Datasets:

harvard-lil

/

cold-cases

like 11

"2009-01-09"

[ "998 So. 2d 722" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Castillo, Vincent Mark;' — -Defendant; Applying for Writ of Certiorari and/or Review, Parish of St. Charles, 29th Judicial District Court Div. E, No. 66,143; to the Court of Appeal, Fifth Circuit, No. 08-CA-284.\nDenied.\nGUIDRY, J, recused.\n", "ocr": true, "opinion_id": 7796004 } ]

"2009-02-06"

[ "999 So. 2d 779" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nIn re Ramelli Group L.L.C.; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. D, No. 2007-8362; to the Court of Appeal, Fourth Circuit, No. 2008-CA-0354.\nDenied. Result Correct.\nTRAYLOR, J., recused.\n", "ocr": true, "opinion_id": 7796222 } ]

"2022-07-28"

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 4, "download_url": "http://www.search.txcourts.gov/RetrieveDocument.aspx?DocId=35258&Index=%5c%5c10%2e20%2e4%2e7%5cTamesIndexes%5ccoa14%5cOpinion", "author_id": null, "opinion_text": "Petition for Writ of Mandamus Denied and Majority and Dissenting Opinions\nfiled July 28, 2022.\n\n\n\n\n In The\n\n Fourteenth Court of Appeals\n\n NO. 14-22-00230-CV\n\n IN RE T.R.L.\n\n\n On Appeal from the 311th District Court\n Harris County, Texas\n Trial Court Cause No. 2016-56370\n\n DISSENTING OPINION\n\n I respectfully disagree with the panel’s decision to deny Mother’s petition\nfor writ of mandamus by concluding that the trial court did not abuse its discretion\nin finding that Mother had voluntarily relinquished possession of T.R.L.\n\n Texas Family Code § 156.006 states that while a modification is pending,\nthe court may not render a temporary order changing the designation of the person\nwho has the exclusive right to designate the primary residence of the child unless,\nas relevant here, the temporary order is in the best interest of the child and that the\nperson designated in the final order has “voluntarily relinquished the primary care\n\fand possession of the child for more than six months.” Tex. Fam. Code Ann.\n§ 156.006(b)(2). The Family Code does not define “voluntarily.” Osorno v.\nOsorno, 76 S.W.3d 509, 511 (Tex. App.—Houston [14th Dist.] 2002, no pet.). A\nparent who is forced, coerced, threatened, or otherwise compelled to relinquish\npossession of a child is not acting voluntarily. See In re S.A.H., 420 S.W.3d 911,\n923 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (“‘[V]oluntary\nrelinquishment’ can be construed as meaning ‘to give up by one’s free will.’”)1;\nsee, e.g., In re S.W.H., 72 S.W.3d 772, 777 (Tex. App.—Fort Worth 2002, no pet.)\n(determining relinquishment was not voluntary when TRO prohibited parent from\ncontacting child); In re De la Pena, 999 S.W.2d 521, 527 (Tex. App.—El Paso\n1999, no pet.) (determining relinquishment was not voluntary when aunt prevented\nfather from retrieving child for several months); see also R.S. v. BJJ, 883 S.W.2d\n711, 719 (Tex. App.—Dallas 1994, no writ) (determining relinquishment was\nvoluntary when parents were aware of children’s whereabouts but did not ask for\ntheir return).\n\n Here, the record establishes that the final order stated that visitation was\nallowed as mutually agreed. Mother and Father appear to have cooperated as to\nvisitation and continued to do so during the COVID pandemic. During COVID,\nMother, an essential worker, had to work during the day and was required to report\nto her place of employment. Father did not work during COVID. The testimony,\nwhich was uncontroverted, supports that there were no drivers available to take\nT.R.L. to daycare, there were no virtual classes for T.R.L to attend, there were no\nvaccines for children at the time, and it was the safest option for the child. Mother\n\n\n 1\n We note that In re S.A.H. concerned a modification of a final order, rather than a\ntemporary order. See In re S.A.H., 420 S.W.3d 911, 923 (Tex. App.—Houston [14th Dist.] 2014,\nno pet.). However, the voluntary-relinquishment requirement exists in the statutes governing\nboth. See Tex. Fam. Code Ann. §§ 156.006, 156.101.\n\n 2\n\fagreed to let the child stay with Father during the week during the COVID\npandemic to allow T.R.L. to continue his kindergarten schooling. Otherwise, T.R.L\nwould have to stay at home with Mother during COVID and forego his schooling.\nMother jointly made decisions with Father regarding T.R.L.’s education, had\npossession of T.R.L. during the weekends and sometimes three to four days during\nsome weeks, provided him a tutor on certain weekends, and attended T.R.L.’s\nrecreational activities during the week. The record does not support a finding of\nrelinquishment by Mother. Cf. In re S.A.H., 420 S.W.3d at 923–24 (“There is\nextensive evidence that Great Aunt controlled all facets of S.A.H.’s life that a\nparent normally would control for those fourteen months, from school and\nextracurricular activities to medical treatment and birthday parties, and no\nappreciable evidence that Mother controlled any of these facets of S.A.H.’s life\nduring that time period.”).\n\n While Mother’s actions were voluntary, she did not voluntarily “relinquish”\nher child; rather, the conditions caused by the COVID pandemic forced a change\nof circumstances, which both parents participated in for the best interest of the\nchild. See id. at 922 (“‘[R]elinquish’ is commonly defined as ‘give up[.]’”).\nTherefore, I would conclude that the trial court abused its discretion and that\nMother is entitled to mandamus relief; I would grant the mandamus and vacate the\ntrial court’s January 21, 2022 order. See In re Barber, 982 S.W.2d 364, 366 (Tex.\n1998) (orig. proceeding); Walker v. Packer, 827 S.W.2d 933, 840 (Tex. 1993)\n(orig. proceeding).\n\n\n\n\n 3\n\f /s/ Margaret “Meg” Poissant\n Justice\n\n\n\n\nPanel consists of Justices Wise, Poissant, and Wilson. (Poissant, J., dissenting).\n\n\n\n\n 4\n\f", "ocr": false, "opinion_id": 7796438 } ]

"2022-05-26"

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "https://caseinfo.nvsupremecourt.us/document/view.do?csNameID=63940&csIID=63940&deLinkID=858513&onBaseDocumentNumber=22-16719", "author_id": null, "opinion_text": "\n\n\n\n\n\t84676: Case View\n\t\n\t\n\t\n\t\n\t\n\t\t\n\n\t\n\t\n\t\n\t\n\n\t\n\t\t\n\t\n\t\n\t\n \n\n\t\n\t\n\t\n\t\n\t\n\t\n\t\n\t\n\t\n\t\n\t\n\t\n\t\n\t\n\t\n\t\n\t\n\t\n\t\n\t\n\n\t\n\t\n\t \n\t\n\n\n\n\n\n\n\n\t\n\n\n\n\t\n\t\n\t\n\t\t\n\t\t\t\n\t\t\t\t\n\t\t\t\t\t\n\t\t\t\t\t\t\n\t\t\t\t\t\t\t\n\n\n\n\n\tNevada\n\tAppellate Courts\n\n\n\n\n\n\n\n\t\t\t\t\t\t\n\t\t\t\t\t\t\n\t\t\t\t\t\t\t\n\n\n\t\n\t\t\n\t\t\tAppellate Case Management System\n\t\t\n\t\n\t\n\t\t\n\t\t\tC-Track, the browser based CMS for Appellate Courts\n\t\t\n\t\n\t\n\t\t\n\t\t\t\n\n\n\t\n\t\n\t\n\t\t\n\t\t\t\n\t\t\t\t\n\t\t\t\n\t\t\n\t\t\t\n\t\t\n\t\t\n\t\t\n\t\n\t\n\n\n\n\n\t\n\t\n\t\n\t\t\n\t\t\t\n\t\t\t\n\t\t\t\t\n\t\t\t\t\n\t\t\t\t\tCase Search\n\t\t\t\t\n\t\t\t\n\t\t\t\t\n\t\t\t\t\n\t\t\t\t\tParticipant Search\n\t\t\t\t\n\t\t\t\n\t\t\t\n\t\t\n\t\t\n\t\n\t\n\n\t\t\n\t\n\n\t\t\t\t\t\t\n\t\t\t\t\t\t\n\t\t\t\t\t\t\t\n\n\n\t\t\n\t\n\t\n\t\n\t\t\n\t\t\n\t\n\t\n\t\n\n\t\t\t\t\t\t\n\t\t\t\t\t\n\t\t\t\t\n\t\t\t\n\t\t\n\t\n\t\n\t\t\n\t\t\t\n\t\t\t\t\n\t\t\t\t\t\n\t\t\t\t\t\t\n\t\t\t\t\t\t\n\t\t\t\t\t\t\n\t\t\t\t\t\t\t\n\t\t\t\t\t\t\t\t\n\n\n\n\t\n\t\t\n\t\t\t\n\t\t\t\tCases\n\t\t\t\t\n\t\t\t\t\n\t\t\t\t\n\t\t\t\t\t\n\t\t\t\t\t\t\n\t\t\t\t\t\t\n\t\t\t\t\t\t\n\t\t\t\t\t\t\n\t\t\t\t\t\t\t\n\t\t\t\t\t\t\t\tCase Search\n\t\t\t\t\t\t\t\n\t\t\t\t\t\t\n\t\t\t\t\t\t\n\t\t\t\t\t\n\t\t\t\t\t\t\n\t\t\t\t\t\t\n\t\t\t\t\t\t\n\t\t\t\t\t\t\n\t\t\t\t\t\t\t\n\t\t\t\t\t\t\t\tParticipant Search\n\t\t\t\t\t\t\t\n\t\t\t\t\t\t\n\t\t\t\t\t\t\n\t\t\t\t\t\n\t\t\t\t\n\t\t\t\n\t\t\n\t\n\t\n\n\t\t\t\t\t\t\t\n\t\t\t\t\t\t\t\n\t\t\t\t\t\t\n\t\t\t\t\t\t\n\t\t\t\t\t\t\n\t\t\t\t\t\t\t\n\t\t\t\t\t\t\t\t\n\t\t\t\t\t\t\t\t\t\n\t\t\t\t\t\t\t\t\n\n\n\n\n\t\n\t\n\t\t22-16719: This document is currently unavailable. If you need a copy of this document, please contact Clerk's Office at (775)684-1600.\t\n\t\n\t\n\n\tDisclaimer: The information and documents available here should not be relied upon as an official record of action.Only filed documents can be viewed. Some documents received in a case may not be available for viewing.Some documents originating from a lower court, including records and appendices, may not be available for viewing.For official records, please contact the Clerk of the Supreme Court of Nevada at (775) 684-1600.\n\n\n\n\t\n\t\n\t\n\t\n\nCase Information: 84676\n\n\nShort Caption:HARRIS (AMMAR) VS. STATECourt:Supreme Court\n\n\nRelated Case(s):65377, 85060\n\n\nLower Court Case(s):Clark Co. - Eighth Judicial District - C289275Classification:Criminal Appeal - Life - Other/Proper Person\n\n\nDisqualifications:Case Status:Remittitur Issued/Case Closed\n\n\nReplacement:Panel Assigned:\n\t\t\t\t\tPanel\n\t\t\t\t\t\n\n\nTo SP/Judge:SP Status:\n\n\nOral Argument:Oral Argument Location:\n\n\nSubmission Date:How Submitted:\n\n\n\n\n\n\t\n\n\t\n\t\t\n\n+\n\t\t\t\t\t\tParty Information\n\t\t\t\t\t\n\n\nRoleParty NameRepresented By\n\n\nAppellantAmmar Asim Faruq Harris\n\t\t\t\t\tIn Proper Person\n\t\t\t\t\n\n\nRespondentThe State of NevadaAlexander G. Chen\n\t\t\t\t\t\t\t(Clark County District Attorney)\n\t\t\t\t\t\tAaron D. Ford\n\t\t\t\t\t\t\t(Attorney General/Carson City)\n\t\t\t\t\t\t\n\n\n\t\t\n\t\n\n\t\n\t\n\t\n\t\t\n\nDocket Entries\n\n\nDateTypeDescriptionPending?Document\n\n\n05/06/2022Filing FeeAppeal Filing Fee Waived. Criminal. (SC)\n\n\n05/06/2022Notice of Appeal DocumentsFiled Notice of Appeal/Proper Person. Appeal docketed in the Supreme Court this day. (SC)22-14563\n\n\n\n\n05/26/2022Order/DispositionalFiled Order Dismissing Appeal. \"ORDERS this appeal DISMISSED.\" NNP22 - AS/EC/KP. (SC)22-16719\n\n\n\n\n06/20/2022RemittiturIssued Remittitur. (SC)22-19382\n\n\n\n\n06/20/2022Case Status UpdateRemittitur Issued/Case Closed. (SC)\n\n\n07/14/2022RemittiturFiled Remittitur. Received by District Court Clerk on June 21, 2022. (SC)22-19382\n\n\n\n\n\t\n\n\n\t\n\t\n\t\t\n\t\t\tCombined Case View\n\t\t\t\n\t\n\n\n\n\t\t\t\t\t\t \n\t\t\t\t\t \n\t\t\t\t \n\t\t\t \n\t\t\n\t\n \n\n\n\n\n", "ocr": false, "opinion_id": 7796697 } ]

"2022-08-02"

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 13, "download_url": "https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2020cv2256-35", "author_id": null, "opinion_text": " UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF COLUMBIA\n\n\n CITIZENS FOR RESPONSIBILITY AND\n ETHICS IN WASHINGTON\n\n Plaintiff,\n Civil Action No. 20-2256 (CKK)\n v.\n U.S. DEPARTMENT OF THE TREASURY,\n et al.,\n Defendants.\n\n\n MEMORANDUM OPINION\n (August 2, 2022)\n\n This Freedom of Information Act (“FOIA”) case arises from Plaintiff Citizens for\n\nResponsibility and Ethics in Washington’s (“CREW”) requests to Defendants U.S. Department of\n\nthe Treasury (“Treasury”), U.S. Postal Service (“USPS”), and U.S. Postal Service Office of the\n\nInspector General (“USPS OIG”) for records regarding mail-in voting and the selection of Louis\n\nDeJoy as Postmaster General of the United States. The parties contest the withholding of certain\n\nrecords under the deliberative process privilege. Because the Court concludes that some of the\n\noutstanding records do not qualify as deliberative, and upon consideration of the pleadings, 1 the\n\n\n\n1\n The Court’s consideration has focused on the following briefing and materials submitted by the\nparties:\n • Defendants’ Motion for Summary Judgment (“Defs.’ Mot.\"), ECF No. 23;\n • Plaintiff’s Memorandum in Support of Plaintiff’s Cross-Motion for Summary Judgment\n and Opposition to Defendants’ Motion for Summary Judgment (“Pl.’s Mot.”), ECF No.\n 24-1;\n • Defendants’ Response to Plaintiff’s Motion for Summary Judgment and Reply in Support\n of their Motion for Summary Judgment (“Defs.’ Repl.”), ECF No. 26;\n • Plaintiff’s Reply in Support of Plaintiff’s Cross-Motion for Summary Judgment (“Pl.’s\n Repl.”), ECF No. 28; and\n • The following documents in camera: USPS3, USPS4 and USPS5, USPS9, headers in\n USPS2-USPS6, and Treasury7.\n\n\n 1\n\frelevant legal authority, and the record as a whole, the Court shall GRANT IN PART and DENY\n\nIN PART Defendants’ [23] Cross-Motion for Summary Judgement and GRANT IN PART and\n\nDENY IN PART Plaintiff’s [24] Cross-Motion for Summary Judgment.\n\n I. BACKGROUND\n\n This case concerns three discrete FOIA requests. First, on June 20, 2020, CREW submitted\n\na FOIA request to Treasury, seeking “six categories of records that, broadly speaking, concerned\n\nvoting by mail; the retirement of former Postmaster General Megan Brennan; and the appointment\n\nof Louis DeJoy as Postmaster General.” Defs.’ Mot. 2 (citing Am. Compl. ¶ 16). Second, on June\n\n16, 2020, CREW submitted a FOIA request to USPS, seeking to acquire “ten categories of records”\n\ngenerally concerning\n\n materials relating to voting by mail that were prepared for former\n Postmaster General Brennan, Postmaster General DeJoy, Congress-\n members of [sic] their staff, the USPS OIG, the USPS Board of\n Governors, any state governors or their staff, as well as records\n relating to the departure of Postmaster General Brennan and the\n appointment of Postmaster General DeJoy.\n\nDefs.’ Mot. 3 (citing Am. Compl. ¶ 23). Third and finally, on June 16, 2020, CREW submitted a\n\nFOIA request to USPS OIG, seeking to acquire “five categories of documents.” Defs.’ Mot. 5\n\n(citing Am. Compl. ¶ 35).\n\n The request generally sought materials prepared by USPS OIG\n employees concerning voting by mail for Postmaster General DeJoy\n and for members of Congress or their staff; other kinds of USPS\n OIG documents concerning voting by mail; and any\n communications between USPS OIG and members of Congress or\n their staff concerning Louis DeJoy’s appointment as Postmaster\n General.\n\n\n\n\nIn an exercise of its discretion, the Court finds that holding oral argument would not be of\nassistance in rendering a decision. See LCvR 7(f).\n\n\n 2\n\fId. On September 2, 2020, CREW filed its operative Amended Complaint alleging, broadly, that\n\nDefendants had not provided all responsive documents. See generally Am. Compl. 6-8. The\n\nparties met and conferred, and, from late 2020 to early 2021, Defendants conducted additional\n\nsearches and provided CREW with additional responsive records. See ECF Nos. 12-17. CREW\n\ncontested a number of Defendants’ withholdings, and the parties have now completed cross-\n\nbriefing for summary judgment. At issue currently is Defendants’ Exemption 5 claims regarding\n\nthe following documents: USPS3, USPS4 and USPS5, USPS9, headers in USPS2-USPS6, and\n\nTreasury7 documents (Vaughn Index at 1–4, 6, ECF No. 23-7; Vaughn Index at 2, ECF No. 23-\n\n3) (“Disputed Documents”).\n\n II. LEGAL STANDARD\n\n The FOIA authorizes a district court only “to enjoin [a federal] agency from withholding\n\nagency records or to order the production of any agency records improperly withheld from the\n\ncomplainant.” 5 U.S.C. § 552(a)(4)(B). This case, like a “vast majority” of FOIA cases, can be\n\ndecided on summary judgment. See Brayton v. Office of U.S. Trade Representative, 641 F.3d 521,\n\n527 (D.C. Cir. 2011).\n\n Summary judgment is appropriate upon a showing that there is “no genuine dispute as to\n\nany material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).\n\nIn a FOIA case, the Court may award summary judgment to an agency solely on the information\n\nprovided in affidavits or declarations when they describe “the justifications for nondisclosure with\n\nreasonably specific detail, demonstrate that the information withheld logically falls within the\n\nclaimed exemption, and are not controverted by either contrary evidence in the record nor by\n\nevidence of agency bad faith.” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981);\n\naccord Am. Civil Liberties Union v. U.S. Dep’t of Def., 628 F.3d 612, 619 (D.C. Cir. 2011); see\n\n\n\n\n 3\n\falso Vaughn v. Rosen, 484 F.2d 820, 826 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974). Such\n\naffidavits or declarations are accorded “a presumption of good faith, which cannot be rebutted by\n\n‘purely speculative claims about the existence and discoverability of other documents.’” SafeCard\n\nServs., Inc. v. Sec. & Exch. Comm’n, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quoting Ground\n\nSaucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)). Rather, a plaintiff “must point to\n\nevidence sufficient to put the Agency’s good faith into doubt.” Ground Saucer, 692 F.2d at 771.\n\nOtherwise, “‘uncontradicted, plausible affidavits showing reasonable specificity and a logical\n\nrelation to the exemption are likely to prevail.’” Schoenman v. FBI, 841 F. Supp. 2d 69, 80 (D.D.C.\n\n2012) (quoting Ancient Coin Collectors Guild v. U.S. Dep’t of State, 641 F.3d 504, 509 (D.C. Cir.\n\n2011) (alteration omitted)).\n\n On summary judgment, the district court must conduct a “de novo” review of the record,\n\n5 U.S.C. § 552(a)(4)(B), “to ascertain whether the agency has sustained its burden of\n\ndemonstrating that the documents requested . . . are exempt from disclosure.” Assassination\n\nArchives & Research Ctr. v. CIA, 334 F.3d 55, 57 (D.C. Cir. 2003) (citation and internal quotation\n\nmarks omitted). “Consistent with the purpose of the Act, the burden is on the agency to justify\n\nwithholding requested documents.” Beck v. Dep’t of Just., 997 F.2d 1489, 1491 (D.C. Cir. 1993).\n\nOnly after an agency has proven that “it has fully discharged its disclosure obligations” is summary\n\njudgment appropriate. Weisberg v. U.S. Dep’t of Just., 705 F.2d 1344, 1350 (D.C. Cir. 1983).\n\n III. DISCUSSION\n\n A. Undisputed Issues\n\n As noted above, CREW no longer disputes the adequacy of Treasury’s and USPS’s\n\nsearches, any of USPS OIG’s withholdings, any of Treasury’s and USPS’s withholdings under\n\nFOIA Exemption 6 and Exemption 7, and Treasury’s withholdings of UST_000791-000793 and\n\n\n\n\n 4\n\fUST_000550-000553 under FOIA Exemption 5. Pl.’s Mot. at n.1; Pl.’s Reply at n.1. As such,\n\nthe Court grants summary judgment in part as to these issues in favor of Defendants.\n\n B. FOIA Exemption 5 & the Deliberative Process Privilege\n\n Exemption 5 protects “inter-agency or intra-agency memorandums or letters that would\n\nnot be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C. §\n\n552(b)(5). To fall within Exemption 5, “a document must meet two conditions: ‘its source must be\n\na Government agency, and it must fall within the ambit of a privilege against discovery under\n\njudicial standards that would govern litigation against the agency that holds it.’” Stolt-Nielsen\n\nTransp. Grp. v. United States, 534 F.3d 728, 733 (D.C. Cir. 2008) (quoting Dep’t of Interior v.\n\nKlamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001)). In essence, Exemption 5 provides\n\ngrounds for withholding documents that would fall under a variety of recognized privileges\n\navailable to Government agencies in civil litigation including, of relevance to this case, the\n\ndeliberative process privilege.\n\n The deliberative process privilege is intended to “prevent injury to the quality of agency\n\ndecisions.” Nat’l Labor Relations Bd. v. Sears, Roebuck & Co., 421 U.S. 132, 151 (1975). More\n\nspecifically, the privilege “serves to assure that subordinates within an agency will feel free to\n\nprovide the decisionmaker with their uninhibited opinions and recommendations without fear of\n\nlater being subject to public ridicule or criticism; to protect against premature disclosure of\n\nproposed policies before they have been finally formulated or adopted; and to protect against\n\nconfusing the issues and misleading the public by dissemination of documents suggesting reasons\n\nand rationales for a course of action which were not in fact the ultimate reasons for the agency’s\n\naction.” Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980). To that\n\nend, the privilege protects “documents and other materials that would reveal advisory opinions,\n\n\n\n\n 5\n\frecommendations and deliberations comprising part of a process by which governmental decisions\n\nand policies are formulated.” In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997) (internal\n\nquotation marks and citation omitted).\n\n For the privilege to apply, the government must establish that the material at issue is both\n\n“predecisional” and “deliberative” in nature. U.S. Fish & Wildlife Serv. v. Sierra Club, Inc., 141\n\nS. Ct. 777, 785-86 (2021). “A document is predecisional if it was ‘prepared in order to assist an\n\nagency decision maker in arriving at his decision,’ rather than to support a decision already made.”\n\nPetroleum Info. Corp. v. Dep’t of the Interior, 976 F.2d 1429, 1434 (D.C. Cir. 1992) (quoting\n\nRenegotiation Bd. v. Grumman Aircraft Eng’g Corp., 421 U.S. 168, 184 (1975)). In order to\n\ndetermine whether a document was prepared to assist an agency decisionmaker in arriving at the\n\ndecision, the Court “‘must consider whether the agency treats the document as its final view on\n\nthe matter.’” Jud. Watch, Inc. v. United States Dep't of Just., 20 F.4th 49, 54 (D.C. Cir. 2021)\n\n(quoting United States Fish & Wildlife Serv. v. Sierra Club, Inc., 141 S. Ct. 777, 786 (2021).\n\n A document is deliberative if “it reflects the give-and-take of the consultative process,”\n\nCoastal States, 617 F.2d at 866, and if it was “prepared to help the agency formulate its position.”\n\nU.S. Fish & Wildlife Serv., 141 S. Ct. at 786; see also Pub. Citizen, Inc. v. OMB, 598 F.3d 865,\n\n876 (D.C. Cir. 2010) (“To qualify under Exemption 5, a document must also be a direct part of the\n\ndeliberative process in that it makes recommendations or expresses opinions on legal or policy\n\nmatters.”) To determine whether a document reflects the give-and-take of the consultative process,\n\nthe Court considers “the ‘who,’ i.e., the roles of the document drafters and recipients and their\n\nplaces in the chain of command; the ‘what,’ i.e., the nature of the withheld content; the ‘where,’\n\ni.e., the stage within the broader deliberative process in which the withheld material operates; and\n\n\n\n\n 6\n\fthe ‘how,’ i.e., the way in which the withheld material facilitated agency deliberation.” Jud. Watch,\n\nInc. v. United States Dep't of Just., 20 F.4th 49, 56 (D.C. Cir. 2021).\n\n If a privilege applies, the agency must further demonstrate that disclosure of the document\n\nwill lead to a foreseeable harm. 5 U.S.C. § 552(a)(8)(A)(i) (“An agency shall . . . withhold\n\ninformation under this section only if . . . the agency reasonably foresees that disclosure would\n\nharm an interest protected by an exemption . . . .”).\n\n 1. USPS3\n\n USPS3 is a fully withheld document entitled “General Election Outreach to States Strategic\n\nPlan[.]” Revised Vaughn Index, ECF No. 33-1 at 1. USPS3 was created by the office responsible\n\nfor managing mail initiatives and presented to the Board of Governors and other executive leaders.\n\nId. CREW contends the “Strategic Plan” label suggests the agency implemented it in its\n\nengagement with states and notes that USPS does not contend the document is a draft or proposal.\n\nPl.’s Mot. at 10. USPS inists that the document was part of ongoing agency discussions about how\n\nto handle voting by mail and does not contain “the actual agency decision.” Revised Vaughn Index,\n\nECF No. 33-1 at 1. USPS further contends that the agency later implemented a plan that was\n\nobservable and well-documented. Id.\n\n Notably, while USPS claims the document does not contain the final agency decision,\n\nUSPS does not maintain that the strategic plan discussed by the document was distinct from the\n\nplan later implemented or explain with any detail why the document does not reflect the final\n\nagency decision. Id. Rather, USPS claims USPS3 “reflects USPS’s evolving and ongoing efforts\n\nto work with states” Defs.’ Mot. at 15, and was part of an assessment of the then-ongoing outreach\n\nto states during the 2020 primaries. Vaughn Index, ECF No. 23-7 at 1-2 (“The document at issue\n\nreflects USPS’s strategy to deal with state outreach,”); Decl. of Janine Castorina, ECF No. 23-6 at\n\n\n\n\n 7\n\f¶ 32 (the documents “reflect earlier lessons learned by the Postal Service during the 2020 primary\n\nelections and how; and reveal the Postal Service’s ongoing efforts to implement those lessons\n\nmoving forward.”).\n\n To the extent the strategic plan outlined in USPS3 reflects ongoing efforts to work with\n\nstates at the time, the strategic plan outlined in USPS3 was not predecisional because it was in fact\n\n“adopted, formally or informally, as the agency position on an issue” and “used by the agency in\n\nits dealings with” states. Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 866 (D.C.\n\nCir. 1980). Regardless of whether the “final” agency decision appears in some other, unidentified\n\ndocument, USPS 3 is clearly a final document circulated among USPS that states a final agency\n\nposition on how to address mail-in voting. It is entitled “General Election Outreach to States\n\nStrategic Plan,” is formatted as a final document, contains no redline or “draft” language, and\n\nincludes forms to be used by agency staff in furtherance of agency policy. As such, USPS3 largely\n\n“[re]states [and] explain[s] a decision the government has already made.” In re Sealed Case, 121\n\nF.3d 729, 737 (D.C. Cir. 1997).\n\n Moreover, USPS3 uses language that strongly suggests the strategic plan was an already-\n\nmade policy choice: “While we will outreach to all states and territories, this Strategic Plan\n\nprioritizes states and state election officials for targeted outreach, identifies the key messages and\n\ncontent, and outlines the internal resources required to executive [sic] this plan effectively.”\n\nUSPS3 at 1. USPS3 continues, “[t]he remaining states will also be contacted to ensure there are\n\nno anticipated changes in processes[.]” USPS3 at 2. Although USPS3 was a strategic plan for the\n\nupcoming 2020 General Election, USPS3’s language also confirms that it documented the ongoing\n\nand final strategy for outreach during the primaries: “The briefing sheets for each state will indicate\n\nwhether the state has already conducted their primary elections, which include state and local\n\n\n\n\n 8\n\felections.” USPS3 at 2. With regard to the 2020 General Election, USPS3 also makes clear that\n\nthe strategy was to prepare in advance by reaching out to states in the leadup to the General\n\nElection: “The remaining states will also be contacted to ensure that there are no anticipated\n\nchanges in processes or absentee ballot design planned for the general election.” USPS3 at 2.\n\n Because USPS3 describes the strategic plan for ongoing, implemented outreach efforts to\n\nstates, Vaughn Index, ECF No. 23-7 at 1-2, USPS3 “simply describe[s] already-made and in-place\n\npolicy choices.” Reps. Comm., 3 F.4th at 367 (finding that draft PowerPoint presentations lacking\n\na deliberative component and describing pre-existing policy do not fall within the deliberative\n\nprocess privilege). Cf. also NLRB v. Sears, Roebuck & Co., 421 U.S. 132, n.25 (1975)\n\n(representation that agency policy was undergoing review does not change earlier policy’s\n\nfinality). The Court’s in camera review of USPS3, combined with the context of USPS3 discussed\n\nabove, confirms that the document reflects a final strategic plan the agency implemented. As a\n\nresult, USPS3 is not predecisional and does not fall under the deliberative process privilege.\n\n 2. USPS4 and USPS5\n\n USPS4 and USPS5 consist of a three-page email chain partially withheld via redactions.\n\nRevised Vaughn Index, ECF No. 33-1 at 1. The emails, sent on April 22, 2020, involve USPS\n\nBoard Members Roman Martinez, John Berger, and Mike Duncan who voted on the selection of\n\nthe next Postmaster General. Id. at 1-2. The emails involve discussion between the Board\n\nMembers concerning information about individuals who were under consideration for selection as\n\nthe next Postmaster General. Id. The selection process was ongoing at this time, and the next\n\nPostmaster General was not announced until May 6, 2020. Pl.’s Stmt., ECF No. 24-2 at ¶ 1.\n\n The Court concludes the USPS4 and USPS5 were predecisional because the new\n\nPostmaster General had not yet been selected. The Court also concludes that USPS4 and USPS5\n\n\n\n\n 9\n\fare deliberative because they document discussion by agency decisionmakers about the ongoing\n\nselection process. See Reps. Comm. for Freedom of the Press v. FBI, 3 F.4th 350, 368 (D.C. Cir.\n\n2021) (“Because the emails discussed the content of a new policy and alternative paths for its\n\neffective implementation, they fall squarely within the deliberative process privilege.”). The Court\n\nfurther agrees that release of these documents would harm the agency’s decisionmaking process\n\nby chilling the deliberative process and creating confusion about the agency’s final decisions. See\n\nPinson v. U.S. Dep’t of Just., 202 F. Supp. 86, 111 (D.D.C. 2016) (internal discussion of candidate\n\nfor agency leadership position properly withheld under Exemption 5).\n\n 3. USPS9 (USPS 0033-0039)\n\n USPS9 consists of a redacted email chain and a fully withheld attachment. Revised Vaughn\n\nIndex, ECF No. 33-1 at 5. The emails, dated June 17, 2020 and May 7, 2020, involve discussion\n\nbetween USPS Board Members and a contractor about media strategy in advance of the new\n\nPostmaster General’s selection. Decl. of Janine Castorina, ECF No. 23-6 at ¶ 33; ECF No. 23-8 at\n\n42-44. Although USPS made the initial media announcement of the new Postmaster General on\n\nMay 6, 2020, the record shows that the process of discussing the new Postmaster General’s\n\nselection in the media was ongoing and subject to change. The Court’s in camera review of USPS9\n\nconfirms that the email discussion concerned ongoing strategy related to potential media inquiries\n\nregarding the new Postmaster General.\n\n The Court’s in camera review of USPS9 also confirms that the fully withheld document\n\nattached to the emails predates the May 6, 2020 announcement and concerns the details of the\n\nselection process. In the context of the email discussion, the document was used to inform the\n\nagency’s media strategy regarding the selection.\n\n\n\n\n 10\n\f Given this context, the Court concludes USPS9 is predecisional because the discussion\n\nconcerned strategy to address to future media inquiries regarding the new Postmaster General and\n\nthe selection process. The Court also concludes USPS9 is deliberative because it reflects the\n\nevolving discussion between the relevant agency decisionmakers on the best way to handle media\n\ninquiries related to the new Postmaster General. The Court agrees that release of these documents\n\nwould harm the agency’s decisionmaking process by chilling the selection process and creating\n\nconfusion about the agency’s final selection decision. See Pinson, 202 F. Supp. 3d at 115 n.17.\n\n 4. Treasury7 (UST_000840-000843)\n\n Treasury7 consists of an email chain, dated May 6, 2020, between former Assistant to the\n\nPresident and Director of the Office of Legislative Affairs Eric Ueland, former Treasury Secretary\n\nSteve Mnuchin, and former White House Chief of Staff Mark Meadows. Revised Vaughn Index,\n\nECF No. [33-2] at 1. The emails involve discussion of potential renewals of the CARES Act and\n\nits Paycheck Protection Program as well as other potential coronavirus relief legislation, including\n\nthe content, timing, and Executive Branch strategy related to such legislation. Id.; Decl. of\n\nMichelle Dickerman, ECF No. 23-2 at ¶ 13. Treasury contends that release “would inhibit their\n\nability to communicate about and respond to legislative developments in Congress.” Id.\n\n The Court’s in camera review of Treasury7 confirms that the discussions concerned\n\nspecific potential proposals for the renewal of the CARES Act that the decisionmakers had\n\nknowledge of as well as COVID-19 relief legislation the Executive Branch was considering. Each\n\nof the parties involved were high-level decisionmakers in the Executive Branch, and Secretary\n\nMnuchin’s role in the discussions reflect his role in the Treasury’s deliberations on how to respond\n\nto potential legislation concerning the economy. The Court concludes Treasury7 is predecisional\n\nand deliberative because it predated the potential legislation discussed and reflects ongoing\n\n\n\n\n 11\n\fdiscussions about what the agency strategy would be with respect to such legislation by the\n\nrelevant decisionmakers. See Am. Oversight v. U.S. Dep’t of Transp., Civ. A. No. 18-1272, 2022\n\nWL 103306, at *7 (D.D.C. Jan. 11, 2022) (holding discussions between agency staff and\n\nCongressional counterparts on draft legislation subject to deliberative process privilege). The\n\nCourt agrees that releasing Treasury 7 would harm the agency by chilling the deliberative process\n\nand creating confusion about the agency’s final decisions. See id. at *8.\n\n C. Segregability\n\n In addition to CREW’s specific claims regarding header information addressed above,\n\nCREW alleges broadly that Defendants failed to satisfy their segregability obligations. “Any\n\nreasonably segregable portion of a record shall be provided to any person requesting such record\n\nafter deletion of the portions which are exempt[.]” 5 U.S.C. § 552(b). “[T]he government may\n\nsimilarly demonstrate that it released all reasonably segregable parts of otherwise exempt records\n\nby submitting an affidavit indicating that an agency official conducted a review of each document\n\nand determined that the documents did not contain segregable information.” Citizens for Resp. &\n\nEthics in Washington v. U.S. Dep't of State, No. 20-CV-2044 (CRC), 2022 WL 424965, at *3\n\n(D.D.C. Feb. 11, 2022) (citing Johnson v. Exec. Office for U.S. Attorneys, 310 F.3d 771, 776 (D.C.\n\nCir. 2002)). Defendants have complied with those obligations here. Defendants have submitted\n\ndetailed Vaughn indices that explain the nature of each withheld document and why there is no\n\nadditional portion of any fully- or partially-withheld document that can be released. Additionally,\n\nDefendants’ declarations aver that Defendants conducted a “line-by-line review . . . to identify\n\ninformation exempt from disclosure or for which a discretionary waiver of exemption could be\n\napplied.” Castorina Decl., ECF No. 23-6 ¶¶ 51-52. FOIA requires nothing more of Defendants.\n\nACLU v. CIA, 109 F. Supp. 3d 220, 244 (D.D.C. 2015).\n\n\n\n\n 12\n\f IV. CONCLUSION\n\n For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART\n\nDefendants’ [23] Motion for Summary Judgment and GRANTS IN PART and DENIES IN\n\nPART Plaintiff’s [24] Cross-Motion for Summary Judgment. Summary judgment is granted in\n\nfavor of Plaintiff as to USPS3 and granted in favor of Defendants as to USPS4 and USPS5, USPS9,\n\nheaders in USPS2-USPS6, and Treasury7. An appropriate order accompanies this Memorandum\n\nOpinion.\n\n\n\nDated: August 2, 2022\n\n /s/_______________________\n COLLEEN KOLLAR-KOTELLY\n United States District Judge\n\n\n\n\n 13\n\f", "ocr": false, "opinion_id": 7797207 } ]

"2022-08-03"

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 1, "download_url": "https://www.pacourts.us/assets/opinions/Supreme/out/73MAL2022 - 105230165193385538.pdf", "author_id": null, "opinion_text": " IN THE SUPREME COURT OF PENNSYLVANIA\n MIDDLE DISTRICT\n\n\nCOMMONWEALTH OF PENNSYLVANIA, : No. 73 MAL 2022\n :\n Respondent :\n : Petition for Allowance of Appeal\n : from the Order of the Superior Court\n v. :\n :\n :\nANDRE DASAWN FULLER, :\n :\n Petitioner :\n\n\n ORDER\n\n\n\nPER CURIAM\n\n AND NOW, this 3rd day of August, 2022, the Petition for Allowance of Appeal is\n\nDENIED.\n\f", "ocr": false, "opinion_id": 7797614 } ]

"2022-08-05"

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 28, "download_url": "http://www.ca2.uscourts.gov/decisions/isysquery/bc017c71-e914-43ac-b6fa-f58810911c95/3/doc/22-540_opn.pdf", "author_id": null, "opinion_text": "22-540-cv\nIraq Telecom Ltd. v. IBL Bank S.A.L.\n\n\n\n UNITED STATES COURT OF APPEALS\n FOR THE SECOND CIRCUIT\n\n\n\n August Term 2021\n\n (Argued: June 9, 2022 Decided: August 5, 2022)\n\n Docket No. 22-540-cv\n\n\n IRAQ TELECOM LIMITED,\n\n Petitioner-Appellant,\n\n v.\n\n IBL BANK S.A.L.,\n Respondent-Appellee. *\n\n\n ON APPEAL FROM THE UNITED STATES DISTRICT COURT\n FOR THE SOUTHERN DISTRICT OF NEW YORK\n\n\n\nBefore:\n CHIN, BIANCO, and NARDINI, Circuit Judges.\n\n\n\n\n* The Clerk of Court is respectfully directed to amend the caption as set forth\nabove.\n\f Appeal from an order of the United States District Court for the\n\nSouthern District of New York (Cote, J.) reducing an order of attachment in aid\n\nof arbitration. The district court had initially granted an ex parte order in favor of\n\npetitioner-appellant, an Iraqi cell phone company, attaching up to $100 million of\n\nthe assets of respondent-appellee, a Lebanese bank. Thereafter, the district court\n\nexercised its discretion and reduced the amount of the attachment to $3 million\n\nin part because of concerns the attachment would have an adverse impact on the\n\nLebanese economy. The Iraqi cell phone company appeals.\n\n AFFIRMED IN PART, VACATED IN PART, AND REMANDED.\n\n\n\n\n DEREK L. SHAFFER (Kevin S. Reed, William B. Adams,\n Alex H. Loomis, and Kristin N. Tahler, on the\n brief), Quinn Emanuel Urquhart & Sullivan, LLP,\n Washington, DC, New York, NY, Boston, MA,\n and Los Angeles, CA, for Petitioner-Appellant.\n\n MITCHELL R. BERGER (Gassan A. Baloul, on the brief),\n Squire Patton Boggs (US) LLP, Washington, DC,\n for Respondent-Appellee.\n ___________\n\nCHIN, Circuit Judge:\n\n In this case, the district court granted an ex parte order of attachment\n\nof $100 million in favor of petitioner-appellant Iraq Telecom Limited (\"Telecom\"),\n\fan Iraqi cell phone company, against the assets of respondent-appellee IBL Bank\n\nS.A.L. (\"IBL\"), a Lebanese bank. Telecom had prevailed in an arbitration against\n\nIBL and two other entities and was pursuing a second (and still pending)\n\narbitration against IBL, and the attachment was in aid of arbitration. Thereafter,\n\nIBL appeared in the proceedings and opposed the attachment, and the district\n\ncourt vacated the attachment in part, reducing it to $3 million. In reviewing\n\nwhether Telecom had satisfied the statutory requirements for attachment, the\n\ndistrict court found that Telecom had established that it was likely to succeed on\n\nthe merits in a pending arbitration only to the extent of $8.92 million. The district\n\ncourt then exercised its discretion and held that extraordinary circumstances,\n\nincluding the impact of the attachment on the Lebanese economy, dictated\n\nfurther reduction of the attachment to $3 million.\n\n On appeal, Telecom argues that (1) it established a probability of\n\nsuccess in the pending arbitration and was therefore entitled to an attachment of\n\n$100 million and (2) the district court lacked authority to consider extraordinary\n\ncircumstances in reducing the attachment. For the reasons set forth below, we\n\naffirm in part, vacate in part, and remand.\n\n\n\n\n -3-\n\f BACKGROUND\n\nI. The Facts\n\n This case arises out of a scheme to defraud a lender. Telecom is a\n\ntelecommunications company that owns 44 percent of an entity called\n\nInternational Holdings Limited (\"IHL\"), which in turn owns 100 percent of Korek\n\nTelecom Company LLC (\"Korek\"), an Iraqi company providing cell phone\n\nservices in Iraq. The other 56 percent of IHL is owned by another entity, Korek\n\nInternational (Management) Ltd., which is controlled by an individual named\n\nSirwan Saber Mustafa, also known as Barzani.\n\n In 2011, Telecom lent $285 million to Korek through a transaction\n\nwith IHL. IBL then lent $150 million to Korek. Barzani described that loan to\n\nTelecom as unsecured, and Telecom agreed to subordinate its loan to the IBL\n\nloan through a subordination agreement executed on December 14, 2011. In\n\n2015, Korek defaulted on the IBL loan. IBL invoked the subordination agreement\n\nand, accordingly, Korek stopped repaying the Telecom loan and instead paid IBL\n\napproximately $148 million in interest. Later, Telecom discovered that the IBL\n\nloan was not unsecured and that IBL had secretly paid to Barzani the interest it\n\nreceived from Korek. Apparently, IBL and Barzani had devised a scheme to\n\ndefraud Telecom into subordinating its loan, to their mutual benefit.\n -4-\n\fII. The Arbitrations\n\n In June 2018, Telecom brought an arbitration proceeding against\n\nIBL, Korek, and IHL in Lebanon before the Lebanese Arbitration Center of the\n\nChamber of Commerce, Industry and Agriculture of Beirut and Mount Lebanon\n\n(the \"First Arbitration\"). Although Telecom originally sought a damages award\n\nin the First Arbitration, it withdrew its request for damages and sought only\n\ndeclaratory relief \"to eliminate any argument regarding double-recovery issues\"\n\nin other proceedings. App'x at 130 ¶ 368.\n\n On September 21, 2021, Telecom won an arbitration award of $3\n\nmillion in attorney's fees jointly and severally against IBL, Korek, and IHL. The\n\narbitrators found, among other things, that (1) IBL \"clearly and knowingly\n\nparticipated in the deception\" of Telecom, id. at 289 ¶ 954, and that IBL's conduct\n\n\"confirmed its engagement in dol\" 1 at the time it entered into the subordination\n\nagreement, id. at 294 ¶ 969; (2) IBL, Korek, and IHL \"actively participated in the\n\n\n\n1 \"Dol\" is a French word and a Lebanese legal term meaning \"fraud.\" App'x at 265-\n67. Lebanon follows a civil law system influenced by France, and the \"most notable\"\nLebanese legal code is the French-language Code of Obligations and Contracts. Firas El\nSamad, The Lebanese Legal System and Research, GLOBALEX (Nov.-Dec. 2008),\nhttps://www.nyulawglobal.org/globalex/Lebanon.html. Articles 202, 208, 209, and 233\nof the Code of Obligations and Contracts govern dol. App'x at 265. To summarize those\narticles, and as the parties agree, dol involves fraud or fraudulent concealment intended\nto deceive or mislead.\n -5-\n\fcommission of dol,\" id. at 293 ¶ 967; and (3) the subordination agreement was\n\n\"null and void,\" id. at 294 ¶ 970, 307 ¶ 1031(vi). It also found that IBL paid to\n\nBarzani 96 percent of the interest payments it received from Korek. Id. at 289\n\n¶ 953.\n\n On December 13, 2021, Telecom brought a second arbitration against\n\nIBL seeking $97 million in damages resulting from the fraud (the \"Second\n\nArbitration\"). The Second Arbitration is pending.\n\nIII. Proceedings Below\n\n On December 21, 2021, Telecom filed in the district court a sealed\n\npetition for confirmation of the First Arbitration award and a motion for an order\n\nof attachment of all of IBL's property located in the Southern District of New\n\nYork. On January 19, 2022, the district court entered the ex parte order of\n\nattachment of up to $100 million held in four accounts. About $42 million was\n\nattached from IBL's correspondent accounts at JP Morgan Chase Bank, Citibank,\n\nand Bank of New York Mellon.\n\n On January 31, 2022, Telecom moved to confirm the ex parte\n\nattachment of $100 million and to expand the scope of the attachment to include\n\nall of IBL's property located in the Southern District of New York. Id. at 16, 22,\n\n\n\n -6-\n\f24. IBL opposed the motion and cross-moved to vacate the attachment. Id. at\n\n871. The district court held oral argument on March 16 and filed a forty-nine-\n\npage opinion vacating the attachment in part that same day.\n\n The district court found that Telecom had shown a probability of\n\nsuccess on the merits as to the $3 million in costs and fees awarded in the First\n\nArbitration and as to $5.92 million of the amount at issue in the Second\n\nArbitration.\n\n As to the Second Arbitration, the district court found that Telecom\n\nwas likely to establish that Barzani and IBL acted in concert to defraud Telecom.\n\nIt further found that the parties agreed that, under Lebanese law, joint and\n\nseveral liability is established if defendants have acted in concert. Nevertheless,\n\nit concluded that Telecom failed to show that it was likely to receive an\n\narbitration award of $97 million because all but $5.92 million of the interest\n\npayments owed to Telecom flowed through IBL to Barzani. To reach the figure\n\nof $5.92 million, the district court calculated 4 percent of the interest paid to IBL,\n\nrepresenting funds IBL retained that had not been kicked back to Barzani. Thus,\n\nthe district court held, it was \"entirely conceivable\" that the Second Arbitration\n\npanel \"would limit any future award against IBL to the roughly $5.92 million that\n\n\n\n -7-\n\f[IBL] retained.\" Special App'x at 32. Accordingly, the district court concluded\n\nthat Telecom was entitled to an attachment of no more than $8.92 million,\n\ncomprising the $3 million award from the First Arbitration and the potential\n\n$5.92 million award from the Second Arbitration.\n\n Next, the district court held that \"any arbitration award may be\n\nrendered ineffectual without a prejudgment attachment of IBL assets.\" Id. at 35.\n\nIn particular, Telecom established that IBL was likely insolvent, and the\n\nattachment was thus necessary to ensure that Telecom could receive the full\n\nbenefit of an award against IBL. The district court also found that Telecom had a\n\ncause of action and that no counterclaims exceeded the value of the claims.\n\nThus, the district court found that Telecom satisfied all of the statutory\n\nrequirements for attachment in aid of arbitration.\n\n Finally, the district court reduced the attachment from $8.92 million\n\nto $3 million. The district court observed that the decision whether to grant a\n\nmotion for an order of attachment \"rests within the discretion of the court,\" id. at\n\n22, and it held that that discretion encompassed consideration of \"extraordinary\n\ncircumstances\" even where, as here, the statutory requirements for attachment\n\nhad been satisfied, id. at 30. The district court identified the following\n\n\n\n -8-\n\fextraordinary circumstances present in this case: the attachment (1) could force\n\nIBL into insolvency, affecting the fragile Lebanese economy; (2) would cause IBL\n\nto fall out of compliance with crisis management regulations imposed by\n\nLebanon's central bank; (3) interfered with innocent third parties' access to their\n\nmoney; (4) could undermine confidence in New York's financial institutions; and\n\n(5) should not be lightly imposed because Barzani, not IBL, was the principal\n\nwrongdoer. It held that those circumstances posed \"sever[e],\" \"perilous,\" and\n\n\"calamitous\" risks militating reduction of the attachment, noting that the larger\n\nattachment \"would be entered\" absent them. Id. at 40-42.\n\n Accordingly, the district court granted in part the motion to confirm\n\nas to $3 million and granted in part the cross-motion to vacate.\n\n This appeal followed.\n\n DISCUSSION\n\nI. Applicable Law\n\n A. Attachment in Aid of Arbitration\n\n Attachment is available in federal court \"under the law of the state\n\nwhere the court is located.\" Fed. R. Civ. P. 64. \"Under New York law, an\n\nattachment bars any sale, assignment or transfer of, or any interference with the\n\n\n\n -9-\n\fproperty attached.\" Cap. Ventures Int'l v. Republic of Argentina (Cap. Ventures II),\n\n652 F.3d 266, 270 (2d Cir. 2011) (internal quotation marks omitted).\n\n As pertinent here, section 7502(c) of New York's Civil Practice Law\n\nand Rules provides for attachment in aid of arbitration \"only upon the ground\n\nthat the award to which the applicant may be entitled may be rendered\n\nineffectual without such provisional relief.\" N.Y. C.P.L.R. 7502(c). Section\n\n7502(c) incorporates New York's general attachment statute, article 62 of the Civil\n\nPractice Law and Rules, which requires a plaintiff seeking attachment to\n\nestablish one of five statutory bases for attachment, among them that \"the\n\ndefendant is a nondomiciliary residing without the state, or is a foreign\n\ncorporation not qualified to do business in the state.\" N.Y. C.P.L.R. 6201(1). In\n\naddition to one of those grounds, the plaintiff must show that (1) \"there is a cause\n\nof action,\" (2) \"it is probable that the plaintiff will succeed on the merits,\" and\n\n(3) \"the amount demanded from the defendant exceeds all counterclaims known\n\nto the plaintiff.\" N.Y. C.P.L.R. 6212(a); see Cap. Ventures Int'l v. Republic of\n\nArgentina (Cap. Ventures I), 443 F.3d 214, 219 (2d Cir. 2006).\n\n On a motion for attachment in aid of arbitration, probability of\n\nsuccess is \"measured in terms of the likelihood of success in arbitration.\" SG\n\n\n\n - 10 -\n\fCowen Sec. Corp. v. Messih, 224 F.3d 79, 84 (2d Cir. 2000) (emphasis omitted).\n\nWhere an arbitration is pending, probability of success \"cannot be predicted with\n\nthe confidence a court would have in predicting the merits of a dispute awaiting\n\nlitigation in court\" because \"arbitration is frequently marked by great flexibility\n\nin procedure, choice of law, legal and equitable analysis, evidence, and remedy.\"\n\nId. Even so, the plaintiff must be given \"the benefit of all legitimate inferences\n\nand deductions that can be made from the facts stated.\" Swiss Bank Corp. v.\n\nEatessami, 273 N.Y.S.2d 935, 938 (1st Dep't 1966) (internal quotation marks\n\nomitted).\n\n On a defendant's motion to vacate or modify an order of attachment,\n\nthe plaintiff bears the burden of establishing \"the need for continuing the levy.\"\n\nN.Y. C.P.L.R. 6223(b). It \"must demonstrate an identifiable risk that the\n\ndefendant will not be able to satisfy the judgment.\" VisionChina Media Inc. v.\n\nS'holder Representative Servs., LLC, 967 N.Y.S.2d 338, 345-46 (1st Dep't 2013). \"The\n\nrisk should be real\" and may include \"a defendant's financial position,\" \"past and\n\npresent conduct,\" \"history of paying creditors,\" or a \"stated or indicated intent to\n\ndispose of assets.\" Id. at 346 (internal quotation marks omitted).\n\n\n\n\n - 11 -\n\f B. Exercise of Discretion\n\n In the context of an application for an attachment under article 62,\n\nwhether to grant the application \"rests within the discretion of the court.\" Id. at\n\n345 (citing Morgenthau v. Avion Res. Ltd., 11 N.Y.3d 383, 387 (2008) (reviewing\n\ndenial of motion to confirm attachment for abuse of discretion)). But neither this\n\nCourt nor the New York Court of Appeals has ruled on whether that discretion\n\nincludes the power to consider nonstatutory factors such as extraordinary\n\ncircumstances.\n\n This Court explicitly left open the issue in two previous decisions.\n\nIn Capital Ventures I, we held that where \"a statutory ground for attachment exists\n\nand both need and likelihood of success are established, [a motion court's]\n\ndiscretion does not permit denial of the remedy for some other reason, at least\n\nabsent extraordinary circumstances and perhaps even then.\" 443 F.3d at 222.\n\nThis Court left the issue open again in Capital Ventures II. 652 F.3d at 273-74.\n\nThere, we held that Capital Ventures had satisfied the statutory standards and\n\nthat none of the circumstances presented by Argentina were \"extraordinary\n\nenough to justify a discretionary modification of the attachments, even assuming\n\nthe possibility of such a modification.\" Id.\n\n\n\n - 12 -\n\f C. Standard of Review\n\n We review for abuse of discretion the district court's findings as to\n\nwhether the statutory requirements for attachment have been satisfied. Cap.\n\nVentures I, 443 F.3d at 222; EM Ltd. v. Republic of Argentina, 473 F.3d 463, 472 (2d\n\nCir. 2007). \"A district court abuses its discretion if it (1) bases its decision on an\n\nerror of law or uses the wrong legal standard; (2) bases its decision on a clearly\n\nerroneous factual finding; or (3) reaches a conclusion that, though not necessarily\n\nthe product of a legal error or a clearly erroneous factual finding, cannot be\n\nlocated within the range of permissible decisions.\" Villiers v. Decker, 31 F.4th 825,\n\n831 (2d Cir. 2022).\n\nII. Application\n\n Principally, the parties dispute whether the district court had\n\ndiscretion to consider extraordinary circumstances when reducing the\n\nattachment and, if it did, whether it abused that discretion in reducing the\n\nattachment to $3 million.\n\n As to the statutory factors governing attachment, the parties do not\n\ndispute that Telecom established one or more grounds for attachment under\n\nC.P.L.R. 6201, has a cause of action, and demanded an amount that exceeds all\n\n\n\n - 13 -\n\fknown counterclaims. They agree that Telecom is likely to succeed on the merits\n\nas to a total award of $8.92 million between the two arbitrations, see Appellee's\n\nBr. at 47, but they disagree as to whether Telecom is likely to succeed as to any\n\nmore than that. 2\n\n Accordingly, two issues are presented: first, whether a court has\n\ndiscretion to consider extraordinary circumstances even where the statutory\n\nrequirements for attachment have been satisfied; and second, whether the district\n\ncourt abused its discretion here in (1) weighing the identified extraordinary\n\ncircumstances, (2) concluding that the greater culpability of one of the\n\nwrongdoers was a reason to reduce the amount of the attachment, and\n\n(3) assessing Telecom's probability of success. We address each issue in turn.\n\n\n\n\n2 IBL also argues that Telecom has not established the continuing need for the\nlevy. We disagree. As the district court held, any award from the Second Arbitration\nwould be \"ineffectual without an attachment since IBL appears to be insolvent.\" Special\nApp'x at 30. Further, IBL admitted that it intends to dissipate the funds held in the\ncorrespondent accounts to process transactions. Dist. Ct. Dkt. 54-1 at 5-6. Thus,\nTelecom has established the risk that it will not be able to collect absent attachment\nbased on IBL's financial position and its stated intent to dispose of its assets. See\nVisionChina, 967 N.Y.S.2d at 346.\n\n\n - 14 -\n\f A. Whether Extraordinary Circumstances May Be Considered\n\n Because neither this Court nor the New York Court of Appeals has\n\nruled on whether courts have discretion to consider nonstatutory factors such as\n\nextraordinary circumstances on a motion to vacate or modify attachment, we\n\nmust \"predict how the state court would resolve an ambiguity in state law.\"\n\nDonohue v. Hochul, 32 F.4th 200, 207 (2d Cir. 2022) (internal quotation marks\n\nomitted). 3 In so doing, we may look to the decisions of the Appellate Divisions\n\nto predict what the New York Court of Appeals would do, although such\n\ndecisions are entitled only to \"some weight.\" Khan v. Yale Univ., 27 F.4th 805, 825\n\n(2d Cir. 2022). Other relevant authorities include \"case law from other\n\njurisdictions on the same or analogous issues, scholarly writings in the field, and\n\nany other resources available to the state's highest court.\" Michalski v. Home\n\nDepot, Inc., 225 F.3d 113, 116 (2d Cir. 2000).\n\n The Appellate Division, First Department, has held that whether to\n\ngrant an attachment \"rests within the discretion of the court.\" VisionChina, 967\n\nN.Y.S.2d at 345. It has also held that that discretion includes the power to\n\n\n\n\n3 Certification to the New York Court of Appeals would be an option, but given\nthe need for a prompt resolution of this matter, certification is not warranted here. See\nTunick v. Safir, 94 N.Y.2d 709, 712 (2000) (per curiam); SG Cowen Sec. Corp., 224 F.3d at 83.\n - 15 -\n\fconsider nonstatutory factors. See Cargill Fin. Servs. Int'l, Inc. v. Bank Fin. & Credit\n\nLtd., 896 N.Y.S.2d 317, 318 (1st Dep't 2010).\n\n In Cargill, the First Department held that the motion court did not\n\nabuse its discretion when it denied plaintiff's attachment application because\n\nattachment would interfere with innocent third parties' access to their money. Id.\n\nAs here, and as Telecom acknowledges, Cargill concerned a plaintiff's request to\n\nattach funds in a foreign bank's correspondent accounts. The accounts contained\n\nsome funds belonging to innocent third parties. Id. The First Department held\n\nthat the motion court had discretion to consider the impact an attachment would\n\nhave on those third parties, which was not a statutory factor. Id. Thus, although\n\nCargill did not explicitly mention \"extraordinary circumstances,\" it dealt with a\n\ncircumstance that militated against granting an attachment even though all the\n\nstatutory factors had been met. In short, the Appellate Division approved\n\nconsideration of a nonstatutory, discretionary factor. 4\n\n\n\n\n4 We find Telecom's further effort to distinguish Cargill unavailing. A district\ncourt case discussing Cargill explained that Cargill \"considered whether a court could\nuse its discretion to deny an otherwise legal attachment of a bank account\" and\nconcluded that it was not an abuse of discretion to do so. Toisa Ltd. v. PT. Transamudra\nUsaha Sejahtera, No. 13-CV-1407, 2013 WL 12125701, at *14 (S.D.N.Y. Sept. 20, 2013).\nContrary to Telecom's position, Toisa thus does not stand for the proposition that\nCargill's holding was based on a statute rather than discretion.\n - 16 -\n\f As noted above, this Court previously left the issue open in two\n\ncases. In Capital Ventures I, plaintiff Capital Ventures had satisfied the statutory\n\nrequirements and demonstrated a need for attachment. 443 F.3d at 223. We\n\nconcluded that the district court erred \"to the extent it denied relief because it\n\nconsidered [Capital Ventures'] chances of realizing on the Principal Collateral to\n\nbe remote.\" Id. But the Court also noted that \"[w]e can conceive, perhaps, of a\n\nsituation in which an order of attachment might be against the public interest for\n\nsome reason not addressed in the CPLR\" and observed that the public interest is\n\npertinent when considering another provisional remedy, the preliminary\n\ninjunction. Id. & n.7. Thus, Capital Ventures I left open whether courts may\n\nconsider extraordinary circumstances when assessing attachment. And in Capital\n\nVentures II, because we did not find any extraordinary circumstances, we did not\n\nhave occasion to determine whether it would be appropriate to consider them if\n\nthey did exist. 652 F.3d at 273-74.\n\n Two leading treatises support consideration of extraordinary\n\ncircumstances. Siegel explains that \"[e]ven if the plaintiff makes out a case for\n\nattachment under CPLR 6201, its granting is still discretionary with the court.\n\nThe plaintiff cannot demand it as a matter of right.\" DAVID D. SIEGEL & PATRICK\n\n\n\n - 17 -\n\fM. CONNORS, NEW YORK PRACTICE § 317 (6th ed. 2018) (citing Sartwell v. Field, 68\n\nN.Y. 341, 342-43 (1877)). Weinstein, Korn & Miller states that \"[a]ttachment is a\n\nremedy that is subject to the court's broad discretion\" and a \"court may therefore\n\nvacate an attachment on any ground and is not limited to those enumerated.\" 12\n\nJACK B. WEINSTEIN, HAROLD L. KORN & ARTHUR R. MILLER, NEW YORK CIVIL\n\nPRACTICE: C.P.L.R. ¶ 6223.09 (David L. Ferstendig ed., 2022). For that\n\nproposition it cites a New York Supreme Court case recognizing hardship and\n\n\"the equities\" as grounds for vacatur. See Interpetrol Berm. Ltd. v. Trin. & Tobago\n\nOil Co., 513 N.Y.S.2d 598, 604-05 (Sup. Ct. 1987).\n\n Today, we answer the question left open by Capital Ventures I and II.\n\nGiven the available authorities, we predict that the New York Court of Appeals\n\nwould conclude that a court has discretion to weigh extraordinary circumstances\n\neven where the statutory requirements for attachment are satisfied. Common-\n\nsense application of First Department caselaw compels this conclusion. Trial\n\ncourts have discretion in deciding motions for attachment, see VisionChina, 967\n\nN.Y.S.2d at 345, and that discretion includes the power to consider nonstatutory\n\nfactors such as the impact an attachment would have on nonparties, see Cargill,\n\n896 N.Y.S.2d at 318. It makes sense that this discretion would encompass other\n\n\n\n - 18 -\n\fconsiderations, such as the impact an attachment might have on a nation's\n\neconomy. Accordingly, the district court did not err when it considered whether\n\nextraordinary circumstances existed in deciding the motions here.\n\n B. Whether the District Court Abused Its Discretion\n\n Next, we address whether the district court abused its discretion in\n\nreducing the attachment to $3 million. We conclude that it did, in three respects:\n\nfailing to consider alternative attachment amounts, concluding that the greater\n\nculpability of one of the wrongdoers was a reason to reduce the attachment, and\n\napplying the wrong legal standard in assessing Telecom's probability of success.\n\n 1. Failure to Consider Alternative Attachment Amounts\n\n Although the district court properly held that it was entitled to\n\nconsider extraordinary circumstances, it abused that discretion when it assessed\n\nthem here and vacated all but $3 million of the attachment. The district court\n\nconsidered five extraordinary circumstances and weighed them with respect to\n\nattachment amounts of $97 million and $42 million. It then used those\n\ncircumstances as a basis to deny any attachment greater than $3 million.\n\n Turning to four of those circumstances, we hold that they are all fair\n\nconsiderations, but the district court should have assessed whether attachments\n\n\n\n - 19 -\n\fgreater than $3 million but less than $42 million would have the same grave\n\nimpact on the circumstance identified. 5\n\n The district court first found that IBL was one of five \"viable\" banks\n\nin Lebanon, which was facing a drastic economic crisis. Special App'x at 42. It\n\nconcluded that \"the attachment poses a not insignificant risk of forcing IBL . . .\n\ninto failure,\" which had the \"potential to impact the economy of the entire\n\nnation.\" Id. Those \"severe repercussions,\" the district court concluded, \"militate\n\nagainst granting [Telecom's] request to confirm (much less to expand) the\n\nattachment.\" Id.\n\n In reaching that conclusion, the district court was considering\n\nTelecom's motion to confirm the entire $100 million attachment and expand it to\n\ninclude all of IBL's property in the district, the value of which was not specified.\n\nWhile the risk of impact on the Lebanese economy was a grave concern, the\n\npotential repercussions were not so severe as to preclude the $3 million\n\nattachment, which the district court confirmed.\n\n Next, the district court held that the attachment of $42 million -- the\n\nportion of the $100 million ex parte attachment that Telecom was able to attach\n\n\n5 The fifth circumstance, which the district court called \"the principal wrongdoer,\"\nis addressed below.\n - 20 -\n\ffrom Southern District-based funds -- \"will cause IBL to fall out of compliance\"\n\nwith emergency regulations promulgated by the Lebanese central bank Banque\n\ndu Liban (\"BdL\") to manage the Lebanese economic crisis. Id. at 45. Those\n\nregulations appear in publications known as BdL Circulars. BdL Circular 150\n\nprohibits Lebanese banks from restricting customer withdrawals of \"fresh\" funds,\n\nwhich are foreign currencies deposited with the banks after April 9, 2020. BdL\n\nCircular 154 requires banks to maintain 3 percent of their foreign currency\n\nreserves \"free of any commitments.\" BdL Circular 158 requires banks to permit\n\nlimited withdrawals of U.S. dollars when certain conditions are met; thus, banks\n\nmust keep adequate funds in correspondent accounts in the United States.\n\n The district court found that the $42 million attachment froze nearly\n\nall of the funds that the BdL Circulars require IBL to keep on hand because the\n\nattachment froze the entirety of IBL's correspondent accounts in New York. But\n\nit did not consider whether IBL would still have access to funds sufficient to\n\nremain in compliance with the BdL Circulars if some amount less than $42\n\nmillion were attached.\n\n Similarly, the district court found that the $42 million attachment\n\nprecluded IBL from providing to its customers international banking services in\n\n\n\n - 21 -\n\fU.S. dollars. It held that it would not \"further burden\" those customers, which it\n\ncalled \"innocent third parties.\" Id. at 47.\n\n The district court next considered \"whether an attachment on the\n\nscale at issue here will undermine confidence in New York's financial\n\ninstitutions.\" Id. at 48. It concluded that Telecom had not shown that\n\n\"unintended damage\" would not be done to the New York correspondent\n\nbanking system. Id. at 49. The district court did not mention the precise figure it\n\nanalyzed, but it noted that Telecom's arguments \"might have more force\" if it\n\n\"had an arbitration award of $97 million which it was seeking to confirm and\n\nenforce.\" Id. It also referred to the \"attachment on the scale at issue here.\" Those\n\nreferences suggest that the district court did not consider the impact of an\n\nattachment of less than $42 million. 6 Id. at 48.\n\n The district court abused its discretion in weighing these four\n\ncircumstances because it concluded that no attachment greater than $3 million\n\nwas appropriate based on its finding that the larger $42 million attachment\n\n\n\n\n6 The district court observed that an application for attachment \"should be\nsupported by expert testimony on New York's correspondent banking system to allay a\ncourt's concern that unintended damage will not be done to that system by the\nattachment.\" Special App'x at 49. Whether such testimony is required is not before this\nCourt, and we express no opinion on the issue.\n - 22 -\n\fwould have a deleterious effect. But the district court failed to consider whether\n\nsome amount less than $42 million but greater than $3 million would create the\n\nsame risks that it identified for the greater amount. For example, as noted above,\n\nBdL Circular 154 requires IBL to hold 3 percent of its foreign currency reserves\n\nfree of any commitments. It is unclear, then, whether an attachment of $17\n\nmillion would result in any negative effects given that IBL is already required by\n\nLebanese regulations to hold that money in its U.S. accounts. Indeed, at oral\n\nargument on appeal, IBL effectively conceded that an attachment of $17 million\n\nwould not cause any negative ramifications to IBL or the Lebanese banking\n\nsystem. Oral Argument at 12:00-:30, 16:50-18:10, Iraq Telecom Ltd. v. IBL Bank\n\nS.A.L. (2d Cir. June 9, 2022) (No. 22-540), https://www.ca2.uscourts.gov/\n\ndecisions/isysquery/c2b7b85f-5bd9-40d4-ba5e-dd4636116c06/1/doc/22-540.mp3.\n\n Accordingly, the district court should have considered what effect, if\n\nany, an alternative attachment size would have on the extraordinary\n\ncircumstances it identified, and it thus abused its discretion by confirming the\n\nattachment as to only $3 million.\n\n\n\n\n - 23 -\n\f 2. The Greater Culpability of One of the Wrongdoers\n\n As to the fifth and final circumstance, the district court found that\n\nBarzani was the principal wrongdoer, not IBL, and that Telecom therefore \"may\n\nhave other avenues to make itself whole.\" Special App'x at 49. It concluded that\n\n\"the unpredictable effect of maintaining the attachment on IBL in these\n\ncircumstances counsels restraint.\" Id.\n\n On the record before this Court, the availability to Telecom of other\n\navenues of recovery is not an extraordinary circumstance militating against\n\nconfirmation of the attachment. The district court points to nothing\n\nextraordinary about Barzani's liability as compared to IBL's meriting special\n\nconsideration here. Thus, it seems that the sole basis for the district court's\n\ndetermination here is the fact of IBL's joint and several liability, discussed further\n\nbelow, which is not itself extraordinary -- otherwise, any defendant could avoid\n\nattachment merely by pointing to the existence of joint tortfeasors.\n\n IBL argues that the district court's \"principal wrongdoer\" holding is\n\nnot a separate extraordinary circumstance but merely one factor that the district\n\ncourt assessed in determining that the case \"as a whole\" presents extraordinary\n\ncircumstances. But this is belied by the district court's plain reference to \"the\n\n\n\n - 24 -\n\fextraordinary circumstances described below,\" followed by the enumerated\n\nanalysis of the five circumstances. Id. at 40.\n\n We do not hold that the existence of another \"principal wrongdoer\"\n\nmay never be an extraordinary circumstance meriting consideration on a motion\n\nto vacate an attachment, but the record does not support such a finding here.\n\n 3. Probability of Success\n\n The district court abused its discretion when it concluded that\n\nTelecom established that it was likely to succeed on the merits in the Second\n\nArbitration as to only $5.92 million. The district court found that IBL and\n\nBarzani \"deprived\" Telecom of $97 million. Id. at 32. It recognized that, under\n\nLebanese law, joint and several liability is established if defendants have \"acted\n\nin concert.\" 7 Id. at 33. It then found that Telecom was likely to demonstrate in\n\nthe Second Arbitration that IBL \"acted in concert\" with Barzani. Id. But the\n\n\n\n7 The parties agree that Lebanese law -- specifically, Article 137 of the Lebanese\nCode of Obligations and Contracts -- provides that joint and several liability \"is\npresumed only where (i) those persons acted in concert; (ii) it is impossible to determine\nthe proportion of damages attributable to each of those persons.\" Appellee's Br. at 53;\nApp'x at 897-98, 1375; Appellant's Br. at 27. According to the First Arbitration award, a\nplaintiff need show only one element to establish joint and several liability. App'x at\n304-05 (Article 137's \"conditions are not cumulative\"). Accordingly, joint and several\nliability is established here if Telecom can show either that IBL and Barzani acted in\nconcert or that it was impossible to determine the proportion of damages attributable to\neach of them. Telecom need not establish both.\n - 25 -\n\fdistrict court held that Telecom had not succeeded in showing that it was likely\n\nto obtain an award of $97 million jointly and severally against IBL and others,\n\napparently because \"IBL retained only a small portion of the damages\" sought.\n\nId. at 33-34. This was an abuse of discretion for two related reasons.\n\n First, the district court concluded that \"it is entirely conceivable\" that\n\nthe Second Arbitration panel \"would limit any future award against IBL to the\n\nroughly $5.92 million that [IBL] retained\" based on a theoretical exercise of\n\ndiscretion. Id. at 32. Even assuming this observation were correct, whether a\n\npanel's outcome is \"conceivable\" is not the correct legal standard. Rather, the\n\ndistrict court must assess what is probable. N.Y. C.P.L.R. 6212(a); see Cap. Ventures\n\nI, 443 F.3d at 219.\n\n Second, although the district court correctly observed that\n\narbitration is \"marked by great flexibility in . . . legal and equitable analysis,\" SG\n\nCower Sec. Corp., 224 F.3d at 84, it did not explain why the Second Arbitration\n\npanel would exercise its discretion to depart from the law. The First Arbitration\n\npanel found that IBL and Barzani acted \"in concert\" to defraud Telecom of $97\n\nmillion. Thus, as the district court correctly held, Telecom is likely to establish\n\njoint and several liability. See Code of Obligations and Contracts art. 137 (Leb.).\n\n\n\n - 26 -\n\fUnder general tort principles, if two tortfeasors jointly commit a fraud, they are\n\njointly and severally liable for all damages. RESTATEMENT (THIRD) OF TORTS:\n\nAPPORTIONMENT OF LIAB. §§ 10, 12. In other words, Telecom likely can seek to\n\ncollect the entirety of the $97 million from IBL alone. While it is undisputed that\n\nIBL is in dire financial straits, the district court cites no law to support the\n\nproposition that a tortfeasor is liable only for the amount it can pay. The district\n\ncourt pointed to no provision of Lebanese law or general tort principle that\n\nwould allow a defendant who acted in concert with others to avoid joint and\n\nseveral liability merely because it did not retain all of the fraud proceeds.\n\n Accordingly, based on the district court's own findings that IBL and\n\nBarzani in concert defrauded Telecom of $97 million, and that Telecom was\n\nlikely to establish joint and several liability as to IBL, it was error to conclude that\n\nthe Second Arbitration panel was not likely to hold IBL jointly and severally\n\nliable. The district court therefore abused its discretion when it held that\n\nTelecom failed to establish a probability of success as to the $97 million award.\n\n * * *\n\n On remand, the district court should consider whether an amount\n\nless than $42 million but more than $3 million should be attached. At a\n\n\n\n\n - 27 -\n\fminimum, the district court should consider an attachment of $17 million in light\n\nof IBL's concession at oral argument.\n\n CONCLUSION\n\n For the foregoing reasons,\n\n (1) the order of the district court is AFFIRMED to the extent that\n\nthe district court held that it had discretion to consider extraordinary\n\ncircumstances and that Telecom demonstrated a continuing need for the\n\nattachment, and to the extent that the district court attached $3 million;\n\n (2) the order is VACATED to the extent the district court attached\n\nonly $3 million based on the existence of extraordinary circumstances without\n\nconsidering how those circumstances might change given an attachment greater\n\nthan $3 million but less than $42 million; and\n\n (3) the case is REMANDED for further proceedings as to\n\n(a) Telecom's probability of success, (b) the assessment of extraordinary\n\ncircumstances, and (c) the amount of the attachment above $3 million.\n\n\n\n\n - 28 -\n\f", "ocr": false, "opinion_id": 7798157 } ]

"2022-08-05"

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 17, "download_url": "http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2022/D08-05/C:21-1739:J:Scudder:aut:T:fnOp:N:2913683:S:0", "author_id": 8633, "opinion_text": " In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 21-1739\nMICHAEL L. SHAKMAN and PAUL M. LURIE, individually and\non behalf of others similarly situated,\n Plaintiffs-Appellees,\n\n v.\n\nJ.B. PRITZKER, in his official capacity as Governor of the State\nof Illinois,\n Defendant-Appellant.\n ____________________\n\n Appeal from the United States District Court for the\n Northern District of Illinois, Eastern Division.\n No. 1:69-cv-02145 — Edmond E. Chang, Judge.\n ____________________\n\n ARGUED DECEMBER 10, 2021 — DECIDED AUGUST 5, 2022\n ____________________\n\n Before EASTERBROOK and SCUDDER, Circuit Judges. *\n SCUDDER, Circuit Judge. In 1972 a federal district court en-\ntered the first of many consent decrees preventing the\n\n *CircuitJudge Kanne died on June 16, 2022 and did not participate in\nthe decision of this case, which is being resolved under 28 U.S.C. § 46(d)\nby a quorum of the panel.\n\f2 No. 21-1739\n\nGovernor of Illinois and units of local government from con-\nditioning employment decisions on political patronage. And\nso were born the Shakman decrees. The Governor remains\nsubject to the original 1972 decree to this day—50 years\nlater—despite having demonstrated substantial compliance\nwith its terms and objectives in recent years. Principles of fed-\neralism do not permit a federal court to oversee the Gover-\nnor’s employment practices for decades on end in circum-\nstances like this. The power to hire, fire, and establish accom-\npanying policies needs to return to the people of Illinois and\nthe Governor they elected. The federal courts will remain\nopen to decide individual cases of alleged constitutional vio-\nlations should they arise. But no longer shall the Governor’s\nemployment practices and policies have to win the approval\nof a United States court.\n I\n A\n The extensive history of the Shakman decrees is well doc-\numented. Indeed, the Federal Reporter contains six prior\nopinions from our court detailing the decrees and the related\ntwists and turns over the last half century. An abbreviated re-\nview of that history suffices this time around.\n By the 1960s political patronage too often influenced pub-\nlic employment decisions in Illinois, with state officials\nawarding jobs based on who showed loyalty to the dominant\npolitical party. In 1969, aiming to curb the corruption, inde-\npendent political candidate Michael Shakman and voter Paul\nLurie brought a putative class action against several political\norganizations and various arms of county and city govern-\nment. They alleged that the conditioning of employment\n\fNo. 21-1739 3\n\nopportunities on campaign contributions and pledged votes\nprevented the election of independent candidates and vio-\nlated the First, Fifth, and Fourteenth Amendments.\n In 1970 we reversed the district court’s dismissal of the\ncase. See Shakman v. Democratic Org. of Cook County, 435 F.2d\n267 (7th Cir. 1970) (“Shakman I”). The parties then commenced\nthe settlement negotiations that led to the 1972 Shakman con-\nsent decree—the mutually agreed-upon and court-approved\nremedy for the past practices that infected state and local em-\nployment decisions. See Shakman v. Dunne, 829 F.2d 1387, 1389\n(7th Cir. 1987) (“Shakman II”). As part of those negotiations,\nthe plaintiffs added several defendants, including the Gover-\nnor of Illinois—Richard Ogilvie at that time—to the eventual\nconsent decree. It is that original agreement from 1972, plus a\ncouple of subsequent decrees (against new units of local gov-\nernment) expanding the scope of the court’s supervision of\ngovernment employment decisions, that we now know col-\nlectively as the Shakman decrees. See Shakman v. Clerk of Cook\nCounty, 994 F.3d 832, 836 (7th Cir. 2021) (“Shakman VI”).\n The express terms of the 1972 decree made its purpose\nclear: the state could no longer “condition[ ], bas[e] or know-\ningly prejudic[e] or affect[ ] any term or aspect of governmen-\ntal employment, with respect to one who is at the time already\na governmental employee, upon or because of any political\nreason or factor.” On a prior occasion we recognized that the\ndecree and its attendant federal supervision were necessary\nto safeguard the speech and associational rights of candidates\nand voters. See Shakman II, 829 F.2d at 1395.\n In the years after the decree took effect, the Supreme Court\nissued two cases affirming the unlawfulness of political pat-\nronage in government employment decisions. See Elrod v.\n\f4 No. 21-1739\n\nBurns, 427 U.S. 347, 356–59 (1976) (holding that local govern-\nment could not constitutionally base public employment op-\nportunities on political affiliation or nonaffiliation); Rutan v.\nRepublican Party of Ill., 497 U.S. 62, 79 (1990) (qualifying Elrod\nand holding that a state generally may not consider political\naffiliation in hiring except as to certain exempted political po-\nsitions).\n In time the Shakman decrees found themselves cemented\non the district court docket. And for decades little seemed to\nhappen other than the district court receiving annual or quar-\nterly reports on the status of ongoing compliance efforts. By\nour measure, six different federal judges have overseen the\ncase since its inception in 1969, with at least 1,000 status re-\nports filed since the original consent decree took effect in 1972.\nThe federal docket now includes over 10,000 entries—the first\nfrom October 1969 and the most recent from this week. What\nmay have started with a federal court’s well-grounded injunc-\ntion came to look more like indefinite federal judicial super-\nvision of state employment practices.\n B\n Fast forward from 1972 to 2014. After decades of quiet, the\nShakman decrees experienced something of a revival. It was\nthen that the Illinois Office of Executive Inspector General,\nwhich the Illinois General Assembly authorized in 2009 to in-\nvestigate and redress political patronage in state employ-\nment, reported multiple decree violations between 2003 and\n2013, most especially at the Illinois Department of Transpor-\ntation. The Department, the Inspector General’s report ex-\nplained, had improperly hired, promoted, and transferred\nhundreds of individuals based on political considerations\n\fNo. 21-1739 5\n\nunder the Rod Blagojevich administration and for at least part\nof Pat Quinn’s tenure as Governor of Illinois.\n By this time, and with the parties’ consent, a magistrate\njudge had assumed responsibility for overseeing the Shakman\ncases. The magistrate responded to the Inspector General’s\nfindings by granting a motion to appoint a special master to\ninvestigate the extent of the Department of Transportation’s\nnoncompliance with the Shakman decree and to recommend\nand evaluate the implementation of remedial measures. Like\nthe Inspector General, the special master found that officials\nin the Blagojevich and Quinn administrations “played a key\nrole” in the employment abuses within the Department. Ac-\ncordingly, the magistrate judge expanded the special master’s\nduties to include review of all positions under the Governor’s\nauthority. The court set no deadline for either the special mas-\nter to complete her review or for the Governor to demonstrate\nsufficient compliance with the decree, but instead committed\nto “schedule regular meetings and require the submission of\nperiodic reports.”\n The special master’s supervision spurred at least some\nmeaningful remedial action by the Governor. In addition to\nthe already-established Office of Inspector General, Governor\nBruce Rauner’s administration supported and instituted new\nremedial measures to account for past abusive practices and\nto help prevent their recurrence. In 2015, for example, the In-\nspector General established a new compliance department\ncalled the Hiring & Employment Monitoring Division dedi-\ncated to guaranteeing state employment practices “are free\nfrom political and other manipulation.” Additionally, in 2016\nthe Governor agreed to develop and implement a Compre-\nhensive Employment Plan that established guidelines for all\n\f6 No. 21-1739\n\naspects of state employment to prevent a recurrence of imper-\nmissible patronage practices. Among other things, the Em-\nployment Plan provides that the state should move toward\nfully automated hiring platforms with an accompanying pub-\nlicly accessible website containing job postings, position de-\nscriptions, and an application process—all to promote trans-\nparency throughout employment processes.\n The magistrate judge likewise played a role in helping to\nensure the Governor moved the state in a new direction by\ninstituting controls to prevent the abuses of the past. The\ncourt worked with the parties to approve a new process for\nreviewing applications of existing employees who sought\njobs elsewhere in state government, but who had been hired\nas part of the improper practices within the Department of\nTransportation. Even more, it pressed the Governor to adopt\na list of those politically appointed positions exempt from the\ngeneral prohibition on patronage hiring announced in\nRutan—a list that continues to be updated monthly.\n Each of these measures has proven effective, though the\nparties dispute to what degree. As recently as 2019 the special\nmaster reported that Governor J.B. Pritzker has made “signif-\nicant progress” in complying with the 1972 Shakman decree,\nincluding by continuing efforts to implement the state’s Com-\nprehensive Employment Plan. To be sure, however, the spe-\ncial master has emphasized that more remains to be done.\n“[O]pportunities for manipulation” cannot be ruled out, she\nhas explained, especially given the history of political patron-\nage in Illinois.\n\fNo. 21-1739 7\n\n C\n That brings us to more recent developments. In November\n2019 the Clerk of Cook County—itself, too, still a separate\nparty the Shakman decrees—filed a motion to vacate the de-\ncree. The magistrate judge denied that motion and the Clerk\nappealed, affording us our sixth opportunity to speak on the\ncase. See generally Shakman VI, 994 F.3d 832.\n Although we affirmed the denial of the motion to vacate,\nwe sounded serious concerns about the duration and seem-\ningly never-ending nature of the Shakman decrees: “Do not\nlet today’s result cloud the grave federalism concerns we have\nwith the fact that the Clerk of Cook County has been under\nthe thumb of a federal consent decree for the last 50 years,”\nwe underscored. Id. at 843. “Such entrenched federal over-\nsight should have raised red flags long ago.” Id.\n It was against that backdrop—and reassignment of the\ncase from the magistrate judge to the district court—that Gov-\nernor Pritzker moved under Federal Rule of Civil Procedure\n60(b)(5) to vacate the decree. The Governor pressed two posi-\ntions. First, he claimed that, as evidenced by the special mas-\nter’s praise of the state’s ongoing efforts to institute durable\nremedies and her inability to find constitutional violations in\nrecent years, the state had satisfied the requirements of the\ndecree. Second, the Governor argued that, separate and apart\nfrom the state’s showing of recent compliance, continuing the\ndecree would be inequitable because the named plaintiffs lack\nstanding and, regardless, ongoing enforcement after this long\noffends principles of federalism.\n\f8 No. 21-1739\n\n D\n In a thorough opinion, the district court denied Governor\nPritzker’s motion to vacate the 1972 decree. Like the special\nmaster, the district court found that while “direct evidence of\npolitical motivation is absent” in recent state employment de-\ncisions, there were “areas of ongoing concern from which in-\nferences of First Amendment violations can be drawn.” Most\nnotably, the district court echoed the special master’s concern\nwith the Governor’s failure to fully implement certain admin-\nistrative policies and processes prescribed by the Comprehen-\nsive Employment Plan, like adoption of a new electronic hir-\ning system. Deficiencies like these, the district court deter-\nmined, did not violate the decree but did reveal an ongoing\nand yet unmitigated risk of potential future violations. Put an-\nother way, it was the full implementation of certain risk man-\nagement policies—like those within the Governor’s Employ-\nment Plan—that would serve as “the cornerstone of a sunset\nplan” to the decree.\n So too did the district court conclude that the Governor\nhad not shown the Inspector General and Hiring & Employ-\nment Monitoring Division to be sufficient solutions to prevent\nthe patronage practices of the past. Although those offices\nclosely supervised the state’s compliance with the law, in the\ndistrict court’s view, neither had achieved the durability nec-\nessary to release the Governor from federal supervision. Until\nthen, both the special master and the federal court would con-\ntinue close watch over the Governor of Illinois and every\nagency under his authority.\n In denying the Governor’s motion to vacate, the district\ncourt also granted in part Shakman and Lurie’s request to ex-\npand the scope of the special master’s duties. In addition to\n\fNo. 21-1739 9\n\nsupervising the Governor’s compliance with the Shakman de-\ncree, the special master was also now expressly tasked with\nmonitoring the state’s implementation of the Governor’s\nComprehensive Employment Plan and related policies.\n Governor Pritzker then appealed.\n II\n The standards supplied by Rule 60(b)(5) of the Federal\nRules of Civil Procedure guide our analysis. The Rule author-\nizes a district court to relieve a party from a judgment or order\nif either (1) “the judgment has been satisfied, released, or dis-\ncharged” or (2) “applying it prospectively is no longer equi-\ntable.” Fed. R. Civ. P. 60(b)(5). Governor Pritzker has made\nthe necessary showings on both fronts, and the district court\nabused its discretion in concluding otherwise. See Horne v.\nFlores, 557 U.S. 433, 447 (2009).\n A\n We start with Rule 60(b)(5)’s first ground for vacating a\ndecree—satisfaction. A party claiming to have satisfied the\nterms of a consent decree must show that it has achieved the\nobjectives of that decree. See id. at 450. Once a party has\nshown that it has substantially complied with the terms of the\ndecree and implemented a durable remedy, “continued en-\nforcement of the order is not only unnecessary, but im-\nproper.” Id. Two primary reasons combined lead us to con-\nclude that the Governor has satisfied the terms of the Shak-\nman decree.\n First, the last significant violations of the decree seem to\nhave occurred nearly a decade ago with the patronage scan-\ndal within the Department of Transportation. The parties\npoint us to none since that time—certainly nothing systemic\n\f10 No. 21-1739\n\nwithin any department under the Governor’s supervision.\nNor are we aware of any meaningful number of lawsuits al-\nleging that the Governor or any department reporting to him\nviolated the constitutional rules announced by the Supreme\nCourt in Elrod or Rutan. Indeed, in some two dozen reports by\nthe special master over the past seven years, we see no find-\nings of patronage practices harming individual employees or\napplicants. Nothing in the parties’ appellate briefs suggests\notherwise.\n Second, the Governor has instituted or otherwise sup-\nported several remedial measures in recent years (under the\nspecial master’s and district court’s supervision, to be sure) to\nminimize the risk of political patronage in employment prac-\ntices. Beyond the development of a Comprehensive Employ-\nment Plan, the state now has in place the Hiring & Employ-\nment Monitoring Division within the Office of Inspector Gen-\neral and a limited Rutan exempt list, among other things. That\nmany of these measures have remained in place for several\nyears with no findings of constitutional violations in or across\nindividual employment decisions speaks to the stability of the\nstate’s, and by extension, the Governor’s reform measures.\nShakman and Lurie, to their credit, candidly acknowledge the\nGovernor’s progress in recent years. And, for her part, the\nspecial master has on more than one occasion commended the\nGovernor’s efforts to comply with the decree, including by de-\nscribing his accomplishments as “extraordinary,” “notable,”\nand “significant.”\n All of this is enough, we believe, for the Governor to show\nthat he has implemented a durable remedy and satisfied the\nobjectives of the 1972 decree.\n\fNo. 21-1739 11\n\n Shakman and Lurie, who remain named plaintiffs over a\nhalf century after the case began, urge a different approach.\nTo our eye, their focus is not on this or that series of recent\nhiring (or promotion or transfer) decisions, but instead on the\nparticulars of the Governor’s Employment Plan. They con-\ntend that the Governor can do more to implement specific\nmeasures to further reduce the risk that the state returns to\nthe unlawful ways of its past. Many dimensions of the district\ncourt’s analysis charted this same course. For instance, in its\nopinion denying the Governor’s motion to vacate, the district\ncourt identified areas of “ongoing concern”—specific unful-\nfilled tasks under the Governor’s Employment Plan—“from\nwhich inferences of First Amendment violations can be\ndrawn.”\n While we commend the district court’s diligence, we have\na hard time with its approach, especially 50 years into the\ncase. What most concerns us is that the special master’s over-\nsight—which the district court relied on in denying the Gov-\nernor’s motion to vacate—has drifted beyond any obligation\nimposed by the decree and, most certainly, the Constitution.\nNowhere do we see the special master, the district court, or\nShakman and Lurie on appeal relying on the standards artic-\nulated in Elrod and Rutan to identify constitutional violations.\n Rather, the special master’s reports concentrate on Gover-\nnor Pritzker’s compliance with the finest of details within his\nown Comprehensive Employment Plan. But that lengthy Em-\nployment Plan, as its name implies, is more of a human re-\nsource manual than an articulation of the lines separating\nlawful from unlawful state employment practices. Whether\nthe Governor hires through paper or electronic means,\nwhether he posts job openings on the internet, or whether he\n\f12 No. 21-1739\n\nroutinely updates position descriptions and titles is of no di-\nrect constitutional import. Nor do we see how the full\nachievement of those specific measures is crucial to a conclu-\nsion that the Governor has sufficiently satisfied the aims of the\n1972 decree and put in place adequate measures to avoid fu-\nture constitutional violations. See Horne, 557 U.S. at 450\n(“[C]ourts must remain attentive to the fact that federal-court\ndecrees exceed appropriate limits if they are aimed at elimi-\nnating a condition that does not violate federal law or does\nnot flow from such a violation.”) (cleaned up).\n In today’s final analysis, the Governor owes his allegiance\nto the federal and Illinois Constitutions—including the stand-\nards announced by the Supreme Court in Elrod and Rutan. But\neverything the district court seemed to be assessing was a step\nremoved, focused more on administrative best practices and\nmuch less on whether recurring constitutional violations war-\nranted the special master’s continued oversight under the di-\nrection of a federal court.\n In no way are we saying that the risk of unlawful political\npatronage no longer exists within Illinois. Of course it does:\nnobody is naïve to the state’s embarrassing history. Doubtless\nmore can be done to further reduce risk, improve existing con-\ntrols, and respond to any allegations of constitutional viola-\ntions in individual employment decisions. To his credit, Gov-\nernor Pritzker, through his very able counsel, was quick to\nacknowledge as much as part of reaffirming the Governor’s\ncommitment to maintaining existing remedies and to finaliz-\ning implementation of his Comprehensive Employment Plan.\n But allowing risk-driven reasoning to carry the day creates\na most-concerning risk of its own—that the decree remains in\nplace indefinitely. That prospect too discounts the reforms the\n\fNo. 21-1739 13\n\nGovernor has instituted and that the special master has found\nin large part to be effective. In essence, Shakman and Lurie are\nall but insisting that the Governor prove a negative—that he\nshow that no constitutional violations, whether measured at\nthe individual level or more systemically, have recently oc-\ncurred or will recur in the state’s employment practices. That\napproach asks too much. The controlling question in deter-\nmining whether to vacate the 1972 decree is whether the Gov-\nernor has satisfied its objectives, including by implementing\na durable remedy to avoid systemic future constitutional vio-\nlations. We believe he has.\n As we see the record, everyone involved in recent years—\nforemost Governor Pritzker, but also the special master, the\ndistrict court, and Michael Shakman and Paul Lurie (and their\ntalented counsel)—has been diligent in ensuring the state’s\nsubstantial compliance with the 1972 decree. This is what is\nsupposed to happen in institutional reform litigation, even if\nit is coming many, many years too late. We see nothing more\nfor the district court to do. The Governor has satisfied the ob-\njectives of the consent decree.\n B\n While our analysis could end there, the constitutional im-\nplications of a contrary conclusion warrant special emphasis.\nAs the Supreme Court has explained, Rule 60(b)(5)’s equity\nconsideration in a request for relief “serves a particularly im-\nportant function in what we have termed ‘institutional reform\nlitigation.’” Horne, 557 U.S. at 447 (quoting Rufo v. Inmates of\nSuffolk County Jail, 502 U.S. 367, 380 (1992)). On the record be-\nfore us, continuing to hold the Governor to the 1972 decree\n(and everything compliance with it has come to entail in the\nlast 50 years) would affront principles of federalism and leave\n\f14 No. 21-1739\n\nthe district court playing a role at odds with the Case or Con-\ntroversy limitation in Article III of the U.S. Constitution.\n 1\n We begin with points all too easy to forget but all too im-\nportant to a proper framing and resolution of the question be-\nfore us. The Governor of Illinois is the state’s highest ranking\nelected official—chosen by voters to take the state in particu-\nlar policy directions and to offer “new insights and solutions.”\nFrew ex rel. Frew v. Hawkins, 540 U.S. 431, 442 (2004). Making\nemployment decisions is a meaningful part of the Governor’s\nresponsibility and executive prerogative, a way to implement\npolicy choices and to get things done.\n The Governor, keep in mind, also swears an oath to up-\nhold both the Illinois Constitution and the federal Constitu-\ntion. As a matter of first principles, the Constitution presumes\nthat state officials “have a high degree of competence in de-\nciding how best to discharge their governmental responsibil-\nities,” including how to effectuate constitutional compliance.\nId.; see also Lewis v. Casey, 518 U.S. 343, 349 (1996) (explaining\nthat “it is not the role of courts, but that of the political\nbranches, to shape the institutions of government”). The oath\nthe Governor takes means he swears to comply with the con-\nstitutional rulings announced by the Supreme Court in Elrod\nand Rutan. If he fails to do so, he (and other state officials) can\nbe sued in state or federal court and held accountable. See 42\nU.S.C. § 1983.\n Indeed, case-by-case resolution and accountability is the\nnorm from the perspective of our national Constitution. Con-\nsent decrees are the rare exception, with long-running decrees\nbeing rarer still. Suffice it to say the 50-year-old Shakman\n\fNo. 21-1739 15\n\ndecree reflects a far extreme. While extended federal judicial\noversight might serve as an occasional backstop, absent ex-\ntraordinary circumstances, it should not serve as a primary\nmeans of ensuring state officials comply with duties imposed\nby federal law. Doing so, the Supreme Court has cautioned,\nrisks courts “in the name of the Constitution, becoming en-\nmeshed in the minutiae of [state] operations” and depriving\nlocal officials of their own legislative and executive responsi-\nbilities. Lewis, 518 U.S. at 361 (cleaned up); see also City of Los\nAngeles v. Lyons, 461 U.S. 95, 112 (1983) (declining to enjoin the\nLAPD’s use of chokeholds because of the balance “to be pre-\nserved between federal equitable power and State administra-\ntion of its own law”) (cleaned up).\n These principles are far from theoretical or aspirational. To\nthe contrary, they supply a concrete guidepost for resolving\nthis case: a federal court must “ensure that when the objects\nof the decree have been attained, responsibility for discharg-\ning the state’s obligations is returned promptly to the state\nand its officials when the circumstances warrant.” Frew, 540\nU.S. at 442.\n We have reached that point: leaving the Governor subject\nto the 1972 decree is no longer warranted or tolerable. Gover-\nnor Pritzker has demonstrated substantial compliance with\nthe decree and identified and instituted durable remedies to\nhelp ensure that compliance sticks. He has earned the right to\nmake employment decisions for the state on his own and not\nunder the terms and conditions of the 1972 decree or the\nwatchful eyes of a special master and federal court. We cannot\nlet perfect be the enemy of the constitutionally adequate.\n\f16 No. 21-1739\n\n 2\n Beyond these federalism concerns, we have an equally dif-\nficult time identifying any remaining Case or Controversy.\nBut within our constitutional design, where powers are sepa-\nrated between branches, that is all federal courts have the au-\nthority to do—resolve concrete disputes between adverse par-\nties. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 573–76\n(1992); see also Lewis, 518 U.S. at 349 (emphasizing that “[i]t is\nthe role of courts to provide relief to claimants, in individual\nor class actions, who have suffered, or will imminently suffer,\nactual harm”). Article III brings with it no license to oversee\nthe development of a state’s human resource policies—at least\nnot for 50 years and counting.\n Eight gubernatorial administrations have come and gone\nin Illinois since the initiation of this lawsuit. Yet the same\nnamed plaintiffs that brought the original suit in 1969 con-\ntinue to prosecute enforcement of the decree under the district\ncourt’s watch and, more recently, the eyes of a special master.\nIt is far from clear this arrangement comports with the Su-\npreme Court’s emphasis in recent years on separation of pow-\ners and the related demands imposed by Article III for estab-\nlishing and maintaining a Case or Controversy. See Lujan, 504\nU.S. at 560–63. The proper equitable analysis of whether the\nGovernor should remain under the 1972 decree requires us\n“to recognize that the longer an injunction or consent decree\nstays in place, the greater the risk that it will improperly in-\nterfere with a State’s democratic processes.” Horne, 557 U.S.\nat 453.\n No longer is the Shakman decree’s enforcement necessary\nto protect the First Amendment rights of state employees and\njob applicants as declared in Elrod and Rutan. Rather, its\n\fNo. 21-1739 17\n\ncontinued application has put a federal court in a role tanta-\nmount to serving as an indefinite institutional monitor—not\nmuch different than an executive or legislative branch over-\nsight agency—focused much more on ensuring that the Gov-\nernor implements best practices rather than eliminates “an\nongoing violation of federal law.” Horne, 557 U.S. at 454. This\nis antithetical to the limited role the Constitution created for\nthe Third Branch: Article III does not “confer on federal\njudges some amorphous power to supervise the operations of\ngovernment and reimagine from the ground up” the employ-\nment practices of Illinois. Whole Woman's Health v. Jackson, 142\nS. Ct. 522, 532 (2021) (cleaned up).\n Be careful not to misread our conclusion. The district court\nis not closing. To the contrary, it will remain open and recep-\ntive to individual claims brought by persons able to allege\nconcrete and particularized injuries as a result of unlawful\npatronage practices by the Governor or departments under\nhis supervision. And nothing will prevent such plaintiffs from\nrequesting not just money damages, but also appropriate in-\njunctive relief. So, while today’s decision relieves the Gover-\nnor of complying with the Shakman decree, the First Amend-\nment remains alive and well. Future violations of the rules an-\nnounced in Elrod and Rutan may see new plaintiffs bringing\nnew cases requesting new and stiff remedies, all the while em-\nphasizing the tragic history that led to the Shakman decrees.\n * * *\n We REVERSE the district court’s denial of the motion to\nvacate and its expansion of the special master’s duties and\nREMAND with instructions to VACATE the 1972 consent de-\ncree as it applies to the Governor of Illinois.\n\f", "ocr": false, "opinion_id": 7798280 } ]

"2022-08-05"

