intention. RP at 95-98 (emphasis added). Defense counsel made no reference to A.S.’s credibility other than the comment: “even if we believe everything that A.S. says. . . .” RP at 96. The juvenile court convicted T.P. of third degree rape. At the conclusion of the closing statements, the court declared: 8 No. 37159-0-III State v. T.P. The Court has heard the evidence. I would note that, as Mr. Barker stated, there really isn’t an issue about the act. The issue is whether consent was given. The statute, RCW 9A.44.060(1)(a), talks about where the victim did not consent, as defined by statute, to sexual intercourse—again, which is a statutorily defined term—with the perpetrator—and here’s the key part— and such lack of consent was clearly expressed by the victim’s words or conduct. So the issue appears to be whether the State has proven beyond a reasonable doubt that there was lack of—whether, among other things— there was lack of consent and such lack of consent was clearly expressed by the victim’s words or conduct. T.P., I think you’ve got a skilled and experienced attorney and he has made what appear to be probably the only arguments that could be made on your behalf. I feel like these text messages—or Snapchat messages, rather—probably in real time weren’t given so much thought or scrutiny as they’ve been given today. Probably they’re—I know I’ve personally looked—a lot of attention and a lot of care in reviewing those Snapchat messages, probably well beyond what was intended. I do note, however, though, that although there was certainly some forward talk and there was certainly some expression of what you intended to do, there—it is equally clear that there was a—a lack of consent, at least at that time, from A.S. as to what—her thoughts as to what you intended to do. Even if, as Mr. Barker argued, she had given consent—and that’s not what I see in the text messages. Even if she had given such consent, that consent would not be irrevocable. And the case law books are filled with cases where victims or alleged victims maybe even at some earlier point in time gave consent, but they withdrew consent. And the Court is mindful that there are—there were the multiple incidents in the home. There was the first incident in the bathroom. And I’m not—and then there was the incident on the bed itself. The third incident, I—that Mr. Parrish mentioned, I don’t give much, if any, weight to. It certainly doubles down, if you will, on what T.P.’s intentions were, but in terms of the crime itself, it was the second incident on the bed where—that is key. And it is this Court’s finding and conclusion that there was a lack of consent and that such lack of consent was in fact clearly expressed by the victim’s words or conduct. And this is based on the evidence that was 9 No. 37159-0-III State v. T.P. produced at trial. So the Court does find the Defendant guilty of Rape in the 3rd Degree. RP at 101-03. The juvenile court entered written findings of fact that focused on a lack of consent by A.S. to the fingering of her vagina. The findings do not explain how the trial court arrived at the factual conclusion that T.P. fingered A.S. without her consent. The court prefaced the findings by writing: “[u]pon hearing the testimony of the witnesses.” Clerk’s Papers (CP) at 41. LAW AND ANALYSIS On appeal, T.P. assigns four errors to trial court proceedings. First, the trial court mistakenly permitted A.S.’s parents to testify to her reputation. Second, his trial counsel performed ineffectively when arguing that T.P. fingered A.S. with A.S.’s consent after T.P. had denied any sexual touching to Detective Ramon Bravo. Third, the trial court exceeded its authority when ordering twenty-four months of community supervision. Fourth, the order of disposition contains a clerical error. We agree with T.P.’s first assignment of error, so we do not address the remaining assignments. T.P. argues that the prosecution never laid the foundation required by evidence rules to show A.S.’s parents belong to a general and neutral community such that they could testify to any reputation that A.S. had in the community. In response, the State presents no analysis of the rules of evidence concerning bolstering the credibility of the 10 No. 37159-0-III State v. T.P. victim or presenting reputation testimony. The State may imply that the reputation testimony did not need to comply with the rules. The State instead contends that the parents could corroborate A.S.’s credibility because of the prospect of the defense seeking to impeach the credibility of A.S. and because of defense counsel asking questions about A.S. being called a slut. The State also contends that, assuming any error in the admission of the parents’ testimony, this court must assume that the trial court ignored the inadmissible evidence when convicting T.P. of the crime of rape. The arguments of the parties raise the following questions. First, may the proponent of testimony concerning the victim’s reputation for veracity present the testimony before the victim’s credibility is attacked? Second, does a reference to the victim as a slut embody a challenge to the victim’s character for truthfulness? Third, does the defense’s breach of the rape shield statute permit the State to question a witness about the reputation of the victim for truthfulness? Fourth, may a witness testify to the reputation of the alleged victim of rape without first identifying any community in which the victim purportedly has garnered a reputation for truthfulness? Fifth, may a parent testify to the reputation of his or her child for truthfulness based on the lack of any negative comments to the parents about the child lying? Sixth, assuming the trial court, during a bench trial, erred in listening to testimony concerning the reputation for truthfulness of the prime witness and victim, should this court assume that the trial court never considered the testimony, when convicting the accused, despite the court three 11 No. 37159-0-III State v. T.P. times declining to exclude the testimony and despite the credibility of the accused and the victim being key to the trial outcome? Some of the questions overlap. Timing of Reputation Testimony We first address under what circumstances the State may present testimony of the victim’s reputation for truthfulness. Identifying these circumstances helps us answer the many other questions. ER 404(a) controls the State’s attempt to bolster the credibility of the victim and reads, in relevant part: Character Evidence Generally. Evidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except: .... (2) Character of Victim. Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor[.] (Some emphasis added.) In turn, ER 608(a) controls evidence about a witness’s reputation for truthfulness, which we assume also extends to a victim who becomes a witness. This latter rule declares: Reputation Evidence of Character. The credibility of a witness may be attacked or supported by evidence in the form of reputation, but subject to the limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by reputation evidence or otherwise. 12 No. 37159-0-III State v. T.P. (Emphasis added.) The State may not bolster a witness’s testimony in the absence of an attack on credibility. State v. Bourgeois, 133 Wn.2d 389 , 400, 945 P.2d 1120 (1997); State v. Petrich, 101 Wn.2d 566 , 574, 683 P.2d 173 (1984) abrogated on other grounds by State v. Kitchen, 110 Wn.2d 403 , 756 P.2d 105 (1988); State v. Froehlich, 96 Wn.2d 301 , 305, 635 P.2d 127 (1981). Stated more emphatically and verbosely, testimony in chief of any kind, tending merely to support the credit of the witness, is not to be heard except in reply to some matter previously given in evidence by the opposite party to impeach it. State v. Bourgeois, 133 Wn.2d at 400 . Once the defense assaults the veracity of the State’s witness, the State may present contradicting evidence of truthfulness no matter how “slight” the attack. State v. Petrich, 101 Wn.2d at 575 . The State questioned A.S.’s mother about her daughter’s reputation in the community for being somebody who fabricates untruth before A.S. testified and even before T.P.’s counsel cross-examined the mother. We recognize that T.P. did not object to the questioning of the mother based on the lack of an earlier attack on A.S.’s truthfulness. Nevertheless, because the State justifies questioning the mother based on an anticipated attack on A.S.’s credibility and because the State impliedly argues that it need not have followed the evidence rules addressing testimony regarding a reputation for truthfulness, we rule that the trial court should not have permitted the mother to testify to a reputation of A.S. in the community to concoct falsehoods. 13 No. 37159-0-III State v. T.P. The State responds that the law allowed it to present evidence of A.S.’s reputation for truthfulness in anticipation for a later attack by the defense on A.S.’s credibility. In support of its contention, the State cites State v. Petrich, 101 Wn.2d 566 (1984) and State v. Bourgeois, 133 Wn.2d 389 (1997). In State v. Petrich, our high court observed that, in some cases, the issue of credibility of the complaining witness “may be an inevitable, central issue.” State v. Petrich, 101 Wn.2d at 575 . A child victim alleged that her grandfather, Charles Petrich, abused her. On direct examination, she testified to an eight month delay in reporting the abusive incident. On cross-examination of the child, defense counsel elicited testimony that reflected an earlier opportunity to and a lack of motive to report the abuse. Because the trial court believed that defense’s questioning comprised an attack on the complaining witness’s credibility, the trial court permitted a State’s expert to testify that a victim of child abuse often delays reporting and to aver to a correlation between the relationship between an abuser and the child and a delay in reporting. The Washington Supreme Court agreed that the defense had challenged the credibility of the victim and, therefore, the trial court properly admitted limited expert testimony. In State v. Bourgeois, four witnesses testified regarding their fear and reluctance to testify on behalf of the State. Our high court concluded that admission of testimony from three of the witnesses merely served to bolster their credibility before the defense challenged their truthfulness. Therefore, the trial court committed error when admitting 14 No. 37159-0-III State v. T.P. the testimony. With regard to Frank Rojas, a fourth witness, however, the high court concluded that the trial court did not err in admitting the testimony. The record showed that Rojas gave police a false name, purposefully identified a person other than the defendant, and initially expressed uncertainty as to the identity of the assailant that he saw fleeing from the scene of the crime. Later, Rojas gave law enforcement his correct name and branded the fleer as Jeremiah Bourgeois. Under such circumstances our state Supreme Court held that the State, during direct examination, could ask Rojas about his fear to report his percipient knowledge of the crime in order to explain his inconsistent statements to police and to fend off a later attack against his credibility. Although the attack occurred after direct examination, the State reasonably could anticipate the attack. We deem Petrich and Bourgeois distinguishable. In State v. Petrich, an attack on credibility occurred before the State sought to admit corroborating evidence. In State v. Bourgeois, the State could reasonably assume an attack on the credibility of the witness, and the attack occurred. In T.P.’s prosecution, no such attack occurred before introduction of reputation evidence. In State v. Petrich, the Washington Supreme Court observed that crimes against children generally put in issue the credibility of the complaining witness when the accused denies the acts asserted by the child. This observation may suggest that the State may present testimony of the child’s reputation for honesty regardless of any attack on the victim’s credibility. Nevertheless, no case stands for this proposition. In the reported 15 No. 37159-0-III State v. T.P. decisions, the defense made direct attacks on the witness’s veracity during questioning of the witness or another witness before the State introduced reputation testimony. In T.P.’s trial, defense counsel never questioned A.S., let alone posed questions challenging her credibility to any witness. Defense counsel never directly accused her of dishonesty in his summation. Slut Reference The State also questioned A.S.’s father about his daughter’s reputation in the community for truthfulness. A.S. had yet to testify, but, during the earlier cross- examination of the mother, defense counsel had questioned the mother about whether her daughter had been called a slut. The State argues that the testimony about the name calling freed the State to question A.S.’s father as to A.S.’s reputation for veracity. Presumably the State also contends that testimony about this allusion retroactively justified questioning the mother about her daughter’s reputation. We note that T.P.’s counsel questioned A.S.’s mother about the slut comment because of the State’s theme that A.S. suffered from depression after the alleged rape. Both parents testified to A.S.’s depression. Presumably the State wanted to convey the understanding that A.S. must have been raped because she experienced depression after, but not before, the alleged sexual assault. To counter this premise, defense counsel asked the mother and father about home schooling A.S. before the alleged rape. Counsel continued the line of questioning with queries soliciting information about home school 16 No. 37159-0-III State v. T.P. being prompted by bullying at school and A.S. being called a “slut.” According to the State, eliciting information that one or more people called the victim a slut amounted to telling the court the victim should not be believed. Therefore, the State could present evidence corroborating A.S.’s honesty. We disagree. Corroborating evidence is admissible only on the facet of the witness’s character or testimony which has been challenged. State v. Froehlich, 96 Wn.2d 301 , 305 (1981). In the context of impeachment, evidence of a witness’s prior misconduct is admissible only if it is probative of the witness’s character for truthfulness under ER 608. State v. Stockton, 91 Wn. App. 35 , 42, 955 P.2d 805 (1998). For example, drug possession and use are not probative of truthfulness because they have little to do with a witness’s credibility. State v. Hardy, 133 Wn.2d 701 , 709, 946 P.2d 1175 (1997); State v. Stockton, 91 Wn. App. at 42. We analogize purported sexual activity to alleged consumption of unlawful drugs. Even assuming that A.S. engaged in other sexual activity or maintained a reputation for unchastity, such conduct or repute lacked any relationship to her believability or reputation for fidelity. We also emphasize that the defense presented no evidence that A.S. was a slut, only that one or more colleagues at school had called her a slut. The name calling could be the product of meanness, not of the accuracy of the epithet. The evidence presented by the defense did not release the State to present testimony concerning the reputation of A.S. 17 No. 37159-0-III State v. T.P. Rape Shield Statute The State next contends that, by introducing evidence of A.S. being called a “slut,” the defense violated the rape shield statute and thereby opened the gate for testimony rehabilitating A.S. as an honest witness. For the same reason we concluded that the name calling lacked relevance to A.S.’s believability, we reject this additional contention. RCW 9A.44.020, known colloquially as the rape shield statute, reads in pertinent part: (2) Evidence of the victim’s past sexual behavior including but not limited to the victim’s marital history, divorce history, or general reputation for promiscuity, nonchastity, or sexual mores contrary to community standards is inadmissible on the issue of credibility and is inadmissible to prove the victim’s consent except as provided in subsection (3) of this section. Subsection 3 of the statute allows introduction of past sexual history on the issue of consent but only with advance approval by the trial court preceded by a motion. The defense asked A.S.’s parents about their daughter being called a slut not for the purpose of showing she was a slut but to counter the State’s factual position that A.S. suffered depression resulting from a rape. Therefore, the defense did not violate the statute. RCW 9A.44.020 also precludes evidence of a reputation for promiscuity. In the context of a junior high school, a female could be called a slut simply as a pejorative term, not because of sexual activity. 18 No. 37159-0-III State v. T.P. Foundation for Reputation Testimony We move to the subject of the method of introducing evidence to rebut an attack on a victim’s or a witness’s credibility. The rules surrounding testimony on reputation coincide regardless of whether the proponent seeks introduction of the evidence to rehabilitate a victim or a witness. ER 404(a) allows evidence of a pertinent trait of character of the victim to rebut a challenge to that trait, and ER 608(a) allows evidence as to a witness’s character for truthfulness if the opponent attacked the witness’s credibility. Neither rule informs us of the method of respectively rehabilitating the victim or witness. ER 405(a) controls the methods for proving a witness’s character. The rule declares: Reputation. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation. On cross examination, inquiry is allowable into relevant specific instances of conduct. (Emphasis added.) Although the rule does not state that inquiry into a person’s character shall be by testimony to reputation, Washington follows the traditional common law rule that proof of character is limited to testimony concerning reputation. Rule 405. Methods of Proving Character, 5D KARL B. TEGLAND, WASHINGTON PRACTICE: COURTROOM HANDBOOK ON WASHINGTON EVIDENCE ER 405 author’s cmt. 405:1 (2020 ed.). One cannot express a personal opinion as to a witness’s veracity. State v. Woodard, 26 Wn. App. 735 , 738, 617 P.2d 1039 (1980). 19 No. 37159-0-III State v. T.P. A party seeking to admit evidence bears the burden of establishing a foundation for that evidence. State v. Land, 121 Wn.2d 494 , 500, 851 P.2d 678 (1993). According to State v. Kelly, 102 Wn.2d 188 , 194, 685 P.2d 564 (1984), the method of proving reputation, since 1919, has been governed by this procedure: The orderly and proper way to put in evidence of this sort, after the witness has testified to acquaintanceship with the defendant not too remote in point of time, is to have the witness answer No or Yes, as the fact is, to the question, if he knows what the general reputation of the defendant is, in the community in which he resides, for the particular trait of character (naming it) that is relevant to and involved in the crime with which the defendant is charged. If the witness answer No, that ends the inquiry. If he answer Yes, then the next and final question should be, What is it, good or bad? State v. Argentieri, 105 Wash. 7 , 10, 177 P. 690 (1919). This passage does not require the proponent of the evidence to draw from the witness the basis on which the witness has learned the reputation of another. The passage also does not suggest that the opponent of the evidence may voir dire or cross-examine the witness as to the witness’s basis of knowledge. Still, such questioning should be permitted or else the testimony of reputation becomes worthless, or worse, the trier of fact accepts the testimony and grounds a conviction on such reputation despite the reputation being based on rare air. One Washington case stands for the proposition that, in order to offer reputation testimony, a witness must lay a foundation establishing that he or she bases the subject’s reputation on perceptions in the community. State v. Thach, 126 Wn. App. 297 , 315, 106 P.3d 782 (2005), overruled on other grounds by State v. Case, 13 Wn. App. 2d 657, 466 20 No. 37159-0-III State v. T.P. P.3d 799 (2020). A Washington Supreme Court decision reads that, to establish a valid community, the party seeking to admit the reputation evidence must show that the community is both neutral and general. State v. Land, 121 Wn.2d 494 , 500 (1993). Although the quote from State v. Argentieri refers to “the community in which [the witness] resides,” Washington courts do not apply this principle literally. ER 405 does not limit the reputation to the person’s residential neighborhood. The witness can testify to a reputation among business associates or coworkers. State v. Land, 121 Wn.2d 494 , 500-01 (1993); State v. Callahan, 87 Wn. App. 925 , 936, 943 P.2d 676 (1997). Nevertheless, as already stated, to be admissible, the reputation must exist within a neutral and generalized community. State v. Gregory, 158 Wn.2d 759 , 805, 147 P.3d 1201 (2006) overruled on other grounds by, State v. W.R., Jr, 181 Wn.2d 757 , 336 P.3d 1134 (2014); State v. Callahan, 87 Wn. App. at 934. Reputation among a limited group of persons may not accurately reflect the witness’s general character for truthfulness. 5D TEGLAND, supra, ER 405 author’s cmt. 405:2. A person’s reputation among members of a family is inadmissible. State v. Thach, 126 Wn. App. 297 , 315 (2005). In State v. Gregory, 158 Wn.2d 759 , 805, 147 P.3d 1201 (2006), the Supreme Court affirmed the trial court’s exclusion of testimony of the victim’s family members as to the victim’s reputation of honesty among family. The Washington Supreme Court noted: 21 No. 37159-0-III State v. T.P. First, the inherent nature of familial relationships often precludes family members from providing an unbiased and reliable evaluation of one another. In addition, the “community” with which Larson had discussed R.S.’s reputation included only two people, Larson and R.S.’s sister. Any community comprised of two individuals is too small to constitute a community for purposes of ER 608. State v. Gregory, 158 Wn.2d at 805 . In T.P.’s trial, the State exerted no attempt to lay a foundation with regard to the purported community in which A.S. possessed a reputation for truthfulness. The trial court overruled an objection to questioning A.S.’s mother as to whether A.S. has “a reputation in the community as being someone who makes things up?” RP at 45. Later when defense counsel established that the mother had spoken to no one about the reputation, the trial court refused to strike the testimony. A.S.’s father also testified about A.S.’s “reputation in the community for truthfulness,” without any foundation as to the basis of his knowledge of the reputation. RP at 55-56. As parents, the father and mother are unlikely to represent a general or neutral community. Thus, even assuming the defense assailed the credibility of A.S. such that the State could introduce evidence of A.S.’s reputation for truthfulness, such evidence lacked a foundation and should have been precluded. The State may suggest that it need not have followed the foundational rules to introduce testimony from the parents because either T.P. challenged the credibility of A.S. or A.S.’s credibility was automatically in issue because of the nature of the charge. 22 No. 37159-0-III State v. T.P. No case stands for this proposition. In all decisions wherein the court addressed the necessary foundation for reputation evidence, the credibility of a witness was challenged. If we accepted the State’s suggestion, we would nearly destroy the impact of ER 405. We are uncertain as to whether either parent actually testified to A.S.’s purported reputation as opposed to each parent declaring his or her respective personal view of A.S.’s honesty. To repeat, the following colloquy occurred with A.S.’s mother: Q Does A.S. have a reputation in the community as being somebody who makes things up? MR. BARKER [Defense Counsel]: Well, first you have to define the community, so I’m going to object to that as well. And who she talked to about this, etc. THE COURT: The Court will overrule that objection. [A.S.’s mother]: No, she’s not the kind of person that would make something up, no. RP at 45. The answer illustrates that A.S.’s mother wanted to answer as to her observations and views of her daughter, not to any reputation of the daughter. Although the State’s attorney repeated the question and the mother answered in the negative without editorializing, the die had been cast. The prosecution asked A.S.’s father: Q Mr. [S], to your understanding, does A.S. in the community have a reputation for truthfulness? [Father]: Yes. 23 No. 37159-0-III State v. T.P. RP at 56. One could take this question as asking whether or not A.S. simply had a reputation with the expectation that the next question would inquire as to whether the reputation was bad or good. In line with our holding that the State never laid the proper foundation for A.S.’s parents to testify to her reputation for truthfulness, we observe that a child does not gain a reputation for veracity just because no one has complained to either parent that the child fibbed. Bench Trial Presumption We must now decide if the introduction of the parents’ testimony about A.S.’s reputation for truthfulness was harmless. In this regard, we face a unique rule with regard to harmless error. The State relies on a presumption that the juvenile court judge did not consider inadmissible evidence in reaching a verdict. Juvenile court trials are always bench trials. In Washington State, in the absence of evidence to the contrary, a reviewing court will presume the judge in a bench trial does not consider inadmissible evidence in rendering a verdict. State v. Read, 147 Wn.2d 238 , 242, 53 P.3d 26 (2002). The presumption, known as the Read presumption, is rebuttable, however. State v. Gower, 179 Wn.2d 851 , 855-56, 321 P.3d 1178 (2014). We reject the presumption in this appeal for several reasons. First, the presumption “depends entirely on our recognition that the trial judge knows the rules of evidence and will therefore discount truly inadmissible evidence when making a decision 24 No. 37159-0-III State v. T.P. in a bench trial.” State v. Gower, 179 Wn.2d 851 , 856 (2014). We respectfully conclude that the trial court did not know the relevant rules applicable to T.P.’s trial. Twice the trial court overruled timely and cogent objections to the parents’ testimony about the reputation of their daughter when the testimony lacked any foundation. The evidence also should not have been heard, let alone considered, by the court because T.P.’s counsel had never impeached A.S. Second, a defendant can rebut the presumption by showing the verdict is not supported by sufficient admissible evidence or the trial court relied on the inadmissible evidence to make essential findings that it otherwise would not have made. State v. Read, 147 Wn.2d 238 , 245-46 (2002). We conclude that sufficient admissible evidence supported the guilty conviction. Nevertheless, for the juvenile court to reach a finding of guilt, the court needed to find A.S. to be credible. The parents’ inadmissible testimony vouched for the credibility of A.S. The juvenile court may have found A.S. credible without the parents’ vouching, but we cannot discern such a finding to be likely. In State v. Read, 147 Wn.2d 238 , the trial court admitted irrelevant opinion testimony. Nevertheless, the defendant failed to show that the trial court relied on the testimony when it made its findings. Our high court held admission of the evidence did not constitute reversible error. In State v. Gower, 179 Wn.2d 851 , 856 (2014), the Washington Supreme Court rejected application of the Read presumption. The trial court admitted evidence of David 25 No. 37159-0-III State v. T.P. Gower’s prior sexual misconduct. The trial court expressly stated in its conclusions of law that the evidence was legally admissible and it also stated that the State could rely on the evidence in its case in chief. In State v. Gower, the Supreme Court reviewed the entire findings, conclusions, and transcript when deciphering whether the trial court relied on impermissible evidence of earlier sex crimes when finding David Gower guilty of indecent liberties and incest. The dissent criticized the majority because the findings of fact and conclusions of law did not expressly state that the trial court, in the bench trial, relied on the earlier convictions. After reviewing the entire trial transcript in T.P.’s prosecution, we also conclude that the trial court probably relied on the inadmissible evidence when determining the credibility of A.S. and the guilt of T.P., despite the juvenile court never expressly mentioning reliance on the parents’ testimony. The State of Washington held the burden of proving the lack of consent from A.S. The credibility of A.S. was essential to a finding of lack of consent. Although the juvenile court did not expressly state the reasons for finding A.S. truthful, the court wrote that it considered the testimony of all the witnesses when reaching its ruling. Of course, the testimony included the parents’ averring as to the truthfulness of their daughter. The testimony of a good reputation came from two sources. The State contends the record does not support a conclusion that the trial court relied on the reputation testimony of A.S.’s parents. Nevertheless, the State also posits 26 No. 37159-0-III State v. T.P. that this prosecution was a “‘he said/she said’ kind of case.” Brief of Resp’t, at 13. Presumably the State sought to bolster the credibility of A.S. by the testimony of the parents because of this nature of the case. In S.B. v. State, 255 So. 3d 497 (Fla. Dist. Ct. App. 2018), the reviewing court reversed a juvenile’s conviction for robbery. During the testimony of the accused, S.B., the State asked him if he had any witnesses corroborating his story of being in another location at the time of the robbery. Defense counsel objected to the question as shifting the burden of proof. The trial court overruled the objection. On appeal, the state court of appeals first ruled that the question was objectionable. The reviewing court then concluded that, because the trial court overruled the objection and because the trial court never stated that he did not rely on the testimony, the trial court likely relied on impermissible evidence. Evidentiary error requires reversal only if the error results in prejudice. State v. Neal, 144 Wn.2d 600 , 611, 30 P.3d 1255 (2001). Improper admission of evidence constitutes harmless error if the evidence is of minor significance in reference to the evidence as a whole. State v. Neal, 144 Wn.2d at 611 . The test becomes whether there is a reasonable probability that the outcome of the trial would have been different without the inadmissible evidence. State v. Gower, 179 Wn.2d at 857 . For the same reason that we decline application of the Read presumption, we conclude the outcome of the trial 27 No. 37159-0-III State v. T.P. would likely have been different without the juvenile court considering the parents’ testimony. The State argues that substantial evidence supported the verdict and therefore any alleged error was harmless. A harmless error analysis “does not turn on whether there is sufficient evidence to convict without the inadmissible evidence.” State v. Gower, 179 Wn.2d 851 , 857 (2014). CONCLUSION We reverse the conviction of T.P. for third degree rape and remand for a new trial. A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040. _________________________________ Fearing, J. WE CONCUR: ______________________________ Lawrence-Berrey, J. ______________________________ Pennell, C.J. 28

2020-12-01 16:23:04.780316+00

http://www.courts.wa.gov/opinions/pdf/367576_unp.pdf

FILED DECEMBER 1, 2020 In the Office of the Clerk of Court WA State Court of Appeals Division III IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, ) ) No. 36757-6-III Respondent, ) ) v. ) ) UNPUBLISHED OPINION JUAN O. GONZALEZ, ) ) Appellant. ) FEARING, J. — Juan Gonzalez challenges the imposition of a $1,000 fine imposed by the trial court after convicting Gonzalez of a Class B felony. Gonzalez is indigent. Because Gonzalez did not object before the trial court and because RCW 9A.20.021(b) authorizes a fine up to $20,000 for a Class B felony, we reject the challenge. FACTS The facts underlying the charge are irrelevant on appeal. PROCEDURE The State of Washington charged Juan Gonzalez with one count of possession with intent to deliver a controlled substance, methamphetamine. The trial court found Gonzalez indigent and appointed him counsel. After a bench trial, the trial court found Juan Gonzalez guilty on the sole charge. No. 36757-6-III State v. Gonzalez Possession with intent to deliver a controlled substance, methamphetamine, is a class B felony. RCW 69.50.401(2)(b). The trial court imposed a sentence of twelve months and a day and one year of community custody. The court also imposed mandatory legal financial obligations and a $1,000 fine. Gonzalez did not object to the imposition of the $1,000 fine. The trial court minutes memorialized the $1,000 as a fine. CP 338. The felony judgment and sentence form labeled the $1,000 as “[o]ther fines and costs.” Clerk’s Papers at 329. LAW AND ANALYSIS On appeal, Juan Gonzalez contends that the law precluded imposition of the $1,000 fine because of his indigency. The State responds that Gonzalez failed to preserve the assignment of error for appeal because he registered no objection before the trial court. An appellate court may refuse to review any claim of error which was not raised in the trial court. RAP 2.5. A previously unchallenged fine is not subject to review initially on appeal. State v. Clark, 191 Wn. App. 369 , 376, 362 P.3d 309 (2015). Even if we reviewed the merits of the appeal, we would affirm the trial court. Juan Gonzalez argues that, pursuant to RCW 10.01.160(3), State v. Ramirez, 191 Wn.2d 732 , 738-39, 426 P.3d 714 (2018), and State v. Blazina, 182 Wn.2d 827 , 839, 344 P.3d 680 (2015), the trial court should have considered his financial ability to pay a fine before imposing the fine. Nevertheless, the statute and the cases concern discretionary legal 2 No. 36757-6-III State v. Gonzalez financial obligations or costs, not a statutory fine. RCW 9A.20.021(b) authorizes the trial court to impose a fine up to $20,000 for a Class B felony regardless of the offender’s financial condition. Although we encourage trial courts to consider the offender’s financial status when imposing a fine, the trial court holds no obligation to do so. State v. Clark, 191 Wn. App. 369 , 374 (2015). CONCLUSION We affirm the trial court’s imposition of a $1,000 fine on Juan Gonzalez. A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040. _________________________________ Fearing, J. WE CONCUR: ______________________________ Korsmo, A.C.J. ______________________________ Siddoway, J. 3

2020-12-01 16:23:05.786599+00

http://www.courts.wa.gov/opinions/pdf/360016_unp.pdf

FILED DECEMBER 1, 2020 In the Office of the Clerk of Court WA State Court of Appeals Division III IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, ) ) No. 36001-6-III Respondent, ) ) v. ) UNPUBLISHED OPINION ) JUAN JOSE LUNA HUEZO, ) ) Appellant. ) FEARING, J. — Juan Luna Huezo appeals from convictions for raping and molesting two stepdaughters. He challenges the sufficiency of evidence. He also claims the trial court committed error when permitting the stepdaughters to answer some questions in writing and when excluding testimony from family members of his sexual morality and decency. We find no error and affirm. FACTS We gather our facts from trial testimony. We expand on some of the facts when describing the case’s procedure. Juan Luna Huezo is the stepfather of Tammy, born April 5, 2005, and Bonnie, born July 31, 2006, both pseudonyms. The girl’s mother began dating Luna Huezo in No. 36001-6-III State v. Huezo November 2009 and married him in January 2010. Luna Huezo is more than two decades older than the girls. At age nine, Tammy became the subject of sexual abuse by Juan Luna Huezo. Luna Huezo began sexually abusing Bonnie when she was eight years old. At trial, Tammy testified that Juan Luna Huezo sexually touched her on several occasions and in multiple locations in Kennewick, including at an apartment her family rented at the Hawaiian Village Apartments, at her family’s home on Steptoe Street, at her aunt Niashia Morales Enriquez’s residence, and in a vehicle. The sexual touching included Luna Huezo placing his hand on Tammy’s private parts, placing his private parts against her body, and placing his penis inside her mouth. Tammy further testified that Juan Luna Huezo tied her hands behind her back with duct tape. Luna Huezo obtained a condom from a blue and gray backpack in the bathroom and placed it on his penis. Luna Huezo also rubbed oil on his penis. During trial, Luna Huezo confirmed that he used condoms and oil when engaging in sexual activity. According to Tammy, Juan Luna Huezo also sexually abused her sister. Once Tammy asked Luna Huezo whether he was “doing the same thing [to Bonnie],” and he responded that he was. Report of Proceedings (RP) at 271. Bonnie testified that Juan Luna Huezo touched her private area once. Bonnie further testified that she witnessed Juan Luna Huezo touch Tammy’s private parts while 2 No. 36001-6-III State v. Huezo Tammy slept at the Steptoe house. Bonnie witnessed Luna Huezo take Tammy into his bedroom, at which time she heard Tammy crying. On February 8, 2017, friends of eleven-year-old Tammy saw her crying during fifth grade music class. After speaking with Tammy, her friends informed their teacher about their concerns. Tammy’s teacher then contacted Sarah McMullin, the school counselor, who spoke with Tammy. Tammy and her ten-year-old sister, Bonnie, disclosed to Sarah McMullin that Juan Luna Huezo sexually abused them. McMullin contacted the Kennewick Police Department. On February 8, 2017, Mauri Murstig, a forensic child interviewer at the Sexual Advocacy Response Center, interviewed both children. On the night of February 8, 2017, Kennewick Police Department Detective Jose Santoy obtained warrants to search Tammy and Bonnie’s home and the residence of their aunt, Niashia Morales Enriquez. Police found condoms, duct tape, zip ties, and a zebra blanket. Law enforcement neither preserved nor tested the blanket for DNA. At some unidentified date, Dr. Shannon Phipps, later a trial witness, examined Tammy. Tammy was fearful and withdrawn while relating her history to Dr. Phipps. Tammy informed the physician that “she [Tammy] was too small,” such that Juan Luna Huezo’s penis did not fit inside her. RP at 161. Dr. Phipps’ found no physical abnormalities in Tammy. 3 No. 36001-6-III State v. Huezo PROCEDURE The State of Washington charged Juan Luna Huezo with one count of rape of a child in the first degree for conduct involving Tammy and three counts of child molestation in the first degree, with one count involving Tammy and two counts involving Bonnie. The one count of rape of a child in the first degree and the first count of child molestation in the first degree alleged aggravating circumstances of an ongoing pattern of sexual abuse and breach of a position of trust. The second count of child molestation in the first degree alleged the aggravating circumstance of violation of a position of trust. During a pretrial interview with defense counsel, Tammy disclosed that sexual contact imposed by Juan Luna Huezo occurred fifty-eight times at the Hawaiian Village apartment and that her mother was home on about thirty of the occasions. Tammy also disclosed that sexual contact occurred twenty times at Niashia Morales Enriquez’s residence and thirty times at the Steptoe house. Before trial, the trial court granted the State’s motion in limine precluding a witness from assessing the credibility of another witness. Also at the beginning of trial, the court entertained the State’s motion to exclude character and reputation evidence. Juan Luna Huezo intended to have four witnesses testify to his sexual morality and decency: his ex-spouse, Laura Martinez; his daughter, Alexis Huezo; and his two sisters- in-law, Nancy Morales Enriquez and Niashia Morales Enriquez. The trial court allowed 4 No. 36001-6-III State v. Huezo Luna Huezo to present offers of proof before ruling on the State’s motion to exclude the family member’s testimony. During the offer of proof, Luna Huezo did not ask Alexis Huezo questions regarding his reputation for sexual morality. He conceded that he failed to establish a sufficient foundation for Nancy Morales Enriquez and Niashia Morales Enriquez to testify to his reputation in the community. The trial court denied any testimony from the four witnesses as to Luna Huezo’s morality. During her testimony, the State asked Tammy to describe Juan Luna Huezo’s penis. Tammy did not respond. The State then asked Tammy whether she would prefer to write her answer, to which Tammy nodded affirmatively. Defense counsel objected to a written answer, but the trial court overruled the objection. Tammy’s written answer read, “It was long and tiny hair.” RP at 264. Defense counsel cross-examined Tammy, but did not question her about the one written answer. During trial, Tammy did not testify to the the number of times of sexual contact she earlier reported to defense counsel. Rather, she testified that Juan Luna Huezo touched her privates one time at the Hawaiian Village apartment, put his penis against her vagina more than once at the Hawaiian Village apartment, and touched her vagina one time at Niashia Morales Enriquez’s residence. Bonnie testified with difficulty during trial. Bonnie did not answer some questions and responded to other questions with “I don’t know” or “I don’t remember.” RP at 216-44. Bonnie testified that Juan Luna Huezo touched her private part on one 5 No. 36001-6-III State v. Huezo occasion. Bonnie did not respond to a State’s question of why she did not tell her mother about her stepfather’s conduct. When she hesitated to answer, the State asked Bonnie to write her answer. The trial court overruled defense counsel’s objection to a written answer. The court commented: This child is 11 and has been on the stand since a little after 11 o’clock. It’s now 11:28. This witness is clearly having a difficult time responding and answering to questions. . . . RP at 228. Bonnie wrote that she did not tell her mother because she thought her mother would not believe her. When the State asked Bonnie why she did not inform her mother about Tammy’s crying while being molested by Juan Luna Huezo, Bonnie replied that she was scared. When asked by the State why she was scared, Bonnie did not respond. Bonnie wrote her response over the defense’s objection. The State showed Bonnie’s response to the jury. Our record does not include the response. Defense counsel chose not to cross-examine Bonnie. During trial, the forensic child interviewer, Mauri Murstig, explained the concept of episodic memory versus script memory: [A]sking a child who has experienced that [sexual abuse] for a long period of time, you know, they’re not going to be able to give you an exact number that happened over months or years. And so, you know, what we try to do is just one time, more than one time and then try to get them to provide as many, you know, if there were specific times they could 6 No. 36001-6-III State v. Huezo remember, specific episodes, we try to focus on that. But, you know, it’s going to be impossible to have them describe every time something happened, if it happened, you know, over a long period of time. RP at 132. Dr. Shannon Phipps, D.O. testified about the physical examination she conducted on Tammy. The State’s attorney questioned Phipps: “because you don’t find any kind of physical manifestations in her body, does that mean that no sexual abuse occurred?” RP at 154. Dr. Phipps answered: No, it doesn’t. The body is incredible for healing. And I would relate this back to the example that I gave between an acute and a non-acute visit. If you’re walking down the street and you twist your knee. You might have some swelling initially. If you go immediately for something, that might be perceived. Whereas if you wait three or four days, the swelling may have resolved, there may not be a physical finding yet the injury still occurred, so the body can heal. RP at 154. Phipps averred that she would not expect to see tears or lesions in the vaginal area if a penis rubbed against the area, rather than entered the vagina. Finally, Dr. Phipps declared that “[i]t’s more typical not to find findings than to find findings” in sexual assault exams. RP at 161. Kennewick Police Department Detective Jose Santoy testified during trial. He explained the reason for not testing or preserving for evidence the zebra blanket. [T]he blanket, like I said, it was in a general area of the bedroom and any of the children could have touched it, to include the defendant and the victims. 7 No. 36001-6-III State v. Huezo RP at 205. After resting its case at trial, the State dismissed count 4, a child molestation charge involving Bonnie. Juan Luna Huezo testified on his behalf. He denied any inappropriate sexual contact with either Tammy or Bonnie. During cross-examination, the State asked: Isn’t it true during that interview you told Detective Santoy that [Tammy] would never lie about anything this serious; isn’t that true? RP at 401. On defense counsel’s objection and the trial court’s overruling the objection, the State proceeded to ask the question two more times, once about Tammy and once about Bonnie. The State also asked Luna Huezo about his comment about Tammy’s hygiene issues the morning of his arrest: This is the first we’re hearing about all this; Isn’t that true? RP at 399. Trial defense counsel suffered the death of his niece during the trial. In response to the niece’s death, counsel stated that “a brief continuance would be sufficient” in order to ensure his effectiveness at trial. RP at 105. The trial court granted a one-day recess for counsel to rest before continuing with trial. On return from the one-day recess, trial counsel made no further mention of his need for additional continuances. Trial counsel had tragically lost three siblings to cancer in the thirteen months preceding his niece’s death. During summation, the State’s attorney commented: 8 No. 36001-6-III State v. Huezo [Juan Luna Huezo] took the stand and he told you, . . . [t]hat there is also this thing that happened the morning of 2-8 where Tammy witnessed him pulling Bonnie’s hair. . . . And something about Tammy not wiping herself. You know what’s interest? Think about this. No question was ever asked of Kelly about any of that. Huh. Don’t you think that’s weird? No question was asked of Bonnie about any of that. None of that was mentioned in opening statement. Why is that? Because it only came in through him. Nobody else was asked about any of that. Think about that. Why? Because it’s not true. RP at 463-64. The prosecuting attorney added: He [Juan Luna Huezo] waited an entire year to now tell his side. Didn’t tell it that day. Maybe he’s had some time to think about it. RP at 464. The jury found Juan Luna Huezo guilty on all three counts and further found the presence of the aggravating circumstances. LAW AND ANALYSIS On appeal, Juan Luna Huezo asserts the State presented insufficient evidence to convict him of any of the three crimes. He also assigns error to the trial court’s permission to Tammy and Bonnie to write answers to some of the State’s questions and to the trial court’s exclusion of testimony about his sexual morality and decency. Right to Confrontation Juan Luna Huezo asserts that the trial court denied him his right to confront Tammy and Bonnie as witnesses when it permitted each to testify via writing. He maintains that written answers limited his scope of cross-examination. He adds that the 9 No. 36001-6-III State v. Huezo trial court should have found the witnesses unavailable before allowing them to write their responses. The State responds that the trial court did not breach Juan Luna Huezo’s confrontation rights because Luna Huezo still had the opportunity to cross-examine each witness regarding her written answers. According to the State, the trial court placed no limits on the cross-examination. We agree with the State. The United States Constitution states that, “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him. . . .” U.S. CONST. amend. VI. The Washington State Constitution provides the accused the right “to meet the witnesses against him face to face.” CONST. art. I, § 22. The Washington State Supreme Court applies the state constitution clause consistent with the reading of the federal confrontation clause. State v. Lui, 179 Wn.2d 457 , 469, 315 P.3d 493 (2014). The confrontation clause primarily secured the right of cross-examination. State v. Foster, 135 Wn.2d 441 , 456, 957 P.2d 712 (1998). An impermissible limitation on the scope of cross-examination violates a defendant’s right to confrontation. State v. Garcia, 179 Wn.2d 828 , 844, 318 P.3d 266 (2014). The confrontation clause is generally satisfied, however, “‘if defense counsel receives wide latitude at trial to question witnesses.’” State v. Dye, 170 Wn. App. 340 , 346, 283 P.3d 1130 (2012) aff’d 178 Wn.2d 541 , 309 1109 (2013) (quoting Pennsylvania v. Ritchie, 480 U.S. 39 , 53, 107 S. Ct 10 No. 36001-6-III State v. Huezo 989, 94 L. Ed. 2d 40 (1987)). The trial court placed no limit on Juan Luna Huezo’s counsel cross-examining Tammy and Bonnie as to their written answers to questions. Juan Luna Huezo cites no authority to support his contention that written answers to the State’s questions violate the confrontation clause. We note that the State may introduce as an exhibit various writings, without breaching the confrontation clause, even though the content of the writing inculpates the accused. Miller v. Stovall, 742 F.3d 642 , 651 (6th Cir. 2014); State v. Price, 154 Wn. App. 480 , 491, 228 P.3d 1276 (2009). In State v. Thomas H., 101 Conn. App. 363 , 369-70, 922 A.2d 214 (2007), the reviewing court found no confrontation clause violation when the trial court permitted a child victim to provide a written answer to a question asked by the state on direct examination in a sexual assault trial, which question asked what happened after defendant ordered her to get in bed with him. The writing of the response occurred in the presence of the defendant during trial, and defendant was given the opportunity to cross-examine the victim regarding the response. ER 611(a) provides: The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment. This rule impliedly grants the trial court authority to permit a witness to answer a question in writing to prevent embarrassment and to effectuate ascertainment of the truth. 11 No. 36001-6-III State v. Huezo A girl could understandably be embarrassed when asked to describe a man’s penis. The court also possessed the authority to permit some written answers from Bonnie after she had sat in the witness stand for twenty-five minutes and encountered difficulty answering. Evidence of Sexual Morality and Decency Juan Luna Huezo next asserts that the trial court erred by excluding evidence of his sexual morality and decency. He argues that the trial court applied the wrong analysis when requiring a foundation to establish a community perception of morality. We review the trial court’s ruling on admissibility of evidence for abuse of discretion. State v. Woods, 117 Wn. App. 278 , 280, 70 P.3d 976 (2003). Generally, evidence of a person’s character is inadmissible, but a criminal defendant may present evidence of a “pertinent trait of character.” ER 404(a)(1). In cases involving sexual offenses, sexual morality is a pertinent character trait. State v. Woods, 117 Wn. App. at 280; State v. Harper, 35 Wn. App. 855 , 859-60, 670 P.2d 296 (1983). ER 405 controls the methods of proving a person’s character. The rule declares: (a) Reputation. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation. On cross examination, inquiry is allowable into relevant specific instances of conduct. (Emphasis added.) Although the rule does not state that inquiry into a person’s character shall be by testimony to reputation, Washington follows the traditional common law rule 12 No. 36001-6-III State v. Huezo that proof of character is limited to testimony concerning reputation. Rule 405. Methods of Proving Character, 5D KARL B. TEGLAND, WASHINGTON PRACTICE: COURTROOM HANDBOOK ON WASHINGTON EVIDENCE ER 405 author’s cmt. 405:1 (2020 ed.). One cannot express a personal opinion as to a witness’s veracity. State v. Woodard, 26 Wn. App. 735 , 738, 617 P.2d 1039 (1980). A party seeking to admit evidence bears the burden of establishing a foundation for that evidence. State v. Land, 121 Wn.2d 494 , 500, 851 P.2d 678 (1993). One Washington Court of Appeals case stands for the proposition that, in order to offer reputation testimony, a witness must lay a foundation establishing that he or she bases the subject’s reputation on perceptions in the community. State v. Thach, 126 Wn. App. 297 , 315, 106 P.3d 782 (2005), overruled on other grounds by State v. Case, 13 Wn. App. 2d 657, 466 P.3d 799 (2020). A Washington Supreme Court decision reads that, to establish a valid community, the party seeking to admit the reputation evidence must show that the community is both neutral and general. State v. Land, 121 Wn.2d 494 , 500 (1993). ER 405 does not limit the reputation to the person’s residential neighborhood. The witness can testify to a reputation among business associates or coworkers. State v. Land, 121 Wn.2d 494 , 500-01 (1993); State v. Callahan, 87 Wn. App. 925 , 936, 943 P.2d 676 (1997). Nevertheless, as already stated, to be admissible, the reputation must exist within a “neutral and generalized community.” State v. Gregory, 158 Wn.2d 759 , 805, 147 P.3d 1201 (2006), overruled on other grounds by, State v. W.R., Jr, 181 Wn.2d 757 , 13 No. 36001-6-III State v. Huezo 336 P.3d 1134 (2014); State v. Callahan, 87 Wn. App. at 934. Reputation among a limited group of persons may not accurately reflect the witness’s general character for truthfulness. Rule 405. Methods of Proving Character, 5D TEGLAND, supra, ER 405 author’s cmt. 405:2. A person’s reputation among members of a family is inadmissible. State v. Thach, 126 Wn. App. 297 , 315. A “family is not ‘neutral enough [and] generalized enough to be classed as a community.’” State v. Thach, 126 Wn. App. at 315 (alteration in original); State v. Lord, 117 Wn.2d 829 , 874, 822 P.2d 177 (1991). In State v. Gregory, 158 Wn.2d 759 , 805, 147 P.3d 1201 (2006), the Supreme Court affirmed the trial court’s exclusion of testimony of the victim’s family members as to the victim’s reputation of honesty among family. The Washington Supreme Court noted: First, the inherent nature of familial relationships often precludes family members from providing an unbiased and reliable evaluation of one another. In addition, the “community” with which Larson had discussed R.S.’s reputation included only two people, Larson and R.S.’s sister. Any community comprised of two individuals is too small to constitute a community for purposes of ER 608. State v. Gregory, 158 Wn.2d at 805 . Juan Luna Huezo argues that the trial court erred because the court focused on his reputation rather than on whether the trait of sexual morality was pertinent to the underlying crimes. He contends that laying a foundation for community perception is not required to introduce evidence of sexual decency. He relies on State v. Woods, 117 Wn. 14 No. 36001-6-III State v. Huezo App. 278 (2003) and State v. Griswold, 98 Wn. App. 817 , 991 P.2d 657 (2000), abrogated on other grounds by State v. DeVincentis, 150 Wn.2d 11 , 74 P.3d 119 (2003). Neither case stands for this proposition. In both decisions, this court affirmed the exclusion of testimony of the accused’s decency because of the failure to properly proffer reputation testimony. Juan Luna Huezo wished for his ex-wife, his daughter, and his two sisters-in-law to testify to his reputation for sexual morality. With offers of proof, Luna Huezo only qualified a sister-in-law with any knowledge of any reputation for sexual decency. This relative, Nancy Morales Enriquez, based Luna Huezo’s reputation solely on family or holiday gatherings. Thus, the reputation was not formed within a generalized and neutral community. Sufficiency of Evidence Juan Luna Huezo asserts that the State presented insufficient evidence to convict him of any of the three charges. In so arguing, he emphasizes that Tammy and Bonnie uttered conflicting statements about the alleged crimes and that Dr. Shannon Phipps found no physical evidence during Tammy’s exam to support the allegations of sexual misconduct. When reviewing a challenge to the sufficiency of evidence, we must determine, whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Green, 94 Wn.2d 216 , 221, 616 P.2d 628 (1980). 15 No. 36001-6-III State v. Huezo The jury convicted Juan Luna Huezo of one count of rape of a child in the first degree, for conduct against Tammy, and two counts of child molestation in the first degree, one count each against Tammy and Bonnie. For the count of rape and child molestation of Tammy, the jury found the aggravating circumstance of an ongoing pattern of sexual abuse. For all three counts, the jury found the aggravating circumstance of breach of a position of trust. RCW 9A.44.073(1) governs rape of a child in the first degree. The statute declares: A person is guilty of rape of a child in the first degree when the person has sexual intercourse with another who is less than twelve years old and not married to the perpetrator and the perpetrator is at least twenty-four months older than the victim. RCW 9A.44.010(1) defines “sexual intercourse” for purposes of sex offenses: ‘Sexual Intercourse’ (a) has its ordinary meaning and occurs upon any penetration, however slight. . . . Tammy, the victim of the rape charge, testified that Juan Luna Huezo placed his penis next to her vagina in his bedroom and in a vehicle. More importantly, she averred that Luna Huezo put his penis in her mouth. She was eleven years old when the act occurred. Tammy has never been married to Luna Huezo. Luna Huezo was more than twenty-four months older than Tammy. Thus, the State presented evidence to fulfill all elements of the crime of rape of a child. 16 No. 36001-6-III State v. Huezo RCW 9A.44.083(1) governs child molestation in the first degree. The statute reads: A person is guilty of child molestation in the first degree when the person has, or knowingly causes another person under the age of eighteen to have, sexual contact with another who is less than twelve years old and not married to the perpetrator and the perpetrator is at least thirty-six months older than the victim. RCW 9A.44.010(2) defines “Sexual contact” as: ‘Sexual contact’ means any touching of the sexual or other intimate parts of a person done for the purpose of gratifying sexual desire of either party or a third party. Tammy, the victim of one of the counts child molestation, declared, during her testimony, that Juan Luna Huezo made sexual contact with her on several occasions. As already indicated, Tammy was under twelve years old and more than thirty-six months younger than Luna Huezo at the time of the sexual misconduct. Thus, the State presented sufficient evidence to convict on count 2. Bonnie, the alleged victim of count 3, testified that, on one occasion, Juan Luna Huezo touched her private area and moved his fingers around. Bonnie was then ten years old. She has never married Luna Huezo. Luna Huezo was at least thirty-six months older than Bonnie. Thus, the State presented sufficient evidence to convict on count 3. RCW 9.94A.535 lists the relevant aggravating circumstances of an ongoing pattern of sexual abuse and a position of trust: 17 No. 36001-6-III State v. Huezo Except for circumstances listed in subsection (2) of this section, the following circumstances are an exclusive list of factors that can support a sentence above the standard range. .... (g) The offense was part of an ongoing pattern of sexual abuse of the same victim under the age of eighteen years manifested by multiple incidents over a prolonged period of time. .... (n) The defendant used his or her position of trust, confidence, or fiduciary responsibility to facilitate the commission of the current offense. RCW 9.94A.535(3)(g) and (n). The State presented sufficient evidence to support the aggravating circumstances findings. Juan Luna Huezo sexually abused Tammy on multiple occasions over the course of years. Luna Huezo was the stepfather to Tammy and Bonnie when he engaged in the criminal behavior. He thus used his position of trust to facilitate the crimes. Juan Luna Huezo highlights that Tammy told his attorney that her mother was present in the home at the Hawaiian Village apartment thirty times when he sexually touched her. Tammy also told defense counsel that Luna Huezo touched her fifty-eight times at the apartment, twenty times at Niashia Morales Enriquez’s residence, and thirty times at the Steptoe house. Tammy, during trial testimony, significantly limited the number of times of molestation. Luna Huezo further highlights that Tammy and Bonnie, at one point in their respective testimony, each testified that nothing happened or that they could not remember what happened. 18 No. 36001-6-III State v. Huezo Despite occasional and understandable difficulty in testifying, both Tammy and Bonnie identified and described occasions when Juan Luna Huezo sexually touched them. We have already repeated some of that testimony. Inconsistent testimony of a witness does not equate to insufficient evidence. State v. West, 2017-Ohio-4055 , 91 N.E.3d 365 , 376. Although the State need not have presented evidence beyond the children’s testimony to convict Juan Luna Huezo, circumstantial evidence bolstered Tammy’s accusations. According to Tammy, Luna Huezo used a condom he obtained from a backpack, which police later found in that backpack. She also stated that he used oil on his penis, which he admitted to using during sexual activities. Tammy described an occasion when Luna Huezo duct-taped her hands, and police found duct tape and zip ties in his backpack. Finally, Tammy testified that she confronted Luna Huezo about abusing Bonnie, to which he admitted. Juan Luna Huezo next challenges the sufficiency of evidence due to Dr. Shannon Phipps’ examination of Tammy uncovering no physical evidence in support of sexual contact. Nevertheless, Dr. Phipps explained that the lack of medical evidence does not rule out rape or molestation. Luna Huezo cites this court no case law supporting the proposition that the State must present medical testimony of physical injury in order to convict an accused of rape. The law is to the contrary. State v. Boyd, 84 N.M. 290 , 502 P.2d 315 , 317 (Ct. App. 1972). 19 No. 36001-6-III State v. Huezo STATEMENT OF ADDITIONAL GROUNDS Juan Luna Huezo raises numerous issues in a statement of additional grounds (SAG). We discuss and reject each ground. Opinion Testimony Regarding Victim Credibility Juan Luna Huezo asserts that the State elicited opinion testimony from him that created an inference that he vouched for the credibility of Tammy and Bonnie. He argues that the trial court erred by allowing the State to engage in prosecutorial misconduct by violating the motion in limine. Prosecutorial misconduct “requires a new trial only if the misconduct was prejudicial.” State v. Stith, 71 Wn. App. 14 , 19, 856 P.2d 415 (1993). Such misconduct is prejudicial when “there is a ‘substantial likelihood’ that the misconduct ‘affected the jury’s verdict.’” State v. Stith, 71 Wn. App. at 1-9 . Cross-examination “designed to compel a witness to express an opinion as to whether other witnesses were lying constitutes misconduct.” State v. Stith, 71 Wn. App. at 18 . During the cross-examination, the State asked Juan Luna Huezo: Isn’t it true during that interview you told Detective Santoy that [Tammy] would never lie about anything this serious; isn’t that true? RP at 401. The trial court overruled an objection to the question and later permitted the State’s attorney to ask whether he made a similar statement about Bonnie. 20 No. 36001-6-III State v. Huezo Juan Luna Huezo presents the court no authority that the State may not question the accused about statements he uttered to another regarding the truthfulness of the victim. Regardless, we find no prejudice in the questions and answer because of the overwhelming evidence, including circumstantial evidence, of the crimes and Luna Huezo’s concession to Tammy of the abuse of Bonnie. Right to Remain Silent Juan Luna Huezo argues that the State extensively commented on his right to remain silent and thus committed misconduct by using his silence as substantive evidence of guilt. Luna Huezo did not object to any purported misconduct during trial. A defendant waives a claim of prosecutorial misconduct when failing to object to the conduct during trial, unless he or she demonstrates that the “misconduct was so flagrant and ill intentioned that an instruction would not have cured the prejudice.” In re the Personal Restraint of Glasmann, 175 Wn.2d 696 , 704, 286 P.3d 673 (2012). The State may not use a defendant’s silence as substantive evidence of guilt. State v. Burke, 163 Wn.2d 204 , 206, 181 P.3d 1 (2008). When cross-examining Juan Luna Huezo about his comments about the hygiene of Tammy, the prosecutor asked or commented: “This is the first we’re hearing about all this; Isn’t that true?” RP at 399. During summation, the prosecuting attorney remarked: He waited an entire year to now tell his side. Didn’t tell it that day. Maybe he’s had some time to think about it. 21 No. 36001-6-III State v. Huezo RP at 464. We agree that the questioning and closing remarks at least indirectly criticized Juan Luna Huezo for remaining silent before trial. Nevertheless, we do not find any misconduct flagrant or prejudicial because of the overwhelming evidence of guilt. Shift of Burden of Proof Juan Luna Huezo contends that the State improperly shifted the burden of proof to him. He references the prosecuting attorney remarks during summation: [Luna Huezo] took the stand and he told you, . . . [t]hat there is also this thing that happened the morning of 2-8 where [Tammy] witnessed him pulling [Bonnie’s] hair. . . . And something about Tammy not wiping herself. You know what’s interest? Think about this. No question was ever asked of Kelly about any of that. Huh. Don’t you think that’s weird? No question was asked of [Bonnie] about any of that. None of that was mentioned in opening statement. Why is that? Because it only came in through him. Nobody else was asked about any of that. Think about that. Why? Because it’s not true. RP at 463-64. During closing argument, the prosecution may not suggest that the burden of proving innocence rests with the defendant. State v. Thorgerson, 172 Wn.2d 438 , 453, 258 P.3d 43 (2011). Nevertheless, a prosecutor holds wide latitude to argue reasonable inferences from the evidence. State v. Thorgerson, 172 Wn.2d at 453 . The prosecutor may attack the credibility of the accused. State v. Berube, 171 Wn. App. 103 , 117, 286 22 No. 36001-6-III State v. Huezo P.3d 402 (2012). By attacking Juan Luna Huezo’s credibility, the State did not shift the burden of proof. Ineffective Assistance of Counsel Juan Luna Huezo argues that he received ineffective assistance of counsel due to defense counsel’s failure to (1) withdraw, (2) cross-examine and impeach witnesses, and (3) move for dismissal for spoliation of evidence. To prevail on a claim of ineffective assistance of counsel, the accused must show that defense counsel’s representation was deficient and the deficient representation prejudiced him. State v. Estes, 193 Wn. App. 479 , 488, 372 P.3d 163 (2016), aff’d 188 Wn.2d 450 , 395 P.3d 1045 (2017). Prejudice exists if there is a reasonable probability that, except for counsel’s errors, the result of the proceeding would have differed. State v. Estes, 193 Wn. App. at 488. Juan Luna Huezo argues that defense counsel should have withdrawn as counsel after suffering the tragic death of his niece during the trial and because of other family deaths preceding trial. In response to the niece’s death, the trial court granted a one-day recess in order to give counsel a chance to rest before proceeding further with trial. Counsel stated that a brief continuance would be sufficient. Counsel tragically lost three siblings to cancer in the thirteen months prior to his niece’s death. Nevertheless, the record does not evidence that any of these tragedies impacted defense counsel’s ability to represent Luna Huezo during trial. RPC 1.16 provides: 23 No. 36001-6-III State v. Huezo (a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall, notwithstanding RCW 2.44.040, withdraw from the representation of a client if: .... (2) the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client. No evidence supports the violation of this rule of ethical conduct. Juan Luna Huezo argues that his trial counsel’s failure to cross-examine Bonnie and to impeach Tammy with her prior inconsistent statement prejudiced him. Generally, courts entrust cross-examination techniques to the professional discretion of counsel. In re Personal Restraint of Davis, 152 Wn.2d 647 , 720, 101 P.3d 1 (2004). In determining a claim of ineffective cross-examination of a witness, a court need not determine why trial counsel did not cross examine if that approach falls within the range of reasonable representation. In re Personal Restraint of Davis, 152 Wn.2d at 720 . Luna Huezo’s counsel may have deemed that the testimony of the victims by itself raised questions of their credibility, that cross-examining the victims more would have obtained no additional helpful information, and that a cross-examination of young girls might dismay the jury. Finally, Juan Luna Huezo maintains that his trial counsel should have moved for dismissal in response the State’s failure to preserve the zebra blanket. The zebra blanket was at most potentially useful, not exculpatory, evidence. Luna Huezo allegedly used 24 No. 36001-6-III State v. Huezo this blanket to silence Tammy by stuffing it into her mouth. Detective Santoy decided not to preserve the blanket or test it for DNA because of its access to numerous children. Due process requires the State to disclose material exculpatory evidence to the defense and to preserve such evidence for use by the defense. State v. Donahue, 105 Wn. App. 67 , 77, 18 P.3d 608 (2001). Failure to preserve potentially useful evidence does not constitute a denial of due process unless a criminal defendant can show bad faith on the part of the State. State v. Donahue, 105 Wn. App. at 78. Juan Luna Huezo does not show bad faith or that the blanket would have advanced his defense. Cumulative Error Juan Luna Huezo argues that the combined effect of the aforementioned errors denied him a fair trial under the cumulative error doctrine. The cumulative error doctrine may warrant reversal, even if each error standing alone would otherwise be considered harmless. State v. Weber, 159 Wn.2d 252 , 279, 149 P.3d 646 (2006). The doctrine does not apply when the errors are few and have little or no effect on the outcome of the trial. State v. Weber, 159 Wn.2d 252 , 279 (2006). Assuming any errors in Juan Luna Huezo’s trial, we deem any errors minimal and harmless. CONCLUSION We affirm Juan Luna Huezo’s three convictions. 25 No. 36001-6-III State v. Huezo A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040. _________________________________ Fearing, J. WE CONCUR: ______________________________ Korsmo, A.C.J. ______________________________ Lawrence-Berrey, J. 26

