Datasets:

jhu-clsp

/

CLERC

like 2

Follow

Center for Language and Speech Processing @ JHU 49

[ { "docid": "23564364", "title": "", "text": "MURRAH, Circuit Judge. The defendant-appellee removed this action from the Colorado District Court to the Federal District Court of that State for diversity of citizenship and requisite amount in controversy. The plaintiff-appellants moved to remand for untimely filing of the petition for removal. The motion was denied, and the trial of the case on its merits went against the plaintiffs, whereupon they renewed their motion to remand for the same reason. The trial court overruled it and the appellants have appealed, assigning only the refusal of the court to remand. If the time in which to remove the proceedings commenced to run on October 7, 1955, when the state court summons was served, the petition for removal came too late. If, however, as the trial court held, the time commenced on the date of receipt of the complaint by the defendant on October 17, 1957, the removal was timely and the judgment should be affirmed. Title 28 U.S.C. § 1446(b), as amended May 24, 1949, 63 Stat. 101, provides that a petition for removal of a civil action “shall be filed within twenty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within twenty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.” If the summons which was served on October 7, 1955, can be said to be an “initial pleading setting forth the claim for relief upon which such action or proceeding is based”, the time for removal commenced to run on that date. Rule 3(a) of the Colorado Rules of Civil Procedure provides that “A civil action is commenced (1) by filing a complaint with the court, or (2) by the service of a summons. The complaint must be filed within 10 days after the summons is served, or the action may be dismissed without notice. * * * ”" } ]

[ { "docid": "11365748", "title": "", "text": "state court. “The copy of the complaint which I furnished to Mr. Katz indicated on its face that it had been filed in Carson City, Nevada, on September 6, 1988, and had the case number filled in.” Affidavit of Richard B. Foley (Exhibit A, document # 7). By affidavit, Mr. Katz acknowledges that he received a copy of the complaint on September 10, 1988. Katz Affidavit filed in Support of Defendants’ Memorandum in Opposition to Plaintiff’s Motion to Remand (document # 14). Formal service of the summons and complaint was made on defendants Stoffel and K-Seal on September 21, 1988; defendant Katz was formally served with summons and complaint on September 23, 1988. Defendants joined in a Petition for Removal, which was filed in this Court on October 18, 1988. The case is properly within the subject matter jurisdiction of this Court. The issue presented is whether defendants’ petition for removal was filed on time. 28 U.S.C. § 1446(b) provides: The petition for removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter, (emphasis added) Plaintiff argues that because the petition for removal was filed more than thirty days after defendant Katz received a file stamped copy of the complaint, the petition is untimely. Defendant Katz received a copy of the complaint on September 10; therefore, plaintiff contends that the period within which to remove ended on October 10. Since the petition for removal was not filed until October 18, the petition is untimely. Plaintiff requests that the case be remanded to the appropriate state court. Defendants argue that the thirty-day time period for removal does not start to run until after they have been formally served and received a" }, { "docid": "11365749", "title": "", "text": "days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter, (emphasis added) Plaintiff argues that because the petition for removal was filed more than thirty days after defendant Katz received a file stamped copy of the complaint, the petition is untimely. Defendant Katz received a copy of the complaint on September 10; therefore, plaintiff contends that the period within which to remove ended on October 10. Since the petition for removal was not filed until October 18, the petition is untimely. Plaintiff requests that the case be remanded to the appropriate state court. Defendants argue that the thirty-day time period for removal does not start to run until after they have been formally served and received a copy of the complaint. They maintain that because formal service was not made on any defendant until September 21, the removal petition was timely because it was filed before October 21. DISCUSSION In cases where there is more than one defendant, the time for removal begins to run after the first defendant receives, through service or otherwise, a copy of the initial pleading. All properly joined defendants must join in the petition for removal. Therefore, if the defendants receive their pleadings at different times, and the first defendant to receive a pleading fails to remove within 30 days, those defendants who receive pleadings later are foreclosed from removing. Varney v. Johns-Manville, 653 F.Supp. 839, 840 (N.D.Cal.1987); Ortiz v. Gen. Motors Acceptance Corp., 583 F.Supp. 526, 529 (N.D.Ill.1984); Balestrieri v. Bell Asbestos Mines, Ltd., 544 F.Supp. 528, 530 (E.D.Pa.1982); Quick Erectors, Inc. v. Seattle Bronze Corp., 524 F.Supp. 351, 354 (E.D.Mo.1981); Transport Indemnity Co. v. Financial Trust Co., 339 F.Supp. 405, 409 (C.D.Cal.1972). See also 1A J. Moore & B. Ringle, Moore’s Federal Practice ¶0.168 [3-5-5]" }, { "docid": "23428060", "title": "", "text": "(1948). Under this formulation, of course, the removal period could not begin until service of process had been obtained. A problem arose, however, in those states such as New York which permitted a plaintiff to commence a suit without serving or filing a complaint, merely by serving the defendant with a summons. Under the 1948 version of section 1446(b), in such cases the removal period could expire before a defendant received a copy of the complaint, thus depriving him of an opportunity to remove the action. It was in response to this problem that Congress revised section 1446(b) to permit removal “within twenty [now thirty] days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading.” See H.R.Rep.No. 352, 81st Cong., 1st Sess., reprinted in [1949] U.S.Code Cong.Serv. 1254, 1268. Thus, the “through service or otherwise” language was intended to expand the removal period in states following the New York Rule. See Potter, 186 F.Supp. at 149. It was not intended to diminish the right to removal, by permitting a plaintiff to circumvent the already existing requirement of personal service through informal service. The Court concludes that the removal period set forth in 28 U.S.C. § 1446(b) cannot commence until a plaintiff properly serves defendant with process. In this case, Plaintiffs had not properly served State Farm more than thirty days before State Farm filed its removal petition, and consequently removal was timely. The Court therefore DENIES Plaintiffs’ Motion for Remand. . The Court bases this finding on two pieces of evidence. First, the March 19 letter from Plaintiffs’ attorney to State Farm noted that Plaintiffs were not then attempting to serve State Farm. Second, it is implicit in the arguments of the parties that the removal petition did not follow any proper service by more than thirty days; if such had been the case, this motion would be more easily decided. . The Tyler court relied quite heavily on an opinion by another member of this Court, as do Plaintiffs in this case. See Perimeter Lighting, Inc. v. Karlton, 456 F.Supp. 355" }, { "docid": "12982008", "title": "", "text": "objection to a late petition for removal will therefore result in remand. Webster v. Dow United Tech. Composite Prods., Inc., 925 F.Supp. 727, 729 (M.D.Ala.1996) (internal citations omitted) (remanding case removed more than thirty days after complaint filed and more than thirty days after plaintiffs written responses to discovery revealed basis for federal jurisdiction). Accord, Clingan v. Celtic Life Ins. Co., 244 F.Supp.2d 1298, 1302-03 (M.D.Ala.2003) (granting motion to remand because defendant failed to remove case within thirty days of receipt of complaint from which it could have ascertained case was removable). Federal law limits the period in which a defendant may exercise his removal right from state to federal court. The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based.... If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable, except that a case may not be removed on the basis of jurisdiction conferred by section 1332 of this title more than 1 year after commencement of the action. 28 U.S.C. § 1446(b) (emphasis added). In cases which initially involve multiple defendants who are served on different dates or in cases such as this one, where defendants are added more than thirty days after service on the originally named defendant, application of the timing requirements of 28 U.S.C. § 1446(b) presents a special problem. In such situations, courts must decide whether the thirty-days for removing the action commences once when the first-served defendant is served with the summons and complaint or whether each defendant gets a new thirty-day window for removing the case which commences when each defendant is served. The first" }, { "docid": "18708925", "title": "", "text": "of Tyler, it would find that defendant’s removal petition was untimely. Defendant’s counsel received a copy of the initial pleading far more than thirty days before he petitioned for removal. 2. Love Interpretation In Love, the court ruled that proper service is a prerequisite to the commencement of the removal period. Love, 542 F.Supp. at 67-68. In Love, plaintiffs filed their complaint in state court on March 19, 1982. On that same day, their attorney sent a letter to defendant, enclosing a copy of the complaint. The copy of the complaint contained no indication of when, if at all, it had been filed with the state court. Plaintiffs’ letter said the complaint had been filed (again, no mention of when), but plaintiffs would not serve defendant in the hope of settlement. Defendant filed a petition for removal on May 17, 1982. The Love court declared that plaintiffs had not properly served defendant, so removal was timely. Id. The legislative history of 28 U.S.C. § 1446(b), the majority view, and a recent trend in case law support the Love interpretation. a. Legislative History The “or otherwise” language was added to the statute in 1949. Before the relevant amendment, the statute read, “within 20 days after commencement of the action or service of process, whichever is later.” 62 Stat. 939 (1948). Pursuant to case law interpretation, the removal period could not begin until service of process was properly obtained. Love, 542 F.Supp. at 68. A problem arose in those states which allowed a plaintiff to commence a suit without filing a complaint. In such eases the removal period could expire before the defendant received a copy of the complaint. Id. Defendant would have to decide whether to petition for removal before knowing what the suit was all about. Potter v. McCauley, 186 F.Supp. 146, 148 (D.Md.1960). Thus, Congress revised § 1446(b) to permit removal “within 30 days after the receipt by defendant, through service or otherwise, of a copy of the initial pleadings.” See H.R.Rep. No. 352, 81st Cong. 1st Sess., reprinted in [1949] U.S.Code Cong.Serv. 1248, 1254, 1258. This change was" }, { "docid": "18708924", "title": "", "text": "copy of the initial pleading triggers the removal period, even though defendant was not properly served until sometime later. Tyler, 524 F.Supp. at 1213. In that case, a copy of plaintiffs petition was sent to defendant, who received it on March 4, 1981. Legal service of process was obtained on April 10, 1981, when defendant accepted service. On May 4, 1981, defendant petitioned to remove the action. In holding the removal petition untimely, the Tyler court said, “the time period for removability is controlled by receipt of the initial pleading.” Id. Tyler appears to be the only case directly addressing this point which holds that receipt of the initial pleading even in the absence of service triggers the removal period. Other cases usually cited for the proposition that the removal period commences when the defendant receives a copy of the initial pleading do not involve receipt of the pleading before service of process. See cases cited in Quick Erectors, Inc. v. Seattle Bronze Corp., 524 F.Supp. 351, 354 (E.D.Mo.1981). If this court follows the rationale of Tyler, it would find that defendant’s removal petition was untimely. Defendant’s counsel received a copy of the initial pleading far more than thirty days before he petitioned for removal. 2. Love Interpretation In Love, the court ruled that proper service is a prerequisite to the commencement of the removal period. Love, 542 F.Supp. at 67-68. In Love, plaintiffs filed their complaint in state court on March 19, 1982. On that same day, their attorney sent a letter to defendant, enclosing a copy of the complaint. The copy of the complaint contained no indication of when, if at all, it had been filed with the state court. Plaintiffs’ letter said the complaint had been filed (again, no mention of when), but plaintiffs would not serve defendant in the hope of settlement. Defendant filed a petition for removal on May 17, 1982. The Love court declared that plaintiffs had not properly served defendant, so removal was timely. Id. The legislative history of 28 U.S.C. § 1446(b), the majority view, and a recent trend in case law" }, { "docid": "12438139", "title": "", "text": "or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter, (emphasis supplied) If' the case stated by the initial pleading is not removable, a petition for removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable. (emphasis supplied) The government contends that removal of the case was timely, since the first order it received which indicated to it that the proceedings were removable was the Notice of Settlement mailed to it on May 10, 1971. This argument fails. It would strain credulity to believe that petitioner-could have actually filed a claim in the State proceeding on September 14, 1970 without having .received a copy of the initial pleading or some other paper indicating that the case was removable some time prior to that date. The City of New York was not required to actually mail such papers to the United States Attorney, the Secretary, or the Federal Housing Administrator. It is sufficient that such papers were re ceived “otherwise”, i. e. other than by service. Cf. French v. Banco Nacional de Cuba, 192 F.Supp. 579 (S.D.N.Y.1961). Considering the nature of the government’s claim filed in State court, and the claimed basis for removal hereafter discussed, the government must have learned of the purported basis for removal before appearing in the State action by filing its claim. Therefore, accepting September 14, 1970 as the latest date from which the thirty (30) day period could have begun to run, removal in the instant case was clearly untimely and the action must be remanded. Waiver For another reason the action must be remanded. By moving in state court" }, { "docid": "6446489", "title": "", "text": "by § 1446(b) is sufficient ground on which to remand. Blow v. Liberty Travel, Inc., 550 F.Supp. 375 (E.D.Pa.1982). The burden of proof is on the petitioning defendants to establish their right to removal, including their compliance with the requirements of the removal statute. Id. The burden is therefore on the defendants to prove that the petition for removal was timely under § 1446(b). While there is controversy as to when the defendants were served with the Complaint, there is no doubt that they had received it by February 10, 1987, when it was an exhibit to defendants’ petition/motion to open judgment. Defendants have cited no authority for the proposition that pendency of that motion extends the thirty day period. Therefore, February 10, 1987, is the latest date from which the thirty day period can be calculated. The Petition for Removal was filed one year and six days later. The thirty day period is mandatory and cannot be extended by the Court. Sun Oil Co. of Pa. v. Pa. Dept. of Labor & Industry, 365 F.Supp. 1403 (E.D.Pa.1973). Therefore, the plaintiffs’ motion to remand will be granted. An appropriate order follows. ORDER AND NOW, this 17th day of August, 1988, upon consideration of PETITION FOR REMAND filed by plaintiffs on February 16, 1988, and DEFENDANTS’ ANSWER thereto filed February 18, 1988, it is hereby ORDERED that this matter is REMANDED to the Court of Common Pleas of Philadelphia County, Pennsylvania. . 28 U.S.C. § 1446(b) provides: “(b) The petition for removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter. If the case stated by the initial pleading is not removable, a petition for removal may be filed within thirty" }, { "docid": "20315785", "title": "", "text": "a result, the thirty day period could run before this fact could be established through discovery. This argument is unpersuasive since all defendants must join in a petition for removal. P.P. Farmers’ Elevator Co. v. Farmers Elevator Mutual Insurance Co., 395 F.2d 546 (7th Cir.1968). An uncooperative codefendant, therefore, could simply refuse to join in the petition, and would not need to conceal his citizenship in order to prevent removal. I hold, therefore, that the thirty day time limit of § 1446(b) began to run upon defendant’s receipt of the complaint. Furthermore, I find, that the defendant has failed to carry its burden of proof that the petition for removal was timely. The plaintiffs motion to remand must, therefore, be granted. . Section 1446(b) of 28 U.S.C. reads: (b) The petition for removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter. If the case stated by the initial pleading is not removable, a petition for removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable. . The purpose of § 1446(b) has been characterized as being to obtain the earliest possible removal of an action to federal court once the defendant has had an opportunity to determine the removability of the action. International Equity Corp. v. Pepper and Tanner, Inc., 323 F.Supp. 1107, 1109 (E.D.Pa.1971). . Given plaintiffs’ Pennsylvania residency, it need only be established that plaintiffs intend to reside permanently in Pennsylvania to show their Pennsylvania citizenship." }, { "docid": "19257709", "title": "", "text": "an action. The Court is now presented with two related questions that arise in cases with multiple defendants who are served at different times. The first question is whether each defendant has thirty days from the time it is served to petition to remove the case to federal court or, instead, whether § 1446(b) creates a single thirty-day period in which a case may be removed, beginning when the first defendant is served. The second, interrelated question before the Court is whether the first-served defendant can consent to removal by a later-served defendant after the first-served defendant’s thirty-day removal period has lapsed or, instead, whether the first-served defendant waives its right to consent by failing to remove the action within its thirty-day period. If the latter interpretation is correct, then a defendant served more than thirty days after the first-served defendant is precluded from removing the action because it could never satisfy the unanimity rule. 1. Date of Service. Before addressing the questions presented above, the Court must backtrack somewhat to determine whether Eon filed its notice of removal within thirty days of being served. If Eon failed to file a notice of removal within thirty days of being served, all parties concede that its removal would be untimely. Eon first received constructive notice that it was a named defendant in this lawsuit in October 1999, when its legal counsel was improperly served. The Supreme Court recently held that the thirty-day period for removal in § 1446(b) is triggered by formal service only. See Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 119 S.Ct. 1322, 143 L.Ed.2d 448 (1999). The plaintiffs thus concede that Eon’s thirty-day period for removal, if indeed the Court finds that Eon is entitled to thirty days, did not begin at that time. Eon then received a copy of the summons and complaint by certified mail on November 15, 1999. If Eon’s receipt of the summons and complaint effected service, then Eon’s December 16 notice of removal was filed thirty-one days after service, making it untimely under § 1446(b). However, Eon correctly argues" }, { "docid": "16265840", "title": "", "text": "that it was convinced that “the legal landscape in this area has been clarified, and perhaps the definitive answer portended, by the Supreme Court’s decision in Murphy Bros. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 119 S.Ct. 1322, 143 L.Ed.2d 448 (1999).” The Court stated: In Murphy Bros., the defendant was faxed a courtesy copy of the complaint but was not officially served until two weeks later. The defendant removed the case to federal court within thirty days of service but more than thirty days after receiving the faxed copy of the complaint. The question before the Court was “whether the named defendant must be officially summoned to appear in the action before the time to remove begins to run.” 526 U.S. at 347, 119 S.Ct. at 1322. The Court held that formal process is required, noting the difference between mere notice to a defendant and official service of process Marano Enterprises of Kansas, 254 F.3d at 756. Based upon the Supreme Court’s holding in Murphy Bros., Inc., the Eighth Circuit concluded that, “if faced with the issue before us today, the [Supreme] Court would allow each defendant thirty days after receiving service within which to file a notice of removal, regardless of when— or if — previously served defendants had filed such notices.” See id. at 756-57. Thus, the Eighth Circuit affirmed the district court’s denial of the motion to remand. See id. at 757. Finally, another district court in the Eleventh Circuit has rejected the conclusion in Getty Oil. In Collings v. E-Z Serve Convenience Stores, Inc., 936 F.Supp. 892 (N.D.Fla.1996), the Court considered “a policy question of whether a later-joined defendant may remove a case to federal court when the initial defendant has waived its right to remove.” The Court stated that it did not believe “that allowing later-joined defendants to remove to federal court violates the unanimity rule,” because the unanimity rule “does not prohibit a defendant who has waived the right to remove from joining a petition,” but rather “simply requires that all defendants join in the removal petition.” Id. at 894 (quotation omitted)" }, { "docid": "5816677", "title": "", "text": "If this is not done, the United States has no other recourse but to move for dismissal. After receiving this advice, Wilson’s counsel mailed a copy of the summons and complaint to the following address: George J. Long U.S. Atty. Gen. Washington, D. C. Apparently, neither Long, who was then the U. S. Attorney for the Western District, nor the Attorney General ever received the letter. On June 4, 1974, approximately five months after the complaint was filed in state court, the United States Attorney moved to dismiss the state court suit on the grounds that neither he nor the Attorney General had been properly served with process in accordance with Rule 4(d)(4) of the Federal Rules of Civil Procedure. At the same time, Wilson asked the state court to issue an injunction against the Food and Nutrition Service to prevent them from suspending him from the food stamp program. On June 8, the U. S. Attorney responded to the motion for an injunction by repeating that he had not been properly served. On October 21, 1974 (ten months after the complaint was filed), before the state court had ruled on either party’s motion, the United States Attorney filed a petition pursuant to 28 U.S.C. § 1441 to remove the case to the United States District Court for the Western District of Kentucky, sending copies of the petition both to Wilson and the state court. In accordance with § 1446(e) of the removal statute, the state court issued an order staying all further state proceedings in the case. THE REMOVAL ISSUE The issue here is whether the Government filed the removal petition within the thirty day period set by statute. The removal statute provides, in part: The petition for removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has" }, { "docid": "11365750", "title": "", "text": "copy of the complaint. They maintain that because formal service was not made on any defendant until September 21, the removal petition was timely because it was filed before October 21. DISCUSSION In cases where there is more than one defendant, the time for removal begins to run after the first defendant receives, through service or otherwise, a copy of the initial pleading. All properly joined defendants must join in the petition for removal. Therefore, if the defendants receive their pleadings at different times, and the first defendant to receive a pleading fails to remove within 30 days, those defendants who receive pleadings later are foreclosed from removing. Varney v. Johns-Manville, 653 F.Supp. 839, 840 (N.D.Cal.1987); Ortiz v. Gen. Motors Acceptance Corp., 583 F.Supp. 526, 529 (N.D.Ill.1984); Balestrieri v. Bell Asbestos Mines, Ltd., 544 F.Supp. 528, 530 (E.D.Pa.1982); Quick Erectors, Inc. v. Seattle Bronze Corp., 524 F.Supp. 351, 354 (E.D.Mo.1981); Transport Indemnity Co. v. Financial Trust Co., 339 F.Supp. 405, 409 (C.D.Cal.1972). See also 1A J. Moore & B. Ringle, Moore’s Federal Practice ¶0.168 [3-5-5] (2nd ed. 1987) (“[W]e believe that when the action as pleaded would be removable by all the joined defendants, the thirty-day period starts to run from the time of service on the first defendant who would have to be joined in the removal petition, (footnote: We use the shorthand term ‘service’ here to mean the happening of the event, such as receipt by defendant of the initial pleading, which starts the removal time running under § 1446(b).)”) If, as plaintiff argues, the thirty days began running when defendant Katz received a copy of the complaint, it is immaterial that “later-served” defendants Stoffel and K-Seal attempted removal within thirty days of their service. Because all defendants must join in the petition for removal, removal is precluded as to all defendants if the “first-served” defendant, Katz, did not remove in time. There are two lines of cases that define the event necessary to trigger the thirty-day removal period. The split of authority reflects two interpretations of the “through service or otherwise” language of section 1446(b). One approach," }, { "docid": "13392508", "title": "", "text": "ORDER AND REASONS FELDMAN, District Judge. Plaintiffs originally filed this suit in state court alleging that their defendant-lessor delivered defective premises; plaintiffs complained that the construction of their premises exposed their bedroom to public view, violating their right to privacy in their home. On January 4, 1989, plaintiffs served Capital Realty Service, through its manager, with a copy of the state court petition. On March 22, 1989, approximately two and a half months later, defendant removed the suit to this Court. Plaintiffs now move to remand to state court. The motion asks the question: What event is necessary to trigger the start of the thirty day removal period? Plaintiffs contend that defendant’s removal petition was untimely. The removal statute, 28 U.S.C. § 1446, requires a defendant seeking removal to file a removal petition within thirty days of receiving the initial pleading from the plaintiff. Specifically, the statute provides: The petition for removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter. 28 U.S.C. § 1446(b) (Emphasis added). Plaintiffs argue that the January 4 Service of process by the Orleans Parish Sheriff on the manager of Capital Service Realty triggered the thirty day removal period; they insist that this service comported with the “service or otherwise” language of 28 U.S.C. § 1446(b) because, although technically flawed in that the defendant’s official agent for service of process did not receive the petition, the service did provide notice of the suit to the defendant and triggered defendant’s act of removing the case. Plaintiffs therefore contend that the March 22, 1989 petition for removal was not filed within the thirty day mandated time period, that removal was improvident, and that the case should be remanded." }, { "docid": "17653098", "title": "", "text": "differ slightly. The rationales espoused in those cases, however, offer guidance as to the proper resolution of the narrow issue presented in this case, namely, whether service of process which is technically flawed under state law triggers the thirty-day removal period set forth in 28 U.S.C. § 1446(b). In Tyler, plaintiff mailed a copy of his petition to defendant, who received it on March 4, 1981. Proper service of process was not perfected until April 10, 1981. Defendant removed the case on May 4, 1981. The district court granted plaintiff’s motion to remand, holding that receipt of a copy of the initial pleading triggered the removal period. Tyler, 524 F.Supp. at 213. The court stated that a document qualifies as an initial pleading for removal purposes if it “contains such notice of the state proceeding that the defendant can ascertain the removability of the action or proceeding.” Id. at 214. The initial pleading under scrutiny in Tyler was a petition for a rule to show cause. It contained notice of the nature of the claim, identification of the parties, a notice to defend, and the amount of damages sought. Commenting on the petition, the court said, “Upon receipt of that petition, the defendant was able intelligently to determine from the face thereof that the action was removable.” Id. In Love, plaintiffs filed their complaint in state court on March 19,1982. Their attorney, on that same day, sent a letter to defendant and enclosed a copy of the complaint. In the letter, he stated that the complaint had been filed but would not be served, because he hoped the parties could reach an out-of-court settlement. The record is not clear as to when proper service was effected. In any event, defendant answered the complaint on May 14, 1982 and filed a petition for removal on May 17, 1982. Upon plaintiff’s motion to remand, the court ruled that the removal period commenced upon proper service of process and receipt of the initial pleading. In so doing, it found the petition for removal had been filed timely. Love, 542 F.Supp. 66-68. The court" }, { "docid": "14190937", "title": "", "text": "notice of removal is timely if it is filed within 30 days “after receipt by the defendant, through service or otherwise” of a copy of the complaint. The parties disagree on when the thirty-day time period for removal began to run in this case. Plaintiff argues that the time for removal began to run on November 30, 2001, the date the West Virginia Secretary of State was served and, therefore, that CSX’s notice of removal was untimely. CSX argues that the time for removal did not begin to run until December 7, 2001, the date it actually received a copy of the complaint, and, therefore, that its notice of removal was timely. The court notes that neither the Fourth Circuit nor any other United States Circuit Court of Appeals has addressed the question of when the thirty-day removal period begins to run when service is effected on a statutory agent for service of process. However, almost every district court that has recently addressed the issue has held that when service is effected on a statutory agent, rather than on an agent appointed by the defendant, the time to remove the action to federal court does not start to run until the defendant actually has received a copy of the complaint. See Hibernia Community Development Corp., Inc. v. U.S.E. Community Services Group, Inc., 166 F.Supp.2d 511, 513 (E.D.La.2001) (holding that thirty-day period did not begin to run until defendant actually received the plaintiffs petition); Auguste v. Nationwide Mutual Ins. Co., 90 F.Supp.2d 231, 232 (E.D.N.Y.2000) (holding that service of process upon defendant’s statutory agent is not sufficient to trigger the 30-day removal period); Monterey Mushrooms, Inc. v. Hall, 14 F.Supp.2d 988, 991 (S.D.Tex.1998) (holding that, where service was properly made on a statutory agent, the removal period began when defendant actually received the process, not when the statutory agent received it); Wilbert v. Unum Life Ins. Co., 981 F.Supp. 61, 63 (D.R.I.1997) (“When a statutory agent is served, the clock for removal does not begin ticking as it would if defendant itself had been served but rather starts when defendant receives" }, { "docid": "19713712", "title": "", "text": "received a few days after July 21, 1994 in the ordinary course of the mails. In their opposition to the motion for remand, defendants allege that they were formally served with the petition on September 23, 1994. This has not been denied by plaintiff. The notice of removal in this action was filed on October 21, 1994. The statute controlling removal provides: The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter. 28 U.S.C. § 1446(b). Plaintiff contends that remand is warranted because the notice of removal was not filed within 30 days of the date that defendant Durbin received a file-stamped copy of the complaint sent by regular mail on July 21,1994. Defendants contend that the notice of removal was timely because it was filed within 30 days of the date of service. There is a split of authority as to whether the 30-day period to file a notice of removal begins to run from the date of service of the complaint (or petition), or from the date of receipt of a copy of the complaint (or petition). A number of district courts have held that only “service” complying with all technical rules of state law starts the clock under § 1446(b). E.g., Baratt v. Phoenix Mutual Life Insurance Co., 787 F.Supp. 333 (W.D.N.Y.1992); Hill v. Boston, 706 F.Supp. 966 (D.Mass 1989); Hunter v. American Express Travel Related Services, 643 F.Supp. 168 (S.D.Miss.1986); Thomason v. Republic Insurance Co., 630 F.Supp. 331 (E.D.Cal.1986); Love v. State Farm Mutual Automobile Casualty Co., 542 F.Supp. 65 (N.D.Ga.1982). A goodly number of other district courts have held that § 1446(b) means what it says. E.g., Mermelstein v. Maki, 830 F.Supp." }, { "docid": "955287", "title": "", "text": "“[S]ection 1446(b), properly construed, requires service of process or substituted service under some appropriate rule or statute before the twenty (now thirty) day period starts to run.” Id. at 685. The only authority that no summons need be served is a case involving entry of judgment by confes sion where state procedural rules did not require original process. International Equity Corp. v. Pepper & Tanner, Inc., 323 F.Supp. 1107 (E.D.Pa.1970). None of the cases usually cited for the proposition that the thirty-day period commences from the actual receipt by defendant of the initial pleading involve receipt of the complaint before service of process. Ardison v. Villa, 248 F.2d 226 (10th Cir. 1957) (when summons is served without complaint, statutory period does not begin to run from date of summons); Barr v. Hunter, 209 F.Supp. 476 (W.D.Mo.1962) (time to file petition for removal dates from receipt of pleading, not from filing of return); Potter v. Khan, 108 F.Supp. 593 (S.D.N.Y.1952) (thirty-day period commences with receipt of complaint by mail, not from later date when service by publication complete where both methods of notice ordered by court). It follows from the above cases that the running of the thirty-day period commenced on October 16 when Seattle Bronze was served with process. Therefore, the petition for removal filed by Seattle Bronze was timely. It is clear that The Seagrave Corporation, which received a copy of the initial pleading through service on October 1, 1979 and which joined in the removal petition on November 15, 1979 exceeded the statutory period for filing for removal. The general rule is that all properly joined defendants, other than purely nominal or formal parties, over whom the court has acquired jurisdiction must join in the petition for removal. 14 Wright, Miller and Cooper § 3731 at 718-19. And each must file for removal within thirty days from the date on which that particular defendant was served. If the defendant who was served first fails to remove within thirty days, a subsequently served defendant may not remove even with the first defendant’s consent. Friedrich v. Whittaker Corp., 467 F.Supp." }, { "docid": "11664398", "title": "", "text": "MEMORANDUM NEWCOMER, District Judge. Plaintiffs move for remand of this case to state court, arguing that defendants filed their petition for removal after the expiration of the mandatory time limitation contained in the removal statute, 28 U.S.C. § 1446. The issue for decision is whether the praecipe for a writ of summons and the summons used in Pennsylvania procedure are, when served together, an initial pleading for purposes of the removal statute such that receipt of them would start the time for filing a removal petition to run. Plaintiffs filed a praecipe for a writ of summons in the Court of Common Pleas of Philadelphia County on December 2, 1981, see Pa.R.Civ.P. 1007, and served the defendants by certified mail with copies of the praecipe and the summons. Lake Asbestos informs me that it received the praecipe and summons on December 9, 1981. On December 10, 1981, a rule was issued upon plaintiffs to file a complaint, see Pa.Civ.P. 1037(a). A complaint was filed on December 24, 1981, and served on defendants “on or about” January 6, 1982. All defendants joined in Lake Asbestos’s petition for removal filed January 25, 1982, nineteen days after the defendants received the complaint, and 47 days after Lake Asbestos received the praecipe and summons. Plaintiffs’ sole argument for remand is that the petition for remand was not timely filed. The relevant part of the removal statute is as follows: The petition for removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter. If the case stated by the initial pleading is not removable, a petition for removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a" }, { "docid": "955284", "title": "", "text": "day prior to service on October 15. Both defendants joined in a petition for removal on November 15, 1979. 28 U.S.C. § 1446(b) specifies that “[t]he petition for removal of a civil action or proceeding shall be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.” Plaintiff contends that the petition was not timely because it was filed 31 days after Seattle Bronze first received a copy of the pleading on October 15 and 45 days after Seagrave received its copy through service on October 1. It would appear that whether Seattle Bronze first received its copy of the initial pleading on October 15, as alleged by plaintiff, or on October 16, when officially served, would determine whether Seattle Bronze had filed a timely petition for removal because § 1446(b) speaks of receipt of the pleading “by service or otherwise.” However, the Court concludes on the basis of the reasoning in Potter v. McCauley, 186 F.Supp. 146 (D.Md. 1960) that whether Seattle Bronze had a copy of the pleading on the day before it was duly served is irrelevant. In McCauley, defendant had voluntarily accepted the complaint. The court held that voluntary acceptance of a complaint without service of process does not begin the running of the statutory period despite the language in § 1446(b) “through service or otherwise.” The court, in analyzing this phrase, reasoned that because receipt of a complaint is not always contemporaneous with service of process, a defendant may not receive the complaint until after the summons and that a defendant should not have to decide whether to petition for removal before he knows from the complaint what the suit is about. Therefore, the court concluded that the intent of Congress in using this phrase" } ]