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 41, "download_url": "https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2021cv1373-51-0", "author_id": null, "opinion_text": " In the United States Court of Federal Claims\n FOR PUBLICATION\n\n Nos. 21-1373C, 21-1456C, 21-1472C\n (Filed: August 5, 2022)\n\n )\nSERVANT HEALTH, LLC, )\n )\n Plaintiff, )\n )\n and )\n )\nNOBLE ATTORNEY, LLC,\n ) Breach of Supply Contract:\n Consolidated Plaintiff, ) Termination for Default;\n ) Excusable Delay;\n and ) Product Substitution;\n ) Implied Duty of Good Faith\nTRANSCENDENCE, INC., ) & Fair Dealing\n )\n Consolidated Plaintiff, )\n )\n v. )\n )\nUNITED STATES,\n )\n Defendant. )\n )\n\n\nEric S. Montalvo, Federal Practice Group, Washington, DC, for plaintiffs. With him\non the briefs was Carol A. Thompson, Federal Practice Group, Washington, DC.\n\nAlison S. Vicks, Trial Attorney, Commercial Litigation Branch, Civil Division,\nU.S. Department of Justice, Washington, DC, for defendant. With her on the briefs\nwere Brian M. Boynton, Principal Deputy Assistant Attorney General, Patricia M.\nMcCarthy, Director, Commercial Litigation Branch, U.S. Department of Justice,\nWashington, DC. Tracy Downing, U.S. Department of Veterans Affairs,\nDistrict Contract Law National Practice Group, Of Counsel.\n\f OPINION AND ORDER\n\nBONILLA, Judge.\n\n These three consolidated breach-of-contract cases arise from two solicitations\nfor personal protective equipment (PPE)—nitrile examination gloves—issued by the\nUnited States Department of Veterans Affairs (VA or ageny) in early 2021 amid the\nglobal COVID-19 pandemic. 1 With emerging variants and elevated\nhospitalizations, the solicitations at issue sought on-hand PPE supply to facilitate\nprompt delivery to VA healthcare personnel across the United States.\n\n Plaintiffs Servant Health, LLC (Servant), Noble Attorney, LLC (Noble), and\nTranscendence, Inc. (Transcendence) were awarded supply contracts to deliver\nnitrile examination gloves of specified quantities from their proposed sources within\na strict 45-day deadline or risk termination for default. When plaintiffs failed to\ndeliver conforming PPE by the contract deadline, the VA terminated the contracts\nfor default. Plaintiffs filed this action challenging their respective terminations for\ndefault, seeking to convert them into terminations for convenience and recover\nconsequent monetary damages. Pending before the Court are the parties’ cross-\nmotions for summary judgment. For the reasons stated below, defendant’s motion\nfor summary judgment is GRANTED and plaintiffs’ cross-motion for summary\njudgment is DENIED.\n\n BACKGROUND\n\nI. VA Solicitations\n\n In late 2020, “[b]ecause of increased demand caused by COVID 19 [sic] and\na national shortage in the inventory and supply of nitrile examination gloves, the\n[VA] determined it would implement a plan to maintain a 180-day stock of nitrile\nexamination gloves to ensure the availability of gloves for the Agency’s healthcare\nproviders.” ECF 37-1 at 3. To cover the agency’s 1,244 healthcare facilities located\nthroughout the United States, the VA determined that “hundreds of millions of\nnitrile examination gloves [were] required.” Id.\n\n Between October 2020 and February 2021, the VA issued three solicitations\nfor nitrile examination gloves. See generally id. at 3–6. “In order to ensure that the\ngloves would be provided quickly by the distributors, the solicitations . . . requested\nthat the gloves be on-hand (or already in existence) so that delivery could be\naccomplished within 30-45 calendar days of contract award.” Id. at 3. After\nreviewing the quotes received, between December 2020 and June 2021, the VA\n\n1A fourth related case, Am. Med. Equip., Inc. v. United States, No. 21-1553C (Fed. Cl.), was recently\ndecided by this Court. See __ Fed. Cl. __, 2022 WL 2353084 (Fed. Cl. June 30, 2022).\n\n\n\n 2\n\fawarded fifteen (15) contracts for the procurement of nitrile examination gloves,\nrequiring quantities ranging from 2.5 million to 50 million. Id. at 3–6. The VA\npurposely awarded multiple contracts for smaller quantities of “on-hand” PPE to\nensure delivery would be accomplished within 30 to 45 calendar days of contract\naward. Id. at 3, 6.\n\n Relevant to this case, the VA issued Solicitation Nos. 36C24921Q0088 and\n36C24921Q0115 on January 6 and February 9, 2021, respectively, for on-hand\nnitrile examination gloves to be delivered within 45 days of contract award. Id. at\n4–5; id. at 51–117, 343–403 (including clarifying amendment). Transcendence\nreceived its contract award under the first solicitation, while Noble and Servant\nreceived theirs under the second. Id. at 265–88 (Transcendence contract);\nECF 49-1 at 3–26 (Servant contract); ECF 37-3 at 171–94 (Noble contract). The\ntwo solicitations are substantively identical. See generally ECF 37-1 at 51–117,\n343–403.\n\n Under “Schedule of Supplies/Services,” the first page of each solicitation\nstates: “Delivery shall be 45 calendar days or sooner, after receipt of order.” Id.\nat 53, 345. The solicitations’ Statement of Work (Section B.2) stressed to potential\nbidders that the supply contract was intended for on-hand gloves and subject to a\nnon-negotiable delivery schedule:\n\n This is not a request for manufacturing but a request for quantity\n on hand to be delivered within 45 calendar days from order.\n\n ...\n\n Contracts that are awarded based on submitted quotes will have\n 45 calendar days from receipt of order (award date) to deliver the\n awarded quantities, or the contract will be terminated for cause\n and negative performance will be reflected within the Contractor\n Performance Assessment Reporting System (CPARS) and the Federal\n Awardee Performance and Integrity Information System (FAPIIS).\n\nId. at 56, 348 (emphases added); see also id. at 112, 332 (Question No. 14 of PPE\nSource Questionnaire: “Quantity on hand (in-stock and available for immediate\ndelivery)”). The firm 45-day deadline is restated throughout the solicitations.\nUnder “Delivery Schedule” (Section B.4), for example, the solicitations state PPE\nmust be delivered “45 calendar days after receipt of order” and further specify the\ndelivery locations and instructions. Id. at 59, 351 (instructing potential awardees\nto make appointments with the designated warehouse ahead of delivery). Indeed,\nthe solicitations list the 45-day deadline as an eligibility requirement for contract\naward, requiring offerors to submit a proposed delivery schedule not to exceed that\ntimeframe. See id. at 83, 90, 376, 383.\n\n\n\n 3\n\f To ensure the PPE was supplied through authorized distribution channels,\nthe solicitations’ Statement of Work required verifying documentation. Id. at 56,\n348. If the offeror was not an original equipment manufacturer (OEM), the offeror\nwas to submit “an Authorized Distributor Letter from the OEM . . . authorizing the\n[offeror] as a distributor for the proposed product(s),” and further required that the\nofferor maintain “its authorized distributor status . . . throughout the life of this\nagreement.” Id. (“The letter must either state specific product(s) proposed or that\nthe quoter is an authorized distributor for all the manufacturer’s products. This\nletter must be on the manufacturer’s letterhead and contain the signature of an\nauthorized official for the manufacturer.”)\n\n For quality assurance, and to facilitate the technical evaluation of the\nproposed PPE, the solicitations set forth a chart of nine Mandatory Technical\nRequirements (MTRs) and required evidence demonstrating that each proposed\nproduct met the MTRs. Id. at 56–57, 348–49. Following the MTR chart, the\nsolicitations stated:\n\n Evidence is required to be provided with the submitted quote to\n support the item(s) being quoted meet or exceed the mandatory\n technical requirements. This evidence is to include OEM product\n specifications, OEM product literature to include clear and readable\n pictures of the product and packaging with supporting [United States\n Food and Drug Administration (FDA)] 510K certification letter, ASTM\n [International], AMMI NIOSH certifications, test reports to support\n certifications, etc. . . . Failure to provide this evidence as separate\n electronic files will render the quote submitted as technically\n unacceptable and not eligible for award.\n\nId. at 349 (emphasis in original); accord id. at 57.\n\n Section C.1 of the solicitations, titled “Contract Clauses . . . Contract Terms\nand Conditions—Commercial Items,” incorporates pertinent provisions of the\nFederal Acquisition Regulation (FAR) governing commercial item acquisition.\nId. at 60–76, 352–69. Relevant here, and as incorporated in the solicitations,\nFAR 52.212-4(f) provides:\n\n Excusable delays. The Contractor shall be liable for default unless\n nonperformance is caused by an occurrence beyond the reasonable\n control of the Contractor and without its fault or negligence such as,\n acts of God or the public enemy, acts of the Government in either its\n sovereign or contractual capacity, fires, floods, epidemics, quarantine\n restrictions, strikes, unusually severe weather, and delays of common\n carriers. The Contractor shall notify the Contracting Officer in writing\n as soon as it is reasonably possible after the commencement of any\n\n\n\n 4\n\f excusable delay, setting forth the full particulars in connection\n therewith, shall remedy such occurrence with all reasonable dispatch,\n and shall promptly give written notice to the Contracting Officer of the\n cessation of such occurrence.\n\nId. at 60, 352 (italics in original). FAR 52.212-4(m), also incorporated in the\nsolicitations, states:\n\n Termination for cause. The Government may terminate this contract,\n or any part hereof, for cause in the event of any default by the\n Contractor, or if the Contractor fails to comply with any contract terms\n and conditions, or fails to provide the Government, upon request,\n with adequate assurances of future performance. In the event of\n termination for cause, the Government shall not be liable to the\n Contractor for any amount for supplies or services not accepted,\n and the Contractor shall be liable to the Government for any and\n all rights and remedies provided by law. If it is determined that\n the Government improperly terminated this contract for default,\n such termination shall be deemed a termination for convenience.\n\nId. at 64, 356 (italics in original).\n\n Reiterating the requirements for evidence showing the offeror’s authorized\ndistributor status, Section C.4 of the solicitations incorporates provisions of the\nVA Acquisition Regulation (VAAR) prohibiting gray market and counterfeit items\nand requiring documentation from the OEM showing the offeror to be an OEM or\notherwise authorized to distribute its proposed products. Id. at 68, 360 (“No gray\nmarket items shall be provided. Gray market items are OEM goods intentionally or\nunintentionally sold outside an authorized sales territory or sold by non-authorized\ndealers . . . . No counterfeit supplies or equipment/parts shall be provided.\nCounterfeit items include unlawful or unauthorized reproductions, substitutions,\nor alterations . . .”).\n\n Section E.2, titled “Instructions to Offerors-Commercial Items,” reiterates the\nevidence and delivery schedule requirements. See id. at 82–83, 375–76. Offerors\nwere to provide, inter alia: (1) evidence “to support the item(s) being quoted meet\nor exceed the [MTRs,]” such as “product specifications & literature, and testing &\ncertifications”; (2) completed PPE Source Questionnaire for the proposed products,\nsummarizing offeror and product information, such as product testing, authorized\ndistribution, and shipping logistics; (3) “clear and readable photos of the nitrile\ngloves boxes being proposed along with photos of the glove itself”; and (4) if the\nofferor is not an OEM, a valid Authorized Distribution Letter from the OEM. Id.\nat 82–83, 109, 111–12, 331–32, 375–76. The solicitations unequivocally advised\n\n\n\n\n 5\n\fofferors that failure to provide these documents would render the quote ineligible\nfor contract award. See id.\n\n Under Section E.9, titled “Evaluation—Commercial Items,” the solicitations\nnote that the government “intends to award one or more firm fixed price contracts.”\nId. at 90, 382. This section lists three factors the VA would use in evaluating offers:\ntechnical capability, delivery schedule, and price. Id. at 90, 383. For technical\ncapability, the solicitations explain that the VA evaluation team will review the\ndocumentation submitted for the proposed PPE product, including the required\nevidence outlined in the preceding paragraph. Id. Again stressing the firm 45-day\ndelivery deadline, the solicitations state: “To be eligible for award, Offerors must be\nable to deliver within 45 calendar days from the award date.” Id. at 90, 383.\n\n As detailed below, each plaintiff submitted a quote and the required\ndocumentation for their proposed PPE products, assuring delivery within 45 days.\nAfter reviewing their quotes and supporting documentation, the VA awarded\npurchase orders to each plaintiff based on their proposed products and quoted\nprices. ECF 37-4 at 51–53 (Worsham Decl. at ¶¶ 4–5, 9–10, 15–16) (explaining\nreview of plaintiffs’ submitted documentation and awards based thereon).\n\nII. Transcendence: Pre-Award Events, Performance, and Termination\n\n A. Transcendence’s Quote and Pre-Award Communications\n\n In response to Solicitation No. 36C24921Q0088 dated January 6, 2021,\nTranscendence submitted a quote to supply 50 million Medivico nitrile examination\ngloves for $6.925 million. See, e.g., ECF 37-1 at 127, 159, 171; see generally id.\nat 118–221. The product documentation accompanying Transcendence’s quote\nindicated the proposed gloves were manufactured by Chinese OEM Dong Tai City\nHuayi Gloves Co. Ltd. (Dong Tai), distributed through Medivico Healthcare\nSolutions (Medivico), 2 and resold by Transcendence. ECF 37-1 at 141–48\n(government evaluation of FDA 510(K) 3 submitted by OEM Dong Tai); ECF 37-1 at\n\n\n2Several Medivico-related entity names appear in Transcendence’s submission. Transcendence’s\nquotation sheet lists the OEM name as “Medivico Health Solutions” (ECF 37-1 at 119), but the\ncompany website lists the company as “Medivico Healthcare Solutions,” and the distribution letter\nTranscendence submitted lists “Medivico Medical Supplies” (id. at 150). Rather than an OEM, as\nTranscendence represented, Medivico claims to be “a healthcare supply company” that distributes\nmedical products “sourced from several countries worldwide.” See https://www.medivico.com/about-\nus (last visited Aug. 4, 2022). Put simply, Medivico is a distributor as opposed to an OEM.\n\n3 According to the FDA’s website: “A 510(k) is a premarket submission made to [the] FDA to\ndemonstrate that the device to be marketed is as safe and effective, that is, substantially equivalent,\nto a legally marketed device . . . .” See https://www.fda.gov/medical-devices/premarket-submissions-\nselecting-and-preparing-correct-submission/premarket-notification-510k (last visited Aug. 4, 2022).\n\n\n\n 6\n\f149 (ISO 9001 certification4 issued to Dong Tai); ECF 37-1 at 150 (an “Authorized\nDistribution Letter” issued by Medivico stating Transcendence is their “exclusive\nreseller” to U.S. federal agencies). 5\n\n In response to the PPE Source Questionnaire, Transcendence indicated the\nproposed products were already produced and located in China and that “3 Million\nboxes of gloves” were “on hand (in-stock and available for immediate delivery”).” Id.\nat 121. As for the proposed delivery schedule, the quote stated “Transcendence will\ndeliver the requested gloves to all locations within 45 days per [VA] requirements,”\nproviding a chart illustrating its delivery timeline. Id. at 158; see also id. at 159,\n172.\n\n On January 20, 2021, VA Contracting Officer Charles W. Worsham notified\nTranscendence that its quote was under review and passed the technical evaluation.\nId. at 228. Before issuing an award, the Contracting Officer asked Transcendence\nto confirm its original quote and verify delivery capability within 45 days, inviting\nTranscendence to, if necessary, revise its quote to reflect the amount Transcendence\ncould deliver within 45 days:\n\n Please verify no change to your original glove type, quantity by size,\n price per glove and delivery within 45 calendar days from Award. . . .\n I cannot express how important it is to verify you can deliver[] within\n 45 calendar days from Award. If this is a factor then please revise\n the offer to indicate what can be received at shipping location below\n within 45 calendar days.\n\n\n\n\n4Established in 1987 by the International Organization for Standardization (ISO), and inclusive of\nthe manufacturing standards of more than 160 countries:\n\n ISO 9001 is defined as the international standard that specifies requirements for a\n quality management system (QMS). Organizations use the standard to demonstrate\n the ability to consistently provide products and services that meet customer and\n regulatory requirements. It is the most popular standard in the ISO 9000 series and\n the only standard in the series to which organizations can certify.\n\nSee https://asq.org/quality-resources/iso-9001 (last visited July 24, 2022).\n\n5 Although the solicitation requires an authorized distribution letter “from the OEM” confirming the\nofferor as a distributor for the proposed PPE, as detailed in supra note 3, Transcendence submitted\nan “authorized distribution letter” from distributor Medivico rather than OEM Dong Tai. Compare\nECF 37-1 at 56 (requiring “an Authorized Distributor Letter from the OEM . . . [which] shall include\nfor each product(s) proposed authorizing the quoter as a distributor for the proposed product(s).”)\nwith id. at 150 (letter titled “Authorized Distributor Letter” issued by Medivico submitted by\nTranscendence with the company’s quote).\n\n\n\n 7\n\fId. (emphasis in original). The email correspondence also confirmed delivery\nlocation and reiterated that Transcendence was to make appointments with the\ndesignated distribution warehouse “ahead of delivery.” Id. at 228–29.\n\n The next day, Transcendence confirmed no change to its offer and reassured\ndelivery within 45 days, stating:\n\n Transcendence verifies that there are no changes to its offered Nitrile\n Glove by Medivico. We confirm that the glove type, quantity by size,\n price per glove, and delivery scheduled within 45 days is offered as\n stated in in [sic] our original quote dated 1/12/2021. . . . We also\n acknowledge and concur with the delivery instructions within\n B2 Statement of [W]ork with no changes.\n\nId. at 227–28.\n\n B. Transcendence’s Contract Award\n\n On January 22, 2021, consistent with Transcendence’s quote and pre-award\nassurances, the VA issued Purchase Order No. 36C24921P0242 to Transcendence\nfor the delivery of 50 million Medivico nitrile examination gloves at a contract price\nof $6.925 million. Id. at 239, 245 (listing manufacture part number (MPN), stock\nnumber, and pricing included in Transcendence’s quote). Transcendence executed\nthe contract the same day. Id. at 232, 263.\n\n The executed PPE supply contract awarded to Transcendence incorporates\nthe same Statement of Work, Delivery Schedule, and FAR provisions included in\nthe January 6, 2021 solicitation and Transcendence’s January 12, 2021 quote; the\ncontract is similarly consistent with the pre-award communications between the\nContracting Officer and Transcendence. Compare id. at 265–88 (contract award)\nwith id. at 51–117 (solicitation) and id. at 118-221 (Transcendence’s quote). Above\nTranscendence’s signature on the first page of the contract, the “Schedule of\nSupplies/Services” section states:\n\n This is an acquisition for surge supply of Nitrile Gloves for hospital\n staff in response to the increased usage caused by COVID-19.\n The contractor agrees to deliver the amount of supplies ordered\n in 45 calendar days from the execution of this contract.\n\n The No Later Than Delivery Date for entirety of order is 03/08/2021.\n\nId. at 265. The contract’s Statement of Work restates the on-hand requirement and\nfirm 45-day deadline:\n\n\n\n\n 8\n\f This is not a request for manufacturing but a request for quantity\n on hand to be delivered within 45 calendar days from order.\n\n ...\n\n Contracts that are awarded based on submitted quotes will have\n 45 calendar days from receipt of order (award date) to deliver the\n awarded quantities, or the contract will be terminated for cause and\n negative performance will be reflected within the [CPARS] and the\n [FAPIIS].\n\nId. at 268. Under “Delivery Requirements,” the contract repeats that delivery is\ndue “45 calendar days after receipt of order” to the designated Defense Logistics\nAgency (DLA) distribution warehouse. Id. at 269–70 (restating instructions\nrequiring coordination with the warehouse ahead of delivery). Id. at 270.\n\n C. Transcendence’s Performance\n\n On February 2, 2021, eleven days into contract performance, the Contracting\nOfficer reached out to Transcendence for an update and expected delivery date. Id.\nat 290–91. Six days later, Transcendence responded “[e]verything is moving\nforward as planned,” and the company was “still working with the manufacturer to\nget a dedicated delivery after the Chinese New Year is over [on] February 12, 2021.”\nId. at 290. After receiving no update by Friday, February 19, 2021, the Contracting\nOfficer sent another request for an update. Id. at 289. Without identifying an\nexpected shipment or delivery date, Transcendence reported it was “working with\nour manufacturer partners and are finalizing a program to make sure your products\nwill be delivered in the fastest time possible.” Id. Transcendence then promised to\n“provide a comprehensive shipping program and provide expected shipment dates”\nearly in the week of February 22, 2021. Id.\n\n The record does not reflect any updates from Transcendence during the week\nof February 22, 2021. On March 1, 2021, a week before the March 8, 2021 delivery\ndeadline, the Contracting Officer contacted Transcendence again. Id. at 292. On\nMarch 4, 2021—four days before the delivery deadline—Transcendence informed\nthe Contracting Officer it would not deliver the contracted PPE, explaining:\n“Medivico has informed us that they will not be able to deliver the required gloves\non schedule due to unforeseen circumstances.” Id. at 293–94. Transcendence\nthen offered to deliver (by an unspecified date) a claimed “enhanced brand”\n(i.e., Kimberly-Clark KC500) “at no additional cost to the [VA]” distributed by\n“ATX Capital Management, LLC and their supply chain partners.” Id. at 294–95,\n315. Transcendence’s email also attached documentation regarding the\nnewly-offered product and a letter dated March 2, 2021, from ATX Capital\nManagement, which represented itself as “either the Manufacturer, Authorized\n\n\n\n 9\n\fDistributor, Authorized Sub Distributor or Title Holder” for the PPE products listed\nin its letter. Id. at 297–314, 315.\n\n After explaining to Transcendence that “substitutions are not permitted,”\nthe Contracting Officer nevertheless expressed potential willingness to extend the\ndelivery deadline for the PPE specified in the contract. Id. at 317. In an effort\n“to sa[l]vage the award, if possible,” the Contracting Officer inquired:\n\n What is the timeline of receiving the awarded brand of gloves? We are\n possibly willing to grant a short extension to the delivery date as long\n as long as [sic] you can provide a guarantee letter from your supplier\n regarding the proposed new delivery date as well as consideration for\n the extension in the form of additional gloves at no additional cost to\n the government.\n\nId. The following day, in an email dated March 5, 2021, Transcendence notified the\nContracting Officer that Medivico was “unable to fulfill their obligation to us due to\nthe current state of the PPE market.” Id. at 318. Transcendence then proposed yet\nanother product (i.e., Synguard) from another distributor (i.e., PharmacyGo Medical\nSupplies) to be delivered between April 23 and May 6, 2021, thereby extending the\ncontract performance period from 45 days to 104 days. See id. at 318–19, 322. For\nthe newly proposed product, Transcendence did not include any supporting product\nliterature, claiming instead that the proposed PPE had been previously approved\nand purchased by the VA. See id. at 318. Transcendence also attached an undated\nletter and an “Authorization Certificate” dated March 5, 2021, from PharmacyGo\nMedical Supplies representing that the distributor was partnering with\nTranscendence to fulfill the VA contract for 50 million nitrile examination gloves.\nId. at 321–22. In requesting the nearly two-month contract extension (i.e., March 8\nto May 6, 2021), Transcendence stated it would charge the “same price” as\ncontracted, offering no discount or additional PPE. Id. at 318.\n\n On March 8, 2021, the Contracting Officer rejected Transcendence’s new\nproposal, explaining:\n\n . . . putting aside the main issue (glove substitution), this is definitely\n not acceptable. You are requesting 52 additional days (total 97 days)\n for delivery which the extension alone is more than the period of\n performance of the solicitation/award. Additionally, zero consideration\n was offered to the government.\n\nId. at 323. Without addressing the “glove substitution” issue, Transcendence\ninstead offered “to expedite the delivery schedule” of the proposed Synguard PPE to\n\n\n\n\n 10\n\fApril 14-28, 2021, and include “12 additional pallets of the same gloves to you as a\nconcession.” ECF 43-2 at 10–11. 6\n\n D. Contract Termination\n\n Transcendence did not deliver any nitrile examination gloves to the VA by\nthe contracted March 8, 2021 deadline. See, e.g., ECF 37-1 at 326. On March 9,\nthe Contracting Officer terminated the contract for cause, explaining\n\n The reason this purchase order is being terminated for cause is\n due to the fact that your company is unable to provide the required\n nitrile gloves by the established delivery date of 08 March 2021.\n\n In an effort to avoid this route, the Government was willing to\n provide a short extension in exchange for consideration as long as\n your company could guarantee the new date in writing from the\n manufacturer (Medivico). However, in your response, it was stated\n that your company could not provide this guarantee.\n\nId.\n\nIII. Servant: Pre-Award Events, Performance, and Termination\n\n A. Servant’s Quote and Pre-Award Communications\n\n In response to Solicitation No. 36C24921Q0115 dated February 9, 2021,\nServant submitted a quote to supply 50 million SGH nitrile examination gloves for\n$7.495 million. 7 Id. at 408, 414, 471. According to Servant’s quote, the proposed\ngloves were manufactured by Chinese OEM Dong Tai (same OEM referenced in\nTranscendence’s quote), branded as “Sumner Group Health” or “SGH” nitrile\nexamination gloves, distributed by SGH through Alliance HealthCare Partners,\n\n\n\n\n6 The record does not indicate whether the Contracting Officer responded to Transcendence’s specific\nfollow-up offer to supply substitute PPE, including bonus product, if granted a 5-to-7-week extension;\ninstead, as detailed below, the Contracting Officer terminated Transcendence’s contract for default\nthe following day.\n\n7Servant’s original February 15, 2021 quote included a “grand total” price of $51.475 million; on\nMarch 3, 2021, Servant clarified the company’s price quote of $7.495 million. Compare id. at 413\nwith id. at 540.\n\n\n\n 11\n\fthen resold by Servant. 8 Id. at 471–72 (listing Dong Tai as the OEM); id. at 470\n(Servant proposed logistics chain); id. at 479 (SGH letter noting relationship\nbetween entities). 9 For the required product documentation, Servant submitted:\na “SGH Nitrile Gloves Brochure” which included packaging designs for proposed\nSGH gloves; and company literature of “Huayuan Medical,” which included product\ntesting reports and certifications for Dong Tai products. 10 Id. at 483–534. In\nresponse to the PPE Source Questionnaire, Servant indicated that the proposed\nproducts were “already produced” and “located” in Thailand, and that it had\n350 million gloves “on hand (in-stock and available for immediate delivery).” Id.\nat 470.\n\n On February 19, 2021, after a preliminary review of Servant’s quote, the\nContracting Officer requested that Servant clarify the inconsistent product labeling\nand various entities referenced in its quote as well as confirm “which glove is being\noffered and ensure all documentation represents such.” Id. at 535–37. The\nContracting Officer again reached out to Servant on March 2, 2021, to confirm\nthe company “can deliver 50,000,000 nitrile gloves (Dong Tai City Huayi Gloves)\nwithin 45 calendar days from an award date for a total of $7,495,000.00.” Id. at\n541. Servant confirmed the next day and even offered to supply up to 200 million\nDong Tai gloves within 45 days, stating:\n\n [We] hereby confirm that Servant Health can deliver 50,000,000 nitrile\n gloves of Dong Tai City Huayi Gloves (500,000 boxes of 100) within\n 45 days from the award date for a total of $7,495,000.00.\n\n Servant Health also guarantees they can deliver a total of 200,000,000\n nitrile gloves of Dong Tai City Huayi gloves (2,000,000 boxes of 100)\n within 45 calendar days of the award date.\n\n8In response to the VA’s request for clarification, discussed infra, Servant represented that “[the\nOEM Dong Tai] ‘white labels’ these gloves. Thus, the product number is according to their customer’s\ndesires[] which is the reason it is labeled as Sumner Group Health gloves.” Id. at 536; see also id. at\n535 (“Dong Tai manufactures this glove for other ‘brands,’ such as Sumner Group Health. Thus,\nthe box will say Sumner Group [Health] (called white labeling), but the actual K number (specs and\nmanufacturing process) is from Dong Tai.”).\n\n9Servant submitted a “Letter of Supply and Confirmation of Reseller” issued by SGH, wherein\nSGH represents: “As the OEM, we acknowledge Servant Health as an authorized reseller through\nour authorized distributor Alliance Healthcare Partners.” Id. at 479. SGH’s self-claimed “OEM”\nstatus is contradicted by Servant’s representation in its quote and its communication with the VA,\nwhich claimed Dong Tai as the OEM. Compare id. at 479 with id. at 471–72 (listing Dong Tai as\nthe OEM) and id. at 536 (clarifying Dong Tai as the OEM).\n\n10Servant’s product documentation includes the same ISO 9001 certificate issued for Dong Tai\nincluded in Transcendence’s quote with a different header and footer. Compare id. at 496 with id. at\n149. The FDA 510(K) documents included in Servant’s and Transcendence’s quotes cite to the same\nDong Tai product with the assigned 510(K) number of K131823. Compare id. at 498 with id. at 141.\n\n\n\n 12\n\f ...\n\n Servant Health guarantees their ability to deliver 500,000,000 nitrile\n gloves of Dong Tai City Huayi gloves (5,000,000 boxes of 100) every\n 30 days for 36 months to the VA, if the need is required.\n\nId. at 540. Later that day, after clarifying certain pricing errors listed in its quote,\nServant followed up “to convey our capability and guarantee our capabilities.” Id.\nat 539.\n\n B. Servant’s Contract Award\n\n On March 11, 2021, the Contracting Officer notified Servant of the VA’s\nintention to issue an award to the company stressing, among other things, that the\naward was for the SGH brand gloves Servant offered, no substitution was allowed,\nand the 45-day deadline was firm and non-extendable:\n\n Prior to signing the [award] document, there are some items that need\n to be re-addressed and/or re-confirmed. Due to recent past experiences,\n I want to overcommunicate these points.\n\n 1. Attached are the boxes that were submitted with your quote.\n Boxes received by the warehouse shall match.\n\n 2. The delivery date is set for 26 April 2021 for 100% qty of\n gloves being awarded. No extensions will be granted. This\n includes but is not limited to delays with the manufacturer,\n the suppliers, shipping delays, customs, and the pandemic.\n\n 3. Price per glove is 14.99 cents. . . .\n\n 4. Glove substitutions are not allowed.\n\n 5. Ensure to communicate with both the contracting office and\n the DLA warehouse personnel; including weekly updates to\n the contracting office. Ensure communication with DLA is\n done well ahead of time of each and every shipment/delivery.\n\n 6. Please confirm the required documentation has been\n completed and submitted for [government accounting].\n\nId. at 542. The VA finalized and issued the award on March 11, 2021, and Servant\nimmediately signed and returned the contract. ECF 49-1 at 3. Consistent with\nServant’s quote and pre-award assurances, the VA issued Purchase Order\n\n\n\n 13\n\fNo. 36C24921P0321 to Servant for the supply of 50 million SGH brand nitrile\ngloves for a total of $7.495 million. Id. at 3, 9 (listing OEM name, MPN, and pricing\nincluded in Servant’s quote). The delivery deadline, confirmed by Servant, was\n45 days after award (i.e., April 26, 2021). Id. at 3, 8. In all other aspects, Servant’s\ncontract is substantively identical to Transcendence’s contract. Compare id. at 3–26\n(Servant contract) with ECF 37-1 at 265–88 (Transcendence contract).\n\n C. Servant’s Performance\n\n Despite the VA requiring “weekly updates to the contracting office” and\ncoordination with the delivery warehouse in advance of any delivery, by April 14,\n2021—34 days into the 45-day contract performance period—Servant had not\nprovided the VA any updates. Consequently, the Contracting Officer reached out\nto Servant for an update and, after receiving no response, followed up two days\nlater. ECF 37-1 at 579–80 (VA emails requesting updates and urging Servant\nto coordinate with the warehouse for delivery). Servant’s April 16, 2021 response\nrepresented that “the boxes arrive on [April 20, 2021] and we are scheduling\ndeliveries to the drop point on [April 21, 2021].” Id. at 579. Servant even inquired\nwhether the VA would be interested in purchasing additional boxes of PPE shipped\nwith the purchased supply. Id.\n\n When asked about the sizes and prices for the additional boxes, Servant\nindicated that it could not confirm the exact over-delivery quantity until the\ncompany inspected their “pending air shipment.” Id. at 576. In the same April 21,\n2021 email—sent five days before the delivery deadline—Servant also provided\nan ambiguous delivery update:\n\n [W]e already have seven of 16 trucks scheduled with Chambersburg\n delivery point and will be scheduling additional trucks over the next\n two days to complete our deliveries of the 500,000 boxes throughout\n [the week of April 26-April 30, 2021].\n\nId. Left with little certainty as to the exact delivery date(s), whether Servant\nwould meet the April 26, 2021 delivery deadline, or if there had been advanced\ncoordination with the DLA warehouse, the Contracting Officer followed up for\nclarification:\n\n Can you provide me with whom (name) the delivery coordination was\n completed with at the DLA Warehouse?\n\n The seven scheduled deliveries are scheduled when? How many trucks\n per day and how many pallets?\n\n Quantity per box by size and case? 100/box? 10boxes [sic] per case?\n\n\n\n 14\n\f Thanks for your assistance as I want to make sure we are ready for\n delivery and you don’t run into delays at our delivery location.\n\nId. at 575. Receiving no response, and with the deadline approaching, the\nContracting Officer followed up again the next day. Id. at 574.\n\n The night of April 22, 2021, Servant responded with a forwarded email\nfrom the company’s Chief Operating Officer (COO) Ben Davis. 11 ECF 37-1 at 581.\nCOO Davis did not directly answer the questions the Contracting Officer raised.\nInstead, citing delays at certain unspecified “California ports” due to an unspecified\n“Suez Canal issue,” COO Davis indicated that partial delivery might arrive starting\nApril 23, 2021, and the remaining portion would not be delivered until early\nMay 2021:\n\n [W]e have nine (9) [bills of lading (BOLs)] attached showing successful\n shipments arriving at the delivery point in Chambersburg starting\n [April 23].\n\n ...\n\n I have attached the nine BOLs booked so far that total the following\n quantities of OEM Dong Tai Nitrile Gloves:\n\n ...\n\n Total gloves confirmed for delivery: 33,017,000 gloves[.]\n\n We are receiving our last lots of gloves from port today\n through [April 27, 2021,] and expect all product to ship out\n from [Los Angeles] no later than [April 30, 2021] (for deliveries\n no later than [the week of May 3–9, 2021,]) to complete our\n order of 50,000,000 gloves. . . .\n\nId. at 581–82. The record includes only eight of the nine shipping documents\npurportedly attached to Servant’s email; seven documents bear no signature, and\nnone mention Servant or SGH. See id. at 584–91. The eight documents list freight\nshipping from New Mexico, California, and Michigan—one of which indicating\narrival at the VA warehouse on April 26, 2021, five on April 27, 2021, and the\nremaining two bearing no estimated delivery date. Id. Four of the shipping\ndocuments list the “shipper” as “ICU Production, Inc.” or “ICU Productions,”\n\n11The record presented suggests Mr. Davis served as Servant’s President during the time in issue.\nSee, e.g., ECF 43-2 at 89. However, the company’s website currently lists Mr. Davis as Servant’s\nCOO. See https://servanthealth.com/our-team/ (last visited Aug. 4, 2022).\n\n\n\n 15\n\fthree list “Pixior,” and one lists “Tac Possibilities.” Id. None of these companies\nwere disclosed in Servant’s quote or otherwise mentioned by Servant pre-award.\n\n The Contracting Officer followed up the next day, requesting that Servant\n“provide the number of gloves that will definitely be delivered by 26 April 2021 and\nthe number that will not along with a guaranteed delivery date for the qty that will\nnot meet the April 26th date.” ECF 43-2 at 88–89. After reminding Servant that\n“failing to provide the contracted 50M nitril gloves by 26 April 2021 is a breach of\n[the] contract,” the Contracting Officer nevertheless expressed willingness to\n“extend the delivery date for a portion of the gloves in exchange for a price reduction\nand/or additional nitrile gloves at no cost to the government.” Id.\n\n Despite the pointed follow-up, Servant’s April 23, 2021 response did not\ninclude the requested delivery information. See id. at 87–88. Instead, Servant\ninformed the VA that 33,017,000 gloves “will deliver no later than [April 30, 2021].”\nId. at 88 (representing that the company switched to air shipping but could not\n“get all 50,000,000 gloves on planes,” citing “extenuating circumstances in global\nlogistics due to the pandemic”). For the remaining 17 million gloves, Servant\nreferenced a schedule of weekly deliveries through the end of May 2021 and offered\nthe VA a discount. Id. (Servant offered quantities over 33 million “at a reduced\nprice of $.10/box of 100 gloves” (emphasis omitted)). 12\n\n Three days before the April 26, 2021 deadline, with no clear answer, the\nContracting Officer contacted Servant again, requesting that the company specify:\n“How many gloves (including breakdown of size) have or will be delivered by\nCOB April 26th. Have these deliveries been coordinated and confirmed with the\nwarehouse personnel?” ECF 43-2 at 87. The Contracting Officer also asked about\nthe exact amount of additional time Servant was requesting to complete delivery of\nthe 50 million nitrile examination gloves and what consideration the company was\noffering in exchange. Id.\n\n On April 25, 2021, Servant provided a schedule breakdown. Id. at 93.\nAccording to Servant, 19 million nitrile examination gloves were to be delivered by\nApril 27, 2021—the day after the April 26, 2021 deadline—and another 19 million\n“will be delivered or in route” by April 30, 2021. Id. As for the remaining 12 million\nPPE, Servant put forth two proposals: (1) delivery by May 7, 2021, in exchange for\nan “$87,767.10 equitable judgment in favor of the VA”; or (2) delivery “no later than\nFriday, May 28, 2021,” in exchange for a “$148,702.10 in equitable adjustment in\n\n\n12The Contracting Office interpreted Servant’s proposed discount to mean a reduction in price of\n$0.10 per box of gloves. Id. at 87 (understanding Servant’s offer as “a 10[-]cent deduction [per box]\non 170,000 boxes”). Servant later claimed it had “offered to sell excess gloves for a reduced price of\n$.10/glove,” as opposed to “$.10/box.” Compare ECF 43 at 16 (emphasis added) with ECF 43-2 at 88\n(emphasis added).\n\n\n\n 16\n\ffavor of the VA.” Id. at 93–94. Acknowledging the delay in contract performance,\nServant “highlight[ed] the major reason for what we consider an excusable delay.”\nId. at 92 (referencing “supply-chain crisis” reported in certain media articles and an\nexcerpt on shipping delays from Shanghai – West Coast in February 2021 “before\nthe Suez [C]anal and other related factors” due to the global pandemic). Servant\nremained notably silent on the exact number of nitrile examination gloves it would\ntimely deliver the following day (i.e., the April 26, 2021 delivery deadline).\n\n The Contracting Officer inquired again:\n\n Please provide the number of gloves including size that have or will\n be delivered by COB tomorrow, April 26. Also please provide this\n information on any deliveries that are currently scheduled past\n April 26th and please confirm that this information has been provided\n to the warehouse personnel.\n\n Overall, I’m looking for exact information on how many gloves\n have/will be received by COB on April 26th, how many gloves/deliveries\n already have been coordinated with the DLA warehouse to be delivered\n after April 26th, and how many gloves/deliveries have not been\n coordinated with the DLA warehouse.\n\nId. at 90–91 (reiterating contractual requirements for delivery by April 26, 2021,\nand advance coordination with the warehouse). Addressing the “Supply Chain\nCrisis” cited in Servant’s email, the Contracting Officer explained: “The pandemic\nand the strain on PPE supply chain has been going on for several months and well\nbefore the posting of the solicitation,” reminding Servant that the solicitation and\naward explicitly “request for quantity on hand to be delivered within 45 calendar\ndays.” Id. The Contracting Officer further noted: “As previously stated, delays\nregarding (including but not limited to) shipping, customs, pandemic and supplier\nare not deemed excusable.” Id. Later that evening, Servant responded that it “will\nsend . . . exactly the answers you are looking for” regarding its delivery schedule.\nId. at 90. Servant then added “while our OEMs had the quantities on hand, the\nknown logistics and transportation delays were exacerbated by the post-award\nblockage of the Suez Canal on March 23rd and subsequent global domino effects.”\nId.\n\n The next day—the April 26, 2021 contract deadline—the VA Contracting\nOffice discovered Servant made an unannounced delivery to the DLA distribution\nwarehouse on Friday, April 23, 2021, and that the delivery was far short of\n50 million nitrile examination gloves and differed from the product Servant offered\nand contracted to supply. See id. at 97–102 (photographs of Servant’s April 23,\n2021 delivery); ECF 37-1 at 594–97 (internal VA discussion documenting that the\nwarehouse had not received any “delivery schedule,” “advance shipping notice,” or\n\n\n\n 17\n\f“delivery information with number of pallets and number of trucks”); id. at 598\n(“I am concerned because the picture of what [the warehouse] received . . . does not\nmatch what was included in the Technical Evaluation package. . . . The vendor sent\nthe SGH Nitrile Glove Certification and SGH Nitrile Brochure, and none of the\ndocuments match what we received.”). Given the discrepancies, a VA procurement\nofficial recommended the VA Contracting Office not certify Servant’s invoice “until\nwe know if this glove is indeed what was proposed.” Id. Upon further review, the\nwarehouse official expressed additional concerns about the lack of a product\n“stock number” on the packages received. ECF 37-2 at 36.\n\n The Contracting Officer immediately contacted Servant regarding the\ndiscrepancies and referenced his pre-award March 11, 2021 email wherein he\nstressed, among other things, that “[g]love substitutions are not allowed.” ECF 37-1\nat 593; see id. at 542 (March 11, 2021 email). COO Davis responded that he was not\npreviously aware of the March 11, 2021 correspondence, and “thus was unaware of\nany such request.” Id. at 592. Although COO Davis acknowledged that the PPE\ndelivered were of a different brand and packaging from that included in Servant’s\nquote, he claimed the nitrile examination gloves were manufactured by the same\nOEM (Dong Tai) and were of the same quality. Id. at 592–93.\n\n To verify Servant’s representation that the April 23, 2021 (partial) delivery\nincluded “the same gloves that were submitted and approved,” the Contracting\nOfficer requested supporting documentation from both Servant and SGH. See\nECF 37-2 at 46. Servant responded with the same product information submitted\nwith the company’s original quote save the SGH nitrile glove brochure and the\n“Authorized Distribution Letter.” Compare id. at 47–89 (product documentation\nincluded in Servant’s April 27, 2021 response) with ECF 37-1 at 483–534 (product\ndocumentation included in Servant’s February 15, 2021 quote). The Contracting\nOfficer again asked Servant for clarification on “how the documentation you sent\n(attached) confirms that the gloves at the warehouse are the same.” ECF 37-2 at\n45. In turn, SGH similarly represented to the VA Contracting Office that Servant’s\npartial delivery were “[Dong Tai] gloves in [Dong Tai] branded boxes that meet the\ncontract requirements.” Id. at 90–91; see also ECF 43-5 at 1–5 (VA communication\nwith SGH). Acknowledging that no SGS reports were provided for the PPE\ndelivered, Servant encouraged the VA to “order an SGS on [the] gloves at the\nwarehouse or send another third-party inspector/inspection” to ensure the gloves\nmet the contract’s specifications. 13 ECF 37-2 at 92; see also ECF 43-5 at 1. Despite\nadditional back-and-forth with Servant, the VA’s concerns remained unresolved. 14\n\n13SGS S.A. (f/k/a Société Générale de Surveillance) is a multinational corporation headquartered\nin Geneva, Switzerland, which provides independent testing, inspection, and certification services.\nSee https://www.sgs.com/en (last visited July 25, 2022).\n\n14See, e.g., ECF 37-2 at 94 (“I have reached back out to SGH’s CEO for additional documentation to\nshow the link between Dong Tai and SGH along with other documentation regarding this order. We\nhave a verified letter showing the relationship between SGH and Servant Health prior to award;\n\n\n 18\n\f D. Show Cause Notice and Contract Termination\n\n The VA did not immediately terminate Servant’s contract. Instead, on\nApril 28, 2021—two days after the delivery deadline—the Contracting Officer\nissued the following Show Cause Notice:\n\n The contract called for 50M nitrile gloves to be delivered by 26 April\n 2021, and Servant Health only delivered 10.863M nitrile gloves.\n Additionally, Servant Health has failed to provide documentation to\n validate your company’s claim that the delivered nitrile gloves are the\n same gloves evaluated and awarded. The Government is considering\n terminating the contract under the provisions for cause of this\n contract. . . .\n\nId. at 95–96. Servant responded on April 29 and May 3, 2021. Id. at 97, 99. The\ncompany’s April 29, 2021 response made clear that Servant’s partial delivery was\nnot the SGH-sourced gloves it offered and, instead, sourced from some unspecified\n“alternate suppliers.” Id. at 97.\n\n Servant’s May 3, 2021 follow-up response provided more details, including\ndocumentation regarding the alternate suppliers employed (i.e., ICU Production,\nInc., Jay Imports). Id. at 99–223, ECF 37-3 at 1–9. Admitting the PPE supplied\nto date was in different packaging and sourced from entities not disclosed in the\ncompany’s quote, Servant claimed it nonetheless complied with the contractual\nrequirement that the gloves be manufactured by OEM Dong Tai. ECF 37-2 at 100.\nThe documentation purported to “fully support the authenticity of the delivered\ngloves” (id.), but was not entirely consistent with Servant’s representation. For\nexample, Servant’s May 3, 2021 email states “Shanghai Fortune International Co.\nLtd. (Chinese legal name Suzhou Huazhiyuan International Trading Co. Ltd) is an\nowned manufacturer of Dong Tai City Huayi Gloves Co. Ltd.” Id. at 100. The\nattached documentation reveals, however, that Suzhou Huazhiyuan is not the\n“Chinese legal name” of Shanghai Fortune, but rather claims to be “cooperating\nwith” Shanghai Fortune; and rather than an “owned manufacturer” of Shanghai\nFortune or Suzhou Huazhiyuan, Dong Tai is a subsidiary of Huayuan Medical. Id.\nat 103–04. Further, in two substantively identical letters (save the letterhead\nand signature), both Jay Imports and ICU Production claim to be an authorized\ndistributor” of Dong Tai nitrile gloves and that Servant is their “authorized\nreseller.” Compare id. at 105 with id. at 150. Servant’s submission, however,\ndoes not include confirmation from Dong Tai of Jay Imports’ claimed authorized\n\n\nhowever, it really doesn’t help much at this time since it has SGH info on it and the boxes don’t.”); id.\nat 93 (“Since all of the documentation that was provided and reviewed and approved by the Clinical\n[integrated product team (IPT)] was based on the Sumner Group box design and information, I do\nnot think we can safely say it is ok to accept a different item.”).\n\n\n\n 19\n\fdistributor status; in turn, the Dong Tai letter refers to ICU Production’s authorized\ndistributor status as to its “product Pure Nitrile Examination Gloves.” 15 Id. at 196.\nServant’s submission did not contain any information regarding either Pixior or\nTac Possibilities. See ECF 37-1 at 588–91.\n\n Moreover, the product documentation Servant submitted for Jay Imports\nand ICU Production contain the same Huayuan Medical product literature Servant\nprovided in its original quote, again excluding the SGH brochure. Compare id. at\n483–534 (production literature in Servant’s February 15, 2021 quote) with ECF 37-2\nat 105–48 (product documentation for Jay Imports included in Servant’s May 3,\n2021 response) and ECF 37-2 at 150–93 (product documentation for ICU Production\nincluded in Servant’s May 3, 2021 response). The information supplied for\nICU Production also included an SGS Inspection Report and two pending SGS\nInspection Requisition requests for certain Dong Tai nitrile examination gloves\npurchased by ICU Production. 16 ECF 37-2 at 197–223; ECF 37-3 at 1, 4–9. Product\nphotographs included in the SGS documentation, however, do not match Servant’s\npartial delivery to the DLA warehouse. Compare ECF 37-2 at 205–06 (photographs\nincluded in Servant’s May 3, 2021 submission) with ECF id. at 36–43 (photographs\nof Servant’s partial delivery).\n\n Servant’s May 3, 2021 response also acknowledged (and self-excused) its\ndelayed performance but did not specify a new delivery date(s). With the delivery\ndeadline passed—and having delivered 20% of the contracted amount with products\nnot previously offered or accepted—Servant expressed willingness to discuss a new\ndeadline. Id. at 100–01. In response, on May 5, 2021, the VA terminated Servant’s\ncontract for failure to perform “because Servant had not delivered the SGH gloves\nfrom its award and it acknowledged that it had obtained gloves from another source\nother than SGH.” ECF 37-4 at 53 (Worsham Decl. at ¶ 13). The Termination\nNotice explains:\n\n The contract called for 50M nitrile gloves to be delivered by 26 April\n 2021 and Servant Health delivered less than 20M.\n\n Additionally, the award was based on documentation submitted by\n your company which included Sumner Group Health packaging and\n part numbers. In Servant Health’s response to the Show Cause Notice,\n your company acknowledges the delivered gloves were obtained from\n another source other than Sumner Group Health and “that the\n packaging of the delivered boxes did not match the certification\n packet.”\n\n15 It is unclear whether “Pure” refers to a certain product line or chemical purity.\n\n16 No separate SGS documentation was included for Jay Imports.\n\n\n\n 20\n\fECF 37-3 at 11; see id. at 12 (“Your company introduced additional companies who\nwere not vetted during the evaluation process.”).\n\nIV. Noble: Pre-Award Events, Performance, and Termination\n\n A. Noble’s Quote and Pre-Award Communications\n\n In response to Solicitation No. 36C24921Q0115 dated February 9, 2021,\nNoble submitted a quote to supply 50 million nitrile examination gloves from\na number of “brand name[s]” (i.e., Cardinal, Skymed, Halyard, Medline, mCare)\nwith various “OEM product number[s]” for $7.425 million. Id. at 16, 21–22, 29, 89.\nAccompanying its quote, Noble submitted company and product literature for itself\nand its suppliers as well as documentation for the proposed PPE. Id. at 23–28, 31–\n83. As for delivery, Noble stated it was “prepared to deliver the [g]loves within the\n45-day allocated period or sooner.” Id. at 29.\n\n On February 26, 2021, after preliminary review of Noble’s February 9, 2021\nquote, the Contracting Officer notified Noble that “[t]he supporting documentation\nprovided for Nitrile Gloves was lacking proof of minimum technical requirements\n(MTRs) as required by the Performance Work Statement in the RFQ.” Id. at 134.\nThen, specifying the deficiencies, Contracting Specialist Scott Dickey invited Noble\nto supplement the information provided to date. See id. Following its review of the\nsupplemental documentation supplied, the VA technical team determined that,\namong the products Noble offered, only the Mercator Medical mCare (Mercator\nmCare) nitrile examination gloves passed the technical evaluation. Id. at 132–33.\nNoble then confirmed that the company had 25 million Mercator mCare gloves\navailable for delivery in varying sizes. Id. at 131–32.\n\n As the VA continued to review Noble’s quote through April 19, 2021, the\nContracting Officer requested additional supplemental information, including:\nan authorized distributor letter for Mercator mCare products as well as the valid\ncontact information of the letter’s author; an OEM verification letter; “pictures of\nall six sides of the mCare glove box”; confirmation that the boxes “meet all FDA\nlabelling guidelines”; and confirmation of the MPNs for each proposed glove size.\nId. at 143–59, 160, 162. Responding to the VA’s information request, Noble also\noffered several other available products, claiming that “[t]hese are top notch name\nbrand nitrile gloves.” Id. at 163–64 (Noble informing the VA that it “just received\n35 million Cardinal and Medline gloves”). Declining Noble’s offer for additional\nPPE, the VA explained: “Thanks, but we can only entertain what was originally\noffered and passed technical review. We are tracking mCare Glove only at this\ntime.” Id. at 162.\n\n\n\n\n 21\n\f B. Noble’s Contract Award\n\n On April 22, 2021, after the VA fully reviewed Noble’s supplemental\ndocumentation, the Contracting Officer notified Noble that the VA intended to\naward the company a contract “for 25M Mercator Medical mCare nitrile gloves.” Id.\nat 165. As with Servant, the Contracting Officer stressed, among other things, that\nno substitutions were allowed and that the 45-day delivery deadline was firm:\n\n Prior to signing the [award] document, there are some items that need\n to be re-addressed and/or re-confirmed. Due to recent past experiences,\n I want to overcommunicate these points.\n\n 1. Gloves boxes to be delivered shall match the ones submitted\n in your submission.\n\n 2. The delivery date is set for 10 June 2021 for 100% qty of\n gloves being awarded. No extensions will be granted. This\n includes but is not limited to delays with the manufacturer,\n the suppliers, shipping delays, customs, and the pandemic.\n\n 3. Price per glove is 15.85 cents. . . .\n\n 4. Glove substitutions are NOT allowed.\n\n 5. Ensure to communicate with both the contracting office and\n the DLA warehouse personnel; including weekly updates to\n the contracting office. Ensure communication with DLA is\n done well ahead of time of each and every shipment/delivery.\n\n 6. Please confirm the required documentation has been\n completed and submitted for [government accounting].\n\nId. at 165. The next day, in addition to certain payment processing requests, Noble\nrequested “to extend the delivery date to June 23rd.” Id. at 168.\n\n Rejecting Noble’s request to extend the contract performance period by nearly\ntwo weeks, the Contracting Officer explained “I cannot finalize the award since your\ncompany can no longer meet the 45 calendar day period of performance.” Id. at\n167–68. Noble immediately responded, assuring its ability to meet the 45-day\ndelivery deadline, stating: “Please finalize the award, we will meet the 45 day\ndelivery, I was just seeking an in case issue. But I confirm and attest that you\nwill receive 25 million mCare gloves in that timeframe. We already scheduled\npickups for Monday and will send you all the tracking.” Id. at 167.\n\n\n\n\n 22\n\f Out of an abundance of caution, the Contracting Officer reached out to\nNoble again, stressing the firm deadline and the risk of default termination if the\ncompany failed to adhere to all terms and conditions:\n\n As you know, the PPE world has experienced several ups and downs\n over the past year. Just on my solicitations/awards for nitrile gloves\n alone, they have been extremely challenging and that is why I continue\n to try to overcommunicate and re-emphasize several points before\n finalizing a contract. If I finalize the contract and if your company\n doesn’t adhere to ALL of the terms and conditions then I will have to\n terminate the award for cause and input unsatisfactory ratings in both\n CPARS and FAPIIS system. It doesn’t exclude a company from quoting\n on future opportunities but it could hinder potential future awards\n which is dependent on a CO’s decision regarding a contractor’s\n responsibility.\n\n With that said are you certain that you can deliver all 25M gloves by\n 10 June 2021? If not, is there a quantity of gloves that you can?\n\nId. at 166. Noble reassured the VA Contracting Office of the company’s ability to\nperform and “adhere to all of [the VA’s] conditions,” noting that shipping would\nbegin in days. Id.\n\n Given Noble’s assurances, on April 23, 2021, the VA issued Purchase Order\nNo. 36C24921P0322 to Noble for 25 million Mercator mCare nitrile examination\ngloves for $3.962 million. Id. at 170–71, 177 (listing OEM and brand name,\ncorresponding MPN, and pricing as proposed in Noble’s quote). The delivery\ndeadline, as Noble confirmed and assured, was 45 days after award (i.e., June 10,\n2021). Id. at 171, 176. In forwarding the finalized award, the Contracting Officer\nagain stressed: “As previously stated, the delivery date for all gloves is 10 June\n2021; no exceptions. Please overcommunicate with updates to both [the] contracting\n[office] and the warehouse personnel.” Id. at 170. Noble’s contract is substantively\nidentical to the awards to Transcendence and Servant, discussed supra. Compare\nid. at 171–94 (Noble Contract) with ECF 37-1 at 265-88 (Transcendence contract)\nand ECF 49-1 at 3–26 (Servant contract).\n\n C. Noble’s Performance\n\n Despite Noble’s pre-award assurances, Noble did not provide regular delivery\nupdates for the first three weeks of the 45-day performance period, either to the\nVA Contracting Office or the DLA distribution warehouse. See, e.g., ECF 37-3 at\n176 (contract providing “Appointments must be made ahead of delivery”); id. at 169\n(pre-award communication requiring “weekly updates to the contracting office” and\nadvance coordination with the designated DLA distribution warehouse before each\n\n\n\n 23\n\fdelivery); id. at 166 (Noble pre-award assurance that it will comply with all contract\nconditions); id. at 167 (Noble pre-award representation that the company “already\nscheduled pickups for [April 26, 2021] and will send [the VA] all the tracking.”)\n\n On May 17, 2021, without prior notice, the DLA warehouse received\nNoble’s first (partial) delivery. See id. at 195. When notified of the delivery, the\nVA Contracting Office contacted Noble to confirm the shipment was from Noble,\ncheck on the status of the future deliveries, and remind Noble to provide the\nContracting Office regular updates and coordinate with warehouse personnel in\nadvance of deliveries. Id. Noble confirmed that the May 17, 2021 delivery was\noriginally scheduled for May 12, 2021, a second delivery was expected in the next\n24 hours, and that the company remained on track to meet the June 10, 2021\ncontract delivery date for the full PPE order. Id. Noble then reassured the\nVA Contracting Office that the company was “coordinating all shipments with the\nwarehouse personnel.” Id. The next day, the DLA distribution warehouse again\nreceived another shipment from Noble with no advance notice. Id. at 198. The\nContracting Office reached out to Noble, reiterating the importance of advanced\ncoordination. Id.\n\n Upon inspection, the VA discovered that Noble’s May 17-18, 2021 partial\ndeliveries included nitrile examination gloves that were not disclosed in Noble’s\nquote, let alone examined and accepted by the VA in awarding the supply contract.\nSpecifically, the deliveries included “Unispace Health” branded gloves and gloves in\nboxes labeled “mCare” with different product numbers from those specified in the\nawarded contract. ECF 37-4 at 22–28. When asked, Noble acknowledged the\ndiscrepancies in packaging and product numbers, but claimed that the OEM\n(Mercator) “changed their packaging” and, at some point in time, “discontinued the\nmCare design.” Id. at 40. Noble nevertheless represented that “Unispace and\nNitrylex are mCare,” and that “Mercator has recently began [sic] to replace the\nmCare line to Nitrylex and Unispace.” Id. at 29–35, 36. In a follow-up email, Noble\ninformed the Contracting Officer that future deliveries would include “a mixture of\nmCare boxes, Nitrylex boxes, and Unispace boxes.” Id. at 36.\n\n D. Cure Notice and Contract Termination\n\n On May 20, 2021—28 days into the 45-day contract performance period—the\nContracting Officer issued the following Cure Notice, allowing Noble ten days to\nremedy its failure to deliver the PPE products originally offered to and accepted by\nthe government:\n\n [T]he Government considers your inability to deliver the awarded\n nitrile gloves a condition that is endangering performance of the\n contract. Deliveries made to the Chambersburg warehouse contain\n product that does not match the packaging and manufactured [sic]\n\n\n\n 24\n\f part numbers (MPN[s]) [o]n which the award was based. The Noble\n Attorney proffered Mercator mCare gloves with MPN[s] 8859185-\n 200185/192/208/215 but instead shipped Unispace Health gloves with\n item number 01-1220-03-04 and mCare gloves with MPN[s] 1859185-\n 200175/182/199/205/212. Additionally, as stated in your email dated\n 19 May 2021, your company plans on delivering Nitrylex gloves which\n also was not part of The Noble Attorney’s quote submission.\n\nId. at 41–42. Noble’s May 20, 2021 response to the Cure Notice failed to provide\nany assurance that Noble would deliver the promised Mercator mCare nitrile\nexamination gloves. Instead, Noble restated its prior representation that “Unispace\nand Nitrylex are manufactured by Mercator and they are the exact same specs as\nmCare.” Id. at 45.\n\n On May 25, 2021, after additional back-and-forth between Noble and the\nContracting Officer (see ECF 37-4 at 43–44; ECF 43-2 at 162), the VA terminated\nNoble’s contract for cause due to its failure to deliver the contracted PPE. ECF 37-4\nat 47–49. The Termination Notice explains:\n\n The contract called for 25M Mercator Medical mCare nitrile gloves\n with the manufacturer part numbers (MPNs) 8859185200185/192/\n 208/215. The Noble Attorney delivered Unispace Health with the\n MPN 01-1220-03-04 and mCare boxes with MPNs 1859185200182/\n 199/205/212. On 19 May 2021, The Noble Attorney stated, “it is\n true that the packaging is different” and a third type of packaging\n (Nitrylex) would also be shipped. Ultimately, none of the three match\n the packaging and the MPNs in which your company proffered.\n\n In response to the Cure Notice, The Noble Attorney mentioned\n Sante Group and stated this company was Mercator’s North American\n distributor. Sante Group was not mentioned in Noble Attorney’s\n quote submission nor was documentation provided regarding this\n relationship prior to this award.\n\nId. at 49.\n\nV. Plaintiffs’ Challenges to Terminations for Default\n\n Plaintiffs allege the Contracting Officer’s decisions to terminate their\nrespective PPE supply contacts for default were improper, arbitrary and capricious,\nand that the government breached its implied duty of good faith and fair dealing.\nAccording to plaintiffs, the government should have accepted the substitute PPE\nbecause they met the material contract terms, which plaintiffs contend are the\nsolicitations’ technical requirements. Transcendence also argues that its default\n\n\n 25\n\ftermination was invalid because the VA did not send a Cure Notice; relatedly,\nNoble argues the VA did not provide sufficient time to cure. Plaintiffs further\nassert their delays were excusable and the government should have extended the\ndelivery deadlines. Plaintiffs contend the terminations for default were made in\nbad faith, without contract-related bases, and constituted abuses of the Contracting\nOfficer’s discretion. Finally, plaintiffs maintain that the government breached its\nimplied duty of good faith and fair dealing by imposing new contract requirements\nand not accommodating plaintiffs’ substitution and excusable delays.\n\n Defendant counters that the VA properly terminated the contracts for cause\nbecause each plaintiff failed to deliver the contracted PPE by the agreed upon firm\ndeadlines. The VA argues the terminations were further justified on anticipatory\nrepudiation grounds, given Transcendence’s advance notification that it would not\ndeliver the contracted PPE and Servant’s and Noble’s similar statements after\npartially delivering non-conforming products. Defendant argues plaintiffs’ failures\nto perform were not excusable because they resulted from plaintiffs’ choices to\ninitially offer products without properly securing sufficient supply pre-award and\nthen attempting to deliver substitute PPE without first notifying or seeking\napproval from the VA Contracting Office. Defendant further maintains that the\npurported pandemic-related circumstances were known and foreseeable. As for\nthe Cure Notice challenges, defendant argues no Cure Notice was required for\nTranscendence and that additional time for Noble would have been futile given its\nclaimed inability to deliver the promised PPE. Defendant reiterates that the VA\nawards for PPE supply were based on plaintiffs’ proposed products, as evaluated\nand approved pre-award, and that the firm 45-day delivery deadline (and the risk of\ndefault termination) were clear and accepted by each awardee.\n\n DISCUSSION\n\nI. Legal Standards\n\n A. Cross-Motions for Summary Judgment\n\n Summary judgment is appropriate “if the movant shows that there is no\ngenuine dispute as to any material fact and the movant is entitled to judgment\nas a matter of law.” RCFC 56(a). A “genuine dispute” exists where a reasonable\nfactfinder “could return a verdict for the nonmoving party.” Anderson v. Liberty\nLobby, Inc., 477 U.S. 242, 248 (1986). “Material facts,” in turn, are those “that\nmight affect the outcome of the suit.” Id. In deciding motions for summary\njudgment, particularly where, as here, the parties filed cross-motions for summary\njudgment, the Court must draw all inferences in the light most favorable to the\nnonmoving party, evaluating each motion on its own merits. Matsushita Elec.\nIndus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587–88 (1986) (quoting United\nStates v. Diebold, Inc., 369 U.S. 654, 655 (1962)); Mingus Constructors, Inc. v.\nUnited States, 812 F.2d 1387, 1391 (Fed. Cir. 1987).\n\n\n 26\n\f The moving party bears the initial burden to demonstrate the absence of\nany genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323\n(1986). That burden can be met by showing “there is an absence of evidence to\nsupport the nonmoving party’s case.” Dairyland Power Co-op. v. United States,\n16 F.3d 1197, 1202 (Fed. Cir. 1994) (citing Celotex, 477 U.S. at 325). “Once the\nmoving party has satisfied its initial burden, the opposing party must establish a\ngenuine issue of material fact and cannot rest on mere allegations, but must present\nactual evidence.” Crown Operations Int’l, Ltd. v. Solutia Inc., 289 F.3d 1367, 1375\n(Fed. Cir. 2002) (citing Anderson, 477 U.S. at 248). Summary judgment is\nwarranted when “the record taken as a whole could not lead a rational trier of fact\nto find for the non-moving party.” Matsushita, 475 U.S. at 587.\n\n B. Termination for Default\n\n When a contractor challenges a termination for default, the government\nbears the initial burden to show the contractor was in default at the time of\ntermination. See Lisbon Contractors, Inc. v. United States, 828 F.2d 759, 763–65\n(Fed. Cir. 1987). For contracts concerning delivery of goods, “[a] contractor’s failure\nto make timely delivery of agreed-upon goods establishes a prima facie [sic] case of\ndefault.” Gen. Injectables & Vaccines, Inc. v. Gates, 519 F.3d 1360, 1363 (Fed. Cir.),\nopinion supplemented on denial of reh’g, 527 F.3d 1375 (Fed. Cir. 2008). Once\ndefault is established, “[t]he burden then shifts to the contractor to show that the\nfailure to deliver the contract goods was excusable.” Id. (citing DCX, Inc. v. Perry,\n79 F.3d 132, 134 (Fed. Cir. 1996)). Under FAR 52.212-4(f), incorporated in the PPE\nsupply contracts at issue, the contractor’s failure to timely deliver is excusable if it\n“is caused by an occurrence beyond the reasonable control of the Contractor and\nwithout its fault or negligence.” ECF 37-1 at 272 (Transcendence contract); ECF 49-\n1 at 10 (Servant Contract); ECF 37-3 at 178 (Noble contract); FAR 52.212-4(f).\n\n The Court reviews an agency’s termination for default de novo. 41 U.S.C.\n§ 7104(b)(4); see also McDonnell Douglas Corp. (McDonnell Douglas II) v. United\nStates, 323 F.3d 1006, 1018 n.3 (Fed. Cir. 2003). “In determining whether a default\ntermination was justified, a court must review the evidence and circumstances\nsurrounding the termination, and that assessment involves a consideration of\nfactual and evidentiary issues.” McDonnell Douglas II, 323 F.3d at 1014 (citing\ncases). As a general matter, government contracting officers have “broad discretion\nto determine whether to terminate a contract for default,” and those decisions must\nbe sustained unless they are “arbitrary, capricious, or an abuse of discretion.”\nAllen Eng’g Contractor Inc. v. United States, 611 F. App’x 701, 705 (Fed. Cir. 2015)\n(quoting Lanterman v. United States, 75 Fed. Cl. 731, 733–34 (2007)). Nevertheless,\nin reaching a default termination, a contracting officer must “make sure that\ntermination is in the best interests of the Government.” Nuclear Rsch. Corp. v.\nUnited States, 814 F.2d 647, 649 (Fed. Cir. 1987); FAR § 12.403(b). Further, there\nmust be a nexus between the default termination and the contractor’s performance.\n\n\n\n 27\n\fSee McDonnell Douglas Corp. (McDonnell Douglas I) v. United States, 182 F.3d\n1319, 1326 (Fed. Cir. 1999) (“[A] termination for default that is unrelated to\ncontract performance is arbitrary and capricious, and thus an abuse of the\ncontracting officer’s discretion.”) (citing United States Fidelity & Guaranty Co. v.\nUnited States, 676 F.2d 622, 630 (1982)). 17\n\nII. Contract Performance: Default and Repudiation\n\n Plaintiffs each received a VA supply contract to deliver specific nitrile\nexamination gloves to a designated DLA distribution warehouse within 45 days of\ncontract award. Transcendence did not deliver any gloves by the contract deadline\nand, instead, offered to supply substitute PPE in exchange for a contract extension.\nServant made one delivery ahead of the contract deadline, but the nitrile\nexamination gloves tendered were substitute products and a fraction of the quantity\nrequired; Servant then offered to supply additional substitute PPE in exchange for a\ncontract extension. Noble made two deliveries during the contract performance\nperiod and, like Servant, tendered only substitute PPE in quantities less than the\ncontract required; in response to a Cure Notice, Noble offered more substitute\nproducts. Accordingly, the Court finds that Transcendence and Servant failed to\nperform their respective contractual obligations and Noble repudiated its\ncontractual obligations.\n\n A. Failure to Perform: Transcendence and Servant\n\n Transcendence offered to supply 50 million Medivico nitrile examination\ngloves from Chinese OEM Dong Tai (MPNs HUNG100S/100M/100L/100XL)\nand deliver them to the designated distribution warehouse by March 8, 2021.\nSee ECF 37-1 at 127–28 (Transcendence offer); id. at 271 (Transcendence contract\n“item information”). Pre-award, the Contracting Officer stressed the strict 45-day\ndeadline and invited Transcendence to revise its quote if there was any change in\nthe quantity the company could timely deliver. See id. at 228–29. Transcendence\nconfirmed no changes were necessary and assured the VA of its ability to timely\ndeliver the specified PPE. Id. at 227–28. As of the March 8, 2021 deadline,\nTranscendence made no deliveries. See id. at 326. Instead, on March 8, 2021,\n\n\n\n\n17Citing McDonnell Douglas I, plaintiffs argue the terminations amounted to abuses of discretion\nbecause they were “unrelated to contract performance” and “pretextual.” ECF 43 at 39–40, 45, 52.\nPlaintiffs’ reliance on this case is misplaced. As discussed infra, contrary to plaintiffs’ assertion,\nthe Court finds that the Contracting Officer’s decisions to terminate the contracts for cause were\ndirectly related to contract performance: plaintiffs’ failures to timely deliver the contracted PPE they\nrepresented to have on hand pre-award and, instead, seeking to supply previously undisclosed (and\nunevaluated) substitute PPE sourced from previously undisclosed (and unvetted) alternate suppliers.\n\n\n\n 28\n\fTranscendence offered to supply certain substitute products by April 28, 2021,\nseeking a 51-day extension of the 45-day contract. 18 ECF 43-2 at 10–11.\n\n Servant similarly offered to supply 50 million SGH nitrile examination gloves\nfrom Chinese OEM Dong Tai (MPNs SGHNEG-S/-M/-L/-XL) and deliver them to\nthe designated distribution warehouse by April 26, 2021. See ECF 37-1 at 471–73\n(Servant offer); ECF 49-1 at 9 (Servant contract “item information”). Pre-award,\nthe Contracting Officer stressed the strict 45-day deadline for 100% of the\ncontracted quantity, and that “Glove substitutions are not allowed.” See ECF 37-1\nat 542 (attaching product photographs Servant submitted and stressing delivery to\nthe warehouse shall match). Servant assured the VA of the company’s ability to\nperform and timely deliver the specified PPE, even offering to increase the quantity\nfour-fold within the same contract performance period. See id. at 539–40\n(guaranteeing ability to deliver 200 million SGH nitrile examination gloves within\n45 days). By the contract deadline of April 26, 2021, Servant delivered no\ncontracted PPE; instead, Servant made one partial delivery of approximately\n10 million substitute nitrile examination gloves (different brand and packaging)\nfrom undisclosed suppliers. See ECF 37-2 at 97; ECF 37-3 at 11–12. For the\nbalance of the contracted quantity, and in response to the VA’s Show Cause Notice,\nServant proposed to deliver more substitute PPE by either May 7 or May 28, 2021,\nseeking a contract extension of 11 days or 32 days. ECF 43-2 at 93–94.\n\n Because Transcendence and Servant “fail[ed] to make timely delivery of\nagreed-upon goods,” a prima facie case of default has been established with respect\nto each supply contractor. Gen. Injectables & Vaccines, 519 F.3d at 1363; accord\nFranconia Assocs. v. United States, 536 U.S. 129, 143–44 (2002) (“Failure by\nthe promisor to perform at the time indicated for performance in the contract\nestablishes an immediate breach.”). Consistent with pre-award confirmation with\neach supplier, and as provided in the initial solicitations and restated in each\ncontract award, “the contract[s] [were] terminated for cause” when plaintiffs failed\nto deliver the specified PPE by the agreed-upon deadline. See ECF 37-1 at 268\n(Transcendence); ECF 49-1 at 6 (Servant); see, e.g., Fin. & Realty Servs., LLC v.\nUnited States, 128 Fed. Cl. 770, 777 (2016) (“As a general rule, ‘the government is\n\n\n\n18In its complaint, Transcendence alleges that the Contracting Officer’s failure to issue the company\na Cure Notice renders its termination for cause invalid. See Transcendence Compl. ¶¶ 20-24 (citing\nFAR 12.403). Transcendence does not appear to raise this issue in its summary judgment motion.\nPutting aside the issue of waiver, a cure notice is necessary “[i]f the contract is to be terminated for\ndefault before the delivery date” and “for a reason other than late delivery.” See FAR 12.403 (c)(1)\n(“The contracting officer shall send a cure notice prior to terminating a contract for a reason other\nthan late delivery.”). Moreover, where, as here, the contractor notifies the government of their\ninability to deliver in the waning days and hours of the contract deadline, no Cure Notice is required.\nFAR 49.607(a) (“If the time remaining in the contract delivery schedule is not sufficient to permit a\nrealistic cure period of 10 days or more, the Cure Notice should not be issued.”).\n\n\n\n 29\n\fentitled to strict compliance with contract specifications.’”) (quoting TEG–Paradigm\nEnv’t, Inc. v. United States, 465 F.3d 1329, 1342 (Fed. Cir. 2006)).\n\n B. Repudiation: Noble\n\n Following the VA’s evaluation of the various nitrile examination gloves\nNoble offered, the VA awarded Noble a contract to supply 25 million mCare nitrile\nexamination gloves from Thai OEM Mercator (MPNs 8859185200185/192/208/215)\nand deliver them to the designated distribution warehouse by June 8, 2021. See\nECF 37-3 at 150–62 (Noble providing photographs of Mercator mCare packaging\nand confirming MPNs); id. at 177 (Noble contract “item information”). Pre-award,\nthe Contracting Officer similarly reiterated the firm 45-day delivery deadline for\n100% of the contracted quantity, and that “Glove substitutions are NOT allowed.”\nId. at 165; accord id. (“Glove boxes to be delivered shall match the ones submitted\nin your submission.”). Noble assured the Contracting Officer of the company’s\nability to perform and timely deliver the specified PPE. Id. at 167 (“I confirm and\nattest that you will receive 25 million mCare gloves in [the 45-day delivery]\ntimeframe.”). On May 17-18, 2021–three weeks ahead of the June 8, 2021 delivery\ndeadline—Noble made two unannounced partial deliveries of substitute nitrile\nexamination gloves, some were mCare brand but bore different MPNs and others\nwere a different brand entirely and from a previously undisclosed supplier. In\nresponse to the VA’s Cure Notice, Noble offered to continue providing substitute\nPPE. See ECF 37-4 at 42–46.\n\n Noble’s repudiation of the company’s contractual requirements justified the\ndefault termination. See, e.g., Danzig v. AEC Corp., 224 F.3d 1333, 1337–40\n(Fed. Cir. 2000) (default termination justified based on contractor’s repudiation and\nfailure to provide adequate assurances in response to Cure Notice). Once Noble\ncommunicated to the VA Contracting Office that the company would continue\nto supply only substitute PPE and, concomitantly, failed to provide adequate\nassurances of future performance in response to the Cure Notice, the government\nhad the option of awaiting the delivery deadline to confirm Noble’s failure to\nperform or treat Noble’s renunciation as a breach. See Franconia Assocs., 536 U.S.\nat 143 (“[T]he promisor’s renunciation of a ‘contractual duty before the time fixed in\nthe contract for . . . performance’ is a repudiation. Such a repudiation ripens into a\nbreach prior to the time for performance only if the promisee “elects to treat it as\nsuch.” (citations omitted)); Restatement (Second) of Contracts (“Restatement”) § 250\n(1981) (“[L]anguage that under a fair reading ‘amounts to a statement of intention\nnot to perform except on conditions which go beyond the contract’ constitutes a\nrepudiation.”). Noble’s repudiation, accompanied by non-performance ahead of the\ndelivery deadline, “give[s] rise to a claim for total breach.” Restatement § 243(b).\n\n\n\n\n 30\n\f C. Government’s Best Interests\n\n Plaintiffs question whether the Contracting Officer’s decisions to terminate\ntheir respective PPE supply contracts were in the best interests of the government,\narguing that re-procurement would take longer than awaiting plaintiffs’ delayed\ndeliveries and accepting substitute PPE. As an initial matter, in a related bid\nprotest, the Government Accountability Office (GAO) rejected Noble’s argument\nthat the VA’s award of other PPE supply contracts under the same solicitation\nwere unlawful re-procurements, finding that they “were made under the existing\nsolicitation and were not re-procurements.” The Noble Att’y, LLC; Am. Med. Equip.,\nInc., B-419884 et al., 2021 CPD ¶ 276, 2021 WL 3602132, at *4 (Comp. Gen. Aug. 2,\n2021). Indeed, as detailed supra, rather than award one contract for the delivery of\n“hundreds of millions” of nitrile examination gloves, the VA purposely awarded a\nseries of “smaller quantity” contracts under the same solicitations. See ECF 37-1 at\n3–7 (Contracting Officer statement outlining contract awards); id. at 90 (January 6,\n2021 solicitation) (“The Government intends to award one or more firm fixed price\ncontracts resulting from this solicitation.”); id. at 382 (February 9, 2021 solicitation)\n(same); see also ECF 43-3 (Dickey Dep. Tr.) at 22–23 (VA awarded total of fourteen\ncontracts under the solicitations at issue); id. at 28 (“We were in a multiple award\nscenario situation. . . . [E]ach offer was put through the same system and it was\nindependent of the other offers.”). Such contracting effort increased the likelihood\nthat any contractor’s failure to perform would not impair the needs of VA medical\nstaff. ECF 43-3 at 54 (“VA [personnel] do have the gloves to support what they\nneed” at the time when plaintiffs’ contracts were terminated).\n\n Moreover, the VA’s terminations for default were based on plaintiffs’ failures\nand confirmed inabilities to deliver the specified PPE by the contract deadlines.\nPre-award, Transcendence, Servant, and Noble each represented that they could\nsupply 300 million, 350 million, and 25 million, respectively, of the nitrile\nexamination gloves they proposed, and that the PPE was “already produced,”\n“on-hand,” “in stock,” and “available for immediate delivery.” See ECF 37-1 at 121\n(Transcendence); id. at 470 (Servant); ECF 37-3 at 131–33 (Noble). Post-award,\neach contractor sought to deliver substitute products sourced through previously\nundisclosed suppliers and requested contract extensions. Transcendence did not\nreveal its plan until four days before the delivery deadline and sought a nearly\ntwo-month contract extension. ECF 37-1 at 318; ECF 43-2 at 10–11. In turn,\ndespite the VA’s pre-award communications stressing strict adherence to the\ndelivery deadline and impermissibility of product substitutions, Servant and Noble\nmade partial deliveries of substitute PPE from previously undisclosed suppliers—\nand only revealed their plans following the VA’s inspections—and both sought\nextensions. See, e.g., ECF 43-2 at 95, 97; ECF 37-4 at 40; ECF 43 at 44. These\ndiscoveries and untimely disclosures clearly undermined plaintiffs’ representations\nregarding their ability to perform, even if granted the requested contract\n\n\n\n\n 31\n\fextensions. 19\n\n “Well-established precedent holds that the government is entitled to strict\ncompliance when it contracts for goods.” Hannon Elec. Co. v. United States,\n31 Fed. Cl. 135, 147 (1994), aff’d, 52 F.3d 343 (Fed. Cir. 1995). Based on plaintiffs’\nquotes, the VA contracted for the exact PPE plaintiffs proposed, represented to have\non hand, and committed to timely deliver. After securing the purchase orders,\nplaintiffs sought to change the material terms of their respective contracts to allow\nthem to supply substitute products sourced from undisclosed suppliers on extended\ntimelines. Allowing a contractor to unilaterally modify material contract terms\nafter-the-fact, however desirable to the contractor, does not the serve the best\ninterests of the government.\n\n Based on plaintiffs’ pre-award commitments and post-award performance,\nthe Contracting Officer consulted the procurement team, agency officials, and legal\ncounsel and “determined that terminating [plaintiffs’ contracts] for cause was in\nthe best interest of the Government.” ECF 37-4 at 55 (Worsham Decl. at ¶ 22)\n(“[E]ach contractor failed to adhere to the terms and conditions of the contract. The\nperformance requirements were clearly expressed in the solicitation and awards, as\nwere the consequences for failure to perform.”); see ECF 43-4 (Worsham Dep. Tr.)\nat 40–41 (explaining considerations and process for termination); accord ECF 43-3\n(Dickey Dep. Tr.) at 54 (“[I]t is in the government’s interest, when there’s an\nagreement made between a contractor and the government, that the government\ngets what is intended from the contract.”). The circumstances surrounding each\nplaintiff’s failure and confirmed inability to perform, discussed supra, fully support\nthe Contracting Officer’s determinations. See Nuclear Rsch. Corp., 814 F.2d at 650–\n51 (finding default termination proper where factual circumstances support\ncontracting officer’s informed decision that termination would be in best interest\nof the government).\n\nIII. Excusable Delay: Transcendence and Servant\n\n A. “On Hand” PPE and 45-Day Delivery\n\n Against the backdrop of the rampant spread of COVID-19 and increasing\nPPE demand in VA healthcare facilities nationwide, the VA issued the solicitations\nat issue for “on-hand (or already in existence)” nitrile examination gloves available\nfor delivery within 45 days. See ECF 37-1 at 3; ECF 43-3 (Dickey Dep. Tr.) at 34\n(“we were very specific in [the] solicitation” that it was “a request for on-hand\ngloves, not manufactured gloves”); Orsa Techs., LLC v. Dep’t. of Veterans Affs.,\n\n\n19Noble asserts it “would have been able to finish performance in full, with only a short extension.”\nECF 43 at 44; see also ECF 37-3 at 197 (shipping schedule Noble provided in May 2021 showing\nestimated delivery of the contracted quantity around June 10, 2021).\n\n\n\n 32\n\fCBCA 7141, 22-1 BCA ¶ 38,025, 2022 WL 179215 (Jan. 18, 2022) (“The Government\nissued a solicitation designed to obtain that safety equipment as quickly as possible,\nattempting to guarantee fast delivery by limiting competition to contractors with\nthose materials ‘on hand’ and ‘in-stock,’ with delivery of that ‘on hand’ safety\nequipment to be made within forty-five days after contract award.”). Emphasizing\nthe importance of meeting the 45-day delivery deadline, the solicitations warned\nall potential awardees, including plaintiffs, that the deadline would serve as\nan eligibility requirement and that failure to meet the delivery deadline would\nresult in termination for default. ECF 37-1 at 90 (“Delivery Schedule: To be eligible\nfor award, Offerors must be able to deliver within 45 calendar days from the award\ndate.”); id. at 383 (same); id. at 56 (“Contracts that are awarded based on submitted\nquotes will have 45 calendar days from receipt of order (award date) to deliver the\nawarded quantities, or the contract will be terminated for cause . . . .”) (emphasis\nadded); id. at 348 (same).\n\n Reiterating the unequivocal contract terms, the Statement of Work included\nin each plaintiff’s contract award states: “This is not a request for manufacturing\nbut a request for quantity on hand to be delivered within 45 calendar days from\norder.” See id. at 56 (solicitation associated with Transcendence contract); id. at\n348 (solicitation associated with Servant contract); id. at 268 (Transcendence\ncontract); ECF 49-1 at 6 (Servant contract); ECF 43-3 (Dickey Dep. Tr.) at 62–63\n(“[T]hat language was put into the solicitation and the contract . . . for the vendor’s\nbenefit to know the ramifications of not meeting the contract.”). Moreover,\nthroughout the solicitation and contract award process, and then during the\ncontract performance period, the VA reminded Transcendence and Servant of their\ndelivery deadline. See, e.g., ECF 37-1 at 228 (VA pre-award communication to\nTranscendence stressing “I cannot express how important it is to verify you can\ndelivery within 45 calendar days from Award. If this is a factor then please\nrevise the offer to indicate what can be received at shipping location below within\n45 calendar days.”) (emphasis in original); id. at 541 (VA pre-award communication\nto Servant requesting it confirm ability to deliver within 45 days); id. at 542 (VA\npre-award communication to Servant stressing “The delivery date is set for 26 April\n2021 for 100% qty of gloves being awarded. No extensions will be granted. This\nincludes but is not limited to delays with the manufacturer, the suppliers, shipping\ndelays, customs, and the pandemic.”); id. at 574–75 (VA requests to Servant for\ndelivery updates and reminders of the approaching delivery deadline); ECF 43-2 at\n87 (same); id. at 90–91 (VA communication to Transcendence stressing the strict\ndelivery deadline and that, as stated in “the solicitation and award, . . . it is not a\nrequest for manufacturing but a request for quantity on hand to be delivered within\n45 calendar days,” and that “the contract will be terminated for cause” if\nTranscendence fails to timely deliver). Fully aware from the outset of the firm 45-\nday delivery deadline as well as the risk of default termination, Transcendence and\nServant submitted their quotes and, thereafter, assured the VA Contracting Office\n\n\n\n\n 33\n\fthat the strict deadline would be met. See, e.g., ECF 37-1 at 158, 172, 227–28, 290,\n539–40.\n\n At bottom, in awarding the PPE supply contracts, the VA made clear that the\ngovernment was seeking delivery of the contracted PPE to its warehouses within\n45 days of award. The government was not soliciting a manufacturing contract\n(or subcontract) or entertaining contractors unable to comply with the 45-day\ndeadline or seeking an extension. Plaintiffs accepted the contract awards under\nthese terms: deliver the contracted PPE within 45 days or face termination for\ndefault. That the contracts did not expressly prohibit plaintiffs from procuring the\nPPE from overseas and awaiting the award before securing the necessary supply of\ntheir quoted on-hand PPE does not excuse plaintiffs’ failures to meet the 45-day\ndelivery deadline or justify their demands for an extension. To find otherwise\nwould empower plaintiffs to unilaterally modify a critical contract term\nafter-the-fact despite the VA’s unwavering position on the issue from the outset.\nIt would also burden the government with the calculated risks plaintiffs took in\nnot securing sufficient PPE pre-award or, at a minimum, more accurately tailoring\ntheir pre-award representations to the VA.\n\n B. Shipping Delays\n\n Citing the “excusable delays” clause of their contracts, Transcendence and\nServant assert that container shipping delays amid the global pandemic merited\nextensions of their delivery deadlines. To establish excusable delay, Transcendence\nand Servant must demonstrate that their untimely performance was attributable\nto unforeseeable causes beyond their control and without their fault or negligence.\nSee, e.g., Gen. Injectables & Vaccines, 519 F.3d at 1363. By its terms,\nFAR 52.212-4(f) is not triggered where the contractor or its subcontractor bears\nresponsibility for the delay. Gen. Injectables & Vaccines, 519 F.3d at 1365.\n\n As an initial matter, despite assertions of pandemic-related shipping delays,\nthe record contains no shipping information (e.g., bills of lading, delivery schedule,\nestimated delivery dates) related to the contracted PPE that Transcendence never\ndelivered. Transcendence informed the Contracting Officer that it could not timely\ndeliver the contracted PPE four days before the delivery deadline, simply stating:\n“Medivico has informed us that they will not be able to deliver the required gloves\non schedule due to unforeseen circumstances.” ECF 37-1 at 293–94. The notice\nincluded no explanation of the cause(s) or extent of the delay. The next day, in\nseeking a 59-day contract extension, Transcendence added that Medivico was\n“unable to fulfill their obligation to [Transcendence] due to the current state of the\nPPE market.” Id. at 318; see also id. at 320 (letter from Medivico stating “the PPE\nmarket has been plagued with unforeseen obstacles and unprecedented delays.”).\nThese generalized assertions do not support a finding of excusable delay.\n\n\n\n\n 34\n\f Servant, in turn, blames the March 23-29, 2021 blockage of the Suez Canal.\nSee, e.g., ECF 43-2 at 90. In an April 22, 2021 email—sent a month after the\naccidental grounding of the Ever Given container ship and just four days before\nthe delivery deadline—Servant’s COO, citing two recent media reports, informed\nthe Contracting Officer: “there have been many weeks delay at ports due to\nSuez Canal issue . . . and other extenuating global market conditions due to the\npandemic that are directly affecting the California ports.” ECF 37-1 at 581.\nRepresenting that PPE deliveries would begin on April 23, 2021, the bills of lading\nattached to COO Davis’ April 22, 2021 email are devoid of any international\ntransport schedule (by sea or by air); instead, they appear to be domestic drayage\ndocumentation suggesting that partial PPE deliveries were tentatively scheduled\nfor April 26-27, 2021—on or one day after the contract deadline. See id. 584–91.\nSave COO Davis’ continuing assertions, the record presented does not directly link\nthe international transport of the specific PPE at issue to the cited Suez Canal\nincident. See, e.g., ECF 43-2 at 88, 92.\n\n Transcendence and Servant took on the calculated risks of procuring\nthe contracted PPE from overseas manufacturers, awaiting their contract awards\nbefore seeking to secure the committed quantity, and selecting the mode of\ntranspacific import and domestic drayage. Thus, they are responsible for any\ndelays stemming from these choices. By the time the PPE supply contracts were\nawarded in early 2021—a year into the pandemic—Transcendence and Servant\nshould have considered the possibility of COVID-19-related international shipping\ndelays before committing to source the nitrile examination gloves abroad, transport\nthem by cargo ship, get them through U.S. Customs, and then deliver the PPE to a\ndesignated warehouse in the United States within 45 days. See Orsa Techs., LLC,\nCBCA 7141, 2022 WL 179215 (“Because [the contractor] was well aware of the\npandemic when it executed the contract at issue and was supposed to have had the\ngloves ‘on hand’ when it entered the contract, it cannot use the pandemic as a cause\nof excusable delay.”).\n\n Moreover, despite the contractual requirement for advance coordination with\nthe designated DLA delivery warehouses—and, in Servant’s case, the VA’s explicit\nrequest for “weekly updates”—Transcendence and Servant only revealed their\ninability to make timely deliveries four days before their respective contract\ndeadlines. 20 During the performance period, the Contracting Officer’s repeated\nrequests for updates went answered or were met with vague and unmaterialized\nrepresentations. The supply contractors’ failures to secure and share timely\ndelivery updates during the period of contract performance does not support a\nfinding that the belatedly reported delays were “without . . . fault or negligence.”\nGen. Injectables & Vaccines, 519 F.3d at 1363 (citing FAR 52.212-4(f)). A\n\n As noted supra Servant’s partial delivery (of substitute PPE) ahead of the contract deadline was\n20\n\nmade with no prior notice or coordination.\n\n\n\n 35\n\fcontractor’s mere reference to a listed event under FAR 52.212-4(f) (e.g., delays of\ncommon carriers, pandemic, quarantine restrictions) does not automatically excuse\nnoncompliance particularly where, as here, the contractors accepted calculated risks\nof delayed delivery to increase their profits. See United States v. Brooks-Callaway\nCo., 318 U.S. 120, 124 (1943) (“If fire is always an excuse, a contractor is free to use\ninflammable materials in a tinder-box factory and escape any damages for delay\ndue to a resulting fire.”). Based on the facts presented, excusing the untimely\ndeliveries would “mak[e] the time fixed for completion practically meaningless and\ndepriv[e] the Government of all recompense for the delay.” Id. Transcendence and\nServant have not met their burden of demonstrating that their failures to timely\nperform under their PPE supply contracts were excusable.\n\nIV. Product Substitution\n\n Plaintiffs assert that the VA improperly rejected the substitute PPE they\npartially delivered or offered, claiming that the contracts allow substitute products\nin different packaging from alternative suppliers. In support of their argument,\nplaintiffs maintain that the substitute PPE proposed post-award were functionally\nequivalent to the contracted PPE or were manufactured by the same OEM.\nPlaintiffs’ interpretation of the contractual requirements finds no support in the\ncontracts, the circumstances surrounding the contracting process, or the plaintiffs’\ncommunications and negotiations with the VA.\n\n The purchase orders were awarded for specified PPE with unique MPNs,\nmanufactured by specific OEMs, enclosed in identified branded packaging, sourced\nthrough vetted suppliers, and pre-cleared through the VA’s technical evaluation.\nSee, e.g., ECF 37-1 at 271 (awarded PPE “item information” under Transcendence\ncontract); ECF 49-1 at 9 (same for Servant contract); ECF 37-3 at 177 (same for\nNoble contract); ECF 37-4 at 54–55 (Worsham Decl. ¶ 21) (“The awards made\nwere based on the contractor’s quote which was for a particular brand of nitrile\nglove with specific characteristics, packaging, and item numbers, which had passed\nevaluation and were deemed technically acceptable for quality.”); ECF 43-4\n(Worsham Dep. Tr.) at 49 (“The purpose [for the VA solicitation was] to receive\ngloves that were based on the quotes submitted which includes packaging, technical\ninformation and so forth, so when those were evaluated and approved, those are the\ngloves we would receive.”); id. at 55 (Ensuring the PPE received were from the\nproposed OEM is “not the only thing, no. That’s part, but not the only thing. . . .\n[The gloves must] meet the specifications, but also what we review during the quote\nprocess because that was where the quotes were reviewed, deemed acceptable, and\nthat’s what we were expecting. So that’s what we awarded on.”)\n\n As discussed supra, none of the plaintiffs delivered a single nitrile\nexamination glove specified in their quotes and upon which the purchase orders\nwere awarded. Instead, after declaring post-award that the proffered “on-hand”\n\n\n\n 36\n\fPPE was not available, each plaintiff proposed substitutes product(s) sourced\nfrom previously undisclosed and unvetted sources. See, e.g., ECF 37-1 at 293–94\n(Transcendence substitutes); id. at 318 (Transcendence substitutes); ECF 37-2\nat 100–01 (Servant substitutes); ECF 37-4 at 36–38 (Noble substitutes). The\ncontracts, however, do not obligate the VA to accept plaintiffs’ unilateral post-award\nsubstitutions or otherwise require the government to accommodate plaintiffs’\nfailures to secure the necessary supply of their proposed PPE by, for example,\nvetting new suppliers, testing new products, or granting contract extensions.\n\n “It is settled that the Government is entitled to obtain precisely what it\ncontracts for as long as it does not mislead the contractor.” J.L. Malone & Assocs.,\nInc. v. United States, 879 F.2d 841, 845 (Fed. Cir. 1989) (quoting Am. Elec.\nContracting Corp. v. United States, 579 F.2d 602, 608 (Ct. Cl. 1978)). Nothing in\nthe extensive record presented exhibits misleading conduct on the part of the VA\nContracting Office. From the outset, the VA’s expectations and communications\nwere clear. The solicitations explicitly required bidders to submit documentation\nverifying the proposed PPE was supplied through authorized distribution channels\nand satisfied specified technical specifications. See, e.g., ECF 37-1 at 56–57\n(Statement of Work listing document submission requirements); id. at 348–49\n(same); id. at 82–83 (“Instructions to offerors” reiterating document submission\nrequirements); id. at 375–76 (same). The solicitations further required the\nsubmission of clear photographs of the proposed PPE packaging and the nitrile\nexamination gloves. See, e.g., id. at 109, 376. Incorporating the pertinent VAAR\nprovisions, moreover, the solicitations prohibited gray market and counterfeit items\nand required supporting documentation from the OEM. See, e.g., id. at 68, 116, 360;\nECF 43-4 (Worsham Dep. Tr.) at 54 (“[I]f the quote submission is not from the\nOEM, then the person who is submitting quote needs to submit those letters [from\nthe OEM] to show that they are authorized to basically sell those particular gloves\nfrom the OEM.”); see also Orsa Techs., LLC, CBCA 7141, 2022 WL 179215 (“The\nsolicitation also made clear that the VA had concerns about gray market products\nthat might not provide the type of protections against COVID-19 and other diseases\n. . . and the VA was entitled to assurance that the products it was purchasing to\nprotect against the spread of COVID-19 were of sufficient quality.”) The\nsolicitations forewarned offerors that failure to submit the required documentation\nwould render their quote ineligible for award. See, e.g., ECF 37-1 at 82–83, 109,\n111–12, 331–32, 375–76.\n\n Aware of these specific requirements, and touting significant supplies\nof nitrile examination gloves on-hand, Transcendence, Servant, and Noble\nsubmitted product documentation for their proposed PPE. See ECF 37-1 at 121\n(Transcendence claiming 300 million proposed PPE on hand); id. at 470 (Servant\nclaiming 350 million proposed PPE on hand); ECF 37-3 at 131–33 (Noble claiming\n25 million proposed PPE on hand). The VA evaluated each quote based on the\ndocumentation submitted, conducting quality assurance technical reviews and\n\n\n\n 37\n\fvetting distributors. See, e.g., ECF 37-4 at 51–53 (Worsham Decl. ¶¶ 4–5, 9–10, 15–\n16) (discussing evaluation of plaintiffs’ quotes); ECF 43-3 (Dicky Dep. Tr.) at 25–26\n(explaining VA’s evaluation process). Where, as with Noble, a contractor proposed\nmultiple PPE of different brands and sources, the VA evaluated each brand and\nsource and proceeded only with those that met the solicitation’s technical\nrequirements. See, e.g., ECF 37-4 at 54 (Worsham Decl. at ¶ 20) (“Contractors\nwere allowed to submit quotations for different gloves to be evaluated, and the\nGovernment would evaluate each glove offered.”) (emphasis in original); ECF 37-3\nat 132–33 (after requesting and reviewing additional product documentation, the\nVA notified Noble that only one proposed PPE passed the technical evaluation).\n\n Throughout the solicitation and award phases, and during the contract\nperformance period, the Contracting Officer stressed the no-substitution\nrequirement. With Servant and Noble, the Contracting Officer “re-addressed,”\n“re-confirmed,” and “overcommunicat[ed]” that substitutions were disallowed\nimmediately prior to the contractors’ acceptance of the award. See, e.g., ECF 37-1\nat 317, 542; ECF 37-3 at 165. Prior to issuing Servant and Noble their purchase\norders, the Contracting Officer also emphasized that the deliveries had to match\nthe product photographs submitted in the supply contractors’ quotes. See, e.g.,\nECF 7-1 at 542 (“Attached are the boxes that were submitted with your quote.\nBoxes received by the warehouse shall match.”); ECF 37-3 at 165 (“Gloves boxes\nto be delivered shall match the ones submitted in your submission.”); ECF 43-4\n(Worsham Dep. Tr.) at 59 (“[T]he specific purpose of the gloves arriving in a\nparticular box . . . [is] [t]o make sure they match what was reviewed during the\nquote, make sure that the part numbers matched. To basically make sure what\nwe get what we awarded for and reviewed.”).\n\n The purchase orders awarded to Transcendence, Servant, and Noble were\nbased exclusively on the PPE proposed by each contractor in their respective quotes\nand approved by the VA Contracting Office; post-award substitutions were never\ncontemplated or discussed, let alone approved by the government. See, e.g., ECF\n43-3 (Dicky Dep. Tr.) at 53 (“At no time during any of the [] solicitations for Nitrile\ngloves did [the VA] ever discuss amending the solicitation or the award to accept\nsubstitutions. That was one of the things that was forbidden.”). The contracts do\nnot grant or otherwise afford plaintiffs the right to insist that the VA accept\npurported equivalents or substitutes sourced post-award from undisclosed and\nunvetted suppliers, or “insist that the VA undertake additional post-award efforts\nto review additional products, potentially one after the other, for technical\n\n\n\n\n 38\n\facceptability.” 21 Orsa Techs., LLC, CBCA 7141, 2022 WL 179215 (citing Am. Elec.\nContracting Corp., 579 F.2d at 608). The VA issued solicitations for PPE on hand,\nconducted evaluations and vetting pre-award, and conveyed the no-substitution\npolicy to each plaintiff; therefore, the VA bore no obligation to expend the\npost-award effort to assist plaintiffs in finding acceptable substitutes. See ECF 37-4\nat 54–55 (Worsham Decl. ¶¶ 20–21) (“Allowing awarded contractors to change\nthe terms of the contract and provide another glove after award would amount to\nunequal treatment with pre-award quoters and other potentially interested parties\nand would be unfair. In addition, it would likely expose the []VA to post-award\nbid protests.”)\n\n Additionally, plaintiffs’ self-serving claims regarding the quality of substitute\nPPE lack clear evidentiary support as illustrated by certain deficiencies. Despite\nthe required OEM letter verifying authorized distribution channels, Transcendence\nprovided no OEM documentation for either of its proposed post-award substitutes\n(i.e., Kimberly-Clark KC500 or Synguard). See ECF 37-1 at 315 (ATX Capital\nManagement, proposed supplier for Kimberly-Clark substitutes, 22 represented itself\nas “either the Manufacturer, Authorized Distributor, Authorized Sub Distributor or\nTitle Holder” (emphasis added)); id. at 322 (undated letter from PharmacyGo,\nproposed supplier for Synguard substitutes, included no mention of the OEM).\nServant, in turn, provided no OEM confirmation of the authorized distributor status\nfor one of the two claimed substitute suppliers, the product photographs included in\nthe SGS documentation do not match Servant’s partially delivered substitute PPE,\nand Servant failed to disclose any information about two of the suppliers involved in\nits partial delivery of substitute products. In Noble’s case, other than an assertion\nthat the OEM changed packaging at some unspecified point in time, Noble supplied\nno product literature for the three substitutes it partially delivered. The record\nis devoid of any information submitted by Noble regarding the specifications, MPNs,\nor technical capabilities for any of the three substitutes offered. Plaintiffs’ deficient\n\n21In arguing the permissibility of substitution, plaintiffs rely on Sherwin v. United States, 436 F.2d\n992, 1001 (Ct. Cl. 1971), and Jack Stone Co. v. United States, 344 F.2d 370, 376 (Ct. Cl. 1965). The\ncontracts and circumstances in those cases are readily distinguishable from those presented here.\nBoth Sherwin and Jack Stone involved the same standard-of-quality contract clause that explicitly\nallowed contractors to supply substitute products if approved by the government. See Sherwin,\n436 F.2d at 999–1001 (discussing application of the standard-of-quality clause at issue in Sherwin\nand in Jack Stone); Jack Stone, 344 F.2d at 375–76 (standard-of-quality clause allowed contractor\nto supply functionally equal substitutes “if the consent of the contracting officer was sought in\nadvance”). The contracts awarded to Transcendence, Servant, and Noble do not contain a similar\ncontract provision, nor is there anything in the record that indicates the VA approved or\ncontemplated substitution; in fact, as detailed supra, the VA repeatedly stressed the opposite.\n\n22The accompanying product literature in Servant’s submission suggests the OEM was Kimberly\nClark Corporation. See, e.g., id. at 301, 308. In addition, the submitted documentation contain\ninformation for products with at least two different FDA 510(K) numbers; the record was unclear\nwhich substitute Transcendence intended to offer. See, e.g., id. at 310–14.\n\n\n\n 39\n\fsubmissions likely would have been rejected during the VA’s initial evaluation of\nquotes; accordingly, there is no reason to find that they should have been accepted\nby the VA post-award.\n\nV. Implied Duty of Good Faith & Fair Dealing\n\n Finally, plaintiffs argue that, in not extending the contract deadlines to allow\ntheir late deliveries of substitute PPE, the government violated its implied duty of\ngood faith and fair dealing. “The duty of good faith and fair dealing is inherent in\nevery contract. In essence, this duty requires a party to not interfere with another\nparty’s rights under the contract.” Precision Pine & Timber, Inc. v. United States,\n596 F.3d 817, 828 (Fed. Cir. 2010) (citing Restatement § 205). As explained by the\nFederal Circuit:\n\n Cases in which the government has been found to violate the implied\n duty of good faith and fair dealing typically involve some variation on\n the old bait-and-switch. First, the government enters into a contract\n that awards a significant benefit in exchange for consideration. Then,\n the government eliminates or rescinds that contractual provision or\n benefit through a subsequent action directed at the existing contract.\n The government may be liable for damages when the subsequent\n government action is specifically designed to reappropriate the benefits\n the other party expected to obtain from the transaction, thereby\n abrogating the government’s obligations under the contract.\n\nId. at 829 (internal citations omitted). What the precise duty of good faith and fair\ndealing entails in a particular case “depends in part on what that contract promises\n(or disclaims).” Id. at 830.\n\n In this case, as discussed supra, the express language of the contracts—fully\nsupported by the parties’ pre- and post-award communications—required delivery\nof the specific PPE plaintiffs proposed (which the VA vetted and approved) and\nrequired delivery within 45 days. The contracts further noted that no extensions\nwould be granted and that plaintiffs’ failure to timely deliver would result in a\ntermination for cause. Accordingly, as in Precision Pine & Timber, Inc., “[t]here are\nno . . . indicia of a governmental bait-and-switch or double crossing at work here.”\nId. at 829. In terminating plaintiffs’ contracts, the Contracting Officer did not\n“specifically target” plaintiffs, nor did it “reappropriate any ‘benefit’ guaranteed by\nthe contracts.” Id. The contracts did not provide that extensions of time would be\ngranted or that post-award substitution of PPE sourced from undisclosed entities\nwould be accepted; in fact, both were prohibited.\n\n Put simply, the “implied duty of good faith and fair dealing cannot expand\na party’s contractual duties beyond those in the express contract or create duties\n\n\n\n 40\n\finconsistent with the contract’s provisions.” Metcalf Const. Co. v. United States,\n742 F.3d 984, 991 (Fed. Cir. 2014) (quoting Precision Pine & Timber, Inc., 596 F.3d\nat 831). Plaintiffs accepted the unequivocal terms to deliver the specified PPE to\nthe designated DLA warehouses within 45 days or risk default termination. The\nimplied duty of good faith and fair dealing, “limited by the original bargain,” does\nnot justify modifying the terms as plaintiffs now wish, allowing plaintiffs to reap\nthe benefit of the bargains while insulating them from the consequences of the\ncalculated risks they undertook in contract performance. Id. (implied duty of good\nfaith cannot “alter[] the contract’s discernible allocation of risks and benefits” or\n“conflict[] with a contract provision.”). 23 Accordingly, the Court finds that the\ngovernment did not breach its implied duty of good faith and fair dealing.\n\n CONCLUSION\n\n For the reasons stated above, defendant’s motion for summary judgment\n(ECF 37) is GRANTED and plaintiffs’ cross-motion for summary judgment\n(ECF 43) is DENIED. The Clerk is directed to ENTER judgment accordingly.\n\n IT IS SO ORDERED.\n\n\n\n ___________________\n Armando O. Bonilla\n Judge\n\n\n\n\n23In further support of this argument, plaintiffs reiterate their contention that the terminations\nwere not in the best interest of the government. For the reasons stated supra, the Court finds this\nargument unpersuasive.\n\n\n\n 41\n\f", "ocr": false, "opinion_id": 7798729 } ]

"2022-07-28"

[ "2022 Ohio 2660" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 3, "download_url": "https://www.supremecourt.ohio.gov/rod/docs/pdf/13/2022/2022-Ohio-2660.pdf", "author_id": null, "opinion_text": "[Cite as Welin v. Hamilton, 2022-Ohio-2660.]\n\n\n\n\n PETER WELIN, ESQ Case No. 2021-00748PQ\n\n Requester Judge Patrick E. Sheeran\n\n v. DECISION AND ENTRY\n\n CITY OF HAMILTON, OHIO\n\n Respondent\n\n {¶1} Requester Peter Welin, Esq. partially objects to a Special Master’s Report and\nRecommendation in this public-records case. The Court overrules Welin’s partial\nobjections for reasons set forth below.\n I. Background\n {¶2} On December 29, 2021, Welin filed a public-records complaint against\nRespondent City of Hamilton, Ohio (City). Welin alleged that, among other things, the\nCity’s denial of his public-records request of July 6, 2021 violated R.C. 149.43(B).\n {¶3} The Court appointed a Special Master, who referred the case to mediation.\nAfter mediation failed to successfully resolve all disputed issues between the parties, the\nCourt returned the case to the Special Master’s docket.\n {¶4} On April 1, 2022, the City responded to Welin’s complaint. On July 5, 2022,\nthe Special Master issued a Report and Recommendation (R&R). The Special Master\nrecommends (1) denying Welin’s claim for production of records, (2) finding that the City\nfailed to provide Welin with “the information required when denying a request on the\nground that it is ambiguous and overly broad, in violation of R.C. 149.43(B)(2),” and (3)\nassessing costs equally between the parties. (R&R, 13.)\n {¶5} On July 14, 2022, Welin filed partial objections to the Special Master’s R&R.\nWelin certifies that, on July 14, 2022, a copy of his partial objections was served upon the\nCity’s counsel and upon the City via certified mail, return receipt requested, and by email.\nThereafter, on July 25, 2022, the City filed a response to Welin’s partial objections. The\n\fCase No. 2021-00748PQ -2- DECISION & ENTRY\n\n\nCity’s counsel certifies that he sent a copy of the City’s response to Welin via email and\nU.S. mail on July 25, 2022. The City maintains that the Special Master correctly found\nthat the City properly denied Requester’s public-records request of July 6, 2021. The City\nasks the Court to adopt the Special Master’s Report and Recommendation.\n II. Law and Analysis\n {¶6} R.C. 2743.75(F)(2) governs objections to a special master’s report and\nrecommendation. Under R.C. 2743.75(F)(2), either party “may object to the report and\nrecommendation within seven business days after receiving the report and\nrecommendation by filing a written objection with the clerk and sending a copy to the other\nparty by certified mail, return receipt requested. * * * If either party timely objects, the other\nparty may file with the clerk a response within seven business days after receiving the\nobjection and send a copy of the response to the objecting party by certified mail, return\nreceipt requested. The court, within seven business days after the response to the\nobjection is filed, shall issue a final order that adopts, modifies, or rejects the report and\nrecommendation.”\n {¶7} R.C. 2743.75(F)(2) requires that any objection to a report and\nrecommendation “shall be specific and state with particularity all grounds for the\nobjection.” In the partial objections, Welin objects to the Special Master’s\nrecommendations for the denial of his claim for production of records and for the equal\nassessment of cost between the parties. Welin does not, however, object to the Special\nMaster’s recommendation for a finding that the City violated R.C. 149.43(B)(2) by failing\nto provide him with certain required information when it denied a request on grounds of\nambiguity and overbreadth.\n {¶8} Welin maintains that his request “was neither ambiguous nor overly broad”\nwhen he sought records, which Welin contends, the City kept concerning the\ndevelopment of four hydroelectric power plants.\n\fCase No. 2021-00748PQ -3- DECISION & ENTRY\n\n\n {¶9} Upon review, the Court finds that the Special Master’s recommendations are\ncorrectly based on the ordinary application of statutory and case law as they existed at\nthe time that Welin filed his Complaint. Welin’s partial objections therefore are not well-\ntaken.\n III. Conclusion\n {¶10} The Court OVERRULES Welin’s partial objections. The Court adopts the\nSpecial Master’s Report and Recommendation. In accordance with the Special Master’s\nrecommendations, the Court denies Welin’s claim for production of records, finds that the\nCity failed to provide Welin with certain required information under R.C. 149.43(B)(2), and\nassesses court costs equally between the parties. Pursuant to R.C. 2743.75(F)(3)(b), as\nan aggrieved person, Welin is entitled to recover from the City the amount of the filing fee\nof twenty-five dollars and any other costs associated with the action that are incurred by\nWelin, but Welin is not entitled to recover attorney fees. The clerk shall serve upon all\nparties notice of this judgment and its date of entry upon the journal.\n\n\n\n\n PATRICK E. SHEERAN\n Judge\n\n\nFiled July 28, 2022\nSent to S.C. Reporter 8/4/22\n\f", "ocr": false, "opinion_id": 7798826 } ]

"2023-05-30"

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 26, "download_url": "http://www.courts.state.va.us/opinions/opncavwp/0505214.pdf", "author_id": null, "opinion_text": " COURT OF APPEALS OF VIRGINIA\n\n\n Present: Chief Judge Decker, Judges Humphreys, Beales, Huff, O’Brien, AtLee, Malveaux,\nPUBLISHED\n\n\n Athey, Fulton, Ortiz, Causey, Friedman, Chaney, Raphael, Lorish, Callins and White\n Argued at Richmond, Virginia\n\n\n TERESA MARY MAUST\n OPINION BY\n v. Record No. 0505-21-4 JUDGE MARY BENNETT MALVEAUX\n MAY 30, 2023\n COMMONWEALTH OF VIRGINIA\n\n\n UPON A REHEARING EN BANC\n\n FROM THE CIRCUIT COURT OF STAFFORD COUNTY\n J. Bruce Strickland, Judge1\n\n Andrew J. Cornick (Andrew J. Cornick, LLC, on brief), for\n appellant.\n\n Timothy J. Huffstutter, Assistant Attorney General (Jason S.\n Miyares, Attorney General, on brief), for appellee.\n\n\n Teresa Mary Maust (“appellant”) appeals her conviction for distribution of a Schedule I or II\n\n controlled substance, in violation of Code § 18.2-248. Before a panel of this Court, appellant\n\n argued that the trial court erred in finding that the evidence was sufficient to prove that she\n\n distributed oxymorphone because no rational trier of fact could have concluded that the evidence\n\n reasonably excluded her theory of innocence. A panel majority of this Court reversed appellant’s\n\n conviction. Maust v. Commonwealth, No. 0505-21-4 (Va. Ct. App. Aug. 9, 2022). We granted the\n\n Commonwealth’s petition for rehearing en banc and stayed the mandate of the panel’s decision.\n\n Upon rehearing en banc, we affirm the trial court.\n\n\n\n\n 1\n Judge J. Bruce Strickland entered the final sentencing order in this case. Judge Charles\n S. Sharp presided over appellant’s trial and entered the conviction order.\n\f I. BACKGROUND\n\n “[W]e review factfinding with the highest degree of appellate deference.”\n\nCommonwealth v. Barney, ___ Va. ___, ___ (Mar. 16, 2023) (quoting Bowman v.\n\nCommonwealth, 290 Va. 492, 496 (2015)). “In accordance with established principles of\n\nappellate review for a sufficiency of the evidence case, we view the ‘evidence in the light most\n\nfavorable to the Commonwealth, as we must since it was the prevailing party in the trial court.’”\n\nPeters v. Commonwealth, 72 Va. App. 378, 383 (2020) (quoting Riner v. Commonwealth, 268\n\nVa. 296, 330 (2004)). Therefore, we will “discard the evidence of the accused in conflict with\n\nthat of the Commonwealth, and regard as true all the credible evidence favorable to the\n\nCommonwealth and all fair inferences to be drawn therefrom.” Kelley v. Commonwealth, 289\n\nVa. 463, 467-68 (2015) (quoting Parks v. Commonwealth, 221 Va. 492, 498 (1980)).\n\n On October 1, 2018, Stafford County Detective Shawn Monaghan used a confidential\n\ninformant, Robert Gale, to conduct a controlled buy of three oxymorphone pills from appellant.\n\nMonaghan searched Gale and his car at a staging area before the controlled buy, finding neither\n\ndrugs nor money. Monaghan “directed” Gale to go to appellant’s residence to buy the pills.\n\nMonaghan expected each pill to cost about $100 and understood that Gale owed appellant some\n\nmoney, so he provided Gale with $320 in cash. Monaghan photographed the cash to record the\n\nserial numbers and denominations. He also equipped Gale with an audio-only recording device,\n\nwhich did not permit Monaghan to listen in real time.\n\n At trial, Monaghan testified that he did not recall Gale’s girlfriend, Tiffany Love,\n\naccompanying Gale on October 1, 2018, but an unidentified woman can be heard on the audio\n\nrecording speaking with Gale during the drive to and from appellant’s house. A few minutes\n\nbefore Gale arrived at the house, Gale told his companion, “Text her and say here.” While the\n\nentire conversation between Gale and the woman cannot be heard clearly on the audio recording,\n\n -2-\n\fno audible conversation indicates that Gale gave money to his companion or received pills from\n\nher.\n\n Monaghan followed Gale’s car to appellant’s street but lost sight of it after Gale entered\n\nappellant’s driveway. Other cars were in the driveway, but Monaghan did not recall whether\n\nthere were other vehicles in the home’s garage.\n\n The audio device recorded Gale entering appellant’s house and exchanging greetings\n\nwith appellant.2 They then discussed some “new” kitchen appliances that appellant claimed were\n\nworth over $3,000 and wanted to sell for $1,000. Gale gave appellant $270, which she verbally\n\nacknowledged receiving. After discussing the kitchen appliances again, appellant said, “Give me\n\na second,” and Gale responded, “Okay. Alright. I’ll be outside.” Gale left the house to wait;\n\nappellant followed two minutes later, and they again spoke about the appliances before Gale left.\n\nGale was in appellant’s home for about ten minutes.\n\n The audio recording from inside appellant’s home is inaudible at certain points. The only\n\naudible conversation was between Gale and appellant, although Monaghan acknowledged at trial\n\nthat an unidentified woman’s voice could also be heard on the portion of the audio recording\n\nfrom inside the house. At one point during this portion of the audio recording, Gale and the\n\nunidentified woman seem to exchange greetings, but he did not have any additional conversation\n\nwith her. Appellant testified at trial that she could hear the voice of Sue Stone, a woman who\n\nlived with her, on the audio recording.\n\n Gale drove back to the staging area with Monaghan following him. Gale’s companion\n\nwas recorded speaking with him during this drive, and the recording includes no audible\n\nconversation about exchanging money or pills. Monaghan retrieved the recording device,\n\n\n\n 2\n At trial, Monaghan identified appellant’s voice on the recording based on his\nface-to-face interview with appellant.\n -3-\n\fsearched Gale and his vehicle, and confirmed that Gale no longer had the buy money, although\n\nhe did have $16 in cash. Monaghan also found three pills on Gale’s person that subsequent lab\n\nanalysis determined were oxymorphone, a Schedule II controlled drug.\n\n Gale died before trial. Monaghan testified at trial that Gale had been an opioid addict and\n\nthat he had been convicted of multiple felonies.\n\n Monaghan searched appellant’s house the day after the controlled buy, finding\n\n“numerous pills,” “pill crushers,” a “pill press,” “numerous prescription bottles for different\n\nnarcotics, the majority of which were empty,” and a “large amount” of currency. In appellant’s\n\nbedroom, police found $138 and an additional $4,351 in a safe.3 Among the contents of the safe,\n\nMonaghan identified $270 of the $320 he had provided Gale to make the controlled buy.\n\n The cash in the safe was in an envelope that had handwritten notations which Monaghan\n\ndescribed as indicating “pills or . . . money,” and columns of numbers he described as “totals.”4\n\nMonaghan characterized this envelope as an “owe sheet[],” which he explained was used by drug\n\ndealers “to keep track of drugs that they front or give to people on credit.”\n\n While the search was underway, appellant arrived and was interviewed by Monaghan.\n\nWhen confronted by Monaghan about pill sales at her home, she first told Monaghan that her\n\nex-husband stole her prescription pills, which she had for a “legitimate prescription,” and any\n\ndrug sales conducted at the house should be attributed to him. Appellant said that she purchased\n\nthe safe to keep her pills away from her ex-husband and that she only began using the safe to\n\n\n\n 3\n Appellant provided Monaghan the combination to the safe.\n 4\n The first set of notations, a column, are as follows: “B = 11[,] G = 17[,] J = 121[,]\nH = 25[,] L = 19.” The second set of notations, also a column, is partially concealed on the\nCommonwealth’s exhibit, but the notations that can be read are “850 2450 250 95,” all above a\nline, and then the number “4710” below the line. A third set, another column, have the numbers\n“1210 1210” above a line, with “2420” below the line, and then “419” and “5” above another\nline with “95” below that line.\n -4-\n\fstore money once her ex-husband moved out of the house. In addition to her ex-husband,\n\nappellant also stated that a woman named Briana Perry was responsible for any pill sales at her\n\nhouse.\n\n When Monaghan told appellant that two of her pills were found on Sue, she claimed that\n\nshe gave them to Sue to “hold on to for [appellant],” although she later admitted that she gave\n\nthe pills to Sue to use, but only because Sue had the same prescription as appellant. She also\n\nsaid that she sometimes lent pills to other people but again denied selling them. While looking at\n\nappellant’s phone, Monaghan told appellant that “Greg Murphy is talking to you about getting\n\npills,” which appellant denied. She then admitted that she sometimes allowed Murphy to borrow\n\npills.\n\n According to Monaghan, during the interview appellant “surmised” that Gale was the\n\nconfidential informant and then told him that any money she took from Gale was for a debt Gale\n\nowed to her. Regarding Gale, appellant told Monaghan that he “comes to me when he runs out,”\n\nand “sells more than I do.”\n\n Appellant also told Monaghan that her safe contained around $4,500 and that she had\n\nwithdrawn the money from her bank so she could find a new place to live because her house was\n\nin foreclosure. She said she had withdrawn the money in stages—writing “a $2,000 check not\n\ntoo long ago,” “tak[ing] out $600 in cash, $300 in cash” at a time, and “socking it to the side.”\n\nAppellant stated that the buy money found in her safe was payment of Gale’s debt to her, which\n\nshe said was “a $100 and something dollars.”\n\n Appellant told Monaghan that her two sons and Sue were the only other persons living in\n\nthe house at the time of the search.\n\n At the close of the Commonwealth’s case-in-chief, appellant moved to strike the\n\nevidence, which the court denied. Thomas Hogan then testified in appellant’s defense, stating\n\n -5-\n\fthat he had been one of nine or ten tenants staying at appellant’s house in October 2018. Hogan\n\nstated that he had collected the rent from the other tenants on the first of each month and then\n\ngave it to appellant. Hogan said he paid $600 in rent, but others “sometimes” paid less. He\n\nclaimed that Gale came to appellant’s house to look at appliances, although Hogan\n\nacknowledged that he was not present when Gale was at the house on October 1, 2018. Hogan\n\ndid not know the combination to appellant’s safe.\n\n Appellant testified that Gale came to her house to look at appliances and to make a down\n\npayment on a compressor and nail gun. She stated that Gale owed her $100 or $150 and that on\n\nthe day of the controlled buy, Gale paid her what he owed plus another $100 or $150 for the\n\ndown payment. As for the owe sheet, appellant claimed that she used a system to track her\n\nmoney in which she “put down eleven for Benjamin,” “G, a George Washington, J, Jefferson,\n\nHamilton”; she could not remember what the “L” stood for, although with prompting from her\n\ncounsel said that it probably stood for “Lincoln,” a “five dollar bill.” She testified that she had\n\nrented rooms in her home, charging between $300 and $600 per month.\n\n After argument by counsel, the trial court convicted appellant of distribution of a\n\nSchedule I or II controlled substance. In its ruling, the trial court found that: (1) Gale was given\n\nbuy money and was searched before making the controlled buy, and no contraband was found on\n\nhim; (2) Gale was in appellant’s home for approximately ten minutes, and the only substantive\n\nconversation that could be clearly heard on the audio recording during that time was between\n\nGale and appellant, and that “[i]n the course of that relatively garbled transmission, one thing is\n\nclear, that at some point there was an exchange of cash money”; (3) Gale then left appellant’s\n\nhouse, and Monaghan again searched him and found three oxymorphone pills and no buy\n\nmoney; and (4) the buy money was found in appellant’s safe during a search and that any person\n\nother than appellant had “limited access” to the safe. The court found that the “only reasonable\n\n -6-\n\finference to be drawn from that set of circumstances is that the transaction went down exactly as\n\nhas been argued by the Commonwealth.”\n\n II. ANALYSIS\n\n Appellant argues that the trial court erred in finding the evidence sufficient to support her\n\nconviction for distributing a Schedule I or II controlled substance because the evidence was\n\ncircumstantial and failed to exclude all reasonable hypotheses of innocence.\n\n “When reviewing the sufficiency of the evidence, ‘[t]he judgment of the trial court is\n\npresumed correct and will not be disturbed unless it is plainly wrong or without evidence to\n\nsupport it.’” Smith v. Commonwealth, 296 Va. 450, 460 (2018) (alteration in original) (quoting\n\nCommonwealth v. Perkins, 295 Va. 323, 327 (2018)). “In such cases, ‘[t]he Court does not ask\n\nitself whether it believes that the evidence at the trial established guilt beyond a reasonable\n\ndoubt.’” Secret v. Commonwealth, 296 Va. 204, 228 (2018) (alteration in original) (quoting\n\nPijor v. Commonwealth, 294 Va. 502, 512 (2017)). “Rather, the relevant question is whether\n\n‘any rational trier of fact could have found the essential elements of the crime beyond a\n\nreasonable doubt.’” Vasquez v. Commonwealth, 291 Va. 232, 248 (2016) (quoting Williams v.\n\nCommonwealth, 278 Va. 190, 193 (2009)). “If there is evidentiary support for the conviction,\n\n‘the reviewing court is not permitted to substitute its own judgment, even if its opinion might\n\ndiffer from the conclusions reached by the finder of fact at the trial.’” Chavez v. Commonwealth,\n\n69 Va. App. 149, 161 (2018) (quoting Banks v. Commonwealth, 67 Va. App. 273, 288 (2017)).\n\nIn addition, “[t]he judgment of the trial court, sitting without a jury, is ‘entitled to the same\n\nweight as a jury verdict.’” Perkins, 295 Va. at 327 (quoting Cole v. Commonwealth, 294 Va.\n\n342, 361 (2017)).\n\n Appellant argues that a reasonable hypothesis of innocence exists—that Gale used the\n\nbuy money to repay a debt to her and that he obtained the three pills from someone other than\n\n -7-\n\fher. Appellant points to the presence of a woman in the car with Gale on the drive to and from\n\nher house5 and to the voice of a woman other than her in the house with Gale.\n\n “Where a controlled purchase of drugs is concerned, ‘without [the informant’s]\n\ntestimony, the evidence proving that the [drugs] came from the defendant’ may be ‘purely\n\ncircumstantial.’” Bennett v. Commonwealth, 69 Va. App. 475, 492 (2018) (alterations in\n\noriginal) (quoting Jones v. Commonwealth, 21 Va. App. 435, 441-42 (1995) (en banc)).\n\n“Circumstantial evidence, if sufficiently convincing, is as competent and entitled to the same\n\nweight as direct testimony.” McCain v. Commonwealth, 261 Va. 483, 493 (2001). But “when\n\nthe evidence is wholly circumstantial . . . all necessary circumstances proved must be consistent\n\nwith guilt and inconsistent with innocence and exclude every reasonable hypothesis of\n\ninnocence.” Haas v. Commonwealth, 299 Va. 465, 468 (2021) (quoting Rogers v.\n\nCommonwealth, 242 Va. 307, 317 (1991)). “This requires an unbroken evidentiary chain of\n\nnecessary circumstances, which satisfies ‘the guarded judgment that both the corpus delicti and\n\nthe criminal agency of the accused have been proved to the exclusion of any other rational\n\nhypothesis and to a moral certainty.’” Commonwealth v. Moseley, 293 Va. 455, 463 (2017)\n\n(quoting Wright v. Commonwealth, 292 Va. 386, 397 (2016)). The “reasonable-hypothesis\n\nprinciple,” however, “is not a discrete rule unto itself” and “does not add to the burden of proof\n\nplaced upon the Commonwealth in a criminal case.” Vasquez, 291 Va. at 249-50 (quoting\n\nCommonwealth v. Hudson, 265 Va. 505, 513 (2003)). “The Commonwealth . . . is not required\n\nto exclude every possibility that others may have committed the crime for which a defendant is\n\n\n 5\n In appellant’s motion to strike and closing arguments, she contended only that the\nevidence was insufficient due to the presence of other voices in the house and did not mention\nthe presence of the woman in the car with Gale. “[U]pon appellate review, the issue of exclusion\nof reasonable theories of innocence is limited to those theories advanced by the accused at trial.”\nCommonwealth v. Hudson, 265 Va. 505, 514 (2003). However, on appeal in this case, the\nCommonwealth has not argued before the panel of this Court or en banc that appellant’s\ncontention regarding the woman in the car is waived under Rule 5A:18.\n -8-\n\fcharged, but is only required to exclude hypotheses of innocence that flow from the evidence.”\n\nDowden v. Commonwealth, 260 Va. 459, 468 (2000). Thus, the reasonable-hypothesis principle\n\n“is ‘simply another way of stating that the Commonwealth has the burden of proof beyond a\n\nreasonable doubt.’” Moseley, 293 Va. at 464 (quoting Hudson, 265 Va. at 513). “It is true that a\n\nfactfinder cannot ‘arbitrarily’ choose, as between two equally plausible interpretations of a fact,\n\none that incriminates the defendant.” Vasquez, 291 Va. at 250 (quoting Dixon v.\n\nCommonwealth, 162 Va. 798, 803 (1934)). An arbitrary choice occurs “only when no rational\n\nfactfinder could believe the incriminating interpretation of the evidence and disbelieve the\n\nexculpatory one.” Id.\n\n On appeal, in reviewing a defendant’s claim that a trial court unreasonably rejected her\n\nhypothesis of innocence, we are mindful that “[w]hether an alternate hypothesis of innocence is\n\nreasonable is a question of fact and, therefore, is binding on [this Court] unless plainly wrong.”\n\nWood v. Commonwealth, 57 Va. App. 286, 306 (2010) (quoting Emerson v. Commonwealth, 43\n\nVa. App. 263, 277 (2004)). “As long as ‘a rational factfinder could reasonably reject [the\n\nappellant’s] theories in his defense and find that the totality of the suspicious circumstances\n\nproved [his guilt] beyond a reasonable doubt,’ the appellate court must affirm the conviction.”\n\nPark v. Commonwealth, 74 Va. App. 635, 654 (2022) (alterations in original) (quoting Moseley,\n\n293 Va. at 466). “[M]erely because [a] defendant’s theory of the case differs from that taken by\n\nthe Commonwealth does not mean that every reasonable hypothesis consistent with his\n\ninnocence has not been excluded. What weight should be given evidence is a matter for the\n\n[factfinder] to decide.” Edwards v. Commonwealth, 68 Va. App. 284, 301 (2017) (second and\n\nthird alterations in original) (quoting Haskins v. Commonwealth, 44 Va. App. 1, 9 (2004)).\n\n Here, we conclude that the trial court did not err in rejecting appellant’s alternate\n\nhypothesis of innocence that Gale obtained three oxymorphone pills on the date of the offense\n\n -9-\n\ffrom someone other than appellant. The Commonwealth’s evidence, viewed in the light most\n\nfavorable to it, demonstrated that Gale went to appellant’s residence with the buy money that\n\nDetective Monaghan provided and with the intention of buying oxymorphone pills from\n\nappellant. After arriving, Gale gave the money to appellant and returned to Monaghan ten\n\nminutes later with three oxymorphone pills. Although Monaghan did not witness the transaction,\n\nthe audio recording demonstrated that Gale interacted with appellant and that she verbally\n\nconfirmed that Gale gave her money. While another person was with Gale on his drive to and\n\nfrom appellant’s house, and another woman could be heard on the audio recorded inside\n\nappellant’s home, there was no recorded conversation between these individuals and Gale\n\nindicating that he exchanged money or pills with them. Moreover, Monaghan followed Gale to\n\nand from appellant’s house and searched him before and after the transaction.\n\n Further, during a search of appellant’s house, police found “numerous pills,” “pill\n\ncrushers,” a “pill press,” “numerous prescription bottles for different narcotics, the majority of\n\nwhich were empty,” and a “large amount” of currency. Police found $4,351 in a safe in\n\nappellant’s bedroom, including $270 of the buy money given to Gale. See Burrell v.\n\nCommonwealth, 58 Va. App. 417, 434 (2011) (“[T]he fact-finder may consider such factors\n\nas . . . the presence of equipment or other items related to drug distribution.”); White v.\n\nCommonwealth, 24 Va. App. 446, 453 (1997) (“Considered with other factors, possession of\n\ncurrency by a defendant may be considered in determining whether he or she possessed drugs\n\nwith an intent to distribute.”). Monaghan also described the envelope containing the cash as an\n\n“owe sheet[],” an item used by drug dealers “to keep track of drugs that they front or give to\n\npeople on credit.”\n\n In addition, in her interview with Monaghan and at trial, appellant provided inconsistent\n\nstatements as to the presence of the cash in her safe and whether she distributed pills to others.\n\n - 10 -\n\fAt trial, appellant testified that Gale repaid a debt he owed her and made a down payment on\n\ncertain tools. She also testified that she had been receiving rent from people living with her.\n\nThat testimony, however, was contradicted by appellant’s statements to Monaghan the day after\n\nthe controlled buy, when she did not mention rental income or Gale making a down payment on\n\ntools. Appellant also told Monaghan that only four people lived in the house—herself, her two\n\nsons, and a woman named Sue.\n\n Moreover, although appellant repeatedly denied that she sold any pills, she implied the\n\nopposite by stating that Gale “comes to me when he runs out” and that he “sells more than I do.”\n\nWhen Monaghan told appellant that two of her pills were found on Sue, appellant first claimed\n\nthat she only gave the pills to Sue so that Sue could give them back later when appellant needed\n\nthem. She then admitted that she gave pills to Sue for Sue’s own use but claimed that she did so\n\nonly because Sue had a prescription for the same pills.\n\n It is well-established that “[d]etermining the credibility of witnesses . . . is within the\n\nexclusive province of the [fact finder], which has the unique opportunity to observe the\n\ndemeanor of the witnesses as they testify.” Dalton v. Commonwealth, 64 Va. App. 512, 525\n\n(2015) (quoting Lea v. Commonwealth, 16 Va. App. 300, 304 (1993)). Moreover, “[i]n its role\n\nof judging witness credibility, the fact finder is entitled to disbelieve the self-serving testimony\n\nof the accused and to conclude that the accused is lying to conceal his guilt.” Speller v.\n\nCommonwealth, 69 Va. App. 378, 388 (2018). “When ‘credibility issues have been resolved by\n\nthe [fact finder] in favor of the Commonwealth, those findings will not be disturbed on appeal\n\nunless plainly wrong.’” Towler v. Commonwealth, 59 Va. App. 284, 291 (2011) (quoting Corvin\n\nv. Commonwealth, 13 Va. App. 296, 299 (1991)). Here, the record demonstrates that appellant\n\nprovided vague, inconsistent, and contradictory explanations for the presence of the cash in her\n\nsafe and as to whether she distributed pills to others. “[A] fact-finder, having rejected a\n\n - 11 -\n\fdefendant’s attempted explanation as untrue, may draw the reasonable inference that his\n\nexplanation was made falsely in an effort to conceal his guilt.” Covil v. Commonwealth, 268 Va.\n\n692, 696 (2004).\n\n Based on the evidence above—including Monaghan’s search of Gale before and after the\n\ncontrolled buy and his receipt of the pills from Gale; the audio recording reflecting the exchange\n\nof money between Gale and appellant; the buy money found in appellant’s safe; the items\n\nindicative of drug distribution found in appellant’s home; and appellant’s inconsistent statements\n\nand statements indicating that she distributed drugs—it is clear the trial court was not plainly\n\nwrong in concluding that the evidence was sufficient to support appellant’s conviction.\n\n Appellant urges us on appeal to discount this evidence and instead focus on the presence\n\nof individuals other than appellant and Gale during the controlled buy. In support of her\n\nargument that the trial court unreasonably rejected her alternate hypothesis of innocence that the\n\nwoman in the car with Gale or the other woman in the house supplied Gale with the pills,\n\nappellant cites to two decisions of this Court, Jones, 21 Va. App. 435, and Bennett, 69 Va. App.\n\n475. Yet, a review of these cases demonstrates that, contrary to appellant’s argument, they in\n\nfact support the conclusion that the circumstantial evidence in this case was sufficient to support\n\nappellant’s conviction. In both cases, confidential informants involved in controlled buys of\n\ndrugs did not testify at trial. Jones, 21 Va. App. at 441-42; Bennett, 69 Va. App. at 479.\n\nNonetheless, our Court affirmed both drug distribution convictions based on the other\n\ncircumstantial evidence presented at trial. Jones, 21 Va. App. at 444; Bennett, 69 Va. App. at\n\n495.\n\n In Jones, police searched the confidential informant, provided him with buy money for a\n\ncontrolled buy, and then drove him to an unspecified location near a restaurant where the\n\ntransaction was to occur. 21 Va. App. at 438. Police lost sight of the confidential informant\n\n - 12 -\n\funtil he walked through an alley into the restaurant’s parking lot. Id. at 438-39. They saw the\n\nconfidential informant and the defendant meet in the lot, but lost sight of both of them when they\n\n“momentarily” walked in front of the restaurant. Id. at 439. During this time, police could not\n\nsee whether the confidential informant “went into the restaurant or met other persons.” Id.\n\nThere were also “other restaurant patrons . . . in the area” at the time. Id. After leaving the front\n\nof the restaurant, the confidential informant and the defendant were seen entering the defendant’s\n\ncar, and the confidential informant left the car after a “short time.” Id. Police saw the\n\nconfidential informant walk toward where he was to meet other police officers, but did not see\n\nthe meeting. Id. Police did not see an exchange of money or drugs between the defendant and\n\nthe confidential informant. Id. at 438-39. Our Court affirmed the defendant’s conviction, noting\n\nthat the evidence established that before meeting with the defendant, the confidential informant\n\ndid not possess any drugs and had $2,500 in currency and that after meeting with the defendant\n\n“for the purpose of purchasing drugs,” the confidential informant no longer had the $2,500 but\n\ndid possess two ounces of cocaine. Id. at 444. We held that “[t]he fact that the officers did not\n\nhave [the confidential informant] under surveillance the entire time he was away from [the\n\nofficers] does not establish a reasonable hypothesis that someone other than [the defendant] was\n\nthe source of the cocaine.” Id.\n\n In Bennett, police used a “live” audio feed to monitor the controlled buy and made and\n\nreviewed additional audio and video recordings of the transaction. 69 Va. App. at 480. The\n\nconfidential informant called the defendant, and during this call mentioned slang terms for\n\ntobacco cigarettes dipped in PCP and crack cocaine. Id. at 480-81. After this call, and a\n\nsubsequent call during which the defendant told the confidential informant where to meet him,\n\npolice observed the informant until he entered an apartment complex. Id. at 481. After the\n\nconfidential informant was out of sight, police heard the informant’s and the defendant’s voices\n\n - 13 -\n\fon the live audio feed, as well as other unidentified voices. Id. The video recording showed the\n\nconfidential informant encountering two different people inside the residence—a woman who\n\nwas “fleetingly” visible in the living room at the beginning of the video, and the defendant who\n\nwas visible during the remainder of the video. Id. at 482. The video showed the defendant\n\nholding a plastic sandwich bag and two slightly discolored cigarettes. Id. Affirming the trial\n\ncourt’s conviction, our Court noted that “investigators searched the informant before and after\n\nthe transaction, monitored his movements throughout the relevant period of time, and kept him in\n\nview except for the period during which he met the [defendant].” Id. at 494-95.\n\n These decisions provide the holding, relevant here, that lapses in police surveillance or\n\nthe presence of other individuals during controlled buys do not render the evidence insufficient\n\nwhen the confidential informant fails to testify at trial. Instead, as in all circumstantial evidence\n\ncases, the determination of whether an alternative hypothesis of innocence is reasonable is one\n\nmade by the fact finder below upon consideration of the totality of the circumstances and is one\n\nthat we do not disturb on appeal unless plainly wrong. Wood, 57 Va. App. at 306. Accordingly,\n\nwe conclude, as in Jones and Bennett, that the fact that Gale was not under surveillance during\n\nthe entirety of the controlled buy and that other individuals were present during the buy did not\n\nmake the trial court’s rejection of her alternate hypothesis of innocence unreasonable.6\n\n The trial court, sitting as fact finder, “determines which reasonable inferences should be\n\ndrawn from the evidence, and whether to reject as unreasonable the hypotheses of innocence\n\nadvanced by a defendant.” Moseley, 293 Va. at 464. Appellant has failed to show that the trial\n\ncourt’s rejection of her alternative hypotheses of innocence was “plainly wrong.” Wood, 57\n\n\n\n\n 6\n In addition, we note that the evidence in this case is strengthened by a fact not present in\neither Jones or Bennett—here, an exchange of money between appellant and Gale was\nacknowledged by appellant during the audio recording.\n - 14 -\n\fVa. App. at 306. Therefore, we conclude that the trial court did not err in convicting her of the\n\ncharged offense.7\n\n III. CONCLUSION\n\n For the reasons stated above, the trial court did not err in convicting appellant of\n\ndistribution of a Schedule I or II controlled substance. Accordingly, we affirm the judgment of\n\nthe trial court.\n\n Affirmed.\n\n\n\n\n 7\n We acknowledge that, as noted above, in circumstantial evidence cases, the\nCommonwealth must establish “an unbroken evidentiary chain of necessary circumstances” to\nprove the defendant’s guilt beyond a reasonable doubt. Moseley, 293 Va. at 463. However, this\nlanguage does not mean that the circumstantial evidence here is insufficient because Monaghan\nlost sight of Gale while Gale was in appellant’s home or because other individuals can be heard\non the audio recording of the controlled buy. Those particular facts do not “break” the chain of\ncircumstantial evidence linking appellant to the offense in this case. Our case law is clear on\nthis—if circumstances indicating that persons other than the defendant were present during a\ncontrolled buy meant that the evidentiary chain was “broken,” then our Court would have had to\nreverse the convictions in Jones and Bennett. Instead, properly viewed, the fact finders in Jones\nand Bennett, as well as the trial court here, were allowed to view the evidence in its entirety and\ndetermine whether the defendant’s alternate hypothesis of innocence was reasonable in light of\nall the circumstances presented to the court.\n Reviewing the Commonwealth’s evidence, we find that it clearly established an unbroken\nchain linking appellant to the distribution of oxymorphone to Gale. Each piece of circumstantial\nevidence described above provided a circumstance upon circumstance from which the fact finder\ncould rationally conclude that appellant sold the pills to Gale. “While no single piece of\n[circumstantial] evidence may be sufficient, the ‘combined force of many concurrent and related\ncircumstances, each insufficient in itself, may lead a reasonable mind irresistibly to a\nconclusion.’” Ervin v. Commonwealth, 57 Va. App. 495, 505 (2011) (en banc) (alteration in\noriginal) (quoting Stamper v. Commonwealth, 220 Va. 260, 273 (1979)).\n - 15 -\n\fChaney, J., with whom Causey, J., joins, dissenting.\n\n The trial court convicted appellant, Teresa Maust (defendant), of distributing three\n\noxymorphone pills to a police informant, although the evidence was insufficient to support a finding\n\nthat defendant distributed the pills that police obtained from the informant. Considering the totality\n\nof the evidence and all reasonable inferences therefrom in the light most favorable to the\n\nCommonwealth, substantial gaps in the chain of evidence render the wholly circumstantial evidence\n\ninsufficient for any rational fact-finder to find beyond a reasonable doubt that defendant, and not\n\nsome other person, distributed the oxymorphone pills recovered from the informant. Therefore, we\n\nrespectfully dissent from the majority’s opinion affirming defendant’s conviction for distribution of\n\na Schedule II controlled substance in violation of Code § 18.2-248.\n\n BACKGROUND\n\n On October 1, 2018, Detective Monaghan obtained three oxymorphone pills from a paid\n\npolice informant who died before trial, making him unavailable to testify.8 Consequently, there was\n\nno eyewitness testimony about the informant’s interaction with defendant on the alleged offense\n\ndate. The police did not observe the informant’s interaction with defendant, and there was no video\n\nrecording of their interaction. The police had no live audio feed of the informant’s activities and\n\ncommunications with defendant. The only evidence of the informant’s interaction with defendant\n\non the date of the alleged offense, October 1, is a poor-quality audio recording from the recording\n\ndevice that police wired to the informant. The detective testified that parts of the audio recording\n\nrecovered from the informant sounded “very garbled.” At various points while the recording\n\nwas played at trial, the trial court observed that nothing intelligible could be heard.\n\n\n\n\n 8\n The informant had previously acted as a police informant to “work off charges.” Here,\nthe police were paying the informant. When he worked for money, the police usually paid the\ninformant $100 per investigation.\n - 16 -\n\f Before the informant drove to defendant’s house on October 1, the detective met with the\n\ninformant to provide him with the recording device and $320. Before giving the money to the\n\ninformant, the detective recorded each bill’s denomination and serial number. The detective gave\n\nthe informant $300 to buy three oxymorphone pills and an additional $20 to repay a $16 debt the\n\ninformant claimed he owed defendant. To ensure that any drugs eventually recovered from the\n\ninformant were obtained from defendant and not another source, the detective (i) searched the\n\ninformant’s person and vehicle before the informant drove to defendant’s house, (ii) wired the\n\ninformant with an audio recording device, and (iii) followed the informant’s vehicle most of the\n\nway to and from defendant’s house.\n\n The informant was a drug addict and a convicted felon with a lengthy criminal record. The\n\ndetective instructed the informant to drive to defendant’s house and purchase oxymorphone pills\n\nwith “buy money” from the sheriff’s department.\n\n The audio recording recovered from the informant demonstrated that an unidentified person\n\nwas in the informant’s vehicle conversing with him during his drive to and from defendant’s house.\n\nThere is no evidence that the police ever searched the informant’s driving companion, and no\n\nevidence that the police were even aware of the presence of the informant’s driving companion\n\nduring the “controlled buy.”\n\n When the detective followed the informant’s vehicle to defendant’s house, he lost sight of\n\nthe informant after the informant drove up defendant’s driveway. The detective could not see the\n\ninformant’s vehicle at the end of the driveway, nor could he see the informant enter or exit\n\ndefendant’s house. Other vehicles were parked in defendant’s driveway while the informant was\n\nat defendant’s house. The detective testified that he did not know how many people were in\n\ndefendant’s house while the informant was there on October 1, 2018. The informant’s audio\n\nrecording demonstrated that at least two persons other than defendant were present in defendant’s\n\n - 17 -\n\fhouse while the informant was there, and at least one of them communicated with the informant.\n\nThe recording also indicates that before the informant drove away from defendant’s house, he was\n\nout of defendant’s presence for a continuous period of approximately two minutes. The evidence\n\ndoes not establish the whereabouts of the informant’s driving companion during the approximate\n\nten-minute period when the informant was inside defendant’s house.\n\n After the informant and defendant exchanged greetings, following some static and\n\nunintelligible communications on the audio recording, the informant exchanged greetings with\n\nan unidentified male. The recorded conversation between the informant and defendant promptly\n\nturned to the subject of appliances that defendant was selling. Then the informant briefly went\n\noutside to his vehicle to retrieve the money he left there. When the informant returned, he stated\n\nthat he owed defendant $14 and asked if she had change. He gave defendant some money and after\n\nthey both commented on the “old style” of the bills, defendant said “two forty and four.” Then they\n\nresumed the conversation about appliances, and the informant asked to see the stove and\n\nrefrigerator. The informant also stated that his current stove wasn’t working properly.\n\n As the informant is heard moving to the location of the appliances, he greeted another\n\nunidentified person. After additional conversation about the appliances, the informant took pictures\n\nof them. As the informant was taking pictures, defendant stated, “I owe you six bucks, right? You\n\nowe me two fifty four.” The informant replied, “Sixteen.” Defendant responded, “Two fifty four.\n\nAnd you gave me two seventy.” A moment later, defendant said, “Let me get change.” Defendant\n\nmade some additional remarks about the worth of the appliances and then said, “Give me a second.”\n\nThe informant replied that he would be outside. While the informant was near the appliances, the\n\nsound of an unidentified woman talking was twice recorded.\n\n The next communication between defendant and the informant was about two minutes later.\n\nDuring the intervening two minutes, the informant was recorded moving outside and then talking.\n\n - 18 -\n\fSome other unidentifiable sounds of movement were also recorded. When defendant returned with\n\nthe informant’s change, the informant told defendant that both his mother and sister may also be\n\ninterested in the appliances.\n\n After the informant left defendant’s house, he and the detective separately drove back to\n\nthe same commuter lot where they had met earlier that day. The detective retrieved the audio\n\nrecording device and again searched the informant’s person and vehicle. The informant did not\n\nhave any of the buy money, but he did have $16 in cash which was not part of the buy money—\n\nthe same amount that the informant stated he was owed in change after giving defendant $270.\n\nThe informant also turned over three pills that were subsequently found to contain oxymorphone,\n\na Schedule II controlled substance.\n\n The next day, on October 2, 2018, the detective executed a search warrant at defendant’s\n\nhouse. The police found numerous pills, a pill press or pill crusher, and “numerous prescription\n\nbottles for different narcotics, the majority of which were empty.” Some pills that were found\n\nwere prescribed to defendant, and others were prescribed to her female tenant.\n\n While the search of defendant’s house was underway, defendant arrived home with her\n\nfemale tenant. Defendant gave the detective the combination to a safe that was found in her\n\nbedroom. Defendant told the detective that some money in the safe may have been money that\n\nthe informant had borrowed and repaid to her.\n\n When the detective interviewed defendant during the search, defendant stated that the\n\nresidents of her house included herself, her two adult sons, and her female tenant. Defendant\n\ninitially denied any involvement in narcotics dealing. Defendant told the detective that she had\n\nlegitimate prescriptions for an injury. Defendant stated that her ex-husband would steal and sell\n\nher prescribed pills, but she acknowledged that her ex-husband had moved out the month before.\n\nDefendant admitted that sometimes she lends pills to her friends if they run out, but she denied\n\n - 19 -\n\fselling pills. The detective informed defendant that such distribution of controlled substances is\n\nalso illegal. In response to the detective’s statement that “we purchased these pills,” defendant\n\nreplied that any money she received from the informant was for payment of a debt. Defendant\n\nstated, “I don’t know why you’re bothering me, he’s a way bigger dealer than I am.”\n\n The police found $4,351 in the safe, including $270 of the buy money that the detective\n\ngave the informant. The detective testified that “there was sixteen one hundred dollar bills, there\n\nwere twenty-seven fifty dollar bills, there were fifty-nine twenty dollar bills, there were eighteen\n\nten dollar bills, there were [eight five] dollar bills, and there was one one dollar bill which totaled\n\nup to four thousand, three hundred and fifty-one.” The police found an additional $138\n\nelsewhere in defendant’s bedroom.\n\n All the money in the safe was inside an envelope with writing on it that included the\n\nfollowing notations,9 arranged in two columns:\n\n B = 11 1100\n G = 17 850\n J = 121 2420\n H = 25 250\n L = 19 95\n 4710\n\nThe detective characterized the writing on the envelope as an “owe sheet” used to keep track of\n\ndrugs given out on credit. The detective also testified that the numbers next to the letters could\n\nrepresent pills or money. Defendant testified that the writings on the envelope were a record of\n\nher prior count of the money in the envelope. Defendant explained that each letter represented\n\nthe denomination of the bills, e.g., “B” for Benjamin, “H” for Hamilton, and “L” for Lincoln.\n\nDefendant testified that the second column was the tally of the money. When defendant’s\n\ncounsel attempted to argue that the initials on the purported owe sheet represent denominations\n\n\n 9\n On Commonwealth’s Exhibit 3, the top portion of the first number in the second column\nis obscured by an evidence sticker, but the number appears to be “1100.”\n - 20 -\n\fof United States currency, the trial court interrupted her closing argument stating, “Ms. Coleman,\n\nnobody does that.”10 This finding followed the detective’s testimony showing that the detective\n\ncounted the money from the safe by counting the number of bills in each denomination and\n\nadding these amounts together to determine the total amount.\n\n Applying elementary arithmetic to the information in the above table, 11 “Benjamins,”\n\ni.e., 11 one-hundred-dollar bills, amounts to $1100, as stated on the first line in the second\n\ncolumn; 17 “Grants,” i.e., 17 fifty-dollar bills, amounts to $850, as stated on the second line in\n\nthe second column; 121 “Jacksons,” i.e., 121 twenty-dollar bills, amounts to $2,420, as stated on\n\nthe third line in the second column; 25 “Hamiltons,” i.e., 25 ten-dollar bills, amounts to $250, as\n\nstated on the fourth line in the second column; and 19 “Lincolns,” i.e., 19 five-dollar bills,\n\namounts to $95, as stated on line five in the second column. When the numbers in the second\n\n\n\n\n 10\n The trial court unreasonably rejected defendant’s explanation that the writing on the\nenvelope containing cash was a recorded count of money by currency denominations, not an\n“owe sheet.” First, it is highly unlikely that individuals on the purported “owe sheet” would\nhave identifying initials coinciding exactly with the first letters of the “nicknames” of currency\ndenominations: B, J, G, H, and L. In addition to it being highly improbable that B, J, G, H, and\nL are the initials of five individuals chosen at random, it is even more unlikely that those five\nindividuals would owe amounts that correspond precisely with multiples of the currency\ndenomination identified by their initial. As can be confirmed by simple counting and use of\nelementary arithmetic, only 1 in 5 numbers are multiples of 5; only 1 in 10 numbers are multiples\nof 10; only 1 in 20 numbers are multiples of 20; only 1 in 50 numbers are multiples of 50; and\nonly 1 in 100 numbers are multiples of 100. It is extremely unlikely that the amounts owed by\nall five individuals would be exact multiples of the currency denomination corresponding to their\ninitial. In contrast, the hypothesis of innocence that the notations are a recorded count of cash\nmoney by currency denominations is a complete explanation of the letters and corresponding\nnumbers on the envelope.\n Because it is so highly improbable that the notations on the envelope are an “owe sheet”\nand not a recorded count of money by currency denominations, the trial court erred by arbitrarily\nrejecting defendant’s innocent explanation of the notations. See Wright v. Commonwealth,\n292 Va. 386, 397 (2016) (“[W]here a fact is equally susceptible of two interpretations one of\nwhich is consistent with the innocence of the accused, [the trier of fact] cannot arbitrarily adopt\nthat interpretation which incriminates [the accused].” (alterations in original) (quoting\nCommonwealth v. Smith, 259 Va. 780, 782 (2000))).\n - 21 -\n\fcolumn are added together, the sum is 4,715, approximately the same as the number on the sixth\n\nline in the second column beneath the horizontal line, i.e., 4710.\n\n Defendant testified that on October 1, 2018, the informant came to her house to look at\n\nappliances that she was selling and to give her “a down payment for a pancake compressor and a\n\nframing nail gun.” Defendant also testified that the informant paid her back around $150 that he\n\nhad borrowed.\n\n ANALYSIS\n\n Considering the totality of the evidence, the evidence is insufficient to sustain the\n\nconviction for drug distribution because no rational fact-finder can find beyond a reasonable\n\ndoubt that the wholly circumstantial evidence formed an unbroken chain of necessary\n\ncircumstances linking defendant to the crime of distributing the three oxymorphone pills\n\nrecovered from the informant. In other words, the evidence as a whole failed to exclude the\n\nreasonable hypothesis of innocence that the informant obtained the oxymorphone pills from\n\nsomeone other than defendant. According to our Supreme Court’s longstanding precedent,\n\n Where the evidence is entirely circumstantial, all necessary\n circumstances proved must be consistent with guilt and inconsistent\n with innocence and must exclude every reasonable hypothesis of\n innocence. The chain of necessary circumstances must be unbroken.\n The circumstances of motive, time, place, means and conduct must\n all concur to form an unbroken chain which links the defendant to\n the crime beyond a reasonable doubt.\n\nBrown v. Commonwealth, 238 Va. 213, 220 (1989) (quoting Bishop v. Commonwealth, 227 Va.\n\n164, 169 (1984)). “While a conviction may properly be based upon circumstantial evidence,\n\nsuspicion or even probability of guilt is not sufficient.” Gordon v. Commonwealth, 212 Va. 298,\n\n300 (1971). “[E]vidence that raises no more than a suspicion of guilt ‘no matter how strong, is\n\ninsufficient to sustain a criminal conviction.’” Wright v. Commonwealth, 292 Va. 386, 397 (2016)\n\n(quoting Stover v. Commonwealth, 222 Va. 618, 624 (1981)). Proof of a mere opportunity to\n\n - 22 -\n\fcommit an offense provides only “the suspicion that the defendant may have been the guilty\n\nagent; and suspicion is never enough to sustain a conviction.” Simmons v. Commonwealth, 208\n\nVa. 778, 783 (1968).\n\n Here, substantial gaps in the chain of evidence preclude a finding by a rational fact-finder\n\nthat defendant distributed the three oxymorphone pills recovered from the informant. A fatal gap in\n\nthe chain of necessary circumstances exists because the informant’s acquisition of the oxymorphone\n\npills was not “controlled” by the detective. The unexplained presence of the informant’s unsearched\n\ndriving companion defeated the detective’s purpose in searching the informant and his vehicle\n\nbefore he met with defendant. Given this break in the chain of necessary circumstances, a rational\n\nfact-finder cannot find beyond a reasonable doubt that defendant distributed the drugs recovered\n\nfrom the informant.\n\n Additional gaps in the chain of evidence were created by the gaps in audio surveillance due\n\nto the poor quality of the audio recording recovered from the informant. As the detective testified,\n\nparts of the recorded audio were “very garbled” due to static or other issues. As the trial court\n\nobserved, some parts of the recorded audio emitted no sound.\n\n Another fatal gap in the chain of circumstances necessary to prove defendant’s criminal\n\nagency relates to the informant’s unmonitored access to two persons other than defendant when the\n\ninformant was inside defendant’s house. The informant’s recording device recorded the voices of\n\ntwo persons other than defendant inside defendant’s house. A male voice was recorded exchanging\n\ngreetings with the informant. A female voice was twice recorded in the informant’s company just\n\nbefore the informant announced that he would wait for defendant outside. Additionally, the\n\ninformant’s recording had several unintelligible garbled segments, creating gaps in the audio\n\nsurveillance. Based on the totality of evidence, a rational fact-finder could not find that the\n\ninformant “could not have obtained the [controlled substance] from a source other than the\n\n - 23 -\n\fdefendant.” Jones v. Commonwealth, 21 Va. App. 435, 443 (1995) (en banc) (affirming\n\nconviction for drug distribution to a police informant where the circumstantial evidence did not\n\nestablish that the informant had access to someone other than defendant at the time of the\n\ncontrolled drug buy). Given the informant’s access to persons other than defendant between the\n\ntime the detective initially searched the informant and the time the detective recovered the drugs\n\nfrom the informant, there is a fatal break in the chain of circumstances necessary to support a\n\nfinding that defendant, and not someone else, distributed the drugs recovered from the informant.\n\nBecause the informant’s drug acquisition was not “controlled,” a rational fact-finder’s\n\nconsideration of the totality of the evidence precludes a finding beyond a reasonable doubt that\n\ndefendant distributed the oxymorphone pills in evidence.\n\n Additional evidence of the uncontrolled nature of the informant’s activities is the\n\ndiscrepancy between the amount of money that the detective recovered from the informant and the\n\namount of money that the informant should have returned to the detective. According to the\n\nrecorded conversation between the informant and defendant, (i) the informant owed defendant\n\nmoney, (ii) the informant gave defendant $270, and (iii) defendant gave the informant $16 in\n\nchange. The detective found the $270 that the informant gave defendant in defendant’s safe. The\n\ndetective recovered $16 from the informant that was not from the set of dollar bills that the detective\n\ngave the informant. Given that the detective gave the informant $320 and the informant paid\n\ndefendant $254, the informant should have returned $66 to the detective. But after searching the\n\ninformant and his vehicle, the detective recovered only $16. The evidence demonstrates that during\n\nthe purportedly controlled buy, the informant was able to conceal or transfer $50 without notice by\n\nthe detective. Given this, no rational fact-finder could find from the evidence that the informant\n\ncould not have retrieved the three oxymorphone pills from somewhere or obtained them from\n\nsomeone other than defendant. See id. (affirming drug distribution conviction based on\n\n - 24 -\n\fcircumstantial evidence of criminal agency because the evidence supported a finding that the\n\ninformant “could not have obtained the [controlled substance] from a source other than the\n\ndefendant”).\n\n Although the undisputed evidence supports the trial court’s finding that defendant\n\n“engaged in some kind of financial transaction,” the evidence is insufficient to support a finding\n\nthat this was a drug transaction. In holding otherwise, the majority mistakes speculative\n\nsuspicion for reasonable inference. The only evidence that defendant gave the informant\n\nsomething after receiving $270 from him is the evidence that she gave him $16. On the\n\ninformant’s audio recording, defendant stated that the informant owed her $254 and the\n\ninformant stated that she owed him $16 back after he gave her $270. The totality of the evidence\n\ndoes not support a finding beyond a reasonable doubt that this was a drug transaction.\n\n Even if the evidence supports a finding that defendant was a drug dealer, fatal gaps in the\n\nchain of evidence preclude a rational fact-finder from finding beyond a reasonable doubt that\n\ndefendant distributed the three oxymorphone pills recovered from the informant. Defendant was\n\nnot on trial for being a drug dealer, but for distributing the oxymorphone pills recovered from the\n\ninformant on October 1, 2018. Proof that a defendant is a drug dealer is insufficient to support\n\nan inference that the defendant sold drugs to a particular individual on a specific date as charged.\n\nThe totality of the evidence is insufficient to prove defendant’s criminal agency with respect to\n\nthe charged distribution offense given the substantial gaps in the chain of circumstances\n\nnecessary for such proof. Taking all the evidence in the light most favorable to the\n\nCommonwealth, the evidence does not point unerringly to defendant as the source of the pills\n\nrecovered from the informant. Considered as a whole, the evidence creates no more than mere\n\nsuspicion or probability of defendant’s guilt. “[T]o sustain a criminal conviction, the\n\nCommonwealth is required to prove more than a suspicion of guilt or probability of guilt.”\n\n - 25 -\n\fMcMorris v. Commonwealth, 276 Va. 500, 506 (2008). Under this standard, the conviction\n\nshould be reversed.\n\n CONCLUSION\n\n The totality of the evidence does not form an unbroken chain of circumstances necessary for\n\na rational fact-finder to find beyond a reasonable doubt that defendant—and not someone else—\n\ndistributed the oxymorphone pills recovered from the informant. Therefore, we respectfully dissent\n\nfrom the judgment affirming the conviction for distribution of a Schedule II controlled substance.\n\n\n\n\n - 26 -\n\f", "ocr": false, "opinion_id": 9398151 } ]