2020-12-01 17:00:18.914231+00

https://ecf.ca8.uscourts.gov/opndir/20/12/193418P.pdf

United States Court of Appeals For the Eighth Circuit ___________________________ No. 19-3418 ___________________________ United States of America lllllllllllllllllllllPlaintiff - Appellee v. Tanesha Holder, also known as Tanesha Renee Holder lllllllllllllllllllllDefendant - Appellant ____________ Appeal from United States District Court for the Southern District of Iowa - Davenport ____________ Submitted: September 21, 2020 Filed: December 1, 2020 ____________ Before LOKEN, SHEPHERD, and ERICKSON, Circuit Judges. ____________ LOKEN, Circuit Judge. In 2008, Tanesha Holder pleaded guilty to conspiracy to distribute at least 50 grams of cocaine base in violation of 21 U.S.C. §§ 841 (b)(1)(A), 846. She now appeals an order denying a motion to reduce her sentence pursuant to Section 404 of the First Step Act of 2018. Pub. L. No. 115-391, § 404, 132 Stat. 5194 , 5222 (2018). Section 404(b) provides that, if the statutory penalty for an offense was modified by section 2 or 3 of the Fair Sentencing Act of 2010 (Pub. L. No. 111-220, 124 Stat. 2372 ), the district court may “impose a reduced sentence as if sections 2 and 3 . . . were in effect at the time the covered offense was committed.” The Fair Sentencing Act increased from 50 to 280 grams the minimum quantity of cocaine base that calls for a sentence mandated by § 841(b)(1)(A). Thus, as the government now concedes, Holder is eligible for First Step Act relief. See United States v. Banks, 960 F.3d 982 , 984 (8th Cir. 2020); United States v. McDonald, 944 F.3d 769 , 771 (8th Cir. 2019). Most of Holder’s arguments on appeal were rejected in our recent decisions resolving First Step Act issues. However, we agree with her contention that the district court erred in determining her amended guidelines sentencing range under the Fair Sentencing Act. As the record does not permit us to determine whether this error was harmless under the Supreme Court’s rigorous standard governing procedural Guidelines errors, we remand for resentencing. See United States v. Harris, 908 F.3d 1151 , 1155-56 (8th Cir. 2018). As part of her plea, Holder admitted responsibility for at least 1.5 kilograms of cocaine base. The PSR, which the district court adopted, attributed a much larger quantity to Holder. The district court determined that Holder’s advisory guidelines sentencing range was 360 months to life imprisonment because the guidelines range was greater than her career offender range. But the court varied downward, sentencing Holder to 300 months imprisonment, because “the Guideline sentencing system inadequately addresses the circumstances of this defendant, making the sentencing range substantively unreasonable.” In 2010, Holder moved for a reduced sentence under 18 U.S.C. § 3582 (c)(2), arguing that, under a retroactive amendment to the Guidelines, her “current sentence . . . is greater than the maximum established in the revised guideline range of the Fair Sentencing Act.” The district court denied a reduction: “Because this defendant did not receive a sentence within her applicable guideline range and because she received a variance to a sentence that is consistent with her amended -2- sentencing guideline range, the court concludes that she is not entitled to further relief.” However, in December 2014, the district court sua sponte reduced Holder’s sentence to 292 months under § 3582(c)(2) in response to USSG Amendment 782. The order recited that Holder’s amended guideline range was 292 to 365 months and explained that, because she received a variance when originally sentenced, the court could not “reduce the defendant’s term of imprisonment . . . to a term that is less than the minimum of the amended guideline range.” USSG § 1B1.10(b)(2)(A). In February 2019, the district court referred Holder’s pending pro se motion for First Step Act relief to the Federal Public Defender’s Office. In May, the court sent the parties a proposed order reducing supervised release to eight years, but otherwise denying relief. Holder objected to the calculation of the revised Amendment 782 guideline calculation, urged the court to resentence her under the career offender guidelines, with a comparable variance, and requested an opportunity to brief the issue. On October 30, the court denied relief, without resolving the amended guidelines range issue, because: Drug quantity and criminal history, among other things, drove the defendant’s sentencing guideline range and sentencing. . . . Her sentence has never been based upon or informed by the 240 month mandatory minimum term of incarceration applicable at the time of her original sentencing. In her plea agreement, the defendant admitted to responsibility for more than 1.5 kilograms of crack cocaine, more than five times the amount necessary to trigger a mandatory minimum term . . . of ten years after the Fair Sentencing Act of 2010. On appeal, Holder argues the district court erred by misapprehending its broad First Step Act discretion to grant a sentence reduction, and by failing to consider an expansive array of factors relevant to exercise of that discretion, including the 18 U.S.C. § 3553 (a) factors. These arguments are foreclosed by our recent decisions, including United States v. Booker, 974 F.3d 869 (8th Cir. 2020); United States v. -3- Hoskins, 973 F.3d 918 (8th Cir. 2020); United States v. Moore, 963 F.3d 725 , 727 (8th Cir. 2020); and United States v. Banks, 960 F.3d 982 , 985 (8th Cir. 2020). The First Step Act permits but “does not mandate that district courts analyze the section 3553 factors for a permissive reduction in sentence.” Hoskins, 973 F.3d at 921. So long as the record reveals that the district court “expressly recognized and exercised its discretion,” it need not “make an affirmative statement acknowledging its broad discretion under Section 404.” Booker, 974 F.3d at 871, citing Banks, 960 F.3d at 985. The standard for our review is whether the district court “set forth enough to satisfy the appellate court that he has considered the parties’ arguments and has a reasoned basis for exercising [its] own legal decisionmaking authority.” Id., quoting Rita v. United States, 551 U.S. 338 , 356 (2007); see Moore, 963 F.3d at 728. It has done so here, stating that it was denying First Step Act relief because “drug quantity and criminal history” motivated the original sentencing decision, rather than the mandatory minimum penalty modified by the Fair Sentencing Act. Holder’s assertion that the court did not actually exercise discretion is without merit. See Hoskins, 973 F.3d at 921. Holder’s contention that the district court committed substantial procedural error by miscalculating her revised Amendment 782 sentencing guideline range requires a closer look. When the district court sua sponte reduced Holder’s sentence to 292 months in 2014, it properly applied 18 U.S.C. § 3582 (c)(2) and USSG § 1B1.10 because the Fair Sentencing Act, enacted in 2010, did not retroactively apply to Holder’s 2008 sentence. See Dorsey v. United States, 567 U.S. 260 (2012). Applying retroactive Guidelines Amendment 782, the court’s order declared that Holder’s amended guideline range was 292-365 months, based on an amended total offense level of 35. The total offense level of 35 was predicated on base offense level 36, which applies to at least 8.4 kilograms but less that 25.2 kilograms of cocaine base. See -4- USSG § 2D1.1(c). The PSR had attributed 8.95 kilograms to Holder. But in denying § 3582(c)(2) relief in 2012, the district court found that “the record does not currently support a finding of more than 4.5 kilograms of crack cocaine attributable to this defendant.” Building on that finding to support a First Step Act reduction, Holder argued to the district court and on appeal that 4.5 kilograms of cocaine base falls within base offense level 34, which results in an amended guideline range of 240-293 months (because of the 20 year mandatory minimum), yielding a revised Amendment 782 range of 262-327 months determined under the career offender provisions. See USSG § 4B1.1(b). The government’s response to this argument is incoherent, leading us to suspect the government agrees with Holder’s guidelines recalculation but is unwilling to admit it. The district court’s Order denying First Step Act relief acknowledged but did not address the merits of this issue: Pursuant to the First Step Act, the defendant requests that the court reconsider its 2014 ruling pursuant to Guideline amendment 782, sentence the defendant pursuant to the career offender sentencing guidelines and impose a variance from those guidelines . . . . The relief requested by the defendant is more than that contemplated by the retroactive relief of the Fair Sentencing Act granted by the First Step Act. If the First Step Act were found to permit the relief requested by the defendant, the court would exercise its discretion to decline such relief. We disagree with the court’s conclusion that correcting an erroneous determination of Holder’s revised Amendment 782 guideline range “is more than that contemplated” by the First Step Act’s grant of retroactive Fair Sentencing Act relief. The First Step Act directs the court to consider a Section 404 motion “as if sections 2 and 3 of the Fair Sentencing Act . . . were in effect at the time the covered offense was committed.” Amendment 782 modified the determination of a defendant’s advisory guidelines range to reflect the Fair Sentencing Act’s amendment of the minimum statutory penalties. See USSG App. C at 66-68 (Supp. 2018). When a -5- defendant such as Holder is eligible for Section 404 relief, the First Step Act requires the court to determine the amended guidelines range before exercising its discretion whether to grant relief. A mistake in that determination, like any other guidelines mistake, is procedural error. The question remains whether the court’s error in calculating the Fair Sentencing Act amended guidelines range is harmless. That is not an easy question. On the one hand, the district court gave strong reasons to deny a First Step Act reduction, adding that it would deny relief “[i]f the First Step Act were found to permit the relief requested by the defendant.” On the other hand, if Holder’s recalculation is correct (an issue we leave for the district court on remand), then her amended range becomes 262-327 months, rather than 292-365 months. The court granted a substantial variance initially because “the Guideline sentencing system inadequately addresses the circumstances of this defendant.” In 2014, it sua sponte granted an Amendment 782 reduction to the bottom of an amended range that may have been erroneously determined. If the court were to address the issue and determine that the correct amended range is 262-327 months under the First Step Act, we cannot say with confidence that this would not affect the court’s discretionary ruling. The Supreme Court has cautioned: “When a defendant is sentenced under an incorrect Guidelines range -- whether or not the defendant’s ultimate sentence falls within the correct range -- the error itself can, and most often will, be sufficient to show a reasonable probability of a different outcome absent the error.” Molina- Martinez v. United States, 136 S. Ct. 1338 , 1345 (2016) (emphasis added). The Court reinforced that caution in Rosales-Mireles v. United States, 138 S. Ct. 1897 , 1907 (2018). The harmless error issue is fact-intensive, and the Court has recognized that some Guidelines errors may in fact be harmless. But “[w]e read Molina-Martinez and Rosales-Mireles as strongly cautioning courts of appeals not to make . . . assumptions . . . as to what the district court might have done had it considered the correct -6- Guidelines range.” Harris, 908 F.3d at 1156. Without intending to constrain the district court’s exercise of its First Step Act discretion, we conclude such caution is appropriate here and therefore remand to permit the court to further consider this issue. The Order of the district court dated October 30, 2019, is vacated and the case is remanded for such further proceedings as the district court may find appropriate. ______________________________ -7-

2021-01-26 19:02:35.495963+00

https://www.courts.ca.gov/opinions/nonpub/E076082.PDF

Filed 1/26/21 B.P. v. Superior Court CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS 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 FOURTH APPELLATE DISTRICT DIVISION TWO B.P., Petitioner, E076082 v. (Super.Ct.No. RIJ900163) THE SUPERIOR COURT OF OPINION RIVERSIDE COUNTY, Respondent; RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Real Party in Interest. ORIGINAL PROCEEDINGS; petition for extraordinary writ. Cheryl C. Murphy, Judge. Petition denied. David Goldstein for Petitioner. No appearance for Respondent. Gregory P. Priamos, County Counsel, James E. Brown, Anna M. Marchand and Prabhath D. Shettigar, Deputy County Counsel for Real Party in Interest. 1  Petitioner B.P. (Mother) has filed a petition for extraordinary writ pursuant to California Rules of Court, rule 8.452. Mother claims that the juvenile court erred in terminating reunification services and in setting a hearing under Welfare and Institutions Code1 section 366.26 because Mother was not afforded or offered reasonable services. For the reasons set forth below, we deny Mother’s writ petition. FACTUAL AND PROCEDURAL HISTORY On March 29, 2019, the Riverside County Department of Public Social Services (the Department) filed a section 300 petition on behalf of M.G. (Minor; a girl born August 2011). Minor was placed in foster care. Minor’s father is deceased. On March 15, 2019, the Department received a physical and general neglect referral. The social worker tried to meet with Minor at her school but Minor had been absent the past two days. The assistant principal told the social worker that they had been concerned about Minor’s behavior for some time. Minor had been “twerking,” hitting, and choking other students. Although the school referred Minor to counseling, Mother failed to follow through on getting Minor to counseling. When the social worker called Mother, she refused to meet the social worker. Mother also would not allow the social worker to see or speak to Minor that day. On March 21, 2019, the social worker met with Minor at her school. Minor appeared free of any visible marks or bruises. Minor told the social worker that her Mother tried to hit her with a vacuum cord that morning because Minor needed help 1 All further statutory references are to the Welfare and Institutions Code unless otherwise specified. 2 putting her shoes on. When Minor cried, Mother hit Minor with a “house shoe.” Minor stated that Mother “hits me, slaps me . . . she’ll punch me in the mouth, slap me dead in the face.” Minor told the social worker that Mother went to jail for hitting and punching the maternal grandmother (MGM). Minor also stated that Mother stabbed Minor’s father with a knife and scissors in the back. Additionally, Minor told the social worker that Mother sometimes used drugs; she described how the drugs looked and smelled. Minor also stated that Mother “drinks alcohol and acts crazy. She shakes me, wakes me up in the middle of the night. She is drunk. I don’t like it when she drinks.” Minor stated that Mother did not treat her right. Mother did not take her to the dentist; Minor showed the social worker her teeth, which were brown and rotten. Regarding the incident that led to the referral, Minor stated that Mother punched her in the eye twice. MGM was present. On March 21, 2019, the social worker met with a relative; Mother had threatened to kill the relative if she called the police or child protective services. Mother’s friends had contacted the relative to report Mother’s drug use. The relative reported that Mother woke Minor up in the middle of the night to threaten her with violence. Minor had told the relative that she wanted to kill herself in the past. On March 25, 2019, the social worker contacted MGM. MGM stated that she would file for guardianship of Minor by March 28, 2019. On March 26, MGM contacted the social worker and told her she did not feel comfortable filing for guardianship 3 because Mother lived in the home. MGM stated, “I am scared [Mother] is going to do something to me if I file for guardianship.” On March 25, 2019, the social worker and an officer approached and spoke with Mother. However, “[a] full global assessment was not completed due to [Mother’s] unwillingness to participate.” Mother denied hitting Minor and using drugs. The social worker requested that Mother drug test and also offered a list of service referrals; Mother declined the referrals and did not drug test. The Department scheduled a “Child Abuse and Neglect” examination for Minor. Mother did not make Minor available for the exam. On March 28, 2019, MGM called the social worker frantic and crying; she stated that Mother came home the night prior without Minor. Mother was contacted but she refused to disclose the location of Minor. Mother stood close to the officer’s face and swore at the officer but the officer was able to deescalate the situation and Mother provided Minor’s location. The social worker met Minor and she appeared fine. Mother agreed to an oral drug test; the test was invalid because Mother could not produce enough saliva. Mother agreed to an on-demand urine test but failed to show for the test and when the social worker tried to call Mother the phone was disconnected. Minor was taken into protective custody. According to the detention report, Mother had past child welfare history from 2016 to 2018. All the allegations were determined to be unfounded. In September of 2018, the Department investigated a general neglect and physical abuse referral. Although Mother admitted that she “whoop[ed]” Minor, Minor appeared well taken care 4 of by her maternal grandparents. Minor stated she felt safe at the home and did not have any marks or bruises. On April 2018, the Department received a general neglect and physical abuse referral. In October 2017, the Department received two general neglect referrals. The maternal grandfather (MGF) had obtained a restraining order and an immediate move-out order on Mother; Mother was arrested for refusing to comply. Mother also hit and argued with MGM. The referrals were unfounded because Minor felt safe with her maternal grandparents and they provided care for Minor. During these prior investigations, the Department provided the family with services. The services included counseling, drug testing, dental appointments, and transportation-assistance offers. On April 3, 2019, the Department filed an amended section 300 petition. In the amended petition, the Department alleged that: (1) Mother physically abused Minor (§ 300, subd. (b)(1); (2) Mother abused controlled substances (§ 300, subd. (b)(2); (3) Mother failed to benefit from preplacement preventive services including referrals to substance abuse treatment programs and testing, and failed to ensure Minor attended appointments (§ 300, subd. (b)(3); (4) Mother neglected the educational needs of Minor (§ 300, subd. (b)(4); and (5) Mother neglected Minor’s medical needs (§ 300, subd. (b)(5)). At the detention hearing on April 4, 2019, the juvenile court detained Minor from Mother. Mother denied the allegations in the first amended petition. The court ordered services for Mother including alcohol and drug testing, parent education, substance abuse treatment, counseling, and any others the Department deemed appropriate. Mother was 5 to submit to a hair follicle and urine testing. Mother was to have two supervised visits a week. As to Minor, the court directed she be scheduled for medical assessments, referred for counseling, and to be provided with tutoring as needed; and the Department was to attempt to keep Minor in her school of origin. The Department was to seek relative placement for Minor, and visitation with grandparents and extended relatives could occur as approved by the Department. An after-court visit was ordered for mother and extended family with Minor. A jurisdictional hearing was ordered for April 26, 2019, with Mother to appear without further notice. On April 22, 2019, the Department filed its jurisdiction/disposition report. The Department made seven unsuccessful attempts to meet Mother for the report. The social worker texted her, contacted the maternal grandparents, spoke to Mother and scheduled an appointment. Mother did not attend the appointment. MGM said Mother “is just one of those young adults that just didn’t need to have a child, she don’t love her or take time for her.” MGM has treated Minor as her own and planned to move into her own apartment so she can have Minor placed with MGM. In her forensic interview, Minor stated that Mother “whoops me with extension cords on all parts of my body and it hurts.” Minor also stated that Mother hits her all the time. Mother hits “with the cord form the iron, the comb, brush, and threatened me with the iron.” Minor had bruises on her body in the past. She also had not seen a dentist or doctor for a long time. Mother consumed substances that made her act up and say “weird” things. Minor was too tired to attend school because she “was up hanging out all 6 night” with Mother. The physical examination revealed severe dental decay, scars and abrasions on her body. Minor made statements regarding excessive physical discipline. The Department scheduled Minor for medical and dental appointments. Mother neither cooperated with the Department to schedule the appointments nor provided Minor’s medical and health information. Minor was referred for initial mental heath and medication support assessments and after-school tutoring. MGM agreed to hold Minor’s educational rights. Prior to a visit with Mother, Minor expressed fear and asked the social worker to be present. When Mother visited on April 15, 2019, she was disengaged from and did not talk to Minor, even with prompts form the visitation monitor. She declined to visit on April 9, 2019, and failed to confirm two other visits. At the jurisdiction hearing on April 25, 2019, the juvenile court ordered the RCAT interview to be released to the Department and that an addendum report be filed including the RCAT, mother’s “input,” and the status of Minor’s dental treatment. An after-court visit between Minor, Mother and MGF was also ordered. Thereafter, the court authorized visitation with MGF as approved by the Department. The court set a contested jurisdictional hearing for May 21, 2020. On May 17, 2019, the Department filed an addendum report, which indicated Mother had minimal progress in her case plan. Minor remained in foster care. Visits between Minor and Mother, and Minor and MGM continued to be supervised and at the discretion of the Department. Minor’s dental needs were being addressed, and the RCAT report had been provided to Department attorneys. 7  As to Mother, the social worker reported that Mother stated she had a “rough childhood” and did not have a good relationship with MGM. Mother did not have any medical conditions and denied taking medications. She admitted smoking marijuana but denied taking other substances. On April 20, 2019, the Department discussed concurrent planning with Mother. Mother was told that if she were offered services, she would have 12 months to complete her case plan because of Minor’s age but “if she failed to complete the services; the Department could recommend that services be terminated. A possible consequence is the termination of her parent rights, leading to the adoption or legal guardianship of [Minor].” Thereafter Mother agreed with participating in individual counseling, family counseling, anger management classes, and parenting classes. Substance abuse services would be evaluated once a urine analysis and hair follicle drug test were completed. On April 23, 2019, Mother completed her urine analysis drug test; she tested positive for marijuana. On April 26, 2019, Mother stated that no one had contacted her to conduct the hair follicle drug test. That same day, Mother had a two-hour supervised visit with Minor. The visit went well and there were no concerns noted. On May 3, 2019, Mother failed to attend a visit with Minor. Three days later, Mother contacted the social worker to update her contact information and to apologize for missing the visit. The social worker provided Mother with contact numbers so she could enroll in services, and contacted service providers to update Mother’s contact information. The referral for the hair follicle drug test was resubmitted. 8  On May 5, 2019, Mother participated in a 90 minute supervised visit with Minor; the visit went well with no reported concerns. On May 13, 2019, Mother told the social worker that she would start parenting classes on May 15, and the start dates for individual counseling and anger management were pending. In the addendum report, the social worker summarized that Minor was removed from Mother’s custody for physical abuse and severe medical neglect. Mother did not appear to understand that she should not use “objects” when “discipling” or “hitting” Minor. The social worker believed that this failure to understand placed Minor at substantial risk of continued physical abuse. The social worker worried that if Minor were returned to Mother without supervision, Mother would continue to physically abuse and neglect the medical and educational needs of Minor. Since the last court hearing, Mother had made minimal progress with accessing services to learn new skills. The social worker believed that Mother had some unresolved issues that occurred in her childhood—limiting her ability to parent. Minor stated, “I love my mom and I want to see my mom, but I do not want to live with my mom.” Therefore, the social worker recommended that the court find true the allegations alleged in the first amended petition. The social worker also recommended that Mother be offered family reunification services. At the jurisdictional hearing on May 21, 2019, the court found good cause to continue the hearing. 9  In the status review report filed November 21, 2019, the Department recommended that Minor remain a dependent, that family reunification services continue to Mother, and visitation between Minor continue as directed by the Department. The social worker reported that Mother, who was 32 years old at the time, lived with MGF and the maternal uncle (18 years old) in Riverside. Mother was not employed at the time. Mother only paid for her cell phone service of $60 per month; she did not pay for rent or utilities. Her social support was MGF. As to Minor, medical and dental examinations were completed. She was active and liked to play. Minor, however, started fighting with her foster sibling and became more difficult to redirect. Minor was having violent outbursts and temper tantrums when she did not get her way, and she “did not like to tell the truth.” On October 24, 2019, the social worker submitted a Wraparound referral; it was approved on October 30, 2019. Minor received mental health services and was waiting additional services. The social worker was working on relative placement with MGM. Minor and MGM had weekly supervised visits. During this reporting period, Mother missed five visits. During visits, the social worker had to redirect Mother on several occasions not to threaten Minor with bodily harm. The social worker heard Mother saying, “you listen to me or I’m going to hit you, don’t think just because they are here that you won’t get a wippin.” The social worker provided information regarding Mother’s participation in services for counseling, classes and psychological evaluations. The Department recommended services continue. Mother confirmed that she had all of her referrals but 10 she had not completed her individual counseling, parenting educational program, psychological evaluation, and her medication evaluation. Mother made minimal progress during the reporting period. The social worker noted Mother had poor insight about her triggers and why Minor was removed. Mother lacked logical thinking and took no responsibility for her actions that led to Minor’s removal. The social worker contacted Mother on a monthly basis to discuss Mother’s case plan compliance and current circumstances. On December 3, 2019, the Court ordered that a second dental assessment, placement with MGM, medication assessment, remedial tutoring, and special education continue to be pursued for Minor. Visits with mother were to continue as previously ordered. The court set a status review hearing under section 366.21, subdivision (f), for May 29, 2020. On May 19, 2020, the Department filed a status review report. The Department recommended Minor remain a dependent of the court and that family reunification services continue for Mother. Mother was still living with MGF and was unemployed. She had not completed her individual counseling, parenting or anger management classes. On March 22, 2020, Mother had contacted the Department to request her referrals again. On March 25, the social worker again provided Mother the referrals. Mother was placed on a waiting list for parenting and counseling services. She did make some progress and reached out to her service providers, such as completing a psychological evaluation with Dr. Garrett. Mother continued to lack insight into why Minor was removed from her care. The foster parents reported that Minor continued to 11 be difficult to redirect. She was diagnosed with ADHD and prescribed medication. Minor continued to have visits with Mother and MGM. Mother’s participation in face-to-face visits was sporadic. However, since the COVID-19 pandemic began, Mother and Minor participated in supervised phone contact once a week for an hour; these visits were appropriate. At the May 29, 2020, status review hearing, the court ordered the Department to provide Mother’s psychological evaluation to all counsel. The court ordered a referral for Minor to receive remedial tutoring and for Wraparound services to continue. The court set a contested review hearing under section 366.21, subdivision (f), for July 8, 2020. On July 2, 2020, the Department filed an addendum report recommending Minor remain a dependent of the court, reunification services for Mother be terminated, and to set a selection and implementation hearing. On June 1, 2020, Minor was placed in a different foster home. On June 8, 2020, the social worker reviewed Mother’s psychological evaluation from Dr. Garrett. Dr. Garrett diagnosed Mother with histrionic personality disorder with paranoid, narcissistic and turbulent features. He stated, “ ‘At this point [Mother] has not learned very much from having lost custody of her child for a whole year. She is still argumentative and angry towards the Department of Social Services and the Social Workers as well as her mother and seems to blame the situation on everyone but herself. I question whether she will benefit from psychotherapy and do not believe that she should have any extended amount of psychotherapy. I would say after six sessions that the counselor should report to the social worker and judge as to whether she is gaining any 12 capacity whatsoever to look at herself honestly and take any responsibility for her situation. If she does not seem able to do that, I think the psychotherapy should be terminated.” Dr. Garrett also went on to state that Mother should complete a parenting program to learn how to properly discipline Minor. Dr. Garrett stated that “[t]he great risk here is that if [Mother] is reunified with her daughter without true and sincere alteration in her attitudes that abuse will continue, and that [Minor] will begin to act out much more severe behavioral problems as she enters adolescence. At this point she has to prove a great deal to the Department of Social Services prior to being allowed more access to her child in her supervised weekly visits that she is currently allowed.” As to Minor, she received tutoring services and continued receiving services. On June 10, 2020, the social worker received a telephone call from Minor’s new foster mother regarding a video visitation between Minor and Mother. The foster mother observed Mother lying in bed with another woman smoking what appeared to be marijuana. Minor told Mother, “Mom you know I don’t like when you do that.” Minor presented as emotional and upset. The foster mother, therefore, ended the video visit. The social worker advised Mother that all subsequent visitation should take place over the telephone with no video until in-person visitations are resumed. When the social worker questioned Mother about the last video visit, Mother denied the events as reported by the foster mother. Minor, however, told the social worker that Mother was smoking during the call and she was mad at her mom for smoking “that stuff again.” Minor was doing well in her new placement. The foster parents and Minor were loving toward each other and the foster parents wanted Minor to stay with them long term. Minor stated that 13 she did not want to talk to Mother on the phone and expressed to the foster parents that she is afraid of Mother when she gets angry. The social worker, therefore, opined that the visitation should be at the discretion of Minor or held in a therapeutic setting.” At the hearing on July 8, 2020, the juvenile court directed the Department to determine if in-person or therapeutic visits were necessary; provide counsel with a complete psychological evaluation; and to provide an addendum report addressing Mother’s progress, visitation, the necessity of therapeutic treatment, and whether in- person visits were a detriment to Minor. The court continued the hearing to August 25, 2020. In the addendum report filed on August 20, 2020, the Department indicated there was no change in recommendations, family reunification services should be terminated as to Mother, and a section 366.26 hearing should be set. On July 20, 2020, Mother was given a new referral for anger management as requested by Mother. Mother was in the fourth week of her parenting program. She continued to have supervised telephone visits with Minor when Minor wished to do so; however, Minor had not wished to do so because of the last video visit The Wraparound team was assisting Minor to express her feelings and to encourage visitation with Mother, but then on July 27, 2020, during a video visitation, Mother asked Minor if she told the social worker if Mother smoked during the prior visitation. Mother seemed angry and Minor started to cry. She told Mother she did not tell the social worker, and the call ended. Afterwards, the caregiver told Minor that she had told the social worker about Mother’s smoking. On a visit on August 11, 2020, Mother was very apologetic, polite and loving to Minor. 14  As for the permanent plan, the social worker reported that MGM had not been approved yet for placement and had been in the hospital getting treatment for COVID-19. After her release from the hospital, she was under home quarantine. MGM had no contact with Minor after being diagnosed, but also did not visit with Minor prior to her hospitalization. The foster parents liked Minor and were thinking about providing permanency for Minor. They had grown to love Minor and stated, “she is a wonderful child. Yes, she has issues like every other child but they are manageable. [Minor] is easily redirected with Wrap[around] in the home. [Minor] is doing well.” As for Mother’s progress, Dr. Garrett had recommended Mother participate in a parenting program through MFI Recovery. When asked about the parenting program, Mother stated that MFI was not taking any referrals. The social worker called and inquired and was informed that MFI was taking referrals. Mother continued to exhibit inappropriate behavior during supervised video visits with Minor. Minor continued to progress well in her new placement. The foster parents were caring and loving toward Minor and wanted her to stay with them long term. Minor communicated with MGM and the Department was hopeful that MGM would be a certified placement for Minor shortly. Minor did not want to talk to Mother on the phone; the Wraparound team encouraged Minor to communicate with Mother. At the contested hearing on August 25, 2020, the court continued Mother’s reunification services. The court ordered the Department to assess for in-person visitation between Minor and Mother, to communicate with Mother’s parenting program provider and to provide a status update on Mother’s progress in therapy. The court also 15 ordered the Department to provide a status update on placement of Minor with MGM. The court set a permanency review hearing under section 366.22 for September 28, 2020, and ordered both Mother and Minor to appear. On September 15, 2020, the Department filed a section 366.26 18-month permanency review hearing report. In the report, the Department recommended Minor remain a dependent of the court, that family reunification services be terminated to Mother, and a selection and implementation hearing be scheduled. The Department also requested that visitation between Mother and Minor be once a month. Mother continued to reside with MGF and maternal uncle in Riverside, she was still unemployed, and she did not pay rent or utilities. The social worker noted that a search of the court website revealed a misdemeanor arrest warrant for Mother stemming from a charge to endanger/willfully harm a child in March 2019. Minor had become aggressive with the caregiver, had been fighting with the caregiver, and had become more difficult to redirect. The foster mother reported that Minor was having violent outbursts and temper tantrums, and that in late August, Minor blamed the foster mother as the reason Minor could not live with MGM. The social worker drove to the foster home and spoke with Minor in person. The social worker explained to Minor that she was unable to move in with MGM because there were “some things that [MGM] had to take [care] of first.” Minor stated she understood and that she would not become aggressive with the foster parent again. During this time, Minor continued to receive Wraparound services. On September 2, 2020, the social worker received another call from foster mother reporting that Minor was very aggressive and 16 assaultive, hit the foster mother, and bit an older foster sibling in the face. Minor also destroyed furniture and attempted to stab the foster mother with a pair of scissors. The foster mother called the Wraparound team. When Minor’s therapist conducted an assessment and tried to calm Minor down, her behavior only escalated as Minor tried to choke herself and hit the walls in the foster home. They decided that the foster mother should call the police because Minor was attempting to hurt herself. When the police arrived and spoke with Minor, Minor said she did not want to harm herself and attempted to wet the police with the water hose. The police told the foster mother that they were unable to help. The foster mother stayed with Minor in the front yard for three hours so she could calm down. When the social worker arrived at the foster home, she asked Minor about her behavior. Minor stated she did not know why she was acting out. The social worker stayed there for an hour. During this time, the foster mother gave a 14-day notice for a change of placement. With regard to her education, the social worker reported that Minor, although in the fourth grade, was performing at a kindergarten level. Minor was receiving services to help with her education. Minor had been participating in Wraparound services since October 2019. A family team meeting was held on September 4, 2020. The Wraparound team, the foster mother, Minor, the foster agency social worker, and the county social worker were present—“to try to salvage the placement.” The foster mother agreed to allow Minor to stay in her placement until a new foster placement was located. During the meeting, “the foster mother reported that [Minor] has become aggressive after visiting [MGM], stating, 17 ‘When [Minor] come[s] back from visiting [MGM], [Minor] is rude and does not want to follow directions. In addition, [Minor] says that [MGM] talks to [Minor] about living with her and discusses future placement” with MGM. As for the placement with MGM, the social worker spoke with MGM and “she reported that her home is not cleared through the Knott FFA because her roommate need a criminal exemption. In addition, [MGM] is employed during the day and would not be available to assist [Minor] with online learning.” As to Mother’s services, Mother informed the social worker that she completed her parenting classes on August 23, 2020. Mother, however, could not provide the parenting education certificate and stated that “the parenting program was a waste of her time and she didn’t care about the classes honestly.” As to individual counseling, Mother had her first appointment in August 2019 and her last appointment in September 2019. The social worker and Mother discussed individual counseling referrals again in March, April, May and June of 2020. Although Mother was given additional time, Mother failed to enroll in individual counseling. Mother continued to have supervised telephone calls with Minor when Minor wanted to talk to Mother; however, Minor did not want to speak with Mother on the phone after the video chat incident where Minor saw Mother smoking. The social worker opined that there was not a substantial possibility that Minor could return to the care of Mother by the next court date. Mother had not demonstrated that she had mitigated the circumstances that brought her before the court; Mother needed to enroll in individual counseling and complete her anger management program, and as 18 noted in current and prior reports, Mother displayed no remorse in her behavior that led to Minor’s removal. At the permanency review hearing on September 28, 2020, the juvenile court authorized conjoint counseling between Mother and Minor upon the recommendation of Minor’s therapist. The court extended visitation between Minor and MGM and continued Minor’s Wraparound services. The court set a contested section 366.26 review hearing for October 30, 2020. On October 22, 2020, the Department filed an addendum report recommending Minor remain a dependent of the court, that family reunification services be terminated as to Mother, that a section 366.26 selection and implemental hearing be calendared, that no visitation occur between Minor and Mother, and that visitation between Minor and MGM continue. On September 25, 2020, Minor was discharged from Loma Linda Behavioral Center after a five-day hospital visit where she was assessed for depression and angry outbursts. Minor was discharged with a prescription for Prozac for depression, Concerta for ADHD, and Melatonin for insomnia. On September 28, 2020, the court ordered an extended visit with MGM. On October 7, 2020, Minor had a medication evaluation with Dr. Nguyen with the Wraparound program. The doctor did not prescribe any psychotropic medication for Minor. Dr. Nguyen indicated Minor had stopped taking her medication since moving in with MGM because “she has not had any further symptoms since being in her new placement.” The Wraparound team was providing support to MGM. 19  MGM was in the process of being approved as a foster parent. She wanted to provide Minor with a permanent home. Minor “she loves living with [MGM] and there have been no concerns noted.” As to Minor’s education, MGM worked to reenroll Minor in her school of origin. MGM picked up the necessary forms and school supplies, requested for an Individual Educational Plan (IEP) meeting, and touched base with Minor’s previous teacher to seek additional help. On October 15, 2020, Minor started at the school with a special education plan. As to visitation between Mother and Minor, Mother missed a scheduled visit on September 30, 2020. When the social worker asked why Mother missed the visit, instead of being remorseful, “she demanded that [the social worker] reschedule the visit.” The next scheduled visit was on October 7, 2020. In the morning, Mother texted the social worker and stated that if Minor’s hair was not “done,” she was going to bring someone to do it. The social worker needed the name and date of birth of the person that would accompany Mother so the social worker could clear him or her before the visit. Mother texted back with two names. When the social worker informed Mother that she could bring one other person, not two, Mother insisted that “both” were coming. At the end, Mother texted, “NVM who do I need to talk to I’ll do it the shit myself, realistically her hair should’ve been done in the first place there’s no reason the kids hair is not combed.” The social worker responded that Minor was with MGM now and asked if MGM knew how to brush Minor’s hair. The social worker again reminded Mother that visits were restricted due to COVID-19 but that she would allow another person to accompany Mother if she provided the social worker with the requested information. Mother 20 responded: “Bitch you’re lucky if I say another nice word to you I ask who the fuck I can speak to because you don’t know how to do shit. I don’t start with me Lisa! gave you the name like you asked do your work. The next message I should be getting from you is the person to call.” (Sic.) Although the social worker indicated that Mother’s message was unclear, the social worker provided Mother with her supervisor’s name and phone number. Mother responded, “You a dumb bitch . . . . And all y’all go to be some dumb bitches till y’all start doing your job.” (Sic.) Mother continued to have supervised visits at the Department on a weekly basis. MGM agreed to supervise the telephone visits. As to individual therapy for Mother, on October 1, 2020, Mother texted asking for her referral information for individual counseling. The social worker had resubmitted for individual counseling two months prior in August 2020 and the social worker provided Mother with the referral. By October, MFI Recovery was no longer taking referrals. However, back in August, MFI Recovery was taking referrals. Mother demanded that she be given a referral for individual counseling with her anger management therapist. That counseling center did not take Medi-Cal insurance for individual counseling. When the social worker explained this to Mother, she became upset and did not believe the social worker. Eventually, the social worker referred Mother to another therapist at Community Access Network on October 2, 2020. On October 19, 2020, the social worker called Community Access Network and learned that Mother started individual therapy on October 7, 2020. As for anger management classes, Mother completed eight sessions and had eight sessions left. The social worker noted that Mother clearly had failed to benefit from her 21 program as evidenced by her inability to use the skills acquired during her classes when she failed “to deescalate her anger which [led Mother] to engage in cursing and profanity when she [did] not get her desired outcome.” Mother had completed only one session of individual therapy—she had 18 months to complete her court-ordered services but failed to do so. The Department also reminded the court about Mother’s psychological examination report, included in the 12-month review report. On September 25, 2020, MGM related that she blocked Mother from all telephone calls “after they had a verbal altercation and reported she doesn’t really have communication with [Mother] because [Mother] continues to engage in verbal altercations with her.” MGM stated, “I don’t have the time or the energy to put up with [Mother]. I just want to raise my granddaughter. [Mother] has always been mean. . . . I use[d] to tell my husband, there is something wrong with [Mother] but he always took [her] side. I never had his support. I am divorced now and have good support at my church. They all love [Minor].” MGM stated that she wanted the Department to assist with supervised visits between Mother and Minor. When the social worker spoke with MGM on October 16, 2020, MGM agreed to supervise telephone visits between Mother and Minor and unblock Mother. MGM was concerned about Mother because of her inappropriate behavior and language toward Minor. Since the last hearing, Minor had been placed with MGM and the Wraparound team continued to provide services. Minor was no longer on psychotropic medications for behavior. Minor was reenrolled at her school of origin and MGM was facilitating Minor’s needs at her school. Minor’s special educational teacher and the school 22 psychologist were working together. Minor is “happy and is enjoying school.” The social worker observed Minor to be happy and affectionate with MGM; Minor kissed and hugged MGM during a Wraparound meeting. Minor stated she loved MGM and liked living with her. At the contested review hearing on October 30, 2020, Mother testified. She claimed that Minor was removed from her care because Minor was not attending school or going to the dentist on a regular basis. Mother believed that she had remedied these issues because she can now drive Minor with her driver’s license. Although she was not previously involved in Minor’s education, she would be involved now. Mother testified that she participates in parenting education by Zoom. She also stated that she loved her anger management classes; she felt those classes had been helpful. She also enjoyed her visits with Minor. She had not had face-to-face visits with Minor for seven months due to the pandemic but she did have telephone contact. Mother’s visits with Minor were positive. Mother claimed that the social worker did not communicate with Mother. She had not seen the social worker face-to-face for seven months. Even though the social worker gave Mother referrals to services, Mother did not feel the social worker was helping her reunify with Minor. During cross-examination, Mother testified that during her parenting education course she learned she was “already doing those things,” such as showing empathy and holding your child. Mother did not benefit from the class and felt that taking another parenting course would not be helpful. She only did it to get her child back. 23  Mother also testified that she started counseling in October 2020. She did not start prior to then because she wanted her anger management counselor to provide the therapy. Mother had stopped counseling in 2019 to look for a job out of state and did not have a car to make it to appointments. In her anger management program, she learned to count to 10. She did not feel that she had a problem with anger prior to Minor’s removal, and still did not have anger issues. Mother counted to 20 before she sent the October 7, 2020, text message to the social worker. In the text, Mother repeatedly called the social worker a “bitch” for not allowing Mother to bring two people to a supervised visitation to help fix Minor’s hair. When asked whether Mother learned that she should not be hitting Minor, Mother answered that she learned that she “should have been taking her to the dentist, that I should have been doing her homework with her.” She did not state anything about not physically hurting Minor. Mother’s counsel argued that Mother engaged in services and had a very close bond with Minor. Counsel requested additional services. Minor’s counsel argued that although Mother went through the motions of engaging in some services, she did not benefit from them. The Department agreed with Minor’s counsel and added the dependency had been ongoing since April 2019 and during that time, Mother failed to acknowledge the reason for Minor’s removal, and was still argumentative and angry. 24  After hearing Mother’s testimony and arguments from counsel, the juvenile court indicated that Minor was removed primarily due to Mother’s inappropriate physical discipline of Minor and anger management issues. The court found that Mother delayed participating in services and sensed “from mother, even through her testimony that you are very angry.” The court expected to see more cooperation from a parent after 18 months of services. The court found Mother had not “truly benefited even from the services that she received,” and she did not regularly participate in services. In sum, the court found Mother failed to participate regularly in reunification services; did not make substantive progress in a court-ordered treatment plan; and there was no substantial probability that Minor would be returned if given another six months of services. The court therefore terminated reunification services as to Mother. The court ordered Minor’s placement information to remain confidential. Moreover, the court ordered extended visits between the child and MGM to continue pending RFA2 approval. The court authorized Mother to have community visits with Minor and to assess MGM to supervise visits. All prior visitation orders were to remain in full force and effect. The court set a selection and implementation hearing under section 366.26 for March 1, 2021. The court also set a review hearing under section 366.3 for the same date. On November 5, 2020, Mother filed a notice of intent to file writ petition. 2 Resource Family Approval Program (https://www.cdss.ca.gov/inforesources/resource-family-approval-program). 25  DISCUSSION In her writ, Mother argues that the Department “failed to provide to Mother any meaningful reunification services to . . . Mother during the contested reunification period.” (All caps. omitted.) For the reason set forth post, we find the court’s order terminating services is supported by substantial evidence. On appeal, our review is limited to whether the appellate record discloses substantial evidence to support the juvenile court’s finding that the Department made reasonable efforts to facilitate reunification, recognizing that the standard is not whether the services provided were the best that might be provided in an ideal world, but whether the services were reasonable under the circumstances, since “[i]n almost all cases it will be true that more services could have been provided more frequently and that the services provided were imperfect.” (In re Misako R. (1991) 2 Cal.App.4th 538 , 547 (Misako R.).) “Services will be found reasonable if the Department has ‘identified the problems leading to the loss of custody, offered services designed to remedy those problems, maintained reasonable contact with the parents during the course of the service plan, and made reasonable efforts to assist the parents in areas where compliance proved difficult.’ ” (In re Alvin R. (2003) 108 Cal.App.4th 962 , 972-973.) It is the agency’s obligation at the six-month review hearing to make a record that reasonable services were provided. (In re Precious J. (1996) 42 Cal.App.4th 1463 , 1478.) 26  “The adequacy of a reunification plan and of the department’s efforts are judged according to the circumstances of each case.” (In re Ronell A. (1996) 44 Cal.App.4th 1352 , 1362; accord, Mark N. v. Superior Court (1998) 60 Cal.App.4th 996 , 1011.) Relevant circumstances include a parent’s willingness to participate in services. Reunification services are voluntary, and the department cannot force an unwilling parent to participate in the case plan. (Ronell A., at p. 1365.) The department is not required to “take the parent by the hand and escort him or her to and through classes or counseling sessions.” (In re Michael S. (1987) 188 Cal.App.3d 1448 , 1463, fn. 5.) Therefore, in assessing the reasonableness of reunification services, the juvenile court evaluates not only the Department’s efforts to assist the parent in accessing the services, but also the parent’s efforts to avail himself or herself of those services. Moreover, “with regard to the sufficiency of reunification services, our sole task on review is to determine whether the record discloses substantial evidence which supports the juvenile court’s finding that reasonable services were provided or offered.” (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758 , 762 (Angela S.).) In doing so, we must review the evidence in the light most favorable to the prevailing party and indulge all reasonable inferences to uphold the court’s ruling. (Misako R., supra, 2 Cal.App.4th at p. 545.) “If there is substantial evidence supporting the judgment, our duty ends and the judgment must not be disturbed.” (Ibid.) The record in this case, set out ante, reveals the services offered were reasonable—they were tailored to fit the circumstances and to eliminate the conditions that led to the juvenile court’s jurisdictional finding—and Mother consented to them. 27  In this case, Minor was removed from Mother’s custody due to inappropriate discipline, anger management, and general neglect issues. Minor stated that mother hit her with objects on all parts of her body and it hurt. Mother hit Minor “with the cord from the iron, the comb, brush, and threatened [Minor] with the iron.” While investigating the referral in March of 2019, the Department offered Mother the opportunity to address the issues without removal; however, Mother was resistant to and declined services. MGM was afraid of Mother’s reaction if MGM filed for legal guardianship—Mother had a child welfare history that included hitting and threatening MGM. MGF obtained a restraining and move-out order against Mother, and Mother was arrested for failing to comply. During its prior investigations, the Department provided the family with services such as counseling, drug testing, dental appointments, and transportation assistance. After filing the petition, on April 29, 2019, the Department referred Mother to a substance abuse program, and parenting and anger management services. The social worker left voice messages with the information and contact numbers for Mother. Mother did not enroll in any of the services. On July 5, 2019, the Department again provided Mother the referrals for services in order to reunify with Minor including parenting education, individual therapy, anger management, and a psychological evaluation. The social worker contacted Mother regularly to discuss her case plan compliance and current circumstances. 28  Throughout the dependency, Mother failed to regularly participate in her services. She delayed attending her psychological evaluation until March 26, 2020. Moreover, although she attended a few counseling sessions between August 22 and September 12, 2019, she stopped going to therapy for over a year. Mother requested a new set of referrals on March 22, 2020, which the Department provided on March 25. Mother initially claimed that her parenting education provider was not taking any new referrals but the social worker confirmed that the provider was, in fact, taking new clients. Mother enrolled in a parenting education program but failed to sign a release for the Department to check on the quality of her participation. After completing the program in August of 2020, Mother stated the program “was a waste of her time and she didn’t care about the classes honestly.” At the October 30, 2020, hearing, Mother testified that she learned she “was already doing those things” that she needed to do. Mother did not feel she benefitted from the classes, she only took them to get back her child. Mother also testified another parenting course would not be helpful. In addition to the parenting classes, the Department provided Mother another set of referrals for anger management classes and individual counseling on July 20, 2020. In August 2020, the social worker gave Mother another referral for counseling, which Mother failed to attend. At the 12-month status review hearing on August 25, 2020, the trial court continued Mother’s services to the 18-month review hearing date of September 28, 2020. At that hearing, the court found the Department had provided reasonable services. Mother did not file an appeal or writ. 29  As noted in detail above, on October 1, 2020, Mother texted the social worker asking for a referral to a specific therapist—one who was not covered under Medi-Cal. When the social worker informed Mother, she became angry and belligerent in her texts back to the social worker. The social worker then referred Mother to another therapist. Mother did not begin her individual counseling until after the initial 18-month hearing. Based on the foregoing, substantial evidence supports a finding that the Department provided Mother with reasonable services. Mother, however, delayed enrolling and participating in the services. The evidence supports a finding Mother failed to benefit from the services. At the hearing on October 30, 2020, Mother testified she had completed eight anger management sessions but she did not feel she has or ever had a problem with anger. She also did not feel she disciplined Minor inappropriately. As noted ante, Mother stated she was already “doing those things,” such as showing empathy to her child. She did not feel she benefitted from the parenting classes and did not think another course would be helpful. Even when asked during cross-examination whether Mother has learned she should not be hitting Minor, she did not concur; instead, Mother responded she should have taken Minor to the dentist and done homework with her. In addition, although Mother claimed she learned to deal with her anger, her display of anger at the hearing and to the social worker throughout the dependency showed otherwise. As noted ante, on October 7, 2020, Mother sent text messages to the social worker wherein Mother repeatedly called the social worker a “bitch” because she would not allow Mother to bring two additional people to visit Minor due to the pandemic. 30  Dr. Garrett provided in his psychological evaluation of Mother that Mother has not learned from having lost custody of Minor. He noted that Mother “is still argumentative and angry” with the Department, the social worker, MGM about Minor’s removal, and blames the situation on everyone but herself. Mother did not show any remorse about her current child welfare case. After hearing Mother’s testimony and reviewing the record in this case, the court found that Mother has not “truly benefitted even from the services that she received.” Mother also did not regularly participate in services. If Mother felt during the reunification period that the services offered to her were inadequate, she had the assistance of counsel to seek guidance from the juvenile court in formulating a better plan. She did not. (In re Christina L. (1992) 3 Cal.App.4th 404 , 416.) After reviewing the reporter’s and clerk’s transcripts on appeal, discussed in detail ante, we conclude the record contains substantial evidence to support the juvenile court’s finding that services provided to Mother were reasonable. Mother received 19 months of services but failed to benefit from the services. As in Angela S., supra, 36 Cal.App.4th 758 , Mother’s “real problem was not a lack of services available but a lack of initiative to consistently take advantage of the services that were offered.” (Id. at p. 763.) The evidence shows Mother’s case plan was tailored to fit her circumstances and the Department made reasonable efforts to assist her to comply with her case plan. Hence, the services provided, while not possibly perfect in every regard, were clearly reasonable under the circumstances (Misako R., supra, 2 Cal.App.4th at p. 547), and the juvenile 31 court’s finding that reasonable reunification services were provided is supported by substantial evidence. (See Angela S., supra, 36 Cal.App.4th at p. 762.) DISPOSITION The writ petition is denied. NOT TO BE PUBLISHED IN OFFICIAL REPORT MILLER Acting P. J. We concur: SLOUGH J. FIELDS J. 32