[ { "docid": "15510596", "title": "", "text": "Cong., 1st Sess. 178 (1977). However, the presumption of insolvency applies only during the ninety days immediately preceding the date of the filing of the petition. Hence, because the trustee is challenging the transfer to an alleged insider that occurred more than ninety days before the filing of the petition, the presumption is of no apparent assistance. Therefore, the trustee must establish the debtor’s insolvency on the date the transfer was made. Constructora Maza, Inc. v. Banco dePonce, 616 F.2d 573, 577 (1st Cir. 1980); Matter of PRS Products, Inc., 574 F.2d 414 (8th Cir. 1978); American Nat’l. Bank, 333 F.2d at 984; Mizell, 240 F.2d at 738; Interstate National Bank v. Luther, 221 F.2d 382, 391 (10th Cir. 1955); Arkansas Oil & Mining Co. v. Murray Tool & Supply Co., 127 F.2d 564 (8th Cir. 1942); Everett v. Warfield Mining Co., 37 F.2d 328 (4th Cir. 1930); Denaburg, 7 B.R. at 274. Insolvency is determined by a “balance sheet test. In other words, a debtor is insolvent when his liabilities exceed his assets. National Buy-Rite, 7 B.R. at 410; 4 Collier on Bankruptcy ¶ 547.26, p. 547-94 (15th ed.1980). The principal of the debtor corporation testified at the hearing held in this case that on November 5, 1979, the date of the challenged transfer, the liabilities of Rockhill did exceed the value of its assets. No other evidence was put forth by either party concerning this issue. Accordingly, we conclude that the trustee has met its burden in establishing insolvency at the time of the transfer. Finally, two (2) additional conditions must be satisfied before the trustee can avoid a transfer falling outside the ninety (90) day period prior to the filing of the petition. First, the creditor to whom the transfer was made must have been an insider when the transfer was made. Second, the insider must have had reasonable cause to believe the debtor was insolvent at the time such transfer was made. See 11 U.S.C. § 547(b)(4)(B) (1979). An “insider” is defined in the Code as one who has a sufficiently close relationship with the debtor" } ]