"2023-05-30"

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 49, "download_url": "http://www.courts.state.va.us/opinions/opncavwp/0505214.pdf", "author_id": null, "opinion_text": " COURT OF APPEALS OF VIRGINIA\n\n\n Present: Chief Judge Decker, Judges Humphreys, Beales, Huff, O’Brien, AtLee, Malveaux,\nPUBLISHED\n\n\n Athey, Fulton, Ortiz, Causey, Friedman, Chaney, Raphael, Lorish, Callins and White\n Argued at Richmond, Virginia\n\n\n TERESA MARY MAUST\n OPINION BY\n v. Record No. 0505-21-4 JUDGE MARY BENNETT MALVEAUX\n MAY 30, 2023\n COMMONWEALTH OF VIRGINIA\n\n\n UPON A REHEARING EN BANC\n\n FROM THE CIRCUIT COURT OF STAFFORD COUNTY\n J. Bruce Strickland, Judge1\n\n Andrew J. Cornick (Andrew J. Cornick, LLC, on brief), for\n appellant.\n\n Timothy J. Huffstutter, Assistant Attorney General (Jason S.\n Miyares, Attorney General, on brief), for appellee.\n\n\n Teresa Mary Maust (“appellant”) appeals her conviction for distribution of a Schedule I or II\n\n controlled substance, in violation of Code § 18.2-248. Before a panel of this Court, appellant\n\n argued that the trial court erred in finding that the evidence was sufficient to prove that she\n\n distributed oxymorphone because no rational trier of fact could have concluded that the evidence\n\n reasonably excluded her theory of innocence. A panel majority of this Court reversed appellant’s\n\n conviction. Maust v. Commonwealth, No. 0505-21-4 (Va. Ct. App. Aug. 9, 2022). We granted the\n\n Commonwealth’s petition for rehearing en banc and stayed the mandate of the panel’s decision.\n\n Upon rehearing en banc, we affirm the trial court.\n\n\n\n\n 1\n Judge J. Bruce Strickland entered the final sentencing order in this case. Judge Charles\n S. Sharp presided over appellant’s trial and entered the conviction order.\n\f I. BACKGROUND\n\n “[W]e review factfinding with the highest degree of appellate deference.”\n\nCommonwealth v. Barney, ___ Va. ___, ___ (Mar. 16, 2023) (quoting Bowman v.\n\nCommonwealth, 290 Va. 492, 496 (2015)). “In accordance with established principles of\n\nappellate review for a sufficiency of the evidence case, we view the ‘evidence in the light most\n\nfavorable to the Commonwealth, as we must since it was the prevailing party in the trial court.’”\n\nPeters v. Commonwealth, 72 Va. App. 378, 383 (2020) (quoting Riner v. Commonwealth, 268\n\nVa. 296, 330 (2004)). Therefore, we will “discard the evidence of the accused in conflict with\n\nthat of the Commonwealth, and regard as true all the credible evidence favorable to the\n\nCommonwealth and all fair inferences to be drawn therefrom.” Kelley v. Commonwealth, 289\n\nVa. 463, 467-68 (2015) (quoting Parks v. Commonwealth, 221 Va. 492, 498 (1980)).\n\n On October 1, 2018, Stafford County Detective Shawn Monaghan used a confidential\n\ninformant, Robert Gale, to conduct a controlled buy of three oxymorphone pills from appellant.\n\nMonaghan searched Gale and his car at a staging area before the controlled buy, finding neither\n\ndrugs nor money. Monaghan “directed” Gale to go to appellant’s residence to buy the pills.\n\nMonaghan expected each pill to cost about $100 and understood that Gale owed appellant some\n\nmoney, so he provided Gale with $320 in cash. Monaghan photographed the cash to record the\n\nserial numbers and denominations. He also equipped Gale with an audio-only recording device,\n\nwhich did not permit Monaghan to listen in real time.\n\n At trial, Monaghan testified that he did not recall Gale’s girlfriend, Tiffany Love,\n\naccompanying Gale on October 1, 2018, but an unidentified woman can be heard on the audio\n\nrecording speaking with Gale during the drive to and from appellant’s house. A few minutes\n\nbefore Gale arrived at the house, Gale told his companion, “Text her and say here.” While the\n\nentire conversation between Gale and the woman cannot be heard clearly on the audio recording,\n\n -2-\n\fno audible conversation indicates that Gale gave money to his companion or received pills from\n\nher.\n\n Monaghan followed Gale’s car to appellant’s street but lost sight of it after Gale entered\n\nappellant’s driveway. Other cars were in the driveway, but Monaghan did not recall whether\n\nthere were other vehicles in the home’s garage.\n\n The audio device recorded Gale entering appellant’s house and exchanging greetings\n\nwith appellant.2 They then discussed some “new” kitchen appliances that appellant claimed were\n\nworth over $3,000 and wanted to sell for $1,000. Gale gave appellant $270, which she verbally\n\nacknowledged receiving. After discussing the kitchen appliances again, appellant said, “Give me\n\na second,” and Gale responded, “Okay. Alright. I’ll be outside.” Gale left the house to wait;\n\nappellant followed two minutes later, and they again spoke about the appliances before Gale left.\n\nGale was in appellant’s home for about ten minutes.\n\n The audio recording from inside appellant’s home is inaudible at certain points. The only\n\naudible conversation was between Gale and appellant, although Monaghan acknowledged at trial\n\nthat an unidentified woman’s voice could also be heard on the portion of the audio recording\n\nfrom inside the house. At one point during this portion of the audio recording, Gale and the\n\nunidentified woman seem to exchange greetings, but he did not have any additional conversation\n\nwith her. Appellant testified at trial that she could hear the voice of Sue Stone, a woman who\n\nlived with her, on the audio recording.\n\n Gale drove back to the staging area with Monaghan following him. Gale’s companion\n\nwas recorded speaking with him during this drive, and the recording includes no audible\n\nconversation about exchanging money or pills. Monaghan retrieved the recording device,\n\n\n\n 2\n At trial, Monaghan identified appellant’s voice on the recording based on his\nface-to-face interview with appellant.\n -3-\n\fsearched Gale and his vehicle, and confirmed that Gale no longer had the buy money, although\n\nhe did have $16 in cash. Monaghan also found three pills on Gale’s person that subsequent lab\n\nanalysis determined were oxymorphone, a Schedule II controlled drug.\n\n Gale died before trial. Monaghan testified at trial that Gale had been an opioid addict and\n\nthat he had been convicted of multiple felonies.\n\n Monaghan searched appellant’s house the day after the controlled buy, finding\n\n“numerous pills,” “pill crushers,” a “pill press,” “numerous prescription bottles for different\n\nnarcotics, the majority of which were empty,” and a “large amount” of currency. In appellant’s\n\nbedroom, police found $138 and an additional $4,351 in a safe.3 Among the contents of the safe,\n\nMonaghan identified $270 of the $320 he had provided Gale to make the controlled buy.\n\n The cash in the safe was in an envelope that had handwritten notations which Monaghan\n\ndescribed as indicating “pills or . . . money,” and columns of numbers he described as “totals.”4\n\nMonaghan characterized this envelope as an “owe sheet[],” which he explained was used by drug\n\ndealers “to keep track of drugs that they front or give to people on credit.”\n\n While the search was underway, appellant arrived and was interviewed by Monaghan.\n\nWhen confronted by Monaghan about pill sales at her home, she first told Monaghan that her\n\nex-husband stole her prescription pills, which she had for a “legitimate prescription,” and any\n\ndrug sales conducted at the house should be attributed to him. Appellant said that she purchased\n\nthe safe to keep her pills away from her ex-husband and that she only began using the safe to\n\n\n\n 3\n Appellant provided Monaghan the combination to the safe.\n 4\n The first set of notations, a column, are as follows: “B = 11[,] G = 17[,] J = 121[,]\nH = 25[,] L = 19.” The second set of notations, also a column, is partially concealed on the\nCommonwealth’s exhibit, but the notations that can be read are “850 2450 250 95,” all above a\nline, and then the number “4710” below the line. A third set, another column, have the numbers\n“1210 1210” above a line, with “2420” below the line, and then “419” and “5” above another\nline with “95” below that line.\n -4-\n\fstore money once her ex-husband moved out of the house. In addition to her ex-husband,\n\nappellant also stated that a woman named Briana Perry was responsible for any pill sales at her\n\nhouse.\n\n When Monaghan told appellant that two of her pills were found on Sue, she claimed that\n\nshe gave them to Sue to “hold on to for [appellant],” although she later admitted that she gave\n\nthe pills to Sue to use, but only because Sue had the same prescription as appellant. She also\n\nsaid that she sometimes lent pills to other people but again denied selling them. While looking at\n\nappellant’s phone, Monaghan told appellant that “Greg Murphy is talking to you about getting\n\npills,” which appellant denied. She then admitted that she sometimes allowed Murphy to borrow\n\npills.\n\n According to Monaghan, during the interview appellant “surmised” that Gale was the\n\nconfidential informant and then told him that any money she took from Gale was for a debt Gale\n\nowed to her. Regarding Gale, appellant told Monaghan that he “comes to me when he runs out,”\n\nand “sells more than I do.”\n\n Appellant also told Monaghan that her safe contained around $4,500 and that she had\n\nwithdrawn the money from her bank so she could find a new place to live because her house was\n\nin foreclosure. She said she had withdrawn the money in stages—writing “a $2,000 check not\n\ntoo long ago,” “tak[ing] out $600 in cash, $300 in cash” at a time, and “socking it to the side.”\n\nAppellant stated that the buy money found in her safe was payment of Gale’s debt to her, which\n\nshe said was “a $100 and something dollars.”\n\n Appellant told Monaghan that her two sons and Sue were the only other persons living in\n\nthe house at the time of the search.\n\n At the close of the Commonwealth’s case-in-chief, appellant moved to strike the\n\nevidence, which the court denied. Thomas Hogan then testified in appellant’s defense, stating\n\n -5-\n\fthat he had been one of nine or ten tenants staying at appellant’s house in October 2018. Hogan\n\nstated that he had collected the rent from the other tenants on the first of each month and then\n\ngave it to appellant. Hogan said he paid $600 in rent, but others “sometimes” paid less. He\n\nclaimed that Gale came to appellant’s house to look at appliances, although Hogan\n\nacknowledged that he was not present when Gale was at the house on October 1, 2018. Hogan\n\ndid not know the combination to appellant’s safe.\n\n Appellant testified that Gale came to her house to look at appliances and to make a down\n\npayment on a compressor and nail gun. She stated that Gale owed her $100 or $150 and that on\n\nthe day of the controlled buy, Gale paid her what he owed plus another $100 or $150 for the\n\ndown payment. As for the owe sheet, appellant claimed that she used a system to track her\n\nmoney in which she “put down eleven for Benjamin,” “G, a George Washington, J, Jefferson,\n\nHamilton”; she could not remember what the “L” stood for, although with prompting from her\n\ncounsel said that it probably stood for “Lincoln,” a “five dollar bill.” She testified that she had\n\nrented rooms in her home, charging between $300 and $600 per month.\n\n After argument by counsel, the trial court convicted appellant of distribution of a\n\nSchedule I or II controlled substance. In its ruling, the trial court found that: (1) Gale was given\n\nbuy money and was searched before making the controlled buy, and no contraband was found on\n\nhim; (2) Gale was in appellant’s home for approximately ten minutes, and the only substantive\n\nconversation that could be clearly heard on the audio recording during that time was between\n\nGale and appellant, and that “[i]n the course of that relatively garbled transmission, one thing is\n\nclear, that at some point there was an exchange of cash money”; (3) Gale then left appellant’s\n\nhouse, and Monaghan again searched him and found three oxymorphone pills and no buy\n\nmoney; and (4) the buy money was found in appellant’s safe during a search and that any person\n\nother than appellant had “limited access” to the safe. The court found that the “only reasonable\n\n -6-\n\finference to be drawn from that set of circumstances is that the transaction went down exactly as\n\nhas been argued by the Commonwealth.”\n\n II. ANALYSIS\n\n Appellant argues that the trial court erred in finding the evidence sufficient to support her\n\nconviction for distributing a Schedule I or II controlled substance because the evidence was\n\ncircumstantial and failed to exclude all reasonable hypotheses of innocence.\n\n “When reviewing the sufficiency of the evidence, ‘[t]he judgment of the trial court is\n\npresumed correct and will not be disturbed unless it is plainly wrong or without evidence to\n\nsupport it.’” Smith v. Commonwealth, 296 Va. 450, 460 (2018) (alteration in original) (quoting\n\nCommonwealth v. Perkins, 295 Va. 323, 327 (2018)). “In such cases, ‘[t]he Court does not ask\n\nitself whether it believes that the evidence at the trial established guilt beyond a reasonable\n\ndoubt.’” Secret v. Commonwealth, 296 Va. 204, 228 (2018) (alteration in original) (quoting\n\nPijor v. Commonwealth, 294 Va. 502, 512 (2017)). “Rather, the relevant question is whether\n\n‘any rational trier of fact could have found the essential elements of the crime beyond a\n\nreasonable doubt.’” Vasquez v. Commonwealth, 291 Va. 232, 248 (2016) (quoting Williams v.\n\nCommonwealth, 278 Va. 190, 193 (2009)). “If there is evidentiary support for the conviction,\n\n‘the reviewing court is not permitted to substitute its own judgment, even if its opinion might\n\ndiffer from the conclusions reached by the finder of fact at the trial.’” Chavez v. Commonwealth,\n\n69 Va. App. 149, 161 (2018) (quoting Banks v. Commonwealth, 67 Va. App. 273, 288 (2017)).\n\nIn addition, “[t]he judgment of the trial court, sitting without a jury, is ‘entitled to the same\n\nweight as a jury verdict.’” Perkins, 295 Va. at 327 (quoting Cole v. Commonwealth, 294 Va.\n\n342, 361 (2017)).\n\n Appellant argues that a reasonable hypothesis of innocence exists—that Gale used the\n\nbuy money to repay a debt to her and that he obtained the three pills from someone other than\n\n -7-\n\fher. Appellant points to the presence of a woman in the car with Gale on the drive to and from\n\nher house5 and to the voice of a woman other than her in the house with Gale.\n\n “Where a controlled purchase of drugs is concerned, ‘without [the informant’s]\n\ntestimony, the evidence proving that the [drugs] came from the defendant’ may be ‘purely\n\ncircumstantial.’” Bennett v. Commonwealth, 69 Va. App. 475, 492 (2018) (alterations in\n\noriginal) (quoting Jones v. Commonwealth, 21 Va. App. 435, 441-42 (1995) (en banc)).\n\n“Circumstantial evidence, if sufficiently convincing, is as competent and entitled to the same\n\nweight as direct testimony.” McCain v. Commonwealth, 261 Va. 483, 493 (2001). But “when\n\nthe evidence is wholly circumstantial . . . all necessary circumstances proved must be consistent\n\nwith guilt and inconsistent with innocence and exclude every reasonable hypothesis of\n\ninnocence.” Haas v. Commonwealth, 299 Va. 465, 468 (2021) (quoting Rogers v.\n\nCommonwealth, 242 Va. 307, 317 (1991)). “This requires an unbroken evidentiary chain of\n\nnecessary circumstances, which satisfies ‘the guarded judgment that both the corpus delicti and\n\nthe criminal agency of the accused have been proved to the exclusion of any other rational\n\nhypothesis and to a moral certainty.’” Commonwealth v. Moseley, 293 Va. 455, 463 (2017)\n\n(quoting Wright v. Commonwealth, 292 Va. 386, 397 (2016)). The “reasonable-hypothesis\n\nprinciple,” however, “is not a discrete rule unto itself” and “does not add to the burden of proof\n\nplaced upon the Commonwealth in a criminal case.” Vasquez, 291 Va. at 249-50 (quoting\n\nCommonwealth v. Hudson, 265 Va. 505, 513 (2003)). “The Commonwealth . . . is not required\n\nto exclude every possibility that others may have committed the crime for which a defendant is\n\n\n 5\n In appellant’s motion to strike and closing arguments, she contended only that the\nevidence was insufficient due to the presence of other voices in the house and did not mention\nthe presence of the woman in the car with Gale. “[U]pon appellate review, the issue of exclusion\nof reasonable theories of innocence is limited to those theories advanced by the accused at trial.”\nCommonwealth v. Hudson, 265 Va. 505, 514 (2003). However, on appeal in this case, the\nCommonwealth has not argued before the panel of this Court or en banc that appellant’s\ncontention regarding the woman in the car is waived under Rule 5A:18.\n -8-\n\fcharged, but is only required to exclude hypotheses of innocence that flow from the evidence.”\n\nDowden v. Commonwealth, 260 Va. 459, 468 (2000). Thus, the reasonable-hypothesis principle\n\n“is ‘simply another way of stating that the Commonwealth has the burden of proof beyond a\n\nreasonable doubt.’” Moseley, 293 Va. at 464 (quoting Hudson, 265 Va. at 513). “It is true that a\n\nfactfinder cannot ‘arbitrarily’ choose, as between two equally plausible interpretations of a fact,\n\none that incriminates the defendant.” Vasquez, 291 Va. at 250 (quoting Dixon v.\n\nCommonwealth, 162 Va. 798, 803 (1934)). An arbitrary choice occurs “only when no rational\n\nfactfinder could believe the incriminating interpretation of the evidence and disbelieve the\n\nexculpatory one.” Id.\n\n On appeal, in reviewing a defendant’s claim that a trial court unreasonably rejected her\n\nhypothesis of innocence, we are mindful that “[w]hether an alternate hypothesis of innocence is\n\nreasonable is a question of fact and, therefore, is binding on [this Court] unless plainly wrong.”\n\nWood v. Commonwealth, 57 Va. App. 286, 306 (2010) (quoting Emerson v. Commonwealth, 43\n\nVa. App. 263, 277 (2004)). “As long as ‘a rational factfinder could reasonably reject [the\n\nappellant’s] theories in his defense and find that the totality of the suspicious circumstances\n\nproved [his guilt] beyond a reasonable doubt,’ the appellate court must affirm the conviction.”\n\nPark v. Commonwealth, 74 Va. App. 635, 654 (2022) (alterations in original) (quoting Moseley,\n\n293 Va. at 466). “[M]erely because [a] defendant’s theory of the case differs from that taken by\n\nthe Commonwealth does not mean that every reasonable hypothesis consistent with his\n\ninnocence has not been excluded. What weight should be given evidence is a matter for the\n\n[factfinder] to decide.” Edwards v. Commonwealth, 68 Va. App. 284, 301 (2017) (second and\n\nthird alterations in original) (quoting Haskins v. Commonwealth, 44 Va. App. 1, 9 (2004)).\n\n Here, we conclude that the trial court did not err in rejecting appellant’s alternate\n\nhypothesis of innocence that Gale obtained three oxymorphone pills on the date of the offense\n\n -9-\n\ffrom someone other than appellant. The Commonwealth’s evidence, viewed in the light most\n\nfavorable to it, demonstrated that Gale went to appellant’s residence with the buy money that\n\nDetective Monaghan provided and with the intention of buying oxymorphone pills from\n\nappellant. After arriving, Gale gave the money to appellant and returned to Monaghan ten\n\nminutes later with three oxymorphone pills. Although Monaghan did not witness the transaction,\n\nthe audio recording demonstrated that Gale interacted with appellant and that she verbally\n\nconfirmed that Gale gave her money. While another person was with Gale on his drive to and\n\nfrom appellant’s house, and another woman could be heard on the audio recorded inside\n\nappellant’s home, there was no recorded conversation between these individuals and Gale\n\nindicating that he exchanged money or pills with them. Moreover, Monaghan followed Gale to\n\nand from appellant’s house and searched him before and after the transaction.\n\n Further, during a search of appellant’s house, police found “numerous pills,” “pill\n\ncrushers,” a “pill press,” “numerous prescription bottles for different narcotics, the majority of\n\nwhich were empty,” and a “large amount” of currency. Police found $4,351 in a safe in\n\nappellant’s bedroom, including $270 of the buy money given to Gale. See Burrell v.\n\nCommonwealth, 58 Va. App. 417, 434 (2011) (“[T]he fact-finder may consider such factors\n\nas . . . the presence of equipment or other items related to drug distribution.”); White v.\n\nCommonwealth, 24 Va. App. 446, 453 (1997) (“Considered with other factors, possession of\n\ncurrency by a defendant may be considered in determining whether he or she possessed drugs\n\nwith an intent to distribute.”). Monaghan also described the envelope containing the cash as an\n\n“owe sheet[],” an item used by drug dealers “to keep track of drugs that they front or give to\n\npeople on credit.”\n\n In addition, in her interview with Monaghan and at trial, appellant provided inconsistent\n\nstatements as to the presence of the cash in her safe and whether she distributed pills to others.\n\n - 10 -\n\fAt trial, appellant testified that Gale repaid a debt he owed her and made a down payment on\n\ncertain tools. She also testified that she had been receiving rent from people living with her.\n\nThat testimony, however, was contradicted by appellant’s statements to Monaghan the day after\n\nthe controlled buy, when she did not mention rental income or Gale making a down payment on\n\ntools. Appellant also told Monaghan that only four people lived in the house—herself, her two\n\nsons, and a woman named Sue.\n\n Moreover, although appellant repeatedly denied that she sold any pills, she implied the\n\nopposite by stating that Gale “comes to me when he runs out” and that he “sells more than I do.”\n\nWhen Monaghan told appellant that two of her pills were found on Sue, appellant first claimed\n\nthat she only gave the pills to Sue so that Sue could give them back later when appellant needed\n\nthem. She then admitted that she gave pills to Sue for Sue’s own use but claimed that she did so\n\nonly because Sue had a prescription for the same pills.\n\n It is well-established that “[d]etermining the credibility of witnesses . . . is within the\n\nexclusive province of the [fact finder], which has the unique opportunity to observe the\n\ndemeanor of the witnesses as they testify.” Dalton v. Commonwealth, 64 Va. App. 512, 525\n\n(2015) (quoting Lea v. Commonwealth, 16 Va. App. 300, 304 (1993)). Moreover, “[i]n its role\n\nof judging witness credibility, the fact finder is entitled to disbelieve the self-serving testimony\n\nof the accused and to conclude that the accused is lying to conceal his guilt.” Speller v.\n\nCommonwealth, 69 Va. App. 378, 388 (2018). “When ‘credibility issues have been resolved by\n\nthe [fact finder] in favor of the Commonwealth, those findings will not be disturbed on appeal\n\nunless plainly wrong.’” Towler v. Commonwealth, 59 Va. App. 284, 291 (2011) (quoting Corvin\n\nv. Commonwealth, 13 Va. App. 296, 299 (1991)). Here, the record demonstrates that appellant\n\nprovided vague, inconsistent, and contradictory explanations for the presence of the cash in her\n\nsafe and as to whether she distributed pills to others. “[A] fact-finder, having rejected a\n\n - 11 -\n\fdefendant’s attempted explanation as untrue, may draw the reasonable inference that his\n\nexplanation was made falsely in an effort to conceal his guilt.” Covil v. Commonwealth, 268 Va.\n\n692, 696 (2004).\n\n Based on the evidence above—including Monaghan’s search of Gale before and after the\n\ncontrolled buy and his receipt of the pills from Gale; the audio recording reflecting the exchange\n\nof money between Gale and appellant; the buy money found in appellant’s safe; the items\n\nindicative of drug distribution found in appellant’s home; and appellant’s inconsistent statements\n\nand statements indicating that she distributed drugs—it is clear the trial court was not plainly\n\nwrong in concluding that the evidence was sufficient to support appellant’s conviction.\n\n Appellant urges us on appeal to discount this evidence and instead focus on the presence\n\nof individuals other than appellant and Gale during the controlled buy. In support of her\n\nargument that the trial court unreasonably rejected her alternate hypothesis of innocence that the\n\nwoman in the car with Gale or the other woman in the house supplied Gale with the pills,\n\nappellant cites to two decisions of this Court, Jones, 21 Va. App. 435, and Bennett, 69 Va. App.\n\n475. Yet, a review of these cases demonstrates that, contrary to appellant’s argument, they in\n\nfact support the conclusion that the circumstantial evidence in this case was sufficient to support\n\nappellant’s conviction. In both cases, confidential informants involved in controlled buys of\n\ndrugs did not testify at trial. Jones, 21 Va. App. at 441-42; Bennett, 69 Va. App. at 479.\n\nNonetheless, our Court affirmed both drug distribution convictions based on the other\n\ncircumstantial evidence presented at trial. Jones, 21 Va. App. at 444; Bennett, 69 Va. App. at\n\n495.\n\n In Jones, police searched the confidential informant, provided him with buy money for a\n\ncontrolled buy, and then drove him to an unspecified location near a restaurant where the\n\ntransaction was to occur. 21 Va. App. at 438. Police lost sight of the confidential informant\n\n - 12 -\n\funtil he walked through an alley into the restaurant’s parking lot. Id. at 438-39. They saw the\n\nconfidential informant and the defendant meet in the lot, but lost sight of both of them when they\n\n“momentarily” walked in front of the restaurant. Id. at 439. During this time, police could not\n\nsee whether the confidential informant “went into the restaurant or met other persons.” Id.\n\nThere were also “other restaurant patrons . . . in the area” at the time. Id. After leaving the front\n\nof the restaurant, the confidential informant and the defendant were seen entering the defendant’s\n\ncar, and the confidential informant left the car after a “short time.” Id. Police saw the\n\nconfidential informant walk toward where he was to meet other police officers, but did not see\n\nthe meeting. Id. Police did not see an exchange of money or drugs between the defendant and\n\nthe confidential informant. Id. at 438-39. Our Court affirmed the defendant’s conviction, noting\n\nthat the evidence established that before meeting with the defendant, the confidential informant\n\ndid not possess any drugs and had $2,500 in currency and that after meeting with the defendant\n\n“for the purpose of purchasing drugs,” the confidential informant no longer had the $2,500 but\n\ndid possess two ounces of cocaine. Id. at 444. We held that “[t]he fact that the officers did not\n\nhave [the confidential informant] under surveillance the entire time he was away from [the\n\nofficers] does not establish a reasonable hypothesis that someone other than [the defendant] was\n\nthe source of the cocaine.” Id.\n\n In Bennett, police used a “live” audio feed to monitor the controlled buy and made and\n\nreviewed additional audio and video recordings of the transaction. 69 Va. App. at 480. The\n\nconfidential informant called the defendant, and during this call mentioned slang terms for\n\ntobacco cigarettes dipped in PCP and crack cocaine. Id. at 480-81. After this call, and a\n\nsubsequent call during which the defendant told the confidential informant where to meet him,\n\npolice observed the informant until he entered an apartment complex. Id. at 481. After the\n\nconfidential informant was out of sight, police heard the informant’s and the defendant’s voices\n\n - 13 -\n\fon the live audio feed, as well as other unidentified voices. Id. The video recording showed the\n\nconfidential informant encountering two different people inside the residence—a woman who\n\nwas “fleetingly” visible in the living room at the beginning of the video, and the defendant who\n\nwas visible during the remainder of the video. Id. at 482. The video showed the defendant\n\nholding a plastic sandwich bag and two slightly discolored cigarettes. Id. Affirming the trial\n\ncourt’s conviction, our Court noted that “investigators searched the informant before and after\n\nthe transaction, monitored his movements throughout the relevant period of time, and kept him in\n\nview except for the period during which he met the [defendant].” Id. at 494-95.\n\n These decisions provide the holding, relevant here, that lapses in police surveillance or\n\nthe presence of other individuals during controlled buys do not render the evidence insufficient\n\nwhen the confidential informant fails to testify at trial. Instead, as in all circumstantial evidence\n\ncases, the determination of whether an alternative hypothesis of innocence is reasonable is one\n\nmade by the fact finder below upon consideration of the totality of the circumstances and is one\n\nthat we do not disturb on appeal unless plainly wrong. Wood, 57 Va. App. at 306. Accordingly,\n\nwe conclude, as in Jones and Bennett, that the fact that Gale was not under surveillance during\n\nthe entirety of the controlled buy and that other individuals were present during the buy did not\n\nmake the trial court’s rejection of her alternate hypothesis of innocence unreasonable.6\n\n The trial court, sitting as fact finder, “determines which reasonable inferences should be\n\ndrawn from the evidence, and whether to reject as unreasonable the hypotheses of innocence\n\nadvanced by a defendant.” Moseley, 293 Va. at 464. Appellant has failed to show that the trial\n\ncourt’s rejection of her alternative hypotheses of innocence was “plainly wrong.” Wood, 57\n\n\n\n\n 6\n In addition, we note that the evidence in this case is strengthened by a fact not present in\neither Jones or Bennett—here, an exchange of money between appellant and Gale was\nacknowledged by appellant during the audio recording.\n - 14 -\n\fVa. App. at 306. Therefore, we conclude that the trial court did not err in convicting her of the\n\ncharged offense.7\n\n III. CONCLUSION\n\n For the reasons stated above, the trial court did not err in convicting appellant of\n\ndistribution of a Schedule I or II controlled substance. Accordingly, we affirm the judgment of\n\nthe trial court.\n\n Affirmed.\n\n\n\n\n 7\n We acknowledge that, as noted above, in circumstantial evidence cases, the\nCommonwealth must establish “an unbroken evidentiary chain of necessary circumstances” to\nprove the defendant’s guilt beyond a reasonable doubt. Moseley, 293 Va. at 463. However, this\nlanguage does not mean that the circumstantial evidence here is insufficient because Monaghan\nlost sight of Gale while Gale was in appellant’s home or because other individuals can be heard\non the audio recording of the controlled buy. Those particular facts do not “break” the chain of\ncircumstantial evidence linking appellant to the offense in this case. Our case law is clear on\nthis—if circumstances indicating that persons other than the defendant were present during a\ncontrolled buy meant that the evidentiary chain was “broken,” then our Court would have had to\nreverse the convictions in Jones and Bennett. Instead, properly viewed, the fact finders in Jones\nand Bennett, as well as the trial court here, were allowed to view the evidence in its entirety and\ndetermine whether the defendant’s alternate hypothesis of innocence was reasonable in light of\nall the circumstances presented to the court.\n Reviewing the Commonwealth’s evidence, we find that it clearly established an unbroken\nchain linking appellant to the distribution of oxymorphone to Gale. Each piece of circumstantial\nevidence described above provided a circumstance upon circumstance from which the fact finder\ncould rationally conclude that appellant sold the pills to Gale. “While no single piece of\n[circumstantial] evidence may be sufficient, the ‘combined force of many concurrent and related\ncircumstances, each insufficient in itself, may lead a reasonable mind irresistibly to a\nconclusion.’” Ervin v. Commonwealth, 57 Va. App. 495, 505 (2011) (en banc) (alteration in\noriginal) (quoting Stamper v. Commonwealth, 220 Va. 260, 273 (1979)).\n - 15 -\n\fChaney, J., with whom Causey, J., joins, dissenting.\n\n The trial court convicted appellant, Teresa Maust (defendant), of distributing three\n\noxymorphone pills to a police informant, although the evidence was insufficient to support a finding\n\nthat defendant distributed the pills that police obtained from the informant. Considering the totality\n\nof the evidence and all reasonable inferences therefrom in the light most favorable to the\n\nCommonwealth, substantial gaps in the chain of evidence render the wholly circumstantial evidence\n\ninsufficient for any rational fact-finder to find beyond a reasonable doubt that defendant, and not\n\nsome other person, distributed the oxymorphone pills recovered from the informant. Therefore, we\n\nrespectfully dissent from the majority’s opinion affirming defendant’s conviction for distribution of\n\na Schedule II controlled substance in violation of Code § 18.2-248.\n\n BACKGROUND\n\n On October 1, 2018, Detective Monaghan obtained three oxymorphone pills from a paid\n\npolice informant who died before trial, making him unavailable to testify.8 Consequently, there was\n\nno eyewitness testimony about the informant’s interaction with defendant on the alleged offense\n\ndate. The police did not observe the informant’s interaction with defendant, and there was no video\n\nrecording of their interaction. The police had no live audio feed of the informant’s activities and\n\ncommunications with defendant. The only evidence of the informant’s interaction with defendant\n\non the date of the alleged offense, October 1, is a poor-quality audio recording from the recording\n\ndevice that police wired to the informant. The detective testified that parts of the audio recording\n\nrecovered from the informant sounded “very garbled.” At various points while the recording\n\nwas played at trial, the trial court observed that nothing intelligible could be heard.\n\n\n\n\n 8\n The informant had previously acted as a police informant to “work off charges.” Here,\nthe police were paying the informant. When he worked for money, the police usually paid the\ninformant $100 per investigation.\n - 16 -\n\f Before the informant drove to defendant’s house on October 1, the detective met with the\n\ninformant to provide him with the recording device and $320. Before giving the money to the\n\ninformant, the detective recorded each bill’s denomination and serial number. The detective gave\n\nthe informant $300 to buy three oxymorphone pills and an additional $20 to repay a $16 debt the\n\ninformant claimed he owed defendant. To ensure that any drugs eventually recovered from the\n\ninformant were obtained from defendant and not another source, the detective (i) searched the\n\ninformant’s person and vehicle before the informant drove to defendant’s house, (ii) wired the\n\ninformant with an audio recording device, and (iii) followed the informant’s vehicle most of the\n\nway to and from defendant’s house.\n\n The informant was a drug addict and a convicted felon with a lengthy criminal record. The\n\ndetective instructed the informant to drive to defendant’s house and purchase oxymorphone pills\n\nwith “buy money” from the sheriff’s department.\n\n The audio recording recovered from the informant demonstrated that an unidentified person\n\nwas in the informant’s vehicle conversing with him during his drive to and from defendant’s house.\n\nThere is no evidence that the police ever searched the informant’s driving companion, and no\n\nevidence that the police were even aware of the presence of the informant’s driving companion\n\nduring the “controlled buy.”\n\n When the detective followed the informant’s vehicle to defendant’s house, he lost sight of\n\nthe informant after the informant drove up defendant’s driveway. The detective could not see the\n\ninformant’s vehicle at the end of the driveway, nor could he see the informant enter or exit\n\ndefendant’s house. Other vehicles were parked in defendant’s driveway while the informant was\n\nat defendant’s house. The detective testified that he did not know how many people were in\n\ndefendant’s house while the informant was there on October 1, 2018. The informant’s audio\n\nrecording demonstrated that at least two persons other than defendant were present in defendant’s\n\n - 17 -\n\fhouse while the informant was there, and at least one of them communicated with the informant.\n\nThe recording also indicates that before the informant drove away from defendant’s house, he was\n\nout of defendant’s presence for a continuous period of approximately two minutes. The evidence\n\ndoes not establish the whereabouts of the informant’s driving companion during the approximate\n\nten-minute period when the informant was inside defendant’s house.\n\n After the informant and defendant exchanged greetings, following some static and\n\nunintelligible communications on the audio recording, the informant exchanged greetings with\n\nan unidentified male. The recorded conversation between the informant and defendant promptly\n\nturned to the subject of appliances that defendant was selling. Then the informant briefly went\n\noutside to his vehicle to retrieve the money he left there. When the informant returned, he stated\n\nthat he owed defendant $14 and asked if she had change. He gave defendant some money and after\n\nthey both commented on the “old style” of the bills, defendant said “two forty and four.” Then they\n\nresumed the conversation about appliances, and the informant asked to see the stove and\n\nrefrigerator. The informant also stated that his current stove wasn’t working properly.\n\n As the informant is heard moving to the location of the appliances, he greeted another\n\nunidentified person. After additional conversation about the appliances, the informant took pictures\n\nof them. As the informant was taking pictures, defendant stated, “I owe you six bucks, right? You\n\nowe me two fifty four.” The informant replied, “Sixteen.” Defendant responded, “Two fifty four.\n\nAnd you gave me two seventy.” A moment later, defendant said, “Let me get change.” Defendant\n\nmade some additional remarks about the worth of the appliances and then said, “Give me a second.”\n\nThe informant replied that he would be outside. While the informant was near the appliances, the\n\nsound of an unidentified woman talking was twice recorded.\n\n The next communication between defendant and the informant was about two minutes later.\n\nDuring the intervening two minutes, the informant was recorded moving outside and then talking.\n\n - 18 -\n\fSome other unidentifiable sounds of movement were also recorded. When defendant returned with\n\nthe informant’s change, the informant told defendant that both his mother and sister may also be\n\ninterested in the appliances.\n\n After the informant left defendant’s house, he and the detective separately drove back to\n\nthe same commuter lot where they had met earlier that day. The detective retrieved the audio\n\nrecording device and again searched the informant’s person and vehicle. The informant did not\n\nhave any of the buy money, but he did have $16 in cash which was not part of the buy money—\n\nthe same amount that the informant stated he was owed in change after giving defendant $270.\n\nThe informant also turned over three pills that were subsequently found to contain oxymorphone,\n\na Schedule II controlled substance.\n\n The next day, on October 2, 2018, the detective executed a search warrant at defendant’s\n\nhouse. The police found numerous pills, a pill press or pill crusher, and “numerous prescription\n\nbottles for different narcotics, the majority of which were empty.” Some pills that were found\n\nwere prescribed to defendant, and others were prescribed to her female tenant.\n\n While the search of defendant’s house was underway, defendant arrived home with her\n\nfemale tenant. Defendant gave the detective the combination to a safe that was found in her\n\nbedroom. Defendant told the detective that some money in the safe may have been money that\n\nthe informant had borrowed and repaid to her.\n\n When the detective interviewed defendant during the search, defendant stated that the\n\nresidents of her house included herself, her two adult sons, and her female tenant. Defendant\n\ninitially denied any involvement in narcotics dealing. Defendant told the detective that she had\n\nlegitimate prescriptions for an injury. Defendant stated that her ex-husband would steal and sell\n\nher prescribed pills, but she acknowledged that her ex-husband had moved out the month before.\n\nDefendant admitted that sometimes she lends pills to her friends if they run out, but she denied\n\n - 19 -\n\fselling pills. The detective informed defendant that such distribution of controlled substances is\n\nalso illegal. In response to the detective’s statement that “we purchased these pills,” defendant\n\nreplied that any money she received from the informant was for payment of a debt. Defendant\n\nstated, “I don’t know why you’re bothering me, he’s a way bigger dealer than I am.”\n\n The police found $4,351 in the safe, including $270 of the buy money that the detective\n\ngave the informant. The detective testified that “there was sixteen one hundred dollar bills, there\n\nwere twenty-seven fifty dollar bills, there were fifty-nine twenty dollar bills, there were eighteen\n\nten dollar bills, there were [eight five] dollar bills, and there was one one dollar bill which totaled\n\nup to four thousand, three hundred and fifty-one.” The police found an additional $138\n\nelsewhere in defendant’s bedroom.\n\n All the money in the safe was inside an envelope with writing on it that included the\n\nfollowing notations,9 arranged in two columns:\n\n B = 11 1100\n G = 17 850\n J = 121 2420\n H = 25 250\n L = 19 95\n 4710\n\nThe detective characterized the writing on the envelope as an “owe sheet” used to keep track of\n\ndrugs given out on credit. The detective also testified that the numbers next to the letters could\n\nrepresent pills or money. Defendant testified that the writings on the envelope were a record of\n\nher prior count of the money in the envelope. Defendant explained that each letter represented\n\nthe denomination of the bills, e.g., “B” for Benjamin, “H” for Hamilton, and “L” for Lincoln.\n\nDefendant testified that the second column was the tally of the money. When defendant’s\n\ncounsel attempted to argue that the initials on the purported owe sheet represent denominations\n\n\n 9\n On Commonwealth’s Exhibit 3, the top portion of the first number in the second column\nis obscured by an evidence sticker, but the number appears to be “1100.”\n - 20 -\n\fof United States currency, the trial court interrupted her closing argument stating, “Ms. Coleman,\n\nnobody does that.”10 This finding followed the detective’s testimony showing that the detective\n\ncounted the money from the safe by counting the number of bills in each denomination and\n\nadding these amounts together to determine the total amount.\n\n Applying elementary arithmetic to the information in the above table, 11 “Benjamins,”\n\ni.e., 11 one-hundred-dollar bills, amounts to $1100, as stated on the first line in the second\n\ncolumn; 17 “Grants,” i.e., 17 fifty-dollar bills, amounts to $850, as stated on the second line in\n\nthe second column; 121 “Jacksons,” i.e., 121 twenty-dollar bills, amounts to $2,420, as stated on\n\nthe third line in the second column; 25 “Hamiltons,” i.e., 25 ten-dollar bills, amounts to $250, as\n\nstated on the fourth line in the second column; and 19 “Lincolns,” i.e., 19 five-dollar bills,\n\namounts to $95, as stated on line five in the second column. When the numbers in the second\n\n\n\n\n 10\n The trial court unreasonably rejected defendant’s explanation that the writing on the\nenvelope containing cash was a recorded count of money by currency denominations, not an\n“owe sheet.” First, it is highly unlikely that individuals on the purported “owe sheet” would\nhave identifying initials coinciding exactly with the first letters of the “nicknames” of currency\ndenominations: B, J, G, H, and L. In addition to it being highly improbable that B, J, G, H, and\nL are the initials of five individuals chosen at random, it is even more unlikely that those five\nindividuals would owe amounts that correspond precisely with multiples of the currency\ndenomination identified by their initial. As can be confirmed by simple counting and use of\nelementary arithmetic, only 1 in 5 numbers are multiples of 5; only 1 in 10 numbers are multiples\nof 10; only 1 in 20 numbers are multiples of 20; only 1 in 50 numbers are multiples of 50; and\nonly 1 in 100 numbers are multiples of 100. It is extremely unlikely that the amounts owed by\nall five individuals would be exact multiples of the currency denomination corresponding to their\ninitial. In contrast, the hypothesis of innocence that the notations are a recorded count of cash\nmoney by currency denominations is a complete explanation of the letters and corresponding\nnumbers on the envelope.\n Because it is so highly improbable that the notations on the envelope are an “owe sheet”\nand not a recorded count of money by currency denominations, the trial court erred by arbitrarily\nrejecting defendant’s innocent explanation of the notations. See Wright v. Commonwealth,\n292 Va. 386, 397 (2016) (“[W]here a fact is equally susceptible of two interpretations one of\nwhich is consistent with the innocence of the accused, [the trier of fact] cannot arbitrarily adopt\nthat interpretation which incriminates [the accused].” (alterations in original) (quoting\nCommonwealth v. Smith, 259 Va. 780, 782 (2000))).\n - 21 -\n\fcolumn are added together, the sum is 4,715, approximately the same as the number on the sixth\n\nline in the second column beneath the horizontal line, i.e., 4710.\n\n Defendant testified that on October 1, 2018, the informant came to her house to look at\n\nappliances that she was selling and to give her “a down payment for a pancake compressor and a\n\nframing nail gun.” Defendant also testified that the informant paid her back around $150 that he\n\nhad borrowed.\n\n ANALYSIS\n\n Considering the totality of the evidence, the evidence is insufficient to sustain the\n\nconviction for drug distribution because no rational fact-finder can find beyond a reasonable\n\ndoubt that the wholly circumstantial evidence formed an unbroken chain of necessary\n\ncircumstances linking defendant to the crime of distributing the three oxymorphone pills\n\nrecovered from the informant. In other words, the evidence as a whole failed to exclude the\n\nreasonable hypothesis of innocence that the informant obtained the oxymorphone pills from\n\nsomeone other than defendant. According to our Supreme Court’s longstanding precedent,\n\n Where the evidence is entirely circumstantial, all necessary\n circumstances proved must be consistent with guilt and inconsistent\n with innocence and must exclude every reasonable hypothesis of\n innocence. The chain of necessary circumstances must be unbroken.\n The circumstances of motive, time, place, means and conduct must\n all concur to form an unbroken chain which links the defendant to\n the crime beyond a reasonable doubt.\n\nBrown v. Commonwealth, 238 Va. 213, 220 (1989) (quoting Bishop v. Commonwealth, 227 Va.\n\n164, 169 (1984)). “While a conviction may properly be based upon circumstantial evidence,\n\nsuspicion or even probability of guilt is not sufficient.” Gordon v. Commonwealth, 212 Va. 298,\n\n300 (1971). “[E]vidence that raises no more than a suspicion of guilt ‘no matter how strong, is\n\ninsufficient to sustain a criminal conviction.’” Wright v. Commonwealth, 292 Va. 386, 397 (2016)\n\n(quoting Stover v. Commonwealth, 222 Va. 618, 624 (1981)). Proof of a mere opportunity to\n\n - 22 -\n\fcommit an offense provides only “the suspicion that the defendant may have been the guilty\n\nagent; and suspicion is never enough to sustain a conviction.” Simmons v. Commonwealth, 208\n\nVa. 778, 783 (1968).\n\n Here, substantial gaps in the chain of evidence preclude a finding by a rational fact-finder\n\nthat defendant distributed the three oxymorphone pills recovered from the informant. A fatal gap in\n\nthe chain of necessary circumstances exists because the informant’s acquisition of the oxymorphone\n\npills was not “controlled” by the detective. The unexplained presence of the informant’s unsearched\n\ndriving companion defeated the detective’s purpose in searching the informant and his vehicle\n\nbefore he met with defendant. Given this break in the chain of necessary circumstances, a rational\n\nfact-finder cannot find beyond a reasonable doubt that defendant distributed the drugs recovered\n\nfrom the informant.\n\n Additional gaps in the chain of evidence were created by the gaps in audio surveillance due\n\nto the poor quality of the audio recording recovered from the informant. As the detective testified,\n\nparts of the recorded audio were “very garbled” due to static or other issues. As the trial court\n\nobserved, some parts of the recorded audio emitted no sound.\n\n Another fatal gap in the chain of circumstances necessary to prove defendant’s criminal\n\nagency relates to the informant’s unmonitored access to two persons other than defendant when the\n\ninformant was inside defendant’s house. The informant’s recording device recorded the voices of\n\ntwo persons other than defendant inside defendant’s house. A male voice was recorded exchanging\n\ngreetings with the informant. A female voice was twice recorded in the informant’s company just\n\nbefore the informant announced that he would wait for defendant outside. Additionally, the\n\ninformant’s recording had several unintelligible garbled segments, creating gaps in the audio\n\nsurveillance. Based on the totality of evidence, a rational fact-finder could not find that the\n\ninformant “could not have obtained the [controlled substance] from a source other than the\n\n - 23 -\n\fdefendant.” Jones v. Commonwealth, 21 Va. App. 435, 443 (1995) (en banc) (affirming\n\nconviction for drug distribution to a police informant where the circumstantial evidence did not\n\nestablish that the informant had access to someone other than defendant at the time of the\n\ncontrolled drug buy). Given the informant’s access to persons other than defendant between the\n\ntime the detective initially searched the informant and the time the detective recovered the drugs\n\nfrom the informant, there is a fatal break in the chain of circumstances necessary to support a\n\nfinding that defendant, and not someone else, distributed the drugs recovered from the informant.\n\nBecause the informant’s drug acquisition was not “controlled,” a rational fact-finder’s\n\nconsideration of the totality of the evidence precludes a finding beyond a reasonable doubt that\n\ndefendant distributed the oxymorphone pills in evidence.\n\n Additional evidence of the uncontrolled nature of the informant’s activities is the\n\ndiscrepancy between the amount of money that the detective recovered from the informant and the\n\namount of money that the informant should have returned to the detective. According to the\n\nrecorded conversation between the informant and defendant, (i) the informant owed defendant\n\nmoney, (ii) the informant gave defendant $270, and (iii) defendant gave the informant $16 in\n\nchange. The detective found the $270 that the informant gave defendant in defendant’s safe. The\n\ndetective recovered $16 from the informant that was not from the set of dollar bills that the detective\n\ngave the informant. Given that the detective gave the informant $320 and the informant paid\n\ndefendant $254, the informant should have returned $66 to the detective. But after searching the\n\ninformant and his vehicle, the detective recovered only $16. The evidence demonstrates that during\n\nthe purportedly controlled buy, the informant was able to conceal or transfer $50 without notice by\n\nthe detective. Given this, no rational fact-finder could find from the evidence that the informant\n\ncould not have retrieved the three oxymorphone pills from somewhere or obtained them from\n\nsomeone other than defendant. See id. (affirming drug distribution conviction based on\n\n - 24 -\n\fcircumstantial evidence of criminal agency because the evidence supported a finding that the\n\ninformant “could not have obtained the [controlled substance] from a source other than the\n\ndefendant”).\n\n Although the undisputed evidence supports the trial court’s finding that defendant\n\n“engaged in some kind of financial transaction,” the evidence is insufficient to support a finding\n\nthat this was a drug transaction. In holding otherwise, the majority mistakes speculative\n\nsuspicion for reasonable inference. The only evidence that defendant gave the informant\n\nsomething after receiving $270 from him is the evidence that she gave him $16. On the\n\ninformant’s audio recording, defendant stated that the informant owed her $254 and the\n\ninformant stated that she owed him $16 back after he gave her $270. The totality of the evidence\n\ndoes not support a finding beyond a reasonable doubt that this was a drug transaction.\n\n Even if the evidence supports a finding that defendant was a drug dealer, fatal gaps in the\n\nchain of evidence preclude a rational fact-finder from finding beyond a reasonable doubt that\n\ndefendant distributed the three oxymorphone pills recovered from the informant. Defendant was\n\nnot on trial for being a drug dealer, but for distributing the oxymorphone pills recovered from the\n\ninformant on October 1, 2018. Proof that a defendant is a drug dealer is insufficient to support\n\nan inference that the defendant sold drugs to a particular individual on a specific date as charged.\n\nThe totality of the evidence is insufficient to prove defendant’s criminal agency with respect to\n\nthe charged distribution offense given the substantial gaps in the chain of circumstances\n\nnecessary for such proof. Taking all the evidence in the light most favorable to the\n\nCommonwealth, the evidence does not point unerringly to defendant as the source of the pills\n\nrecovered from the informant. Considered as a whole, the evidence creates no more than mere\n\nsuspicion or probability of defendant’s guilt. “[T]o sustain a criminal conviction, the\n\nCommonwealth is required to prove more than a suspicion of guilt or probability of guilt.”\n\n - 25 -\n\fMcMorris v. Commonwealth, 276 Va. 500, 506 (2008). Under this standard, the conviction\n\nshould be reversed.\n\n CONCLUSION\n\n The totality of the evidence does not form an unbroken chain of circumstances necessary for\n\na rational fact-finder to find beyond a reasonable doubt that defendant—and not someone else—\n\ndistributed the oxymorphone pills recovered from the informant. Therefore, we respectfully dissent\n\nfrom the judgment affirming the conviction for distribution of a Schedule II controlled substance.\n\n\n\n\n - 26 -\n\fVIRGINIA:\n In the Court of Appeals of Virginia on Tuesday the 30th day of August, 2022.\n\n\nTeresa Mary Maust, Appellant,\n\nagainst Record No. 0505-21-4\n Circuit Court No. CR19000465-02\n\nCommonwealth of Virginia, Appellee.\n\n Upon a Petition for Rehearing En Banc\n\n Before the Full Court\n\n\n On August 22, 2022 came the appellee, by the Attorney General of Virginia, and filed a petition\n\nrequesting that the Court set aside the judgment rendered herein on August 9, 2022, and grant a rehearing en\n\nbanc on the issue(s) raised in the petition.\n\n On consideration whereof and pursuant to Rule 5A:35 of the Rules of the Supreme Court of Virginia,\n\nthe petition for rehearing en banc is granted and the appeal of those issues is reinstated on the docket of this\n\nCourt. The mandate previously entered herein is stayed pending the decision of the Court en banc.\n\n The parties shall file briefs in compliance with the schedule set forth in Rule 5A:35(b). The appellant\n\nshall attach as an addendum to the opening brief upon rehearing en banc a copy of the opinion previously\n\nrendered by the Court in this matter. An electronic version of each brief shall be filed with the Court and\n\nserved on opposing counsel.1\n\n A Copy,\n\n Teste:\n A. John Vollino, Clerk\n\n original order signed by a deputy clerk of the\n By: Court of Appeals of Virginia at the direction\n of the Court\n Deputy Clerk\n\n 1\n The guidelines for filing electronic briefs and appendices can be found at\nwww.courts.state.va.us/online/vaces/resources/guidelines.pdf.\n\f COURT OF APPEALS OF VIRGINIA\nUNPUBLISHED\n\n Present: Judges Malveaux, Causey and Chaney\n Argued by videoconference\n\n\n TERESA MARY MAUST\n MEMORANDUM OPINION* BY\n v. Record No. 0505-21-4 JUDGE VERNIDA R. CHANEY\n AUGUST 9, 2022\n COMMONWEALTH OF VIRGINIA\n\n\n FROM THE CIRCUIT COURT OF STAFFORD COUNTY\n J. Bruce Strickland, Judge1\n\n Andrew J. Cornick (Andrew J. Cornick, LLC, on brief), for\n appellant.\n\n Timothy J. Huffstutter, Assistant Attorney General (Mark R.\n Herring,2 Attorney General, on brief), for appellee.\n\n\n Teresa Mary Maust (“Maust”) appeals from the judgment of the Circuit Court of Stafford\n\n County (“trial court”) convicting and sentencing her for felony distribution of a Schedule I or II\n\n controlled substance, in violation of Code § 18.2-248. Maust was sentenced to confinement for a\n\n period of five years with all but three months suspended for five years. On appeal, Maust\n\n contends that the trial court erred as a matter of law in finding that the circumstantial evidence\n\n reasonably excluded Maust’s hypothesis of innocence and proved beyond a reasonable doubt that\n\n Maust distributed oxymorphone on October 1, 2018. For the following reasons, this Court\n\n reverses the trial court’s judgment.\n\n\n\n *\n Pursuant to Code § 17.1-413, this opinion is not designated for publication\n 1\n Judge J. Bruce Strickland entered the final sentencing order in this case. Judge Charles\n S. Sharp conducted Maust’s trial, found her guilty, and entered the conviction order.\n 2\n Jason S. Miyares succeeded Mark R. Herring as Attorney General on January 15, 2022.\n\f I. BACKGROUND\n\n A. The Investigation of Maust\n\n i. Staging the Investigation\n\n On October 1, 2018, at around 5:00 p.m., Stafford County Detective Shawn Monaghan\n\n(“the detective”) met with Robert Gale (“Gale”), a paid informant, at a “staging area” in a\n\ncommuter parking lot to conduct a narcotics investigation.3 Maust was the target of the\n\ninvestigation. Gale was a drug addict whose “drug of choice” was opiates. Gale was also a\n\nconvicted felon with a lengthy criminal record.\n\n The detective instructed Gale to drive to Maust’s residence and purchase opioid pills\n\nfrom her with “buy money” from the sheriff’s department. The detective gave Gale $300 to buy\n\nthree opioid pills at $100 per pill, plus an additional $20 because Gale said he owed Maust $16.\n\nBefore the detective gave the buy money to Gale, the detective recorded the denominations and\n\nserial numbers.\n\n The detective searched Gale’s person and vehicle for drugs and money to ensure that he\n\nwas not bringing any drugs or other money to Maust’s residence. The detective equipped Gale\n\nwith an on-person audio recording device and followed Gale’s vehicle to and from Maust’s\n\nresidence in Stafford County. However, the detective was unable to hear live audio of Gale’s\n\nactivities and communications.\n\n While following Gale, the detective lost sight of him after he drove up the driveway to\n\nMaust’s house. The detective could not see Gale’s vehicle at the end of the driveway, nor could\n\nhe see Gale enter or exit Maust’s house. The detective observed other cars in the driveway. The\n\ndetective did not recall whether there were any cars in the garage. The detective maintained a\n\n\n 3\n Gale had previously acted as a police informant to “work off charges.” On this day, the\npolice were paying Gale for his informant work. When he worked for money, the police usually\npaid Gale $100 per investigation.\n -2-\n\fphysical distance from Maust’s residence to avoid being seen by anyone in Maust’s house. The\n\ndetective testified that he did not know how many people were in Maust’s house while Gale was\n\nthere on October 1, 2018.\n\n ii. The Evidence Recovered from Gale\n\n The audio recording recovered from Gale recorded Gale talking with an unidentified\n\nperson (“Gale’s companion”) who was in the car with Gale after 5:00 p.m. during the drive to\n\nand from Maust’s house. During the recorded conversation, Gale mentioned that he and his\n\ncompanion had also been driving together in the car that morning.4 During the drive to Maust’s\n\nhouse, a few minutes before Gale arrived there, Gale instructed his companion, “Text her and say\n\nhere.” There is no evidence of the whereabouts of Gale’s companion while Gale was inside\n\nMaust’s house.\n\n Gale’s recorded conversation with Maust began with a greeting and promptly turned to\n\nthe subject of appliances that Maust was selling from her home. Gale told Maust to “hold on for\n\na second,” and he apparently went to his car to retrieve the money.\n\n When Gale returned, he said, “I owe you the fourteen dollars. Do you have change?”\n\nAfter Maust and Gale both commented on the “old style” of the bills, Maust replied, “two forty\n\nand four.” Gale responded, “Ok.” Then Maust and Gale resumed discussion of the appliances\n\nthat Maust was selling.\n\n Following some static and garbled transmission on the audio recording, Gale was\n\nrecorded exchanging greetings with an unidentified person.\n\n Maust and Gale continued to discuss the appliances for sale, and Maust told Gale they\n\nwere being sold “first come, first served.” As Gale took pictures of the appliances, Maust said,\n\n\n\n 4\n Gale commented on a noise from the car and told his companion, “Remember, we were\nhearing it this morning.”\n -3-\n\f“I owe you six bucks, right? You owe me two fifty four.” Gale replied, “Sixteen.” Maust\n\nresponded, “Two fifty four. And you gave me two seventy.”\n\n When Gale finished taking pictures of the appliances, the voice of another woman was\n\nrecorded. Maust and Gale continued to talk about the price of the appliances. Maust told Gale\n\nthat she would let people take whatever was left after she removed what she wanted. When\n\nMaust asked Gale to give her a second, Gale said he would wait outside. Then the\n\naforementioned woman’s voice is heard again on the recording.\n\n The audio recording indicates that Maust rejoined Gale about two minutes after Gale said\n\nhe would wait outside. Maust told Gale that the appliances would likely sell quickly and\n\nsuggested that Gale’s mother might want them. Gale replied that both his mother and sister may\n\nbe interested in the appliances.\n\n About ten minutes after Gale drove up Maust’s driveway, Gale drove out of the driveway\n\nand back to the commuter lot, making no unscheduled stops. On the drive back, Gale was\n\nrecorded telling his companion about the appliances that Maust was selling. The detective\n\nfollowed Gale’s car back to the commuter lot where he again met with Gale.\n\n The detective retrieved the audio recording device from Gale and again searched his\n\nperson and vehicle. Gale did not have any of the buy money, but he did have $16 in cash which\n\nwas not part of the buy money. Gale also turned over three round orange tablets imprinted with\n\n“G74.” Subsequently, one of these pills was analyzed by the Virginia Department of Forensic\n\nScience (“DFS”) and “was found to contain Oxymorphone, [a] Schedule II [controlled\n\nsubstance].” Based on visual examination of the other two pills, DFS concluded that their shape,\n\ncolor, and manufacturer’s markings were “consistent with a pharmaceutical preparation\n\ncontaining Oxymorphone.”\n\n\n\n\n -4-\n\f iii. The Search of Maust’s House\n\n The next day, on October 2, 2018, the detective executed a search warrant at Maust’s\n\nhouse. The police found numerous pills, a pill press or pill crusher, and “numerous prescription\n\nbottles for different narcotics, the majority of which were empty.” Some pills that were found\n\nwere prescribed to Maust and others were prescribed to her tenant, Susan Stone.\n\n While the search of Maust’s house was underway, Maust arrived home with Ms. Stone.\n\nMaust gave the detective the combination to a safe that was found in her bedroom. The detective\n\ndid not find out whether any other occupants of the house knew the combination to the safe.\n\n Maust told the detective that she got the safe to keep her ex-husband away from her\n\nmoney. Maust said that she had withdrawn money from her bank account and placed it in the\n\nsafe because she was planning to move. Maust also stated that some money in the safe may have\n\nbeen money that Gale had borrowed and repaid to her.\n\n The police found $4,351 in the safe, including $270 of the buy money given to Gale. The\n\ndetective testified that “there was sixteen one hundred dollar bills, there were twenty-seven fifty\n\ndollar bills, there were fifty-nine twenty dollar bills, there were eighteen ten dollar bills, there\n\nwere [eight five] dollar bills, and there was one one dollar bill which totaled up to four thousand,\n\nthree hundred and fifty-one.” The police found an additional $138 elsewhere in Maust’s\n\nbedroom.\n\n All the money found in the safe was inside an envelope that had writing on it. The\n\nwriting on the envelope included the following notations, arranged in a column: “B = 11,”\n\n“G = 17,” “J = 121,” “H = 25,” and “L = 19.” To the right of this list was a column of numbers:\n\n“1100,5 850, 2420, 250, 95, 4710.” The first five of these numbers in the column appeared\n\n\n\n 5\n On Commonwealth’s Exhibit 3, the top portion of the first number in the second column\nis obscured by an evidence sticker, but the number appears to be “1100.”\n -5-\n\fabove a horizontal line and the last number was below the line. In the detective’s testimony, he\n\ncharacterized the writing on the envelope as an “owe sheet” which is used to keep track of drugs\n\ngiven out on credit. The detective also testified that the numbers next to the letters could\n\nrepresent pills or money.\n\n Maust testified that the writings on the envelope were a record of her prior count of the\n\nmoney in the envelope. Maust explained that each letter represented the denomination of the\n\nbills, e.g., B for Benjamin, H for Hamilton, and L for Lincoln.6 Maust testified that the second\n\ncolumn was the tally of the money.\n\n iv. Maust’s Additional Statements and Testimony\n\n When the detective interviewed Maust during the search on October 2, 2018, Maust\n\nstated that the residents of her house included herself, her two adult sons, and Susan Stone.\n\nMaust initially denied any involvement in narcotics dealing. Maust told the detective that she\n\nhad legitimate prescriptions for an injury. Maust stated that her ex-husband would steal and sell\n\nthe pills prescribed to her, but she acknowledged that her ex-husband had moved out the month\n\nbefore. Maust admitted that sometimes she lends pills to her friends if they run out, but she\n\ndenied selling pills. The detective informed Maust that such distribution of controlled substances\n\nis also illegal. In response to the detective’s statement that “we purchased these pills,” Maust\n\nreplied that any money she received from Gale was for payment of a debt. Maust stated, “I don’t\n\nknow why you’re bothering me, he’s a way bigger dealer than I am.”\n\n At trial, Maust testified that Gale rarely came to her home since she and Gale stopped\n\ndating. Maust testified that on October 1, 2018, Gale came to her house to look at appliances\n\n\n\n 6\n Maust testified that she only used the method of counting bills by denominations once\nout of boredom a year and a half ago and that she “would have to actually look at the bills to tell\nyou what it meant.” The record indicates that Maust was not shown bills in the different\ndenominations to refresh her recollection.\n -6-\n\fthat she was selling and to give her “a down payment for a pancake compressor and a framing\n\nnail gun.” Maust testified that Gale also paid her back around $150 that he had borrowed.\n\nMaust acknowledged that the audio recording from Gale recorded Maust indicating that she\n\nreceived $270 from Gale.\n\n Maust testified that she did not sell drugs to Gale on October 1, 2018. Maust also\n\ntestified that when Gale was in her house that day, she did not recall “exactly everybody that was\n\nin the house,” but she believed that several others were there, including her oldest son and two\n\nother tenants, Stone and Matt Herbigg. Maust identified Susan Stone’s voice as the other female\n\nvoice on the audio recording from Gale. Maust testified that every time Gale came over, he\n\nwould have a private conversation with Susan Stone, but she could not recall whether Gale met\n\nseparately with Ms. Stone on October 1, 2018. Maust testified that she did not see Gale take\n\nthree pills from anywhere in the residence.\n\n v. No Testimony from Informant Gale\n\n Gale died before Maust’s bench trial in February 2020.\n\n B. The Trial Court’s Findings\n\n At trial, the trial court made the following findings on the record:\n\n • No contraband was uncovered when the police initially searched Gale, and the searching\n protocol was sufficient to have made that judgment.\n\n • Gale “went into the home occupied by Ms. Maust, and for a period of approximately ten\n minutes was inside the house.”\n\n • The audio recording recovered from Gale sounded “very garbled.” At various points\n while the recording was played at trial, the trial court noted that nothing could be heard.\n\n • The recorded conversation included discussion about a washer and dryer.\n\n • The audio recording included “what purports to be an exchange of money.”\n\n • Maust’s voice was identified on the recording “engaged in some kind of financial\n transaction, there’s an exchange of money inside her house.”\n\n -7-\n\f • “As a consequence of the audio, the only substantive conversation between any two\n people in the house was that between the informant and Ms. Maust, whose voice was\n identified by the officer.”\n\n • “In the course of the relatively garbled transmission, one thing is clear, that at some point\n there was an exchange of cash money.”\n\n • After Gale left Maust’s house, “upon subsequent search by the officer discovered (a) no\n longer to have that buy money and (b) to have in his possession three pills which are\n without dispute contraband[,] . . . [i.e.,] opioids . . . .”\n\n • “[T]he Court has before it a period of ten minutes in which there was an exchange of\n money and drugs, and the only evidence of contact between any two persons is that\n between the informant, who’s no longer with us, and Ms. Maust.”\n\n • “A subsequent search warrant being executed, the money that was distributed or given to\n the informant and then later handed over presumably to Ms. Maust was found in a safe to\n which [other people] ha[ve] relatively little access, or rather it’s limited to other people.”\n\n • When Maust’s counsel attempted to argue that the initials on the purported owe sheet\n represent denominations of United States currency, the trial court interrupted her closing\n argument stating, “Ms. Coleman, nobody does that.”\n\n • “The only reasonable inference to be drawn from that set of circumstances is that the\n transaction went down exactly as has been argued by the Commonwealth. And whether\n she gave, sold, distributed at a discount, or whatever the case may be, the Court is\n convinced beyond any reasonable doubt that the Commonwealth has met its burden.”\n\n The trial court found Maust guilty of distribution as charged in the indictment. This\n\nappeal followed.\n\n II. ANALYSIS\n\n A. Standard of Review\n\n On appellate review of a criminal conviction, this Court “consider[s] the evidence and all\n\nreasonable inferences flowing from that evidence in the light most favorable to the\n\nCommonwealth, the prevailing party at trial.” Pooler v. Commonwealth, 71 Va. App. 214, 218\n\n(2019) (quoting Williams v. Commonwealth, 49 Va. App. 439, 442 (2007) (en banc)). We\n\n“discard the evidence of the accused in conflict with that of the Commonwealth, and regard as\n\ntrue all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn\n\n -8-\n\ftherefrom.” Commonwealth v. Cady, 300 Va. 325, 329 (2021) (emphasis added) (quoting\n\nCommonwealth v. Perkins, 295 Va. 323, 324 (2018)). The conviction will be affirmed “unless it\n\nis plainly wrong or without evidence to support it.” Sarka v. Commonwealth, 73 Va. App. 56, 62\n\n(2021) (quoting Austin v. Commonwealth, 60 Va. App. 60, 65 (2012)).\n\n “[W]here a fact is equally susceptible of two interpretations one of which is consistent\n\nwith the innocence of the accused, [the trier of fact] cannot arbitrarily adopt that interpretation\n\nwhich incriminates [the accused].” Wright v. Commonwealth, 292 Va. 386, 397 (2016)\n\n(alterations in original) (quoting Commonwealth v. Smith, 259 Va. 780, 782 (2000)).\n\n “[W]here, as here, a conviction is based on circumstantial evidence, ‘all necessary\n\ncircumstances proved must be consistent with guilt and inconsistent with innocence and exclude\n\nevery reasonable hypothesis of innocence.’” Garland v. Commonwealth, 225 Va. 182, 184\n\n(1983) (quoting Carter v. Commonwealth, 223 Va. 528, 532 (1982)). “While a conviction may\n\nproperly be based upon circumstantial evidence, suspicion or even probability of guilt is not\n\nsufficient.” Gordon v. Commonwealth, 212 Va. 298, 300 (1971); see also Wright, 292 Va. at\n\n397 (“evidence that raises no more than a suspicion of guilt ‘no matter how strong, is insufficient\n\nto sustain a criminal conviction’” (quoting Stover v. Commonwealth, 222 Va. 618, 624 (1981))).\n\n To establish proof beyond a reasonable doubt, “the chain of necessary circumstances\n\nmust be unbroken and the evidence as a whole must satisfy the guarded judgment that both the\n\ncorpus delicti and the criminal agency of the accused have been proved to the exclusion of any\n\nother rational hypothesis and to a moral certainty.” Wright, 292 Va. at 397 (quoting LaPrade v.\n\nCommonwealth, 191 Va. 410, 418 (1950)). Proof of a mere opportunity to commit an offense\n\nprovides only “the suspicion that the defendant may have been the guilty agent; and suspicion is\n\nnever enough to sustain a conviction.” Simmons v. Commonwealth, 208 Va. 778, 783 (1968).\n\n\n\n\n -9-\n\f B. Insufficient Evidence of Drug Distribution by Maust to the Paid Informant\n\n The Commonwealth’s case against Maust did not include any witness testimony\n\nidentifying Maust as the source of the oxymorphone pills recovered from Gale, the paid\n\ninformant who died before trial. To sustain a conviction for drug distribution under these\n\ncircumstances where the Commonwealth relies on circumstantial evidence, the Commonwealth’s\n\nevidence must show that the informant “could not have obtained the [controlled substance] from\n\na source other than the defendant.” Jones v. Commonwealth, 21 Va. App. 435, 443 (1995) (en\n\nbanc) (emphasis added). Absent a showing that Gale had no opportunity to obtain the controlled\n\nsubstance from someone other than Maust, there is a fatal break in the chain of necessary\n\ncircumstances and the evidence fails to prove beyond a reasonable doubt that Maust distributed\n\nthe oxymorphone pills to Gale.\n\n In Jones, this Court considered whether the evidence was sufficient to support the\n\ndefendant’s conviction for cocaine distribution where the police informant who allegedly bought\n\ncocaine from the defendant was unable to testify about the alleged drug purchase. Id. at 440.\n\nWe concluded that “[t]he circumstantial evidence in this case points unerringly to the fact that\n\n[the defendant] was the person who sold cocaine to [the police informant].” Id. at 442. The\n\nfollowing facts supported this conclusion: A meeting between the defendant and a police\n\ninformant was arranged “for the purpose of purchasing drugs.” Id. at 444. A police officer\n\n(“Officer A”) searched the informant to confirm that he did not already possess drugs. See id.\n\nOfficer A, accompanied by another police officer (“Officer B”), transported the informant close\n\nto the place where the informant and the defendant planned to meet. See id. The informant left\n\nOfficer A’s police vehicle and walked for a short time when another police officer (“Officer C”)\n\nobserved the informant enter the defendant’s car along with the defendant. See id. Officer C\n\ncontinuously observed the informant until he left the defendant’s car two minutes later and\n\n - 10 -\n\fwalked back toward the police vehicle where Officers A and B were waiting for him. See id. A\n\nfourth police officer (“Officer D”) observed the defendant drive alone into the parking lot where\n\nhe met the informant. See id. at 439. Officer D observed the informant meet the defendant and\n\nmomentarily lost sight of them before he saw them enter the defendant’s car together. See id. at\n\n439, 442-43. The informant “had neither the time nor the opportunity to purchase the drugs\n\nwhile en route to the designated site and then back” to Officer A’s police vehicle. Id. at 443.\n\nOfficer A recovered two bags of cocaine from the informant when he returned to the police\n\nvehicle after meeting with the defendant. Id. at 438. Based on these facts, this Court concluded\n\nthat “the evidence shows that [the informant] could not have obtained the cocaine from a source\n\nother than the defendant.” Id. (emphasis added). Therefore, we held in Jones that the\n\ncircumstantial evidence established that the informant obtained the illegal drugs from the\n\ndefendant. See id. at 444.\n\n As in this appeal, the defendant in Bennett v. Commonwealth, 69 Va. App. 475 (2018),\n\nappealed his conviction for distributing illegal drugs to an informant who died before the\n\ndefendant’s trial. This Court found that the following evidence was sufficient to support the\n\ndefendant’s conviction: “[T]he informant made advance arrangements for the transaction\n\ndirectly with the appellant.” Id. at 493. Before the transaction, the police investigators searched\n\nthe informant and his vehicle to confirm that he had no drugs. See id. at 480. The investigators\n\nmaintained visual surveillance of the informant until he drove into the apartment complex where\n\nthe informant met with the defendant. See id. at 481. The investigators monitored the drug\n\npurchase with a “live” audio feed and made separate audio and video recordings of the\n\ntransaction. See id. at 480. The video depicted the in-person drug transaction between the\n\ninformant and the defendant. See id. at 481-82. Apart from “a fleeting view” of someone in the\n\n\n\n\n - 11 -\n\ffirst part of the video, “the only people visible in the recording are the informant and the\n\nappellant, the person he asked to sell him the drugs.” See id. at 495.\n\n Here, in contrast with Jones and Bennett, the circumstantial evidence fails to establish\n\nthat the informant, Gale, could not have obtained the illegal drugs from someone other than the\n\nappellant, Maust. Moreover, the circumstantial evidence fails to establish that Gale obtained the\n\nillegal drugs from Maust. The purpose of the detective’s initial search of Gale and his car was\n\ndefeated when an unidentified person accompanied Gale while he drove to and from Maust’s\n\nhouse. Although the detective’s initial search of Gale and his car may support the trial court’s\n\nfinding that Gale possessed no pills before he drove to Maust’s house, there is no evidence that\n\nthe police searched Gale’s unidentified companion. Therefore, there is no evidentiary basis for\n\nexcluding Gale’s companion as the source of the pills recovered from Gale.\n\n In further contrast with Jones and Bennett, the evidence here also fails to show that the\n\ninformant could not have obtained the pills from a source other than the defendant at the place\n\nwhere the alleged drug transaction occurred. The audio recording shows that while Gale was in\n\nMaust’s house, at least two persons other than Maust were also there. In addition to the female\n\nvoice that Maust identified as her tenant, Ms. Stone, a male voice was recorded exchanging\n\ngreetings with Gale. The audio recording also indicates that Gale was away from Maust for\n\napproximately two minutes while he was there. The evidence does not show that Gale could not\n\nhave covertly accessed some of the narcotic pills prescribed to Maust or Ms. Stone. Nor is there\n\nany evidence regarding the whereabouts of Gale’s companion while Gale was inside Maust’s\n\nhouse. Taking all of this evidence in the light most favorable to the Commonwealth, the\n\nevidence does not point unerringly to Maust as the source of the pills recovered from Gale.\n\n The instant case is further distinguished from Jones and Bennett because the evidence\n\nhere failed to establish that Maust met with Gale on the alleged date of offense for the purpose of\n\n - 12 -\n\fdistributing drugs to him. See Jones, 21 Va. App. at 444 (A meeting between the defendant and\n\nthe police informant was arranged “for the purpose of purchasing drugs.”); see also Bennett, 69\n\nVa. App. at 493 (“[T]he informant made advance arrangements for the [drug purchase]\n\ntransaction directly with the appellant.”). Here, the informant made no advance arrangements\n\nwith Maust to purchase drugs from her. The Commonwealth’s evidence failed to exclude the\n\nreasonable hypothesis of innocence that Maust met with Gale for the purpose of showing him\n\nvarious appliances and other items that she was selling in anticipation of her move to a smaller\n\nhome.7 Throughout Maust’s and Gale’s recorded conversation, they discussed the appliances\n\nthat Maust was selling on a “first-come, first served” basis.\n\n The Commonwealth’s evidence also failed to prove that the financial transaction between\n\nMaust and Gale involved the distribution of drugs. Maust stated in the audio recording that Gale\n\n“owed” her “two fifty-four” and gave her “two seventy.” Gale confirmed that he owed Maust\n\n$254 and had given her $270 when he replied that Maust owed him $16 in change. The evidence\n\ndoes not establish that the money was used to purchase drugs rather than to repay Maust for a\n\npersonal loan or to make a legal purchase from Maust’s “moving sale.”8 The Commonwealth’s\n\nevidence failed to exclude these reasonable hypotheses of innocence.9 Moreover, the recorded\n\n\n 7\n The hypothesis of innocence that Maust met with Gale to show him appliances that she\nwas selling flows from the audio recording that Gale covertly recorded.\n 8\n These hypotheses of innocence flow from the audio recording—the Commonwealth’s\nown evidence. Recognizing these hypotheses of innocence as reasonable does not require any\ncredibility determinations in Maust’s favor.\n 9\n The Commonwealth’s evidence also failed to exclude Maust’s innocent explanation for\nthe document that the detective interpreted as an “owe sheet.” Because the evidence\ndemonstrably supports Maust’s innocent explanation that the notations record a count of dollar\nbills by denomination, the trial court erred by arbitrarily rejecting Maust’s innocent explanation\nand adopting the detective’s incriminating interpretation. See Wright, 292 Va. at 397 (“[W]here\na fact is equally susceptible of two interpretations one of which is consistent with the innocence\nof the accused, [the trier of fact] cannot arbitrarily adopt that interpretation which incriminates\n[the accused].” (alterations in original) (quoting Smith, 259 Va. at 782)).\n - 13 -\n\ftransaction is not consistent with Gale’s supposed plan to pay $300 for three pills.10 Therefore,\n\nthe trial court’s finding that the audio recording established “an exchange of money and drugs” is\n\nwithout sufficient evidence to support it.11\n\n Because the chain of necessary circumstances to prove the alleged act of drug distribution\n\nto Gale was repeatedly broken when Gale had opportunities to obtain pills from sources other\n\nthan Maust, the corpus delicti and the criminal agency of the accused have not been proved to\n\nthe exclusion of any other rational hypothesis and to a moral certainty. See Wright, 292 Va. at\n\n397. Therefore, the Commonwealth’s circumstantial evidence is insufficient to support Maust’s\n\nconviction.\n\n III. CONCLUSION\n\n The Commonwealth’s wholly circumstantial evidence is insufficient to exclude the\n\nreasonable hypothesis of innocence that the police informant obtained the oxymorphone pills\n\nfrom a source other than Maust.12 Therefore, the evidence failed to prove beyond a reasonable\n\ndoubt that Maust unlawfully distributed a Schedule II controlled substance on October 1, 2018,\n\n\n 10\n The detective expected Gale to buy three oxymorphone pills at $100 per pill and to\nrepay Maust $20. According to the audio recording, Gale gave Maust $270 and received $16 in\nchange. After paying Maust $254, Gale should have returned $66 to the detective, but returned\nonly $16.\n 11\n Maust was not on trial for being a drug dealer, but for distributing to Gale the\noxymorphone pills recovered from him on October 1, 2018. The dissent includes much\ndiscussion of evidence that Maust distributed drugs to Gale or other persons on prior occasions.\nHowever, neither the Virginia Supreme Court nor this Court has ever held that proof that a\ndefendant is a drug dealer justifies the inference that the defendant sold drugs to a particular\nindividual on a specific date as charged.\n 12\n The dissent contends that the Commonwealth is not required to negate the possibility\nthat the informant obtained the illegal drugs from someone other than Maust. However, when\nthe Commonwealth relies on wholly circumstantial evidence to prove an act of drug distribution,\nthe Commonwealth’s means of proof is by process of elimination. A rational fact-finder cannot\ninfer that Gale obtained the illegal drugs from Maust unless the evidence establishes that Gale\nhad no opportunity to obtain the illegal drugs from another source. See Jones, 21 Va. App. at\n443.\n - 14 -\n\fin violation of Code § 18.2-248. Accordingly, the Court hereby reverses the trial court’s\n\njudgment, vacates the conviction and sentencing orders, and dismisses the indictment.\n\n Reversed and final judgment.\n\n\n\n\n - 15 -\n\fMalveaux, J., dissenting.\n\n The majority holds that the evidence was insufficient to convict appellant for distribution\n\nof a Schedule I or II controlled substance based on the totality of the circumstantial evidence\n\npresented at trial. I respectfully disagree. Given the deference we owe the trial court as fact\n\nfinder and the fact that the evidence, properly viewed, was sufficient to support appellant’s\n\nconviction, I respectfully dissent.\n\n “In accordance with established principles of appellate review for a sufficiency of the\n\nevidence case, we view the ‘evidence in the light most favorable to the Commonwealth, as we\n\nmust since it was the prevailing party in the trial court.’” Peters v. Commonwealth, 72 Va. App.\n\n378, 383 (2020) (quoting Riner v. Commonwealth, 268 Va. 296, 330 (2004)). Therefore, we will\n\n“discard the evidence of the accused in conflict with that of the Commonwealth, and regard as\n\ntrue all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn\n\ntherefrom.” Kelley v. Commonwealth, 289 Va. 463, 467-68 (2015) (quoting Parks v.\n\nCommonwealth, 221 Va. 492, 498 (1980)).\n\n “When reviewing the sufficiency of the evidence, ‘[t]he judgment of the trial court is\n\npresumed correct and will not be disturbed unless it is plainly wrong or without evidence to\n\nsupport it.’” Smith v. Commonwealth, 296 Va. 450, 460 (2018) (alteration in original) (quoting\n\nCommonwealth v. Perkins, 295 Va. 323, 327 (2018)). “In such cases, ‘[t]he Court does not ask\n\nitself whether it believes that the evidence at the trial established guilt beyond a reasonable\n\ndoubt.’” Secret v. Commonwealth, 296 Va. 204, 228 (2018) (alteration in original) (quoting\n\nPijor v. Commonwealth, 294 Va. 502, 512 (2017)). “Rather, the relevant question is whether\n\n‘any rational trier of fact could have found the essential elements of the crime beyond a\n\nreasonable doubt.’” Vasquez v. Commonwealth, 291 Va. 232, 248 (2016) (quoting Williams v.\n\nCommonwealth, 278 Va. 190, 193 (2009)). “If there is evidentiary support for the conviction,\n\n - 16 -\n\f‘the reviewing court is not permitted to substitute its own judgment, even if its opinion might\n\ndiffer from the conclusions reached by the finder of fact at the trial.’” Chavez v. Commonwealth,\n\n69 Va. App. 149, 161 (2018) (quoting Banks v. Commonwealth, 67 Va. App. 273, 288 (2017)).\n\n “Where a controlled purchase of drugs is concerned, ‘without [the informant’s]\n\ntestimony, the evidence proving that the [drugs] came from the defendant” may be “purely\n\ncircumstantial.’” Bennett v. Commonwealth, 69 Va. App. 475, 492 (2018) (alterations in\n\noriginal) (quoting Jones v. Commonwealth, 21 Va. App. 435, 441-42 (1995) (en banc)).\n\nHowever, “[c]ircumstantial evidence is competent and is entitled to as much weight as direct\n\nevidence, provided that [it] is sufficiently convincing.” Pijor, 294 Va. at 512 (quoting Dowden\n\nv. Commonwealth, 260 Va. 459, 468 (2000)). “While no single piece of evidence may be\n\nsufficient, the combined force of many concurrent and related circumstances . . . may lead a\n\nreasonable mind irresistibly to a conclusion.” Id. at 512-13 (quoting Muhammad v.\n\nCommonwealth, 269 Va. 451, 479 (2005)). Our review “does not distinguish between direct and\n\ncircumstantial evidence, as the fact finder itself ‘is entitled to consider all of the evidence,without\n\ndistinction, in reaching its determination.’” Commonwealth v. Moseley, 293 Va. 455, 463 (2017)\n\n(quoting Commonwealth v. Hudson, 265 Va. 505, 513 (2003)).\n\n Applying these standards, I conclude that a rational trier of fact could have found beyond\n\na reasonable doubt that the evidence was sufficient to support a conviction for distribution of a\n\nSchedule I or II controlled substance. In the instant case, the Commonwealth’s evidence, viewed\n\nin the light most favorable to it, demonstrated that Gale went to appellant’s residence with the\n\nbuy money Detective Monaghan provided and the intention of buying oxymorphone pills from\n\nappellant. After arriving, Gale gave the money to appellant and returned ten minutes later with\n\nthree orange oxymorphone pills. Although Monaghan did not witness the transaction, the\n\nrecording demonstrated that Gale interacted with appellant, and she verbally confirmed that he\n\n - 17 -\n\fgave her money. Moreover, Monaghan followed Gale to and from appellant’s house and\n\nsearched him before and after the transaction.\n\n Appellant admitted to having a prescription for oxymorphone, and she described the pills\n\nas orange in color to police.\n\n During a search of Maust’s house, police found “numerous pills,” “pill crushers,” a “pill\n\npress,” “numerous prescription bottles for different narcotics, the majority of which were\n\nempty,” and a “large amount” of currency. Police found $4,351 in a safe in appellant’s bedroom,\n\nincluding $270 of the buy money given to Gale. See White v. Commonwealth, 24 Va. App. 446,\n\n453 (1997) (“Considered with other factors, possession of currency by a defendant may be\n\nconsidered in determining whether he or she possessed drugs with an intent to distribute.”).\n\n In addition, it is well-established that “[d]etermining the credibility of witnesses . . . is\n\nwithin the exclusive province of the [fact finder], which has the unique opportunity to observe\n\nthe demeanor of the witnesses as they testify.” Dalton v. Commonwealth, 64 Va. App. 512, 525\n\n(2015) (second alteration in original) (quoting Lea v. Commonwealth, 16 Va. App. 300, 304\n\n(1993)). Moreover, “[i]n its role of judging witness credibility, the fact finder is entitled to\n\ndisbelieve the self-serving testimony of the accused and to conclude that the accused is lying to\n\nconceal his guilt.” Speller v. Commonwealth, 69 Va. App. 378, 388 (2018). “When ‘credibility\n\nissues have been resolved by the [fact finder] in favor of the Commonwealth, those findings will\n\nnot be disturbed on appeal unless plainly wrong.’” Towler v. Commonwealth, 59 Va. App. 284,\n\n291 (2011) (quoting Corvin v. Commonwealth, 13 Va. App. 296, 299 (1991)).\n\n At trial, appellant testified that Gale repaid a debt he owed her and made a down payment\n\non certain tools. She also testified that she had been receiving rent from as many as eight people\n\nliving with her, “between three hundred and six hundred” dollars, including from her “own\n\nchildren.” That testimony, however, was contradicted by appellant’s statements to Monaghan\n\n - 18 -\n\fthe day after the controlled buy, when she made no mention of rental income or of Gale making\n\na down payment on tools and claimed the rest of the money found in the safe was money she had\n\nwithdrawn from her bank in preparation for finding a new place to live. Appellant also told\n\nMonaghan that only four people lived in the house—herself, her two sons, and a woman named\n\nSue.\n\n Moreover, although appellant repeatedly denied that she sold any contraband, she implied\n\nthe opposite by stating that Gale “comes to me when he wants them” and that he “sells more than\n\nI do.” The evidence also established that an individual named Greg Murphy was sending\n\nappellant text messages about “getting pills.” Further, when Monaghan told appellant that two of\n\nher pills were found on Sue, appellant first claimed that she only gave the pills to Sue so that Sue\n\ncould give them back later when appellant needed them. She then admitted that she gave pills to\n\nSue for Sue’s own use but claimed that she did so only because Sue had a prescription for the\n\nsame pills.\n\n The record thoroughly demonstrates that appellant provided vague, inconsistent, and\n\ncontradictory explanations for the presence of the cash in her safe and whether she distributed\n\npills to others. “[A] fact-finder, having rejected a defendant’s attempted explanation as untrue,\n\nmay draw the reasonable inference that [her] explanation was made falsely in an effort to conceal\n\n[her] guilt.” Covil v. Commonwealth, 268 Va. 692, 696 (2004). I would accept the trial court’s\n\ncredibility determination, as it was neither plainly wrong nor without evidentiary support.\n\n Finally, the potential presence of an unidentified person in the car with Gale13 and of\n\nother women at appellant’s house do not undermine the Commonwealth’s evidence. The\n\nmajority contends that, due to the presence of these other individuals, the circumstantial evidence\n\n\n 13\n At trial, Monaghan did not recall Gale’s girlfriend, Tiffany Love, accompanying Gale,\nbut an unidentified person can be heard conversing with Gale during the drive to and from\nappellant’s house.\n - 19 -\n\ffails to establish that Gale could not have obtained the oxymorphone pills from someone other\n\nthan Maust.\n\n The majority correctly notes that to sustain a conviction for drug distribution, where the\n\nCommonwealth relies on circumstantial evidence, “[t]here must be an unbroken chain of\n\ncircumstances ‘proving the guilt of the accused to the exclusion of any other rational hypothesis\n\nand to a moral certainty.’” Jones, 21 Va. App. at 442 (quoting Gordon v. Commonwealth, 212\n\nVa. 298, 300 (1971)). “However, ‘the theory of innocence must flow from the evidence, and not\n\nfrom the ruminations of defense counsel.’” Id. (quoting Mullis v. Commonwealth, 3 Va. App.\n\n564, 574 (1987)). The Commonwealth is not required to “negate what ‘could have been’ or what\n\nwas a ‘possibility.’” Nelson v. Commonwealth, 281 Va. 212, 218 (2011). “Whether [a]\n\nhypothesis of innocence is reasonable is itself a ‘question of fact’ subject to deferential appellate\n\nreview.” Haskins v. Commonwealth, 44 Va. App. 1, 9 (2004) (quoting Emerson v.\n\nCommonwealth, 43 Va. App. 263, 277 (2004)). “When examining an alternate hypothesis of\n\ninnocence, the question is not whether ‘some evidence’ supports the hypothesis, but whether a\n\nrational factfinder could have found that the incriminating evidence renders the hypothesis of\n\ninnocence unreasonable.” White v. Commonwealth, 68 Va. App. 241, 252 (2017) (quoting\n\nVasquez, 291 Va. at 250). “In practical terms, this means that—even if not ‘inherently\n\nincredible’—a defendant’s exculpatory version of events need not be accepted by the factfinder.”\n\nTizon v. Commonwealth, 60 Va. App. 1, 12-13 (2012) (quoting Montgomery v. Commonwealth,\n\n221 Va. 188, 190 (1980)).\n\n Here, the trial court rejected appellant’s theory that Gale received the pills from someone\n\nother than appellant, and instead found the evidence sufficient despite its circumstantial nature.\n\nThus, the question on appeal is whether a rational fact finder, in light of all the evidence, could\n\nhave rejected appellant’s theories of innocence and found her guilty beyond a reasonable doubt.\n\n - 20 -\n\fSee Moseley, 293 Va. at 464. I find that the evidence supports the finding that a reasonable fact\n\nfinder could have rejected appellant’s hypothesis of innocence and instead found that the\n\nevidence demonstrated an unbroken chain of circumstances proving appellant’s guilt. Monaghan\n\ntestified that he searched Gale and his vehicle prior to the controlled purchase, and Gale and his\n\nvehicle were free of contraband and other currency besides the buy money. Monaghan then\n\nfollowed Gale to Maust’s residence without any unscheduled stops, observed Gale drive onto the\n\ndriveway of Maust’s residence, and, after approximately ten minutes, followed Gale back to the\n\nstaging area without any unscheduled stops. On the recording, appellant verbally confirmed that\n\nGale gave her money. It was, therefore, reasonable for the court to infer that the exchange of\n\nmoney was Gale purchasing the three oxymorphone pills from Maust. That inference is\n\nstrengthened by the fact that Monaghan recovered none of the buy money—but did recover the\n\nthree pills—from Gale following the transaction, and further strengthened both by what police\n\nfound in appellant’s residence and by her inconsistent statements.\n\n Appellant does not point to any evidence that the unidentified woman in the car or\n\nanother woman supplied Gale with the pills. Indeed, the evidence demonstrated that Gale spoke\n\nonly to appellant while at her house.14 Further, there was nothing in the conversation between\n\nthe woman in the car and Gale suggesting that the woman provided Gale with any illicit\n\ncontraband on the drive to or from appellant’s home. The Commonwealth is not required to\n\n“negate what ‘could have been’ or what was a ‘possibility.’” Nelson, 281 Va. at 218. The trial\n\ncourt concluded that the only reasonable inference from the circumstances before it was that\n\nGale and appellant exchanged the buy money and the pills, and thus necessarily found that\n\nappellant’s hypothesis of innocence was unreasonable.\n\n\n\n 14\n At one point on the recording, it appears that Gale says “hey” to another woman, but he\ndid not have any additional conversation with her.\n - 21 -\n\f Based on our standards of review as an appellate court, which include both viewing the\n\nevidence in the light most favorable to the Commonwealth and deferring to the trial court’s\n\ndeterminations as to findings of fact and credibility, I would hold that the evidence was sufficient\n\nto sustain appellant’s conviction for distribution of a Schedule I or II controlled substance.\n\nTherefore, I would affirm the judgment of the trial court.15\n\n\n\n\n 15\n The majority cites to Jones, 21 Va. App. 435, and Bennett, 69 Va. App. 475, as support\nfor its contention that the evidence in this case was not sufficient to support appellant’s\nconviction. However, while there may have been additional circumstances supporting the\ndefendants’ convictions for drug distribution without the testimony of the confidential informant\nin those cases, that does not render the circumstances in this case inherently insufficient to\nsupport appellant’s conviction. Rather, all circumstantial evidence cases are decided on the\nspecific facts unique to each case.\n In addition, we cited to, and the majority heavily relies on, the language in Jones that\n“[t]here must be an unbroken chain of circumstances ‘proving the guilt of the accused to the\nexclusion of any other rational hypothesis and to a moral certainty.’” Jones, 21 Va. App. at 442\n(quoting Gordon, 212 Va. at 300). However, as noted above, this principle is not to be viewed in\nisolation—rather, nothing in Jones alters the well-established principles regarding the trial\ncourt’s ability to determine whether a defendant’s hypothesis of innocence is reasonable, a\nfinding that “is itself a ‘question of fact’ subject to deferential appellate review.” Haskins, 44\nVa. App. at 9 (quoting Emerson, 43 Va. App. at 277).\n - 22 -\n\f", "ocr": false, "opinion_id": 9399789 } ]

"2022-08-09"

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 2, "download_url": "https://caseinfo.nvsupremecourt.us/document/view.do?csNameID=64416&csIID=64416&deLinkID=868023&onBaseDocumentNumber=22-24841", "author_id": null, "opinion_text": "Supreme Court\nOF\nNEevaADA\n\n(0) 19878 <REtee\n\nIN THE SUPREME COURT OF THE STATE OF NEVADA\n\nIN THE MATTER OF MICHAEL H. No. 85027\n\n \n\n \n\nHAMILTON, BAR NO. 7730. .\nFILED 3\n\nAUG 09 2022 )\nEu A. BRI\nCLERK. . Ee\n\nORDER OF DISBARMENT OY GfIEE DE\n\nThe Southern Nevada Disciplinary Board has filed, under SCR\n112, a petition for attorney Michael H. Hamilton’s disbarment by consent.\nThe petition is supported by Hamilton’s affidavit, stating that he freely and\nvoluntarily consents to disbarment, after having had the opportunity to\nconsult with counsel. Hamilton acknowledges in the affidavit that he has\nnot complied with the orders entered in three prior disciplinary proceedings:\nIn re Discipline of Hamilton, No. 81256, 2020 WL 5512516 (Nev. Sept. 11,\n2020) (Order Approving Conditional Guilty Plea Agreement) (suspending\nattorney for four years to run concurrently with suspensions imposed in two\nother cases); In re Discipline of Hamilton, No. 80556, 2020 WL 2319994\n(Nev. May 8, 2020) (Order of Suspension) (imposing previously stayed 42-\nmonth suspension based on attorney’s failure to comply with conditions on\nstayed portion of the suspension); In re Discipline of Hamilton, No. 78101,\n2019 WL 2140630 (Nev. May 14, 2019) (Order Approving Conditional Guilty\nPlea) (suspending attorney for four years with 42 months of the suspension\nstayed subject to certain conditions). And he admits that he could not\nsuccessfully defend against a disciplinary complaint based on his failure to\n\ncomply with the prior disciplinary orders.\n\n22-1484 f\n\n \n\n \n\fSuPREME COURT\nOF\nNEVADA\n\n(0) 19974 <gGRER\n\n \n\nSCR 112 provides that an attorney who is the subject of a\nproceeding involving allegations of misconduct may consent to disbarment\nby delivering an affidavit to bar counsel, who must file it with this court.\nHamilton’s affidavit meets the requirements of SCR 112(1), and we\nconclude that the petition should be granted. Accordingly, Hamilton is\ndisbarred. The provisions of SCR 115 and SCR 121.1 governing notice and\npublication of orders of disbarment shall apply to this order.\n\nIt is so ORDERED.\n\n \n\n \n\n \n\n \n\n \n\n \n\n \n\n \n\nParraguirre\n/ A. Law, J. Ab gn J.\nHardesty Stiglich\n(abt. J. SD Lnar J.\nCadish Silver\nPrebor tiny J. {———. _ J.\nPickering Herndon\n\nec: Chair, Southern Nevada Disciplinary Board\nBar Counsel, State Bar of Nevada\nLaw Offices of Michael H. Hamilton\nExecutive Director, State Bar of Nevada\nAdmissions Officer, U.S. Supreme Court\n\n \n\n \n\f", "ocr": true, "opinion_id": 7799433 } ]

"2022-08-11"