2021-03-18 20:00:32.430568+00

https://cdn.ca9.uscourts.gov/datastore/memoranda/2021/03/18/19-72764.pdf

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 18 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT OSNY LUBIN, AKA Assale Tomoko, No. 19-72764 Petitioner, Agency No. A209-168-618 v. MEMORANDUM* MERRICK GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted March 5, 2021**1F P Pasadena, California Before: SILER,*** HURWITZ, and COLLINS, Circuit Judges. Osny Lubin, a native and citizen of Haiti, petitions for review of a decision of the Board of Immigration Appeals (“BIA”) dismissing his appeal from an order of * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Eugene E. Siler, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. an Immigration Judge (“IJ”) denying applications for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). We deny the petition. 1. Substantial evidence supports the BIA’s determination that Lubin failed to establish eligibility for asylum and withholding of removal because the “totality of the circumstances” showed he lacked credibility. Iman v. Barr, 972 F.3d 1058 , 1062, 1064–65 (9th Cir. 2020). Lubin claimed to be the victim of two 2013 attacks that caused him to leave Haiti for Brazil. He claimed to have left Brazil for the United States after his cousin was shot and he experienced discrimination. The BIA discerned no clear error in the IJ’s determination that Lubin was not credible. The BIA noted multiple discrepancies between Lubin’s testimony, declaration, and sworn statement to a Customs and Border Patrol officer. These included inconsistencies regarding the circumstances surrounding the first attack, including whether Lubin’s attackers were armed and whether he was taken to the hospital following the incident; whether the attacks were related to a land dispute; Lubin’s reasons for coming to the United States; and whether Lubin feared returning to Haiti. A reasonable adjudicator would not be compelled to conclude that Lubin is credible. See 8 U.S.C. § 1252 (b)(4)(B). Absent the discredited testimony, Lubin cannot meet his burden of establishing past persecution or a well-founded fear of 2 future persecution on a protected ground, and his asylum and withholding claims fail. See Rizk v. Holder, 629 F.3d 1083 , 1091 (9th Cir. 2011). 2. Having found Lubin not credible, the BIA was not obligated to address his arguments concerning resettlement. See INS v. Bagamasbad, 429 U.S. 24 , 25 (1976) (“As a general rule courts and agencies are not required to make findings on issues the decision of which is unnecessary to the results they reach.”). 3. Substantial evidence supports the BIA’s determination that Lubin failed to establish eligibility for CAT protection. A CAT applicant “bears the burden of establishing that [he] will more likely than not be tortured with the consent or acquiescence of a public official if removed to [his] native country.” Xochihua- Jaimes v. Barr, 962 F.3d 1175 , 1183 (9th Cir. 2020). Lubin presented no evidence of past torture, and the IJ’s determination that there was insufficient evidence that he would be tortured in the future by or with the acquiescence of any government is supported by the record. Lubin testified that the private individuals who attacked him remained at large, but presented no evidence that those individuals acted with the consent or acquiescence of any government. The general references to country conditions in his declaration and country reports do not compel a contrary conclusion because they lack any relation to the land disputes and criminal attacks underlying his claim. 3  4. Nor does the BIA’s reference to its adverse credibility finding in the context of Lubin’s CAT claim justify granting the petition. “An adverse credibility determination is not necessarily a death knell to CAT protection.” Shrestha v. Holder, 590 F.3d 1034 , 1048 (9th Cir. 2010). But, if the petitioner is “found not credible, to reverse the BIA’s decision we would have to find that the reports alone compelled the conclusion that [the petitioner] is more likely than not to be tortured.” Almaghzar v. Gonzales, 457 F.3d 915 , 922–23 (9th Cir. 2006). The reports in this case fall far short of that high bar. PETITION FOR REVIEW DENIED. 4

2020-12-01 17:01:34.139769+00

http://www.azcourts.gov/Portals/0/OpinionFiles/Supreme/2020/CV190128PR.pdf

IN THE SUPREME COURT OF THE STATE OF ARIZONA CLAUDIA DUFF, Petitioner, v. HON. KENNETH LEE, JUDGE OF THE SUPERIOR COURT OF THE STATE OF ARIZONA, IN AND FOR THE COUNTY OF PIMA, Respondent, and TUCSON POLICE DEPARTMENT, A MUNICIPAL AGENCY; AND THE CITY OF TUCSON, A MUNICIPAL CORPORATION, Real Parties in Interest. No. CV-19-0128-PR Filed November 25, 2020 Appeal from the Superior Court in Pima County The Honorable D. Douglas Metcalf, Judge No. C20182262 AFFIRMED Opinion of the Court of Appeals, Division Two 246 Ariz. 418 (App. 2019) AFFIRMED IN PART, VACATED IN PART  DUFF V. HON. LEE/TUCSON POLICE DEPT./CITY OF TUCSON Opinion of the Court COUNSEL: David D. Buechel (argued), Hollingsworth Kelly, PLLC, Tucson, Attorney for Claudia Duff Mark Brnovich, Arizona Attorney General, Brunn “Beau” W. Roysden III, Solicitor General, Drew C. Ensign (argued), Section Chief, Civil Appeals Section, Kathleen P. Sweeney, Senior Appellate Counsel, Robert J. Makar, Assistant Attorney General, Phoenix, Attorneys for Honorable Kenneth Lee Michael G. Rankin, City Attorney, Renee J. Waters, Principal Assistant City Attorney, Tucson City Attorney’s Office, Tucson, Attorneys for City of Tucson ________________ JUSTICE BOLICK authored the opinion of the Court, in which CHIEF JUSTICE BRUTINEL, VICE CHIEF JUSTICE TIMMER, and JUSTICES GOULD, LOPEZ, BEENE, and MONTGOMERY joined. ________________ JUSTICE BOLICK, opinion of the Court: ¶1 This case concerns the interaction between A.R.S. § 12-133, a compulsory arbitration statute, and the Fast Trial and Alternative Resolution (“FASTAR”) Pilot Program. We find no conflict between the statute and this Court’s orders and rules establishing FASTAR, and we thus hold that the trial court properly denied petitioner Claudia Duff’s motion for arbitration. BACKGROUND ¶2 Section 12-133(A)(1)–(2) requires superior courts, by court rule, to “[e]stablish jurisdictional limits of not to exceed sixty-five thousand dollars for submission of disputes to arbitration” and “[r]equire arbitration 2  DUFF V. HON. LEE/TUCSON POLICE DEPT./CITY OF TUCSON Opinion of the Court in all cases . . . in which . . . the amount in controversy does not exceed the jurisdictional limit.” Section 12-133(H) establishes a right to appeal from an arbitration award to the superior court for trial de novo on law and fact. Certain financial penalties accrue if the appellant does not receive an award that is at least 23% better than the arbitrator determined. § 12-133(I). Section 12-133(L) provides that the jurisdictional limit under § 12-133(A)(1) “does not apply to arbitration that is conducted under an alternative dispute resolution program approved by the supreme court. ¶3 In 2015, this Court established the Committee on Civil Justice Reform to “develop recommendations, including rule amendments or pilot projects, to reduce the cost and time required to resolve civil cases in Arizona’s superior courts.” In re Establishment of the Comm. on Civ. Just. Reform and Appointment of Members, Admin. Order No. 2015-126 (2015). The following year, the committee proposed the FASTAR Pilot Program. Comm. On Civ. Just. Reform’s Rep. to the Ariz. Jud. Council, A Call to Reform 18–20, 121–138 (Oct. 2016); In re Implementation of the Fast Trial and Alternative Resolution (FASTAR) Pilot Program in Pima County, Admin. Order No. 2017-116 (2017). FASTAR allows a plaintiff to choose between a short trial and arbitration in cases seeking money damages not exceeding $50,000. Admin. Order No. 2017-116. In doing so, the plaintiff must file a certificate stating whether the case meets the four FASTAR eligibility criteria: (1) the complaint requests monetary damages only; (2) the amount sought exceeds the limit set by local rule for compulsory arbitration; (3) the amount sought does not exceed $50,000, excluding interest, costs, and attorney fees; and (4) the plaintiff does not need to serve the summons and complaint on any defendant in a foreign country. Admin. Order No. 2017-116 app. at 1 (Rule 101(b)). ¶4 A plaintiff qualifying for and choosing a short trial is thereby entitled to an expedited jury trial and may appeal a decision to the court of appeals, but a plaintiff choosing arbitration forfeits the right to appeal. Admin. Order No. 2017-116 app. at 2 (Rule 103), 9 (Rule 118(d)). ¶5 In essence, FASTAR was designed to provide an attractive alternative to arbitration, which can entail a protracted process when a party pursues a trial de novo afterward. Cf. Ray v. Rambaud, 103 Ariz. 186 , 3  DUFF V. HON. LEE/TUCSON POLICE DEPT./CITY OF TUCSON Opinion of the Court 188 (1968) (“[A] litigant does not have a vested right in any given mode of procedure, and so long as a substantial and efficient remedy is provided, due process of law is not denied by a change in remedy.”). ¶6 This Court implemented FASTAR as a three-year pilot program in Pima County Superior Court commencing November 2017.1 Admin. Order No. 2017-116. We also approved new Court rules that lowered Pima County’s jurisdictional limit for purposes of § 12-133(A)(1) from $50,000 to $1,000. Id. Because the court’s jurisdictional minimum for civil claims is $1,000, the order effectively eliminated compulsory arbitration in the county. ¶7 In May 2018, Duff filed a complaint in Pima County Superior Court seeking damages against the Tucson Police Department. Duff filed a certificate of compulsory arbitration under § 12-133, as well as a FASTAR certificate, claiming that the action did not meet FASTAR eligibility criteria. Duff then filed a motion asking the court to order § 12-133 arbitration, arguing FASTAR was unconstitutional as applied to her because it extinguished her right to a trial de novo and appeal to the court of appeals following arbitration. ¶8 The trial court denied Duff’s motion, finding both that FASTAR preserved her rights under the short trial option and that electing arbitration under FASTAR rules required waiver of jury trial and appeal rights. The trial court further concluded that Duff’s claim fell outside the $1,000 arbitration limit under the rules, so she was not entitled to § 12-133 arbitration. After obtaining a stay, Duff filed a special action in the court of appeals. ¶9 The court of appeals accepted jurisdiction but denied relief. It concluded that FASTAR conflicted with § 12-133 based on its interpretation of Scheehle v. Justices of the Sup. Ct. of Ariz., 211 Ariz. 282 (2005), that 1 We subsequently extended the pilot program until December 31, 2021. In re Extension of the Fast Trial and Alternative Resolution (FASTAR) Pilot Program in Pima County, Admin. Order No. 2020-158 (2020). 4  DUFF V. HON. LEE/TUCSON POLICE DEPT./CITY OF TUCSON Opinion of the Court § 12-133(A) “require[d], as opposed to merely authorize[d], each superior court to adopt a mandatory arbitration program.” Duff v. Lee, 246 Ariz. 418 , 425 ¶ 18 (App. 2019). Because the court found a conflict between the rules and the statute, it went on to determine whether the statute was procedural or substantive. Id. at 424 ¶ 12. The court concluded the statute was procedural because it does not create or define substantive rights but prescribes the method of enforcing substantive rights. Id. at 426–27 ¶¶ 21, 23 (citing State v. Birmingham, 96 Ariz. 109 , 110 (1964)). Because the statute was procedural rather than substantive, the court concluded that this Court’s rules prevailed over the statute. Id. at 427 ¶ 25. Finally, the court rejected Duff’s contention that FASTAR did not apply to her, holding that this Court’s November 2017 order established binding and effective court rules for Pima County that existed at the time Duff’s claim arose. Id. at 428 ¶¶ 28, 32. Judge Brearcliffe specially concurred, agreeing that FASTAR applied to Duff but concluding that “§ 12-133 does not conflict with the FASTAR rule changes and Scheehle is therefore not a barrier to them.” Id. at 428–29 ¶ 33 (Brearcliffe, J., specially concurring). ¶10 We granted review to determine (1) whether FASTAR and § 12-133 conflict; (2) if so, whether the statute is procedural or substantive; and (3) if the statute is substantive, whether FASTAR violates article 3 of the Arizona Constitution by altering or diminishing the statutory right to appeal. All these are questions of statewide importance. We have jurisdiction under article 6, section 5(3) of the Arizona Constitution and A.R.S. § 12-120.24. DISCUSSION ¶11 Interpreting court rules and statutes raises questions of law that we review de novo. See State v. Hansen, 215 Ariz. 287 , 289 ¶ 6 (2007). ¶12 Article 6, section 5(5) of the Arizona Constitution vests this Court with the exclusive authority over procedural rulemaking. Id. ¶ 9. The legislature may properly enact statutory procedures that supplement, rather than conflict with, rules this Court has promulgated, but “in the event of irreconcilable conflict between a procedural statute and a rule, the rule prevails.” Seisinger v. Siebel, 220 Ariz. 85 , 88–89 ¶ 8 (2009); accord State 5  DUFF V. HON. LEE/TUCSON POLICE DEPT./CITY OF TUCSON Opinion of the Court v. Reed, 248 Ariz. 72 , 76 ¶ 10 (2020); Scheehle, 211 Ariz. at 289 ¶ 24 (holding that Court rules “are valid even if they are not completely cohesive with related legislation, so long as they are an appropriate exercise of the court’s constitutional authority”). Hence, we first must determine whether an irreconcilable conflict exists between the statute and rule. If it does, we then determine whether the statute is procedural or substantive. Only if it is substantive, and thus within the legislature’s purview, must we determine if FASTAR violates Duff’s statutory rights. ¶13 When construing both statutes and court rules, we apply “fundamental principles of statutory construction, the cornerstone of which is the rule that the best and most reliable index of a statute’s meaning is its language and, when the language is clear and unequivocal, it is determinative of the statute’s construction.” Hansen, 215 Ariz. at 289 ¶ 7 (quoting Deer Valley Unified Sch. Dist. No. 97 v. Houser, 214 Ariz. 293 , 296 ¶ 8 (2007)). ¶14 “We do not hastily find a clash between a statute and court rule,” Graf v. Whitaker, 192 Ariz. 403 , 406 ¶ 11 (App. 1998), and we avoid interpretations that “unnecessarily implicate constitutional concerns.” Scheehle, 211 Ariz. at 288 ¶ 16. Thus, we seek to harmonize rules and statutes, reading them in tandem whenever possible. See Hansen, 215 Ariz. at 289 ¶ 7. ¶15 Duff argues that § 12-133 conflicts with FASTAR because the statute “require[s], as opposed to merely authorize[s], each superior court to adopt a mandatory arbitration program” and that FASTAR impliedly conflicts with A.R.S. § 22-201(B), which gives justices of the peace “exclusive original jurisdiction” over certain civil actions concerning $10,000 or less. We disagree. ¶16 As a matter of plain text, § 12-133 imposes only a ceiling on the jurisdictional limit—$65,000—not a floor. Thus, the statute leaves it up to each superior court to set its own minimum amount for requiring arbitration for all cases under the cap. In Scheehle, the Court interpreted § 12-133 to “require, as opposed to merely permit, superior courts to implement mandatory arbitration programs by rule,” 211 Ariz. at 286 ¶ 6, 6  DUFF V. HON. LEE/TUCSON POLICE DEPT./CITY OF TUCSON Opinion of the Court but nothing in the statute prevents this Court from lowering the jurisdictional minimum amount so that few, if any, cases require mandatory arbitration. Indeed, a $1,000 cap has existed in Santa Cruz and Greenlee counties for years. The Attorney General notes that the legislature has amended the statute five times since those limits have been in place. Although we disagree that the existence of a $1,000 minimum amount in certain counties suggests legislative acquiescence to the practice, it illustrates that counties have exercised the discretion provided by the statute to set different jurisdictional limits. ¶17 Because § 12-133 does not contain a floor, reading a minimum jurisdictional amount for arbitration into § 12-133 would rewrite the statute and therefore potentially violate the separation of powers. See State v. Holle, 240 Ariz. 300 , 310 ¶ 47 (2016) (quoting In re Nicholas S., 226 Ariz. 182 , 186 ¶ 18 (2011)). This Court is reluctant to “imply a statutory limitation that would create a conflict in the constitutional prerogatives of separate branches of Arizona government.” Scheehle, 211 Ariz. at 289 ¶ 25. ¶18 In the alternative, Duff would have us find an implied jurisdictional floor in § 12-133 by its reference to § 22-201(B). Section 22-201(B) gives justices of the peace “exclusive original jurisdiction” over civil cases “when the amount involved, exclusive of interest, costs and awarded attorney fees when authorized by law, is ten thousand dollars or less.” Duff argues that a $10,000 minimum must exist for § 12-133 arbitration, or else § 12-133 would impose upon the “exclusive” jurisdiction of justice courts. ¶19 Despite its language, however, § 22-201 does not give justice courts exclusive jurisdiction over civil cases between $1,000 and $10,000 and therefore cannot impose an implied jurisdictional limit in § 12-133. That is because article 6, section 14(3) of the Arizona Constitution gives superior courts exclusive jurisdiction over claims valued at and above $1,000. The legislature may not statutorily divest the superior court of its original jurisdiction, see State ex rel. Neely v. Brown, 177 Ariz. 6 , 8 (1993), but “of course” can “give the justice court concurrent original jurisdiction in such cases.” Id. Thus, to apply the statute in a constitutional manner, the term “exclusively” in § 22-201 must necessarily be read to provide concurrent 7  DUFF V. HON. LEE/TUCSON POLICE DEPT./CITY OF TUCSON Opinion of the Court jurisdiction. Therefore, § 22-201 does not imply a minimum jurisdictional amount for § 12-133. ¶20 Because no jurisdictional floor exists within the text of § 12-133, the FASTAR rules did not violate § 12-133 when setting Pima County’s cap for mandatory arbitration at $1,000. Accordingly, no conflict exists between the statute and the FASTAR rules, and therefore we need not determine whether the statute is substantive or procedural. CONCLUSION ¶21 We affirm the trial court. We vacate paragraphs 18, 19, and the relevant part of paragraph 25 of the court of appeals opinion and affirm the remainder. 8