[ { "docid": "18369550", "title": "", "text": "F.2d 657, 660 (7th Cir.1992). If the price is positive, the debt- or is solvent; if the price is negative, the debtor is insolvent. Id. A trustee may utilize appropriate means to prove insolvency, including balance sheets, financial statements, appraisals, expert reports, and other affirmative evidence. Freeland v. Enodis Corp. (In re Consolidated Indus. Corp.), 292 B.R. 354, 360 (N.D.Ind.2002). 322 B.R. at 848-49. See also Nostalgia Network, Inc. v. Lockwood, 315 F.3d 717, 719 (7th Cir.2002) [“when a person .transfers money or property to another person without receiving anything in return, and the transferor is insolvent (or made insolvent by the transfer), the transfer is voidable even if there was no intent to hinder creditors.”]. With the foregoing principles in mind, the Court’s inquiry into the Debtor’s solvency begins. The question which the Court must determine under § 548(a)(l)(B)(ii)(I) is “what would a buyer be willing to pay for the debtors entire package of assets and liabilities?” Covey, 960 F.2d at 660; Matter of Xonics Photochemical, 841 F.2d at 199; Matter of Taxman Clothing Co., Inc., 905 F.2d 166 (7th Cir.1990). The Trustee argues that the Debtor’s own financial statements show it to be insolvent. Trustee’s Ex. 23 — Affidavit of Kenneth A. Manning Financial Records/Tax Returns. Paragraph “7X” of Trustee’s exhibit is a Net Worth Report as of April 25, 1999. It shows that the Debt- or had a negative balance of $344,309.07. A Cash Flow Report for the period of January 1, 1999 through April 25, 1999 shows a negative cash flow of $99.62. ¶ 7W. A Profit and Loss Statement covering the same period shows a negative balance of $40,218.17. ¶ 7V. A Balance Sheet shows that as of April 25, 1999, the Debtor was in the dark for $14,019.43. ¶ 7U. The Debtor’s financial situation was not better during the year of 1998. A Cash Flow Report shows a negative balance of $4,471.40. ¶ 7T. A Profit & Loss Statement for the same year shows a negative flow of $105,351.49. ¶ 7S. A Balance Sheet figure as of December 31, 1998 shows a negative balance" }, { "docid": "145193", "title": "", "text": "value of the property. Therefore, this foreclosure was not for a reasonably equivalent value in exchange for such transfer. In addition § 548(a)(2)(A) requires that the transfer occur on or within one year of petition and (a)(2)(B) — that the debtor was insolvent at the time of such transfer or was rendered insolvent as a result of such transfer. The foreclosure sale occurred on October 6,1982, and on October 29,1982 (23 days later) the debtor filed her petition. Thus, the transfer occurred well within one year of petition. In determining whether the debtor was insolvent or was rendered insolvent as a result of this foreclosure sale the court must turn to § 101(26) of the Code which defines insolvency. This section applies the balance sheet test for insolvency. See In re Perdido Bay Country Club Estates, Inc., 23 B.R. 36 at 42 (Bkrtcy.S.D.Fla.1982); In re Coleman, 21 B.R. 832 at 834-835 (Bkrtcy.S. D.Texas 1982). Simply stated, the debtor is insolvent if its debts are greater than its assets, at a fair valuation, exclusive of property exempted or fraudulently transferred. See 124 Cong.Rec. H 11,090 (Sept. 28,1978); S17,407 (Oct. 6, 1978). In the present case, the debtor’s schedule lists $26,000-plus in unsecured debt alone and further states that the debtor claims her exemptions and that the debtor has no interest in any property which exceeds in value the amounts exempted to the debtor. It is readily apparent that the debtor was insolvent at the time of the foreclosure sale. See generally In re Coleman, supra. The court concludes that the $15,044.79 paid by FNMA for the subject property at the foreclosure sale was not a reasonably equivalent value for said property which was worth $24,000 at the time of such transfer, and, accordingly, the debtor may avoid the transfer pursuant to § 548(a)(2) of the Bankruptcy Code of 1978. II. PREFERENTIAL TRANSFER Section 547(b) arms the trustee with the power to avoid any transfer of the debtor’s property if he can establish (1) that it was a transfer of the debtor’s property, (2) to or for the benefit of a creditor," }, { "docid": "17153672", "title": "", "text": "the time the obligations were incurred or the transfers made. The relevant time spans the period from December 23, 1998, through June 1, 1999. Under New Jersey law, a debtor is insolvent if “the sum of the debtor’s debts is greater than all of the assets, at fair valuation.” N.J. Stat. Ann. § 25:2-23(a). By way of comparison, the New Jersey definition is functionally similar to the definition of insolvency contained in Section 101(32) of the Bankruptcy Code that similarly requires assets to be valued at “fair value” for “balance sheet” insolvency purposes. The New Jersey statute further provides plaintiffs seeking to avoid a fraudulent transfer with a rebuttable presumption — a presumption of “equity insolvency” — that a debtor is insolvent if the debtor “is generally not paying his debts as they become due.” N.J. Stat. Ann. § 25:2 — 23(b). Under an equity insolvency analysis, ATN arguably was not paying its debts as they became due during the six months between the date the handwritten agreement was signed, December 23, 1998, and the date of the major transfers to the Allens, June 1, 1999. As such, under New Jersey law, ATN is presumptively insolvent during this approximately five month time period. The Allens argue, however, that, after the transfers, ATN resumed normal operations and its history of paying its bills on a timely basis. They contend that, even if ATN did go through a short period in which the company was not paying its bills timely, the presumption of equity insolvency is rebutted using a balance sheet insolvency analysis. As a starting point, all parties rely on the company’s audited financial statements prepared by Alloy, Sil-verstein, Shapiro, Adams, Mulford, & Co. (Defendants’ Exh. No. 73). On December 31, 1999, the auditors gave ATN a “clean” report. Even ATN’s expert opined that the audited financial statements were accurate. The statements reflect that ATN had a slight negative net worth, or, stated differently, that its liabilities exceeded its assets by $216,144. Next, all parties agree that certain adjustments are needed to these audited financial statements to reach a fair valuation" }, { "docid": "2381337", "title": "", "text": "presumption of insolvency does not apply, Trustee is required to prove by a preponderance of the evidence that Prime was insolvent at the time it remitted the Transfers to Defendants in order to prevail on the preference claims. 11 U.S.C. § 547(g). Section 101(32)(A) of the Code defines insolvency as a state when an entity’s debts are greater than the fair value of the entity’s property. Thus, in determining whether the debtor was insolvent, the court should examine the debtor’s balance sheet to determine whether the value of its assets were greater than its liabilities at the time of the transfer in question. Silverman Consulting, Inc. v. Hitachi Power Tools, U.S.A., Ltd. (In re Payless Cashways, Inc.), 290 B.R. 689, 699 (W.D.Mo.2003). Here, Trustee argues that the Balance Sheet and the Default Notices conclusively demonstrate that Prime was insolvent at all times relevant to the dispute in question. We disagree. As the bankruptcy court properly observed, the Default Notices simply have no bearing on the value of Prime’s assets or liabilities as of the date of the Transfers. The Default Notices, therefore, are irrelevant to the question of whether Prime was insolvent at the time it made the Transfers. The Balance Sheet reflects that the book value of Prime’s assets exceeded its liabilities by $164,000.00 as of April 1, 2001. The Balance Sheet, therefore, reflects that Prime was solvent as of April 1, 2001. Trustee argues, however, that his testimony at trial established that Prime was insolvent at the time it remitted the Transfers. The bankruptcy court correctly rejected this argument for two reasons. First, Trustee undertook his analysis of the condition of Prime’s assets and liabilities in early 2003, approximately two years after Prime remitted the Transfers in question. Thus, the bankruptcy court correctly concluded that Trustee’s testimony was simply not probative to the question of whether Prime was insolvent in early 2001, the relevant time frame at issue here. The second reason why Trustee’s testimony fails to establish that Prime was insolvent is that Trustee is not a financial expert. The plaintiff, in order to establish insolvency, must" }, { "docid": "23163905", "title": "", "text": "day the debtor transfers its property are insiders at the time of transfer. However, neither the literal language of the statute nor its legislative history require such a result. Accord, In re Vaniman Intern., Inc., 22 B.R. 166, 189 (Bankr.E.D.N.Y.1982). The longer period of preference vulnerability for insiders was enacted in part to assure that those who control the debtor could not use this control to frustrate the Code’s preference policies by delaying the date the debtor files a bankrupt cy petition. 2 Norton § 32.29. Section 547(b)(4) was not intended to allow those who are insiders to escape the insider provisions by delaying instead the date the debtor transfers its property. A creditor who is an insider at the time the transfer of the debtor’s property is arranged is an insider at the time of the transfer. In re Vaniman International, Inc., 22 B.R. at 189; Hostellerie d’Argentevil, Inc., 42 B.R. 292, 293 (S.D.Fla.1984). INSOLVENCY The defendant next asserts that the transfer cannot be set aside because the debtor was not insolvent at the time of the transfer. The defendant alleges that at the time of the transfer the debtor’s assets (mainly inventory and receivables) were worth $7 million dollars and exceeded the debtor’s liabilities by approximately $1.5 million. As evidence of the valuation of the debtor, the defendant has submitted a balance sheet, purportedly prepared on March 31, 1982 in accordance with “generally accepted accounting principles.” The balance sheet contains no information concerning how the assets were valued. Section 101(29) provides that a corporate debtor is insolvent if its debts exceed the “fair value” of its assets. Fair value is determined by estimating what the debtor’s assets would realize if sold in a prudent manner in current market conditions. 2 Collier on Bankruptcy ÍI 101.26, p. 101-56 (15th ed. 1985). Accord, In re Rubin, 661 F.2d 979, 995 (2d Cir.1981). Asset values carried on a balance sheet, even if derived in accordance with “generally accepted accounting principles,” do not necessarily reflect fair value: “ ‘Generally accepted accounting principles’ are not synonymous with any specific [valuation] policy.” Pittsburgh Coke" }, { "docid": "1338941", "title": "", "text": "sheets. The inventory value as listed on the April 30, 1979 statement was not based on an actual physical inventory but was a figure derived from the August 1978 inventory plus the costs of growing the products, labor, and overhead, minus the estimated costs of items sold during the period from August 1978 through April 1979. Also listed as an asset on the balance sheet is an $8251.50 item for “relocation costs deferred”, which according to a note to the August 1978 balance sheet is the value of leasehold improvements abandoned at the Wayland location amortized over the term of the Beverly lease. The liability side of this balance sheet omits entries which were included on the 1978 balance sheet: rent, (approximately $2000 on the 1978 statement) and customer deposits (approximately $5000 on the 1978 balance sheet). There was no evidence presented as to why these items were omitted from the 1979 balance sheet. The debtor’s August 31, 1979 balance sheet (Plaintiff’s Exhibit 5), shows a negative net worth of $87,042.46, assets being valued at $113,673.47 and liabilities of $200,-715.93. It is undisputed that Briden, an insider within the meaning of 11 U.S.C. Section 101(25) and a creditor of the estate, received $57,637.35 from the debtor on account of antecedent indebtedness within the year prior to filing the petition, and that this is more than he would receive as a distribution in a Chapter 7 case. The parties agree that the only issues presented are: whether the debtor was insolvent at the time of the transfers and whether Briden had reasonable cause to believe that the debtor was insolvent at the time of the transfers. INSOLVENCY Insolvency is defined in 11 U.S.C. Section 101(26) as an entity’s “financial condition such that a sum of such entity’s debts is greater than all of such entity’s properties, at a fair valuation ....”. Thus, under the Bankruptcy Code, insolvency is determined by the traditional balance sheet test. Matter of Bishop, 17 B.R. 180 (Bkrtcy.N.D.Ga.1982). The concept of fair valuation is not synonymous with liquidation value; fair valuation has been interpreted to mean the" }, { "docid": "17153671", "title": "", "text": "the WATS claims. Carpenter perceived the liability as imposing a significant legal burden on him. Lastly, the court would find that the settlement was negotiated on an arms-length basis between the parties. ATN received substantial value simply because its two primary shareholders were no longer fighting. The resolution of the insider dispute resulted in Carpenter returning his focus exclusively to ATN’s operations and profitability. Although this last factor is more difficult to quantify, the company’s future depended on a resolution of the litigation. In the end, the court concludes that ATN received sufficient reasonably equivalent benefits, both direct and indirect, in exchange for the transfers made by ATN. ATN has failed to prove that the transfers in question were constructively fraudulent under N.J. Stat. Ann. § 25:2— 25. Therefore, Counts 5 and 6 fail. Insolvency As to Counts 1 and 2, in order to succeed in avoiding the transfers to the Allens and their agents as constructively fraudulent under Section 25:2-27 of the New Jersey Statutes, the Allens must prove that ATN was insolvent at the time the obligations were incurred or the transfers made. The relevant time spans the period from December 23, 1998, through June 1, 1999. Under New Jersey law, a debtor is insolvent if “the sum of the debtor’s debts is greater than all of the assets, at fair valuation.” N.J. Stat. Ann. § 25:2-23(a). By way of comparison, the New Jersey definition is functionally similar to the definition of insolvency contained in Section 101(32) of the Bankruptcy Code that similarly requires assets to be valued at “fair value” for “balance sheet” insolvency purposes. The New Jersey statute further provides plaintiffs seeking to avoid a fraudulent transfer with a rebuttable presumption — a presumption of “equity insolvency” — that a debtor is insolvent if the debtor “is generally not paying his debts as they become due.” N.J. Stat. Ann. § 25:2 — 23(b). Under an equity insolvency analysis, ATN arguably was not paying its debts as they became due during the six months between the date the handwritten agreement was signed, December 23, 1998, and the" }, { "docid": "10176638", "title": "", "text": "the Chapter 7 case, liquidated the assets and placed the funds in a deposit account. Plaintiff filed her complaint under § 362 to enforce her security interest against this fund. Hearing on the matter was duly held on August 19, 1981. At the trial, the intervening creditors raised the defense that the grant of the security interest to the plaintiff was a preference which should be avoided under § 547 of the Bankruptcy Code. Section 547(b) of the Code presents five (5) criteria which are to be applied to' a transfer of property of the debtor, and provides that the trustee may avoid any transfer of property of the debtor which satisfies all five criteria. The criteria are: (1) the transfer must have been to or for the benefit of a creditor, (2) for or on account of an antecedent debt, (3) made while the debtor was insolvent, (4) on ninety days before the date of the filing of the petition; or within one year before the date of the filing if the creditor was an insider at the time of the transfer and had reasonable cause to believe that the debtor was insolvent, and (5) which enabled the creditor to receive more than he would have received under the distribution provisions of the Code. In this case, the granting of the security interest and the subsequent perfection thereof constitutes the transfer which is allegedly voidable under § 547(b). The grant of a security interest by a debtor is a “transfer” within the definition of § 101(40) and § 547(b). Matter of Vecco Construction Industries, 9 B.R. 866 (Bkrtcy., E.D.Va.1981); In re American Lumber Co., 7 B.R. 519 (Bkrtcy.,D.Minn. 1979). There is no question that the transfer in this case was on account of the ante- cedent debt created by plaintiff’s loan to the debtor. Counsel for the plaintiff asserted that the debtor was not insolvent at the time of the transfer; and, thus, a crucial element of a preference was missing. The debtor’s balance sheets, however, showed that the company had a negative net worth for the year before" }, { "docid": "1191115", "title": "", "text": "within the 90 day preference period. Section 547(b)(3) requires that the debtor be insolvent at the time of the transfer. In response to the problems engendered by requiring proof of insolvency under the Act, Congress included Section 547(f) in the Bankruptcy Code, which states: (f) For the purpose of this section, the debtor is presumed to have been insolvent on and during the 90 days immediately preceding the date of the filing of the petition. 11 U.S.C. § 547(f). However, the presumption of insolvency applies only during the ninety days immediately preceding the date of the filing of the petition. Hence, because the Trustee, in Counts I and Y, is challenging transfers to an insider that occurred more than ninety days before the filing of the petition, the presumption is of no apparent circumstance. In re Camp Rockhill, Inc., 12 B.R. 829, 833 (Bankr.E.D.Pa.1981). Therefore, the Trustee must establish the debtor’s insolvency on the dates the transfers outside the ninety-day period were made. Id. Insolvency is defined by § 101(26) of the Code, which states: (26) “insolvent” means— (A) with reference to an entity other than a partnership, financial condition such that the sum of such entity’s debts is greater than all of such entity’s property, at a fair valuation, exclusive of— (i) property transferred, concealed, or removed with intent to hinder, delay, or defraud such entity’s creditors; and (ii) property that may be exempted from property of the estate under section 522 of this title; ... 11 U.S.C. § 101(26)(A) (currently codified at 11 U.S.C. 101(31)(A)). This section incorporates the “balance sheet” test of insolvency. In other words, a debtor is insolvent when the fair value of his liabilities exceeds the fair value of his assets. In re Camp Rockhill, Inc., supra, 12 B.R. at 833, citing, National Buy-Rite, Inc., 7 B.R. 407, 410 (Bankr.N.D.Ga.1980). At trial, the Trustee produced for testimony, Robert Boory (“Boory”), senior accountant with the accounting firm of Be-nen, Saidel & Company. Boory is the accountant who was in charge of compiling the debtor’s books and records and preparing the debtor’s financial statements and income" }, { "docid": "18794491", "title": "", "text": "is reported when earned, even though not received, and expenses are deducted when incurred, even though not paid. See Baird v. Commissioner of Internal Revenue, 256 F.2d 918, 924 (7th Cir.1958). Included in the tax return is a balance sheet which reflects the financial condition of the debtor as of the end of the tax year, December 31, 1983. This balance sheet shows the following assets and liabilities: Thus, as of December 31, 1983, the balance sheet showed a net equity of $76,374.00. The proof supported the following adjustments in the balance sheet to reflect the condition of the debtor at the time of the transfers in question on March 8, 1984: Assets Cash 57,611.80 Accounts Receivable 25,000.00 Liabilities Salary payable 100,000.00 Thus, assuming no major changes in the other figures reflected on the December 1983 balance sheet, the adjustments supported by the proof would result in assets of $263,816.80 and liabilities increased by $100,000.00 (i.e. to $293,755.00), resulting in a negative net equity. In short, including the debtor’s $100,000.00 salary liability to defendant would cause the debtor’s liabilities to exceed its assets. Most significantly, however, it is absolutely clear that at a minimum the transfers to defendant effected by the March 1984 stock purchase agreement (i.e. the transfer of $57,611.80 in cash and the forgiveness of the $96,739.00 in loans to stockholders) would have rendered the debtor indisputably insolvent. The transfers decreased the debtor’s assets to some $109,-466.00 in the face of liabilities clearly and substantially exceeding that amount. The court is well satisfied that the trustee has met his burden of proof in establishing that the debtor was either insolvent or was rendered insolvent as a result of the transfers in question. THE TRUSTEE’S THIRD PARTY BENEFICIARY CLAIM In Eidson v. Hardware Mutual Casualty Co., 191 Tenn. 430, 234 S.W.2d 836 (1950) it is said: ‘In Tennessee the doctrine is firmly established that the beneficiary, though not a party to the contract, may maintain an action directly in his own name against the promisor, where such promise between the promisor and the prom-isee is made upon sufficient consideration" }, { "docid": "2934454", "title": "", "text": "The loans were repaid, with interest, in three payments: (1) $3,450,000 was remitted in satisfaction of the $3 million promissory note on December 1, 2000; (2) $1,200,000 was remitted in reduction of the $2 million promissory note on January 16, 2001; and (3) $1,000,000 was remitted in satisfaction of the $2 million note on January 22, 2001. All three payments were made by wire transfer. WBI issued unaudited, internal balance sheets showing (a) a positive net worth of $129,588,000 as of November 30, 2000; (b) a positive net worth of $14,409,000 as of December 31, 2000; and (c) a negative net worth of $13,000 as of January 31, 2001. III. Legal Discussion A. Introduction Count I of the complaint seeks the avoidance and recovery of the three wire transfers as preferential transfers. Preference avoidance is governed by § 547 of the Bankruptcy Code, Subsection (b) of which contains the elements of the plaintiffs prima facie case: Except as provided in subsection (c) of this section, the trustee may avoid any transfer of an interest of the debtor in property— (1) to or for the benefit of a creditor; (2) for or on account of an antecedent debt owed by the debtor before such transfer was made; (3) made while the debtor was insolvent; (4) made— (A) on or within 90 days and one year before the date of the filing of the petition; or (B) between 90 days and one year before the date of the filing of the petition, if such creditor at the time of such transfer was an insider; and (5) that enables such creditor to receive more than such creditor would receive if— (A) the case were a case under chapter 7 of this title; (B) the transfer had not been made; and (C) such creditor received payment of such debt to the extent provided by the provisions of this title. The Defendant’s answer admits all of these elements except the third, but has asserted the “ordinary course of business” exception to preference avoidance set forth in Subsection (c)(2) of the statute. Accordingly, the court must" }, { "docid": "14782670", "title": "", "text": "adviser to Allen, arranged for the sister company to lend $250,-000 to Mama D’Angelo. Mama D’Angelo later repaid this loan in two installments: $150,000 on July 25, 1989, and $100,000 on September 15, 1989. These two payments totalling $250,000 constitute the basis of this litigation. II. The trustee sought to avoid the two loan repayments as “preferential transfers” under 11 U.S.C. § 547(b). To avoid a transfer the trustee must establish that a transfer was made to the creditor on account of an antecedent debt while the debtor was insolvent and within 90 days of the filing of the petition or within one year, if the transferee was an insider. 11 U.S.C. § 547(b)(4)(B). The purposes of this section are to discourage actions by creditors that might prematurely compel the filing of a petition and to secure an equal distribution of assets among creditors of like class. Farmers Bank of Clinton, Missouri v. Julian, 383 F.2d 314, 327 (8th Cir.), cert. denied, 389 U.S. 1021, 88 S.Ct. 593, 19 L.Ed.2d 662 (1967). All elements of Section 547(b) must be proven before a transfer will be avoided. The absence of any one of the elements constituting a voidable preference negates the trustee’s claim. Only the element of insolvency is disputed here. To avoid a transfer as preferential, the plaintiff must prove that the debtor was insolvent at the time the allegedly preferential transfer occurred. 11 U.S.C. § 547(b)(3). The Bankruptcy Code defines the term insolvent as a “financial condition such that the sum of such entity’s debts is greater than all of such entity’s property, at a fair valuation....” 11 U.S.C. § 101(32)(A). Courts often refer to this test as a “balance sheet” test. See Porter v. Yukon Nat’l Bank, 866 F.2d 355, 357 (10th Cir.1989); In re Bellanca Aircraft Corp., 56 B.R. 339, 385 (Bankr.D.Minn.1985), aff'd in relevant part, 850 F.2d 1275 (8th Cir.1988). At issue here is the solvency of the debt- or’s assets on the dates of the loan payments to Scientific. Courts often utilize the well-established bankruptcy principles of “retro-jection” and “projection,” which provide for the use" }, { "docid": "10176640", "title": "", "text": "the transfer. As this Court has stated in a recent case: ... the trustee must establish the debt- or’s insolvency on the date the transfer was made. . . . Insolvency is determined by a “balance sheet” test. In other words a debtor is insolvent when his liabilities exceed his assets. In re Camp Rockhill, Inc., 12 B.R. 829 (Bkrtcy.,E.D.Pa.l981) at 833. The debtor’s balance sheet showed a negative equity and a continuous operation at a loss. The Court is satisfied that Gruber Bottling Works was indeed insolvent at the time of the transfer. It is admitted that the plaintiff is an insider as defined under § 101(25) of the Code. She is a relative of an officer of the debtor. Pursuant to § 101(25)(B)(VI), Mrs. Margraff is, therefore, a statutory insider. As a result of having such status, she is subject to the one year period for avoidance of transfers. The transfer in this case was within this period. The key issue, which the Court must decide, is whether or not the plaintiff had reasonable cause to believe the debtor was insolvent as required by the insider prefer- „ ence provision. The Court finds that the defendants failed to establish that plaintiff had the requisite reasonable cause to believe that the debtor was insolvent at the time of the transfer. The Trustee has failed to establish that the creditor had reasonable cause to believe the debtor was insolvent at the time of the transfer. In determining whether a creditor had reasonable cause, several general propositions emerge from the cases and commentaries but each case, ultimately, must be decided on its own facts. Harrison v. Merchants National Bank, 124 F.2d at 873; Engelkes v. Farmers Co-Operative Co., 194 F.Supp. 319 (N.D.Iowa 1961); Dean v. Planters National Bank, 176 F.Supp. 909, 913 (E.D.Ark.1959); 3 Collier on Bankruptcy ¶ 60.52 at p. 1055 (14th ed. 1976). The Code requires neither actual knowledge of nor belief in the debtor’s insolvency. All that is necessary is reasonable cause to believe the debtor is insolvent. However, it is important to note that mere suspicion of" }, { "docid": "7436428", "title": "", "text": "capital; ... Of the funds converted by Buchanan, $42,007.48 was taken in the year before the bankruptcy filing. It is obvious that the debtors were insolvent during this year, according to the “balance sheet test” of insolvency. See 11 U.S.C. § 101(26)(A); Fulghum Contruction, 7 B.R. at 632. In mid-1981, liabilities greatly exceeded assets; by the date of the petition, the corporations had lost $4 million more. The Court need not see financial statements at various intervals during this time period in order to infer that the debtors were continuously insolvent. Lancaster v. Bank of Washington Cty. (In re Tuggle Pontiac-Buick-GMC, Inc.), 31 B.R. 49, 52 (Bkrtcy. E.D.Tenn.1983). The corporations having never been adequately capitalized, the trustee also meets the conditions of subsection (ii). As for Vogt, during the year in question she received a total of $990,941.44. However, since over the total period of her involvement she converted only $263,-141.65, the amount she received in the final year represents both fraudulent conveyances, and the repayment of past advances. Therefore, the total funds recoverable from Vogt under § 548 is the same as the figure for conversion — $263,141.65; the balance represents preferences. The trustee seeks to recover as preferences these funds paid to Clair Vogt in the last year before bankruptcy, as well as transfers to the Menicuccis and their corporation, Menieucci Insurance Services, Inc. Under Bankruptcy Code Section 547(b) the trustee may avoid any transfer of an interest of the debtor in property: (1) to or for the benefit of a creditor; (2) for or on account of an antecedent debt; (3) while the debtor was insolvent; (4) made within 90 days before the date of the filing of the petition, or between 90 days and one year if the creditor was an insider and had reasonable cause to believe the debtor was insolvent at the time of the transfer; and (5) that enables the creditor to receive more than it would have received if the transfer had not been made and the debtor’s estate were liquidated according to the provisions of the Bankruptcy Code. As this Court" }, { "docid": "18907031", "title": "", "text": "date of the transfer, the Court finds there is little dispute that the Debtor was indeed insolvent. Insolvency under the Bankruptcy Code is where the fair value of the debtor’s non-exempt assets amount to less than the amount of the debtor’s liabilities. 11 U.S.C. § 101(32)(A). Courts employ a balance sheet test to compare the debtor’s debts with the debtor’s assets. See Matter, of Xonics Photochemical, Inc., 841 F.2d 198 (7th Cir.1988); In re Vurchio, 107 B.R. 363, 365 (Bankr.M.D.Fla.1989). Further, courts often rely on unaudited financial statements as the best available evidence of insolvency. See e.g., In re Roco Corp., 701 F.2d 978, 983 (1st Cir.1983). In this case, FBN’s unaudited balance sheet and profit and loss statement for the period ending October 9, 1990, clearly demonstrate that at the time of the transfer, FBN’s liabilities exceeded its assets by over $3 million. Also, Anthony Basile, a certified public accountant and the president of FBN, testified that as of the time of the transfer FBN was no longer in business, had no income, had limited assets and that its liabilities exceeded its assets by $3 million. Further, the Defendants have not attempted to rebut the evidence that FBN was insolvent. Therefore, the Court finds that at the time for the transfer, in September 1990, FBN was insolvent. CLAIMS FILED IN THE BANKRUPTCY CASE The last argument to address is the Defendant’s contention that insiders of the Debtor will improperly benefit from the avoidance of a fraudulent transfer. According to the Defendants, SFSA filed a claim in this bankruptcy case which constitutes 80% of all the claims filed. Therefore, if the $1.4 million transferred to River Bank is avoided and returned to the estate, upon a distribution the owners of SFSA, Anthony Basile, SIG Partners, and Quest Equities, would benefit. Despite the Defendants argument, there is no requirement in Section 548 that the Trustee may not avoid a transfer if it happens to indirectly benefit the insiders of the Debtor. On the contrary, Section 548 contemplates that the Trustee could avoid a fraudulent transfer even if it had the effect" }, { "docid": "10176639", "title": "", "text": "an insider at the time of the transfer and had reasonable cause to believe that the debtor was insolvent, and (5) which enabled the creditor to receive more than he would have received under the distribution provisions of the Code. In this case, the granting of the security interest and the subsequent perfection thereof constitutes the transfer which is allegedly voidable under § 547(b). The grant of a security interest by a debtor is a “transfer” within the definition of § 101(40) and § 547(b). Matter of Vecco Construction Industries, 9 B.R. 866 (Bkrtcy., E.D.Va.1981); In re American Lumber Co., 7 B.R. 519 (Bkrtcy.,D.Minn. 1979). There is no question that the transfer in this case was on account of the ante- cedent debt created by plaintiff’s loan to the debtor. Counsel for the plaintiff asserted that the debtor was not insolvent at the time of the transfer; and, thus, a crucial element of a preference was missing. The debtor’s balance sheets, however, showed that the company had a negative net worth for the year before the transfer. As this Court has stated in a recent case: ... the trustee must establish the debt- or’s insolvency on the date the transfer was made. . . . Insolvency is determined by a “balance sheet” test. In other words a debtor is insolvent when his liabilities exceed his assets. In re Camp Rockhill, Inc., 12 B.R. 829 (Bkrtcy.,E.D.Pa.l981) at 833. The debtor’s balance sheet showed a negative equity and a continuous operation at a loss. The Court is satisfied that Gruber Bottling Works was indeed insolvent at the time of the transfer. It is admitted that the plaintiff is an insider as defined under § 101(25) of the Code. She is a relative of an officer of the debtor. Pursuant to § 101(25)(B)(VI), Mrs. Margraff is, therefore, a statutory insider. As a result of having such status, she is subject to the one year period for avoidance of transfers. The transfer in this case was within this period. The key issue, which the Court must decide, is whether or not the plaintiff had" }, { "docid": "1869055", "title": "", "text": "days but within a year of the bankruptcy. c.The Transfer was for or on Account of an Antecedent Debt. The transfer was made for or on account of an antecedent debt owed by Debtor Food & Fibre before the transfer was made. The antecedent debt was the loans made from Jonovich to Food & Fibre in October, 1990 as well as additional loans which Jonovich testified he had made. Although there was no documentary evidence of such loans, Jonovich’s testimony on this point is credible in light of the nature of his business, its thin capitalization, and its constant need for cash. d. Jonovich Received More than he would have in a Chapter 7. The evidence introduced at trial showed that Jonovich, an unsecured insider creditor of this virtually assetless company, received from Food & Fibre more than he would have in the hypothetical Chapter 7 liquidation. e. The Transfer Involved an Interest of the Debtor in Property. The concept of property of the estate under Bankruptcy Code section 541(a) is expansive. Begier v. I.R.S., 496 U.S. 53, 58-59, 110 S.Ct. 2258, 2262-63, 110 L.Ed.2d 46, 56-57 (1990). It is undisputed that the money Food & Fibre paid Jonovich was property of the estate. f.The Transfer was made when the Debtor was Insolvent. Insolvency is the only element necessary to the finding of preference that J.S. Stephens seriously contests. The presumption of 11 U.S.C. § 547(g), that the debtor was insolvent during the 90 days immediately preceding the date of the filing of the bankruptcy petition, is of no help to the Trustee here, where the transfer occurred outside the 90-day window. The burden therefore remains on the Trustee to establish the Debt- or’s insolvency on the date the transfer was made. In re Camp Rockhill, Inc., 12 B.R. 829, 833 (Bankr.E.D.Pa.1981). Insolvency in a preference setting is determined by a balance sheet test, comparing the fair value of the Debtor’s assets at the time of the transaction with the Debtor’s liabilities of the same date. 11 U.S.C. § 101(32)(A); Rockhill, 12 B.R. at 833, 834. The Debtor was, as" }, { "docid": "3839699", "title": "", "text": "a creditor, i.e., DeFranco. The Court thus is satisfied that the elements of section 547(b)(1) have been met. Section 547(b)(3) further requires that the Debtor be insolvent at the time of the transfer. 11 U.S.C. § 547(b)(3). Section 547(b)(4), in turn, states a presumption of the Debtor’s insolvency for any transfer on or within 90 days before the date of filing. 11 U.S.C. § 547(b)(4). The last three of the four payments at issue occurred after December 31, 1983, which is the ninetieth day prior to the date of filing on March 30, 1984. This means that a statutory presumption arises that the Debtor was insolvent at the times of these transfers. See supra notes 1-2 and accompanying text. The Court is satisfied that this statutory presumption meets the requirement of section 547(b)(3) and that the Debtor was insolvent at the time of each of the last three transfers. The Trustee argues that the Debtor was insolvent during the first transfer both under the “insider” provision of section 547 and under the balance sheet test. Neither of these arguments is persuasive to the Court. The “insider” provision of section 547(b)(4)(B), which extends the presumption of insolvency to one year prior to filing, is inapplicable in this case. That provision was part of the 1984 Bankruptcy Amendments Act, and § 553(a) of that Act explicitly provides that the amendment is effective only as to cases filed after October 8, 1984. P.L. 98-353, § 553(a). Accordingly, the March 30, 1984 filing date for this action makes the 1984 “insider” amendment irrelevant. The Trustee, therefore, retains the burden of showing the Debtor’s insolvency on the date of the first transfer, unaided by any statutory presumption. The Trustee asserts in his memorandum that use of the balance sheet test shows that the Debtor was insolvent during the entire 105 day period prior to filing, including the 105th day, when the first payment was made. In support of this the Trustee notes that at the time of filing the Debtor had assets equalling $50,031 and liabilities equalling $214,853.08. Trustee’s Motion for Summary Judgment (filed April" }, { "docid": "4759589", "title": "", "text": "debts is greater than all of such entity’s property, at a fair valuation. This standard is traditionally characterized as the “balance sheet” test of insolvency. In re Gruber Bottling Works, Inc., supra; In re National Buy-Rite, Inc., 7 B.R. 407 (Bkrtcy.N.D.Ga.1980); see generally 4 L. King Collier on Bankruptcy ¶ 547.26, at 547-94 (15th ed. 1983). The burden of proof on insolvency, as well as each element of a preferential transfer, rests with the trustee. In re Denaburg, 7 B.R. 274 (D.C.N.D.Ala.1980); see also American National Bank & Trust Co. of Chicago, Illinois v. Bone, 333 F.2d 984, 987 (8th Cir.1964). The record of this ease demonstrates that proof of insolvency is not clear, but if the debtor was not solvent the bank had no reasonable cause to believe it was not. Only one financial statement was tendered to the bank and it was made as of February 1, 1980. This statement showed the debt- or’s net worth to be $101,500. The various loans advanced to the debtor were apparently made without reviewing the debtor’s financial condition, nor did the financial status of the debtor appear important to the bank. In addition, an unaudited balance sheet as of March 31, 1982, offered by the trustee establishes the debtor’s total equity to be $656,223.36. Based on this financial data and the oil and gas engineering report used by the debtor in preparing his bankruptcy schedules showing reserve values of some $3.7 million, there has been demonstrated no reasonable cause to believe the debtor insolvent. The Trustee asserts next that the bank was an “insider” as that term is used for preference purposes in § 547. The Code at 11 U.S.C. § 101(25) defines an insider in the context of corporations as: “(B) if the debtor is a corporation (i) director of the debtor; (ii) officer of the debtor; (iii) person in control of the debtor; (iv) partnership in which the debtor is a general partner; (v) general partner of the debtor; or (vi) relative of a general partner, director, officer, or person in control of the debtor;” The Trustee supports his" }, { "docid": "13731903", "title": "", "text": "Debtor was insolvent; —the transfer was made within 90 days of the filing of the petition. Further, the Court finds that as a matter of law the transfer of the accounts receivable to the Landlord was not fraudulent. Therefore, on that issue the Court enters summary judgment in favor of the Landlord. DISCUSSION Preferential Transfer Section 547 allows a trustee to recover certain transfers made by a Debtor pre-petition. The essential elements of a preferential transfer are: (1) a transfer of an interest of the debtor in property; (2) to or for the benefit of a creditor; (3) for or on account of an antecedent debt; (4) made while the debtor was insolvent; (5) made within 90 days of the filing of the petition or between ninety days and one year if the transferee was an “insider”; and (6) that enables such creditor to receive more than the creditor would otherwise receive in a liquidation ease. 11 U.S.C. § 547(b). The Trustee has the burden of proving the avoidability of a preferential transfer. 11 U.S.C. § 547(g). The Landlord does not contest that the Debtor’s assignment of its accounts receivable constituted a “parting with” or a “transfer” of an interest of the Debtor in property. See 11 U.S.C. § 101(58)[54]. Further, the Landlord does not dispute that the accounts receivable were transferred “to or for the benefit” of the Landlord. The issues of insolvency and whether a preference was made within 90 days of the filing of the Debtor’s bankruptcy petition are not in serious dispute. The relevant date to determine insolvency is the date of the transfer. In re Camp Rockhill, Inc., 12 B.R. 829, 833 (Bankr.E.D.Pa.1981). In order to establish that a Debtor was insolvent, courts generally use a balance sheet test. Matter of Xonics Photochemical, Inc., 841 F.2d 198, 200 (7th Cir.1988). • On August 31, 1990, the date of the transfer, the Debtor’s liabilities exceeded its assets by $4,766,134.32. Therefore, the Court finds that the Debtor was insolvent. Turning to the question of whether the accounts receivable were transferred within 90 days of the filing of" } ]