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 14, "download_url": "https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2016cv0124-79", "author_id": 2209, "opinion_text": " UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF COLUMBIA\n\n_________________________________________\n )\nCLIMATE INVESTIGATIONS CENTER, )\n )\n Plaintiff, )\n )\n v. ) Case No. 16-cv-00124 (APM)\n )\nUNITED STATES DEPARTMENT )\nOF ENERGY, )\n )\n Defendant. )\n_________________________________________ )\n\n MEMORANDUM OPINION\n\n I.\n\n The parties in this long-running Freedom of Information Act (FOIA) dispute are before the\n\ncourt for their fifth round of summary judgment briefing. Def.’s Third Renewed Mot. for Summ.\n\nJ., ECF No. 72 [hereinafter Def.’s Mot.]; Pl.’s Cross-Mot. for Summ. J., ECF No. 73 [hereinafter\n\nPl.’s Mot.]. This iteration centers on issues arising out of the court’s December 6, 2019 Order\n\nrequiring Defendant U.S. Department of Energy (“DOE”) to conduct a supplemental search of the\n\nagency’s Office of the Secretary for additional, non-duplicative responsive records.\n\nClimate Investigations Ctr. v. U.S. Dep’t of Energy (Climate Investigations III), No. 16-cv-124\n\n(APM), 2019 WL 6683751 (D.D.C. Dec. 6, 2019). Plaintiff Climate Investigations Center\n\nchallenges (1) the adequacy of the supplemental search, (2) DOE’s partial or entire withholding of\n\nnine records under Exemption 5 pursuant to the deliberative process privilege, and (3) whether\n\nDOE has met the FOIA Improvement Act’s “foreseeable harm standard” as to eight of the nine\n\nchallenged records.\n\f The court takes up these issues in that order. As with the last round of cross-motions for\n\nsummary judgment, the court presumes familiarity with the facts of this case as set forth in its\n\nprevious opinions 1 and therefore discusses them only as necessary to address the outstanding\n\nissues raised by the parties. For the reasons that follow, the parties’ cross-motions for summary\n\njudgment are granted in part and denied in part.\n\n II.\n\n A.\n\n An agency in a FOIA case must show that it conducted an adequate search. See Students\n\nAgainst Genocide v. Dep’t of State, 257 F.3d 828, 838 (D.C. Cir. 2001). An adequate search is\n\none that is “reasonably calculated to uncover all relevant documents.” Oglesby v. U.S. Dep’t of\n\nthe Army, 920 F.2d 57, 68 (D.C. Cir. 1990). The agency bears the burden of proving that it\n\nperformed such a search, and it may rely on sworn affidavits or declarations to do so. See SafeCard\n\nServs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991). The court may grant summary judgment\n\nto the agency based on this evidence if it is reasonably specific and contradicted by neither record\n\nevidence “nor . . . evidence of agency bad faith.” Mil. Audit Project v. Casey, 656 F.2d 724, 738\n\n(D.C. Cir. 1981); Beltranena v. Clinton, 770 F. Supp. 2d 175, 181–82 (D.D.C. 2011). A plaintiff\n\ncan rebut an agency’s supporting affidavits and declarations by demonstrating, with “specific\n\nfacts,” that there remains a genuine issue as to whether the agency performed an adequate search\n\nfor documents responsive to the plaintiff’s request. See Span v. U.S. Dep’t of Just., 696 F. Supp.\n\n2d 113, 119 (D.D.C. 2010) (quoting U.S. Dep’t of Just. v. Tax Analysts, 492 U.S. 136, 142 (1989)).\n\nAgency affidavits and declarations are accorded “a presumption of good faith, which cannot be\n\nrebutted by purely speculative claims about the existence and discoverability of other documents.”\n\n\n1\n See Climate Investigations Ctr. v. U.S. Dep’t of Energy (Climate Investigations I), No. 16-cv-124 (APM), 2017 WL\n4004417 (D.D.C. Sept. 11, 2017), at *1–3.\n\n 2\n\fShapiro v. U.S. Dep’t of Just., No. 20-5318, 2022 WL 2760812, at *3 (D.C. Cir. July 15, 2022)\n\n(internal quotation marks omitted).\n\n B.\n\n In the court’s last memorandum opinion, it ordered DOE to conduct a search of the Office\n\nof the Secretary for additional, non-duplicative responsive records. Climate Investigations III,\n\n2019 WL 6683751, at *5. To establish the adequacy of that search, DOE offers the\n\nThird Supplemental Declaration of Alexander C. Morris, a FOIA Officer at DOE. See Def.’s Mot.,\n\nEx. 2, ECF No. 72-3 [hereinafter Suppl. Morris Decl.]. Morris states that DOE looked for\n\nresponsive records in hard copy, archived, and the electronic files of 22 custodians, consisting of\n\nformer Secretaries, Deputy Secretaries, Chiefs of Staff, and Deputy Chiefs of Staff. Id. ¶ 14.\n\nMorris further explains that DOE used search terms that the court previously found to be\n\nreasonable. Id. And he notes that DOE conducted an additional search for electronic records\n\nacross the same custodians using two specific search terms requested by Plaintiff. Id. ¶ 15.\n\n Still, Plaintiff says that DOE’s search was not adequate. Plaintiff first faults DOE for what\n\nit describes as “irregularities” in the production. Pl.’s Mot., Pl.’s Mem. of P. & A. in Supp. of Pl.’s\n\nMot., ECF No. 73-1 [hereinafter Pl.’s Mem.], at 11–12. These include receiving several duplicate\n\ndocuments from past productions in the most recent productions, not receiving a missing\n\nattachment to a responsive email from DOE’s April 2021 production, and failing to produce a\n\nletter originally authored by Southern Company and sent to DOE. Id. at 12, 14–15. But these so-\n\ncalled “irregularities” do not demonstrate an inadequate search. “[T]he adequacy of a search is\n\ndetermined not by the fruits of the search, but by the appropriateness of its methods.” See Reps.\n\nComm. for Freedom of Press v. FBI (Reps. Comm. I), 877 F.3d 399, 408 (D.C. Cir. 2017) (internal\n\nquotation marks and alterations omitted). Plaintiff does no more than attack the search’s output,\n\n\n\n 3\n\fnot the methods employed to conduct it. A “small collection of . . . technical failings” are not\n\nindicative of an inadequate search. SafeCard Servs., 926 F.2d at 1202.\n\n Plaintiff also claims that, based on the records produced, DOE did not search for records\n\nfrom the “desk of the Secretary.” Pl.’s Mem. at 13. However, as DOE points out, the supplemental\n\nVaughn index contains multiple emails from then-Secretary Steven Chu. See Def.’s Mot., Ex. 4,\n\nECF No. 72-4 [hereinafter Suppl. Index], at 84, 98, 118. Plaintiff’s mere speculation that more\n\nrecords should exist does not create a genuine dispute of fact that the search was inadequate.\n\nSuppl. Morris Decl. ¶ 14; see also Shapiro, 2022 WL 2760812, at *3.\n\n Plaintiff further asserts that DOE failed to adequately follow up on leads that arose during\n\nthe search. Pl.’s Mem. at 14–15. Specifically, Plaintiff argues that the failure of the search to turn\n\nup responsive records that would “logically be created around key meetings concerning the future\n\nof the Kemper coal plant” suggests that Defendant was required to alter its search parameters or\n\notherwise take additional steps to locate them. Id. at 14. Plaintiff is correct that DOE cannot bury\n\nits head in the sand and must “follow through on obvious leads to discover requested documents.”\n\nValencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999). Once again, however,\n\nPlaintiff’s speculation and dissatisfaction with the records produced is inadequate to undermine\n\nthe adequacy of DOE’s search. It has failed to show that DOE ignored a lead that was “both clear\n\nand certain” and “so apparent that the [agency could not] in good faith fail to pursue it.” Mobley v.\n\nCIA, 806 F.3d 568, 582 (D.C. Cir. 2015) (internal quotation marks omitted).\n\n For these reasons, the court grants Defendant’s motion for summary judgment as to the\n\nadequacy of its supplemental search of the Office of the Secretary.\n\n\n\n\n 4\n\f III.\n\n A.\n\n Next, Plaintiff argues that nine records have been improperly withheld or redacted under\n\nExemption 5. An agency bears the burden of showing that it properly withheld materials pursuant\n\nto a statutory exemption. Citizens for Resp. & Ethics in Wash. v. U.S. Dep’t of Just., 746 F.3d\n\n1082, 1088 (D.D.C. 2014). An agency may meet its burden “by submitting sufficiently detailed\n\naffidavits or declarations, a Vaughn index of the withheld documents, or both, to demonstrate that\n\nthe government has analyzed carefully any material withheld and provided sufficient information\n\nas to the applicability of an exemption to enable the adversary system to operate.” Brennan Ctr.\n\nfor Just. v. U.S. Dep’t of State, 296 F. Supp. 3d 73, 80 (D.D.C. 2017). “If the agency’s affidavits\n\nprovide specific information sufficient to place the documents within the exemption category, if\n\nthis information is not contradicted in the record, and if there is no evidence in the record of agency\n\nbad faith, then summary judgment is appropriate without in camera review of the documents.”\n\nACLU v. U.S. Dep’t of Def., 628 F.3d 612, 626 (D.C. Cir. 2011) (internal quotation marks omitted).\n\n B.\n\n 1.\n\n Exemption 5 allows an agency to withhold “inter-agency or intra-agency memorandums\n\nor letters that would not be available by law to a party other than an agency in litigation with the\n\nagency.” 5 U.S.C. § 552(b)(5). This exemption “protect[s] the decision making processes of\n\ngovernment agencies,” including “documents reflecting advisory opinions, recommendations and\n\ndeliberations comprising part of a process by which governmental decisions and policies are\n\nformulated.” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150 (1975) (internal quotation marks\n\nomitted); see also Loving v. Dep’t of Def., 550 F.3d 32, 38 (D.C. Cir. 2008). The exemption is\n\n\n\n 5\n\fintended to “improve[] agency decisionmaking” by “encourag[ing] candor” and “blunt[ing] the\n\nchilling effect that accompanies the prospect of disclosure.” U.S. Fish & Wildlife Serv. v. Sierra\n\nClub, Inc., 141 S. Ct. 777, 785 (2021).\n\n For the deliberative-process privilege to apply, a document must be both “predecisional”\n\nand “deliberative.” Id. at 785–86; see also Mapother v. Dep’t of Just., 3 F.3d 1533, 1537 (D.C.\n\nCir. 1993). Material is “predecisional” if “it was generated before the adoption of an agency\n\npolicy,” and it is “deliberative” if “it reflects the give-and-take of the consultative process.”\n\nCoastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980).\n\n The D.C. Circuit recently underscored the type of information that an agency must provide\n\nto justify an Exemption 5 withholding. The agency should endeavor to identify:\n\n the “who,” i.e., the roles of the document drafters and the recipients\n and their places in the chain of command; the “what,” i.e., the nature\n of the withheld content; the “where,” i.e., the stage within the\n broader deliberative process in which the withheld material\n operates; and the “how,” i.e., the way in which the withheld material\n facilitated agency deliberations.\n\nJud. Watch, Inc. v. U.S. Dep’t of Just., 20 F.4th 49, 56 (D.C. Cir. 2021). The court did not say that\n\nall of these details are prerequisite to substantiate an Exemption 5 withholding. However, an\n\nagency must at least provide enough detail for the court to evaluate (1) the deliberative process\n\ninvolved and (2) the nature of the decisionmaking authority vested in the person issuing the\n\ndisputed record or that person’s position in the chain of command. See id.\n\n 2.\n\n Before turning to the records, the court notes that, among its justifications,\n\nDOE emphasizes that “five of the documents contain drafts,” three of which are draft talking\n\npoints. Def.’s Reply in Supp. of Def.’s Mot & in Opp’n to Pl.’s Mot., ECF No. 76, at 9–10.\n\nDrafts are not, however, per se exempt from FOIA disclosure. Jud. Watch, 20 F.4th at 55–56;\n\n 6\n\fsee also U.S. Fish & Wildlife Serv., 141 S. Ct. at 786 (“That is not to say that the label ‘draft’ [in\n\nthe context of the deliberative process privilege] is determinative.”). The agency still must identify\n\nthe “deliberative component.” Reps. Comm. for Freedom of the Press v. FBI (Reps. Comm. II),\n\n3 F.4th 350, 367 (D.C. Cir. 2021). Thus, while the draft status of a record is relevant to the\n\nExemption 5 inquiry, it is not dispositive.\n\n The nine disputed records as identified in DOE’s Vaughn index are as follows: (1)–(3) May\n\n21, 2020 Production Docs 2, 6, and 7; (4)–(5) September 30, 2020 Production Docs 7 and 9;\n\n(6) November 25, 2020 Doc 1; (7) December 31, 2020 Doc 1; (8) February 25, 2021 Doc 1; and\n\n(9) April 5, 2021 Doc 15. See Suppl. Index at 2–3, 4–7, 74–75, 78–80, 121–23, 128–34, 138–42,\n\n171–74; Pl.’s Mem. at 16, 20. Plaintiff objects to these withholdings on two principal grounds:\n\n(1) that the “decisions” cited by DOE for a number of the challenged documents do not closely\n\nrelate to an agency decision for purposes of Exemption 5, and instead the agency is improperly\n\nrelying on a “wide ‘umbrella’ decision” process “as a catch-all” to responsive material, and (2) that\n\nportions of the withheld or redacted documents contain segregable factual information that must\n\nbe disclosed. Pl.’s Mem. at 18–20. Plaintiff’s objections are well taken as to some but not all\n\nrecords.\n\n 1. May 21, 2020 Production Doc 2. DOE’s justification for withholding this record\n\nis lacking. Although the Vaughn entry identifies the author and recipient of the email, see Suppl.\n\nIndex at 2–3, the agency fails to explain the employees’ places in the decisionmaking chain. The\n\nentry also lacks detail about the deliberative process involved. It says only that the discussion\n\nconcerned “coal projects with tax credits” and apparently reflects “opinions and projections” from\n\nthe Treasury Department “as to the status of the coal projects before the government reached any\n\n\n\n\n 7\n\ffinal decisions about the coal projects.” Id. at 2. That description does not tell the court what\n\ndeliberative process is involved or how the record relates to that deliberative process.\n\n 2. May 21, 2020 Production Doc 6. DOE has met its burden with respect to this\n\nrecord. It is an email concerning “potential talking points to be created before a meeting between\n\nthe Secretary of Energy, Southern Company, and Governor [Haley] Barbour” concerning “a path\n\nforward for Southern’s IGCC plant . . . and before DOE reached the final decision about where to\n\nmove the IGCC plant in May 2008.” Suppl. Index at 4. Courts in this District consistently have\n\nheld that proposed or draft talking points or briefing materials in advance of high-level meetings\n\ninvolving agency leadership qualify for Exemption 5 protection. See, e.g., Khatchadourian v. Def.\n\nIntel. Agency, No. 16-cv-311 (RCL), 2022 WL 971206, at *13 (D.D.C. Mar. 31, 2022) (finding\n\n“talking points created for internal briefing meetings” protected); Advancement Project v. U.S.\n\nDep’t of Homeland Sec., 549 F. Supp. 3d 128, 140 (D.D.C. 2021) (holding that “proposed talking\n\npoints for a meeting between ICE Leadership and the Acting Secretary of Homeland Security”\n\nwere protected (internal quotation marks omitted)); Ctr. for Biological Diversity v. EPA,\n\n369 F. Supp. 3d 1, 23–25 (D.D.C. 2019) (holding that “informal paper for EPA staff to prepare for\n\na meeting,” “internal annotated agenda for a briefing of the Assistant Administrator,” “talking\n\npoints and background for EPA staff to prepare for a meeting,” and “internal status report for a\n\nbriefing of the Assistant Administrator” were protected (internal quotation marks omitted)).\n\nPlaintiff protests that a “meeting” with a third party is not an agency decision. Pl.’s Mem. at 18.\n\nBut that misconstrues the nature of the relevant decision. The decision is “where to move the\n\nIGCC plant.” The record is therefore privileged. See Khatchadourian, 2022 WL 971206, at *13.\n\n 3. May 21, 2020 Production Doc 7. This record reflects a discussion of “potential\n\ntalking points” in advance of a phone call between the Secretary, Southern Company, and\n\n\n\n 8\n\fGovernor Barbour that pertained to the agency’s decision on “whether to approve the relocation\n\nof the Kemper plant.” Suppl. Index at 6. DOE’s withholding of this record was proper for the\n\nsame reasons as the one immediately above. See Ecological Rts. Found. v. EPA, No. 19-cv-980\n\n(BAH), 2021 WL 535725, at *15 & n.8 (D.D.C. Feb. 13, 2021) (“At least two circuits, and the\n\noverwhelming majority of Judges on this Court, have thus concluded that an agency’s\n\nconsideration of what information to present to external parties and how to present it is a decision\n\nin itself, distinct from the underlying policy decision that is the subject of any anticipated\n\ncommunication, and thus can qualify a record of such consideration for exemption under the\n\ndeliberative process privilege.”) (citing cases), vacated in part by reconsideration on other\n\ngrounds, 541 F. Supp. 3d 34 (D.D.C. 2021).\n\n Plaintiff expresses skepticism of DOE’s description of this record as “talking points”\n\nbecause it appears as “answers to factual questions.” Pl.’s Mem. at 19. But this format, by itself,\n\ndoes not defeat the deliberative-process privilege. See, e.g., Husch Blackwell LLP v. U.S. EPA,\n\n442 F. Supp. 3d 114, 122 (D.D.C. 2020) (holding that “draft question and answer responses” in\n\npreparation for the public release of information were protected by Exemption 5); Sierra Club v.\n\nU.S. Dep’t of Interior, 384 F. Supp. 2d 1, 18 (D.D.C. 2004) (finding “draft questions and answers”\n\ncovered by the deliberative process privilege). Also, as to Plaintiff’s suggestion that the record\n\nimproperly withholds facts, the Vaughn index states that the record’s factual information “is\n\ninextricably intertwined with deliberative content.” Suppl. Index at 7. Plaintiff offers no reason\n\nto upset the good faith presumption afforded that representation.\n\n 4. September 30, 2020 Production Doc 7. This record is an inter-agency\n\ncommunication between DOE and the Office of Management and Budget (“OMB”). Suppl. Index.\n\nat 74–75. The withheld email and attachment “contain opinions and projected goals for various\n\n\n\n 9\n\fCCS [Carbon Capture and Sequestration] projects to be shared with DOE and OMB before the\n\nagencies reached a final decision on the CCS program.” Id. at 74. The Vaughn entry, however,\n\nidentifies neither the “final decision” that the agencies are seeking to reach “on the CCS program”\n\nnor does it say how the “opinions and projected goals” factor into that decision. The ambiguity is\n\nexacerbated by the fact that the date of the email is June 2, 2010, which post-dates the decision as\n\nto the Kemper plant’s relocation, according to other DOE entries, by more than two years.\n\nSee Suppl. Index at 4 (May 2008); id. at 6 (April 2008). 2 Also, the failure to explain who the\n\nprimary actors are on the email and what role they played in the decisionmaking process renders\n\nthe court unable to assess the deliberative nature of the communication. As a result, the agency’s\n\ndescription of this document is inadequate to sustain the Exemption 5 invocation.\n\n 5. September 30, 2020 Production Doc 9. This record is an email, dated May 10,\n\n2010, between DOE employees discussing “potential information to be included and different\n\noptions for the call before the meeting with Commissioner Betz and before DOE reached the final\n\ndecision about the Kemper project.” Suppl. Index. at 78–80. This entry provides greater detail\n\nthan the last one, though it is still not quite clear what “decision about the Kemper project” is at\n\nissue or how the call related to that decision. Nevertheless, because the information “reflect[s] the\n\nagency’s thought process in formulating its public statements” with a third party, the court thinks\n\nthe agency’s description is adequate. Avila v. U.S. Dep’t of State, No. 17-cv-2685 (RC), 2022 WL\n\n2104483, at *12 (D.D.C. June 10, 2022) (affirming application of Exemption 5 to various briefing\n\nand talking points materials before meetings with outside third parties); Ecological Rts. Found.,\n\n2021 WL 535725, at *15.\n\n\n\n2\n This is not to say that a communication that post-dates an agency decision cannot still be protected by Exemption 5.\nSee, e.g., Campaign Legal Ctr. v. Dep’t of Just., 34 F. 4th 14, 24 (D.C. Cir. 2022). But DOE has not made the case to\njustify such treatment here.\n\n 10\n\f 6. November 25, 2020 Production Doc 1. This is an email of “employees discussing\n\nand editing draft talking points prepared for a meeting between the Secretary, Governor Barbour,\n\nand Southern Company” about “potential site outcomes regarding a decision to move the site of\n\nSouthern’s IGCC plant from Orlando, Florida to alternative sites, including Kemper County,\n\nMississippi, before DOE reached [a] final decision about where to move Southern’s IGCC plant\n\nin May 2008.” Suppl. Index at 121–22. This record is protected for the same reasons as the talking\n\npoints email discussed in Paragraph 2, supra.\n\n 7–8. December 31, 2020 Production Doc 1 & February 25, 2021 Production Doc 1.\n\nThe court takes up these two records in tandem because of their similarity. Suppl. Index at 128–\n\n34; id. at 138–42. Each is an email and attachments from Kevin Samy to Secretary Chu (and\n\ncopied to a group of others) from May 2010. The records cover a host of topics in addition to the\n\nsubject matter of Plaintiff’s FOIA request. As relevant here, the first email includes “a draft\n\nproposed response for a call with Southern Company,” id. at 129, and the second email includes\n\n“a draft response to a request from Southern Company,” id. at 138. These descriptions are lacking\n\nto support an Exemption 5 withholding. Though these are communications to the Secretary, the\n\nVaughn index nowhere describes what role the drafts played in the deliberative process. The drafts\n\nmight relate to a matter of policy, but from the scant description contained in the Vaughn index\n\nthe court has no way of knowing. DOE shall produce the responsive information from these\n\nemails.\n\n 9. April 5, 2021 Production Doc. 15. The last of the nine records is a “[b]riefing\n\nmemorandum prepared for the Secretary in advance of an Interagency Task Force on CCS public\n\nmeeting” that “synthesizes opinions and recommendations from DOE employees suggesting topics\n\nfor the Secretary in the meeting and draft talking points prepared before the Secretary attended the\n\n\n\n 11\n\fCCS meeting.” Id. at 171. For reasons already discussed, the “briefing memorandum” is protected\n\nunder Exemption 5. See Avila, 2022 WL 2104483, at *12.\n\n IV.\n\n A.\n\n Finally, Plaintiff argues that DOE’s withholding of eight of the nine foregoing records does\n\nnot meet the “foreseeable harm” standard set out in the FOIA Improvement Act. 3 Pl.’s Mem. at\n\n21–22. Under the FOIA Improvement Act of 2016, agencies must release a record, even if it falls\n\nwithin a FOIA exemption, unless “the agency reasonably foresees that disclosure would harm an\n\ninterest protected by an exemption” or “disclosure is prohibited by law.” 5 U.S.C.\n\n§ 552(a)(8)(A)(i). “[T]he foreseeable harm requirement imposes an independent and meaningful\n\nburden on agencies,” Reps. Comm. II, 3 F.4th at 369 (internal quotation marks and alterations\n\nomitted), that cannot be satisfied with “generalized assertions.” Machado Amadis v. U.S. Dep’t of\n\nState, 971 F.3d 364, 371 (D.C. Cir. 2020) (internal question marks omitted). To satisfy its burden\n\nunder the FOIA Improvement Act, “an agency must identify specific harms to the relevant\n\nprotected interests that it can reasonably foresee would actually ensue from disclosure of the\n\nwithheld materials and connect the harms in a meaningful way to the information withheld.”\n\nRosenberg v. U.S. Dep’t of Def., 442 F. Supp. 3d 240, 259 (D.D.C. 2020) (internal quotation marks\n\nomitted). Mere speculation about potential harm or boilerplate justifications are insufficient.\n\nSee Jud. Watch, Inc. v. U.S. Dep’t of Com., 375 F. Supp. 3d 93, 100 (D.D.C. 2019).\n\n B.\n\n For those withholdings sufficiently justified by DOE, the agency has identified the specific\n\ninformation at issue and concluded that disclosure would “chill future internal discussion.”\n\n\n3\n Plaintiff does not challenge April 2021 Doc 15 under this standard. See Pl.’s Reply in Supp. of Pl.’s Mot. & Opp’n\nto Def.’s Mot., ECF No. 78, at 10.\n\n 12\n\fSee generally Suppl. Index. That representation is in line with what the D.C. Circuit has found to\n\nbe satisfactory under the foreseeable harm standard and is not, contrary to Plaintiff’s assertion,\n\nsignificantly more speculative or vague. Machado Amadis, 971 F.3d at 371; see also Nat’l Immigr.\n\nProject of Nat’l Laws. Guild v. ICE, No. 17-cv-2448 (APM), 2020 WL 5798429, at *5 (D.D.C.\n\nSept. 29, 2020) (finding a FOIA officer’s declaration dismissed by the plaintiff as “mere boiler\n\nplate” to be satisfactory under Machado Amadis (internal quotation mark omitted)).\n\n The D.C. Circuit’s recent decision in Reporters Committee II is distinguishable. There,\n\n“[t]he FBI’s broad assertion of foreseeable harm” “was contained in just two umbrella paragraphs\n\nthat purported to sweepingly address all of the deliberative information in the case.” 3 F.4th at\n\n367 (internal quotation marks omitted). Here, in contrast, DOE articulated the foreseeable harm\n\nfor each document withheld or redacted and tied it to the specific document or decision at issue.\n\nSee, e.g., Suppl. Index at 122 (stating as to November 25, 2020 Production Doc 1, “[r]elease of\n\nthese draft talking points would reveal potential site outcomes that did not ultimately form part of\n\nthe agency’s final decision and would compromise the deliberative process by which DOE makes\n\nits decisions”). “Plaintiff[] undoubtedly would prefer [DOE] to have provided more specifics, but\n\n[t]he degree of detail necessary to substantiate a claim of foreseeable harm is context-specific.”\n\nNat’l Immigr. Project, 2020 WL 5798429, at *5 (internal quotation marks omitted). Based on the\n\nnature of the documents and the decision-making process at issue, the court finds that the agency\n\nhas satisfied its burden under the statute. 4\n\n\n\n\n4\n Defendant’s Supplemental Declaration specifically attests to a two-stage, line-by-line segregability review of the\nwithheld information. Suppl. Morris Decl. ¶¶ 19–25. DOE has met its burden as to factually segregable information.\nSee Loving, 550 F.3d at 41; see also Johnson v. Exec. Off. for U.S. Att’ys, 310 F.3d 771, 776–77 (D.C. Cir. 2002).\n\n 13\n\f V.\n\n For the foregoing reasons, the court grants in part and denies in part Defendant’s Third\n\nRenewed Motion for Summary Judgment, ECF No. 72, and grants in part and denies in part\n\nPlaintiff’s Cross-Motion for Summary Judgment, ECF No. 73. DOE shall disclose to Plaintiff\n\ninformation withheld as to the following entries in the Vaughn index:\n\n 1. May 21, 2020 Production Doc 2;\n\n 2. September 30, 2020 Production Doc 7;\n\n 3. December 31, 2020 Production Doc 1 (as to responsive material only); and,\n\n 4. February 25, 2021 Production Doc 1 (as to responsive material only).\n\n A final, appealable order accompanies this Memorandum Opinion.\n\n\n\n\nDated: August 11, 2022 Amit P. Mehta\n United States District Judge\n\n\n\n\n 14\n\f", "ocr": false, "opinion_id": 7799814 } ]

"2022-08-11"

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 1, "download_url": "https://edca.4dca.org/DCADocs/2021/3154/213154_DC05_08112022_095558_i.pdf", "author_id": null, "opinion_text": " DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA\n FOURTH DISTRICT\n\n GRAVITYSTORM, LLC, a Florida limited company, individually and\n on behalf of itself and all others similarly situated,\n Appellant,\n\n v.\n\n OLD DOMINION INSURANCE COMPANY, a Florida Corporation,\n Appellee.\n\n No. 4D21-3154\n\n [August 11, 2022]\n\n Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.\nLucie County; Laurie E. Buchanan, Judge; L.T. Case No. 2019CA001337.\n\n Amy Judkins, Jacob L. Phillips, and Edmund A. Normand of Normand\nPLLC, Orlando, for appellant.\n\n Cynthia G. Angelos and Daniel K. Bandklayder, of Counsel of Law Office\nof Cynthia G. Angelos, P.A., Port St. Lucie, and Michael Menapace of\nWiggin and Dana LLP, Hartford, CT, for appellee.\n\nPER CURIAM.\n\n Affirmed.\n\nGROSS, CIKLIN and KUNTZ, JJ., concur.\n\n * * *\n\n Not final until disposition of timely filed motion for rehearing.\n\f", "ocr": false, "opinion_id": 7799827 } ]

"2022-08-12"

[ "312 Neb. 230" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 18, "download_url": "https://www.nebraska.gov/apps-courts-epub/public/viewOpinion?docId=N00008784PUB", "author_id": null, "opinion_text": "Nebraska Supreme Court Online Library\nwww.nebraska.gov/apps-courts-epub/\n08/12/2022 09:07 AM CDT\n\n\n\n\n - 230 -\n Nebraska Supreme Court Advance Sheets\n 312 Nebraska Reports\n STATE V. CERROS\n Cite as 312 Neb. 230\n\n\n\n\n State of Nebraska, appellee, v.\n Joel A. Cerros, appellant.\n ___ N.W.2d ___\n\n Filed August 12, 2022. No. S-21-527.\n\n 1. Rules of Evidence. In proceedings where the Nebraska Evidence Rules\n apply, the admissibility of evidence is controlled by the Nebraska\n Evidence Rules and judicial discretion is involved only when the rules\n make discretion a factor in determining admissibility.\n 2. Rules of Evidence: Appeal and Error. Where the Nebraska Evidence\n Rules commit the evidentiary question at issue to the discretion of the\n trial court, an appellate court reviews the admissibility of evidence for\n an abuse of discretion.\n 3. Evidence: Appeal and Error. A trial court has the discretion to deter-\n mine the relevancy and admissibility of evidence, and such determina-\n tions will not be disturbed on appeal unless they constitute an abuse of\n that discretion.\n 4. Convictions: Evidence: Appeal and Error. Regardless of whether\n the evidence is direct, circumstantial, or a combination thereof, and\n regardless of whether the issue is labeled as a failure to direct a verdict,\n insufficiency of the evidence, or failure to prove a prima facie case, the\n standard is the same: In reviewing a criminal conviction, an appellate\n court does not resolve conflicts in the evidence, pass on the credibility\n of witnesses, or reweigh the evidence; such matters are for the finder\n of fact, and a conviction will be affirmed, in the absence of prejudicial\n error, if the evidence admitted at trial, viewed and construed most favor-\n ably to the State, is sufficient to support the conviction.\n 5. Jury Instructions. Whether jury instructions given by a trial court are\n correct is a question of law.\n 6. Judgments: Appeal and Error. On a question of law, an appellate court\n is obligated to reach a conclusion independent of the determination\n reached by the court below.\n 7. Witnesses: Trial. A witness may not give an opinion as to a defendant’s\n guilt or how the case should be decided, but, rather, must leave the\n\f - 231 -\n Nebraska Supreme Court Advance Sheets\n 312 Nebraska Reports\n STATE V. CERROS\n Cite as 312 Neb. 230\n\n conclusions to be drawn by the trier of fact, because such opinions are\n not helpful.\n 8. Convictions: Intent. Reckless driving is not a mere traffic infraction\n or public welfare offense; it requires the necessary mens rea to be the\n unlawful act to support a conviction for manslaughter.\n 9. Lesser-Included Offenses: Jury Instructions: Evidence. A court must\n instruct on a lesser-included offense if (1) the elements of the lesser\n offense for which an instruction is requested are such that one cannot\n commit the greater offense without simultaneously committing the lesser\n offense and (2) the evidence produces a rational basis for acquitting the\n defendant of the greater offense and convicting the defendant of the\n lesser offense.\n10. Homicide: Lesser-Included Offenses: Jury Instructions. Where mur-\n der is charged, a court is required to instruct on lesser degrees of homi-\n cide where appropriate, but in other circumstances, a court must instruct\n on a lesser-included offense only if requested to do so, and failure to\n instruct on a lesser-included offense cannot be considered error if the\n defendant did not request the instruction.\n\n Appeal from the District Court for Butler County: Robert\nR. Steinke, Judge. Affirmed.\n\n Robert W. Kortus, of Nebraska Commission on Public\nAdvocacy, for appellant.\n\n Douglas J. Peterson, Attorney General, and Nathan A. Liss\nfor appellee.\n\n Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,\nPapik, and Freudenberg, JJ.\n\n Miller-Lerman, J.\n NATURE OF CASE\n Joel A. Cerros appeals his conviction in the district court\nfor Butler County for manslaughter, with reckless driving as\nthe predicate unlawful act. Cerros claims that the district court\nerred when it allowed a law enforcement officer to testify\nthat driving on the wrong side of the road could be a sign of\n­reckless driving. Cerros also claims that there was insufficient\n evidence to support his conviction for manslaughter and, for\n\f - 232 -\n Nebraska Supreme Court Advance Sheets\n 312 Nebraska Reports\n STATE V. CERROS\n Cite as 312 Neb. 230\n\nthe first time on appeal, claims that the district court erred\nwhen it failed to instruct the jury on careless driving as a\nlesser-included offense. We affirm Cerros’ conviction.\n STATEMENT OF FACTS\n On June 20, 2020, Cerros was involved in a traffic accident\non U.S. Highway 81 south of Columbus, Nebraska. The car\ndriven by Cerros was traveling south and was heading in the\nwrong direction (wrong lane) when it collided with a motorcy-\ncle traveling north. The motorcyclist died as a result of injuries\nsustained in the collision.\n The State theorized that Cerros was under the influence\nof marijuana at the time of the accident. The State therefore\ncharged Cerros with (1) motor vehicle homicide with driving\nunder the influence (DUI) as the predicate violation of law,\n(2) DUI, (3) manslaughter with reckless driving as the predi-\ncate unlawful act, and (4) possession of drug paraphernalia.\nCerros pled no contest to the possession charge and went to\ntrial by jury on the remaining counts. The jury acquitted Cerros\nof DUI and motor vehicle homicide but found him guilty of\nmanslaughter. Given the homicide based on DUI acquittal, our\nanalysis on appeal is focused on manslaughter.\n The evidence at trial included testimony by witnesses,\nincluding other motorists who arrived at the scene shortly after\nthe accident as well as rescue and law enforcement personnel\nwho later arrived at the scene. Relevant to the charge of man-\nslaughter based on reckless driving, various witnesses testi-\nfied that Cerros’ car was in the wrong lane. For example, one\nrescue worker testified that the car “was facing south, but was\nin the northbound lane . . . in the shoulder area” and that the\n“motorcycle was directly in front of the vehicle.”\n The State presented testimony by an accident reconstruc-\ntionist who testified regarding his investigation of the accident\nin this case. He stated in his report that “Cerros was driving\nsouthbound on Highway 81,” that “Cerros crossed into the\nnorthbound lanes of travel,” and that the northbound motor-\ncycle collided with the southbound vehicle driven by Cerros.\n\f - 233 -\n Nebraska Supreme Court Advance Sheets\n 312 Nebraska Reports\n STATE V. CERROS\n Cite as 312 Neb. 230\n\nHe concluded that the “actions of . . . Cerros resulted in the\ndeath” of the motorcyclist.\n The State also elicited testimony regarding the DUI and\nmotor vehicle homicide charges, including observations of wit-\nnesses regarding Cerros’ condition shortly after the accident.\nAmong the witnesses the State questioned in this regard was\nDevin Betzen, a sheriff’s deputy who was dispatched to the\nscene of the accident. During initial general questioning of\nBetzen regarding his experience in law enforcement, the State\nasked Betzen, “[W]hat do you look for in determining signs\nof impairment, just in general cases?” Betzen responded by\nlisting physical signs such as bloodshot, watery eyes, slurred\nspeech, slow deliberate movement, and poor finger-to-thumb\ndexterity. The State then asked, “What about driving habits?”\nBetzen responded by listing actions such as speeding, driving\non the shoulder of the road, and crossing centerlines. The State\nsuggested, “Driving the wrong way . . . down a highway?” and\nBetzen responded in the affirmative.\n During cross-examination of Betzen, Cerros elicited testi-\nmony related to his defense theory that at the time of the col-\nlision, he had crossed the centerline because he was preparing\nto turn left onto a county road that was a short distance ahead.\nBetzen testified that Cerros’ parents’ house was approximately\n4 miles from the site of the accident and that in order to go\nto their house, Cerros would have had to have turned left\nonto a county road that was approximately 15 to 20 feet south\npast the site of the collision. At the end of cross-examination,\nBetzen agreed that in the report he prepared after his inves-\ntigation, he did not state that Cerros had shown any signs of\nimpairment or that he had “found any signs of impairment by\nhis driving.”\n The State then began its redirect of Betzen with this\nexchange: “[State:] Deputy Betzen, driving on the wrong\nside of the road could be a sign of impairment; is that cor-\nrect? [Betzen:] That’s correct. [State:] Could be a sign of\nreckless driving; is that correct? [Betzen:] That’s correct.”\n\f - 234 -\n Nebraska Supreme Court Advance Sheets\n 312 Nebraska Reports\n STATE V. CERROS\n Cite as 312 Neb. 230\n\nCerros objected on the basis that the State’s question “[c]alls\nfor an answer that the jury has to decide. Ultimate issue, Your\nHonor.” The court overruled Cerros’ objection, and it stated,\n“And the answer was ‘that’s correct.’ And the question was ‘it\ncould be a sign.’ All right.” The State then continued with a\ndifferent line of questioning.\n Other evidence presented by the State included testimony\nby emergency personnel that the motorcyclist had died at the\nscene of the accident. The State also presented testimony by\nthe pathologist who conducted the autopsy on the motorcyclist.\nThe pathologist testified that the motorcyclist had sustained\nvarious injuries, including injuries to the head, chest, and\nabdomen. The pathologist opined that the cause of death was\nblunt force trauma to the head, chest, and abdomen and that\nsuch injuries were consistent with the motorcycle having col-\nlided with the automobile.\n Cerros moved for a directed verdict at the close of the\nState’s evidence. The district court overruled the motion and\nmade certain remarks with regard to the manslaughter charge.\nThe court noted that manslaughter was charged with reckless\ndriving as the predicate unlawful act. The court stated that\nreckless driving was a misdemeanor offense and not a traffic\ninfraction or a public welfare offense. The court stated that\nevidence offered by the State showed that Cerros “was operat-\ning his motor vehicle over a period of time and through a term\nof space completely in the wrong lane of a major U.S. high-\nway,” and the court determined that “[s]uch evidence viewed\nmost favorably to the State would establish that the unlawful\nact of reckless driving was done voluntarily and intention-\nally and was not the result of mistake, accident or momen-\ntary inattention.”\n In his defense, Cerros presented evidence including tes-\ntimony by an expert in pharmacology and toxicology who\ngenerally testified regarding studies that showed no increased\nrisk of crashes for drivers who had used marijuana. He also\ntestified that he had viewed videos of Cerros taken at the\n\f - 235 -\n Nebraska Supreme Court Advance Sheets\n 312 Nebraska Reports\n STATE V. CERROS\n Cite as 312 Neb. 230\n\nscene of the accident, on the ride to the hospital, and at the\nhospital, and he opined that he did not see any indicators that\nCerros was under the influence of marijuana at that time.\nCerros also presented testimony by his mother, his father, and\nhis sister to the effect that on the evening of June 20, 2020,\nCerros’ parents were hosting a family gathering at their house\nnorth of Rising City, Nebraska, and that they were awaiting\nCerros’ arrival.\n At the jury instruction conference, the court presented its\nproposed instructions. With respect to manslaughter, the ele-\nments instruction, instruction No. 3, given by the court, pro-\nvided that\n the elements of the State’s case are:\n 1. That the defendant, . . . Cerros, caused the death of\n [the motorcyclist];\n 2. That the defendant did so while operating a motor\n vehicle upon the public streets or highways of the State\n of Nebraska;\n 3. That the defendant did so unintentionally while in\n the commission of an unlawful act, to-wit: reckless driv-\n ing as defined in Instruction No. 4; and\n 4. That the defendant did so on or about June 20, 2020,\n in Butler County, Nebraska.\nInstruction No. 4 provided:\n The material elements of reckless driving are:\n On or about June 20, 2020, in Butler County, Nebraska,\n the defendant, . . . Cerros, drove a motor vehicle upon the\n streets or highways of the State of Nebraska in such a\n manner as to indicate an indifferent or wanton disregard\n for the safety of persons or property.\nInstruction No. 6 included definitions of various terms and\ndefined “reckless” as “the disregard for or indifference to\nthe safety of another or for the consequences of one’s act.\n‘Wanton’ and ‘reckless’ are treated synonymously.” The court\nasked the parties whether they had objections to its proposed\ninstructions, and the State had no objections.\n\f - 236 -\n Nebraska Supreme Court Advance Sheets\n 312 Nebraska Reports\n STATE V. CERROS\n Cite as 312 Neb. 230\n\n Cerros, however, raised objections to the court’s instruc-\ntions and proposed certain instructions of his own. Cerros first\nraised objections with regard to the instructions for motor vehi-\ncle homicide, and the court overruled his objections. Cerros\nthen turned to the instructions on the charge of manslaughter.\nCerros first stated that he asked that the predicate unlawful act\nfor manslaughter should “be for willful reckless driving . . .\ninstead of reckless driving” and that the court “give the defi-\nnition for willful reckless driving.” Cerros next stated that he\nwas “asking for the lesser included offense of reckless driving\nunder [Neb. Rev. Stat. §] 60-6,212 or 60-6,213 because the\njury theoretically could find there was no proximate cause, but\nhe was reckless driving or willful reckless driving.”\n Cerros also requested two additional instructions that he\nasserted were based on State v. Carman, 292 Neb. 207, 872\nN.W.2d 559 (2015). Cerros’ first proposed instruction stated:\n“‘Traffic infractions are public welfare offenses which do not\nrequire a showing of criminal intent and therefore, are insuf-\nficient by themselves to support a conviction for unlawful\nact manslaughter or involuntary manslaughter.’” His second\nproposed instruction stated: “‘Criminal intent is required to\nsupport a conviction for unlawful act manslaughter or invol-\nuntary manslaughter under this Count.’” Cerros asserted that\nthe two instructions were necessary “to make it clear to the\njury that he has to have criminal intent and that traffic infrac-\ntions do not qualify, because the jury could easily find that\nthere was a traffic infraction at this point, he was negligent,\nbut not reckless.”\n The court overruled Cerros’ objections and rejected his\nproposed instructions. The court stated that “reckless driv-\ning is not a public welfare offense and not a mere traffic\ninfraction, and it has sufficient mens rea such that it can be\nthe underlying unlawful offense for a manslaughter charge.”\nRegarding Cerros’ request to instruct the jury that criminal\nintent is required to support a conviction for manslaughter, the\ncourt noted that it would instruct the jury on the elements of\n\f - 237 -\n Nebraska Supreme Court Advance Sheets\n 312 Nebraska Reports\n STATE V. CERROS\n Cite as 312 Neb. 230\n\nreckless driving and provide a definition of “reckless” and that\nthose instructions would set forth “the mens rea that would\nbe required.” The court stated that Cerros could argue the\nabsence of the required mens rea for reckless driving during\nhis closing argument.\n In his closing argument, Cerros first focused on the charges\nof motor vehicle homicide and DUI. He then turned to the\ncharge of manslaughter. Cerros argued, inter alia, that if the\njurors thought that “he was driving negligently or carelessly\n. . . he is not guilty of driving recklessly causing [the motorcy-\nclist’s] death.” Cerros then argued that his driving might have\nbeen negligent or careless but not reckless, and he asserted that\nhe was “going into that left lane to turn at the first turnoff” and\nmisjudged how close the oncoming headlights of the motor-\ncycle were.\n After closing arguments, the court gave its jury instructions\nand submitted the case to the jury. During deliberations, the\njury submitted a written question to the court which asked,\n“What is the definition of negl[i]gent driving?” After discus-\nsion with counsel, the court responded by telling the jury that\nit was to make its determinations based on the evidence and the\ninstructions that had been given.\n The jury acquitted Cerros of motor vehicle homicide and\nDUI, but it found him guilty of manslaughter based on reckless\ndriving. The court thereafter sentenced Cerros to imprisonment\nfor 8 to 12 years for the manslaughter conviction.\n Cerros appeals his conviction for manslaughter.\n\n ASSIGNMENTS OF ERROR\n Cerros claims that the district court erred when it allowed\nBetzen’s testimony that driving on the wrong side of the road\ncould be a sign of reckless driving. Cerros also claims that\nthere was insufficient evidence to support his conviction for\nmanslaughter. Cerros finally claims for the first time on appeal\nthat the district court erred when it did not instruct on careless\ndriving as a lesser-included offense.\n\f - 238 -\n Nebraska Supreme Court Advance Sheets\n 312 Nebraska Reports\n STATE V. CERROS\n Cite as 312 Neb. 230\n\n STANDARDS OF REVIEW\n [1-3] In proceedings where the Nebraska Evidence Rules\napply, the admissibility of evidence is controlled by the\nNebraska Evidence Rules and judicial discretion is involved\nonly when the rules make discretion a factor in determining\nadmissibility. State v. Wood, 310 Neb. 391, 966 N.W.2d 825\n(2021). Where the Nebraska Evidence Rules commit the evi-\ndentiary question at issue to the discretion of the trial court,\nan appellate court reviews the admissibility of evidence for\nan abuse of discretion. Id. A trial court has the discretion to\ndetermine the relevancy and admissibility of evidence, and\nsuch determinations will not be disturbed on appeal unless they\nconstitute an abuse of that discretion. State v. Rocha, 295 Neb.\n716, 890 N.W.2d 178 (2017).\n [4] Regardless of whether the evidence is direct, circumstan-\ntial, or a combination thereof, and regardless of whether the\nissue is labeled as a failure to direct a verdict, insufficiency of\nthe evidence, or failure to prove a prima facie case, the stan-\ndard is the same: In reviewing a criminal conviction, an appel-\nlate court does not resolve conflicts in the evidence, pass on\nthe credibility of witnesses, or reweigh the evidence; such mat-\nters are for the finder of fact, and a conviction will be affirmed,\nin the absence of prejudicial error, if the evidence admitted at\ntrial, viewed and construed most favorably to the State, is suf-\nficient to support the conviction. State v. Pauly, 311 Neb. 418,\n972 N.W.2d 907 (2022).\n [5,6] Whether jury instructions given by a trial court are\ncorrect is a question of law. Id. On a question of law, an appel-\nlate court is obligated to reach a conclusion independent of the\ndetermination reached by the court below. Id.\n ANALYSIS\nDistrict Court Did Not Err When It Allowed\nBetzen’s Testimony Regarding Driving\non the Wrong Side of the Road.\n Cerros first claims that the district court erred when it\nallowed Betzen’s testimony to the effect that driving on the\n\f - 239 -\n Nebraska Supreme Court Advance Sheets\n 312 Nebraska Reports\n STATE V. CERROS\n Cite as 312 Neb. 230\n\nwrong side of the road could be a sign of reckless driving.\nCerros argues that Betzen’s testimony constituted an impermis-\nsible opinion as to Cerros’ guilt on a key element of the man-\nslaughter charge in this case. Because Betzen did not express\nan opinion regarding Cerros’ guilt, we conclude that the district\ncourt did not err when it allowed the testimony.\n [7] Cerros cites State v. Rocha, 295 Neb. at 733, 890\nN.W.2d at 194, in which we held that under Nebraska’s rules\nof evidence, including Neb. Evid. R. 701 and 702, Neb. Rev.\nStat. §§ 27-701 and 27-702 (Reissue 2016), regarding opinion\ntestimony, and Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403\n(Reissue 2016), regarding relevancy and unfair prejudice, “a\nwitness may not give an opinion as to a defendant’s guilt or\nhow the case should be decided, but, rather, must leave the\nconclusions to be drawn by the trier of fact, because such\nopinions are not helpful.” We reasoned that such determina-\ntions are within the province of the trier of fact and that tes-\ntimony that usurps the role of the trier of fact is not helpful\nand thus is improper opinion testimony under rules 701 and\n702. We further reasoned that the risk of unfair prejudice is\nheightened when such an opinion is given by a law enforce-\nment officer.\n When it overruled Cerros’ objection to Betzen’s testimony,\nthe district court emphasized that the question was whether\ndriving on the wrong side “[c]ould be” a sign of impaired\ndriving or reckless driving and that Betzen merely answered,\n“That’s correct.” We read the court’s comment to indicate\nthat the court did not think that Betzen’s answer constituted\nan opinion as to Cerros’ guilt. We agree with that reasoning.\nConsidered in the context of earlier questioning, it appears\nthat the State was asking about the sorts of actions or obser-\nvations that would lead Betzen to suspect impaired driving\nor reckless driving as a general matter. The State did not ask\nfor, and Betzen did not give, an opinion as to whether Cerros’\nactions in this case established that Cerros was guilty of reck-\nless driving.\n\f - 240 -\n Nebraska Supreme Court Advance Sheets\n 312 Nebraska Reports\n STATE V. CERROS\n Cite as 312 Neb. 230\n\n Under the rules of evidence, it was within the court’s dis-\ncretion to determine whether Betzen’s testimony was relevant\nand whether it resulted in unfair prejudice to Cerros. Because\nBetzen agreed only in response to an isolated question that as\na general matter, driving on the wrong side could be a sign\nof reckless driving, he did not provide an explicit opinion\nregarding whether Cerros was guilty of reckless driving. The\ntestimony did not invade the jury’s province to make that\ndetermination based on all the evidence presented and the law\nas instructed. We therefore conclude that the district court did\nnot abuse its discretion when it allowed Betzen’s testimony\nthat driving on the wrong side of the road could be a sign of\nreckless driving.\n\nThere Was Sufficient Evidence to Support\nCerros’ Manslaughter Conviction.\n Cerros next claims that there was not sufficient evidence\nto support his conviction for manslaughter. He argues that the\nevidence does not show reckless driving, because at most, it\nshowed a traffic infraction that would not support a conviction\nfor manslaughter. We conclude that the evidence was sufficient\nto support Cerros’ conviction.\n Cerros was convicted of manslaughter under Neb. Rev. Stat.\n§ 28-305 (Reissue 2016), which provides in part that “[a] per-\nson commits manslaughter if he or she kills another without\nmalice upon a sudden quarrel or causes the death of another\nunintentionally while in the commission of an unlawful act.” In\nthis case, Cerros was charged with manslaughter of the second\ntype, that is, having “cause[d] the death of another unintention-\nally while in the commission of an unlawful act.” The predicate\nunlawful act was reckless driving as set forth in Neb. Rev. Stat.\n§ 60-6,213 (Reissue 2021), which provides that “[a]ny person\nwho drives any motor vehicle in such a manner as to indicate\nan indifferent or wanton disregard for the safety of persons\nor property shall be guilty of reckless driving.” Neb. Rev.\nStat. § 60-6,215 (Reissue 2021) provides that “[e]very person\n\f - 241 -\n Nebraska Supreme Court Advance Sheets\n 312 Nebraska Reports\n STATE V. CERROS\n Cite as 312 Neb. 230\n\nconvicted of reckless driving shall, upon a first conviction, be\nguilty of a Class III misdemeanor.”\n Cerros’ argument relies on State v. Carman, 292 Neb. 207,\n216, 872 N.W.2d 559, 565 (2015), in which we held that\n“public welfare offenses such as traffic infractions which do\nnot contain the element of criminal intent cannot support\nconvictions for manslaughter.” We further stated in Carman\nthat “momentary inattentiveness and minor traffic violations\ndo not involve the culpability or mens rea required to convict\none of felony manslaughter.” 292 Neb. at 218, 872 N.W.2d at\n567. The defendant in Carman was convicted of manslaughter\nbased on traffic offenses of following too closely and driving\ntoo fast for the conditions. We concluded that these traffic\noffenses were public welfare offenses that did not establish the\nrequired element of mens rea, and we therefore reversed the\ndefendant’s conviction. Cerros argues that in this case, there\nwas not sufficient evidence of the predicate act of reckless\ndriving to support his conviction for manslaughter, because the\nevidence did not show he possessed the required mens rea for\nreckless driving, and that at best, it showed he had committed\npublic welfare offenses involving momentary inattentiveness\nand minor traffic violations.\n [8] We note that in Carman, we stated that in prior cases\nin which we had upheld manslaughter convictions based on\noffenses committed while driving, such cases “involved more\nthan mere traffic infractions, which have no mens rea” and\nthose convictions “almost invariably involved driving while\nintoxicated, driving recklessly, or both.” 292 Neb. at 224, 872\nN.W.2d at 570 (emphasis supplied). We stated that “[t]hese\nactions would establish that the unlawful act was done volun-\ntarily and intentionally and was not the result of mistake, acci-\ndent, or momentary inattention.” Id. We made clear in Carman\nthat reckless driving was not a mere traffic infraction or public\nwelfare offense and that it required the necessary mens rea to\nbe the unlawful act to support a conviction for manslaughter.\nWe therefore reject any argument that reckless driving could\n\f - 242 -\n Nebraska Supreme Court Advance Sheets\n 312 Nebraska Reports\n STATE V. CERROS\n Cite as 312 Neb. 230\n\nnot support Cerros’ conviction for manslaughter. Our precedent\nis consistent with this conclusion.\n We read Cerros to argue that, in any event, the evidence in\nthis case does not support a finding that he committed reckless\ndriving and instead that it showed at most that he was driving\nnegligently. He contends that such negligence indicated a traf-\nfic infraction that was short of reckless driving and that, under\nCarman, would not support a conviction for manslaughter.\n The State charged manslaughter based on reckless driving as\nthe unlawful act. The court’s jury instruction setting forth the\nelements of manslaughter stated, inter alia, that the jury must\nfind that Cerros caused the death of the motorcyclist while in\nthe commission of the unlawful act of reckless driving, and\na separate instruction set forth the elements of reckless driv-\ning as being that Cerros drove a vehicle “in such a manner as\nto indicate an indifferent or wanton disregard for the safety\nof persons or property.” The instruction therefore tracked the\nstatute defining reckless driving and included the mens rea we\nfound sufficient in Carman.\n With respect to the evidence, there was sufficient evidence\nthat the motorcyclist’s death was caused by the collision,\nand Cerros does not argue that there was not sufficient evi-\ndence to show that element of manslaughter. The evidence\nof reckless driving was that Cerros was driving on the wrong\nside of the highway and was 5 to 6 feet over the centerline\nat the time of the collision. The evidence also indicated a\nlack of skid marks, and the accident reconstructionist opined\nthat Cerros had not taken reactive or corrective measures to\navoid the collision. From this evidence, the jury could have\ndetermined that Cerros was not maintaining a proper lookout\nfor an oncoming motorcycle as he drove in the wrong lane.\nThe jury could reasonably have concluded that this evidence\nshowed Cerros was operating the vehicle in such a manner as\nto indicate an indifferent or wanton disregard for the safety of\npersons or property and that therefore, he was committing the\nunlawful act of reckless driving. The jury had all the evidence\n\f - 243 -\n Nebraska Supreme Court Advance Sheets\n 312 Nebraska Reports\n STATE V. CERROS\n Cite as 312 Neb. 230\n\nbefore it and was given a proper definition of reckless driv-\ning. A rational finder of fact could conclude Cerros committed\nreckless driving.\n Cerros argues that his actions did not amount to reckless\ndriving but instead were merely negligent or the result of\nmomentary inattention. He presented evidence in his defense\nfrom which he argued that he was on the wrong side of the\nhighway because he was preparing to turn left onto a county\nroad. The jury could have considered the evidence Cerros\npresented in his defense and found that his driving did not\nmeet the standard of “indifferent or wanton disregard” that\nwas necessary to establish reckless driving. However, it is\nalso reasonable that the jury could have rejected such evidence\nor that it could have found that even if his proffered reason\nwas the true reason he was driving on the wrong side of the\nhighway, that reason did not excuse his choice to drive on\nthe wrong side of the highway and that doing so and failing\nto look out for oncoming traffic indicated an indifferent or\nwanton disregard for any motorist who might be driving from\nthe opposite direction. Therefore, the jury could properly have\nconsidered the evidence presented by both parties and found\nreckless driving.\n There was sufficient evidence to support Cerros’ conviction\nfor manslaughter, and we reject this assignment of error.\n\nDistrict Court Did Not Err When It Failed\nto Instruct on Careless Driving as a\nLesser-Included Offense.\n Cerros finally claims that the district court erred when\nit failed to instruct the jury on careless driving as a lesser-\nincluded offense. He argues that the evidence supported a\nfinding that he was guilty of careless, but not reckless, driv-\ning. Cerros reasons that because careless driving cannot be\nthe predicate unlawful act for manslaughter, the jury could\nhave acquitted him of manslaughter and convicted him of the\nlesser offense of careless driving. We conclude that Cerros\n\f - 244 -\n Nebraska Supreme Court Advance Sheets\n 312 Nebraska Reports\n STATE V. CERROS\n Cite as 312 Neb. 230\n\ndid not explicitly request and did not offer a proposed lesser-\nincluded offense instruction based on careless driving and that\ntherefore, the district court did not err when it did not give\nsuch an instruction.\n [9,10] With regard to lesser-included offense instructions,\nwe have said that a court must instruct on a lesser-included\noffense if (1) the elements of the lesser offense for which an\ninstruction is requested are such that one cannot commit the\ngreater offense without simultaneously committing the lesser\noffense and (2) the evidence produces a rational basis for\nacquitting the defendant of the greater offense and convicting\nthe defend­ant of the lesser offense. State v. Wood, 310 Neb.\n391, 966 N.W.2d 825 (2021) (emphasis supplied). Specifically,\nwith respect to lesser-included offense instructions, we have\nstated that in cases where murder is charged, a court is required\nto instruct on lesser degrees of homicide where appropriate,\nbut in other circumstances, a court must instruct on a lesser-\nincluded offense only if requested to do so and that failure\nto instruct on a lesser-included offense “cannot be considered\nerror if the defendant did not request the instruction.” State v.\nSmith, 284 Neb. 636, 651, 822 N.W.2d 401, 413 (2012).\n The issue as framed by Cerros on appeal regarding a\nlesser-included offense instruction is at odds with the record\nat trial and injects some confusion; thus, we clarify what the\nrecord shows. At the jury instruction conference and else-\nwhere, Cerros verbally asked the district court to instruct that\nreckless driving was a lesser-included offense even though\nCerros was not charged with reckless driving and reckless\ndriving served only as a predicate element of manslaughter.\nCerros did not ask verbally or in writing that the jury be\ninstructed that careless driving was a lesser-included offense\nof any charged crime.\n At the jury instruction conference in this case, Cerros raised\nobjections to the court’s proposed instructions and offered\ncertain proposed instructions of his own. With regard to the\ncharge of manslaughter, Cerros argued that the predicate\n\f - 245 -\n Nebraska Supreme Court Advance Sheets\n 312 Nebraska Reports\n STATE V. CERROS\n Cite as 312 Neb. 230\n\nunlawful act should be willful reckless driving, an offense\nset forth in Neb. Rev. Stat. § 60-6,214 (Reissue 2021), rather\nthan reckless driving, an offense set forth in § 60-6,213. The\ndistrict court rejected this argument on the basis that reckless\ndriving “has sufficient mens rea such that it can be the under-\nlying unlawful offense for a manslaughter charge.” Cerros\nspecifically stated that he was “asking for the lesser included\noffense of reckless driving.” The district court did not specifi-\ncally address this request, but it overruled Cerros’ objections\nand did not give a lesser-included offense instruction on reck-\nless driving. Cerros does not claim on appeal that the district\ncourt erred when it refused a lesser-included offense instruc-\ntion on reckless driving. Instead, he claims the court erred\nwhen it did not give a lesser-included offense instruction on\ncareless driving. Cerros cites State v. Howard, 253 Neb. 523,\n571 N.W.2d 308 (1997), for the proposition that careless driv-\ning is a lesser-included offense of reckless driving. He argues\nthat there was evidence from which the jury could have deter-\nmined that he drove carelessly but not recklessly. It is not\nclear from Cerros’ arguments whether he asserts that the court\nshould have instructed on careless driving as a direct lesser-\nincluded offense of manslaughter or whether there should\nhave been a step instruction wherein reckless driving served\nas the lesser-included offense of manslaughter (based on reck-\nless driving) and thence careless driving served as the lesser-\nincluded offense of reckless driving. We need not resolve this\nissue, because despite his contentions to the contrary, Cerros\ndid not request an instruction on careless driving and thus has\nnot preserved this issue for appeal.\n Cerros’ comments at the jury instruction conference focused\nfirst on his argument that the underlying offense should be\nwillful reckless driving. He also verbally requested a lesser-\nincluded offense instruction, but he identified the lesser offense\nas “reckless driving under 60-6,212 or 60-6,213” and argued\nthat “the jury theoretically could find there was no proximate\ncause, but he was reckless driving or willful reckless driving.”\n\f - 246 -\n Nebraska Supreme Court Advance Sheets\n 312 Nebraska Reports\n STATE V. CERROS\n Cite as 312 Neb. 230\n\nHe did not state that he was requesting a lesser-included\noffense instruction on “careless driving.”\n Nevertheless, Cerros argues on appeal that he was asking\nfor an instruction on careless driving. Cerros concedes that\nhe did not speak with clarity at the jury instruction confer-\nence and elsewhere, but argues that it was evident that he was\nreferring to careless driving. We disagree. Cerros’ comments\nat the jury instruction conference referred only to “reckless\ndriving” or “willful reckless driving,” and he did not explic-\nitly refer to “careless driving.” The reference to “60-6,212 or\n60-6,213” was ambiguous at best and was not a clear reference\nto careless driving. Instead, we read the comment as suggest-\ning uncertainty as to whether the statute defining “reckless\ndriving” was found in Neb. Rev. Stat. § 60-6,212 (Reissue\n2021) or § 60-6,213, or it could suggest a mistaken reference\nto the two statutes as being the statutes that defined “reckless\ndriving” and “willful reckless driving.” Furthermore, although\nhe provided other proposed written instructions, to our knowl-\nedge, Cerros provided no proposed lesser-included offense\ninstructions, and none appear in our appellate record. See State\nv. Custer, 292 Neb. 88, 871 N.W.2d 243 (2015) (stating appel-\nlant’s failure to include proposed jury instruction in record on\nappeal precluded appellate determination of whether tendered\ninstruction was correct statement of law and was warranted\nby evidence).\n Because Cerros did not request a lesser-included offense\ninstruction on careless driving, the district court’s failure to\ninstruct on careless driving as a lesser-included offense can-\nnot be considered error. See State v. Smith, 284 Neb. 636, 822\nN.W.2d 401 (2012). Therefore, the district court did not err\nwhen it did not give a careless driving instruction that was not\nrequested. We reject this assignment of error.\n\n CONCLUSION\n We conclude that the district court did not abuse its discre-\ntion when it allowed Betzen’s testimony that driving on the\n\f - 247 -\n Nebraska Supreme Court Advance Sheets\n 312 Nebraska Reports\n STATE V. CERROS\n Cite as 312 Neb. 230\n\nwrong side could be a sign of reckless driving, and the district\ncourt did not err when it did not give a lesser-included offense\ninstruction on careless driving when Cerros did not request\nsuch an instruction. We further conclude that there was suffi-\ncient evidence to support Cerros’ conviction for manslaughter.\nWe therefore affirm Cerros’ conviction.\n Affirmed.\n\f", "ocr": false, "opinion_id": 7800140 } ]

"2022-08-11"

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 1, "download_url": "http://www.search.txcourts.gov/RetrieveDocument.aspx?DocId=41742&Index=%5c%5c10%2e20%2e4%2e7%5cTamesIndexes%5ccoa13%5cOpinion", "author_id": null, "opinion_text": " THE THIRTEENTH COURT OF APPEALS\n\n 13-22-00234-CR\n\n\n EX PARTE ESTEBAN CANTU\n\n\n On Appeal from the\n 92nd District Court of Hidalgo County, Texas\n Trial Court Cause No. C-1636-22-A\n\n\n JUDGMENT\n\n THE THIRTEENTH COURT OF APPEALS, having considered this cause on\n\nappeal, concludes the appeal should be dismissed. The Court orders the appeal\n\nDISMISSED in accordance with its opinion.\n\n We further order this decision certified below for observance.\n\nAugust 11, 2022\n\f", "ocr": false, "opinion_id": 7800440 } ]

"2022-08-17"

[ "2022 NY Slip Op 05001" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://www.courts.state.ny.us/reporter/3dseries/2022/2022_05001.htm", "author_id": null, "opinion_text": "\n\nZennia v Ramsey (2022 NY Slip Op 05001)\n\n\n\n\n\nZennia v Ramsey\n\n\n2022 NY Slip Op 05001\n\n\nDecided on August 17, 2022\n\n\nAppellate Division, Second Department\n\n\n\nPublished by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.\n\n\nThis opinion is uncorrected and subject to revision before publication in the Official Reports.\n\n\n\nDecided on August 17, 2022\nSUPREME COURT OF THE STATE OF NEW YORK\nAppellate Division, Second Judicial Department\n\nVALERIE BRATHWAITE NELSON, J.P.\nREINALDO E. RIVERA\nCHERYL E. CHAMBERS\nDEBORAH A. DOWLING, JJ.\n\n\n2020-08779\n (Index No. 66400/18)\n\n[*1]Yikarah Zennia, appellant, \nvCurtis Ramsey, respondent, et al., defendants.\n\n\nBudin, Reisman, Kupferberg &amp; Bernstein, LLP, New York, NY (Gregory C. McMahon of counsel), for appellant.\nJennifer S. Adams, Yonkers, NY (Ronese R. Brooks of counsel), for respondent.\n\n\n\nDECISION &amp; ORDER\nIn an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Lawrence H. Ecker, J.), dated November 9, 2020. The order granted the motion of the defendant Curtis Ramsey for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident.\nORDERED that the order is reversed, on the law, with costs, and the motion of the defendant Curtis Ramsey for summary judgment dismissing the complaint is denied.\nThe plaintiff commenced this action to recover damages for personal injuries that she allegedly sustained in a motor vehicle accident that occurred on September 23, 2017. The defendant Curtis Ramsey (hereinafter the defendant) moved for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident. In an order dated November 9, 2020, the Supreme Court granted the defendant's motion, and the plaintiff appeals.\nThe defendant failed to meet his prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). The defendant failed to submit competent medical evidence establishing, prima facie, that the plaintiff did not sustain a serious injury to the cervical and lumbar regions of her spine and to her left shoulder under the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102(d) (see Melika v Caraballo, 187 AD3d 1173, 1173; Staubitz v Yaser, 41 AD3d 698, 699; cf. Staff v Yshua, 59 AD3d 614). Further, the defendant failed to establish, prima facie, that the alleged injuries to the cervical and lumbar regions of the plaintiff's spine and to her left shoulder were not caused by the accident (see Luigi v Avis Cab Co., Inc., 96 AD3d 809; Reyes v Diaz, 82 AD3d 484; see generally Jilani v Palmer, 83 AD3d 786, 787).\nSince the defendant failed to meet his prima facie burden, it is unnecessary to determine whether the submissions by the plaintiff in opposition were sufficient to raise a triable issue of fact (see Che Hong Kim v Kossoff, 90 AD3d 969, 969).\nAccordingly, the Supreme Court should have denied the defendant's motion for summary judgment dismissing the complaint.\nBRATHWAITE NELSON, J.P., RIVERA, CHAMBERS and DOWLING, JJ., concur.\nENTER:\nMaria T. Fasulo\nClerk of the Court\n\n\n\n\n\n\n\n\n", "ocr": false, "opinion_id": 7801437 } ]

"2022-08-17"

[ "2022 NY Slip Op 04957" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://www.courts.state.ny.us/reporter/3dseries/2022/2022_04957.htm", "author_id": null, "opinion_text": "\n\nK.J. v Longo (2022 NY Slip Op 04957)\n\n\n\n\n\nK.J. v Longo\n\n\n2022 NY Slip Op 04957\n\n\nDecided on August 17, 2022\n\n\nAppellate Division, Second Department\n\n\n\nPublished by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.\n\n\nThis opinion is uncorrected and subject to revision before publication in the Official Reports.\n\n\n\nDecided on August 17, 2022\nSUPREME COURT OF THE STATE OF NEW YORK\nAppellate Division, Second Judicial Department\n\nBETSY BARROS, J.P.\nFRANCESCA E. CONNOLLY\nLINDA CHRISTOPHER\nLARA J. GENOVESI, JJ.\n\n\n2020-09621\n (Index No. 514801/17)\n\n[*1]K.J., etc., et al., plaintiffs,\nvErasmo P. Longo, defendant third-party plaintiff-appellant; Rano Rahmanova, et al., third-party defendants-respondents.\n\n\nRusso &amp; Gould, LLP, Buffalo, NY (David Gould and Trishe L. A. Hynes of counsel), for defendant third-party plaintiff-appellant.\n\n\n\nDECISION &amp; ORDER\nIn an action to recover damages for personal injuries, etc., the defendant third-party plaintiff appeals from an order of the Supreme Court, Kings County (Reginald A. Boddie, J.), dated November 19, 2020. The order denied the defendant third-party plaintiff's motion for leave to enter a default judgment against the third-party defendants.\nORDERED that the order is affirmed, without costs or disbursements.\nThe defendant third-party plaintiff served the third-party defendants pursuant to CPLR 308(2) by delivering copies of, inter alia, the third-party summons and complaint to a person of suitable age and discretion at the address of the third-party defendants' usual place of abode on February 11, 2019, and by mailing copies to the same address on February 12, 2019. The proofs of service were purportedly filed on April 2, 2019, well beyond the 20-day filing period required by CPLR 308(2). The defendant third-party plaintiff moved for leave to enter a default judgment against the third-party defendants, and the third-party defendants opposed the motion on the ground that they had already served a third-party answer. The Supreme Court denied the defendant third-party plaintiff's motion, and the defendant third-party plaintiff appeals. We affirm.\nWhile the failure to file a timely proof of service is a curable procedural irregularity, here, the defendant third-party plaintiff did not obtain an order permitting a late filing of proof of service (see Wilmington Trust, N.A. v Shasho, 197 AD3d 534, 537; Pipinias v J. Sackaris &amp; Sons, Inc., 116 AD3d 749, 750; Zareef v Lin Wong, 61 AD3d 749, 749; Bank of New York v Schwab, 97 AD2d 450, 450-451; Marazita v Nelbach, 91 AD2d 604; cf. Weininger v Sassower, 204 AD2d 715, 716). Accordingly, the late filings were nullities and the third-party defendants' time to answer never began to run (see Pipinias v J. Sackaris &amp; Sons, Inc., 116 AD3d at 750; Zareef v Lin Wong, 61 AD3d at 749; Bank of New York v Schwab, 97 AD2d at 450-451; Marazita v Nelbach, 91 AD2d at 604). Since the third-party defendants were not in default, the defendant third-party plaintiff's motion for leave to enter a default judgment against the third-party defendants was properly denied (see Pipinias v J. Sackaris &amp; Sons, Inc., 116 AD3d at 750; Zareef v Lin Wong, 61 AD3d at 749-750; Bank of New York v Schwab, 97 AD2d at 450-451; Marazita v Nelbach, 91 AD2d at 604).\nBARROS, J.P., CONNOLLY, CHRISTOPHER and GENOVESI, JJ., concur.\nENTER:\nMaria T. Fasulo\nClerk of the Court\n\n\n\n\n\n\n\n\n", "ocr": false, "opinion_id": 7801480 } ]

"2022-08-18"

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 54, "download_url": "https://www.govinfo.gov/content/pkg/USCOURTS-ca4-19-04562/pdf/USCOURTS-ca4-19-04562-0.pdf", "author_id": null, "opinion_text": "USCA4 Appeal: 19-4562 Doc: 124 Filed: 08/18/2022 Pg: 1 of 54\n\n\n\n\n PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 19-4123\n\n\n UNITED STATES OF AMERICA,\n\n Plaintiff – Appellee,\n v.\n\n MONTANA BARRONETTE,\n\n Defendant – Appellant.\n\n\n No. 19-4160\n\n\n UNITED STATES OF AMERICA,\n\n Plaintiff – Appellee,\n v.\n\n BRANDON WILSON, a/k/a Ali,\n\n Defendant – Appellant.\n\n\n No. 19-4180\n\n\n UNITED STATES OF AMERICA,\n\n Plaintiff – Appellee,\n v.\n\n JOHN HARRISON, a/k/a Binkie,\n\n Defendant – Appellant.\n\fUSCA4 Appeal: 19-4562 Doc: 124 Filed: 08/18/2022 Pg: 2 of 54\n\n\n\n\n No. 19-4181\n\n\n UNITED STATES OF AMERICA,\n\n Plaintiff – Appellee,\n v.\n\n LINTON BROUGHTON, a/k/a Marty,\n\n Defendant – Appellant.\n\n\n No. 19-4328\n\n\n UNITED STATES OF AMERICA,\n\n Plaintiff – Appellee,\n v.\n\n TERRELL SIVELLS,\n\n Defendant – Appellant.\n\n\n No. 19-4408\n\n\n UNITED STATES OF AMERICA,\n\n Plaintiff – Appellee,\n v.\n\n TAURUS TILLMAN,\n\n Defendant – Appellant.\n\n\n\n\n 2\n\fUSCA4 Appeal: 19-4562 Doc: 124 Filed: 08/18/2022 Pg: 3 of 54\n\n\n\n\n No. 19-4562\n\n\n UNITED STATES OF AMERICA,\n\n Plaintiff – Appellee,\n v.\n\n TIMOTHY FLOYD, a/k/a Tom Rod,\n\n Defendant – Appellant.\n\n\n No. 19-4726\n\n\n UNITED STATES OF AMERICA,\n\n Plaintiff – Appellee,\n v.\n\n DENNIS PULLEY, a/k/a Denmo,\n\n Defendant - Appellant.\n\n\n\n Appeals from the United States District Court for the District of Maryland, at Baltimore.\n Catherine C. Blake, Senior District Judge. (1:16-cr-00597-CCB-1; 1:16-cr-00597-CCB-\n 10; 1:16-cr-00597-CCB-6; 1:16-cr-00597-CCB-7; 1:16-cr-00597-CCB-2; 1:16-cr-00597-\n CCB-3; 1:16-cr-00597-CCB-12; 1:16-cr-00597-CCB-8)\n\n\n Argued: May 4, 2022 Decided: August 18, 2022\n\n\n Before NIEMEYER and DIAZ, Circuit Judges, and FLOYD, Senior Circuit Judge.\n\n\n Nos. 19-4123, 19-4160, 19-4180, 19-4181, 19-4328, 19-4408, and 19-4562, affirmed; No.\n 19-4726, affirmed in part, reversed in part, and remanded for further proceedings by\n\n 3\n\fUSCA4 Appeal: 19-4562 Doc: 124 Filed: 08/18/2022 Pg: 4 of 54\n\n\n\n\n published opinion. Senior Judge Floyd wrote the opinion in which Judge Niemeyer and\n Judge Diaz joined.\n\n\n ARGUED: Steven M. Klepper, KRAMON & GRAHAM, PA, Baltimore, Maryland;\n Alfred Guillaume, III, LAW OFFICE OF ALFRED GUILLAUME III, Washington, D.C.,\n for Appellants. Jason Daniel Medinger, OFFICE OF THE UNITED STATES\n ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF: Michael Lawlor,\n BRENNAN MCKENNA & LAWLOR, Greenbelt, Maryland, for Appellant Montana\n Barronette. Christopher C. Nieto, NIETO LAW OFFICE, Baltimore, Maryland, for\n Appellant Brandon Wilson. Jenifer Wicks, BLIND JUSTICE LEGAL SERVICES,\n Takoma Park, Maryland, for John Harrison. Stuart A. Berman, LERCH, EARLY &\n BREWER, CHTD., Bethesda, Maryland, for Appellant Terrell Sivells. Erek L. Barron,\n WHITEFORD, TAYLOR & PRESTON LLP, Rockville, Maryland, for Appellant Dennis\n Pulley. Richard B. Bardos, SCHULMAN, HERSHFIELD & GILDEN, P.A., Baltimore,\n Maryland, for Appellant Taurus Tillman. Gerald C. Ruter, LAW OFFICES OF GERALD\n C. RUTER, PC, Baltimore, Maryland, for Appellant Timothy Floyd. Jonathan F. Lenzner,\n Acting United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,\n Baltimore, Maryland, for Appellee.\n\n\n\n\n 4\n\fUSCA4 Appeal: 19-4562 Doc: 124 Filed: 08/18/2022 Pg: 5 of 54\n\n\n\n\n FLOYD, Senior Circuit Judge:\n\n Appellants Montana Barronette, Brandon Wilson, Linton Broughton, John\n\n Harrison, Terrell Sivells, Taurus Tillman, Timothy Floyd, and Dennis Pulley (collectively,\n\n Appellants) operated for around seven years an enterprise known as “Trained to Go” (TTG)\n\n within one of West Baltimore’s neighborhoods. Appellants distributed drugs and engaged\n\n in countless acts of violence using firearms. They exercised their constitutional right to a\n\n jury trial and were convicted for their actions, including for conspiring to violate the\n\n Racketeer Influenced and Corrupt Organizations Act (RICO). They now bring numerous\n\n challenges to their convictions and sentences, including their right to a public trial, the\n\n evidence admitted at trial, and more. We affirm Appellants’ convictions and sentences on\n\n all fronts, save one. We reverse Pulley’s § 922(g)(1) conviction, vacate the judgment as to\n\n him, and remand for further proceedings consistent with our opinion.\n\n\n\n I.\n\n A.\n\n Evidence at trial, viewed in the light most favorable to the government, United\n\n States v. Burgos, 94 F.3d 849, 854 (4th Cir. 1996) (en banc), showed the following. From\n\n about 2010 to 2017, Appellants operated TTG in the Sandtown neighborhood of West\n\n Baltimore. Barronette and Sivells served as leaders. Over the course of seven years,\n\n Appellants and TTG distributed heroin, cocaine, marijuana, and other controlled\n\n substances. In addition to distributing drugs, the organization’s members, including\n\n Appellants, engaged in violent acts using firearms, including murder, kidnapping, and\n\n 5\n\fUSCA4 Appeal: 19-4562 Doc: 124 Filed: 08/18/2022 Pg: 6 of 54\n\n\n\n\n assault. Other criminal organizations, including a group known as “Young Go Getters”\n\n (YGG) solicited TTG members and associates to engage in murder-for-hire schemes.\n\n Appellants, in varying capacities, were connected to the murders of Brian Chase, Marquez\n\n Jones, Lamont Randall, Gerald Thompson, Jacqueline Parker, Domonique Harris, Antonio\n\n Addison, and Christopher Pennington. The government also introduced evidence at trial\n\n of TTG’s unfulfilled plans to murder others.\n\n Law enforcement began surveilling TTG, using informants to conduct controlled\n\n buys, and acquiring warrants to wiretap TTG members’ phones. On February 5, 2016, a\n\n tracking order was issued for a cellular phone used by Sivells and referred to as TT4. A\n\n wiretap order issued for that phone on March 3, 2016. On April 5, 2016, the government\n\n filed an application for a warrant authorizing the interception of wire communications to\n\n and from another cellular telephone used by Sivells and referred to as TT5. The wiretap\n\n calls showed Appellants communicating to distribute drugs and to track people who they\n\n were conspiring to murder. During the course of surveillance, officers observed Barronette\n\n and Sivells conducting drug transactions. Law enforcement also conducted controlled\n\n purchases of drugs from the group. In light of this surveillance, police acquired search and\n\n seizure warrants for a variety of addresses connected to Appellants, including a warrant\n\n issued on August 4, 2016, for a search of the premises at 2307 Avalon Street in Baltimore.\n\n\n\n B.\n\n On June 29, 2017, a grand jury in the District of Maryland returned a superseding\n\n indictment containing RICO conspiracy and other charges against Barronette, Wilson,\n\n 6\n\fUSCA4 Appeal: 19-4562 Doc: 124 Filed: 08/18/2022 Pg: 7 of 54\n\n\n\n\n Harrison, Broughton, Sivells, Tillman, Floyd, and Pulley. On June 7, 2018, the grand jury\n\n returned a second superseding indictment.\n\n Count One charged all Appellants with conspiring to violate RICO, 18 U.S.C.\n\n § 1962(d), for their actions as TTG members. The government alleged that Appellants\n\n conspired to sell heroin, cocaine, and marijuana and to enrich and protect themselves and\n\n TTG through murder, assault, robbery, kidnapping, and other acts of violence. The\n\n indictment listed predicate offenses as murder, attempted murder, and conspiracy to\n\n commit murder under Maryland law; murder-for-hire under 18 U.S.C. § 1958; witness\n\n tampering and retaliation under 18 U.S.C. §§ 1512 & 1513; conspiracy to distribute and\n\n possession with intent to distribute controlled substances, in violation of 21 U.S.C. §§ 846\n\n and 841; and robbery and robbery conspiracy under the Hobbs Act, 18 U.S.C. § 1951, and\n\n Maryland law. Count One set forth twenty-one overt acts, including drug sales and\n\n murders.\n\n Count Two charged Barronette and Harrison with murdering three individuals to\n\n maintain and increase their positions in TTG, in violation of 18 U.S.C. § 1959(a)(1). 1\n\n Count Three charged all Appellants with a narcotics conspiracy, from 2010 through\n\n the date of the original indictment in January 2017, involving one kilogram or more of\n\n heroin, as well as cocaine and marijuana, in violation of 21 U.S.C. § 846.\n\n\n\n\n 1\n The government dismissed Count Two on the first day of the trial.\n\n 7\n\fUSCA4 Appeal: 19-4562 Doc: 124 Filed: 08/18/2022 Pg: 8 of 54\n\n\n\n\n Counts Four, Five, and Six charged Sivells and Tillman with possession with intent\n\n to distribute heroin on specific dates in 2016, in violation of 21 U.S.C. §§ 841 and 18\n\n U.S.C. § 2.\n\n Counts Seven, Eight, Nine, and Ten charged Wilson and Pulley with possessing\n\n firearms in furtherance of the narcotics distribution conspiracy, in violation of 18 U.S.C.\n\n § 924(c), and while having previously been convicted of a crime punishable by\n\n imprisonment for a term exceeding one year, in violation of 18 U.S.C. § 922(g).\n\n The district court denied Appellants’ pretrial motions to dismiss the RICO\n\n conspiracy charge and to suppress evidence and statements obtained through electronic\n\n surveillance and law enforcement interrogation.\n\n The jury trial commenced on September 17, 2018. Ten days into the trial, the district\n\n court advised counsel that it would authorize the marshals to limit the number of spectators\n\n in the courtroom to twenty-five people if the marshals had security concerns and that\n\n additional spectators would be sent to an overflow room. The district court overruled\n\n Harrison and Tillman’s objections to this, citing “extremely serious security concerns,”\n\n J.A. 1109.2, including fights in the gallery, knives being found in the gallery, a table in the\n\n lobby of the courtroom being vandalized with TTG’s name, the fact that government\n\n witnesses in the case had been murdered, and an alleged request from Barronette while\n\n imprisoned for people to pack the courtroom when government witnesses were testifying.\n\n After twenty-six days of trial, the jury convicted Appellants on all charges. The jury\n\n also issued special verdicts. It found that Barronette conspired to commit the murders of\n\n Brian Chase, Marquez Jones, Lamont Randall, Gerald Thompson, Jacqueline Parker,\n\n 8\n\fUSCA4 Appeal: 19-4562 Doc: 124 Filed: 08/18/2022 Pg: 9 of 54\n\n\n\n\n Antonio Addison, and an unknown individual. However, the jury declined to find that\n\n Barronette conspired to commit one murder—that of David Moore. The jury returned a\n\n special verdict that Sivells conspired to commit the murder of Antonio Addison. It found\n\n that Harrison conspired to commit the murders of Brian Chase, Lamont Randall, Gerald\n\n Thompson, Jacqueline Parker, and Dominique Harris. The jury returned a special verdict\n\n that Broughton conspired to commit the murder of an unknown individual. It found that\n\n Pulley conspired to commit the murder of Christopher Pennington. The jury returned a\n\n special verdict that Floyd conspired to commit the murder of Antonio Addison. On the\n\n narcotics conspiracy charge, the jury found that 1,000 grams or more of heroin, along with\n\n quantities of cocaine and marijuana, were foreseeable to all Appellants.\n\n On February 15, 2019, Barronette received a sentence of concurrent terms of life\n\n imprisonment on Counts One and Three, concurrent five-year terms of supervised release,\n\n and a $200 special assessment.\n\n On March 7, 2019, the district court sentenced Wilson to concurrent terms of 240\n\n months’ (Counts One and Three) and 120 months’ (Count Eight) imprisonment, and a 60-\n\n month consecutive term of imprisonment (Count Seven), concurrent five-year (Counts One\n\n and Three) and three-year (Counts Seven and Eight) terms of supervised release, and a\n\n $400 special assessment.\n\n On March 15, 2019, Broughton was sentenced to concurrent terms of 360 months’\n\n imprisonment on Counts One and Three, concurrent five-year terms of supervised release,\n\n and a $200 special assessment.\n\n\n\n 9\n\fUSCA4 Appeal: 19-4562 Doc: 124 Filed: 08/18/2022 Pg: 10 of 54\n\n\n\n\n Also on March 15, 2019, the district court sentenced to Harrison to concurrent terms\n\n of life imprisonment on Counts One and Three, concurrent five-year terms of supervised\n\n release, and a $200 special assessment.\n\n On April 26, 2019, Sivells was sentenced to concurrent terms of imprisonment of\n\n life (Counts One and Three) and 30 years (Count Four), concurrent terms of supervised\n\n release of five years (Count One), ten years (Count Three), and six years (Count Four), and\n\n a $300 special assessment.\n\n On May 23, 2019, the district court sentenced Tillman to concurrent terms of 300\n\n months’ (Counts One and Three) and 240 months’ (Counts Five and Six) imprisonment,\n\n concurrent five-years terms of supervised release, and a $400 special assessment.\n\n On July 19, 2019, Floyd received a sentence of concurrent terms of 360 months’\n\n imprisonment (Counts One and Three), concurrent five-year terms of supervised release,\n\n and a $200 special assessment.\n\n On September 20, 2019, the district court sentenced Pulley to concurrent terms of\n\n 360 months’ (Counts One and Three) and 120 months’ (Count Ten) imprisonment, and a\n\n 60-month consecutive term of imprisonment (Count Nine), concurrent five-year (Counts\n\n One, Three, and Nine) and three-year (Count Ten) terms of supervised release, and a $400\n\n special assessment.\n\n\n\n C.\n\n Appellants bring fifteen claims on appeal. All contest that the district court erred in\n\n refusing to dismiss the RICO conspiracy charge in Count One on grounds that the RICO\n\n 10\n\fUSCA4 Appeal: 19-4562 Doc: 124 Filed: 08/18/2022 Pg: 11 of 54\n\n\n\n\n conspiracy statute is unconstitutionally vague. They also all claim that the district court\n\n violated their right to a public trial, and that there was insufficient evidence in support of\n\n Count One and that the drug conspiracy involved one kilogram or more of heroin.\n\n Sivells and Floyd claim the district court erred in denying their motions to suppress\n\n evidence gathered from electronic surveillance and that there was insufficient evidence for\n\n the jury’s special verdict that they conspired to murder Antonio Addison. Sivells also\n\n contests the denial of his motion to suppress statements made to law enforcement after his\n\n arrest.\n\n Wilson and Pulley contend that their sentences under 18 U.S.C § 922(g)(1) should\n\n be vacated in light of Rehaif v. United States, 139 S. Ct. 2191 (2019). Wilson separately\n\n contends there was insufficient evidence that he possessed a firearm in furtherance of a\n\n drug conspiracy.\n\n Barronette and Pulley assert that the district court abused its discretion in denying\n\n their motion for a mistrial based on prejudicial witness testimony.\n\n Broughton argues there was insufficient evidence for the special verdict that he\n\n conspired to murder unknown individuals.\n\n Finally, Sivells, Broughton, and Floyd assert that their sentences are procedurally\n\n and substantively unreasonable.\n\n We reject all of these claims except that we agree with Pulley that his conviction\n\n under § 922(g)(1) should be vacated under Rehaif.\n\n\n\n\n 11\n\fUSCA4 Appeal: 19-4562 Doc: 124 Filed: 08/18/2022 Pg: 12 of 54\n\n\n\n\n II.\n\n We begin with Appellants’ argument that the district court erred in refusing to\n\n dismiss the RICO conspiracy charge in Count One because the RICO conspiracy statute is\n\n unconstitutionally vague in light of the Supreme Court’s decision in United States v. Davis,\n\n 139 S. Ct. 2319 (2019). We reject Appellants’ argument as we have already upheld the\n\n constitutionality of the RICO conspiracy statute, and Davis does not disturb our ruling.\n\n We review vagueness challenges de novo. United States v. Sun, 278 F.3d 302, 308\n\n (4th Cir. 2002). “A statute is unconstitutionally vague if it ‘fails to give a person of\n\n ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute.’”\n\n United States v. Bennett, 984 F.2d 597, 605 (4th Cir. 1993) (quoting United States v.\n\n Harriss, 347 U.S. 612, 617 (1954)). Thus, “the void-for-vagueness doctrine requires that\n\n a penal statute define the criminal offense with sufficient definiteness that ordinary people\n\n can understand what conduct is prohibited and in a manner that does not encourage\n\n arbitrary and discriminatory enforcement.” Kolender v. Lawson, 461 U.S. 352, 357 (1983).\n\n “We consider whether a statute is vague as applied to the particular facts at issue, for ‘a\n\n [defendant] who engages in some conduct that is clearly proscribed cannot complain of the\n\n vagueness of the law as applied to the conduct of others.’” Holder v. Humanitarian L.\n\n Project, 561 U.S. 1, 18–19 (2010) (brackets omitted) (quoting Vill. of Hoffman Ests. v.\n\n Flipside, Hoffman Ests., Inc., 455 U.S. 489, 495 (1982)).\n\n Appellants argue that the phrases “pattern of racketeering activity” and “enterprise”\n\n are unconstitutionally vague. Appellants are not the first to bring a vagueness challenge\n\n against the RICO conspiracy statute. In a concurrence in H.J. Inc. v. Northwestern Bell\n\n 12\n\fUSCA4 Appeal: 19-4562 Doc: 124 Filed: 08/18/2022 Pg: 13 of 54\n\n\n\n\n Telephone Co., which adopted a new test for finding a “pattern of racketeering,” Justice\n\n Scalia contemplated such a challenge to the RICO conspiracy statute:\n\n No constitutional challenge to this law has been raised in the present case,\n and so that issue is not before us. That the highest Court in the land has been\n unable to derive from this statute anything more than today’s meager\n guidance bodes ill for the day when that challenge is presented.\n\n 492 U.S. 229, 255–56 (1989) (Scalia, J., concurring in the judgment).\n\n Nevertheless, since H.J. Inc., and despite Justice Scalia’s skepticism, we have twice\n\n rejected void-for-vagueness challenges to the RICO statute. See Bennett, 984 F.2d at 605–\n\n 07; United States v. Borromeo, 954 F.2d 245, 248 (1992). So have our sister circuits. See\n\n Bennett, 984 F.2d at 606 (collecting cases). In Borromeo, we declined to accept Justice\n\n Scalia’s position in H.J. Inc. “that the phrase ‘pattern of racketeering activity’ was\n\n unconstitutionally vague since a majority of the Supreme Court . . . implicitly rejected that\n\n suggestion.” 954 F.2d at 248.\n\n Appellants acknowledge that line of decisions but ask us to reconsider it in light of\n\n void-for-vagueness cases like Davis, Sessions v. Dimaya, 138 S. Ct. 1204 (2018), and\n\n Johnson v. United States, 576 U.S. 591 (2015). But none of those cases justifies such\n\n reconsideration, as they focus only on the residual “crime of violence” or “residual clause”\n\n definitions in 18 U.S.C. § 924(c), the Immigration and Nationality Act, and the Armed\n\n Career Criminal Act, respectively. Those definitions do not appear in the RICO conspiracy\n\n statute.\n\n In Johnson, the Court invalidated the “residual clause” of the Armed Career\n\n Criminal Act (ACCA), which defined a violent felony, in part, as a crime that “otherwise\n\n\n 13\n\fUSCA4 Appeal: 19-4562 Doc: 124 Filed: 08/18/2022 Pg: 14 of 54\n\n\n\n\n involves conduct that presents a serious potential risk of physical injury to another.” 576\n\n U.S. at 594, 606 (emphasis omitted) (quoting 18 U.S.C. § 924(e)(2)(B)(ii)). Next, in\n\n Dimaya, the Court held that a similar residual clause defining a crime of violence as “any\n\n other offense that is a felony and that, by its nature, involves a substantial risk that physical\n\n force against the person or property of another may be used in the course of committing\n\n the offense” was likewise unconstitutionally vague. 138 S. Ct. at 1211, 1223 (quoting 18\n\n U.S.C. § 16(b)). Finally, in Davis, the Court applied Johnson to strike down a residual\n\n clause that defined violent felonies as felonies “that by their nature, involve a substantial\n\n risk that physical force against the person or property of another may be used in the course\n\n of committing the offense.” 139 S. Ct. at 2323–24 (brackets omitted) (quoting 18 U.S.C.\n\n § 924(c)(3)(B)).\n\n We thus disagree that Bennett has been effectively overruled. Appellants challenge\n\n different language that we have upheld as constitutional. Bennett, 984 F.2d at 605–07. We\n\n are bound by this precedent. McMellon v. United States, 387 F.3d 329, 332 (4th Cir. 2004)\n\n (en banc). We will follow our previous holdings and affirm that the RICO conspiracy\n\n statute is not unconstitutionally vague, rejecting Appellants’ first claim on appeal.\n\n\n\n III.\n\n Appellants next contend that the district court violated their Sixth Amendment rights\n\n to a public trial when it limited the number of people who could gather in the public gallery\n\n to twenty-five people, even though the courtroom could hold well over a hundred. A\n\n district court’s decision to limit access to a courtroom proceeding is a constitutional\n\n 14\n\fUSCA4 Appeal: 19-4562 Doc: 124 Filed: 08/18/2022 Pg: 15 of 54\n\n\n\n\n question we review de novo. United States v. Osborne, 68 F.3d 94, 98 (5th Cir. 1995). We\n\n disagree that Appellants’ rights to a public trial were violated.\n\n\n\n A.\n\n Ten days into Appellants’ trial, the district court implemented a partial reduction of\n\n the courtroom’s capacity after several incidents that raised security concerns. The district\n\n court advised counsel that it would authorize the marshals to limit the number of spectators\n\n in the gallery to twenty-five people if they became concerned about the number of people\n\n for security reasons and that additional observers would be diverted to an overflow room.\n\n Harrison and Tillman’s counsel objected that members of the public would not be able to\n\n physically see the proceedings but could only hear them. The district court overruled those\n\n objections because of “the extremely serious security concerns that this trial is raising\n\n [which is] why I feel the necessity to do that.” J.A. 1109.2.\n\n The next day, the district court provided more specific reasons for the partial\n\n closure. It emphasized that the case involved approximately a dozen murders; two\n\n witnesses for the government were murdered, “at least plausibly in connection with this\n\n case;” two defendants assaulted marshals when being taken out of the courtroom; there was\n\n a physical fight in the gallery on the second day of trial; a number of verbal outbursts came\n\n from the gallery; a spectator was found in the gallery with a knife; a table in the lobby of\n\n the courtroom had been vandalized with the name of the TTG gang scratched into it in\n\n several places; and Barronette allegedly made a call while imprisoned that had “a plausible\n\n interpretation of a request to pack the courtroom” when cooperating witnesses were\n\n 15\n\fUSCA4 Appeal: 19-4562 Doc: 124 Filed: 08/18/2022 Pg: 16 of 54\n\n\n\n\n testifying, “rais[ing] the possibility of intimidation of those witnesses.” J.A. 1129–31.\n\n Spectators in the overflow room could hear audio, but “the video [was] limited to . . . that\n\n seal above the bench.” J.A. 1131.\n\n On October 8, 2018, Harrison moved for a mistrial, noting that on two occasions,\n\n marshals did not allow a spectator to go to the overflow room and instead asked to them\n\n leave the courthouse. Affidavits from spectators were included in the motion. Three days\n\n later, Harrison submitted another affidavit stating that on October 11, 2020, a marshal told\n\n a spectator that the courtroom was “at capacity” and there was no “clearance” to open\n\n another courtroom. J.A. 1819. That spectator waited outside the courtroom and was\n\n admitted after the mid-afternoon break. The district court did not rule on Harrison’s\n\n motion, effectively denying it.\n\n\n\n B.\n\n The Sixth Amendment guarantees a defendant the right to a public trial. Gannett\n\n Co. v. DePasquale, 443 U.S. 368, 379–81 (1979). “The central aim of a criminal\n\n proceeding must be to try the accused fairly, and ‘[the Court’s] cases have uniformly\n\n recognized the public-trial guarantee as one created for the benefit of the defendant.’”\n\n Waller v. Georgia, 467 U.S. 39, 46 (1984) (quoting Gannett, 443 U.S. at 380). “[T]he\n\n public-trial guarantee embodies a view of human nature, true as a general rule, that judges,\n\n lawyers, witnesses, and jurors will perform their respective functions more responsibly in\n\n an open court than in secret proceedings.” Estes v. Texas, 381 U.S. 532, 588 (1965)\n\n (Harlan, J., concurring). “[T]he Sixth Amendment public-trial right ‘is for the benefit of\n\n 16\n\fUSCA4 Appeal: 19-4562 Doc: 124 Filed: 08/18/2022 Pg: 17 of 54\n\n\n\n\n the accused,’ ensuring ‘that the public may see he is fairly dealt with and not unjustly\n\n condemned . . . [and] keep[ing] his triers keenly alive to a sense of their responsibility.’”\n\n United States v. Mallory, No. 19-4385, 2022 WL 2662050, at *6 (4th Cir. July 11, 2022)\n\n (quoting Waller, 467 U.S. at 44-46).\n\n “Yet the right is not absolute, and the Supreme Court has long recognized that trial\n\n judges have discretion to impose reasonable limitations on access to a trial when overriding\n\n interests . . . are likely to go unprotected if closure is not employed.” Bell v. Jarvis, 236\n\n F.3d 149, 165 (4th Cir. 2000) (en banc) (emphasis added). We use the Supreme Court’s\n\n test from Waller to determine if “the right to public trial may give way,” which requires\n\n that:\n\n (1) the party seeking to close the hearing advances an overriding interest that\n is likely to be prejudiced, (2) the closure is no broader than necessary to\n protect that interest, (3) reasonable alternatives to closing the proceeding\n [were] considered by the trial court, and (4) findings adequate to support the\n closure [were] made by the trial court.\n\n Id. at 166 (citing Waller, 467 U.S. at 48).\n\n Waller involved a total closure of a suppression hearing, from which all members\n\n of the public were excluded. 467 U.S. at 42. Although we have not articulated a clear rule\n\n for a partial closure of a courtroom, the Second, Fifth, Eighth, Ninth, Tenth, and Eleventh\n\n Circuits have applied a less stringent test in such circumstances. See Osborne, 68 F.3d at\n\n 99 n.12 (collecting cases). These circuits have concluded that\n\n “when a trial judge orders a partial, as opposed to a total, closure of a court\n proceeding at the request of one party, a ‘substantial reason’ rather than\n Waller’s ‘overriding interest’ will justify the closure,” because a partial\n closure does not “implicate the same secrecy and fairness concerns that a\n total closure does.”\n\n 17\n\fUSCA4 Appeal: 19-4562 Doc: 124 Filed: 08/18/2022 Pg: 18 of 54\n\n\n\n\n United States v. Farmer, 32 F.3d 369, 371 (8th Cir. 1994) (quoting Woods v. Kuhlmann,\n\n 977 F.2d 74, 76 (2d Cir. 1992)). 2\n\n Here, the courtroom was never completely closed to the public; the district court\n\n only reduced the capacity for spectators. Thus, it appears that applying the out-of-circuit,\n\n less stringent test would be appropriate in this situation. However, we need not reach that\n\n question today, as we believe the district court’s decision to partially reduce the capacity\n\n of the courtroom holds up under the original Waller factors.\n\n Regarding the first Waller prong, neither party seems to have requested the capacity\n\n limit; instead, either the marshals or the district court itself requested the number of\n\n spectators be capped due to security concerns and to prevent witness intimidation.\n\n Maintaining order is an overriding interest. See, e.g., Codispoti v. Pennsylvania, 418 U.S.\n\n 506, 514 (1974) (“[C]ases in this Court have consistently [recognized] ‘the need to\n\n maintain order and a deliberative atmosphere in the courtroom.’” (quoting Bloom v.\n\n Illinois, 391 U.S. 194, 210 (1968))). As is preventing witness intimidation. Tucker v.\n\n Superintendent Graterford SCI, 677 F. App’x 768, 777 (3d Cir. 2017). We believe the\n\n district court advanced overriding interests of maintaining order and preventing witness\n\n intimidation by ordering the partial closure.\n\n\n\n\n 2\n We discussed the “substantial reason” test employed by other circuits for partial\n closures in Bell. See 236 F.3d at 168 n.11 (collecting cases). But we did not decide if we\n would join our sister circuits in applying that test. See id.\n\n 18\n\fUSCA4 Appeal: 19-4562 Doc: 124 Filed: 08/18/2022 Pg: 19 of 54\n\n\n\n\n As to the second prong, the partial reduction in capacity was no broader than\n\n necessary. The district court chose to cap the audience at twenty-five people after\n\n consulting both courthouse security and defense counsel. It explained that twenty-five\n\n people was “a number of the general public equivalent to what the defense counsel\n\n proffered there had normally been.” J.A. 1131. And the capacity reduction was also “based\n\n on marshals’ advice.” J.A. 1131. Further, the court set up an overflow room for spectators\n\n once the number of spectators in the courtroom reached the capacity limit.\n\n We find that the capacity restriction was “tailored to serve” the interest of security\n\n and preventing witness intimidation. Bell, 236 F.3d at 168. The courtroom was not\n\n “unnecessarily restricted,” id., as many members of the public were still able to attend.\n\n There “was no literal closure of the courtroom.” Mallory, 2022 WL 2662050, at *7.\n\n Indeed, in addition to the jury, the “[c]ourt personnel, the attorneys, and the court reporter\n\n remained, and, of course, the jury, comprised of the public, was present.” Id. In this case,\n\n additional members of the public were present, as well, as twenty-five spectators were able\n\n to attend. Thus, we hold that the restriction was no broader than necessary.\n\n Third, we find that the district court both considered and implemented reasonable\n\n alternatives to closing the courtroom. Id. at 169 (“Waller counsels trial courts to consider\n\n alternatives to a complete closure of a public proceeding.”). Despite serious security\n\n concerns, the court did not close the courtroom but instead instituted a capacity limit after\n\n consulting courthouse security and defense counsel. See id. (“the limited nature of the\n\n closure . . . suggests that [the court] considered” alternatives). It also set up an overflow\n\n\n\n 19\n\fUSCA4 Appeal: 19-4562 Doc: 124 Filed: 08/18/2022 Pg: 20 of 54\n\n\n\n\n room that provided live audio of the proceedings. Thus, we find that the district court’s\n\n process satisfies the third Waller prong.\n\n Finally, we find that the district court made adequate factual findings to support the\n\n capacity limitation. The court did not institute the partial closure until ten days into trial,\n\n and after several disturbances had occurred. The court listed several instances of\n\n “extremely serious security concerns,” J.A. 1109.2, including a fight in the gallery, a\n\n spectator bringing a knife to the gallery, a courthouse table being vandalized with TTG’s\n\n name, the murders of two cooperating witnesses, and Barronette’s alleged request for\n\n people to pack the courtroom when cooperating witnesses were testifying. The court made\n\n “‘findings specific enough that a reviewing court can determine whether the closure was\n\n properly entered.’” Waller, 467 U.S. at 45 (quoting Press Enter. Co. v. Superior Ct. of\n\n Cal., 464 U.S. 501, 510 (1984)). Thus, we find the district court satisfied this prong.\n\n In sum, we find that the district court’s order to reduce the courtroom’s capacity\n\n satisfies the Waller factors. Appellants did not have a trial in secret. While some spectators\n\n who wanted to be in the courtroom were not able to be there, Appellants still received the\n\n benefits of having a public trial as twenty-five spectators were able to be in the courtroom.\n\n “[T]he partial closing of court proceedings does not raise the same constitutional concerns\n\n as a total closure because an audience remains to ensure the fairness of the proceedings.”\n\n Osborne, 68 F.3d at 98–99. We hold that the district court did not violate Appellants’\n\n rights to a public trial.\n\n\n\n\n 20\n\fUSCA4 Appeal: 19-4562 Doc: 124 Filed: 08/18/2022 Pg: 21 of 54\n\n\n\n\n IV.\n\n Next, Sivells and Floyd appeal the court’s denial of their motions to suppress.\n\n Sivells moved to suppress evidence gathered from tracking orders and wiretap orders on\n\n two phones he was utilizing during the drug conspiracy, referred to as TT4 and TT5. He\n\n also moved to suppress the search warrant for 2307 Avalon Avenue in Baltimore, which\n\n relied on supporting affidavits using information derived from TT4. Floyd, whose voice\n\n was intercepted on the TT4 wiretap, also moved to suppress all evidence collected through\n\n the use of electronic surveillance. The district court denied the motions, finding there was\n\n adequate probable cause for the orders. J.A. 563, 734. We affirm.\n\n When reviewing a district court’s denial of a motion to suppress, we review legal\n\n conclusions de novo and any factual determinations only for clear error. United States v.\n\n Kelly, 592 F.3d 586, 589 (4th Cir. 2010). If the district court denies the motion to suppress,\n\n we view all facts in the light most favorable to the government. Id. The reviewing court’s\n\n duty is only to ensure that the issuing court “had a ‘substantial basis for concluding’ that a\n\n search would uncover evidence of wrongdoing.” Illinois v. Gates, 462 U.S. 213, 236\n\n (1983) (cleaned up) (quoting Jones v. United States, 362 U.S. 257, 271 (1960)).\n\n Regarding the tracking order for TT4, a federal magistrate judge issued a search\n\n warrant on February 5, 2016, permitting the government to receive location information\n\n from the phone. An eleven-page affidavit accompanied the warrant, establishing probable\n\n cause that Sivells was involved in drug trafficking and that the phone was used for drug\n\n trafficking. The affidavit detailed that (1) a confidential informant (CS-4) indicated that\n\n Barronette was engaged in heroin trafficking in the area of North Carrollton Street and\n\n 21\n\fUSCA4 Appeal: 19-4562 Doc: 124 Filed: 08/18/2022 Pg: 22 of 54\n\n\n\n\n Riggs Avenue in Baltimore; (2) law enforcement observed Sivells overseeing the\n\n distribution of drugs in that area; (3) CS-4 made a controlled purchase of heroin from\n\n Barronette; (4) on January 23, 2016, an intercepted call, involving another cellphone that\n\n the police were tracking, revealed Barronette and Sivells discussing guns and drugs; (5) in\n\n February 2016, CS-4 indicated that Sivells had recently acquired TT4 and was using the\n\n phone to facilitate drug deals; and (6) also in February 2016, CS-4 made a controlled call\n\n to Sivells on TT4 and made a deal with Sivells to purchase cocaine, with Sivells directing\n\n CS-4 to go to a drug shop on Calhoun Street.\n\n For the subsequent wiretap of TT4, the government submitted a fifty-two-page\n\n affidavit describing probable cause, which included all of the above facts plus details about\n\n Sivells’s record of drug crimes and phone records showing that TT4 was routinely used to\n\n call Barronette, another known drug dealer.\n\n For the wiretap of TT5, another cellphone associated with Sivells, law enforcement\n\n submitted a seventy-five-page affidavit detailing probable cause. The affidavit stated that\n\n in early March 2016, CS-4 informed police that Barronette and Sivells were using TT5 as\n\n their phone to arrange drug transactions. The affidavit also listed who made controlled\n\n calls to TT5 that Sivells answered, indicating he was going to purchase drugs.\n\n Finally, for the search warrant for the residence at 2307 Avalon Avenue, the\n\n government included an affidavit detailing controlled purchases of heroin from Barronette\n\n and Sivells in November 2015 and January 2016, physical and electronic surveillance of\n\n Sivells at or near the residence, and information from CS-4 that Sivells was recently in the\n\n residence.\n\n 22\n\fUSCA4 Appeal: 19-4562 Doc: 124 Filed: 08/18/2022 Pg: 23 of 54\n\n\n\n\n Appellants want us to discredit some of the information in the affidavits that came\n\n from officers who were in the Baltimore City Police Department’s Gun Trace Task Force\n\n (GTTF). Seven of these officers were convicted of racketeering conspiracy and other\n\n offenses for abusing their positions. Three of these officers arrested Broughton on January\n\n 22, 2016, and in their affidavits establishing probable cause for the tracking order and\n\n wiretap order on TT4, the government relied on events related to Broughton’s arrest.\n\n Appellants want us to disregard the evidence in the affidavits from those events. However,\n\n they admit “there are no allegations of misconduct against the agents and officers who\n\n investigated the present case.” Opening Br. 22.\n\n Appellants do not offer any evidence, for example, that Broughton’s arrest was\n\n tainted by any of the officers’ unlawful activity. They also cite no legal authority for their\n\n assertion that we should disregard the evidence. Additionally, the officers’ version of the\n\n events was corroborated by an intercepted phone call on January 23, 2016, over TT3,\n\n another cellphone, between Barronette and Sivells, in which the two discussed what\n\n occurred during the arrest. And even if we disregarded any mention of the discredited\n\n officers in the affidavits, the remaining information still supports a probable-cause finding\n\n for the TT4 warrant. Thus, we need not decide whether any of the evidence from the GTTF\n\n officers needs to be disregarded, as we can find that there was sufficient probable cause\n\n supporting the tracking order and wiretap of TT4. See United States v. Fall, 955 F.3d 363,\n\n 371–72 (4th Cir. 2020) (“The case law establishes that, even if an affidavit supporting a\n\n search warrant is based in part on some illegal evidence, such inclusion of illegal evidence\n\n\n\n 23\n\fUSCA4 Appeal: 19-4562 Doc: 124 Filed: 08/18/2022 Pg: 24 of 54\n\n\n\n\n does not taint the entire warrant if it is otherwise properly supported by probable cause.”\n\n (brackets and citation omitted)).\n\n In sum, we find there is ample probable cause supporting the tracking and wiretap\n\n orders for TT4 and TT5, as well as the search warrant for 2307 Avalon Avenue. We affirm\n\n the district court’s denial of the motions to suppress.\n\n\n\n V.\n\n Next, Sivells challenges the admission of statements he made to law enforcement\n\n after his arrest on October 27, 2016. He contends that officers improperly continued\n\n questioning him after he invoked his right to counsel. He filed a motion to suppress the\n\n statements, which the district court denied. We affirm the denial of the motion to suppress.\n\n As above, we review legal conclusions de novo and any factual determinations only\n\n for clear error. Kelly, 592 F.3d at 589. Because the district court denied Sivells’s motion,\n\n we view the facts in the light most favorable to the government. Id.\n\n After arresting Sivells, Detective Neptune and FBI Task Force Member Delorenzo\n\n took him to an interview room where Neptune advised Sivells of his Miranda rights using\n\n a Baltimore Police Department explanation and waiver of rights form. Sivells signed the\n\n form, confirming that he understood his rights. Sivells centers his claim on a portion of\n\n the video of the interrogation, which shows Sivells saying, at one point, “I can’t use my\n\n cell phone to call my attorney.” J.A. 663. Neptune testified that he interpreted this as\n\n Sivells “ask[ing] if he could use his cell phone to call his attorney.” J.A. 663. Neptune\n\n “explained to him that if he wanted to have an attorney present, that we wouldn’t call an\n\n 24\n\fUSCA4 Appeal: 19-4562 Doc: 124 Filed: 08/18/2022 Pg: 25 of 54\n\n\n\n\n attorney down there for him. If he wanted to have an attorney present during questioning,\n\n we would stop right now, and we would speak to him at a later date with his attorney.”\n\n J.A. 664. Neptune testified that after that conversation, Sivells went back to reading his\n\n rights and initialing the form. Neptune continued to converse with Sivells, and later\n\n testified at trial about Sivells’s statements.\n\n The district court watched the video and held a hearing on Sivells’s motion to\n\n suppress the statements. The court held that Sivells waived his Miranda rights and\n\n knowingly and voluntarily agreed to speak with law enforcement, reasoning that Sivells\n\n “chose to keep on talking, despite . . . a thorough understanding and explanation of his\n\n rights.” J.A. 817. The court did not “find [Sivells’s] question about using his cell phone\n\n to call his attorney [to be] an unequivocal assertion of his rights such that the officers were\n\n compelled to stop talking to him, even though he said he wished to continue.” J.A. 818.\n\n In Miranda v. Arizona, the Supreme Court held that the police must advise an\n\n accused person in custody of his right to counsel and, “[i]f the individual states that he\n\n wants an attorney, the interrogation must cease until an attorney is present.” 384 U.S. 436,\n\n 474 (1966). Later, in Edwards v. Arizona, the Court explained that when an accused person\n\n “expresse[s] his desire to deal with the police only through counsel,” the police cannot\n\n interrogate him “until counsel has been made available to him, unless the accused himself\n\n initiates further communication, exchanges, or conversations with the police.” 451 U.S.\n\n 477, 484–85 (1981). Two elements must therefore be examined to determine whether\n\n police have obtained a statement in violation of Edwards: (1) whether the accused actually\n\n\n\n 25\n\fUSCA4 Appeal: 19-4562 Doc: 124 Filed: 08/18/2022 Pg: 26 of 54\n\n\n\n\n invoked his right to counsel, and (2) who initiated the further discussions that yielded the\n\n eventual statement. Smith v. Illinois, 469 U.S. 91, 95 (1984).\n\n Regarding the invocation of the right, the Supreme Court in Davis v. United States\n\n held that “if a suspect makes a reference to an attorney that is ambiguous or equivocal in\n\n that a reasonable officer in light of the circumstances would have understood only that the\n\n suspect might be invoking the right to counsel, our precedents do not require the cessation\n\n of questioning.” 512 U.S. 452, 459 (1994). We have numerous examples of equivocal\n\n requests for counsel that do not require the cessation of questioning. See United States v.\n\n Johnson, 400 F.3d 187, 195 (4th Cir. 2005) (collecting cases that have found statements\n\n like “Maybe I should talk to a lawyer,” “I think I need a lawyer,” “Do you think I need an\n\n attorney here?” “I might want to get a lawyer then, huh?” “I think I want a lawyer,” “Do\n\n you think I need a lawyer?” to be equivocal requests for counsel that do not require the\n\n cessation of questioning (citations omitted)).\n\n Sivells’s statement “I can’t use my cell phone to call my attorney” falls into this\n\n category of ambiguous or equivocal statements, as he did not unequivocally request an\n\n attorney. And, perhaps most importantly, the officers did not ignore Sivells. They made\n\n clear that they would stop the questioning if he wanted to have an attorney present. But\n\n instead of asking for an attorney, Sivells simply signed the waiver-of-rights form\n\n voluntarily, relinquishing his rights and continuing to speak with law enforcement.\n\n We agree with the district court that Sivells did not invoke his right to counsel in\n\n the way that Miranda and Edwards require. Thus, we affirm the district court’s denial of\n\n Sivells’s motion to his suppress the statements he made to law enforcement.\n\n 26\n\fUSCA4 Appeal: 19-4562 Doc: 124 Filed: 08/18/2022 Pg: 27 of 54\n\n\n\n\n VI.\n\n Wilson and Pulley assert that their § 922(g)(1) convictions should be reversed after\n\n the Supreme Court’s decision in Rehaif, 139 S. Ct. 2191. We affirm Wilson’s conviction\n\n but find that Pulley’s conviction should be reversed.\n\n Wilson, in Count 8, and Pulley, in Count Ten, were convicted under 18 U.S.C.\n\n § 922(g)(1) for possessing firearms with previous convictions of crimes punishable by\n\n more than one year of imprisonment. After their trial, the Supreme Court in Rehaif held\n\n that in § 922(g) prosecutions, the government must prove that the defendant knew he\n\n possessed a firearm and that he belonged to a class of persons barred from possessing a\n\n firearm. 139 S. Ct. at 2200. Both parties agree that the district court did not instruct the\n\n jury to find that Wilson and Pulley knew they were in a prohibited class. Wilson and Pulley\n\n did not preserve their mens rea claims at trial, so plain-error review applies. Greer v.\n\n United States, 141 S. Ct. 2090, 2096 (2021).\n\n A defendant must satisfy three requirements for plain-error relief. First, an error\n\n must have occurred. Rosales-Mireles v. United States, 138 S. Ct. 1897, 1904 (2018).\n\n Second, the error must be plain. Id. Third, the error must affect the defendant’s\n\n “substantial rights,” meaning that there must be “a reasonable probability that, but for the\n\n error, the outcome of the proceeding would have been different.” Id. at 1904–05 (quoting\n\n Molina-Martinez v. United States, 578 U.S. 189, 194 (2016)). If a defendant meets these\n\n requirements, then an appellate court can grant relief if the error had a serious effect on the\n\n “fairness, integrity, or public reputation of judicial proceedings.” Id. at 1905 (quoting\n\n Molina-Martinez, 578 U.S. at 194).\n\n 27\n\fUSCA4 Appeal: 19-4562 Doc: 124 Filed: 08/18/2022 Pg: 28 of 54\n\n\n\n\n Here, the lack of jury instruction is an error under Rehaif, and that error was plain,\n\n so the first two prongs of the plain-error test are satisfied. See Greer, 141 S. Ct. at 2097.\n\n So, we only concern ourselves with the third prong of plain error relief, whether the error\n\n affects the defendant’s substantial rights.\n\n Between the Appellants’ opening brief deadline and the government’s response\n\n brief deadline, the Supreme Court issued Greer, which held that, under the substantial\n\n rights prong, “a Rehaif error is not a basis for plain-error relief unless the defendant first\n\n makes a sufficient argument or representation on appeal that he would have presented\n\n evidence at trial that he did not in fact know he was a felon.” 141 S. Ct. at 2100. It\n\n instructed courts to “determine whether the defendant has carried the burden of showing a\n\n ‘reasonable probability’ that the outcome of the district court proceeding would have been\n\n different.” Id. A defendant who makes this showing would survive the plain error review.\n\n Id. at 2096.\n\n\n\n A.\n\n We turn first to Pulley’s conviction. As discussed, Pulley was convicted under\n\n § 922(g)(1), which makes it unlawful to possess a weapon for “any person” “who has been\n\n convicted in any court of, a crime punishable by imprisonment for a term exceeding one\n\n year.” 18 U.S.C. § 922(g)(1). The problem, Pulley explains, is that this code section is\n\n colloquially—and ubiquitously—known as a “felon-in-possession” prohibition. See, e.g.,\n\n Greer, 141 S. Ct. at 2095; United States v. Ball, 18 F.4th 445, 456 (4th Cir. 2021); United\n\n States v. Gilbert, 430 F.3d 215, 218 (4th Cir. 2005); see also United States v. Heyward,\n\n 28\n\fUSCA4 Appeal: 19-4562 Doc: 124 Filed: 08/18/2022 Pg: 29 of 54\n\n\n\n\n No. 18-4819, 2022 WL 3051258, at *4 (4th Cir., Aug. 3, 2022) (noting, however, that\n\n “[t]he word ‘felon’ . . . lacks some precision”). Even Pulley’s indictment itself calls the\n\n § 922(g)(1) count “Felon in Possession of a Firearm.” See J.A. 757. But all of Pulley’s\n\n prior crimes were state-law misdemeanors, as both parties agree and Pulley’s presentence\n\n report (PSR) confirms. 3 So, Pulley argues, even though he technically falls within the\n\n statutory prohibition, he did not know his relevant status as required by Rehaif and Greer\n\n at the time he committed the offense.\n\n However, Pulley’s misdemeanors caused him to be treated as a felon for the\n\n purposes of 18 U.S.C. § 922(g)(1). Indeed, the story is even more complicated than that,\n\n because to fully understand § 922(g)(1)’s restrictions, one must consult an entirely different\n\n section of the statute, which defines a “crime punishable by imprisonment for a term\n\n exceeding one year,” § 921(a)(20)(B). That section explains that, when applied to\n\n misdemeanors, a “crime punishable by imprisonment for a term exceeding one year” means\n\n “any State offense classified by the laws of the State as a misdemeanor” and punishable by\n\n more than two years of imprisonment. See 18 U.S.C. § 921(a)(20)(B) (specifying that “the\n\n term ‘crime punishable by imprisonment for a term exceeding one year’ does not include”\n\n state misdemeanors “punishable by a term of imprisonment of two years or less” (emphasis\n\n added)). Section § 921(a)(20)(B) also explains that “[w]hat constitutes a conviction of\n\n\n\n\n 3\n The government initially claimed that Pulley has felony convictions. See\n Government’s Response Br. 48. That contention is incorrect. The government conceded\n at oral argument that Pulley’s prior convictions were all state-law misdemeanors.\n\n 29\n\fUSCA4 Appeal: 19-4562 Doc: 124 Filed: 08/18/2022 Pg: 30 of 54\n\n\n\n\n such a crime shall be determined in accordance with the law of the jurisdiction in which\n\n the proceedings were held.” Id.\n\n Pulley acknowledges that his misdemeanor convictions fall into this category and\n\n that § 922(g)(1) still bars him from possessing a firearm. But, he claims, for the knowledge\n\n of status element, he did not know that he fell within the relevant status for § 922(g)(1)\n\n because he was a state-level misdemeanant, not a felon. We agree that this distinction\n\n matters for a law referred to time and time again as “felon-in-possession.” See, e.g., Greer,\n\n 139 S. Ct. at 2095; Ball, 18 F.4th at 456; Gilbert, 430 F.3d at 218.\n\n Pulley’s PSR shows that he was convicted of several misdemeanors under state law\n\n before the instant case. He received only one sentence of over two years: for his\n\n misdemeanor conviction in 2013 for unauthorized removal of property under Md. Code\n\n Ann., Crim. Law § 7-203, Pulley was sentenced to three years’ imprisonment, but all but\n\n three months of that sentence were suspended. The longest term of custody Pulley received\n\n was 17 months’ imprisonment for misdemeanor drug possession under Md. Code Ann.,\n\n Crim. Law § 5-601(a)(1).\n\n While recognizing that Pulley’s misdemeanors do place him into the category of\n\n people prohibited from possessing firearms, there is a lack of record evidence that Pulley\n\n knew that he was convicted of a state crime for which the punishment was for more than\n\n two years, especially when his crimes were labeled as misdemeanors. Therefore, we agree\n\n with Pulley that the Rehaif error affected his substantial rights, and his challenge thus\n\n survives plain-error review. After all, Rehaif instructed that for a § 922(g) conviction, the\n\n government must prove beyond a reasonable doubt that the defendant “knew he belonged\n\n 30\n\fUSCA4 Appeal: 19-4562 Doc: 124 Filed: 08/18/2022 Pg: 31 of 54\n\n\n\n\n to the relevant category of persons barred from possessing a firearm.” 139 S. Ct. at 2200\n\n (emphasis added). In a case like this one, where the defendant’s qualifying predicate\n\n conviction is a state-law misdemeanor, that means the government must “prove that [the\n\n defendant] knew, when he possessed the firearm, that his prior state conviction was\n\n punishable by more than two years of imprisonment.” Heyward, 2022 WL 3051258, at *4.\n\n True, Greer explains that it is an “uphill climb” to show a reasonable probability\n\n that the outcome would have been different in a § 922(g)(1) prosecution for people who\n\n are in fact felons. 141 S. Ct. at 2097. But Greer said the reason for this uphill climb was\n\n “simple”: “If a person is a felon, he ordinarily knows he is a felon.” Id. Indeed, “[f]elony\n\n status is simply not the kind of thing that one forgets.” Id. (quoting United States v. Gary,\n\n 963 F.3d 420, 423 (4th Cir. 2020) (Wilkinson, J., concurring in denial of reh’g en banc)).\n\n Greer recognized that this “simple truth is not lost upon juries”; “absent a reason to\n\n conclude otherwise, a jury will usually find that a defendant knew he was a felon based on\n\n the fact that he was a felon.” Id.\n\n This “uphill climb” for people who are in fact felons makes sense in the context of\n\n § 922(g)(1). As explained, courts, counsel, and citizens alike refer to the crime as “felon-\n\n in-possession.” Greer itself repeatedly refers to § 922(g)(1) as felon-in-possession and\n\n discusses how Rehaif impacts “felon-in-possession cases.” See, e.g., id. at 2095 (“In felon-\n\n in-possession cases after Rehaif, the Government must prove not only that the defendant\n\n knew he possessed a firearm, but also that he knew he was a felon when he possessed the\n\n firearm”). But that logic does not translate well to state-law misdemeanants. See id. at\n\n 2100 (“In felon-in-possession cases, a Rehaif error is not a basis for plain-error relief unless\n\n 31\n\fUSCA4 Appeal: 19-4562 Doc: 124 Filed: 08/18/2022 Pg: 32 of 54\n\n\n\n\n the defendant first makes a sufficient argument or representation that on appeal he would\n\n have presented evidence at trial that he did not in fact know he was a felon” (emphasis\n\n added)); see also Heyward, 2022 WL 3051258, at *4 (explaining, however, that while “[i]t\n\n is common to describe 18 U.S.C. § 992(g)(1) as the ‘felon-in-possession’ statute” and\n\n while, “in Greer, the Supreme Court repeatedly shorthanded the [relevant] knowledge\n\n requirement as whether the defendant ‘knew he was a felon,’ . . . [t]he word ‘felon’ . . .\n\n lacks some precision” because “[w]hat the statutory text [actually] forbids is possessing a\n\n firearm after having been convicted of ‘a crime punishable by imprisonment for a term\n\n exceeding one year,” as that phrase is defined in 18 U.S.C. § 921(a)(20)).\n\n So, we believe that Pulley’s is a different case from Greer. As someone not\n\n convicted of a crime labeled as a felony, Pulley might not face the same uphill battle to\n\n show that the Rehaif error affected his substantial rights. While a person may ordinarily\n\n know he is a felon, we do not believe we can infer that a person convicted only of\n\n misdemeanors “ordinarily knows” their status for the purposes of plain error review\n\n following a Rehaif instruction error. The Greer concurrence supports our reasoning,\n\n recognizing that there are many reasons a defendant may not know his status, including\n\n “[f]or example, a defendant may not understand that . . . a misdemeanor under state law\n\n can be a felony for purposes of federal law.” 141 S. Ct. at 2103 (Sotomayor, J., concurring\n\n in part and dissenting in part). While Greer opens the door for courts to presume a person\n\n knows they are a felon, we do not believe we can apply this simple presumption to Pulley,\n\n a state-law misdemeanant.\n\n\n\n 32\n\fUSCA4 Appeal: 19-4562 Doc: 124 Filed: 08/18/2022 Pg: 33 of 54\n\n\n\n\n In the end, to obtain plain-error relief, Pulley needs to show only that there is a\n\n reasonable probability that, without the Rehaif error, the outcome would have been\n\n different. We believe Pulley has shown just that. The record is devoid of any evidence\n\n that Pulley knew that he was convicted of a state crime for which the punishment was for\n\n more than two years. Unlike the defendants in Greer who had been convicted of multiple\n\n felonies, Pulley was only convicted of state crimes labeled as misdemeanors. He never\n\n served more than two years in prison. See Reply Br. at 24. And while he was sentenced\n\n to a term of imprisonment exceeding two years, the judge simultaneously suspended the\n\n vast majority of that sentence, raising a question as to whether he actually knew he had\n\n been convicted of a crime punishable by more than two years when he possessed a firearm\n\n several years later. Moreover, he only stipulated at trial that he had been convicted of a\n\n crime punishable by imprisonment for more than one year, not two. See J.A. 3034. “If a\n\n defendant demonstrates why a jury in an error-free trial might have reasonable doubts as\n\n to the knowledge-of-felon-status element, he has shown a reasonable probability of a\n\n different outcome.” Greer, 141 S. Ct. at 2103 (Sotomayor, J., concurring in part and\n\n dissenting in part). Pulley has demonstrated such a probability. If the circumstances here\n\n do not affect Pulley’s substantial rights, we find it difficult to imagine a case that would\n\n satisfy plain-error review. And there must be some cases where a Rehaif error warrants\n\n reversal, lest we risk closing the door Greer deliberately left open.\n\n We find there is a reasonable probability that a jury would have “reasonable doubts\n\n as to the knowledge-of-felon-status element,” Greer, 141 S. Ct. at 2103 (Sotomayor, J.,\n\n concurring in part and dissenting in part), which requires that Pulley knew that his\n\n 33\n\fUSCA4 Appeal: 19-4562 Doc: 124 Filed: 08/18/2022 Pg: 34 of 54\n\n\n\n\n misdemeanors placed him into “the relevant category of persons barred from possessing a\n\n firearm,” Rehaif, 139 S. Ct. at 2200. Thus, the district court’s Rehaif error affected Pulley’s\n\n substantial rights.\n\n Having found that the district court erred in its jury instructions, the error was plain,\n\n and the error affected Pulley’s substantial rights, we may grant relief if the error had a\n\n serious effect on the “fairness, integrity or public reputation of judicial proceedings.”\n\n Rosales-Mireles, 138 S. Ct. at 1905. This final plain-error requirement “is meant to be\n\n applied on a case-specific and fact-intensive basis.” Puckett v. United States, 556 U.S.\n\n 129, 142 (2009). Based on these facts, we find that the Rehaif error had just such a serious\n\n effect on Pulley’s § 922(g) conviction. Pulley has “demonstrate[d] why a jury in an error-\n\n free trial might have reasonable doubts as to the knowledge-of-felon-status element,”\n\n Greer, 141 S. Ct. at 2103 (Sotomayor, J., concurring in part and dissenting in part), thus\n\n calling into question whether a jury would have convicted Pulley had they been required\n\n to find beyond a reasonable doubt that he knew at the time of his firearm possession that\n\n he had been convicted of a crime punishable by more than two years. And we believe that\n\n “this case presents circumstances in which a miscarriage of justice would . . . result,” if we\n\n affirmed Pulley’s conviction. United States v. Mitchell, 1 F.3d 235, 244 (4th Cir. 1993)\n\n (cleaned up). Therefore, we use our discretion to grant relief.\n\n\n\n B.\n\n We turn next to Wilson’s claim that his § 922(g) conviction should be vacated under\n\n Rehaif. In his reply, which was his first opportunity to discuss Greer, Wilson offers no\n\n 34\n\fUSCA4 Appeal: 19-4562 Doc: 124 Filed: 08/18/2022 Pg: 35 of 54\n\n\n\n\n argument on his felon-in-possession conviction. Appellants’ Reply Br. 17. Unlike Pulley,\n\n Wilson had been convicted of robbery with a dangerous weapon, which is a felony under\n\n Maryland law. Thus, the presumption that he would ordinarily know he was a felon\n\n applies. Greer, 141 S. Ct. at 2097. Because Wilson offers no argument to rebut that\n\n presumption—he does not discuss at all what evidence he would have presented to the jury\n\n that he did not know he was a felon—we affirm his conviction.\n\n\n\n VII.\n\n Barronette and Pulley contend that the district court abused its discretion by denying\n\n their motion for a mistrial because a government witness, Anthony Boyd, stated during\n\n cross-examination that he saw a news report that Barronette was the “number one gun\n\n puller in Baltimore.” J.A. 2403.29. Barronette and Pulley moved for a mistrial after that\n\n statement. The district court denied the motion, noting that it thought “the comment was\n\n invited.” J.A. 2403.30. But it nevertheless instructed the jury to ignore the comment. We\n\n affirm the district court.\n\n “[D]enial of a defendant’s motion for a mistrial is within the sound discretion of the\n\n district court.” United States v. Dorloius, 107 F.3d 248, 257 (4th Cir. 1997) (citations\n\n omitted). “[O]n a courtroom issue such as this, the district court is best positioned to assess\n\n whether a mistrial is warranted or whether other means exist to address the issue\n\n adequately.” United States v. Taylor, 942 F.3d 205, 221 (4th Cir. 2019). We have\n\n explained that “[b]ecause a mistrial is so drastic a step, we will disturb the district court’s\n\n refusal to grant one only in extraordinary circumstances, such as when evidence is admitted\n\n 35\n\fUSCA4 Appeal: 19-4562 Doc: 124 Filed: 08/18/2022 Pg: 36 of 54\n\n\n\n\n that would prejudice the defendant, and there is an ‘overwhelming probability’ that the jury\n\n would be unable to heed a curative instruction to ignore it.” Id. at 221–22 (quoting Greer\n\n v. Miller, 483 U.S. 756, 766 n.8 (1987)).\n\n Barronette and Pulley have not established how this witness statement is an\n\n “extraordinary circumstance” that prejudiced them. First, the statement only concerned\n\n Barronette, not Pulley. Second, while the statement was related to Barronette’s guilt, we\n\n find that Barronette was not prejudiced. The district court gave a curative instruction, and\n\n we do not find there is an overwhelming probability that the jury was unable to heed it. To\n\n the contrary, the jury was able to make individual guilt determinations for Barronette here.\n\n See J.A. 3393 (finding Barronette did not conspire to murder David Moore). In Taylor, we\n\n emphasized that “there is no prejudice if we determine that the jury, despite the incident in\n\n question, was able to ‘make individual guilt determinations by following the court’s\n\n cautionary instructions.’” 942 F.3d at 221 (quoting United States v. Wallace, 515 F.3d\n\n 327, 330 (4th Cir. 2008)). Further, like in Taylor, Boyd’s statement “was not instigated by\n\n the government but occurred during cross-examination by [Barronette’s] counsel.” Id. at\n\n 222.\n\n Barronette and Pulley have not shown that the district court abused its discretion,\n\n and thus, we affirm.\n\n\n\n VIII.\n\n Appellants argue the jury lacked sufficient evidence to find that (1) the alleged\n\n RICO conspiracy substantially affected interstate commerce; (2) Wilson possessed a\n\n 36\n\fUSCA4 Appeal: 19-4562 Doc: 124 Filed: 08/18/2022 Pg: 37 of 54\n\n\n\n\n firearm in furtherance of a drug conspiracy; (3) the drug conspiracy involved one kilogram\n\n or more of heroin; (4) Sivells and Floyd conspired to murder Antonio Addison; and (5)\n\n Broughton conspired to murder unknown individuals. We disagree and find that there was\n\n sufficient evidence for the jury’s verdicts.\n\n We review the sufficiency of the evidence to determine whether “any rational trier\n\n of fact could have found” that all elements of the charged offenses were proven beyond a\n\n reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). Our review of jury\n\n verdicts is highly deferential. “[A] jury verdict ‘must be sustained if there is substantial\n\n evidence, taking the view most favorable to the Government, to support it.’” Burgos, 94\n\n F.3d at 862 (quoting Glasser v. United States, 315 U.S. 60, 80 (1942)). And a court “may\n\n not overturn a substantially supported verdict merely because it finds the verdict\n\n unpalatable or determines that another, reasonable verdict would be preferable.” Id.\n\n\n\n A.\n\n Appellants assert that all convictions as to Count One, the RICO conspiracy, should\n\n be reversed because the government failed to prove that the alleged racketeering enterprise\n\n substantially affected interstate commerce. See United States v. Mathis, 932 F.3d 242, 258\n\n (4th Cir. 2019) (explaining the government must show “that an enterprise affecting\n\n interstate commerce existed” to sustain a RICO conviction). We disagree.\n\n Appellants contend that any RICO conspiracy was confined to a neighborhood in\n\n Baltimore. But the government must only prove a “de minimis” effect on interstate\n\n commerce. United States v. Zelaya, 908 F.3d 920, 926 (4th Cir. 2018). For example, the\n\n 37\n\fUSCA4 Appeal: 19-4562 Doc: 124 Filed: 08/18/2022 Pg: 38 of 54\n\n\n\n\n government can satisfy this element by introducing evidence that “the gang regularly\n\n communicated by phone and committed multiple robberies using guns that traveled in\n\n interstate commerce.” United States v. Cornell, 780 F.3d 616, 622–23 (4th Cir. 2015)\n\n (citation omitted). It can also establish this element by showing that the drug products sold\n\n by Appellants originated outside the United States. United States v. Gray, 137 F.3d 765,\n\n 773 (4th Cir. 1998) (en banc).\n\n Appellants argue that the de minimis standard does not apply to their activity\n\n because it was purely intrastate activity. They cite United States v. Robertson, which stated\n\n that “[t]he ‘affecting commerce’ test was developed in our jurisprudence to define the\n\n extent of Congress’ power over purely intrastate commercial activities that nonetheless\n\n have substantial interstate effects.” 514 U.S. 669, 671 (1995) (citing Wickard v. Filburn,\n\n 317 U.S. 111 (1942)).\n\n But the de minimis standard does in fact apply. In Gonzales v. Raich, the Supreme\n\n Court made clear that “when ‘a general regulatory statute bears a substantial relation to\n\n commerce, the de minimis character of individual instances arising under that statute is of\n\n no consequence.’” 545 U.S. 1, 17 (2005) (quoting United States v. Lopez, 514 U.S. 549,\n\n 558 (1995)). Thus, we have repeatedly held that the de minimis standard applies to RICO\n\n conspiracies. See United States v. Gutierrez, 963 F.3d 320, 339 n.7 (4th Cir. 2020);\n\n Cornell, 780 F.3d at 622.\n\n Here, there is sufficient evidence that Appellants’ conspiracy affected interstate\n\n commerce. The government introduced evidence that Appellants used guns manufactured\n\n outside of Maryland. J.A. 2386, 2388. There was testimony that the drugs Appellants sold\n\n 38\n\fUSCA4 Appeal: 19-4562 Doc: 124 Filed: 08/18/2022 Pg: 39 of 54\n\n\n\n\n were produced outside the United States and shipped into the country. J.A. 2531.1–.3.\n\n Finally, Appellants used phones, which are “channels of interstate commerce,” see Gibbs\n\n v. Babbitt, 214 F.3d 484, 490–91 (4th Cir. 2000), to coordinate drugs sales and TTG’s\n\n business. Construing all this evidence in the light most favorable to the government, we\n\n find there is sufficient evidence that the conspiracy affected interstate commerce.\n\n\n\n B.\n\n Wilson challenges the sufficiency of the evidence for his § 924(c) conviction for\n\n using a firearm in furtherance of drug trafficking. To support a conviction under § 924(c),\n\n the government must establish: “(1) the defendant used or carried a firearm, and (2) the\n\n defendant did so during and in relation to a drug trafficking offense or crime of violence.”\n\n United States v. Mitchell, 104 F.3d 649, 652 (4th Cir. 1997). Wilson contends that there\n\n was insufficient evidence to link the gun to drug trafficking. We disagree.\n\n Law enforcement recovered the gun after executing a search warrant at Wilson’s\n\n girlfriend’s residence. Wilson admitted to law enforcement that he knowingly possessed\n\n the firearm. The gun was loaded and found in the same room as seventy-five vials of\n\n suspected cocaine and in close proximity to about $12,000 in cash. Although Wilson\n\n explained that he obtained the gun to defend his home, we have found that evidence of a\n\n loaded gun in close proximity to drug paraphernalia is sufficient evidence for a § 924(c)\n\n conviction. United States v. Howard, 773 F.3d 519, 527 (4th Cir. 2014). In line with this\n\n precedent, we find that there is sufficient evidence for Wilson’s conviction.\n\n\n\n 39\n\fUSCA4 Appeal: 19-4562 Doc: 124 Filed: 08/18/2022 Pg: 40 of 54\n\n\n\n\n C.\n\n Appellants next assert that the jury lacked sufficient evidence to conclude that the\n\n narcotics conspiracy involved one kilogram or more of heroin distribution foreseeable to\n\n each Appellant. We find there is sufficient evidence.\n\n In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), the government’s\n\n indictment must allege and the jury must find beyond a reasonable doubt any threshold\n\n drug weights that trigger enhanced mandatory minimum penalties in 21 U.S.C.\n\n § 841(b)(1)(A). United States v. Promise, 255 F.3d 150, 152 (4th Cir. 2001) (en banc).\n\n Additionally, for the drug weight to trigger enhanced mandatory minimum sentences for\n\n conspiracy offenses, “the jury must determine that the threshold drug quantity was\n\n reasonably foreseeable to the defendant” participating in the conspiracy. United States v.\n\n Jeffers, 570 F.3d 557, 569 (4th Cir. 2009). But to arrive at a drug-weight finding, the jury\n\n may rely on circumstantial evidence. See United States v. Cole, 69 F.3d 534, at *1 (4th\n\n Cir. 1995) (“The district court had clear authority to approximate the quantity of a drug in\n\n its determination of relevant conduct and to rely upon circumstantial evidence and\n\n statistical methods in making that determination.”) (citing United States v. Uwaeme, 975\n\n F.2d 1016, 1021 (4th Cir. 1992)).\n\n Here, the indictment alleged a conspiracy that spanned seven years. At trial, the\n\n government put on evidence of controlled buys that established 180 grams of drug weight.\n\n There was testimony from drug customers about their usual purchases that established\n\n another, at least, 450 grams. Evidence about the amount of money Barronette, Sivells, and\n\n Floyd made establishes that their drug weights exceed one kilogram. There was also\n\n 40\n\fUSCA4 Appeal: 19-4562 Doc: 124 Filed: 08/18/2022 Pg: 41 of 54\n\n\n\n\n evidence from wiretap calls in which customers ordered various amounts of heroin. After\n\n a thorough review of the record, we are confident that the drug conspiracy involved more\n\n than one kilogram of heroin, and we affirm the jury’s verdict.\n\n\n\n D.\n\n Sivells and Floyd contend that the government failed to prove beyond a reasonable\n\n doubt that they conspired to murder Antonio Addison, one of the predicate offenses in the\n\n RICO conspiracy charge in Count One. The jury issued a special verdict finding that\n\n Sivells and Floyd conspired to murder Addison. We find there is sufficient evidence for\n\n this special verdict. Thus, we affirm.\n\n The government established without question that Antonio Addison was murdered\n\n on May 25, 2016. His murder was part of a conflict between TTG members and Cedric\n\n Catchings, Andrew Johnson, Amos Johnson, Brandon Bazemore, and Addison. The\n\n conflict began because the TTG members believed Andrew Johnson had cooperated with\n\n law enforcement.\n\n The government introduced evidence from wiretapped phone calls that showed that\n\n TTG members were surveilling the men. In April 2016, Floyd reported Addison’s\n\n whereabouts to Barronette several times. In early May 2016, Floyd told Sivells that he was\n\n watching Catchings walk down the street, and they discussed how Catchings was working\n\n with Addison and others that they believed were cooperating with law enforcement. Then,\n\n on May 25, 2016, an individual fired shots into a car occupied by Bazemore and Johnson.\n\n\n\n 41\n\fUSCA4 Appeal: 19-4562 Doc: 124 Filed: 08/18/2022 Pg: 42 of 54\n\n\n\n\n After the shooting, Sivells, in a wiretapped call, asked the shooter whether he had “hit”\n\n Bazemore. J.A. 3761.\n\n Then, also on May 25, 2016, Sivells and Barronette observed Addison and Johnson\n\n together in a vehicle. That same day, Addison was murdered. Tyree Paige, another person\n\n who sold drugs in the neighborhood, testified that he heard Sivells say that Addison was\n\n “supporting a rat, so [he] had to go, too.” J.A. 1689. Paige then testified that he saw Sivells\n\n and Barronette driving on Calhoun Street, with guns, towards where Addison was shot. He\n\n then heard gunshots and saw Sivells and Barronette return right after to Calhoun Street.\n\n Additionally, Sivells’s cell phone records confirm that he was near the site of Addison’s\n\n murder during the time period of his murder.\n\n Based on this evidence, we find that there is sufficient evidence to sustain the jury’s\n\n verdict that Sivells and Floyd conspired to murder Addison. Sivells contends that “[o]nly\n\n one witness linked Sivells to the homicide: Tyree Paige, whose testimony tested and then\n\n busted through the limits of witness credibility.” Opening Br. 64. While we recognize\n\n there were inconsistencies in Paige’s testimony, “a reviewing court is not entitled to assess\n\n the credibility of witnesses.” United States v. Brooks, 524 F.3d 549, 563 (4th Cir. 2008).\n\n Rather, we “must assume that the jury resolved all contradictions . . . in favor of the\n\n Government.” United States v. United Med. & Surgical Supply Corp., 989 F.2d 1390, 1402\n\n (4th Cir. 1993) (citation omitted). And we have found the uncorroborated testimony of one\n\n witness to be sufficient evidence to sustain a conviction. See United States v. Wilson, 115\n\n F.3d 1185, 1190 (4th Cir. 1997); United States v. Baker, 985 F.2d 1248, 1255 (4th Cir.\n\n 1993); United States v. Arrington, 719 F.2d 701, 705 (4th Cir. 1983). But here, the\n\n 42\n\fUSCA4 Appeal: 19-4562 Doc: 124 Filed: 08/18/2022 Pg: 43 of 54\n\n\n\n\n testimony was indeed corroborated, as the government provided GPS data and wiretaps.\n\n Evidence showed that both men participated in the conspiracy to murder Addison. Under\n\n the highly deferential standard of review we must employ, we find that there was sufficient\n\n evidence to sustain the special verdict against Sivells and Floyd.\n\n\n\n E.\n\n Broughton also contends that the jury’s special verdict finding that he conspired to\n\n murder unknown individuals—one of the predicate offenses in the RICO conspiracy\n\n charged in Count One—lacks sufficient evidence. We disagree.\n\n The government introduced evidence of a series of wiretap calls between\n\n Broughton, Sivells, and Barronette, which occurred after another TTG member had the\n\n drugs he was carrying stolen. Broughton was on the street looking for the individuals who\n\n stole the drugs, while Barronette and Sivells were together in one car. Broughton made\n\n several calls to Barronette calling out the individuals’ location. Broughton said, “Stay wit\n\n em [sic], come on.” J.A. 3041–46. Sivells commented that Broughton was supposed to\n\n kill the individuals as they walked past. J.A. 3043 (“Why f**k Marty let ‘em go past him\n\n though. He froze? That’s supposed to be his time to shine.”); see also J.A. 3045 (regarding\n\n what the individuals stole, “They took what? He better go shoot that motha f**ka up.”)\n\n There was also evidence that Barronette wanted to grab a firearm. J.A. 3042 (“About to\n\n grab that other jimmy mack.”).\n\n Ultimately, Barronette and Broughton did not shoot the individuals because law\n\n enforcement moved into the area to disrupt the potential violence. Broughton discarded\n\n 43\n\fUSCA4 Appeal: 19-4562 Doc: 124 Filed: 08/18/2022 Pg: 44 of 54\n\n\n\n\n two firearms during the police chase. In later a wiretapped call, Broughton said “I was for,\n\n I was for [unintelligible], I was gonna pow! Hit him right in the head.” J.A. 3044.\n\n These facts, taken in the light most favorable to the government, are sufficient to\n\n sustain the jury’s verdict under our highly deferential standard. We affirm.\n\n\n\n IX.\n\n Harrison challenges the district court’s admission of statements that murder victim\n\n Markee Brown made prior to his death to police and a grand jury, 4 on April 13, 2016, in\n\n which Brown stated that Harrison robbed him and Dominique Harris and then Harrison\n\n murdered Harris. The jury in this case issued a special verdict finding that Harrison\n\n conspired to commit the premeditated murder of Harris. Harrison argues that the admission\n\n of this testimony violated his rights under the Confrontation Clause since Brown himself\n\n did not testify because he was murdered before the trial at issue here. We affirm the district\n\n court’s admission of the statements.\n\n “This Court reviews evidentiary rulings implicating constitutional claims de novo.”\n\n United States v. Williams, 632 F.3d 129, 132 (4th Cir. 2011).\n\n The second superseding indictment alleged that on December 28, 2015, Harrison\n\n robbed Harris and Brown of drugs and money. Shortly thereafter, Harrison murdered\n\n Harris. Harrison was later charged in state court with robbery and Brown identified\n\n\n\n 4\n This grand jury was for separate state court charges against Harrison that occurred\n before Appellants were indicted in this case.\n\n 44\n\fUSCA4 Appeal: 19-4562 Doc: 124 Filed: 08/18/2022 Pg: 45 of 54\n\n\n\n\n Harrison as the perpetrator to the police and a grand jury. A few days after Brown testified,\n\n TTG members murdered Brown.\n\n At trial, over Harrison’s objection, the district court found that Brown’s testimony\n\n was admissible under the forfeiture-by-wrongdoing exception to the Confrontation Clause\n\n and to the hearsay rule because it found by a preponderance of the evidence that TTG\n\n members murdered Brown to prevent him from testifying and Harrison acquiesced in that\n\n murder. See Fed. R. Evid. 804(b)(6); United States v. Jackson, 706 F.3d 264, 267 (4th Cir.\n\n 2013) (recognizing the forfeiture-by-wrongdoing exception to the Confrontation Clause).\n\n Harrison asserts that there is insufficient evidence that he acquiesced in Brown’s\n\n murder and that Brown’s statements should not have been admitted under the forfeiture-\n\n by-wrongdoing exception. But we need not decide whether there was enough evidence to\n\n find that Harrison acquiesced in Harris’s murder because any error was harmless.\n\n “Evidentiary rulings are ‘subject to harmless error review’” and “a Confrontation Clause\n\n violation may be found harmless on appeal.” United States v. Banks, 482 F.3d 733, 741\n\n (4th Cir. 2007) (quoting United States v. Brooks, 111 F.3d 365, 371 (4th Cir. 1997)).\n\n “Erroneously admitted evidence is harmless if a reviewing court is able to determine that\n\n ‘the constitutional error was harmless beyond a reasonable doubt.’” United States v.\n\n Williams, 632 F.3d 129, 132 (4th Cir. 2011) (quoting United States v. Abu Ali, 528 F.3d\n\n 210, 256 (4th Cir. 2008)).\n\n While Brown’s testimony is the main evidence connecting Harrison to Harris’s\n\n murder, the special verdict affects neither his Count One conviction nor his Guidelines\n\n\n\n 45\n\fUSCA4 Appeal: 19-4562 Doc: 124 Filed: 08/18/2022 Pg: 46 of 54\n\n\n\n\n range. There are sufficient predicate acts to sustain the Count One conviction, even without\n\n this special verdict.\n\n “[T]o establish a RICO conspiracy the government must prove ‘that each defendant\n\n knowingly and willfully agreed that he or some other member of the conspiracy would\n\n commit at least two racketeering acts.’” Cornell, 780 F.3d at 623 (quoting United States\n\n v. Mouzone, 687 F.3d 207, 218 (4th Cir. 2012)). “Racketeering acts, often referred to as\n\n predicate acts, include any act or threat involving murder, kidnapping, gambling, arson,\n\n robbery, bribery, extortion, dealing in obscene matter, or dealing in a controlled substance\n\n chargeable under state law and punishable by imprisonment for more than one year.” Id.\n\n (citing 18 U.S.C. § 1961(1)). A defendant may be guilty of a RICO conspiracy “even if\n\n [he] does not agree to commit or facilitate each and every part of the substantive offense.”\n\n Salinas v. United States, 522 U.S. 52, 63 (1997). The government needs to prove only that\n\n co-conspirators “agree[d] to pursue the same criminal objective,” but they “may divide up\n\n the work.” Id. In other words, RICO conspiracy does not “requir[e] the Government to\n\n prove each conspirator agreed that he would be the one to commit two predicate acts.” Id.\n\n at 64. And “[r]eversal of . . . a conviction on a substantive RICO count is not required\n\n simply because some predicate acts are factually insufficient, as long as there remain at\n\n least two adequately proven acts.” United States v. Browne, 505 F.3d 1229, 1261 (11th\n\n Cir. 2007).\n\n In this case, the jury found more than two predicate racketeering acts, as it convicted\n\n each defendant on the drug-trafficking charges in Count 3 and issued several special\n\n murder verdicts which were not appealed. These acts are attributable to each Appellant as\n\n 46\n\fUSCA4 Appeal: 19-4562 Doc: 124 Filed: 08/18/2022 Pg: 47 of 54\n\n\n\n\n members of the RICO enterprise. Therefore, there were sufficient predicate racketeering\n\n offenses to convict Harrison of RICO conspiracy in Count One. The jury also found that\n\n Harrison conspired to commit premeditated murder of two other people and thus the\n\n Guidelines would advise a life sentence for Harrison even without the special verdict for\n\n Harris’s murder. See U.S.S.G. § 2E1.1(a)(2) (instructing to apply “the offense level\n\n applicable to the underlying racketeering activity” as long as it exceeds 19); U.S.S.G. §\n\n 2A1.1 (base offense level for first degree murder is 43). Thus, even if the district court\n\n erred in allowing Brown’s testimony, that error is harmless as Harrison’s convictions and\n\n the Guidelines range would have been the same. We therefore affirm.\n\n\n\n X.\n\n Sivells, Broughton, and Floyd finally assert that their sentences are procedurally and\n\n substantively unreasonable.\n\n We “review all sentences—whether inside, just outside, or significantly outside the\n\n Guidelines range—under a deferential abuse-of-discretion standard.” Gall v. United\n\n States, 552 U.S. 38, 41 (2007). First, this Court “ensure[s] that the district court committed\n\n no significant procedural error, such as failing to calculate (or improperly calculating) the\n\n Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a)\n\n factors, selecting a sentence based on clearly erroneous facts, or failing to adequately\n\n explain the chosen sentence—including an explanation for any deviation from the\n\n Guidelines range.” United States v. Fowler, 948 F.3d 663, 668 (4th Cir. 2020) (quoting\n\n Gall, 552 U.S. at 51). “If the Court ‘finds no significant procedural error, it then considers\n\n 47\n\fUSCA4 Appeal: 19-4562 Doc: 124 Filed: 08/18/2022 Pg: 48 of 54\n\n\n\n\n the substantive reasonableness of the sentence imposed.’” United States v. Arbaugh, 951\n\n F.3d 167, 172 (4th Cir. 2020) (cleaned up) (quoting United States v. Diosdado-Star, 630\n\n F.3d 359, 363 (4th Cir. 2011)). The Court’s review for substantive reasonableness “take[s]\n\n into account the totality of the circumstances, including the extent of any variance from the\n\n Guidelines range.” Gall, 552 U.S. at 51. “A within-Guidelines range sentence is\n\n presumptively reasonable.” United States v. White, 850 F.3d 667, 674 (4th Cir. 2017)\n\n (citation omitted).\n\n\n\n A.\n\n Sivells was sentenced to life imprisonment. He contends the district court\n\n procedurally erred by failing to adequately respond to his mitigation evidence and that his\n\n sentence was substantively unreasonable. We disagree and affirm his sentence.\n\n A district court commits a procedural error if it entirely fails to consider a\n\n defendant’s “non-frivolous arguments for a lower sentence.” United States v. Webb, 965\n\n F.3d 262, 268 (4th Cir. 2020). It must, at a minimum, “put on the record its consideration\n\n of [a defendant’s] non-frivolous arguments for a lower sentence or explain its rejection of\n\n those arguments.” Id. at 272.\n\n Sivells presented several factors to the court to support his request for a 30-year\n\n sentence. He pointed to his difficult childhood, his abandonment by his parents, and his\n\n low IQ which placed him in the lowest one percent of intellectual functioning. The district\n\n court agreed that “Sivells had a very difficult and destructive childhood” and “that he has\n\n the neuropsychological issues that have been documented.” J.A. 3520. But the court then\n\n 48\n\fUSCA4 Appeal: 19-4562 Doc: 124 Filed: 08/18/2022 Pg: 49 of 54\n\n\n\n\n said that “many other people go through the kind of background or history and do not\n\n involve themselves in the violence.” J.A. 3521. It concluded, “the tragedy that we can all\n\n sympathize with about his childhood . . . is, to me, outweighed by the need to recognize\n\n this most serious of crimes, combination of crimes that he has committed, and the need to\n\n protect the public.” J.A. 3521.\n\n We find that the district court adequately addressed Sivells’s mitigation evidence\n\n and thus find no procedural error. See United States v. Johnson, 587 F.3d 625, 639 (4th\n\n Cir. 2009).\n\n Regarding substantive reasonableness, Sivells’s sentence was within his Guidelines\n\n range and thus is “presumptively reasonable.” White, 850 F.3d at 674. Sivells argues that\n\n the district court improperly compared him to “hypothetical ‘others,’” Opening Br. 79, and\n\n placed unwarranted weight on Sivells’s possession of a shank during a prior period of\n\n incarceration. We disagree that the district court imposed a substantively unreasonable\n\n sentence. The record reflects that the district court discussed Sivells’s status as a leader in\n\n TTG, his criminal history, the need to deter him, the seriousness of his crimes, and the need\n\n to protect the public. The court thus clearly addressed the § 3553(a) factors and explained\n\n the sentence. We find that Sivells has failed to rebut the presumption of reasonableness\n\n and affirm.\n\n\n\n B.\n\n Broughton was sentenced to 360 months of imprisonment, which falls within his\n\n Guidelines range of 292–365 months. Broughton alleges (1) the district court procedurally\n\n 49\n\fUSCA4 Appeal: 19-4562 Doc: 124 Filed: 08/18/2022 Pg: 50 of 54\n\n\n\n\n erred by applying a two-level enhancement because it found he “used violence, made a\n\n credible threat of violence, or directed the use of violence” under U.S.S.G. § 2D1.1(b)(2);\n\n and (2) that the district court imposed a procedurally and substantively unreasonable\n\n sentence by failing to consider that his criminal history score overstated the seriousness of\n\n his record and his mitigation evidence. Unpersuaded, we affirm his sentence.\n\n “We review findings of fact relating to sentencing enhancements for clear error.”\n\n United States v. McAllister, 272 F.3d 228, 234 (4th Cir. 2001). We find that the district\n\n court did not clearly err in finding that Broughton “used violence, made a credible threat\n\n of violence, or directed the use of violence.” U.S.S.G. § 2D1.1(b)(2). The district court\n\n based its findings on conversations that Broughton had with co-conspirators when he was\n\n tracking the unknown individuals, whom the jury found he conspired to murder. In those\n\n conversations, Broughton directed Barronette and Sivells to “stay with ‘em,” and\n\n exclaimed, “I was for, I was for, I was gonna pow! Hit him right in the head.” J.A. 3044.\n\n We find that the district court did not clearly err in determining that Broughton directed\n\n violence and thus affirm the enhancement.\n\n Broughton also contends his sentence was procedurally unreasonable because the\n\n district court failed to address his several mitigation arguments about his childhood.\n\n At sentencing, the district court said:\n\n Certainly there are mitigating circumstances, about Mr. Broughton’s\n childhood, the possibility of lead paint poisoning, just difficulties in how he\n was brought up. I certainly understand that. . . . But there is a very significant\n need to protect the public here, to recognize the seriousness of the offense,\n as well as to deter, I believe Mr. Broughton, as well as others generally, that\n requires a significant sentence, despite the mitigating factors that have been\n pointed out.\n\n 50\n\fUSCA4 Appeal: 19-4562 Doc: 124 Filed: 08/18/2022 Pg: 51 of 54\n\n\n\n\n J.A. 3458. We find that the district court met its minimum requirement by considering and\n\n rejecting the mitigating arguments. The court also engaged counsel on both sides to argue\n\n about the appropriateness of a downward variance. See United States v. Blue, 877 F.3d\n\n 513, 521 (4th Cir. 2017) (“Reviewing courts may also infer that a sentencing court gave\n\n specific attention to a defendant’s argument for a downward departure if the sentencing\n\n court engages counsel in a discussion about that argument.”). Thus, we hold that the court\n\n properly addressed Broughton’s arguments and did not procedurally err.\n\n Finally, Broughton contends that his sentence is substantively unreasonable because\n\n the effect of a probation violation overstated his criminal history. Broughton’s sentence is\n\n within his Guidelines range and thus is presumptively reasonable. White, 850 F.3d at 674.\n\n Broughton principally takes issue with the fact that one of his convictions counted toward\n\n his criminal history score even though he originally received a probation-before-judgment\n\n (PBJ) diversionary sentence for an assault conviction in state court. The state court judge\n\n struck the PBJ after Broughton did not complete a required diversionary program and found\n\n Broughton to be in violation of his probation and guilty of the substantive offense of\n\n assault. Broughton asserts that the effects of failing to complete a diversionary program,\n\n i.e., the violation of probation and assault convictions, overstated his criminal history by\n\n giving him a criminal history category of V.\n\n Broughton does not argue that his criminal history category or Guidelines range\n\n were incorrect. He instead contends that it was substantively unreasonable under U.S.S.G\n\n § 4A1.3(b)(1) for the district court to not depart downward. A district court has discretion\n\n\n 51\n\fUSCA4 Appeal: 19-4562 Doc: 124 Filed: 08/18/2022 Pg: 52 of 54\n\n\n\n\n to depart downward “[i]f reliable information indicates that the defendant’s criminal\n\n history category substantially overrepresents the seriousness of the defendant’s criminal\n\n history or the likelihood that the defendant will commit other crimes[.]” U.S.S.G.\n\n § 4A1.3(b)(1); see also United States v. Hackley, 662 F.3d 671, 686 (4th Cir. 2011). But\n\n we “lack the authority to review a sentencing court’s denial of a downward departure unless\n\n the court failed to understand its authority to do so.” Id. (quoting United States v. Brewer,\n\n 520 F.3d 367, 371 (4th Cir. 2008)). Thus, we must reject Broughton’s argument that the\n\n district court erred in not granting him a downward departure under U.S.S.G.\n\n § 4A1.3(b)(1). We affirm Broughton’s sentence.\n\n\n\n C.\n\n Floyd was sentenced to 30 years of imprisonment on each count, to be served\n\n concurrently. He brings three challenges to his sentence: (1) the district court procedurally\n\n erred by enhancing his offense levels pursuant to U.S.S.G. § 2A1.5(b)(1); (2) the district\n\n court erred in finding Floyd to be a career offender pursuant to U.S.S.G. § 4A1.1; and (3)\n\n his sentence was procedurally and substantively unreasonable. None of these challenges\n\n are persuasive, and we affirm Floyd’s sentence.\n\n Regarding Floyd’s first argument, U.S.S.G. § 2A1.5(b)(1) provides: “If the offense\n\n involved the offer or the receipt of anything of pecuniary value for the undertaking of\n\n murder, increase by 4 levels.” The district court applied this enhancement based on Floyd’s\n\n role in the attempted murder of Cedric Catchings. The enhancement raised his offense\n\n level for the RICO conspiracy conviction in Count One to 37. However, Floyd’s total\n\n 52\n\fUSCA4 Appeal: 19-4562 Doc: 124 Filed: 08/18/2022 Pg: 53 of 54\n\n\n\n\n offense level, regardless of this enhancement, was 43 because of his role in Addison’s\n\n murder. 5 Floyd contends the enhancement added a unit to his offense level. Floyd did\n\n receive a one-level enhancement for the number of units assigned under U.S.S.G. § 3D1.4,\n\n but that enhancement did not impact his total offense level because it was already at the\n\n maximum level of 43. So, even if there was an error in applying this enhancement, the §\n\n 2A1.5(b)(1) enhancement did not impact Floyd’s Guidelines range. Further, the district\n\n court stated it would have imposed the same sentence “regardless of the presentence report\n\n [or] advisory guideline calculations[.]” J.A. 3550–51.\n\n We find that any error in applying this enhancement is harmless. “A Guidelines\n\n error is considered harmless if we determine that (1) ‘the district court would have reached\n\n the same result even if it had decided the guidelines issue the other way,’ and (2) ‘the\n\n sentence would be reasonable even if the guidelines issue had been decided in the\n\n defendant’s favor.” United States v. Gomez-Jimenez, 750 F.3d 370, 382 (4th Cir. 2014)\n\n (quoting United States v. Savillon-Matute, 636 F.3d 119, 123 (4th Cir. 2011)). We find\n\n both prongs are satisfied here.\n\n Likewise, we hold that any error in designating Floyd as a career offender is\n\n harmless because that designation did not impact his Guidelines range or sentence. As we\n\n detailed above, Floyd’s total offense level is 43 regardless of any other enhancements,\n\n including the career-offender designation, which gave him a Guidelines range of a life\n\n\n 5\n While Floyd appeals the special verdict finding that he conspired to murder\n Addison, he does not challenge the district court’s independent finding that he conspired\n to murder Addison, nor did he object to that finding in the PSR.\n\n 53\n\fUSCA4 Appeal: 19-4562 Doc: 124 Filed: 08/18/2022 Pg: 54 of 54\n\n\n\n\n sentence. Again, the district court said it believed a downward variance of 30 years “is the\n\n reasonable sentence,” regardless of the PSR or “whether the career offender [enhancement]\n\n is or is not accurate.” J.A. 3550–51. We thus hold that any error with designating Floyd\n\n as a career offender is harmless.\n\n Finally, Floyd asserts his sentence is not substantively reasonable because the court\n\n “made no individualized assessment.” Opening Br. 90. We disagree. The district court\n\n discussed Floyd’s individual role in the conspiracy, compared his role to his co-defendants,\n\n and granted a significant downward variance from life to 30 years. We reject the argument\n\n that Floyd’s sentence is substantively unreasonable and affirm his sentence.\n\n\n\n XI.\n\n For the above reasons, we REVERSE Pulley’s § 922(g)(1) conviction, VACATE\n\n the judgment as to him, AND REMAND for further proceedings consistent with our\n\n opinion. The remaining convictions and sentences are AFFIRMED.\n\n Nos. 19-4123, 19-4160, 19-4180, 19-4181,\n 19-4328, 19-4408, and 19-4562, AFFIRMED;\n No. 19-4726, AFFIRMED IN PART, REVERSED IN PART,\n AND REMANDED FOR FURTHER PROCEEDINGS\n\n\n\n\n 54\n\f", "ocr": false, "opinion_id": 7802202 } ]