2020-12-01 18:00:35.380283+00

https://www2.ca3.uscourts.gov/opinarch/192228p.pdf

PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______ No. 19-2228 ______ GRAHAM B. SPANIER v. DIRECTOR DAUPHIN COUNTY PROBATION SERVICES; ATTORNEY GENERAL PENNSYLVANIA, Appellants ______ On Appeal from the United States District Court for the Middle District of Pennsylvania (D. C. No. 3-19-cv-00523) Magistrate Judge: Honorable Karoline Mehalchick ______ Argued June 16, 2020 Before: CHAGARES, PORTER and FISHER, Circuit Judges.  (Filed: December 1, 2020) Kimberly A. Boyer-Cohen Marshall Dennehey Warner Coleman & Goggin 2000 Market Street, Suite 2300 Philadelphia, PA 19103 Ronald Eisenberg [ARGUED] Office of Attorney General of Pennsylvania 1600 Arch Street, Suite 300 Philadelphia, PA 19103 Counsel for Appellants Bruce P. Merenstein [ARGUED] Samuel W. Silver Schnader Harrison Segal & Lewis 1600 Market Street, Suite 3600 Philadelphia, PA 19103 Counsel for Appellee ______ OPINION OF THE COURT ______ FISHER, Circuit Judge. This case stems from the disturbing child sex abuse scandal involving the football program at the Pennsylvania State University. In 2017, Penn State’s former president, Graham Spanier, was convicted of child endangerment for his role in the decision not to report the suspected abuse to state 2 authorities. Spanier and other university administrators made that decision in 2001. However, after their decision and before Spanier’s trial—in 2007, to be exact—the Pennsylvania legislature amended the statutory definition of child endangerment and its statute of limitations. Although Spanier’s conduct preceded these amendments, the jury was instructed in language that tracked the post-amendment statute. Spanier challenged his state-court conviction through a petition for a writ of habeas corpus, arguing that his rights under the Due Process and Ex Post Facto Clauses were violated. He also argued that his due process rights were violated by the application of an exception to the statute of limitations. The District Court granted Spanier’s petition and vacated his conviction. The Commonwealth appeals. We will reverse. In 1998, a woman called the Penn State police to complain that her eleven-year-old son had showered with Jerry Sandusky, who was the well-known defensive coordinator for Penn State’s football team. The boy was involved with the Second Mile program, a charitable organization Sandusky founded that helped vulnerable youth. The police chief brought news of the complaint to Gary Schultz, Penn State’s Senior Vice President for Finance and Business. The chief kept Schultz informed, and Schultz in turn told Spanier the details of the investigation as it unfolded. Schultz also told Timothy Curley, the university’s Athletic Director, about the investigation. Both the Penn State police and the Pennsylvania Department of Public Welfare investigated the complaint. Ultimately, those entities concluded that sexual assault could 3 not be proven, and the DA did not file charges. Spanier was copied on two emails about the investigation: one at the beginning and one saying it had concluded. In 1999, Sandusky retired. He was granted emeritus status, and he still had access to Penn State football facilities. He also remained actively involved with Second Mile. On Friday, February 9, 2001, around 8:00 or 8:30 in the evening, graduate assistant coach Michael McQueary went to the football building. He saw Sandusky and a boy he estimated to be “[r]oughly 10 to 12 years old” naked together in the shower, clearly engaged in sexual activity. App. 806. Shaken, he immediately spoke with his father and a family friend. The next morning, Saturday, February 10, McQueary told longtime head football coach Joe Paterno. Paterno asked to meet with Athletic Director Curley and Senior Vice President Schultz. The three men spoke a day later, on Sunday, February 11. Paterno reported what McQueary had told him, but he used the terms “horseplay” and “wrestling” to describe what McQueary saw. App. 1056. Later that day, Schultz asked Penn State’s general counsel for advice. Counsel recommended that the University report the incident to the Department of Public Welfare. On Monday, February 12, Curley and Schultz reported the situation to Spanier. According to Schultz’s contemporaneous notes, the three men “reviewed 1998 history,” i.e., the 1998 investigation; they “agreed [Curley] will . . . advise [Paterno] we think [Curley] should meet [with] [Sandusky] on Friday”; they decided that “unless [Sandusky] ‘confesses’ to having a problem, [Curley] will indicate we need to have DPW [the Department of Public Welfare] review the matter”; and “[Curley] will keep [Schultz] posted.” App. 1379. The next week, Curley and Schultz asked McQueary to meet with them, and McQueary again described what he had 4 seen. McQueary testified, “I told them that I saw Jerry molesting a boy, that what he was doing in a shower with a minor on the Friday night was sexual, it was over the line.” App. 816. McQueary vigorously denied ever using the word “horseplay” to describe the incident to anyone. Two weeks later, on Sunday, February 25, 2001, Curley and Schultz again met with Spanier. After the meeting, Schultz found an online listing of Second Mile’s board of directors, printed it out, and wrote three action items on the back: “Tell Chair of Board of Second Mile,” “Report to Dept of Welfare,” and “Tell [Sandusky] to avoid bringing children alone into [football] Bldg.” App. 1151, 1393-94. Schultz emailed Curley the next day to confirm that Curley “[had] the ball” on these next steps. App. 1382, 1143-44. On Tuesday, February 27, however, Curley emailed Spanier and Schultz and shared that he’d had a change of heart: After giving it more thought and talking it over with Joe [Paterno] yesterday—I am uncomfortable with what we agreed were the next steps. I am having trouble with going to everyone, but the person involved. I think I would be more comfortable meeting with the person and tell[ing] him about the information we received. I would plan to tell him we are aware of the first situation [the 1998 incident]. I would indicate we feel there is a problem and we want to assist the individual to get professional help. Also, we feel a responsibility at some point soon to inform his organization [Second Mile] and . . . maybe the other one [child protective services] about the situation. If he is cooperative we would work with him to handle informing the organization [Second Mile]. If not, we do not 5  have a choice and will inform the two groups. Additionally, I will let him know that his guests [Second Mile children] are not permitted to use our facilities. I need some help on this one. What do you think about this approach? App. 1386, 1075-81. Spanier responded: This approach is acceptable to me. It requires you to go a step further and means that your conversation will be all the more difficult, but I admire your willingness to do that and I am supportive. The only downside for us is if the message isn’t heard and acted upon, and we then become vulnerable for not having reported it. But that can be assessed down the road. The approach you outline is humane and a reasonable way to proceed. App. 1386, 1082-83. As agreed, Curley spoke with Sandusky and Second Mile’s executive director. Then Curley circled back to Spanier and “told him I took care of what I was supposed to do and everything was okay.” App. 1092. The Department of Public Welfare was never notified. After this point in early 2001, the Sandusky saga went quiet—at least as far as Penn State’s administration was concerned. But that was not the experience of the children Sandusky continued to abuse. In 2008, Clinton County Children and Youth Services received another report and the Commonwealth began another investigation. As a result of this investigation, Sandusky was convicted of crimes related to his abuse of several children, including four he abused after 2001. 6  Before turning to the procedural history of this appeal, we first introduce its legal backdrop, which is encapsulated in Commonwealth v. Lynn, 114 A.3d 796 (Pa. 2015). This discussion is necessary to explain the circumstances of Spanier’s conviction. William Lynn, a Roman Catholic priest, was the Secretary for Clergy of the Archdiocese of Philadelphia in the 1990s and early 2000s. Id. at 798 . He “was responsible for . . . handling clergy sexual abuse issues,” acting as the “‘point man’ in the investigation into . . . allegations of clergy sexual abuse of minors within the Archdiocese.” Id. at 798-99 . While Lynn was Secretary for Clergy, priests in the diocese sexually abused children. Some children were victimized by priests who, Lynn knew, had abused other children in the past. Id. at 799-806 . In 2002, a grand jury was empaneled at the request of the Philadelphia District Attorney to investigate clergy sex abuse in the diocese. Id. at 806-07 . The grand jury’s report concluded that the 1995 version of the Pennsylvania child endangerment statute, 18 Pa. C.S. § 4304, which was then in effect, “allowed church officials such as [Lynn] to escape criminal liability.” Id. at 807. The grand jury explained that the statute was “too narrow to support a successful prosecution of the decision-makers who were running the Archdiocese. The statute confines its coverage to parents, guardians, and other persons ‘supervising the welfare of a child.’ High level Archdiocesan officials, however, were far removed from any direct contact with children.” Id. (citation omitted). Based on its understanding of the statute, the grand jury did not recommend criminal charges against Lynn. Instead, it 7 recommended amending the child endangerment statute “to encompass conduct by individuals in an employer or supervising capacity.” Id. “[T]he legislature obliged, and amended the . . . statute, effective January 27, 2007.” Id. The 2007 amendment added new language, which is underlined here: (a) Offense defined.-- (1) A parent, guardian or other person supervising the welfare of a child under 18 years of age, or a person that employs or supervises such a person, commits an offense if he knowingly endangers the welfare of the child by violating a duty of care, protection or support. (2) A person commits an offense if the person, in an official capacity, prevents or interferes with the making of a report of suspected child abuse under 23 Pa.C.S. Ch. 63 (relating to child protective services). (3) As used in this subsection, the term “person supervising the welfare of a child” means a person other than a parent or guardian that provides care, education, training or control of a child. (b) Grading.--An offense under this section constitutes a misdemeanor of the first degree. However, where there is a course of conduct of endangering the welfare of a child, the offense constitutes a felony of the third degree. 8 18 Pa. C.S. § 4304 (2007) (emphasis added). The Pennsylvania legislature also amended the statute of limitations for § 4304, adding the underlined language: (a) General rule.--Except as otherwise provided in this subchapter, a prosecution for an offense must be commenced within two years after it is committed. . . . (c) Exceptions.--If the period prescribed in subsection (a) . . . has expired, a prosecution may nevertheless be commenced for: . . . (3) Any sexual offense committed against a minor who is less than 18 years of age any time up to the later of the period of limitation provided by law after the minor has reached 18 years of age or the date the minor reaches 50 years of age. As used in this paragraph, the term “sexual offense” [includes] a crime under . . . [18 Pa. C.S.] Section 4304 (relating to endangering welfare of children). 42 Pa. C.S. § 5552 (2007) (emphasis added). Despite the grand jury’s hesitations about charging Lynn under the 1995 statute, the Commonwealth decided to do so in 2011. Lynn, 114 A.3d at 807-08. Lynn was convicted and he appealed, arguing that the evidence was insufficient because he did not supervise children and therefore was not within the scope of the 1995 statute. Id. at 815-16. The Superior Court agreed and reversed the conviction. Id. at 817. The Pennsylvania Supreme Court reversed the Superior Court, ruling that Lynn’s conviction under the 1995 statute was not erroneous. The Court observed that despite the usual rule of lenity, child endangerment statutes “are written expansively 9 by the legislature ‘to cover a broad range of conduct in order to safeguard the welfare and security of our children,’” and should be construed to effectuate that broad purpose. Id. at 818 (quoting Commonwealth v. Marlin, 305 A.2d 14 , 18 (Pa. 1973)); see also id. at 822 . The 1995 statute covers “[a] parent, guardian or other person supervising the welfare of a child,” 18 Pa. C.S. § 4304(a), and the Supreme Court held that “the statute is plain and unambiguous that it is not the child that [Lynn] must have been supervising, but the child’s welfare.” Id. at 823. The Court reasoned that “the requirement of supervision is not limited to only certain forms of supervision, such as direct or actual,” but “[b]y its plain terms . . . encompasses all forms of supervision of a child’s welfare.” Id. at 824. “[S]upervision,” the Court explained, “is routinely accomplished through subordinates, and is no less supervisory if it does not involve personal encounters with the children. Like [Lynn], school principals and managers of day care centers supervise the welfare of the children under their care through their management of others.” Id. Lynn came within the purview of the statute because, “by his own concession, he supervised the welfare of the children of the Archdiocese.” Id. The Court said that the views of the grand jury and the DA (who declined to prosecute Lynn under the 1995 statute) did not “prove the meaning of the . . . statute, which is determined by analyzing [its] plain language.” Id. at 827. The Court also discounted the subsequent amendment of § 4304, invoking Pennsylvania’s statutory interpretation statute, which provides that legislative history is not taken into account when a statute’s language is clear. Id. (citing 1 Pa. C.S. § 1921). The Court added that “while the former version of a statute is relevant to discern the legislative intent of a later version when the statutory language is ambiguous, the inverse is not true.” Id. In other words, while the 1995 version of the statute might 10 illuminate the meaning of the 2007 statute, the 2007 statute could not illuminate the meaning of the 1995 statute. Concluding that Lynn’s conduct fit within the plain language of the 1995 statute, the Pennsylvania Supreme Court reversed the Superior Court and held there was sufficient evidence to convict. Id. The Commonwealth filed a criminal complaint against Spanier in 2012—five years after the statutory amendments described above, but before the Pennsylvania Supreme Court held in Lynn that the pre-amendment child endangerment statute did not require “personal encounters with . . . children.” 114 A.3d at 824. Spanier moved to quash the complaint, arguing that the charges should be dismissed because the allegedly wrongful acts were committed in 2001 and the normal two-year statute of limitations expired in 2003. The Commonwealth responded that Spanier engaged in a course of conduct endangering child welfare until 2012, and therefore he “was charged well within the applicable statute of limitation.” App. 498. The trial court rejected Spanier’s limitation argument, and in 2017, two years after Lynn, the case went to trial. 1 The count that became Count 1 charged that Spanier, “being a parent, guardian, or a person supervising the welfare of various children under 18 years of age, knowingly 1 We omit the procedural history of the case between 2012 and 2017, which involved (among other things) an interlocutory appeal regarding whether the testimony of Penn State’s former general counsel was admissible. See Commonwealth v. Spanier, 132 A.3d 481 , 482 (Pa. Super. Ct. 2016). What transpired during that time is not relevant to the issues we address in this appeal. 11 endangered the welfare of said children.” App. 417. This language tracked the 1995 statute because it omitted the phrase added in 2007, “or a person that employs or supervises such a person.” The statutory reference, however, was 18 Pa. C.S. § 4304(a)(1). App. 417. In the 1995 statute, there was no paragraph (a)(1); the 2007 amendment had changed the structure of the statute to create paragraph (a)(1). Thus, the language of the criminal information reflected the 1995 statute, but its statutory reference reflected the 2007 statute. 2 At the start of trial, the judge instructed the jury using the language of the 1995 statute. App. 704 (“elements of the first count” include that “the defendant was, at the time he endangered the welfare of a child, a parent, guardian, or person supervising the welfare of the child”). At the charge conference near the end of trial, Spanier’s attorney objected that the final instruction the judge planned to give “has the language of the current [2007] statute, and, as we’ve said throughout this case, we think the [1995] language should apply.” App. 1215. The court ultimately rejected this argument, and at the end of trial, it instructed the jury using the language of the amended, 2007 statute: The defendant has been charged with endangering the welfare of a child. To find the defendant guilty of this offense, you must find that each of the following elements has been proven beyond a reasonable doubt. . . . [T]hat the defendant was at the time a parent, guardian, person supervising the welfare of a 2 Spanier was acquitted of Count 2 (preventing or interfering with a report of child abuse) and Count 3 (conspiracy to endanger the welfare of a child), so those counts form no part of his habeas petition or this appeal. 12  child under the age of 18, or a person that employs or supervises such a person. The term “person supervising the welfare of a child” means a person other than a parent or guardian that provides care, education, training, or control of a child. App. 1306-07 (emphasis added, indicating language added in 2007 statutory amendment). The jury found Spanier guilty of this count. But, when asked on the verdict slip whether there was a “Course of Conduct (Yes or No),” the jury answered “no.” App. 1397. Because there was no course of conduct, Spanier was convicted of a misdemeanor. See 18 Pa. C.S. § 4304(b) (“An offense under this section constitutes a misdemeanor of the first degree. However, where there is a course of conduct . . . , the offense constitutes a felony of the third degree.”). Spanier was sentenced to two months of incarceration, two months of house arrest, and two years of probation. In its post-trial opinion, the trial court concluded there was no error in instructing the jury using the 2007 statutory language. It rested this conclusion on Lynn, reasoning that, even under the 1995 statute, supervising the welfare of a child was not limited to direct supervision. App. 1533, 1539. The court also concluded that the prosecution was not barred by the statute of limitations because, under the amended, 2007 version of 42 Pa. C.S. § 5552(c), the statute would not run until the child McQueary saw in the shower turned 50 years old. McQueary testified that the child was 10 to 12 years old, so the statute would run in “approximately the year 2039.” App. 1526. Notably, as explained above, the Commonwealth had not relied on pre- or post-amendment § 5552(c) before or during trial; it had argued that there was no problem with the normal § 5552(a) two-year statute of limitations because Spanier’s 13 course of conduct lasted until 2012. The jury’s finding that there was no course of conduct took that argument off the table and brought § 5552(c) into play. On appeal, the Superior Court relied on Lynn to affirm Spanier’s conviction. Commonwealth v. Spanier, 192 A.3d 141 , 150-54 (Pa. Super. Ct. 2018). The Court also rejected Spanier’s statute of limitations argument, concluding that there was no due process violation in the Commonwealth’s reliance on the § 5552(c) statute of limitations. Id. at 145-48. Spanier’s petition for allowance of appeal in the Pennsylvania Supreme Court was denied. Spanier had the right to continue pursuing relief in state court under Pennsylvania’s Post-Conviction Review Act, but he chose instead to file a petition for a writ of habeas corpus in federal court under 28 U.S.C. § 2254 . The District Court granted the petition, holding that Spanier’s conviction violated the Ex Post Facto and Due Process Clauses. Spanier v. Libby, No. 3:19-CV-523, 2019 WL 1930155 , at *15, 18 (M.D. Pa. Apr. 30, 2019). However, it concluded that the application of the § 5552(c) statute of limitations did not violate due process. Id. at *19. The Commonwealth appeals. 3 The state courts rejected Spanier’s argument that his conviction violated the Ex Post Facto Clause. They relied on Lynn, 114 A.3d at 796, to rule that Spanier’s conduct was criminalized by the 1995 version of the statute, which was in effect when he committed the conduct. The District Court 3 The District Court had jurisdiction under 28 U.S.C. § 2254 (a). This Court has jurisdiction under 28 U.S.C. §§ 1291 , 2253(a). 14 analyzed the Ex Post Facto Clause together with the Due Process Clause and held that the state courts’ application of Lynn violated both. Spanier, 2019 WL 1930155 , at *7-15. We begin by addressing the District Court’s ex post facto holding. The Ex Post Facto Clause provides that “[n]o State shall . . . pass any . . . ex post facto Law.” U.S. Const. art. I, § 10, cl. 1 (emphasis added). Passage of a law is strictly a legislative function, so “[t]he Ex Post Facto Clause, by its own terms, does not apply to courts.” Rogers v. Tennessee, 532 U.S. 451 , 460 (2001). Rather, “[a]s the text of the Clause makes clear, it ‘is a limitation upon the powers of the Legislature . . . .’” Id. at 456 (quoting Marks v. United States, 430 U.S. 188 , 191 (1977)). Here, the Pennsylvania General Assembly did not provide that the 2007 version of the statute would apply retroactively. See 18 Pa. C.S. § 4304 (2007); Act of Nov. 29, 2006, No. 2006- 179, 2006 Pa. Laws 1581 , 1589 (providing that amendments to § 4304 “shall take effect in 60 days”). Therefore, there was no ex post facto violation. The real problem, according to Spanier and the District Court, is how the state courts construed the child endangerment statute through their application of the Pennsylvania Supreme Court’s Lynn decision. Where a state court unforeseeably applies a law retroactively, that is a due process problem. Bouie v. City of Columbia, 378 U.S. 347 , 353-54 (1964) (“If a state legislature is barred by the Ex Post Facto Clause from passing [an unforeseeable retroactive enlargement of a law] . . . , it must follow that a State Supreme Court is barred by the Due Process Clause from achieving precisely the same result by judicial construction.”). Any constitutional violation that occurred here would be a due process error, not an ex post facto error. We proceed, then, to the due process analysis. 15  The Due Process Clause requires that a criminal statute “give fair warning of the conduct that it makes a crime.” Id. at 350 . A statute cannot give fair warning, of course, where it is “vague or overbroad.” Id. at 351 . The required fair warning also might be lacking where a statute, which is “precise on its face,” is “unforeseeably and retroactively expanded by judicial construction.” Id. at 352 . But not every after-announced change in criminal law is a due process violation. Instead, due process is violated where a state court’s interpretation of a criminal statute is “unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue.” Id. at 354 . This formulation preserves the necessary balance. It gives state courts “leeway” as they perform their work of judicial interpretation, but also “adequately respects the due process concern with fundamental fairness and protects against vindictive or arbitrary judicial lawmaking by safeguarding defendants against unjustified and unpredictable breaks with prior law.” Rogers, 532 U.S. at 461-62 . This appeal requires us to decide whether the Pennsylvania Superior Court’s affirmance of Spanier’s conviction, based on its construction of the 1995 statute, was “unexpected and indefensible.” Bouie, 378 U.S. at 354 . For the reasons we will explain, we conclude it was not, and therefore habeas relief is not warranted. First, though, we must consider whether Spanier’s claim was properly before the District Court. 1. Exhaustion The Commonwealth argues that Spanier should not have received habeas relief because he did not follow the statutory directive to “exhaust[] the remedies available in the courts of the State.” 28 U.S.C. § 2254 (b)(1)(A). A claim is exhausted when the petitioner raises it on direct appeal, “fairly 16 present[ing] . . . [its] factual and legal substance . . . in a manner that puts [state courts] on notice that a federal claim is being asserted.” Bennett v. Superintendent, 886 F.3d 268 , 280 (3d Cir. 2018) (internal quotation marks omitted) (quoting McCandless v. Vaughn, 172 F.3d 255 , 261 (3d Cir. 1999)). The petitioner must “cit[e] the relevant provision of the United States Constitution and federal cases supporting his argument.” Id. at 281 . Because due process takes a variety of forms, we evaluate exhaustion with reference to the particular kind of due process claim at issue. See Gray v. Netherland, 518 U.S. 152 , 164-65 (1996) (separately analyzing exhaustion of due process claims that rested on distinct bodies of case law “aris[ing] in widely differing contexts”). The Commonwealth argues that Spanier failed to exhaust his claim because, on direct appeal of his conviction, he cited United States v. Marcus, 560 U.S. 258 , 263-64 (2010), and Marks, 430 U.S. at 191-92 . The Commonwealth contends that he needed to cite Rogers, 532 U.S. at 461 . However, Marcus, Marks, and Rogers deal with the same kind of due process violation—retroactive application of a change in criminal law through judicial decision-making—at different stages of a case. Marcus and Marks deal with trial error. Marcus, 560 U.S. at 264 (holding that due process is violated “if the jury . . . was not instructed about [a criminal statute’s] enactment date” and convicts a defendant for “noncriminal, preenactment conduct”); Marks, 430 U.S. at 196 (holding that due process is violated if the trial court instructs the jury based on the current interpretation of a statute, rather than the interpretation that controlled at the time of the allegedly criminal acts). Rogers deals with the same kind of error on appeal. 532 U.S. at 454-56 (considering whether state appeals court violated due process by retroactively abolishing a common-law defense the defendant had relied on). 17  The Commonwealth, citing Gray, 518 U.S. at 164 , argues that Spanier did not exhaust the particular kind of due process claim he now asserts. The different types of due process claims involved in Gray, however, were supported by separate lines of cases. 518 U.S. at 164 . Here, by contrast, a single line of cases stemming from Bouie supports the due process arguments Spanier made both on direct appeal and in the District Court on habeas. Unlike the defendant in Gray, Spanier presented the “factual and legal substance” of his claim to the state courts and “cit[ed] the relevant provision of the United States Constitution and federal cases supporting his argument.” Bennett, 886 F.3d at 280-81 (citation omitted). Therefore, his claim is exhausted. 2. Merits Spanier argued on direct appeal that the jury instruction regarding child endangerment was erroneous because it was based on the 2007 version of the statute rather than the 1995 version. The trial court charged the jury that it should convict Spanier if it found that, in addition to knowingly violating a duty of care, protection, or support to a child, Spanier was “at the time a parent, guardian, person supervising the welfare of a child under the age of 18, or a person that employs or supervises such a person.” App. 1307 (emphasis added, indicating language added in 2007 statutory amendment). The Pennsylvania Superior Court held that, “[o]n the facts of this case” and “[g]iven . . . the Lynn Court’s treatment of the pre- 2007 version of § 4304,” there was no reversible error. Spanier, 192 A.3d at 154. On habeas review, the District Court concluded that the Superior Court’s application of Lynn to affirm Spanier’s conviction violated due process. Spanier, 2019 WL 1930155 , at *15-17. At the threshold, the Commonwealth argues that this issue is not cognizable in habeas corpus litigation because we 18 are “bound to accept” a state supreme court’s construction of its own state’s statutes. Missouri v. Hunter, 459 U.S. 359 , 368 (1983). This argument fails. While we are indeed bound by the Pennsylvania Supreme Court’s construction of Pennsylvania statutes, we are not bound by Pennsylvania courts’ conclusions regarding violations of the United States Constitution. See id. Whether the 2007 statute was impermissibly applied to Spanier has clear federal due process dimensions, and we do not defer to the Pennsylvania courts’ holdings on this point. To determine whether the District Court erred in holding there was a due process violation, we must decide whether the state court decision—here, the Pennsylvania Superior Court’s affirmance of Spanier’s conviction, based on its interpretation of Lynn—“was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254 (d)(1). The Supreme Court has emphasized that “[t]his standard . . . is ‘difficult to meet’: . . . [the petitioner] must show that the challenged state-court ruling rested on ‘an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.’” Metrish v. Lancaster, 569 U.S. 351 , 357-58 (2013) (quoting Harrington v. Richter, 562 U.S. 86 , 102-03 (2011)). “‘[C]learly established Federal law’ under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.” Lockyer v. Andrade, 538 U.S. 63 , 71-72 (2003). Therefore, we consider Supreme Court decisions up to 2018, when the Pennsylvania Superior Court affirmed Spanier’s conviction. In the 1964 Bouie case, individuals conducting a sit-in at a segregated lunch counter were convicted of criminal trespass under a state statute that forbade uninvited entry “after notice . . . prohibiting such entry.” 378 U.S. at 348-49 (quoting 19  S.C. Code Ann. § 16-386 (1960 Cum. Supp.). Soon after, the South Carolina Supreme Court issued an opinion in a different case, Mitchell, holding that the statute also prohibited remaining on property after being told to leave. Id. at 350 n.2 (citing City of Charleston v. Mitchell, 123 S.E.2d 512 (S.C. 1961)). Then, when the Bouie defendants appealed their convictions, the South Carolina Supreme Court affirmed on the basis of Mitchell. Id. at 350. The U.S. Supreme Court reversed, stating that Mitchell’s broader interpretation was “clearly at variance with the statutory language” and, furthermore, in the 95 years leading up to Mitchell, state cases “uniformly emphasized the notice-before-entry requirement, and gave not the slightest indication that that requirement could be satisfied by proof of the different act of remaining on the land after being told to leave.” Id. at 356-57. Mitchell was an “unexpected and indefensible” interpretation of the statute in light of prior law, and therefore its application to affirm the conviction was a due process violation. Id. at 354 (citation omitted). This case is like Bouie in that the state appellate court applied state supreme court precedent post-dating the conduct in question (here, Lynn) to affirm the conviction. See id. at 350. However, the South Carolina statute at issue in Bouie was unlike the 1995 Pennsylvania child endangerment statute in at least one important way. The South Carolina trespassing statute was “precise on its face”: it applied to “entry upon the lands of another . . . after notice . . . prohibiting such entry.” Id. at 351-52 (quoting S.C. Code § 16-386). The 1995 Pennsylvania child endangerment statute is not similarly precise: its language, “parent, guardian or other person supervising the welfare of a child,” 18 Pa. C.S. § 4304(a), leaves room for—and even necessitates—judicial interpretation. This language raises, among other questions, the 20 issues of what is meant by “supervising” and who is a “person supervising the welfare of a child.” Therefore, the Pennsylvania courts’ work to interpret the child endangerment statute is hardly unforeseeable, as was the South Carolina Supreme Court’s sudden expansion of that state’s unambiguous trespassing statute. We next consider the 2001 opinion in Rogers v. Tennessee. There, the defendant stabbed a man who died of the injury fifteen months later, and the defendant was then convicted of murder. 532 U.S. at 454 . The defendant appealed on the basis of the common law rule under which there could be no murder conviction unless the victim died within a year and a day. Id. at 453-54 . On appeal, the Tennessee Supreme Court abolished the rule and affirmed the conviction. Id. at 455 . The U.S. Supreme Court reiterated that due process is violated only by “judicial interpretations of criminal statutes . . . that are ‘unexpected and indefensible,’” because state courts need “substantial leeway . . . as they engage in the daily task of formulating and passing upon” common law doctrines. Id. at 461-62 (quoting Bouie, 378 U.S. at 354 ). The state court’s ruling “was not unexpected and indefensible” because the year and a day rule was “widely viewed as an outdated relic of the common law,” id. at 462 , had never served as the basis of a decision, and was mentioned in state case law only three times in dicta, id. at 464 . Therefore, there was no due process violation. Id. at 467 . The principles enunciated in Rogers are certainly relevant here: state courts need leeway to engage in their work, and federal courts should not hold routinely that this work violates due process. Id. at 461-62 . But the Tennessee court struck down an outmoded common law rule that was never really established in Tennessee law. See id. at 462-64 . That decision bears little resemblance to the Pennsylvania Superior 21 Court’s interpretation of the child endangerment statute based on its reading of Lynn. Therefore, the outcome in Rogers is not especially illuminating here. The final relevant Supreme Court case is Metrish v. Lancaster, issued in 2013. There, the defendant was convicted of first-degree murder. 569 U.S. at 354. He invoked Michigan’s “diminished capacity” defense, which applied to individuals who were not insane, but whose mental illness “negat[ed] the mens rea element of first-degree murder.” Id. At the time of the killing, the defense was well established. Although the Michigan Supreme Court had not recognized it, the intermediate appellate court had done so repeatedly, and the pattern jury instructions included the defense. Id. at 355- 57. After the killing, but before the defendant’s trial, the Michigan Supreme Court addressed the defense for the first time in People v. Carpenter, 627 N.W.2d 276 (Mich. 2001). The Michigan Supreme Court eliminated the defense. It explained that the Michigan legislature had enacted a “‘comprehensive statutory scheme’ . . . to govern defenses based on mental illness.” Metrish, 569 U.S. at 364 (quoting Carpenter, 627 N.W.2d at 282). The diminished capacity defense, which had existed before the statute was enacted but was not mentioned in the statute, was—the Michigan Supreme Court concluded—“incompatible” with the statutory scheme. Id. at 363, 365. Later, when the defendant appealed, the state’s intermediate appellate court held that applying Carpenter retroactively did not violate due process because “Carpenter concerned an unambiguous statute that was interpreted by the [Michigan] Supreme Court for the first time.” Id. at 365 (internal quotation marks and citation omitted). The U.S. Supreme Court agreed there was no due process violation. Id. 22  The Court noted that it reached the same outcome—no due process violation—in both Metrish and Rogers, even though the defense eliminated in Rogers was “outdated” and “widely rejected,” while the defense eliminated in Metrish was widely recognized. Id. at 365-67 (citation omitted). Acknowledging that different outcomes might have been expected based on the different statuses of the two defenses, the Court explained that merely because the Michigan defense was widely recognized was “hardly sufficient to warrant federal habeas relief under 28 U.S.C. § 2254 (d)(1)’s demanding standard.” Id. at 367. The habeas standard is so rigorous that relief is not available merely because the state supreme court announces a new rule of law. Rather, the new rule must be “unexpected and indefensible by reference to [existing] law.” Id. at 368 (quoting Rogers, 532 U.S. at 462 ). The Michigan Supreme Court’s Carpenter decision did not meet this definition. The U.S. Supreme Court noted that it had “never found a due process violation in circumstances remotely resembling [those]—i.e., where [1] a state supreme court, squarely addressing a particular issue for the first time, [2] rejected a consistent line of lower court decisions [3] based on the supreme court’s reasonable interpretation of the language of a controlling statute.” Metrish, 569 U.S. at 367-68. Here, as in Metrish, [1] the Pennsylvania Supreme Court, in Lynn, squarely addressed for the first time the application of the 1995 statute to those who supervised the welfare of children without supervising the children themselves. According to the District Court and Spanier, Lynn [2] rejected a consistent line of Pennsylvania Superior Court decisions that applied the 1995 version of the child endangerment statute only to defendants who were directly involved with children. Spanier, 2019 WL 1930155 , at *14. And Lynn is [3] the state supreme court’s reasonable 23 interpretation of the language of the statute. 4 As in Metrish, the state appellate court held that retroactively applying the state supreme court decision, Lynn, did not violate due process. See Spanier, 192 A.3d at 153-54. Based on these parallels, Metrish weighs against a finding that there was a due process violation here. We must now decide, in light of Bouie, Rogers, and Metrish, whether the Pennsylvania Superior Court’s affirmance of Spanier’s conviction “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254 (d)(1). The District Court, on habeas review, concluded that the Superior Court’s decision met this standard. Spanier, 2019 WL 1930155 , at *15. The Court also held that the jury instruction permitted a conviction either because Spanier supervised the welfare of a child by “provid[ing] care, education, training, or control,” or because he was “a person that employs or supervises such a person.” Id. at *17 (quoting jury instructions). According to the District Court, the second option was available only under the amended 2007 statute, and permitting a conviction on that alternative basis violated due process by relieving the Commonwealth of its burden to prove every element of the 1995 statute. Id. 4 The District Court did not conclude that Lynn was unexpected and indefensible; it concluded that the Superior Court’s affirmance of Spanier’s conviction was. Spanier, 2019 WL 1930155 , at *15. Similarly, Spanier does not attack Lynn. Instead, he argues that “the state courts in his case misinterpreted Lynn” and incorrectly interpreted “the 1995 statute as including language added in 2007.” Appellee’s Br. 40 n.10. 24  The Commonwealth argues that the District Court erred and that the application of Lynn to affirm Spanier’s conviction was not unexpected and indefensible. Spanier’s response aligns with the District Court. He says Lynn held that the 1995 statute required the defendant to have supervised the welfare of a child either directly or indirectly, and that the 2007 statute added another category of persons who could be liable: those who are “not supervising the welfare of a child,” even indirectly, but are “employing or supervising someone else who was doing so.” Appellee’s Br. 43. He argues that his due process rights were violated because the jury could have convicted him based on a finding that he fit in the new category. However, due process was violated here only if the Superior Court’s affirmance of Spanier’s conviction was an “unexpected and indefensible” interpretation of the child endangerment statute in light of prior law, i.e., Lynn. See Bouie, 378 U.S. at 354 (citation omitted). We conclude that it was not. The Superior Court extensively reviewed the Lynn decision before holding that it was not error to instruct the jury using the language of the 2007 statute. Spanier, 192 A.3d at 150-54. The Court began by noting Lynn’s commentary that the child endangerment statute “is protective in nature, and must be construed to effectuate its broad purpose of sheltering children from harm.” Id. at 150 (quoting Lynn, 114 A.3d at 818). Such statutes “are written expansively by the legislature to cover a broad range of conduct in order to safeguard the welfare and security of our children.” Id. (quoting Lynn, 114 A.3d at 818). Therefore, “[t]he common sense of the community, as well as the sense of decency, propriety and the morality which most people entertain is sufficient to apply the statute to each particular case, and to individuate what 25 particular conduct is rendered criminal by it.” Id. at 151 (quoting Lynn, 114 A.3d at 818). The Superior Court rejected Spanier’s argument that he was positioned differently than Lynn, a diocesan official who was “responsible for protecting children from sexual abuse.” Id. at 152. The Court held that Spanier “oversaw and approved the university’s woefully deficient response” to the abuse allegations, so the fact that his official duties did not include addressing child abuse did “not undermine or preclude a conclusion that he was supervising the welfare of a child.” Id. at 153. To support this conclusion, the Superior Court quoted Lynn’s holding that the 1995 statute, “[b]y its plain terms, . . . encompasses all forms of supervision of a child’s welfare.” Id. at 152 (quoting Lynn, 114 A.3d at 824). The Superior Court also was unpersuaded by Spanier’s argument that his case is distinguishable from Lynn because he “did not supervise persons who interacted directly with the minor in question, as did the Lynn defendant or as would a school principal or daycare manager.” Id. The Superior Court pointed out that “[t]he Lynn Court held that it is the child’s welfare that is supervised” under the child endangerment statute. Id. Because Spanier “supervised his school’s response to repeated allegations of on-campus abuse of a minor by a high-status former employee with access to campus facilities[,] [h]e was clearly supervising a child’s welfare pursuant to Lynn.” Id. Finally, the Superior Court addressed Spanier’s argument that the jury instruction was erroneous and stated that, “[g]iven our analysis of . . . the Lynn Court’s treatment of the pre-2007 version of [the statute], we discern no reversible error.” Id. at 154. The Superior Court held that “the language added [to the statute] in 2007 or, more appropriately, the language not included in the pre-2007 version, does not alter 26 the result here.” Id. It concluded that “[o]n the facts of this case, the trial court’s instruction on the 2007 version of the . . . statute did not result in an inaccurate statement of the law.” Id. Although the Superior Court did not say it in so many words, the import of its holding is that the “employs or supervises” language included in the jury instruction accurately reflected the meaning of the 1995 statute. See id. This analysis flows directly from its careful reading of Lynn. We cannot agree with Spanier that the Superior Court “misinterpreted Lynn” and incorrectly construed “the 1995 statute as including language added in 2007.” Appellee’s Br. 40 n.10. We acknowledge that, in some respects, this case is like Bouie—where there was a due process violation in the application of a state supreme court decision that changed the meaning of a state statute. Bouie, 378 U.S. at 361 . But in other respects, this case is like Metrish—where there was no due process violation in the application of a state supreme court decision that struck down a widely relied-upon defense to criminal liability. Metrish, 569 U.S. at 365. Because of the equipoise in the case law, the habeas standard is particularly important here: the writ may not be granted unless the state court decision “was contrary to, or involved an unreasonable application of, clearly established Federal law.” 28 U.S.C. § 2254 (d)(1). There can be no “possibility for fairminded disagreement.” Metrish, 569 U.S. at 357-58 (quoting Harrington v. Richter, 562 U.S. 86 , 102-03 (2011)). “[T]he petitioner must demonstrate that Supreme Court precedent requires [a] contrary outcome” to the state court decision. Rosen v. Superintendent, 972 F.3d 245 , 252 (3d Cir. 2020) (quoting Matteo v. Superintendent, 171 F.3d 877 , 888 (3d Cir. 1999) (en banc)). Here, Bouie and Metrish point in different directions, creating more than a possibility for fairminded disagreement. Therefore, we must reverse in light of “28 27 U.S.C. § 2254 (d)(1)’s demanding standard.” Metrish, 569 U.S. at 367. The District Court cited Bouie and Rogers, but did not examine them closely. Spanier, 2019 WL 1930155 , at *12. Nor did it mention Metrish. The Court pointed to the 2005 grand jury report discussed in Lynn, which declined to recommend charging Lynn under the 1995 version of the child endangerment statute and instead recommended that the statute be amended. Id. at *15. The Lynn opinion, however, clarifies that “[t]he decisions of neither the grand jury nor a prior District Attorney [who chose not to charge Lynn under the 1995 statute] prove the meaning of the . . . statute, which is determined by” plain-language analysis. Lynn, 114 A.3d at 826-27. Following this holding, we conclude that the subsequent grand jury report is not persuasive evidence of the meaning of the 1995 statute, and therefore does not demonstrate that the application of Lynn was “unexpected and indefensible.” See Bouie, 378 U.S. at 354 . Even if we agreed with Spanier that the jury instruction improperly reflected the 2007 statute, we would still reverse. “[N]ot every ambiguity, inconsistency, or deficiency in a jury instruction rises to the level of a due process violation.” Middleton v. McNeil, 541 U.S. 433 , 437 (2004). We consider the instruction “in the context of the instructions as a whole and the trial record,” asking “‘whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way’ that violates the Constitution.” Estelle v. McGuire, 502 U.S. 62 , 72 (1991) (quoting Boyde v. California, 494 U.S. 370 , 380 (1990)). There is not a reasonable likelihood that the jury convicted Spanier on the basis of the contested jury instruction language—that is, by finding that he was “a person that employs or supervises” someone who is supervising the 28 welfare of a child. App. 1307. The jury instruction at the beginning of the trial reflected the 1995 statute and did not include the “employs or supervises” language. App. 704. In his opening statement, Spanier followed suit, emphasizing that to convict, the jury would need to “find that [Spanier] knowingly endangered the welfare of a child by violating a duty of care, protection or support, to a child whose welfare he was supervising.” App. 739. And the Commonwealth’s theory of the case was that Spanier himself supervised the welfare of a child, not that he employed or supervised such a person. Although the prosecutor argued in closing that “[t]he buck stopped with” Spanier and that he was “the top of the food chain,” her repeated theme was that if Spanier, Schultz, and Curley had “call[ed] the authorities and let the authorities investigate it, . . . [t]hey wouldn’t have been responsible. But they took it upon themselves.” App. 1282. She continued with the theme that Spanier assumed responsibility for supervising the welfare of a child: [Spanier, Schultz, and Curley] don’t have a duty to support this child, but their duty of care and protection came when they took it. When they decided in their little group that they weren’t going to call the outside agency, that they weren’t going to tell their own University police, but that they themselves, the three of them, were going to be the cabal that was going to keep him under control. They took that responsibility. They can’t hide from it now. They took it upon themselves . . . . And, again, that’s a person supervising the welfare of a child under the age of 18. They chose that. They didn’t have to. It’s a choice that Graham Spanier made. 29 App. 1290 . Therefore, it is not reasonably likely that the jury convicted Spanier because he employed someone who supervised the welfare of a child—rather than because he himself supervised the welfare of a child. On direct appeal, the Pennsylvania Superior Court took care to note how the record showed that Spanier himself was supervising the welfare of a child. It stated multiple times that because Spanier “personally oversaw [the university’s] response” to the abuse allegations, he “was clearly supervising a child’s welfare pursuant to Lynn.” Spanier, 192 A.3d at 153- 54. The Court reached its conclusion that there was no error in the jury instruction in light of “the facts of this case.” Id. at 154. We agree with, and defer to, the Superior Court’s reasonable reading of the record. See Waddington v. Sarausad, 555 U.S. 179 , 193-94 (2009) (holding that even if the jury instruction was ambiguous, the state courts reasonably concluded, after reviewing the trial record, that the jury’s conviction was not based on the incorrect understanding of the law that the defendant said the instruction had conveyed). In sum, we conclude that there was no due process error with regard to the jury instruction. Under clearly established federal law, state courts have considerable latitude to rule on the meaning of statutes, and this latitude extends to announcing a new rule of law to uphold a conviction—so long as the new rule is not unexpected and indefensible. In addition, there is not a reasonable likelihood that the jury convicted based on the contested language in the jury instruction. Given the demanding standard on habeas corpus review of state-court convictions, we conclude that the District Court erred in granting the petition. The District Court held that Spanier’s due process rights were not violated by the application of the statute of limitations 30 provided in 42 Pa. C.S. § 5552(c). Spanier, 2019 WL 1930155 , at *19. Spanier argues that this was error, and that we may affirm the grant of his habeas petition on the alternative basis that the application of the statute indeed violated due process. See Murray v. Bledsoe, 650 F.3d 246 , 247 (3d Cir. 2011) (“We . . . may affirm the District Court’s judgment on any basis supported by the record.”). We disagree that the application of the statute of limitations provides a basis to affirm. Spanier’s limitation argument turns on the multi-part structure of the statute, 42 Pa. C.S. § 5552, and on its 2007 amendment. At the time of Spanier’s crimes, in 2001, Pennsylvania’s “[g]eneral” criminal statute of limitations was two years, but there was an “[e]xception[]” for “[a]ny sexual offense committed against a minor”: such a prosecution might be commenced “any time up to the period of limitation provided by law after the minor has reached 18 years of age,” that is, until the victim’s twentieth birthday. 42 Pa. C.S. § 5552(a), (c)(3) (2000). In 2007, when the child endangerment statute and its limitations rule were amended, the legislature added another exception: prosecution may be commenced “up to the later of the period of limitation provided by law after the minor has reached 18 years of age or the date the minor reaches 50 years of age.” Id. § 5552(c)(3) (2007) (emphasis added). When the Commonwealth began prosecuting Spanier in 2012, its theory was that the general two-year statute of limitations controlled. The Commonwealth argued that Spanier endangered the welfare of children through a course of conduct that extended from 2001 (when he and Schultz and Curley decided not to report Sandusky to the authorities) until 2012 (when Sandusky was convicted). But the jury rejected that theory. Although it found Spanier guilty of endangering the welfare of a child, it indicated on the verdict slip that 31 Spanier had not engaged in a course of conduct. That meant Spanier was convicted solely for his actions in 2001—eleven years before the prosecution began. Therefore, the § 5552(a) two-year statute of limitations could not control. Nevertheless, the trial court held there was no limitations problem, pointing to the § 5552(c) exception, which the Commonwealth had not invoked at any point before the verdict. This lengthy setup brings us to Spanier’s argument: he contends that his due process rights were violated because he did not have notice, prior to the verdict, that the § 5552(c) exception might apply. He argues that if he had known the Commonwealth would rely on § 5552(c)(3), he would have investigated and put on evidence regarding the age of the boy McQueary saw in the shower. McQueary testified that the boy was “[r]oughly 10 to 12 years old” at the time, App. 806, but if the boy was actually fourteen, he would have turned 20—and the statute of limitations would have run—in 2006, before the January 2007 amendment. In that scenario, the prosecution would be time-barred. See Commonwealth v. Harvey, 542 A.2d 1027 , 1030 (Pa. Super. Ct. 1988) (en banc) (if “the prior statute of limitations has run before the new statute of limitations becomes effective[,] . . . the cause of action has expired, and the new statute of limitations cannot serve to revive it”). The Pennsylvania Superior Court concluded that Spanier’s due process rights were not violated as a matter of state law. Under “[e]stablished Pennsylvania law,” a defendant may be convicted of an uncharged offense that is “a lesser- included offense of the charged crime.” Spanier, 192 A.3d at 146 (quoting Commonwealth v. Houck, 102 A.3d 443 , 449-50 (Pa. Super. Ct. 2014)). Therefore, the Superior Court held, the charge of felony endangerment (i.e., a course of conduct of endangerment) put Spanier “on notice that he was liable to be convicted of misdemeanor [endangerment]” (i.e., 32 endangerment without a course of conduct). Id. In addition, the Court held, the complaint was filed “well outside of the general two-year limitations period of § 5552(a),” so “it was plainly evident . . . that § 5552(c)(3) would govern the limitations period for a misdemeanor [endangerment] prosecution.” Id. at 146-47. The Superior Court also observed that § 5552(c)(3) is not a tolling provision (those are codified in § 5554, titled “Tolling of statute”). Id. at 149; see also 42 Pa. C.S. § 5552(c) (2000) (providing “Exceptions” to the general rule and not mentioning tolling). Therefore, Pennsylvania’s rule requiring notice of intent to rely on a tolling provision did not apply. Spanier, 192 A.3d at 149. “The purpose of this rule is to apprise a defendant that he must defend not only against the crime itself, but also against the limitation of prosecution.” Id. at 148. The rule is crucial where the prosecution will have to prove separate “fact(s) . . . to toll the statute of limitations.” Id. In Spanier’s case, however, “the prosecution for misdemeanor [endangerment] was not dependent upon proof of any facts outside those already alleged in the complaint.” Id. at 148-49. Therefore, “notice requirements under due process were not violated here.” Id. at 149. Under the deferential habeas standard, we may not grant relief unless the Superior Court’s opinion “was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254 (d)(1). Spanier says the decision violated his clearly established due process right to notice of the charges to permit the preparation of his defense. The Superior Court’s cogent opinion explains that Spanier received notice commensurate with due process. Spanier, 192 A.3d at 146-49. Spanier ignores that opinion. He continues to refer to § 5552(c)(3) as a “toll[ing]” provision, Appellant’s Br. 58, 33 although it is not, 192 A.3d at 148-49. Nor does he explain, given Pennsylvania law regarding lesser-included offenses, why the complaint failed to put him on notice that § 5552(c) might apply. Therefore, Spanier does not show that the Superior Court’s reasoning contradicts clearly established federal law. The District Court correctly ruled that the statute of limitations issue is not a basis for habeas relief. For these reasons, we will reverse the grant of Spanier’s habeas corpus petition. 34

2020-12-01 18:00:38.275349+00

https://www2.ca3.uscourts.gov/opinarch/201720np.pdf

NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT __________ No. 20-1720 __________ SERENE DUDHI, Appellant v. TEMPLE HEALTH OAKS LUNG CENTER; TEMPLE UNIVERSITY HEALTH SYSTEM, INC. __________ On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2:18-cv-03514) District Judge: Honorable Gene E.K. Pratter __________ Submitted Under Third Circuit L.A.R. 34.1(a) on November 20, 2020 Before: JORDAN, KRAUSE, and RESTREPO, Circuit Judges (Filed: December 1, 2020) __________ OPINION * __________ * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. RESTREPO, Circuit Judge. Serene Dudhi sued her former employer alleging pregnancy-related discrimination claims. The District Court granted her employer’s motion for summary judgment, finding that Dudhi had failed to establish a prima facie case. We will affirm. I. BACKGROUND Dudhi previously worked as a permanent medical assistant at Temple Lung Center (“TLC”). On June 26, 2017, she was assigned an afternoon shift in the clinic. At the time, Dudhi had recently returned from parental leave after giving birth and was nursing. While on duty that afternoon, she left her work area to express breastmilk. Dudhi did not get permission to leave or ensure that her patients would be cared for while she was gone. The only other medical assistant on duty that afternoon was Aaliyah Hosten, and she too was absent from the clinic while Dudhi was expressing milk. Hosten did not have permission to leave the work area either. One of the doctors working in the clinic that afternoon notified Dudhi’s supervisor, Beth Knowles, that he could not see patients because there were no medical assistants in the clinic. While attempting to locate Dudhi and Hosten, Knowles noticed medication spin- ning in an unattended centrifuge. She also encountered a patient looking for Dudhi. After failing to locate either medical assistant, Knowles called Dudhi and asked her to return immediately. Three days after that incident, Dudhi’s employment with TLC was terminated for violating Work Rule D.5, which states that employees are prohibited from “[l]eaving an assigned work area without permission and without proper relief when responsible for 2 patient or client care, or the security of an area or person.” App. 6. Her employment termi- nation was effective immediately. Hosten, who was a temporary medical assistant, was also disciplined. She was disqualified from consideration for permanent employment but permitted to complete the remainder of her temporary assignment. After Hosten completed her temporary assignment, her employment with TLC ended. In 2018, Dudhi initiated an employment discrimination lawsuit against TLC, alleg- ing violations of Title VII of the Civil Rights Act and the Pennsylvania Human Relations Act (“PHRA”). Specifically, Dudhi alleged that her employer “w[as] hostile to [her] preg- nant/nursing condition, and [that she was] terminated . . . because of that animus.” App. 183. 1 TLC moved for summary judgment. First, the District Court found that Dudhi failed to set forth a prima facie case under the framework laid out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Second, the Court also found, even if she had, TLC prof- fered a legitimate nondiscriminatory reason for its actions and Dudhi failed to rebut that reason. Accordingly, the District Court granted summary judgment. Dudhi now appeals. II. DISCUSSION 2 Dudhi’s claims are analyzed under the McDonnell Douglas burden-shifting frame- work. See In re Carnegie Ctr. Assoc., 129 F.3d 290 , 294–95 (3d Cir. 1997). Under that 1 Dudhi also alleged race-based discrimination claims, however, she appeals the District Court’s order only as it relates to her pregnancy-related discrimination claims. See Appellant Br. at 17–18. 2 The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1367(a), and we have jurisdiction under 28 U.S.C. § 1291 . We review the District Court’s grant of summary 3 framework, Dudhi bears the burden of presenting evidence sufficient to support a prima facie case of discrimination. Doe v. C.A.R.S. Protection Plus, Inc., 527 F.3d 358 , 364 (3d Cir. 2008). If she establishes a prima facie case, the burden of production shifts to TLC to identify a legitimate, nondiscriminatory reason for its adverse employment decision. See Texas Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248 , 252–53 (1981). If TLC offers such evidence, the burden shifts back to Dudhi, who must then show that TLC’s nondiscrimina- tory reason was pretextual. Id. To establish a prima facie case of pregnancy-related discrimination under Title VII and the PHRA, Dudhi must show that (1) “she is or was pregnant and that her employer knew she was pregnant,” (2) “she was qualified for her job,” (3) “she suffered an adverse employment decision,” and (4) “there is some nexus between her pregnancy and her em- ployment termination that would permit a fact-finder to infer unlawful discrimination.” C.A.R.S., 527 F.3d at 366 . Dudhi sought to support her claims by offering comparator evidence. Dudhi argued that TLC treated Hosten, a similarly situated non-breastfeeding employee, more favorably by allowing Hosten to finish her temporary assignment after she also violated Work Rule D.5. The District Court, however, determined that Dudhi and Hosten were not similarly situated, and because Dudhi offered no other evidence to support an inference of preg- nancy-related discrimination, it found that Dudhi failed to set forth a prima facie case. We agree. judgment de novo and apply the same standard as the District Court. Bletz v. Corrie, 974 F.3d 306 , 308 (3d Cir. 2020). 4  A plaintiff may not “selectively choose a comparator,” Simpson v. Kay Jewelers, 142 F.3d 639 , 645 (3d Cir. 1998), but should identify “objective qualification[s] or factor[s] that [she] can use as a yardstick to compare herself with similarly situated employees,” Ezold v. Wolf, Block, Schorr & Solis-Cohen, 983 F.2d 509 , 529 (3d Cir. 1992). 3 The context of each case determines which factors are relevant, but where allegations of disparate treat- ment arise in the disciplinary context, relevant factors often include “the standards that the employees had to meet.” Johnson v. Kroger Co., 319 F.3d 858 , 867 (6th Cir. 2003). In this instance, as the District Court correctly noted, Hosten and Dudhi were not subject to the same discipline standards. As a permanent employee, the Work Rules mandated that Dudhi’s employment be terminated immediately. That same mandate, however, did not apply to temporary employees like Hosten. This difference distinguishes Dudhi from Hosten. See id. Thus, the District Court correctly concluded that they were not similarly situated. Because we conclude that the District Court rightly resolved this issue at step one of the McDonnell Douglas framework, we need not reach the District Court’s pretext find- ing. III. CONCLUSION For the foregoing reasons, we will affirm the District Court. 3 While we have not explicitly stated what constitutes a similarly situated employee, other Courts have noted that a comparator must be similar in all relevant respects. E.g., Johnson v. Kroger Co., 319 F.3d 858 , 867 (6th Cir. 2003). 5