[ { "docid": "343511", "title": "", "text": "CANBY, Circuit Judge: Leland Seyler, an enrolled member of the Coeur d’Alene Indian tribe, appeals the district court’s entry of summary judgment against him in this Federal Tort Claims Act (FTCA) suit. Seyler was injured while riding as a passenger on a friend’s motorcycle. The ride was taken for pleasure. The motorcycle failed to negotiate a turn on a road maintained by the Bureau of Indian Affairs (BIA). Seyler claimed that the road was negligently designed, maintained and marked by the BIA. In a published memorandum opinion and order, the district court ruled that the United States was not liable for damages arising from Seyler’s motorcycle accident on the Coeur d’Alene Indian Reservation because (1) the government is immune from suit under Idaho’s recreational use statute, Idaho Code § 36-1604; and (2) the government is immune from suit under the discretionary function exception to the FTCA, 28 U.S.C. § 2680(a). Seyler v. United States, 643 F.Supp. 1027, 1028-29 (D.Idaho 1986). We review the district court’s ruling de novo. O’Neal v. United States, 814 F.2d 1285, 1287 (9th Cir.1987). We reverse. DISCUSSION 1. The recreational use statute The Federal Tort Claims Act (FTCA) authorizes suits against the United States for damages for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. 28 U.S.C. § 1346(b). The FTCA also provides that the United States shall be liable for tort claims “in the same manner and to the same extent as a private individual under like circumstances.” 28 U.S.C. § 2674. “[T]he test established by the Tort Claims Act for determining the United States’ liability is whether a private person would be responsible for similar negligence under the laws of the State where the acts occurred.” Rayonier Inc. v. United States, 352 U.S. 315, 319, 77 S.Ct." } ]