"2022-08-18"

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 32, "download_url": "http://www.search.txcourts.gov/RetrieveDocument.aspx?DocId=39494&Index=%5c%5c10%2e20%2e4%2e7%5cTamesIndexes%5ccoa02%5cOpinion", "author_id": null, "opinion_text": " In the\n Court of Appeals\nSecond Appellate District of Texas\n at Fort Worth\n ___________________________\n\n No. 02-21-00057-CR\n ___________________________\n\n MARIE ELAINE BLACK, Appellant\n\n V.\n\n THE STATE OF TEXAS\n\n\n\n On Appeal from County Criminal Court No. 3\n Denton County, Texas\n Trial Court No. CR-2021-01426-C\n\n\n Before Sudderth, C.J.; Birdwell and Walker, JJ.\nMemorandum Opinion by Chief Justice Sudderth\n\f MEMORANDUM OPINION\n\n Appellant Marie Elaine Black appeals her conviction for the Class A\n\nmisdemeanor offense of driving while intoxicated with a prior conviction. See Tex.\n\nPenal Code Ann. §§ 49.04, 49.09(a). The sole issue she raises on appeal is whether the\n\ntrial court erred by denying her motion to dismiss on speedy trial grounds. See U.S.\n\nConst. amends. VI, XIV. We will affirm.\n\n I. Timeline\n\n Because in evaluating a speedy trial claim, the timeline of events is key, 1 we begin\n\nwith the pertinent chronology of events:\n\n• December 14, 2019: Black was arrested for DWI by the Corinth Police\n\n Department, and a sample of her blood was drawn.\n\n• December 16, 2019: Black bonded out of jail. As a condition of her bond, she\n\n was required to install an ignition interlock system in her car.\n\n• December 23, 2019: Black’s attorney filed a letter of representation with the\n\n Denton County Clerk’s office using Black’s warrant number as the point of\n\n reference since Black’s DWI case had not yet been filed. In the letter, the\n\n attorney stated, “We request speedy trial.” This letter was served on two\n\n\n\n\n 1\n See, e.g., Cochnauer v. State, No. 02-19-00165-CR, 2021 WL 3931914, at *1–2 (Tex.\nApp.—Fort Worth Sept. 2, 2021, no pet.) (mem. op., not designated for publication)\n(listing timeline of relevant facts for speedy trial analysis).\n\n\n 2\n\f individuals at the Denton County District Attorney’s Office, although their role\n\n in prosecuting the case against Black was never explained.2\n\n• January 29, 2020: The police department hand-delivered Black’s blood sample\n\n to a Department of Public Safety (DPS) laboratory to test the alcohol\n\n concentration level.\n\n• July 7, 2020: A DPS analyst finished testing Black’s blood sample.\n\n• July 22, 2020: DPS sent the blood test results to the Corinth Police Department.\n\n• July 27, 2020: The police department sent Black’s case to the Denton County\n\n District Attorney’s Office.3\n\n• October 20, 2020: The district attorney’s office created Black’s file and assigned\n\n the case to a prosecutor for review.\n\n• January 14, 2021: A different prosecutor—not the attorney who generally\n\n handled DWI intake, and neither of the individuals who had been served with\n\n\n\n\n 2\n What is clear from the record is that the two attorneys who received service in\n2019 were not the attorneys who filed the complaint and information, nor were they\nthe attorneys who appeared at Black’s speedy trial hearing, nor did they testify at that\nspeedy trial hearing. Furthermore, Black’s electronic service records showed that\nneither of the two attorneys opened the document.\n 3\n A sergeant with the Corinth Police Department later testified that his\ndepartment had an agreement with the district attorney’s office to “keep things simpler”\nby waiting to send the office cases until after the police department had received test\nresults from the DPS lab.\n\n\n 3\n\f the December 2019 letter of representation—reviewed Black’s case and signed\n\n the complaint.\n\n• February 2, 2021: Black’s attorney sent the district attorney’s office a second\n\n letter of representation, identical to the one he had initially filed in December\n\n 2019, but this time it was mailed to the elected criminal district attorney via\n\n certified mail.\n\n• February 23, 2021: Black filed a one-sentence motion for speedy trial with the\n\n county clerk, 4 despite the fact that the DWI charges had not yet been filed against\n\n her, and therefore, the county clerk had not yet opened a file related to Black’s\n\n December 14, 2019 arrest. Black electronically served the motion on the elected\n\n criminal district attorney but he never opened the file. Black also served the\n\n motion on another individual at the district attorney’s office whose role in the\n\n case is unclear5 but who, according to the electronic records, did open the file.\n\n\n\n\n 4\n The entirety of Black’s speedy trial motion stated: “Now comes Marie Elaine\nBlack, Defendant, and files this request for speedy trial under the 6th Amendment to\nthe US Constitution, Article 1 Section 10 of the Texas Constitution[,] and Article 1.05\nof the Texas Code of Criminal Procedure.”\n 5\n The individual served with the February 2021 speedy trial motion was not one\nof the two people who had been served with the December 2019 letter of\nrepresentation, nor was she the DWI intake attorney, nor was she the person who had\nsigned Black’s complaint.\n\n\n 4\n\f• March 5, 2021: The district attorney’s office filed the complaint and information,\n\n formally charging Black with the December 2019 DWI offense.6 See Tex. Penal\n\n Code Ann. §§ 49.04, 49.09(a).\n\n• March 26, 2021: Black filed a single-sentence motion to dismiss her case on\n\n speedy trial grounds:\n\n COMES NOW, MARIE ELAINE BLACK, through her Attorney of\n Record . . . and asks the Court to dismiss this Cause and would show in\n support:\n\n The State has violated Defendant’s Right to a Speedy Trial in\n violation of the 6th Amendment to the US Constitution and in violation\n of Article 1 Section 10 of the Texas Constitution.\n\n• April 6, 2021: Black requested that her case be set for an announcement hearing\n\n in May.\n\n• April 20, 2021: The trial court heard Black’s speedy trial motion to dismiss. Five\n\n witnesses testified: a DPS forensic analyst, a sergeant with the Corinth Police\n\n Department, the intake prosecutor assigned to handle DWIs for the district\n\n attorney’s office, a records custodian for Black’s trial counsel’s law office, and\n\n Black herself. At the close of the hearing, the State indicated that it would “set\n\n\n 6\n Black’s information alleged two enhancements: a blood alcohol concentration\nof 0.15 or more and a prior conviction for DWI. Either would have been sufficient to\nenhance Black’s offense to a Class A misdemeanor, see Tex. Penal Code Ann.\n§§ 49.04(d), 49.09(a), although using the prior conviction as an enhancement required\n“a minimum term of confinement of 30 days,” id. § 49.09(a). Black’s judgment reveals\nthat she pleaded to “DWI 2ND.”\n\n\n 5\n\f this case at the forefront of [its] trial docket to ensure [that] it [wa]s tried as soon\n\n as . . . allow[ed].” The trial court ordered the parties to submit briefs on the\n\n speedy trial issue.\n\n• April 28, 2021: The parties filed their briefs with the trial court.\n\n• May 5, 2021: The trial court denied Black’s speedy trial motion and made\n\n findings of fact and conclusions of law.\n\n• May 19, 2021: Black waived her right to a jury trial, pleaded nolo contendre to\n\n the offense, and conceded the enhancement. The trial court sentenced her,\n\n probated the sentence for 20 months, and placed Black on community\n\n supervision for that period of time.\n\n On appeal, Black argues that the trial court erred by denying her motion to\n\ndismiss because the State violated her Sixth Amendment right to a speedy trial. 7 See\n\nU.S. Const. amend VI.\n\n\n\n\n 7\n In the trial court, Black asserted her right to speedy trial under both the United\nStates and Texas Constitutions. On appeal, though, she only asserts her right under the\nUnited States Constitution. But see Zamorano v. State, 84 S.W.3d 643, 648 (Tex. Crim.\nApp. 2002) (“The Texas constitutional speedy trial right exists independently of the\nfederal guarantee, but [the Court of Criminal Appeals] has traditionally analyzed claims\nof a denial of the state speedy trial right under the [federal] factors established in Barker\nv. Wingo.”).\n\n\n 6\n\f II. The Law Regarding the Right to a Speedy Trial\n\n The Sixth Amendment to the United States Constitution guarantees the accused\n\nin all criminal prosecutions the right to a speedy trial.8 Barker v. Wingo, 407 U.S. 514,\n\n515, 92 S. Ct. 2182, 2184 (1972); see U.S. Const. amend VI. The Supreme Court has\n\nqualified the broad sweep of the Constitution’s Speedy Trial Clause by analyzing the\n\nissue in terms of four factors: (1) “whether delay before trial was uncommonly long”;\n\n(2) “whether the government or the criminal defendant is more to blame for that delay”;\n\n(3) “whether, in due course, the defendant asserted h[er] right to a speedy trial”; and\n\n(4) “whether [s]he suffered prejudice as the delay’s result.” Zamorano, 84 S.W.3d at 647–\n\n48 (quoting Doggett v. United States, 505 U.S. 647, 651, 112 S. Ct. 2686, 2690 (1992)); see\n\nBarker, 407 U.S. at 530, 92 S. Ct. at 2192; State v. Lopez, 631 S.W.3d 107, 113 (Tex. Crim.\n\nApp. 2021). All four of these factors—known as the Barker factors—are related, and\n\nno factor alone is dispositive. Barker, 407 U.S. at 533, 92 S. Ct. at 2193.\n\n “[T]he length of the delay is, to some extent, a triggering mechanism” for the\n\nbalancing test as a whole. Lopez, 631 S.W.3d at 113 (quoting Dragoo v. State, 96 S.W.3d\n\n308, 313 (Tex. Crim. App. 2003)). “Until there is some delay which is presumptively\n\nprejudicial, there is no necessity for inquiry into the other factors that go into the\n\nbalance.” Barker, 407 U.S. at 530, 92 S. Ct. at 2192; see Lopez, 631 S.W.3d at 113 (similar);\n\n\n 8\n The right to a speedy trial is extended to the states by the Due Process Clause\nof the Fourteenth Amendment. Barker v. Wingo, 407 U.S. 514, 515, 92 S. Ct. 2182, 2184\n(1972); U.S. Const. amend. XIV.\n\n\n 7\n\fDragoo, 96 S.W.3d at 313–14. If the length of delay is presumptively prejudicial, the\n\nState has the burden to justify the delay. Harper v. State, 567 S.W.3d 450, 459 (Tex.\n\nApp.—Fort Worth Jan. 10, 2019, no pet.); see Emery v. State, 881 S.W.2d 702, 708 (Tex.\n\nCrim. App. 1994). The defendant, in turn, has the burden to both prove her diligent\n\nassertion of her right to a speedy trial and to show prejudice. Cantu v. State, 253 S.W.3d\n\n273, 280 (Tex. Crim. App. 2008). But the defendant’s burden on these latter two factors\n\nvaries inversely with the State’s culpability for the delay; the greater the bad faith or\n\nofficial negligence on the part of the State, the less a defendant must show assertion of\n\nthe right or prejudice. Cantu, 253 S.W.3d at 280–81; Bender v. State, No. 02-17-00342-\n\nCR, 2018 WL 4401745, at *5 (Tex. App.—Fort Worth Aug. 23, 2018, no pet.) (mem.\n\nop., not designated for publication).\n\n III. Standard of Review\n\n In reviewing a trial court’s ruling on a speedy trial dismissal motion, we apply a\n\nbifurcated standard of review: an abuse of discretion standard for the factual\n\ncomponents and a de novo standard for the legal components. Gonzales v. State, 435\n\nS.W.3d 801, 808–09 (Tex. Crim. App. 2014); Zamorano, 84 S.W.3d at 648. Under this\n\nstandard, we defer to the trial court’s resolution of disputed facts and to its right to\n\ndraw reasonable inferences based on those facts. Gonzales, 435 S.W.3d at 808–09; Cantu,\n\n253 S.W.3d at 282. But the balancing test as a whole is a purely legal question. Cantu,\n\n253 S.W.3d at 282.\n\n\n\n 8\n\f IV. Analysis\n\n In her sole point, Black argues that the trial court erred by denying her motion\n\nto dismiss 9 because the Barker factors weigh in her favor: according to Black, (1) the\n\nlength of the delay was presumptively prejudicial;10 (2) the delay was attributable to\n\ngovernmental entities—the police, DPS, and the district attorney’s office; (3) Black\n\nasserted her right to a speedy trial on multiple occasions; and (4) as a result of the delay,\n\nBlack was required to maintain an ignition interlock system for a prolonged period of\n\ntime, causing her financial and emotional stress.\n\nA. Length of Delay\n\n At the outset, Black was required to make a threshold showing that the time\n\nbetween accusation and trial was presumptively prejudicial. Gonzales, 435 S.W.3d at\n\n808; Zamorano, 84 S.W.3d at 648–49. An “accusation” occurs when the defendant is\n\neither arrested or formally charged with a crime. Gonzales, 435 S.W.3d at 809. Both\n\n\n 9\n Black’s statement of the case indicates that she is appealing a motion to\nsuppress: “Appellant filed a [m]otion to [s]uppress on October 6, 2016[,] . . . [and] filed\na notice of appeal of the trial court’s decision on the motion to suppress.” But no\nmotion to suppress was filed in this case, and we glean from the record that she is\nactually appealing the denial of her speedy trial motion.\n 10\n Black argues that the delay between her arrest and charge was presumptively\nprejudicial, but because the relevant end date is the date of Black’s plea, we will examine\nthe period of delay between Black’s arrest and her plea. Lopez, 631 S.W.3d at 114\n(describing length of delay as “the interval between accusation and trial” (quoting\nDoggett, 505 U.S. at 651–52, 112 S. Ct. at 2690)); Fuller v. State, 624 S.W.3d 855, 863 (Tex.\nApp.—Fort Worth 2021, pet. ref’d) (op. on reh’g) (“Our calculation begins at the time\n[the defendant] was arrested and ends at the time of trial.”).\n\n\n 9\n\fsides agree that Black was first “accused” of DWI on the date of her arrest—December\n\n14, 2019. And it is also undisputed that the period between the date of Black’s arrest\n\nuntil her plea spanned more than 17 months.\n\n Although there is no set amount of time that is necessary to trigger the Barker\n\nanalysis, the Court of Criminal Appeals has “held that a delay of four months is not\n\nsufficient while a seventeen-month delay”—such as the delay at issue here—“is\n\n[sufficient].” Cantu, 253 S.W.3d at 281 (reciting Barker rules in an enhanced DWI case);\n\nsee Phillips v. State, 650 S.W.2d 396, 399 (Tex. Crim. App. [Panel Op.] 1983) (holding that\n\n17-month delay between time appellant was first indicted for rape and time of trial was\n\nsufficient to trigger Barker analysis).11 Therefore Black has met her threshold burden\n\nto show that the delay she complains of is sufficiently lengthy and “presumptively\n\nprejudicial” to trigger an analysis of the remaining Barker factors. See Cantu, 253 S.W.3d\n\nat 281; Phillips, 650 S.W.2d at 399.\n\n\n Even a delay far less than 17 months has been held sufficient to trigger the\n 11\n\nBarker analysis in other enhanced DWI cases. See State v. Page, No. 05-18-01391-CR,\n2020 WL 1899453, at *6 (Tex. App.—Dallas Apr. 17, 2020, no pet.) (mem. op., not\ndesignated for publication) (holding delay of eight months was “not an extraordinary\ndelay” but was “just past the minimum needed to trigger a Barker analysis” in\nmisdemeanor second-offense DWI case); State v. Burckhardt, 952 S.W.2d 100, 102–03\n(Tex. App.—San Antonio 1997, no pet.) (holding that 14-month delay from DWI arrest\nto dismissal hearing “necessitate[d] an analysis of the remaining Barker factors”); see also\nLopez, 631 S.W.3d at 114 (“Generally, a delay of eight months to a year, or longer, is\npresumptively prejudicial and triggers a speedy trial analysis.”); Balderas v. State, 517\nS.W.3d 756, 768 (Tex. Crim. App. 2016) (noting that “courts deem delay approaching\none year to be ‘unreasonable enough to trigger the Barker [i]nquiry’” (quoting Dragoo, 96\nS.W.3d at 314)).\n\n\n 10\n\fB. Reasons for the Delay\n\n “If a presumptively prejudicial delay has occurred, the State bears the initial\n\nburden of justifying the delay.” Harper, 567 S.W.3d at 459; see Emery, 881 S.W.2d at 708.\n\nWhen engaging in an analysis of this second Barker factor, a sliding scale applies with\n\ndifferent weights assigned to different reasons for the delay. Barker, 407 U.S. at 531, 92\n\nS. Ct. at 2192; see Balderas, 517 S.W.3d at 768. There are three categories of reasons on\n\nthis sliding scale: a deliberate reason, a neutral reason, and a valid reason.\n\n As to the first category, “[d]eliberate conduct by the State will, of course, weigh\n\nheavily against the State.” Fuller, 624 S.W.3d at 864; see Balderas, 517 S.W.3d at 768. For\n\nthe second category—delays resulting from a non-deliberate or otherwise neutral\n\nreason, such as negligence or overcrowded courts—these delays will still weigh against\n\nthe State, but less heavily than would deliberate conduct. Barker, 407 U.S. at 531, 92\n\nS. Ct. at 2192; Fuller, 624 S.W.3d at 864. If the State fails to give a reason for the delay,\n\nthis is tantamount to a neutral reason; the factor will weigh against the State, but less\n\nheavily than would deliberate conduct. See Dragoo, 96 S.W.3d at 314 (noting that in the\n\ncase of an unexplained delay, the court “may presume neither a deliberate\n\n[delay] . . . nor a valid reason”). And, finally, if the delay resulted from a valid reason,\n\nsuch as a missing witness, this factor does not weigh against the State at all. Fuller, 624\n\nS.W.3d at 864.\n\n We agree with Black that the delays here can be divided into four segments:\n\n(1) the police department’s delay in delivering Black’s blood to DPS, (2) the delay in\n\n 11\n\ftesting at DPS, (3) the district attorney’s office’s delay in assigning an intake attorney to\n\nreview the case, and (4) the district attorney’s office’s delay in filing formal charges. Cf.\n\nMurphy v. State, 280 S.W.3d 445, 453 (Tex. App.—Fort Worth 2009, pet. ref’d) (parsing\n\na seven-year delay into three distinct time periods).\n\n 1. Delayed Delivery by the Police Department: 46 Days\n\n Beginning with the police department’s 46-day delay in delivering Black’s blood\n\nsample to DPS, this delay weighs against the State, but not heavily. At the speedy trial\n\nhearing, a sergeant with the Corinth Police Department explained that the 46-day delay\n\nwas caused by a six-week medical leave taken by the administrative assistant who would\n\nhave normally hand-delivered blood samples to DPS to preserve the chain of custody.\n\nAlthough the sergeant had temporarily “tak[en] over her job” during her leave, he\n\ntestified that he did not deliver Black’s blood sample because he was “not able to go to\n\nthe lab during that time.” He offered no other explanation for the 46-day delay, and\n\nwhen questioned by Black’s counsel, the sergeant acknowledged that he could have\n\nmailed the blood to the lab.\n\n Short-staffing is an example of a neutral reason for delay that should be weighed\n\nslightly against the State. Cf. Strunk v. U.S., 412 U.S. 434, 436, 93 S. Ct. 2260, 2262\n\n(1973) (reiterating in dicta that “[u]nintentional delays caused by . . . understaffed\n\nprosecutors are among the factors to be weighed [against the State but] less heavily than\n\nintentional delay”); Barker, 407 U.S. at 531, 92 S. Ct. at 2192 (explaining that neutral\n\nreasons such as overcrowded courts weigh against the State “since the ultimate\n\n 12\n\fresponsibility for such circumstances must rest with the government rather than with\n\nthe defendant”); cf. also Santibanez v. State, 717 S.W.2d 326, 331 (Tex. Crim. App. 1986)\n\n(rejecting argument that “lack of sufficient personnel” in district attorney’s office\n\nqualified as an exceptional circumstance under the former Speedy Trial Act). Although\n\nsuch delay is not deliberate, “[t]he government must bear responsibility for failing to\n\nprovide adequate resources to law-enforcement agencies.” Ex parte Martin, 33 S.W.3d\n\n843, 846–47 (Tex. App.—Austin 2000) (op. on reh’g) (applying speedy trial test in\n\nreview of dismissal under Tex. Code Crim. Proc. Ann. art. 32.01, addressing delay due\n\nto short-staffing at police department, and commenting that defendant “could not be\n\nexpected to suffer an indefinite delay of her case because the police department was\n\nwithout a secretary”), pet. dism’d, improvidently granted, 46 S.W.3d 932 (Tex. Crim. App.\n\n2001); see State v. Fisher, 198 S.W.3d 332, 338–39 (Tex. App.—Texarkana 2006, pet.\n\nref’d) (quoting Martin in speedy trial case and addressing State’s delay in submitting\n\ndrugs to lab). Although we recognize a difference between a temporarily absent\n\nemployee and chronic short-staffing, that difference may begin to blur when the\n\nallegedly temporary absence continues for an extended period of time and the absent\n\nemployee’s responsibilities are piled on top of another colleague’s job duties.\n\n Such was the case here. The sergeant who took over the absent assistant’s blood-\n\ndelivery duties already had a job of his own, and for unexplained reasons, he was not\n\nable to fulfill the assistant’s responsibilities by making lab deliveries during her six-week\n\nabsence. For all intents and purposes, this is a short-staffing situation—a non-\n\n 13\n\fdeliberate, neutral reason under the Barker analysis—and the police department’s delay\n\nweighs against the State, although it weighs less heavily than would deliberate conduct.\n\nSee State v. Conatser, 645 S.W.3d 925, 929 (Tex. App.—Dallas 2022, no pet.) (holding\n\nthat a “delay involving managing the State’s resources is not unlike one caused by a\n\nbacklog of cases or a shortage of staff[ and] it weighs slightly against the State”).\n\n 2. Delayed Testing at DPS: 175 Days\n\n The delay at DPS also weighs against the State, but not heavily. This delay\n\noccurred from the time that DPS received Black’s blood sample on January 29, 2020,\n\nto the date it delivered the blood alcohol content analysis back to the police department\n\non July 22, 2020—a total delay of 175 days. The State contends that this delay was\n\ncaused by COVID-19, but the DPS analyst’s testimony shows otherwise.\n\n At the speedy trial hearing, the DPS analyst who tested Black’s blood minimized\n\nthe impact of COVID-19 on her job. She testified that the lab continued to work\n\nthroughout the pandemic and “didn’t completely shut down” at any time but merely\n\n“slow[ed] up” for a “few months” while the analysts “were sent home [to work]\n\npart[]time.”12 According to the analyst, well before the test was completed—by “May\n\nor June” of 2020—DPS analysts had returned and were working fulltime. 13 So, based\n\n\n It is unclear whether, during the “slow up,” the analysts worked parttime at the\n 12\n\nlaboratory, worked parttime from their homes, or worked fulltime but split their time\nbetween the laboratory and their homes.\n\n In its findings of fact, the trial court stated that the DPS analyst had testified\n 13\n\nthat “full staff did not return [from the pandemic] until this month meaning April\n\n 14\n\fon the analyst’s testimony, even if the DPS analysts immediately began working\n\nparttime on March 13, 2020, when the Texas Governor issued a disaster proclamation\n\nregarding COVID, the lab’s “slow up” could have lasted no more than two to three\n\nmonths—until “May or June.” See The Governor of the State of Tex., Proclamation\n\n41-3720, 45 Tex. Reg. 2094, 2094–95 (2020). And even then, the analysts were still\n\nworking; the lab did not shut down. At most, the pandemic was a contributing factor\n\nduring approximately 90 of the 175 days (roughly one-half) of DPS’s delay. 14\n\n Instead, the DPS analyst attributed the primary reasons for delay to short-staffing\n\nand backlog. She explained that the lab had been short-staffed in 2020 and although it\n\nshould normally take “maybe, about a week” to conduct the test and send back a report,\n\nin 2020 the lab had a backlog of 3,000 to 4,000 cases, making a 175-day delay “normal.”\n\n\n\n\n2021.” The analyst actually testified, though, that her lab returned from the pandemic\nafter just “a few months,” in “May or June” 2020, but that the lab was short-staffed and\ndid not have “five full-time analysts” on staff “until this month,” i.e., April 2021.\n 14\n Cf. Conatser, 645 S.W.3d at 929–30 (holding that delay after filing case was\n“caused by the onset of a pandemic [and] c[ould ]not be attributed as fault to the State”\nwhen the defendant acknowledged that “no jury trials were occurring” during the five-\nmonth period of delay); Ex parte Sheffield, 611 S.W.3d 630, 634 (Tex. App.—Amarillo\n2020) (noting that COVID-19 restrictions were subject to constitutional limitations and\nreversing denial of motion for speedy trial because the trial court had stated that “the\nState’s ready but . . . the Office of Court Administration has instructed me that I’m not\nallowed to conduct any jury trials until they let me know”), pet. granted, No. PD-1102-\n20, 2021 WL 5561540 (Tex. Crim. App. Nov. 24, 2021) (order) (not designated for\npublication).\n\n\n 15\n\fIn other words, it was short-staffing, not the pandemic, that caused the DPS lab to lag\n\nsix months behind schedule.\n\n As explained above, short-staffing and backlog are neutral reasons and weigh\n\nagainst the State, though not heavily. See Sample v. State, No. 03-19-00817-CR, 2022 WL\n\n2960241, at *4 (Tex. App.—Austin July 27, 2022, no pet. h.) (op. on reh’g) (concluding\n\nthat “[t]he main reason for the delay seems to have been problems in the DNA testing\n\nsystem, which is the type of problem that weighs against the State but not heavily”);\n\nFuller, 624 S.W.3d at 865 (concluding that three-year delay in DNA testing in capital\n\nmurder case “weigh[ed] against the State but not heavily” because the delay was not\n\ndeliberate); Giles v. State, No. 13-17-00238-CR, 2019 WL 1186880, at *3 (Tex. App.—\n\nCorpus Christi–Edinburg Mar. 14, 2019, pet. ref’d) (mem. op., not designated for\n\npublication) (concluding that delay caused by backlog at drug lab weighed against the\n\nState but not heavily). So, as with the police department’s delay in delivering the blood\n\nsample to DPS, the delay at DPS also weighs against the State, but not heavily.\n\n 3. Delayed Assignment at the District Attorney’s Office: 85 Days\n\n The next chunk of Black’s 17-month delay occurred while the case sat in the\n\ndistrict attorney’s system awaiting the assignment of an intake attorney. On July 27,\n\n2020, after receiving the lab results from DPS, the police department referred Black’s\n\n\n\n\n 16\n\fcase to the district attorney’s office.15 But the district attorney’s office waited 85 days—\n\nuntil October 20—to create a file or assign Black’s case to an intake attorney for review.\n\nThis 85-day delay was not explained.16 The State’s failure to give a reason for this delay\n\nweighs slightly against the State. See Dragoo, 96 S.W.3d at 314 (holding that if the State\n\nfails to give a reason for delay, the factor will be considered neutral and weigh slightly\n\nagainst the State).\n\n 4. Delayed Filing at the District Attorney’s Office: 136 Days\n\n The final delay came after the case had been assigned to an intake attorney for\n\nreview. Although the district attorney’s office assigned the case on October 20, the\n\noffice waited another 136 days, until March 5, 2021, to file the case. The State tried to\n\npin the blame for this delay on COVID-19, conceding to the trial court that, “[p]re-\n\nCOVID, yes, . . . it would have needed to be filed much sooner than five months.”\n\n\n\n\n DPS emailed the Corinth Police Department the lab results on July 22, 2020,\n 15\n\nbut the department did not send Black’s case to the district attorney’s office until July\n27, 2020. The police department offered no explanation for this five-day delay.\n 16\n At the speedy trial hearing, the State argued that it did not receive the lab results\nuntil October 13, which is why the case had not been assigned to an intake attorney.\nBut the State offered no evidence to support this position, and the trial court’s findings\nof fact indicate that it did not find the State’s argument persuasive. See Kelly v. State, 163\nS.W.3d 722, 728 (Tex. Crim. App. 2005) (recognizing in speedy trial case that “the trial\ncourt is permitted to disbelieve evidence so long as there is a reasonable articulable basis\nfor doing so”). Moreover, even in its arguments to the trial court, the State\nacknowledged that it “d[id] not have [a] specific reason” for its delay.\n\n\n 17\n\f But the State offered no evidence to support its COVID-19 excuse. There was\n\nno evidence that between October 2020 and March 2021 the intake attorneys were\n\nunable to work due to COVID-19 infections. Nor was there was any evidence that the\n\nintake attorneys were on leave caring for loved ones infected with COVID-19. Cf.\n\nConatser, 645 S.W.3d at 929–30 (attributing delay to COVID-19 where defendant\n\nacknowledged that, even if he had wanted a trial, no jury trials were occurring during\n\nthe relevant period of delay).\n\n Rather, the State explained in its closing argument that “during the global\n\npandemic, unfortunately, with [the district attorney’s office] having people working\n\nfrom home and not all being in the office at the same time, . . . five months is [not] a\n\nlong delay.” Even if we were to consider this unsworn argument as testimonial\n\nevidence, it would not advance the State’s position. 17 The gist of the State’s argument\n\n\n 17\n The misdemeanor intake prosecutor who testified shed no more light on this\ndelay but merely referenced a “backlog in [the district attorney’s] office” during the\nrelevant period of time. Again, backlog is a neutral reason that weighs against the State,\nthough not heavily. See Sample, 2022 WL 2960241, at *3–4; Fuller, 624 S.W.3d at 864;\nFisher, 198 S.W.3d at 339; cf. Shaw v. State, 117 S.W.3d 883, 890 (Tex. Crim. App. 2003)\n(holding that “a crowded court docket is not a valid reason for delay and must be\ncounted against the State, although not heavily”).\n\n The intake attorney was not the attorney who had signed Black’s complaint and\nfiled her case, nor was she the attorney prosecuting Black’s case at the hearing. And\nwhen the trial court asked the attorney prosecuting Black’s case—who had not been\nsworn as a witness—to explain the delayed filing, she stated that she believed the\nattorney who had signed the complaint “did not receive the case in October of 2020”\nbut instead “received it sometime in January of 2021 because that is when [the district\nattorney’s office] started having all ADAs helping out with intake because they were so\nbacklogged.” The prosecutor explained that Black’s case “most likely was assigned to\n\n 18\n\fwas that during the pandemic, employees who were allowed to work from home were\n\nnot able to perform their jobs as well as they would have if they had been working from\n\nthe office. The State did not argue—much less offer evidence—that a governmental\n\ndictate required the district attorney’s office to allow employees to work from home\n\nbetween October 20, 2020, and March 5, 2021. Cf. The Governor of the State of Tex.,\n\nExec. Order GA-18, 45 Tex. Reg. 2933, 2934–35 (2020) (issued Apr. 27, 2020,\n\nproviding for limited May 1, 2020 reopening of a variety of businesses as well as “[l]ocal\n\ngovernment operations” that “[we]re not already ‘essential services,’” and\n\nrecommending that businesses “work from home if possible” (emphasis added)); The\n\nGovernor of the State of Tex., Exec. Order GA-08, 45 Tex. Reg. 2271, 2271 (2020)\n\n(issued Mar. 19, 2020, providing for continued operation of “critical infrastructure” and\n\n“essential services” but limiting operation of nonessential businesses). Instead, the\n\ndistrict attorney’s office made a conscious choice to permit employees to work from\n\nhome during that time period, even though—at least according to the State’s argument\n\nhere—the employees working from home were unable to get their jobs done in a timely\n\nfashion. The 136-day delay was not caused by COVID-19 but by the office’s decision\n\n\n\n\n[the intake prosecutor who had testified] at the beginning,” but the prosecutor who had\nfiled the case probably “went in and got the case” because all of the assistant district\nattorneys were “just grabbing stacks of them to work on in intake.” Cf. Lopez, 631\nS.W.3d at 115 (rejecting allegedly implied finding of fact in speedy trial case because\n“the only statements supporting th[e] conclusion were unsworn statements by counsel\nfor [the defendant] and thus not competent evidence”).\n\n 19\n\fto permit nonproductivity. The district attorney’s office cannot make such a conscious\n\nchoice and then rely on that choice to deprive a defendant of her constitutional rights.\n\n Overall, then, each of the four segments of delay weighs against the State, though\n\nnot heavily.\n\nC. Assertion of the Right\n\n While it is the State’s duty to bring the defendant to trial, the defendant bears the\n\nburden to show that she timely asserted her right. Cantu, 253 S.W.3d at 280, 282–83;\n\nsee Barker, 407 U.S. at 529, 92 S. Ct. at 2191. Courts may “weigh the frequency and\n\nforce of the objections as opposed to attaching significant weight to a purely pro forma\n\nobjection.” Barker, 407 U.S. at 529, 92 S. Ct. at 2191; see Murphy, 280 S.W.3d at 454\n\n(“Repeated requests for a speedy trial weigh heavily in favor of the defendant, while the\n\nfailure to make such requests supports an inference that the defendant does not really\n\nwant a trial, only a dismissal.”). And the defendant’s assertion of her speedy trial right\n\nis entitled to “strong evidentiary weight.” Zamorano, 84 S.W.3d at 651.\n\n Here, while Black asserted her right on four separate occasions, all four assertions\n\nlacked force.\n\n She first asserted her right to a speedy trial on December 23, 2019, nine days\n\nafter her offense. While this assertion occurred promptly after her arrest, see Sanchez v.\n\nState, No. 01-17-00751-CR, 2018 WL 6377140, at *3 (Tex. App.—Houston [1st Dist.]\n\nDec. 6, 2018, no pet.) (mem. op., not designated for publication) (noting that\n\ndefendant’s assertion of his right to a speedy trial a month after his arrest was prompt),\n\n 20\n\fit was halfhearted at best—a short pro forma sentence in her counsel’s letter of\n\nrepresentation with no citations or legal arguments and filed on the same day as two\n\nother preliminary motions. See Barker, 407 U.S. at 529, 92 S. Ct. at 2191 (noting that a\n\ncourt need not “attach[] significant weight to a purely pro forma objection”); State v.\n\nMunoz, 991 S.W.2d 818, 826 (Tex. Crim. App. 1999) (noting that the defendant’s “pro\n\nforma request for a trial date in the waiver of arraignment form cannot be considered an\n\nassertion of his right to a speedy trial”); Clarke v. State, 928 S.W.2d 709, 714 (Tex. App.—\n\nFort Worth Aug. 8, 1996, pet. ref’d) (op. on reh’g) (holding that the third Barker factor\n\nweighed against the defendant in part because he “filed his motion for a speedy trial on\n\nthe same day he filed 32 other motions”). Plus, the letter was filed with the county clerk\n\neven though it related to a case that had not yet been filed, and it was served on two\n\nmembers of the district attorney’s office whose connection with Black’s case remained\n\nunexplained. At the conclusion of the speedy trial hearing, Black’s counsel admitted\n\nthat he did not follow up on his letter of representation or call the district attorney’s\n\noffice to bring the speedy trial request to the office’s attention. The letter of\n\nrepresentation was thus a weak assertion of Black’s speedy trial right.\n\n Black then waited more than a year to reassert her right to speedy trial before\n\nraising it twice in February 2021. Cf. Vega-Gonzalez v. State, No. 03-19-00413-CR, 2020\n\nWL 7051187, at *9–10 (Tex. App.—Austin Dec. 2, 2020, no pet.) (mem. op., not\n\ndesignated for publication) (holding that third Barker factor weighed against the\n\ndefendant in part because, although he invoked his right to a speedy trial twice, he\n\n 21\n\fwaited to do so until more than two years after his arrest and then did not reassert the\n\nright until he moved to dismiss). And these two assertions were likewise pro forma.\n\n One assertion was made by forwarding a copy of Black’s counsel’s year-old letter\n\nof representation to the elected criminal district attorney via certified mail. And Black’s\n\ncounsel acknowledged at the speedy trial hearing that he “highly doubt[ed] that [the]\n\nletter made it from [the elected criminal district attorney] to anybody in intake.” The\n\nother was a one-sentence motion that was (again) filed with the county clerk before\n\nBlack’s case was filed18 and served on the elected criminal district attorney and on\n\nanother individual who had no explained connection to the case. 19 Cf. State v. Flores,\n\n951 S.W.2d 134, 141–42 (Tex. App.—Corpus Christi–Edinburg 1997, no pet.)\n\n(detailing defendant’s actions during four-year delay, including defendant’s testimony\n\nthat he asked two attorneys about strategies to expedite his case and repeatedly called\n\nthe district attorney’s office); see also Cantu, 253 S.W.3d at 283 & n.47 (commenting that\n\n\n 18\n Generally, “one cannot file a motion for a speedy trial until formal charges are\nmade” because there is no case in which to file the motion and no trial court responsible\nfor hearing it. Cantu, 253 S.W.3d at 283. Nonetheless, Black filed a one-sentence speedy\ntrial motion with the county clerk before she was formally charged by information. It\nis unclear what the county clerk did—or could have done—with the motion between\nFebruary 23, 2021, the day it was filed with the clerk and the day Black was formally\ncharged, on March 5, 2021.\n 19\n Black’s documentation also reveals that her counsel made multiple speedy trial\nmotions in other cases on the same date—February 23—that he filed Black’s speedy\ntrial motion. All six speedy trial motions were also served on the same two\nindividuals—the elected criminal district attorney and the county employee with an\nunidentified role.\n\n\n 22\n\f“[a]lthough one cannot file a motion for a speedy trial until formal charges are made,\n\nthe right to one can be asserted in other ways” and citing Flores as an example). Neither\n\nof these two assertions contained any case-specific arguments or legal analysis. And as\n\nbefore, Black did not call the district attorney’s office to follow up on any of her filings,\n\nto check the status of her case, or to communicate her urgency.\n\n Thus, as with her initial speedy trial request, Black’s two February 2021 speedy\n\ntrial requests lacked force.\n\n Soon thereafter, in March 2021, Black was formally charged. But rather than\n\nseeking a trial date or an immediate hearing on her previous speedy trial requests—\n\neither of which would have signaled Black’s sincere desire to have a speedy trial—she\n\nfiled a motion to dismiss. Cf. Zamorano, 84 S.W.3d at 651–52 (distinguishing appellant’s\n\nrepeated assertions of the right from “a case where [the] appellant never asked for a\n\nhearing”). Requesting a dismissal instead of an actual trial “generally weakens a speedy\n\ntrial claim because it shows a desire to have no trial instead of a speedy one.” Murphy,\n\n280 S.W.3d at 454; see Fuller, 624 S.W.3d at 866 (holding that appellant’s final assertion\n\nof his right weakened his speedy trial claim because he sought dismissal of the\n\nindictment); Hausauer v. State, No. 04-04-00505-CR, 2005 WL 954376, at *3 (Tex.\n\nApp.—San Antonio Apr. 27, 2005, no pet.) (mem. op., not designated for publication)\n\n(holding that defendant’s “motivation in asking for a dismissal, rather than a prompt\n\ntrial, weighs against him”); see also Stewart v. State, Nos. 05-04-01718-CR, 05-05-00162-\n\nCR, 2005 WL 1607639, at *3 (Tex. App.—Dallas July 11, 2005, no pet.) (not designated\n\n 23\n\ffor publication) (concluding that “appellant’s motion to dismiss rather than [her]\n\ndemand for a speedy trial[—]one month after charges were filed[—]attenuates her claim\n\nand weighs in favor of the State”).\n\n Black’s motion to dismiss came just three weeks after she had been formally\n\ncharged. See Stewart, 2005 WL 1607639, at *3 (discounting appellant’s assertion of\n\nspeedy trial right when appellant filed motion to dismiss one month after she was\n\ncharged). And even while the motion was pending, Black’s only request for a court\n\nproceeding came in the form of a request to have her case set for an announcement\n\nhearing, not a trial.\n\n Ultimately then, Black asserted her right four times, but all four assertions lacked\n\nforce and were attenuated by her motion to dismiss. Thus, Black’s assertions of her\n\nright to a speedy trial are not entitled to strong evidentiary weight.20\n\n\n 20\n Moreover, less than one month after the trial court ruled that Black’s right to a\nspeedy trial had not been violated, she pleaded nolo contendre and was convicted and\nsentenced. This too impairs Black’s claim by questioning her desire to obtain a speedy\ntrial. See Ingram v. State, No. 04-09-00249-CR, 2010 WL 1609696, at *4 (Tex. App.—\nSan Antonio Apr. 21, 2010, no pet.) (mem. op., not designated for publication) (“[T]he\nacceptance of a plea-bargain agreement on the trial date, after the denial of a speedy\ntrial motion, impairs the appellant’s speedy trial claim by demonstrating that his\nmotivation is not a speedy trial, but rather to avoid trial.”); Starks v. State, 266 S.W.3d\n605, 612 (Tex. App.—El Paso Sept. 25, 2008, no pet.) (holding that, although the\nappellant asserted his right, “the factor is substantially weakened by [his] numerous\nrequests for dismissal of the case in his pro se motions and then his ultimate decision to\nplead guilty when his trial arrived”); Hausauer, 2005 WL 954376, at *3 (holding, where\ndefendant was charged with a second DWI, that defendant’s “acceptance of a plea\nbargain agreement at the next trial setting impairs his claim by further demonstrating\nthat his motivation was not to obtain a speedy trial, but rather to avoid a trial”). But\nwe do not consider the substance of Black’s plea because we must review the trial\n\n 24\n\fD. Prejudice\n\n The final Barker factor examines whether and to what extent Black was\n\nprejudiced by the delay. Cantu, 253 S.W.3d at 285. The defendant has the initial burden\n\nto make some showing of prejudice, Munoz, 991 S.W.2d at 826, and if a defendant makes\n\na prima facie showing of prejudice, the burden shifts to the State to prove that the\n\ndefendant “suffered no serious prejudice beyond that which ensued from the ordinary\n\nand inevitable delay.”21 Id. (quoting Ex parte McKenzie, 491 S.W.2d 122, 123 (Tex. Crim.\n\nApp. 1973)).\n\n\n\n\ncourt’s ruling “in light of the arguments, information, and evidence that was available\nto the trial court at the time it ruled.” Dragoo, 96 S.W.3d at 313 (chastising lower court\nfor considering speedy trial arguments not made to trial court); see Gonzales, 435 S.W.3d\nat 809 (noting that “a reviewing court should not consider in its deliberations record\nevidence that was not before the trial court when it made its ruling”).\n 21\n Additionally, “[i]n certain instances, the length of delay may be so excessive that\nit ‘presumptively compromises the reliability of a trial in ways that neither party can\nprove or identify,’” and the “defendant is absolved from the requirement to\ndemonstrate prejudice” because unless the defendant acquiesced in the delay, prejudice\nis presumed. Gonzales, 435 S.W.3d at 812–15 (quoting Shaw, 117 S.W.3d at 890); see\nDoggett, 505 U.S. at 655–56, 112 S. Ct. at 2693. Black does not argue that her 17-month\ndelay was so excessive as to absolve her of the requirement to demonstrate prejudice,\nnor do we find the delay to be so excessive. See Ussery v. State, 596 S.W.3d 277, 290\n(Tex. App.—Houston [1st Dist.] 2019, pet. ref’d) (holding three-and-one-half-year\ndelay partially attributable to new trial judge did not relieve defendant of burden to\nshow prejudice); cf. Gonzales, 435 S.W.3d at 812–15 (discussing relevant federal case law\ninvolving a five-year delay, a delay of more than eight years, and a ten-year delay, then\nconcluding that six-year delay created presumption of prejudice); State v. Wei, 447\nS.W.3d 549, 556–57 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d) (holding that\n51-month delay in DWI case absolved defendant of burden to show prejudice).\n\n\n 25\n\f The prejudice arising from the delay must be analyzed in light of the dangers that\n\nthe speedy trial right was designed to prevent: (1) oppressive pretrial incarceration,\n\n(2) increased anxiety and concern for the accused, and (3) impairment of the accused’s\n\ndefense. Barker, 407 U.S. at 532, 92 S. Ct. at 2193. “The last interest is the most\n\nimportant because the fairness of the entire criminal[ ]justice system is distorted when\n\na defendant is unable to adequately prepare his defense.” Gonzales, 435 S.W.3d at 812.\n\n This “most important” consideration—the impairment of Black’s defense—is\n\nnot implicated in this case. See id. Black does not allege that the delay impaired her\n\ndefense in any way. Nor does Black attempt to address the first danger—oppressive\n\nincarceration. Indeed, she would have had difficulty making such an argument, as she\n\nwas released on bond two days after her arrest.\n\n Black claims, though, that she experienced the second type of prejudice:\n\nincreased anxiety and concern. She complains that the ongoing requirement that she\n\nmaintain an ignition interlock system on her car “became unreasonable and harmful\n\nbecause of the State’s inordinate delay in this case.” Black testified that the cost of\n\nmaintaining an ignition interlock device on her car was between $60 to $100 monthly\n\nand that these fees were a source of financial hardship and personal stress.22 She also\n\ntestified that the ignition interlock system was distressing for her because she suffered\n\n\n 22\n Black had initially paid $100 per month for her interlock system, but she\nsubsequently switched interlock companies, and at the time of the speedy trial hearing,\nshe paid $60 per month.\n\n\n 26\n\ffrom COPD23 and “ha[d] a hard time sometimes breathing long enough for [the ignition\n\ninterlock system or car] to initiate,” requiring her to “do it two or three times” before\n\nher car would start. 24\n\n A financial burden is generally considered some evidence of prejudice. See Cantu,\n\n253 S.W.3d at 286 (referring to the “draining of financial resources” as one of the\n\n“major evils protected against by the speedy trial guarantee” and discussing cases in\n\nwhich the defendant was found to have suffered prejudice based on the evidence of a\n\n“major evil[]”); Flores, 951 S.W.2d at 144 (concluding that the defendant’s “burden of\n\npaying $2000 each year to renew his bond should not be dismissed as insignificant and\n\ndoes establish some prejudice”). And the same is true of pretrial anxiety. Cf. Cantu,\n\n253 S.W.3d at 285–86 (noting that “general anxiety ‘is at least some evidence of the type\n\nof “anxiety” that the Supreme Court considers under the prejudice prong of Barker’”\n\nalthough, standing alone, it “is not sufficient proof of prejudice” (quoting Zamorano, 84\n\nS.W.3d at 654)).\n\n\n\n\n 23\n COPD stands for chronic obstructive pulmonary disease. See, e.g., Boyer v. State,\nNo. 2-09-092-CR, 2010 WL 3432843, at *7 (Tex. App.—Fort Worth Aug. 31, 2010,\npet. ref’d) (per curiam) (mem. op., not designated for publication) (clarifying the\nmeaning of COPD).\n 24\n The trial court’s findings of fact indicate that it found this testimony credible.\nSee Kelly, 163 S.W.3d at 728 (recognizing in speedy trial case that “the trial court is\npermitted to disbelieve evidence”).\n\n\n 27\n\f However, Black primarily focused on prejudice related to the mandated ignition\n\ninterlock device itself, 25 and as the State points out, an ignition interlock system is a\n\nstatutorily required bond condition for repeat DWI offenses.26 Tex. Code Crim. Proc.\n\nAnn. art. 17.441(a). But cf. id. art. 17.441(b) (allowing magistrate to not require ignition\n\ninterlock “if the magistrate finds that to require the device would not be in the best\n\ninterest of justice”). Black’s ignition interlock woes do not demonstrate prejudice\n\nbeyond the level normally associated with a criminal charge of enhanced DWI.\n\n In State v. Page, for example, our sister court of appeals held that the general\n\nanxiety and concern associated with a statutorily required ignition interlock system did\n\nnot demonstrate prejudice for speedy trial purposes. 2020 WL 1899453, at *10. There,\n\nthe defendant claimed that the ignition interlock device caused prejudice because he\n\ncould not valet park his vehicle, drive clients to lunch, or chauffeur his child’s friends.\n\nId. But the Dallas Court of Appeals recognized that “[t]he ignition interlock\n\ndevice . . . is required by statute for DWI repeat offenders,” and it held that “any\n\nanxiety, inconvenience, or embarrassment caused by that device is not beyond that\n\n\n\n 25\n Black testified that her DWI charge had other detrimental impacts as well,\nincluding requiring her to pay $50 per month to Denton County, and requiring her to\ncall her bail bondsman every Friday. The trial court noted portions of Black’s testimony\nin its findings of fact and conclusions of law, indicating that it found such testimony\ncredible. Nonetheless, on appeal, Black solely relies upon the ignition interlock system\nas the source of prejudice.\n 26\n Black acknowledged at her speedy trial hearing that she understood that the\nignition interlock system was a “standard bond condition[].”\n\n 28\n\fwhich would normally be experienced by any defendant on bond for a second DWI\n\noffense.” Id. (citing Tex. Code Crim. Proc. Ann. art. 17.441). Although the defendant\n\ntestified that the interlock device had changed his conduct and forced him to miss\n\nopportunities, there was no evidence that his “work life was impacted to any abnormal\n\nor burdensome degree.” Id.\n\n Similarly here, Black bore an emotional and financial burden by having to\n\nmaintain an ignition interlock system on her car, but there was no evidence that this\n\nburden exceeded that normally experienced by a defendant on bond for a second DWI.\n\nSee Tex. Code Crim. Proc. Ann. art. 17.441(a); Page, 2020 WL 1899453, at *10; cf. State\n\nv. Pena, No. 13-04-585-CR, 2006 WL 2830828, at *4 (Tex. App.—Corpus Christi–\n\nEdinburg Oct. 5, 2006, no pet.) (mem. op., not designated for publication) (holding that\n\nthere was no evidence of prejudice where defendant accused of felony DWI was\n\nrequired to “pay a monthly service fee of around $62.75 for inspection of his ignition\n\ninterlock device”); Hausauer, 2005 WL 954376, at *3–4 (holding that defendant charged\n\nwith a second DWI failed to show prejudice in part because ignition interlock device\n\n“was not ordered by the court as a condition of his bond, but rather was a requirement\n\nimposed by the State of Texas in order for [the defendant] to get his driver’s license\n\nreinstated”). Black did not testify or allege that the ignition interlock system prevented\n\nher from working, that it resulted in the loss of her job, or that it jeopardized her ability\n\n\n\n\n 29\n\fto afford basic necessities or living expenses.27 Although her COPD may have\n\nimpacted her ability to operate the ignition interlock system, Black testified that she had\n\nnever had an instance where she could not start her car, and she clarified that there was\n\nonly “[o]ne time [she] had trouble with it.”\n\n Ultimately, the record demonstrates that Black did not suffer any delay-related\n\nanxiety, burden, or concern that rose beyond the level normally associated with a second\n\nDWI charge. Cf. Sample, 2022 WL 2960241, at *5 (concluding that there was no\n\nsignificant prejudice and noting that “even if a speedier trial had shortened the time the\n\nindecency charge was pending, it would not have avoided all of the negative effects to\n\n[the a]ppellant of being charged with indecency with a child and sexual assault of an\n\nadult”). This factor weighs in favor of the State and against Black. See Page, 2020 WL\n\n1899453, at *10; Pena, 2006 WL 2830828, at *4; Hausauer, 2005 WL 954376, at *3–4.\n\nE. Balancing the Factors\n\n Taken together, the Barker factors do not demonstrate a speedy trial violation.\n\nAlthough the length of the delay and the reason for the delay weigh slightly against the\n\nState, and although Black filed repeated assertions of her right to a speedy trial, Black’s\n\nassertions lacked force, she sought dismissal of her case rather than a trial, the period\n\n\n\n 27\n Regarding her income, Black testified that she received $800 per month in social\nsecurity, that she made $800 per month working for the school system when school\nwas in session, and that she “barter[ed]” with a friend to help him with errands,\nappointments, and chores in exchange for room and board.\n\n\n 30\n\fof delay was not excessively long or deliberately caused, and Black did not suffer serious\n\nprejudice beyond that which she would have ordinarily experienced from a second DWI\n\ncharge. See, e.g., Cantu, 253 S.W.3d at 286–87 (holding no speedy trial violation when\n\npolice department’s negligence caused 16-month delay in charging DWI, trial court\n\ndoubted defendant’s alleged assertions of the right via counsel’s calls to the district\n\nattorney’s office, defendant moved for dismissal rather than trial, and defendant’s\n\nanxiety did not rise to the level of “substantial” prejudice); Ussery, 596 S.W.3d at 291\n\n(holding no speedy trial violation when delay extended more than three years and\n\ndefendant asserted his rights multiple times, but the assertions were “undermined” by\n\nother factors, the State did not deliberately delay, defendant filed dismissal motion, and\n\nthere was no serious prejudice).\n\n The evidence in this case thus supports the trial judge’s ruling; Black was not\n\ndenied her Sixth Amendment right to a speedy trial. See U.S. Const. amends. VI, XIV.\n\nWe overrule Black’s sole issue.\n\n\n\n\n 31\n\f V. Conclusion\n\n Having overruled Black’s sole issue, we affirm the trial court’s judgment. Tex.\n\nR. App. P. 43.2(a).\n\n\n\n /s/ Bonnie Sudderth\n\n Bonnie Sudderth\n Chief Justice\n\nDo Not Publish\nTex. R. App. P. 47.2(b)\n\nDelivered: August 18, 2022\n\n\n\n\n 32\n\f", "ocr": false, "opinion_id": 7802358 } ]

"2022-08-23"

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 6, "download_url": "http://www.courts.state.va.us/opinions/opncavwp/0732212.pdf", "author_id": null, "opinion_text": " VIRGINIA:\n In the Court of Appeals of Virginia on Tuesday the 23rd day of August, 2022.\nPUBLISHED\n\n\n\n\n Stephen James Hood, Petitioner,\n\n against Record No. 0732-21-2\n\n Commonwealth of Virginia, Respondent.\n\n\n Upon a Petition for a Writ of Actual Innocence\n\n Before Judges Humphreys, Causey, and Senior Judge Clements\n\n\n Stephen James Hood petitioned this Court seeking a writ of actual innocence under Chapter 19.3 of\n\n Title 19.2 of the Code of Virginia. In 2002, Hood was convicted in the Circuit Court of the City of Richmond\n\n of being an accessory after the fact to abduction and first-degree murder as a principal in the second degree.\n\n Hood’s convictions, however, were vacated by the circuit court following a successful petition for a writ\n\n of habeas corpus based on a claim of ineffective assistance of counsel. Hood nonetheless now petitions\n\n this Court for a writ of actual innocence declaring him factually innocent of the crimes underlying his\n\n now-vacated 2002 convictions.\n\n Hood’s petition therefore raises, as an issue of first impression, whether this Court has the authority to\n\n consider a petition for a writ of actual innocence for convictions that have been vacated. For the reasons\n\n below, we hold that we do not have subject matter jurisdiction over Hood’s petition and accordingly dismiss\n\n his petition.\n\n BACKGROUND\n\n Trial, Appeal, and Habeas Proceedings\n\n In the early morning hours of August 31, 1990, Ilouise Cooper was abducted from her apartment on\n\n Parkwood Avenue in the city of Richmond. Her body was discovered later that day, and an autopsy\n\fconfirmed that she had suffered several fatal stab wounds. In February 1991, a jury convicted Jeffrey Cox of\n\nburglary, abduction, and first-degree murder.\n\n The FBI, however, had information that strongly suggested that Cox was innocent of the crime and\n\nthat Hood participated in Cooper’s killing. Following further investigation by the FBI, Hood was indicted in\n\n2001 for first-degree murder and abduction, and Cox’s convictions were set aside. As part of plea\n\nnegotiations, Hood and the government agreed that he would provide a “detailed oral proffer” of the crime\n\nand that none of the statements made in the proffer would be used against Hood in the Commonwealth's\n\ncase-in-chief in a criminal prosecution of Hood. Hood stated that he and another man, Billy Madison, were\n\nthe perpetrators of the abduction and killing of Cooper in a case of mistaken identity over being cheated in a\n\ndrug deal. Hood confessed to driving Madison to Cooper’s apartment, giving Madison Hood’s knives which\n\nhe used for his job as a cook, and then taking Madison and Cooper to a secluded area where Madison\n\nmurdered Cooper.\n\n Following a bench trial on April 3 and 4, 2002, the circuit court convicted Hood of abduction as an\n\naccessory after the fact (a lesser-included offense of the felony abduction charge) and first-degree murder as a\n\nprincipal in the second degree. At trial, the Commonwealth used Hood’s proffer in its case-in-chief in what\n\nwould later be found to be a violation of the proffer agreement. By final order entered September 13, 2002,\n\nthe circuit court sentenced Hood to twelve months’ incarceration for the misdemeanor accessory conviction\n\nand sixty-five years’ incarceration for the first-degree murder conviction.\n\n Hood’s convictions were affirmed on appeal by this Court and the Supreme Court of Virginia. Hood\n\nv. Commonwealth, 269 Va. 176 (2005); Hood v. Commonwealth, No. 2469-02-2 (Va. Ct. App. Feb. 17,\n\n2004). On March 24, 2006, Hood filed a state habeas corpus petition in the circuit court challenging his\n\nconvictions on multiple grounds. Hood argued, among other things, that his proffer was false and that his\n\ndefense attorney and the Commonwealth coerced him to enter the immunity agreement with false promises.\n\nHe also asserted that the Commonwealth “breached [the] cooperation/immunity agreement” and that his trial\n\n\n -2-\n\fcounsel rendered ineffective assistance of counsel by failing to object to the introduction of the proffer as\n\nsubstantive evidence in the Commonwealth’s case-in-chief.\n\n On November 10, 2009, the circuit court granted Hood’s petition for a writ of habeas corpus on the\n\ngrounds that trial counsel was ineffective for failing to argue that, under the immunity agreement, the\n\nCommonwealth could not introduce the proffer as substantive evidence in its case-in-chief even if Hood\n\nintroduced contrary evidence. The circuit court set aside the convictions and stated for the record that “the\n\nwrit vacated the convictions in those two file numbers.” Following the Commonwealth’s unsuccessful appeal\n\nof the circuit court’s ruling, the Commonwealth advised the circuit court that it was electing not to retry Hood\n\nfor first-degree murder. Instead, under a written plea agreement, the Commonwealth moved to amend the\n\noriginal indictment to reflect a charge of attempted abduction, employing the same case number as the\n\noriginal charge. Hood agreed to plead guilty to the amended charge under Alford in exchange for an\n\neight-year sentence, which would be satisfied by the time he served during his post-conviction proceedings.\n\nThe circuit court accepted Hood’s plea, and Hood was released from custody.\n\n Hood filed this petition on July 30, 2021, alleging various grounds for his writ. Hood contends that\n\nthe Commonwealth violated his right to exculpatory evidence and other legal deficiencies in his trial. Hood\n\nalso points to statements from witnesses at Cox’s trial and post-conviction proceedings inconsistent with his\n\nguilt. Hood also argues that documents obtained from the FBI via a FOIA request show that there is reason to\n\ndoubt his guilt. Finally, Hood contends that his knives were not subject to scientific testing that he contends\n\nhas since been conducted and exonerates him.\n\n ANALYSIS\n\n Subject Matter Jurisdiction\n\n Before any court can proceed to the adjudication of a given case, it must first determine whether it has\n\nsubject matter jurisdiction over the case. Subject matter jurisdiction “is the authority granted through\n\nconstitution or statute to adjudicate a class of cases or controversies.” Gray v. Binder, 294 Va. 268, 275\n\n\n -3-\n\f(2017) (quoting Morrison v. Bestler, 239 Va. 166, 169 (1990)). This Court’s jurisdiction over petitions for\n\nwrits of actual innocence derives from Code § 19.2-327.10:\n\n Notwithstanding any other provision of law or rule of court, upon a petition of a\n person who was convicted of a felony, or the petition of a person who was\n adjudicated delinquent by a circuit court of an offense that would be a felony if\n committed by an adult, the Court of Appeals shall have the authority to issue\n writs of actual innocence under this chapter. The writ shall lie to the circuit\n court that entered the conviction or the adjudication of delinquency and that\n court shall have the authority to conduct hearings, as provided for in this\n chapter, on such a petition as directed by order from the Court of Appeals.\n\n(Emphasis added). Accordingly, the threshold question for whether this Court has subject matter jurisdiction\n\nover a petition for a writ of actual innocence is whether a person was “convicted of a felony.” See Turner v.\n\nCommonwealth, 282 Va. 227, 239 (2011). To establish subject matter jurisdiction, a petitioner needs to show\n\ntwo things: first, that they were convicted of some crime, and second, that the crime of conviction was a\n\nfelony.\n\n The Commonwealth argues that for a petitioner to show that he “was convicted of a felony” under\n\nCode § 19.2-327.10, he must show that he is subject to a valid, final order of conviction. Hood contends that\n\nthe mere historical fact of his prior conviction is enough to bring his case under this Court’s original\n\njurisdiction, regardless of the current validity of that conviction.\n\n The law entertains the legal fiction that certain orders or legal acts, though they undeniably took place\n\nas a matter of fact, are treated as legal nullities with no effect whatsoever. This legal fiction has been\n\nextended to, among others, void marriages, orders entered when a court lacked personal jurisdiction, and ultra\n\nvires orders entered by courts. Kleinfield v. Veruki, 7 Va. App. 183, 186 (1988) (bigamous marriage);\n\nMcCulley v. Brooks & Co. General Contractors, 295 Va. 583, 589 (2018) (lack of personal jurisdiction);\n\nBurrelll v. Commonwealth, 283 Va. 474, 476 (2012) (ultra vires order).\n\n When a legal act is void or a legal nullity, courts treat that act as if it had never occurred. For\n\nexample, in Nerri v. Adu-Gyamfi, 270 Va. 28 (2005), our Supreme Court considered the legal effect of a\n\nmotion for judgment signed by an attorney whose license to practice law had been administratively\n\n -4-\n\fsuspended. The Court explained that because the attorney did not have an active license, any filing made\n\nduring that time was a legal nullity. See Nerri, 270 Va. at 31. Accordingly, the motion for judgment was\n\n“invalid and had no legal effect.” Id. The Court extended this reasoning to hold that the nonsuit filed by the\n\nplaintiff in the case was similarly without effect because “no valid proceeding was pending which could be\n\nnon-suited.” Id.\n\n There is no clear Virginia case law on whether a vacated conviction is a legal nullity. In Nelson v.\n\nColorado, 137 S. Ct. 1249 (2017), however, the United States Supreme Court held that, as a matter of\n\nconstitutional due process law, a vacated conviction should be treated as a legal nullity. The Court held that\n\nColorado statutes violated due process by requiring defendants whose convictions had been reversed or\n\nvacated to prove their innocence by clear and convincing evidence in order to obtain the refund of costs, fees,\n\nand restitution paid under the invalid conviction. Nelson, 137 S. Ct. at 1253. In that case, the defendant was\n\nconvicted by a Colorado jury of attempting to patronize a prostituted child and attempted third-degree sexual\n\nassault by force. Id. The trial court imposed an indeterminate prison sentence and ordered him to pay costs,\n\nfees, and restitution totaling $4,413.00. Id. The Colorado Supreme Court reversed one of his convictions on\n\ndirect review, and a postconviction court vacated the other. Id. The defendant then sought a refund of the\n\namounts paid under the prior conviction and argued that requiring him to prove his innocence violated his\n\nrights under the Due Process Clause of the Fourteenth Amendment. Id. The Court held that the Due Process\n\nClause required that “once those convictions were erased, the presumption of [the defendant’s] innocence was\n\nrestored.” Id. at 1255. The Court rebuffed Colorado’s argument that the convictions were voidable rather\n\nthan void, citing with approval the state supreme court dissent that “reversal is reversal,” no matter the reason,\n\n“[a]nd an invalid conviction is no conviction at all.” Id. at 1256 n.10 (quoting People v. Nelson, 362 P.3d\n\n1070, 1080 (Colo. 2015) (Hood, J., dissenting)).\n\n This understanding that a vacated judgment is a legal nullity has long been applied by the federal\n\ncourts. For example, in United States v. Ayres, 76 U.S. (9 Wall.) 608, 610 (1869), the Court noted that “it is\n\nquite clear, that the order granting the new trial has the effect of vacating the former judgment, and to render\n -5-\n\fit null and void, and the parties are left in the same situation as if no trial had ever taken place in the cause.”\n\nSee also Nara v. Frank, 488 F.3d 187, 201 (3d Cir. 2007); Weyant v. Okst, 101 F.3d 845, 854 (2d Cir. 1996);\n\nMiller v. United States, 173 F.2d 922, 923-24 (6th Cir. 1949).\n\n We see no reason to depart from this line of reasoning. Although it is a historical fact that Hood was\n\nconvicted of murder in 2002, the writ of habeas corpus vacated that conviction, and therefore, as a matter of\n\nlaw, Hood’s conviction was a legal nullity and “no conviction at all.” Nelson, 137 S. Ct. at 1256 n.10\n\n(quoting 362 P.3d at 1080)). Virginia law is clear that legal nullities should be treated as though they never\n\noccurred. See Nerri, 270 Va. at 31. Hood’s vacated convictions are legal nullities, and Hood was therefore\n\nnot “convicted of a felony” under Code § 19.2-327.10. We therefore do not have subject matter jurisdiction\n\nto adjudicate Hood’s petition for a writ of actual innocence.1\n\n CONCLUSION\n\n Because we lack the subject matter jurisdiction to adjudicate Hood’s petition for a writ of actual\n\ninnocence, we dismiss his petition.\n\n This order shall be published.\n\n A Copy,\n\n Teste:\n\n A. John Vollino, Clerk\n\n original order signed by a deputy clerk of the\n By: Court of Appeals of Virginia at the direction\n of the Court\n\n Deputy Clerk\n\n\n\n\n 1\n We note that this Court lacks jurisdiction over Hood’s petition as it relates to his accessory after the\nfact conviction for a second reason. This Court can only adjudicate petitions for writs of actual innocence\nwhere the crime of conviction is a felony. On the date of Hood’s conviction, Code § 18.2-19 established that\nthe crime of being an accessory after the fact to abduction was punished as a misdemeanor. As a result, we\nare also without subject matter jurisdiction to consider Hood’s petition as it relates to his accessory after the\nfact conviction.\n -6-\n\f", "ocr": false, "opinion_id": 7802767 } ]

"2022-08-24"

[ "2022 NY Slip Op 05046" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://www.courts.state.ny.us/reporter/3dseries/2022/2022_05046.htm", "author_id": null, "opinion_text": "\n\nPeople v Simon-Roberson (2022 NY Slip Op 05046)\n\n\n\n\n\nPeople v Simon-Roberson\n\n\n2022 NY Slip Op 05046\n\n\nDecided on August 24, 2022\n\n\nAppellate Division, Second Department\n\n\n\nPublished by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.\n\n\nThis opinion is uncorrected and subject to revision before publication in the Official Reports.\n\n\n\nDecided on August 24, 2022\nSUPREME COURT OF THE STATE OF NEW YORK\nAppellate Division, Second Judicial Department\n\nFRANCESCA E. CONNOLLY, J.P.\nREINALDO E. RIVERA\nDEBORAH A. DOWLING\nHELEN VOUTSINAS, JJ.\n\n\n2018-05153\n (Ind. No. 8885/15)\n\n[*1]The People of the State of New York, respondent,\nvTyshawn Simon-Roberson, appellant.\n\n\nPatricia Pazner, New York, NY (Hannah Kon of counsel), for appellant.\nEric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Jordan Cerruti of counsel), for respondent.\n\n\n\nDECISION &amp; ORDER\nAppeal by the defendant from a judgment of the Supreme Court, Kings County (Vincent M. Del Guidice, J.), rendered February 13, 2018, convicting him of manslaughter in the first degree, attempted assault in the first degree, and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress a certain statement he made to law enforcement officials.\nORDERED that the judgment is affirmed.\nThe defendant was convicted, after a jury trial, of manslaughter in the first degree (Penal Law § 125.20[1]), attempted assault in the first degree (id. §§ 110.00, 120.10[1]), and criminal possession of a weapon in the second degree (id. § 265.03[3]), in connection with an incident involving two rival gangs that occurred on October 26, 2015, on a crowded street in Brooklyn. During the incident, one victim was fatally shot. A second victim was shot in the leg and survived.\nThe Supreme Court properly denied that branch of the defendant's omnibus motion which was to suppress a statement made by the defendant to a detective while the defendant was being fingerprinted during the booking process. The subject statement was spontaneous and was not \"triggered by any police questioning or other conduct which reasonably could have been expected to elicit a declaration from him\" (People v South, 200 AD3d 812, 813 [internal quotation marks omitted]; see People v Goldson, 136 AD3d 1053, 1054; People v Barley, 82 AD3d 996, 996).\nViewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620), we find it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt (see People v Bazile, 199 AD3d 823, 824). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v Danielson, 9 NY3d 342, 348), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383; People v Bleakley, 69 NY2d 490, 495). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, [*2]7 NY3d 633).\nThe defendant's remaining contentions either are without merit or do not require reversal.\nCONNOLLY, J.P., RIVERA, DOWLING and VOUTSINAS, JJ., concur.\nENTER:\nMaria T. Fasulo\nClerk of the Court\n\n\n\n\n\n\n\n\n", "ocr": false, "opinion_id": 7803297 } ]

"2022-08-24"

[ "2022 NY Slip Op 05016" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://www.courts.state.ny.us/reporter/3dseries/2022/2022_05016.htm", "author_id": null, "opinion_text": "\n\nChristopulos v Christopulos (2022 NY Slip Op 05016)\n\n\n\n\n\nChristopulos v Christopulos\n\n\n2022 NY Slip Op 05016\n\n\nDecided on August 24, 2022\n\n\nAppellate Division, Second Department\n\n\n\nPublished by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.\n\n\nThis opinion is uncorrected and subject to revision before publication in the Official Reports.\n\n\n\nDecided on August 24, 2022\nSUPREME COURT OF THE STATE OF NEW YORK\nAppellate Division, Second Judicial Department\n\nMARK C. DILLON, J.P.\nFRANCESCA E. CONNOLLY\nSHERI S. ROMAN\nJOSEPH J. MALTESE, JJ.\n\n\n2020-02288\n (Index No. 705015/14)\n\n[*1]Gregory Christopulos, respondent, \nvKatherine Christopulos, etc., et al., defendants, Nicholas Spyreas, appellant.\n\n\nNicholas Spyreas, Greenwich, Connecticut, appellant pro se.\nThe Dweck Law Firm, LLP, New York, NY (Jack S. Dweck of counsel), for respondent.\n\n\n\nDECISION &amp; ORDER\nIn an action, inter alia, for an accounting and to cancel a notice of mechanic's lien, the defendant Nicholas Spyreas appeals from an order of the Supreme Court, Queens County (Frederick D.R. Sampson, J.), dated January 15, 2020. The order denied, as academic, the motion of the defendant Nicholas Spyreas \"to request Court to accept release and satisfaction of lien.\"\nORDERED that the order is affirmed, with costs.\nThe Supreme Court properly denied, as academic, the motion of the defendant Nicholas Spyreas \"to request Court to accept release and satisfaction of lien,\" since it sought relief which had already been granted in a prior order of the same court entered September 30, 2019 (see Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714; see also Christopulos v Christopulos, _____ AD3d _____ [Appellate Division Docket No. 2021-06093; decided herewith]).\nAt this juncture, we decline the plaintiff's request to impose a sanction against Spyreas for prosecuting this allegedly frivolous appeal (see 22 NYCRR 130-1.1). There are, however, more than a dozen additional appeals Spyreas has taken from papers in this action that are currently pending before this Court. Spyreas is therefore warned that future submissions to this Court that qualify as frivolous conduct may result in the imposition of sanctions against him pursuant to 22 NYCRR 130-1.1 (see Matter of Ram v Estate of Hershowitz, 149 AD3d 959, 960; Webb v Greater N.Y. Auto. Dealers Assn., Inc, 144 AD3d 1134, 1135).\nDILLON, J.P., CONNOLLY, ROMAN and MALTESE, JJ., concur.\nENTER:\nMaria T. Fasulo\nClerk of the Court\n\n\n\n\n\n\n\n\n", "ocr": false, "opinion_id": 7803327 } ]

"2022-08-25"