2021-01-26 19:12:43.642968+00

http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=487543

TREAT v. STITT Skip to Main Content Accessibility Statement OSCN Found Document:TREAT v. STITT Previous Case Top Of Index This Point in Index Citationize Next Case Print Only TREAT v. STITT 2021 OK 3 Case Number: 118913 Decided: 01/26/2021 THE SUPREME COURT OF THE STATE OF OKLAHOMA Cite as: 2021 OK 3, __ P.3d __ NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. THE HONORABLE GREG TREAT, SENATE PRESIDENT PRO TEMPORE, in his official capacity, and THE HONORABLE CHARLES MCCALL, SPEAKER OF THE HOUSE, in his official capacity, Petitioners, v. THE HONORABLE J. KEVIN STITT, GOVERNOR OF THE STATE OF OKLAHOMA, in his official capacity, Respondent. ORIGINAL PROCEEDING FOR DECLARATORY RELIEF ¶0 Petitioners brought this action seeking declaratory relief that Respondent lacked authority to enter into two tribal gaming compacts on behalf of the State. The Court assumes original jurisdiction and grants the declaratory relief sought by Petitioners that the two tribal gaming compacts are invalid under Oklahoma law. ORIGINAL JURISDICTION ASSUMED AND DECLARATORY RELIEF GRANTED. V. Glenn Coffee, Cara Rodriguez, Denise Lawson, Glenn Coffee & Associates, PLLC, Oklahoma City, Oklahoma, for Petitioners. Phillip G. Whaley, Daniel G. Webber, Jr., Patrick R. Pearce, Jr., Matthew C. Kane, Ryan Whaley, Oklahoma City, Oklahoma, for Respondent. Mark E. Burget and Jeffrey C. Cartmell, Office of the Governor, Oklahoma City, Oklahoma, for Respondent. Winchester, J. ¶1 Petitioners, the Honorable Greg Treat, Senate President Pro Tempore, and the Honorable Charles McCall, Speaker of the House, request the Court to assume original jurisdiction to declare that the new tribal gaming compacts between the State and the United Keetoowah Band of Cherokee Indians and between the State and the Kialegee Tribal Town are invalid under Oklahoma law. The Court assumes original jurisdiction. Okla. Const. art. VII, § 4. The Court invokes its publici juris doctrine to assume original jurisdiction here as Petitioners have presented this Court with an issue of public interest in urgent need of judicial determination. Fent v. Contingency Review Bd., 2007 OK 27, ¶ 11, 163 P.3d 512, 521. The Court grants the declaratory relief sought by Petitioners, as the Executive branch did not validly enter into the new tribal gaming compacts with the United Keetoowah Band of Cherokee Indians and the Kialegee Tribal Town. Ethics Comm'n of State of Okla. v. Cullison, 1993 OK 37, ¶ 4, 850 P.2d 1069, 1072. FACTS AND PROCEDURAL HISTORY ¶2 This Court previously declared that the tribal gaming compacts the Executive branch entered into with the Comanche and Otoe-Missouria Tribes were invalid under Oklahoma law because the gaming compacts authorized certain forms of Class III gaming prohibited by state law. Treat v. Stitt, 2020 OK 64, ¶¶ 6-8, 473 P.3d 43, 45 (Treat I). While Treat I was pending before this Court, the Executive branch entered into two additional compacts with the United Keetoowah Band of Cherokee Indians and the Kialegee Tribal Town. The parties to the compacts submitted the tribal gaming compacts to the United States Department of the Interior, and the Department of the Interior deemed them approved by inaction, only to the extent they are consistent with the Indian Gaming Regulatory Act (IGRA). 25 U.S.C. § 2710(d)(8)(C). The Court acknowledges that the United Keetoowah Band of Cherokee Indians and the Kialegee Tribal Town are not parties in this matter; these Tribes are sovereign nations and have not submitted to the jurisdiction of this Court. ¶3 The question before this Court is whether the Executive branch validly entered into the new tribal gaming compacts with the United Keetoowah Band of Cherokee Indians and the Kialegee Tribal Town. We hold it did not. For the new compacts to be valid under Oklahoma law, the Executive branch must have negotiated the new compacts within the statutory bounds of the Model Tribal Gaming Compact (Model Compact)1 or obtained the approval of the Joint Committee on State-Tribal Relations. DISCUSSION ¶4 The issue before this Court, as in Treat I, implicates the separation of powers. To better understand the balance of powers between the Executive branch and the Legislative branch in negotiating and entering into tribal gaming compacts, we must look at the history of tribal gaming in Oklahoma. ¶5 Gambling has long been broadly prohibited by Oklahoma's criminal laws,2 and carving out exceptions to these criminal laws is a question of public policy.3 The Legislature, through a vote of the citizens of Oklahoma, carved out certain exceptions to gambling when it enacted the State-Tribal Gaming Act, 3A O.S.2011, §§ 261-282. State Question No. 712 proposed to the citizens contained the specific language found in the State-Tribal Gaming Act, which sets forth the terms and conditions under which the State's federally recognized Tribes can engage in Class III gaming on tribal land through compacts. The citizens of Oklahoma approved a specific statutory process by which the State enters into Model Compacts with Indian Tribes within Oklahoma. See 3A O.S. Supp. 2018, §§ 280, 280.1; 3A O.S. Supp. 2012, § 281(15)(A) and (16). The Executive branch's role is to administer the State-Tribal Gaming Act by advocating and negotiating compacts within the bounds of the law. Treat I, 2020 OK 64, ¶ 5, 473 P.3d at 44. ¶6 The Executive branch's authority to advocate and negotiate gaming compacts is statutory--not constitutional. Id. ¶ 5, 473 P.3d at 44. And the use of such authority must be in conformity with statute. Oklahoma statutes currently provide the Executive branch two methods by which it can negotiate tribal gaming compacts: (1) via the Model Compact,4 or (2) via the general statutory authority conferred under 74 O.S. Supp. 2012, § 1221(C), which requires the approval of the Joint Committee on State-Tribal Relations (Joint Committee) when a tribal gaming compact contains provisions different from those in the Model Compact. The Executive branch did not follow either of these two methods in entering into the new compacts with the United Keetoowah Band of Cherokee Indians and the Kialegee Tribal Town. I. Model Compact Method. ¶7 The first method by which the Executive branch can negotiate tribal gaming compacts is through the Model Compact, approved by the citizens of Oklahoma. But the Model Compact confers little negotiating authority to the Executive branch as the Model Compact is not an ordinary private contract. Griffith v. Choctaw Casino of Pocola, 2009 OK 51, ¶ 7, 230 P.3d 488, 491. It is a voter-approved statute codified in the Oklahoma Statutes. Id. Sections 280.1 and 281 of the State-Tribal Gaming Act set out the provisions of the Model Compact. See 3A O.S. Supp. 2018, § 280.1; 3A O.S. Supp. 2012, § 281. Because the Model Compact is a state statute, the provisions of the gaming compact are fixed and not negotiable except by Legislative amendment. See Cossey v. Cherokee Nation Enter., LLC, 2009 OK 6, ¶ 12, 212 P.3d 447, 464 (Taylor, J., concurring). It is an "all or none" offer to the Tribes, "which if accepted, constitutes the gaming compact between this [S]tate and the accepting [T]ribe for purposes of IGRA without any further action on behalf of the State of Oklahoma." Griffith, 2009 OK 51, ¶ 14, 230 P.3d at 493. As a result, the Executive branch's authority to negotiate the provisions of the Model Compact is limited. ¶8 Per the Model Compact, the Executive branch's authority to amend the terms and conditions of a Model Compact is constrained to advocating for fees and exclusivity.5 Its authority does not extend to modifying other terms or provisions of the Model Compact without approval from the Joint Committee, as discussed below. The Court notes the Executive branch could have sole authority to negotiate additional terms and provisions of the Model Compact. However, the Legislature must amend the State-Tribal Gaming Act to grant the Executive branch that authority. Until that time, the Executive branch's authority to negotiate the Model Compact is constrained by the terms of the State-Tribal Gaming Act--to negotiate fees and exclusivity. 3A O.S. Supp. 2012, § 281(15)(B). II. Joint Committee Method. ¶9 The second method by which the Executive branch can negotiate tribal gaming compacts is by the approval of the Joint Committee. Section 1221(C) of Title 74 grants the Executive branch general authority to negotiate and enter into cooperative agreements with Tribes within the State to address issues of mutual interest.6 This Court has previously recognized the Legislature's creation of the Joint Committee to oversee agreements between the Tribes and the State, which includes tribal gaming compacts. See e.g., Griffith, 2009 OK 51, ¶ 12, 230 P.3d at 492; Cossey, 2009 OK 6, ¶ 7, 212 P.3d at 471 (Kauger, J., concurring in part, dissenting in part). Since a tribal gaming compact involves trust responsibilities, Section 1221(C) requires two separate approvals for a gaming compact to become effective: approval by the Joint Committee and approval by the Department of Interior. Though 74 O.S. § 1221 has undergone several amendments over the years, the Legislature never withdrew the requirement that such agreements require the approval of both the Joint Committee and Department of Interior. See 74 O.S. Supp. 2012, § 1221(C). ¶10 When the Executive branch negotiates terms of a tribal gaming compact that differ from the Model Compact found in the State-Tribal Gaming Act (outside of the provisions regarding fees and exclusivity as discussed previously), the Executive branch is acting under the general authority given to it pursuant to § 1221(C). It is then necessary that the Executive branch and the Tribe obtain the approval from the Joint Committee prior to submitting the compact to the Department of Interior. 74 O.S. Supp. 2012, § 1221(C)(1); see also Griffith, 2009 OK 51, ¶ 12, 230 P.3d at 492.7 This method allows for checks and balances of power between the Legislative branch and the Executive branch. III. Analysis of the compacts with the United Keetoowah Band of Cherokee Indians and the Kialegee Tribal Town. ¶11 The Executive branch did not follow either the Model Compact method or the Joint Committee method in negotiating the new compacts with the United Keetoowah Band of Cherokee Indians and the Kialegee Tribal Town. The Executive branch's authority to negotiate the provisions of the Model Compact is constrained to advocating for fees and exclusivity, which are not at issue in this case. The new compacts contain terms that are different or outside the Model Compact provisions altogether. Due to the statutory nature of the Model Compact, the new and differing provisions operate as the enactment of new laws and/or amend existing laws, which exceeds the authority of the Executive branch. Even if the Executive branch was attempting to negotiate with the United Keetoowah Band of Cherokee Indians and the Kialegee Tribal Town under the general authority conferred pursuant to 74 O.S. Supp. 2012, § 1221(C)(1), the parties were obligated to seek the approval of the Joint Committee. They did not, and the compacts are therefore invalid under Oklahoma law. CONCLUSION ¶12 The Executive branch's action in entering into the new compacts with the United Keetoowah Band of Cherokee Indians and the Kialegee Tribal Town--containing different terms than the Model Gaming Compact and without approval from the Joint Committee--disrupts the proper balance between the Executive and Legislative branches. Without proper approval by the Joint Committee, the new tribal gaming compacts are invalid under Oklahoma law. ORIGINAL JURISDICTION ASSUMED AND DECLARATORY RELIEF GRANTED. CONCUR: Darby, C.J., Kauger (by separate writing), Winchester, Combs, and Gurich, JJ., and Reif, S.J. CONCUR IN RESULT: Rowe, J. (by separate writing). DISSENT: Kane, V.C.J. Kane, V.C.J., dissenting: "I dissent for the reasons set forth in my dissent to Treat v. Stitt, 2020 OK 64, 473 P.3d 43 (Treat I)." RECUSED: Edmondson and Colbert, JJ. FOOTNOTES 1 See 3A O.S. Supp. 2018, § 280.1; 3A O.S. Supp. 2012, § 281. 2 See generally 21 O.S.2011, §§ 941-988; e.g., 21 O.S.2011, § 941 (prohibiting card and table games); id. at § 942 (subjecting gamblers to prosecution); id. at § 946 (prohibiting gambling houses); id. at § 982(B) (prohibiting commercial gambling). 3 See Whirlpool Corp. v. Henry, 2005 OK CR 7, ¶ 4, 110 P.3d 83, 84 (holding only the Legislature may define what constitutes a crime in Oklahoma); see also D.C. v. John R. Thompson Co., 346 U.S. 100, 114 (1953) (holding "[t]he repeal of laws is as much a legislative function as their enactment"). 4 See 3A O.S. Supp. 2018, §§ 280, 280.1; 3A O.S. Supp. 2012, § 281. 5 Title 3A O.S. Supp. 2012, § 281(15)(B) states: Within one hundred eighty (180) days of the expiration of this Compact or any renewal thereof, either the tribe or the state, acting through its Governor, may request to renegotiate the terms of subsections A and E of Part 11 of this Compact. Part 11(A) relates entirely to fees derived from covered gaming revenue. Id. at § 281(11)(A). Part 11(E) sets for the exclusivity fee schedule. Id. at § 281(11)(E). 6 Title 74 O.S. Supp. 2012, § 1221(C) states: C. 1. The Governor is authorized to negotiate and enter into cooperative agreements on behalf of this state with federally recognized Indian tribal governments within this state to address issues of mutual interest. The Governor may elect to name a designee who shall have authority to negotiate and enter into cooperative agreements on behalf of the state with federally recognized Indian tribes as provided for in this section. Except as otherwise provided by this subsection, such agreements shall become effective upon approval by the Joint Committee on State-Tribal Relations. 2. If the cooperative agreements specified and authorized by paragraph 1 of this subsection involve trust responsibilities, approval by the Secretary of the Interior or designee shall be required. 3. Any cooperative agreement specified and authorized by paragraph 1 of this subsection involving the surface water and/or groundwater resources of this state or which in whole or in part apportions surface and/or groundwater ownership shall become effective only upon the consent of the Oklahoma Legislature authorizing such cooperative agreement. 7 During oral argument before a Referee in Treat I, Petitioners referenced that only two tribal gaming compacts have differed from the Model Compact, and the Tribes and the Executive branch submitted both of those gaming compacts to the Joint Committee for approval. KAUGER, J., with whom COMBS and GURICH, J.J., join concurring: ¶1 To be clear, the majority's use of the terms "Executive Branch" refers to the respondent, the Governor of the state of Oklahoma. It is the Governor's authority which is in question here. I write separately to explain the historical underpinnings of such authority, or lack thereof. THE OKLAHOMA GOVERNOR HAS LIMITED GENERAL AUTONOMOUS AUTHORITY INDEPENDENT OF WHAT IS GRANTED BY THE LEGISLATURE, NOR DOES THE GOVERNOR HAVE SPECIFIC AUTHORITY TO BIND THE STATE IN TRIBAL COMPACTS. ¶2 The Court in Treat v. Stitt, 2020 OK 64, ¶¶4-5, 473 P.3d 43 explained the separation of powers as follows: . . . The legislative branch sets the public policy of the State by enacting law not in conflict with the Constitution. Okla. Const. art. V, § 1. The Governor has a role in setting that policy through his function in the legislative process, but the Governor's primary role is in the faithful execution of the law. Okla. Const. art. VI, §§ 8 & 11. Oklahoma's separation of powers doctrine is evident in the State's negotiation of tribal gaming compacts with Indian Tribes. ¶5 The Legislature, through the vote of the people, enacted those laws in the State-Tribal Gaming Act. 3A O.S. Supp. 2018, §§ 261-282. The State-Tribal Gaming Act sets forth the terms and conditions under which the State's federally recognized tribes can engage in Class III gaming on tribal land through Model Gaming Compacts. The Governor has the statutory authority to negotiate gaming compacts with Indian tribes to assure the State receives its share of revenue. However, the Governor must negotiate the compacts within the bounds of the laws enacted by the Legislature, including the State-Tribal Gaming Act. See 74 O.S. Supp. 2012, § 1221; Griffith v. Choctaw Casino of Pocola, 2009 OK 51, ¶ 12, 230 P.3d 488, 492. ¶3 Indeed, the Governor argues that the Okla. Const. art. 6, §8 provides him with the general, autonomous, authority to negotiate and to bind the state, executing tribal gaming compacts. The Governor overlooks the fact that there must be a law for him to execute before he can faithfully execute it. Section 8 provides: The Governor shall cause the laws of the State to be faithfully executed, and shall conduct in person or in such manner as may be prescribed by law, all intercourse and business of the State with other states and with the United States, and he shall be a conservator of the peace throughout the State. As far as the Governor's general authority goes, it is recognized that the drafters of the Oklahoma Constitution placed provisions to protect the people of the State of Oklahoma against excessive political and economic power.1 Oklahoma's historical underpinnings were extremely economically conservative.2 Fearing excessive power in the hands of one individual, the framers of the Oklahoma Constitution intentionally created a weak state chief executive.3 The Governor's authority is limited by the Constitution, because the Chief Executive may exercise only the power specifically granted by the Legislature.4 The Governor is without authority to exercise a discretion not validly and specifically granted by the statutory law and not within the power conferred upon the Chief Executive by the Constitution.5 ¶4 In Wentz v. Thomas, 1932 OK 636, 15 P.2d 65, the Court explained how Oklahoma's Chief Executive differed substantially from the United States Chief Executive, the President. The Court said: ¶27 Again, there is a fundamental difference between the executive powers of the President of the United States under the federal Constitution and the executive powers of the Governor of this state under our state Constitution. There is no division of the federal executive department; the President has power and control over all of the executive branches of government--each acts as his agent and performs his discretion. It was largely upon this theory that the Myers Case was decided. This is not the case under our state government. The executive authority, under our government, is vested in a Governor and eleven other heads . . . ¶30 The framers of the Constitution doubtless deemed it wise to reserve a residium of executive power which the Legislature could enact into law and vest in a new officer or department as it might deem expedient from time to time and as occasion might demand. . . ¶5 Accordingly, the personnel of many of the departments of our state government are controlled by the Legislative Branch of Government, rather than the Governor.6 The Oklahoma Legislature has not surrendered much power to the executive branch.7 The executive authority of the state is split among the Governor, Lieutenant Governor, Secretary of State, State Auditor, Attorney General, State Treasurer, Superintendent of Public Education, Insurance Commissioner, and Labor Commissioner among many others.8 Other Boards independent of direct control of the Governor, and therefore, essentially equally ranked with the Governor include constitutional boards such as the State Board of Equalization and the Commissioners of the Land Office.9 ¶6 While the Governor may have substantial powers as a titular head of the state and official spokesman for it, his powers for the most part are very fragmentary.10 The power of appointment is an indication of a Governor's overall power and authority.11 We recognized this principle in Keating v. Edmondson, 2001 OK 110, 37 P.3d 882 when we addressed the limitations on the Governor, expressly set forth by the Legislature, for the appointment of the Governor's cabinet. Keating involved a request from the Governor to stay the effectiveness of an Attorney General's opinion which addressed the lack of the Governor's authority to alter the gubernatorial cabinet outside the forty-five day limit allowed for the establishment of a cabinet system under a state statute, as set by the Legislature. ¶7 In Keating, we said: ¶16 The Okla. Const. art. 5, §60 vests the Legislature with the authority to create checks and balances within the executive department.12 The Governor concedes that it is the legislative prerogative to restrict the organization of the executive cabinet. Since statehood, it has been recognized that the Governor has a limited appointment power.13 The power of appointment is not an exclusive function of the executive, legislative or judicial departments. The Governor's appointment powers do not arise from any inherent power vested in the office.14 Although the pursuit of greater appointment powers is nothing new,15 Oklahoma citizens have reiterated the position that the Governor's appointment powers are limited and that governmental power should be widely dispersed.16 (Relevant citations included, but renumbered). We also noted in Keating that the Legislature was:"free to amend the statute" to provide the flexibility that the Governor sought, and it did so in 2003, by changing shall to may. In addition to the Governor's limited power of appointment, most Oklahoma agencies, boards, and commissions are independent of direct control of the Governor.17 In 2019, the Legislature authorized the Governor to choose the directors of five agencies which previously had been selected by the boards of the agencies.18 However it left the operation of other state agencies intact. ¶8 While the Governor's role may be faithful execution of the law, which he exceeded, nowhere in the Oklahoma Constitution is the Governor given the autonomous, broad authority to negotiate, execute, and bind the state to completed gaming compacts which are unauthorized by statute. Rather, art. 6, §8 clearly requires the Governor to act as may be prescribed by law. Any authority the Governor might have concerning gaming compacts, must be expressly prescribed by the Legislature. The Legislature neither expressly nor implicitly granted the Governor the power beyond negotiation. ¶9 The State-Tribal Gaming Act explicitly directs the Governor the authority to request re-negotiation,19 but nowhere, save for the original model compact,20 does the Act grant the Governor the authority to execute the compact and bind the state. The model compact only does so because it was pre-approved by the Legislature. Title 74 O.S. 2011 §1221 expressly grants the Governor the authority to negotiate and to enter into cooperative agreements with tribes. However, it also very, specifically, reserves authority in the Legislature finally to bind the state by requiring compacts be approved by a statutorily created joint committee before they can become effective. It provides in pertinent part: A. The State of Oklahoma acknowledges federal recognition of Indian tribes recognized by the Department of Interior, Bureau of Indian Affairs. B. The State of Oklahoma recognizes the unique status of Indian tribes within the federal government and shall work in a spirit of cooperation with all federally recognized Indian tribes in furtherance of federal policy for the benefit of both the State of Oklahoma and tribal governments. C. 1. The Governor is authorized to negotiate and enter into cooperative agreements on behalf of this state with federally recognized Indian tribal governments within this state to address issues of mutual interest. The Governor may elect to name a designee who shall have authority to negotiate and enter into cooperative agreements on behalf of the state with federally recognized Indian tribes as provided for in this section. Except as otherwise provided by this subsection, such agreements shall become effective upon approval by the Joint Committee on State-Tribal Relations. 2. If the cooperative agreements specified and authorized by paragraph 1 of this subsection involve trust responsibilities, approval by the Secretary of the Interior or designee shall be required. . . . (Emphasis supplied). ¶10 It is undisputed that the Joint Committee on State-Tribal Relations has not approved the Governor's compacts in this cause. Thus the compacts, in their entirety, are not effective. Whether the joint committee has approved any other agreements or compacts is irrelevant, and not before the Court in this cause. CONCLUSION ¶11 The Legislature has not authorized the Governor to bind the state with regard to tribal compacts. Nor has it been approved by the Joint Committee on State-Tribal relations.21 Rather the compact executed by the Governor contravened state law. The Governor's powers are limited by the Constitution. The Governor may exercise only the specific power granted. The Governor's attempt to exceed this authority results in the actions being rendered wholly ineffectual and invalid.22 FOOTNOTES 1 Strickland, Renard J., and Thomas, James C., Most Sensibly Conservative and Safety Radical: Oklahoma's Constitution Regulation of Economic Power, Land Ownership and Corporate Monopoly, 9 Tulsa L. J. 167 (2013). 2 Renard J. Strickland, and James C. Thomas, Most Sensibly Conservative and Safety Radical: Oklahoma's Constitution Regulation of Economic Power, Land Ownership and Corporate Monopoly, 9 Tulsa L.J. 167 ( 2013) . 3 Jean Shurmway Warner, Oklahoma Governors, The Almanac of Oklahoma Politics, pg. 10 4 Johnson v. Walters, 1991 OK 207, ¶5-7, fn. 10-13, Kauger, J., concurring 819 P.2d 694. 5 See, Compsource Mutual Ins. Co. v. State ex rel. Oklahoma Tax Comm'n, 2018 OK 54, ¶43, 435 P.3d 90; Wells v. Childers, 1945 OK 365, 165 P.2d 371. 6 Organization & Administrating Oklahoma, The Bookings Institute, 1935. 7 Jean Shurmway Warner, Oklahoma Governors, The Almanac of Oklahoma Politics, 10. 8 The Okla. Const. art 6, §1, provides: A. The Executive authority of the state shall be vested in a Governor, Lieutenant Governor, Secretary of State, State Auditor and Inspector, Attorney General, State Treasurer, Superintendent of Public Instruction, Commissioner of Labor, Commissioner of Insurance and other officers provided by law and this Constitution, each of whom shall keep his office and public records, books and papers at the seat of government, and shall perform such duties as may be designated in this Constitution or prescribed by law. B. The Secretary of State shall be appointed by the Governor by and with the consent of the Senate for a term of four (4) years to run concurrently with the term of the Governor. See also, Organization & Administrating Oklahoma, The Bookings Institute, 1935. As of 1935 the Governor's appointment powers were very limited. Some names have changed and some boards and commissions no longer exist anymore, the Legislature has done little to expand the Governor's power of appointment. "Powers of Appointment. The Governor's administrative position can best be under-stood by noting the extent of his control, through appointment and removal, over the heads of administrative agencies. In Oklahoma, 16 state officers, in addition to the Governor and Lieutenant Governor, are elected. The constitutional elective officers are the following: Attorney General, Secretary of State, State Auditor, State Treasurer, State Examiner and Inspector, Superintendent of Public Instruction, Insurance Commissioner, the three mem¬ bers of the Corporation Commission, Commissioner of Charities and Corrections, Commissioner of Labor, and Chief Mine Inspector. The statutory elective officers are: President of the State Board of Agriculture and four Assistant Mine Inspectors. Two other boards are elected: The Board of Governors of the State Bar, by the active members of the Bar; and the Board of Directors of the Historical Society, by the members of the Society. In addition, the following live boards and commissions are composed exclusively of elective officials: Board of Pardons; Commissioners of the Land Office (constitutional); the State Depository Board; the State Board of Equal¬ ization (constitutional) ; and the Board of Directors of the State Library. In the following three bodies, a majority of the members are ex-officio and elective, the Governor (when he is a member) and the appointive members being in a minority: Securities Commission, State Commission of Agricultural and Industrial Education; and Code Commission. The agencies headed by the above-mentioned officers and boards are clearly independent of direct control by the Governor. The following 26 officers and boards are appointed by the Governor, but only with the advice and consent of the Senate: Highway Commission, Insurance Board, Fraternal Insurance Board, Banking Board, Building and Loan Board, Board of Public Affairs, Board of Chiropody, Board of Pharmacy, Election Board, Board of Education, Board of Regents of University of Oklahoma, Board of Regents of Oklahoma College for Women, Board of Regents of Northeastern Oklahoma Junior College/ Board of Regents of Colored A. and N. College. Coordinating Board, Budget Officer, State Board of Agriculture, Conservation Commission, Flood Control Board, Game and Fish Com¬ mission, Board of Arbitration and Conciliation, Mining Board, Industrial Commission, Tax Commission, Adjutant General, and Fire Marshal. In the case of some of these latter appointments, there are other limitations on the Governor's freedom of action, the most common one stipulating that the appointee shall be recommended, or selected from a; list submitted by a private association. Such a stipulation applies, for example, to the Banking Board, the Board of Pharmacy, and the Election Board. There are some other appointments, which do not require confirmation by the Senate but which must be made from nominations or lists submitted by private associations. Officers and boards so appointed include the Board of Dental Examiners, the Board of Embalming, the Board of Examiners of Nurses, the Soldiers' Relief Commission. and the Custodians of the three Memorial Halls. In the case of two or three boards, the make-up represents mixed systems of appointment, but so arranged as in effect to neutralize wholly or partly the Governor's control. Examples are Advisory Board of the State Farm and Industrial Council, the Forrest Commission, the Board of Arbitration and Concilation. 9 See discussion note 17, supra. 10 Organization & Administrating Oklahoma, The Bookings Institute, 1935. 11 Thad L. Beyle, The Powers of the Governor in North Carolina: Where the Weak Grow Strong* -- Except for the Governor. pg. 31, The Chief Executive, March 1990. 12 The Okla. Const. art. 5, §60 provides in pertinent part: "The Legislature shall provide by law for the establishment and maintenance of an efficient system of checks and balances between the officers of the Executive Department . . . " 13 Oklahoma's territorial law gave the governor the power to make all appointments. Section 2 of Oklahoma's Organic Act, 26 Stat. 82 (1890) provides: "That the executive power of the Territory of Oklahoma Shall be vested in a governor, who shall hold office for four years and until his successor shall be appointed and qualified, unless sooner removed by the president of the United States. The governor shall reside within said Territory; shall be commander-in-chief of the militia thereof; he may grant pardons for offenses against the laws of said Territory; and reprieves for offenses against the laws of the United States, until the decision of the president can be made known thereon; he shall commission all officers who shall be appointed to office under the laws of said Territory, and shall take care that the laws be faithfully executed." However, when the people of Oklahoma formed a state government and adopted the Oklahoma Constitution, the appointment power created in the Governor was substantially reduced. The Okla. Const. art. 6, §13 provides: "The Governor shall commission all officers not otherwise commissioned by law. All commissions shall run in the name and by the authority of the 'State of Oklahoma,' be signed by the Governor, sealed with the Great Seal of the State of Oklahoma, and attested by the Secretary of State. When any office shall become vacant, he shall, unless otherwise provided by law, appoint a person to fill such vacancy, who shall continue in office until a successor shall have been duly elected or appointed, and qualified according to law." See, R. Henry, "Deliberations About Democracy: Revolutions, Republicanism, & Reform," 34 Willamette L.Rev. 533, 561 (1998), for a discussion of the division of powers among the departments of government in Oklahoma. 14 Riley v. State ex rel. McDaniel, 1914 OK 251, 141 P. 264. 15 See, Riley v. State ex rel. McDaniel, note 23, supra. See also, In re Initiative Petition No. 344, 1990 OK 75, ¶3, 797 P.2d 326, which we rejected, in part, because it failed to advise the voters that the Governor would be allowed to appoint a majority of all boards and it removed the power of the Legislature to enact laws determining how vacancies of elected offices of the executive department were filled. 16 In 1988, the electorate in State Question 613 voted to make the Labor Commissioner an elected state official rather than permit the Commissioner to be appointed by the Governor. The people have also had opportunities to allow appointment to boards and commissions by persons other than the Governor. In 1990, pursuant to State Question 627, the people created the Ethics Commission with appointees by the Governor, Chief Justice, President Pro Tempore of the Senate, Speaker of the House and Attorney General. Okla. Const. art. 6, §10. In 1992, the people approved State Question 649, the Oklahoma Building Bonds Commission, which provided that members be appointed by the Governor and leaders of the two houses. Okla. Const. art. 10, §43. 17 Organization & Administrating Oklahoma, The Bookings Institute, 1935. 18 The agencies are the Office of Juvenile Affairs; Oklahoma Department of Corrections; Oklahoma Health Care Authority; Department of Mental Health and Substance Abuse Services; and Oklahoma Department of Transportation. The bills were enacted during the 2019 Legislative session. The bills signed are House Bill 2479; House Bill 2480; House Bill 2483; Senate Bill 456; and Senate Bill 457. 19 Title 3A O.S. O.S. 2012 §281 (The provisions of the Model Compact) provide in pertinent part: B. This Compact shall have a term which will expire on January 1, 2020, and at that time, if organization licensees or others are authorized to conduct electronic gaming in any form other than pari-mutuel wagering on live horse racing pursuant to any governmental action of the state or court order following the effective date of this Compact, the Compact shall automatically renew for successive additional fifteen-year terms; provided that, within one hundred eighty (180) days of the expiration of this Compact or any renewal thereof, either the tribe or the state, acting through its Governor, may request to renegotiate the terms of subsections A and E of Part 11 of this Compact. 20 Title 3A O.S. Supp. 2018 §280 provides in pertinent part: The State of Oklahoma through the concurrence of the Governor after considering the executive prerogatives of that office and the power to negotiate the terms of a compact between the state and a tribe, and by means of the execution of the State-Tribal Gaming Act, and with the concurrence of the State Legislature through the enactment of the State-Tribal Gaming Act, hereby makes the following offer of a model tribal gaming compact regarding gaming to all federally recognized Indian tribes as identified in the Federal Register within this state that own or are the beneficial owners of Indian lands as defined by the Indian Gaming Regulatory Act, 25 U.S.C., Section 2703(4), and over which the tribe has jurisdiction as recognized by the Secretary of the Interior and is a part of the tribe's "Indian reservation" as defined in 25 C.F.R., Part 151.2 or has been acquired pursuant to 25 C.F.R., Part 151, which, if accepted, shall constitute a gaming compact between this state and the accepting tribe for purposes of the Indian Gaming Regulatory Act. Acceptance of the offer contained in this section shall be through the signature of the chief executive officer of the tribal government whose authority to enter into the compact shall be set forth in an accompanying law or ordinance or resolution by the governing body of the tribe, a copy of which shall be provided by the tribe to the Governor. No further action by the Governor or the state is required before the compact can take effect. A tribe accepting this Model Tribal Gaming Compact is responsible for submitting a copy of the Compact executed by the tribe to the Secretary of the Interior for approval and publication in the Federal Register. The tribe shall provide a copy of the executed Compact to the Governor. No tribe shall be required to agree to terms different than the terms set forth in the Model Tribal Gaming Compact, which is set forth in Section 281 of this title. As a precondition to execution of the Model Tribal Gaming Compact by any tribe, the tribe must have paid or entered into a written agreement for payment of any fines assessed prior to the effective date of the State-Tribal Gaming Act by the federal government with respect to the tribe's gaming activities pursuant to the Indian Gaming Regulatory Act. . . . 21 The Oklahoma Constitution prohibits the unlawful delegation of a legislative authority. Okla. Const. art. IV, §1 provides: The powers of the government of the State of Oklahoma shall be divided into three separate departments: The Legislative, Executive, and Judicial; and except as provided in this Constitution, the Legislative, Executive, and Judicial departments of government shall be separate and distinct, and neither shall exercise the powers properly belonging to either of the others. The Okla. Const. art. V, §1 provides: The Legislative authority of the State shall be vested in a Legislature, consisting of a Senate and a House of Representatives; but the people reserve to themselves the power to propose laws and amendments to the Constitution and to enact or reject the same at the polls independent of the Legislature, and also reserve power at their own option to approve or reject at the polls any act of the Legislature. The constitutionality of the Joint Committee of State-Tribal relations as an unlawful delegation of legislative authority has not been challenged in this cause or any other. Because the compacts were not submitted to the committee, if we were to address it sua sponte, it would be merely advisory. We do not issue advisory opinions. Dank v. Benson, 2000 OK 40, ¶ 7, 5 P.3d 1088; Keating v. Johnson, 1996 OK 61, ¶ 0, 918 P.2d 51; Application of Fun Country Development Auth., 1977 OK 138, ¶ 3, 566 P.2d 1167. Furthermore, we are bound by the record presented for review. Heirshberg v. Slater, 1992 OK 84, ¶ 5, 833 P.2d 269; Snyder v. Smith Welding & Fabrication, 1986 OK 35, ¶ 1, 746 P.2d 168 [Supplemental opinion on rehearing]. 22 Johnson v. Walters, 1991 OK 107 at ¶¶ 5--7, fn. 10--13 (concurring opinion), 819 P.2d at 703. ROWE, J., concurring in result: ¶1 I concur with the Court's judgment that the new compacts entered into between the Governor and the United Keetoowah Band of Cherokee Indians and the Kialegee Tribal Town, respectively, are invalid under Oklahoma law. I cannot accede, however, as to any finding or implication in the Court's opinion that the Joint Committee could validate these compacts. ¶2 While the facts of this case are slightly different from those in Treat I, in that the compacts at issue here do not expand the scope of permissible Class III gaming, they nevertheless conflict with the STGA in important ways.1 Because these compacts stand in conflict with Oklahoma law, they operate not only as agreements between the State and the Tribes but also as amendments to Oklahoma law. The Joint Committee cannot make valid and enforceable an unlawful compact. ¶3 A finding or implication to the contrary would be inconsistent with this Court's jurisprudence on the non-delegation doctrine. Article V, Section 1 of the Oklahoma Constitution vests legislative authority in the Legislature exclusively: The Legislative authority of the State shall be vested in a Legislature, consisting of a Senate and a House of Representatives; but the people reserve to themselves the power to propose laws and amendments to the Constitution and to enact or reject the same at the polls independent of the Legislature, and also reserve power at their own option to approve or reject at the polls any act of the Legislature. The non-delegation doctrine "rests on the premise that the legislature must not abdicate its responsibility to resolve fundamental policy making by [1] delegating that function to others or [2] by failing to provide adequate directions for the implementation of its declared policy." City of Oklahoma City v. State ex rel. Okla. Dept. of Labor, 1995 OK 107, ¶12, 918 P.2d 26, 29 (citing Democratic Party of Oklahoma v. Estep, 1982 OK 106, ¶16 n.23, 652 P.2d 271, 277 n.23). If the Joint Committee could approve compacts that operate as amendments to Oklahoma law, the Joint Committee would possess functional legislative authority.2 Such an arrangement would unquestionably run afoul of the non-delegation doctrine. FOOTNOTES 1 Specifically, the compacts grant the Governor exclusive authority to authorize new forms of gaming beyond those permitted by the STGA and to settle disputes arising between the State and the Tribes under the compacts. The compacts also authorize monetary sanctions on the Tribes for violations of the compacts and appropriates those funds to the Office of Management and Enterprise Services. 2 This does not necessarily render the power of the Joint Committee illusory. The Joint Committee still possesses the power to approve or disapprove compacts that are consistent with Oklahoma law. Citationizer© Summary of Documents Citing This Document Cite Name Level None Found. Citationizer: Table of Authority Cite Name Level Oklahoma Court of Criminal Appeals Cases  CiteNameLevel  2005 OK CR 7, 110 P.3d 83, WHIRLPOOL CORP. v. HENRYDiscussed Oklahoma Supreme Court Cases  CiteNameLevel  1986 OK 35, 746 P.2d 168, 57 OBJ 1480, Snyder v. Smith Welding & FabricationDiscussed  1914 OK 251, 141 P. 264, 43 Okla. 65, RILEY v. STATE ex rel. McDANIEL.Discussed  1990 OK 75, 797 P.2d 326, 61 OBJ 1655, Initiative Petition No. 344, State Question No. 630, In reDiscussed  1991 OK 107, 819 P.2d 694, 62 OBJ 3397, Johnson v. WaltersDiscussed  1992 OK 84, 833 P.2d 269, 63 OBJ 1824, Heirshberg v. SlaterDiscussed  1993 OK 37, 850 P.2d 1069, 64 OBJ 978, Ethics Com'n of State of Okl. v. CullisonDiscussed  2001 OK 110, 37 P.3d 882, 72 OBJ 3672, KEATING v. EDMONDSONDiscussed  1945 OK 365, 165 P.2d 371, 196 Okla. 353, WELLS v. CHILDERSDiscussed  1932 OK 636, 15 P.2d 65, 159 Okla. 124, WENTZ v. THOMAS.Discussed  1995 OK 107, 918 P.2d 26, 66 OBJ 3184, City of Oklahoma City v. State ex rel. Oklahoma Dept. of LaborDiscussed  1996 OK 61, 918 P.2d 51, 67 OBJ 1680, Keating v. JohnsonDiscussed  2007 OK 27, 163 P.3d 512, FENT v. CONTINGENCY REVIEW BOARDDiscussed  2009 OK 6, 212 P.3d 447, COSSEY v. CHEROKEE NATION ENTERPRISES, LLCDiscussed at Length  2009 OK 51, 230 P.3d 488, GRIFFITH v. CHOCTAW CASINO OF POCOLADiscussed at Length  1977 OK 138, 566 P.2d 1167, APPLICATION OF FUN COUNTRY DEVELOP. AUTHORITYDiscussed  2018 OK 54, 435 P.3d 90, COMPSOURCE MUTUAL INSUR. CO. v. STATE ex rel. OKLA. TAX COMM. and OKLA. ASSOC. OF ELECTRIC SELF INSURERS FUND v. STATE OF OKLA. TAX COMM. Discussed  2020 OK 64, 473 P.3d 43, TREAT v. STITTDiscussed at Length  2000 OK 40, 5 P.3d 1088, 71 OBJ 1291, Dank v. BensonDiscussed  1982 OK 106, 652 P.2d 271, Democratic Party of Oklahoma v. EstepDiscussed Title 21. Crimes and Punishments  CiteNameLevel  21 O.S. 941, Gambling - Conducting - Penalty - FelonyCited Title 3A. Amusements and Sports  CiteNameLevel  3A O.S. 280, Offer of Model Tribal Gaming CompactDiscussed at Length  3A O.S. 281, Provisions of the Model Tribal Gaming CompactDiscussed at Length  3A O.S. 280.1, Gaming Compact SupplementsDiscussed Title 74. State Government  CiteNameLevel  74 O.S. 1221, Unique Status of Indian Tribes within Federal GovernmentDiscussed at Length

2021-01-26 19:12:44.109692+00

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AMENDMENT OF RULES 3, 4 5 and 7 OF RULES GOVERNING ADMISSION TO PRACTICE OF LAW Skip to Main Content Accessibility Statement OSCN Found Document:AMENDMENT OF RULES 3, 4 5 and 7 OF RULES GOVERNING ADMISSION TO PRACTICE OF LAW Previous Case Top Of Index This Point in Index Citationize Next Case Print Only AMENDMENT OF RULES 3, 4 5 and 7 OF RULES GOVERNING ADMISSION TO PRACTICE OF LAW 2021 OK 2 Case Number: SCBD-7013 Decided: 01/21/2021 THE SUPREME COURT OF THE STATE OF OKLAHOMA Cite as: 2021 OK 2, __ P.3d __ NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. IN RE: Amendment of Rules Three, Four Five and Seven of Rules Governing Admission to the Practice of Law, 5 O.S. 2011, ch.1, app.5 SECOND CORRECTED ORDER This matter comes on before this Court upon an Application to Amend Rules Three, Four, Five and Seven of Rules Governing Admission to the Practice of Law, 5 O.S. 2011, ch.1, app. 5 (hereinafter "Rules") filed on January 13, 2021. This Court finds that it has jurisdiction over this matter and the Rules are hereby amended as set out in Exhibit A attached hereto, effective immediately. DONE IN CONFERENCE the 19th day of January, 2021. /S/CHIEF JUSTICE     EXHIBIT A RULE THREE EXAMINATION COMPULSORY No person other than those referred to in Rule Two shall be admitted to the practice of law in this state except upon recommendation of the Board of Bar Examiners obtained after such person shall have successfully taken the examination in writing, or as otherwise prescribed or be allowed to transfer a Uniform Bar Exam (UBE) score. Only those persons possessing the qualifications and fulfilling the conditions hereinafter prescribed shall be permitted to take an examination or seek UBE score transfer for admission to the practice of law in the State of Oklahoma. RULE FOUR ADMISSION BY EXAMINATION OR UBE SCORE TRANSFER Section 1. When examination of an attorney of another jurisdiction is required of one who is not eligible for admission upon motion as provided in Rule Two hereof, such attorney may be permitted by the Board of Bar Examiners to take an examination or may transfer a verified UBE score within 3 years. Applicants with UBE scores older than 3 but less than 5 years may apply for admission based on the UBE score plus a period of active law practice for at least 2 years immediately preceding their Oklahoma application. The applicant shall be required to provide at his or her own expense a report by the National Conference of Bar Examiners (NCBE). Section 2. Registration as a law student may be accomplished by the filing of a verified application for registration by the 15th day of October of the student's second year of law school on forms prescribed by the Board of Bar Examiners setting forth such information as the Board requires including: (a) Certificate of graduation with a Bachelor of Arts or Science degree (with a minimum of 120 college hours, at least 90 hours representing resident study) from a college whose credit hours are transferable to the University of Oklahoma, Oklahoma City University or University of Tulsa with transcript attached of undergraduate college work; (b) Two (2) sets of fingerprints which may be submitted to both the Oklahoma State Bureau of Investigation and the Federal Bureau of Investigation for appropriate record reviews. (c) Recent photograph. (d) NCBE Student Application Report for Character and Fitness at his or her own expense. The Board may, in its discretion, register nunc pro tunc students who have been enrolled in a law school accredited by the American Bar Association upon compliance with all applicable rules herein. The application provided by this section shall be valid for a period of ten (10) years. In the event the applicant has not activated the application within this ten (10) year period, the application will no longer be valid and the file containing the application and required information will be destroyed. Section 3. Application to take a bar exam shall be filed at least six months prior to the date of examination on forms prescribed by the Board of Bar Examiners setting forth such information as the Board requires. Such application shall contain proof of law school study with a certified transcript attached and a certificate of the law school dean or associate dean that the applicant has met the requirements for graduation with a Juris Doctor degree from a law school in the United States of America, its territories and possessions, accredited by the American Bar Association. A person who matriculates at a law school which was accredited when applicant enrolled therein, and who completes the course of study and is graduated therefrom, shall be deemed a graduate of an accredited law school, even though the school's accreditation was withdrawn while the applicant was enrolled therein. No applicant may be admitted by examination or UBE score transfer until he or she shall furnish evidence that a score satisfactory to the Board of Bar Examiners on the Multistate Professional Responsibility Examination has been attained. Admission must be effected within one year after the date the applicant successfully completes the bar examination unless extended by the Board of Bar Examiners. RULE FIVE EXAMINATION In effect on March 1, 2021; All applicants for admission by examination who score at least a 264 on the Uniform Bar Examination (UBE), either in Oklahoma or by transfer of the score from a UBE administered in another UBE jurisdiction authorized by the NCBE and are otherwise qualified under these rules shall be recommended by the Board of Bar Examiners to the practice of law in this state. There shall be held two bar examinations each year, at dates, times, places and duration to be prescribed by the Board of Bar Examiners. RULE SIX ADDITIONAL EXAMINATIONS In the event of the failure of an applicant to pass any examination, such applicant, if otherwise qualified under these Rules, may be permitted to take any number of subsequent examinations upon filing an additional application with the Board of Bar Examiners proving continued good moral character and fitness to practice law. The application shall be filed by May 15 for the July examination and by December 15 for the February examination. RULE SEVEN FEES The following non-refundable fees shall be paid to the Board of Bar Examiners at the time of filing of the application: (a) Registration: Regular . . . . . . . . . . . . $125 Nunc Pro Tunc . . . . . . . $500 (b) By each applicant for admission upon motion: the sum of $2,000. (c) By each applicant for admission by examination under Rule Four, §1: FEBRUARY BAR EXAM Application filed on or before: 1 September . . . . $1,250 1 October . . . . . . $1,300 1 November . . . . $1,400 JULY BAR EXAM Application filed on or before: 1 February . . . . .$1,250 1 March . . . . . . .$1,300 1 April . . . . . . . .$1,400 or applicants for admission by UBE score transfer only who are licensed in another jurisdiction or have not previously registered as a law student: the sum of $1,250 (d) By each applicant for a Special Temporary Permit under Rule Two, §5: the sum of $750. (e) By each applicant for admission by a Special Temporary Permit under Rule Two, §6: the sum of $100. (f) For each applicant for a Special Temporary Permit under Rule Two, §7, there will not be any fee charged to the applicant. (g) By each applicant for a Temporary Permit under Rule Nine: $150. (h) By each applicant for admission by examination who have previously registered as a law student: FEBRUARY BAR EXAM Application filed on or before: 1 September . . . . . . $650 1 October . . . . . . . . $700 1 November . . . . . . . $800 In effect until May 31, 2021; JULY BAR EXAM Application filed on or before: 1 February . . . . . . . $400 1 March . . . . . . . . . $450 1 April . . . . . . . . . . $550 In effect on June 1, 2021; JULY BAR EXAM Application filed on or before: 1 February . . . . . . . $650 1 March . . . . . . . . . $700 1 April . . . . . . . . . . $800      EXHIBIT A RULE THREE EXAMINATION COMPULSORY No person other than those referred to in Rule Two shall be admitted to the practice of law in this state except upon recommendation of the Board of Bar Examiners obtained after such person shall have successfully taken the examination in writing, or as otherwise prescribed or be allowed to transfer a Uniform Bar Exam (UBE) score. Only those persons possessing the qualifications and fulfilling the conditions hereinafter prescribed shall be permitted to take an examination or seek UBE score transfer for admission to the practice of law in the State of Oklahoma. RULE FOUR ADMISSION BY EXAMINATION OR UBE SCORE TRANSFER Section 1. When examination of an attorney of another jurisdiction is required of one who is not eligible for admission upon motion as provided in Rule Two hereof, such attorney may be permitted by the Board of Bar Examiners to take an examination prescribed in Rule Five or may transfer a verified UBE score within 3 years. Applicants with UBE scores older than 3 but less than 5 years may apply for admission based on the UBE score plus a period of active law practice for at least 2 years immediately preceding their Oklahoma application. upon meeting the requirements of this Rule, except that such attorney shall not be required to register as a law student. However, such attorney The applicant shall be required to provide at his or her own expense a report by the National Conference of Bar Examiners (NCBE). Section 2. No person shall be entitled to take an examination for admission to practice law in this state unless such person shall have been registered Registration as a law student may be accomplished by the filing of a the verified application for registration by the 15th day of October of the student's second year of law school on forms prescribed by the Board of Bar Examiners setting forth such information as the Board requires including: (a) Certificate of graduation with a Bachelor of Arts or Science degree (with a minimum of 120 college hours, at least 90 hours representing resident study) from a college whose credit hours are transferable to the University of Oklahoma, Oklahoma City University or University of Tulsa with transcript attached of undergraduate college work; (b) Two (2) sets of fingerprints which may be submitted to both the Oklahoma State Bureau of Investigation and the Federal Bureau of Investigation for appropriate record reviews. (c) Recent photograph. (d) NCBE Student Application Report for Character and Fitness at his or her own expense. The Board may, in its discretion, register nunc pro tunc students who have been enrolled in a law school accredited by the American Bar Association upon compliance with all applicable rules herein. The application provided by this section shall be valid for a period of ten (10) years. In the event the applicant has not activated the application within this ten (10) year period, the application will no longer be valid and the file containing the application and required information will be destroyed. Section 3. Application to take a bar exam shall be filed at least six months prior to the date of examination on forms prescribed by the Board of Bar Examiners setting forth such information as the Board requires. Such application shall contain proof of law school study with a certified transcript attached and a certificate of the law school dean or associate dean that the applicant has met the requirements for graduation with a Juris Doctor degree from a law school in the United States of America, its territories and possessions, accredited by the American Bar Association. A person who matriculates at a law school which was accredited when applicant enrolled therein, and who completes the course of study and is graduated therefrom, shall be deemed a graduate of an accredited law school, even though the school's accreditation was withdrawn while the applicant was enrolled therein. No applicant may be admitted by examination or UBE score transfer until he or she shall furnish evidence that a score satisfactory to the Board of Bar Examiners on the Multistate Professional Responsibility Examination has been attained. Admission must be effected within one year after the date the applicant successfully completes the bar examination unless extended by the Board of Bar Examiners. RULE FIVE EXAMINATION In effect on March 1, 2021; All applicants for admission by examination who: A) Shall have attained a grade of at least 75% in the subject of Oklahoma Rules of Professional Conduct; and B) Shall have attained a combined grade equivalent to at least 75% on the examination given by the Board of Bar Examiners which shall include: 1) the Multistate Bar Examination (MBE); and 2) essay questions which cover combinations of the subjects hereinafter specified: 1. Oklahoma Rules of Professional Conduct 2. Commercial Law, which may include: (a) Contracts (b) Uniform Commercial Code (c) Consumer Law (d) Creditor's rights, including bankruptcy 3. Property 4. Procedural Law, which may include: (a) Pleadings (b) Practice (c) Evidence (d) Remedies (damages, restitution and equity) 5. Criminal Law 6. Business Associations, which may include: (a) Agency (b) Partnerships (including joint ventures) (c) Corporations (d) Limited Liability Companies 7. Constitutional and Administrative Law 8. Torts 9. Intestate Succession, wills, trusts, estate planning, which may include federal estate and gift taxation 10. Conflicts of Law 11. Family Law score at least a 264 on the Uniform Bar Examination (UBE), either in Oklahoma or by transfer of the score from a UBE administered in another UBE jurisdiction authorized by the NCBE and C) are otherwise qualified under these rules shall be recommended by the Board of Bar Examiners to the practice of law in this state. Any applicant who is otherwise qualified to be recommended for admission to the Bar except by reason of failure to pass satisfactorily the section of the Oklahoma Bar Examination concerning the Oklahoma Rules of Professional Conduct shall be eligible for re-examination in the subject Oklahoma Rules of Professional Conduct. Such re-examination shall be conducted by the Board at a time and place to be fixed by the Board and may be written or oral or both. If, upon such reexamination, the applicant receives a satisfactory grade in the subject Oklahoma Rules of Professional Conduct and is found by the Board to have otherwise qualified to be recommended for admission to the Bar, such applicant shall thereupon be so recommended. Any applicant who fails to receive a satisfactory grade upon such re-examination shall be required to reapply for permission to take a further examination concerning the Oklahoma Rules of Professional Conduct, which may be given at the discretion of the Board. There shall be held two bar examinations each year, at dates, times, places and duration to be prescribed by the Board of Bar Examiners. RULE SIX ADDITIONAL EXAMINATIONS In the event of the failure of an applicant to pass any examination, such applicant, if otherwise qualified under these Rules, may be permitted to take any number of subsequent examinations upon filing an additional application with the Board of Bar Examiners proving continued good moral character and fitness to practice law. The application shall be filed by May 15 for the July examination and by December 15 for the February examination. RULE SEVEN FEES The following non-refundable fees shall be paid to the Board of Bar Examiners at the time of filing of the application: (a) Registration: Regular . . . . . . . . . . . . $125 Nunc Pro Tunc . . . . . . . $500 (b) By each applicant for admission upon motion: the sum of $2,000. (c) By each applicant for admission by examination under Rule Four, §1: FEBRUARY BAR EXAM Application filed on or before: 1 September . . . . .$1,100 $1,250 1 October . . . . . . .$1,150 $1,300 1 November . . . . .$1,250 $1,400 JULY BAR EXAM Application filed on or before: 1 February . . . . . .$1,100 $1,250 1 March . . . . . . . .$1,150 $1,300 1 April . . . . . . . . .$1,250 $1,400 or applicants for admission by UBE score transfer only who are licensed in another jurisdiction or have not previously registered as a law student: the sum of $1,250 (d) By each applicant for a Special Temporary Permit under Rule Two, §5: the sum of $750. (e) By each applicant for admission by a Special Temporary Permit under Rule Two, §6: the sum of $100. (f) For each applicant for a Special Temporary Permit under Rule Two, §7, there will not be any fee charged to the applicant. (g) By each applicant for a Temporary Permit under Rule Nine: $150. (h) By each applicant for admission by examination other than those under subparagraph (c) hereof who have previously registered as a law student: FEBRUARY BAR EXAM Application filed on or before: 1 September . . . . . $400 $650 1 October . . . . . . . $450 $700 1 November . . . . . $550 $800 In effect until May 31, 2021; JULY BAR EXAM Application filed on or before: 1 February . . . . . . . $400 1 March . . . . . . . . . $450 1 April . . . . . . . . . . $550 In effect on June 1, 2021 JULY BAR EXAM Application filed on or before: 1 February . . . . . . $400 $650 1 March . . . . . . . . $450 $700 1 April . . . . . . . . . $550 $800           Citationizer© Summary of Documents Citing This Document Cite Name Level Title 5. Attorneys and the State Bar  CiteNameLevel  5 O.S. Rule 3, Examination CompulsoryCited  5 O.S. Rule 4, Admission by Examination or UBE Score TransferCited  5 O.S. Rule 5, ExaminationCited  5 O.S. Rule 7, FeesCited Citationizer: Table of Authority Cite Name Level None Found.

2021-01-26 19:12:44.636307+00

http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=487537

STATE ex rel. OKLAHOMA BAR ASSOCIATION v. JACK Skip to Main Content Accessibility Statement OSCN Found Document:STATE ex rel. OKLAHOMA BAR ASSOCIATION v. JACK Previous Case Top Of Index This Point in Index Citationize Next Case Print Only STATE ex rel. OKLAHOMA BAR ASSOCIATION v. JACK 2021 OK 1 Case Number: SCBD-6896 Decided: 01/19/2021 THE SUPREME COURT OF THE STATE OF OKLAHOMA Cite as: 2021 OK 1, __ P.3d __ NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. STATE OF OKLAHOMA ex rel., OKLAHOMA BAR ASSOCIATION, Complainant, v. TARA K. JACK, Respondent. BAR DISCIPLINARY PROCEEDING ¶0 Complainant, State of Oklahoma ex rel. Oklahoma Bar Association, charged Respondent, Tara K. Jack, with three counts of professional misconduct, all involving her failure to properly supervise nonlawyer employees under her direct supervision and allowing them to engage in the unauthorized practice of law. The Professional Responsibility Tribunal recommended Respondent be publicly censured. We hold there is clear and convincing evidence that the totality of Respondent's conduct warrants public censure. Respondent is ordered to pay the costs as herein provided within ninety days after this opinion becomes final. RESPONDENT PUBLICLY CENSURED AND ORDERED TO PAY COSTS Gina L. Hendryx, General Counsel, Oklahoma Bar Association, Oklahoma City, Oklahoma, for Complainant. Allen M. Smallwood, Smallwood Law Office, Tulsa, Oklahoma, for Respondent. ROWE, J.: ¶1 Complainant, State of Oklahoma ex rel. Oklahoma Bar Association began disciplinary proceedings pursuant to Rule 6, Rules Governing Disciplinary Proceedings ("RGDP"), 5 O.S.2011 ch. 1, app. 1-A, alleging three counts of professional misconduct against Respondent, Tara K. Jack. Respondent is an active member of the Oklahoma Bar Association and is currently in good standing. Complainant's allegations arise from Respondent's allowance of unlicensed prosecutors under her direct supervision at the Tulsa County District Attorney's office to engage in the unauthorized practice of law. Complainant alleges Respondent's actions are in violation of the Oklahoma Rules of Professional Conduct ("ORPC"), 5 O.S.2011, ch. 1, app. 3-A, and the RGDP and are cause for professional discipline. Procedural History ¶2 Complainant filed its formal Complaint with the Office of the Chief Justice on January 23, 2020, which contained three counts of alleged misconduct related to Respondent's supervision of five individuals engaged in the unauthorized practice of law. Respondent filed an answer to the Complaint on February 11, 2020. ¶3 On March 11, 2020, the Professional Responsibility Tribunal ("Tribunal") held a hearing on the allegations contained in the Complaint, pursuant to Rule 6, RGDP. On June 5, 2020, the Tribunal filed its report wherein it found that Complainant had established by clear and convincing evidence that Respondent violated Rules 5.3(b), 5.3(c), 5.5(a), 8.4(a), and 8.4(d), ORPC, and Rule 1.3, RGDP. The Tribunal unanimously recommended that Respondent be publicly censured. Standard of Review ¶4 This Court possesses exclusive jurisdiction in Bar Association disciplinary proceedings. State ex rel. Okla. Bar Ass'n v. Holden, 1995 OK 25, ¶10, 895 P.2d 707, 711. We review the evidence de novo to determine whether the allegations of misconduct have been established by clear and convincing evidence. Rule 6.12(c), RGDP; State ex rel. Okla. Bar Ass'n v. Bolusky, 2001 OK 26, ¶7, 23 P.3d 268, 272. Clear and convincing evidence is "that measure or degree of proof which produces in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established." State ex rel. Okla. Bar Ass'n v. Green, 1997 OK 39, ¶5, 936 P.3d 947, 949. ¶5 Our goals in disciplinary proceedings are to protect the interests of the public and to preserve the integrity of the courts and the legal profession, not to punish attorneys. State ex rel. Okla. Bar Ass'n v. Kinsey, 2009 OK 31, ¶15, 212 P.3d 1186, 1192. We consider the discipline previously imposed for similar professional misconduct to ensure that discipline is administered uniformly. Id. at ¶16, 212 P.3d at 1192 (citing State ex rel. Okla. Bar Ass'n v. Doris, 1999 OK 94, ¶37, 991 P.2d 1015, 1025). Discipline, however, is decided on a case-by-case basis to account for differences in the offending conduct and mitigating circumstances. Id. Background ¶6 Throughout the summer and fall of 2018, Tulsa County District Attorney Steve Kunzweiler was engaged in a contested reelection campaign. Concerns over a change in leadership, and consequently job security related to the campaign, prompted a number of assistant district attorneys to seek employment elsewhere. This exodus left the Tulsa County District Attorney's office shorthanded and forced the remaining assistant district attorneys to take on additional responsibilities. At that time, Respondent was employed as an Assistant District Attorney and serving as the Director of the Traffic and Misdemeanor Division. In that role, Respondent had direct supervisory authority of lawyer and non-lawyer employees in the division. I. Count I: The Sweeney Grievance ¶7 Among the employees under Respondent's supervision was Kelly Sweeney. Sweeney was hired as a Provisional Assistant District Attorney by the Tulsa County District Attorney's office on August 1, 2018, and assigned to the Traffic and Misdemeanor division. The "Provisional Assistant District Attorney" title was an unofficial designation applied within the Tulsa County District Attorney's office to individuals who were hired as Assistant District Attorneys but were not yet licensed to practice law. At the time of her hiring, Sweeney had recently graduated from The University of Tulsa College of Law and taken the July 2018 Oklahoma Bar Exam. Sweeney was not a licensed legal intern1 at the time, or at any time previously, and she did not hold any special permit to practice law in Oklahoma. On September 7, 2018, Sweeney learned that she failed the Oklahoma Bar Exam, but she remained employed at the Tulsa County District Attorney's office. ¶8 Despite not having a legal intern license, Sweeney began representing the State of Oklahoma in criminal proceedings shortly after her employment began. In the period from August 1, 2018 to November 13, 2018, Sweeney made court appearances in numerous criminal misdemeanor cases, negotiated plea agreements with defendants and their counsel, and argued motions on behalf of the State. On October 12, 2018, Sweeney represented the State in a non-jury trial in Tulsa County, during which she cross-examined witnesses and presented arguments to the court. On November 6, 2018, Sweeney, along with a licensed attorney from the District Attorney's office, represented the State in a jury trial, during which Sweeney questioned prospective jurors, gave an opening statement, conducted direct examination of a witness, and presented closing arguments. ¶9 On November 13, 2018, Sweeney presented a complaint about a defense attorney to Special Judge April Seibert, who had presided over the jury trial the previous week. During her conversation with Judge Seibert, Sweeney indicated that she was not licensed to practice as an attorney, legal intern, or otherwise. Judge Siebert directed Sweeney to immediately cease engaging in any activities that would constitute the practice of law. Judge Siebert then contacted Respondent and First Assistant District Attorney Erik Grayless and advised them of what Sweeney had told her. Both Respondent and Grayless indicated to Judge Seibert that they were not aware Sweeney was practicing without a license. ¶10 Following his conversation with Judge Seibert, Grayless initiated an internal investigation in the District Attorney's office to determine if other employees were engaging in the unauthorized practice of law. The internal investigation revealed that at least two other employees, Randall Young and Michael Shouse, had engaged in the unauthorized practice of law. At some point in November 2018, Grayless contacted the Oklahoma Bar Association and submitted a voluntary disclosure that employees of the District Attorney's office who were not licensed to practice law had represented the State of Oklahoma in criminal proceedings. II. Count II: The Young Grievance ¶11 In or around April 2018, Randall Young was hired by the District Attorney's office and assigned to Respondent's division. At the time of his hiring, Young was a third year law student at the University of Tulsa College of Law. Young graduated from law school in May 2018 and took the July 2018 Oklahoma Bar Exam. Young learned that he passed the Bar Exam on September 7, 2018, and was sworn in on September 25, 2018. Prior to his swearing-in, Young had never held a license to practice law in Oklahoma, as a legal intern or otherwise. ¶12 Despite being unlicensed at the time, Young began representing the State of Oklahoma in criminal proceedings in August 2018. Prior to his swearing-in on September 25, 2018, Young made court appearances in numerous criminal misdemeanor cases, negotiated plea agreements with defendants and their counsel, and argued motions on behalf of the State. On August 27 and 28, 2018, Young, along with a licensed attorney from the District Attorney's office, represented the State in a jury trial, during which Young questioned prospective jurors, gave an opening statement, conducted direct examination of a witness, and presented a closing argument. On September 7, 2018, Young represented the State in a non-jury trial, during which he examined witnesses and presented evidence to the court. III. Count III: The James, Deane and Shouse Grievance ¶13 In September 2017, Johnnie James was hired by the Tulsa County District Attorney's office and assigned to Respondent's division. At the time of his hiring, James was a licensed attorney in North Carolina, but he was not licensed in Oklahoma. James applied for a temporary permit2 to practice in Oklahoma until he could take the Oklahoma Bar Exam. His application was initially denied, but after appealing the decision, James was granted a temporary permit to practice on November 13, 2017. He was sworn in on November 14, 2017. However, prior to receiving his temporary license, James began representing the State of Oklahoma in criminal proceedings. Between October 9, 2017, and November 13, 2017, James made court appearances in numerous criminal misdemeanor cases, negotiated plea agreements with defendants and their counsel, and argued motions on behalf of the State. ¶14 In March 2018, Christopher Deane was hired by the Tulsa County District Attorney's office and assigned to Respondent's division. At the time of his hiring, Deane had recently graduated from the University of Tulsa College of Law. He had taken the February 2018 Oklahoma Bar Exam and was awaiting his results. Deane was not a licensed legal intern at the time of his hiring or at any time previously, and he did not hold any special permit to practice law in Oklahoma. Deane passed the Bar Exam and was sworn into the practice of law on April 17, 2018. However, prior to receiving his license to practice, Deane began representing the State of Oklahoma in criminal proceedings. Between March 28, 2018, and April 11, 2018, Deane made court appearances in numerous criminal misdemeanor cases, negotiated plea agreements with defendants and their counsel, and argued motions on behalf of the State. ¶15 In May 2018, Michael Shouse was hired by the Tulsa County District Attorney's office and assigned to Respondent's division. At the time of his hiring, Shouse had recently graduated from the University of Tulsa College of Law. Shouse was not a licensed legal intern at the time of his hiring or at any time previously, and he did not hold any special permit to practice law in Oklahoma. Shouse took and passed the July 2018 Oklahoma Bar Exam. He was sworn into the practice of law in Oklahoma on September 25, 2018. However, prior to receiving his license to practice, Shouse began representing the State of Oklahoma in criminal proceedings. Between May 21, 2018, and September 14, 2018, Shouse made court appearances in numerous criminal misdemeanor cases, negotiated plea agreements with defendants and their counsel, and argued motions on behalf of the State. ¶16 With respect to Sweeney, Young, James, Deane, and Shouse, Respondent assigned their cases and assisted and supervised them in their work. Discussion ¶17 In all three counts, and with all five of the individuals above, Respondent stands accused of the same misconduct and violations of the ORPC and RGDP. Specifically, Complainant alleges that Respondent neglected her supervisory role over these five individuals and, in doing so, violated Rules 5.3(b), 5.3(c), 5.5(a), 8.4(a), and 8.4(d), ORPC, and Rule 1.3, RGDP. For the sake of simplicity, we will examine Respondent's alleged misconduct on a rule-by-rule basis. ¶18 Rule 5.3 sets out a lawyer's professional obligations as to nonlawyers with whom they are associated.3 Rule 5.3(b) in particular requires that a lawyer make reasonable efforts to ensure that the conduct of nonlawyer employees under the lawyer's supervision are compatible with the lawyer's professional obligations. Respondent has stipulated to the fact that she was the direct supervisor of Sweeney, Young, James, Deane, and Shouse. Respondent has further stipulated that she assigned work to these five individuals and that she was aware that they were engaged in the practice of law despite being unlicensed. Based on these stipulations, Respondent not only failed to make reasonable efforts to ensure these individuals' conduct was consistent with her professional obligations, but also actively facilitated their unauthorized practice. Allowing unlicensed individuals to engage in the practice of law was not compatible with Respondent's professional obligations. Accordingly, we find by clear and convincing evidence that Respondent violated Rule 5.3(b). ¶19 Rule 5.3(c) holds a lawyer responsible for the misconduct of their nonlawyer employees or associates under two circumstances: (1) when the lawyer orders or ratifies the conduct; or (2) when the lawyer has managerial or supervisory authority and knows of the misconduct but fails to prevent it. Based on Respondent's stipulations, she knew of the misconduct by the five individuals under her supervision and failed to stop it or take any other remedial action. Additionally, given that Respondent assigned these five individuals their work, she directed, or at the very least ratified, their misconduct. Accordingly, we find by clear and convincing evidence that Respondent violated Rule 5.3(c). ¶20 Rule 5.5(a) clearly forbids an unlicensed attorney from practicing law.4 When Respondent assigned casework to Sweeney, Young, James, Deane, and Shouse, she knowingly and willfully assisted them in the unauthorized practice of law in violation Rule 5.5(a).5 ¶21 Rule 8.4(a) makes it professional misconduct for a lawyer to violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another.6 Respondent's conduct violated Rule 8.4 for the same reasons it violated Rule 5.5(a).7 Respondent, at best, failed to adequately supervise Sweeney, Young, James, Deane, and Shouse, and at worst, assisted or induced their unauthorized practice of law. ¶22 Rule 8.4(d) makes it professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice. We have previously held that in order for an attorney's misconduct to be considered prejudicial to the administration of justice it must include some element of "deceit, dishonesty, misrepresentation, criminality, sexual misbehavior or other morally reprehensible conduct." State ex rel. Okla. Bar Ass'n v. Moody, 2017 OK 30, ¶10, 394 P.3d 223, 225 (citing State ex rel. Okla. Bar Ass'n v. Minter, 2001 OK 69, ¶24, 37 P.3d 763, 774). By failing to adequately supervise those in her department and allowing nonlawyers to engage in the unauthorized practice of law, Respondent was complicit in and responsible for a pattern of dishonesty and misrepresentation to Oklahoma courts, defendants, and opposing counsel. Judge Siebert testified at Respondent's hearing before the Tribunal that she was "shocked and embarrassed" to know that nonlawyers had been appearing in her court room. Judge Siebert also testified to her belief that Respondent's conduct and that of the District Attorney's office has undermined public trust in the legal process. More troubling than matters of trust and reputation, for those defendants whose cases were prosecuted by unlicensed prosecutors, is that Respondent's conduct placed in jeopardy their constitutional rights.8 ¶23 Based on the foregoing, with respect to Counts I, II, and III, we find that Complainant has established by clear and convincing evidence that Respondent engaged in misconduct in violation of Rules 5.3(b), 5.3(c), 5.5(a), 8.4(a), and 8.4(d), ORPC. Furthermore, we find that Respondent has engaged in acts contrary to prescribed standards of conduct and which bring discredit upon the legal profession, in violation of Rule 1.3, RGDP.9 Mitigation ¶24 Respondent has practiced law for approximately 20 years and has not previously been the subject of any formal discipline. Respondent has been removed from her supervisory role, and since her misconduct came to light, the District Attorney's office has implemented various safeguards to ensure that unlicensed individuals do not engage in the practice of law in the future. The office has instituted a color-coded badge system that clearly identifies which individuals are licensed to practice law, and that system has been communicated to the courts in Tulsa County. The office has abandoned the designation of "Provisional Assistant District Attorney" for new hires who have not yet been admitted to practice. Finally, the office has updated their handbook for legal interns to more clearly identify the scope of tasks that unlicensed individuals are allowed to perform. ¶25 For purposes of mitigation, we must also note that responsibility for the misconduct in question does not lie exclusively with Respondent. While she was the primary supervisor of her division, the office was generally supervised by First Assistant District Attorney Erik Grayless and District Attorney Steve Kunzweiler. During his testimony before the tribunal, Grayless acknowledged his responsibility for the five individuals in question but stated that he had little involvement in their daily activities. While we recognize the need for delegation in large offices like that in the Tulsa County District Attorney's office, Respondent was a supervisor who was nonetheless subject to supervision herself. Furthermore, each of the five unlicensed individuals were at the time of the alleged misconduct seeking admission to the Oklahoma Bar. As such, they must have--or should have--understood on some level the significance of admission to the Bar, namely that one cannot practice law prior to admission, absent special permission from this Court. Discipline ¶26 Our goals in bar disciplinary matters are to protect the interests of the public and preserve the integrity of the legal profession, not to punish attorneys. Kinsey, 2009 OK 31, ¶15, 212 P.3d at 1192. With these goals in mind, we must weigh all relevant factors including those that justify severe sanctions and those that would mitigate the severity of discipline. State ex rel. Okla. Bar Ass'n v. Stewart, 2003 OK 13, ¶19, 71 P.3d 1, 4. We must also weigh the deterrent effect of our discipline on the Respondent and the Oklahoma Bar as a whole. State ex rel. Okla. Bar Ass'n v. Taylor, 2003 OK 56, ¶22, 71 P.3d 18, 29. ¶27 We have previously considered cases involving failures of supervision and unauthorized practice of law by unlicensed individuals. The majority of these cases, however, involve lawyers in private practice allowing administrative staff to engage in the practice of law on the lawyer's behalf or other conduct inconsistent with the lawyer's professional obligations. For example in State ex rel. Okla. Bar Ass'n v. Hill, 2012 OK 66, 281 P.3d 1264, the respondent failed to adequately supervise administrative staff, including his ex-wife, who were commingling client funds with the respondent's personal funds and drawing on the respondent's operating and trust accounts for personal benefit. The respondent also failed to act with diligence in representing other clients, failed to communicate with clients, and failed to maintain good accounting practices. Id. at ¶¶31-32, 281 P.3d at 1270-72. Taking into account mental health issues that the respondent was experiencing at the time, we found that the respondent's misconduct warranted a public censure. Id. at ¶42, 281 P.3d at 1274. ¶28 In State ex rel. Okla. Bar Ass'n v. Martin, 2010 OK 66, 240 P.3d 690, the respondent failed to supervise a paralegal who entered into an agreement with a client to perform legal services without the respondent's knowledge or consent; made misrepresentations to the client about the respondent's involvement in the case; and engaged in the unauthorized practice of law. The respondent had not previously been subjected to any prior discipline, cooperated with the OBA during its investigation, and made restitution to the clients harmed by the paralegal's conduct. Id. at ¶20, 240 P.3d at 700. We found that the respondent's misconduct warranted a public reprimand. Id. at ¶32, 240 P.3d at 702. ¶29 In State ex rel. Okla. Bar Ass'n v. Sheridan, 2003 OK 80, 84 P.3d 710, the respondent failed to adequately supervise his ex-wife who worked as an administrative assistant and who made misrepresentations to clients, forged filing stamps, and hid correspondence from the OBA directed to the respondent. In other instances, the respondent failed to render competent and diligent representation, charged unreasonable fees, and mishandled client property. Id. at ¶¶31-35, 84 P.3d at 717. We determined that the respondent's misconduct warranted a six-month suspension. Id. at ¶46, 84 P.3d at 719. ¶30 While these prior decisions are instructive, we must account for the unique circumstances of the present case. Kinsey, 2009 OK 31, ¶16, 212 P.3d at 1192. Most importantly, we must consider the nature of the work being done by Respondent, her superiors, and those under her supervision. In the ORPC, the role of a public prosecutor is considered distinct from that of other lawyers: "A prosecutor has the responsibility of a minister of justice and not simply that of an advocate."10 ¶31 The facts of this case reveal that Respondent, and the unlicensed prosecutors she supervised, not only failed to accomplish justice for the defendants whose cases they prosecuted, but also worked an injustice themselves. The rules and standards governing the practice of law in Oklahoma are set out by law in Title 5 of the Oklahoma Statutes, and it is clear that Respondent, and consequently the District Attorney's office, failed to comply with those rules and standards.11 ¶32 One of our primary interests in disciplinary proceedings is preserving the integrity of the courts and the legal profession. Kinsey, 2009 OK 31, ¶15, 212 P.3d at 1192. Incidents like those at issue here are precisely the type that undermine public trust in the legal system and profession. As such, the discipline imposed must reflect to the public the seriousness with which we treat this misconduct. Accordingly, we find that public censure is appropriate to protect the public interest and preserve the integrity of the legal profession. Assessment of Costs ¶33 On June 5, 2020, Complainant filed an application to assess the costs of the disciplinary proceedings, in the amount of $4,801.58, to Respondent. Respondent did not file an objection to the application. Rule 6.16, RGDP, provides that in disciplinary proceedings where discipline actually results, "the cost of the investigation, the record, and disciplinary proceedings shall be surcharged against the disciplined lawyer unless remitted in whole or in part by the Supreme Court for good cause shown." Respondent is hereby ordered to pay costs in the amount of $4,801.58 within ninety days of the effective date of this opinion. RESPONDENT PUBLICLY CENSURED AND ORDERED TO PAY COSTS Darby, C.J., Kane, V.C.J., Kauger, Winchester, Edmondson, Combs (by separate writing), Gurich, JJ., concur; Colbert, J., not present. FOOTNOTES 1 A "licensed legal intern" refers to an individual who holds a limited license to practice law under the supervision of a licensed attorney pursuant to 5 O.S.supp.2018, ch. 1, app. 6. The purpose of the licensed legal internship program is "to provide supervised practical training in the practice of law, trial advocacy and professional ethics to law students and to law graduates who have applied to take the first Oklahoma Bar Examination after graduation." 5 O.S.supp.2018, ch. 1, app. 6, § 1.1. 2 Temporary permits to practice law are provided for under Rule 9 of the Rules Governing Admission to the Practice of Law in the State of Oklahoma, which states: Temporary permits to practice law until the conclusion of the next succeeding bar examination and report of the results thereof may be granted upon the recommendation of the Board of Bar Examiners after a showing of public convenience and necessity, which shall include but not be limited to a showing by a qualified legal services provider as defined in subsection B of this rule, or in the private sector where a case of extreme hardship is shown, provided the applicant has taken and passed the Multistate Professional Responsibility Examination. All applicants for temporary permit to practice law shall file with the Board of Bar Examiners an application for such temporary permit in addition to regular application for admission to the bar examination. The Board shall, as soon as practicable, report its recommendation on such application for temporary permit to the Supreme Court, together with a copy of such application. 5 O.S.supp.2016, ch. 1, app. 5, Rule 9. The temporary permit is immediately revoked upon announcement of the results for applicants who fail the bar exam, or expires on the date successful applicants are sworn into practice. Id. at Rule 10. 3 Rule 5.3, ORPC, provides: With respect to a nonlawyer employed or retained by or associated with a lawyer: [...] (b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer; and (c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if: (1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or (2) the lawyer is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action. 4 Rule 5.5(a), ORPC, provides: A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so. Comment 2 to Rule 5.5, ORPC, states: The definition of the practice of law is established by law and varies from one jurisdiction to another. Whatever the definition, limiting the practice of law to members of the bar protects the public against rendition of legal services by unqualified persons. This Rule does not prohibit a lawyer from employing the services of paraprofessionals and delegating functions to them, so long as the lawyer supervises the delegated work and retains responsibility for their work. 5 Our opinion today does not negate the individual responsibility of Sweeney, Young, James, Deane, and Shouse, who were all seeking admission to the Bar at the time of the incidents in question, but whose actions are not before us at this time. 6 Rule 8.4, ORPC, provides: It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; [...] (d) engage in conduct that is prejudicial to the administration of justice; [....] 7 "A lawyer violates the O.R.P.C. when a failure to supervise a nonattorney employee enables the employee to engage in the unauthorized practice of law by performing legal services without proper supervision by a licensed lawyer. See, e.g., O.R.P.C., Rules 5.3, 5.5(a), and 8.4(a)." State ex rel. Okla. Bar Ass'n v. Gaines, 2016 OK 80, ¶13, 378 P.3d 1212, 1218-19 (citing State ex rel. Okla. Bar Ass'n, 2010 OK 66, ¶¶12-14, 240 P.3d 690, 697-98.) 8 We note with particularity that Sweeney, acting as an unlicensed prosecutor, participated in the non-jury trial of defendant Bryan Christopher O'Rourke, in the District Court in and for Tulsa County, Case No. CM-2017-1946, on October 12, 2018. Defendant O'Rourke was convicted on October 17, 2018, on one of two counts and sentenced to 90 days in the Tulsa County Jail. 9 Rule 1.3, RGDP, provides: The commission by any lawyer of any act contrary to prescribed standards of conduct, whether in the course of his professional capacity, or otherwise, which act would reasonably be found to bring discredit upon the legal profession, shall be grounds for disciplinary action, whether or not the act is a felony or misdemeanor, or a crime at all. Conviction in a criminal proceeding is not a condition precedent to the imposition of discipline. 10 Comment 1 to Rule 3.8, ORPC. 11 The unauthorized practice of law in Oklahoma is not a criminal offense, but rather a violation of the ORPC. COMBS, J., with whom Darby, C.J. and Gurich, J., join, concurring: ¶1 I concur in the imposition of discipline for Ms. Jack's violations of the Oklahoma Rules of Professional Conduct (ORPC), 5 O.S. 2011, ch. 1, app. 3-A and the Rules Governing Disciplinary Proceedings (RGDP) 5 O.S. 2011, ch. 1, app. 1-A. I write to emphasize the complicity of others within the district attorney's office for Tulsa County, specifically First Assistant District Attorney Erik Grayless. Ms. Jack was not the only supervisor responsible for the actions of the five individuals who intentionally violated the rules authorizing the practice of law in the State of Oklahoma. Mr. Grayless was in charge of the intern program in the office. Mr. Grayless was the person listed as the supervising attorney on any licensed legal interns paperwork. Ms. Jack relied on Grayless and the "interns" to know what they could or could not do. She did not receive any paperwork confirming the employees licensing status but only relied upon her First Assistant Grayless and the Human Resources director. Ms. Jack's first mistake was relying on her supervisor, Mr. Grayless. For Ms. Jack to take the entire blame for the office failure to supervise is unfortunate and fundamentally unfair. From this record, Mr. Grayless should bear blame as well. Ultimately the buck must stop with the District Attorney himself, Steve Kunzweiler; none of the leadership of the Tulsa County District Attorney's office should be allowed to escape blame. ¶2 The five individuals practicing without a license, Kelly Sweeney, Randall Young, Christopher Deane, Michael Shouse and Johnnie James, each have begun their legal careers in Oklahoma by committing fraud upon the courts they appeared before. As to each of them, this fraud cannot be ignored, allowed to fade away or be forgotten.   Citationizer© Summary of Documents Citing This Document Cite Name Level None Found. Citationizer: Table of Authority Cite Name Level Oklahoma Supreme Court Cases  CiteNameLevel  2001 OK 26, 23 P.3d 268, 72 OBJ 832, STATE ex. rel. OKLAHOMA BAR ASSN. v. BOLUSKYDiscussed  1997 OK 39, 936 P.2d 947, 68 OBJ 1288, State ex rel. Oklahoma Bar Ass'n v. GreenCited  2001 OK 69, 37 P.3d 763, 72 OBJ 2604, STATE EX. REL. OKLAHOMA BAR ASSN. v. MINTERDiscussed  1995 OK 25, 895 P.2d 707, 66 OBJ 1108, State ex rel. Oklahoma Bar Assn. v. HoldenDiscussed  2003 OK 13, 71 P.3d 1, STATE ex rel. OKLAHOMA BAR ASSOCIATION v. STEWARTDiscussed  2003 OK 56, 71 P.3d 18, STATE ex rel. OKLAHOMA BAR ASSOCIATION v. TAYLORDiscussed  2003 OK 80, 84 P.3d 710, STATE ex rel. OKLAHOMA BAR ASSOCIATION v. SHERIDANDiscussed  2009 OK 31, 212 P.3d 1186, STATE ex rel. OKLAHOMA BAR ASSOCIATION v. KINSEYDiscussed at Length  2010 OK 66, 240 P.3d 690, STATE ex rel. OKLAHOMA BAR ASSOCIATION v. MARTINDiscussed at Length  2012 OK 66, 281 P.3d 1264, STATE ex rel. OKLAHOMA BAR ASSOCIATION v. HILLDiscussed  2016 OK 80, 378 P.3d 1212, STATE ex rel. OKLAHOMA BAR ASSOCIATION v. GAINESDiscussed  2017 OK 30, 394 P.3d 223, STATE ex rel. OKLAHOMA BAR ASSOCIATION v. MOODYDiscussed  1999 OK 94, 991 P.2d 1015, 70 OBJ 3622, State ex. rel. Oklahoma Bar Association v. DorisDiscussed