[ { "docid": "15820159", "title": "", "text": "had been undertaken without written notices to the plaintiffs, .were unlawful and gave rise to a cause of action against the United States under the FTCA. Addressing itself to the discretionary function exception’s applicability, the Court stated: “Nor can the second portion of (a) exempt the Government from liability. We are here not concerned with any problem of a ‘discretionary function’ under the Act, see Dalehite v. United States, supra. These acts were wrongful trespasses not involving discretion on the part of the agents, and they do give rise to a claim compensable under the Federal Tort Claims Act.” 351 U.S. at 181, 76 S.Ct. at 752, 100 L.Ed. at 1074. Hatahley was closely followed by Rayonier, Inc. v. United States, 1957, 352 U.S. 315, 77 S.Ct. 374, 1 L.Ed.2d 354. Rayonier was an action under the FTCA for losses sustained by landowners allegedly as the result of the negligence of federal employees in permitting a forest fire to originate on federal land and in failing to act with due care in putting the fire out. The Supreme Court, in an opinion by Mr. Justice Black, held that under the Federal Tort Claims Act the United States would be liable to the plaintiffs for losses sustained by reason of the United States Forest Service’s negligence in fighting a forest fire if, as alleged in the complaint, the law of the State of Washington would impose liability on private persons or corporations under similar circumstances. Although the Government in Rayonier did not assert the defense of discretionary function, it did rely upon that portion of the Dalehite decision which held that the Tort Claims Act had not altered the usual rule that an alleged failure of public firefighting forces to properly perform their duties does not create private actionable rights. Rayonier also made clear that the liability of the United States in tort is not restricted by concepts imported from the law of municipal corporations of a distinction between negligence in performing acts in the government’s “proprietary” capacity and negligence when it acts in a “uniquely governmental” capacity, saying, at 352" }, { "docid": "23307618", "title": "", "text": "the public of danger and thereby induces reliance must perform his ‘good Samaritan’ task in a careful manner.” Id. at 64-65, 76 S.Ct. 122. “The Coast Guard need not undertake the lighthouse service. But once it exercised its discretion to operate [the] light ... and engendered reliance on the guidance afforded by the light, it was obligated to use due care to make certain that the light was kept in good working order ....” Id. at 69, 76 S.Ct. 122. Because of the existence of this private analogue, “[i]f the Coast Guard failed in its duty and damage was thereby caused to petitioners, the United States is liable under the Tort Claims Act.” Id. Rayonier Inc. v. United States, 352 U.S. 315, 77 S.Ct. 374, 1 L.Ed.2d 354 (1957) signaled a further narrowing of the Court’s view of Feres’s reasoning. There, the plaintiffs alleged that their property was damaged by the United States Forest Service’s negligent failure to control a forest fire. Id. at 315-16, 77 S.Ct. 374. The government argued that there was no private analogue because “neither the common law nor the law of [the State of] Washington imposes liability on municipal or other local governments for the negligence of their agents acting in the ‘uniquely governmental’ capacity of public firemen.” Id. at 318-19, 77 S.Ct. 374. The Court rejected the government’s argument because the relevant consideration is whether state law would impose liability on a “private person” rather than on a “municipal corporation or other public body” for “similar negligence” as allegedly committed by the government in the case at hand. Id. at 319, 77 S.Ct. 374. In doing so, the Court disapproved of Dalehite v. United States, 346 U.S. 15, 43-44, 73 S.Ct. 956, 97 L.Ed. 1427 (1953), which had relied on Feres and the common law “immunity of ... public bodies for injuries due to fighting fire” to conclude that there was no private analogue to the Coast Guard’s firefighting efforts, id. at 44, 73 S.Ct. 956. See Rayonier, 352 U.S. at 319, 77 S.Ct. 374. The Court remanded for consideration of whether state law" }, { "docid": "23129307", "title": "", "text": "106 (1967). The Court, however, narrowed the Dalehite guidelines in later opinions. In Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955) , the Court held that the decision to operate a lighthouse was discretionary, but once the decision was made there was no discretion to operate the light negligently. Similarly, in Rayonier Inc. v. United States, 352 U.S. 315, 77 S.Ct. 374, 1 L.Ed.2d 354 (1956) , the Court found an actionable claim against the government for the negligence of forest service employees in fighting a forest fire. Thus, the Court has told us that the decision not to inspect a lighthouse (Indian Towing Co.) and the decision not to send a crew to extinguish a smouldering forest fire (Rayonier) were both made on the “operational level” and therefore were not “discretionary acts” exempted under section 2680(a). It is established in the Fifth Circuit that: [T]he fact that the negligence may have occurred in connection with a discretionary function does not make the negligent act a discretionary function. Nor does the discretionary character of the government’s initial ... undertakings govern whether a duty can arise out of those undertakings. The Tort Claims Act deals with sovereign immunity — that is, with whether the United States may be sued for certain torts; it does not define ... torts. Aretz v. United States, 604 F.2d 417, 431 n. 18 (1979). Discretionary decision-making, then, is accompanied by nondiscretionary acts of execution, whether termed operational, ministerial, or clerical. With these guidelines in mind, we now consider whether the district court had jurisdiction to address the appellant’s complaint. PART I. The first count of the complaint alleges that the United States is liable for Sheryl Lynn Payton’s death because the parole board, knowing Whisenhant to be a dangerous psychotic, nevertheless negligently released him on parole. Although the term “negligent release” is imprecise, we read the count as alleging that the parole board, having considered all information available to it, was negligent in deciding to release Whisenhant on parole. The question thus becomes whether the decision by the" }, { "docid": "11788481", "title": "", "text": "was not to encompass acts of a governmental nature or function, and characterized the “discretion” protected by § 2680(a) as “. . . the discretion of the executive or the administrator to act according to one’s judgment of the best course . . . .” Dalehite v. United States, supra, 346 U.S. at 34, 73 S.Ct. at 967. Although discretionary immunity was thus referenced to executive or planning-level activity, the Court made it clear that protection extended to the actions of lesser officials charged with implementation of discretionary plans and programs: “It necessarily follows that acts of subordinates in carrying out the operations of government in accordance with official directions cannot be actionable. If it were not so, the protection of § 2680(a) would fail at the time it would be needed, that is, when a subordinate performs or fails to perform a causal step, each action or non-action being directed by the superior, exercising, perhaps abusing, discretion.” Dalehite v. United States, supra, at 36, 73 S.Ct. at 968. Despite the emphasis given by Dalehite to activity of a governmental nature, Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L. Ed. 48 (1955), expressly rejected the idea that liability under the Tort Claims Act may exist only for negligence occurring when the Government acts in a proprietary rather than uniquely governmental capacity. Rather, liability under the Act is imposed where negligent conduct under similar, not identical, circumstances would be actionable against a private individual under state law, notwithstanding that private individuals do not perform the precise activity involved. Further, in imposing liability for damages resulting from Coast Guard negligence in operating a lighthouse, the Coprt in Indian Towing found that while the decision to undertake the lighthouse service was discretionary; there was no discretion to provide the service in a negligent manner. Likewise, the Court in Rayonier v. United States, 352 U.S. 315, 77 S.Ct. 374, 1 L. Ed.2d 354 (1957), held that § 2680(a) did not exempt the United States from liability for the negligence of Forest Service employees in fighting a forest fire." }, { "docid": "906977", "title": "", "text": "for the United States on the merits, and dismissed the complaint with prejudice. The Federal Tort Claims Act, 28 U.S.C. § 2671 et seq., makes a limited waiver of the government’s sovereign immunity. 28 U.S.C. § 2674 provides that “The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages.” 28 U.S.C. § 2680 provides the exception to this waiver of immunity that the trial court relied on: “The provisions of this chapter and section 1346(b) of this title [the jurisdictional statute for the Federal Tort Claims Act] shall not apply to— (a) Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” The discretionary function exception was originally given a broad sweep in Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953), where the Supreme Court relieved the United States of all liability for its actions in connection with the April 1947 Texas City disaster. But subsequent Supreme Court decisions substantially narrowed Dalehite’s reading of the discretionary function exception. See Rayonier, Inc. v. United States, 352 U.S. 315, 77 S.Ct. 374, 1 L.Ed.2d 354 (1957); Hatahley v. United States, 351 U.S. 173, 76 S.Ct. 745, 100 L.Ed. 1065 (1056); Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955). The cases following Dalehite make clear that an absolutist interpretation of the discretionary function is improper. Smith v. United States, 375 F.2d 243 (5 Cir.), cert. denied, 389 U.S. 841, 88 S.Ct. 76, 19 L.Ed.2d 106 (1967). It is not" }, { "docid": "15854239", "title": "", "text": "at trial in the present case were vastly different from those alleged in Rayonier. Here, the Forest Service had not negligently allowed flammable materials to accumulate. After strong winds pushed the several fires out of control on August 3, it did not have an abundance of personnel and equipment for fire suppression. More importantly, the Forest Service did not stand idly by, allow ing the Huckleberry Fire to calmly smolder for weeks before it suddenly exploded onto plaintiffs’ property. Under the facts of the present case, I find the discussion of discretionary function immunity in Arizona Maintenance Co. v. United States, 864 F.2d 1497 (1989) more persuasive than the silence on the subject in Rayonier. Summarizing recent United States Supreme Court analysis of discretionary function immunity, the Arizona court described the determination of whether that exception applies in specific fact situations as a two-part process. Id. 864 F.2d at 1502. In the first step, courts examine the nature of the challenged conduct and consider whether there was an element of choice in the government employee’s action. Id. If the employee had no choice, there is no immunity. Id. If the action involved some discretion, the court must go a step further to determine whether the exercise of that discretion is grounded in the social, economic, and political policies that the discretionary function exception was designed to protect. Id. In the present case, Forest Service employees responsible for suppressing the rash of fires that started on August 2 and were blown out of control on August 3 had considerable discretion in deciding how to allocate suppression resources. In establishing priorities, assigning government personnel and equipment, and deciding what private resources, if any, should be used, these employees were required to make social and economic policy decisions. They were required to balance the value of communications installations, private homes, endangered species, and other resources. I conclude that these decisions are subject to discretionary function immunity. 2. Common Law Negligence I conclude that discretionary function immunity applies to this case. A contrary conclusion would not change the outcome, however, because I also find" }, { "docid": "5421810", "title": "", "text": "befox'e us does require a balancing of policy concerns. While safety was one consideration, the decision regarding how to best approach the Bald Butte fire also required consideration of fire suppression costs, minimizing resource damage and environmental impacts, and protecting private property. The discretionai’y function exception is designed to prevent the judiciary from using its power to police the decisions of the executive branch. Our task is not to determine whether the Forest Service made the correct decision in its allocation of resources. Where the government is forced, as it was here, to balance competing concerns, immunity shields the decision. V. RAYONIER The Millers rely heavily on Rayonier Inc. v. United States, 352 U.S. 315, 77 S.Ct. 374,1 L.Ed.2d 354 (1957), for the proposition that the FTCA does not provide government immunity for damage done to privately owned property resulting from a fire which spreads from government land. In Rayonier, a fire in eastern Washington covering 1,600 acres was finally brought under control by the Forest Service after five days of fire fighting. Certain spots continued to smolder. Over a month later, strong winds revived the fire, which then proceeded to cover over twenty miles and destroy the plaintiffs’ propex’ty. Id. at 316-17, 77 S.Ct. at 375. The Supreme Court held that the FTCA did not shield the Forest Service from suit. Id. at 317-18, 77 S.Ct. 374. The Rayonier decision, however, provides little guidance in this case for two reasons. First, Rayonier is not a discretionary function exception case. In Rayonier, the government did not argue for, nor did the Coui't consider, the discretionary function exception. Second, at the time Rayonier was decided, discretionary immunity did not have the same interpretation it does under current law. It was not until 1984 that the Court formed the two-step analysis approach in Varig Airlines, 467 U.S. 797, 813-14, 104 S.Ct. 2755, 81 L.Ed.2d 660. See, William P. Kratzke, The Supreme Court’s Recent Overhaul of the Discretionary Function Exception to the Federal Tort Claims Act, 7 Admin.L.J.Am.U. 1, 12 (1993). Since that time, the two-step approach has governed our analysis. Because the" }, { "docid": "15820160", "title": "", "text": "out. The Supreme Court, in an opinion by Mr. Justice Black, held that under the Federal Tort Claims Act the United States would be liable to the plaintiffs for losses sustained by reason of the United States Forest Service’s negligence in fighting a forest fire if, as alleged in the complaint, the law of the State of Washington would impose liability on private persons or corporations under similar circumstances. Although the Government in Rayonier did not assert the defense of discretionary function, it did rely upon that portion of the Dalehite decision which held that the Tort Claims Act had not altered the usual rule that an alleged failure of public firefighting forces to properly perform their duties does not create private actionable rights. Rayonier also made clear that the liability of the United States in tort is not restricted by concepts imported from the law of municipal corporations of a distinction between negligence in performing acts in the government’s “proprietary” capacity and negligence when it acts in a “uniquely governmental” capacity, saying, at 352 U.S. 319, 77 S.Ct. 376-377, 1 L.Ed. 356, that Indian Towing necessarily rejected anything to the contrary in Dalehite. The United States, as expected, takes the position that the Supreme Court decisions following Dalehite did not alter the Dalehite conception of the scope of the discretionary function exception of 28 U.S.C. 2680(a). It relies upon the following language in Blaber v. United States, 2 Cir., 1964, 332 F.2d 629: “Plaintiffs suggest that the Dalehite case has been weakened by subsequent developments, particularly Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48, and Rayonier, Inc. v. United States, 352 U.S. 315, 77 S.Ct. 374, 1 L.Ed.2d 354. These cases did enlarge the scope of the United States’ liability as it might have been thought to exist after Dalehite, but they did not affect the scope of the discretionary function immunity. Indian Towing concededly involved negligence at only an. operational level, 350 U.S. at p. 64, 76 S.Ct. 122, and Rayonier overruled Dalehite to the extent of allowing recovery where negligence" }, { "docid": "11788482", "title": "", "text": "to activity of a governmental nature, Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L. Ed. 48 (1955), expressly rejected the idea that liability under the Tort Claims Act may exist only for negligence occurring when the Government acts in a proprietary rather than uniquely governmental capacity. Rather, liability under the Act is imposed where negligent conduct under similar, not identical, circumstances would be actionable against a private individual under state law, notwithstanding that private individuals do not perform the precise activity involved. Further, in imposing liability for damages resulting from Coast Guard negligence in operating a lighthouse, the Coprt in Indian Towing found that while the decision to undertake the lighthouse service was discretionary; there was no discretion to provide the service in a negligent manner. Likewise, the Court in Rayonier v. United States, 352 U.S. 315, 77 S.Ct. 374, 1 L. Ed.2d 354 (1957), held that § 2680(a) did not exempt the United States from liability for the negligence of Forest Service employees in fighting a forest fire. The case was remanded for consideration of whether the alleged negligence would be sufficient to impose liability on a private person under the laws of the State of Washington, the place where the fire occurred. It is well to note that both Indian Towing and Rayonier are cases concerned principally with interpreting 28 U.S.C. § 2674, and which involved the negligence of agents admittedly engaged in “operational” activity. Nevertheless, the decisions are an instructive analysis of the policies embodied in the Tort Claims Act, and in Rayonier the following language reflects what this court views as an expanded concept of claims within the Act’s coverage: “It may be that it is ‘novel and unprecedented’ to hold the United States accountable for the negligence of its firefighters, but the very purpose of the Tort Claims Act was to waive the Government’s traditional all-encompassing immunity from tort actions and to establish novel and unprecedented government liability.” Id., at 319, 77 S.Ct. at 377. The rules governing discretionary functions are more easily stated than applied, and where discretion" }, { "docid": "15084334", "title": "", "text": "been private persons, they would face liability for refusing to help extinguish the fire or for failing to protect Appellants’ properties. Appellants Gregory and Victoria Green, Silver Starr De Varona, and John Ervin filed virtually identical complaints against the United States under the FTCA, which alleged the Forest Service’s negligence during its efforts to suppress the Bullock Fire damaged their properties. The cases were consolidated and the United States moved for their dismissal under Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction based on the discretionary function exception to the FTCA, 28 U.S.C. § 2680(a). In response, Appellants moved to amend their complaint, alleging the Forest Service set the fire for “fuel reduction purposes and not for suppression of the Bullock Fire, in blatant violation of policy and regulations.” The district court held there was no evidence in the record to support Appellants’ new contention, denied Appellants’ motion to amend, and granted the United States’ motion to dismiss on the ground the discretionary function exception shielded the United States from suit. This appeal timely followed. Standard of Review This court reviews de novo a district court’s determination that it lacks subject matter jurisdiction under the FTCA and a district court’s application of the FTCA’s discretionary function exception. Terbush, 516 F,3d at 1125. The plaintiff has the burden of showing there are genuine issues of material fact as to whether the exception should apply, but the government bears the ultimate burden of establishing that the exception applies. Miller v. United States, 163 F.3d 591, 594 (9th Cir.1998). Analysis The FTCA waives the federal government’s sovereign immunity for tort claims arising out of the negligent conduct of government employees and agencies in circumstances where the United States, if a private person, would be liable to the claimant under the law of the place where the act or omission occurred. Terbush, 516 F.3d at 1128-29. However, the discretionary function exception provides an exception to the waiver of immunity from suit under the FTCA for “[a]ny claim ... based upon the exercise or performance or the failure to exercise or perform a discretionary function" }, { "docid": "15854235", "title": "", "text": "liability claims are essentially a single claim asserting per se negligence based on a statutory violation. Under their common law negligence claim, plaintiffs assert that the Forest Service negligently failed to suppress the Huckleberry Fire and to control its spread onto their property. They also assert that the Forest Service negligently failed to coordinate its fire suppression efforts with them or to warn them of the approach of the fire. At trial, plaintiffs were particularly critical of the Forest Service’s failure to check the Huckleberry Fire on the morning of August 3 and its failure to organize private crews and equipment for use in fire suppression. Plaintiffs’ negligence per se claim asserts that the Forest Service is liable for failing to immediately proceed to control and extinguish a fire on Forest Service land. Plaintiffs do not contend that Oregon statutes impose strict liability for failure to suppress fires. Instead, they note that the statute defines the reasonable efforts an owner or operator must use to suppress a fire as requiring assignment of “available personnel and equipment” under the owner or operator’s “supervision and control.” Plaintiffs contend that, because the Forest Service can requisition private personnel and equipment, those resources are effectively under the Forest Service’s control. Defendant asserts that this court lacks jurisdiction over this case because the government has not waived immunity, under the Federal Tort Claims Act, for liability for torts committed while carrying out discretionary functions. It further contends that, even if the discretionary immunity exception does not apply, it exercised due care and violated no statutes in suppressing the Huckleberry Fire. 1. Discretionary Function Immunity Under the waiver of sovereign immunity established in the Federal Tort Claims Act, the United States assumed responsibility for torts to the same extent a private person would be liable under similar circumstances. 28 U.S.C. Section 2674; Seyler v. United States, 832 F.2d 120, 121 (9th Cir.1987). Under U.S.C. Section 2680(a), however, the United States retained immunity from liability for torts committed in the exercise of discretionary functions. Plaintiffs cite Rayonier, Inc. v. United States, 352 U.S. 315, 77 S.Ct. 374," }, { "docid": "15854236", "title": "", "text": "equipment” under the owner or operator’s “supervision and control.” Plaintiffs contend that, because the Forest Service can requisition private personnel and equipment, those resources are effectively under the Forest Service’s control. Defendant asserts that this court lacks jurisdiction over this case because the government has not waived immunity, under the Federal Tort Claims Act, for liability for torts committed while carrying out discretionary functions. It further contends that, even if the discretionary immunity exception does not apply, it exercised due care and violated no statutes in suppressing the Huckleberry Fire. 1. Discretionary Function Immunity Under the waiver of sovereign immunity established in the Federal Tort Claims Act, the United States assumed responsibility for torts to the same extent a private person would be liable under similar circumstances. 28 U.S.C. Section 2674; Seyler v. United States, 832 F.2d 120, 121 (9th Cir.1987). Under U.S.C. Section 2680(a), however, the United States retained immunity from liability for torts committed in the exercise of discretionary functions. Plaintiffs cite Rayonier, Inc. v. United States, 352 U.S. 315, 77 S.Ct. 374, 1 L.Ed.2d 354 (1957) in support of their contention that discretionary function immunity does not apply in this case. In Rayonier, the Court concluded that the United States would be liable for the Forest Service’s negligence in fighting a forest fire if, under applicable state law, a private person or corporation would be liable under similar circumstances. Id. at 318, 77 S.Ct. at 376. Though at first glance Rayonier appears to establish that discretionary function immunity does not apply to the government’s efforts to suppress forest fires, the issue is not that simple. The Rayonier Court made no mention of discretionary function immunity, but based its decision on a rejection of the proposition that the United States would be immune if a local government, acting in the “uniquely governmental” capacity of public fireman, would be immune in similar circumstances. Id. at 319, 77 S.Ct. at 376. The Court’s silence on issue of discretionary function immunity could indicate its conclusion that suppression of fires for which the Forest Service is responsible is simply not a discretionary" }, { "docid": "14700284", "title": "", "text": "Prod. Co., LLC, 234 F.3d 863, 872-73 (5th Cir.2000). III. THE FTCA CLAIMS The FTCA waives sovereign immunity and permits suit against the United States for claims sounding in state tort law for money damages. 28 U.S.C. § 2674 (waiving sovereign immunity to make the Government liable “in the same manner and to the same extent as a private individual under like circumstances”). It provides district courts with jurisdiction over monetary claims against the Government for the negligent or wrongful acts of its employees “where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1). The liability of the United States under the FTCA, however, is subject to various exceptions contained in 28 U.S.C. § 2680, including the “discretionary function” exception. See United States v. Gaubert, 499 U.S. 315, 322, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991). The discretionary function exception withdraws the FTCA’s waiver of sovereign immunity in situations in which, although a government employee’s actions may have been actionable under state tort law, those actions were required by, or were within the discretion committed to, that employee under federal statute, regulation, or policy: The provisions of this chapter and section 1346(b) of this title shall not apply to [ a]ny claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused. 28 U.S.C. § 2680(a). The Government contends that the discretionary function exception applies to the challenged decision in this case because in deciding not to evacuate after the storm, Maldonado was operating within the bounds of the discretion committed to him under 18 U.S.C. § 4042(a), which requires the Federal Bureau of Prisons to" }, { "docid": "22234536", "title": "", "text": "resulted from the government’s negligent failure to maintain the road free from ice, to warn of hazards on the road, or to close it when it became unsafe. The government moved for summary judgment, contending it is immune from liability under the Tort Claims Act on two grounds: 1) it was performing a “discretionary function” in the design and maintenance of the road; and 2) a private individual would not be liable under the facts of the case and the law of the forum state. The trial court found the second contention dispositive and granted the government’s motion. We affirm. The Tort Claims Act provides for a limited waiver of immunity by the United States, and makes the government liable for tort claims “in the same manner and to the same extent as a private individual under like circumstances . . . .” 28 U.S.C. § 2674. “[Tjhe test established by the Tort Claims Act for determining the United States’ liability is whether a private person would be responsible for similar negligence under the laws of the State where the acts occurred.” Rayonier Inc. v. United States, 352 U.S. 315, 319, 77 S.Ct. 374, 376, 1 L.Ed.2d 354 (1957). The trial judge concluded that a private landowner is not liable for negligence to persons coming onto the land for recreational purposes under Colorado’s “sightseer statute”. Therefore, he found as a matter of law under the Rayonier standard that the government had not waived its immunity from liability in accordance with the Tort Claims Act. On appeal, plaintiff contends that the sightseer statute should not have been applied to bar its claim because the government is not in the same position as the private parties to whom the statute applies. The purpose of the statute is to encourage private landowners to open their land to the public for recreational purposes. However, plaintiff asserts that the government has an independent duty to maintain the national forests as public recreational areas. Therefore, plaintiff argues that the government has a corresponding duty to maintain the roads in the national forests for recreational use. Plaintiff" }, { "docid": "6153808", "title": "", "text": "lifelong care. Mr. Kendalla was arrested following the shooting, and the INS finally dismissed him from his position. The district court considered Ms. Vick-ers’ tort claims against the INS in light of the FTCA’s discretionary function exception, holding that the exception applies and bars the action. In an alternative holding, the district court decided that even if the INS was negligent and its negligence is actionable under the FTCA, its negligent acts and omissions did not, as a matter of law, cause Ms. Vickers’ injuries because, among other reasons, Mr. Kendalla could have shot Ms. Vickers with another gun. The court therefore concluded that her claim failed as a matter of law and granted the INS’s motion for summary judgment. This appeal followed. II. The Federal Torts Claims Act is a limited waiver of the United States’ traditional sovereign immunity, authorizing certain civil tort suits against the government for monetary damages. See 28 U.S.C. §§ 2671-2680. Specifically, the FTCA grants federal courts jurisdiction to hear claims for damages for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. 28 U.S.C. § 1346(b). While the FTCA thereby established “novel and unprecedented governmental liability,” Rayonier, Inc. v. United States, 352 U.S. 315, 319, 77 S.Ct. 374, 1 L.Ed.2d 354 (1957), Congress was careful “to protect the Government from liability that would seriously handicap efficient government operations.” United States v. Muniz, 374 U.S. 150, 163, 83 S.Ct. 1850, 10 L.Ed.2d 805 (1963). The FTCA’s principal such protection is the discretionary function exception to liability, barring claims based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the" }, { "docid": "19200221", "title": "", "text": "Inc. v. United States, 352 U.S. 315, 318-19, 77 S.Ct. 374, 376-77, 1 L.Ed.2d 354 (1957). Berkovitz, — U.S. at-n. 5, 108 S.Ct. at 1960 n. 5. Furthermore, as set forth in the margin, courts have imposed liability on the United States in many situations in which the government was engaged in activities that have no analogy in the private sector. The district court concluded that the private liability requirement “merely establishes the foundation for” and is “largely congruent with” the discretionary function exception to the Act, and therefore the court did not consider the private liability requirement separately. 665 F.Supp. at 719. The government argues that the private liability requirement is both “a logical prerequisite” to a consideration of the Act’s exceptions and “an independent basis upon which to affirm the district court’s dismissal in this case.” Brief for Appellee at 15 n. 9. However, there are very few decisions that even discuss the private liability requirement, see supra note 2, and we have found none that rely solely on it to hold the government immune from suit. Therefore, we reject the government’s reliance on the private liability requirement. Instead we rely solely upon the discretionary function or duty exception, infra. C. The Tort Claims Act and the Discretionary Function Exception 1. The Purpose of the Discretionary Function Exception The Federal Tort Claims Act, 28 U.S.C., Chapter 171, §§ 2674-2680 provides: The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances ... [but the] provisions of this chapter and section 1346(b) [the jurisdictional statute] ... shall not apply to— Any claim ... based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused. 28 U.S.C. §§ 2674, 2680(a) (emphasis added). The effect of this provision of the Act is to waive the government’s sovereign immunity for certain kinds of" }, { "docid": "23003063", "title": "", "text": "It is not the mere exercise of judgment, however, which immunizes the United States from liability for the torts of its employees. Driving an automobile was frequently cited in the congressional reports leading to the Act as an example of “non-discretionary” activity which would be outside the discretionary function exception. Dalehite v. United States, 346 U.S. 15, 29-30, 73 S.Ct. 956, 97 L.Ed. 1427 (1953). Driving an automobile involves judgment. The failure to signal a turn, for example, may be said to represent an exercise of judgment, albeit a poor one. Yet, the automobile accident caused by a federal employee while on the job is the archetypal claim which Congress sought to place in the courts. If exercise of judgment were the standard for applying the discretionary function exception, a host of cases have been wrongly decided. These cases would include Indian Towing Co., Inc. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955) (failure to replace a burned-out lamp in a lighthouse); Rayonier, Incorporated v. United States, 352 U.S. 315, 77 S.Ct. 374, 1 L.Ed.2d 354 (1957) (failure completely to extinguish intermittently smoldering matter following a forest fire); Underwood v. United States, 356 F.2d 92 (5th Cir. 1966) (decision of psychiatrists to release airman from mental hospital and to provide him access to weapons), and Fair v. United States, 234 F.2d 288 (5th Cir. 1956) (decision to release homicidal patient). A review of the language of the exception, the provision’s legislative history, and the application of this section by the courts offers guidance in applying the exception. The discretionary function provision is one part of an exception to the Tort Claims Act embodied in 28 U.S.C. § 2680(a). The text of that section reads as follows: The provisions of this chapter and section 1346(b) of this title shall not apply to— (a) Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the" }, { "docid": "15854237", "title": "", "text": "1 L.Ed.2d 354 (1957) in support of their contention that discretionary function immunity does not apply in this case. In Rayonier, the Court concluded that the United States would be liable for the Forest Service’s negligence in fighting a forest fire if, under applicable state law, a private person or corporation would be liable under similar circumstances. Id. at 318, 77 S.Ct. at 376. Though at first glance Rayonier appears to establish that discretionary function immunity does not apply to the government’s efforts to suppress forest fires, the issue is not that simple. The Rayonier Court made no mention of discretionary function immunity, but based its decision on a rejection of the proposition that the United States would be immune if a local government, acting in the “uniquely governmental” capacity of public fireman, would be immune in similar circumstances. Id. at 319, 77 S.Ct. at 376. The Court’s silence on issue of discretionary function immunity could indicate its conclusion that suppression of fires for which the Forest Service is responsible is simply not a discretionary function. That silence could also reflect the Court’s conclusion that, under the particular facts of Rayonier, the Forest Service was performing a non-discretionary function. Given the Court’s summary of the allegations of the complaint, I conclude that the later interpretation is more likely. The Court noted that the plaintiff landowners alleged that they were aware and relied on the Forest Service’s agreement with the State of Washington obligating it to suppress any fires in the area that included plaintiffs’ lands. The plaintiffs alleged that the fire started in material that the Forest Service had negligently allowed to accumulate. The plaintiffs also alleged that, though it had ample personnel and equipment available to extinguish a fire that it had brought under control, the Forest Service allowed the fire to smolder for nearly forty days before strong winds spread it over a wide area. The Rayonier Court apparently concluded that, under the facts as alleged, the Forest Service had no choice but to fully extinguish the fire before it was blown onto plaintiffs’ property. The facts established" }, { "docid": "10356532", "title": "", "text": "Barr v. Matteo, supra, with Scheuer v. Rhodes, supra, 416 U.S. at 247-248, 94 S.Ct. 1683; see generally Note, Federal Executive Immunity from Civil Liability in Damages, A Reevaluation of Barr v. Matteo, 77 Colum.L.Rev. 625 (1977), but the principle that police officers have only qualified immunity applies “whether the action is a common-law tort suit, a § 1983 civil rights suit, or a Bivens -type constitutional suit.” Butler v. United States, 365 F.Supp. 1035, 1045 (D.Hawaii 1973). The court therefore adheres to its ruling that police officers have only a qualified immunity. Even if DEA agents do have absolute immunity, the United States is not entitled to raise the immunity defenses (whether absolute or qualified) of its employees in suits under the FTCA. See Norton v. Turner, 427 F.Supp. 138, 146-152 (E.D.Va.1977) (no immunity defense for constitutional torts of police officers). Under the FTCA, the United States is liable not to the same extent as a governmental employee but rather “to the same extent as a private individual under like circumstances.” 28 U.S.C. § 2674 (emphasis added). Section 2680 of the FTCA, which creates some limited exceptions to the general rule of liability in § 2674, does not exempt the United States from liability in cases where its employees would be immune from individual liability, and those exemptions are exhaustive. Rayonier Inc. v. United States, 352 U.S. 315, 329 & n.3, 77 S.Ct. 374, 1 L.Ed.2d 354 (1957). Section 2680(a), which exempts the federal government from liability for discretionary acts of its employees, overlaps the immunity doctrine at least to the extent that both involve “the capacity of a court to evaluate the propriety of the official’s action” and “the effect of liability on the effective administration of the function in question,” Driscoll v. United States, 525 F.2d 136, 138 (9 Cir. 1975), and defendant does not claim that the dealings of DEA agents with informants is a “discretionary function or duty” within the meaning of § 2680(a). See Downs v. United States, 522 F.2d 990, 997-998 (6 Cir. 1975) (law enforcement functions generally not discretionary). Furthermore, governmental (as" }, { "docid": "5421811", "title": "", "text": "continued to smolder. Over a month later, strong winds revived the fire, which then proceeded to cover over twenty miles and destroy the plaintiffs’ propex’ty. Id. at 316-17, 77 S.Ct. at 375. The Supreme Court held that the FTCA did not shield the Forest Service from suit. Id. at 317-18, 77 S.Ct. 374. The Rayonier decision, however, provides little guidance in this case for two reasons. First, Rayonier is not a discretionary function exception case. In Rayonier, the government did not argue for, nor did the Coui't consider, the discretionary function exception. Second, at the time Rayonier was decided, discretionary immunity did not have the same interpretation it does under current law. It was not until 1984 that the Court formed the two-step analysis approach in Varig Airlines, 467 U.S. 797, 813-14, 104 S.Ct. 2755, 81 L.Ed.2d 660. See, William P. Kratzke, The Supreme Court’s Recent Overhaul of the Discretionary Function Exception to the Federal Tort Claims Act, 7 Admin.L.J.Am.U. 1, 12 (1993). Since that time, the two-step approach has governed our analysis. Because the Supreme Court in Rayonier did not have the question before it of whether the discretionary function exception applied, and because it did not apply the two-step analysis now followed, Rayonier does not control our decision. VI. CONCLUSION The discretionary function exception to the Federal Tort Claims Act bars the Millers’ suit against the Forest Service. Under the two-step approach, the Forest Service’s decision regarding how to allocate resources in a multiple fire situation involved discretion and the consideration of competing economic and social policies. The presence of discretion and policy considerations immunizes the government from suit. AFFIRMED. . This contrasts with \"guidelines” under the Forest Plan, which are discretionary. . We have recently applied Rayonier in Anderson v. United States, 55 F.3d 1379 (9th Cir.1995). In Anderson, property owners suffered- damage when the Forest Service lost control of an intentionally-initiated fire. Id. at 1380. Like Rayonier, our examination of the briefs reveals that the government did not invoke discretionary function immunity, and the question of whether the exception applied was not before the court. Because" } ]

[ { "docid": "14492692", "title": "", "text": "check to the order of the fictitious person on the defendant and appellee the National German-American Bank which was a depository of the county funds. When the payment was made by check, Bourne indorsed the name of the fictitious payee thereon and collected the check, sometimes by presenting it directly to the National German-American Bank, but more frequently by presenting it to some other bank. In all cases, however, the National German-American Bank eventually paid the checks and charged the amount thereof to the county. The plaintiff seeks to hold the defendant Arosin and the defendant and appellee the United States Fidelity & Guaranty Company surety on Arosin’s official bond, on the ground that the law required the treasurer to pay only by check and that when he made some payments to Bourne in cash over the counter he violated this law. It seeks to hold the National German-American Bank on the ground that it wrongfully paid out money of the county on forged indorseménts. The same rule, however, must be applied to these three defendants as was applied to the State Savings Bank. The primary cause of the loss was the manufacture by Bourne of the false warrants and orders. For his official misconduct the plaintiff was liable. The evidence does not show any negligence on the part either of Arosin or of the National German-American Bank. There can be therefore no recovery against either of them. The decree of the court below is affirmed, with costs." } ]