[ "2022 IL App (1st) 220150" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 24, "download_url": "https://www.illinoiscourts.gov/resources/97fbc551-86dc-46b3-8977-6f266229fde5/file", "author_id": null, "opinion_text": " 2022 IL App (1st) 220150\n Opinion filed: August 25, 2022\n FIRST DISTRICT\n FOURTH DIVISION\n\nNo. 1-22-0150\n\n\nLARRY OLLINS, OMAR MUHAMMAD, ) Appeal from the\nCALVIN OLLINS, and MARCELLIA ) Circuit Court of\nBRADFORD, ) Cook County.\n )\n Plaintiffs-Appellants, )\n )\nv. ) No. 2020 L 003676\n )\nPETER KARL; AMAZON.COM, INC.; and )\nTELEMACHUS PRESS, LLC, )\n )\n Defendants, ) Honorable\n ) John H. Ehrlich,\n(Peter Karl, Defendant-Appellee). ) Judge, presiding.\n\n\n JUSTICE ROCHFORD delivered the judgment of the court, with opinion.\n Presiding Justice Reyes and Justice Lampkin concurred in the judgment and opinion.\n\n OPINION\n\n¶1 Plaintiffs, Larry Ollins, Omar Muhammad, Calvin Ollins, and Marcellia Bradford, brought\n\na five-count complaint against defendants, Peter Karl, Amazon.com, Inc. (Amazon), and\n\nTelemachus Press, LLC, alleging defamation, false light invasion of privacy, public disclosure of\n\nprivate facts, appropriation of another’s name or likeness, and intrusion upon seclusion. The circuit\n\ncourt granted defendant-appellee (defendant) Karl’s motion to dismiss the complaint against him\n\nwith prejudice pursuant to Illinois Supreme Court Rule 103(b) (eff. July 1, 2007) for plaintiffs’\n\nfailure to exercise reasonable diligence to obtain service of process. The court made a finding\n\npursuant to Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016) that there was no just reason\n\nfor delaying either enforcement or appeal of the dismissal order.\n\n¶2 On appeal, plaintiffs argue that the circuit court abused its discretion in finding that they\n\nfailed to exercise reasonable diligence in serving defendant under Rule 103(b). Plaintiffs further\n\fNo. 1-22-0150\n\nargue that, under Rule 103(b), the complaint could be dismissed “with prejudice” only if the circuit\n\ncourt found that their failure to exercise reasonable diligence in serving defendant occurred after\n\nthe expiration of the applicable statute of limitations and prejudiced him; however, the circuit court\n\nhere made inconsistent findings regarding when the limitations period had expired and whether\n\nplaintiffs’ failure to exercise reasonable diligence in serving defendant occurred before or after the\n\nexpiration of the limitations period. The circuit court made no finding that defendant was\n\nprejudiced by plaintiffs’ failure to exercise reasonable diligence in serving him. We affirm the\n\ncircuit court’s finding that plaintiffs failed to exercise reasonable diligence under Rule 103(b) in\n\nserving defendant. We reverse the dismissal order and remand for the court to clarify its findings\n\nregarding whether plaintiffs’ failure to exercise reasonable diligence in serving defendant occurred\n\nbefore or after the expiration of the limitations period and whether defendant was prejudiced\n\nthereby.\n\n¶3 Plaintiffs filed their complaint on March 27, 2020. In count I for defamation, plaintiffs\n\nalleged that they were convicted and sentenced for the murder and rape of Lori Roscetti, which\n\noccurred on October 18, 1997. Subsequent to their conviction, plaintiffs hired a new attorney to\n\nprove their innocence. Multiple DNA tests were conducted establishing that the two DNA profiles\n\nfound on Roscetti did not belong to plaintiffs and instead matched two different individuals, Duane\n\nRoach and Eddie Harris. Roach and Harris were arrested, and they each pleaded guilty to the rape\n\nand murder of Roscetti. Plaintiffs’ convictions were vacated in 2001, and they were released from\n\nprison. Governor Ryan pardoned plaintiffs in 2002. Plaintiffs filed a civil rights action based on\n\nthe wrongful conviction, which was settled for several million dollars.\n\n¶4 Defendant subsequently wrote a book titled “On the Night of a Blood Moon: A Peter\n\nMichaels Thriller” that was published on March 29, 2019, in the form of an audio book, paper\n\n -2-\n\fNo. 1-22-0150\n\nbook, and digital book and sold on Amazon. In the book, defendant wrote that while Roach and\n\nHarris raped, robbed, and injured Roscetti, plaintiffs actually killed her. The book further contained\n\nplaintiffs’ juvenile criminal histories, adjudications, and sentences, all of which were private and\n\nconfidential under the Juvenile Court Act of 1987 (705 ILCS 405/1-7 (West 2020)).\n\n¶5 Plaintiffs alleged in count I that the book is defamatory, as they did not kill Roscetti.\n\nPlaintiffs requested an award of compensatory damages and that the distribution of the book be\n\nstopped.\n\n¶6 In count II for false light invasion of privacy, plaintiffs alleged that while acting with actual\n\nmalice, defendant placed them in a false light by falsely accusing them of murdering Roscetti. The\n\nfalse light in which plaintiffs were placed would be highly offensive to a reasonable person.\n\n¶7 In count III for public disclosure of private facts, plaintiffs alleged that defendant gave\n\npublicity to plaintiffs’ private facts when he published their juvenile criminal histories, sentences,\n\nand adjudications.\n\n¶8 In count IV for appropriation of another’s name or likeness, plaintiffs alleged that\n\ndefendant appropriated their name and likeness within his book without their consent and for the\n\ncommercial benefit of selling his book.\n\n¶9 In count V for intrusion upon seclusion, plaintiffs alleged that, without authorization,\n\ndefendant intruded upon and gained access to their private juvenile criminal records and published\n\nthem. Such an intrusion was highly offensive to a reasonable person and caused plaintiffs anguish\n\nand suffering.\n\n¶ 10 Subsequent to the filing of the complaint, plaintiffs requested on August 27, 2020, that the\n\ncircuit court clerk issue summons to defendant at his address in Marco Island, Florida. The clerk\n\n\n\n -3-\n\fNo. 1-22-0150\n\nissued the summons, leaving the date of service blank, to be filled in when the officer served\n\ndefendant. However, plaintiffs did not effectuate service of the summons on defendant.\n\n¶ 11 Instead, on August 31, 2020, plaintiffs prepared a request for waiver of service (the waiver\n\nrequest) pursuant to section 2-213(a) of the Code of Civil Procedure (Code) (735 ILCS 5/2-213(a)\n\n(West 2020)) and delivered it to defendant by three-day priority mail. 1 Section 2-213(a) provides\n\nthat a plaintiff may notify a defendant of the commencement of an action and request that he waive\n\nservice of a summons. The notice and waiver request shall be addressed and “dispatched” to the\n\ndefendant “through first class U.S. mail or other equally reliable means”; contain a copy of the\n\ncomplaint; inform the defendant of the consequences of compliance and noncompliance with the\n\nrequest to waive service; allow the defendant “a reasonable time to return the waiver, which shall\n\nbe at least *** 30 days from the date on which the request is sent”; and provide the defendant with\n\nan extra copy of the notice and request and prepaid means of compliance in writing. Id. Section 2-\n\n213(e) provides that if the defendant does not timely return the waiver of service, “plaintiff must\n\nserve summons on that defendant as otherwise provided by this Code and Supreme Court rules.”\n\nId. § 2-213(e).\n\n¶ 12 Defendant here did not complete and return the waiver within 30 days.\n\n¶ 13 On February 23, 2021, plaintiffs obtained an alias summons and engaged a private\n\ndetective who served the complaint on defendant at his Marco Island, Florida, address on March\n\n2, 2021. Defendant’s counsel entered an appearance on March 26, 2021, and sought a 45-day\n\n\n\n\n 1\n The record on appeal contains the United States Postal Service priority mailing label and tracking\nnumber, as well as a notification of delivery status from the United States Postal Service, showing that a\npriority mail package from plaintiffs’ attorney was delivered to defendant at his Marco Island, Florida,\naddress on September 8, 2020.\n\n -4-\n\fNo. 1-22-0150\n\nextension of time to file his responsive pleading to plaintiffs’ complaint. The circuit court granted\n\nthe extension request.\n\n¶ 14 On May 17, 2021, defendant filed two motions. First, at 3:29 p.m. he filed a motion to\n\ndismiss pursuant to section 2-619(a)(5) of the Code (id. § 2-619(a)(5)). Seven minutes later, at\n\n3:36 p.m., he filed a motion to dismiss pursuant to Rule 103(b).\n\n¶ 15 In his section 2-619(a)(5) motion, defendant argued that the statute of limitations for a\n\nclaim of defamation and/or publication of matters violating the right of privacy is one year. See id.\n\n§ 13-201; Ciolino v. Simon, 2020 IL App (1st) 190181, ¶ 42; Webb v. CBS Broadcasting, Inc., 08\n\nC 6241, 2009 WL 1285836, at *3 (N.D. Ill. May 7, 2009). Generally, in defamation cases, “the\n\ncause of action accrues, and the statute of limitation begins to run, on the date the allegedly\n\ndefamatory statement is published.” Ciolino, 2020 IL App (1st) 190181, ¶ 42. Defendant argued\n\nthat his book was published on March 20, 2019, meaning that the limitations period expired on\n\nMarch 20, 2020. Plaintiffs’ complaint was not filed until March 27, 2020, one week after the\n\nlimitations period had expired.\n\n¶ 16 Defendant argued that the Uniform Single Publication Act (740 ILCS 165/1 (West 2020))\n\napplies here. The Uniform Single Publication Act states the rule that “[n]o person shall have more\n\nthan one cause of action for damages for libel or slander or invasion of privacy or any other tort\n\nfounded upon any single publication or exhibition or utterance, such as any one edition of a\n\nnewspaper or book or magazine ***.” Id. Pursuant to this rule:\n\n “defamation and privacy actions are ‘complete at the time of the first publication, and any\n\n subsequent appearances or distributions of copies of the original publication are of no\n\n consequence to the creation or existence of a cause of action, but are only relevant in\n\n computing damages.’ *** [Citation.] The subsequent distribution of existing copies of an\n\n -5-\n\fNo. 1-22-0150\n\n original publication neither creates a new cause of action nor tolls the applicable statute of\n\n limitations.” (Emphasis in original.) Blair v. Nevada Landing Partnership, RBG, LP, 369\n\n Ill. App. 3d 318, 324-25 (2006).\n\n¶ 17 However, a republication can constitute a new cause of action if the publication is altered\n\nto reach a new audience or promote a different product. Id. at 325.\n\n¶ 18 Defendant argued that the publication of his book in various mediums, such as hard cover,\n\nsoft cover, digital, and audiobook, was not a republication that avoided the single-publication rule\n\nand retriggered the one-year statute of limitations but merely constituted delayed circulation of the\n\noriginal edition and did not create a new cause of action nor toll the limitations period.\n\n¶ 19 Finally, defendant argued that the discovery rule did not apply to toll the limitations period.\n\n“Under the single-publication rule, generally, the cause of action accrues and the period of\n\nlimitations commences regardless of when the plaintiff secured a copy or became aware of the\n\npublication.” (Emphasis in original.) Id. at 326. “Indeed, the discovery rule is inapplicable in light\n\nof the single-publication rule unless the publication was hidden, inherently undiscoverable, or\n\ninherently unknowable.” Id.\n\n¶ 20 Defendant asserted that the book’s publication was in no way hidden but was available on\n\nor around March 20, 2019, at Amazon and Barnes and Noble, “platforms that each incontrovertibly\n\nallows easy public access.” As such, the discovery rule was inapplicable and therefore the\n\nlimitations period began on the date of publication and ended one year later, before the complaint\n\nwas filed.\n\n¶ 21 Plaintiffs filed a response arguing that the single-publication rule did not apply here\n\nbecause defendant’s book was republished on March 29, 2019, in a Kindle edition and on\n\nSeptember 24, 2019, in an audio book in an effort to reach new and different audiences through\n\n -6-\n\fNo. 1-22-0150\n\ndifferent mediums than the original publication. Plaintiffs also argued that the book was not made\n\nwidely available to the general public and that they did not discover the book until after June 2019,\n\nwhen defendant gave an interview to WGN promoting it. Plaintiffs asserted that the limitations\n\nperiod was tolled until the date of discovery, rendering the complaint timely filed.\n\n¶ 22 On August 31, 2021, the circuit court denied defendant’s section 2-619(a)(5) motion to\n\ndismiss, stating: “There exist questions of fact as to when the plaintiffs first learned of the\n\npublication, the publication’s scope, and whether subsequent publications in other formats\n\nconstitute republishing outside the single-publication rule.”\n\n¶ 23 In his Rule 103(b) motion, defendant argued that after filing their complaint on March 27,\n\n2020, plaintiffs delayed almost an entire year before effecting service on him on March 2, 2021.\n\nPlaintiffs thereby failed to exercise reasonable diligence in obtaining service on defendant in\n\nviolation of Rule 103(b), which states:\n\n “If the plaintiff fails to exercise reasonable diligence to obtain service on a defendant prior\n\n to the expiration of the applicable statute of limitations, the action as to that defendant may\n\n be dismissed without prejudice. If the failure to exercise reasonable diligence to obtain\n\n service on a defendant occurs after the expiration of the applicable statute of limitations,\n\n the dismissal shall be with prejudice as to that defendant ***.” Ill. S. Ct. R. 103(b) (eff.\n\n July 1, 2007).\n\n¶ 24 Defendant argued that plaintiffs did not serve him with the complaint until after the one-\n\nyear limitations had expired on March 20, 2020, thereby necessitating dismissal with prejudice.\n\nPlaintiffs filed a response arguing that by failing to respond to the waiver of service request,\n\ndefendant was estopped from asserting plaintiffs’ lack of diligence in serving him; defendant\n\nwaived his Rule 103(b) objections by actively participating in the defense of the action on its\n\n -7-\n\fNo. 1-22-0150\n\nmerits; plaintiffs exercised reasonable diligence to obtain service; and the cause should not be\n\ndismissed “with prejudice” because questions of fact exist regarding when the limitations period\n\nexpired and because the delay in serving defendant did not prejudice him by denying him the fair\n\nopportunity to investigate the circumstances upon which liability was predicated.\n\n¶ 25 On September 2, 2021, the circuit court granted defendant’s Rule 103(b) motion, stating in\n\nthe dismissal order that “[g]iven the unreasonable delay in serving the defendant, the defendant’s\n\nmotion to dismiss must be granted with prejudice.” 2 The order contained no discussion of whether\n\nplaintiffs’ failure to exercise reasonable diligence in serving defendant occurred before or after the\n\nlimitations period expired or whether defendant was prejudiced thereby. Plaintiffs filed a motion\n\nto reconsider, which the circuit court denied on December 30, 2021. Plaintiffs appeal the Rule\n\n103(b) dismissal with prejudice of their complaint against defendant.\n\n¶ 26 First, plaintiffs argue that defendant waived any objections under Rule 103(b) by\n\nparticipating in the case prior to filing the Rule 103(b) motion, specifically, by appearing and filing\n\nfor an extension of time to respond to the complaint and by filing a section 2-619(a)(5) motion to\n\ndismiss based on the statute of limitations. In support of their argument that defendant waived his\n\nRule 103(b) objection by first appearing and filing the motion for an extension of time and the\n\nsection 2-619(a)(5) dismissal motion, plaintiffs cite Lovell v. Hastings, 11 Ill. App. 3d 221 (1973).\n\nIn Lovell, the defendant delayed four months after filing his appearance before filing a motion to\n\ndismiss under Rule 103(b). Id. at 223. During this time, the defendant filed answers to\n\ninterrogatories and took a deposition. Id. We held that the four-month delay in filing the dismissal\n\n\n\n\n 2\n The dismissal order was made on the parties’ briefings; no hearing was held.\n\n -8-\n\fNo. 1-22-0150\n\nmotion after his appearance, coupled with his active participation in discovery for the purpose of\n\ndefending the case on the merits, constituted a waiver of the Rule 103(b) objection. Id.\n\n¶ 27 Subsequent to Lovell, we have held that a Rule 103(b) motion is not the equivalent of a\n\nmotion for dismissal for lack of jurisdiction; rather, defendant invokes the court’s jurisdiction by\n\nrequesting that plaintiffs’ claims be dismissed under Rule 103(b). Schusterman v. Northwestern\n\nMedical Faculty Foundation, 195 Ill. App. 3d 632, 636 (1990). Therefore a defendant’s filing of\n\na general appearance does not constitute a waiver of the right to raise a defense under Rule 103(b).\n\nId. at 637. Under Lovell, then, it was not the defendant’s appearance that constituted a waiver of\n\nhis Rule 103(b) objection but, rather, his four-month delay in filing the objection coupled with his\n\nactive participation in discovery for the purpose of defending the case on the merits.\n\n¶ 28 In contrast to Lovell, defendant here did not wait four months before filing his Rule 103(b)\n\nmotion but instead filed it less than two months after filing his appearance. 3 On the same day that\n\nhe filed his Rule 103(b) motion, defendant also filed a section 2-619(a)(5) motion to dismiss.\n\nPlaintiffs contend that defendant actively participated in the defense of the action on its merits by\n\nfiling the section 2-619(a)(5) motion to dismiss, thereby waiving his Rule 103(b) motion as in\n\nLovell. However, Lovell did not involve the filings of a section 2-619(a)(5) motion and a Rule\n\n103(b) motion, and we note that, in other cases, such motions have been filed at the same time\n\nwithout any finding of a waiver. See People v. Ramones, 2016 IL App (3d) 140877, ¶ 7; Kelly v.\n\nMazzie, 207 Ill. App. 3d 251, 252 (1990).\n\n\n\n\n 3\n Plaintiffs argue that after his appearance in this case, defendant waited four months before filing\nhis Rule 103(b) motion. The record indicates otherwise. Defendant appeared through counsel on March 26,\n2021, and filed his Rule 103(b) motion less than two months later on May 17, 2021.\n\n -9-\n\fNo. 1-22-0150\n\n¶ 29 Further, unlike Lovell, defendant participated in no discovery for the purpose of preparing\n\na defense on the merits; he filed no answers to any interrogatories and took no depositions.\n\nDefendant’s filing of a request for the extension of time to respond to plaintiffs’ complaint and his\n\nfiling of a section 2-619(a)(5) motion on the same day as the filing of the Rule 103(b) motion fall\n\nfar short of the Lovell state of involvement. Given defendant’s short delay in filing the Rule 103(b)\n\nmotion and his minimal participation in the litigation as compared to Lovell, we find no waiver\n\nhere. See, e.g., Muskat v. Sternberg, 211 Ill. App. 3d 1052, 1057-58 (1991) (finding that defendants\n\ndid not waive their Rule 103(b) objection by filing an appearance, an answer to the complaint,\n\ninterrogatories, and a request for production where they never required the plaintiff to answer the\n\ninterrogatories or respond to the production request, and they never answered any interrogatories\n\nnor noticed or participated in any depositions); Semersky v. West, 166 Ill. App. 3d 637, 642 (1988)\n\n(finding that defendants did not waive their Rule 103(b) objection by an agreed stipulation to\n\nextend the time for filing an answer and moving for a change of venue, where no discovery ever\n\nwas undertaken).\n\n¶ 30 Next, plaintiffs argue that defendant’s failure to timely respond to their section 2-213(a)\n\nrequest for waiver of service somehow estopped him from later filing his Rule 103(b) objection.\n\nIn support, plaintiffs cite only Parker v. Piskur, 258 Ill. App. 3d 344 (1994), which is factually\n\ninapposite as it did not involve a section 2-213(a) waiver request and thus never even considered\n\nwhether a defendant’s failure to timely respond to such a request estops him from filing a Rule\n\n103(b) objection. Plaintiffs have forfeited review of their estoppel argument by failing to cite any\n\nrelevant authority in support thereof. See Illinois Supreme Court Rule 341(h)(7) (eff. Oct. 1, 2020).\n\n¶ 31 Next, plaintiffs argue that the circuit court denied them procedural due process by failing\n\nto “conduct an inquiry or otherwise address” their waiver and estoppel arguments made in response\n\n - 10 -\n\fNo. 1-22-0150\n\nto defendant’s Rule 103(b) motion to dismiss. Plaintiffs’ contention is without merit. Procedural\n\ndue process claims concern the constitutionality of the specific procedures employed to deny a\n\nperson’s life, liberty, or property interest. Tri-G, Inc. v. Burke, Bosselman & Weaver, 222 Ill. 2d\n\n218, 244 (2006). Fundamentally, procedural due process requires an opportunity to be heard at a\n\nmeaningful time and in a meaningful manner. Mathews v. Eldridge, 424 U.S. 319, 333 (1976).\n\nProcedural due process requirements are met “by having an orderly proceeding wherein a person\n\nis served with notice, actual or constructive, and has an opportunity to be heard and to enforce and\n\nprotect his rights.” Tri-G, 222 Ill. 2d at 244. In the instant case, plaintiffs had notice of defendant’s\n\nRule 103(b) motion to dismiss and were given the opportunity to brief their response, including\n\ntheir waiver and estoppel arguments. Following the dismissal order, plaintiffs also were given the\n\nopportunity to brief their motion to reconsider. This is all that procedural due process requires. See\n\nid. As plaintiffs were given notice and an opportunity to be heard at a meaningful time and in a\n\nmeaningful manner, no procedural due process violation occurred here.\n\n¶ 32 Plaintiffs’ argument amounts to nothing more than a contention that they were denied\n\nprocedural due process because defendant waived and/or was estopped from raising the Rule\n\n103(b) objections and therefore that the circuit court’s granting of the dismissal motion was\n\nerroneous. As discussed earlier in this opinion, plaintiffs’ waiver and estoppel arguments are\n\nwithout merit. Regardless, “procedural due process is not a guaranty against erroneous or unjust\n\ndecisions, or the incorrect interpretation of statutes or rules of law. Neither an abuse of discretion\n\nnor an erroneous rule of law will support a reversal for a deprivation of procedural due process.”\n\nId. at 246.\n\n¶ 33 Next, plaintiffs argue that the circuit court erred in finding that they did not exercise\n\nreasonable diligence under Rule 103(b) in serving defendant. The purpose of Rule 103(b)’s\n\n - 11 -\n\fNo. 1-22-0150\n\nrequirement that the plaintiff exercise reasonable diligence in obtaining service on the defendant\n\nis\n\n “ ‘to protect a defendant from unnecessary delay in the service of process and to prevent\n\n the plaintiff from circumventing the applicable statute of limitations, which is designed to\n\n afford the defendant a fair opportunity of investigation, by filing suit before the expiration\n\n of the limitations period but taking no action to have the defendant[ ] served until the\n\n plaintiff is ready to proceed with the litigation.’ ” Mular v. Ingram, 2015 IL App (1st)\n\n 142439, ¶ 20 (quoting Kole v. Brubaker, 325 Ill. App. 3d 944, 949 (2001)).\n\n¶ 34 Rule 103(b) does not dictate a specific time within which the plaintiff must serve the\n\ndefendant, and the circuit court is vested with broad discretion in determining whether the plaintiff\n\nhas exercised reasonable diligence. Id. We will not disturb the circuit court’s judgment absent an\n\nabuse of that discretion. Id.\n\n¶ 35 In moving for dismissal under Rule 103(b), the defendant initially must make a prima facie\n\nshowing that the plaintiff failed to exercise reasonable diligence in effectuating service after filing\n\nthe complaint. Emrikson v. Morfin, 2012 IL App (1st) 111687, ¶ 17. Once the defendant establishes\n\nthat the time between the filing of the complaint and the date of service suggests a lack of diligence,\n\nthe burden shifts to the plaintiff to provide a satisfactory explanation for the delay in service. Id.\n\n“The standard under the rule is objective and the fact that the delay in effecting service may not\n\nhave been intentional is not determinative.” Mular, 2015 IL App (1st) 142439, ¶ 21. Still,\n\n “[d]ismissal of a cause with prejudice under Rule 103(b) is a harsh penalty which\n\n is justified when the delay in service of process is of a length which denies a defendant a\n\n ‘fair opportunity to investigate the circumstances upon which liability against [the\n\n defendant] is predicated while the facts are accessible.’ ” Segal v. Sacco, 136 Ill. 2d 282,\n\n - 12 -\n\fNo. 1-22-0150\n\n 288 (1990) (quoting Geneva Construction Co. v. Martin Transfer & Storage Co., 4 Ill. 2d\n\n 273, 289-90 (1954)).\n\n¶ 36 Plaintiffs contend that the dismissal order was inappropriate here because defendant did\n\nnot make a prima facie showing that they failed to exercise reasonable diligence in serving him.\n\nPlaintiffs’ contention is without merit, as we have held that a delay of four to five months between\n\nthe filing of the complaint and subsequent service is sufficient to establish a prima facie showing\n\nof failing to diligently effect service. See Wilder Chiropractic, Inc. v. State Farm Fire & Casualty\n\nCo., 2014 IL App (2d) 130781, ¶ 82; Verploegh v. Gagliano, 396 Ill. App. 3d 1041, 1045 (2009).\n\nHere, plaintiffs delayed almost one year (from March 27, 2020, to March 2, 2021) in effecting\n\nservice of summons on defendant.\n\n¶ 37 Plaintiffs argue, though, that in determining whether a prima facie case was made, we may\n\nconsider any “unusual circumstances” that would have “prevented or otherwise hindered plaintiff’s\n\nability to serve defendants.” Kole, 325 Ill. App. 3d at 949. Plaintiffs contend that in the instant\n\ncase, the COVID-19 pandemic temporarily interrupted their ability to serve defendant with process\n\nand is just such an unusual circumstance excusing the delay here. In support, plaintiffs cite their\n\nattorney Ilia Usharovich’s affidavit, in which he stated that at the time he filed plaintiffs’ complaint\n\non March 27, 2020, “the entire court system across the country was [affected] by COVID and not\n\nfully operational”; plaintiffs’ complaint was considered a nonessential court matter; due to the\n\nCOVID-19 outbreak, the Office of the Sheriff of Cook County began prioritizing service in\n\n“essential” cases, yielding delays in “non-essential” cases; in response, on March 25, 2020, the\n\nLaw Division Motion Section established temporary procedures for presenting motions for\n\nappointment of special process servers, allowing such motions to be heard by emergency motion\n\njudges; counsel believed that he was not going to be able to obtain a private process server who\n\n - 13 -\n\fNo. 1-22-0150\n\nwould be willing to breach social distancing protocols in order to serve defendant on a nonessential\n\nmatter; and counsel issued the request for waiver of service “in that it was the safest way to proceed\n\nin the matter.”\n\n¶ 38 The circuit court considered plaintiffs’ argument that the unusual circumstance of the\n\npandemic excused the delay in the service of process. The court found that while a two-month\n\ndelay was excusable in the early days of the pandemic, defendant had made a prima facie showing\n\nthat there was no good excuse for waiting five months from the initial filing date of March 27,\n\n2020, to seeking the issuance of the first summons on August 27, 2020, and then mailing a request\n\nfor waiver of service on August 31. Defendant also had made a prima facie showing that there was\n\nno good excuse for plaintiffs to wait an additional five months after he failed to answer the waiver\n\nbefore obtaining an alias summons and serving it on him on March 2, 2021.\n\n¶ 39 Thus, when considering whether defendant made a prima facie showing of lack of\n\nreasonable diligence on the part of plaintiffs, the circuit court first considered whether plaintiffs\n\nshowed reasonable diligence when sending the waiver request. Then the court considered whether\n\nplaintiffs showed reasonable diligence in serving defendant with process after he failed to respond\n\nto the waiver request.\n\n¶ 40 We must determine whether the reasonable diligence requirement of Rule 103(b) applies\n\nto the sending of a request for waiver of service under section 2-213(a) of the Code. No reported\n\ndecision has addressed this issue. When construing a supreme court rule, our primary goal is to\n\nascertain and give effect to the intent of the drafters. In re Michael D., 2015 IL 119178, ¶ 9. The\n\nmost reliable indicator of the drafters’ intent is the language used, given its plain and ordinary\n\nmeaning. Id.\n\n\n\n - 14 -\n\fNo. 1-22-0150\n\n¶ 41 A plain reading of Rule 103(b) shows that the supreme court’s intent was to ensure that the\n\nplaintiff exercised reasonable diligence in timely notifying the defendant that a case has been filed\n\nagainst him prior to the expiration of the statute of limitations so that he can investigate the case\n\nwhile the facts still are accessible. See Mular, 2015 IL App (1st) 142439, ¶ 20. One way to so\n\nnotify the defendant that a case has been filed is to formally serve him with summons and the\n\ncomplaint; another way is to mail him a waiver of service request with a copy of the complaint\n\npursuant to section 2-213(a) of the Code. As the supreme court’s intent when drafting Rule 103(b)\n\nwas to require the plaintiff to exercise reasonable diligence in timely notifying the defendant of\n\nthe filing of his case so as to afford the defendant a fair opportunity to learn of and investigate the\n\nfacts of the case, we construe Rule 103(b) as requiring the plaintiff to exercise reasonable diligence\n\nregardless of which notification method is used. In other words, plaintiffs here were required to\n\nuse reasonable diligence both when sending defendant the request for waiver of service and when\n\nserving him with process after he failed to respond to the waiver request.\n\n¶ 42 In the instant case, plaintiffs waited five months after the filing of the complaint (from\n\nMarch 27, 2020, to August 31, 2020) before sending defendant a request for waiver of service,\n\nwhich was delivered to him on September 8, 2020. The waiver request gave defendant 30 days to\n\nrespond and also informed him that he would be formally served a summons and complaint if he\n\ndid not timely respond within the 30-day period. After the 30 days expired at the beginning of\n\nOctober 2020, with no response from defendant, plaintiffs waited an additional five months until\n\nMarch 2, 2021, to serve him, meaning that defendant was not served until almost one year after\n\nthe filing of the complaint. The lengthy delay in sending defendant the waiver request and then in\n\nserving him constitutes a prima facie showing that plaintiffs did not act with reasonable diligence\n\n\n\n - 15 -\n\fNo. 1-22-0150\n\nas required under Rule 103(b). See, e.g., Wilder Chiropractic, Inc., 2014 IL App (2d) 130781,\n\n¶ 82; Verploegh, 396 Ill. App. 3d at 1045.\n\n¶ 43 We reject plaintiffs’ contention that defendant failed to make a prima facie case because\n\nthe COVID-19 pandemic and the sheriff’s office’s decision to temporarily prioritize service in\n\n“essential” cases excused the delay. During the early days of the pandemic, the temporary\n\nprioritizing of service in “essential” cases affected the formal service of process through the\n\nsheriff’s office but did not affect a plaintiff’s ability to mail a request for waiver of service pursuant\n\nto section 2-213(a) of the Code. The United States mail did not stop functioning during the\n\npandemic. Therefore, plaintiffs’ initial five-month delay in mailing defendant the waiver request\n\nwas not excused by the COVID-19 pandemic and by the temporary prioritizing of service in\n\nessential cases.\n\n¶ 44 With respect to plaintiffs’ delay in serving defendant after he failed to timely return the\n\nwaiver request, we note that even during the early days of the pandemic when the complaint here\n\nwas filed, the Law Division provided special procedures for the presentation to an emergency\n\nmotion judge of a “routine” motion for a special process server as a way of obtaining service in a\n\nnonessential case. Plaintiffs did not attempt to take advantage of such procedures. Accordingly, on\n\nthe facts before us, defendant made a prima facie showing that plaintiffs failed to exercise\n\nreasonable diligence in effectuating service after filing the complaint, shifting the burden to\n\nplaintiffs to demonstrate, by way of affidavit or other competent evidentiary materials, that\n\nreasonable diligence was exercised and that any delays in effecting service were justified. Mular,\n\n2015 IL App (1st) 142439, ¶ 21.\n\n¶ 45 Plaintiffs argue, though, that we should reverse the dismissal order because in finding that\n\ndefendant had made a prima facie case, the circuit court improperly noted that plaintiffs could\n\n - 16 -\n\fNo. 1-22-0150\n\nhave achieved service on defendant, who was residing in Florida, through the Uniform Interstate\n\nDepositions and Discovery Act (Act), which was adopted by both Illinois and Florida. See 735\n\nILCS 35/1 et seq. (West 2020); Fla. Stat. § 92.251 (2019). Contrary to the circuit court’s finding,\n\nthe Act established a uniform process for obtaining out-of-state depositions and discovery and did\n\nnot provide for service of process in this case. The court’s error does not compel reversal in this\n\ncase, though, because its finding that defendant made a prima facie showing of plaintiffs’ failure\n\nto exercise reasonable diligence in serving him was based not only on the Act but also on plaintiffs’\n\nlengthy and unexcused delay both in mailing the waiver request and serving him with the\n\ncomplaint. As we have discussed, the lengthy delay, in and of itself, is a prima facie showing that\n\nplaintiffs failed to exercise reasonable diligence in serving defendant, shifting the burden to\n\nplaintiffs to provide a satisfactory explanation for the delay.\n\n¶ 46 The circuit court may consider several factors to determine whether plaintiffs met their\n\nburden, including (1) the length of time used to obtain service of process, (2) plaintiffs’ efforts to\n\neffect service, (3) whether plaintiffs knew where defendant could be served, (4) whether\n\ninformation regarding defendant’s whereabouts easily could have been obtained, (5) whether\n\ndefendant actually was aware of the lawsuit, (6) any special circumstances bearing on the\n\nreasonableness of plaintiffs’ efforts to serve defendant, and (7) actual service on defendant. Mular,\n\n2015 IL App (1st) 142439, ¶ 23. Further, before dismissing a cause “with prejudice” under Rule\n\n103(b), the court also must determine that plaintiffs’ failure to exercise reasonable diligence when\n\nserving defendant denied him the fair opportunity, while the facts were accessible, to investigate\n\nthe circumstances upon which liability was predicated against him. Segal, 136 Ill. 2d at 288.\n\n¶ 47 With regard to the first and second factors, we already have discussed plaintiffs’ unexcused\n\nfive-month delay in mailing the request for waiver of service under section 2-213(a) coupled with\n\n - 17 -\n\fNo. 1-22-0150\n\nthe additional unexcused five-month delay in serving defendant after he failed to respond to the\n\nwaiver request.\n\n¶ 48 With regard to the third and fourth factors, plaintiffs knew of defendant’s location and\n\nwhere to serve him at least six months prior to the service date of March 2, 2021, as his correct\n\naddress in Florida was listed on the original summons issued in August 2020 and on the alias\n\nsummons issued in February 2021.\n\n¶ 49 With regard to the fifth factor, the circuit court found that plaintiffs offered no evidence\n\nthat defendant knew the case was pending prior to the service of process on him in March 2021.\n\nPlaintiffs argue on appeal that the court ignored the evidence that about eight months earlier, on\n\nAugust 31, 2020, they had mailed defendant a request for a waiver of service notifying him of the\n\ncause of action, which he received on September 8, 2020. However, even assuming that defendant\n\nknew or should have known about this case prior to being served, that knowledge does not\n\nnecessarily preclude dismissal under Rule 103(b). See, e.g., Polites v. U.S. Bank National Ass’n,\n\n361 Ill. App. 3d 76, 86 (2005) (the fact that the defendant “had notice of the lawsuit before being\n\nserved did not preclude dismissal under Rule 103(b)”).\n\n¶ 50 With respect to the sixth factor, we already have discussed how the COVID-19 pandemic\n\nand the sheriff’s office’s temporary prioritizing of service in “essential cases” were not special\n\ncircumstances excusing the delay of service under the facts of this case. Plaintiffs cursorily argue\n\non appeal that the circuit court failed to properly account for two additional special circumstances,\n\nspecifically, that (1) “the case was filed in Cook County where cases routinely pend for several\n\nyears before coming to trial” and (2) that defendant rejected the waiver request by failing to\n\nrespond to it within 30 days. However, plaintiffs fail to explain how the backlog of cases in the\n\n\n\n - 18 -\n\fNo. 1-22-0150\n\nCook County court system and how defendant’s rejection of the waiver of service request in any\n\nway prevented or excused them from timely serving defendant.\n\n¶ 51 With respect to the seventh factor, defendant actually was served on March 2, 2021, almost\n\none year after the filing of the complaint.\n\n¶ 52 The circuit court concluded that “[t]hese seven factors convincingly establish that the\n\nplaintiffs failed to act diligently in attempting to achieve service of process” on defendant. The\n\ncircuit court committed no abuse of discretion in so finding. The seven relevant factors considered\n\nby the circuit court showed that plaintiffs’ unexcused five-month delay in mailing the waiver\n\nrequest, coupled with their additional unexcused five-month delay in serving defendant after he\n\nfailed to timely respond to the waiver request, constituted a lack of reasonable diligence in\n\nobtaining service on him.\n\n¶ 53 Plaintiffs argue that defendant was not prejudiced by the failure to exercise reasonable\n\ndiligence in serving him, as there is no indication in the record that the delay between the filing of\n\nthe complaint and the service of the summons caused any evidence to grow stale, any witnesses to\n\nbecome out of reach, or any memories to lapse so as to prevent him from investigating the facts\n\nand circumstances of the charge. As we discussed earlier in this opinion, to enter the “harsh\n\npenalty” of a dismissal with prejudice under Rule 103(b), the circuit court must find that plaintiffs’\n\nfailure to exercise reasonable diligence in serving defendant so prejudiced him as to deny him the\n\nfair opportunity, while the facts still are accessible, to investigate the circumstances upon which\n\nliability is predicated against him. Segal, 136 Ill. 2d at 288. The dismissal order contains no\n\nindication that the circuit court made such a determination. In light of the circuit court’s failure to\n\nconsider this relevant factor, we reverse and remand for the court to consider whether plaintiffs’\n\nfailure to exercise reasonable diligence in serving defendant so prejudiced him as to justify a\n\n - 19 -\n\fNo. 1-22-0150\n\ndismissal of their complaint “with prejudice.” See Martinez v. Erickson, 127 Ill. 2d 112, 121-22\n\n(1989) (reversing a Rule 103(b) dismissal and remanding for new hearing where the circuit court\n\ndid not accord “adequate weight” to all relevant factors).\n\n¶ 54 In addition, before dismissing plaintiffs’ complaint with prejudice pursuant to Rule 103(b),\n\nthe circuit court on remand must consider whether plaintiffs’ failure to exercise reasonable\n\ndiligence when serving defendant occurred before or after the expiration of the statute of\n\nlimitations. Under Rule 103(b), dismissal with prejudice is mandated when a plaintiff’s “failure to\n\nexercise reasonable diligence to obtain service on a defendant occurs after the expiration of the\n\napplicable statute of limitations.” Ill. S. Ct. R. 103(b) (eff. July 1, 2007). The dismissal must be\n\nwithout prejudice if “the plaintiff fails to exercise reasonable diligence to obtain service on a\n\ndefendant prior to the expiration of the applicable statute of limitations.” Id. To obtain a Rule\n\n103(b) dismissal with prejudice, defendant bears the initial burden of demonstrating that the statute\n\nof limitations has expired before the burden is shifted to plaintiffs to prove that the limitations\n\nperiod had not expired on their claims. Smith v. Menold Construction, Inc., 348 Ill. App. 3d 1051,\n\n1058 (2004).\n\n¶ 55 In the instant case, on August 31, 2021, when denying defendant’s section 2-619(a)(5)\n\nmotion to dismiss based on the one-year statute of limitations applicable to defamation and privacy\n\nclaims, the circuit court indicated that there were unresolved questions of fact regarding when the\n\nlimitations period expired. Specifically, the court stated: “There exist questions of fact as to when\n\nthe plaintiffs first learned of the publication, the publication’s scope, and whether subsequent\n\npublications in other formats constitute republishing outside the single-publication rule.”\n\nHowever, despite the unresolved questions of fact regarding when the limitations period expired,\n\nthe circuit court granted the Rule 103(b) motion to dismiss with prejudice two days later on\n\n - 20 -\n\fNo. 1-22-0150\n\nSeptember 2, 2021. The court gave no explanation for why the dismissal order was entered with\n\nprejudice given that the August 31 order indicated that it did not know whether the complaint was\n\nfiled before the statute of limitations expired. The court did not explicitly state that defendant met\n\nhis burden of demonstrating that the lack of diligence in service occurred after the statute of\n\nlimitations had expired.\n\n¶ 56 About four months later, on December 30, 2021, the circuit court denied plaintiffs’ motion\n\nto reconsider the dismissal order, stating that plaintiffs had not cited any new law or previously\n\nunavailable facts and that,\n\n “The plaintiffs’ arguments do not address the basis for this court’s ruling that they\n\n failed to serve [defendant] in a timely fashion and failed to avail themselves of forms of\n\n alternative service. As a result, [defendant] was not served with process until nearly one\n\n year after the plaintiffs filed their complaint, by which time the statute of limitations had\n\n expired.” (Emphasis added.)\n\n¶ 57 The court made no mention of the many unresolved questions of fact referenced in the\n\nAugust 31, 2021, order regarding when the limitations period expired.\n\n¶ 58 The orders entered on August 31, 2021, September 2, 2021, and December 30, 2021,\n\nconflict with each other with respect to the issue of the expiration of the limitations period. The\n\nAugust 31, 2021, order denying the section 2-619(a)(5) motion to dismiss stated that numerous\n\nquestions of fact exist that precluded the court from finding when the limitations period expired.\n\nThe September 2, 2021, order granting defendant’s Rule 103(b) motion “with prejudice” implicitly\n\nindicated otherwise, as such a dismissal order may be entered with prejudice only where the court\n\ndetermines that the lack of reasonable diligence in serving defendant occurred after the expiration\n\nof the limitations period. The December 30, 2021, order denying plaintiffs’ motion to reconsider\n\n - 21 -\n\fNo. 1-22-0150\n\nexplicitly conflicted with the August 31, 2021, order by stating that the statute of limitations “had\n\nexpired” prior to plaintiffs serving defendant. However, the court never stated for the record the\n\ndate on which the limitations period expired or how it came to that conclusion. Nor did it explain\n\nor even acknowledge the discrepancy between the August 31, 2021, order stating that many\n\nquestions of fact exist precluding a finding of when the limitations period expired and the\n\nSeptember 2, 2021, and December 30, 2021, orders indicating otherwise.\n\n¶ 59 To determine whether the circuit court abused its discretion in dismissing plaintiffs’\n\ncomplaint with prejudice under Rule 103(b), we need clarification of its conflicting determinations\n\nin its August 31, September 2, and December 30 orders regarding whether or not there are\n\nunresolved questions of fact surrounding the expiration of the limitations period. If, as indicated\n\nin the August 31 order, questions exist so as to preclude the court from knowing when the\n\nlimitations period expired, then the September 2 dismissal order should not have been with\n\nprejudice. A Rule 103(b) dismissal order only may be entered with prejudice when the court knows\n\nthe date when the limitations period expired and that plaintiffs’ failure to exercise reasonable\n\ndiligence in serving defendant occurred after that date. See Hebting v. Miller Brewing Co., 82 Ill.\n\nApp. 3d 981, 983 (1980) (holding that “The express terms of Rule 103(b) indicate that a dismissal\n\nwith prejudice is proper only when the failure to obtain service occurs after the expiration of the\n\nstatute of limitations.” (emphases omitted)); Ill. S. Ct. R. 103(b), Committee Comments (adopted\n\nJune 5, 2007) (stating that a dismissal under the rule “shall be made with prejudice *** if the\n\nfailure to exercise reasonable diligence to obtain service on the defendant occurred after the\n\nexpiration of the applicable statute of limitations”).\n\n¶ 60 Accordingly, for all the reasons stated in this opinion, we affirm the circuit court’s finding\n\nthat plaintiffs failed to exercise reasonable diligence under Rule 103(b) in serving defendant. We\n\n - 22 -\n\fNo. 1-22-0150\n\nreverse the dismissal order and remand for the court to (1) decide whether defendant was\n\nprejudiced by plaintiffs’ failure to exercise reasonable diligence when serving him and\n\n(2) reconcile its disparate findings and clarify whether outstanding questions of fact exist regarding\n\nwhen the limitations period expired. If the court finds, on remand, that no such questions of fact\n\nexist and that plaintiffs’ lack of reasonable diligence in service occurred after the limitations period\n\nexpired and prejudiced defendant, it may order the dismissal of plaintiffs’ complaint with\n\nprejudice. If the court finds, on remand, that questions of fact remain such that it cannot determine\n\nwhether the limitations period expired prior to the service of process and/or that defendant was not\n\nprejudiced, then the case may not be dismissed with prejudice under Rule 103(b).\n\n¶ 61 For all the foregoing reasons, we affirm the court’s finding that plaintiffs failed to exercise\n\nreasonable diligence under Rule 103(b) in serving defendant. We reverse the September 2, 2021,\n\norder dismissing plaintiffs’ complaint with prejudice and remand for further proceedings\n\nconsistent with this opinion.\n\n¶ 62 Affirmed in part and reversed in part, cause remanded.\n\n\n\n\n - 23 -\n\fNo. 1-22-0150\n\n\n Ollins v. Karl, 2022 IL App (1st) 220150\n\n\nDecision Under Review: Appeal from the Circuit Court of Cook County, No. 2020-L-\n 003676; the Hon. John H. Ehrlich, Judge, presiding.\n\n\nAttorneys Ilia Usharovich, of Wheeling, for appellants.\nfor\nAppellant:\n\n\nAttorneys Samuel Fifer, Taaj M. Reaves, and Gregory R. Naron, of Dentons\nfor US LLP, of Chicago, for appellee.\nAppellee:\n\n\n\n\n - 24 -\n\f", "ocr": false, "opinion_id": 7803479 } ]

"2022-08-25"

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 9, "download_url": "https://www.pacourts.us/assets/opinions/Superior/out/J-S14013-22m - 105252991195766276.pdf", "author_id": null, "opinion_text": "J-S14013-22\n\n\nNON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37\n\n COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF\n : PENNSYLVANIA\n :\n v. :\n :\n :\n SHANNON LAMONT JONES :\n :\n Appellant : No. 1162 WDA 2021\n\n Appeal from the Judgment of Sentence Entered February 2, 2021\n In the Court of Common Pleas of Erie County Criminal Division at No(s):\n CP-25-CR-0001345-2020\n\n\nBEFORE: McLAUGHLIN, J., McCAFFERY, J., and PELLEGRINI, J.*\n\nMEMORANDUM BY McLAUGHLIN, J.: FILED: AUGUST 25, 2022\n\n Shannon Lamont Jones appeals from the judgment of sentence entered\n\nfollowing his guilty plea to failure of disorderly persons to disperse upon official\n\norder and recklessly endangering another person (“REAP”).1 Jones challenges\n\nthe discretionary aspects of his sentence. We affirm.\n\n In February 2021, Jones pled guilty to the above-refenced offenses for\n\nhis actions in May 2020, when he gathered with others near the City Hall\n\nbuilding in Erie, Pennsylvania. Jones refused to leave after the police told him\n\nto leave and he threw objects at officers.\n\n After the court accepted his plea, it proceeded immediately to\n\nsentencing. Jones stated that he “fe[lt] like stuff was getting out of hand, and,\n\n____________________________________________\n\n\n* Retired Senior Judge assigned to the Superior Court.\n\n1 18 Pa.C.S.A. §§ 5502 and 2705, respectively.\n\fJ-S14013-22\n\n\n\nyou know, people let their actions get the best of them,” and he “left in front\n\nof the courthouse before the police came off the roof and tear gassed.” N.T.,\n\n2/2/21, at 10. He said he pleaded guilty because he “was part of everything\n\nthat was going on.” Id. Jones’ counsel stated that Jones had been incarcerated\n\nfor seven to eight months and asked the court to consider “a sentence that\n\nwould include parole today once a parole plan is in place.” Id. at 9. Counsel\n\nsaid, “You can put some tail on him, but I don’t believe it would be necessary\n\nfor it to be overly long.” Id. The Commonwealth requested that “as part of\n\nthe sentence,” Jones be required to write “a letter of apology to the mayor\n\nand Erie Police Department.” Id. at 13.\n\n Before pronouncing sentence, the court noted the guideline ranges. It\n\nstated that the range for failure to disperse was restorative sanctions to six\n\nmonths, with an aggravated range of nine months. For REAP, the guidelines\n\nwere three to nine months, with an aggravated range of 12 months. The court\n\nthen stated, “I don’t see any reason I should give anything less than\n\naggravated. He had enumerable amounts of time to remove himself from the\n\nsituation; he chose not to do it. He wanted to be part of this unruly mob bent\n\non hurting police officers and destroying our downtown.” Id. at 12. It added,\n\n“Our citizens have to be made to know if you’re going to engage in that activity\n\nagainst our community, you will have to pay the price. The message has to\n\nbe sent.” Id. The Commonwealth informed the court that Jones’ prior record\n\nincluded a 2009 conviction for possession with intent to deliver and 2016\n\nconvictions for firearms offenses. Id. at 13.\n\n -2-\n\fJ-S14013-22\n\n\n\n The court sentenced Jones to nine to 18 months’ imprisonment for the\n\nfailure to disperse conviction and 12 to 24 months’ imprisonment for the REAP\n\nconviction. The sentences were consecutive. The court also required Jones to\n\nwrite letters of apology. The court then gave its reasons for imposing\n\naggravated-range sentences:\n\n I’m taking into consideration the statement of [Jones] as\n well as the statements of both counsel. I’m taking into\n account [Jones’] prior record, which obviously is very\n significant.\n\n I’m also taking into account the egregious acts of [Jones]\n on the date of May 30th, 2020, where he refused, despite\n instructions from police, to vacate the area, and not only\n that, but he took positive steps to try to injure police officers\n who were just doing their jobs and their civic duties by\n throwing pebbles. I wonder if they were pebbles.[2] I have\n doubts about that.\n\nId. at 13.\n\n At sentencing, counsel noted that a defendant’s prior record is reflected\n\nin the sentencing guidelines. The court responded that even taking that fact\n\ninto account, it would not alter the sentence:\n\n Well, I understand that, and that’s a good point, but I still\n believe that the facts of this case warrant an aggravated\n sentence. He’s being sentenced for what happened here, not\n for his drug and gun convictions. He’s being sentenced for\n what happened on May 30th. I see nothing to mitigate what\n happened. I think that the actions that he engaged in were\n aggravated.\n\nId. at 15.\n____________________________________________\n\n\n2 The Commonwealth’s recitation of the facts stated Jones threw unknown\nobjects. N.T., 2/2/21, at 6. Jones alleged that he threw “[p]ebbles off the\nstreet.” Id. at 11.\n\n -3-\n\fJ-S14013-22\n\n\n\n Jones filed a motion to modify his sentence arguing the court appeared\n\nto give extra weight to his prior criminal record. He contended that even\n\nthough “that extra weight is envisioned in the sentencing guidelines,” the\n\nsentences were not only in the aggravated range but “were beyond any\n\nreasonable legal justification for sentencing in that range.” Motion to\n\nModify/Reconsider Sentence, filed Feb. 4, 2021, at ¶¶ 3, 8. Noting that the\n\nsentences were consecutive, he maintained the court failed to state adequate\n\nreasons on the record for sentencing him in the high end of the aggravated\n\nrange.3 This motion was denied by operation of law. Jones timely appealed.4\n\n Jones raises the following issue:\n\n The sentences in this case were manifestly excessive and\n clearly unreasonable in their length and consecutiveness, in\n that the court gave extra weight to Mr. Jones’ prior\n convictions, and the sentences were in the aggravated\n range without sufficient reasons being placed on the record.\n\nJones’ Br. at 1. The Commonwealth did not file a responsive brief.\n\n Jones’ issues go to the discretionary aspects of his sentence, for which\n\nthere is no automatic right to appellate review. Commonwealth v. Banks,\n\n198 A.3d 391, 401 (Pa.Super. 2018). A defendant may obtain appellate review\n____________________________________________\n\n\n3The Commonwealth took “no position regarding [the post-sentence]\nmotion.” Motion to Modify/Reconsider Sentence, filed Feb. 4, 2021, at ¶ 11.\n\n4 Jones initially filed a notice of appeal on June 17, 2021, after more than 120\ndays had passed from the filing of the motion, but before the trial court\nentered an order denying it by operation of law. This Court quashed the appeal\nand directed the trial court to comply with Pennsylvania Rule of Criminal\nProcedure 720(B)(3)(C) and enter an order denying the motion by operation\nof law. The trial court complied, and, after entry of the order, Jones filed this\ntimely appeal.\n\n -4-\n\fJ-S14013-22\n\n\n\nof discretionary aspects of sentence only if: (1) the appeal is timely; (2) the\n\ndefendant preserved the issues below; (3) the defendant included in the brief\n\nto this Court a Pa.R.A.P. 2119(f) concise statement of reasons relied upon for\n\nallowance of appeal; and (4) the Rule 2119(f) statement raises a substantial\n\nquestion that the sentence is not appropriate under the Sentencing Code or is\n\ncontrary to fundamental sentencing norms. Id.; Pa.R.A.P. 2119(f).\n\n To obtain review of discretionary aspects of a sentence, the appellant\n\nmust raise a substantial question that the sentence violates either the\n\nSentencing Code or any fundamental sentencing norm. Banks, 198 A.3d at\n\n401. We make the substantial-question determination based on the contents\n\nof the Rule 2119(f) statement. Commonwealth v. Mouzon, 812 A.2d 617,\n\n621-22 (Pa. 2002). Only if the appellant has raised a substantial question may\n\nwe turn to the merits of the sentencing claims. See id.\n\n In the Rule 2119(f) statement, Jones claims the excessive sentence was\n\nnot individualized. He further claims the sentence was clearly unreasonable,\n\nrequiring remand under 42 Pa.C.S.A. § 9781. He argues the sentence was\n\nexcessive, as it was at the highest aggravated range and ordered to run\n\nconsecutively. He argues the sentencing guidelines took into account his prior\n\nrecord, and the court erred when, “according to the trial court’s sparse\n\ncomments at sentencing,” it gave extra weight to the prior record. He further\n\nclaims the imposition of consecutive, rather than concurrent, sentences was\n\nimproper. He maintains that the aggregate sentence was unduly harsh,\n\nconsidering the nature of the crimes and length of imprisonment.\n\n -5-\n\fJ-S14013-22\n\n\n\n Jones filed a timely appeal and raised the claims in his post-sentence\n\nmotion. Further, his claims raise substantial questions for our review. A claim\n\nthe court failed to state adequate reasons for an aggregated-range sentence\n\nand double-counted factors incorporated into the guidelines raises a\n\nsubstantial question. See Commonwealth v. Watson, 228 A.3d 928, 936\n\n(Pa.Super. 2020); Commonwealth v. Booze, 953 A.2d 1263, 1278\n\n(Pa.Super. 2008). Although a bald claim of excessiveness due to consecutive\n\nsentences does not raise a substantial question, a claim the imposition is\n\nunreasonable, with explanation of the facts and circumstances, raises a\n\nsubstantial question. Commonwealth v. Dodge, 77 A.3d 1263, 1270\n\n(Pa.Super. 2017). Therefore, we will review the claims.\n\n We review a sentence imposed by the trial court for an abuse of\n\ndiscretion. Commonwealth v. Christman, 225 A.3d 1104, 1108 (Pa.Super.\n\n2019) (citation omitted). “An abuse of discretion may not be found merely\n\nbecause an appellate court might have reached a different conclusion, but\n\nrequires a result of manifest unreasonableness, or partiality, prejudice, bias,\n\nor ill-will, or such lack of support so as to be clearly erroneous.” Id. (quoting\n\nCommonwealth v. Moury, 992 A.2d 162, 170 (Pa.Super. 2010)).\n\n The “central focus” of appellate review of discretionary aspects of\n\nsentencing is whether the sentence is unreasonable. Commonwealth v.\n\nWalls, 926 A.2d 957, 963 (Pa. 2007). The Sentencing Code expresses\n\nstandards for our review, including that this Court must vacate the sentence\n\nand remand if we find “the sentencing court sentenced within the sentencing\n\n -6-\n\fJ-S14013-22\n\n\n\nguidelines but the case involves circumstances where the application of the\n\nguidelines would be clearly unreasonable[.]” 42 Pa.C.S.A. § 9781(c)(2).\n\n The General Assembly set forth factors that we must consider to\n\ndetermine whether a sentence is unreasonable:\n\n (d) Review of record.—In reviewing the record the\n appellate court shall have regard for:\n\n (1) The nature and circumstances of the offense and\n the history and characteristics of the defendant.\n\n (2) The opportunity of the sentencing court to observe\n the defendant, including any presentence\n investigation.\n\n (3) The findings upon which the sentence was based.\n\n (4) The guidelines promulgated by the commission.\n\n42 Pa.C.S. § 9781(d); accord Walls, 926 A.2d at 957. “Unreasonableness”\n\nin this context is “inherently a circumstance-dependent concept that is flexible\n\nin understanding and lacking precise definition.” Walls, 926 at 963.\n\n Jones argues the court imposed a harsher sentence than that which was\n\nconsistent with the protection of the public, the gravity of the offense, and the\n\nrehabilitative needs of Jones. He claims the court “double-counted” his prior\n\nrecord, which was already included in the sentencing scheme.5 Jones’ Br. at\n\n4. He maintains that although the sentences were within the guidelines, they\n\nwere clearly unreasonable. Jones’ Br. at 5 (citing 42 Pa.C.S.A. § 9781(c)(2)).\n____________________________________________\n\n\n5 Jones also claims the court double-counted the facts of the case. He waived\nthis claim for failing to raise it in the post-sentence motion. See Moury, 992\nA.2d at 170 (claims waived if not raised at sentencing hearing or in post-\nsentence motion).\n\n -7-\n\fJ-S14013-22\n\n\n\nHe further argues a court cannot just state “any reason” for deviating from\n\nthe guidelines, but rather it must state why the crime is “more horrendous”\n\nthan other situations of the same crime. Id. at 6. He notes the court did not\n\nprovide any specifics as to why this case was worse than other cases with the\n\nsame charges.6\n\n Here, the trial court did not abuse its discretion. It provided its reasons\n\nfor imposition of the aggregate range sentence and the consecutive sentences,\n\nincluding that Jones refused, despite instructions from police, to vacate the\n\narea, and took steps to try to injure police officers. Although the court\n\nconsidered Jones’ prior record, it was not the sole consideration for imposing\n\na sentence in the aggravated range. In such a case, there is no abuse of\n\ndiscretion. See Commonwealth v. Shugars, 895 A.2d 1270, 1275\n\n(Pa.Super. 2006); see also Commonwealth v. Simpson, 829 A.2d 334, 339\n\n(Pa.Super. 2003) (courts permitted to use factors already in guidelines if used\n\nto supplement other sentencing information).\n\n Judgment of sentence affirmed.\n\nJudge Pellegrini joins the memorandum.\n\nJudge McCaffery concurs in the result.\n\n____________________________________________\n\n\n6Jones relies on this Court’s first decision in Commonwealth v. Caraballo,\n848 A.2d 1018 (Pa.Super. 2004). His reliance is misplaced. The Pennsylvania\nSupreme Court granted allowance of appeal in Caraballo, vacated that\ndecision, and remanded for further consideration in light of Commonwealth\nv. Walls, 926 A.2d 957 (Pa. 2007). On remand, this Court issued a second\ndecision and affirmed the judgment of sentence. Commonwealth v.\nCaraballo, 959 A.2d 458 (Pa.Super. 2008).\n\n -8-\n\fJ-S14013-22\n\n\nJudgment Entered.\n\n\n\n\nJoseph D. Seletyn, Esq.\nProthonotary\n\n\n\nDate: 8/25/2022\n\n\n\n\n -9-\n\f", "ocr": false, "opinion_id": 7803551 } ]

"2022-08-18"

[ "2022 OK CR 17" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=492857", "author_id": null, "opinion_text": null, "ocr": false, "opinion_id": 7803603 } ]

"2022-08-25"

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 32, "download_url": "https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2015cv0266-71", "author_id": null, "opinion_text": " UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF COLUMBIA\n\n\nALAN PHILIPP, et al.,\n\n Plaintiffs,\n v.\n Civil Action No. 15-00266 (CKK)\nSTIFTUNG PREUSSISCHER\nKULTURBESITZ,\n\n Defendant.\n\n\n MEMORANDUM OPINION\n (August 25, 2022)\n\n Plaintiffs Alan Philipp (“Philipp”), Gerald G. Stiebel (“Stiebel”), and Jed R. Leiber\n\n(“Leiber”) (collectively the “Plaintiffs”), are the legal successors of the estates of individuals\n\nwho were affiliated with a consortium that was formed in or around 1929 and comprised of\n\nthree art dealer firms based in Frankfurt, Germany – Z.M. Hackenbroch, I. Rosenbaum, and\n\nJ.&S. Goldschmidt (collectively, the “Consortium”). Plaintiffs Philipp and Stiebel indicate that\n\ntheir ancestors, Zacharias Max Hackenbroch [owner of Z.M. Hackenbroch] and Isaac\n\nRosenbaum [co-owner of I. Rosenbaum], respectively, were the owners or co-owners of two [of\n\nthe three] art dealer firms. First Am. Compl. (“FAC”), ECF No. 14, ¶¶ 1, 17-18; Sec. Am.\n\nCompl. (“SAC”), ECF No. 62 ¶¶ 1, 17-18. Plaintiff Leiber is the heir of Saemy Rosenberg,\n\nwho co-owned the I. Rosenbaum art dealer firm. FAC at ¶ 19; SAC at ¶ 19. Furthermore, all\n\nthree Plaintiffs are “assignees of the claims of Julius Falk Goldschmit . . . and authorized agents\n\nfor the heirs of Arthur Goldschmidt, who together were the sole owners of the J.&S.\n\n\n\n\n 1\n\f Goldschmidt[,]” the third art dealer firm. Id. at ¶ 20.1\n\n Plaintiffs allege that Defendant Stiftung Preussischer Kulturbesitz (“SPK”) is in\n\n wrongful possession of a collection of medieval relics known as the Welfenschatz, which was\n\n sold by the Consortium – under coercion, as part of the Nazi persecution of the Jewish sellers –\n\n on June 14, 1935 to the State of Prussia through the Dresdner Bank. FAC ¶ ¶ 22, 25; SAC ¶ ¶\n\n 22, 25 (describing SPK and the Welfenschatz). Plaintiffs’ lawsuit was initially filed against\n\n both the Federal Republic of Germany (“Germany”) and SPK, although Germany has since been\n\n dismissed from the case. This case is currently before this Court on Defendant’s [63] Motion\n\n to Dismiss the [Plaintiffs’] Second Amended Complaint, which is opposed by Plaintiffs.2 For\n\n the reasons set forth herein, Defendant’s [63] Motion to Dismiss the Second Amended\n\n Complaint is GRANTED. A separate Order accompanies this Memorandum Opinion.\n\n\n\n1\n The Court cites to the First Amended Complaint, which was the operative complaint when the\ncase was before the Supreme Court of the United States, and to the Second Amended Complaint,\nwhich amended the First Amended Complaint [in a limited manner conceded by the parties] to\nindicate that “Germany is no longer a defendant” and “strik[e] claims that have been dismissed”\nand further, “to reflect the passage of time since the First Amended Complaint was filed by adding\na paragraph” about the return of some other artwork. See Philipp v. Stiftung Preussischer\nKulturbesitz, Civil Action No. 15-00266 (CKK), 2021 WL 3144956 (D.D.C. July 26, 2021)\n(denying Plaintiffs’ Motion for Leave to File a Second Amended Complaint).\n\n2\n In connection with this Memorandum Opinion and the accompanying Order, the Court\nconsidered: Defendant’s [63] Motion to Dismiss the Second Amended Complaint (“Def.’s Mot.”),\nDefendant’s [63-1] Memorandum in support thereof (“Def.’s Mem.”), and the exhibits attached\nthereto; Plaintiffs’ [66] Opposition to Defendant’s Motion to Dismiss the Second Amended\nComplaint (Pls.’ Opp’n”); Defendant’s [67] Reply Memorandum in support of its Motion to\nDismiss the Second Amended Complaint (“Def.’s Reply”) and the exhibits attached thereto;\nDefendant’s [68] Notice of Supplemental Authority (“Def.’s Notice”); Plaintiffs’ [69] Response\nto Defendant’s Notice of Supplemental Authority (“Pls.’ Resp. to Notice”); Plaintiffs’ [14] First\nAmended Complaint (“FAC”); Plaintiffs’ [62] Second Amended Complaint (“SAC”); and the\nentire record in this case. In an exercise of its discretion, the Court finds that holding oral argument\nin this action would not be of assistance in rendering a decision. See LCvR 7(f).\n\n\n\n 2\n\f I. BACKGROUND3\n\n A. Factual Background\n\n The three aforementioned art dealer firms – Z.M. Hackenbroch, I. Rosenbaum, and J. &\n\n S. Goldschmidt – formed the Consortium in 1929, and in that same year, the Consortium\n\n acquired the Welfenschatz pursuant to a written agreement with the Duke of Brunswick-\n\n Lüneberg (the “Duke”). FAC ¶¶ 34-35; SAC ¶¶ 32-33. The Welfenschatz is comprised of 82\n\n medieval reliquary and devotional objects, dating primarily from the 11th to 15th century, that\n\n were originally housed in the Braunschweiger Dom (Brunswick Cathedral) in Germany. FAC\n\n ¶¶ 30, 41; SAC ¶¶ 28, 39. The October 5, 1929 purchase agreement was signed by the three art\n\n dealer firms in their corporate capacities, and it provided the Consortium with sole entitlement\n\n to ownership rights of the collection. FAC ¶¶ 32, 35, Ex. 1 [purchase agreement]; SAC ¶¶ 30,\n\n 33, Ex. 1 [purchase agreement]. Pursuant to the agreement, the Consortium was “obligated to\n\n attempt to resell the items” and not permitted to retain them, with the Duke entitled to a share\n\n of the profits when the items were resold. Ex. 1 at 10-12.4 By 1930, the Consortium had\n\n succeeded in selling about half of the collection to museums and individuals around the world.\n\n FAC ¶ 41; SAC ¶ 39.\n\n In early 1933, the Nazi party assumed control over Germany. FAC ¶¶ 48-51; SAC ¶¶ 46-\n\n49. The Nazis became interested in acquiring the [remaining items in the] Welfenschatz on behalf\n\nof the German state, FAC ¶¶ 6, 68; SAC ¶¶ 6, 66, and negotiations began between the Consortium\n\n\n\n3\n For ease of reference, this Court reiterates much of the procedural background from Philipp v.\nStiftung Preussischer Kulturbesitz, Civil Action No. 15-00266 (CKK), 2021 WL 3144956 (D.D.C.\nJuly 26, 2021).\n4\n With regard to documents filed on this Court’s electronic filing system (ECF), the page numbers\nreferenced are those located in the top righthand corner of the page.\n\n\n 3\n\fand the Prussian state (a political subdivision of Germany) with Dresdner Bank acting as an\n\nintermediary.5 FAC at ¶¶77-78, 81-84, 90-91, 151; SAC ¶¶ 75-76, 79-82, 88-89, 150. On June\n\n14, 1935, Dresdner Bank entered into an agreement to purchase the Welfenschatz from “1.) the\n\ncompany J. and S. Goldschmidt, Frankfurt/M, 2.) the company Z.M. Hackenbroch, Frankfurt/M,\n\nand 3.) Mr. I. Rosenbaum and Mr. S. Rosenberg, Amsterdam, as former owner[s] of the company\n\nI. Rosenbaum, Frankfurt/M., hereinafter referred to as the ‘Consortium’” and that agreement was\n\nsigned by Julius Falk Goldschmidt, Zacharias Max Hackenbroch, Isaak Rosenbaum and Saemy\n\nRosenberg. FAC ¶¶ 151, 153, 154, Ex. 5 [purchase agreement]; SAC ¶¶ 150, 152, 153, Ex. 5\n\n[purchase agreement].\n\n The purchase agreement notes that “[t]he company I. Rosenbaum o.H.G. has since been\n\nliquidated; it[s] assets now belong to the two business associates I. Rosenbaum and S.\n\nRosenbaum.” Ex. 5 at 11. In Plaintiffs’ Amended Complaints, Plaintiffs assert however that\n\n“Saemy Rosenberg’s brother, Siegfried Rosenberg, ran operations in Frankfurt as best he could\n\nuntil 1937, when the company was liquidated and closed” and furthermore, “[o]n July 11, 1938,\n\nthis firm too - - - based in Frankfurt since the mid-19th century - - - was deleted from the\n\ncommercial register.” FAC ¶ 171, SAC ¶ 170. By 1935, Rosenberg and Rosenbaum had\n\nemigrated from Germany to the Netherlands, and in the years following the sale, the\n\nGoldschmidts left Germany, and Hackenbroch died in 1937. FAC ¶¶ 163, 170, 171; SAC ¶¶ 162,\n\n\n\n\n 5\n The Court shall refer to these 42 objects at issue as “the Welfenschatz,” even though\nPlaintiffs’ claims do not involve the 40 of the 82 objects in the collection that were sold in the\nUnited States and Europe prior to the 1935 transaction. See FAC ¶ 31 (listing the objects at issue);\nSAC ¶ 29.\n\n\n\n 4\n\f169, 170.6\n\n Defendant SPK, an instrumentality of Germany, was created for the purpose of\n\n succeeding all of Prussia’s rights in cultural property and currently is in possession of the\n\n Welfenschatz. FAC ¶ 184; SAC ¶ 183. The Welfenschatz is located at the SPK-administered\n\n Museum of Decorative Arts (“Kunstgewerbemuseum”) in Berlin.7 FAC ¶ 26 (iv); SAC ¶ 26\n\n (iv).\n\n B. Procedural Background8\n\n First Motion to Dismiss\n\n In February of 2015, Plaintiffs Philipp and Stiebel brought this suit against SPK and\n\nGermany, alleging that the 1935 sale of the Welfenschatz by the Consortium was made under\n\nduress for less than market value as part of the Nazi persecution of the Jewish sellers of the\n\nWelfenschatz. FAC ¶¶ 2, 4, 12, 139-54; SAC ¶¶ 2, 4, 12, 138-153. SPK and Germany moved\n\nto dismiss on grounds of foreign sovereign immunity, Defs.’ [First] Mot. to Dismiss, ECF No.\n\n12, at 10-29, but Plaintiffs invoked the expropriation exception, which abrogates state immunity\n\nfor claims alleging that property was “taken in violation of international law.” 28 U.S.C. §\n\n1605(a)(3). SPK and Germany asserted that this exception was inapplicable because\n\n“[i]nternational law is implicated only when a state expropriates property from foreign nationals”\n\nas opposed to taking property from its own nationals. Defs.’ [First] Mot. to Dismiss, ECF No.\n\n\n 6\n This Court incorporates by reference the remaining factual background set forth in its [26]\nMemorandum Opinion, which granted in part and denied in part Defendants’ [18] Motion to\nDismiss the Plaintiffs’ First Amended Complaint.\n 7\n During World War II, the Welfenschatz was shipped out of Berlin to be saved from\ndestruction and robbery. It was seized by United States troops and handed over in trust to the State\nof Hesse. FAC ¶ 181; SAC ¶ 180.\n 8\n This Court reiterates much of the procedural background from Philipp v. Stiftung\nPreussischer Kulturbesitz, Civil Action No. 15-00266 (CKK), 2021 WL 3144956 (D.D.C. July 26,\n2021).\n\n\n\n 5\n\f12, at 17-20. Accordingly, Defendants asserted that this “domestic-takings rule” barred\n\nPlaintiffs’ claims because the Consortium was a German corporate entity, as were the three art\n\ndealer firms and the individuals who owned those firms. Id. at 21-23.\n\n First Amended Complaint\n\n The Court did not rule on Defendant’s [12] motion to dismiss the complaint because the\n\nPlaintiffs filed an amended complaint after obtaining consent from Germany and SPK. See\n\nConsent to the Filing of an Am. Compl., ECF No. 13; First Am. Compl., ECF No. 14 (adding\n\nPlaintiff Lieber and alleging that the heirs of the individual owners of the J.& S. Goldschmidt\n\nfirm had assigned any rights in the Welfenschatz to the three Plaintiffs). In their First Amended\n\nComplaint, Plaintiffs did not add any additional allegations relevant to the nationality of the\n\nConsortium, the art dealer firms, or the individual owners of the firms.\n\n Subsequent to the filing of Plaintiffs’ First Amended Complaint, the United States Court\n\nof Appeals for the District of Columbia Circuit (“D.C. Circuit”) issued its opinion in Simon v.\n\nRepublic of Hungary, 812 F.3d 127 (D.C. Cir. 2016) (“Simon I”), whereby the D.C. Circuit ruled\n\nthat the domestic takings rule had “no application to the unique circumstances of [that] case, in\n\nwhich, unlike most cases involving expropriations in violation of international law, genocide\n\nconstitutes the pertinent international law violation.” Id. at 144. Accordingly, Simon I presented\n\nan alternative theory in expropriation-exception cases; i.e., a plaintiff could argue that a taking\n\nviolated a body of law, such as the law of genocide, that was not limited by the domestic takings\n\nprinciple.\n\n Second Motion to Dismiss\n\n Shortly thereafter, Defendants filed their [18] Motion to Dismiss the Plaintiffs’ First\n\nAmended Complaint, in which they argued, inter alia, that the expropriations exception does not\n\napply because international law does not prohibit domestic takings. Motion to Dismiss, ECF No.\n\n\n 6\n\f18, at 28-31 (discussing the Consortium’s status as a German legal entity, the German art-dealer\n\nfirms, and the German nationality of the individual owners of the art-dealer firms). Plaintiffs\n\nrelied upon the theory propounded in Simon I in crafting their opposition to Defendants’ motion\n\nto dismiss Plaintiffs’ First Amended Complaint. Specifically, Plaintiffs argued that the domestic\n\ntakings rule and the nationality of Plaintiffs’ ancestors did not matter because their allegations\n\ndemonstrated that the sale of the Welfenschatz for less than market value was part of the Nazi\n\nGermany genocide against German Jews. See Pls. Opp’n to Mot. to Dismiss, ECF No. 19, at 38-\n\n43. In their Reply to the Motion to Dismiss, Defendants observed that “Plaintiffs d[id] not deny\n\nthat this case involves the German government’s alleged taking of property of German nationals.”\n\nDef.’s Reply in Supp. of Mot. to Dismiss, ECF No. 20, at 13.\n\n This Court agreed with Plaintiffs’ argument pursuant to Simon I and found the domestic\n\ntakings rule inapplicable because of Plaintiffs’ claim that “the taking of the Welfenschatz was\n\npart of the genocide of the Jewish people during the Holocaust and, accordingly, [it] violated\n\ninternational law.” Philipp v. Fed. Republic of Germany, 248 F. Supp. 3d 59, 72 (D.D.C. 2017)\n\n(Philipp I). Defendants filed a [27] Notice of Appeal to D.C. Circuit, and the case before this\n\nCourt was stayed while the interlocutory appeal was pending. On appeal, Defendants renewed\n\ntheir argument that the domestic-takings rule barred Plaintiffs’ claims, see Appellants’ Br. at 38-\n\n45 (No. 17-7064), while Plaintiffs continued to rely upon Simon’s genocide theory, see\n\nAppellees’ Br. at 21-32 (No. 17-7064).\n\n The D.C. Circuit noted that the appeal raised a novel question insofar as the court was\n\nasked to decide “for the first time whether seizures of art may constitute ‘takings of property that\n\nare themselves genocide.’” Philipp v. Fed. Republic of Germany, 894 F.3d 406, 411 (D.C. Cir.\n\n2018) (Philipp II) (quoting Simon I, 812 F. 3d at 144). The D.C. Circuit concluded that they\n\ncould be and affirmed the application of the expropriation exception to sovereign immunity as\n\n\n 7\n\fwell as this Court’s exercise of subject matter jurisdiction.9 The Circuit Court did however vacate\n\nthis Court’s denial of immunity to Germany and directed that Germany be dismissed.\n\nDefendant’s request for a rehearing en banc was denied. Philipp v. Fed. Rep. of Germany, 925\n\nF.3d 1349 (Mem.) (D.C. Cir. 2019).\n\n Supreme Court Decision\n\n Shortly thereafter, Defendants filed their [43] Motion to Stay Pending Petition for Writ\n\nof Certiorari to the United States Supreme Court, which was granted by this Court’s [47] Order.\n\nThe Supreme Court granted certiorari and issued its unanimous decision in Federal Republic of\n\nGermany v. Philipp, 141 S. Ct. 703, 715 (2021) (Philipp III), holding that “the phrase “rights in\n\nproperty taken in violation of international law,” as used in the FSIA’s expropriation exception,\n\nrefers to violations of the international law of expropriation and thereby incorporates the domestic\n\ntakings rule.” As the Supreme Court explained, the international law of takings governs\n\n“confiscation of the property of foreigners, but measures taken by a state with respect to the\n\nproperty of its own nationals are not subject to these principles.” Philipp III at 710 (internal\n\nquotation marks omitted). Furthermore, contrary to the D.C. Circuit’s decisions in Simon and\n\nPhilipp, the FSIA’s expropriation exception invoked only the narrow doctrine of “international\n\nlaw governing property rights,” rather than broadly incorporating international human-rights\n\n\n\n9\n Under the FSIA’s expropriation exception, 28 U.S.C. § 1605(a)(3), United States courts may\nexercise jurisdiction over a foreign sovereign in any case:\n\n in which rights in property taken in violation of international law are in issue and that\n property or any property exchanged for such property is present in the United States in\n connection with a commercial activity carried on in the United States by a foreign state; or\n that property or any property exchanged for such property is owned or operated by an\n agency or instrumentality of the foreign state and that agency or instrumentality is engaged\n in a commercial activity in the United States.\n\n28 U.S.C. § 1605 (a)(3)\n\n\n 8\n\fnorms like the law of genocide. Id. at 711-712. Accordingly, there was a judicial “consensus\n\nthat the expropriation exception’s reference to ‘violation of international law’ does not cover\n\nexpropriations of property belonging to a country’s own nationals.” Id. at 711 (quoting Republic\n\nof Austria v. Altmann, 541 U.S. 677, 713 (2004) (Breyer, J., concurring) (quotation marks\n\nomitted). The D.C. Circuit’s judgment was vacated, and the case was remanded for further\n\nproceedings.\n\n Defendant notes that “[i]n their brief opposing certiorari, Plaintiffs argued that this case\n\nwas not an appropriate vehicle for resolving this statutory-interpretation question because ‘[b]y\n\n1935, the Consortium [members] were long since no longer regarded or treated as Germans,’\n\nproviding jurisdiction even if the exception were limited to alleged violations of the law of\n\ntakings.” Def.’s Mem., ECF No. 63-1, at 19 (quoting Pls.’ Br. in Opp’n to Pet. For Writ of Cert.,\n\nPhilipp III, 141 S. Ct. 703 (No. 19-351), 2019 WL 5391187, at *22-24). The Supreme Court\n\nexplicitly declined to consider the heirs’ alternative argument “that the sale of the Welfenschatz is\n\nnot subject to the domestic takings rule because the consortium members were not German\n\nnationals at the time of the transaction,” indicating instead that the Court of Appeals should direct\n\nthe District Court to “consider this argument, including whether it was adequately preserved\n\nbelow.” Philipp III at 716.\n\n Post-Supreme Court Decision\n\n On March 16, 2021, the D.C. Circuit issued its [53] Mandate and attached Judgment\n\n indicating that - consistent with the Supreme Court mandate - this case was remanded to this\n\n Court, with instructions to “consider whether the sale of the Welfenschatz is not subject to the\n\n domestic takings rule because the Consortium members were not German nationals at the time\n\n of the transaction, including whether this argument was adequately preserved in the District\n\n Court.” See Philipp v. Fed. Rep. of Germany, 839 Fed. App’x 574 (Mem.) (D.C. Cir. 2021).\n\n\n 9\n\f Thereafter, Plaintiffs filed their [56] Motion for Leave to File [a] Second Amended\n\nComplaint, which was opposed by Defendant SPK. This Court denied the Motion for Leave\n\nto Amend on grounds that the Supreme Court’s mandate did not permit amendment of the\n\ncomplaint. More specifically this Court noted that “the Supreme Court recognized that\n\nPlaintiffs may not have preserved their alternative argument and upon remand to the Court of\n\nAppeals, this Court was directed to consider this issue.” Philipp v. Stiftung Preussischer\n\nKulturbesitz, Civil Action No. 15-00266 (CKK), 2021 WL 3144956, at *5 (D.D.C. July 26,\n\n2021). Accordingly, “[p]ermitting Plaintiffs to amend their First Amended Complaint now to\n\ninclude additional facts and theories [would be] inconsistent with the instruction that this Court\n\ndetermine whether any alternative argument by the Plaintiffs had been preserved.” Id.\n\nFurthermore, this Court found that amendment of Plaintiffs’ First Amended Complaint was not\n\npermitted because Defendant had “demonstrated both undue delay and prejudice,” which\n\nwarranted denying relief under Rule 15(a). Id. at *8. Accordingly, the Court denied Plaintiffs’\n\n[56] Motion for Leave to Amend, with the proviso that certain conceded changes could be made.\n\nSee n.1 herein; see also Second Am. Compl., ECF No. 62. Thereafter, Defendant filed the\n\ninstant Motion to Dismiss the Second Amended Complaint, which is ripe for resolution by this\n\nCourt.\n\n II. LEGAL STANDARD\n\n Under the Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C. §§ 1602-1611, “a\n\nforeign state is presumptively immune from the jurisdiction of United States court,” and “unless\n\na specified exception applies, a federal court lacks subject-matter jurisdiction over a claim\n\nagainst a foreign state.” Saudi Arabia v. Nelson, 507 U.S. 349, 355 (1993). The FSIA provides\n\n“the sole basis for obtaining jurisdiction over a foreign state in the courts of this country.” Id.\n\n(quoting Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 443 (1989)\n\n\n 10\n\f(internal quotation marks omitted)). Because “subject matter jurisdiction in any such action\n\ndepends on the existence of one of the [FSIA’s] specified exceptions. . . [a]t the threshold of\n\nevery action in a District Court against a foreign state. . . the court must satisfy itself that one of\n\nthe exceptions applies.” Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 493-494 (1983).\n\n“In other words, U.S. courts have no power to hear a case brought against a foreign sovereign\n\nunless one of the exceptions applies.” Diag Human S.E. v. Czech Republic-Ministry of Health,\n\n64 F. Supp. 3d 22, 30 (D.D.C. 2014), rev’d on other grounds, 824 F.3d 131 (D.C. Cir. 2016).\n\n “Federal courts are courts of limited jurisdiction[.]” Gunn v. Minton, 568 U.S. 251, 256\n\n(2013) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)).\n\nPursuant to Federal Rule of Civil Procedure 12(b)(1), a party may move for dismissal based on\n\n“lack of subject matter jurisdiction.” Fed. R. Civ. P. 12(b)(1). To survive a Rule 12(b)(1)\n\nmotion to dismiss, the plaintiff generally “bears the burden of invoking the court’s subject\n\nmatter jurisdiction.” Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015) (citing Lujan v. Defs.\n\nof Wildlife, 504 U.S. 555, 561 (1992)).\n\n In resolving a motion to dismiss pursuant to Rule 12(b)(1), the court can, and often must,\n\ngo beyond the allegations in the complaint. “Where a motion to dismiss a complaint ‘present[s]\n\na dispute over the factual basis of the court’s subject matter jurisdiction . . . the court may not\n\ndeny the motion to dismiss merely by assuming the truth of the facts alleged by the plaintiff and\n\ndisputed by the defendant.’” Feldman v. Fed. Deposition Ins. Corp., 879 F.3d 347, 351 (D.C.\n\nCir. 2018) (quoting Phoenix Consulting v. Republic of Angola, 216 F.3d 36, 40 (D.C. Cir.\n\n2000)). Instead of merely relying on the truth of the facts alleged in the complaint, “the court\n\nmust go beyond the pleadings and resolve any disputed issues of fact the resolution of which is\n\nnecessary to a ruling upon the motion to dismiss.” Id. (quoting Phoenix Consulting., 216 F.3d\n\n\n\n\n 11\n\fat 40). In such situation, the “court may properly consider allegations in the complaint and\n\nevidentiary material in the record,” affording the plaintiff “the benefit of all reasonable\n\ninferences.” Feldman, 879 F.3d at 351; see also Am. Freedom L. Ctr. v. Obama, 821 F.3d 44,\n\n49 (D.C. Cir. 2016) (“In considering a motion to dismiss for lack of subject matter jurisdiction,\n\n. . . we may consider materials outside the pleadings . . . ”) (quotation and internal quotation\n\nmarks omitted).\n\n Defendant SPK notes that this motion to dismiss is confined to “the question the\n\nSupreme Court directed this Court to answer first.” Def.’s Mem., ECF No. 63-1, at 22. See\n\nPhilipp v. Stiftung Preussischer Kulturbesitz, Civil Action No. 15-00266, 2021 WL 3144958,\n\nat *5 (D.D.C. July 26, 2021) (“[T]he mandate here makes clear that the only issue possibly\n\nremaining in this case is whether the [domestic] takings rule applies or not, including a necessary\n\ninquiry into whether Plaintiffs preserved this argument at all.”)\n\n III. ANALYSIS\n\n This Court has been tasked with determining: (1) whether the sale of the Welfenschatz\n\nwould not be subject to the domestic takings rule because the Consortium members were not\n\nGerman nationals at the time of the transaction and (2) whether this argument was adequately\n\npreserved in the District Court. As a preliminary matter, Defendant argues that this Court should\n\nconsider first whether or not Plaintiffs preserved their theory of jurisdiction because if they did\n\nnot, “then those theories’ merits are irrelevant.” Def.’s Reply, ECF No. 67, at 6. More\n\nspecifically, Defendant states that the question is “not whether Plaintiffs’ complaints could have\n\nsupported their new arguments that the Consortium members were not German nationals in\n\n1935” but rather whether “they actually made those arguments in the record in this case[.]” Id.\n\nat 7 (internal quotation marks omitted). Because the mandate asked that this Court to consider\n\n\n\n\n 12\n\fwhether the Consortium members were not German nationals at the time of the transaction and\n\nwhether this argument was adequately preserved below, and these two prongs were not\n\ncontingent, the Court considers them in tandem. More specifically, this Court will consider\n\nwhether Plaintiffs included allegations in their Complaint and/or made any arguments relevant\n\nto the domestic takings rule, and, if so, whether these allegations/arguments support their\n\nassertion that the Consortium members were not German nationals at the time of the sale. The\n\nCourt begins its analysis with a review of whether and how the domestic takings rule was\n\naddressed by the parties throughout this litigation.\n\n A. The Domestic Takings Rule\n\n Plaintiffs begin by proffering that the “Prussian Foundation . . . clearly had notice\n\nenough to raise the question” regarding a domestic taking in its “very first Motion to Dismiss.”\n\nPls.’ Opp’n, ECF No. 66, at 36 n.11.10 Furthermore, Plaintiffs argue that the “court expressly\n\nacknowledged the existence of the domestic takings rule, but explicitly declined to reach it\n\nbecause of the controlling law provided by Simon [I].” Id. (citation omitted). The Court notes\n\nhowever that these assertions by Plaintiffs turn the burden of proof on its head. Furthermore,\n\nDefendant explains that it is “not the Court’s job to scrutinize a plaintiff’s factual allegations\n\n\n\n\n 10\n Plaintiffs assert that the question of preservation asks whether an issue was brought\nto the court’s attention. Pls.’ Opp’n, ECF No. 66, at 35 (citing Holguin-Hernandez v. United\nStates, 140 S. Ct. 762, 766 (2020)); see Nat’l Treasury Emps. Union v. Fed. Lab. Rels. Auth.,\n754 F.3d 1031, 1040 (D.C. Cir. 2014) (“A party is not required to invoke magic words in order\nto adequately raise an argument[.]”) (citation and internal quotation marks omitted); see also\nNuclear Energy Inst., Inc. v. EPA, 373 F.3d 1251, 1290 (D.C. Cir. 2004) (The proponent of an\nargument must however provide “a fair opportunity to entertain it[.]”) (citation and internal\nquotation marks omitted). Defendant notes however that “Plaintiffs’ “fair opportunity” standard\ncomes from cases addressing what a party must do during administrative rulemaking to preserve\na challenge to an agency rule, see id. at 1290-1291, rather than “what a plaintiff must do to raise\nan alternative legal theory against a motion to dismiss.” Def.’s Reply, ECF No. 67, at 9.\n\n\n\n 13\n\fand sua sponte raise legal theories found nowhere in the briefs.” Def.’s Reply, ECF No. 67, at\n\n9. In the instant case, there is no dispute that Defendants raised the domestic takings argument,\n\nbut Plaintiffs never responded to it, instead electing to rely on Simon I and a theory involving a\n\nclaim of genocide. Subsequently, Plaintiffs amended their complaint, but, as noted earlier\n\nherein, the amendment did not add any allegations relevant to rebutting the domestic takings\n\nrule because Plaintiffs were focused solely on their claim of genocide. Even as Defendants\n\nraised a domestic takings argument again – this time, in their motion to dismiss Plaintiffs First\n\nAmended Complaint – Plaintiffs failed to respond to that argument, electing to rely again on\n\nSimon I and a claim of genocide.\n\n Defendant notes succinctly the major flaw in this case insofar as “[b]ut what Plaintiffs\n\nnever did before the case reached the Supreme Court was argue in the alternative that even if\n\nthe expropriation exception looked solely to the law of takings (as SPK contended), this was\n\nnot a domestic taking.” Def.’s Mem., ECF No. 63-1, at 28. More specifically, while Plaintiffs\n\ndisputed whether the Consortium was a German legal entity, see Pls.’ Opp’n. to Defs.’ Mot. to\n\nDismiss First Am. Compl., ECF No. 19, at 66 n.8, they neither challenged Defendants’ argument\n\nthat the art dealership firms were German corporate entities nor did they assert that any of the\n\nindividual owners were foreign nationals or stateless. Furthermore, in both its reply to the\n\nMotion to Dismiss Plaintiffs’ First Amended Complaint and in its briefing before the D.C.\n\nCircuit, Defendant SPK pointed out Plaintiffs’ failure to address the domestic takings rule.\n\nMoreover, SPK asserts that, even now, Plaintiffs “never identify where in their prior briefs they\n\n‘mention[ed] [these] possible argument[s] in the most skeletal way,’ let along ‘put flesh on\n\n[their] bones.’” Def.’s Reply, ECF No. 67, at 7 (quoting Schneider v. Kissinger, 412 F.3d 190,\n\n200 n.1 (D.C. Cir. 2005)); accord GSS Grp. Ltd. v. Nat’l Port Auth., Civil Action No. 09-1332\n\n\n\n\n 14\n\f (PLF), 2011 WL 13121428, at *3-5 (D.D.C. Aug. 10, 2011).\n\n Defendant concludes therefore that because Plaintiffs never contested its argument that\n\n the Consortium, the firms comprising it, and the individual owners of the firms were German\n\n nationals in 1935, “Plaintiffs long ago conceded these points.” Def.’s Reply, ECF No. 67, at 8;\n\n see, e.g., Johnson v. District of Columbia, 49 F. Supp. 3d 115, 121-122 (D.D.C. 2014)\n\n (explaining that in this circuit “a court may treat those arguments [raised in a dispositive motion]\n\n that the plaintiff failed to address as conceded”); see also NetworkIP v. F.C.C., 548 F.3d 116,\n\n 120 (D.C. Cir. 2008) (recognizing that “arguments in favor of subject matter jurisdiction can be\n\n waived by inattention or deliberate choice”); GSS Grp. Ltd., 2011 WL 13121428, at *3-5\n\n (holding that an alternative jurisdictional theory plaintiff failed to raise in opposition to a motion\n\n to dismiss was forfeited).11 Accordingly, the challenges Plaintiffs now attempt to raise were\n\n not preserved because Plaintiffs never raised such challenges in opposition to Defendants’\n\n motions to dismiss. Furthermore, in the course of attempting to amend their complaint after the\n\n Supreme Court’s ruling, Plaintiffs acknowledged that, based on Simon I, they thought they “had\n\n no reason to allege particular facts concerning the nationality of Goering’s victims,” although\n\n they contend that they did so. Memorandum in Support of Plaintiffs’ Motion For Leave to\n\n Amend, ECF No. 56-1, at 12.\n\n Plaintiffs assert here that, [previously], they did not need to argue in the alternative\n\n\n\n\n11\n In their [66] Opposition, at 43-44, Plaintiffs attempt to distinguish GSS Group, on grounds that\nplaintiffs sought to reverse a dismissal in that case “despite no change in the governing law.” But\nsee this Court’s reiteration of its previous ruling that there was no change of law, addressed on\npages 16-17 herein. Plaintiffs attempt also to distinguish Johnson, on grounds that the plaintiff\nthere “did not address the District’s statute-of-limitations argument in an opposition brief” whereas\nthey allege that, in the instant case, “Plaintiffs noted the existence of the domestic takings rule and\nexplained why . . . it was irrelevant.” Pls.’ Opp’n, ECF No. 66, at 43. Plaintiffs provide no record\nreference corresponding to this alleged “explanation.”\n\n\n 15\n\fbecause this Court and the D.C. Circuit applied other law, and a prevailing litigant does not\n\n“waive” an alternative argument. Pls.’ Opp’n, ECF No. 66, at 41-46; see Dandridge v. Williams,\n\n397 U.S. 471, 475 n.6 (1970) (“The prevailing party may, of course, assert in a reviewing court\n\nany ground in support of his judgment, whether or not that ground was relied upon or even\n\nconsidered by the trial court.”). While it is accurate that “a court of appeals can affirm a district\n\ncourt judgment on any basis supported by the record, even if different from the grounds the\n\ndistrict court cited,” Parsi v. Daioleslam. 778 F.3d 116, 126 (D.C. Cir. 2015), that rule is limited\n\nto grounds that were “decided or raised below.” Warren v. District of Columbia, 353 F.3d 36,\n\n38-39 (D.C. Cir. 2004) (refusing to affirm a judgment on a ground that was not presented to the\n\ndistrict court). In this case, the Court has been tasked with deciding whether the domestic\n\ntakings argument was preserved by Plaintiffs, and while Defendants explain how and when they\n\nraised this issue on several occasions, Plaintiffs neither raised nor rebutted it.\n\n Plaintiffs rely instead on their argument that “surely [a party’s] failure to raise an\n\nargument anticipating the Supreme Court’s decision to change the law does not waive an\n\nargument relying on that change.” Pls.’ Opp’n, ECF No. 66, at 42 (quoting United States v. Abu\n\nKhatallah, 316 F. Supp. 3d 207, 211-12 (D.D.C. 2018)) (finding no waiver where defendant\n\ndid not object to a jury instruction that was constitutional under Circuit court precedent at the\n\ntime and “before the Supreme Court . . . called that ruling into question”). The Court notes\n\nhowever that Plaintiffs’ “change of law” argument has been rejected previously by this Court.\n\nMore specifically, after the Supreme Court issued its mandate, Plaintiffs moved to amend their\n\ncomplaint, and in that motion, Plaintiffs argued that the Supreme Court’s decision was a change\n\nof law, but this Court “reject[ed] Plaintiffs’ argument that there was a change in law . . . , as the\n\napplicability of the domestic takings rule pre-date[d] the Supreme Court’s decision, and the\n\n\n\n\n 16\n\fSupreme Court’s unanimous rejection of Plaintiffs’ arguments in this case d[id] not constitute\n\nnew law.” Philipp v. Stiftung Preussischer Kulturbesitz, Civil Action No. 15-00266 (CKK)\n\n2021 WL 3144958, at *6 (D.D.C. July 26, 2021).\n\n Defendant argues and the Court agrees that “[i]f Plaintiffs wanted to preserve an\n\nalternative theory that the purchase of the Welfenschatz was not a “domestic” taking at all\n\nbecause the Consortium and its members were not German nationals in 1935, then it was their\n\nobligation to ‘spell out [those] arguments squarely and distinctly, or else forever hold [their]\n\npeace.” Def.’s Reply, ECF No. 67, at 12 (quoting Schneider, 412 F.3d at 200 n.1). In the instant\n\ncase, Plaintiffs proffer several alleged justifications for why it was unnecessary for them to\n\nargue this alternative theory, and consistent with that approach, they point to no place in the\n\nrecord before this Court where they made such argument. Accordingly, this Court finds that\n\nPlaintiffs did not preserve an argument regarding any exception to the application of the\n\ndomestic takings rule.\n\n B. Exception to the Domestic Takings Rule\n\n Even assuming arguendo that Plaintiffs did preserve a domestic takings rule argument\n\nbelow, Plaintiffs would need to establish an exception to that rule. To survive a motion to\n\ndismiss in this context, the plaintiffs’ complaint must plead facts establishing that the alleged\n\ntaking was an actual violation of international law. Bolivarian Republic of Venezuela v.\n\nHelmerich & Payne International Drilling Co., 137 S. Ct. 1312, 1318-22 (2017) (Helmerich I);\n\nsee Helmerich & Payne Int’l Drilling Co. v. Bolivarian Republic of Venezuela, 743 Fed. App’x\n\n442, 448-53 (D.C. Cir. 2018) (Hemerich II) (because a plaintiff is required to allege facts\n\nestablishing an actual (not merely possible) violation of international law, a plaintiff has the\n\nburden of showing that their supposed rule was clearly established in international law).\n\n\n\n\n 17\n\f Accordingly, Defendant asserts that because “the domestic-takings rule is a well-established\n\n principle of the law of takings, Philippe III, 141 S. Ct. at 709-11, Plaintiffs must allege facts\n\n establishing that this was not a domestic taking.” Def.’s Mem., ECF No. 63-1, at 32. Plaintiff\n\n must also demonstrate that the “claimed exception is clearly established customary international\n\n law.” Id. at 32-33.\n\n 1. Who are the Consortium members?\n\n In this case, Defendant asserts that the 1935 sale of the Welfenschatz, which is the claimed\n\ntaking, occurred when “the Consortium was solely entitled to ownership rights of the collection\n\n. . .” Def’s Mem., ECF No. 63-1, at 33 (quoting First Am. Compl, ¶ 34, Sec. Am. Compl. ¶ 32).12\n\nUnder international law, “a corporation has the nationality of the state under the laws of which\n\nthe corporation is organized.” Helmerich II, 743 Fed. App’x at 447 (quotation and quotation\n\nmarks omitted). Pursuant to the domestic takings rule, claims that a state has taken the property\n\nof its own corporations are barred. See, e.g., Helmerich II, 743 Fed. App’x, at 447-448 (holding\n\nthat domestic-takings rule applied to Venezuela’s taking of a Venezuelan corporation’s\n\nproperty);13 Ivanenko v. Yanukovich, 995 F. 3d 232, 237 (D.C. Cir. 2021) (same for Ukraine’s\n\ntaking of Ukrainian company property). Defendant argues that “[b]ecause Plaintiffs allege that\n\nGermany took property belonging to the Consortium or the art dealership firms — German\n\ncorporate entities — the domestic-takings rule makes SPK immune from suit.” Def.’s Mem,\n\nECF No. 63-1, at 33 (relying on the allegations in the complaint as well as the expert opinion of\n\n\n\n12\n Plaintiffs cite legal principles relating to the factors underlying a “taking,” Pls.’ Opp’n, ECF\nNo. 66, at 17-20, but this issue is not contested by the Defendant. Rather, the contested issue is\nwhether or not the domestic takings rule applies, based on German nationality of the Consortium\nmembers.\n13\n Plaintiffs assert that “Rosenberg and Rosenbaum are just like the American investors whose\nclaims survived in Helmerich, not the Venezuelan domestic corporations whose claims did not.”\nPls.’ Opp’n, ECF No. 66, at 33-34.\n\n\n 18\n\fProfessor Dr. Christian Armbruster [attached at ECF 63-2] as to the characterization of a\n\n“consortium,” which has the legal capacity to own property). “Since the complaint alleges that\n\nthe Consortium’s only members were three Frankfurt-based firms, and the Consortium’s business\n\nactivities were centered in Germany, it must be treated as [a] German corporate entity.” Def.’s\n\nMem., ECF No. 63-1, at 34 (citing Prof. Armbruster Op. ¶¶ 22-26).14 Accordingly, Defendant\n\nconcludes that the German’s government’s alleged “taking of an art collection belonging to this\n\nGerman legal entity thus falls squarely within the domestic-takings rule.” Def.’s Mem., ECF No.\n\n63-1, at 34; see Helmerich II, 743 Fed. App’x at 447-448.\n\n Defendant turns next to the three art dealership firms that made up the Consortium – Z.M.\n\nHackenbroch, I. Rosenbaum and J.& S. Goldschmidt – and asserts that because “the complaint’s\n\nown allegations and exhibits establish that they were based in Frankfurt,” accordingly, “they too\n\nwere German corporate nationals.” Def.’s Mem., ECF No. 63-1, at 35 (citations omitted).\n\nPlaintiffs do not specifically address the domestic takings argument at the “Consortium” or “art\n\ndealership firm” level, but instead look to the individual owners of the art dealership firms.\n\nDefendant asserts however that this focus on whether “the individual owners of the art dealership\n\nfirms – Hackenbroch, Rosenbaum and Rosenberg, or one of the two Goldschmidts – were foreign\n\nnationals” bypasses “clearly established international law [and] would ignore the nationality of\n\nthe Consortium and the art dealership firms and look instead to the nationality of the individuals\n\nwho owned those firms.” Def.’s Mem., ECF No. 63-1, at 36; see Helmerich II, 743 Fed. App’x.\n\n\n\n14\n Plaintiffs challenge Dr. Armbruster’s opinion that the Consortium here would have had “its own\nlegal person status.” Pls.’ Opp’n, ECF No. 66, at 33 (referencing the expert opinion of Dr. Stephan\nMeder, which was attached as Exhibit 1 [ECF No. 19-2] to a Declaration by Nicholas M.\nO’Donnell in Plaintiffs’ Opposition to Defendant’s Motion to Dismiss the First Amended\nComplaint). This Court need not decide this issue because the remand refers to “Consortium\nmembers” rather than the Consortium itself.\n\n\n\n 19\n\fat 447-453 (noting that entities are legally distinct from their owners and shareholders and\n\nrejecting claims that a state violates international law by taking the property of a domestic\n\ncorporation owned by foreign nationals).\n\n Defendant asserts therefore that the nationality of the individuals at issue in this case is\n\nirrelevant because the property was owned by the Consortium or the art dealership firms. Def.’s\n\nMem., ECF No. 63-1, at 37. In this case, however, the Supreme Court’s remand specifically asks\n\nabout the “Consortium members” and whether they were German nationals, as opposed to\n\ndiscussing the Consortium itself. The Supreme Court opinion references a “consortium of three\n\nart firms owned by Jewish residents of Frankfurt.” Philipp III, 141 S. Ct. at 708. While the term\n\n“Consortium members” could be interpreted as the art dealership firms comprising the\n\nConsortium or the individuals who owned the art dealership firms, the parties’ arguments focus\n\non the latter and this Court interprets it as such.\n\n 2. Nationality\n\n The Supreme Court’s remand in this case and the Court of Appeals mandate direct that this\n\nCourt consider whether “the sale of the Welfenschatz is not subject to the domestic takings rule\n\nbecause the consortium members were not German nationals at the time of the transaction,” Pls.’\n\nOpp’n, ECF No. 66, at 29 (citing Philipp III, 141 S. Ct. at 715 (emphasis added)). Relying on that\n\nexact language, Plaintiffs argue that the “question on remand is whether they were not German\n\nnationals, not whether they were nationals of some other country.” Id. at 29-30 (citing Philipp III,\n\n141 S. Ct. at 711) (noting that “the expropriation exception’s reference to ‘violation of\n\ninternational law’ does not cover expropriations of property belonging to a country’s own\n\nnationals”) (emphasis added by Plaintiffs). Plaintiffs submit that “[t]he Supreme Court could\n\neasily have held that a taking violates international law only when the property [of someone] who\n\n\n\n\n 20\n\fpossess[es] the affirmative nationality of another state is targeted - but it did not.” Pls.’ Opp’n,\n\nECF No. 66, at 29.\n\n Defendant explains however that “the reason the Supreme Court did not itself reject\n\nPlaintiffs’ alternative theory is that Plaintiffs simply “noted” it in the Supreme Court without fully\n\narguing it.” Def.’s Reply, ECF No. 67, at 22 (citing Philipp III, 141 S. Ct. at 715), accord Simon\n\nv. Republic of Hungary, Civil Action No. 10-1770 (BAH), -- F. Supp. 3d --, 2021 WL 6196995,\n\nat *18 (D.D.C. December 30, 2021) (“Simon II”) (discussing Philipp and recognizing that\n\nPlaintiffs only “obliquely” raised this theory and noting that “the clearest statement of what is\n\nmeant by this residual argument on remand was whether the German governmental treatment of\n\nGerman Jews in the 1930s would transgress [the] nationality line, . . . a question plaintiff’s counsel\n\nacknowledged would be a case-specific question of fact that may require the submission of\n\nhistorical expertise[.]”) (internal citations and quotation marks omitted).\n\n As a preliminary matter, this Court notes that with the exception of Rosenberg and\n\nRosenbaum, who are alleged by Plaintiffs to be Dutch nationals at the time of the sale, Plaintiffs’\n\nargument that the other individual art dealers lost their German nationality would leave those\n\nindividuals stateless. Defendant asserts that Plaintiffs’ argument fails because “[a] state’s taking\n\nof a stateless person’s property does not violate the customary international law of takings [a]nd,\n\neven if it did, Plaintiffs have not alleged facts establishing that any of the individual owners were\n\nstateless in 1935.” Def.’s Mem., ECF No. 63-1, at 39. The issue of whether a state violates the\n\ncustomary international law of takings when it takes property from an allegedly stateless person is\n\nan issue that has not been decided in this Circuit.15 The Court of Appeals for the Eleventh Circuit\n\n\n\n15\n Plaintiffs cite no legal authority in support of their proffer that the law of takings is implicated\nby stateless persons. In contrast, see Restatement (Third) of the Foreign Relations Law of the\nUnited States § 712 (A state violates the law of takings when it takes the “property of the national\n\n\n 21\n\fis the only court that appears to have addressed this issue. See Mezerhane v. Republica Bolivariana\n\nDe Venezuela, 785 F.3d 545, 551 (11th Cir. 2015) (after limited analysis, the court dismissed a\n\nclaim by a plaintiff who was alleged to be “de facto stateless” because the claim did not “implicate\n\nmultiple states” as required by the law of takings). “Mezerhane distinguished this holding from\n\nHolocaust-related cases on the grounds that the expropriation at issue in the latter cases were part\n\nof a genocidal plan, id. at 551, a distinction that Philipp later rejected with respect to the\n\napplicability of the expropriation exception.” Simon II, 2021 WL 6196995 at *19 n. 20.\n\n The Court notes that, in Simon II, id. at *18, Chief Judge Howell concluded that it is\n\n“unnecessary [for the Court to make] fact-specific determinations of which instances of abhorrent\n\nhistorical conduct are de facto denationalizing and which are not.” This is because:\n\n Philipp provided sufficiently clear breadcrumbs of a path to conclude that expropriations\n conducted as an integral part of a broad genocidal program [Holocaust] . . . simply cannot\n trigger the expropriation exception with regard to takings from individuals regarded as\n citizens of the expropriating state during or just prior to the genocidal events. Put another\n way, if a loss of nationality is part and parcel of a set of genocidal acts that happen to\n include expropriation, then the expropriation exception becomes the very type of “all-\n purpose jurisdictional hook for adjudicating human rights violations” rejected in Philipp,\n 141 S. Ct. at 713. . . The logical result of plaintiffs’ argument, then, is that any program of\n genocidal conduct of which expropriations are a part – because it inherently entails a loss\n of nationality – falls outside the domestic takings rule and can be prosecuted using the\n expropriation exception. That is precisely what Philipp forecloses, only without\n articulating the intermediate “loss of nationality” step. As the defendant in Philipp\n articulates in a renewed motion to dismiss on remand, “claim[ing] some de facto\n statelessness exception to the domestic-takings rule . . . do[es] little more than ask[ ] this\n Court to reinstate the unanimously overruled Simon [I] decision in new words.”\n\nSimon II, id., at *18. Accordingly, “genocidal expropriations, including those directly associated\n\n\n\nof another state.”); id., cmt. a (explaining that the customary international law of takings is\nconcerned with “economic injury to foreign nationals”); id. § 713, cmt. d (discussing stateless\npersons and noting that the principles in sections 711 and 712 “provide no protection for persons\nwho have no nationality; and the responsibility of the offending state to the state of nationality\nceases if the alien has voluntarily given up that nationality or has lost or been deprived of it under\nthe law of that state”) (cited by Defendant in its Memorandum, ECF No. 63-1, at 42-43).\n\n\n\n 22\n\fwith the result of denaturalization, cannot under Philipp trigger the expropriations exception with\n\nrespect to plaintiffs that would have been nationals of the offending state but for the genocidal\n\nconduct.” Id. at *19; see also Heller v. Republic of Hungary, No. 21-cv-1739-BAH, 2022 WL\n\n2802351, at * 1 (D.D.C. July 18, 2022) (declining to find jurisdiction over claims brought by\n\ncertain heirs of Hungarian Jews who sought compensation for “property unlawfully seized by\n\nHungary in the course of the many atrocities surrounding Hungary’s treatment of its Jewish\n\nresidents before and during World War II”).16 This Court need not weigh in on whether a state\n\nviolates the customary international law of takings when it takes property from an allegedly\n\nstateless person unless the Court finds that Plaintiffs have demonstrated that any of the Consortium\n\nmembers were anything other than German nationals at the time of the sale. Accordingly, this\n\nCourt turns now to its analysis of whether Plaintiffs demonstrate that members of the Consortium\n\nwere not German nationals at the time of the sale.\n\n a. “Defining” Nationality\n\n As a preliminary matter, both parties acknowledge that, in 1930, Germany, among other\n\nstates, entered into a multilateral convention agreeing that “[i]t is for each State to determine under\n\nits own law who are its nationals” and further, “[a]ny question as to whether a person possesses\n\nthe nationality of a particular State shall be determined in accordance with the law of the State.”\n\nConvention on Certain Questions Relating to the Conflict of Nationality Law arts. I & II, Apr. 12,\n\n1930, 179 L.N.T.S. 89. Furthermore, international law leaves to the states’ domestic laws the\n\nquestion of “certain criteria for acquisition and loss of nationality[.]” See Oliver Dorr, Nationality,\n\n\n\n\n16\n Plaintiffs in the instant case note that, in contrast to this case, in Heller, “[n]o party contest[ed]\nthat the Heller Family members were all Hungarian nationals at least up until the time they all fled\nHungary in 1939.” Pls.’ Resp. to Notice, ECF No. 69, at 2 (citing Heller, 2022 WL 2802351, at\n*6).\n\n\n 23\n\fMax Planck Encyclopedias of International Law at ¶ 4 (2019) (International law “neither contains\n\nnor proscribes certain criteria for acquisition and loss of nationality,” leaving those questions to\n\nstates’ domestic laws.); see also Comparelli v. Republica Bolivariana de Venezuela, 891 F.3d\n\n1311, 1321-22 (11th Cir. 2018) ( International law’s basic rule on nationality is “that it is generally\n\nup to each state (i.e. country) to determine who are its nationals.”)\n\n Defendant notes the distinction between nationality and citizenship, and explains that it is\n\n“nationality, not citizenship, that matters to the domestic-takings rule.” Def.’s Mem., ECF No.\n\n63-1, at 38 n.15; see e.g., Abelesz v. Maygar Nemzeti Bank, 692 F.3d 661, 676 n.6 (7th Cir. 2012)\n\n(explaining this point and rejecting argument that deprivation of citizenship brought a case outside\n\nthe domestic-takings rule).17 Defendant contends therefore that “[w]hether the art dealers were\n\nGerman nationals or instead were “stateless” thus depends on the status German law gave them in\n\n1935.” Def.’s Reply, ECF No. 67, at 24-25; see Camparelli, 891 F. 3d at 1321 (finding that\n\nwhether plaintiffs were Venezuelan nationals at the time of the alleged taking was “determined by\n\nthe laws of Venezuela”).\n\n Plaintiffs assert that nationality “is determined by one’s social ties to the country of one’s\n\nnationality, and when established, gives rise to rights and duties on the party of the state, as well\n\nas on the part of the citizen/national.” Pls.’ Opp’n, ECF No. 66, at 21 (citing Alice Edwards &\n\nLaura Van Waas, Nationality and Statelessness Under International Law at 12 (Cambridge\n\nUniversity Press, Kindle Ed. 2014)); see also Restatement (Second) of the Foreign Relations Law\n\nof the United States § 26 (1965) (“An individual has the nationality of a state that confers it upon\n\nhim provided there exists a genuine link between the state and individual.”) According to\n\n\n\n17\n Plaintiffs acknowledge that “[c]itizenship as conferred by the state and nationality under\ninternational law can diverge.” Pls.’ Opp’n, ECF No. 66, at 22.\n\n\n\n 24\n\fPlaintiffs, “nationality is a ‘legal bond having as its basis a social fact of attachment, a genuine\n\nconnection of existence, interests, and sentiments, together with the existence of reciprocal rights\n\nand duties.” Pls.’ Opp’n, ECF No 66, at 20 (quoting Nottebohm (Liech v. Guat.) Judgment, 49 AM\n\nJ INTER’L L. 396 (1955) (“Nottebohm”)).\n\n Defendant contests Plaintiffs’ reliance on the International Court of Justice decision insofar\n\nas Nottebohm, 1955 I.C.J. 4 (Apr. 6), involved “a German citizen and long-time resident of\n\nGuatemala, who, at the outset of World War II, briefly visited Liechtenstein and became a national\n\nof that country through a sham process.” Def.’s Reply, ECF No. 67, at 25; see Nottebohm at 13-\n\n16. Upon his return to Guatemala, authorities there tried to seize his assets at the behest of the\n\nUnited States as part of the war effort against Germany. Id.; Nottebohm at 17-20. The ICJ found\n\nthat Liechtenstein lacked standing to espouse a claim against Guatemala on Nottebohm’s behalf\n\nbecause there was no “genuine connection” between Nottebohm and Liechtenstein (such as\n\nacquiring nationality by birth, owning property, or living there) that supported his acquisition of\n\nthat country’s nationality. Id.; see Nottebohm at 20-24. Defendant notes that Nottebohm is “not\n\ngenerally accepted and therefore not part of customary international law.” Def.’s Reply, ECF No.\n\n67, at 25-26; see Oliver Dorr, Nationality, ¶ 4; see also Restatement (Third) of the Foreign\n\nRelations of the United States § 211 reporter’s note 1 (“Nothing in [Nottebohm] suggests that a\n\nstate may refuse to give effect to a nationality acquired at birth, regardless of how few other links\n\nthe individual had at birth or maintained later.”) Reviewing the authorities relevant to defining\n\nnationality that were cited by the parties, this Court looks to German law for guidance regarding\n\nthe art dealers’ nationality at the time of the sale.\n\n 3. Plaintiffs’ Allegations in their Amended Complaints\n\n In the instant case, Plaintiffs indicate that their Second Amended Complaint contains\n\n\n\n\n 25\n\f“numerous examples” of “relevant international law” that demonstrate that Jews in Nazi Germany\n\nwere not German nationals by the time of the sale, as “be[ing] a German national always required\n\nnot being a Jew.” Pls.’ Opp’n, ECF No. 66, at 25. Plaintiffs reference three paragraphs from the\n\nComplaint, which presumably support this general contention. They are reiterated below, as\n\nfollows.\n\n Mein Kampf [ ] left no doubt as to Hitler’s worldview, and his views on where Jews fit into\n it, i.e., they did not. For anyone who was seeking to rise within the NSDAP, or later the\n government that it took over, it left no secret about how to please Hitler.\n\n The Enabling Act of 1933 (Gessetz zur Behebung der Not von Volk und Reich, or the Law\n for the Remedy of the Emergency of the People and the Reich) amended the Weimar\n Constitution further, giving the Chancellor — i.e., Hitler — the power to enact laws\n without the legislature.\n\n These laws and regulations, while draconian, barely approach the repression that was\n unleashed on Germany’s Jews. Through the collective humiliation, deprivation of rights,\n robbery, and murder of the Jews as a population, they were officially no longer considered\n German.\n\nPls.’ Opp’n, ECF No. 66, at 25 (citing SAC ¶¶ 43, 53, 55).\n\n Furthermore, Plaintiffs state that their “second Amended Complaint references by name\n\nindisputable historical documents that confirm,” Pls.’ Opp’n, ECF No. 66, at 26, that the Nazi\n\nmovement’s “motivating principle was the exclusion of Jews from the very ability to be German.”\n\nId. at 25. While Plaintiffs rely on language from the Nazi Party Platform that “no Jew may be a\n\nmember of the [German] nation,” id. at 26, that language was not included in their Complaint.\n\nMoreover, while they allege that the Nazi Party Platform was “identified specifically in Paragraph\n\n48 of the Second Amended Complaint,” Pls.’ Opp’n, ECF No. 66, at 26, the Court’s review of\n\nParagraph 48 indicates that this allegation is somewhat misleading. The assertions in Paragraph\n\n48 are – like the majority of Plaintiffs’ assertions – general in nature, and they are tangential at\n\nbest in providing information about the Consortium members’ alleged loss of German nationality\n\nby the time of the sale. See SAC ¶ 48 (“On January 30, 1933, Adolf Hitler was appointed\n\n\n 26\n\fChancellor by aging Reich President Paul von Hindenberg. What was initially perceived as a\n\nstabilizing nod to conservatism, quickly descended into an onslaught of repression. All the designs\n\nof the Nazi Party program of 1920, the failed ‘putsch’ of 1923, and Mein Kampf had now assumed\n\nthe authority of the state.”)\n\n Defendant asserts and this Court agrees that, under Helmerich, Plaintiffs fail to meet their\n\nburden of demonstrating an exception to the domestic takings rule by “pointing to ‘the judgments\n\nand opinions of national and international judicial bodies, scholarly writings, and unchallenged\n\ngovernmental pronouncements that undertake to state a rule of international law.’” Def.’s Reply,\n\nECF No. 67, at 23 (citing Helmerich II, 743 Fed. App’x at 449 (internal quotation marks omitted));\n\nsee also Exxon Mobil Corp.v. Corporación Cimex S.A., 534 F. Supp. 3d 1, at 27-28 (D.D.C. 2021)\n\n(dismissing claim because plaintiff failed to “marshal[ ] enough evidence from reputable sources\n\nof customary international law” to support its position in a case involving expropriation of assets\n\nlocated in Cuba and owned and operated by Exxon’s subsidiary).\n\n Defendant’s discussion of German law pertaining to nationality relies in part on the Expert\n\nOpinion of Professor Jan Thiessen, see Def.’s Motion, Ex. B, ECF No. 63-3, at 5 (noting that\n\n“[b]efore September 1935, there was no legal distinction between nationality and citizenship under\n\nGerman law” and nationality was governed by the “Nationality Law of 1913” which “also applied\n\nto Jewish Germans”), at 5 (German nationality was “generally obtained by being born to German\n\nparents or by the naturalization of foreigners”), at 6 (recognizing that the Nazis discriminated\n\nagainst Jewish people in many ways but this “discrimination did not initially relate to questions of\n\nnationality or citizenship in general”), at 7-8 (during the relevant time period, finding no\n\ndenaturalization of Jewish Germans in accordance with the 1933 Law for the Repeal of\n\nNaturalization and Revocation of German Nationality), at 9-10 (discussing laws regarding\n\n\n\n\n 27\n\fnationality and citizenship after the 1935 sale). While Plaintiffs criticize Dr. Thiessen’s\n\nqualifications, they proffer no contrary expert opinion, and accordingly, the Court accepts Dr.\n\nThiessen’s opinions as uncontroverted.\n\n Defendant concludes that:\n\n Rather than addressing actual German law, Plaintiffs contend this Court can ignore\n it and treat the art dealers as de facto stateless persons due to the Nazis’ discrimination\n against and persecution of Jewish Germans in 1933-35. They cite at length the statements\n of various Nazi officials regarding Nazi ideology, under which German Jews were not seen\n as true German citizens or nationals. But nationality is controlled by a state’s actual law,\n not by the ideology of its ruling party or the statements of its leaders. And while Nazi\n Germany’s grave mistreatment of its own Jewish nationals in the early years of the Nazi\n era is reprehensible, Plaintiffs cite no authority establishing as a rule of international law\n that a state’s mistreatment of its own nationals falls outside the domestic-takings rule.\n\n\nDefs.’ Reply, ECF No. 67, at 27-28 (internal citation omitted). In the instant case, Plaintiffs\n\nidentify no source suggesting that the law of takings is violated when a state takes a stateless\n\nperson’s property, contrary to the standard set forth in cases addressing an expropriation exception,\n\nsee Helmerich II, 743 Fed. App’x at 449 (requiring expropriation-exception plaintiffs to show the\n\nexistence of an exception to the domestic-takings rule through evidence of customary international\n\nlaw’s content); see also Simon II, 2021 WL 6196995, at *19 (noting that “in order to prevail on a\n\nmotion to dismiss, a plaintiff must show that he or she was not a Hungarian national immediately\n\nprior to defendants’ expropriation of their property or the commencement of other genocidal\n\nconduct”)18; Heller v. Republic of Hungary, 2022 WL 2802351, at *6-9 (rejecting plaintiffs\n\ncontention that Hungary’s “gradual stripping away of all indicia of citizenship from its Jewish\n\nresidents” made them de facto stateless, on grounds that this argument would “nullify any practical\n\n\n\n\n18\n In Simon II, id. at *19-21, the court concluded that four plaintiffs did not show a lack of\nHungarian nationality prior to Hungary’s wartime conduct, while nine plaintiffs did. Id. at *29-\n32.\n\n\n 28\n\feffect of Philipp’s holding” and would be inconsistent with interpretation and application of\n\nSupreme Court precedent); Philipp III, 141 S. Ct. at 711-14 (explaining that the expropriation\n\nexception does not exist to address foreign states’ human-rights abuses).\n\n Defendant contends that the facts provided in the Second Amended Complaint do not\n\nindicate that any of the individuals were nationals of another state in 1935, but rather, they validate\n\nthat “[a]ll were long-time German residents operating German firms in Frankfurt.” Def.’s Mem.,\n\nECF No. 63-1, at 37-38 (referencing the SAC ¶¶ 1, 17-20, 32; SAC Ex. 1 at 5). More specifically,\n\nDefendant states that:\n\n Hackenbroch died there, and his family left the country three years after the Welfenschatz\n was sold. SAC ¶¶ 162, 167. Plaintiffs allege that on their departure, one of his relatives\n was stripped of German citizenship, id. ¶ 168, showing she retained it until then. Similarly,\n the Goldschmidts continued to operate their business in Germany after the sale, leaving\n Germany a few years later. Id. ¶ 169. And while the complaint vaguely alleges that\n Rosenberg and Rosenbaum had “emigrated by 1935 from Germany,” it does not allege\n they had become nationals of the Netherlands or any other state. Id. ¶ 170. To the contrary,\n they continued to operate their business in Germany for several more years. Id. ¶¶ 170-\n 71. And the complaint explicitly alleges that Rosenberg was stripped of German\n citizenship in 1941 – nearly six years after the sale – seemingly establishing that he\n remained a German national (and citizen) until then. Id. ¶ 172. The complaint’s allegations\n thus show that all the art dealers were German nationals in June 1935.\n\n\nDef.’s Mem., ECF No. 63-1, at 38-39. Furthermore, this Court notes plaintiffs’ concession that\n\n“[t]here is no dispute, because Plaintiffs allege it specifically, that the Nazi regime did not\n\nundertake the public shaming of identifying individual Consortium members for citizenship-\n\nstripping until after 1935.” Pls.’ Opp’n, ECF No. 66, at 27.19 Plaintiffs acknowledge also that the\n\nNuremberg laws, which were enacted after the sale, “did not deprive Jews of citizenship (or\n\nnationality).” Pls.’ Opp’n, ECF No. 66, at 28. Accordingly, this Court finds that Plaintiffs’\n\n\n\n\n19\n Plaintiffs assert however that these “ceremonial acts of ridicule made no difference from one day\nto the next with respect to the individual’s relationship to the state.” Id.\n\n\n 29\n\fallegations in their Amended Complaints regarding the individual art dealers and Nazi regime\n\npolicies in effect during the applicable time period do not suffice to demonstrate that the\n\nConsortium members were not German nationals at the time of the sale.\n\n 4. Rosenbaum and Rosenberg\n\n In support of their claim that two of the art dealers acquired Dutch nationality by the time\n\nof the sale, see Pls.’ Opp’n, ECF No. 66, at 22, Plaintiffs rely heavily on a single allegation in their\n\nComplaint stating that Rosenberg and Rosenbaum had emigrated by 1935 from Germany to the\n\nNetherlands. FAC ¶ 171, SAC ¶ 170. Plaintiffs argue that emigration implies that “the individual\n\nhas renounced” a former nationality. Pls’ Opp’n, ECF No. 66, at 23, citing Restatement (Second)\n\nof the Foreign Relations Law of the United States § 26, but that section does not support that\n\nproposition. Plaintiffs indicate that Rosenbaum “died in Amsterdam in 1936,” while Rosenberg\n\n“escaped to England.” Pls.’ Opp’n, ECF No. 66, at 23. Plaintiffs proffer that Rosenberg and\n\nRosenbaum certainly had no attachment or connection with Germany, nor any existence of\n\nreciprocal rights after they left Germany because of the “Nazi policy about nationality,” Pls.’\n\nOpp’n, ECF No. 66, at 24, but this generalization seems to the Court to be similar to the type of\n\n“de facto statelessness” claim that was discussed and dismissed in Simon II.\n\n Defendant argues that with regard to Rosenbaum and Rosenberg, Plaintiffs asserted only\n\nthat they had “emigrated” from Germany in 1935, but Plaintiffs “never plead (or argue) that either\n\none had lost German nationality by operation of Germany’s nationality laws.” Def.’s Reply, ECF\n\nNo. 67, at 26; see Professor Thiessen’s Supplemental Expert Opinion, attached as Ex. B to Def.’s\n\nReply, ECF No. 67-2, at 3 (indicating that the “legislation in force in Germany in June/July 1935\n\nidentified several specific conditions that would result in a loss of German nationality), at 4\n\n(discussing the Nationality Law and conditions under which nationality was lost and finding that\n\n\n\n\n 30\n\f“permanently leaving Germany, even with the intention not to return, is not one of the conditions\n\nthat result[ed] in an automatic loss of nationality”), at 6 (opining that the claim that Rosenbaum\n\nand Rosenberg “emigrated” from German between 1933 and 1935 is “insufficient to establish that\n\neither of those art dealers would have ceased to be German nationals by June/July 1935”); see also\n\nSAC ¶ 172 (alleging that Rosenberg was stripped of German citizenship in 1941). Defendant\n\nconcludes and this Court agrees that Plaintiffs fail to meet “their burden of pleading facts\n\nestablishing that either [Rosenbaum or Rosenberg] was no longer a German national in 1935.”\n\nDef.’s Reply, ECF No. 67, at 26; see Simon II, 2021 WL 6196995, at *19 (dismissing claims of\n\nfour plaintiffs for whom “nothing in the record suggest[ed] a lack of Hungarian nationality at the\n\nrelevant time”).\n\n\n IV. CONCLUSION\n\n For the reasons explained herein, this Court has determined that Plaintiffs failed to preserve\n\ntheir argument that the sale of the Welfenschatz is not subject to the domestic takings rule because\n\nthe Consortium members were not German nationals at the time of the sale. Even assuming\n\narguendo that such argument was preserved, this Court finds that Plaintiffs failed to provide\n\nadequate information in support of their contention that the art dealers were not German nationals\n\nat the time of the sale. Plaintiffs direct this Court to general allegations in the Amended Complaints\n\nregarding the treatment of Jews during the relevant period and a statement that two of the art\n\ndealers emigrated to the Netherlands by 1935 and left their business in Germany to be run by the\n\nbrother of one of them. To survive a motion to dismiss, a plaintiff must plead facts “mak[ing] out\n\na legally valid claim that a certain kind of right is at issue (property rights) and that the relevant\n\nproperty was taken in a certain way (in violation of international law).” See Helmerich I, 137 S.\n\nCt. at 1316. On the record before this Court, the Court finds that Plaintiffs fail to meet their burden\n\n\n\n 31\n\fof pleading facts establishing that the Consortium members were not German nationals at the time\n\nof the sale. Accordingly, because this transaction falls within the domestic takings rule and is not\n\nwithin the scope of the FSIA’s expropriation exception, Defendant’s [63] Motion to Dismiss the\n\nSecond Amended Complaint shall be granted. A separate Order accompanies this Memorandum\n\nOpinion.\n\n ____________/s/__________________\n COLLEEN KOLLAR-KOTELLY\n UNITED STATES DISTRICT JUDGE\n\n\n\n\n 32\n\f", "ocr": false, "opinion_id": 7803691 } ]

"2022-06-10"

[ "311 Neb. 746" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 12, "download_url": "https://www.nebraska.gov/apps-courts-epub/public/viewOpinion?docId=N00008653PUB", "author_id": null, "opinion_text": "Nebraska Supreme Court Online Library\nwww.nebraska.gov/apps-courts-epub/\n08/26/2022 12:07 PM CDT\n\n\n\n\n - 746 -\n Nebraska Supreme Court Advance Sheets\n 311 Nebraska Reports\n IN RE APPEAL OF Z.H.\n Cite as 311 Neb. 746\n\n\n\n\n In re Appeal of Z.H. From Request of Accommodations\n for February 2021 Bar Examination.\n Z.H., appellant, v. Nebraska State Bar\n Commission, appellee.\n ___ N.W.2d ___\n\n Filed June 10, 2022. No. S-21-232.\n\n 1. Jurisdiction: Appeal and Error. A jurisdictional question that does not\n involve a factual dispute is determined by an appellate court as a matter\n of law.\n 2. Judgments: Appeal and Error. On questions of law, an appellate court\n has an obligation to reach its own independent conclusions.\n 3. Rules of the Supreme Court: Attorneys at Law: Appeal and Error.\n The Nebraska Supreme Court considers the appeal of an applicant from\n a final ruling of the Nebraska State Bar Commission de novo on the\n record made at the hearing before the commission.\n 4. Jurisdiction: Appeal and Error. Before reaching the legal issues\n presented for review, it is the duty of an appellate court to determine\n whether it has jurisdiction over the appeal.\n 5. Rules of the Supreme Court: Attorneys at Law. The Nebraska\n Supreme Court is vested with the sole power to admit persons to the\n practice of law in this state and to fix qualifications for admission to the\n Nebraska bar.\n 6. ____: ____. The Nebraska Supreme Court has delegated administra-\n tive responsibility for bar admissions solely to the Nebraska State\n Bar Commission.\n 7. Administrative Law. An administrative agency has limited power, and\n its power is to be strictly construed.\n\n Appeal from the Nebraska State Bar Commission. Appeal\n dismissed.\n Z.H., pro se.\n\f - 747 -\n Nebraska Supreme Court Advance Sheets\n 311 Nebraska Reports\n IN RE APPEAL OF Z.H.\n Cite as 311 Neb. 746\n\n Douglas J. Peterson, Attorney General, and James A.\nCampbell, Solicitor General, for appellee.\n Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,\nPapik, and Freudenberg, JJ.\n Per Curiam.\n INTRODUCTION\n Z.H. seeks reimbursement from the Nebraska State Bar\nCommission (Bar Commission) for costs and damages associ-\nated with her application for admission to the Nebraska State\nBar Association. For the reasons stated herein, we conclude\nthat we lack jurisdiction to hear the appeal and the appeal\nis dismissed.\n BACKGROUND\n Z.H. completed law school in 2000. In July 2019 and\nFebruary 2020, Z.H. took the Nebraska bar examination, but\ndid not obtain passing scores. In February 2021, Z.H. took and\npassed the Nebraska bar examination.\n Because of a diagnosis of rheumatoid arthritis that limits\nher mobility, Z.H. applied for and received accommodations\nof 33 percent more time to complete the bar examination and\na separate room in which to take each of her examinations.\nFor the February 2020 examination, Z.H. also received an\naccommodation to use an adjustable chair to help her manage\nthe stress and pain of sitting and typing for long periods. For\nthe July 2020 examination, Z.H. requested an accommodation\nto allow her to use speech recognition software to overcome\nher deteriorating mobility. According to Z.H., that request was\ndenied as untimely filed. As a result of COVID-19 protocols\nput in place for the July 2020 examination, Z.H. was unable to\ntake that examination or the special September 2020 examina-\ntion. Z.H. deferred to the February 2021 examination, which\nwas scheduled to be held remotely.\n On January 7, 2021, the Bar Commission granted Z.H.\nthe following testing accommodations: extra testing time of\n\f - 748 -\n Nebraska Supreme Court Advance Sheets\n 311 Nebraska Reports\n IN RE APPEAL OF Z.H.\n Cite as 311 Neb. 746\n\n33 percent, as well as a private single examinee room and\na chair with adjustable height. The Bar Commission denied\nZ.H.’s request for the use of the speech recognition software\nafter concluding the software would impact the security of the\nexamination. The commission agreed to provide Z.H. with a\nscribe who would type Z.H.’s answers from Z.H.’s dictation.\nThe accommodation required Z.H. to conduct the examina-\ntion in the Bar Commission’s office in Lincoln, Nebraska.\nOn February 4, Z.H. requested a review hearing before the\nBar Commission, presumably under Neb. Ct. R. § 3-123 (rev.\n2020), which allows an applicant to request a hearing regarding\nan adverse decision of the Bar Commission.\n A hearing on Z.H.’s appeal was held on February 12, 2021,\nat which time Z.H. represented herself. On February 13, the\nBar Commission entered an order which provided Z.H. a\nchoice of two options to assist her in taking the examination.\n“Option I” allowed Z.H. the following:\n An additional 33% extra time to complete each of the 3\n exam parts. [Z.H.] will be provided an adjustable chair.\n The exam will be administered in the [Bar] Commission’s\n office located at 3806 Normal Blvd in Lincoln, Nebraska.\n This will be a private examinee room. A scribe, of the\n [Bar] Commission’s choosing, will transcribe as [Z.H.]\n dictates for the MPT and MEE. The transcription will be\n projected to a big screen where [Z.H.] may edit as the\n content is typed. The second day of the exam will be the\n MBE which may be taken at a location [Z.H.] designates\n which may include the [Bar] Commission Office. The\n MBE exam will be administered -on [Z.H.’s] computer\n equipment as a secure . . . exam.\n [Z.H.] shall provide the [Bar] Commission with a\n negative COVID-19 test - obtained as close as possible\n to the exam - and she shall isolate herself as much as\n possible up to arriving at the [Bar] Commission office\n to minimize the likelihood of contracting or spreading\n COVID-19. A mask shall be worn by [Z.H.] throughout\n\f - 749 -\n Nebraska Supreme Court Advance Sheets\n 311 Nebraska Reports\n IN RE APPEAL OF Z.H.\n Cite as 311 Neb. 746\n\n the time in the [Bar] Commission office when others are\n present. Failure to wear a mask will subject [Z.H.] to the\n cancellation of the exam.\n“Option II” allowed Z.H. the following:\n An additional 33% extra time to complete each of the\n 3 exam parts and an adjustable chair. The exam will be\n administered in the [Bar] Commission’s office located\n at 3806 Normal Blvd in Lincoln, Nebraska. In the pres-\n ence of a proctor and/or audio and video equipment that\n records what is said and what is typed. This will be a pri-\n vate examinee room. [Speech recognition] software may\n be used to do the transcription for the exam by dictating\n into a Word document and then transferring the content\n into the [secure exam software] question fields. The word\n document may not be saved. [Z.H.] must supply her own\n computer which has been wiped of all programs and\n documents with the exception of the [speech recognition\n software, word processing software, and secure exam\n software] programs. [Z.H.] must execute an affidavit pre-\n pared by the [Bar] Commission attesting to the deletion\n of all programs with the exception of [speech recognition\n software, word processing software, and secure exam\n software], and that the computer has been purged of all\n bar preparation outlines, practice essays and other related\n documents. [Z.H.’s] computer will be inspected upon\n arrival on exam day. [Z.H.] will not be allowed to take the\n exam if the computer is not cleared of all documents and\n programs other than the 3 designated programs. If [Z.H.]\n encounters any problems removing any applications or\n documents, she must inform the [Bar] Commission staff\n in advance of the Bar Exam. [Z.H.] will not access the\n internet at any time during the exam.\n The second day of the exam will be the MBE which\n may be taken at a location [Z.H.] designates -and may\n include the [Bar] Commission office. The MBE exam\n\f - 750 -\n Nebraska Supreme Court Advance Sheets\n 311 Nebraska Reports\n IN RE APPEAL OF Z.H.\n Cite as 311 Neb. 746\n\n will be administered through [Z.H.’s] computer equip-\n ment as a secure . . . exam.\n [Z.H.] shall provide the [Bar] Commission with a\n negative COVID-19 test obtained as close to the exam as\n possible and she shall isolate herself as much as possible\n up to arriving at the [Bar] Commission office to minimize\n the likelihood of contracting and spreading COVID-19. A\n mask must be worn by [Z.H.] whenever there is someone\n else in the room with her. Failure to wear a mask will\n subject the exam to cancellation.\n Z.H. chose Option II and sat for the February 2021 examina-\ntion. According to Z.H., prior to the examination, her computer\noperated normally with the software necessary to comply with\nthe Bar Commission’s order. However, during the examination,\nZ.H.’s laptop encountered difficulties. Ultimately, Z.H., with\nthe assistance of a proctor, was able to complete the examina-\ntion in 111⁄2 hours. Z.H. averred that due to the computer dif-\nficulties, she experienced extreme mental stress, anxiety, and\nphysical pain.\n On March 15, 2021, Z.H. filed a notice of appeal with\nthe Clerk of the Nebraska Supreme Court under Neb. Ct. R.\n§ 3-126(A) and (B) (rev. 2020). In her notice of appeal, Z.H.\nrequested that she have an opportunity to prove damages; that\nif she failed the examination, the Bar Commission be enjoined\nfrom denying the use of speech recognition software for the\nnext examination; and that she be allowed to use speech recog-\nnition software without the interruption of other software used\nby the Bar Commission to monitor her test taking.\n On March 17, 2021, Z.H. filed a document labeled\n“Amendment pursuant to Neb. Ct. R. § 6-1115(a).” Attached\nto the filing were three affidavits in which Z.H. reiterated the\ninformation contained within her initial notice of appeal. On\nthat same date, Z.H. submitted a brief in support of her appeal.\nIn that brief, Z.H. sought an unspecified award of damages and\ncosts for the February 2021 bar examination, assumingly to be\npaid by the Bar Commission.\n\f - 751 -\n Nebraska Supreme Court Advance Sheets\n 311 Nebraska Reports\n IN RE APPEAL OF Z.H.\n Cite as 311 Neb. 746\n\n On March 31, 2021, a notice was sent to Z.H. by the Bar\nCommission, informing her that she had successfully passed\nthe February 2021 bar examination.\n On April 1, 2021, Z.H. filed a second amended brief request-\ning damages. That same day, Z.H. filed an affidavit in support\nof her request for damages. The affidavit set forth expenses for\nattorney fees and mailing costs totaling $4,825.84; travel costs,\nlodging costs, and software costs totaling $468.76; and unspec-\nified general damages for violations of 29 U.S.C. § 794(a)\nand (b) (2018) and 42 U.S.C. §§ 12133 and 12188 (2018).\nZ.H.’s attorney fees were based upon her expending 631⁄2 hours\nresearching and drafting appeal documents at the rate of $75\nper hour.\n On May 3, 2021, Z.H. filed a third amended brief. In\nthe third amended brief, Z.H. requested damages to include\n$5,906.25 in attorney fees and mailing costs and $450,000 in\ndamages for violations of the Americans with Disabilities Act\nof 1990 (ADA), 42 U.S.C. § 12101 et seq. (2018).\n After reviewing the briefs filed by Z.H., this court ordered\nsupplemental briefing on the issue of whether this court has\njurisdiction to rule upon Z.H.’s request for damages. Both Z.H.\nand the Bar Commission complied with our order for supple-\nmental briefing.\n\n ASSIGNMENTS OF ERROR\n On appeal, Z.H. assigns that the Bar Commission erred in\n(1) discriminating against her by reason of her disability, in\nviolation of the ADA and its regulations; (2) failing to provide\nZ.H. with “‘meaningful access’” to the February 2021 bar\nexamination, which “‘best ensures’” measurement of Z.H.’s\nknowledge of the law rather than her inability to type with\nspeed and accuracy under timed testing conditions, in con-\nflict with the ADA and its regulations; (3) requiring Z.H.\nto test in person by reason of her disability, in conflict with\nthe Supreme Court’s remote-only testing order and in con-\nflict with the ADA and its regulations; and (4) disregarding\n\f - 752 -\n Nebraska Supreme Court Advance Sheets\n 311 Nebraska Reports\n IN RE APPEAL OF Z.H.\n Cite as 311 Neb. 746\n\nverification of Z.H.’s worsening disability provided by Z.H.’s\nqualified medical practitioners of almost 8 years and, instead,\nrequiring “‘further documentation’” in the form of additional\nphysical evaluation reports and laboratory testing reports in\nconflict with the ADA regulations.\n STANDARD OF REVIEW\n [1,2] A jurisdictional question that does not involve a factual\ndispute is determined by an appellate court as a matter of law. 1\nOn questions of law, an appellate court has an obligation to\nreach its own independent conclusions. 2\n [3] The Nebraska Supreme Court considers the appeal of an\napplicant from a final ruling of the Bar Commission de novo\non the record made at the hearing before the commission. 3\n ANALYSIS\n Z.H. claims that she was discriminated against, in that she\nwas required to take the bar examination in Lincoln while other\napplicants took the examination remotely. Z.H. also claims\nthat she was subject to additional scrutiny and unfair treat-\nment while seeking accommodations and while taking the bar\nexamination. As a result, Z.H. claims this treatment violated\nher rights pursuant to the ADA; the Rehabilitation Act of 1973,\n29 U.S.C. § 701 et seq. (2018 and Supp. II 2020); and the Due\nProcess and Equal Protection Clauses of the U.S. Constitution.\nZ.H. claims she is entitled to reimbursement for hotel costs and\nother expenses incurred while taking the bar examination in\nLincoln and for attorney fees. Z.H. seeks punitive damages and\na declaration that her rights were violated.\n Under Neb. Ct. R. § 3-115(A) (rev. 2020), it is the policy\nof the Bar Commission to administer the bar examination\n1\n In re Estate of Severson, 310 Neb. 982, 970 N.W.2d 94 (2022).\n2\n Nebraska Dept. of Health & Human Servs. v. Struss, 261 Neb. 435, 623\n N.W.2d 308 (2001).\n3\n In re Application of Collins, 288 Neb. 519, 849 N.W.2d 131 (2014).\n\f - 753 -\n Nebraska Supreme Court Advance Sheets\n 311 Nebraska Reports\n IN RE APPEAL OF Z.H.\n Cite as 311 Neb. 746\n\nin a manner that does not discriminate on the basis of dis-\nability. Under § 3-115(K), the Bar Commission will grant\na request and provide special testing accommodations to an\napplicant if it finds all of the following: “(1) the applicant\nhas a disability and is otherwise eligible to take the bar\nexamination; (2) the special testing accommodations are nec-\nessary to ameliorate the impact of the applicant’s disability;\nand (3) the special testing accommodations are reasonable\naccommodations.”\n Section 3-115(B)(3) defines a “reasonable accommodation”\nas follows:\n [A]n adjustment or modification of the standard testing\n conditions that ameliorates the impact of the applicant’s\n disability without doing any of the following:\n (a) Fundamentally altering the nature of the exami-\n nation or the [Bar] Commission’s ability to determine\n through the bar examination whether the applicant pos-\n sesses the essential skills, level of achievement, and apti-\n tudes that are among the essential eligibility requirements\n set forth in § 3-112, that the Nebraska Supreme Court and\n the [Bar] Commission have determined are required for\n admission to the practice of law in Nebraska;\n (b) Imposing an undue burden on the [Bar] Commission;\n (c) Compromising the security of the examination; or\n (d) Compromising the integrity, the reliability, or the\n validity of the examination.\n Section 3-115(L) states: “The [Bar] Commission will have\nsole discretion to determine what special testing accommoda-\ntions are reasonable accommodations. The [Bar] Commission\nmay provide accommodations different than those requested\nby the applicant if the [Bar] Commission determines that\nthe accommodations provided will effectively ameliorate the\nimpact of the applicant’s disability.”\n Under § 3-126(A), an applicant is entitled to appeal to\nthe Supreme Court from an adverse decision of the Bar\nCommission in accordance with § 3-123. Under § 3-126(C),\n\f - 754 -\n Nebraska Supreme Court Advance Sheets\n 311 Nebraska Reports\n IN RE APPEAL OF Z.H.\n Cite as 311 Neb. 746\n\nthe Supreme Court may appoint a master to hear arguments\nof the applicant and the Bar Commission, make findings, and\nreport them to the court with a recommended disposition.\nSection 3-126(D) states that if no hearing before a master is\nheld, the court shall consider the matter de novo on the record\nmade at the hearing before the Bar Commission.\n We have defined an “adverse decision” as “a denial by\nthe Bar Commission of a request for special testing accom­\nmodation.” 4 In a previous case, we assumed, without decid-\ning, that a request for accommodations can be effectively\ndenied if an applicant’s request is substantially granted by the\nBar Commission but the Bar Commission places additional\nconditions on the accommodations that the applicant claims\nare unacceptable. 5\n [4] Before reaching the legal issues presented for review, it\nis the duty of an appellate court to determine whether it has\njurisdiction over the appeal. 6 Only one other case has come\nbefore us on the issue of the denial of accommodations and the\naward of damages in conjunction with the bar examination. 7\n In In re Appeal of Stoller, 8 Asher L. Stoller, an applicant\nfor admission to the Nebraska State Bar Association, appealed\nthe denial of reimbursement from the Bar Commission for\ncosts and damages he allegedly incurred as a result of his\napplication for admission. Stoller had sought double time to\ncomplete his examination due to his dyslexia. In considering\nhis request for accommodation, the Bar Commission required\nStoller to undergo an evaluation by an expert selected by the\nBar Commission. The examination was to be completed at\nStoller’s expense. Stoller then sought reimbursement for the\n4\n Neb. Ct. R. § 3-101(B)(2) (rev. 2020).\n5\n In re Appeal of Stoller, 261 Neb. 150, 622 N.W.2d 878 (2001).\n6\n In re Estate of Larson, 308 Neb. 240, 953 N.W.2d 535 (2021).\n7\n See In re Appeal of Stoller, supra note 5.\n8\n Id.\n\f - 755 -\n Nebraska Supreme Court Advance Sheets\n 311 Nebraska Reports\n IN RE APPEAL OF Z.H.\n Cite as 311 Neb. 746\n\ncost of the examination and attorney fees. Stoller’s requests\nwere denied, and Stoller appealed.\n On appeal, we appointed a special master to preside over\na hearing into Stoller’s claims. Though we ultimately dis-\nmissed the appeal as untimely filed, we held that “an applicant\nto the bar who is denied an accommodation for a disability,\nor who claims that an accommodation offered by the Bar\nCommission is unsatisfactory, may appeal that determination\n. . . despite not failing or being denied permission to take the\nbar examination.” 9\n In the instant matter, Z.H.’s claims are similar to those\nraised by Stoller. However, in In re Appeal of Stoller, we did\nnot reach the issue of whether we could award damages in an\nappeal from the Bar Commission.\n The Bar Commission contends that since Z.H.’s request\nfor accommodations was granted, it was not an adverse deci-\nsion from which she could appeal. The Bar Commission also\ncontends that there is nothing in this court’s rules authorizing\nappeals from denials of requests for special testing accom-\nmodations which permits an applicant to recover damages or\nto raise a statutory or constitutional claim for damages. The\nBar Commission further contends that there is nothing in this\ncourt’s rules governing requests for special testing accommo-\ndations which permits the Bar Commission to award damages\nto the applicant.\n For purposes of this appeal, we again assume without decid-\ning that a request for accommodations can be effectively\ndenied within the meaning of § 3-126(A) if an applicant’s\nrequest is substantially granted by the Bar Commission but the\nBar Commission places additional conditions on the accommo-\ndations that the applicant claims are unacceptable.\n [5,6] In turning to the issue of damages, we note that the\nNebraska Supreme Court is vested with the sole power to\n9\n Id. at 156, 622 N.W.2d at 884.\n\f - 756 -\n Nebraska Supreme Court Advance Sheets\n 311 Nebraska Reports\n IN RE APPEAL OF Z.H.\n Cite as 311 Neb. 746\n\nadmit persons to the practice of law in this state and to fix\nqualifications for admission to the Nebraska bar. 10 In turn, we\nhave delegated administrative responsibility for bar admissions\nsolely to the Bar Commission. 11 We have also established\nspecific rules and processes which set forth how the Bar\nCommission is to carry out its duties and responsibilities. 12\n [7] Our rules do not establish a process for an applicant to\nseek costs which the applicant may have incurred in taking the\nbar examination. Further, our rules do not authorize the Bar\nCommission to award costs incurred by applicants when taking\nthe bar examination. We have held that “[a]n administrative\nagency . . . has limited power, and its power is to be strictly\nconstrued.” 13 As such, the Bar Commission is without authority\nto award damages or costs to Z.H. and failure to do so cannot\nbe error.\n Z.H. counters that we have jurisdiction to award her dam-\nages and the other relief she seeks under our original jurisdic-\ntion as set forth in article V, § 2, of the Nebraska Constitution.\nHowever, this case is not an original action, but, rather,\nan appeal challenging the Bar Commission’s order grant-\ning Z.H.’s request for special testing accommodations. The\nprior proceedings before the Bar Commission are set out in\nthe transcript, including the order on appeal setting forth the\naccommodations. The case is docketed in this court as an\nappeal. There is no application for a writ to issue from the\nSupreme Court, which would be the practice if this were an\noriginal case, and nowhere except in the argument is there\nany pretense of invoking the original jurisdictional powers\n\n10\n In re Application of McDonnell, 299 Neb. 289, 908 N.W.2d 32 (2018). See\n Neb. Const. art. II, § 1, and art. V, §§ 1 and 25.\n11\n See Neb. Ct. R. § 3-102 (rev. 2020).\n12\n Neb. Ct. R. § 3-101 et seq (rev. 2020).\n13\n Governor’s Policy Research Office v. KN Energy, 264 Neb. 924, 932, 652\n N.W.2d 865, 872 (2002).\n\f - 757 -\n Nebraska Supreme Court Advance Sheets\n 311 Nebraska Reports\n IN RE APPEAL OF Z.H.\n Cite as 311 Neb. 746\n\nof this court. There is no question but that this action invokes\nthe appellate jurisdiction of this court, as distinguished from\nits original jurisdiction. 14 As such, we too lack jurisdiction to\naward Z.H. the relief she seeks.\n Our lack of jurisdiction to award Z.H. costs, damages, and\nother relief does not mean that Z.H. is without legal recourse to\nseek redress from the harms she has alleged. Our ruling merely\nmeans that she must seek her relief in another venue.\n\n CONCLUSION\n The remedies Z.H. seeks from the Bar Commission and\nthe Supreme Court are not authorized by statute or court\nrule. Consequently, this court lacks jurisdiction to address her\nclaims. We therefore dismiss Z.H.’s appeal.\n Appeal dismissed.\n14\n See State v. Amsberry, 104 Neb. 273, 178 N.W. 822 (1920).\n\f", "ocr": false, "opinion_id": 7803974 } ]