2020-12-01 18:00:40.372468+00

https://www2.ca3.uscourts.gov/opinarch/201292np.pdf

NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________ No. 20-1292 _____________ In re: NEWELL BRANDS, INC. SECURITIES LITIGATION HAMPSHIRE COUNTY COUNCIL AS ADMINISTERING AUTHORITY OF THE HAMPSHIRE COUNTY COUNCIL PENSION FUND, Appellant v. NEWELL BRANDS INC; MICHAEL B. POLK; RALPH J. NICOLETTI; JAMES L. CUNNINGHAM, III _____________________________________ On Appeal from the United States District Court for the District of New Jersey (District Court No.: 2-18-cv-10878) Judge: Honorable John M. Vazquez _____________________________________ Submitted under Third Circuit L.A.R. 34.1(a) September 25, 2020 (Filed: December 1, 2020) Before: MCKEE, JORDAN and RENDELL, Circuit Judges. _________ OPINION* _________ * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. RENDELL, Circuit Judge: Plaintiff-Appellant challenges the District Court’s decision to grant Defendants- Appellees’ motion to dismiss for failure to state a claim. Plaintiff, a pension fund, brought a federal securities class action on behalf of purchasers of Newell Brands, Inc. (“Newell”) stock between February 6, 2017 and January 24, 2018 (“Class Period”). The District Court concluded that Plaintiff failed to sufficiently plead a violation of Section 10(b) of the Securities Exchange Act of 1934 (the “Exchange Act”) and Rule 10b-5 promulgated thereunder by the Securities and Exchange Commission (“SEC”), 17 C.F.R. § 240 .10b-5. As result, the District Court determined that Plaintiff’s claim under Section 20(a) also fails. For the following reasons, we will affirm. I. FACTUAL BACKGROUND Plaintiff sued Newell, as well as three senior officers, Michael B. Polk, Ralph J. Nicoletti, and James L. Cunningham, in the United States District Court for the District of New Jersey claiming material misrepresentation and fraud.1 Newell manufactures and markets consumer products. Newell acquired Jarden Corporation (“Jarden”) in April 2016 for approximately $15.3 billion, which more than doubled the size of Newell. Newell reported strong financial results in the first three 1 The senior officers’ positions are as follows: Michael B. Polk, President and Chief Executive Officer of Newell; Ralph J. Nicoletti, Executive Vice President and Chief Financial Officer; and James L. Cunningham, Senior Vice President and Chief Accounting Officer. 2 quarters of 2016. According to Plaintiff, “by all accounts, the momentum behind Newell and its integration of Jarden was building entering the Class Period.” App. 69. Plaintiff alleges that during the Class Period, Newell was suffering from various operational problems that had a material adverse impact on Newell’s financial performance. Plaintiff averred that Newell “embarked on a scheme to conceal these issues from investors, and later chose to actively mislead investors about the true reasons behind the downturn in Newell’s business.” App. 70. Plaintiff claims that Defendants’ “issued and reaffirmed false and misleading 2017 financial guidance to investors without a reasonable basis.” App. 96. The Complaint alleges that Defendants deceived investors by misrepresenting or failing to disclose three categories of information: 1) excess inventory levels, 2) pricing conflicts between Newell’s E-Commerce and Brick-and-Mortar divisions, and 3) operational issues relating to Newell’s acquisition of Jarden. A. Excess Inventory Levels Plaintiff claims that before and during the Class Period, Defendants recognized that Newell’s retail customers were reducing their inventory (or “destocking”), but that Defendants led investors to believe that any negative effects due to destocking would abate by mid-2017. Defendant Polk told investors on a call in February 2017 that “while the Company would ‘continue to feel some of those dynamics through the first half of the year,’ once Newell got ‘through that window, this reset of the inventory algorithms that retailers have will be behind us.’” App. 109. In May 2017, Defendant Polk told investors that “[s]o the inventory reduction impacts were broad-based. . . . The good news 3 is that these things are now behind us.” App. 115. In August 2017 Defendant Polk represented that “. . . once we get . . . into the fourth quarter, I think the degree of impact lessens,” and that destocking would not have “as profound an impact on the business as the last three quarters and a month or two through Q4 of the last year.” App. 120. Plaintiff alleges that Defendants’ statements related to inventory destocking were false and misleading statements because “far from being behind them, Defendants knew that inventory destocking by its retailer customers would have an increasingly negative effect on Newell’s sales growth and margins.” App. 109. Plaintiff cites to the fact that Newell’s inventory levels “were around 42% higher than industry averages, and substantially higher than any of the inventory levels for the companies in Newell’s peer group” to allege that “Defendants knew that its bloated inventory levels would have an increasingly negative effect on Newell’s sales growth and margins.” App. 115–16. On appeal, Plaintiff asserts that these statements were false or misleading because Newell’s rising inventory levels and associated financial problems were in fact the result of additional factors that Defendants concealed, such as Newell firing much of the Jarden legacy salesforce and lack of flexibility within Newell’s supply chain. B. Pricing Conflicts Between E-Commerce and Brick and Mortar Divisions Plaintiff claims that Defendants misled investors by concealing pricing conflicts between the Brick and Mortar divisions and the E-Commerce divisions. Plaintiff alleges that before the Class Period, Defendant Polk assured investors that management was aware of the potential issues that could arise from pricing conflicts and was actively monitoring for these issues, but then failed to disclose to investors when pricing conflicts 4 occurred. Plaintiff claims that Defendants misled the market by “prominently touting the growth of the Company’s E-commerce division as a driver of sales growth in the second half of 2017,” while knowing there were ongoing pricing conflicts. App. 80. The Complaint includes two examples—fishing reels and Calphalon pots—in which pricing conflicts resulted “in Newell offering that retailer substantial promotional funding, which also negatively impacted the Company’s margins.” App. 77–78. Plaintiff claims that this caused “inconsistent pricing, strained customer relationships, and ultimately a negative impact on the Company’s sales growth and margins.” Id. at 76–77. Plaintiff does not further detail the specific financial impact of these pricing conflicts. C. Operational Issues Associated with the Jarden Acquisition Plaintiff alleges that Defendants concealed operational and cultural issues which prevented Newell from capturing the benefits from the Jarden acquisition as Newell had promised. Plaintiff claims that Defendants’ false or misleading statements about the integration included that “the change in the U.S. is largely behind us,” there is “nothing material” left to do, and “I’m resting a lot easier than I was.” App. 109, 133. Plaintiff contends that the firing of Jarden legacy sales team members, increases in corporate costs from mismanagement and poor organizational structure, and widespread communication issues together created significant problems within Newell. Additionally, the Transformation Office was designed to create cost savings and synergies, but it contributed to escalating costs. 5  Plaintiff contends that Defendants concealed these problems and instead “falsely reassured investors that the Company was on track with the integration of Jarden and that any significant issues were behind it.” App. 93. Defendant moved to dismiss the Complaint, contending that Plaintiff failed to state a claim pursuant to the Private Securities Litigation Reform Act of 1995 (“PSLRA”), 15 U.S.C. § 78u et seq., and Federal Rule of Civil Procedure 12(b)(6). II. THE DISTRICT COURT’S OPINION The District Court granted Defendants’ motion to dismiss Plaintiff’s First Amended Consolidated Complaint. The District Court concluded that Plaintiff failed to sufficiently plead the first element of a Section 10(b) claim in that it “failed to adequately allege ‘a false representation of material fact or omission that makes a disclosed statement materially misleading.’” App. 28 (citing In re NAHC, Inc. Securities Litigation, 306 F.3d 1314 , 1330 (3d Cir. 2002)). Because Section 20(a) of the Exchange Act is “contingent upon sufficiently pleading an underlying violation of Section 10(b) by the controlled person,” the District Court also dismissed Plaintiff’s Section 20(a) claim against Polk, Nicoletti, and Cunningham. App. 31. The District Court provided Plaintiff thirty days of leave to file an amended pleading, but Plaintiff did not file an amended pleading. The District Court ordered that Plaintiff’s First Amended Consolidated Complaint be dismissed with prejudice. Plaintiff timely appealed. 6  III. JURISDICTION AND STANDARD OF REVIEW The United States District Court had jurisdiction over this action under Section 27 of the Exchange Act, 15 U.S.C. § 78aa, and 28 U.S.C. §§ 1331 and 1337. This Court has jurisdiction under 28 U.S.C. § 1291 . Our review of a district court’s dismissal under Federal Rule of Civil Procedure 12(b)(6) is plenary and we may affirm a dismissal on any ground supported by the record. Hassen v. Gov’t of Virgin Islands, 861 F.3d 108 , 114 (3d Cir. 2017). We apply the same test as the District Court. Maio v. Aetna, Inc., 221 F.3d 472 , 481 (3d Cir. 2000). IV. ANALYSIS Section 10(b) of the Exchange Act prohibits the “use or employ[ment], in connection with the purchase or sale of any security . . . [, of] any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the [SEC] may prescribe.” 15 U.S.C. § 78j(b). SEC Rule 10b–5 implements this provision by making it unlawful to, among other things, “make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading.” 17 C.F.R. § 240 .10b–5(b). “To state a claim under Rule 10b-5, a plaintiff must demonstrate: (1) A material misrepresentation (or omission); (2) scienter (a wrongful state of mind); (3) a connection between the misstatement and the purchase or sale of a security; (4) reliance upon the misstatement; (5) economic loss; and (6) loss causation.” Fan v. StoneMor Partners LP, 927 F.3d 710 , 714 (3d Cir. 2019) (citing City of Cambridge Ret. Sys. v. Altisource Asset Mgmt. Corp, 908 F.3d 872 , 879 (3d Cir. 2018)). 7  Plaintiff also must satisfy the particularity requirements for a fraud claim under Federal Rule of Civil Procedure 9(b) and the Private Securities Litigation Reform Act (“PSLRA”), 15 U.S.C. § 78u–4. City of Cambridge Ret. Sys., 908 F.3d at 879. The purpose of the heightened pleading requirements is to ensure that private securities actions do not become “a partial downside insurance policy” against the vicissitudes of the market. Id. at 880. Plaintiffs “must state with particularity the circumstances constituting fraud or mistake.” Fed. R. Civ. P. 9(b). A complaint involving securities fraud must “specify each statement alleged to have been misleading, the reason or reasons why the statement is misleading, and, if an allegation . . . is made on information and belief . . . all facts on which that belief is formed.” 15 U.S.C. § 78u-4(b)(1). It must also must “state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind.” 15 U.S.C. § 78u-4(b)(2)(A). For allegations of securities fraud, statements are actionable only if, “when read in light of all the information then available to the market or a failure to disclose particular information, [they] conveyed a false or misleading impression.” Fan, 927 F.3d at 715–16 (citing In re Bell Atl. Corp. Sec. Litig., No. 91-0514, 1997 WL 205709 , at *23 n.86 (E.D. Pa. Apr. 17, 1997), aff’d, 142 F.3d 427 (3d Cir. 1998)). We must distinguish material representations from statements of opinion, motive, or statements which “constitute no more than ‘puffery’ and are understood by reasonable investors as such.” EP Medsystems, Inc. v. EchoCath, Inc., 235 F.3d 865 , 872 (3d Cir. 2000) (quoting In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410 , 1428 n.14 (3d Cir. 1997)). Although 8 traditionally appropriate for the trier of fact, statements that are obviously unimportant may be immaterial as a matter of law. Id. at 875. We accept all well-pleaded allegations as reasonable inferences in favor of the plaintiff, but “we are not compelled to accept unsupported conclusions and unwarranted inferences, or a legal conclusion couched as a factual allegation.” Baraka v. McGreevey, 481 F.3d 187 , 195 (3d Cir.2007) (citations and internal quotation marks omitted).2 A. False and Misleading Statements The District Court correctly found that Plaintiff has failed to sufficiently plead an actionable material misrepresentation or omission. As noted above, Plaintiff’s claim involves representations related to 1) Newell’s excess inventory levels, 2) pricing conflicts between the Brick and Mortar and the E-Commerce Divisions, and 3) operational issues related to the Jarden integration. We will discuss each in turn. 1. Excess Inventory Levels We agree with the District Court that Plaintiff failed to “plausibly allege the material impact of excess inventory levels on Newell’s finances.” App. 27. Without allegations to support that the excess inventory had a material financial effect on Newell, we cannot say that Defendants omitted information that would have “significantly altered the total mix of information made available.” Jaroslawicz v. M&T Bank Corp., 962 F.3d 701 , 710 (3d Cir. 2020). 2 We need not address the PSLRA safe harbor issue because we can decide this matter based on the first element of Plaintiff’s Section 10(b) fraud claim. 9  The District Court also correctly determined that the Complaint lacks allegations to show that Defendants’ representations about inventory destocking were false. In alleging falsity, a plaintiff cannot “rely on conjecture based on subsequent events,” but should instead cite contemporaneous sources. Williams v. Globus Med., Inc., 869 F.3d 235 , 244 (3d Cir. 2017). The allegations “must be sufficient to show that the challenged statements were ‘actionably unsound when made.’” Id. (quoting In re Burlington Coat Factory Sec. Litig., 114 F.3d at 1430 ). Plaintiff’s allegations fail to refer to contemporaneous sources showing that Defendants’ statements were false or misleading. As the District Court explained, Plaintiff has not alleged that “the Executive Defendants were given internal warnings about the precise inventory issues that caused Newell to miss its predicted guidance figures.” App. 27. The District Court also correctly noted that “while Plaintiff relies on the Starboard Presentation to show that Newell’s inventory levels were approximately 42% higher than industry averages, Plaintiff does not explain why such a comparison is indicative of fraud.” App. 27 (citation omitted). Even if Defendants were aware of their inventory levels relative to industry averages, Plaintiff has not pled allegations to support that this renders any of their statements false. Actual knowledge of inventory levels differs from actual knowledge that inventory levels would continue to impair Newell’s financial performance.3 3 Plaintiff alleges on appeal that “Defendants attribution of inventory destocking as the principal cause of Newell’s increasing inventories was highly misleading because it concealed the fact that the Company’s failed integration of Jarden and its inflexible supply chain were also responsible.” App. Br. 34. Even if this theory aligns with the 10  2. Pricing Conflicts Between the E-Commerce Division and Brick and Mortar Stores The District Court correctly decided that Plaintiff failed to sufficiently allege that the pricing conflicts had a material financial impact on Newell. As the District Court explained, Plaintiff only alleges that the pricing conflicts led to “extensive promotional discounting” but provides no information “such as when such discounts occurred, the amount of such discounts, the adverse financial impact of such discounts, or when the adverse impact was felt by Newell.” App. 27. Without information to support that the pricing conflicts had a material financial effect on Newell, we cannot say that it would “alter the total mix of relevant information available to a reasonable investor.” EP Medsystems, Inc., 235 F.3d at 872 .4 We also agree with the District Court that Plaintiff has not alleged how the resulting promotional discounting suggests fraud. Plaintiff’s theory of misrepresentation relies on Defendant Polk’s pre-Class Period discussion with investors about the importance of avoiding pricing conflicts that could affect the growth of the E-Commerce division. Plaintiff argues that Defendants’ Class Period statements about the strength of theory of misrepresentation alleged in the Complaint, these allegations still lack any particularized allegation about how the increasing inventories impacted Newell’s growth margins or otherwise rendered Defendants’ statements false. 4 Plaintiff argues that the District Court inappropriately required that they demonstrate a quantitative impact to show materiality. We have rejected “that materiality must be quantified at a specified percentage of income or assets” and instead evaluate materiality case-by-case. In re Westinghouse Sec. Litig., 90 F.3d 696 , 714 (3d Cir. 1996). But the issue is not that Plaintiff failed to quantify materiality. Rather, it is that Plaintiff’s Complaint lacks well-pleaded facts to link the alleged problems to material financial impacts. 11 the E-Commerce division were misleading because of Defendants’ earlier assurances that they would monitor for pricing conflicts and the fact that “pricing conflicts had already developed.” App. 116. But again, Plaintiff has not alleged that the E-Commerce division was experiencing an adverse financial impact because of these pricing conflicts. Nor has Plaintiff pled that an adverse financial impact was “inevitable” or “imminent” when Defendants’ representations were made. See Williams, 869 F.3d at 243; City of Cambridge Ret. Sys., 908 F.3d at 882. Defendants only needed to disclose information necessary “to make the statements made, in the light of the circumstances under which they were made, not misleading.” Matrixx Initiatives, Inc. v. Siracusano, 563 U.S. 27 , 37 (2011) (quoting 17 C.F.R. § 240 .10b–5(b)). Absent a contemporaneous financial impact, Plaintiff has failed to show how the pricing conflicts and resulting discounting render Defendants’ statements misleading. 3. Operational Issues Related to the Jarden Acquisition The District Court rightly concluded that Plaintiff failed to allege any false or misleading statement related to the Jarden integration. Plaintiff cites integration failures that rely on hindsight rather than contemporaneous sources. This is insufficient. See City of Cambridge Ret. Sys., 908 F.3d at 883. As the District Court explained, “Plaintiff does not allege that Defendants indicated that they were drastically cutting costs in the Transformation Office while, in reality, they were dramatically increasing costs. Similarly, Plaintiff does not allege that Defendants stated that the R&D process resulted in a high success rate while, in fact, only a very low percentage of products made it through the process.” App. 28. Similarly, the mere firing of the legacy sales force does 12 not support that Defendants knew that this decision would cause significant problems when they issued positive assessments of the integration. C.f. California Pub. Employees’ Ret. Sys. v. Chubb Corp., 394 F.3d 126 , 147 (3d Cir. 2004) (finding that a plaintiff failed to meet the particularity requirements for pleading falsity when their only support was a statement that the initiative was a failure because it was “wholly conclusory and lack[ed] data to support it”). We share the District Court’s view that “allegations in this category simply reflect bad business decisions (or reasonable decisions that did not pan out).” App. 27. Bad business decisions, without more, do not constitute federal securities fraud. See In re Donald J. Trump Casino Sec. Litig.-Taj Mahal Litig., 7 F.3d 357 , 376 (3d Cir. 1993) (“It is well-established that the securities laws do not create liability for breaches of fiduciary duty or mismanagement.”). However, the District Court’s reference to the business judgment rule here is misplaced. The business judgment rule does not shield actors from federal securities fraud. See Miller v. Am. Tel. & Tel. Co., 507 F.2d 759 , 762 (3d Cir. 1974) (“Where, however, the decision . . . is itself alleged to have been an illegal act, different rules apply. . . . [W]e are convinced that the business judgment rule cannot insulate the defendant directors from liability.”). But this issue is of no moment because we agree with the District Court that Plaintiff’s allegations fail on the lack of falsity and materiality. Thus, we will affirm on that basis. B. Control Person Liability Plaintiff asserts control person liability against the individual Defendants under Section 20(a). Section 20(a) makes controlling persons jointly and severally liable with 13 the controlled person. 15 U.S.C. § 78t(a). “[L]iability under Section 20(a) is derivative of an underlying violation of Section 10(b) by the controlled person.” Institutional Inv’rs Grp. v. Avaya, Inc., 564 F.3d 242 , 252 (3d Cir. 2009). Because the District Court found that Plaintiff had not sufficiently alleged a violation of Section 10(b), the Court dismissed the Section 20(a) claims. We will affirm the District Court’s conclusion and find that the Section 20(a) claims were properly dismissed as well. V. CONCLUSION For these reasons, we will affirm the District Court’s order granting Defendants- Appellees’ motion to dismiss. 14

2020-12-01 18:00:41.150623+00

https://www2.ca3.uscourts.gov/opinarch/201967np.pdf

NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________ No. 20-1967 __________ DETECTIVE DERRICK JACOBS, Appellant v. CITY OF PHILADELPHIA; PHILADELPHIA DISTRICT ATTORNEY OFFICE; LAWRENCE S. KRASNER; TRACY TRIPP ____________________________________ On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil Action No. 2-19-cv-04616) Magistrate Judge: Honorable Harvey Bartle III ____________________________________ Submitted Pursuant to Third Circuit LAR 34.1(a) November 23, 2020 Before: AMBRO, PORTER and SCIRICA, Circuit Judges (Opinion filed: December 1, 2020) ___________ OPINION * ___________ PER CURIAM * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.  Derrick Jacobs appeals from the order of the District Court dismissing his amended complaint. We will affirm in part, vacate in part, and remand for further proceedings. I. Jacobs is a detective with the Philadelphia Police Department. He filed pro se an amended complaint asserting various federal and state-law claims against four defendants. Jacobs’s claims relate to his participation in the investigation of a shooting by a police officer. Jacobs alleged, among other things, that Assistant District Attorney Tracy Tripp presented false information to a grand jury in order to obtain the indictment of the officer involved. He further alleged that, when he attempted to expose that alleged misconduct, Tripp retaliated against him by filing criminal charges—which she later withdrew—falsely accusing him of leaking grand jury material. The defendants filed a motion to dismiss Jacobs’s amended complaint under Fed. R. Civ. P. 12(b)(6). The District Court granted that motion and dismissed all of Jacobs’s federal claims with prejudice. The District Court also declined to exercise supplemental jurisdiction over a claim that Jacobs asserted under Pennsylvania’s whistleblower statute and dismissed that claim without prejudice. Jacobs appeals. 1 II. 1 We have jurisdiction under 28 U.S.C. § 1291 . Our review of dismissals under Rule 12(b)(6) is plenary. See Black v. Montgomery Cnty., 835 F.3d 358 , 364 (3d Cir. 2016). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Id. (quotation marks omitted). We review the denial of leave to amend for abuse of discretion. See Mullin v. Balicki, 875 F.3d 140 , 150 (3d Cir. 2017). 2  We will vacate and remand for further consideration of three of Jacobs’s claims. This result turns largely on Jacobs’s claim under 42 U.S.C. § 1983 that defendants filed false criminal charges against him in retaliation for his exercise of First Amendment rights. To plead a § 1983 retaliation claim, a plaintiff must allege: (1) that he or she engaged in constitutionally protected conduct; (2) that the defendant took action sufficient to deter an ordinary person from engaging in such conduct; and (3) a causal connection between the two. See Palardy v. Twp. of Millburn, 906 F.3d 76 , 80-81 (3d Cir. 2018), cert. denied, 139 S. Ct. 2011 (2019). When the alleged retaliation takes the form of criminal charges, causation requires a showing that the charges were not supported by probable cause. See Miller v. Mitchell, 598 F.3d 139 , 154 (3d Cir. 2010). In this case, the District Court dismissed Jacobs’s retaliation claim on the sole ground that he did not allege protected speech. The District Court reasoned that Jacobs relied on an August 2, 2018 conversation with Tripp in which he voiced his concerns about the allegedly false grand jury information. The District Court further reasoned that this conversation was not protected by the First Amendment because it occurred during the course of Jacob’s official duties as a public employee. See Palardy, 906 F.3d at 81. Jacobs agrees. He argues, however, that he made other efforts outside of his normal job duties to “expose” Tripp’s alleged misconduct. He argued below that he “spoke to an Attorney in the Attorney General department about Tripp.” (ECF No. 14 at 7.) And on appeal, he asserts that he made “attempts to expose” Tripp’s alleged misconduct. (Appellant’s Br. at 15-16.) In particular, Jacobs asserts that he sought counsel to discuss how to report Tripp’s alleged misconduct, that Tripp asked Jacobs’s 3 commanding officer to inquire about the nature of Jacobs’s privileged communications with counsel, that Jacobs’s commanding officer told Tripp that Jacobs was speaking with counsel about how to report Tripp’s alleged conduct, and that Tripp then filed the allegedly retaliatory criminal charges about three weeks later. (Id. at 6.) Jacobs argues that his activities in this regard are indeed protected by the First Amendment. Defendants do not argue otherwise and instead acknowledge that Jacobs’s assertions in this regard concern a “potential form of speech.”2 Defendants argue, however, that Jacobs failed to include these allegation in his amended complaint. The District Court similarly declined to address factual assertions that Jacobs raised below but did not include in his amended complaint. Jacobs’s factual assertions, however, stated a potential basis to further amend his complaint. “In our Circuit, district courts must offer amendment in civil rights cases— irrespective of whether it is requested—when dismissing a case for failure to state a claim unless doing so would be inequitable or futile.” Mullin, 875 F.3d at 151 (quotation marks and alterations omitted). The District Court did not address the possibility of amendment in this case. Nor can we say that Jacobs already has had an adequate opportunity to amend in this regard. 3 2 Other Court have recognized that consultation with counsel can be protected by the First Amendment. See, e.g., Mothershed v. Justices of the Supreme Court, 410 F.3d 602 , 611 (9th Cir. 2005) (collecting cases). We need not address the issue further at this time because neither the defendants nor the District Court have done so and because the contours of Jacobs’s claim may depend on further proceedings on remand. 3 Although Jacobs already has filed an amended complaint, he did so in response to defendants’ first motion to dismiss in which they argued merely that he failed to identify a constitutional provision or federal statute sufficient to invoke the District Court’s 4  Thus, we will vacate the dismissal of Jacobs’s First Amendment retaliation claim and remand for the District Court to allow Jacobs to further amend his complaint unless it finds that amendment would be inequitable or futile. In light of this ruling, we also will vacate the District Court’s dismissal of Jacobs’s § 1983 claim of conspiracy and his claim under the Pennsylvania whistleblower statute. 4 We will affirm the District Court’s dismissal of all other claims, including Jacobs’s § 1983 claims of defamation5 and of malicious prosecution under the Fourth Amendment. 6 federal-question jurisdiction. Jacobs then amended his complaint to specify the nature of his federal claims. When Jacobs did so, neither the defendants nor the District Court had raised the issue of whether Jacobs had alleged protected speech. 4 The District Court dismissed Jacobs’s conspiracy claim on the sole ground that he had not alleged an underlying constitutional violation. The District Court also declined to exercise supplemental jurisdiction over Jacobs’s state-law whistleblower claim after dismissing all of his federal claims. The District Court can revisit these issues as appropriate on remand. 5 Defendants argue that Jacobs has not alleged anything potentially satisfying the “stigma plus” standard for § 1983 claims alleging injury to reputation. See Hill v. Borough of Kutztown, 455 F.3d 225 , 236 (3d Cir. 2006). We agree. Jacobs argues that defendants’ alleged conduct has prevented him from testifying in court as he usually would, but that alleged change in his employment circumstances is not a sufficient predicate for this claim. See Clark v. Twp. of Falls, 890 F.2d 611 , 619 (3d Cir. 1989). Jacobs also has raised nothing below or on appeal suggesting that further amendment of this claim might be warranted. 6 The District Court dismissed this claim because Jacobs had not alleged “a deprivation of liberty consistent with the concept of seizure as a consequence of a legal proceeding.” Allen v. N.J. State Police, 974 F.3d 497 , 502 (3d Cir. 2020) (quoting Johnson v. Knorr, 477 F.3d 75 , 82 (3d Cir. 2007)). We agree. Jacobs argues that the mere filing of criminal charges constitutes the requisite deprivation of liberty, but that is not the case. See DiBella v. Borough of Beachwood, 407 F.3d 599 , 602-03 (3d Cir. 2005). We note that this “deprivation of liberty” element is not required when a plaintiff bases a malicious prosecution claim on the First Amendment rather then the Fourth Amendment. See Johnson, 477 F.3d at 82 n.8. Jacobs, however, does not appear to have alleged anything 5  III. For these reasons, we will affirm in part, vacate in part, and remand for further proceedings. We emphasize that we are remanding solely for the District Court to consider further amendment of Jacobs’s complaint. We express no opinion on the truth of Jacobs’s factual allegations, the merits of his remanded claims, or on any other matter not addressed herein. in this regard not already covered by his claim of First Amendment retaliation and its requirement of an absence of probable cause as discussed above. 6

2020-12-01 18:00:41.93084+00

https://www2.ca3.uscourts.gov/opinarch/202259np.pdf

CLD-020 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________ No. 20-2259 ___________ DARREN L. MILLER, Appellant v. AMANDA HARTWELL, INDIVIDUALLY AND OFFICIAL CAPACITY; PAUL ENNIS, INDIVIDUALLY AND OFFICIAL CAPACITY; JERRI SMOCK, INDIVIDUALLY AND OFFICIAL CAPACITY; UNIT MANAGER SANTOS, INDIVIDUALLY AND OFFICIAL CAPACITY ____________________________________ On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Civil Action No. 1-19-cv-00339) District Judge: Honorable Susan Paradise Baxter ____________________________________ Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915 (e)(2)(B) or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 October 29, 2020 Before: RESTREPO, MATEY, and SCIRICA, Circuit Judges (Opinion filed: December 1, 2020) _________ OPINION* _________ * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. PER CURIAM Appellant Darren Miller, a prisoner proceeding pro se and in forma pauperis, appeals the District Court’s denial of his motion for reconsideration of an order refusing him a temporary restraining order or preliminary injunction. We will summarily affirm. Miller initiated this action in November 2019, when he was an inmate at the Pennsylvania State Correctional Institution at Albion (“SCI-Albion”). Miller’s complaint alleged that the four named defendants, all employees at SCI-Albion, displayed deliberate indifference to his serious medical needs in violation of the Eighth Amendment, and violated his First and Fourteenth Amendment rights by denying him access to the law library and shower facilities. At the root of his claim is the SCI-Albion medical staff’s treatment of a back injury he suffered from a fall in his cell. He sought monetary damages along with injunctive and declaratory relief to address his alleged medical needs. Relevant to this appeal, he also moved for a temporary restraining order or preliminary injunction directing the named employees of SCI-Albion to provide him with: medical treatment, including further testing and pain medication; devices to assist him in walking; and access both to shower facilities and the law library. Despite Miller not yet having filed his motion to proceed in forma pauperis (“IFP motion”), the District Court held a telephonic hearing on Miller’s request for preliminary injunctive relief on December 3, 2019. The court heard testimony from Miller, defendant- appellee Nurse Jerri Smock, and Dr. Lisa Baird. At the end of the hearing, the court denied the request for injunctive relief on the record, followed by a memorandum order 2 to the same effect entered on December 10, 2019. Because Miller still had not filed his IFP motion, the court also ordered the case to be statistically closed. In April 2020, Miller filed a completed IFP motion, which the District Court granted. When the District Court granted his IFP application, Miller’s complaint was deemed filed and entered on the docket, along with his original motion for a temporary restraining order or preliminary injunction. Initially, the District Court did not realize that the docket entry of the motion was duplicative and scheduled a hearing, which it quickly cancelled after reviewing the motion. On May 18, 2020, the court issued a memorandum order dismissing the motion for injunctive relief as moot, based on the previous ruling. The court also noted that Miller has since been transferred to the State Correctional Institution at Fayette (“SCI-Fayette”), and therefore any request for prospective injunctive relief against the named defendants was moot. The same day, Miller filed a motion to reconsider the denial of injunctive relief. The District Court denied his motion the next day in a text order, concluding that he had failed to provide a substantial basis for reconsideration. Miller filed a timely notice of appeal. We have jurisdiction over this appeal of an interlocutory order to the extent it refused an injunction pursuant to 28 U.S.C. § 1292 (a)(1). We may take summary action where an appeal presents “no substantial question.” 3d Cir. LAR 27.4. A timely appeal from a denial of a Rule 59 motion to alter or amend “brings up the underlying judgment for review.” Quality Prefabrication, Inc. v. Daniel J. Keating Co., 675 F.2d 77 , 78 (3d Cir. 1982). “Therefore, the standard of review for a denial of a motion for reconsideration varies with the nature of the underlying judicial decision.” 3 Fed. Kemper Ins. Co. v. Rauscher, 807 F.2d 345 , 348 (3d Cir. 1986). “We generally review a district court’s denial of a preliminary injunction for abuse of discretion but review the underlying factual findings for clear error and examine legal conclusions de novo.” Brown v. City of Pittsburgh, 586 F.3d 263 , 268 (3d Cir. 2009). Here, the District Court denied Miller’s motion for reconsideration because it did not establish a proper basis on which to reconsider the prior order. Construing Miller’s motion pursuant to Federal Rule of Civil Procedure 59(e),1 the District Court determined that Miller failed to satisfy any of the appropriate grounds for such a motion: “(1) an intervening change in controlling law; (2) the availability of new evidence; or (3) the need to correct clear error of law or prevent manifest injustice.” Lazaridis v. Wehmer, 591 F.3d 666 , 669 (3d Cir. 2010) (citing N. River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194 , 1218 (3d Cir. 1995)). Because this denial “brings up the underlying judgment for review,” our task is to examine the District Court’s decision that the refiled motion for preliminary injunctive 1 The District Court construed this motion under Rule 59(e), but Miller was explicit that he was seeking relief under Rule 60(b). While it is true that for certain purposes, this Court “regards a motion labeled only as a motion for reconsideration as the functional equivalent of a Rule 59 motion,” Venen v. Sweet, 758 F.2d 117 , 122 (3d Cir. 1985) (emphasis added), “it is the relief desired, not the title of the motion, that dictates how this Court should view a particular filing,” Gutierrez v. Johnson & Johnson, 523 F.3d 187 , 195 (3d Cir. 2008). Here, Miller’s “motion to reconsider” cited Federal Rules of Civil Procedure 60(b)(3) and 60(b)(6) as grounds for relief, alleging fraud and misrepresentation by the witnesses at the December motion hearing. Rule 60(b)(3) specifically provides for relief due to fraud or misrepresentation, but Rule 59(e) does not. Therefore, although titled a “motion to reconsider,” Miller’s motion would have been better considered under Rule 60(b), as he intended. However, because of the mootness issue, any error in the District Court’s treatment of the motion was harmless. 4 relief was moot. The District Court concluded on May 19, 2020, that the refiled motion for a preliminary injunction or temporary restraining order was moot by virtue of its earlier ruling on the same motion.2 In the same order, the District Court dismissed Miller’s claims for prospective injunctive and declaratory relief contained within his complaint, on the ground that his transfer from SCI-Albion to SCI-Fayette rendered these claims moot. Sutton v. Rasheed, 323 F.3d 236 , 248 (3d Cir. 2003) (“An inmate’s transfer from the facility complained of generally moots the equitable and declaratory claims.” (citing Abdul–Akbar v. Watson, 4 F.3d 195 , 197 (3d Cir. 1993))). While that latter decision is not a final judgment and therefore is not before us, it guides our review of the District Court’s denial of Miller’s request for preliminary injunctive relief. “A party seeking a preliminary injunction must show: (1) a likelihood of success on the merits; (2) that it will suffer irreparable harm if the injunction is denied; (3) that granting preliminary relief will not result in even greater harm to the nonmoving party; and (4) that the public interest favors such relief.” Kos Pharms., Inc. v. Andrx Corp., 369 F.3d 700 , 708 (3d Cir. 2004). Because Miller has been transferred from the facility at which the named defendants oversaw his medical care, he can demonstrate neither 2 It is reasonably clear from the record that the refiling of the motion occurred because it was attached to Miller’s complaint; thereby the clerk refiled the entirety of Miller’s original submission once the District Court granted his IFP motion. In other words, Miller himself did not refile a duplicative motion for preliminary injunctive relief. Although the District Court initially scheduled a hearing on the refiled motion, it immediately cancelled the hearing once it understood the clerical refiling. However, because Miller’s transfer alone renders his request for injunctive relief moot, as described below, we need not examine the District Court’s determination of mootness based on the prior order. 5 likelihood of success on the merits of his claim for prospective injunctive relief nor irreparable injury from the denial of preliminary injunctive relief, and therefore both are equally moot. Accordingly, Miller’s appeal does not present a substantial question, and we will summarily affirm. 3d Cir. LAR 27.4; 3d Cir. I.O.P. 10.6. 6