[ { "docid": "1219242", "title": "", "text": "warrants in much the same way that he manufactured the refunding orders. The names inserted in these warrants were with two exceptions fictitious. He wrote the names of the fictitious persons on the backs of the warrants, presented them to the county treasurer, Arosin, defendant and appel-lee, who paid them. This payment was sometimes made by the treasurer in cash, but more frequently by cheek to the order of the fictitious person on the defendant and appellee the National German-Ameriean Bank which was a depository of the county funds. When the payment was made by cheek, Bourne indorsed the name of the fictitious payee thereon and collected the cheek, sometimes by presenting it directly to the National German-Ameriean Bank, but more frequently by presenting it to some other bank. In all cases, however, the National German-Ameriean Bank eventually paid the checks and charged the amount thereof to the county. * * * “It seeks to hold the National German-Ameriean Bank on the ground that it wrongfully paid out money of the county on forged indorsements. “The same rule, however, must be applied to these three defendants as was applied to the State Savings Bank. The primary cause of the loss was the manufacture by Bourne of the false warrants and orders. For his official misconduct the plaintiff was liable. The evidence does not show any negligence on the part either of Arosin or of the National- German-Ameriean Bank. There can be therefore no recovery against either of them.” Here, as in National Surety Co. v. Aro-sin, supra, the bank paid the checks on which the indorsements were forged, without negligence, and the circumstances surrounding the transactions involved do not give rise to any superior equities in- favor of the plaintiff; nor can it be said that in good conscience the defendant bank ought to stand the loss. Many other questions have been elaborately briefed and ably presented by counsel for either party, but, in our view, the equities in favor of the defendant bank constitute an insuperable barrier to plaintiff’s right of recovery, and we refrain from discussing the many" }, { "docid": "20158757", "title": "", "text": "against the wrongdoer . This doctrine is exemplified by the leading case of National Surety Co. v. Arosin, 8 Cir., 198 F. 605. In the last cited case, Bourne was county auditor, for whose official conduct plaintiff surety company had made itself responsible. Bourne made up false redemption warrants. Some of these were cashed upon forged endorsements upon National German-American Bank, where the county had a deposit. The court held the bank was not liable since the misconduct of Bourne, for which the surety had made itself liable, was the primary cause of the loss. There are several cases which in net result hold that where the bond is written conditioned upon the honesty of a person who defaults and the loss is paid by his surety, there can be no subrogation . Criticism has been directed to this doctrine where applied to other than official bonds. However, the consequences are the same. The court believes the principle generally applicable. The wrongdoer should bear the loss. Any surety who has made itself responsible for him should suffer the loss, without recourse. The third ground is buttressed by cases such as New York Title & Mortgage Co. v. First National Bank of Kansas City, 8 Cir., 51 F.2d 485, 487, 77 A.L.R. 1052. In that case, a loan broker procured issuance by title company of title insurance policies to a loan association guaranteeing the latter against loss by reason of defects in title of mortgagors to real estate covered by certain mortgages. The notes and the mortgages were in fact forged by the loan broker. The checks drawn upon the bank by the loan association were then forwarded. Whereupon the loan broker obtained delivery thereof, forged the names of the supposed borrowers and cashed them. The title company paid the loss to the loan association and brought action against the bank because it had cashed checks on which the endorsements of the respective payees had been forged. The court held that no recovery could be allowed because there were two primary obligations running to the loan association from the title company" }, { "docid": "17611044", "title": "", "text": "be handled in that manner. Hartford paid to Phillips its loss, obtained reimbursement for part of the loss, and instituted this action to recover the difference between its outlay and intake. The primary ground of attack upon the judgment is that the court erroneously applied to the case the doctrine of superior equities; erroneously concluded that Hartford did not have superior equities to those of the bank in Tulsa; and erroneously concluded that in such circumstances, Hartford was not entitled to recover. Subrogation has its genesis in equity and its major objective is to effectuate the ultimate discharge of an obligation by the one who in good conscience should discharge it. Its function is to effectuate complete justice as between the litigating parties. Though based on equity, subrogation is frequently enforced in actions at law. The right does not arise out of contract. It usually arises where one party has the equitable right to step into the.shoes of another in respect to rights against a third party. And in such circumstances, the party asserting the right is subject to all legal and equitable defenses which the third party may have against the party into whose shoes the subrogee steps. In other words, the subrogee does not have any better right against the third party than had the party into whose shoes he stepped. The essence of the doctrine and many cases in which the right has been granted or denied, some being cases in which the asserted liability of the third party was based upon tort and others in which such liability was based upon contract, will be found in Standard Accident Insurance Co. v. Pellecchia, 15 N.J. 162, 104 A.2d 288. In that case, a surety company which had issued to a trust company two fidelity bonds given to protect the trust company against loss arising out of fraud or dishonesty of its officers and employees paid certain losses which the trust company suffered by fraudulent and dishonest acts and conduct of an officer; and then as subrogee, the surety company sought judgment against another trust company on its" }, { "docid": "20158754", "title": "", "text": "right of subrogation: “It rests upon the maxim that no one should be enriched by another’s loss, and may be invoked wherever justice demands its application, in opposition to the technical rules of law.” Also quoting 25 Ruling Case Law, page 1313, Section 2, it is said: “ ‘One who has indemnified another in pursuance of his obligation so to do succeeds to, and is entitled to, a cession of all the means of redress held by the party indemnified against the party who has occasioned the loss.’ “4. It is unquestionably the general rule that on payment of a loss, the insurer acquires the right to be subrogated pro tanto to any right of action which the insured may have against any third person ze’hose wrongful act or neglect caused the loss * * * ” 83 The doctrine thus announced carries the important limitations phrased in the italicized portions above , which fact is apparently overlooked in many of the cases from other jurisdictions above cited. The limited application of the principle thus supported by the Oregon Court has been applied in other jurisdictions with variations. The surety has been denied recovery against a third party, (1) because there is an election of remedies where the surety is required to pay the loss, (2) because the primary cause of the loss was misconduct for which the surety bound itself, and no other party innocent thereof should be held responsible, (3) because subrogation can only be applied against the party causing the loss, and not against innocent parties independently liable for the amount of the loss. An excellent illustration of the first variation of the application of this principle is found in United States Fidelity & Guaranty Co. v. Fidelity National Bank & Trust Co., 232 Mo.App. 412, 109 S.W. 2d 47. There, one Chaney, an employee of Continental, had forged endorsements on certain checks which were cashed by the bank in which Continental had a deposit. The surety company had written a bond against loss for misfeasance by Cheney. With full knowledge of the facts, Continental demanded and" }, { "docid": "20158764", "title": "", "text": "upon its undertaking, and thus liquidated the debt. This is made clearer by disregarding precedent and looking at realities. In the event the defaulting employee himself had paid the amount of the loss to the Interior, no court would permit Interior thereafter to recover against the Bank. It is held that when the Bank cashed the forged checks it had used its own money. The forger then received the money of the Bank. If he paid the Interior he would have used the money of the Bank, and thereafter Interior would have had no claim against the Bank. Because of his dishonesty and default, the insurers paid money to Interior. This money was paid by the insurers to replace the money belonging to the Bank. Once it came into the hands of Interior, the latter was entitled to call on the Bank solely for the balance of its deposit, less the amount which had been finally paid to it by insurers. The sole cause of the loss was the conscious dishonesty of Crowe, the only person who benefited by the forgeries of these checks. According to the record, he has made no restitution to anyone. If the Bank is required to pay this money, the chance of recovery from Crowe is slight. If the sureties recover from the Bank, their interest in the matter will be slight.' Probably, for a consideration in view of such results the sureties would again insure Crowe. There is no evidence that he has been prosecuted civilly or criminally. He is the wrongdoer. All other parties are innocent. He should bear the loss. But here the insurers agreed to bear the burden for him, if he was guilty of dishonesty. This is exactly the obligation which they assumed for hire. This situation is brought into highlight by the fact that after they paid the loss, the insurers procured the forger to come into court to testify what he did in order to take advantage of Interior. He cooperated by testifying as to his own wrongful acts. If recovery is permitted against the Bank, the situation" }, { "docid": "17611045", "title": "", "text": "right is subject to all legal and equitable defenses which the third party may have against the party into whose shoes the subrogee steps. In other words, the subrogee does not have any better right against the third party than had the party into whose shoes he stepped. The essence of the doctrine and many cases in which the right has been granted or denied, some being cases in which the asserted liability of the third party was based upon tort and others in which such liability was based upon contract, will be found in Standard Accident Insurance Co. v. Pellecchia, 15 N.J. 162, 104 A.2d 288. In that case, a surety company which had issued to a trust company two fidelity bonds given to protect the trust company against loss arising out of fraud or dishonesty of its officers and employees paid certain losses which the trust company suffered by fraudulent and dishonest acts and conduct of an officer; and then as subrogee, the surety company sought judgment against another trust company on its endorsements with prior endorsements guaranteed on checks used as a means of effecting the loss arising out of the fraud and dishonesty. Summary judgment in favor of the trust company which had placed its endorsement on the checks was reversed upon the ground that the burden of proof rested upon it to show that the insured trust company had engaged in unconscionable conduct. But jurisdiction in this case was based upon diversity of citizenship with the requisite amount in controversy. Therefore, the substantive law of Oklahoma governs respecting the rights of the parties, and the doctrine of superior equities was applied with decisive effect in a case in that state quite similar to this one. Fourth National Bank of Tulsa v. Board of Commissioners, 186 Okl. 102, 95 P.2d 878, 879. There a surety company signed as surety the official bond of a county treasurer. The treasurer deposited in the bank certain bonds, some being the property of the county and others belonging to a school district. The bonds were later exchanged for other bonds" }, { "docid": "1219241", "title": "", "text": "amended, contained no allegations charging the defendant bank with such negligence. The primary cause of plaintiff’s loss was the forgeries committed by Smith, and we think the case is ruled by National Surety Co. v. Arosin (C. C. A.) 198 F. 605, 609, and National Surety Co. v. State Savings Bank (C. C. A.) 156 F. 21, 14 L. R. A. (N. S.) 155, 13 Ann. Cas. 421. In the Arosin Case, under the doctrine of subrogation, it was sought to hold the bank because it had paid out county funds on instruments forged by the county treasurer. The instruments were spurious, and the in-dorsements thereon were forgeries. The lower court held that there was no negligence on the part of the bank, and for that reason the plaintiff was not entitled to recover, and on this ground this court sustained the lower court. In the course of the opinion in that ease, it is, among other things, said: “The ease as to the other defendants and appellees is this: Bourne made certain false redemption warrants in much the same way that he manufactured the refunding orders. The names inserted in these warrants were with two exceptions fictitious. He wrote the names of the fictitious persons on the backs of the warrants, presented them to the county treasurer, Arosin, defendant and appel-lee, who paid them. This payment was sometimes made by the treasurer in cash, but more frequently by cheek to the order of the fictitious person on the defendant and appellee the National German-Ameriean Bank which was a depository of the county funds. When the payment was made by cheek, Bourne indorsed the name of the fictitious payee thereon and collected the cheek, sometimes by presenting it directly to the National German-Ameriean Bank, but more frequently by presenting it to some other bank. In all cases, however, the National German-Ameriean Bank eventually paid the checks and charged the amount thereof to the county. * * * “It seeks to hold the National German-Ameriean Bank on the ground that it wrongfully paid out money of the county on forged indorsements." }, { "docid": "12196366", "title": "", "text": "equity is superior to that of the third person. Cont’l Ins. Co. v. Morgan, Olmstead, Kennedy & Gardner, Inc., 83 Cal.App.3d 593, 602, 148 Cal.Rptr. 57, 62 (Ct.App.1978). In Meyers, a surety paid on a fidelity bond due to the fraudulent endorsements of its insured’s employee; that employee had taken checks payable to the insured, forged the insured’s endorsement, and then negotiated them with a third party. The insured’s bank paid on the checks when presented. After payment to the insured of its loss, the surety sought to be subrogated to the insured’s rights against the bank who paid the check in question over the fraudulent signature. The California Supreme Court refused to allow subrogation. As stated by the court: In equity, it cannot be said that the satisfaction by the bonding company of its primary liability should entitle it to recover against the bank upon a totally different liability. The bank, not being a wrongdoer, but in the ordinary course of banking business, paid money upon these checks, the genuineness of which it had no reason to doubt, and from which it received no benefits. The primary cause of the loss was the forgeries committed by the employee, whose integrity was at least impliedly vouched for by his employer to the bank. We cannot say that as between the bank and the paid indemnitor, the bank should stand the loss. Meyers, 11 Cal.2d at 102-3, 77 P.2d at 1089. Before Meyers, the California Supreme Court had applied similar principles to transactions, such as the one at issue in this case, which involve real property liens. In Simon Newman Co. v. Fink, 206 Cal. 143, 273 P. 565 (1928), a bank officer had made a personal loan to a farmer and had taken a security interest in the farm equipment and farm production. The defendant’s employer (the bank) held a senior security interest in the same equipment and production. The debtor was unable to meet his obligations. He sought to consolidate the loans with a new loan from a third party. After reviewing the status of the loans with the" }, { "docid": "1219240", "title": "", "text": "debt for which another is primarily answerable, and which, in equity and good conscience, ought to be discharged by the latter. It is the method which equity employs to require the payment of the debt by him who in good conscience ought to pay it, and to relieve him whom none but the creditor could ask to pay. It cannot, as a matter of right, be invoked in all eases without regard to circumstances, but only in cases in which justice demands its application, and the rights of one asking subrogation must have a greater equity than those who oppose him. As said by this court' in American Surety Co. v. Citizens’ National Bank, 294 F. 609, 616: “The right of sub-rogation is an equitable right, and where equities are equal the right does not exist and there can be no relief.” It is to be borne in mind that, not only did the court find that the defendant bank was guilty of no negligence in the transactions involved, but the bill of complaint, as amended, contained no allegations charging the defendant bank with such negligence. The primary cause of plaintiff’s loss was the forgeries committed by Smith, and we think the case is ruled by National Surety Co. v. Arosin (C. C. A.) 198 F. 605, 609, and National Surety Co. v. State Savings Bank (C. C. A.) 156 F. 21, 14 L. R. A. (N. S.) 155, 13 Ann. Cas. 421. In the Arosin Case, under the doctrine of subrogation, it was sought to hold the bank because it had paid out county funds on instruments forged by the county treasurer. The instruments were spurious, and the in-dorsements thereon were forgeries. The lower court held that there was no negligence on the part of the bank, and for that reason the plaintiff was not entitled to recover, and on this ground this court sustained the lower court. In the course of the opinion in that ease, it is, among other things, said: “The ease as to the other defendants and appellees is this: Bourne made certain false redemption" }, { "docid": "20158755", "title": "", "text": "supported by the Oregon Court has been applied in other jurisdictions with variations. The surety has been denied recovery against a third party, (1) because there is an election of remedies where the surety is required to pay the loss, (2) because the primary cause of the loss was misconduct for which the surety bound itself, and no other party innocent thereof should be held responsible, (3) because subrogation can only be applied against the party causing the loss, and not against innocent parties independently liable for the amount of the loss. An excellent illustration of the first variation of the application of this principle is found in United States Fidelity & Guaranty Co. v. Fidelity National Bank & Trust Co., 232 Mo.App. 412, 109 S.W. 2d 47. There, one Chaney, an employee of Continental, had forged endorsements on certain checks which were cashed by the bank in which Continental had a deposit. The surety company had written a bond against loss for misfeasance by Cheney. With full knowledge of the facts, Continental demanded and received payment of its loss by the surety. The court held thereby Continental had affirmed the act of the bank in paying the money out of the account of Continental, and that the surety took no rights by subrogation or assignment. This theory of election of remedies is not entirely satisfactory, since it leaves out of consideration the onus of guilt which the surety bound itself by contract to assume. Plaintiffs here assert that surety companies, if such a test were adopted, would require the party insured to bring action against the bank first. The practical answer is that they will not remain in the business long if they attempt such measures. The courts which adopt the second application of the principle above set out indicate that when the sureties pay the loss created under such circumstances they do nothing more than to satisfy the obligation which they assumed for hire. Public policy requires that when a loss predicated upon dishonesty is paid by surety who has assumed that obligation, no subrogation should follow except" }, { "docid": "16024778", "title": "", "text": "v. Aetna Cas. & Sur. Co., 338 U.S. 366, 70 S.Ct. 207, 94 L.Ed. 171, McNeil Construction Company is not the proper plaintiff in this action, not being the real party in interest. It is equally clear under the doctrine of United States v. Aetna Cas. & Sur. Co., supra, that Seaboard Surety Company, having paid the loss is the real party in interest, if in the circumstances of the case, it is entitled to be subrogated to McNeil’s claim against the bank. The case of Meyers v. Bank of America Nat. Trust & Savings Ass’n, 11 Cal.2d 92, 77 P.2d 1084, 1087, contains a thorough discussion of the problem of when a surety, who had paid a loss under a fidelity bond, is entitled to the benefit of subrogation, and an exhaustive analysis of the cases dealing with that subject. That case points out that a surety’s right to recover by way of subrogation from a third person does not stand on the same footing as its right to recover from its principal; as to the latter, the right is absolute, as to the former it is conditional. It further points out that the doctrine of subrogation has with almost unanimity been held not to apply in favor of a surety on a fidelity bond, except only as against persons who participated in the wrongful act of the wrongdoer. The ultimate holding in Meyers v. Bank of America Nat. Trust & Savings Ass’n is that in a case such as the one at bar, the surety who has paid the loss has no right by way of subrogation to proceed against the bank unless there are facts from which it appears that in equity and good conscience the bank rather than the surety should stand the loss. This holding is supported by the great weight of authority, and what is more important here, this being a diversity case, it is the law in Montana as announced in American Bonding Co. v. State Savings Bank, 47 Mont. 332, 133 P. 367, 46 L.R.A.,N.S., 557. Therefore, Seaboard Surety Company’s right to" }, { "docid": "6726827", "title": "", "text": "Co. v. Arosin et al., 198 Fed. 605, 117 C. C. A. 313. No such conditions imposing the duty of inquiry on this appellee are found in the complaint. It is not claimed that the bank’s transactions with Davisson were out of the usual course, that it was not bound to honor the check on presentation by Davisson, that it improperly accepted from him the three checks drawn on the other depositaries, or that there was anything connected with the transactions with him that would arouse suspicion of his unlawful intentions. They were all ordinary transactions, carried on in tthe usual way. When that case came here the second time, after trial, it appeared that the surety company on tbe auditor’s bond was seeking recovery for other losses which it had made-good, against the National German-American Bank. Those losses also were brought about by the payment of other county orders manufactured by the deputy auditor, on which he had indorsed the names of fictitious payees, obtained therefor from the county treasurer checks on the German-American Bank, a depositary of county funds, indorsed on the checks the names of the fictitious payees, presented them to the bank and obtained payments, and the bank charged the payments against the account of the county with it. As to the claimed liability of the county treasurer (Arosin) for issuing the checks'and of the bank for paying them, this court said (198 Fed. 609, 117 C. C. A. 317): “The primary cause of the loss was tbe manufacture by Bourne of the false warrants and orders. For his official misconduct the plaintiff was liable. The evidence does not show any negligence on the part either of Arosin or of the National German-American Bank. There can be, therefore, no recovery against either of them.” We are of the opinion that the County of Chaves had no cause of action and right of recovery against appellee on either of the grounds stated and here contended for. We have not overlooked another allegation to which appellant would have us attach weight in support of its contention, that at" }, { "docid": "20158753", "title": "", "text": "of the guardian, which paid the amount of the defalcation accomplished by the payment of the individual checks, was entitled to recover from the bank. The court say: “The bank, by its wrongful act in paying out the funds on the private check of another, made it possible for that other to squander the money of the wards, and thus became in effect a joint tort-feasor liable for the resulting defalcation.” Here, if the Bank had knowingly abetted Crowe in his unlawful acts, the situations would be comparable. This decision need not be referred to any principle of surety-ship. A bank which claims it has paid money which belonged to Jones upon a check written by Smith is liable to Jones or the assignee of Jones for the full amount of his deposit, in any event. Indeed, the Oregon court has on the contrary canalized this doctrine as to sureties by strict limitations. In American Central Insurance Co. v. Weller, 106 Or. 494, 502, 212 P. 803, 805, the court say, with regard to the right of subrogation: “It rests upon the maxim that no one should be enriched by another’s loss, and may be invoked wherever justice demands its application, in opposition to the technical rules of law.” Also quoting 25 Ruling Case Law, page 1313, Section 2, it is said: “ ‘One who has indemnified another in pursuance of his obligation so to do succeeds to, and is entitled to, a cession of all the means of redress held by the party indemnified against the party who has occasioned the loss.’ “4. It is unquestionably the general rule that on payment of a loss, the insurer acquires the right to be subrogated pro tanto to any right of action which the insured may have against any third person ze’hose wrongful act or neglect caused the loss * * * ” 83 The doctrine thus announced carries the important limitations phrased in the italicized portions above , which fact is apparently overlooked in many of the cases from other jurisdictions above cited. The limited application of the principle thus" }, { "docid": "14492682", "title": "", "text": "WILLARD, District Judge. This case has been here before. The defendant and appellee the State Savings Bank demurred to the bill. .The demurrer was sustained. Judgment was entered dismissing the bill as to the State Savings Bank. The plaintiff and appellant, the National Surety Company, appealed to this court. The judgment was reversed. National Surety Co. v. State Savings Bank, 156 Fed. 21, 84 C. C. A. 187, 14 L. R. A. (N. S.) 155, 13 Ann. Cas. 421. After the case had been remanded, the defendants answered. The case was tried by Judge Lochren upon the admissions in the pleadings and upon an agreed statement of facts. Judgment was rendered in favor of all of the defendants except Johnson, and the plaintiff has again appealed. 1. So far as the State Savings Bank is concerned it is not necessary to restate the facts which appear in the report of the former appeal. Upon that appeal the court, after referring to section 5951, Gen. St. Minn. 1894, which provides that the bond of the county auditor shall stand as securit3>- for any person injured by his official delinquency, and to section 710 of the same statutes, which gives an action to any person injured by misconduct in office of the auditor, said: “Accordingly, if the bank had been injured by reason of its purchase of the orders from 'Bourne, and that injury had been occasioned by Bourne’s official delinquency or misconduct in office, it might have recovered its loss from the Surety Company. If, by virtue of these statutes, the bank could have recovered from the Surety Company, as a matter of course the Surety Company cannot now recover from the bank. AVe are therefore to impure whether, if the bank had failed to secure payment of its refunding orders from the county treasurer, its loss or injury would have been so produced by the misconduct in office of Deputy Auditor Bourne as to subject the surety of the auditor to liability for it.” After considering this question the court held that the Surety Company would not be liable. The" }, { "docid": "20158762", "title": "", "text": "the obligation of the insurers upon their separate contracts was to pay the loss caused by fraudulent conduct, embezzlement, theft or dishonesty of certain employees. The insurers had no responsibility for checks of Interior, even though forged. The independent liability of the Bank to Interior arose from an entirely different contract, which resulted from the deposit made by Interior. The Bank broke its engagement when it cashed checks which did not bear the endorsements of the respective payees. As respects liability on this contract, it mattered not whether Crowe was an employee of Interior. The Bank had no special engagement as to him. It would have been liable if the endorsement had been forged by an entire stranger. Thus, the liabilities of the insurers and the Bank, respectively, to Interior were entirely diverse. Each was contractual, but each was founded on a different contract. The Bank received consideration for its engagement in the deposit made by Interior. The insurers were paid premiums by Interior for their undertakings. The finding above made, regarding the issuance of apparently valid checks by Interior, should not be disregarded in the consideration of the relative positions of the insurers and the Bank. In order to operate with confidence and with less supervision, Interior had insured itself against the dishonesty of its employees, including Crowe. In reliance on these policies, Interior took less precaution, probably, and the way was open for Crowe to use checks which appeared valid upon their faces to perpetrate fraud upon Interior, the endorsers, the collecting Banks, and the defendant Bank. The insurers made themselves primarily responsible for the defalcation of Crowe. The dishonesty of Crowe was the sole cause of the loss sus tained by anyone. If it had not been for that factor, no loss would have occurred. One should not be entitled to recover from another that which he has paid out in discharging a debt in the performance of his own obligation. Interior is not entitled to more than one recovery. If the Bank paid now there would be a dual recovery. The surety has paid the loss" }, { "docid": "23237729", "title": "", "text": "one-half of payments made, if progress is satisfactory) until the project or some divisible part thereof is completed and accepted for use. The contract here in question is of this type. It has been this court’s holdings that retained percentages are designed to protect the United States should it be forced to complete a defaulted contract at more than the contract price; that should a surety step in and complete the contract under its performance bond, it becomes subrogated to the Government’s claim against the retained percentages; and that the surety who has been obliged to make good the default of the contractor or to respond therefor in damages, has a claim upon funds in the Government’s hands superior to that of any other assignee. Hardin County Savings Bank v. United States, supra. See also Prairie State National Bank v. United States, supra. The cases distinguish between the above-mentioned performance bonds and payment bonds designed to protect laborers and materialmen. “If the contractor fails or refuses to pay its laborers and materialmen, the Government is not liable therefor, and it is not obligated or authorized to use the retained amounts to pay them. Therefore, the surety, upon payment of them, acquires no equitable lien on the retained amount, since it was not retained to secure performance of the obligation the surety discharges.” Schmoll v. United States, 105 C. Cls. 415, 455 (1946). See also, United States v. Munsey Trust Company, 332 U. S. 234 (1947). The Sehmoll and Munsey cases deny the existence of an equitable lien by subrogation in favor of sureties who have paid laborers and materialmen under the obligation of their (the sureties’) bonds, where the United States both holds the money and is a claimant adverse to the surety. Both cases are bottomed upon the proposition that there can be no subrogation without a right and that the laborers and materialmen never possessed a right against the United States. Superficially, these cases seem to indicate that the Acts of Congress requiring Government contractors to furnish bond protection for laborers and suppliers create an exclusive remedy for" }, { "docid": "20158765", "title": "", "text": "person who benefited by the forgeries of these checks. According to the record, he has made no restitution to anyone. If the Bank is required to pay this money, the chance of recovery from Crowe is slight. If the sureties recover from the Bank, their interest in the matter will be slight.' Probably, for a consideration in view of such results the sureties would again insure Crowe. There is no evidence that he has been prosecuted civilly or criminally. He is the wrongdoer. All other parties are innocent. He should bear the loss. But here the insurers agreed to bear the burden for him, if he was guilty of dishonesty. This is exactly the obligation which they assumed for hire. This situation is brought into highlight by the fact that after they paid the loss, the insurers procured the forger to come into court to testify what he did in order to take advantage of Interior. He cooperated by testifying as to his own wrongful acts. If recovery is permitted against the Bank, the situation will be prolific of litigation. The defendant can sue the collecting banks, and these can sue Meier & Frank Company and other primary endorsers. Plaintiff suggests that the loss will eventually fall upon the insurance companies protecting some of these concerns. To the court it seems more reasonable to allow the loss to remain on the plaintiff insurers. They guaranteed the honesty of Crowe. They have paid the loss. The burden is resting where it belongs. Interior had an independent right on contract against the Bank. But its primary right was against Crowe and his insurers. The insurers paid the money for Crowe, and under the principle laid down by the Oregon Supreme Court they have a remedy against Crowe who was primarily responsible. Only Interior could ask the Bank to pay. The latter was innocent of wrongdoing, but had broken its contract. It would be unconscionable and unjust to hold the Bank responsible for the unlawful acts of Crowe. When the insurers paid the loss on the policies, the debt was satisfied. There was" }, { "docid": "6726832", "title": "", "text": "conditional.” In Stewart v. Commonwealth, 104 Ky. 489, 47 S. W. 332, it appeared that the deputy court clerk had manufactured witness’ cer- ■ tificates. He forged the indorsements of the payees and sold them to Stewart, and Stewart was paid the amounts called for by the Commonwealth. It then recovered from the sureties on the clerk’s bond. Thereafter the sureties sued Stewart to recover from him on the claim that the Commonwealth might have recovered from Stewart and that the loss should not fall on the sureties. Being met with the contention that the surety company had bound itself on the clerk’s bond for his official conduct the surety company argued that while the manufacture of the certificates was done in official capacity by the clerk his acts in indorsing the names of the payees on them were not, and that therefore the sureties were not liable on their bond for those acts. The court said: “It was part oi Moore’s fraudulent design to both issue and indorse the certificates which culminated in producing the loss,” and that the two acts could not be disassociated so as to designate some as official and some as individual, that the sureties were in fact liable to Stewart (if he had not been paid) and not Stewart to them. In American Bonding Co. v. Bank, 47 Mont. 334, 133 Pac. 367, 46 L. R. A. (N. S.) 557, a court clerk manufactured jury certificates and sold them to the bank. The -county took up the certificates and paid the bank without discovering the fraud. The surety company on the clerk’s bond made the loss good and then sued the bank. It was held that, although the county could have recovered from the bank, as between the surety company and the bank the equities were at least equal and that the bank was not liable to the surety. See also Baker v. Surety Co., 181 Iowa, 634, 159 N. W. 1044. The right of subrogation is an equitable right, and where equities are equal the right does not exist and there can be" }, { "docid": "12196365", "title": "", "text": "to the rights of others; or the proposed subrogee must have “superior equities.” Caito, 20 Cal.3d at 704, 576 P.2d at 471, 144 Cal.Rptr. at 756; Am. Contractors, 115 Cal.App.4th at 1268, 9 Cal.Rptr.3d at 840. This doctrine works from at least two perspectives: from the perspective of what the person seeking subrogation could have done differently; and from the perspective of how subrogation will adversely affect other interests. Each is examined below. a. The Relative Fault of the Person Seeking Subrogation The doctrine of superior equities was confirmed as part of California law almost 70 years ago in Meyers v. Bank of America, 11 Cal.2d 92, 77 P.2d 1084 (1938). Meyers’ holding has been more recently stated as follows: [The California] Supreme Court, following the rule in the majority of jurisdictions, adopted the principle that where a wrongdoer causes loss both to a surety by reason of its bond and to a third person, the surety’s normal right of recovery through subrogation against the third person is limited to situations in which the surety’s equity is superior to that of the third person. Cont’l Ins. Co. v. Morgan, Olmstead, Kennedy & Gardner, Inc., 83 Cal.App.3d 593, 602, 148 Cal.Rptr. 57, 62 (Ct.App.1978). In Meyers, a surety paid on a fidelity bond due to the fraudulent endorsements of its insured’s employee; that employee had taken checks payable to the insured, forged the insured’s endorsement, and then negotiated them with a third party. The insured’s bank paid on the checks when presented. After payment to the insured of its loss, the surety sought to be subrogated to the insured’s rights against the bank who paid the check in question over the fraudulent signature. The California Supreme Court refused to allow subrogation. As stated by the court: In equity, it cannot be said that the satisfaction by the bonding company of its primary liability should entitle it to recover against the bank upon a totally different liability. The bank, not being a wrongdoer, but in the ordinary course of banking business, paid money upon these checks, the genuineness of which it had" }, { "docid": "20158756", "title": "", "text": "received payment of its loss by the surety. The court held thereby Continental had affirmed the act of the bank in paying the money out of the account of Continental, and that the surety took no rights by subrogation or assignment. This theory of election of remedies is not entirely satisfactory, since it leaves out of consideration the onus of guilt which the surety bound itself by contract to assume. Plaintiffs here assert that surety companies, if such a test were adopted, would require the party insured to bring action against the bank first. The practical answer is that they will not remain in the business long if they attempt such measures. The courts which adopt the second application of the principle above set out indicate that when the sureties pay the loss created under such circumstances they do nothing more than to satisfy the obligation which they assumed for hire. Public policy requires that when a loss predicated upon dishonesty is paid by surety who has assumed that obligation, no subrogation should follow except against the wrongdoer . This doctrine is exemplified by the leading case of National Surety Co. v. Arosin, 8 Cir., 198 F. 605. In the last cited case, Bourne was county auditor, for whose official conduct plaintiff surety company had made itself responsible. Bourne made up false redemption warrants. Some of these were cashed upon forged endorsements upon National German-American Bank, where the county had a deposit. The court held the bank was not liable since the misconduct of Bourne, for which the surety had made itself liable, was the primary cause of the loss. There are several cases which in net result hold that where the bond is written conditioned upon the honesty of a person who defaults and the loss is paid by his surety, there can be no subrogation . Criticism has been directed to this doctrine where applied to other than official bonds. However, the consequences are the same. The court believes the principle generally applicable. The wrongdoer should bear the loss. Any surety who has made itself responsible for him" } ]