"2022-08-25"

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 1, "download_url": "http://www.search.txcourts.gov/RetrieveDocument.aspx?DocId=42094&Index=%5c%5c10%2e20%2e4%2e7%5cTamesIndexes%5ccoa13%5cOpinion", "author_id": null, "opinion_text": " THE THIRTEENTH COURT OF APPEALS\n\n 13-22-00014-CV\n\n\n Harlingen Consolidated Independent School District\n v.\n Diana Lisa Montemayor\n\n\n On Appeal from the\n County Court at Law No. 3 of Cameron County, Texas\n Trial Court Cause No. 2021-CCL-00382\n\n\n JUDGMENT\n\n THE THIRTEENTH COURT OF APPEALS, having considered this cause on\n\nappeal, concludes the judgment of the trial court should be reversed and rendered. The\n\nCourt orders the judgment of the trial court REVERSED and RENDERS judgment in\n\naccordance with its opinion. Costs of the appeal are adjudged against appellee.\n\n We further order this decision certified below for observance.\n\nAugust 25, 2022\n\f", "ocr": false, "opinion_id": 7804310 } ]

"2022-08-29"

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 3, "download_url": "https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2022cv2162-5", "author_id": null, "opinion_text": " UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF COLUMBIA\n\n\n WILLIAM TERRELL SHAW\n Plaintiff,\n Civil Action No. 22-2162 (JMC)\n v.\n\n SEMIRA NEGASI, et al.,\n\n Defendants.\n\n\n MEMORANDUM OPINION\n\n Pro se Plaintiff William Terrell Shaw filed a civil complaint against Defendants Semira\n\nNegasi, Bobbie Jefferson, Matthew Turner and the Bishop of D.C. Episcopal Church, alleging\n\nunspecified violations of the Americans with Disabilities Act, 42 U.S.C. § 12101 (ADA). For the\n\nreasons discussed in greater detail below, the Court DISMISSES the complaint, but grants Shaw\n\nleave to refile within 30 days an amended complaint that cures the existing deficiencies.\n\n I. Background\n\n On July 22, 2022, William Terrell Shaw filed a Complaint for Violation of Civil Rights by\n\nsupplementing this Court’s standard form with six pages of typed notes. ECF 1 at 8-13. Shaw’s\n\nnotes touched on a range of topics: he quoted portions of the ADA, id. at 6, noted that he\n\nexperiences the effects of prior strokes, id. at 9, and expressed his frustration at the indifference of\n\nemployees working at Friendship Terrace. Id. at 9-10. At one point, Shaw seemed to allege that\n\nemployees of Friendship Terrace caused him “delays in completing forms” and ignored him in\n\nother instances of daily life, though Shaw did not name specific employees or describe how the\n\nemployees delayed him. Id. at 9. Shaw sought damages of $5,000,000. Id. at 7. The same day he\n\n\n\n\n 1\n\ffiled his complaint, Shaw also filed a motion for service by the United States Marshalls. ECF 3.\n\nDefendants have not yet responded to Plaintiff’s complaint.\n\n II. Analysis\n\n Federal Rule of Civil Procedure 8(a)(2) requires civil complaints to include “a short and\n\nplain statement of the claim showing that the pleader is entitled to relief.” It does not demand\n\n“detailed factual allegations,” but it does require enough factual information “to raise a right to\n\nrelief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).\n\nThese procedural requirements promote fairness in litigation—Rule 8(a) is intended to “give the\n\ndefendant fair notice of what the . . . claim is and the grounds upon which it rests.” Id. (citing\n\nConley v. Gibson, 355 U.S. 41, 47 (1957)).\n\n Pleadings filed by pro se litigants are held to less stringent standards than those applied to\n\nformal pleadings drafted by lawyers. See Haines v. Kerner, 404 U.S. 519, 520 (1972). But even\n\npro se litigants must comply with the Federal Rules of Civil Procedure. Shaw’s complaint fails to\n\ndo so. Some of the named defendants do not appear anywhere in the complaint’s narrative, and the\n\nlack of supporting factual allegations makes it impossible to determine the basis of Shaw’s ADA\n\nclaim. Said plainly, Shaw fails to specify who did what to him, or how any alleged misconduct\n\nviolated the ADA. Even construing Shaw’s complaint leniently, the Court cannot make out his\n\ntheory of how Defendants violated the ADA or any other statute.\n\n Shaw’s complaint is therefore dismissed for failure to comply with FRCP 8(a)(2). The\n\nCourt acknowledges that dismissing a case sua sponte is an unusual step, but courts have done so\n\nwhen plaintiffs fail to comply with procedural rules. See, e.g., Brown v. Washington Metropolitan\n\nArea Transit Authority, 164 F. Supp. 3d 33, 35 (D.D.C. Feb. 5, 2016) (dismissing a complaint sua\n\nsponte for failing to comply with FRCP 8(a)); Hamrick v. United States, No. 10-857, 2010 WL\n\n\n\n\n 2\n\f3324721, at *1 (D.D.C. Aug. 24, 2010) (same); see also Ciralsky v. CIA, 355 F.3d 661, 668–69\n\n(D.C. Cir. 2004) (finding no abuse of discretion where a district court dismissed a claim without\n\nprejudice for failure to comply with Rule 8(a)).\n\n The Court grants Shaw leave to refile within 30 days an amended complaint that cures the\n\nexisting deficiencies. But if Shaw fails to file an amended complaint within that timeframe or files\n\nan amended complaint that merely recycles the complaint presently before the Court, it may be\n\ndismissed with prejudice. See Brown, 164 F. Supp. 3d at 35.\n\n III. Conclusion\n\n Plaintiff’s complaint is DISMISSED, but he is granted leave to refile within 30 days an\n\namended complaint. The Court also DENIES Plaintiff’s motion for U.S. Marshals to serve\n\nsummons as moot; a separate order will follow this opinion.\n\n\n\n SO ORDERED.\n\n DATE: August 29, 2022\n\n\n\n Jia M. Cobb\n U.S. District Court Judge\n\n\n\n\n 3\n\f", "ocr": false, "opinion_id": 7804596 } ]

"2022-08-29"

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 32, "download_url": "http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2022/D08-29/C:21-3371:J:Brennan:aut:T:fnOp:N:2924545:S:0", "author_id": 8553, "opinion_text": " In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 21-3200\nBARBARA LUKASZCZYK, et al.,\n Plaintiffs-Appellants,\n v.\n\nCOOK COUNTY, et al.,\n Defendants-Appellees.\n ____________________\n\n Appeal from the United States District Court for the\n Northern District of Illinois, Eastern Division.\n No. 1:21-cv-05407 — Robert W. Gettleman, Judge.\n ____________________\nNo. 21-3231\nJOHN HALGREN, et al.,\n Plaintiffs-Appellants,\n\n v.\n\nCITY OF NAPERVILLE, et al.,\n Defendants-Appellees.\n ____________________\n\n Appeal from the United States District Court for the\n Northern District of Illinois, Eastern Division.\n No. 1:21-cv-05039 — John Robert Blakey, Judge.\n ____________________\n\f2 Nos. 21-3200, et al.\n\nNo. 21-3371\nSCOTT TROOGSTAD, et al.,\n Plaintiffs-Appellants,\n\n v.\n\nCITY OF CHICAGO and JAY ROBERT PRITZKER,\nGovernor,\n Defendants-Appellees.\n ____________________\n\n Appeal from the United States District Court for the\n Northern District of Illinois, Eastern Division.\n No. 1:21-cv-05600 — John Z. Lee, Judge.\n ____________________\n\n ARGUED MAY 26, 2022 — DECIDED AUGUST 29, 2022\n ____________________\n\n Before BRENNAN, SCUDDER, and ST EVE, Circuit Judges.\n BRENNAN, Circuit Judge. In these appeals, which we con-\nsolidate for decision, three district judges denied motions for\npreliminary injunctions against state and local COVID-19 vac-\ncine mandates. The plaintiffs argue the mandates violate their\nconstitutional rights to substantive due process, procedural\ndue process, and the free exercise of religion. They also con-\ntend the mandates violate Illinois state law. Although the\nplaintiffs could have presented some forceful legal argu-\nments, they have failed to develop factual records to support\ntheir claims. Because the plaintiffs have not shown a likeli-\nhood of success on the merits, we affirm the decisions of the\ndistrict judges.\n\fNos. 21-3200, et al. 3\n\n I. Factual Background\n In response to the COVID-19 pandemic, state and local\nauthorities in Illinois enacted a series of mandates and re-\nstrictions. The State of Illinois, Cook County Health and Hos-\npitals System, the City of Chicago, and the City of Naperville\neach issued an order, policy, or directive requiring certain em-\nployees to vaccinate or regularly test for the virus. Employees\nwho failed to comply with the mandates would be subject to\ndisciplinary action, including possible termination. We begin\nby briefly summarizing each of the relevant state and local\npolicies.\n The 2021 Illinois Mandate. On September 3, 2021, Governor\nPritzker used his emergency powers under the Illinois Emer-\ngency Management Agency Act, 20 ILL. COMP. STAT. 3305/1 et\nseq., to issue Executive Order 2021–22 (“2021 Order”). The\n2021 Order requires certain healthcare workers to vaccinate,\nor test at least weekly, for COVID-19. Workers who fail to\ncomply with the mandate will not be permitted on the prem-\nises of a healthcare facility. Under the 2021 Order, a “Health\nCare Worker” is defined as “any person who (1) is employed\nby, volunteers for, or is contracted to provide services for a\nHealth Care Facility, or is employed by an entity that is con-\ntracted to provide services to a Health Care Facility, and (2) is\nin close contact” with other persons in the facility for a speci-\nfied amount of time. Initially, a “Health Care Facility”\nincluded “any institution, building, or agency … whether\npublic or private (for-profit or nonprofit), that is used, oper-\nated or designed to provide health services, medical treat-\nment or nursing, or rehabilitative or preventive care to any\nperson or persons.” According to the Order, “hospitals” and\n“emergency medical services” met this definition.\n\f4 Nos. 21-3200, et al.\n\n A worker is exempt from the vaccination requirement if\n“(1) vaccination is medically contraindicated,” or “(2) vac-\ncination would require the individual to violate or forgo a sin-\ncerely held religious belief, practice, or observance.” But\nexempt workers still need to “undergo, at a minimum, weekly\ntesting.” The 2021 Order also provides that “[s]tate agen-\ncies … may promulgate emergency rules as necessary to ef-\nfectuate” it.\n The 2021 Order states it is intended to reduce COVID-19\nexposure and transmission: “health care workers, and partic-\nularly those involved in direct patient care, face an increased\nrisk of exposure to COVID-19.” Requiring these workers to\nreceive a “vaccine or undergo regular testing can help prevent\noutbreaks and reduce transmission to vulnerable individuals\nwho may be at higher risk of severe disease.” The Order states\nthat “stopping the spread of COVID-19 in health care settings\nis critically important because of the presence of people with\nunderlying conditions or compromised immune systems.”\n The 2022 Illinois Mandate. Ten months later, on July 12,\n2022, Governor Pritzker issued Executive Order 2022–16\n(“2022 Order”), which re-issued and modified the 2021 Order.\nThe 2022 Order removes “emergency medical services” and\n“IDPH licensed emergency medical service vehicles” from the\ndefinition of a “Health Care Facility.” It also requires that cer-\ntain healthcare workers undergo weekly or biweekly testing\nonly when the level of COVID-19 Community Transmission\nis moderate or high, depending on the type of facility.\n The Cook County Mandate. Cook County Health and Hos-\npitals System (“Cook County Health”) is an agency of Cook\nCounty, Illinois. On August 16, 2021, it issued a vaccination\npolicy (“County Health Vaccination Policy”) that required all\n\fNos. 21-3200, et al. 5\n\npersonnel be fully vaccinated by September 30, 2021 as a con-\ndition of their employment. 1 The policy applies to all Cook\nCounty Health personnel, including contractors like the Hek-\ntoen Institute for Medical Research, LLC, a nonprofit organi-\nzation that administers medical research grants. Failure to\ncomply with the County Health Vaccination Policy “consti-\ntute[s] gross insubordination and will result in disciplinary\naction, up to and including termination.”\n The policy permits exemptions “based upon a disability,\nmedical condition, or sincerely held religious belief, practice,\nor observance.” Exemption requests are considered individu-\nally. When reviewing an exemption request, Cook County\nHealth considers: (1) “the duration of the request (either per-\nmanent in the case of exemptions or temporary in the case of\ndeferrals),” (2) “the nature and severity of the potential harm\nposed by the request,” (3) “the likelihood of harm,” and\n(4) “the imminence of the potential harm.” Exempt personnel\nare still “required to comply with preventive infection control\nmeasures established by the Health System,” which could in-\nclude conditions “such as job location, job duties, and shift,\nbut will minimally include weekly COVID-19 testing and en-\nhanced [personal protective equipment] protocols.” At first,\nCook County Health decided to reject any religious accom-\nmodation request made by a person who had previously\ntaken the flu vaccine. It remains unclear whether this ap-\nproach was formally reversed, but there is no dispute that\n\n\n\n 1 Several days later, the Cook County President issued an executive\norder, which mandated the COVID-19 vaccine for certain Cook County\nemployees and encouraged County offices to develop their own vaccina-\ntion policies.\n\f6 Nos. 21-3200, et al.\n\nCook County Health later decided to grant religious exemp-\ntions.\n The City of Chicago Mandate. On October 8, 2021, the City of\nChicago issued a COVID-19 Vaccination Policy (“Chicago\nVaccination Policy”), which required all City employees to be\nfully vaccinated by the end of the calendar year. Effective Oc-\ntober 15, 2021, all employees, “as a condition of employment,”\nhad to “either be fully vaccinated against COVID-19” or un-\ndergo testing on a “twice weekly basis with tests separated by\n3-4 days.” Employees are “responsible for obtaining tests on\ntheir own time and at no cost to the City.” The testing option\nexpired at the end of the year, at which point employees\nwould need to be fully vaccinated. The Chicago Vaccination\nPolicy permits accommodations for a disability, medical con-\ndition, or sincerely held religious belief. To receive a religious\naccommodation, an employee must fill out a request form, in-\ncluding the reason for the exemption, the religious principle\nthat conflicted with being vaccinated, and the signature of a\nreligious leader.\n The City of Naperville Mandate. On September 9, 2021, the\nCity of Naperville issued “Naperville Fire Department Spe-\ncial Directive #21-01” (“Naperville Special Directive”). Under\nthat directive, emergency medical technicians and firefighters\nemployed by Naperville are required to either produce\nweekly negative COVID-19 tests or show proof of vaccination.\nThis mandate is effectively coterminous with the State of Illi-\nnois’s 2021 Order.\n\fNos. 21-3200, et al. 7\n\n II. Procedural Background\n Three lawsuits were filed in the Northern District of Illi-\nnois, each challenging the Governor’s 2021 Order and one of\nthe local mandates.\n In Troogstad v. City of Chicago, a group of City employees\n(“Troogstad plaintiffs”) challenged the Chicago Vaccination\nPolicy and the 2021 Order. They claimed the regulations vio-\nlated their rights to bodily autonomy under the constitutional\ndoctrines of substantive due process, procedural due process,\nand the free exercise of religion. They also claimed the policies\nviolated the Illinois Health Care Right of Conscience Act. The\nTroogstad plaintiffs petitioned for a temporary restraining or-\nder against the enforcement of the policies, which Judge John\nLee denied. They then moved for a preliminary injunction.\nThe Troogstad plaintiffs declined to supplement the record\nwith witnesses and limited discovery, instead filing a supple-\nmental brief in support of their motion. Judge Lee denied that\nmotion, and the Troogstad plaintiffs appeal that decision.\n In Lukaszczyk v. Cook County, a group of Cook County\nHealth and Hektoen employees (“Lukaszczyk plaintiffs”) chal-\nlenged the County Health Vaccination Policy and the 2021 Or-\nder. They brought claims implicating substantive due pro-\ncess, procedural due process, free exercise of religion, and the\nIllinois Health Care Right of Conscience Act. Based on these\nclaims, the plaintiffs moved for a preliminary injunction to\nbar enforcement of the mandates. Judge Robert Gettleman de-\nnied that motion from the bench. The Lukaszczyk plaintiffs ap-\npeal that decision.\n In Halgren v. City of Naperville, employees of the City of\nNaperville Fire Department (“Halgren plaintiffs”) challenged\n\f8 Nos. 21-3200, et al.\n\nthe Naperville Special Directive and the 2021 Order. The\nHalgren plaintiffs named as defendants Governor Pritzker, the\nCity of Naperville, and Edward-Elmhurst Healthcare\n(“EEH”)—a health system which operates a Naperville hos-\npital and coordinates emergency medical services with the\nFire Department. The Naperville Special Directive also stated\nthat the Edward Hospital EMS System required the Fire De-\npartment to “provide a roster of who is vaccinated and a ros-\nter of who will be submitting to weekly testing.” According to\nthe Halgren plaintiffs, the regulations violated their rights to\nprivacy and bodily autonomy under the constitutional doc-\ntrines of substantive due process, procedural due process,\nand equal protection. They moved for a temporary restraining\norder and preliminary injunction against the policies, as well\nas a declaratory judgment that the Governor had exceeded his\nstatutory authority. The parties later agreed to convert the\nHalgren plaintiffs’ combined motion for emergency relief into\na motion only for a preliminary injunction. When given the\nopportunity, both parties chose to forgo discovery. Judge\nJohn Robert Blakey denied the Halgren plaintiffs’ motion,\nwhich they now appeal.\n III. Mootness and Standing\n Two threshold issues for our consideration are whether\ncertain claims are moot because of the 2022 Order and if cer-\ntain parties have standing.\n The Constitution limits federal jurisdiction to cases and\ncontroversies. U.S. CONST. art. III, § 2. This limitation applies\n“at ‘all stages of review, not merely at the time the complaint\nis filed.’” UWM Student Ass’n v. Lovell, 888 F.3d 854, 860 (7th\nCir. 2018) (quoting Ciarpaglini v. Norwood, 817 F.3d 541, 544\n(7th Cir. 2016)). A plaintiff has standing if he has “(1) suffered\n\fNos. 21-3200, et al. 9\n\nan injury in fact, (2) that is fairly traceable to the challenged\nconduct of the defendant, and (3) that is likely to be redressed\nby a favorable judicial decision.” Fox v. Dakkota Integrated Sys.,\nLLC, 980 F.3d 1146, 1151 (7th Cir. 2020) (quoting Spokeo, Inc. v.\nRobins, 578 U.S. 330, 338 (2016)). “The party invoking federal\njurisdiction bears the burden of establishing these elements.”\nLujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) (citation\nomitted). The case becomes moot, “[i]f at any point the plain-\ntiff would not have standing to bring suit at that time.” Mil-\nwaukee Police Ass’n v. Bd. of Fire & Police Comm’rs of City of the\nMilwaukee, 708 F.3d 921, 929 (7th Cir. 2013). As a general rule,\ncases or individual claims for relief are moot when the “issues\npresented are no longer ‘live’ or the parties lack a legally cog-\nnizable interest in the outcome.” League of Women Voters of\nInd., Inc. v. Sullivan, 5 F.4th 714, 721 (7th Cir. 2021) (quoting\nPowell v. McCormack, 395 U.S. 486, 496 (1969)).\n A. The 2022 Order\n Governor Pritzker’s 2022 Order, which amended the 2021\nOrder, removed (among other things) the phrase “emergency\nmedical services” from the definition of a “Health Care Facil-\nity.” This amendment meant the 2021 Order no longer ap-\nplied to emergency medical services because employees at\nthese facilities did not fall within the definition of a healthcare\nworker. So, employees of the Chicago and Naperville Fire De-\npartments were not subject to the Governor’s vaccination\nmandate. As a result, the claims of those plaintiffs against\nGovernor Pritzker are moot because they seek to enjoin a pol-\nicy that no longer applies to them. All other plaintiffs may still\nproceed with their claims against the Governor.\n\f10 Nos. 21-3200, et al.\n\n Practically, this means all the Halgren plaintiffs’ claims\nagainst Governor Pritzker are moot, 2 and all the claims made\nby Chicago Fire Department employees in Troogstad against\nGovernor Pritzker are moot. Each of these plaintiffs were con-\nsidered healthcare workers because they were part of “emer-\ngency medical services,” so they now seek to enjoin an inap-\nplicable policy.\n B. The Hektoen Employees\n Governor Pritzker argues that the Lukaszczyk plaintiffs\nlack standing to challenge the 2021 Order because their al-\nleged injury is not fairly traceable to the mandate. According\nto the Governor, the plaintiffs failed to present evidence that\nthey objected to the weekly testing option, which was permit-\nted in lieu of vaccination. Each of the Lukaszczyk plaintiffs—\nthe Cook County and Hektoen employees—testified in their\ndepositions that they were willing to comply with a testing\noption. So, the Governor submits, the plaintiffs’ “alleged inju-\nries of unwanted vaccination and/or employment discipline\nare the product of the County’s mandate and are not fairly\ntraceable to the Governor’s conduct.”\n We disagree and conclude that the Lukaszczyk plaintiffs\nhave standing to challenge the 2021 Order. There is standing\nif a plaintiff has a fairly traceable injury that the court could\nredress with a favorable decision. Fox, 980 F.3d at 1151. An\ninjury in fact is “an invasion of a legally protected interest\nwhich is (a) concrete and particularized,” and “(b) actual or\nimminent, not conjectural or hypothetical.” Lujan, 504 U.S. at\n\n 2The Halgren plaintiffs were the only parties to raise an equal protec-\ntion claim, and that claim was made solely against the Governor, so we\nhave no occasion to reach that constitutional argument.\n\fNos. 21-3200, et al. 11\n\n560 (cleaned up). An injury is “particularized” if it “affect[s]\nthe plaintiff in a personal and individual way.” Id. at 560 n.1.\nIt is concrete if it is “real,” not abstract. Spokeo, Inc., 578 U.S. at\n340 (citation omitted). The Lukaszczyk plaintiffs’ successfully\nalleged an injury in fact by claiming they were burdened by\nscheduling and paying for weekly COVID-19 tests. See\nCzyzewski v. Jevic Holding Corp., 137 S. Ct. 973, 983 (2017) (“For\nstanding purposes, a loss of even a small amount of money is\nordinarily an ‘injury.’” (citations omitted)). The burden of\nscheduling and paying for weekly tests suffices for an Article\nIII injury.\n The injuries here are also fairly traceable to the defendants\nbecause they are a direct result of the County Health Vaccina-\ntion Policy. Both the district court and our court could redress\nthe plaintiffs’ injuries by enjoining the vaccination mandate,\neliminating the extra costs imposed on the defendants. See id.\nThe Lukaszczyk plaintiffs therefore have standing to challenge\nthe County Health Vaccination Policy.\n C. Edward-Elmhurst Healthcare\n EEH argues it is not responsible for the vaccine and testing\nmandates so it should not be a party. Standing requires “a\ncausal connection between the injury and the conduct com-\nplained of.” Lujan, 504 U.S. at 560–61 (citing Simon v. E. Ky.\nWelfare Rights Org., 426 U.S. 26, 41–42 (1976)). Because EEH\ndid not issue or require compliance with either the 2021 or\n2022 Orders or the Naperville Special Directive, EEH argues\nit did not cause the harm the Halgren plaintiffs allege.\n On this record, the Halgren plaintiffs do not have standing\nagainst EEH. Like those plaintiffs, EEH was subject to the Na-\nperville Special Directive. But there is no evidence that EEH\n\f12 Nos. 21-3200, et al.\n\nhelped promulgate it. By its own terms, the Naperville Special\nDirective mentions EEH only once, stating that certain em-\nployers must provide EEH with “lists of vaccinated and tested\nemployees.” Affidavits from an EEH official confirm this ac-\ncount. The plaintiffs do not respond to this argument, except\nto state that EEH’s agent is empowered to supervise, and po-\ntentially to suspend, EMS personnel. But the only evidence\nthe plaintiffs provided are their own affidavits, claiming that\nNaperville told them that EEH required compliance with the\nSpecial Directive. That EEH complied with Naperville’s Spe-\ncial Directive is not, by itself, enough to prove a causal con-\nnection. See Doe v. Holcomb, 883 F.3d 971, 975–76 (7th Cir. 2018)\n(noting that when a plaintiff sues a state official to enjoin the\nenforcement of a state statute, he must “establish that his in-\njury is causally connected to that enforcement and that enjoin-\ning the enforcement is likely to redress his injury”). So, the\nHalgren plaintiffs do not have standing against EEH, and we\nneed not resolve EEH’s alternative argument that it is not a\nstate actor. The Halgren plaintiffs may proceed on their claims\nagainst Naperville, but not against EEH.\n IV. Preliminary Injunction\n Having resolved those justiciability questions, we now re-\nview the denial in each case of a motion for a preliminary in-\njunction. Such a denial is examined for abuse of discretion.\nDM Trans, LLC v. Scott, 38 F.4th 608, 617 (7th Cir. 2022). A dis-\ntrict court abuses its discretion “when it commits a clear error\nof fact or an error of law.” Cassell v. Snyders, 990 F.3d 539, 545\n(7th Cir. 2021) (quoting Abbott Lab'ys v. Mead Johnson & Co.,\n971 F.2d 6, 13 (7th Cir. 1992)). We consider the district court’s\nlegal conclusions de novo and its findings of fact for clear\n\fNos. 21-3200, et al. 13\n\nerror. Common Cause Ind. v. Lawson, 978 F.3d 1036, 1039 (7th\nCir. 2020) (citations omitted).\n A preliminary injunction is “an exercise of a very far-\nreaching power, never to be indulged in except in a case\nclearly demanding it.” Cassell, 990 F.3d at 544 (quoting Orr v.\nShicker, 953 F.3d 490, 501 (7th Cir. 2020)). A party seeking a\npreliminary injunction “must establish that he is likely to suc-\nceed on the merits, that he is likely to suffer irreparable harm\nin the absence of preliminary relief, that the balance of equi-\nties tips in his favor, and that an injunction is in the public\ninterest.” Winter v. Natural Res. Defense Council, Inc., 555 U.S.\n7, 20 (2008) (citation omitted). The first step requires that the\nplaintiff “demonstrate that [his] claim has some likelihood of\nsuccess on the merits, not merely a better than negligible\nchance.” Mays v. Dart, 974 F.3d 810, 822 (7th Cir. 2020) (inter-\nnal citation and quotation marks omitted). It “is often deci-\nsive.” Braam v. Carr, 37 F.4th 1269, 1272 (7th Cir. 2022). If plain-\ntiffs fail to establish their likelihood of success on the merits,\nwe need not address the remaining preliminary injunction el-\nements. Doe v. Univ. of S. Ind., No. 22-1864, 2022 WL 3152596,\nat *3 (7th Cir. Aug. 8, 2022).\n We address the remaining claims in the order presented\non appeal, which is the same order in which the district judges\naddressed them. Those claims are:\n\f14 Nos. 21-3200, et al.\n\n Halgren v. Lukaszczyk v. Troogstad v.\n City of Cook County, City of\n Naperville, No. 21-3200 Chicago,\n No. 21-3231 No. 21-3371\n Judge Gettle-\n Judge Blakey man Judge Lee\n Substantive\n Due X X X\n Process\n Procedural\n Due X X X\n Process\n Free\n X X\n Exercise\n Illinois\n Health Care\n Right of X X\n Conscience\n Act\n\n\n A. Substantive Due Process\n The plaintiffs in each case claim state and local COVID-19\nregulations violated their constitutional right to substantive\ndue process by interfering with their rights to bodily auton-\nomy and privacy.\n The Fourteenth Amendment provides in part that no state\nshall “deprive any person of life, liberty, or property, without\ndue process of law.” U.S. CONST. amend. XIV, § 1. The Due\nProcess Clause has a substantive and procedural component.\nBut “[t]he scope of substantive due process is very limited.”\nCampos v. Cook Cnty., 932 F.3d 972, 975 (7th Cir. 2019) (quoting\nTun v. Whitticker, 398 F.3d 899, 902 (7th Cir. 2005)).\n\fNos. 21-3200, et al. 15\n\n“Substantive due process protects against only the most egre-\ngious and outrageous government action.” Id. (citations omit-\nted). When stating a claim, a “plaintiff must allege that the\ngovernment violated a fundamental right or liberty.” Id. (cit-\ning Washington v. Glucksberg, 521 U.S. 702, 720 (1997)). Such a\nviolation must have been arbitrary and irrational. Id. (citations\nomitted). Courts should also be “reluctant to expand the con-\ncept of substantive due process because guideposts for re-\nsponsible decisionmaking in this unchartered area are scarce\nand open-ended.” Collins v. City of Harker Heights, 503 U.S.\n115, 125 (1992) (citation omitted).\n Under this framework, we consider whether the plaintiffs\nassert a fundamental right or liberty. If so, we must apply\nheightened scrutiny. If not, we review the claim for a rational\nbasis. Several cases speak to this decision. In Jacobson v. Com-\nmonwealth of Massachusetts, the Supreme Court considered the\nvalidity of a Massachusetts statute that required all persons\nolder than 21 receive the smallpox vaccine. 197 U.S. 11, 12\n(1905). Failure to comply with the law would result in a $5\nfine (about $140 today). Id.; Roman Cath. Diocese of Brooklyn v.\nCuomo, 141 S. Ct. 63, 70 (2020) (Gorsuch, J., concurring). The\nlaw’s only exception was for children deemed unfit for vac-\ncination who presented a certificate signed by a registered\nphysician. Jacobson, 197 U.S. at 12. In response to the state law,\nthe city of Cambridge board of health adopted a regulation\nrequiring that all city inhabitants be vaccinated or revac-\ncinated. Id. at 12–13. Henning Jacobson did not comply with\nthe mandate and was sentenced to jail until he agreed to pay\nthe fine. Id. at 13. He appealed, claiming the Massachusetts\nlaw authorizing the local mandate violated his constitutional\nrights under the Fourteenth Amendment. Id. at 14.\n\f16 Nos. 21-3200, et al.\n\n The Supreme Court held in Jacobson that a state may re-\nquire, without exception, that the public be vaccinated for\nsmallpox. Id. at 39. The Court reasoned that “[a]ccording to\nsettled principles, the police power of a state must be held to\nembrace, at least, such reasonable regulations established di-\nrectly by legislative enactment as will protect the public\nhealth and the public safety.” Id. at 25 (citations omitted). The\nMassachusetts legislature “required the inhabitants of a city\nor town to be vaccinated only when, in the opinion of the\nboard of health, that was necessary for the public health or the\npublic safety.” Id. at 27. Investing “such a body with authority\nover such matters was not an unusual, nor an unreasonable\nor arbitrary, requirement,” the Court concluded. Id. But “if a\nstatute purporting to have been enacted to protect the public\nhealth, the public morals, or the public safety” lacks any “real\nor substantial relation to those objects, or is, beyond all ques-\ntion, a plain, palpable invasion of rights secured by the fun-\ndamental law, it is the duty of the courts to so adjudge, and\nthereby give effect to the Constitution.” Id. at 31 (citations\nomitted).\n Jacobson, although informative precedent, is factually dis-\ntinguishable. The Massachusetts law and Cambridge man-\ndate were challenged in the wake of the smallpox pandemic,\nwhich was of a different nature than the COVID-19 pandemic\nof the last few years. For example, as Judge Blakey found in\nHalgren, the smallpox fatality rate among the unvaccinated\nwas about 26 percent; by contrast, the COVID-19 infection fa-\ntality rate was estimated in January 2021 to be somewhere be-\ntween 0.0–1.63 percent. Frank Fenner et al., Smallpox and its\nEradication, WORLD HEALTH ORGANIZATION (1988); John P.A.\nIoannidis, Infection fatality rate of COVID-19 inferred from sero-\nprevalence data, WORLD HEALTH ORGANIZATION BULLETIN (Oct.\n\fNos. 21-3200, et al. 17\n\n14, 2020) (stating that COVID-19 “[i]nfection fatality rates\nranged from 0.00% to 1.63%” with “corrected values from\n0.00% to 1.54%” and in “people younger than 70 years, infec-\ntion fatality rates ranged from 0.00% to 0.31% with crude and\ncorrected medians of 0.05%”).\n In Halgren the district court also found that COVID-19 has\n“a low attack rate”3 in contrast to the smallpox pandemic.\nGrace E. Patterson et al., Societal Impacts of Pandemics: Compar-\ning COVID-19 With History to Focus Our Response, FRONTIERS\nIN PUBLIC HEALTH (Apr. 21, 2021). Judge Blakey further con-\ncluded that the vaccines for smallpox and COVID-19 are dis-\ntinguishable—the smallpox vaccine was a sterilizing vaccine,\nintended to kill the virus and prevent transmission, but many\nof the COVID-19 vaccines are, by design, non-sterilizing.\nJames Myhre and Dennis Sifris, MD, Sterilizing Immunity and\nCOVID-19 Vaccines, VERYWELL HEALTH (Dec. 24, 2020).\n Jacobson is also legally and historically distinguishable.\nThe decision predates United States v. Carolene Products Co.,\n304 U.S. 144 (1938), in which the Court reserved the possibility\nof stricter standards of review for certain constitutional cases\nimplicating “prejudice against discrete and insular minori-\nties.” Id. at 152–53 & n.4. The principles underlying Jacobson\nare also important to consider. As Judge Blakey noted in a\nthorough opinion, in Jacobson the Court voiced concerns for\nfederalism, the limits of liberty, and the separation of powers.\nJacobson instructed that in emergency circumstances courts\ndefer to the executive and legislative branches, but they do\n\n\n 3 An “attack rate” is typically “calculated as the number of people who\n\nbecame ill divided by the number of people at risk for the illness.” Attack\nRate, ENCYCLOPEDIA BRITANNICA (2016).\n\f18 Nos. 21-3200, et al.\n\nnot abdicate their constitutional role. If a policy had “no real\nor substantial relation” to its ends, the Court in Jacobson rea-\nsoned, courts had a duty to intervene. Jacobson, 197 U.S. at 31.\n Recent circuit precedent supplements Jacobson. In Klaassen\nv. Trustees of Indiana University, eight students brought a law-\nsuit against Indiana University challenging the school’s\nCOVID-19 vaccine policy. 7 F.4th 592, 592 (7th Cir. 2021). That\npolicy required all students be vaccinated against COVID-19\nunless they were exempt for religious or medical reasons. Id.\nThe students sought a preliminary injunction, claiming the\npolicy violated their due process rights under the Fourteenth\nAmendment. Id. Citing Jacobson, this court applied the ra-\ntional basis standard. Id. at 593. We noted that the university’s\nvaccine policy made for an easier case than Jacobson because\nthe university’s policy had religious and medical exceptions,\nand it required only university attendees to vaccinate, rather\nthan all the citizens of a state. Id. This court then denied the\nrequest for an injunction pending appeal. Id. at 594.\n The plaintiffs here cite several other decisions to argue\nthey have a fundamental liberty and bodily autonomy inter-\nest, which require our court to review the mandates under\nstrict scrutiny review. See Cruzan v. Dir., Missouri Dep’t of\nHealth, 497 U.S. 261, 278 (1990) (stating that a “competent per-\nson has a constitutionally protected liberty interest in refusing\nunwanted medical treatment”); Washington v. Harper, 494 U.S.\n210, 221–22, 229 (1990) (recognizing that prisoners possess “a\nsignificant liberty interest in avoiding the unwanted admin-\nistration of antipsychotic drugs under the Due Process Clause\nof the Fourteenth Amendment” and stating that the “forcible\ninjection of medication into a nonconsenting person’s body\nrepresents a substantial interference with that person’s\n\fNos. 21-3200, et al. 19\n\nliberty” (citations omitted)); Glucksberg, 521 U.S. at 735 (hold-\ning that a state ban on assisted suicide did “not violate the\nFourteenth Amendment, either on its face or as applied to\ncompetent, terminally ill adults who wish to hasten their\ndeaths by obtaining medication prescribed by their doctors”\n(citation and internal quotation marks omitted)). The plain-\ntiffs also rely on Roe v. Wade, 410 U.S. 113 (1973), and Planned\nParenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833\n(1992), both since overruled by Dobbs v. Jackson Women’s\nHealth Org., 142 S. Ct. 2228, 2242 (2022).\n “Unless a governmental practice encroaches on a funda-\nmental right, substantive due process requires only that the\npractice be rationally related to a legitimate government in-\nterest, or alternatively phrased, that the practice be neither ar-\nbitrary nor irrational.” Lee v. City of Chicago, 330 F.3d 456, 467\n(7th Cir. 2003) (citing Glucksberg, 521 U.S. at 728). Following\nthe guidance of the Supreme Court, our court has been hesi-\ntant to expand the scope of fundamental rights under sub-\nstantive due process. See, e.g., Campos, 932 F.3d at 975 (noting\nthat employment-related rights are not fundamental); Palka v.\nShelton, 623 F.3d 447, 453 (7th Cir. 2010) (stating that “an al-\nleged wrongful termination of public employment is not ac-\ntionable as a violation of substantive due process unless the\nemployee also alleges the defendants violated some other\nconstitutional right or that state remedies were inadequate”\n(citation omitted)). Using similar reasoning, our court applied\nrational basis review to the vaccine mandate claim in Klaassen.\n7 F.4th at 593. E.g. Cuomo, 141 S. Ct. at 70 (Gorsuch, J., concur-\nring) (“Although Jacobson pre-dated the modern tiers of scru-\ntiny, this Court essentially applied rational basis review to\nHenning Jacobson’s challenge.”). We follow that path here.\n\f20 Nos. 21-3200, et al.\n\n Plaintiffs in each case have failed to provide facts sufficient\nto show that the challenged mandates abridge a fundamental\nright. Nor do they provide a textual or historical argument for\ntheir constitutional interpretation. Plaintiffs do not cite any\ncontrolling case law or other legal authority in support of\ntheir position, instead relying on decisions that are either fac-\ntually distinguishable or that have been overruled. Neither\nthis court nor the district judges deny that requiring the ad-\nministration of an unwanted vaccine involves important pri-\nvacy interests. But the record developed and presented here\ndoes not demonstrate that these interests qualify as a funda-\nmental right under substantive due process.\n The district judge in each of these cases followed Supreme\nCourt and circuit court precedent by applying the rational ba-\nsis standard. Following that same authority, we decline to ap-\nply strict scrutiny and instead review for rational basis. “Un-\nder rational-basis review, a statutory classification comes to\ncourt bearing a strong presumption of validity, and the chal-\nlenger must negative every conceivable basis which might\nsupport it.” Minerva Dairy, Inc. v. Harsdorf, 905 F.3d 1047, 1053\n(7th Cir. 2018) (quoting Ind. Petroleum Marketers & Convenience\nStore Ass’n v. Cook, 808 F.3d 318, 322 (7th Cir. 2015)). So, “to\nuphold the statute, ‘we need only find a reasonably conceiva-\nble state of facts that could provide a rational basis for the\nclassification.’” Id. (quoting Ind. Petroleum Marketers, 808 F.3d\nat 322). Rational basis review is “a heavy legal lift for the chal-\nlengers.” Ind. Petroleum Marketers, 808 F.3d at 322. As Judge\nBlakey stated in Halgren, the plaintiffs’ substantive due pro-\ncess claim “is two-fold: (1) the mandate is based on a miscon-\nception that vaccinated individuals are less likely to spread\nthe SARS-CoV-2 virus than the unvaccinated and naturally\nimmune; and (2) natural immunity provides incredibly\n\fNos. 21-3200, et al. 21\n\nstrong protection against infection from COVID-19, and it\ndoes so on par with any vaccine protection.”\n In Halgren, the parties agreed that the vaccines can miti-\ngate some dangerous COVID-19 symptoms. They also agreed\nthat both unvaccinated and vaccinated people can spread the\nvirus, and they did not dispute the existence of serious vac-\ncine-induced side-effects. The parties did dispute the relative\nprotection provided by natural immunity and COVID-19 vac-\ncines. The defendants provided evidence from the Centers for\nDisease Control, declarations from public health officials, and\nnumerous studies, all reporting that the vaccine is effective\nagainst COVID-19. The evidence that vaccines reduce the rate\nof transmission provides a reasonably conceivable set of facts\nto support the mandates.\n The same is true for the protections afforded by natural\nimmunity. The challenged mandates are susceptible to scien-\ntific critique, but the plaintiffs did not provide any evidence—\nstudies, expert reports, or otherwise—showing that the bene-\nfits of vaccination on top of natural immunity eliminate a\n“conceivable basis” for the mandates under rational basis re-\nview. The plaintiffs do not dispute that these governments\nhave an interest in preventing the spread of COVID-19, and\nthey relied on reasonably conceivable scientific evidence\nwhen promulgating the contested policies. Even if the vac-\ncination policies do not fully account for natural immunity or\nstudies with contrary results, under rational basis review a\ngovernment need only show that its rationale is supported by\na “reasonably conceivable state of facts.” Minerva Dairy, 905\nF.3d at 1053. The governments here have met that low bar. As\nJudge Blakey noted, the plaintiffs do not account for the fact\nthat vaccination combined with natural immunity could\n\f22 Nos. 21-3200, et al.\n\nreasonably be judged as more effective than natural immunity\nalone.\n On this record, the Lukaszczyk, Troogstad, and Halgren\nplaintiffs have not met their burden under the rational basis\nstandard to show that the challenged policies violate their\nsubstantive due process rights. They have shown the efficacy\nof natural immunity as well as pointed out some uncertainties\nassociated with the COVID-19 vaccines. But they have not\nshown the governments lack a “reasonably conceivable state\nof facts” to support their policies. Id. Thus, the district judges\ncorrectly concluded that the substantive due process claims\nwere not likely to succeed on the merits.\n B. Procedural Due Process\n Plaintiffs in each case claim the state and local COVID-19\nregulations violated their procedural due process rights. See\nU.S. CONST. amend. XIV, § 1. Before reviewing this claim, we\nconsider the doctrine of sovereign immunity.\n 1. The Eleventh Amendment\n The Eleventh Amendment provides that “[t]he Judicial\npower of the United States shall not be construed to extend to\nany suit in law or equity, commenced or prosecuted against\none of the United States by Citizens of another State, or by\nCitizens or Subjects of any Foreign State.” U.S. CONST. amend.\nXI. A “claim that state officials violated state law in carrying\nout their official responsibilities is a claim against the State\nthat is protected by the Eleventh Amendment.” Pennhurst\nState Sch. & Hosp. v. Halderman, 465 U.S. 89, 121 (1984). “A fed-\neral court’s grant of relief against state officials on the basis of\nstate law, whether prospective or retroactive, does not vindi-\ncate the supreme authority of federal law.” Id. at 106. Rather,\n\fNos. 21-3200, et al. 23\n\n“it is difficult to think of a greater intrusion on state sover-\neignty than when a federal court instructs state officials on\nhow to conform their conduct to state law.” Id. This type of\n“result conflicts directly with the principles of federalism that\nunderlie the Eleventh Amendment.” Id.\n Even “when properly raised, sovereign immunity is not\nabsolute immunity.” Council 31 of the Am. Fed’n of State, Cnty.,\nand Mun. Emps., AFL-CIO v. Quinn, 680 F.3d 875, 882 (7th Cir.\n2012). A state may be subjected to an action in federal court in\nthree instances: “(1) where Congress, acting under its consti-\ntutional authority conveyed by amendments passed after the\nEleventh Amendment … abrogates a state’s immunity from\nsuit; (2) where the state itself consents to being sued in federal\ncourt; and (3) under the [Ex parte Young] doctrine.” Id. (cita-\ntion omitted). Under the Ex parte Young doctrine, private par-\nties may “sue individual state officials for prospective relief to\nenjoin ongoing violations of federal law.” Id. (quoting MCI\nTelecomms. Corp. v. Ill. Bell Tel. Co., 222 F.3d 323, 337 (7th Cir.\n2000)). The longstanding rationale for this doctrine is that\n“[b]ecause an unconstitutional legislative enactment is ‘void,’\na state official who enforces that law ‘comes into conflict with\nthe superior authority of the Constitution,’ and therefore is\n‘stripped of his official or representative character and is sub-\njected in his person to the consequences of his individual con-\nduct.’” Id. (quoting Va. Office for Prot. & Advocacy v. Stewart,\n563 U.S. 247, 254 (2011)). A court therefore “need only conduct\na straightforward inquiry into whether the complaint alleges\nan ongoing violation of federal law and seeks relief properly\ncharacterized as prospective.” Id. (quoting Ind. Prot. & Advo-\ncacy Servs. v. Ind. Fam. and Soc. Servs. Admin., 603 F.3d 365, 371\n(7th Cir. 2010)).\n\f24 Nos. 21-3200, et al.\n\n For reasons previously discussed, the procedural due pro-\ncess claims against Governor Pritzker of all Halgren plaintiffs\nand those Troogstad plaintiffs who were Chicago Fire Depart-\nment employees are moot. The remaining claims, made by the\nLukaszczyk plaintiffs and the rest of the Troogstad plaintiffs are\nagainst Governor Pritzker in his official capacity and seek pro-\nspective relief. To the extent these plaintiffs allege violations\nof Illinois law—such as whether Governor Pritzker exceeded\nhis authority under the Emergency Management Agency\nAct—sovereign immunity bars their claims in this court. Indi-\nvidual state officials may be sued personally for federal con-\nstitutional violations committed in their official capacities, but\nthat principle does not extend to “claim[s] that state officials\nviolated state law in carrying out their official responsibili-\nties.” Pennhurst, 465 U.S. at 121.\n 2. The Fourteenth Amendment\n Review of the claim that Governor Pritzker’s 2021 Order\nviolated the Fourteenth Amendment by depriving the\nLukaszczyk and Troogstad plaintiffs of their protected property\ninterests is not barred by the Eleventh Amendment. A plain-\ntiff who asserts “a procedural due process claim must have a\nprotected property interest in that which he claims to have\nbeen denied without due process.” Khan v. Bland, 630 F.3d\n519, 527 (7th Cir. 2010) (citation omitted). To demonstrate a\nprocedural due process violation of a property right, the\nplaintiff must establish that there is “(1) a cognizable property\ninterest; (2) a deprivation of that property interest; and (3) a\ndenial of due process.” Id. (quoting Hudson v. City of Chicago,\n374 F.3d 554, 559 (7th Cir. 2004)).\n In Board of Regents of State Colleges v. Roth, the Supreme\nCourt explained that “[t]o have a property interest in a\n\fNos. 21-3200, et al. 25\n\nbenefit, a person clearly must have more than an abstract need\nor desire for it,” and “more than a unilateral expectation of\nit.” 408 U.S. 564, 577 (1972). Instead, the person must “have a\nlegitimate claim of entitlement to it.” Id. For “[i]t is a purpose\nof the ancient institution of property to protect those claims\nupon which people rely in their daily lives, reliance that must\nnot be arbitrarily undermined.” Id. The right to a hearing pro-\nvides an opportunity to vindicate those claims. Id.\n The Lukaszczyk and Troogstad plaintiffs argue that the right\nto earn a living is protected under the Fourteenth Amend-\nment. They contend that even if an employee does not have a\nproperty interest in public employment, a termination or de-\ncision not to renew a contract “cannot be premised upon the\nemployee’s protected activities.” But beyond these general\nstatements, the plaintiffs have not provided any evidence or a\nlegal argument as to why they have a property interest in pub-\nlic employment. Conclusory statements are not enough to es-\ntablish “a legitimate claim of entitlement,” so the plaintiffs’\nclaim against Governor Pritzker fails.\n The Lukaszczyk and Troogstad plaintiffs also assert proce-\ndural due process claims against local authorities. They argue\nthat local executives exceeded their authority by promulgat-\ning vaccination policies without legislative directives. The\nTroogstad plaintiffs claim the City of Chicago violated their\nprocedural due process rights when Mayor Lori Lightfoot\npromulgated the City Vaccination Policy. According to the\nTroogstad plaintiffs, the City Vaccination Policy is legislative\nin nature and requires approval from the Chicago City Coun-\ncil. As to the County Health Vaccination Policy, the Lukaszczyk\nplaintiffs point out that Cook County Health “answer[s] to the\n[Cook] County Board.” Other than this uncontested assertion,\n\f26 Nos. 21-3200, et al.\n\nthough, they fail to explain what procedural violation oc-\ncurred.\n The procedural due process claims here fail because the\nLukaszczyk and Troogstad plaintiffs have not articulated what\nprocedural protections they should have been afforded. As\nthis court has stated before, “[s]tate and local governments\nneed not follow the pattern of separated powers in the na-\ntional Constitution.” Auriemma v. Rice, 957 F.2d 397, 399 (7th\nCir. 1992) (citations omitted). For example, “[e]xecutive offi-\ncials sometimes exercise legislative powers (think of the city\nmanager model, related to parliamentary government).” Id. A\n“[p]urely executive official[] may have the power to set policy\nby delegation (express or implied by custom) when the legis-\nlature is silent.” Id. (citations omitted). In fact, “[e]ven execu-\ntive action in the teeth of municipal law could be called pol-\nicy.” Id. Without specifying the process that was due, how it\nwas withheld, and evidence for the alleged protected interest,\nthe plaintiffs’ procedural due process claims fail. See Roth, 408\nU.S. at 577; Khan, 630 F.3d at 527.\n * * *\n The district judges correctly ruled that the procedural due\nprocess claims of the plaintiffs were unlikely to succeed on the\nmerits due to the bar of sovereign immunity or because they\nhave failed to show how the local policies denied them proce-\ndural due process.\n C. Free Exercise of Religion\n The Lukaszczyk and Troogstad plaintiffs also claim that the\nstate and local COVID-19 regulations unconstitutionally bur-\ndened their right to the free exercise of religion under the First\nAmendment. Many of these plaintiffs object on religious\n\fNos. 21-3200, et al. 27\n\ngrounds to the use of alleged aborted fetal cells in the devel-\nopment of the vaccine.\n The First Amendment provides that “Congress shall make\nno law … prohibiting the free exercise” of religion. U.S.\nCONST. amend I. To merit protection under the Constitution,\n“religious beliefs need not be acceptable, logical, consistent,\nor comprehensible to others.” Thomas v. Review Bd. of Ind. Emp.\nSec. Div., 450 U.S. 707, 714 (1981). According to the plaintiffs,\nthe COVID-19 regulations violated the exercise of their sin-\ncerely held religious beliefs by forcing them to either vac-\ncinate in violation of their faith or lose their jobs. We consider\nthese claims, with the exception of the Chicago Fire Depart-\nment employees’ claims against Governor Pritzker in\nTroogstad, which are moot for the reasons discussed above.\n The Lukaszczyk and Troogstad plaintiffs cite certain deci-\nsions to guide our evaluation of these claims. In Fulton v. City\nof Philadelphia, the Supreme Court reiterated that “laws inci-\ndentally burdening religion are ordinarily not subject to strict\nscrutiny under the Free Exercise Clause so long as they are\nneutral and generally applicable.” 141 S. Ct. 1868, 1876 (2021)\n(citing Emp. Div., Dep’t of Human Res. of Oregon v. Smith, 494\nU.S. 872, 878–82 (1990)). The government “fails to act neu-\ntrally when it proceeds in a manner intolerant of religious be-\nliefs or restricts practices because of their religious nature.” Id.\n(citations omitted). Further, a law is not generally applicable\nif it provides “‘a mechanism for individualized exemptions’”\nor “prohibits religious conduct while permitting secular con-\nduct that undermines the government’s asserted interests in a\nsimilar way.” Id. at 1877 (citations omitted) (quoting Smith,\n494 U.S. at 884). So, “where the State has in place a system of\nindividual exemptions, it may not refuse to extend that\n\f28 Nos. 21-3200, et al.\n\nsystem to cases of religious hardship without compelling rea-\nson.” Id. (quoting Smith, 494 U.S. at 884).\n The Sixth Circuit reviewed a similar claim in Dahl v. Board\nof Trustees of Western Michigan University, 15 F.4th 728 (6th Cir.\n2021). There, a public university promulgated a policy requir-\ning “student-athletes to be vaccinated against COVID-19.” Id.\nat 730. The policy permitted the school to consider “individ-\nual requests for medical and religious exemptions on a discre-\ntionary basis.” Id. But, when 16 student-athletes requested\nreligious exemptions, the university ignored or denied their\nrequests and barred them from participating in team activi-\nties. Id. The student-athletes sued the university, and a district\ncourt preliminarily enjoined the officials from enforcing the\nmandate. Id. The Sixth Circuit denied the motion for a stay of\nthe preliminary injunction because the Free Exercise chal-\nlenge would likely succeed on appeal. Id. at 736. The court\nstated that “having announced a system under which\nstudent-athletes can seek individualized exemptions, the Uni-\nversity must explain why it chose not to grant any to plain-\ntiffs.” Id. Because “the University’s policy is not neutral and\ngenerally applicable,” the court “analyze[d] the policy\nthrough the lens of what has come to be known as ‘strict scru-\ntiny.’” Id. at 734 (citing Fulton, 141 S. Ct. at 1881).\n In Troogstad, Judge Lee concluded that there was no need\nto apply the test reiterated in Fulton because the plaintiffs had\n“not stated a claim under the Free Exercise Clause on the\ncurrent record.” On the facts before him, no plaintiff that “ap-\nplied for and [was] denied an exemption from the City Vac-\ncination Policy … made a good faith attempt to comply with\nthe Policy’s exemption process.” That process requires appli-\ncants to “fill out a form providing a reason for the request and\n\fNos. 21-3200, et al. 29\n\nan explanation of the principle of the applicant’s religion that\nconflicts with vaccination.”\n Before us, the Troogstad plaintiffs concede that Judge Lee\n“correctly pointed out that there was no as-applied challenge”\nin the case. The plaintiffs note, though, that when the petition\nwas filed, the City of Chicago had “not yet ruled on requests\nfor religious accommodations.” Rather than wait for the\naccommodation decisions, the Troogstad plaintiffs brought a\nfacial challenge, arguing the accommodation forms “demon-\nstrate that the City reserved great discretion for itself to rule\non whether the religious beliefs were legitimate, consistent,\nand approved by religious leaders.” But this facial challenge\nis insufficient. On paper, the City of Chicago provides reli-\ngious exemptions for its vaccination policy. Judge Lee gave\nthe Troogstad plaintiffs an opportunity to develop the factual\nrecord on this point, but they declined to do so. It is unlikely\nthat they will succeed on the merits without evidence of how\nthe religious exemption is applied in practice.\n The Lukaszczyk plaintiffs argue that Cook County Health’s\ninitial decision to reject any religious accommodation request\nmade by someone who had previously received the flu vac-\ncine violated the Free Exercise Clause. They claim this policy\nwas never rescinded, although they admit that the govern-\nment did an “about-face,” later deciding to grant religious\nexemptions. According to the Lukaszczyk plaintiffs, this\naccommodation permitted individuals to seek “non-existent\ntelecommuting positions” and favored individuals who re-\nceived one Pfizer or Moderna shot over those who had natural\nimmunity. Once again, if these assertions have merit, there is\nno record evidence to support them. The plaintiffs should\nhave gathered facts and created a record detailing any\n\f30 Nos. 21-3200, et al.\n\nwrongful denials of requests for religious exemptions. In-\nstead, they made a facial challenge, which ignored the text of\nthe policy’s religious exemption and the status of the plain-\ntiffs’ exemption requests. This does not show a violation of\ntheir right to freely exercise their religions.\n For these reasons, the district judges correctly concluded\nthat the free exercise claims of the Lukaszczyk and Troogstad\nplaintiffs were unlikely to succeed on the merits.\n D. The Illinois Health Care Right of Conscience Act\n Finally, the Lukaszczyk and Troogstad plaintiffs claim that\nthe state and local COVID-19 regulations violate their rights\nunder the Illinois Health Care Right of Conscience Act, 745\nILL. COMP. STAT. § 70/1 et seq. (“HCRCA”). Between these two\ncases, the plaintiffs make claims against Governor Pritzker,\nCook County, the City of Chicago, and Hektoen. As discussed\nabove, the HCRCA claims against Governor Pritzker are ei-\nther mooted by the 2022 Order or barred by the Eleventh\nAmendment. See Pennhurst, 45 U.S. at 106.\n The HCRCA states in part:\n\n It shall be unlawful for any person, public or\n private institution, or public official to discrimi-\n nate against any person in any manner … be-\n cause of such person’s conscientious refusal to\n receive, obtain, accept, perform, assist, counsel,\n suggest, recommend, refer or participate in any\n way in any particular form of health care ser-\n vices contrary to his or her conscience.\n\fNos. 21-3200, et al. 31\n\n745 ILL. COMP. STAT. § 70/5. The statute defines “[c]onscience”\nas “a sincerely held set of moral convictions arising from be-\nlief in and relation to God, or which, though not so derived,\narises from a place in the life of its possessor parallel to that\nfilled by God among adherents to religious faiths.” Id. § 70/3.\nThe plaintiffs claim that the local vaccine mandates on their\nface violate this provision. But both of the challenged man-\ndates provide individualized religious exemptions. For exam-\nple, as Judge Lee explained in Troogstad, the City of Chicago’s\nreligious exemption form separates out individuals with “a\nsincerely held set of moral convictions arising from belief in\nand relation to religious beliefs.” So, both the HCRCA and the\nCity’s Vaccination Policy endeavor to protect those who ob-\nject to the vaccine for moral reasons.\n The same is true in Lukaszczyk. Those plaintiffs argue that\nthe County Health Vaccination Policy violates the HCRCA\nbecause it “threaten[s] suspension and subsequent termina-\ntion” of noncompliant employees. But on its face, the policy\npermits exemptions “based upon a disability, medical condi-\ntion, or sincerely held religious belief, practice, or ob-\nservance.” The text of this exemption fits within the HCRCA’s\nconscience protections. The County Health Vaccination Pol-\nicy also states it does not permit “exemption[s] or deferral[s]\nbased solely upon a general philosophical or moral reluc-\ntance.” Although more troubling on its face, this language\ndoes not disqualify the County Health Vaccination Policy un-\nder the HCRCA because that Policy still permits exemptions\nbased upon a sincerely held religious belief.\n The Lukaszczyk plaintiffs also have not made an as-applied\nclaim or provided any evidence that the County Health Vac-\ncination Policy’s religious exemption does not cover people\n\f32 Nos. 21-3200, et al.\n\nwho are protected under the HCRCA. See Wash. State Grange\nv. Wash. State Republican Party, 552 U.S. 442, 450–51 (2008)\n(“[W]e must be careful not to go beyond the statute’s facial\nrequirements and speculate about ‘hypothetical’ or ‘imagi-\nnary’ cases.” (citing United States v. Raines, 362 U.S. 17, 22\n(1960)). In short, the Lukaszczyk plaintiffs do not present any\ntextual argument or evidence that the County Health Vac-\ncination Policy violates Illinois state law.\n We cannot conclude that the local vaccine mandates vio-\nlate the HCRCA as a facial matter. To pursue this claim, the\nplaintiffs should have produced evidence of their allegations.\nWithout this evidence, it is unlikely that their claims against\nthe local governments and Hektoen will succeed on their mer-\nits.\n V. Conclusion\n Based on the records before us, the district judges did not\nabuse their discretion when they denied the plaintiffs’ mo-\ntions for a preliminary injunction. Even if the plaintiffs had\nestablished the other elements required for a preliminary in-\njunction, they have not shown that their claims are likely to\nsucceed on the merits. We therefore AFFIRM the decisions of\nthe district court.\n\f", "ocr": false, "opinion_id": 7804605 } ]

"2022-08-24"

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 1, "download_url": "http://www.search.txcourts.gov/RetrieveDocument.aspx?DocId=22433&Index=%5c%5c10%2e20%2e4%2e7%5cTamesIndexes%5ccoa04%5cOrder", "author_id": null, "opinion_text": " FILE COPY\n\n\n\n\n Fourth Court of Appeals\n San Antonio, Texas\n August 24, 2022\n\n No. 04-22-00506-CR\n\n Zion Michael TALAVERA,\n Appellant\n\n v.\n\n The STATE of Texas,\n Appellee\n\n From the 186th Judicial District Court, Bexar County, Texas\n Trial Court No. 2021CR4671A\n Honorable Raymond Angelini, Judge Presiding\n\n\n ORDER\n Appellant’s notice of appeal challenges a failed plea negotiation. We have not found an\nappealable order under trial court cause number 2021‒CR‒4671A.\n We order Appellant to show cause in writing within twenty days of the date of this\norder why this appeal should not be dismissed for want of jurisdiction.\n All other deadlines in this appeal are suspended pending further order of this court.\n If Appellant fails to respond, this appeal will be dismissed without further notice.\n\n\n\n\n _________________________________\n Patricia O. Alvarez, Justice\n\n\n IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said\ncourt on this 24th day of August, 2022.\n\n\n\n ___________________________________\n MICHAEL A. CRUZ, Clerk of Court\n\f", "ocr": false, "opinion_id": 7804714 } ]

"2022-08-30"

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 14, "download_url": "https://cdn.ca9.uscourts.gov/datastore/opinions/2022/08/30/19-73107.pdf", "author_id": null, "opinion_text": " FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nRUPINDER SINGH, No. 19-73107\n Petitioner,\n Agency No.\n v. A075-302-200\n\nMERRICK B. GARLAND, Attorney\nGeneral, OPINION\n Respondent.\n\n\n On Petition for Review of an Order of the\n Board of Immigration Appeals\n\n Argued and Submitted July 6, 2022\n Portland, Oregon\n\n Filed August 30, 2022\n\n Before: Paul J. Watford, Ryan D. Nelson, and\n Kenneth K. Lee, Circuit Judges.\n\n Opinion by Judge Lee\n\f2 SINGH V. GARLAND\n\n SUMMARY *\n\n\n Immigration\n\n Granting Rupinder Singh’s petition for review of a\ndecision of the Board of Immigration Appeals, and\nremanding, the panel held that the BIA erred in holding that\nan earlier adverse credibility finding barred Singh’s motion\nto reopen, and in concluding that Singh failed to show that\nthe conditions for Sikhs in India had changed qualitatively\nsince his last hearing.\n\n Singh initially sought asylum claiming that he was\npersecuted in India on account of being a Sikh who supports\nthe creation of Khalistan and the Akali Dal (Mann) Party.\nAn immigration judge denied Singh’s claims after\nconcluding that Singh’s testimony was not credible because\nof inconsistencies and a lack of detail. The IJ also\nhighlighted a State Department report showing that the\nsituation for Sikhs had greatly normalized and, noting that\nSingh’s family had not responded to his requests for\ndocuments, the IJ found further that Singh had failed to even\nestablish his identity.\n\n Singh sought to reopen based on changed country\nconditions, and the BIA concluded that Singh had not\nestablish materially changed conditions. In doing so, the\nBIA noted that Singh’s prior adverse credibility finding was\nrelevant in considering the evidence of changed country\nconditions.\n\n\n *\n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\f SINGH V. GARLAND 3\n\n The panel held that the BIA erred in concluding that\nSingh’s motion was foreclosed by the prior adverse\ncredibility determination. The panel explained that although\nthe BIA may rely on a previous adverse credibility\ndetermination to deny a motion to reopen if that earlier\nfinding still factually undermines the petitioner’s new\nargument, here, Singh’s motion included newly submitted\nevidence based on information independent of the prior\nadverse credibility finding. Among other documents, the\nmotion to reopen included Singh’s birth certificate, a letter\nfrom a Mann leader attesting to his membership in the party,\nand a letter from his mother stating that the police were\nlooking for Singh. The panel explained that this evidence\nwas independent of the facts that formed the prior credibility\nfinding, and in fact filled some gaps on which the adverse\ncredibility finding was predicated. The panel noted that the\nIJ had expressly relied on the lack of such corroborating\nevidence to find Singh not credible. Thus, the prior adverse\ncredibility finding logically could not have implicated the\nnewly submitted evidence.\n\n The panel concluded that the BIA erred in rejecting\nSingh’s new evidence for two other reasons. First, the panel\nheld that the record did not support the BIA’s determination\nthat Singh was not similarly situated to the people harmed in\n2017 political violence. The panel noted that news reports\nshowed that in 2017 the Punjabi police determined that the\nSikh insurgency was returning based on a string of killing of\nnon-Sikhs. In response, the police arrested many Sikhs who\nwere allegedly planning to carry out terror activities in the\nstate. The reports also stated the police suspected that these\nalleged Sikh terrorists were recruited online and radicalized\noutside India. The panel wrote that these reports of\nworsening conditions link directly to Singh’s claim because\nthe affidavit from Singh’s mother stated that the police were\n\f4 SINGH V. GARLAND\n\nlooking for Singh in 2018 and suspected him of receiving\nmilitary training in Pakistan.\n\n Second, the panel held that Singh provided sufficient\nevidence demonstrating that the conditions for Sikhs in India\nhad changed in the two decades since his asylum hearing.\nThe panel explained that the BIA abuses its discretion when\nit concludes that the conditions portrayed in the evidence\nrepresent a mere continuation of existing conditions by\ndisregarding the evidence of changed conditions. In this\ncase, the country conditions evidence revealed a marked\nchange both for Sikhs generally, and for Singh and his\nfamily specifically, compared to the conditions at the time of\nSingh’s original hearing in 1997. The panel remanded for\nthe agency to address Singh’s new evidence.\n\n Singh’s motion also included a new claim for relief\nbased on his membership in a family social group.\nObserving that this court has held that family is the “the\nquintessential particular social group,” the panel concluded\nthat the agency was correct that Singh did not establish any\nnexus between his family membership and the harm he fears,\nwhere Singh failed to present any argument that his family\nmembership was “one central reason” or “a reason” for his\nalleged persecution and the persecution he fears. The panel\nexplained that at most, the letter from his mother provided\nevidence that she was mistreated because of her kinship to\nhim. But the BIA correctly concluded that Singh’s mother’s\nmistreatment does not show that Singh would be persecuted\nbecause of his relationship to her.\n\f SINGH V. GARLAND 5\n\n COUNSEL\n\nGarish Sarin (argued), Law Offices of Garish Sarin, Los\nAngeles, California, for Petitioner.\n\nJeffery R. Leist (argued), Senior Litigation Counsel;\nAnthony C. Payne, Assistant Director; Ethan P. Davis,\nActing Assistant Attorney General; Office of Immigration\nLitigation, Civil Division, United States Department of\nJustice, Washington, D.C.; for Respondent.\n\n\n OPINION\n\nLEE, Circuit Judge:\n\n We have held that the Board of Immigration Appeals\n(BIA) may rely on a prior adverse credibility determination\nto deny a motion to reopen if that earlier finding factually\nundercuts the petitioner’s new argument. Greenwood v.\nGarland, 36 F.4th 1232, 1234 (9th Cir. 2022). But that does\nnot mean the BIA can deny a motion to reopen just because\nthat motion touches upon the same claim or subject matter\nas the previous adverse credibility finding. Here, Rupinder\nSingh submitted new evidence about religious persecution\nindependent of the prior adverse finding. The BIA thus erred\nin holding that the earlier adverse credibility finding barred\nSingh’s motion to reopen. The BIA also erroneously\nconcluded that Singh failed to show that the conditions for\nSikhs in India changed qualitatively since his last hearing.\nClear evidence shows the contrary. We thus grant the\npetition and remand.\n\f6 SINGH V. GARLAND\n\n BACKGROUND\n\n Singh, a native and citizen of India, entered the United\nStates without inspection in December 1996. Two months\nlater, Singh sought asylum, claiming that he was persecuted\nin India on account of being a Sikh who supports the creation\nof Khalistan and the Akali Dal (Mann) Party.\n\n At a November 1997 hearing, the Immigration Judge (IJ)\ndenied Singh’s claims after concluding that Singh’s\ntestimony was not credible because of inconsistencies and\nlack of detail. The IJ also highlighted a State Department\nreport showing that “much of the random harassment [of\nSikhs] has ended in India and that the situation has\nnormalized to a great extent.” The IJ further found that Singh\nhad failed to even establish his identity, noting that his\nfamily had not responded to his requests for documents.\n\n The BIA affirmed the IJ’s decision in a summary order,\nand we held that substantial evidence supported the agency’s\nadverse credibility determination. See Singh v. Ashcroft,\n103 F. App’x 322, 322 (9th Cir. 2004).\n\n Fourteen years later, Singh moved to reopen at the BIA,\narguing that “there have been material changes” as to “how\nthe majority Hindu government treats the minority Sikh\ncommunity in India.” Singh submitted the following new\nevidence: his Indian birth certificate, his California marriage\nlicense, his wife’s application for asylum, his children’s birth\ncertificates and the application for asylum of his eldest\ndaughter who is not a U.S. citizen, a letter from the Mann\nParty leader attesting to Singh’s membership in the party, the\nAnnual Report on India for 2016 by the Commission on\nInternational Religious Freedom, the May 2018 report from\nthe Immigration and Refugee Board of Canada, several news\narticles reflecting new developments in India, a notarized\n\f SINGH V. GARLAND 7\n\naffidavit from his mother, Harbans Kaur, and a statement\nfrom his Sikh church in California dated November 11,\n2017. The motion also included a new claim for relief based\non Singh’s membership in a particular social group of his\nfamily.\n\n The BIA denied the motion to reopen after concluding\nthat Singh has not shown that country conditions in India or\nPunjab changed materially or that he is prima facie eligible\nfor asylum. The agency first observed that Singh’s claim is\nthe same one he presented in 1997 and that the agency’s\n“prior adverse credibility finding is relevant in considering\nthe evidence of changed country conditions.” The BIA also\nfound that Singh has not shown that (1) he is similarly\nsituated as the individuals harmed in the political violence in\n2017, or that (2) the conditions for the Sikh minority had\nsignificantly changed since 1997.\n\n Finally, the BIA held that Singh has not shown that his\nfamily qualifies as a cognizable social group or that there is\nnexus between his membership in it and the harm he fears in\nIndia.\n\n STANDARD OF REVIEW\n\n We review the BIA’s denial of a motion to reopen for an\nabuse of discretion. Agonafer v. Sessions, 859 F.3d 1198,\n1203 (9th Cir. 2017). Under this standard of review, we must\nuphold the agency’s decision unless it is “arbitrary,\nirrational, or contrary to law.” Id. (quotation omitted). We\nreview the agency’s factual findings for substantial\nevidence. Salim v. Lynch, 831 F.3d 1133, 1137 (9th Cir.\n2016). The court must “uphold the agency’s determination\nunless compelled to the contrary.” Singh v. Whitaker,\n914 F.3d 654, 658 (9th Cir. 2019) (internal quotation marks\nomitted).\n\f8 SINGH V. GARLAND\n\n ANALYSIS\n\n “An alien ordered to leave the country has a statutory\nright to file a motion to reopen his removal proceedings.”\nMata v. Lynch, 576 U.S. 143, 144 (2015); see 8 U.S.C.\n§ 1229a(c)(7)(A). Ordinarily, a person may file only one\nmotion to reopen, and the motion must be filed within\n90 days of the removal order. 8 U.S.C. §§ 1229a(c)(7)(A),\n(C); 8 C.F.R. § 1003.2(c)(2). But “[t]here is no time limit on\nthe filing of a motion to reopen” when the motion “is based\non changed country conditions arising in the country of\nnationality . . . if such evidence is material and was not\navailable and would not have been discovered or presented\nat the previous proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii). 1\n\n To prevail on such a motion, a petitioner must\n(1) produce evidence that conditions have changed in the\ncountry of removal, (2) show that the evidence is material,\n(3) show that the evidence was unavailable and would not\nhave been discovered or presented at the previous hearings,\nand (4) establish prima facie eligibility for the relief sought.\nSee Agonafer, 859 F.3d at 1204. The new evidence based on\nchanged country conditions must be “qualitatively different\nfrom the evidence presented at [the] asylum hearing.” Malty\nv. Ashcroft, 381 F.3d 942, 945 (9th Cir. 2004).\n\n\n 1\n It is not clear from the record if the government issued a final\nremoval order for Singh after our decision denying Singh’s petition in\n2004. Nor is it apparent how he managed to remain in the United States\nafter our decision for 14 years before he filed his motion to reopen.\nOddly, a petitioner’s probability of prevailing on a motion to reopen\nbased on changed circumstances increases the longer he or she\nunlawfully stays here. But the statutory provision for a motion to reopen\ndoes not appear to impose any time limits for the changed circumstances\nexception. 8 U.S.C. § 1229a(c)(7)(C)(ii).\n\f SINGH V. GARLAND 9\n\nI. The BIA erred in concluding that the prior adverse\n credibility finding rendered the changed country\n conditions immaterial.\n\n In affirming the denial of Singh’s claim, the BIA noted\nthat the “prior adverse credibility finding is relevant in\nconsidering the evidence of changed country conditions.”\nThe BIA cited Toufighi v. Mukasey for the proposition that\nan “underlying adverse credibility determination rendered\nevidence of changed circumstances immaterial.” 538 F.3d\n988, 996–97 (9th Cir. 2008).\n\n We recently held in Greenwood that the BIA “may rely\non a previous adverse credibility determination to deny a\nmotion to reopen if that earlier finding still factually\nundermines the petitioner’s new argument.” 36 F.4th\nat 1234. We endorsed the reasoning and conclusion of the\nBIA’s decision in Matter of F-S-N- in which the BIA\nexplained that “to prevail on a motion to reopen alleging\nchanged country conditions where the persecution claim was\npreviously denied based on an adverse credibility finding in\nthe underlying proceedings, the respondent must either\novercome the prior determination or show that the new claim\nis independent of the evidence that was found to be not\ncredible.” 28 I. & N. Dec. 1, 3 (B.I.A. 2020). Thus, “where\nsuch evidence is contingent, in part or in whole, on factors\nthat were determined to lack credibility and have not been\nrehabilitated, the respondent’s ability to successfully\nestablish prima facie eligibility may be undermined.” Id.\nat 4. But “if newly submitted evidence is based on\ninformation independent of the prior adverse credibility\nfinding, it must be addressed.” Id.\n\n The BIA erred because the motion to reopen included\n“newly submitted evidence . . . based on information\nindependent of the prior adverse credibility finding.” Id.\n\f10 SINGH V. GARLAND\n\nAmong other documents, the motion to reopen included\nSingh’s birth certificate, a letter from the Mann leader\nattesting to his membership in the party, and a letter from his\nmother stating that the police were looking for Singh. This\nevidence was independent of the facts that formed the prior\ncredibility finding. Indeed, the IJ had expressly relied on the\nlack of such corroborating evidence to find Singh not\ncredible. The prior adverse credibility finding thus logically\ncould not have implicated the newly submitted evidence.\nThis new evidence “must be addressed” by the agency. F-S-\nN, 28 I. & N. Dec. at 4. 2\n\n This case differs from Greenwood in crucial respects. In\nGreenwood, the petitioner claimed that he feared returning\nto Jamaica because of his membership in the People’s\nNational Party. The IJ found that the petitioner “lacked the\ncredibility to establish his true identity” based on his “use of\nmultiple fake names, his fraudulent passport, and an inability\nto establish his true identity.” Greenwood, 36 F.4th at 1234.\nIn Greenwood’s motion to reopen based on changed country\nconditions, the only new piece of information was that his\nnephew was allegedly murdered in 2017. Id. at 1234–35. We\nconcluded that “the basis of Greenwood’s motion to reopen\n. . . thus remain[ed] intertwined with his credibility\nproblem.” Id. at 1236. And because Greenwood lacked “the\ncredibility to assert that he is a member of the People’s\nNational Party, it [did] not matter whether political violence\nagainst that party has worsened in Jamaica.” Id. at 1235.\n\n 2\n The government’s attempt to undermine the significance of this\nevidence misses the mark. Although the BIA may well have determined\nthat the new evidence fails to establish prima facie eligibility for relief,\nthe BIA did not say so, and we can only affirm a “BIA decision . . . only\non the basis articulated in the decision.” Chae Kim Ro v. Immigration &\nNaturalization Serv., 670 F.2d 114, 116 (9th Cir. 1982).\n\f SINGH V. GARLAND 11\n\n In this case, by contrast, the new evidence submitted by\nSingh is independent of the evidence that the IJ relied on in\nmaking the adverse credibility finding. And in fact, the new\nevidence fills some gaps on which the adverse credibility\nfinding was predicated. We thus hold that the BIA erred in\nfinding Singh’s motion to reopen foreclosed by the prior\nadverse credibility determination.\n\nII. The BIA erred in its evaluation of the changed\n country conditions evidence.\n\n Besides relying on the prior adverse credibility finding,\nthe BIA rejected Singh’s evidence of changed country\nconditions on two grounds. First, the BIA concluded that\nSingh “has not shown that he is similarly situated as the\nindividuals harmed in the political violence in 2017.”\nSecond, the BIA held that Singh “has not shown that the\nconditions or circumstances represent qualitatively changed\ncountry conditions, rather than the continuation of\nessentially the same or similar conditions at the time of his\nprevious hearing in 1997.” The BIA erred on both counts.\n\n First, the record does not support the BIA’s finding that\nSingh was not similarly situated to the people harmed in the\n2017 political violence. The news reports show that in 2017\nthe Punjabi police determined that the Sikh insurgency was\nreturning based on a string of killing of non-Sikhs. In\nresponse, the police arrested many Sikhs who were allegedly\nplanning to carry out terror activities in the state. The reports\nalso stated the police suspected that these alleged Sikh\nterrorists were recruited online and radicalized outside India.\nThese reports of worsening conditions link directly to\nSingh’s claim because the affidavit from Singh’s mother\nstates that the police were looking for Singh in 2018 and\nsuspected him of receiving military training in Pakistan.\n\f12 SINGH V. GARLAND\n\n Second, Singh provided sufficient evidence that the\nconditions for Sikhs in India have changed in the two\ndecades since his asylum hearing. Admittedly, the BIA can\ndraw its own conclusions from contradictory and ambiguous\ncountry conditions reports. See Singh v. Holder, 753 F.3d\n826, 833 (9th Cir. 2014). But “[t]his does not mean . . . that\nan applicant lacks judicial review of the BIA’s\ndetermination.” Gonzalez-Hernandez v. Ashcroft, 336 F.3d\n995, 1000 (9th Cir. 2003). For example, we have held that\nthe BIA abuses its discretion when it concludes that the\nconditions portrayed in the evidence represent a mere\ncontinuation of existing conditions by disregarding the\nevidence of changed conditions. See Salim, 831 F.3d\nat 1138; Malty, 381 F.3d at 946.\n\n In this case, the country conditions evidence reveals a\nmarked change from the conditions at the time of Singh’s\noriginal hearing in 1997. The 2016 Annual Report on India\nby the Commission on International Religious Freedom\nstates that “[i]n 2015, religious tolerance deteriorated and\nreligious freedom violations increased in India.” For\nexample, “in October 2015, Sikhs protested in Chandigarh,\nPunjab state after pages from the Sikh Holy Scripture (Guru\nGranth Sahib) were found desecrated. Police officers opened\nfire at the unarmed protestors, killing two and injuring\n70 others, and several Sikh protesters were arrested under\nthe sedition law.” Singh also submitted news articles\ndetailing an increased focus on religious Sikhs based on the\npurported return of the Sikh militancy. Finally, the affidavit\nfrom Singh’s mother states that the police were looking for\nSingh based on suspicions of his involvement in the\nmilitancy.\n\n This new evidence stands in sharp contrast to the 1996\ncountry conditions report that Singh submitted with his\n\f SINGH V. GARLAND 13\n\ninitial applications for relief. That report showed that the\nsituation for Sikhs in India had improved in the mid-1990s\nafter a long period a tumult.\n\n The clear evidence of changed conditions resembles our\ndecisions in Salim and Malty. In Salim, we found that\npetitioner met his burden of proof when he submitted both\n“documentary evidence of increased persecution of\nChristians generally” and a “letter from his sister . . .\ndescrib[ing] the rising fear experienced by his immediate\nfamily in Indonesia, and warn[ing] [the petitioner] that he\nand his wife and children ‘should not return home.’”\n831 F.3d at 1138. And in Malty, we remanded the BIA’s\ndenial of an untimely motion to reopen when the petitioner,\na Coptic Christian, could show a qualitative change in the\nlevel of persecution in Egypt “both with respect to Coptic\nChristians generally and with respect to [his] family\nspecifically.” 381 F.3d at 946. Here, too, the new evidence\nfrom 2015 to 2018 shows a marked deterioration in\nconditions both for Sikhs generally and for Singh and his\nfamily compared to 1997.\n\nIII. The BIA properly rejected Singh’s new claim of\n persecution on account of membership in a\n particular social group of his family.\n\n The BIA rejected Singh’s new claim based on his\nmembership in a particular social group of his family\nbecause (1) he has not shown that the group is a cognizable\nparticular social group, and (2) he has not shown that his\nmembership in his family would be one central reason or a\nreason for the harm he fears in India. While this court has\nheld that family is the “the quintessential particular social\ngroup,” Rios v. Lynch, 807 F.3d 1123, 1128 (9th Cir. 2015),\nthe agency was correct that Singh did not establish any nexus\nbetween his family membership and the harm he fears.\n\f14 SINGH V. GARLAND\n\n To show eligibility for relief based on membership in a\nparticular social group, an asylum applicant must show that\nthe membership in the group was “one central reason” for\nhis or her persecution, while an applicant for withholding of\nremoval must show that the membership was “a reason” for\nthe persecution. Garcia v. Wilkinson, 988 F.3d 1136, 1143,\n1146 (9th Cir. 2021). “The phrase ‘a reason’ includes weaker\nmotives than ‘one central reason.’” Barajas-Romero v.\nLynch, 846 F.3d 351, 354 (9th Cir. 2017).\n\n Singh has not presented any argument that his family\nmembership is “one central reason” or “a reason” for his\nalleged persecution and the persecution he fears. At most,\nthe letter from his mother provides evidence that she was\nmistreated because of her kinship to him. But the BIA\ncorrectly concluded that Singh’s mother’s mistreatment does\nnot show that Singh would be persecuted because of his\nrelationship to her.\n\n The BIA thus correctly dismissed this claim. See Ayala\nv. Holder, 640 F.3d 1095, 1097 (9th Cir. 2011) (even if\nmembership in a particular social group is established, an\napplicant must still show that “persecution was or will be on\naccount of his membership in such group” (emphasis in\noriginal)).\n\n PETITION GRANTED; REMANDED.\n\f", "ocr": false, "opinion_id": 7804836 } ]

"2022-08-31"

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 15, "download_url": "http://courts.delaware.gov/Opinions/Download.aspx?id=337260", "author_id": null, "opinion_text": " IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE\n\n IN RE CARVANA CO. ) CONSOLIDATED\n STOCKHOLDERS LITIGATION ) C.A. No. 2020-0415-KSJM\n\n MEMORANDUM OPINION\n\n Date Submitted: March 14, 2022\n Date Decided: August 31, 2022\n\nChristine M. Mackintosh, Rebecca A. Musarra, GRANT & EISENHOFER P.A.,\nWilmington, Delaware; Ned Weinberger, LABATON SUCHAROW LLP, Wilmington,\nDelaware; Jason M. Leviton, Joel A. Fleming, Lauren Godles Milgroom, Amanda R.\nCrawford, BLOCK & LEVITON LLP, Boston, Massachusetts; Domenico Minerva, John\nVielandi, David MacIsaac, LABATON SUCHAROW LLP, New York, New York;\nCounsel for Co-Lead Plaintiffs Anthony Franchi, Construction Industry and Laborers\nJoint Pension Trust for Southern Nevada, St. Paul Electrical Construction Pension Plan,\nSt. Paul Electrical Construction Workers Supplemental Pension Plan (2014 Restatement),\nand Retirement Medical Funding Plan for the St. Paul Electrical Workers.\n\nDavid E. Ross, Adam D. Gold, R. Garrett Rice, ROSS ARONSTAM & MORITZ LLP,\nWilmington, Delaware; Brian M. Lutz, GIBSON, DUNN & CRUTCHER LLP, San\nFrancisco, California; Colin B. Davis, Katie Beaudin, GIBSON, DUNN & CRUTCHER\nLLP, Irvine, California; Counsel for Nominal Defendant Carvana Co.\n\nJohn L. Reed, Ronald N. Brown, III, Peter H. Kyle, Kelly L. Freund, DLA PIPER LLP\n(US), Wilmington, Delaware; Counsel for Defendants Ernest Garcia III and Ernest\nGarcia II.\n\n\nMcCORMICK, C.\n\f The plaintiff, a stockholder of Carvana Co. (“Carvana” or the “Company”), asserts\n\nderivative claims challenging a $600 million sale of common stock to handpicked\n\nparticipants at a time when the trading price of Carvana’s stock was depressed (the “Direct\n\nOffering”). The Direct Offering was orchestrated by Carvana’s controller, Ernest Garcia\n\nII (“Garcia Senior”) and his son, Ernest Garcia III (“Garcia Junior”). The Garcias selected\n\ninvestors to participate in the Direct Offering and participated themselves. The public\n\nstockholders were excluded.\n\n In a prior decision, the court denied Garcia Junior’s motion to dismiss for failure to\n\nstate a claim and failure to plead demand futility. This decision resolves Garcia Senior’s\n\nmotion to dismiss for lack of personal jurisdiction.\n\n As the basis for this court’s exercise of personal jurisdiction over Garcia Senior, the\n\nplaintiff relies on a provision in Carvana’s certificate of incorporation that designates\n\nDelaware courts as the exclusive forum for litigating claims for breach of fiduciary duties\n\nagainst stockholders (the “Forum Provision”). Garcia Senior caused Carvana to adopt the\n\nForum Provision by executing a written stockholder consent. The written consent\n\napproved an amendment to the certificate of incorporation to add the Forum Provision. By\n\napproving the amendment adding the Forum Provision, Garcia Senior implicitly consented\n\nto this court’s exercise of jurisdiction over him as to claims described in the Forum\n\nProvision. Accordingly, Garcia Senior’s motion to dismiss for lack of personal jurisdiction\n\nis denied.\n\fI. FACTUAL BACKGROUND\n\n This decision incorporates the Factual Background of the court’s Memorandum\n\nOpinion dated June 30, 2022,1 and includes additional facts relevant to the personal\n\njurisdiction issues.\n\n The Garcias co-founded Carvana in 2012. They took Carvana public in 2017.\n\nGarcia Junior has served as Carvana’s President, Chief Executive, and Chairman since\n\nCarvana’s formation.\n\n Garcia Senior is permanently barred from membership, employment, or association\n\nwith any NYSE member and holds no official position at Carvana. Garcia Senior has\n\nowned a majority of Carvana’s voting stock since its formation. His voting power derives\n\nprimarily from his ownership of super-voting Class B shares.\n\n In connection with the initial public offering, Carvana amended and restated its\n\ncertificate of incorporation. Carvana’s stockholders executed a written consent approving\n\nand adopting the amended and restated certificate of incorporation.2 The amendments\n\nadded Article Twelve containing the Forum Provision. The text of the Forum Provision\n\nappears below in the Legal Analysis.\n\n The amended and restated certificate of incorporation specifically names the\n\nGarcias and provides them with benefits that other stockholders do not enjoy. For example,\n\n\n\n1\n C.A. No. 2020-0415-KSJM, Docket (“Dkt.”) 92.\n2\n See Dkt. 78, Co-lead Plaintiffs’ Omnibus Answering Brief in Opposition to Defendants’\nMotion to Dismiss (“Pl.’s Answering Br.”), Ex. B (Amended and Restated Certificate of\nIncorporation of Carvana Co.).\n\n 2\n\fit provides that the Class B shares will be entitled to 10 votes only so long as the Garcias\n\nhold 25% of the Class A common stock.3 It also provides the Garcias with special rights\n\nconcerning competition and corporate opportunities.4\n\n Because Garcia Senior held a majority of the Company’s voting power at the time,\n\nhis written consent was necessary for the Company to adopt the amended and restated\n\ncertificate of incorporation, including the Forum Provision.\n\n In connection with the initial public offering, the Garcias also executed an exchange\n\nagreement and an LLC agreement. Both documents contain Delaware-exclusive forum\n\nprovisions.\n\nII. LEGAL ANALYSIS\n\n “When a defendant moves to dismiss a complaint pursuant to Court of Chancery\n\nRule 12(b)(2), the plaintiff bears the burden of showing a basis for the court’s exercise of\n\njurisdiction over the defendant.”5 “In ruling on a Rule 12(b)(2) motion, the court may\n\nconsider pleadings, affidavits, and any discovery of record.”6 If there is no discovery of\n\nrecord or evidentiary hearing, “plaintiffs need only make a prima facie showing of personal\n\njurisdiction and ‘the record is construed in the light most favorable to the plaintiff.’” 7\n\n\n\n\n3\n Id. at 2.\n4\n Id. at 7–9.\n5\n Ryan v. Gifford, 935 A.2d 258, 265 (Del. Ch. 2007).\n6\n Id.\n7\n Id. (footnote omitted) (quoting Cornerstone Techs., LLC v. Conrad, 2003 WL 1787959,\nat *3 (Del. Ch. Mar. 31, 2003)).\n\n 3\n\f Typically, Delaware courts resolve questions of personal jurisdiction using a two-\n\nstep analysis, determining first whether service of process was authorized by statute, and\n\nsecond, whether the defendant had minimum contacts with Delaware sufficient to satisfy\n\ndue process concerns.8\n\n The requirement that a court have personal jurisdiction, however, is a waivable\n\nright.9 “A defendant can agree to the court’s exercise of personal jurisdiction.”10 That\n\nagreement can be express or implied.11 When a party agrees to litigate in a forum, the party\n\nis considered to have implicitly consented to personal jurisdiction in that forum.12 When a\n\nparty has consented to jurisdiction, the court can forego the typical two-step analysis.13\n\n In this case, the plaintiff argues that Garcia Senior consented to the exercise of\n\npersonal jurisdiction by Delaware courts when he caused Carvana to adopt the Forum\n\nProvision.\n\n\n\n\n8\n Matthew v. Fläkt Woods Gp. SA, 56 A.3d 1023, 1027 (Del. 2012) (quoting Int’l Shoe Co.\nv. Washington, 326 U.S. 310, 316 (1945)).\n9\n Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 n.14 (1985).\n10\n In re Pilgrim’s Pride Corp. Deriv. Litig., 2019 WL 1224556, at *10 (Del. Ch. Mar. 15,\n2019) (collecting cases).\n11\n Id. at *11.\n12\n Id.; Solae, LLC v. Hershey Canada, Inc., 557 F. Supp. 2d 452, 456 (D. Del. 2008) (citing\nRes. Ventures, Inc. v. Res. Mgmt. Int’l, Inc., 42 F. Supp. 2d 423, 431 (D. Del. 1999)).\n13\n Neurvana Med., LLC v. Balt USA, LLC, 2019 WL 4464268, at *3 (Del. Ch. Sept. 18,\n2019); R. Franklin Balotti & Jesse A. Finkelstein, Delaware Law of Corporations &\nBusiness Organizations, §13.4 (3d ed. 2019) (“Consent to personal jurisdiction is\nconsidered a waiver of any objection on due process grounds and an analysis under\nminimum contacts is considered unnecessary.”).\n\n 4\n\f The Forum Provision selects this court as the exclusive forum for certain disputes.\n\nIt states:\n\n Unless this Corporation consents in writing to the selection of\n an alternative forum, the Court of Chancery of the State of\n Delaware (or, if the Court of Chancery does not have\n jurisdiction, the United States District Court for the District of\n Delaware) shall, to the fullest extent permitted by law, be the\n sole and exclusive forum for (i) any derivative action or\n proceeding brought on behalf of the Corporation, (ii) any\n action asserting a claim of breach of a fiduciary duty owed by\n any director, officer, employee or stockholder of the\n Corporation to the Corporation or the Corporation’s\n stockholders, (iii) any action asserting a claim arising pursuant\n to any provision of the DGCL or as to which the DGCL confers\n jurisdiction on the Court of Chancery of the State of Delaware,\n the Certificate of Incorporation or the Bylaws or (iv) any action\n asserting a claim governed by the internal affairs doctrine. As\n used in this Certificate of Incorporation, the term “Claim”\n means the actions, proceedings or claims referred to in clauses\n (i) through (iv) on this Section 1.14\n\n The Forum Provision clearly applies to this litigation. Among other things, the\n\nplaintiff asserts a claim of breach of a fiduciary duty owed by “a stockholder of the\n\n\n\n\n14\n Pl.’s Answering Br., Ex. B, at 14. A court may take judicial notice of the contents of a\ncertificate of incorporation in deciding a motion to dismiss under Rule 12(b)(6). See In re\nWheelabrator Techs. Inc. S'holders Litig., 1992 WL 212595, at *12 (Del. Ch. Sept. 1, 1992)\n(“The Court is not barred from taking judicial notice of a Delaware corporation’s certificate\nof incorporation simply because the procedural setting is a motion to dismiss under Rule\n12(b)(6).”). The sources the court can consider on a Rule 12(b)(2) motion are even broader\nthan those that can be considered on a 12(b)(6) motion. See Sample v. Morgan, 935 A.2d\n1046, 1055 (Del. Ch. 2007) (“In considering a motion to dismiss for lack of personal\njurisdiction under Court of Chancery Rule 12(b)(2), I am not limited to the pleadings.”). It\nfollows that the court can take judicial notice of a certificate of incorporation on a Rule\n12(b)(2) motion.\n\n 5\n\fCorporation to the Corporation.” Accordingly, the plaintiff was obligated to file his claims\n\nin this court.\n\n In Garcia Senior’s view, the Forum Provision binds the plaintiff but not him. As\n\nGarcia Senior points out, nothing about the Forum Provision expressly provides that\n\nstockholders, such as Garcia Senior himself, consent to this court’s exercise of personal\n\njurisdiction for claims described in the provision. The plaintiff, however, does not argue\n\nthat Garcia Senior expressly consented. Rather, the plaintiff relies on a theory of implicit\n\nconsent.\n\n In support of his implicit-consent theory, the plaintiff draws heavily on this court’s\n\nanalysis in In re Pilgrim’s Pride Corporation Derivative Litigation.15 There, stockholders\n\nof Pilgrim’s Pride brought derivative claims against the company’s controlling\n\nstockholder, JBS S.A. Pilgrim’s Pride was a Delaware corporation and JBS was an entity\n\norganized under the laws of Brazil. The plaintiffs sued JBS for breaching its fiduciary\n\nduties as a controller by causing Pilgrim’s Pride to buy one of JBS’s other subsidiaries.\n\nJBS moved to dismiss the complaint for lack of personal jurisdiction.16\n\n As the sole basis for this court’s exercise of personal jurisdiction over JBS, the\n\nplaintiffs argued that the controller implicitly consented to the court’s exercise of personal\n\njurisdiction when its representatives on the company’s board adopted a forum-selection\n\nbylaw. Vice Chancellor Laster agreed with the plaintiffs’ arguments, citing a number of\n\n\n\n15\n 2019 WL 1224556 (Del. Ch. Mar. 15, 2019).\n16\n Id. at *1.\n\n 6\n\fcase-specific factors as prima facie evidence that the controller implicitly consented to this\n\ncourt’s exercise of personal jurisdiction. The following passage contains the meat of the\n\nVice Chancellor’s analysis:\n\n In this case, the facts alleged in the complaint support a finding\n of implicit consent. The Board adopted the Forum-Selection\n Bylaw on the same day that the Committee gave its final\n approval for the Acquisition. It is reasonable to infer that the\n Board adopted the Forum-Selection Bylaw intending that it\n would apply to any Delaware law claims that a stockholder\n plaintiff might bring challenging the Acquisition. The Forum-\n Selection Bylaw selects the Delaware Court of Chancery as the\n sole and exclusive forum for “any action asserting a claim of\n breach of fiduciary duty owed by any . . . stockholder of the\n Corporation to the Corporation or the Corporation's\n stockholders.” Parent, as the controlling stockholder and\n counterparty in the Acquisition, was the obvious stockholder\n defendant in any action asserting a claim for breach of\n fiduciary action. Through its power to select the Parent\n Directors, Parent designated six of the nine members of the\n Board. Five of those six were executive officers of Parent or\n its controlled subsidiaries. Parent also controlled a super-\n majority of the Company's voting power. If it did not like the\n Forum-Selection Bylaw, it could amend it using that authority.\n\n In my view, under these facts, Parent consented implicitly to\n the existence of personal jurisdiction in Delaware when its\n representatives on the Board participated in the vote to adopt\n the Forum-Selection Bylaw. This is a case governed by\n Delaware law in which the State of Delaware has a substantial\n interest. As the Board necessarily recognized when it adopted\n the Forum-Selection Bylaw, a case of this nature should be\n heard in a Delaware court. That includes the dimension of this\n case that relates to Parent’s involvement as the self-interested\n controller.17\n\n\n\n\n17\n Id. at *13 (citations omitted).\n\n 7\n\f Breaking it down, the factors identified by the Vice Chancellor as evidence of JBS’s\n\nimplicit consent fall into two categories.\n\n The first category of factors suggested that the intent of the forum selection\n\nprovision was to funnel claims for breach of fiduciary duty against the controller into the\n\nDelaware courts. This intent was evident from the provision’s language, which covered\n\nactions for breach of fiduciary duties owed by “any stockholder of the corporation.”18 Only\n\ncontrolling stockholders owe fiduciary obligations under Delaware law.19 Thus, JBS was\n\nthe “obvious stockholder defendant” in any action brought under that bylaw.20 This intent\n\nwas also inferred by the timing of the board’s adoption of the provision, which came on\n\nthe same day that a board committee approved the challenged acquisition.\n\n The second category of factors tied the forum-selection bylaw to JBS specifically.\n\nToward this end, the Vice Chancellor focused on JBS’s influence over the process by which\n\nthe provision was adopted. The provision was adopted through a bylaw amendment\n\neffected by a vote of the board, so JBS was not involved directly in its adoption. The Vice\n\nChancellor noted, however, that JBS appointed six of the nine members of Pilgrim’s\n\nPride’s board, and five of those six members were executives of JBS or a JBS subsidiary.\n\nThus, a majority of the board was beholden to JBS. Moreover, the Vice Chancellor\n\n\n\n\n18\n Id. at *12 (emphasis added).\n19\n Ivanhoe P’rs v. Newmont Min. Corp., 535 A.2d 1334, 1344 (Del. 1987) (“Under\nDelaware Law a shareholder owes a fiduciary duty only if it owns a majority interest in or\nexercises control over the business affairs of the corporation.”).\n20\n Pilgrim’s Pride, 2019 WL 1224556, at *13.\n\n 8\n\fobserved that JBS “controlled a super-majority of the Company’s voting power. If it did\n\nnot like the Forum-Selection Bylaw, it could amend it using that authority.”21\n\n Because this court’s authority to exercise personal jurisdiction based on a forum\n\nselection clause is rooted in the defendant’s consent, this second category of factors was\n\ncritical to the court’s analysis. That is, if JBS lacked any ability to direct or reverse the\n\nresult of the board’s process, then JBS could not be said to have implicitly consented to\n\nthat result.\n\n In this case, the intent in adopting the Forum Provision is as clear as that in Pilgrim’s\n\nPride. The language of the Forum Provision captures claims for “breach of a fiduciary\n\nduty owed by any . . . stockholder[.]”22 Again, only controlling stockholders of Delaware\n\ncorporations owe fiduciary obligations. Garcia Senior has held hard control over Carvana\n\nsince the Forum Provision was adopted, making him the obvious stockholder to whom this\n\nlanguage would apply.\n\n More importantly, Garcia Senior’s involvement in adopting the provision was more\n\ndirect than in Pilgrim’s Pride. The Forum Provision appears in an amendment to the\n\ncertificate of incorporation, which was approved by written consent of the Carvana\n\nstockholders. At that time, and at all relevant times, Garcia Senior held a majority of\n\nCarvana’s voting power. Thus, Garcia Senior’s approval of the amended certificate of\n\n\n\n\n21\n Pilgrim’s Pride, 2019 WL 1224556, at *13.\n22\n Id. at *12; Pl.’s Answering Br., Ex. B at 14.\n\n 9\n\fincorporation, including the Forum Provision, was a necessary and direct cause of its\n\nadoption.\n\n As an added factor, it is reasonable to infer that Garcia Senior read the amendment\n\nto the certificate of incorporation before executing a written consent approving it; as\n\ndiscussed above, the amended and restated certificate of incorporation expressly provides\n\nthe Garcias with benefits other stockholders do not enjoy. Moreover, the Garcias executed\n\nan exchange agreement and an LLC agreement in connection with the IPO, both of which\n\nrequire any claims to be brought in Delaware courts.23 The logical inference is that Garcia\n\nSenior “necessarily recognized” the State of Delaware’s “substantial interest” in resolving\n\nthese Delaware law claims when he caused Carvana to adopt the Forum Provision.24\n\n It is true, as Garcia Senior argues, that Pilgrim’s Pride is distinguishable in one—\n\nalbeit minor—way. There, the forum selection bylaw was adopted on the same day that a\n\nboard committee recommended the transaction at issue in the litigation. From this timing,\n\none can infer that the board intended that stockholder claims challenging that transaction\n\nspecifically be subject to the forum selection bylaw. In this case, nothing suggests that\n\nGarcia Senior had the Direct Offering in mind when he caused Carvana to adopt the Forum\n\nProvision, as Carvana adopted the Forum Provision three years before its board approved\n\nthe Direct Offering.\n\n\n\n\n23\n Dkt. 66, Verified Amended Derivative and Class Action Complaint ¶¶ 186–87.\n24\n Pilgrim’s Pride, 2019 WL 1224556, at *13.\n\n 10\n\f This distinction is inconsequential. Garcia Senior did not need to foresee the\n\nspecific transaction that would give rise to the claims against him for the Forum Provision\n\nto evidence his implicit consent. Consider the purpose of forum selection provisions in\n\ncorporate charters and bylaws. Expressly permitted by Section 115 of the Delaware\n\nGeneral Corporation Law,25 those provisions are intended to corral internal affairs cases so\n\nthey can be heard in the Delaware courts.26 Boilermakers Local 154 Retirement Fund v.\n\nChevron Corp. is the common law predecessor to § 115.27 Boilermakers specifically\n\nidentified reasons why defendants would want to include forum selection provisions in\n\ngoverning documents.28 In upholding a board-adopted Delaware forum selection bylaw,\n\nthen-Chancellor Strine noted the benefits of “channeling internal affairs cases into the\n\ncourts of the state of incorporation,” which included “bring[ing] order to what the boards\n\nof [the defendant corporations] say they perceive to be a chaotic filing of duplicate and\n\n\n\n\n25\n 8 Del. C. § 115 (“The certificate of incorporation or the bylaws may require . . . that any\nor all internal corporate claims shall be brought solely and exclusively in any or all of the\ncourts in this State.”).\n26\n See generally Andrew Holt, Protecting Delaware Corporate Law: Section 115 and Its\nUnderlying Ramifications, 5 Am. U. Bus. L. Rev. 209, 219 (2016) (“Exclusive forum\nselection clauses were supposed to cure the plague that is multi-jurisdictional litigation\non Delaware corporations and their officers and directors.”); Verity Winship, Shareholder\nLitigation by Contract, 96 B.U. L. Rev. 485 (2016) (“Faced with multiforum litigation,\ncourts, defense counsel, and commentators began to call for a way to consolidate the\nlitigation in the court of the state of incorporation, often Delaware. One way to do this was\nfor corporations to adopt an exclusive forum selection clause in their charter or bylaws.”).\n27\n See, e.g., Salzberg v. Sciabacucchi, 227 A.3d 102, 117 (Del. 2020) (“The 2015\namendments were intended, in part, to codify Boilermakers.”).\n28\n Boilermakers Loc. 154 Ret. Fund v. Chevron Corp., 73 A.3d 934, 952 (Del. Ch. 2013).\n\n 11\n\finefficient derivative and corporate suits against the directors and the corporations.”29 It is\n\nfair to infer that Garcia Senior knew of the purpose of forum selection provisions when he\n\ncaused Carvana to adopt one. At a minimum, his agents (such as the counsel planning the\n\nIPO) knew about them, and their knowledge can be imputed to Garcia Senior.\n\n As a matter of policy, the functioning of a forum provision would be dramatically\n\nundermined if the law required transaction-specific consent to support personal jurisdiction\n\nover a defendant. Garcia Senior cites no case in support of such a rule. Such a rule would\n\nenable a controller to put stockholder plaintiffs in a no-win scenario: the forum provision\n\nwould force stockholders to sue in a particular court, yet the controller could claim not to\n\nbe subject to jurisdiction there.\n\n Summing it up, Garcia Senior executed a written stockholder consent causing the\n\nCompany to adopt a requirement that any stockholder suing him for breach of fiduciary\n\nduties file suit in this court. By taking that action, Garcia Senior consented implicitly to\n\nthis court’s exercise of personal jurisdiction over him in connection with stockholder\n\nclaims that he breached his fiduciary obligations.\n\n Garcia Senior urges a different outcome based on “Delaware precedent [holding]\n\nthat purchasing or owning shares of stock in a Delaware corporation, standing alone, is not\n\nenough to enable a Delaware court to exercise personal jurisdiction over a non-consenting\n\nparty, even in cases of sole ownership.”30 Garcia Senior correctly observes that it is “settled\n\n\n\n29\n Id.\n30\n Pilgrim’s Pride, 2019 WL 1224556, at *14.\n\n 12\n\ffederal law that ownership of stock in a Delaware corporation is insufficient to satisfy due\n\nprocess requirements.”31 Even “complete ownership of a Delaware subsidiary standing\n\nalone is insufficient to confer personal jurisdiction.”32\n\n This line of authorities is not implicated here. This is not a case of mere stock\n\nownership constituting consent to jurisdiction. This is a case where the controller caused\n\nthe Company to adopt a provision requiring that any plaintiff suing a stockholder for breach\n\nof fiduciary duty do so in this court. The plaintiff simply seeks to enforce that requirement.\n\n Garcia Senior also cites to a portion of Pilgrim’s Pride where the Vice Chancellor\n\nlimited his holdings to the facts of that case and identified differing fact patterns that might\n\nraise distinguishable concerns.33 The Vice Chancellor expressly left open the question of\n\n“whether a Delaware court could assert jurisdiction over a stockholder based solely on a\n\nboard-adopted forum-selection provision if the stockholder had no other ties to this state.”34\n\nHe also declined to “consider whether a Delaware court could assert jurisdiction over a\n\ncontroller based solely on a board-adopted forum-selection provision if the controller had\n\n\n\n\n31\n Dkt. 74, Opening Brief in Support of Defendants Ernest Garcia III and Ernest Garcia II’s\nMotion to Dismiss (“Defs.’ Opening Br.”) at 16; see, e.g., Monsanto Co. v. Syngenta Seeds,\nInc., 443 F. Supp. 2d 636, 647 (D. Del. 2006) (noting that “such a limited activity” is\ninsufficient to establish personal jurisdiction).\n32\n Defs.’ Opening Br. at 16; see Outokumpu Eng’g Enters., Inc. v. Kvaerner Enviropower,\nInc., 685 A.2d 724, 731 (“Mere ownership of a Delaware subsidiary will not support the\nminimum contacts’ requirement of due process.”).\n33\n Pilgrim’s Pride, 2019 WL 1224556, at *15 (“This holding is limited to the facts of this\ncase.”).\n34\n Id.\n\n 13\n\fa less substantial presence on the corporation's board, or if the controller only was alleged\n\nto wield effective control rather than possessing hard, mathematical control.”35\n\n The limiting language of Pilgrim’s Pride does not affect the outcome of this\n\ndecision. The fact that Pilgrim’s Pride did not reach those issues does not foreshadow how\n\nthey would turn out. Nor are any of the open questions present in this case. The Pilgrim’s\n\nPride court identified two situations in which the controller had less involvement in the\n\nadoption of the forum provision and less ability to remove it. In those settings, the\n\ninference for implicit consent is weaker. In this setting, the basis for inferring consent is\n\nstronger. In Pilgrim’s Pride, the controller inferably acted through director appointees and\n\naccepted the bylaw by not removing it. Here, Garcia Senior approved it by executing a\n\nwritten consent. Garcia Senior’s direct involvement in the Forum Provision’s adoption\n\nmakes this a stronger case for implicit consent, not a weaker one.\n\nIII. CONCLUSION\n\n For the foregoing reasons, Garcia Senior’s motion to dismiss for lack of personal\n\njurisdiction is denied. For the same reasons set forth in the June 30, 2022 Memorandum\n\nOpinion, Garcia Senior’s motion to dismiss under Rule 12(b)(6) and Rule 23.1 are also\n\ndenied.\n\n\n\n\n35\n Id.\n\n 14\n\f", "ocr": false, "opinion_id": 7805350 } ]

"2022-08-31"

[ "2022 Ohio 3030" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 4, "download_url": "https://www.supremecourt.ohio.gov/rod/docs/pdf/8/2022/2022-Ohio-3030.pdf", "author_id": 8055, "opinion_text": "[Cite as State v. Riddle, 2022-Ohio-3030.]\n\n COURT OF APPEALS OF OHIO\n\n EIGHTH APPELLATE DISTRICT\n COUNTY OF CUYAHOGA\n\nSTATE OF OHIO, :\n\n Plaintiff-Appellee, :\n No. 90999\n v. :\n\nJAMES RIDDLE, :\n\n Defendant-Appellant. :\n\n\n JOURNAL ENTRY AND OPINION\n\n JUDGMENT: APPLICATION DENIED\n RELEASED AND JOURNALIZED: August 31, 2022\n\n\n Cuyahoga County Court of Common Pleas\n Case No. CR-07-499635-A\n Application for Reopening\n Motion No. 557311\n\n\n Appearances:\n\n Michael C. O’Malley, Cuyahoga County Prosecuting\n Attorney, for appellee.\n\n Christopher McNeal, for appellant.\n\n\nMARY J. BOYLE, P.J.:\n\n On August 12, 2022, the applicant, James Riddle, pursuant to App.R.\n\n26(B), applied to reopen this court’s judgment in State v. Riddle, 8th Dist. Cuyahoga\n\nNo. 90999, 2009-Ohio-348, in which this court affirmed his convictions for\n\fattempted rape and kidnapping and his classification as a Tier III sex offender.\n\nRiddle asserts that his appellate counsel should have argued that the convictions\n\nwere not supported by sufficient evidence and were against the manifest weight of\n\nthe evidence. For the following reasons, this court denies the application, sua\n\nsponte.\n\n In June 2007, Riddle entered a laundromat early in the morning and\n\nasked the victim, who worked there, if he could use the restroom, which she\n\nunlocked for him. A few moments later, he came out and told her there was\n\nsomething wrong with the facilities. When she entered the restroom, Riddle\n\nattacked her. He pushed her down to the floor, tried to pull her pants down, and\n\nundid his belt buckle. He then tried to kiss her and said, “You are going to like it.”\n\nShe fought back, bit his lip, and asked him, “What are you doing with an old lady?\n\nI’m 61 ******* years old.” He then ran out of the laundromat.\n\n The jury found him guilty of attempted rape and kidnapping. The\n\ntrial judge found him guilty of the sexually violent predator specifications, classified\n\nhim as a Tier III sex offender, and sentenced him to 18 years to life in prison.\n\n Ripple’s appellate counsel argued that the Adam Walsh Act, under\n\nwhich he was classified as a sexual predator, was unconstitutional and that the\n\nindictment for kidnapping was defective. Now Ripple argues the convictions were\n\nnot supported by sufficient evidence and were against the manifest weight of the\n\nevidence because there was no sexual contact, Ripple abandoned what he was doing,\n\nand he left the victim where she was.\n\f App.R. 26(B)(1) and (2)(b) require applications claiming ineffective\n\nassistance of appellate counsel to be filed within 90 days from journalization of the\n\ndecision unless the applicant shows good cause for filing at a later time. The August\n\n2022 application was filed over 13 years after this court’s January 29, 2009 decision.\n\nThus, it is untimely on its face. In an effort to establish good cause, Riddle argues\n\nthat his cognitive deficit and substance abuse precluded him from filing a timely\n\napplication, as well as the failure of his appellate counsel to inform him of the\n\noutcome of the appeal.\n\n These arguments are unpersuasive. Generally, reliance on counsel\n\ndoes not establish good cause for filing an untimely application to reopen. State v.\n\nVan Horn, 8th Dist. Cuyahoga No. 98751, 2021-Ohio-4129. Specifically, the failure\n\nof appellate counsel to inform an applicant in a timely manner of the outcome of his\n\nappeal does not constitute good cause. State v. Mitchell, 8th Dist. Cuyahoga No.\n\n88977, 2009-Ohio-1874, and State v. Alt, 8th Dist. Cuyahoga No. 96289, 2012-\n\nOhio-2054.\n\n Riddle proffered an unsupported affidavit claiming learning\n\ndisabilities, low IQ, and substance abuse to establish good cause. However, in State\n\nv. Gilbert, 8th Dist. Cuyahoga No. 90856, 2010-Ohio-4103, ¶ 3, this court held “that\n\na self-serving affidavit pleading medical incapacity does not show good cause for\n\nuntimely filing.” It would be all too easy for a petitioner to claim a medical excuse\n\nto show good cause. Therefore, “a claim of medical incapacity without some\n\nsupporting records to substantiate the medical condition, e.g., prison medical\n\frecords, is not sufficient to show good cause.” State v. Morris, 10th Dist. Franklin\n\nNo. 05AP-1032, 2010-Ohio-786.\n\n Moreover, these excuses do not explain the lapse of over 13 years. In\n\nState v. Davis, 86 Ohio St.3d 212, 214, 714 N.E.2d 384 (1999), the Supreme Court\n\nof Ohio addressed a similar long lapse of time in filing the App.R. 26(B) application\n\nand ruled: “Even if we were to find good cause of earlier failures to file, any such\n\ngood cause ‘has long since evaporated. Good cause can excuse the lack of a filing\n\nonly while it exists, not for an indefinite period.’ State v. Fox, 83 Ohio St.3d 514,\n\n516, 1998-Ohio-517, 700 N.E.2d 1253, 1254.”\n\n Accordingly, this court denies the application.\n\n\n\n\nMARY J. BOYLE, PRESIDING JUDGE\n\nANITA LASTER MAYS, J., and\nFRANK DANIEL CELEBREZZE, III, J., CONCUR\n\f", "ocr": false, "opinion_id": 7805683 } ]