2020-12-01 18:00:49.159773+00

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/12/01/19-55084.pdf

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT WAYNE WILLIAM WRIGHT, No. 19-55084 Plaintiff-Appellant, D.C. No. v. 2:15-cv-05805- R-PJW CHARLES L. BECK; MICHAEL NELSON FEUER; HEATHER AUBRY; RICHARD TOMPKINS; JAMES EDWARDS; CITY OPINION OF LOS ANGELES, Defendants-Appellees. Appeal from the United States District Court for the Central District of California Manuel L. Real, District Judge, Presiding Argued and Submitted April 1, 2020 Pasadena, California Filed December 1, 2020 Before: Richard A. Paez, Consuelo M. Callahan, and Lawrence VanDyke, Circuit Judges. Opinion by Judge Paez 2 WRIGHT V. BECK SUMMARY * Civil Rights The panel affirmed in part and reversed in part the district court’s summary judgment in an action brought pursuant to 42 U.S.C. § 1983 alleging, in part, that law enforcement officials violated plaintiff’s Fourteenth Amendment due process rights when they seized and destroyed a portion of his firearms collection. Officers of the Los Angeles Police Department (“LAPD”) executed a search warrant and seized plaintiff’s collection of over 400 firearms. Plaintiff spent the next decade trying to recover the collection, asserting he owned the firearms lawfully. The LAPD voluntarily returned approximately eighty firearms, but kept the rest because, in its determination, plaintiff had not submitted sufficient proof that he owned them. While the parties were still negotiating, LAPD officer Edwards applied to the Los Angeles County Superior Court for an order granting permission to destroy the firearms, without giving plaintiff notice that he intended to seek such an order. Having obtained the order, the LAPD destroyed the firearms by smelting them. The panel held that plaintiff did not argue he was entitled to notice beyond what due process mandated, as defendants asserted. Had plaintiff abandoned the firearms and the requisite time had lapsed under California Penal Code section 34000(a), perhaps the LAPD could have applied ex parte for a destruction order without giving notice of its * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.  WRIGHT V. BECK 3 intended action. But given that plaintiff continued to assert a claim of right to the firearms and reasonably believed that the LAPD was still reviewing the documentation he provided, he was entitled to know that the LAPD intended to seek an order permitting destruction of the remaining firearms. The panel held that a reasonable factfinder could conclude that officer Edwards violated plaintiff’s due process rights. The panel had no doubt that officer Edwards had fair notice that his conduct violated plaintiff’s due process right to notice, and therefore he was not entitled to qualified immunity. The panel rejected defendants’ arguments that the district court’s judgment should be affirmed on alternative grounds, including assertions that defendants were entitled to derivative quasi-judicial immunity, that plaintiff released his property interest in the collection, and that a state order precluded the determination that plaintiff was entitled to notice. The panel affirmed, however, the district court’s conclusion that LAPD officers Aubry and Tompkins were entitled to summary judgment because there was no evidence linking them to the alleged due process violation. Because the panel reversed the district court’s grant of summary judgment on plaintiff’s Fourteenth Amendment due process claim, the panel also reversed the district court’s grant of summary judgment on plaintiff’s failure-to-train claim brought under Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658 (1978), which the district court characterized as derivative of plaintiff’s due process and Fourth Amendment claims. In a separate memorandum disposition, the panel affirmed the district court’s grant of summary judgment on 4 WRIGHT V. BECK a defense of qualified immunity on plaintiff’s Fourth Amendment claim. COUNSEL Anna M. Barvir (argued), C. D. Michel, Joshua R. Dale, and Scott M. Franklin, Michel & Associates P.C., Long Beach, California, for Plaintiff-Appellant. Matthew A. Scherb (argued), Deputy City Attorney; Blithe S. Bock, Managing Assistant City Attorney; Scott Marcus, Chief, Civil Litigation Branch; Kathleen A. Kenealy, Chief Assistant City Attorney; Michael N. Feuer, City Attorney; Office of the City Attorney, Los Angeles, California; for Defendants-Appellees. OPINION PAEZ, Circuit Judge: Wayne Wright spent decades amassing a collection of over 400 firearms, which, according to him, was worth over half a million dollars. In 2004, officers of the Los Angeles Police Department (LAPD) executed a search warrant and seized the collection. Wright spent the next decade trying to recover it, asserting he owned the firearms lawfully. The LAPD voluntarily returned approximately eighty firearms, but kept the rest because, in its determination, Wright had not submitted sufficient proof that he owned them. While the parties were still negotiating, an LAPD officer applied to the Los Angeles County Superior Court for an order granting permission to destroy the firearms. The  WRIGHT V. BECK 5 officer did not give Wright notice that he intended to seek such an order. Thus, Wright did not have an opportunity to contest the officer’s application, and the court granted it. Having obtained the order, the LAPD destroyed the firearms by smelting them. Wright sued various parties under 42 U.S.C. § 1983 , asserting, among other claims, a violation of his Fourteenth Amendment right to due process. The district court granted summary judgment in favor of the defendants sued in their individual capacities. Because Wright could not prevail against the individual defendants, the court also concluded that Wright could not maintain his Monell failure-to-train claim 1 against the municipal defendants and granted summary judgement in favor of those defendants as well. We consider whether, on the facts alleged by Wright, his due process rights were violated and, if so, whether the law was clearly established at the time of the violation. We have jurisdiction under 28 U.S.C. § 1291 , and we affirm in part, reverse in part, and remand. 2 I. The saga begins after an LAPD sting operation in 2004. 3 The LAPD obtained a search warrant from the Los Angeles County Superior Court (the “Los Angeles Court”) and seized 1 Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658 (1978). 2 In a separate memorandum disposition, we affirm the district court’s grant of summary judgment on a defense of qualified immunity on Wright’s Fourth Amendment claim. 3 We review the facts, as we must, in the light most favorable to Wright. See Mendiola-Martinez v. Arpaio, 836 F.3d 1239 , 1247 (9th Cir. 2016). 6 WRIGHT V. BECK more than 400 firearms from Wright’s residence and storage unit in Ventura County. In August 2006, Wright pled guilty to one count of possession of an unregistered assault weapon. The plea agreement, reduced to a court order imposing probation conditions, stated that Wright could not possess any firearms for thirty-six months. Under the terms of the agreement, the firearms would be destroyed or sold unless Wright could provide proof of ownership to the LAPD as required by its policy regarding the return of seized guns. LAPD policy provided: The Department must accept any reasonable proof of ownership. Registration in the name of the lawful owner shall constitute proof of ownership. However, a lack of registration does not constitute a lack of proof of ownership unless registration is required by law for possession and/or ownership of the gun. Unless there is articulable probable cause to disbelieve a sworn declaration from the claimant/owner, a sales receipt, or other proof of ownership from the claimant shall constitute proof of ownership. Manual of the LAPD, Vol. IV, at § 560.40 4. In other words, under departmental policy, Wright could prove he owned the firearms by either showing they were registered in his name or through a sworn declaration, sales receipt, or other proof of ownership, unless the LAPD had probable cause to disbelieve such evidence. 4 Available at https://www.lapdonline.org/lapd_manual/volume_4. htm#540.  WRIGHT V. BECK 7 A few months after pleading guilty, Wright moved the Ventura County Superior Court (the “Ventura Court”) for return of his seized property. The LAPD agreed to release twenty-eight firearms registered to Wright but opposed release of the remaining firearms. The court ordered release of the non-firearm property in a written order. The order, however, did not identify the twenty-eight firearms the LAPD conceded belonged to Wright, nor did it address the remaining firearms of which Wright sought release. According to Wright, the court delayed ruling on those matters to another day and, for unspecified reasons, removed the rescheduled hearing from its calendar. 5 The record, however, does not indicate a further hearing was ever set. After completing his term of probation, Wright and his then-counsel Joseph Silvoso (“Silvoso”) spent the next seven years negotiating off and on with LAPD Detectives Richard Tompkins (“Tompkins”) and James Edwards (“Edwards”) and Deputy City Attorney Heather Aubry (“Aubry”) about the kinds of records that Wright would need to furnish to obtain his firearms. In May 2010, Silvoso provided the LAPD with receipts for ninety-four firearms and explained the difficulty in obtaining records for the others because Wright had spent decades acquiring them. A few months later, the LAPD explained that it was “slowly” reviewing the records Wright provided but, for unexplained reasons, stated it required original receipts rather than the copies Wright provided. Silvoso explained he could not hand over the original receipts but invited Edwards and 5 Wright represents that the court continued the hearing to decide the remaining claims and later removed the hearing from calendar but does not cite a written ruling or minute order to that effect. The LAPD reiterated the same procedural history in its opposition to Wright’s 2011 motion for a return of his property. 8 WRIGHT V. BECK Aubry to inspect them in his office. In November 2010, Silvoso followed up with Edwards and Aubry asking if they needed anything beyond the original receipts and a sworn declaration to prove ownership of the firearms. Edwards and Aubry did not respond. About a year later, in August 2011, Wright filed another motion in the Ventura Court for return of his firearms. In its opposition, the LAPD reiterated that it did not oppose releasing twenty-six firearms, all of which reflected a “Dealer Record of Sale” to Wright, but opposed releasing the remaining firearms. 6 The LAPD also moved the Ventura Court for an order to destroy the remaining firearms. In reply, Wright filed a declaration asserting he owned all the seized firearms (save for forty) and attached the ninety-four receipts he previously had provided to the LAPD. The court held a hearing the following month, in September 2011. At the hearing, the LAPD admitted it had delayed reviewing Wright’s records and had not yet reviewed the receipts or Wright’s sworn declaration. The department explained it needed additional time to review the records to determine whether Wright had provided reasonable proof of ownership. As a result of the LAPD’s representation, the court, in a written order dated October 17, 2011, ordered the LAPD to release the twenty-six firearms it had agreed belonged to Wright. 7 The court did not rule on the remaining disputed firearms. Instead, the court instructed the parties to meet and confer to determine 6 It is unclear why the LAPD’s initial decision to release twenty- eight firearms in 2007 dropped to twenty-six in 2011. 7 The summary judgment record does not contain a copy of the court reporter’s transcript of this hearing.  WRIGHT V. BECK 9 whether the ownership status of the remaining firearms could be resolved informally and, if not, to return to court. 8 Immediately after the hearing, Wright and Silvoso spoke with Aubry and Tompkins in the courthouse hallway. During that conversation, Aubry and Tompkins stated they would contact them if the LAPD believed they needed additional proof of ownership. In November 2011, Wright provided the original versions of the ninety-four receipts to the LAPD. Later that month, Tompkins emailed Silvoso stating that the LAPD was “still working [their] way through the receipts.” A few months later, in March 2012, Tompkins reassured Silvoso that the LAPD was “making progress” with Wright’s case and would contact Silvoso within a few weeks. The parties continued to negotiate over email. In April 2012, Edwards and Tompkins determined Wright had proved that he owned eighty of the ninety-four firearms for which he provided receipts, which included the original twenty-six that the LAPD already had released, as provided by the Ventura Court’s order. The order permitting release of the twenty-six firearms did not reference or grant a request to destroy the remaining 300-plus firearms 9 in the LAPD’s custody. Nor did the officers tell Wright that they 8 Defendants contend that the court’s October 2011 order constituted a “deni[al]” of Wright’s request for return of all his firearms and stress that Wright never “[sought] review” of this order. But, contrary to Defendants’ argument, the Ventura Court did not decide the fate of the remaining guns, and, as this court later recognized, left “the final resolution” of those guns “for another day.” Wright v. Beck, 723 Fed. App’x 391, 392 (9th Cir. Dec. 20, 2017). 9 This number is estimated by subtracting from the original 463 seized firearms the eighty firearms the LAPD conceded belonged to Wright and the forty firearms over which Wright did not declare ownership. 10 WRIGHT V. BECK had completed their review process or had probable cause to disbelieve his sworn declaration as to the remaining firearms. In fact, no one informed Wright or Silvoso the review process had been completed, or that it was determined Wright did not prove he owned the remaining firearms. Wright assumed that Tompkins and Edwards were reviewing his records to determine whether he needed to provide additional proof. He assumed so because of their consistent representations that they were still reviewing the records. He also understood the court’s statements at the September 2011 hearing required the parties to return to court once informal negotiations had failed. Instead, in December 2013, Edwards applied ex parte to the Los Angeles Court—to the same judge who had approved the 2004 search warrant—for an order permitting destruction of the remaining firearms. In the request for destruction, Edwards represented to the court: The evidence was seized in 2004. Items that have been identified as belonging to the [defendant] though [sic] receipts, DROS and Etrace have been returned. No evidence of ownership by the [defendant] has been received in regard to the last remaining items of evidence. The time to appeal has long since passed. Wright presents no evidence suggesting that Aubry knew about or instructed Edwards to seek the court order without providing Wright or his counsel notice. Similarly, Wright presents no evidence that Tompkins facilitated Edwards’s efforts in seeking the court order. Nonetheless, it is undisputed that neither Edwards, Tompkins, nor Aubry gave notice to Wright or his counsel. Ultimately, the court  WRIGHT V. BECK 11 granted the application and issued the order. Accordingly, in June 2014, the LAPD destroyed the remaining 300-plus firearms, over which Wright continued to assert ownership. In August 2014, Wright’s counsel learned that the LAPD had destroyed the firearms. The following year, Wright sued Aubry, Edwards, and Tompkins, Los Angeles Police Department Chief Charles L. Beck (“Beck”), Los Angeles City Attorney Michael N. Feuer (“Feuer”), and the City of Los Angeles (the “City”) (collectively, “Defendants”) in federal court. Wright’s First Amended Complaint, the operative complaint, alleged, among other claims: (1) violations of his Fourth and Fourteenth Amendment rights under 42 U.S.C. § 1983 against all defendants and sought damages against only Aubry, Edwards, and Tompkins; and (2) a Monell claim against Beck, Feuer, and the City for failure to train. Wright sued Aubry, Edwards, and Tompkins in their individual capacities and Beck and Feuer solely in their official capacities. Defendants moved to dismiss, arguing that the Ventura Court impliedly ruled in its September 2011 order that Wright had no possessory interest in the firearms. The district court granted the motion, and Wright appealed. We reversed, holding in a memorandum disposition that the court “grossly mischaracterized” the Ventura Court order to suggest that Wright had no possessory interest in the firearms. Wright, 723 Fed. App’x at 392. We reasoned that the Ventura Court left “the final resolution” of those guns “for another day.” Id. On remand, and after discovery had closed, Defendants moved for summary judgment on the merits of Wright’s Fourth and Fourteenth Amendment claims. Defendants Aubry, Tompkins, and Edwards also raised a qualified immunity defense. The district court granted the motion, 12 WRIGHT V. BECK concluding the individual named Defendants, even those sued in their official capacity, were entitled to qualified immunity. 10 The court reasoned that Tompkins and Edwards were entitled to qualified immunity because they acted in accordance with California law, LAPD policy, and court orders. The court also reasoned that Beck, Aubry, and Feuer were entitled to qualified immunity because there was no evidence they promulgated or enforced any illegal policies. Further, the district court held that Wright’s due process rights were not violated because he was not entitled to notice that the LAPD sought a disposition order from the Los Angeles Court to destroy the firearms. The district court also held no Fourth Amendment violation occurred because the officers acted reasonably in refusing to return the seized firearms that had not been released by court order. Last, because the district court granted summary judgment in favor of Defendants on Wright’s Fourth and Fourteenth Amendment claims, it concluded that Wright’s Monell claim also failed as a matter of law. Wright timely appealed. II. We review de novo grants of summary judgment. Mendiola-Martinez, 836 F.3d at 1247. In so doing, we “must determine whether, viewing the facts in the light most favorable to . . . the non-moving party, any genuine issues of 10 The court did not specify for which alleged constitutional violation they were entitled to qualified immunity.  WRIGHT V. BECK 13 material fact exist, and whether the district court correctly applied the substantive law.” Id. Qualified immunity shields government officials from civil liability if “their actions could reasonably have been thought consistent with the rights they are alleged to have violated.” Anderson v. Creighton, 483 U.S. 635 , 638 (1987). The protection “attaches when an official’s conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Kisela v. Hughes, 138 S. Ct. 1148 , 1152 (2018) (per curiam) (quoting White v. Pauly, 137 S. Ct. 548 , 551 (2017) (per curiam)). The reasonableness of the officer’s conduct is “judged against the backdrop of the law at the time of the conduct.” Id. (quotation marks and citation omitted). “In determining whether an officer is entitled to qualified immunity, we employ a two-step test . . . .” Mattos v. Agarano, 661 F.3d 433 , 440 (9th Cir. 2011) (en banc). First, “we decide whether the officer violated a plaintiff’s constitutional right . . . .” Id. “[I]f the answer to that inquiry is ‘yes,’ we proceed to determine whether the constitutional right was ‘clearly established in light of the specific context of the case’ at the time of the events in question. Id. (quoting Robinson v. York, 566 F.3d 817 , 821 (9th Cir. 2009)). In the second step, “we ask whether [the constitutional right’s] contours were sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Id. at 442 (quotation marks omitted). “While we do not require a case directly on point, . . . existing precedent must have placed the statutory or constitutional question beyond debate.” Id. (quotation marks, citation, and alteration omitted). “The Supreme Court has made ‘clear that officials can still be on notice that their conduct violates established law even in novel factual circumstances.’” Id. 14 WRIGHT V. BECK (quoting Hope v. Pelzer, 536 U.S. 730 , 741 (2002)); see also A.D. v. Cal. Highway Patrol, 712 F.3d 446 , 455 (9th Cir. 2013). A. The Fourteenth Amendment guarantees that a state cannot “deprive any person of . . . property[] without due process of law.” U.S. Const., Amend. XIV. 11 Despite the somewhat Delphic formulation, one of due process’s central and undisputed guarantees is that, before the government permanently deprives a person of a property interest, that person will receive—at a minimum—notice. Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306 , 313 (1950); see also Tulsa Pro. Collection Servs. v. Pope, 485 U.S. 478 (1988); Dusenbery v. United States, 534 U.S. 161 , 167 (2002); United States v. James Daniel Good Real Prop., 510 U.S. 43 , 48 (1993). Notice is so critical because it enables the opportunity to be heard. Mullane, 339 U.S. at 314 ; Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1 , 14 (1978) (“The purpose of notice under the Due Process Clause is to apprise the affected individual of, and permit adequate preparation for, an impending ‘hearing.’”). A meaningful opportunity to be heard, in turn, provides its own benefits. It helps “minimize substantively unfair or mistaken deprivations.” Fuentes v. Shevin, 407 U.S. 67 , 81 (1972). It also preserves the “high value, embedded in our constitutional and political history, that we place on a person’s right to enjoy what is his, free of governmental interference.” Id. And it preserves a person’s dignity to “choose for himself whether to appear or default, 11 Defendants do not dispute that Wright’s firearms fall under the category of “property” governed by due process.  WRIGHT V. BECK 15 acquiesce or contest.” Mullane, 339 U.S. at 314 . Without notice, “[the] right to be heard has little reality or worth.” Id. 12 Thus, notice must be “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane, 339 U.S. at 314 ; City of W. Covina v. Perkins, 525 U.S. 234 , 240 (1999) (holding the form of notice must be sufficient to ensure the opportunity to be heard is “meaningful.”). In the time since Mullane was issued, the Supreme Court has “adhered unwaveringly” to its pronouncements, frequently holding that inadequate attempts to provide notice violate due process. Mennonite Bd. of Missions v. Adams, 462 U.S. 791 , 797 (1983) (citing cases). For instance, in Walker v. City of Hutchinson, 352 U.S. 112 , 116 (1956), the Court held notice of a condemnation proceeding in a local newspaper was insufficient to provide a landowner with notice. The Court reasoned, given the fundamental importance of notice, and the risk that newspaper publication alone would fail to ensure it, due process was violated. Id. Similarly, in Greene v. Lindsey, 456 U.S. 444 , 453 (1982), the Court held that posting notice on the door of a tenant’s apartment of a forcible entry or detainer action “does not satisfy minimum standards of due process.” Due process demanded more, the Court explained, given that additional 12 Although Wright also argues that a due process violation also occurred under the balancing test under Mathews v. Eldridge, 424 U.S. 319 , 335 (1976), the Mullane test “supplies the appropriate analytical framework,” as the pending issue involves “the adequacy of the method used to give notice,” Dusenberry, 534 U.S. at 167–68. 16 WRIGHT V. BECK efforts, such as notice by mail or additional home visits, were feasible. Id. at 454–55. By logical extension, outright failures to even attempt to provide notice violate due process. For example, in Sniadick v. Family Finance Corp., the Supreme Court struck down a state statute that allowed a worker’s wages to be frozen, without notice or an opportunity to be heard, in between garnishment and resolution of a lawsuit. 395 U.S. 337 , 338– 42 (1969). The Court concluded: “Where the taking of one’s property is so obvious, it needs no extended argument that absent notice and a prior hearing this prejudgment garnishment procedure violates the fundamental principles of due process.” Id. at 342 (citation omitted); see also Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80 , 84 (1988) (“Failure to give notice violates ‘the most rudimentary demands of due process of law.’”) (quoting Armstrong v. Manzo, 380 U.S. 545 , 550 (1965)); Perkins, 525 U.S. at 240– 41. Due process is not satisfied simply because judges have facilitated the deprivation. For instance, in Fuentes, the Court struck down state statutes authorizing the summary seizure of goods under an ex parte writ of replevin, without notice or an opportunity to be heard. 407 U.S. at 96–97. The Court explained: “If the right to notice and a hearing is to serve its full purpose, then, it is clear that it must be granted at a time when the deprivation can still be prevented.” Id. at 81 . The Court reached this conclusion even though the putative owner of the goods eventually received notice and could contest the deprivation through post-deprivation procedures. Id. And it made no difference a judge oversaw the process and granted the writ of replevin. See id. Similarly, in Peralta, the Supreme Court reversed a default judgment that was “entered without notice or  WRIGHT V. BECK 17 service” as “constitutionally infirm.” 485 U.S. at 84. The Court held that reversal was required, even without a showing of prejudice, and rejected the lower court’s threshold inquiry into the defenses the party would have brought or the litigation strategy they would have adopted. Id. at 86–87 (“[I]t is no answer to say . . . due process of law would have led to the same result because [a defendant] had no adequate defense upon the merits.”) (quoting Coe v. Armour Fertilizer Works, 237 U.S. 413 , 424 (1915)). That is because notice—regardless of what it might have accomplished in a particular case—is such a core aspect of due process that its absence will lead us to question the fairness of the deprivation. Further, even in cases after the government has lawfully seized property, reasonable notice must be provided prior to a final deprivation. See Perkins, 525 U.S. at 240–41 (“[W]hen law enforcement agents seize property pursuant to warrant, due process requires them to take reasonable steps to give notice that the property has been taken so the owner can pursue available remedies for its return.”). That is why, in Matthias v. Bingley, the Fifth Circuit held that a municipal ordinance that authorized, without notice to the property owners, the disposal of property seized pursuant to a criminal investigation violated due process. 906 F.2d 1047 , 1053 (5th Cir. 1990). The court reasoned that the ordinance created a “high risk of erroneous deprivations.” Id. at 1052 . Similarly, in Gates v. City of Chicago, the Seventh Circuit reversed a summary judgment ruling in favor of a municipality on a § 1983 action because a triable issue of fact existed about whether the notice form provided to arrestees satisfied due process. 623 F.3d 389 , 401 (7th Cir. 2010). The court concluded that the procedures to retrieve property were “arcane and not generally available,” and thus 18 WRIGHT V. BECK individual notice was required under Memphis Light. Id. at 400 . Unsurprisingly, for decades, California courts have also heeded the straightforward rule of requiring notice, both as due process principle and as a procedural rule. Menefee & Son v. Dep’t of Food & Agric., 245 Cal. Rptr. 166 , 170 (Ct. App. 1988) (“[A]t a minimum, due process requires notice and an opportunity for a hearing.”); Conservatorship of Moore, 229 Cal. Rptr. 875 , 879 (Ct. App. 1986) (“An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action . . . .”) (quoting Mullane, 339 U.S. at 314 ); People v. Wilshire Ins. Co., 119 Cal. Rptr. 917 , 920 (Ct. App. 1975) (“[I]n an adversary proceeding where an order may affect the rights of an adverse party, notice must be given to protect the adverse party’s right to be heard on the issue as a matter of due process of law.”); McDonald v. Severy, 59 P.2d 98 , 99 (Cal. 1936) (“The general rule is that notice of motion must be given whenever the order sought may affect the rights of an adverse party.”); In re Sara D., 104 Cal. Rptr. 2d 909 , 916 (2001) (“[A]bsent extraordinary circumstances, even ex parte applications require notice to all parties of the application the day before the ex parte hearing.”) (citing Cal. Rules of Court 379). Thus, like federal courts, when a party fails to give adequate notice to an adverse party of a court proceeding, California courts have not hesitated, in various contexts, to declare a due process violation and nullify the underlying order or judgment. See, e.g., Jones v. Otero, 203 Cal. Rptr. 90 , 92 (Ct. App. 1984) (reversing sanctions order because “no notice whatsoever was given” in violation of  WRIGHT V. BECK 19 “fundamental principles of due process”); O’Brien v. Cseh, 196 Cal. Rptr. 409 , 412 (Ct. App. 1983) (“Plaintiff’s rush to compel sanctions against defendant on an ex parte basis [without notice] was a flagrant violation of due process principles.”). Statutory schemes that authorize the destruction of property without notice similarly have been held to be unconstitutional. See Menefee & Son, 245 Cal. Rptr. at 171. In contrast, when “timely and adequate notice” of a hearing implicating a person’s rights was given, courts have declined to find a due process violation. See, e.g., Needelman v. DeWolf Realty Co., 191 Cal. Rptr. 3d 673 , 685 (Ct. App. 2015), as modified on denial of reh’g (Aug. 18, 2015) (holding ex parte motion in eviction proceeding did not deprive individual of due process because he received adequate notice of the application prior to the hearing) (quoting Goldberg v. Kelly, 397 U.S. 254 , 267 (1970)). To be sure, due process tolerates some variance on when to provide notice, “appropriate to the nature of the case.” Mullane, 339 U.S. at 313 . For instance, in “rare and extraordinary situations,” the government may deprive an individual of property without notice or an opportunity to be heard, so long as the person is later notified of the deprivation and the procedures to contest it. Bd. of Regents v. Roth, 408 U.S. 564 , 570 n.7 (1972). One such example occurred in North American Cold Storage Co. v. Chicago, 211 U.S. 306 , 315 (1908), wherein the Supreme Court upheld a municipal ordinance that authorized the summary seizure and destruction of food deemed unfit for human consumption. The Court explained that the need for immediate action outweighed the risk of erroneous deprivation, and, if such error occurred, the owner could 20 WRIGHT V. BECK recover damages after the incident in an action at law. Id. at 315–16. 13 Further, the Supreme Court has limited the amount of effort a party must exert to provide actual notice to a party whose rights are implicated. See Dusenbery, 534 U.S. at 168–72. In Dusenbery, for example, the Court considered whether the government’s attempt at serving notice to an individual of its intention to forfeit property seized at the time of his arrest satisfied due process’s notice requirements. The government sent letters by certified mail to the correctional institution in which he had been incarcerated, the residence where he had been arrested, and to his mother’s home; and it published legal notice of the forfeiture for three consecutive weeks in a local newspaper. Id. at 164 . The individual sued, claiming he was entitled to “actual notice” under Mullane. Id. at 169–73. The Court disagreed, holding that due process does not require “actual notice,” but rather only reasonable efforts to achieve it, and held the government’s efforts were reasonable. Id. at 169–71. Additionally, the Supreme Court has limited the content a notice form must contain to satisfy due process. For instance, in Perkins, the Court held that the government need not “give detailed and specific instructions or advice to owners” on how they can retrieve property that was lawfully seized when those procedures are already publicly available. 525 U.S. at 236, 241 . Instead, the government need only take “reasonable steps” to inform the owner that property has been seized. Id. at 240 . When the remedial procedures are not publicly available, however, reasonable steps must still 13 Defendants do not suggest such extraordinary circumstances justified the need to destroy the firearms here.  WRIGHT V. BECK 21 be taken to provide notice of them. See Memphis Light, 436 U.S. at 13–15. Despite these minor limitations on the notice requirement, no court has held—at least under the circumstances presented here—that notice can be altogether abandoned. To the contrary, under almost every conceivable scenario, there is “no doubt” that the government must take reasonable steps to provide notice. See Mullane, 339 U.S. at 313 . Given the wealth of precedent—and the safeguards notice provides—the right to notice has been rightfully regarded as “elementary,” “fundamental,” Mullane, 339 U.S. at 314 , and “rudimentary,” Kelly, 397 U.S. at 267 . The right cannot reasonably be disputed. Defendants nonetheless argue that the notice requirement was satisfied at the time the firearms were seized, and Wright was not entitled to any further notice thereafter. To address the merits of Defendants’ argument, we divide up the chronology and nature of the deprivations. Wright was deprived of his property twice. The first occurred when LAPD officers seized his firearms during the execution of a search warrant. That was a temporary deprivation that is not at issue. The second deprivation occurred when the LAPD destroyed Wright’s property amid ongoing negotiations between Wright and the LAPD. Key to this claim is that, without notice to Wright, Edwards sought an order from the Los Angeles Court granting permission to destroy Wright’s firearms. Wright alleges that Edwards sought this order while the parties were still informally resolving the ownership dispute, as encouraged by the Ventura Court. The subsequent destruction of Wright’s firearms constituted a permanent deprivation and underscores the need for notice. 22 WRIGHT V. BECK We have no problem concluding that a rational trier of fact could find a due process violation under these circumstances. The wealth of precedent suggests that by failing to provide Wright with notice and the opportunity to be heard before the court issued the destruction order, Edwards denied Wright the most basic and fundamental guarantees of due process. Mullane, 339 U.S. at 314 ; Peralta, 485 U.S. at 86–87; Fuentes, 407 U.S. at 81 ; Perkins, 525 U.S. at 240–41. 14 First, Supreme Court precedent makes clear that ex parte hearings that affect a party’s interest in property, without notice, violate due process and any order resulting from such a hearing is void. Fuentes, 407 U.S. at 81 . Second, Supreme Court precedent makes clear that the purpose of notice is to “apprise the affected individual of, and permit adequate preparation for, an impending ‘hearing.’” Memphis Light, 436 U.S. at 14 . When an individual, however, is incapable of “ascertaining” the time and place of an impending hearing, see Perkins, 525 U.S. at 241 , or cannot “reasonably be expected to educate himself about” such a hearing, see id. at 242 , individualized notice must be provided. Yet here no notice was provided. Defendants do not dispute the elementary, fundamental, and rudimentary guarantee of the right to notice. Instead, they make three points to argue Wright was not entitled to notice. First, Defendants contend that Perkins stands for the proposition that Wright deserved no further notice after the guns were seized, but this reliance is misplaced. As explained above, Perkins simply reaffirmed the 14 California’s Rules of Court also mandate that a party seeking an ex parte order “must notify all parties” before the appearance, “absent a showing of exceptional circumstances.” Cal. Rules of Court, Rule 3.1203(a), https://www.courts.ca.gov/cms/rules/index.cfm?title=th ree&linkid=rule3_1203.  WRIGHT V. BECK 23 longstanding view that statutes alone can provide sufficient notice of how an owner can retrieve his or her property once it has been seized by the state. 525 U.S. at 241 . 15 Perkins does not apply here, where no notice was provided—statutory or otherwise—that the police intended to seek a destruction order while Wright’s claim of ownership was still pending. If anything, Wright could not have relied on any publicly available information to reasonably ascertain that Edwards would seek an ex parte application at the time that he did. See Memphis Light, 436 U.S. at 13–15. He thus was entitled to know about that “impending hearing.” See id.; see also Gates, 623 F.3d at 400 . Second, Defendants argue that Wright did have statutory notice because two California statutes required destruction of the firearms. Defendants cite California Penal Code section 34000(a). That provision states that a firearm “shall be . . . destroyed” when “the firearm is an exhibit filed in any criminal action or proceeding which is no longer needed or is unclaimed or abandoned property, which has been in the possession of the officer for at least 180 days . . . .” Id. Although the firearms were in LAPD custody for well over 15 Specifically, in that case, police officers seized personal property pursuant to a search warrant. Perkins, 525 U.S. at 236 . The officers left a form notifying the owners of, among other things, the search, a list of the items seized, and the names of the officers they could contact for additional information. Id. at 236–37. Instead of filing a motion for return of their property, the property owners sued the officers under § 1983, arguing they were entitled to notice of the state-law remedies to recover their property. Id. at 237–38. The Court disagreed, holding that California law placed the property owners on notice of what remedies were available to them, and the police thus had no obligation to inform individuals of publicly available statutory remedies. Id. at 239–41. 24 WRIGHT V. BECK 180 days, Defendants fail to show the second condition was undisputed—that the firearms were no longer needed as exhibits in criminal action, unclaimed, or abandoned. 16 To the contrary, Wright had a pending claim of ownership over the firearms and could reasonably have believed that the LAPD was still reviewing his claim. Defendants also rely on California Penal Code section 18275, but that provision fails to provide Wright with constructive notice. Section 18275 applies to circumstances in which a firearm is seized at the scene of a domestic violence dispute, not pursuant to a warrant, as here. See Cal. Penal Code § 18250 et seq. 17 16 Defendants’ claim that the statute applies “even when the firearms were not filed as exhibits” is unpersuasive. The case they cite, People v. Lamonte, 61 Cal. Rptr. 2d 810 , 812 (Ct. App. 1997), stands for no such thing. There, the government argued that a property claimant was not entitled to the return of property because the statute limited return only to “exhibits,” and, because the claimant pled guilty, the evidence had never been filed as exhibits. Id. The court held: “[W]e see no reason to distinguish between seized property used as exhibits and seized property which was not used. . . . [The claimant] should have no less due process regarding return of property by virtue of pleading guilty rather than proceeding to trial.” Id. That is not a distinction Wright relies on here. Similarly, little evidence suggests, and a rational trier of fact could certainly conclude otherwise, that Wright “abandoned” the guns, given Wright’s counsel’s ongoing communications with Defendants and the Ventura Court’s September 2011 directive to the parties that they should resolve their disputes informally. 17 Moreover, § 18275 authorizes the destruction of any firearm held longer than one year, but specifically exempts firearms that have not been recovered because of an “extended hearing process” under California Penal Code section 18420. Section 18420, in turn, allows a person to petition for a second hearing regarding the return of a confiscated firearm if the first hearing is unsuccessful. Defendants fail to show that Wright would not have been entitled to this exemption.  WRIGHT V. BECK 25 Last, Defendants assert they did not need to provide Wright notice because he already had his opportunity to pursue available remedies and present his claim of ownership. This argument misses the mark. Wright’s claim of ownership was never resolved fully by the Ventura Court. At the September 2011 hearing, the officers stated they needed additional time to review Wright’s proof of ownership. Based on this representation, the court deferred ruling on Wright’s claims and gave the officers additional time to review Wright’s ownership records. The court instructed the parties to attempt to resolve Wright’s ownership claim informally, and, if those efforts failed, the parties could return to court. Instead of adhering to these instructions, however, Defendants turned to a different venue altogether—the Los Angeles Court—and sought the ex parte destruction order. By doing so, Defendants pursued a “procedure that deprive[d] [Wright] of [his] claim[] in a random manner.” Logan v. Zimmerman Brush Co., 455 U.S. 422 , 434 (1982). 18 As the Supreme Court has emphasized time and again, however, an individual is entitled to notice before “any proceeding which is to be accorded finality.” Mullane, 339 U.S. at 314 ; see also Peralta, 485 U.S. at 86–87; 18 In Logan, the Supreme Court held that a state could not skirt its obligation to provide a hearing to a terminated employee on his request for reinstatement by scheduling the hearing outside of the 120-day period mandated by state law. 455 U.S. at 433–35. Logan thus stands for the straightforward proposition that a state cannot bypass its due process obligations by creating circumstances that render the process meaningless. That is akin to what Defendants did here: they partially litigated Wright’s ownership claims in one adjudicatory proceeding—at the Ventura Court—while depriving him of his due process rights in another—at the Los Angeles Court—all the while pointing to state law to argue that destruction of the firearms was their only choice. 26 WRIGHT V. BECK Fuentes, 407 U.S. at 81 ; Perkins, 525 U.S. at 240–41. 19 This case confirms why the right to notice and an opportunity to be heard are so fundamental—because “fairness can rarely be obtained by secret, one-sided determination of facts decisive of rights.” Fuentes, 407 U.S. at 81 (quoting Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123 , 170–72 (1951) (Frankfurter, J., concurring)). 20 Edwards’s ex parte application for permission to destroy Wright’s firearms contained statements that a rational trier of fact could find were misrepresentations. For example, Edwards represented to the Los Angeles Court that Wright had provided “[n]o evidence of ownership” and that “[t]he time to appeal has long since passed.” But a factfinder could have determined that Wright did provide evidence of ownership (i.e., his sworn declaration of ownership), yet Edwards omitted this fact from his application seeking permission to destroy Wright’s firearms. Second, a factfinder could have found that the Ventura Court never entered a final appealable order denying Wright’s motion for return of his firearms because the October 17, 2011 order only addressed the firearms that the LAPD argued could be released to Wright. That order did not address the disputed firearms. Instead, as Wright explained, the court instructed the parties at the September 2011 court hearing to attempt to resolve their dispute informally and return to court, if necessary. In sum, Wright does not argue he was entitled to notice beyond what due process mandates, as Defendants assert. 19 The Supreme Court has also recognized that a claimant’s failure to comply with a reasonable procedural requirement protects a state from a due process claim. See Logan, 455 U.S. at 434 n.7. Such a failure cannot be indisputably assigned to Wright. 20 To be sure, as explained above, a demonstration of prejudice is not necessary. See Peralta, 485 U.S. at 86–87.  WRIGHT V. BECK 27 Had Wright abandoned the firearms and the requisite time had lapsed under California Penal Code section 34000(a), perhaps the LAPD could have applied ex parte for a destruction order without giving notice of its intended action. See Logan, 455 U.S. at 434 n.7. But given that Wright continued to assert a claim of right to the firearms and reasonably believed that the LAPD was still reviewing the documentation he provided, he was entitled to know that the LAPD intended to seek an order permitting destruction of the remaining firearms. B. Because a reasonable jury could find that Wright was entitled to notice, we must also determine who deprived him of this right. The record clearly shows that Edwards filed the application for an order to destroy the firearms and failed to provide Wright with notice. Thus, taking the facts in the light most favorable to Wright, a reasonable factfinder could conclude that Edwards violated Wright’s due process rights. On the other hand, Wright fails to demonstrate what specific acts Aubry or Tompkins undertook to facilitate Edwards’s decision to apply ex parte for a destruction order. Wright points to evidence demonstrating that Aubry and Tompkins opposed releasing the firearms to Wright. He does not, however, cite anything in the record to show that either Aubry or Tompkins instructed Edwards to proceed with the application ex parte or otherwise facilitated the filing of the application. See Jeffers v. Gomez, 267 F.3d 895 , 915 (9th Cir. 2001). Because there is no evidence linking Aubry or Tompkins to the alleged due process violation— failing to provide notice—we affirm the district court’s conclusion that Aubry and Tompkins were entitled to summary judgment. 28 WRIGHT V. BECK In sum, taking the evidence in the light most favorable to Wright, a reasonable jury could find that Edwards violated Wright’s due process right to notice when he applied for a destruction order without giving Wright notice. C. Next, we must determine whether the right to notice of the ex parte application was “clearly established.” Mattos, 661 F.3d at 442 . A constitutional right is clearly established if the official had “fair notice that her conduct was unlawful” but still engaged in it. Brosseau v. Haugen, 543 U.S. 194 , 198 (2004) (per curiam). Usually, we look to binding precedent to determine whether an officer had “fair notice” his or her conduct violated a constitutional right. Mattos, 661 F.3d at 442 . And, in reviewing our caselaw, we must be careful not to—and have indeed been criticized for— defining clearly-established law “at a high level of generality.” Ashcroft v. al-Kidd, 563 U.S. 731 , 742 (2011). As the Supreme Court explained, broad pronouncements of an abstract right usually fail to provide a clear sense of the outer limits of lawful conduct. Saucier v. Katz, 533 U.S. 194 , 202 (2001). For example, it may be well-established that everyone enjoys “the right to due process,” but, as the Court has explained, this constitutional truism falls short in elucidating the “objective legal reasonableness” of an official’s action in any given scenario. Anderson, 483 U.S. at 639 (quotation marks omitted). Similarly, though in a different context, it is well-known that the Fourth Amendment protects against “unreasonable search[es] or seizure[s],” but that “general proposition . . . is of little help in determining whether the violative nature of particular conduct is clearly established.” al-Kidd, 563 U.S. at 742 . Thus, we usually undertake our inquiry “in light of the specific context of the case, not as a broad general  WRIGHT V. BECK 29 proposition,” and determine whether the right, as explicated, carries over to the facts before us. Brosseau, 543 U.S. at 198 (quoting Saucier, 533 U.S. at 201). At the same time, an official may have “fair notice” that conduct is unlawful, “even without a body of relevant case law,” if the violation is so “obvious” that no reasonable official would have engaged in such behavior. Id. at 199; see also United States v. Lanier, 520 U.S. 259 , 271 (1997) (“[I]n [some] instances a general constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question, even though the very action in question has not previously been held unlawful. . . .”) (quotation marks, citation, and alteration omitted); see also Browder v. City of Albuquerque, 787 F.3d 1076 , 1082–83 (10th Cir. 2015) (Gorsuch, J.) (“[S]ome things are so obviously unlawful that they don’t require detailed explanation and sometimes the most obviously unlawful things happen so rarely that a case on point is itself an unusual thing.”). We have thus not hesitated to deny qualify immunity to officials in certain circumstances, “even without a case directly on point.” See, e.g., A.D., 712 F.3d at 455; Charter of Hells Angels Motorcycle Club v. City of San Jose, 402 F.3d 962 , 975 (9th Cir. 2005) (denying qualified immunity to officers who unreasonably destroyed property while executing a search warrant); Mena v. City of Simi Valley, 226 F.3d 1031 , 1041 (9th Cir. 2000) (denying qualified immunity to officers who “needlessly ransack[ed] [a] home and destroy[ed] property”); Hernandez v. City of San Jose, 897 F.3d 1125 , 1138 (9th Cir. 2018) (denying qualified immunity to officers who directed attendees of a political rally toward a violent crowd of protesters). 30 WRIGHT V. BECK The need for an on-point case is further diluted when the “clearly established” rule is concrete and specific. For example, in Mena, at the time of the allegedly unlawful conduct, it was “clearly established” that officers violate the Fourth Amendment during the execution of a search warrant when they engage in “unnecessarily destructive behavior.” 226 F.3d at 1041 (quoting Liston v. City of Riverside, 120 F.3d 965 , 979 (9th Cir. 1997)). Thus, we concluded that an officer who destroyed an already-ajar door to a home during the execution of a search warrant was not entitled to qualified immunity, even though we did not cite a specific on-point case. Id. That is because what conduct constituted needless destruction was, in that instance, self-evident. See id. Similarly, in Hernandez, we recognized that our precedent had long established that a person’s substantive due process rights were violated when a state actor acted with deliberate indifference to a known or obvious danger but nonetheless exposed an individual to it. 897 F.3d at 1135–37. Although the type of danger to which an officer can expose someone can take innumerable forms, we had no trouble concluding that the nature of the right provided “obvious clarity,” in the circumstances there, that shepherding attendees at a political protest through a “violent crowd of protesters and actively prevent[ing] them from reaching safety” violated due process. Id. at 1138. Turning to the case at hand, we have no doubt that Edwards had fair notice that his conduct violated Wright’s due process right to notice. Although “due process” has been castigated as “cryptic” and “abstract,” see Mullane, 339 U.S. at 313 , its balustrades have been identified, time and again, as notice and an opportunity to be heard, id. at 314 ; Peralta, 485 U.S. at 86–87; Fuentes, 407 U.S. at 81 ;  WRIGHT V. BECK 31 Perkins, 525 U.S. at 240–41. As explained above, California courts have for decades observed this straightforward rule, which adds to our confidence that the law was clearly established. See Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d 1052 , 1060 (9th Cir. 2003) (“In the absence of binding precedent, a court should look to whatever decisional law is available to ascertain whether the law is clearly established for qualified immunity purposes, including decisions of state courts, other circuits, and district courts.”) (brackets and internal quotation marks omitted). Further, unlike the mere general right to “due process,” Anderson, 483 U.S. at 639 , or the abstract right to be free from “excessive force,” al-Kidd, 563 U.S. at 742 , the right to notice is a specific, concrete guarantee that a person will be informed of the government’s intent to deprive him or her of property before doing so. See Mena, 226 F.3d at 1041 . Any reasonable official would have thus known that deviating from this straightforward requirement—and indeed dispensing with it entirely—violates the right to due process. We are further convinced that the obligation to provide notice was clearly established given that Edwards was seeking ex parte permission to destroy the firearms—a permanent kind of deprivation. See Logan, 455 U.S. at 433 . This makes Edwards’s conduct even more egregious than the kind prohibited in Fuentes, in which the Court struck down state statutes authorizing the mere temporary deprivation of goods through an ex parte writ of replevin. See 407 U.S. at 81 . Additionally, we conclude Edwards had fair notice that his conduct violated due process given that he acted in the complete absence of statutory authority. See Rosenbaum v. Washoe Cty., 663 F.3d 1071 , 1079 (9th Cir. 2011) (denying 32 WRIGHT V. BECK qualified immunity to officer who arrested individual without any statutory authority). As we explained above, no statute authorized Edwards’s decision to seek an ex parte application for permission to destroy Wright’s property without notifying Wright of his intent to do so. If anything, the only express rule that applied made it clear that he needed to provide notice. See Cal. Rules of Court, Rule 3.1203(a). Further, the obviousness of the constitutional violation is especially evident given the Ventura Court’s September 2011 instruction to attempt to resolve the dispute informally and to return to court, if necessary. The record suggests that Edwards knew notice should have been provided; otherwise, he probably would not have told the court that Wright presented no proof of ownership or insinuated that Wright had abandoned his ownership claim. Thus, although we do not identify a case with the exact factual situation involved here, we conclude that in light of the precedent that did exist at the time Edwards filed an ex parte application for permission to destroy Wright’s firearms, his actions fit within the “obvious” situation. See Mena, 226 F.3d at 1041 . It appears obvious to us, even without a case addressing identical facts, that a state actor cannot unilaterally seek to destroy one’s property without first providing the individual notice of the intent to do so. That is the only reasonable inference one can draw in light of Mullane and its progeny. Yet despite knowing that Wright had a pending claim of ownership, Edwards applied to the Los Angeles Court, without notice to Wright, for an order to destroy his property. We thus conclude that the due process right to notice, as alleged by Wright, was clearly established and, as a result, Edwards is not entitled to qualified immunity.  WRIGHT V. BECK 33 D. Finally, we address the district court’s conclusion that City Attorney Feuer and LAPD Chief Officer Beck were entitled to qualified immunity. Wright sued those officials only in their official capacities. Qualified immunity is, however, “available only to government officials sued in their individual capacities” and is “not available to those sued only in their official capacities.” Cmty. House, Inc. v. City of Boise, Idaho, 623 F.3d 945 , 965 (9th Cir. 2010). We thus reverse the grant of qualified immunity for these defendants. III. Defendants also urge us to affirm on alternative grounds. We reject each argument in turn. A. First, Defendants argue that a § 1983 claim cannot be predicated on a breach of a plea agreement. This argument misconstrues Wright’s claims for several reasons. For one, the City was not a party to the agreement, so summary judgment cannot be affirmed in its favor on this ground. Second, Wright is alleging constitutional violations independent of the plea agreement: the plea agreement neither created Wright’s possessory interest in the firearms nor is reference to it necessary for the resolution of his constitutional claims. B. We also reject Defendants’ contention that they are entitled to “derivative, quasi-judicial immunity” because, once the LAPD seized the contested firearms by warrant, 34 WRIGHT V. BECK “the City” acted as a court custodian subject to court orders. 21 That immunity extends to nonjudicial officers “only if they perform official duties that are functionally comparable to those of judges, i.e., duties that involve the exercise of discretion in resolving disputes.” In re Castillo, 297 F.3d 940 , 948 (9th Cir. 2002). Defendants fail to show, however, that Edwards performed a duty that was functionally comparable to a judge by keeping custody of Wright’s firearms. Defendants also do not show Edwards performed a functionally comparable duty of a judge when they sought a court order to destroy the property. This immunity does not apply under this theory. Nor is Edwards entitled to quasi-judicial immunity because he performed “purely administrative acts.” See id. at 952 . That immunity applies when a non-judicial officer performs a “non-discretionary or administrative function . . . at the explicit direction of a judicial officer.” Zoretic v. Darge, 832 F.3d 639 , 644 (7th Cir. 2016). Defendants appear to suggest that they are entitled to immunity under this theory because they complied with a court order to destroy the firearms. Defendants fail to cite any case, however, that shows that the immunity extends to state actors who sought and obtained the order improperly in the first instance. Also, Edwards exercised discretion in deciding when or whether to seek the order permitting destruction of the firearms. We thus reject this contention. 21 Defendants do not specify to whom the immunity applies, but rather appear to suggest it applies to all of them. Defendants, however, provide no authority for the proposition that a municipality or individuals sued in their official capacity can qualify for this kind of immunity. In any event, we need not resolve this issue because, even assuming the immunity can apply in such circumstances, Defendants fail to show that the immunity applies.  WRIGHT V. BECK 35 C. Defendants also argue that Wright cannot bring a § 1983 claim because he released his property interest in the firearms once he signed the plea agreement. They argue that Wright abandoned his possessory interests because he consented to the LAPD keeping the firearms and deciding whether he was the lawful owner of the firearms. Defendants are wrong for several reasons, but the most important one is they overstate the LAPD’s power to decide Wright’s ownership claims. The plea agreement did not provide the LAPD with unfettered control over the guns. To be sure, the agreement allowed the LAPD to make an initial ownership decision, but Wright could challenge that determination by filing a motion to compel return of his firearms in a court—which he did. Thus, contrary to Defendants’ suggestion, Wright continued to maintain a legitimate possessory interest in the firearms. Defendants also argue that California Penal Code sections 34000 and 18275 divested Wright of his ownership interest after the one-year period expired. But, for the reasons explained above in Part II.A., this claim fails because neither provision diminished Wright’s possessory interests. D. Defendants also argue that a state court order precludes us from deciding whether due process entitled Wright to notice of the ex parte application for a destruction order. Defendants specifically cite the Los Angeles Court’s decision in In re Complaint of Michel & Associates, P.C., No. BH011834 (Sept. 18, 2018). We are not persuaded. 36 WRIGHT V. BECK “[A] federal court considering whether to apply issue preclusion based on a prior state court judgment must look to state preclusion law.” McInnes v. California, 943 F.2d 1088 , 1092–93 (9th Cir. 1991). In California, “[i]ssue preclusion prohibits the relitigation of issues argued and decided in a previous case, even if the second suit raises different causes of action.” DKN Holdings LLC v. Faerber, 352 P.3d 378 , 386 (Cal. 2015) (citation omitted). “[I]ssue preclusion applies: (1) after final adjudication (2) of an identical issue (3) actually litigated and necessarily decided in the first suit and (4) asserted against one who was a party in the first suit or one in privity with that party.” Id. at 387 . As for the second requirement, the party seeking to assert issue preclusion must show that each proceeding contained “identical factual allegations.” Lucido v. Superior Court, 795 P.2d 1223 , 1225 (Cal. 1990) (quotation marks omitted). The factual allegations considered in Michel & Associates were not identical to ones presented here, nor were they necessary to the court’s final determination. In Michel & Associates, a gun-rights group, the California Rifle and Pistol Association, of which Wright is a member, sent a letter to the Los Angeles Court notifying it of what it deemed to be the LAPD’s “inappropriate and illegal practice of obtaining invalid court orders relating to LAPD’s disposition of seized property.” The court issued an Order to Show Cause, asking the parties to brief, among other issues, “[w]hether [the Los Angeles Court] should adopt a policy requiring a police agency seeking an order to dispose of property seized under a search warrant where no criminal case has been filed to give notice of the application for the order to likely claimants of the seized property pursuant to [California] Penal Code section 1536.” The court ultimately decided that, under Perkins, the court need not adopt such a policy.  WRIGHT V. BECK 37 Wright’s claim here, however, addresses a different issue involving different factual allegations. As explained above, Wright alleges a due process violation because he was never given notice of Edwards’s intent to apply ex parte for an order permitting destruction of Wright’s firearms when he continued to assert an ownership interest in them. What due process demands on these facts is different from the issue decided in Michel & Associates, where the court was considering adopting a prospective rule that universally provided notice to all “people or entities likely to claim an interest in the property.” We thus reject this argument. 22 IV. Finally, because we reverse the district court’s grant of summary judgment on Wright’s Fourteenth Amendment due process claim, we reverse the district court’s grant of summary judgment on his failure-to-train claim, which the court characterized as derivative of Wright’s due process and Fourth Amendment claims, and remand for further proceedings consistent with this opinion. V. Because a rational trier of fact could find that Wright’s due process rights were violated and that Edwards was not entitled to qualified immunity, we reverse the district court’s grant of summary judgment on this claim and his Monell 22 Because we conclude the issues were not identical, we need not decide whether Wright, as a member of the California Rifle and Pistol Association, was in “privity” with it. See Rodriguez v. City of San Jose, 930 F.3d 1123 , 1130 (9th Cir. 2019), pet. for cert. filed, No. 19-1057 (Feb. 21, 2020). 38 WRIGHT V. BECK failure-to-train claim against Beck, Feuer, and the City. We affirm the judgment as to Aubry and Tompkins. We remand for proceedings consistent with this opinion. 23 AFFIRMED in part, REVERSED in part, and REMANDED. Appellant shall recover his costs on appeal. 23 In light of Judge Real’s passing, we need not address Wright’s request to reassign the case on remand.