[ { "docid": "4156679", "title": "", "text": "in both number and amount of claims, as required by § 56 of the Bankruptcy Act, 11 U.S.C.A. § 92. Thereupon the referee chose the trustee in the person of Henry A. Mills, who had been serving as receiver under appointment by the district court and who was also the nominee of the New York Meat interests. All parties agreed that Mills was both qualified .and disinterested. Nonetheless this creditor sought review by the district court and, losing there, now appeals to us. Petitioner’s first contention relies upon the facts that both New York Meat and Grade A are family corporations, owned and controlled by the same individuals, that their offices are located in the same building, and that the business affairs of each have been dominated by a long tradition of intercompany transactions. He therefore argues that even though New York Meat does not directly own Grade A stock, it is nevertheless within the disfranchising provision added to § 44, sub. a, of the Act, 11 U.S.C. § 72, sub. a, by the Chandler Amendments of 1938. That section in its presently important part now provides that the creditors of a bankrupt, “exclusive of the bankrupt’s relatives or, where the bankrupt is a corporation, exclusive of its stock-holders or members, its officers, and the members of its board of directors or trustees or of other similar controlling bodies,” shall appoint a trustee, with provision for appointment by the court if the creditors fail to act. This quoted language thus employed to overturn the older tradition which allowed these classes to vote in the election of a trustee seems to us notably clear and explicit. It refers primarily to individuals, since a corporation cannot be a relative, officer, or director of the bankrupt. It also is limited to stockholders of the bankrupt. Thus the language of the statute would appear to be inapplicable to New York Meat, the claimant corporation. West Hills Memorial Park v. Doneca, 9 Cir., 131 F.2d 374, 376. But petitioner seeks to go behind the corporate form, citing Pepper v. Litton, 308 U.S. 295, 60 S.Ct." } ]