"2022-08-30"

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 1, "download_url": "http://www.search.txcourts.gov/RetrieveDocument.aspx?DocId=42362&Index=%5c%5c10%2e20%2e4%2e7%5cTamesIndexes%5ccoa13%5cOpinion", "author_id": null, "opinion_text": " THE THIRTEENTH COURT OF APPEALS\n\n 13-20-00501-CR\n\n\n STEVEN WAYNE LANDRUM\n v.\n THE STATE OF TEXAS\n\n\n On Appeal from the\n 36th District Court of Aransas County, Texas\n Trial Court Cause No. A-19-5015-CR\n\n\n JUDGMENT\n\n THE THIRTEENTH COURT OF APPEALS, having considered this cause on\n\nappeal, concludes that the judgment of the trial court should be affirmed. The Court\n\norders the judgment of the trial court AFFIRMED.\n\n We further order this decision certified below for observance.\n\nAugust 30, 2022\n\f", "ocr": false, "opinion_id": 7806264 } ]

"1916-03-27"

[ "13 Tiess. 392" ]

[ { "author_str": "Honorjohnpaul", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nHis Honor, JOHN ST. PAUL,\nrendered the opinion and decree of the Court, as follows:\nEelators seek a mandamus to compel the respondent Judge to grant them an appeal from an interlocutory order causing alleged irreparable injury.\nThe co-respondent (plaintiff below) by affidavit and extract from the assessment roll shows that the present value of the thing in controversy, five squares' of ground, exceeds two thousand dollars, and sets up want of jurisdiction in this Court.\nThe only other matter in the record touching the value of the property in controversy is an allegation by said plaintiff in his petition below, “that said squares are of greater value than $100.00. ’ ’\n*393Opinion and decree, March 27th, 1916.\nIt is claimed by relator that this 'Court has jurisdiction since it was held in Spremich vs. Maurepas Land Company, 114 La., 1053, that “for the purposes of the appeal the plaintiff is bound by the allegations of his petition as to the value of the property claimed by him, and neither his right of appeal nor the jurisdiction of the Court to which the appeal is taken fluctuate with the market value of such property.”\nThis decision is without the slightest application here. Plaintiff by the affidavit on file does not seek to .repudiate the allegations of his petition; on the contrary he confirms the allegations that the property was worth “more than $100.00,” by showing that it was in truth worth more than $2,000.00.\nNor is there any attempt to make the .appellate jurisdiction herein “fluctuate with the market value of the property.” The only evidence of the value of the property at any time is the affidavit, et cetera, on file showing that for four years or more the value has exceeded $8,-000.00.\nWe are clearly without jurisdiction in this matter.\nIt is therefore ordered that the preliminary order herein, issued be recalled and that relators’ application for a writ of mandamus be dismissed for want of jurisdiction in this Court.\nApplication dismissed.\n", "ocr": true, "opinion_id": 7807075 } ]

"1914-12-21"

[ "116 Ark. 61" ]

[ { "author_str": "Smith", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": " Smith, J., (after .stating the facts). This action was instituted under sections 1694 and 1695 of Kirby’s Digest, which, so far as they are relevant here, read as follows: “Section 1694. If any person shall bona fide sell any tract or parcel of land, and shall make any written deed, conveyance, bond or other instrument in writing, assuring the title of suc'h land to the purchaser thereof, and shall afterward sell and convey such tract of land to any subsequent purchaser, whether the subsequent purchaser have knowledge of the previous sale or not, such person shall &gt;be deemed guilty of a misdemeanor,” and fined not less than twice the value of the land so sold. “Section 1695. Any person who shall'violate * * * the preceding section shall, in addition to the above fine * * * pay to every person so by him injured or defrauded by any of the means therein mentioned, double the damages sustained by him, to be recovered by proper action.” The briefs contain an interesting discussion of the question whether the above statute is penal or merely remedial. Appellee concedes that he could not recover if this statute was construed to be penal, and not remedial, but he insists that it is remedial in its nature and should receive a liberal construction to accomplish the purposes intended by the Legislature in its enactment. But we think there can be no recovery in either event. There is no allegation here that appellant is insolvent, nor is there any allegation of any offer of performance on appellee’s part to which appellant can not respond, and, consequently, there is no allegation that appellee has been injured cr defrauded, unless the mere execution of the mortgage under the 'circumstances above stated constitutes an injury, or a fraud, within the meaning of the statute. Appellee insists that a mortgage is such a conveyance of land as is comprehended within the phrase, ‘ ‘ and shall afterward sell and convey such tract of land to any subsequent purchaser.” But we do not agree with this contention. A mortgagee is not a purchaser in the strict legal sense of that term. It is true that this court said in the case of Perry County Bank v. Rankin, 73 Ark. 589, 592, that, “It is the rule in this State that a mortgage deed conveys to and vests in the mortgagee the legal title to the property described, subject to be defeated by payment of the debt.” But in whatever form it may have been executed, if it is in fact a mortgage, it is always subject to be defeated by the payment of the debt which it secures. In fact, this is a distinguishing and essential characteristic of a mortgage. The words, “sell and convey,” are defined in Words &amp; Phrases, and it was there said: “The ‘power to sell and convey’ does not confer the power to mortgage.” And, further, “A trust with power to sell out and out will not authorize a, mortgage, and a trust for sale, with nothing to negative the seller’s intention to convert the estate absolutely will not authorize the trustee to execute a mortgage. ’ ’ A number of cases are there cited in support of that text. In the case of St. Louis Land &amp; Building Assn. v. Fueller, 81 S. W. 414, the Supreme Court of Missouri had occasion to define the phrase, “sell and convey,” and it was there said: “They (counsel) urge that the terms of the grant of power, ‘to sell and convey,’ should have been followed by the terms, ‘in fee.’ This suggestion is answered by the fact that the terms, ‘ sell and convey, ’ when applied to real estate, mean, in the absence of appropriate expressions in the instrument itself limiting and restricting such general acceptance of the meaning of such terms, a conveyance in fee; hence it follows that the addition of the words ‘in fee’ would give no additional force to the words used in the deed before us. The intention to authorize the conveyance of the entire estate, by the use of the terms in the grant of power, ‘to sell and convey,’ is made clear when considered in connection with the statute, which expressly declares the nature and character of title vested by a conveyance of real estate. The learned counsel for respondents very aptly 'applied the statute.” It is stated thus: “The Groff deed is dated February 4, 1874. The statute then provided that ‘ * # \"* every conveyance of real estate shall pass all the estate of the grantor therein, unless the intent to pass a less estate shall expressly appear, or be necessarily implied in the terms of the grant.’ That statute is in full force and effect today. 1 Eev. St. 1899, p. 1096, section 4590.” The above section of the Missouri statutes which is quoted in part is so similar to section 733 of Kirby’s Digest, which section relates to the construction of conveyances, as to suggest that, if our statute was not copied from the Missouri statute, it was, at least, drawn to conform with it. We conclude, therefore, that a mortgage is not such a conveyance, by one who has executed a previous agreement to convey, as subjects the mortgagor to the penalty of the statute. As has been said, there is no allegation of any tender of performance on appellee’s part, nor of any refusal or failure to respond on appellant’s part; nor that appellee has been injured nr defrauded, except by the fact of the execution of the mortgage. The judgment of the court Nelow is, therefore, reversed and the cause will be remanded with directions to sustain the demurrer. ", "ocr": true, "opinion_id": 7807419 } ]

"1915-02-22"

[ "117 Ark. 210" ]

[ { "author_str": "Kirby", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": " Kirby, J. This is a suit for damages for mental anguish', ¡alleged to have ¡been caused by the negligence of the telegraph company, in failing to promptly transmit and deliver the following message from Dallas, Texas, to appellee at his home in Eureka Springs, Arkansas, relative to the condition of his daughter: “Dallas, Texas, July 16,1913. “ J. W. Holder, care Mrs. Bettie Burkey, 60 Paxton Street, Eureka Springs, Ark. “ Lula grew worse at 8 a. m. Is unconscious. Don’t be alarmed, but if you want to see her alive, I would not take chances, but I would come at once. Ed and I are with her. Wire me if you are coming, or not. Edith at home. ’Phone her. “Joseph W. Allen.” The daughter was quite ill, .as the result of childbirth, at a sanatorium in Dallas, and the message was filed for transmission by her brother-in-law with the company, at about 2 p. m. It did not reach the appellee until 7:35 o ’clock of that evening, although it was received at 4:40, too late for him to catch the 8:30 train out that night, and make the best connection to Dallas, thus causing a delay in reaching the bedside of his'daughter of thirteen hours. The daughter remained unconscious for two or three days and recovered. The telegraph company denied the allegations of the ■ complaint, and set up in paragraph 2 of its answer that ■the message was delivered and accepted by it, subject to certain terms and conditions in writing; that the defendant should not be liable for mistakes or delays in the transmission or delivery, or for nondelivery of any unrepeated message beyond the amount received for sending the same; that this was an unrepeated message for the sending of which it was only paid fifty cents, that the message was interstate, and as such, was interstate commerce, that by its rules it was authorized to classify messages and to limit its liability when so classified, and that according to the contract and classification of messages, could not be held responsible for damages in .a greater sum than $50 under- its reasonable rules; that the classification was known to and approved by the Interstate Commerce Commission and under the stipulations of the contract, its liability should not exceed the sum of fifty cents, and in any event the sum of $50, with interest. (1) The testimony is sufficient to show that there was negligent delay at the point of destination in the delivery of the message, which delayed appellee thirteen hours in reaching the bedside of his unconscious daughter, and that he suffered great mental anguish on account thereof. The message was an interstate one from a point in Texas, where the laws of the State allow mental anguish as an element of damage for the failure to deliver messages of the kind, to appellee in this State where the law likewise permits the recovery of damages for mental •anguish. The contract was made for the benefit of the sendee or addressee of the message, who was a party thereto,- and entitled to sue for damages arising from the negligent delay in delivering same. Western Union Tel. Co. v. Compton, 169 S. W. (Ark.) 946, 114 Ark. 193. The court sustained a demurrer to the paragraph of appellant’s answer, setting out its rule limiting its liability for unrepeated messages, such as this was, to not exceeding fifty times the amount charged for sending same, and in any event, to not more than $50, which it is contended was error. It is insisted further that the message being an interstate one, our statute allowing the recovery of damages for mental anguish for the negligent failure to transmit and deliver same, is a burden upon interstate commerce, beyond the power of the State to impose. In Western Union Tel. Co. v. Compton, supra, this court, after affirmihg a judgment for damages for mental anguish, on rehearing reversed same and reduced the judgment to $50, following the authority of the Supreme Court of the United States in Western Union Tel. Co. v. Brown, 234 U. S. 542, 58 L. Ed. 1457. In a later case of Western Union Tel. Co. v. Johnson, 115 Ark. 564, 171 S. W. (Ark.) 859, -a -s-uit for damages for mental anguish for the failure to deliver a telegram sent from Arkansas to Mississippi, the court followed the doctrine of the Compton case, and held that damages for mental anguish occasioned by the failure of a telegraph company to transmit or deliver la message, an interstate one, could not be recovered, following the Supreme Court of the United ¡States in its determination that a statute providing for the recovery of mental anguish in such eases w¡as an attempt to regulate the conduct of telegraph companies in transmitting messages from one State to another in interstate commerce. The majority of the court is of opinion that this case is not distinguishable from that of Western Union Tel. Co. v. Brown, notwithstanding the fact that each State, the one from which the message was- sent as well as the one where it was delivered, provide by statute for the recovery of damages for mental anguish for the negligent failure to transmit and deliver such messages. (2) The telegraph company was entitled therefore to have its defense of a limited liability because of its rules, which were part of the contract, heard, the interstate commence act, providing that the Commerce Commission has authority to regulate the rates and practices of telegraph compames. The telegraph company had the right to classify its messages and charge different rates therefor, and was entitled to have the jury told that its rule making such classification and giving day messages a preference in transmission and delivery over day letters, was a reasonable one. There is enough negligence shown in the f ailure to deliver the telegram to the sendee, who had been a resident of the city for more than thirty years, and was in business within 200 yards of its office, to justify the awarding of any damage that could be recovered under the company’s rules, which became a part of the contract, and the agent having testified that the price of transmission of the message was seventy-five cents, appellee could recover fifty times the amount thereof, if it did not exceed the sum of $50. The appellant only claimed in its pleading,. the demurrer to which should have been overruled, the right to the limitation of its liability as prescribed by its rules, and the judgment should not have been for more than fifty times the price of the message, or $37.50. (3) We do not agree with appellee’s contention that any physical discomfort and suffering from a cold, claimed to have been contracted while waiting for the train at Fort Smith, was a proper element of damage, as resulting proximately from the delay in the delivery of the message in the first instance, and causing ©aid appellee to take another train that required the stop-over at Fort Smith. There was no notice to the company that would apprise it that any such injury might result from the delay in the delivery of the telegram. The judgment is reduced to said amount that could be recovered under the terms of the contract'—$37.50^and as modified, will be affirmed. It is so ordered. ", "ocr": true, "opinion_id": 7807544 } ]

"1915-10-04"

[ "120 Ark. 226" ]

[ { "author_str": "Smith", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": " Smith, J., (after stating the facts). The authority of the city to enact the ordinance under section 5450 of Kirby’s Digest is not questioned, and there is no contention that the license fee required to be paid thereunder is unreasonable. It is contended only that the city is without power to regulate or restrict the operation of automobiles outside its limits, and that the business carried on by appellant was not within the limits of the city and subject to regulation by it under the terms of the ordinance. It is argued in support of this contention that if the city of Paragould, within which the passengers were collected and 'discharged in the business of carrying to and from the fair grounds beyond the city limits and to and from the other town, has the power to require the payment of any such license, that each city or town through and into which the automobile might go upon its different trips would have a libe power and that the payment of a license to each of them would toe so onerous and (burdensome as to be .absolutely prohibitive, /and that only that municipality in which the business or occupation is wholly carried on or conducted has any such power. There is no attempt upon the part of the city to extend its jurisdiction beyond its territorial limits in the passage of the ordinance, and it has .already been held that the owner of an automobile or motor vehicle .shall not ibe required to obtain any other license or permit to use and operate the same, than that required by Act 134 of the Acts of 1911. Helena v. Dunlap, 102 Ark. 131. But section 13 of said act expressly declares it shall not be construed “to affect the power of municipal corporations to make .and enforce ordinances, rules and regulations affecting motor vehicles which are used within their limits for public hire.” The court is of opinion that the ordinance, properly construed, means only to require the owner or keeper of an automobile “for the transportation of passengers for hire within the limits of the city” to pay the license fee, and, since the .appellant did not keep or operate his automobile for the transportation of persons for hire from iand to points within the city, that he was not using it for transportation of passengers for 'hire within the limits of the city, in violation of the ordinance. The terms of the ordinance are satisfied by holding that license taxes are to be imposed only by that municipality in which the business or occupation is carried on or conducted. Bennett v. Birmingham, 31 Pa. 15; Cary v. North Plainfield, 49 N. J. Law, 110, 7 Atl. 42; Commonwealth v. Stodder, 56 Mass. 562, 48 Am. Dec. 679; Gettysburg v. Zeigler, 2 Pa. Co. R. 326. Appellant’s 'business, not being .conducted within the city limits, a refusal to pay the license did not constitute a violation of the ordinance, and the judgment is reversed and the cause dismissed. Mr. Justice Kirby thinks the judgment should be affirmed, and .dissents from the court’s opinion. He is of opinion -that the statutes authorize the passage of such an ordinance which, by its terms, necessarily includes the business of operating an automobile for the transportation of passengers f or hire within the city limits, whether the journey of the passenger is begun and completed therein, or not. That since appellant took on his passen'gers at any place’in the city designated by 'him or where persons desired to embark, and, returning from outside the limits, discharged passengers likewise, and kept his machine within the city where isuch business was conducted, that he was violating the ordinance in the conduct thereof; that the .city not only had the authority to fix the license for the carrying on of business, as conducted by appellant, but has done so in the passage of the particular ordinance. Arkadelphia Lumber Co. v. Arkadelphia, 56 Ark. 370. ", "ocr": true, "opinion_id": 7807842 } ]

"1915-10-11"

[ "120 Ark. 277" ]

[ { "author_str": "McCulloch", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": " McCulloch, C. J. The Legislature at the 1915 session -enacted a special statute creating ta read improvement district in Grant County (Act 48, p. 136, Acts 1915), embracing a considerable portion of lands of that county and authorizing the beard -of commissioners to improve a -certain public road known as the Pine Bluff, ¡Sheridan land Hot 'Springs road. That road runs clear across the county /and passes ¡through the incorporated town of Sheridan. The statute provides a complete scheme for the organization of the district, the formation -of plans for the improvement, the assessment of benefits, and for the construction of the improvement 'and enforcement -of payment of the improvement tax. It appears from the allegations of the complaint in this action that the board of improvement has effected an -organization in accordance with the ¡terms of the statutes -and are attempting to carry out. the provisions of the statute. This is- an action instituted by a property owner in the district to -enjoin the board from proceeding with the construction of the improvement, the levying of assessments land the issuance -of bonds. The cause was heard upon an agreed statement of facts and the depositions of witnesses, and the ¡chancellor, on a hearing -of the cause, dismissed the complaint for wiant of equity. The complaint in the ¡case seems to have been framed s-o as to constitute an assault upon the validity of the whole statute, section by section, and all of the- proceedings ¡of the board, but we must treat -as abandoned all of the assaults except the -ones that are made in the briefs of counsel filed in this court. (1) In the- first place it is contended that the act is v-oid because it includes property in an incorporated town without -obtaining the consent of the majority in value of the property owners. This contention may be ¡disposed of by merely ¡citing several of our decisions where we held that the provision of the Constitution with reference to improvement districts entirely inside of cities and towns has no application to districts covering territory not wholly within the city limits of a municipality. Butler v. Board of Directors of Fourche Drainage District, 99 Ark. 100; Alexander v. Board of Directors of Crawford County Levee District, 97 Ark. 322; Cox v. Road Improvement District, 118 Ark. 119. (2-3) lit is also contended in this connection that the statute invades the jurisdiction of the municipality iby .authorizing the improvement of a highway which constitutes one of the streets therein. In the case of Cox v. Road Improvement District, supra, we expressly pretermitted lany discussion of that question for the reason that none of the improvements involved in that case were to he made within the corporate limits of the town of Keo, though the property in the town was to he assessed. It is very plain, however, that the inclusion of a street is not an invasion of the authority and jurisdiction of a municipality for the reason that the purpose of this statute is merely to provide for improving the street and not to take away from the municipality the control thereof. This question is ruled hy the case of Pulaski Gas Light Co. v. Remmel, 97 Ark. 318, where we decided that 'an urban improvement 'district formed under the general statutes of the State acquired no control over .streets except for the purpose of making the improvement. The principle is the same whether the improvement district has been created in a city or town under the general statutes or whether hy a special statute creating a rolad improvement district embracing property both in and outside of a .city or town. It is ¡clearly within the power of the Legislature to ¡authorize the property owners to improve a street or highway, either inside or ¡outside of a municipality, without invading the jurisdiction of either the municipality or the county court. We have held that the Legislature may create improvement districts authorizing the improvement of public highwajm, and that such proceeding does not invade the jurisdiction of the county court. Road Improvement District v. Glover, 89 Ark. 513. Our conclusion therefore is that there is no basis for the contention that the act is void on either of the grounds just stated. (4-5) .Section two of the. act describes .the read by name as “the Pine Bluff, Sheridan land Hot Springs Boiad,” and also specifically describes the route along which the road runs. Then follows the provision that the improvements “iare to 'be imlade on the read as now laid out by the county court in Grant county, or substantially on this line, the nature of the improvements 'and any dhlange in the line of siaid road to be .approved by the county court of Grant county, Arkansas.” That .section also provides that the improvement “is to ibe constructed of macadam or of' such other material as the commissioners may deem best.” There is no basis for the contention that the description of the route is too uncertain, for the act does not lauthorize any substantial deviation from the particular line described. Whether a .substantial deviation under those provisions would invalidate the proceedings, we iare not called on to .decide, for it is plain that only slight deviations are .authorized and those are to be approved by the county court. Nor is it necessary for us- to determine how far ‘the board of commissioners may deviate from the specifications as to the material to be used and how far they could go in adopting other material not of the same general .character as that which is used in constructing a macadam road. There appears to. be no valid reason wby the Legislature cannot confer upon a board of improvement plenary power in the matter of selecting the materials as well as forming the plans for the improvement. What we said in the recent case of Cox v. Road Improvement District, supra, (about the necessity for certainty in the specification of the character of the improvement, does not apply, for the reason that there is no requirement in this statute for a petition of landowners, and therefore ia legislative specification of the character of improvement is not necessary. Nor does the decision in Swepston v. Avery, 118 Ark. 294, 177 S. W. 424, have any bearing here, for the reason that the .statute in that case provided for an arbitrary assessment of benefits in proportion to the value of the land, whereas in the present case the governing statute ¡authorizes an assessment of ¡benefits based upon the character of the improvement after it has. ¡been 'determined upon. (6) ¡Section ¡eight of this'statnte provides that after the hoard shall have' formed plans for the improvement ¡and ascertained the cost ¡thereof, “if they deem it expedient to. make said improvement, they ¡shall appoint three electors of the ¡county, who shall constitute a hoard for the assessment of the benefits to ¡be received,” etc. This provision is not -found in ¡any statute which has come before this court for review, ¡and presents a new question. It is contended that the provision 'Constitutes a delegation of legislative authority to the board of improvement. After careful consideration of the question, we are, however, of the opinion that the provision does ¡not constitute a 'delegation of legislative authority, but that it -comes within the rule announced by this court that while the Legislature cannot delegate power to make laws, “it can make a law to delegate the power to determine some facts or state of things upon which the law makes or intends to make its own action depend.” Boyd v. Bryant, 35 Ark. 69. This statute, it will be observed, is completely put in force by the Legislature, and nothing is left to the hoard so far as completing ¡the enactment. It only delegates to the board the authority of determining the extent to which the proceedings may go towards the construction of the improvement. Tihe improvement district itself is created by the statute and the board of improvement is ¡named for the purpose of carrying out the provisions of the statute. The hoard is clothed with complete authority, not only to perform the preliminary acts but to construct the improvement and assess benefits and collect taxes, etc. There is -a mandatory direction to the board to organize itself ¡by the election of officers, ¡and to employ engineers and form plans for the improvement. At ¡this point the board is, authorized, before incurring further expense, to determine whether or not it will be expedient to make the improvements; and this is not a delegation of legislative authority, but power to ascertain the fact whether or not the plan for the improvement is feasible and shall be consummated. Of course, there is a further limitation upon the power of the board to proceed, in that the benefits must be ascertained to be equal to the cost of the improvement. But it was the purpose of the lawmakers to provide for an ascertainment by the board in advance of the assessment of the benefits whether or not the plan to construct the improvement is feasible, or, to use the exact language of the statute, to determine whether or not it is “expedient to make said improvement.” ' , (7) 'Counsel for defendants have cited many cases on their brief which sustain the view that this is not a delegation of legislative authority. The true test, approved by many courts in accord with the rule announced by this court in Boyd v. Bryant, supra, is stated by the Supreme Court of Ohio in Cin., Wilmington &amp; Zanesville Railroad Company v. Commissioners, 1 Ohio State 77, as follows: “The true distinction is between the delegation of power to make the law, which necessarily involves the discretion as to what it shall be, and conferring authority or discretion as to its execution to be exercised under and in pursuance of the law. The first can not be done. To the latter no valid objection can be made. ” The drainage laws of this State constitute the county court as the tribunal for determining the expediency of such an improvement in a given locality, and we can see no reason, from the standpoint of constitutionality, wfhy the Legislature can not create, even in a special statute, a tribunal, consisting of the members of the board of improvement, to determine the feasibility of the improvement to be undertaken before unnecessary expense is incurred. It is not essential that the lawmakers themselves shall first determine the feasibility of the improvement. The passage of the statute presupposes ¡a legislative determination as to the necessity for the improvement, or at least as to its desirability, but there is no reason why the 'lawmakers should not delegate to a special tribunal the further authority of determining its expediency before incurring considerable expense towards its construction. The statute therefore is not open to the objection that it constitutes ia delegation of legislative authority. (8) There is also a contention that the proceeding is void because one of the commissioners named is not the owner of property except inside the town of Sheridan. There is no force in that objection, even if the act required the commissioners to be 'landowners, for, as we have already said, it was within the power of the legislature to include the town within the limits of the district, and if a commissioner owned land inside of the district he was qualified. The statute, it is true, provides that commissioners who are to succeed those named in the statute at the expiration of their terms, shall be property owners within the district; but the statute names certain individuals who are to constitute the first board of improvement, and there is no specification as to their qualification. Therefore, the question cannot arise whether or not they are property owners. (9) Nor is there anything in the contention that the act is void because it fails to provide for the commissioners to take an oath of office. The statute is silent on that subject, though it contains an express provision that the commissioners “shall organize by electing one of its members as president and by electing a secretary and treasurer.” The members of the board are not officers within the meaning of the provision of the Constitution (art. 19, sec. 20), requiring all officers, both civil land military, to take .and subscribe to a certain oath before entering upon the discharge of the duties of their office; but if it were to be held that that provision did apply, there is nothing in this statute in conflict with it, even though it contains no requirement for taking the oath. If the commissioners were public officers, it would be their duty to take the oath in conformity- with the Constitution, without any express provision of the statute to that effect. Finally it is urged, with considerable earnestness, that the evidence shows that the assessment of benefits is invalid on account of the lack of uniformity, .and for other reasons. The case was, as before stated, tried upon an agreed statement of facts and the depositions of witnesses. The depositions of two of the assessors were ¡taken, and it appears that they exercised their judgment fairly and that the state -of the proof is such that we can not say that the .assessments are unreasonable or that they lack uniformity. It is contended further that .according to the statement made by one of the assessors, they made their assessment without .any reference to the cost of ¡the improvement and without having the plans before them. It appears, however, from a preponderance of the testimony in the case that the plans for the improvement had been formed before the assessment was made, • and that those plans were laid before and considered by the board in making ¡the .assessment. In other words, the preponderance of the testimony is against the contention of appellants on the issue made concerning the validity of the assessment. This disposes of all the attacks made here on the vialidity of the statute, -and of the proceedings,'and it follows from what we have said that the decree of the chancellor dismissing the complaint for want of equity should be affirmed. It is so ordered. ", "ocr": true, "opinion_id": 7807852 } ]

"1915-12-20"

[ "121 Ark. 448" ]

[ { "author_str": "Wood", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": " Wood, J., (after stating the facts). Appellants contend. 1. That the circuit court acquired no jurisdiction because the appellees failed to file a cost ¡bond. Section 1348' of Kirby’s Digest provides that “appeals may be taken to the circuit court from all final orders land judgments of the probate court at any time within twelve months after the rendition thereof by the party aggrieved filing an affidavit andprayer f or appeal, ’ ’ etc. Act 327 of the Acts of 1909 amended section 1348. The latter act sets out section 1348 supra, and amends the same by adding, “And any heir, devisee, legatee or judgment creditor of an estate, who feels aggrieved, may at any time within six months after the rendition thereof, prosecute an appeal to the circuit court from any final order or judgment of the probate court by filing an affidavit and prayer for appeal with the clerk of the probate court, together with a bond to pay the costs of the appeal if the judgment of the probate court is affirmed, and upon the filing of such affidavit and bond for cost, to be approved by the clerk, the court shall make an order granting the appeal at the term at which said judgment or final order shall be rendered or at 'any term within six months thereafter.” (1) This act, amending section 1348, did not take away the rights of the parties who were aggrieved by the judgment of the probate court to appeal without giving bond for costs. Such bond was not required of the parties aggrieved who were parties to the suit, and the amended act did not affect their rights under the old law. It was only intended to extend the right to appeal to certain classes — “heirs, devisees, legatees and judgment-creditors” — who were not parties to the proceedings in the probate, court at the time the judgment was rendered, but whose interests might, nevertheless, be affected in some manner by ¡such judgment, but who, in the absence of the above amended statute, would have had no right to appeal. See Hall v. Rutherford, 89 Ark. 554. In Stricklin v. Galloway, 99 Ark. 56-60, speaking of this statute, we said: “Now if the amended statute means ¡anything at all it means that ‘any heir, devisee, legatee or judgment creditor’ of an estate -can appeal from the judgment of the probate court within six months after its rendition whether previously made -a party to the proceedings or not.” The appellees were proponents of the alleged will, and therefore were not required to give bond specified in the act approved May 31, 1909, supra. 2. The appellants next contend that the instrument set forth was not signed at the end thereof, because it was not signed at the termination of the testamentary or dis-positive clauses, also that the provision requiring that the executors should take care of the testator and his wife so long as they lived rendered the instrument invalid as a will and therefore not subject to probate. But we do not so construe the instrument. It was executed and attested in the manner required by section 8012 of Kirby’s Digest for executing and attesting nonholograph wills. There were no testamentary clauses following the signature of the testator, and it is certain that it was his intention, by his signature, to authenticate and make his own the testamentary clauses that preceded it. (2) An instrument containing testamentary -provisions, showing the purpose of the signer to dispose of Ms property by will, is valid as a will where it is properly executed, notwithstanding it may contain clauses concerning matters that are not of a testamentary nature. See 40 Oye. p. 1007, and authorities under note 15. (3) The purpose of our statute in requiring wills to be signed at .the end thereof is to provide against fraud, and this statutory requirement must not be frittered away by loose interpretation. 40 -Cyc. -p. 1105. But certainly an instrument with the various provisions, dispositive and otherwise, closely connected, -as these were, without any intervening blank spaces, and with no testamentary clauses following the signature — (the whole body of the instrument in consecutive order showing but one instrument, and signed at the end thereof) — fully meets the requirements of the statute. In re Gilman, 38 Barb. 364; Morrow’s Estate No. 1, 204 Pa. 479. (4) The provision requiring the executor to rent the land as long as the testator and his wife lived, and to take care of them as long as they lived, and to take care of Ohairley Dill, and the provision that if the executors left either the testator or his wife before their death, the will should become null and void, “otherwise'to remain in full force and effect at our death,” do not as we construe it, show that the will was not to take effect at the death of the testator 'and that it could not take effect until the death of the testator’s wife. There is nothing in these provisions to indicate that the testator intended that the will should not take effect at his death but that it should take effect at the death of his wife. The instrument names executors, provides for the payment of just debts and funeral expenses, gives to each of the children named five dollars to be paid after the testator’s death, -and devises to his executors the real estate described, and imposes upon them the duty of paying the debts, funeral expenses and .legacies to his children and of taking care of the testator and his wife as long as they should live, and of taking care of Charley Dill. The instrument constituted the will of Eodgers, and as such was entitled to probate. It is unnecessary to decide, and we do not decide, whether the instrument vested the fee simple title to the land in appellees. • And as this is only an application to probate the will, it is not proper for us to decide whether the instrument was a contract to make a will between the testator 'and the appellees, and susceptible to enforcement as such. No such question was presented to the trial court. The judgment of the circuit court directing the probate court to admit the instrument to probate is correct, and is, therefore, affirmed. ", "ocr": true, "opinion_id": 7807984 } ]

"1916-01-17"

[ "122 Ark. 56" ]

[ { "author_str": "Hart", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": " Hart, J. The deputy prosecuting attorney of Washington County, Arkansas, filed an information before a justice of the peace of said county, charging the defendant, Harry G. Stokes, with the statutory crime of abandoning his wife and child. See Acts 1909, page 134. The defendant entered a plea of guilty, and his punishment was fixed by the justice of the peace at a fine of $75 and imprisonment for sixty days in the county jail. Within the time allowed by statute he prayed and was granted an appeal to the circuit court of Washington County. When his- case came -on for trial in the circuit’ court he was permitted to withdraw his plea of guilty and to enter a plea of not guilty. He was tried and convicted in the circuit court and the jury fixed his punishment at a fine of ¡$350 and one years’ imprisonment in the county jail. From the judgment of’conviction the defendant prosecutes this appeal. The circuit court should have dismissed the appeal of the defendant. The defendant entered his plea of guilty before the justice , of the peace. In doing so he confessed himself guilty in the manner and form as charged against him in the information. Where the facts alleged in ani information or indictment do not constitute an offense, the defendant has lost nothing by pleading guilty, and on appeal may attack the indictment or information for the first time. Fletcher v. State, 12 Ark. 169. In the instant case we have not set out the information. It was filed under Act 52 of the Acts of 1909 and charged the defendant with the crime of wife abandonment. It was substantially in the language of the act and no objection has been made or could be made as to its form. The defendant pleaded guilty when he was arraigned before the justice of the peace and sentence was there pronounced against him. His plea of guilty as received by the court and recorded was an admission of any offense well charged in the information. Unless it was withdrawn by leave of the court there would be nothing left to be done but for the court to pass sentence upon him. The reason is that a plea of guilty is a formal confession of guilt before the court in which the defendant is arraigned, .and the court .can then only pass sentence as upon a verdict. State v. Wright, 96 Ark. 203; Clark’s Criminal Procedure, pp. 373, 374. In the case of Commonwealth v. Mahoney, 115 Mass. 151, the court held that a plaintiff who pleads guilty to a complaint in the municipal court and appeals to the superior court is not entitled to a trial by jury and that unless the plea is withdrawn by special leave of the court in which it is made, or a motion is interposed in arrest of judgment for legal defects apparent on the record, t'he commonwealth is entitled to have sentence passed. See, also, Commonwealth v. Winton, 108 Mass. 485, and 12 Cyc. 801. It follows that the circuit court erred in not dismissing the appeal of the defendant and for that error the judgment will he reversed ¡and the appeal of the defendant from the justice of the peace court to the circuit court will he dismissed. It is so ordered. ", "ocr": true, "opinion_id": 7808026 } ]

"1916-04-24"

[ "123 Ark. 458" ]

[ { "author_str": "McCulloch", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": " McCulloch, C. J. The county court of Izard County made an order, pursuant to terms of the statute, calling in the warrants of the county for re-issuance or cancellation, and the Bank of Melbourne in response to the call presented certain warrants which it held as owner. Four of the warrants, aggregating the sum of $800, had been issued by the county court to M. F. Hill, and four others, aggregating the sum of $151, had been issued by the county court to P. C. Sherrill, who was county judge at the time the warrants were issued but who had been succeeded by the present incumbent who made the order calling in the warrants. The county court rendered a judgment cancelling all of the warrants just mentioned and the Bank of Melbourne appealed to the circuit court where the cause was heard and a judgment was rendered establishing the validity of said warrants and directing that they be re-issued to the present owners. From that judgment an appeal has been prosecuted by Izard County. (1) It is contended in the first place that the court erred in denying the county the right of trial by jury. It is clear, though, that the right of trial by jury is not given in this class of cases where the county court is authorized to call' in outstanding warrants, and when the warrants so called in are presented “it shall be the duty of said court thoroughly to examine the same, and to ■reject all such evidences of indebtedness as in their judgment their county is not justly and legally bound to pay.” Kirby’s Digest, section 1179. On appeal to the circuit court the matter is heard de novo in the same manner as is authorized in the county courts. Trial by jury is therefore not contemplated. The four warrants issued to M. F. Hill, aggregating the sum of $800, were to cover the allowance of a claim in favor of that individual for the construction of a system of waterworks for the new court house. It appears that the plans for the court house contemplated a system of waterworks for the building, and the original contract was let as a part of the contract with L. R. Wright &amp; Co. for the construction of the building, but subsequently a separate contract was made with M. F. Hill to construct the waterworks. The evidence shows that the original contract with L. R. Wright &amp; Co. contained an item of $2,500 for the construction of the waterworks, and that the contract with Hill was to construct the waterworks for the sum of $800. (2-3) The contention is that the allowance to Hill was fraudulent and void because a previous allowance for the same item had been made to the original contractor, but the evidence in the case shows that the allowance made to the original contractor was cancelled and that no warrant was issued thereon, but that oh the contrary a new contract was made with M. F. Hill, who constructed the waterworks and to whom the present warrants were issued. In the recent case of Monroe County v. Brown, 118 Ark. 524, the power of the county court in proceedings of this sort was declared as follows’: “The statute is not construed to mean that the county court is authorized to review former judgments of the court for mere errors in the allowance of claims, but they are authorized to reject claims which have been illegally or fraudulently issued. In other words, where the claim against the county was one which, under any evidence which might have been adduced, could not have been a valid claim against the county, or where the judgment of allowance was obtained by fraud, it may be set aside and warrants issued pursuant thereto cancelled. ’ ’ The same rule was announced -in the more recent case of Izard County v. Williamson, 122 Ark. 596. The county court had jurisdiction to hear and determine the claim of M. F. Hill, and, in the absence of fraud in the procurement of the allowance, the judgment is not open to collateral attack. It is urged that the allowance is void because there was no appropriation, but it is sufficient answer to that contention to say that the construction of the waterworks was a part of the construction of the public building and no previous appropriation of funds was essential. Sadler v. Craven, 93 Ark. 11. There was no error in the judgment of the circuit court as to the re-issuance of the four warrants just referred to. (4-5) The other four warrants stand upon a different footing, and a determination of their validity is controlled by different principles. They were issued by the county judge, who was sitting in the matter, to himself for expenses incurred in and about the superintendence of the construction of the court house. One of the items was for money paid by the county judge personally to an engineer who was called to .Melbourne for the purpose of giving advice with reference to the water supply, and the other warrants were for items of traveling expenses of the county judge in going to different places for the purpose of making purchases for the court house and furniture. The evidence shows conclusively that the money was spent by the county judge in good faith and that it resulted in substantial benefit to the county in the way of reducing the cost of certain articles to be purchased. The good faith of the county judge is fully established by the testimony, but that does not establish the validity of the allowances. In the first place, there is no authority in the statutes for a county judge to expend money in that way, and in the second place there is no authority for the county judge to make allowances to himself. In passing upon accounts presented against the county, the county judge acts judicially and he is disqualified on account of his interest in any claim presented. Of course, the warrants issued for his own salary go by operation of law and are not void because the orders for the allowances are made by the county judge who is to draw the salary, but allowances covering other claims stand upon a different footing, and where the county judge is the claimant or interested in the claim he is disqualified to act in the matter. The claim is on its face one which the county judge had no authority to make an allowance for, regardless of any evidence which was introduced, and therefore these items fall squarely within the rule announced by this court in the cases just cited, and as to them the judgment will be reversed and the cause remanded with directions to the circuit court to cancel the warrants and certify its judgment down to the county court. ", "ocr": true, "opinion_id": 7808219 } ]

"1916-05-01"

[ "123 Ark. 519" ]

[ { "author_str": "Smith", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": " Smith, J. Appellants were convicted of grand larceny under an indictment which alleged the ownership of the property said to have been stolen to be in J. B. Sturdivant and W. A. J. Sturdivant. The goods were stolen from a store operated by J. B. Sturdivant, but the proof shows he was conducting the store for his brother W. A. J. Sturdivant, who is the sole owner, and it is said there is a fatal variance between the allegations of the indictment and the proof at the trial. . The motion for a new trial preserved other exceptions, but we think they are not of sufficient importance to require discussion. Notwithstanding the fact that section 2233 of Kirby’s Digest provides that if an offense is described with sufficient certainty to identify the act an erroneous allegation as to the person injured is not material, it has been frequently held that an erroneous allegation of ownership in an indictment for larceny is fatal. In the case of Merritt v. State, 73 Ark. 33, the property stolen was alleged to belong to W., whereas the proof showed it to be the property of W. and C., and it was there said that, in the absence of proof showing exclusive possession in W., the variance was fatal. In support of that holding the court quoted with approval .from section 723 of 3 Bishop’s New Criminal Procedure. That entire section reads as follows: ‘ ‘'Sec. 723. 1. Where the ownership is joint — as in a business firm, or the like, it must be laid in all. Each name should be given in full; simply the partnership name, for example, not sufficing. Nor, where partners are the owners, need either the fact of the partnership; or the firm name, be averred. And if one of them has such a separate possession as gives him a special property, it will not be ill to lay the ownership in him alone. Where it is laid in three, it will be fatal variance to prove it in two only. “2. Several — If the thing belongs to A, B, and C, not jointly, but each owning his several part, it is ill to say ‘of the goods of A, B, and C,’ which means a joint ownership. ’ ’ The rule there announced states the requirements of a valid indictment except insofar as those requirements have been relaxed by statute. And that there has been a relaxation of this rigidity is shown by the decision of this court in the eases of Davis v. State, 117 Ark. 300, Andrews v. State, 100 Ark. 184, Hughes v. State, 109 Ark. 403; Ivy v. State, 109 Ark. 446. In these cases we held it not essential to- allege the names of the partners composing a firm, and that where the firm name is correctly alleged an erroneous allegation of the names of the partners composing it is^ immaterial. The reason for the relaxation is stated in tlie opinion in the case of Andrews v. State, as follows: “Now, in all of the cases on the point heretofore decided by this court the indictment charged ownership by individuals, and there was no other sufficient identification. In the present case, however, there is another description in stating the partnership name, and to that extent the proof conforms to the allegations of the indictment. The only variance is as to the name of one of the partners. If the statute (Section 2233 of Kirby’s Digest) has any application at all to larceny and kindred cases, and if any effect at all is to be given to it in such cases, we must bold that it applies, and that, there being a sufficient identification of the property in stating the partnership name, the statute applies and renders the erroneous allegation as to one of the persons injured immaterial. It is true that ordinarily in cases of this kind the rules of criminal pleadings require that the names of partners be given, but, so far as identification of the property is concerned, it is described by naming the partnership and, by operation of the statute, an error as to the individual names of the partners is immaterial.” The language was re-affirmed in the case of Hughes v. State, 109 Ark. 405, in which case it was pointed out that the view there expressed was in conflict with language in the opinion in the case of McCowan v. State, 58 Ark. 17, but in overruling that case, to the extent which was done, we merely’ gave effect to that language of the statute which applied to the facts recited. While we do not intend to overrule or to impair the authority- of the case of Merrit v. State, supra, we do not think the doctrine of that -case should be extended to cover the facts of this case. In that casé there was a failure to allege the name of one of the owners of the property stolen. There is no such failure here. It is true the indictment here alleges as an owner a person who has no interest in the property, but that allegation must be treated as surplusage, inasmuch as the indictment does correctly allege as an owner the name of the person who, according' to the evidence, is the sole owner. In other words, an indictment must allege the names of the owners to enable the court to pronounce judgment, on conviction, according to the rights of the case and to prevent prejudice to the substantial rights of the defendant. If he is to be 'Convicted he has the right to have named in his indictment all persons who are supposed to have ’been aggrieved by his act, so that he may prepare for ■M'S defense and plead the acquittal or conviction successfully should he be again indicted for the same offense, but when this has been done, and the indictment is otherwise sufficient, he is not prejudiced by the insertion of the name of a person as an owner who, in fact, has no interest in the property alleged to have been stolen. We conclude, therefore, that the indictment meets the requirements of sections 2228 and 2229 of Kirby’s Digest as those sections have been construed in frequent decisions by this court,. The judgment of the court below is, therefore, affirmed- ", "ocr": true, "opinion_id": 7808233 } ]

"1916-07-10"

[ "125 Ark. 24" ]

[ { "author_str": "Wood", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": " Wood, J., (after stating the facts). (1) The undisputed testimony shows that appellant was guilty of the crime charged. An “assault and battery is the unlawful striking or beating the person of another.” Kirby’s, Digest, § 1584. Mr. Bishop says: “The kind of physical force necessary to constitute an assault is immaterial.” See 2 Bishop’s New Crim. Law, section 28. Among the examples, he gives to illustrate the text is, “The taking of indecent liberties with a woman; even laying hold of and kissing her against her will.” Citing, Reg. v. Dungey, 4 Fost. &amp; F. 99, 103. The author says (vol. 1, sec. 548): “Assault and battery are two offenses against the person and personal security, in the facts of most cases existing together, and practically regarded as one.” “A battery,” says he, “is any unlawful beating, or other wrongful physical violence or constraint, inflicted on a human being without his consent.” In Mailand v. Mailand, 83 Minn. 453-455, it is said: “An intent to do violence is an essential ingredient of the offense, but the degree of violence is, of course, immaterial. The least or slightest wrongful and unlawful touching of the person of another is an assault.” See, also, Clark’s Criminal Law, p. 228. The presumption is that Mrs. Turner was a chaste woman, and there is no evidence to the contrary. The testimony of the appellant to the effect that he believed his approaches would be acceptable to her because he had kissed her and she had kissed him six years ago, did not constitute an excuse or justification for. his laying his hands upon her with the view of kissing her as he had done on the previous occasion. The undisputed proof shows that on the former occasion when he kissed .her, she was a single woman. Since that time she had married, and at the time of the alleged offense, had her baby' with her. The circumstances were entirely different. Although the appellant had been the prosecutrix’s family physician, as he says, all her life, that fact and the fact that he had kissed her before when she was a maiden did not justify him in laying his hands upon her before he knew whether or not she would consent to these advances. The presumption must be indulged that a virtuous woman would not have consented to be kissed under such circumstances. It was unlawful for appellant to Mss Mrs. Turner without her consent, and he had no right to presume from his past conduct and his professional relations with her that’she would consent. The undisputed testimony shows that she did not consent. It is the sacred right of every woman to protect her virtue. Hence, she can, if she will, hold her person aloof from the contaminating touch of any man of lecherous inclination. No man, whether his purpose be lascivious or otherwise, has any right to lay his hands upon a chaste woman, indulging the presumption that she will consent to an act wMeh it would be unlawful for him to commit without her consent, and in the absence of proof to warrant the inference that Mrs. Turner did consent to the act of appellant in laying Ms hands upon her for the purpose of kissing her, it must be held that the conduct of appellant in doing so was an assault and battery within the meaning of the above authorities. The appellant relies upon Clerget v. State, 83 Ark. 227, as supporting his contention that the evidence was not sufficient to convict him. In that ease the utmost that the evidence tended to prove was that Clerget told his companion Malone while they were making the. rounds to warn road hands to work, that “somewhere on our rounds there are some girls we can go to and have a good time.” When they reached a certain residence, Clerget went in and gave the sign to Malone that they had reached the place mentioned. Clerget went in and Malone followed him. Clerget was asking a young lady if any one was there subject to road duty, and she replied that her brother was. Clerget commenced writing a warning notice to him, and then Malone touched the young lady upon the chin, whichsheindignantlyresented. Weheld upon these facts that Clerget was not guilty of an assault and battery. Clerget did not lay his hands upon the young lady, and the evidence was not sufficient to show a conspiracy between Clerget and Malone to do an unlawful act, and hence Clerget was not guilty. In that case Malone, of course was guilty of an assault and battery, because he took undue liberty with the person of the young woman without her consent, just as appellant did with Mrs. Turner. The court therefore, upon the undisputed evi-. denee, might have so declared as a matter of law. The judgment is right, and it is therefore unnecessary for us to consider the errors assigned in the rulings of the court in giving and refusing prayers for instructions, and in the admission of testimony. (2) Under the agreed statement of facts, to the effect that appellant was convicted for the offense of abusive language growing out of the* same transaction, appellant claims that this prosecution is barred under the authority of section 5633 of Kirby’s Digest, which reads, in part, as follows: “Whenever any party shall have been convicted before any justice of the peace, * * * said conviction shall be a bar to further prosecution before any * * * justice of- the peace or circuit court for such offense, or for any misdemeanor in the act committed.” But the offense of a breach of the peace by using abusive language is not embraced in the act of assault and battery. They áre not of the-same generic class and one can not be included in the other, although they may arise out of the same occurrence or transaction. This statute (section 5633) was not intended to prevent the State from carving out and prosecuting for separate and distinct offenses growing out of the same occurrence or transaction. The statute was only designed to prevent more than one prosecution for one and the same act constituting the same offense.. The use of insulting words is one offense and assault and battery is an entirely separate and distinct offense, although- the abusive and insulting words may have been used at the time of and in connection with the assault and battery. . The use of the insulting words and the assault and battery were different acts. They were not “embraced in the act committed” within the sense of the statute. . There are no reversible errors in the record, and the judgment is therefore affirmed. ", "ocr": true, "opinion_id": 7808356 } ]

"1917-07-02"

[ "130 Ark. 178" ]

[ { "author_str": "Hart", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": " HART, J., (after stating the facts). (1) On the question of the application of the payment of the $700 check but little need be said. It is the settled rule of this court not to disturb on appeal the finding of fact made by a chancellor unless such finding is against the clear preponderance of the evidence. Tested by this rule, we can not say that the finding of the chancellor should be disturbed. It is true that both Mr. and Mrs. Houser testified that they directed the credit to be upon the mortgage indebtedness in order that the property might be released from the mortgage. On the other hand, a member of the firm to whom the payment was made testified in positive terms that the payment was made for the express purpose of being applied to the account so that Mr. Houser might purchase other goods. He is corroborated by the bookkeeper of the firm. The other circumstances also tended to corroborate Mm. Houser was beMnd in Ms account to the firm in an amount of over $1,300. He wished to purchase more goods with which to continue his business, and it was necessary that a payment should be made on his account to enable him to do so. When the $500 payment was made on the mortgage it was so noted on the check by which the payment was made. No such notation was made on the $700 check. This and other circumstances were proper to be considered by the chancellor in determining whether or not Houser directed the payment to be applied to the note or agreed that it might be applied upon his account which was unsecured. (2) By agreement of the parties the contract between Burchart &amp; Levy and Houser made on the 1st day of November, 1910, in regard to the release of Houser was rescinded by the contract of November 10,1910. The parties to an accord and satisfaction may by a subsequent agreement rescind the same, and restore the debt to its original status. Heavenrich v. State (Minn.), 58 N. W. 982. In that case the court said: ‘ ‘ The findings of fact, including the sixth, as to which error is assigned, are fully sustained by the evidence. On those findings the only question is, can creditor and debtor, having made an accord and satisfaction, rescind the same, by a .subsequent agreement, so as to restore the debt to its original status, and so that it may be sued without reference to the accord and satisfaction, or the agreement rescinding it? We can conceive of no reason why they can not. It is true that by the accord and satr isfaetion, so long as it stands, the debt is extinguished. But when it is rescinded, matters stand as though it had never been made. ’ (3) In Feder v. Ervin, 38 S. W. 446, 36 L. R. A. 335, the Supreme Court of Tennessee held that when by mutual agreement a note which has been the subject of an accord and satisfaction is restored to the holder and notes and account^ received by him in satisfaction are returned to the other party, there is a rescission of the accord and satisfaction, and each party is restored to his original status. It follows that the decree must he affirmed. ", "ocr": true, "opinion_id": 7808955 } ]

"1917-10-08"

[ "130 Ark. 448" ]

[ { "author_str": "Humphreys", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": " HUMPHREYS, J. Appellants, collateral heirs of John R. Walden, deceased, brought suit in the White Chancery Court to recover the E. % of the S. E. % of Sec. 14; S. E. %, S. W. 14 of Sec. 13; and an undivided one-half interest in the W. % of the S. W. Sec. 13, T. 6 N., R. 10 W., in White County, Arkansas, from appellees. The vital issue presented by the pleadings and evidence to be determined by this court on ele novo trial is whether the deed of date June 22, 1893, of John R. Walden to Julia Walden, his wife, is a genuine or forged instrument. Appellants claim title to said land by inheritance from John R. Walden, deceased. Appellees claim title through mesne conveyances from the common source, John R. Walden. If the deed in question from John R. Walden to Julia Walden, of date June 22, 1893, is a forgery, appellants must prevail. If said deed is genuine, appellees must prevail. (1) John R. Walden died in October, 1894. His only child died in infancy a few months thereafter. His wife afterwards married W. W. Duncan, and died in the early part of the year 1909. Prior to her death she and her husband, W. W. Duncan, who were residing upon the lands in question, conveyed same to David A. Blassin-game on the 3d day of August, 1899. On January 13, 1908, David A. Blassingame and wife executed a deed of trust on said real estate to David M. Doyle to secure the sum of $975.38. After Blassingame purchased said real estate from Julia Walden and her husband, W. W. Duncan, he entered into negotiations with appellants to purchase their remainder interest in said lands as heirs of John R. Walden, deceased, and agreed to pay them $400 for a quitclaim deed to said real estate. The deed was executed and, by agreement, a draft for $400 was attached thereto and same was deposited in the Peoples Bank in the city of Searcy in escrow, with instructions that the deed should be delivered to Blassingame when the $400 draft was paid. Blassingame failed to pay the money and the deed was never delivered to him. ÍTpon investigation, appellants discovered that the alleged forged deed from John R. Walden, deceased, to Julia Walden, of date June 22,1893, had been placed of record. They were advised by an attorney that the deed in question precluded them from successfully maintaining a suit \"for the lands. Appellants then dropped the matter until the month of March, 1916, when they obtained information from Blassingame to the effect that the deed from John R. Walden for said real estate to his wife, Julia Walden was a forgery. Within a reasonable time, thereafter, appellants brought this suit against appellees to cancel the alleged forged deed and the mortgage executed by the Blassingames to David M. Doyle of date January 13, 1908, and to quiet the title to said real estate in said appellants as against appellees. Prior to the institution of the suit, David M. Doyle had died, and appellee, H. D. Russell, had been appointed executor in succession of the estate of D. M. Doyle, deceased, when this suit was commenced. The executor had brought suit to foreclose the mortgage on said real estate against the Blassin-games, and when Blassingame determined he could not liquidate or extend the mortgage, he divulged the alleged forgery of the deed in question to J. M. Walden, one of the appellants herein. He exacted a one-half interest in the real estate from Walden on account of improvements he had made upon the property for divulging the information, and at first Walden agreed to give him a one-half interest therein, but after Blassingame made the disclosure that he was a party to the fraud and after consultation with an attorney, he declined to enter into such an arrangement and brought suit against both Blassingame and the Doyle estate to cancel the deed and mortgage aforesaid. Blassingame testified positively that D. M. Doyle had agreed to advance him $400.00 to purchase the interest of appellants in said lands, and when he asked Doyle for it, Doyle told him he had a better plan and turned the deed in question oyer to him and suggested that he place same of record, which he did. The deed, including the acknowledgment and signature of the magistrate, is shown to be in the handwriting of Doyle. The justice of the peace who was supposed to have acknowledged the alleged forged instrument died prior to the institution of this suit. David M. Doyle told B. R. Picard that he had fixed up the deed, and Blassin-game showed him where they had torn the name “McClain” out of the J. P. docket, in order to imitate the name, and stated that was the way they kept from paying the $400.00 to appellant. Other witnesses testified to like statements and admissions by both Doyle and Blassingame. It is true that the cross-examination of some of the witnesses developed inaccuracies and conflicts, but after a careful reading of all the testimony, we believe the finding of the chancellor is contrary to a clear preponderance of the evidence. It is insisted that Blas-singame is an active plaintiff, and, therefore, precluded from giving testimony as to any transactions with or statements of the intestate, David M. Doyle. Blassin-game was made a defendant and filed answer denying all the material allegations in the complaint. He does not appear as a voluntary witness. It is affirmatively shown that before this suit was brought, and since, appellants positively declined to give or contract him any interest in the lands. He has no interest in the result of the suit. He is not pursuing the executor and is a co-defendant, hence, the provision of Sec. 3093 of Kirby’s Digest has no application to him and does not fender his testimony incompetent. But it is contended that the evidence necessary to impeach a certificate of acknowledgment must be clear, cogent and convincing beyond reasonable controversy. The issue here is whether or not the officer ever certified the acknowledgment. It is not an attempt to impeach an acknowledgment duly certified. The question is — was the deed, acknowledgment and certificate forged? In the recent case of Nevada County Bank v. Wm. Gee and N. T. Gee, 130 Ark. 312, this court in construing the case of Polk v. Brown, 117 Ark. 321, cited by appellant, said that “where there is a claim that the grantor did not make any acknowledgment whatever before the officer, the weight of the evidence should not he affected by any particular rule peculiar to the subject, hut that the court should be left to determine from all the circumstances disclosed whether the certificate of acknowledgment is true or false.” We do not think the clear, cogent rule of evidence contended for is applicable to the issues involved in this case, but the rule laid down in Polk v. Brown, and Nevada County Bank v. Gee, supra, obtains. It is insisted that one of the appellants, Walden, and Blassingame entered into a conspiracy to defeat the Doyle estate in the collection of its indebtedness secured by the mortgage in question; and not being'in court with clean hands, the bill should be dismissed. The record is not sufficient to warrant a finding that such a conspiracy exists. (3) Our attention is called to the fact that Blassin-game was holding under a deed from Julia Duncan and her husband, W- W. Duncan, and that he held open and adverse possession thereof for more than seven years. The evidence clearly showed that Blassingame claimed a life estate only under the Duncan deed from date thereof, until June 22, 1893, a less period than seven years. During that period, he recognized the interests of appellants by contracting to buy the fee from them. On and after June 22, 1893, Blassingame relied upon the forged instrument as the source and foundation of his title. Appellants were induced not to bring suit for the recovery of their land on account of the forged deed being placed of record. Neither Blassingame nor Doyle were innocent purchasers, both having participated in the forgery of the deed in question, and for this reason the statute of limitations would not begin to run in their favor against appellants until the discovery of the fraud. This suit was instituted as soon as the fraud was discovered. The cause is therefore reversed and remanded with instructions to enter a decree canceling the deed from J. R. Walden, deceased, to Julia Walden, of date June 22, 1893; also the mortgage from David A. Blassingame and wife to David M. Doyle of date January 13, 1908; and to quiet and confirm the title to said real estate in appellants as against appellees. ", "ocr": true, "opinion_id": 7809007 } ]

"1918-04-08"

[ "133 Ark. 422" ]

[ { "author_str": "Wood", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": " WOOD, J., (after stating the facts). (1) Even though the contract .sued on were void the allegations of the complaint are sufficient to entitle appellant to recover on a gumvtum meruit. The chancery Court had general jurisdiction over the .subject matter in enforcing the alleged lien of attorney Pace on the property alleged to have been recovered by him for his client, Mrs. Bichardson. Greenlee v. Rowland, 85 Ark. 101. Appellees contend that the probate court had no authority to appoint a guardian under section 3824 of Kirby’s Digest which provides “that every guardian or curator .shall continue in office, unless discharged according to law, until the ward shall arrive at full age or if ia female until her marriage, if that event shall first happen; and when .any guardian or 'curator shall be entitled to his discharge according to law, he shall make a just and true exhibit of the account between himself and ward for the purpose of a final settlement of his guardianship accounts, et cetera.” This act was .approved April 22, 1873. This particular section of the .statute relates, to the final settlement of guardians ¡and curators who are discharged by the marriage of their infant female wards and does not expressly prohibit the appointment of guardians and curators for married infants. But if the existing guardianship or curatorship of such infants terminates ipso facto with their marriage it would .seem 'by necessary implication at least that no guardian or curator could be appointed under the statute for a married infant female. The above statute is merely declaratory of the common law. At common law the guardianship of a female minor ceased at her marriage for the reason that a continuation of guardianship would be incompatible with the marital rights of the husband. The rule that the marriage of the female ward terminates the guardianship “evidently arose,” ©ays Ruling Case Law, “from the fact that the marital obligations of either a husband or wife ¡are inconsistent with, and in their nature superior to, the guardian’s right to control of the person; and that at the ■common law the wife 'by marriage conferred on the husband the entire control, and nearly the entire beneficial interest, in her property.” 12 R. C. L. p. 1117, sec. 19. See also Mendes v. Mendes, 1st Ves. Sr. pp. 89-91; Porch v. Fries, 3rd C. E. Greene, N. J. Eq. pp. 204-207. As the husband at the common law took the control over the person and the property of his wife the necessity for the continuation of the guardianship after marriage of the female minor ceased. Hence the rule. But the Act of April 28, 1873, sec. 5207, Kirby’s Digest, ,and article 9, sec. 7, of the Constitution of 1874, give to a married woman the entire management and control over her real and personal property and the right to dispose of, and to own 'and enjoy the income from such property the same as if she were a feme sole. To effectuate the purpose of these provisions for the protection of the rights of married women in their separate property it becomes necessary in the case of ,a married female minor that a curator of her estate be 'appointed. Our married woman’s act of 1873 is modeled after a statute passed in 1848 in New York which provides “that the real and personal property of any female who may hereafter marry, and which she 'shall own at the time of her marriage, and the rents, issues, and profits thereof, shall not be subject to the disposal of her husband, nor be liable for his debts, ■and ¡shall continue her sole and separate property, as if she were a single female.” In the Matter of Herbeck, 16 App. Pr. Rep. (N. S.) pp. 214-217, the Surrogate, construing this statute, said: “If the common law on this ¡subject still prevails, not-with standing the act of 1848, then does it not follow as a necessary corollary, that the husband may recover and take to his own use her legacy or distributive share, and other choses in action, arid thus defeat the very design of that act ? Thus all the safeguards the law and the courts have erected so carefully to protect the estate of infants, would be at once beaten down. ’ ’ (2-3) A married female who is a minor and who has not had her disabilities of non-age removed can not make any valid contract concerning her property nor manage nor control the same. Every reason that existed at the common law and under our statute of April 22, 1873, for the termination of guardianship upon the marriage of a female minor has been obliterated by the Constitution ■and the .statute of this State for the benefit and protection of married women concerning their separate property. These later provisions are in conflict with, ¡and therefore, by necessary implication, repealed the act of April 22, 1873, supra, in so far as that act terminates, upon marriage, the guardianship or icuratorship of minor females. (4) The probate court under our Constitution has exclusive original jurisdiction in matters relative to guardians. Article 7, sec. 34, of the Constitution of 1874. The term “guardians” in the Constitution is used in its broad sense and includes curators. This was the sense in which the term ‘ ‘ guardian ’ ’ was used in the application for and in the order of the court appointing J. B. Vinson guardian of Willie Alexander Bichardson. (5) Mrs. Bichardson at the time of her marriage was under fourteen, years of age, therefore it follows that the probate court had jurisdiction, notwithstanding her marriage, to 'appoint for her a guardian or curator who under the statute had the care and management of her estate subject to the superintending control of the court. Sec. 3777, Kirby’s Digest; Waldrip v. Tulley, 48 Ark. 297. (6) The contract entered into between Vinson and Pace was. one which the court in advance authorized and afterwards, confirmed and approved. The order of the court appointing Vinson for the purpose of entering into this contract and confirming and approving the same constituted the contract as one made under the orders and directions of the probate court for the preservation of the estate of Mns. Richardson. The court had such jurisdiction -and the contract was in all respects valid. See Watson v. Henderson, 98 Ark. 63. (7) Appellees contend that Pace breached the contract “by failing to carry out the duties and burdens imposed upon him by its terms. ’ ’ They alleged in their -answer that “by the terms of the contract plaintiff was to have the sole care and charge of the interest and claims of the defendant, Willie A. Richardson, in and to the estate of said W. J. Erwin and to recover for her any portion of said estate that she was entitled to despite the terms of any will which might be left, but that plaintiff, instead of doing this, intentionally and carelessly neglected and refused so to do and failed to look after and care for the interests of the -said Willie A. Richardson in said estate, and it thereby became necessary for her to, and she did, employ other -attorneys to.represent her in order that her rights might be looked after and protected and proper actions and suits brought and prosecuted, and to this end she was forced to and with the knowledge of plaintiff did retain and hire for the protection of her interests and the assertion of her rights, and to do what plaintiff’s alleged contract isays he was to do, other attorneys, ’ ’ et -cetera. To sustain these -allegations appellees rely entirely upon the testimony' of Y. Gr. Richardson who assumed to act as the representative and spokesman of his wife. He testified, “my wife employed the additional -attorneys other than Mr. Seawel because I realized that Mr. Pace was incompetent, or at least I couldn’t get him to give the time necessary for a case the magnitude this one was. He didn’t give it the attention, for when I would -call him up or write him he would state he would not be up here at a certain time. I put constant pressure upon him from the time the case started until it was over to act -and act quickly when the occasion presented itself. It develops in Ms 'deposition that he thought we did not have a strong oase, and I think there could not have been a better case in the country of undue influence and incapacity. I paid the other attorneys the following amounts: Sam Casey $5,000; Dene Coleman $1,000; Sam Moore $1,000; Earl Casey $500; Henry Bickers $500 and W. K. Ruddell $350. These (attorneys were employed because Mr. Pace was not giving the case the attention he should. I do not think that Mr. Pace was in Batesville more than ten days during the entire time he represented my wife. I do not think Mr. Seawel was. here over (six days or seven days in all. * * * All the attorneys as to the method of procedure acted on my suggestion. As to preparing the law of the case ¡and taking care of the law in it, Mr. Seawel and Mr. Sam Casey took care of that. I want to add to that statement that Mr. Pace didn’t proceed'in the probate court as I wished him to. Mr. Seawel appeared in the U. S. Court and prepared the (answer in the U. S. Court and looked after the law end of the case, together with Mr. Casey. All the papers that were filed in the case I f.bjuk were prepared in skeleton form in Little Rock and ■sent to Mr. Casey here who perfected and filed them here. I know it was generally understood that Mr. Seawel and Mr. Casey were looking after the law end of the case. ’ ’ In regard to the compromise Richardson testified in substance that Pace sent for him to come to Little Rock to talk compromise. He didn’t want to (compromise; had not instructed Pace to work up the compromise, and he did it of his own accord. He thought that if the suit had gone ahead that his wife would have gotten iall the property, as Mrs. Erwin was a cousin of Major Erwin and their marriage was therefore illegal. Further as to the compromise he stated that Páce after seeing Moore, Smith &amp; Moore, attorneys for Mrs. Erwin, reported that they offered to give one-half of the ©state provided that witness’ wife would pay one-half of the fees of Mrs. Erwin’s attorneys. After some discussion witness said he thought his wife would be willing to compromise if she could get half of the estate and Mrs. Erwin, pay her ovni attorney’© fees. Pace went to ©ee Moore, Smith &amp; Moore and upon returning stated that Mrs. Erwin offered to give witness’ wife half of the estate and each one pay her own attorney’© fee©. Witness told Pace “in view of ¡all the facts in the case and feeling that he wasn’t capable of handling the case, 'and feeling that I couldn’t afford to discharge him at that time, my wife submitted, or I for her, and she was to get half of the estate and pay her own ¡attorney’© fees and Mrs. Erwin pay her,own attorney's fees.” Witness goes into detail showing the reason why, in witness’ opinion, Pace after his employment had not taken the steps which witness thought he should have taken and were necessary to be taken in order to properly protect Mrs. Richardson’© estate ¡and to recover for her that to which in witness’ opinion ishe was entitled. In the Course of his testimony as showing the opinion of the witness as to the services rendered by Pace witness ©ays: “His (Pace’s) whole attitude from the start was to grab what he could ¡and get out with the least trouble.” The testimony is too long to quote further, but the above presents its salient features. Pace testified that after he was employed he had frequent conferences with Richardson who acted as the agent of his wife and who “was very active in the prosecution of the matter from the beginning to the end and was very efficient.” In this connection Pace likewise generously conceded that the attorneys who had been employed by Richardson rendered him valuable assistance. He says, “I want to add further that out of my fee I employed Mr. Seawel, and that not only was I present but he was presrent ¡at every material step in the trial, and that .after he was employed nothing was done without full consultation between himself and myself in connection with it, and that while we had valuable assistance from the attorneys who represented Mr. Richardson in Ralesvilie, their work was only cumulative of what we did. I want to ©ay that I appreciated the value of their support and their assistance iand that Mr. Richardson was a very active and satisfactory client during the litigation. ’ ’ Pace further testified denying that there was any reason for the employment of other counsel on account of any neglect on his part to perform his contract. He denied that he had been reproached by Mr. Richardson for any neglect of duty. On the contrary he says, ‘ ‘ that Richardson never during the entire litigation or at any time afterwards until he filed his answer made any complaint to me that I had neglected his business in any way or had neglected to. do my whole duty in connection with this case.” Pace’s testimony shows that soon after he was employed, Richardson who was then living in Little Rock, expressed a desire to move back to Batesville. Pace encouraged the idea in order that Richardson might be on the ground to discover what testimony he might be able to find that would tend to show that Erwin did not have mental capacity to make the will or that undue influence was exercised over him by Mrs. Erwin and others in procuring the will in her favor to be executed. Richardson desired certain steps to be taken, such as appointing a guardian for Major Erwin 'and other steps looking to the conservation of the estate which witness did not deem advisable unless absolutely essential to avoid losing a substantial part of the estate. But there was no intimation by Richardson that he was dissatisfied with Pace’s conduct in this particular. Pace detailed the steps that were taken by him and Seawel after the death of Major Erwin in the performance of his contract. He had the will under which Mrs. Erwin claimed produced in the probate court. He filed exceptions to the probate of the will. While these issues as to the probate of the will were pending Mrs. Erwin filed the deeds and instrument conveying to her virtually all Major Erwin’s property. Mrs. Erwin was then living in Tennessee. Pace 'and Seawel filed a bill in the chancery court to set aside these instruments. That case was transferred to the Federal court. The defendant in the Federal court filed :an answer and counter-claim, asking that her title to the property be quieted and that she be allowed to retain possession of same until the end of the litigation. Before the case was transferred to the Federal -court, however, Pace and Seawel had procured the ¡appointment of an administrator of the estate of Major Erwin. They had also made application to the chancery court and had procured an order appointing the administrator .receiver of the estate. After the case was pending in the Federal ■court they made application before that court for the administrator to be appointed receiver by that court to take charge of the property. They had a citation issued from the probate court directed -against -certain parties to discover whether there were other assets- -of the estate that had not been delivered up by Mrs-. Erwin to the administrator. The contest over the probate of the will was heard and the probate court refused to probate the will and Mrs. Erwin appealed. While these proceedings were pending in the several courts Pace approached Mr. Smith of the firm of Moore, Smith &amp; Mo-ore, attorneys for Mrs. Erwin, in order to effect a compromise. He states the matter was choroughly discussed with Richardson and the reasonableness of the contention of the parties on the other side was dwelt upon. They had discovered in their investigation that under the terms of the will made in 1907 Mrs. Richardson, the beneficiary of that will, would not get possession of the property directly. It was bequeathed to a trustee to hold in trust and out of the rents and profits the beneficiary was to be educated and at the age of twenty-five years he was to turn over to her one-fourth of the personal property and each year thereafter one-fourth until she had received all the property of the estate. The terms of this will were unsatisfactory to Richardson and his wife and there was also some evidence to •show that even at that time Major Erwin had no mental capacity to make a will. So that, even if they had succeeded in setting aside the will under which Mrs. Erwin claimed, it was not certain that the will of 1907 would not have also gone down. Furthermore they had learned that prior to the will of 1907 Major Erwin had made another will in which his grand-daughter,.while still an infant and living with her mother in Memphis, was practically disinherited. They had found no evidence to show that Major Erwin at the time he made this the first will (in 1902) disinheriting his grand-daughter was of unsound mind. They had discovered that there were witnesses, present at the time the will in favor of Mrs. Erwin was made, who would have testified that Major Erwin was of ¡sound mind and fully understood what he was doing, realizing that he was giving all the property to his wife and disinheriting his gnand-daughter. Other witnesses, who were not present at the time the will was made but who were intimately associated with him, would have 'stated that while he was we'ak in body there was never ¡a time when he did not have ¡sufficient mind to know what he was doing ánd to know the relationship and the deserts of those whose names were mentioned in the will. Pace concludes his testimony concerning the reasons inducing him to propose, ¡and to agree upon, the compromise, ¡as follows: “After reviewing all of the testimony that would bear upon the mental condition of Major Erwin at the time he made the last will we were not ¡satisfied that we had such .a case, even though it might be submitted to ia jury, that we could win it there or that it would be affirmed in the Supreme Court on appeal. In addition to this fact there was the further fact that the validity of the will was pending in the State court, and the question ■as to the validity of the deed, and the instrument conveying the personal property, made some four or five months after the time that the will was made, was pending in the Federal court, and to recover anything for our client it was necessary for us to set aside the deed and the conveyance of the personal property in the Federal court. “Taking the whole situation into consideration, we felt, after consulting with Mr. Richardson and Mr. Yin-son, the guardian, the other parties interested, that it was well to compromise the case. ’ ’ His testimony shows that after the .agreement to compromise was reached, one of the ¡steps taken in order to effectuate it was a suit instituted in the chancery court by Mrs. Richardson against Yinson, her guardian, in which all the facts in connection with the case were set up in the complaint, and the chancery court was called upon to determine whether or not such settlement was for the best interests of the minor, ¡and, if ¡so, to instruct the guardian to m!ake settlement. There was also a petition filed in the probate court by the guardian setting forth all the facts in connection with the matter and ¡asking of the probate' court authority to- make the settlement. It was determined by both chancery and probate courts that the settlement was for the best interest of the minor. The final consummation of the ¡settlement was had through the Federal court and a final division of the property was obtained ¡about the first of June, 1915. The division as finally effected by agreement was ¡amicable. Pace and other witnesses testified to facts tending to prove that the value of the real and personal estate received by Mrs. Richardson in the division was worth at least $135,000. Yinison, the guardian, testified: “Taking into consideration all the facts in the case, I thought the compromise was for the b.est interests of the minor.” He also testified that Richardson never at any time had complained that Pace had neglected the litigation' in ¡any w!ay. The testimony of T. M. Seawel corroborates, in all material particulars the testimony of Pace. His testimony shows that every legal proceeding was instituted which he and Pace considered necessary for the protection of the interest of Mrs. Richardson and that they spent :a great deal of their time in connection with the litigation and did not neglect the same at any time. He says also that Richardson did not criticise Pace as to the manner of conducting the litigation and that he never heard him complain of any neglect until this suit and his answer were filed. In regard to the compromise he states, “it was my view that the will of 1902 was valid .and would govern the disposition of his property at his death in the event the wills of 1907 and 1913 and the deeds executed about that time were set aside. The will of 1902 disinherited Mrs. Richardson as I understood it.” After reviewing the difficulties that confronted them in the litigation and the obstacles that they would have had to overcome if they succeeded at all he states: “I will state now that I lam firmly of the opinion that the settlement that was brought about in that case was by far the best settlement that I ever participated in in any case, and, as stated, it was much better than I believed could be had in the case.” We conclude, therefore, that the iappellees have wholly failed to sustain the allegations of their answer, “that Pace had breached his contract by neglect and refusing to look after and care for the interests of Willie A. Richardson in the estate of her grandfather. ’ ’ The testimony of Richardson to this effect is clearly against the preponderance of the evidence. While he w!as greatly interested in the litigation we lare not disposed to attribute his testimony to any selfish purposes of his own or to any desire on his part to do injustice to the one who had rendered him and his wife such valuable services. His own testimony shows that he was &gt;a. young iand inexperienced attorney and without the knowledge necesisiary to enable him to testify concerning the extent and value of the services that were rendered his wife. For he,says, “I had not been practicing law but a short time, and I did not know the legal phases of the case.” His testimony should be viewed in the light of this statement. The testimony clearly shows thlat the proceeding instituted on behalf of Mrs. Richardson to recover an interest .in her grandfather’s estate had brought her into deep ■and dangerous waters of litigation. To make for her any landing, much less the highly propitious one she attained, the faithful services of an experienced, able and skillful pilot were indispensable. These she had, according to the proof, and for these she must pay according to the contract. The decree ¡dismissing the complaint of ¡appellant for $686.55 without prejudice was correct and is affirmed. This claim was for money borrowed by Richardson from PaJce and did not come within the contract sued upon and was not germane to the issues raised and the relief prayed for. Pace has no lien for this. The decree dismissing the complaint of the ¡appellant ■as to the amount sued for on the contract is reversed and the cause will be remanded with directions to enter a decree in the sum of $12,500 with 6 per cent, interest from the date of ¡settlement between Mrs. Richardson and Mrs. Erwin (June 12,1915), and declaring the same ¡a lien upon the property received by Mrs. Richardson as the result of the compromise of the litigation instituted by the appellant in her behalf, and for other proceedings according to law and not inconsistent with this opinion. ", "ocr": true, "opinion_id": 7809335 } ]

"1918-09-30"

[ "136 Ark. 72" ]

[ { "author_str": "Hart", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": " Hart, J. This is an appeal from a decree of the chancery court in the case of Victor Daughtry, as next friend of Linn C. Eagle, against G. M. Peterson, W. H. Young, J. V. Ferguson and W. C. Ferguson. The object of the suit was to annul a deed executed by Linn C. Eagle to G. M. Peterson in March, 1912, and subsequent deeds to the same property from Peterson, to Young and deeds from Young to the Fergusons to a part of said property. Linn C. Eagle owned a large quantity of lands in Lonoke County, Arkansas, which he inherited from his father. On the first day of March, 1912, Linn C. Eagle conveyed 240 acres of these lands to G. M. Peterson. In June, 1912, Peterson conveyed the land to W. H. Young for a consideration of $925. Young subsequently conveyed a part of the lands to J. V. Ferguson and a part of them to W. C. Ferguson. The lands were wild and unimproved at the time of the conveyance by Eagle to Peterson. Since that time a county road has been laid out across them and they are within the boundaries of a drainage district which has greatly increased their value. Linn C. Eagle was about 32 years old at the time he executed the deed to Peterson, and had been since early manhood, a confirmed drunkard and addicted to the use of morphine. In July, 1908, Linn C. Eagle was adjudged insane by the probate court of Lonoke County, and a guardian of his estate was appointed. There being no room in the State Hospital for Nervous Diseases for him, the probate court ordered Eagle to be confined in a private hospital in the city of Little Bock. Eagle remained in this hospital for something over two months when his brother procured his release from custody from the owner of the hospital. After his discharge from this private hospital, Eagle took charge of his own business affairs and has continued to have charge of them ever since. His guardian filed his final account current and was discharged in the year 1909. Evidence was adduced by Eagle tending to show that he was insane from the excessive use of intoxicating liquors and morphine at the time he executed the deed to Peterson. On the other hand, evidence was adduced tending to show that he was mentally competent to transact business at that time. For the reasons given in the course of the opinion it will not be necessary to abstract this testimony in detail. Peterson was in the employment of Eagle at the time the deed was executed to him. Soon after the execution of the deed by Eagle to Peterson, Eagle removed to the State of Oklahoma and remained there until some time in the fall of 1912, when he returned to his old home in Lonoke County. On his return, he found that Peterson had left there, and his whereabouts have since been unknown. According to the testimony of Young, Peterson first asked him $1,500 for the land but he declined to give that much. They finally agreed on $925, which was about one-half of the real value of the land. During their negotiations Peterson wrote to the State of Oklahoma, where Eagle then resided, and got his affidavit to cure a defect in the title of the land. After Eagle returned, either in the fall of 1912, or in the spring of 1913, he went into the bank of which Young was cashier and asked to see the affidavit which he had made in regard to the title. Young .showed the affidavit to Eagle and also showed him the deed which he had received to the land from Peterson. Eagle told Young that the sale of the land was all right, but that Peterson owed him some money, and that he was hunting for him to make him pay it. Young also testified that he had never heard that Eagle claimed that fraud had been practiced on him: with,-, regard to the execution of the deed until after the suitwas brought. According to the testimony of Eagle, his mind was so deranged by the excessive use of whiskey and morphine at the time he executed the deed to Peterson in March, 1912, that he did not know what he was doing. He thought he was executing to Peterson an option deed, or was giving Peterson the power to sell the land for him. He never received any compensation from Peterson, and, according to his own testimony and that of other witnesses, it was well known that Peterson did not have any money at that time. It was shown by witnesses for the defendants that Peterson had some monéy at the time the transaction took place. Eagle testified that he signed the affidavit to cure a defect in the title, thinking it was necessary in order to enable Peterson to sell the land for him. He quit the use of morphine in August, 1912, and thereafter to a great extent, also quit the excessive use of whiskey. He returned to Arkansas in the fall of 1912 to see about his affairs. He testified that he had never done or said, anything to ratify the sale of the land to Young, and that Young knew that Peterson had never had money enough to buy the land from him, and that Young told him that he knew Peterson had never in reality owned the land. The record shows that- in 1908 Linn C. Eagle resided in Lonoke County, and that he was adjudged insane by the probate court and ordered to be confined in a private hospital. He was released from the hospital in about two months, but there was never any order of the court that he had been restored to his right mind. Under this state of the record, is it earnestly insisted by counsel for the plaintiff that an adjudication of insanity substitutes for the general presumption of sanity a presumption of insanity, and that contracts made by the insane person before he has been adjudged to be restored to reason are void and not merely voidable. Hence they contend that, under the facts of the. present case, it was-incompetent to show that Eagle was capable of contracting at the time he executed the deed to Peterson. The authorities on this point are- in conflict. In many of the States, by statute, the contracts of a person, who has been judicially declared insane and placed under guardianship, made before an order that such person has been restored to his right mind, are absolutely void. There is no statute of this kind in this State. It is is a matter of common observation and experience that many persons who are insane at a particular period are subsequently restored to their right mind. Such cases are not unusual, and the return of reason may be anticipated when the cause for the insanity has been removed. We think the true rule to be that an adjudication of lunacy is not conclusive, but prima facie evidence only, and that a person who deals with the supposed insane person may show that at the time the contract was made he had sufficient mental capacity to make it. Clark v. Trail, 1 Metc. (Ky.) 35; Parker v. Davis, 53 N. C. 460; Armstrong v. Short, 8 N. C. 11; Field v. Lucas, (Ga.) 68 Am. Dec. 465, and 22 Cyc. 1134, and see Small v. Champeny, (Wis.) 78 N. W. 407, also Miller v. Rutledge, (Va.) 1 S. E. 202; Elston v. Jasper, 45 Tex. 409, and Willworth v. Leonard, (Mass.) 31 N. E. 299. In the case of Clark v. Trail, supra, the court said: “An inquest of lunacy, or of unsoundness of mind, although conclusive evidence of the condition of the party at the date of the inquest, is only prima facie evidence of his condition at a subsequent period. Having been found a lunatic, the law presumes the state of his mind to continue unchanged until the contrary be made manifest. It is this presumption of the law that makes the inquest even prima facie evidence of his insanity at a subsequent time. Being a mere presumption, it may be repelled by oral testimony. There is no rule of evidence which requires another inquest to be found, in order that this presumption may be thereby rebutted.” This holding is in accordance with the principles of the common law. Mr. Justice Blackstone in his Commentaries states the doctrine as follows: “Idiots and persons of non-sane memory, infants, and persons under duress, are not totally disabled either to convey or purchase but sub modo only, for their conveyances and purchases are voidable, but not actually void.” Cooley’s Blackstone, Vol. 1, p. 666. Chancellor Kent says, “By the common law, a deed made by a person non compos is voidable only, and not void.” Kent’s Commentaries, 14 Ed. Yol. 2, *p. 451. Having reached the conclusion that the inquisition is only prima facie evidence and that evidence contradictory is admissible, it remains for us to decide whether or not Eagle was mentally incompetent to contract at the time he executed the deed to Peterson in March, 1912, or, if so mentally incompetent at that time, did he, after his reason was restored, ratify and confirm the contract? Under the doctrine that conveyances of insane persons are voidable and not void, it is obvious that such instru-. ments are subject to ratification as well as disaffirmance, and that the insane person may, when restored to sanity, ratify or confirm the conveyance which he made while insane. George v. St. L., I. M. &amp; S. Ry. Co., 34 Ark. 613; 14 R. C. L. 595 and 22 Cyc. 1209. The testimony on the question of the mental capacity of Eagle to execute the deed to Peterson in March, 1912, is very voluminous and is in direct and irreconcilable conflict. We have not set out the testimony on this point and do not deem it necessary to do so; for, if it be assumed that Eagle was mentally incompetent when he executed the deed to Peterson to the property in question, it is quite clear from the record that he ratified his act after he became sane. That Eagle was restored to his right mind in the fall of 1912 is abundantly shown by the record. It is shown by both the testimony of Young and of Eagle himself. Their testimony only conflicts on the question of the ratification of the deed. Eagle testified that he quit using morphine in August, 1912, and also, to a great extent, the use of intoxicating liquors. According to his own testimony he returned to Arkansas that fall, and Young admitted to him that he knew Peterson did not have any money with which to purchase the land and that the title in reality was in Eagle. Young flatly denies this, and on the other hand states that he showed to Eagle the deed of Eagle to Peterson as well as the affidavit of Eagle made to cure a defect in the title, and that Eagle acknowledged the same and ratified his contract with regard thereto. The testimony of Young is corroborated by the circumstances of the case. The conversation between Young and Eagle with reference to the execution of the deed from Eagle to Peterson was had in the fall of 1912, or in the early part of the year 1913. The present action was not instituted by Eagle until the 27th day of February, 1915, and no reasonable excuse is given by him for the delay. The delay in bringing the suit is a circumstance to be considered in determining whether or not Eagle confirmed the execution of the deed made at the time when he at least thought himself to be mentally incompetent to execute the same. Another circumstance is that Eagle first had the suit brought in his own name, and it was afterwards changed to a suit by next friend because there had been no adjudication restoring him to sanity. The court made a general finding for the defendants and dismissed the complaint of the plaintiff for want of equity. This included a finding that Eagle had ratified and confirmed the deed executed by him to Peterson in March, 1912. This finding is sustained by a preponderance of the evidence, and it follows that the decree must be áffirmed. ", "ocr": true, "opinion_id": 7809609 } ]

"1919-03-31"

[ "138 Ark. 111" ]

[ { "author_str": "Smith", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": " SMITH, J. The Bank of Rogers was incorporated in 1912, with a capital stock of $150,000, and in the latter part of that year was sold to W. E. Talley and his associates by W. R. Felker, who owned the bank and operated it as a private banking institution before its incorporation and who owned most of its stock after its incorporation. At the time of this sale Felker was personally .indebted to the bank to the extent of about $85,000 and was also obligated to the bank as endorser on a large amount of paper held by the bank. Prior to the month of July, 1913, Felker was the owner of a large cattle ranch situated in Texas, and J. B. Wilson, the appellant herein, held a mortgage on this ranch and the cattle thereon to secure a loan of $40,000 made by Wilson to Felker, the loan being evidenced by four notes, each for the sum of $10,000, and bearing interest at the rate of 8% per cent, per annum, payable, respectively, in the years 1913, 1914, 1915 and 1916. After Talley and his associates had purchased the bank from Felker, the bank began to press Felker for the payment of Ms indebtedness to it, whereupon Felker soM the ranch and the cattle thereon to the bank for the consideration of about $129,000. The sale was, of course, subject to Wilson’s mortgage, the payment of which was assumed by the bank as a part of the purchase price. The' balance of the purchase price was evidenced by two certificates of deposit in the sum of $5,000 each which were issued to Felker, who immediately negotiated them to appellant Wilson. Shortly after this transaction was closed the bank sold a large number of calves off the ranch for something over $18,000, and out of the proceeds of this sale paid to the appellant Wilson one of the $10,000 notes. This note was marked “paid” by Wilson and surrendered by him to the bank. The bank closed its doors on July 6,1914, and appellant Wilson filed with the Bank Commissioner for allowance the two certificates of deposit of $5,000 each, which Wilson had acquired from Felker. The liability of the bank on these certificates is not questioned; but Wilson and Talley were made defendants in a cross-bill filed by the Bank Commissioner in which judgment was prayed against them for an alleged wrongful conversion of certain funds of the bank. The facts on which this cross-action was based will fully appear from the further statement of the points at issue. A statement of other facts essential to an understanding of the points at issue appear in the findings of fact made by the court below (and which we think the testimony supports), from which we copy as follows: “The court finds that immediately after said purchase the said Bank of Rogers paid to the said Wilson ten thousand dollars of said indebtedness, leaving thirty thousand dollars due the said J. B. Wilson, and that thereafter the said W. E. Talley made an arrangement with the Mississippi Valley Trust Company of St. Louis, Missouri, whereby it took up said indebtedness to said J. B. Wilson and that at the said time the said indebtedness to said Wilson as aforesaid was not due, but in order to perfect the arrangement with the Mississippi Valley Trust Company, whereby the said company was to carry the loan of thirty thousand dollars belonging to the said J. B. Wilson, and in order to induce the said J. B. Wilson to agree to said contract made by the said W. E. Talley with the Mississippi Valley Trust Company and to permit the Mississippi Valley Trust Company to take up and carry said indebtedness, the said J. B. Wilson required and exacted from the said Bank of Rogers a bonus of thirty-one hundred dollars and that the said W. E. Talley without any authority, authorization or without the knowledge or consent of the board of directors of the Bank of Rogers, took said thirty-one hundred dollars out of the assets of the Bank of Rogers and turned the same over to the said J. B. Wilson as a settlement of said bonus and that the said transaction was well known to the said J. B. Wilson, which act of the said W. E. Talley the court finds to be ultra vires and void and that said Bank of Rogers received no consideration for said thirty-one hundred dollars as aforesaid, which was well known to said Wilson and that said J. B. Wilson was a party to said transaction which amounted to a fraud .against the creditors and stockholders of said Bank of Rogers. \"The court further finds that on or about the 3d day of November, 1913, that the cross-defendant J. B. Wilson was the holder of forty thousand dollars in promissory notes executed to him by W. R. Felker, the same being and including the thirty thousand dollars notes as above set forth and that all of said promissory notes were secured by a mortgage on lands, leaseholds and cattle situated in Mitchell, Howard and Sterling Counties, Texas. That said mortgage was dated December 18, 1911, and of record in said counties and that on or about the said date W. R. Felker was the owner of said lands, leaseholds and cattle and that on or about said date he sold said properties to the Bank of Rogers, the said Bank of Rogers assuming and agreeing to pay the said forty thousand dollars due to the said J. B. Wilson and that at the time the said W. E. Talley was president of the Bank of Rogers and that W. R. Felker was vice president of the Bank of Rogers and that said J. E. Felker was cashier of said institution. “The court further finds that on or about said date or soon thereafter, that said W. E. Talley and J. E. Felker, and by and with the consent of the said J. B. Wilson, the holders of said mortgage, sold and disposed of ten thousand dollars worth of the cattle on said real estate in said counties, in the State of Texas, and that said ten thousand dollars received from the proceeds from said sale were turned over to said J. B. Wilson in payment of one promissory note, the same being one of a series of four notes of ten thousand dollars each, amounting to the said forty thousand dollars indebtedness, which said J. B. Wilson held against said properties as above found. “The court further finds that upon the payment of the said ten thousand dollars note that same was canceled and marked ‘paid’ by the said J. B. Wilson and sent to the Bank of Rogers, but that shortly thereafter a fraudulent scheme was entered into by and between the said J. B. Wilson, W. E. Talley and J. E. Felker, whereby the Bank of Rogers could be defrauded out of the sum of ten thousand dollars and that the said W. E. Talley returned said note to J. B. Wilson and that W. E. Talley then entered into a contract with the Mississippi Valley Trust Company, a banking corporation located in the city of St. Louis and State of Missouri, and arranged with the said Mississippi Valley Trust Company, whereby said trust company should take over the entire forty thousand dollars .notes which were formerly secured by mortgages on said Texas property, which at that time belonged to the Bank of Rogers and that the said J. B. Wilson, J. E. Felker and W. E. Talley conspired together to falsely Texas property had been paid and that the indebtedness to the said Mississippi Valley Trust Company that none of said forty thousand dollars indebtedness against said and fraudulently represent and did falsely misrepresent amounted to forty thousand dollars, of which thirty thousand dollars was held by the said J. B. Wilson and that the ten thousand dollar note which had been paid to said Wilson by the Bank of Rogers as aforesaid was not in fact paid, but was owned and held by J. E. Felker and W. E. Talley, said representations being made by the said Wilson, Talley and Felker with full intent of defrauding the Bank of Rogers out of-its ten thousand dollars, which it had paid to the said J. B. Wilson. “The court further finds that acting upon said representations the said Mississippi Valley Trust Company entered into a contract with said Wilson, Talley and Felker whereby it took said forty thousand dollars worth of notes and paid to the. said Wilson the sum of thirty thousand and the said J. E. Felker and W. E. Talley the sum of ten thousand dollars, which they had represented as aforesaid, to be due the said W. E. Talley and J. E. Felker on the said ten thousand dollar note, which had in fact been paid by the Bank of Rogers and which at said time was not due and-payable to any one. And did unlawfully and fraudulently erase said ‘paid’ mark from said note and said Wilson did unlawfully and fraudulently endorse and assign same to the Mississippi Valley Trust Company. “The court finds that the said ten thousand dollars received on said note was fraudulently appropriated to the personal use and benefit of the said W. E. Talley and J. E. Felker and that the said J. B. Wilson assigned, aided and abetted in the misappropriation of said funds belonging to said bank as aforesaid with the intent then and there to cheat and defraud the said bank out of said sum of ten thousand dollars. “The court finds further that thereafter the Mississippi Valley Trust Company foreclosed its mortgage on said Texas property owned by the said Bank of Rogers and on which said forty thousand dollar mortgage existed and that thereby the said Bank of Rogers was forced to and did pay the said ten thousand dollars in notes a second time and that said Bank of Rogers received no benefit whatever from the transaction with the said J. B. Wilson and the said Mississippi Valley Trust Company, wherein it lost said ten thousand dollars, but that the said ten thousand dollars went for the personal use and benefit of said Talley and Felker.” Upon these findings of fact it was by the court directed that the Bank Commissioner have judgment for the use and benefit of the Bank of Bogers for the sum of $13,100 against the cross-defendants, J. B. Wilson and W. E. Talley, and that said judgment be offset to the extent of $10,412.32, the amount of the certificates of deposit which Wilson had purchased from Felker and had filed for allowance by the Bank Commissioner with the interest thereon, and judgment over was rendered against Wilson and Talley for the net sum of $2,687.68, together with interest thereon at the rate of six per cent, from November 4, 1913. We have copied the somewhat lengthy findings of fact because, as is stated in appellant’s brief, the questions involved are principally questions of fact; and it is not only insisted that the testimony does not support the findings made, but it is also insisted that the findings do not support the decree rendered. Appellant’s brief is devoted to a discussion of three questions, which may be consolidated into a single question and stated as follows: Did Felker and Talley conspire together to defraud the bank, and, if so, did Wilson participate in this conspiracy to such an extent as to deny him the right to recover as against the bank any portion of the money lost by the bank as a result of the conspiracy? Before discussing the questions of fact stated we announce the propositions of law applicable to the issues and which are applied by us in arriving at our conclusions. In the case of Parker v. State, 93 Ark. 575, this' court said: “In the case of Chapline v. State, 77 Ark. 444, it is held that a conspiracy may be inferred, although no actual meeting among the parties is proved, if it be shown, by the testimony that two or more persons pursued by their acts the same unlawful object, each doing a part, so that their acts, though apparently independent, were in fact connected; and in the same case it is held that any act done or declaration made by one of the conspirators in furtherance or perpetration of the alleged conspiracy may be shown as evidence against his fellow-conspirators. ’ ’ If such an unlawful agreement exists the parties thereto become liable as joint tort feasors and to the extent of the damage done as a result of the conspiracy, and the liability of a particular conspirator does not depend upon the extent to which he profited by the conspiracy or his activity in its promotion. National Fire Proofing Co. v. Masons Bldg. Assn., 169 Fed. 259; Kimball v. Harman, 34 Md. 407; Wyeman v. Deady, 79 Conn. 414. The agreement under which the Bank of Rogers became indebted to the Mississippi Valley Trust Company was evidenced by a writing dated November 3, 1913, and it clearly appears that the contract was not entered into for the benefit of the bank. We do not set out this contract because of its length, but it begins with a recital that, “The Ozark Land &amp; Lumber Company (a concern owned by Felker), W. R. Felker, J. E. Felker and the Bank of Rogers, Rogers, Arkansas, are indebted to you (the trust company) in the sum of $45,000 and accrued interest as evidenced by their notes for said amount due on- demand and secured by the pledge of a certain fund in your bank as trustee under a second mortgage of the Ozark Land &amp; Lumber Company dated January 2, 1912.” This statement was not correct, as the bank was not indebted to the trust company and only became indebted to it by the execution of the contract containing the recital just set out. Talley testified that no advantage to the bank was contemplated, and when asked why the contract was executed in the name of the bank stated that it was “a daylight hold-up.” Paragraph 3 of this writing recites that “the undersigned, W. E. Talley and J. E. Felker (a son of W. R. Felker) are the owners of the remaining $10,000 note described in paragraph 2 above. (This is the note involved in this litigation).” It is not denied that .this statement was known to be false when it was written, as neither Talley nor Felker owned this note or any interest in it. Neither is it denied that this note had been paid to Wilson and had been marked paid and that, after it had been paid, Wilson mailed it to the 'Bank of Rogers which had paid it. Nor is it denied that after this note had been paid it was. resurrected and the word “paid” erased and the note endorsed by Wilson without recourse. This was done for the admitted purpose of putting a paid and canceled note again in circulation and was done only after Talley and Felker and a representative of the trust company had called on Wilson at his home for the purpose of conferring with him in regard to the transaction. Wilson admits that he consented to do this only after he had been paid the bonus of $3,100 in the form of a draft drawn on the Bank of Rogers, which was paid out of the funds of that institution. Wilson denied, however, that he had knowledge of or was a party to any agreement that was calculated or intended to defraud the bank out of any sum of money, and he denied that he had profited to any extent by the agreement made with the trust company. But, when asked if he had made any inquiry about the effect of the agreement made with the trust company, he answered that he did not care so long as he received the money due him and the bonus. Appellant earnestly insists that no fraud was practiced or intended on the bank itself but that the contract with the trust company was made for and inured to the benefit of the bank. The correctness of this contention appears to be the controlling question in the case, for however credulous and passive Wilson may have been, resulting from his confidence in Talley and Felker, we think the court • below was warranted in finding that Wilson was in possession of facts which charged him with notice of what Talley and Felker were doing. As has been stated, the trust company sent its representative to confer with Wilson before the execution of the agreement which resulted in the reissuance of the $10,000 note. And it is undisputed that the deal would never have been put through but for Wilson’s endorsement of the previously paid note for the purpose of again putting it in oiroulation. This mortgage indebtedness was not paid, and when the bank closed its doors on July 6, 1914, the mortgage was foreclosed and the bank lost its valuable equity in the ranch in addition to the $10,000 note which it had previously paid. It is insisted, however, that if the bank had not assumed the debt due the trust company Felker would have been thrown into bankruptcy and the sale of the ranch to the bank would thereupon have been set aside. There is no testimony, however, that this would have been done, or could have been done, as there is no showing that Felker was insolvent. • It is also argued that if the bank had not raised and used the money borrowed from the trust company it would have been compelled to use other assets belonging to it. But $15,000 of the $45,000 indebtedness which the bank assumed was not its debt. The bank itself owed no part of the debt to the trust company prior to its assumption of it, although its ranch was subject to the mortgage for $30,000 which was included in the $45,000 debt to the trust' company which the bank assumed. The written contract with the trust company recites that the indebtedness there secured was the indebtedness of the Ozark Land &amp; Lumber Company, Felker and the bank, but no contention is made that the bank was liable to the trust company in any sum prior to the execution of the contract which was evidenced by the writing which recited the existence of the obligation. The beneficiaries of the whole transaction were Felker and the Ozark Land &amp; Lumber Company, which desired assistance to complete five miles of a railroad which it had under construction at the time, and the net result of the whole transaction is that Talley was using both the credit of the bank and its assets, represented by a note for $10,000 which had been previously paid, for the benefit of another corporation. To the argument that Wilson derived no profit or advantage from the bonus paid him, and that the bank sustained no loss, in that, paper bearing 8y2 per cent, was exchanged for paper bearing 6 per cent., we quote the following answer from appellee’s brief: “A contract with the Mississippi Valley Trust Company provided for an interest rate of six per cent. Now let us see if the bank lost or gained, as the appellant seems to think. If they had let the notes remain in the hands of the appellant, the first ten thousand dollar note at maturity, December, 1914, would have produced interest at eight and a half per cent, for one year, or eight hundred and fifty dollars. The second ten thousand dollar note for two years, or until December, 1915, at eight and a half per cent, would have produced seventeen hundred dollars. The third ten thousand dollar note at eight and a half per cent, for three years, or until the date of maturity, December, 1916, would have produced twenty-five hundred and fifty dollars interest, or the total interest would have amounted to fifty-one hundred dollars at the maturity of the notes. “Now under the arrangements with the appellant and the Mississippi Valley Trust Company, what was the Bank of Rogers actually out in interest, together with the thirty-one hundred dollar bonus for the same length of time? The figures show as follows: Interest on $10,000 note, 6 per cent., for one year......$ 600 Interest on $10,000 note, 6 per cent., for two years... 1,200 Interest on $10,000 note, 6 per cent., for three years 1,800 Total interest at 6 per cent......................................................$3,600 Bonus paid appellant.............................................................................. 3,100 Making a total cost to the Bank of Rogers of...............$6,700 Total the bank was actually out in interest and bonus.....................................................................................J...-4................. 6,700 Total the bank would have been out if the contract with Wilson and Mississippi Valley Trust Company had not been made................................................ 5,100 Lost to Bank of Rogers by transfer. .$1,600 “It seems to us that, this is sufficient answer to the appellant’s assertion that the Bank of Rogers gained by the payment of the bonus of thirty-one hundred dollars.” It is finally insisted by appellant that the bank had the right to expend its assets to preserve its securities and that whether Talley was authorized or not to make the deal, out of which this litigation arose, the trade was made for and has accrued to the benefit of the bank and that having accepted the benefit of an a.ct ultra vires, the bank can not now complain. Counsel for appellee find no fault with the law as thus stated; nor do we; but we agree with them that the facts as found by the chancellor, as well as by a majority of this court, do not warrant an application of the principle announced. The thirty-one hundred dollars was not only used without the knowledge or consent of the directors of the bank, but it was not used to preserve the assets of the bank or to protect its securities. The indebtedness was not even placed in more friendly hands, as urged by counsel for appellant, than it was with Mr. Wilson, for it appears that before the paper all matured the trust company immediately proceeded to foreclose its mortgage and to sell all the interest that the bank had in the Texas property. Upon a consideration of the testimony as a whole we are of the opinion that the findings of the court set out above are not clearly against the preponderance of the evidence, except that iilstead of sustaining a loss of $3,100 on account of the bonus the net loss on that account was only $1,600 as shown by appellee’s own figures set out above, and Wilson should not be charged on this account with a greater loss than the bank sustained. The decree of the court will, therefore, be modified by reducing the judgment $1,500, and as thus modified, will be affirmed. ", "ocr": true, "opinion_id": 7809835 }, { "author_str": "Smith", "per_curiam": false, "type": "070rehearing", "page_count": null, "download_url": null, "author_id": null, "opinion_text": " SMITH, J., (on rehearing). In the lengthy petition for rehearing which is filed in this case attention is called to several inaccuracies in the finding of fact made by the court below, which was adopted by us. There was certain confusion of facts in the briefs which we sought to avoid in the opinion, and for this purpose we copied into the opinion the somewhat lengthy finding made by the court below. Some of these inaccuracies to which attention is now called are unimporant, while attention to others was not called in the original briefs. But the motion for rehearing does challenge our approval of the chancellor’s finding that Wilson so far participated in the conspiracy as to become liable for its consequences upon the ground that if there was in fact a conspiracy to divert the assets of the bank to uses other than those of the bank, Wilson was neither aware of nor party to that purpose and that no competent testimony sustains the finding of the chancellor which we have approved. This insistence is made with such earnestness and apparent assurance that we are constrained to notice some of the statements contained in the petition for rehearing. Appellant’s argument assumes as true the very poiiit at issue, and that is that Wilson was no party to the scheme to divert the bank’s assets to uses other than its own by putting -again in circulation notes for ten thousand dollars which the bank had already paid and which it has since paid the second time. The chancellor made no finding, nor do we, that Wilson was a party to the various machinations of Talley and Felker which wrecked the bank except as to the ten thousand dollar item. Nor was it necessary to find that Wilson appreciated the extent to which Talley and Felker were misusing the funds of the bank. The question here involved is, Did Wilson know that they were about to misuse this ten thousand dollar note, and did he participate in that misuse? It seems clear to a majority of the court that- every one connected with this transaction realized that it was out of the ordinary and that it was one which could by no possibility result in profit to the bank. Felker testified that during the negotiations leading up to the transaction he spent several days at Wilson’s home, during which time the transaction was frequently discussed; and Lackey-, representing the trust company, also made a trip to Wilson’s home for the purpose of discussing the transaction with him. We think the inference fairly follows that Wilson knew what was about to be done. It is said in the petition for rehearing that Wilson did not send the note to the bank but that he sent it to Felker, the maker, and that he had not marked it paid before doing so. But on page 83 of appellant’s original brief in the statement of facts there contained the following admission appears: “Later on the bank, acting through some of its representatives, sold approximately eleven hundred calves off the Texas cattle ranch for eighteen thousand or twenty thousand dollars, and of the proceeds of that sale the sum of ten thousand dollars and accrued interest on two five thousand dollar notes was paid to the appellant, Mr. Wilson, and two notes so paid were marked ‘Paid’ on their face and surrendered by Mr. Wilson to the Bank of Bogers.” The testimony sustains this admission. It is also now insisted that Wilson did not endorse the note “without recourse” after having marked it paid. But it is not denied that this endorsement was made and by virtue thereof it was again put in circulation as the property of Talley and Felker when it had been previously paid by the bank, and by the transaction which again put it in circulation the bank assumed and became responsible for its payment again, and because of this transaction did later pay it the second time. As the payee in the note, Wilson alone had the right to endorse it, and no charge of forgery is contained anywhere in the briefs. Indeed, it is argued that it was a perfectly innocent thing for Wilson to have endorsed the note, if he did, as the bank would have been compelled to use other assets if it had not used the particular note. But there is the crux of the case. It is no excuse for Wilson to say that Talley and Felker were going to wreck the bank anyway. The question is, if Wilson did endorse this note for the purpose of putting it in circulation after it had been paid by the bank and after he had marked it paid, did he do so with knowledge of the fact that by this device Talley and Felker were about to divert to their own use the funds of the bank? If Wilson did this he became a joint tort-feasor, and, as such, liable to the extent of the damage done as a result of the wrongful act in which he participated. A number of questions of fact are discussed in the petition for rehearing, a review of which would greatly protract the opinion and practically require it to be rewritten ; but we dispose of them all by saying that in our opinion the finding of the chancellor that Talley and Felker had conspired to divert the assets of the bank and that the conspiracy was made effective by Wilson’s participation therein, is not clearly against the preponderance of the evidence, and, if this be true, it is unimportant to discuss the evidence in further detail. ", "ocr": true, "opinion_id": 7809836 }, { "author_str": "McCulloch", "per_curiam": false, "type": "040dissent", "page_count": null, "download_url": null, "author_id": null, "opinion_text": " McCULLOCH, C. J., (dissenting). The only relationship between appellant and the Bank of Rogers was, according to the undisputed evidence, that appellant held notes of W. R. Felker aggregating $30,000, secured by mortgage on a cattle ranch and the cattle thereon situated in Texas, which Felker sold to the Bank of Rogers subject to said mortgage. The notes were to become due in about one, two and three years, respectively, from the date of the transaction now under investigation bearing interest at 8% per centum per annum from date. It was a part of the plan for Talley and the Felkers, representing themselves and the Bank of Rogers, to get the notes into the hands of the Mississippi Valley Trust Company of St. Louis, to be carried at a lower rate of interest, and they, together with Mr. Lackey, representing the trust company, went to Dallas, where appellant resided, for the sole purpose of inducing appellant to part with the notes. The security was abundant, and appellant declined to assign the notes or to allow them to be paid off unless a satisfactory sum was paid in consideration of a commutation of the unearned interest. Finally the parties agreed on the sum of $3,100 as the consideration to be paid, and this arrangement was consummated. Appellant assigned the notes to the Mississippi Valley Trust Company and the latter paid to appellant the face of the notes with accrued interest. The $3,100' was paid to appellant by cashier’s check on the Bank of Rogers— the payment proceeding through regular channels without anything to indicate secrecy. Now, there was nothing illegitimate about this transaction. The unearned interest on the notes would have amounted to about $5,100, and the security being good, appellant refused to surrender the notes and mortgage unless something was paid him for the loss of the unearned interest. The transaction was not an unusual one, and no charge of fraud can be predicated on it. Talley was in absolute control of the affairs of the bank, and even if there was any question about his authority to carry out this transaction, it was not repudiated by the bank, which continued business for nearly a year after this occurrence. Passing to the other question in the case of appellant’s liability for the $10,000 on the notes- which had been paid but which were embraced in the deal between the Mississippi Valley Trust Company on the one side and the Bank of Rogers, the Ozark Land &amp; Lumber Company and the Felkers on the other side: Appellant was not a party to that transaction, either directly or indirectly, and had no interest in it, and was to derive no benefit under it. He merely sold the notes secured by the mortgage on the cattle ranch and cattle in Texas and received compensation for giving up the unearned interest. The contract between the parties named above recited that the Ozark Land &amp; Lumber Company, the Bank of Rogers and the Felkers owed the Mississippi Valley Trust Company $45,000 evidenced by certain notes due on demand, and secured by a mortgage executed by the Ozark Land &amp; Lumber Company, and the agreement was,. in substance, that the Trust Company should take up the $30,000 in notes held by appellant, and the other two notes aggregating $10,000 (which the contract recited to be then held by Talley and J. E. Felker), and that Talley and Felker were to pay to the trust company $10,000 to be applied on the aforesaid $45,000 debt, and that the balanee of $35,000 on that debt should be paid by sale of cattle on the Texas-2ranch (to which sale the trust company was to consent and release the cattle from the mortgage). It was further agreed that the trust company should subsequently make advances out of a certain trust fund to the Ozark Land &amp; Lumber Company to enable it to begin construction of a short line railroad. The net result to be obtained under the contract was that the trust company was to be paid its debt of $45,000 against the Ozark Land &amp; Lumber Company, the Bank of Rogers and the Felkers, and should carry, at six per centum interest, $40,000 in notes against the Texas ranch. The $10,000 paid by the trust company for the notes which had previously been paid to appellant and which the contract recited were held by Talley and J. E. Felker, was to go in part payment of the $45,000 debt, and the balance of $35,-000 was to be paid from proceeds of sale of cattle on the Texas ranch. In other words, the trust company was to obtain payment of the Ozark Land &amp; Lumber Company debt of $45,000, but was to carry a debt of $40,000 secured by mortgage on the Texas ranch. I fail to discover the slightest circumstance connecting appellant with any design to defraud the Bank of Rogers. He concedes that the two notes had been paid and that he had mailed them to J. E. Felker, which occurred on October 23, 1913, about ten days before he assigned the remaining notes to the trust company. The evidence does not show that appellant made any indorsement on the notes after he mailed them to Felker. Not a single witness testified that such was the case and appellant himself testified that he had no recollection when he indorsed the words “without recourse” on the back of the notes. It is undisputed, however, that appellant received no part of the funds paid to the trust company on those notes. All that he received was the amount of the $30,000 in notes then held by him, and the so-called bonus of $3,-100. The endorsements are on the notes in appellant’s handwriting, but the question is when were they made? They may have been made by appellant when he mailed the notes to Felker or even before then—no witness pretends to remember about that. But, even if it be conceded that appellant did in fact make the indorsements on those two notes at the time they were delivered to the trust company,' he did so at the request of the Felkers and with the approval of Talley, who was acting for the Bank of Bogers. The Bank of Bogers was interested in carrying through the deal with the trust company. It was responsible with the Ozark Land &amp; Lumber Company and the Felkers for the debt of $45,000 to the trust company ; and the evidence shows also that it was interested in preventing threatened bankruptcy proceedings by the trust company. against W. B. Felker which would nullify the sale of the Texas ranch by Felker to the bank. The bankruptcy proceedings were never instituted, it is true, but, according to the evidence, there was such a threat and it was not carried into execution for the reason that the debt was satisfactorily arranged through the contract now under consideration. Mr. Lackey, the representative of the trust company, insisted on the deal being closed before November 5, 1913, the expiration of the time within which the sale of the ranch could be set aside in bankruptcy as an unlawful preference. The agreement with the trust company in which the Bank of Bogers, acting through its representative, was a participant, provided that the trust company should have a lien on the Texas ranch for $40,000, and if the two previously paid notes had not been used to make up the required amount, then it would have been necessary for the bank to make it up in some other form—a new note secured by mortgage on the ranch and cattle. The bank was already liable for the debt of the Ozark Land &amp; Lumber Company, which was to be discharged under this arrangement, and it was, therefore, directly interested in the deal.- It was represented in the deal by Talley, the president, and if it be conceded that appellant participated to the extent of making a new indorsement on the previously paid notes so as to put them into the hands of the trust company, the transaction was a perfectly legitimate one, for the reason that it was done at the instance of the hank itself. If any wrong was done to the hank at all it was in making it liable for the obligations of the Ozark Land &amp; Lumber Company, or in unloading on it the Texas ranch, hut there is no claim that appellant had any part in either of those transactions. The decision of the majority is based solely on an unfounded inference that appellant was in league with Talley and the Felkers to use the proceeds of the Bank of Bogers for their own private enterprise, i. e., the promotion of the Ozark Land &amp; Timber Company, but in my opinion there is not even grounds for suspicion, under the proof, that appellant was a party to, or the beneficiary of, those transactions. He merely looked after his own interest in a perfectly legitimate way in disposing of the immature notes of which he was the owner, and he was not responsible for the misconduct and bad motives of Talley and the Felkers. ", "ocr": true, "opinion_id": 7809837 } ]

"1919-07-14"

[ "139 Ark. 424" ]

[ { "author_str": "Moculloch", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": " MoCULLOCH, C. J. Pursuant to the terms of Act No. 338 of the legislative session of 1915, the county court of Little River County, by order entered on May 14, 191)8, on petition of property owners, created an improvement district in that county designated as “Road Improvement District No. 6 of Little River County,” for the purpose of constructing a road running northward from Ashdown, the county site, about eleven or twelve miles. There was no appeal from said order of the county court creating the district. The road to be improved runs parallel with the line of railroad of the Kansas City Southern Railway Company and 9.7 miles of the railroad right-of-way is included in the district, as well as station property, and after the assessment of benefits was made by the board of assessors and a certificate thereof filed with the clerk of the county court pursuant to section 13 of the aforesaid statute, the date for hearing on the assessments before the county court was set for August 23, 1918, and appellant appeared in the county court for the first time and made objections to the assessment against the railroad property. The county court overruled the objections to the assessment and appellant prosecuted an appeal to the circuit court. In addition to the objections to the fairness and correctness of the assessment, appellant filed a written plea attacking the validity of the organization of the district on various grounds, viz., that the original petition for the improvement filed in the county court did not contain the signatures of a majority of the property owners; that the petition specified certain tracts of land to be embraced in the district which were omitted by the order of the county court; that the road to be improved was not a public road; that the description of the boundaries of the district set forth in the original petition were vague and uncertain, and that the notice of the hearing on the petition was not published as provided by law. There were several other objections to the validity of the order, which it is unnecessary to set forth. The plea also attacked the fairness and uniformity of the assessments. The circuit court sustained a demurrer to those paragraphs of appellant’s plea attacking the validity of the statute and the proceedings creating the district and confined the hearing entirely to the question of the correctness of the assessments. Testimony was introduced by both parties on that issue, and judgment was entered by the circuit court approving the assessments as made by the board of assessors and approved by the county court. The first contention is that the court erred in sustaining tlie demurrer to appellant’s plea attacking the validity of the district. Counsel for appellant relies on the decision of the court in the case of Lee Wilson Company v. Road Improvement District No. 1, 127 Ark. 310', where, on appeal from the assessment of benefits in a road improvement district formed under this same statute, we said: “Appellants made no attack upon the organization of the appellee district in the court below. But as the organization of the district was essential to any valid local assessments and levies, the question as to whether there was such organization was one of jurisdiction which appellants have the right to raise at any time.” Counsel for appellee rely on the decision of this court in Missouri Pacific Railroad Company v. Conway County Bridge District, 134 Ark. 292, where, under a special statute creating an improvement district and authorizing an appeal by property owners from the assessment of benefits, the court held that on such an appeal a. property owner could not attack the validity of the statute creating the district,- and that the inquiry on such appeal was confined to the ascertainment of the correctness of assessment of benefits, the property owners being left to other remedies in attacking the validity of the organization of the district. The latter case was followed and the samé rule applied in the case of Chicago, Rock Island &amp; Pacific Railway Co. v. Road Improvement District No. 1 of Prairie County, Arkansas, 137 Ark. 587, 209 S. W. 725. .In that case the improvement district was created under a special statute (Acts 1913, p. 864) authorizing the creation of road improvement districts in Lonoke and Prairie Counties. That statute was similar to Act No. 338 of the session of 1915 except that it applied only to the two counties mentioned. It is contended by counsel for appellant that those cases are reconcilable with each other and that appellant’s right to attack the validity of the order creating the district is sustained under the decision in Lee Wilson &amp; Co. v. Road Improvement District No. 1, supra, without conflicting with the decisions in the later cases which arose under special statutes. It is true, as before stated, that the two last mentioned cases arose under special statutes and that in the first of those cases the statute itself created the improvement district, but in the last case the district was created by an order of the county court and in that respect is almost, if not entirely, identical with the facts in the case of Lee Wilson &amp; Co. v. Road Improvement District No. 1, supra. We are of the opinion that the cases are apparently in conflict and that, while the questions arose under different statutes, the principles which control are the same. In the last two cases we proceeded upon the theory that after the creation of the district there was conferred merely the privilege to appear before the board of assessors and the county court for the sole purpose of testing the correctness of the assessment of benefits and that the circuit court on appeal derived only such powers as the board of assessors and the county court has. Section 3 of Act No. 338, supra, provides that an order of the county court establishing a road improvement district “shall have the force and effect of a judgment and shall be deemed conclusive, final and binding upon all territory embraced in said district, and shall not be subject to collateral attack, but only to direct attack on appeal,” and that any property owner “may appeal from said judgment within thirty days by filing an affidavit for appeal, stating in said affidavit the special matter on which said appeal is taken.” And in section 13 of the same statute, providing for notice of the filing of assessments and the appearance of property owners to contest the same, the proceedings are expressly limited to “the purpose ef having any errors adjusted, or any wrongful or grievous assessment corrected.” Section 14 provides for an appeal by a property owner from an order of the county court approving or readjusting the assessments. (1) These features of the statute place it in the same category with a special statute creating an improvement district and makes the same principle applicable as is announced by the last two cited cases of this court. These features of the statute were not called to our attention in the case of Lee Wilson &amp; Company v. Road Improvement District No. 1, supra, and were not discussed in the opinion. The brief statement of the law in that case declared a correct principle that in all legal proceedings the question of jurisdiction may be raised at any stage, even, on appeal to this court, but we failed to take cognizance of the principle that the right to raise the question of jurisdiction at any stage is limited to the same proceeding, and not to a separate proceeding. Under the statute now under consideration the organization of the district and the proceedings for the assessment of benefits and adjustment of the same are entirely different proceedings. While the abstract principle of law was correctly announced in the case of Lee Wilson Co. v. Road Improvement District No. 1, supra, it was not applicable in that case, and after declaring it we determined that there was nothing in the record, as disclosed on appeal, to show the want of jurisdiction and we declined to disturb the proceedings on that ground. The case was reversed on the sole ground of the obvious unfairness of the assessments. After further consideration of the whole matter we reach the conelusion now that the principle announced in the two last cases (Missouri Pacific Railroad Co. v. Conway County Bridge District, supra; Chicago, Rock Island &amp; Pacific Railway Co. v. Road Improvement District No. 1 of Prairie County, 137 Ark. 587, 209 S. W. 725, supra) is the correct one and is applicable to the present case, and so much of the language of the opinion in Lee Wilson Co. v. Road Improvement District No. 1, supra, as is in conflict with this view is disapproved. (2) This leaves only for consideration the question of correctness and fairness of assessments. In cases of this character, where the appeal is from a judgment of the circuit court, we apply the rule that the judgment will not be disturbed if the evidence is legally sufficient to sustain the findings. St. Louis &amp; San Francisco Rd. Co. v. Fort Smith &amp; Van Buren Bridge District, 113 Ark. 493; Missouri Pacific Rd. Co. v. Conway County Bridge District, supra; Chicago, Rock Island &amp; Pacific Ry. Co. v. Road Improvement District No. 1 of Prairie County, supra. This case was heard on oral evidence adduced by both parties to the controversy and the testimony is conflicting. That adduced by appellee tends to show that the assessments were fair and uniform. It would serve no useful purpose to discuss the testimony in detail, for we find it to be legally sufficient to sustain the judgment of the circuit court. (3-4) One of the principal points of attack is that the assessment of benefits exceeds the cost of the improvement and that the assessment is erroneous on that account. We cannot say as a matter of law that benefits from the construction of a given improvement will not accrue to real property in excess of the cost of such improvement. The law does not thus limit the assessment of benefits, but there cannot be a collection-of funds in excess of the total cost of the improvement, including, of course, the interest on money borrowed, and all other expenses of the proceedings. Property owners cannot be compelled to contribute funds for any other purposes than those contemplated by the organization of the district and funds in excess of the amount necessary for those purposes cannot be collected, but the question of estimate of benefits in the beginning is a different one, and they are not necessarily limited to the actual amount of money to be raised. Benefits are first appraised and then taxes levied based upon those benefits to raise funds to carry out the purposes of the organization. It is contended that the evidence shows that the benefits were not assessed uniformly, in that private property was not assessed in the same proportion as railroad property. The testimony of the assessors shows that they considered all of the elements which entered into the question of benefits or enhancement of values, and we cannot say that appellant has been discriminated against in the assessment of its property, or that the fairness of the assessment's, as a whole, is not sustained by legally sufficient testimony. The judgment is, therefore, affirmed. ", "ocr": true, "opinion_id": 7809985 }, { "author_str": "Hart", "per_curiam": false, "type": "040dissent", "page_count": null, "download_url": null, "author_id": null, "opinion_text": " HART, J., (dissenting). The proposed district contains 23,585 acres of land not including the right-of-way of the railroad company. The proposed highway is for the most part close to the right-of-way of the railroad and parallel to it. The highway is about eleven miles long and 9.7 miles of the right-of-way of the railroad is included in the district. The cost of the road is estimated at $112,077.74. The benefits assessed against the property of the railway company are $7,000 per mile, making a total assessment of benefits against the property of the railroad company of $67,900. It is not shown that the proposed road will be of any advantage in draining the roadbed of the railroad company. Judge Wood and the writer are of the opinion that the assessment of benefits against the railroad company is greater than the actual benefits to the property of the company. The statute provides that the county court shall hear and determine the justness of any assessments of benefits and that it is authorized to equalize, lower, or raise any assessment upon a proper showing to the court. Therefore, Judge Wood and the writer are of the opinion that the assessments of benefits against the property of the railroad company are greater than the actual benefits and should have been lowered and that the judgment of the circuit court was erroneous in not doing this. WOOD, J., concurs. ", "ocr": true, "opinion_id": 7809986 } ]

"1919-12-22"