2020-12-01 18:01:46.886706+00

https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2019cv0257-44-0

In the United States Court of Federal Claims No. 19-257C (E-Filed: December 1, 2020) ) DAVID JONES, et al., ) ) Motion to Dismiss; RCFC 12(b)(6); Plaintiffs, ) Fair Labor Standards Act (FLSA), 29 ) U.S.C. §§ 201-19; Anti-Deficiency Act v. ) (ADA), 31 U.S.C. §§ 1341-42 ; ) Government Employees Fair THE UNITED STATES, ) Treatment Act of 2019 (GEFTA); Pub. ) L. No. 116-1, 133 Stat. 3 (2019). Defendant. ) ) Joshua Sanford, Little Rock, AR, for plaintiff. Erin K. Murdock-Park, Trial Attorney, with whom were Joseph H. Hunt, Assistant Attorney General, Robert E. Kirschman, Jr., Director, Reginald T. Blades, Jr., Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, for defendant. Ann C. Motto, of counsel. OPINION AND ORDER CAMPBELL-SMITH, Judge. Plaintiffs in this putative collective action allege that the government, through the United States Department of Agriculture, Food Safety and Inspection Service (FSIS), violated the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201-19 , by failing to timely pay their earned overtime and regular wages during the partial government shutdown and lapse of appropriations that began on December 22, 2018. See ECF No. 1 at 1-3, 5 (complaint). On May 3, 2019, defendant moved to dismiss the complaint for failure to state a claim on which relief may be granted, pursuant to Rule 12(b)(6) of the Rules of the United States Court of Federal Claims (RCFC), on the basis that the Anti-Deficiency Act (ADA), 31 U.S.C. §§ 1341-42 , prohibited the government from paying employees. See ECF No. 15. In analyzing defendant’s motion, the court has considered: (1) plaintiffs’ complaint, ECF No. 1; (2) defendant’s motion to dismiss, ECF No. 15; (3) plaintiffs’ response to defendant’s motion, ECF No. 16; (4) defendant’s reply in support of its motion, ECF No. 20; (5) defendant’s first supplemental brief in support of its motion, ECF No. 22; (6) plaintiffs’ response to defendant’s first supplemental brief, ECF No. 23; (7) defendant’s second supplemental brief in support of its motion, ECF No. 31; 1 (8) defendant’s third supplemental brief in support of its motion, ECF No. 39; and (9) plaintiffs’ response to defendant’s third supplemental brief, ECF No. 41. The motion is now fully briefed and ripe for ruling. 2 The court has considered all of the arguments presented by the parties, and addresses the issues that are pertinent to the court’s ruling in this opinion. For the following reasons, defendant’s motion is DENIED. I. Background In their complaint, plaintiffs define the putative class bringing this collective action as “employees who are or were Food Safety and Inspection Service food inspectors for [d]efendant, who, during the applicable time period, work/worked for [d]efendant and are/were denied their rights under applicable federal wage and hour laws.” ECF No. 1 at 2. Plaintiffs further allege that they are “excepted employees” and that they “like 2,400 other FSIS food inspectors, [were] retained for the shutdown,” which began on December 22, 2018. Id. at 5-6 . Plaintiffs seek “declaratory judgment, monetary damages, liquidated damages, prejudgment interest, and costs, including reasonable attorney’s fees.” Id. at 3 . Beginning at 12:01 a.m. on December 22, 2018, “a partial government shutdown began,” affecting the FSIS, among other agencies. Id. at 5 . The ADA “authorizes the executive branch to require employees to work, without pay, during a lapse in appropriated funds, if their work relates to ‘the safety [of] human life or the protection of 1 Plaintiffs did not file a response to defendant’s second supplemental brief. 2 Defendant moves for dismissal of plaintiffs’ complaint for only one reason—“for failure to state a claim upon which relief may be granted.” ECF No. 15 at 6. In one of its supplemental briefs, defendant suggests that a recent decision issued by the Supreme Court of the United States, Maine Community Health Options v. United States, 140 S. Ct. 1308 (2020), a case that does not involve FLSA claims, indicates that this court lacks jurisdiction to hear this case because the FLSA “contains its own provision for judicial review.” ECF No. 39 at 2. In the same brief, defendant acknowledges binding precedent from the United States Court of Appeals for the Federal Circuit to the contrary. Id. (citing Abbey v. United States, 745 F.3d 1363 (Fed. Cir. 2014)). The court will not review this entirely new basis for dismissal, which was made for the first time in defendant’s third supplemental brief, and which defendant acknowledges contradicts binding precedent. If defendant believes this court lacks jurisdiction to continue exercising its authority in this case, it may file a motion properly raising the issue. See Rule 12(h)(3) of the Rules of the United States Court of Federal Claims (RCFC) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”). 2 property.’” Id. at 5 (quoting 31 U.S.C. § 1342 ). While some employees were furloughed during the shutdown, plaintiffs were deemed “excepted” employees under the ADA, and were required to continue work. Id. at 5-6 . As of February 15, 2019, the date of the complaint, plaintiffs had been required to work throughout the shutdown and defendant “ha[d] not paid its [FSIS] food inspectors minimum or overtime wages as required by the FLSA.” Id. at 2 . Specifically, plaintiffs have not received “a lawful minimum wage for all hours worked up to forty (40) in one week or one and one-half (1.5) times their regular rate for all hours in excess of forty (40) in a week.” Id. at 6 . According to plaintiffs, defendant’s failure to pay regular wages and earned overtime is a per se violation of the FLSA. Id. at 7 . Plaintiffs also allege that defendant “neither acted in good faith, nor had reasonable grounds for believing that failing to pay FLSA nonexempt employees their overtime wages on time was compliant with the FLSA.” Id. In support of this statement, plaintiffs note that this court decided a FLSA case in plaintiffs’ favor in a similar case, referring to Martin v. United States, 130 Fed. Cl. 578 (2017). See id. at 7-8 . As such, plaintiffs contend that defendant “was on notice . . . that a failure to pay FLSA nonexempt employees their overtime wages on time” constituted “bad faith.” Id. at 7, 11 . Plaintiffs allege that defendant is, as a result, liable for a penalty of liquidated damages under the FLSA. See id. at 8 . II. Legal Standards When considering a motion to dismiss brought under RCFC 12(b)(6), the court “must presume that the facts are as alleged in the complaint, and make all reasonable inferences in favor of the plaintiff.” Cary v. United States, 552 F.3d 1373 , 1376 (Fed. Cir. 2009) (citing Gould, Inc. v. United States, 935 F.2d 1271 , 1274 (Fed. Cir. 1991)). It is well-settled that a complaint should be dismissed under RCFC 12(b)(6) “when the facts asserted by the claimant do not entitle him to a legal remedy.” Lindsay v. United States, 295 F.3d 1252 , 1257 (Fed. Cir. 2002). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662 , 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544 , 570 (2007)). III. Analysis A. Relevant Statutes This case fundamentally concerns the intersection of two statutes, the ADA and the FLSA. The ADA states that “an officer or employee” of the federal government “may not . . . make or authorize an expenditure or obligation exceeding an amount available in an appropriation or fund for the expenditure or obligation.” 31 U.S.C. § 1341 (a)(1)(A). In addition, the ADA dictates that “[a]n officer or employee of the 3 United States Government or of the District of Columbia government may not accept voluntary services for either government or employ personal services exceeding that authorized by law except for emergencies involving the safety of human life or the protection of property.” 31 U.S.C. § 1342 . In 2019, Congress amended the ADA, adding, in relevant part, the following: [E]ach excepted employee who is required to perform work during a covered lapse in appropriations[3] shall be paid for such work, at the employee’s standard rate of pay, at the earliest date possible after the lapse in appropriations ends, regardless of scheduled pay dates, and subject to the enactment of appropriations Acts ending the lapse. 31 U.S.C. § 1341 (c)(2) (footnote added). The amendment is commonly referred to as the Government Employees Fair Treatment Act of 2019 (GEFTA), Pub. L. No. 116-1, 133 Stat. 3 (2019). The knowing or willful violation of the ADA is punishable by a fine of “not more than $5,000” or imprisonment “for not more than 2 years, or both.” 31 U.S.C. § 1350 . And federal employees who violate the ADA “shall be subject to appropriate administrative discipline including, when circumstances warrant, suspension from duty without pay or removal from office.” 31 U.S.C. § 1349 (a). Defendant separately has obligations to its employees pursuant to the FLSA, which governs minimum wage and overtime wage compensation for certain employees. 4 See 29 U.S.C. § 213 (identifying categories of exempt employees). The FLSA requires that the government “pay to each of [its] employees” a minimum wage. 29 U.S.C. § 206 (a). Pursuant to the FLSA, the government also must compensate employees for hours worked in excess of a forty-hour workweek “at a rate not less than one and one-half times the regular rate at which [they are] employed.” 29 U.S.C. § 207 (a)(1). Although the text of the statute does not specify the date on which wages must be paid, courts have held that employers are required to pay these wages on the employee’s next regularly scheduled payday. See Brooklyn Sav. Bank v. O’Neil, 324 U.S. 697 , 707 (1945); Biggs v. Wilson, 1 F.3d 1537 , 1540 (9th Cir. 1993). If an employer violates the FLSA’s pay provisions, the employer is “liable to the . . . employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be.” 29 U.S.C. § 216 (b). The employer may also be liable “in an additional equal amount as liquidated damages,” id., unless “the employer shows to the satisfaction of the court that the act or omission . . . was in good faith, and that [the employer] had reasonable grounds 3 The statute defines “covered lapse in appropriations” to mean “any lapse in appropriations that begins on or after December 22, 2018.” 31 U.S.C. § 1341 (c)(1)(A). 4 The FLSA initially applied only to the private sector when enacted in 1938, but was amended to cover public employees in 1974. See Fair Labor Standards Amendments of 1974, Pub. L. No. 93-259, 88 Stat. 55 (1974). 4 for believing that his act or omission was not a violation of the [FLSA],” 29 U.S.C. § 260 . B. The Court’s Reasoning in Martin Applies In its motion to dismiss, defendant first argues that plaintiffs’ complaint should be dismissed for failure to state a claim because the agencies for which appropriations lapsed on December 22, 2018, were prohibited by the ADA from paying their employees—even excepted employees who were required to work. See ECF No. 15 at 13-14. This mandate, in defendant’s view, means that defendant cannot be held liable for violating its obligations under the FLSA. See id. Defendant argues: When Congress criminalized payments during an appropriations lapse, it plainly precluded payments on the schedule plaintiffs assert is required by the FLSA. Federal officials who comply with that criminal prohibition do not violate the FLSA, and Congress did not create a scheme under which compliance with the [ADA] Act would result in additional compensation as damages to federal employees. Id. at 13 . The court has previously ruled on the intersection of the ADA and the FLSA in the context of a lapse in appropriations. See Martin, 130 Fed. Cl. 578 . In Martin, plaintiffs were “current or former government employees who allege[d] that they were not timely compensated for work performed during the shutdown, in violation of the [FLSA].” Id. at 580 (citing 29 U.S.C. § 201 et seq.). The plaintiffs in Martin alleged the right to liquidated damages with regard to both the government’s failure to timely pay minimum wages and its failure to pay overtime wages. See id. In its motion for summary judgment, the government argued that “it should avoid liability under the FLSA for its failure to [pay plaintiffs on their regularly scheduled pay days during the shutdown] because it was barred from making such payments pursuant to the ADA.” See id. at 582 . The government summarized its argument in Martin as follows: The FLSA and the Anti-Deficiency Act appear to impose two conflicting obligations upon Federal agencies: the FLSA mandates that the agencies “shall pay to each of [its] employees” a minimum wage, 29 U.S.C. § 206 (a) (emphasis added), which has been interpreted by the courts to include a requirement that the minimum wage be paid on the employees’ next regularly scheduled pay day, see Brooklyn Savings Bank v. O’Neil, 324 U.S. 697 , 707 n.20 [ 65 S. Ct. 895 , 89 L. Ed. 1296 ] (1945); Biggs v. Wilson, 1 F.3d 1537 , 1540 (9th Cir. 1993), and the [ADA] mandates that “[a]n officer or employee of the United States Government . . . may not . . . make or authorize an expenditure . . . exceeding an amount available in an appropriation or fund 5  for the expenditure . . . .” 31 U.S.C. § 1341 (A)(1)(A) (emphasis added). Thus, when Federal agencies are faced with a lapse in appropriations and cannot pay excepted employees on their next regularly scheduled payday, the question arises of which statutory mandate controls. Id. at 582-83 (quoting defendant’s motion for summary judgment) (alterations in original). After reviewing applicable precedent and persuasive authority, the court concluded that “the issue is more complex than simply a choice between whether the FLSA or the ADA controls.” Id. at 583 . In the court’s view: the appropriate way to reconcile the [ADA and the FLSA] is not to cancel defendant’s obligation to pay its employees in accordance with the manner in which the FLSA is commonly applied. Rather, the court would require that defendant demonstrate a good faith belief, based on reasonable grounds, that its actions were appropriate. As such, the court will proceed to analyze this case under the construct of the FLSA, and evaluate the existence and operation of the ADA as part of determining whether defendant met the statutory requirements to avoid liability for liquidated damages. Id. at 584 . The court noted that plaintiffs’ claims survived a motion to dismiss because they had “alleged that defendant had failed to pay wages” on plaintiffs’ “next regularly scheduled payday.” Id. at 584 . On summary judgment, the court concluded that plaintiffs had proven this claim. See id. The court then concluded that the evidence supported an award of liquidated damages because the government failed to satisfy the court that it acted in good faith and on reasonable grounds when it failed to make the payments required under the FLSA. 5 See id. at 585-86 . Both parties acknowledge that the plaintiffs in Martin were “situated similarly to plaintiffs here.” ECF No. 15 at 14 (defendant’s motion to dismiss). Plaintiffs plead in their complaint that, like the plaintiffs in Martin, “[a]s a result of the shutdown, [d]efendant did not pay [plaintiffs] a lawful minimum wage for all hours worked.” ECF No. 1 at 6. And, as plaintiffs note in their response, “prior case law has already 5 In Martin, the defendant also argued that it should avoid liability for liquidated damages with regard to overtime wages due to its inability to calculate the correct amounts due. See Martin v. United States, 130 Fed. Cl. 578 , 586-87 (2017). This argument was based on a bulletin from the Department of Labor, and involves an issue that has not been raised in the present case. The absence of this argument, however, has no bearing on the application of the court’s reasoning in Martin with regard to the structure of the proper analysis in this case. 6 established that the [ADA] does not alleviate [d]efendant from its obligation to timely pay its employees under the FLSA.” ECF No. 16 at 1. In addition, plaintiffs here, like the plaintiffs in Martin, have “alleged that [d]efendant was on notice, both through previous case law and the [defendant’s] own previous liability, that its failure to pay [plaintiffs] violated the FLSA,” as it relates to the propriety of an award of liquidated damages. Id. at 17-18 . In its motion to dismiss, defendant does not dispute plaintiffs’ allegations that they were required to work during the shutdown, or that the plaintiffs were not paid during that time due to the lapse in appropriations. See ECF No. 15. Defendant characterizes the issue now before the court as “whether plaintiffs have stated a claim for liquidated damages under the [FLSA] notwithstanding the provisions of the [ADA].” Id. at 7 . In arguing its position, defendant reiterates the arguments advanced in Martin, but does not present any meaningful distinction between the posture of the Martin plaintiffs and the plaintiffs here. Instead, it acknowledges that “[t]his Court in Martin v. United States concluded that plaintiffs situated similarly to plaintiffs here could recover liquidated damages under the FLSA,” but states that it “respectfully disagree[s] with that holding.” Id. at 14 . Notwithstanding defendant’s disagreement, the court continues to believe that the framework it set out in Martin is appropriate and applies here. 6 As it did in Martin, “the court will proceed to analyze this case under the construct of the FLSA, and evaluate the existence and operation of the ADA as part of determining whether defendant met the statutory requirements to avoid liability for liquidated damages.” 7 Martin, 130 Fed. Cl. at 6 Defendant also argues that its obligations under the FLSA are limited by the ADA because “a congressional payment instruction to an agency must be read in light of the [ADA].” ECF No. 15 at 17. In support of this argument, defendant cites to Highland Falls-Fort Montgomery Cent. Sch. Dist. v. United States, 48 F.3d 1166 , 1171 (Fed. Cir. 1995). See id. In Highland-Falls, plaintiffs challenged the Department of Education’s (DOE) method for allocating funds under the Impact Aid Act. Highland-Falls, 48 F.3d at 1171 . The United States Court of Appeals for the Federal Circuit found, however, that the DOE’s “approach was consistent with statutory requirements.” Id. The case did not address FLSA claims, and found that the DOE’s approach “harmonized the requirements of the Impact Aid Act and the [ADA].” See id. In the court’s view, the Federal Circuit’s decision in Highland-Falls does not alter the analysis in this case. The United States District Court for the District of Columbia’s combined decision in National Treasury Employees Union v. Trump, Case No. 19-cv-50 and Hardy v. Trump, Case No. 19-cv-51, 444 F. Supp. 3d 108 (2020), discussed by defendant in one of its supplemental filings, see ECF No. 31, is likewise unhelpful. Although it involved facts that arose from the same 2018 lapse in appropriations, the decision focuses almost exclusively on an analysis of whether plaintiffs’ claims were moot, rather than on the operation of the ADA. 7 The parties both claim that the Supreme Court of the United States’ decision in Maine Community Health, 140 S. Ct. 1308 , supports their position in this case. See ECF No. 39, ECF No. 41. Maine Community Health does not address the FLSA, and only includes a limited 7 584. The court will, of course, consider the GEFTA amendment to the ADA as part of its analysis. C. Waiver of Sovereign Immunity Before analyzing the sufficiency of plaintiffs’ allegations, the court must address defendant’s contention that plaintiffs’ claims are barred by the doctrine of sovereign immunity. In its motion to dismiss, defendant correctly notes that “‘[a] waiver of the Federal Government’s sovereign immunity must be unequivocally expressed in statutory text, and will not be implied.’” ECF No. 15 at 19 (quoting Lane v. Pena, 518 U.S. 187 , 196 (1996)). And that waiver “‘will be strictly construed, in terms of its scope, in favor of the sovereign.’” Id. (quoting Lane, 518 U.S. at 192 ). Defendant concedes that the FLSA includes a waiver of sovereign immunity, but argues that the claims made by plaintiffs in this case fall outside the scope of that waiver. See id.; see also King v. United States, 112 Fed. Cl. 396 , 399 (2013) (stating that “there is no question that sovereign immunity has been waived under the FLSA”). Defendant argues that the FLSA “does not require that employees be paid on their regularly scheduled pay date or make damages available when compensation is not received on a pay date.” ECF No. 15 at 19-20. As a result, defendant contends, the scope of the FLSA’s waiver of sovereign immunity does not extend to the category of claims alleging a FLSA violation because wages were not paid as scheduled, such as plaintiffs’ claims in this case. See id. According to defendant, the GEFTA confirms its long-standing belief that the government’s payment obligations under the FLSA are abrogated by a lack of appropriations: The [GEFTA] provides that “each excepted employee who is required to perform work during a . . . lapse in appropriations shall be paid for such work, at the employee’s standard rate of pay, at the earliest date possible after the lapse in appropriations ends, regardless of scheduled pay dates.” Pub. L. No. 116-1, 133 Stat. 3 . Congress has thus spoken directly to the question of when compensation should be paid. There can be no basis for inferring that compensation made in accordance with that explicit directive subjects the United States to liquidated damages. discussion of the ADA. See Maine Cmty. Health, 140 S. Ct. at 1321-22. Accordingly, the decision does not dictate the outcome here. To the extent that the case informs the present discussion, however, it tends to support plaintiffs. In the opinion, the Supreme Court held that “the [ADA] confirms that Congress can create obligations without contemporaneous funding sources,” and concludes that “the plain terms of the [statute at issue] created an obligation neither contingent on nor limited by the availability of appropriations or other funds.” Id. at 1322, 1323. Applied here, this conclusion suggests that the defendant can incur an obligation to pay plaintiffs pursuant to the normal operation of the FLSA even when funding is not available. 8 Id. at 21. Defendant also asserts, without citation to any authority, that: Given that the Anti-Deficiency Act not only prohibits federal agencies from paying excepted employees on their regularly scheduled paydays during a lapse in appropriations, but also specifically addresses when and at what rate wages are to be paid following a lapse in appropriations, the government’s waiver of sovereign immunity under the FLSA must be strictly construed against liability for the delayed (but always forthcoming) payment of wages because of a lapse in appropriations. ECF No. 20 at 13. The court disagrees. The claims brought by plaintiffs in this case are straightforward minimum wage and overtime claims under the FLSA. 8 See ECF No. 1 at 8-10. Because the FLSA does not specify when such claims arise, courts have interpreted the statute to include a requirement that employers make appropriate wage payments on the employee’s next regularly scheduled payday. See Brooklyn Sav. Bank, 324 U.S. at 707 ; Biggs, 1 F.3d at 1540 . Contrary to defendant’s suggestion, the court is unpersuaded that this judicially-imposed timing requirement transforms ordinary FLSA claims into something analytically distinct, and beyond the scope of the statute’s waiver of sovereign immunity. Accordingly, the court finds that defendant has waived sovereign immunity as to plaintiffs’ claims, as it has with all FLSA claims, and the court will review the sufficiency of plaintiffs’ allegations as it would in any other FLSA case. D. Plaintiffs State a Claim for FLSA Violations As noted above, the FLSA requires that the government “pay to each of [its] employees” a minimum wage. 29 U.S.C. § 206 (a). Pursuant to the FLSA, the government also must compensate employees for hours worked in excess of a forty-hour workweek “at a rate not less than one and one-half times the regular rate at which [they 8 Plaintiffs assert in their response to defendant’s motion to dismiss, that “there are circumstances [here] that create issues regarding when [p]laintiffs should have been paid that extend beyond the [ADA] and its GEFTA amendment.” ECF No. 16 at 15. Plaintiffs note that “meat and poultry establishments” are required to reimburse the FSIS for inspection services that take place on federal holidays and for services extending beyond the standard eight-hour work day or forty hour work week. Id. These allegations are not included in plaintiffs’ complaint, therefore the court does not address them here. 9 are] employed.” 29 U.S.C. § 207 (a)(1). And although the text of the statute does not specify the date on which wages must be paid, courts have held that employers are required to pay these wages on the employee’s next regularly scheduled payday. See Brooklyn Sav. Bank, 324 U.S. at 707 ; Biggs, 1 F.3d at 1540 . In their complaint, plaintiffs allege that during the lapse in appropriations, they were each covered employees under the FLSA and were “designated [ ] ‘excepted’ employee[s] and . . . retained for the shutdown.” ECF No. 1 at 6. As a result, they were required to work throughout the shutdown but “[d]efendant did not pay [plaintiffs] a lawful minimum wage for all hours worked.” Id. Plaintiffs allege specific facts demonstrating how the allegations apply. See id. at 6-10. Defendant does not contest any of these allegations, and in fact, concedes that “plaintiffs [were] employees of an agency affected by the lapse in appropriations,” and that “plaintiffs were paid at the earliest possible date after the lapse in appropriations ended.” ECF No. 15 at 12-13. Defendant also admits that “[p]laintiffs are federal employees who performed excepted work during the most recent lapse in appropriations.” Id. at 15. In short, defendant does not claim that plaintiffs are not entitled to payment under the FLSA, but instead argues that it “fully complied with its statutory obligations to plaintiffs.” Id. at 16. The court finds that, presuming the facts as alleged in the complaint and drawing all reasonable inferences in their favor, plaintiffs have stated a claim for relief under the FLSA. See Cary, 552 F.3d at 1376 (citing Gould, 935 F.2d at 1274 ). E. Liquidated Damages Defendant insists that its failure to pay plaintiffs was a decision made in good faith, in light of the ADA. See ECF No. 20 at 15. It further urges the court to find that its good faith is so clear that the recovery of liquidated damages should be barred at this stage in the litigation. See id. at 15-18. But as the court held in Martin: [I]t would be inappropriate to determine, on motion to dismiss, whether the government had reasonable grounds and good faith. It may well be that the government can establish these defenses, but its opportunity to do so will come later on summary judgment or at trial. Moreover, even if the court were to decide that a liquidated damages award is warranted, additional factual determinations remain to be made as to which employees, if any, are entitled to recover, and damages, if any, to which those employees would be entitled. 10 Martin v. United States, 117 Fed. Cl. 611 , 627 (2014). Accordingly, the court declines to rule at this time on the issue of whether defendant can establish a good faith defense against liability for liquidated damages in this case. IV. Conclusion Accordingly, for the foregoing reasons: (1) Defendant’s motion to dismiss, ECF No. 15, is DENIED; (2) On or before January 29, 2021, defendant is directed to FILE an answer or otherwise respond to plaintiffs’ complaint; and (3) On or before January 29, 2021, the parties are directed to CONFER and FILE a joint status report informing the court of their positions on the consolidation of this case with any other matters before the court. IT IS SO ORDERED. s/Patricia E. Campbell-Smith PATRICIA E. CAMPBELL-SMITH Judge 11

2020-12-01 18:01:47.771143+00

https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2019cv0095-75-0

In the United States Court of Federal Claims No. 19-95C (E-Filed: December 1, 2020) ) I.P., et al., ) ) Motion to Dismiss; RCFC 12(b)(6); Plaintiffs, ) Fair Labor Standards Act (FLSA), 29 ) U.S.C. §§ 201-19; Anti-Deficiency Act v. ) (ADA), 31 U.S.C. §§ 1341-42 ; ) Government Employees Fair THE UNITED STATES, ) Treatment Act of 2019 (GEFTA); Pub. ) L. No. 116-1, 133 Stat. 3 (2019). Defendant. ) ) Laura R. Reznick, Garden City, NY, for plaintiff. Erin K. Murdock-Park, Trial Attorney, with whom were Joseph H. Hunt, Assistant Attorney General, Robert E. Kirschman, Jr., Director, Reginald T. Blades, Jr., Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, for defendant. Ann C. Motto, of counsel. OPINION AND ORDER CAMPBELL-SMITH, Judge. Plaintiffs in this putative collective action allege that the government, through several agencies, violated the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201-19 , by failing to timely pay their earned overtime and regular wages during the partial government shutdown and lapse of appropriations that began on December 22, 2018. See ECF No. 1 at 1-2 (complaint). On May 3, 2019, defendant moved to dismiss the complaint for failure to state a claim on which relief can be granted, pursuant to Rule 12(b)(6) of the Rules of the United States Court of Federal Claims (RCFC), on the basis that the Anti-Deficiency Act (ADA), 31 U.S.C. §§ 1341-42 , prohibited the government from paying employees. See ECF No. 25. In analyzing defendant’s motion, the court has considered: (1) plaintiffs’ complaint, ECF No. 1; (2) defendant’s motion to dismiss, ECF No. 25; (3) plaintiffs’ response to defendant’s motion, ECF No. 37; (4) defendant’s reply in support of its motion, ECF No. 44; (5) defendant’s first supplemental brief in support of its motion, ECF No. 46; (6) plaintiffs’ response to defendant’s first supplemental brief, ECF No. 49; (7) defendant’s second supplemental brief in support of its motion, ECF No. 57; (8) plaintiffs’ response to defendant’s second supplemental brief, ECF No. 65; (9) defendant’s third supplemental brief in support of its motion, ECF No. 67; and (10) plaintiffs’ response to defendant’s third supplemental brief, ECF No. 70. The motion is now fully briefed and ripe for ruling. 1 The court has considered all of the arguments presented by the parties, and addresses the issues that are pertinent to the court’s ruling in this opinion. For the following reasons, defendant’s motion is DENIED. I. Background Beginning on December 22, 2018, the federal government partially shut down due to a lack of appropriations. See ECF No. 1 at 5. The named plaintiffs in this case were, at the time of the shutdown, employees of the Transportation Security Administration, within the Department of Homeland Security. See id. at 3-4 . In their complaint, plaintiffs allege that they are “essential employees” or “excepted employees,” terms which refer to employees who “were required to report to work and perform their normal duties, but were not compensated for their work performed.” Id. at 1-2, 5 . Plaintiffs also allege that, in addition to being excepted employees required to work during a shutdown, they were also “classified as FLSA non- exempt Federal Air Marshal[s].” Id. at 3-4 . As a result of being categorized as non- exempt, excepted employees, plaintiffs were required to work during the shutdown, but were not paid minimum or overtime wages on their regularly scheduled paydays in violation of the FLSA. See id. at 5-7 . 1 Defendant moves for dismissal of plaintiffs’ complaint for only one reason—“for failure to state a claim upon which relief may be granted.” ECF No. 25 at 6. In one of its supplemental briefs, defendant suggests that a recent decision issued by the Supreme Court of the United States, Maine Community Health Options v. United States, 140 S. Ct. 1308 (2020), a case that does not involve FLSA claims, indicates that this court lacks jurisdiction to hear this case because the FLSA “contains its own provision for judicial review.” ECF No. 67 at 2. In the same brief, defendant acknowledges binding precedent from the United States Court of Appeals for the Federal Circuit to the contrary. See id. (citing Abbey v. United States, 745 F.3d 1363 (Fed. Cir. 2014)). The court will not review this entirely new basis for dismissal, which was made for the first time in defendant’s third supplemental brief, and which defendant acknowledges contradicts binding precedent. If defendant believes this court lacks jurisdiction to continue exercising its authority in this case, it may file a motion properly raising the issue. See Rule 12(h)(3) of the Rules of the United States Court of Federal Claims (RCFC) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”). 2  According to plaintiffs, defendant’s failure to timely pay their minimum and overtime wages was “willful, and in conscious or reckless disregard of the requirements of the FLSA.” Id. at 6, 7 . In support of this allegation, plaintiffs allege that “[d]efendant conducted no analyses to determine whether its failure to pay non-exempt [plaintiffs] the minimum wage for work performed during the [shutdown] complied with the FLSA and relied on no authorities indicating that its failure to pay [plaintiffs] the minimum wage for work performed during the [shutdown] complied with the FLSA,” id. at 6 , and that “[d]efendant conducted no analyses to determine whether its failure to pay non-exempt [plaintiffs] overtime pay for work performed during the [shutdown] complied with the FLSA and relied on no authorities indicating that it could fail to pay overtime to non- exempt [plaintiffs] on the [s]cheduled [p]ayday,” id. at 7 . Plaintiffs now seek payment of wages owed, liquidated damages, pre- and post-judgment interest, and reasonable attorneys’ fees. See id. at 10-11 . II. Legal Standards When considering a motion to dismiss brought under RCFC 12(b)(6), the court “must presume that the facts are as alleged in the complaint, and make all reasonable inferences in favor of the plaintiff.” Cary v. United States, 552 F.3d 1373 , 1376 (Fed. Cir. 2009) (citing Gould, Inc. v. United States, 935 F.2d 1271 , 1274 (Fed. Cir. 1991)). It is well-settled that a complaint should be dismissed under RCFC 12(b)(6) “when the facts asserted by the claimant do not entitle him to a legal remedy.” Lindsay v. United States, 295 F.3d 1252 , 1257 (Fed. Cir. 2002). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662 , 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544 , 570 (2007)). III. Analysis A. Relevant Statutes This case fundamentally concerns the intersection of two statutes, the ADA and the FLSA. The ADA states that “an officer or employee” of the federal government “may not . . . make or authorize an expenditure or obligation exceeding an amount available in an appropriation or fund for the expenditure or obligation.” 31 U.S.C. § 1341 (a)(1)(A). In addition, the ADA dictates that “[a]n officer or employee of the United States Government or of the District of Columbia government may not accept voluntary services for either government or employ personal services exceeding that authorized by law except for emergencies involving the safety of human life or the protection of property.” 31 U.S.C. § 1342 . In 2019, Congress amended the ADA, adding, in relevant part, the following: 3  [E]ach excepted employee who is required to perform work during a covered lapse in appropriations[2] shall be paid for such work, at the employee’s standard rate of pay, at the earliest date possible after the lapse in appropriations ends, regardless of scheduled pay dates, and subject to the enactment of appropriations Acts ending the lapse. 31 U.S.C. § 1341 (c)(2) (footnote added). The amendment is commonly referred to as the Government Employees Fair Treatment Act of 2019 (GEFTA), Pub. L. No. 116-1, 133 Stat. 3 (2019). The knowing or willful violation of the ADA is punishable by a fine of “not more than $5,000” or imprisonment “for not more than 2 years, or both.” 31 U.S.C. § 1350 . And federal employees who violate the ADA “shall be subject to appropriate administrative discipline including, when circumstances warrant, suspension from duty without pay or removal from office.” 31 U.S.C. § 1349 (a). Defendant separately has obligations to its employees pursuant to the FLSA, which governs minimum wage and overtime wage compensation for certain employees. 3 See 29 U.S.C. § 213 (identifying categories of exempt employees). The FLSA requires that the government “pay to each of [its] employees” a minimum wage. 29 U.S.C. § 206 (a). Pursuant to the FLSA, the government also must compensate employees for hours worked in excess of a forty-hour workweek “at a rate not less than one and one-half times the regular rate at which [they are] employed.” 29 U.S.C. § 207 (a)(1). Although the text of the statute does not specify the date on which wages must be paid, courts have held that employers are required to pay these wages on the employee’s next regularly scheduled payday. See Brooklyn Sav. Bank v. O’Neil, 324 U.S. 697 , 707 (1945); Biggs v. Wilson, 1 F.3d 1537 , 1540 (9th Cir. 1993). If an employer violates the FLSA’s pay provisions, the employer is “liable to the . . . employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be.” 29 U.S.C. § 216 (b). The employer may also be liable “in an additional equal amount as liquidated damages,” id., unless “the employer shows to the satisfaction of the court that the act or omission . . . was in good faith, and that [the employer] had reasonable grounds for believing that his act or omission was not a violation of the [FLSA],” 29 U.S.C. § 260 . 2 The statute defines “covered lapse in appropriations” to mean “any lapse in appropriations that begins on or after December 22, 2018.” 31 U.S.C. § 1341 (c)(1)(A). 3 The FLSA initially applied only to the private sector when enacted in 1938, but was amended to cover public employees in 1974. See Fair Labor Standards Amendments of 1974, Pub. L. No. 93-259, 88 Stat. 55 (1974). 4  B. The Court’s Reasoning in Martin Applies In its motion to dismiss, defendant first argues that plaintiffs’ complaint should be dismissed for failure to state a claim because the agencies for which appropriations lapsed on December 22, 2018, were prohibited by the ADA from paying their employees—even excepted employees who were required to work. See ECF No. 25 at 12-14. This mandate, in defendant’s view, means that defendant cannot be held liable for violating its obligations under the FLSA. See id. Defendant argues: When Congress criminalized payments during an appropriations lapse, it plainly precluded payments on the schedule plaintiffs assert is required by the FLSA. Federal officials who comply with that criminal prohibition do not violate the FLSA, and Congress did not create a scheme under which compliance with the [ADA] would result in additional compensation as damages to federal employees. Id. at 13 . The court has previously ruled on the intersection of the ADA and the FLSA in the context of a lapse in appropriations. See Martin v. United States, 130 Fed. Cl. 578 (2017). In Martin, plaintiffs were “current or former government employees who allege[d] that they were not timely compensated for work performed during the shutdown, in violation of the [FLSA].” Id. at 580 (citing 29 U.S.C. § 201 et seq.). The plaintiffs in Martin alleged the right to liquidated damages with regard to both the government’s failure to timely pay minimum wages and its failure to pay overtime wages. See id. In its motion for summary judgment, the government argued that “it should avoid liability under the FLSA for its failure to [pay plaintiffs on their regularly scheduled pay days during the shutdown] because it was barred from making such payments pursuant to the ADA.” See id. at 582 . The government summarized its argument in Martin as follows: The FLSA and the Anti-Deficiency Act appear to impose two conflicting obligations upon Federal agencies: the FLSA mandates that the agencies “shall pay to each of [its] employees” a minimum wage, 29 U.S.C. § 206 (a) (emphasis added), which has been interpreted by the courts to include a requirement that the minimum wage be paid on the employees’ next regularly scheduled pay day, see Brooklyn Savings Bank v. O’Neil, 324 U.S. 697 , 707 n.20 [ 65 S. Ct. 895 , 89 L. Ed. 1296 ] (1945); Biggs v. Wilson, 1 F.3d 1537 , 1540 (9th Cir. 1993), and the [ADA] mandates that “[a]n officer or employee of the United States Government . . . may not . . . make or authorize an expenditure . . . exceeding an amount available in an appropriation or fund for the expenditure . . . .” 31 U.S.C. § 1341 (A)(1)(A) (emphasis added). Thus, when Federal agencies are faced with a lapse in appropriations and 5  cannot pay excepted employees on their next regularly scheduled payday, the question arises of which statutory mandate controls. Id. at 582-83 (quoting defendant’s motion for summary judgment) (alterations in original). After reviewing applicable precedent and persuasive authority, the court concluded that “the issue is more complex than simply a choice between whether the FLSA or the ADA controls.” Id. at 583 . In the court’s view: the appropriate way to reconcile the [ADA and the FLSA] is not to cancel defendant’s obligation to pay its employees in accordance with the manner in which the FLSA is commonly applied. Rather, the court would require that defendant demonstrate a good faith belief, based on reasonable grounds, that its actions were appropriate. As such, the court will proceed to analyze this case under the construct of the FLSA, and evaluate the existence and operation of the ADA as part of determining whether defendant met the statutory requirements to avoid liability for liquidated damages. Id. at 584 . The court noted that plaintiffs’ claims survived a motion to dismiss because they had “alleged that defendant had failed to pay wages” on plaintiffs’ “next regularly scheduled payday.” Id. at 584 . On summary judgment, the court concluded that plaintiffs had proven this claim. See id. The court then concluded that the evidence supported an award of liquidated damages because the government failed to satisfy the court that it acted in good faith and on reasonable grounds when it failed to make the payments required under the FLSA. 4 See id. at 585-86 . Both parties acknowledge that the plaintiffs in Martin were “situated similarly to plaintiffs here.” ECF No. 25 at 14 (defendant’s motion to dismiss); see also ECF No. 37 at 6 (plaintiffs stating that “this case is factually and legally indistinguishable from Martin”). As plaintiffs outline in their response to defendant’s motion, “by [d]efendant’s own admission, the allegations in this case are virtually identical to those that were adequately pled in Martin.” ECF No. 37 at 9. In addition, plaintiffs here, like the plaintiffs in Martin, have alleged that “[d]efendant conducted no analyses to determine 4 In Martin, the defendant also argued that it should avoid liability for liquidated damages with regard to overtime wages due to its inability to calculate the correct amounts due. See Martin v. United States, 130 Fed. Cl. 578 , 586-87 (2017). This argument was based on a bulletin from the Department of Labor, and involves an issue that has not been raised in the present case. The absence of this argument, however, has no bearing on the application of the court’s reasoning in Martin with regard to the structure of the proper analysis in this case. 6 whether its failure to pay” plaintiffs both regular and overtime pay during the shutdown “complied with the FLSA.” ECF No. 1 at 6, 7. In its motion to dismiss, defendant does not dispute plaintiffs’ allegations that they were required to work during the shutdown, or that the plaintiffs were not paid during that time due to the lapse in appropriations. See ECF No. 25. Defendant characterizes the issue now before the court as “whether plaintiffs have stated a claim for liquidated damages under the [FLSA] notwithstanding the provisions of the [ADA].” Id. at 7 . In arguing its position, defendant reiterates the arguments advanced in Martin, but does not present any meaningful distinction between the posture of the Martin plaintiffs and the plaintiffs here. Instead, it acknowledges that “[t]his Court in Martin v. United States concluded that plaintiffs situated similarly to plaintiffs here could recover liquidated damages under the FLSA,” but states that it “respectfully disagree[s] with that holding.” Id. at 14 . Notwithstanding defendant’s disagreement, the court continues to believe that the framework it set out in Martin is appropriate and applies here. 5 As it did in Martin, “the court will proceed to analyze this case under the construct of the FLSA, and evaluate the existence and operation of the ADA as part of determining whether defendant met the statutory requirements to avoid liability for liquidated damages.” 6 Martin, 130 Fed. Cl. at 5 Defendant also argues that its obligations under the FLSA are limited by the ADA because “a congressional payment instruction to an agency must be read in light of the [ADA].” ECF No. 25 at 16. In support of this argument, defendant cites to Highland Falls-Fort Montgomery Cent. Sch. Dist. v. United States, 48 F.3d 1166 , 1171 (Fed. Cir. 1995). See id. In Highland-Falls, plaintiffs challenged the Department of Education’s (DOE) method for allocating funds under the Impact Aid Act. Highland-Falls, 48 F.3d at 1171 . The United States Court of Appeals for the Federal Circuit found, however, that the DOE’s “approach was consistent with statutory requirements.” Id. The case did not address FLSA claims, and found that the DOE’s approach “harmonized the requirements of the Impact Aid Act and the [ADA].” See id. In the court’s view, the Federal Circuit’s decision in Highland-Falls does not alter the analysis in this case. The United States District Court for the District of Columbia’s combined decision in National Treasury Employees Union v. Trump, Case No. 19-cv-50 and Hardy v. Trump, Case No. 19-cv-51, 444 F. Supp. 3d 108 (2020), discussed by defendant in one of its supplemental filings, see ECF No. 57, is likewise unhelpful. Although it involved facts that arose from the same 2018 lapse in appropriations, the decision focuses almost exclusively on an analysis of whether plaintiffs’ claims were moot, rather than on the operation of the ADA. 6 The parties both claim that the Supreme Court of the United States’ decision in Maine Community Health, 140 S. Ct. 1308 , supports their position in this case. See ECF No. 67, ECF No. 70. Maine Community Health does not address the FLSA, and only includes a limited discussion of the ADA. See Maine Cmty. Health, 140 S. Ct. at 1321-22. Accordingly, the decision does not dictate the outcome here. To the extent that the case informs the present discussion, however, it tends to support plaintiffs. In the opinion, the Supreme Court held that “the [ADA] confirms that Congress can create obligations without contemporaneous funding 7 584. The court will, of course, consider the GEFTA amendment to the ADA as part of its analysis. C. Waiver of Sovereign Immunity Before analyzing the sufficiency of plaintiffs’ allegations, the court must address defendant’s contention that plaintiffs’ claims are barred by the doctrine of sovereign immunity. In its motion to dismiss, defendant correctly notes that “‘[a] waiver of the Federal Government’s sovereign immunity must be unequivocally expressed in statutory text, and will not be implied.’” ECF No. 25 at 19 (quoting Lane v. Pena, 518 U.S. 187 , 192 (1996)). And that waiver “‘will be strictly construed, in terms of its scope, in favor of the sovereign.’” Id. (quoting Lane, 518 U.S. at 192 ). Defendant concedes that the FLSA includes a waiver of sovereign immunity, but argues that the claims made by plaintiffs in this case fall outside the scope of that waiver. See id.; see also King v. United States, 112 Fed. Cl. 396 , 399 (2013) (stating that “there is no question that sovereign immunity has been waived under the FLSA”). Defendant argues that the FLSA “does not require that employees be paid on their regularly scheduled pay date or make damages available when compensation is not received on a pay date.” ECF No. 25 at 19. As a result, defendant contends, the scope of the FLSA’s waiver of sovereign immunity does not extend to the category of claims alleging a FLSA violation because wages were not paid as scheduled, such as plaintiffs’ claims in this case. See id. at 19-21 . According to defendant, the GEFTA confirms its long-standing belief that the government’s payment obligations under the FLSA are abrogated by a lack of appropriations: The [GEFTA] provides that “each excepted employee who is required to perform work during a . . . lapse in appropriations shall be paid for such work, at the employee’s standard rate of pay, at the earliest date possible after the lapse in appropriations ends, regardless of scheduled pay dates.” Pub. L. No. 116-1, 133 Stat. 3 . Congress has thus spoken directly to the question of when compensation should be paid. There can be no basis for inferring that compensation made in accordance with that explicit directive subjects the United States to liquidated damages. Id. at 20-21 . sources,” and concludes that “the plain terms of the [statute at issue] created an obligation neither contingent on nor limited by the availability of appropriations or other funds.” Id. at 1322, 1323 . Applied here, this conclusion suggests that the defendant can incur an obligation to pay plaintiffs pursuant to the normal operation of the FLSA even when funding is not available. 8  Defendant also asserts that the scope of its waiver of sovereign immunity for FLSA claims does not cover the claims asserted here. See ECF No. 44 at 14. It argues, without citation to any authority, that: when the United States does not pay employees on their regularly scheduled paydays during a lapse in appropriations, a[ ] FLSA cause of action against the United States (1) does not accrue because the United States has not waived sovereign immunity for money damages resulting from the delayed payment of wages during a funding gap, and (2) cannot accrue because the [ADA] controls when and at what rate of pay the government must pay employees following a funding gap. Id. at 13 . The court disagrees. The claims brought by plaintiffs in this case are straightforward FLSA minimum wage and overtime claims under the FLSA. See ECF No. 37 at 6-7, 9; see also ECF No. 1 at 8-10. Because the FLSA does not specify when such claims arise, courts have interpreted the statute to include a requirement that employers make appropriate wage payments on the employee’s next regularly scheduled payday. See Brooklyn Sav. Bank, 324 U.S. at 707 ; Biggs, 1 F.3d at 1540 . Contrary to defendant’s suggestion, the court is unpersuaded that this judicially-imposed timing requirement transforms ordinary FLSA claims into something analytically distinct, and beyond the scope of the statute’s waiver of sovereign immunity. Accordingly, the court finds that defendant has waived sovereign immunity as to plaintiffs’ claims, as it has with all FLSA claims, and the court will review the sufficiency of plaintiffs’ allegations as it would in any other FLSA case. D. Plaintiffs State a Claim for FLSA Violations As noted above, the FLSA requires that the government “pay to each of [its] employees” a minimum wage. 29 U.S.C. § 206 (a). Pursuant to the FLSA, the government also must compensate employees for hours worked in excess of a forty-hour workweek “at a rate not less than one and one-half times the regular rate at which [they are] employed.” 29 U.S.C. § 207 (a)(1). And although the text of the statute does not specify the date on which wages must be paid, courts have held that employers are required to pay these wages on the employee’s next regularly scheduled payday. See Brooklyn Sav. Bank, 324 U.S. at 707 ; Biggs, 1 F.3d at 1540 . In their complaint, plaintiffs allege that during the lapse in appropriations, they and all putative class members were “[e]ssential [e]mployees” who were “classified as FLSA non-exempt Federal Air Marshal[s]” and “performed work for [d]efendant” but 9 were “not compensated on the [s]cheduled [p]ayday.” 7 ECF No. 1 at 3-5. Plaintiffs allege specific facts demonstrating how the allegations apply to each named plaintiff. See id. at 3-4. Defendant does not contest any of these allegations, and in fact, concedes that “plaintiffs [were] employees of agencies affected by the lapse in appropriations,” and that “plaintiffs were paid at the earliest possible date after the lapse in appropriations ended.” ECF No. 25 at 12, 13. Defendant also admits that “[p]laintiffs are federal employees who performed excepted work during the most recent lapse in appropriations.” Id. at 15. In short, defendant does not claim that plaintiffs are not entitled to payment under the FLSA, but instead argues that it “fully complied with its statutory obligations to plaintiffs.” Id. at 16. The court finds that, presuming the facts as alleged in the complaint and drawing all reasonable inferences in their favor, plaintiffs have stated a claim for relief under the FLSA. See Cary, 552 F.3d at 1376 (citing Gould, 935 F.2d at 1274 ). E. Liquidated Damages Defendant insists that its failure to pay plaintiffs was a decision made in good faith, in light of the ADA. See ECF No. 44 at 15. It further urges the court to find that its good faith is so clear that the recovery of liquidated damages should be barred at this stage in the litigation. See id. at 15-18. But as the court held in Martin: 7 Defendant argues that “[t]o the extent that plaintiffs (1) claim any FLSA violation for failing to pay FLSA minimum wages or overtime wages to FLSA-exempt employees, or (2) welcome FLSA-exempt employees to join their collective, those claims must be dismissed.” ECF No. 25 at 15 n.3. In support of this statement, defendant cites to Jones v. United States, 88 Fed. Cl. 789 (2009). See id. In Jones, the court stated: “The ‘precise question at issue’ is whether Section 111(d) of the [Aviation and Transportation Security Act] exempts [Transportation Security Administration (TSA)] from compliance with the FLSA when establishing overtime compensation for security screeners. Because we find that the plain language of Section 111(d) is unambiguous, we conclude that TSA need not comply with the FLSA.” 88 Fed. Cl. at 792 (emphasis added). This case is not binding precedent, and appears to be limited in application to security screeners. In the complaint, plaintiffs allege that the named individuals are TSA employees, but assert that they are “classified as FLSA non-exempt Federal Air Marshal[s].” ECF No. 1 at 3-4. Because the court’s decision in Jones does not hold that all TSA employees are necessarily FLSA-exempt, and because plaintiffs have alleged to the contrary, the court will not dismiss the claims of TSA employees at this time. Plaintiffs, however, ultimately bear the burden of proving that any TSA employees asserting claims in this case are, in fact, FLSA non-exempt in order for such employees to recover any damages that may be awarded. 10  [I]t would be inappropriate to determine, on motion to dismiss, whether the government had reasonable grounds and good faith. It may well be that the government can establish these defenses, but its opportunity to do so will come later on summary judgment or at trial. Moreover, even if the court were to decide that a liquidated damages award is warranted, additional factual determinations remain to be made as to which employees, if any, are entitled to recover, and damages, if any, to which those employees would be entitled. Martin v. United States, 117 Fed. Cl. 611 , 627 (2014). Accordingly, the court declines to rule at this time on the issue of whether defendant can establish a good faith defense against liability for liquidated damages in this case. IV. Conclusion Accordingly, for the foregoing reasons: (1) Defendant’s motion to dismiss, ECF No. 25, is DENIED; (2) On or before January 29, 2021, defendant is directed to FILE an answer or otherwise respond to plaintiffs’ complaint; and (3) On or before January 29, 2021, the parties are directed to CONFER and FILE a joint status report informing the court of their positions on the consolidation of this case with any other matters before the court. IT IS SO ORDERED. s/Patricia E. Campbell-Smith PATRICIA E. CAMPBELL-SMITH Judge 11