[ { "docid": "22245732", "title": "", "text": "so holding, we, of course, express no opinion on the now hypothetical question of what degree of jurisdiction, if any, the district court would have, had our February 25th order not preceded its own. APPOINTMENT OF THE TRUSTEE IN BANKRUPTCY Beyond question the district court was acting within its jurisdictional sphere in closing the Chapter X proceeding, entering the adjudication (reinstatement) in bankruptcy, and appointing the trustee. 11 U.S.C. §§ 636-638. That the district court had jurisdiction over all the Chapter X proceedings is clearly established by the provisions of 11 U.S.C. § 511. However, appellants argue that in appointing appellee Chaney, as trustee in bankruptcy by its order of February 26th, the district court violated the meeting and notice requirements of the Bankruptcy Act. 11 U.S.C. § 638 governs the election or appointment of a trustee in bankruptcy in the context of an attempted Chapter X corporate reorganization, and by its mandate, 11 U.S.C. § 72 controls. That section provides: “(a) The creditors of a bankrupt, exclusive of the bankrupt’s relatives or, where the bankruptcy is a corporation, exclusive of its stockholders . . ., shall, at the first meeting of creditors after the adjudication, . . . appoint a trustee ... of such estate. If the creditors do not appoint a trustee . . . the court shall make the appointment. . . .” Such a creditors’ meeting must meet the notice requirements of 11 U.S.C. § 94. Appellants’ challenge is defeated, however, by the threshold requirement of standing. The established purpose of the notice and creditors’ meeting requirements is to protect creditors, not the bankrupt or the bankrupt’s stockholders. Section 44 of the Act expressly excludes the latter from having a voice in the matter. The provisions are designed to prevent the election of a trustee too closely associated with the bankrupt, not to allow the bankrupt to prevent the election of a trustee it finds undesirable, which is apparently being attempted here. See In re Ira Haupt & Co., 240 F.Supp. 10 (S.D.N.Y.1965), aff'd. 379 F.2d 884 (CA 2 1967); 6A Collier on Bankruptcy 112.05[5] (14th" }, { "docid": "8506555", "title": "", "text": "the statute? We think not. Whether relatives of a bankrupt, its officers, directors or shareholders would be permitted to vote prior to the enactment of the disenfranchising provisions usually depended upon whether there was shown to be some collusion with the bankrupt or a strong danger of it or not. “The amendment merely extends and makes mandatory a policy which the courts had sometimes enforced in the absence of express statutory direction.” In re Latham Lithographic Corp., 107 F.2d 749, 750 (2d Cir. 1939) (dictum). The language of the statute was “employed to overturn the older tradition which allowed these classes to vote. * * Schwartz v. Mills, 192 F.2d 727, 729,29 A.L.R.2d 1161 (2d Cir. 1951). It has been narrowly construed. A creditor corporation whose president and 50% shareholder was also president and half owner of the bankrupt has been permitted to vote in the election for a trustee. The disenfranchisement provisions have been said to be personal in nature and would not disqualify a bona fide assignee of a claim from one disqualified due to his status as a shareholder, In re Latham Lithographic Corp., supra, nor would the original creditor be disqualified if he retained the claim and divested himself of the stock. In re Page Displays Inc., 35 F.Supp. 140 (S.D.N.Y.1940). Similarly, the relative of one who was an officer and shareholder of a bankrupt corporation has been permitted to vote. In re Universal Seal Cap Co., 40 F.Supp. 420 (E.D. N.Y.1941). It seems clear that the statute was designed basically “to prevent the election of a trustee who may be too friendly to the bankrupt and fail to protect the interests of creditors,” In re Latham Lithographic Corp., supra, and to insure more effective creditor control, i. e., “control by those whose sole interests lie with the creditor class,” rather than control by those whose interests lie with the bankrupt. Thus, even if the Committee, and through it the Exchange and the Banks, might be considered a controlling body of Haupt the circumstances of that control when considered in the light of the rationale behind" }, { "docid": "8506594", "title": "", "text": "727, 29 A.L.R.2d 1161 (2d Cir. 1951). The court felt that the language of the statute “refers primarily to individuals, [and] since a corporation cannot be a relative, officer, or director of the bankrupt * * * [it] would appear to be inapplicable to * * * the claimant corporation.” Id. at 729. Contra, In re Deena Woolen Mills, 114 F.Supp. 260, 271 (D.Me.1953). . 2 Collier, Bankruptcy ¶ 44.01 p. 1635 (14th ed. 1964). . Schwartz v. Mills, supra, 192 F.2d at 732. (dissenting opinion). . Counsel for the Exchange and one of the Banks, Chase Manhattan, urge that the phrase “other controlling bodies” is not a catchall expansion of the restrictive enumeration of disenfranchised persons which precedes the phrase but maintain that it was inserted for the purposes of clarity and consistency with another section of the Chandler Act, citing Weinstein, The Bankruptcy Law of 1938, Chandler Act, 88-9 (1938); “Since clause (8) of sec. 1 defines ‘corporations’ to include unincorporated bodies the terms ‘Members’ and ‘trustees or members of similar controlling bodies’ have, in the interest of clarity, been inserted by the Chandler Act to correspond to ‘stockholders’ and ‘directors’ of incorporated bodies.” Id. at 88-9. If this is so the disenfranchisement of the Exchange and the Banks would perhaps be adding another exception to the statute directing that creditors elect a trustee. See West Hills Memorial Park v. Doneca, 131 F.2d 374 (9th Cir. 1942), and compare Schwartz v. Mills, supra, with the dissenting opinion in that case and In re Deena Woolen Mills, supra. We are not, however, satisfied that the phrase was not intended to refer to groups other than such as the boards of directors, esjudem generis, e. g., boards of governors, executive board, administrative board, designated by a corporation to manage its affairs, as indeed we are urged by counsel for two other of the Banks, First National City and Morgan Guaranty, who at the same time argue that the Exchange and the Banks do not by the nature of the circumstances qualify. . This is not to say that the cessation" }, { "docid": "8506593", "title": "", "text": "objection to the brokerage firms was overruled. (86). Further objections were made against all claims voted for Seligson by the brokerage houses o-n the ground that they were unliquidated in amount, and the same objection, as well as, in some cases, that of alleged preferences, was lodged against the other creditors who voted for Seligson. . In re Pan-American Match Co., 242 F. 995 (D.Mass.1917). . As was pointed out at the time (161-62), of the three claims apparently allowed for Adelman two had been objected to; leaving one Adelman claim not objected to representing $19,000 (the Lund-quist claim). . See note 2, supra. . In re Ira Haupt & Co., 234 F.Supp. 167, 170 (S.D.N.Y.1964). . E.g., In re Stowe, 235 F. 463 (N.D. Cal.1916). . E.g., In re Ballantine, 232 F. 271 (N.D.N.Y.1916). . E.g., In re L. W. Day & Co., 178 F. 545 (2d Cir. 1910); In re Rothleder, 232 F. 398 (S.D.N.Y.1916); In re Syracuse Paper & Pulp Co., 164 F. 275 (N.D.N.Y. 1908). . Schwartz v. Mills, 192 F.2d 727, 29 A.L.R.2d 1161 (2d Cir. 1951). The court felt that the language of the statute “refers primarily to individuals, [and] since a corporation cannot be a relative, officer, or director of the bankrupt * * * [it] would appear to be inapplicable to * * * the claimant corporation.” Id. at 729. Contra, In re Deena Woolen Mills, 114 F.Supp. 260, 271 (D.Me.1953). . 2 Collier, Bankruptcy ¶ 44.01 p. 1635 (14th ed. 1964). . Schwartz v. Mills, supra, 192 F.2d at 732. (dissenting opinion). . Counsel for the Exchange and one of the Banks, Chase Manhattan, urge that the phrase “other controlling bodies” is not a catchall expansion of the restrictive enumeration of disenfranchised persons which precedes the phrase but maintain that it was inserted for the purposes of clarity and consistency with another section of the Chandler Act, citing Weinstein, The Bankruptcy Law of 1938, Chandler Act, 88-9 (1938); “Since clause (8) of sec. 1 defines ‘corporations’ to include unincorporated bodies the terms ‘Members’ and ‘trustees or members of similar controlling bodies’" }, { "docid": "8506547", "title": "", "text": "was “why I should not approve the appointment of Charles Seligson at this time subject to his removal in the event the issues that are raised on the two motions of Mr. Adel-man and Mr. Freund should be resolved in such a manner as would require that removal.” Mr. Feldman was called and testified that certain insurance carriers had already extended the time within which the proofs of claim were to be filed but in so doing had reserved their rights to claim as a defense any prejudice resulting from the delay. Ultimately the referee stated “I intend to and will approve the appointment of Charles Selig-son” and he entered the order approving the appointment. Subsequent hearings will be described hereinafter insofar as they relate to a particular subject. THE DISENFRANCHISEMENT OF THE LIMITED PARTNERS Section 44, sub. a of the Bankruptcy Act, 11 U.S.C. § 72, sub. a provides: “The creditors of a bankrupt, exclusive of the bankrupt’s relatives or, where the bankrupt is a corporation, exclusive of its stockholders or members, its officers, and the members of its board of directors or trustees or of other similar controlling bodies, shall * * * appoint a trustee * * * of such estate.” Section 1, sub. 8 of the Act, 11 U.S.C. § 1, sub. 8, defines Corporations as follows: “ ‘Corporation’ shall include all bodies having any of the powers and privileges of private corporations not possessed by individuals or partnerships and shall include partnership associations organized under laws making the capital subscribed alone responsible for the debts of the association, joint-stock companies, un incorporated companies and associations, and any business conducted by a trustee or trustees wherein beneficial interest or ownership is evidenced by certificate or other written instrument; ” In disenfranchising the Limited Partners the referee announced his intention to adhere to his ruling made in the previous election as set out in the order of June 26, 1964, which held simply that the broad language of the above quoted sections prevented the Limited Partners from voting. In affirming the prior ruling Judge Palmieri held that" }, { "docid": "1862943", "title": "", "text": "2, p. 1637, and cases cited therein. In 1938, Section 44, sub. a of the Act was amended 'because Congress felt that such persons had too close a connection with the bankrupt to participate in the selection of a Trustee. The only case directly in point, giving construction to Sec. 44, sub. a of the Act, is Schwartz v. Mills, 2 Cir., 1951, 192 F.2d 727, which was not cited by either side in this controversy. But see also: West Hills Memorial Park v. Doneca, 9 Cir., 131 F.2d 374; In re Universal Seal Cap Co., D.C.E.D.N.Y.1941, 40 F.Supp. 420; In re Page Displays, Inc., D.C.S.D.N.Y.1940, 35 F.Supp. 140. In Schwartz v. Mills, supra, it was held, with Judge Frank dissenting, that a creditor corporation, whose president and fifty per cent stockholder was also the president and fifty per cent stockholder of the bankrupt corporation, was entitled to vote in the election of the trustee. In allowing a twin corporation with identical stockholders to vote for trustee, the Court gave a strictly literal interpretation of the language of section 44, sub. a of the Act. With all due deference to the majority opinion, this Court is constrained to concur with Judge Frank in his dissent. Although the Tarmy Wool Stock Company does not •come within the literal wording of section 44, sub. a, the interpretation of the statute should carry out its patent purpose — i. e., to disqualify persons with “too close a connection with the bankrupt to make it proper that their votes should be counted in the selection of the trustee.” Analysis of H.R. 12889, 74th Congress 2d Sess. (1936) 157. In interpreting a statute, this Court adopts the views of Judge Learned Hand who stated that “ ‘what a judge really does is to take the language before him * * * and try to find out what the (legislators) would have done, if the case before him had been before them. * * * Strictly speaking, it is impossible to know what they would have said about it, if it had. All they have done" }, { "docid": "1862942", "title": "", "text": "of the claimant corporation are the same as those of the bankrupt corporation; that the two corporations did not deal at arm’s length in that Mr. Larry Suttenberg was employed as an accountant by both of them; and that the claim was subordinated either to the 'claim of the New York Trust Company or that of the United States Navy. Also, this claim was not included in the schedule of debts filed on March 9, 1953. Contrary to the contentions of the claimant made before the Referee, the Referee concluded that the provisions of section 44, sub. a of the Bankruptcy Act are not exclusive and therefore there can be disqualification outside of its express limitations. Consequently, on the facts as found, the Referee precluded the claim from being voted because of the inter-relationship between the two corporations. Prior to 1938, a bankrupt corporation’s officers, directors and stockholders, who were also creditors, were generally allowed to vote in the election of a trustee, though such votes were subject to careful scrutiny. Collier on Bankruptcy, Vol. 2, p. 1637, and cases cited therein. In 1938, Section 44, sub. a of the Act was amended 'because Congress felt that such persons had too close a connection with the bankrupt to participate in the selection of a Trustee. The only case directly in point, giving construction to Sec. 44, sub. a of the Act, is Schwartz v. Mills, 2 Cir., 1951, 192 F.2d 727, which was not cited by either side in this controversy. But see also: West Hills Memorial Park v. Doneca, 9 Cir., 131 F.2d 374; In re Universal Seal Cap Co., D.C.E.D.N.Y.1941, 40 F.Supp. 420; In re Page Displays, Inc., D.C.S.D.N.Y.1940, 35 F.Supp. 140. In Schwartz v. Mills, supra, it was held, with Judge Frank dissenting, that a creditor corporation, whose president and fifty per cent stockholder was also the president and fifty per cent stockholder of the bankrupt corporation, was entitled to vote in the election of the trustee. In allowing a twin corporation with identical stockholders to vote for trustee, the Court gave a strictly literal interpretation of" }, { "docid": "8506556", "title": "", "text": "due to his status as a shareholder, In re Latham Lithographic Corp., supra, nor would the original creditor be disqualified if he retained the claim and divested himself of the stock. In re Page Displays Inc., 35 F.Supp. 140 (S.D.N.Y.1940). Similarly, the relative of one who was an officer and shareholder of a bankrupt corporation has been permitted to vote. In re Universal Seal Cap Co., 40 F.Supp. 420 (E.D. N.Y.1941). It seems clear that the statute was designed basically “to prevent the election of a trustee who may be too friendly to the bankrupt and fail to protect the interests of creditors,” In re Latham Lithographic Corp., supra, and to insure more effective creditor control, i. e., “control by those whose sole interests lie with the creditor class,” rather than control by those whose interests lie with the bankrupt. Thus, even if the Committee, and through it the Exchange and the Banks, might be considered a controlling body of Haupt the circumstances of that control when considered in the light of the rationale behind the disenfranchising provisions indicate that the Exchange and the Banks should not have been disenfranchised under § 44, sub. a. The bankrupt ceased to operate as a brokerage house five days before the agreement of November 25th was signed. At that time, “Haupt was hopelessly insolvent * * * and it has not engaged in the business for which it was organized since that time. * * * * [I]ts affairs have been the subject of systematic liquidation, a course of action for which the Committee * * * and not the partnership, has been responsible.” In re Ira Haupt & Co., 234 F.Supp. 167, 169 (S.D. N.Y.1964). The purpose of the agreement as stated therein was to effect the orderly liquidation of Haupt. We feel it may fairly be inferred that of at least equal concern was the preservation of public confidence in the market and the protection of the Banks’ interests as creditors. In proposing and acting under the agreement of November 25th, the Exchange and the Banks acted primarily for their own" }, { "docid": "8506595", "title": "", "text": "have, in the interest of clarity, been inserted by the Chandler Act to correspond to ‘stockholders’ and ‘directors’ of incorporated bodies.” Id. at 88-9. If this is so the disenfranchisement of the Exchange and the Banks would perhaps be adding another exception to the statute directing that creditors elect a trustee. See West Hills Memorial Park v. Doneca, 131 F.2d 374 (9th Cir. 1942), and compare Schwartz v. Mills, supra, with the dissenting opinion in that case and In re Deena Woolen Mills, supra. We are not, however, satisfied that the phrase was not intended to refer to groups other than such as the boards of directors, esjudem generis, e. g., boards of governors, executive board, administrative board, designated by a corporation to manage its affairs, as indeed we are urged by counsel for two other of the Banks, First National City and Morgan Guaranty, who at the same time argue that the Exchange and the Banks do not by the nature of the circumstances qualify. . This is not to say that the cessation of business by itself would exculpate one otherwise disenfranchised by the section from the provisions of that statute. . In re Ira Haupt & Co., supra, 234 F. Supp. at 168 n. 1. . While arguing that “other similar controlling bodies” refers to members of the board of directors and groups esjudem, generis (note 14, supra), counsel for First National City and Morgan Guaranty distinguish the creditor signatories of the November 25th agreement. They state in their memorandum: “there is no and can be no logical reason for seeking to preclude from voting those creditors who in an attempt to protect their own interests, either singly or in concert, endeavor to prevent the deterioration or dissipation of a financially embarrassed debtor * * * by directing, guiding or even controlling the liquidation of such debtor’s assets in order to safeguard the creditor’s interest.” . Ibid. . Note 13, supra, and accompanying text. All such references are to pages in the transcript. . But see note 28, infra. . “Referee: I am of the opinion that" }, { "docid": "8506543", "title": "", "text": "THE TRUSTEE At the adjourned first meeting of creditors on September 11, 1964, the referee called for nominations for trustee. He stated his intention to proceed in the following order: (1) nominations; (2) voting; (3) objections to the claims voted, i. e., capacity of the voters, the quality of the claims, solicitation and other impediments and (4) consideration of the competency and capacity of the trustee elected by the creditors. Nominations were made and votes cast as follows: (1) Charles Seligson, nominated by one of the banks, received the votes of 30 creditors (Banks, Exchange, brokerage houses and nine Employees of the bankrupt) representing $19,118,-549.06; (2) Samuel Adelman, nominated by Lundquist, the creditor responsible for the previous election of the thereafter disqualified Edward Feldman, received the votes of four creditors including the Landlord representing $636,557.99; (3) Abraham Glickman, nominated by counsel for the Limited Partners, received the votes of seven such creditors representing $2,787,660.31. The referee, announcing his intention to adhere to his prior ruling, held that the Limited Partners were disenfranchised under § 44, sub. a of the Bankruptcy Act, leaving nominee Glickman with no votes.. The referee also disenfranchised the Exchange and the Banks, holding that under § 44(a) they constituted “other controlling bodies” of the bankrupt. After the disenfranchisement of the Limited Partners and the Exchange and Banks, there were four claims for Adelman representing $636,557.99, and 23 for Seligson representing $383,362.66, with objections lodged against almost all these claims. Then followed a hearing on the objections to the Landlord’s claim, which represented the bulk of the amount which had been voted for Mr. Adelman, and considerable discussion as to the merits of the claims of the nine former Employees, which had been voted for Mr. Seligson, with the latter group being finally allowed. Eventually, the time came when all had been heard on the capacity of voters and the quality of the claims voted, leaving the question of solicitation and other impediments and the question of the capacity of the trustee still open. Relying on the Pan-American Match Co. case, the referee elected not to further" }, { "docid": "1862946", "title": "", "text": "To the contrary, the court in that case, implying that it had power to add other exceptions to the statute, stated: “While it may be true that we could add other exceptions to the statute on equitable grounds, a point we do not decide, we think there are no such grounds here.” West Hills Memorial Park v. Doneca, 9 Cir., 131 F.2d 374, 376. There were no equitable grounds because the claimant, the bankrupt’s attorney, was dead and therefore there would be no way in which he might take advantage of anyone. Moreover, the Court’s failure to adopt a broad view of Section 44, sub. a seems to indicate a departure from the rationale of In re V. Loewer’s Gambrinus Brewery Company, 2 Cir., 167 F.2d 318 (cited by those objecting to the petition for review), where the Court held, in the absence of any applicable statute, that the claim of a twin corporation, having identical stockholders, should be subordinated to the claims of other creditors. See 65 Har.L.R. 1241. The relationship of the two corporations in the case at bar is identical to that of the two corporations in the Brewery case, supra. The test applied in the Brewery case was whether the failure to subordinate will work an injustice, will not be fair and equitable to other creditors, and will result in a violation of rules of fair play and good conscience. In applying that test, without deciding that the claim of the Tarmy Wool Stock Company should be subordinated, it should not be treated upon a parity so far as voting for a trustee is concerned. As Judge Frank stated: “Subordination is indeed harsh. Far less should be needed to penetrate such tissue-paper insulation as we have here, when (1) voting only is in issue and (2) we have a statutory provision — the 1938 Amendment of Section 44, sub. a, 11 U.S.C.A. § 72, sub. a — which aims to prevent those controlling the bankrupt from voting for a trustee.” Schwartz v. Mills, 2 Cir., 192 F.2d 727, 732. Otherwise, to have allowed the Tarmy Wool" }, { "docid": "4646154", "title": "", "text": "CONGER, District Judge. This is a petition to review an order of the Referee appointing George W. Gavagan, the Receiver herein, as Trustee. The correctness of the order appealed from depends upon whether or not the creditor, Frank Bailey, was entitled to vote. If he was, there was a stalemate and the Referee had the power to appoint a Trustee. The disqualification of Bailey to vote for a Trustee is asserted to arise from Section 44 of the Bankruptcy Act, as amended in 1938, 11 U.S.C.A. § 72, sub. a, because, allegedly, Bailey is a stockholder of the bankrupt corporation. At the hearing before the Referee, testimony was taken and it appears that Bailey loaned $30,000 to the bankrupt corporation in 1937, and later received 50 shares of stock from one of the stockholders. In November, 1939, he sold the stock to one Miller, an employee of his, for $5 and immediately thereafter Miller caused himself to be elected Treasurer of the corporation. The Referee held that the evidence showed that Miller held the stock absolutely, and without any secret trust for the benefit of Bailey. He made this finding despite the fact that there was evidence to show that at one time Bailey’s claim had been assigned to Miller for the purpose of bringing suit, and then re-assigned to Bailey after a judgment in Miller’s favor had been voluntarily vacated. In addition it appeared that the attorney for Bailey had prepared the bankruptcy petition and schedules at Miller’s direction and that he shared offices with the attorney for the bankrupt. Undoubtedly before the amendment of the Bankruptcy Act, the fact that Bailey was a stockholder would not, alone, have disqualified his vote. In re Gloria Vanderbilt-Sonia Gowns, D.C., 26 F.Supp. 766. The disqualification imposed by the amendment is personal (In re Latham Lithographic Corporation, 2 Cir., 107 F.2d 749, 750) and here is dependent upon the fact of stock ownership. The Referee, who had an opportunity to hear and see the witnesses, decided this fact against the contention of the petitioners. His finding is presumptively correct and will be" }, { "docid": "21331751", "title": "", "text": "SWAN, Circuit Judge. This appeal brings up a contest between two creditors-over the election of a trustee of the bankrupt Latham Lithographic Corporation. The referee allowed the appellant Fisher to vote his claim, with the result that no nominee for the office of trustee had a majority in number and amount of the voted claims. The referee then appointed Samuel Rabin as trustee. Upon the petition of Bulkley, Dunton & Co., a creditor, the district court reversed the referee’s order and adjudged Arthur S. Burton to have been elected trustee. The correctness of the order appealed from turns on whether the appellant Fisher was entitled to vote. If he was, then no election was had and the referee’s appointment of Rabin should have been confirmed; if he was not entitled to vote, the order of the district court was right. Fisher’s alleged' disqualification is rested on section 44 of the Bankruptcy Act as amended in 1938, 11 U.S.C.A. § 72, but before passing to a consideration of the meaning of that section, it is necessary to state the facts regarding the origin of his claim. Prior to February 7, 1938 one Stein held two chattel mortgages made by predecessors of the bankrupt and covering all of its machinery and equipment. On that date the bankrupt gave to Gugler Lithographic Company (for brevity referred to hereafter as Gugler) another chattel mortgage upon the same personal property. By agreement of the same date between the bankrupt, Gugler, Stein and Stein as trustee, these three mortgages, securing an aggregate indebtedness of nearly $200,000, were in effect consolidated; the mortgagees assigned their respective mortgages to Stein as trustee and the bankrupt was to deliver to the trustee notes, payable to the order of the trustee, representing the consolidated debt and providing for payment of weekly instalments. Subsequently, in April 1938, the bankrupt executed another chattel mortgage of $5,000 to Kempland covering the same personal property, and by a further contract that mortgage was also brought under the consolidation agreement of February 7th. On October 11, 1938 Stein sold to Gugler his beneficial interest in" }, { "docid": "8506613", "title": "", "text": "shall be set aside, and such powers of attorney or proxies shall not thereafter be voted for any purpose by the holders thereof.” The rule has since been renumbered Rule 15(a) and changed to read as follows: “ * * * shall be forthwith disapproved. For such cause and upon notice the trustee shall be removed and the appointment of such committee set aside. Such powers * * #» . The transcript and the memoranda filed make clear that the claim of improper solicitation of the Employees’ claims by the Exchange and Banks is based on the ground that the election was bankrupt controlled, since the Exchange and Banks had been held to be “other controlling bodies” of the bankrupt. Since we here hold that the Exchange and Banks were improperly disenfranchised under § 44, sub. a the logic of the argument falls. In addition we fail to find that the testimony adduced, either at the September 30th meeting or thereafter, compels a conclusion that there was any solicitation at all, or that the votes of the Employees were cast for any interest other than that of the general creditors. It is worthy of mention, too, that the parties contesting the approval of Mr. Seligson’s appointment, i. e., the Limited Partners and the Landlord, have made clear that there is no connection between Mr. Seligson and the alleged solicitation of the Employees’ claims or their alleged fraudulent imposition, other than the fact that Mr. Selig-son was the choice of the Exchange and Banks. Both petitioners have praised the ability and integrity of the trustee. Their protestations then, seem to be to form rather than substance. . See the discussion of the merits of the Employees’ claims, supra. . Bankruptcy Act § 2, sub. a (17), 11 U.S.C. § 11, sub. a (17) ; see also, 1, 2 Collier, Bankruptcy flf 2.68-.69, 44.06-.10(14th ed.). . The notice requirement of § 58, subd. a (3) “does not . . . include proceedings where the referee or judge acts independently of creditors.” 3, Collier ¶ 58.08. . See note 53, supra. . A" }, { "docid": "331940", "title": "", "text": "voting under the disenfranchisement provisions of § 44, sub. a, 11 U.S.C. § 72, sub. a, of the Bankruptcy Act. The limited partners contend that this ruling is erroneous because under the provisions of the Bankruptcy Act of 1898, the definitions of corporation 'specifically included “limited partnerships,” whereas the 1938 amendment specifically eliminated “limited partnerships” therefrom. The legislative history, H.R.Rep. No. 1409, 75th Cong., 1st Sess. 5 (1937), makes it clear that Congress made the change, not because of any preoccupation with the disenfranchising provisions, but because it had amended § 5, 11 U.S.C. § 23, so as to expand the application of this section to limited partnerships, a result completely consonant with the previous structure of the statute. This made it no longer necessary to include such partnerships as part of the corporation definitions. There was not, however, any abridgment of the basic principle that the purpose of the disenfranchising provisions is to prevent the election of a trustee who may be too closely related to the bankrupt and thus impair a vigorous independent defense of the creditors’ interests. These provisions merely extend and make mandatory “a policy which the Courts had sometimes enforced in the absence of express statutory direction.” In re Latham Lithographic Corp., 107 F.2d 749, 750 (2d Cir. 1939). The Referee’s conclusion is therefore sustainable on equitable as well as statutory grounds. It follows, therefore, that the disability of the limited partners encompassed all of their claims, whether as general creditors or customer creditors, and that they were properly excluded from voting. In the opinion of Judge Swan in In re Latham Lithographic Corp., supra, a stockholder-creditor was held to he under a total personal disability, whereas the bona fide assignee of one-half his creditor claim was held qualified to vote under § 44 of the Bankruptcy Act. It follows from what has been said that the decisions of the Referee are affirmed in all respects. The petitions to review the orders of the Referee are dismissed. It is so ordered. . The three introductory clauses of the agreement read as follows: “WHEREAS Haupt appears" }, { "docid": "8506557", "title": "", "text": "the disenfranchising provisions indicate that the Exchange and the Banks should not have been disenfranchised under § 44, sub. a. The bankrupt ceased to operate as a brokerage house five days before the agreement of November 25th was signed. At that time, “Haupt was hopelessly insolvent * * * and it has not engaged in the business for which it was organized since that time. * * * * [I]ts affairs have been the subject of systematic liquidation, a course of action for which the Committee * * * and not the partnership, has been responsible.” In re Ira Haupt & Co., 234 F.Supp. 167, 169 (S.D. N.Y.1964). The purpose of the agreement as stated therein was to effect the orderly liquidation of Haupt. We feel it may fairly be inferred that of at least equal concern was the preservation of public confidence in the market and the protection of the Banks’ interests as creditors. In proposing and acting under the agreement of November 25th, the Exchange and the Banks acted primarily for their own best interests, not for Haupt’s. And in seeking to vote for a trustee they did not seek a trustee who would be principally interested in Haupt, but one who would protect the interests of the creditors, including themselves. That is in accord with the purpose of having the creditors elect a trustee. Should it be contended that the trustee would be beholden to his electors or be so closely aligned with them as to preclude impartiality, he may be removed. 11 U.S.C. § 11, sub. a (17). But this question is not before us, nor was it before the referee. Thus, the referee erred in disenfranchising the Exchange and the Banks as other controlling bodies under § 44, sub. a. THE LANDLORD’S CLAIM The proof of claim filed by the Landlord consisted of three items: (1) $206,557 for rent from December 1,1962 to March 1, 1964, and other charges (apparently for work done and materials supplied in connection with premises leased by Haupt at 111 and 115 Broadway) ; (2) $159,843 for rent due under" }, { "docid": "22245733", "title": "", "text": "bankruptcy is a corporation, exclusive of its stockholders . . ., shall, at the first meeting of creditors after the adjudication, . . . appoint a trustee ... of such estate. If the creditors do not appoint a trustee . . . the court shall make the appointment. . . .” Such a creditors’ meeting must meet the notice requirements of 11 U.S.C. § 94. Appellants’ challenge is defeated, however, by the threshold requirement of standing. The established purpose of the notice and creditors’ meeting requirements is to protect creditors, not the bankrupt or the bankrupt’s stockholders. Section 44 of the Act expressly excludes the latter from having a voice in the matter. The provisions are designed to prevent the election of a trustee too closely associated with the bankrupt, not to allow the bankrupt to prevent the election of a trustee it finds undesirable, which is apparently being attempted here. See In re Ira Haupt & Co., 240 F.Supp. 10 (S.D.N.Y.1965), aff'd. 379 F.2d 884 (CA 2 1967); 6A Collier on Bankruptcy 112.05[5] (14th ed. 1972). Since appellants had no protectible interest at stake under the notice and creditors’ meeting sections, they cannot now challenge any alleged contravention of the statutes. As the Supreme Court recently stated in a different context in Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975), this claim “. . . falls squarely within the prudential standing rule that normally bars litigants from asserting the rights or legal interests of others in order to obtain relief from injury to themselves.” Id. at 509, 95 S.Ct. at 2210. If a challenge was to be made on the notice and meeting requirements, it was the creditors’ right to do so, not appellants’. While we cannot place our stamp of approval on the procedure followed by the district judge, we must conclude that appellants lack standing to object. Since a proper challenge by the genuinely interested parties was not made, the issue cannot now be raised. We express no opinion on what might be the result if a creditor would now challenge the" }, { "docid": "331941", "title": "", "text": "defense of the creditors’ interests. These provisions merely extend and make mandatory “a policy which the Courts had sometimes enforced in the absence of express statutory direction.” In re Latham Lithographic Corp., 107 F.2d 749, 750 (2d Cir. 1939). The Referee’s conclusion is therefore sustainable on equitable as well as statutory grounds. It follows, therefore, that the disability of the limited partners encompassed all of their claims, whether as general creditors or customer creditors, and that they were properly excluded from voting. In the opinion of Judge Swan in In re Latham Lithographic Corp., supra, a stockholder-creditor was held to he under a total personal disability, whereas the bona fide assignee of one-half his creditor claim was held qualified to vote under § 44 of the Bankruptcy Act. It follows from what has been said that the decisions of the Referee are affirmed in all respects. The petitions to review the orders of the Referee are dismissed. It is so ordered. . The three introductory clauses of the agreement read as follows: “WHEREAS Haupt appears to be currently unable to meet its commitments and therefore unable to continue its business; “WHEREAS the Exchange is interested in assisting in the orderly liquidation of the business of Haupt without the delay and expense which may be incident to administrative or other legal proceedings; “WHEREAS the Banks as creditors of Haupt are desirous of cooperating in the effort to achieve such an orderly liquidation ; and” . Customers still on the hooks are those who cannot be located or whose payments have been held up for some legal reason. . Section 1(8) provides as follows: “§ 1. Meaning of words and phrases. The words and phrases used in this Act and in proceedings pursuant hereto shall, unless the same be inconsistent with the context, be construed as follows: * * * * * “(8) ‘Corporation’ shall include all bodies having any of the powers and privileges of private corporations not possessed by individuals or partnerships and shall include partnership associations organized under laws making the capital subscribed alone responsible for the debts of" }, { "docid": "8506554", "title": "", "text": "we shared that doubt (and we do not) it should not prevail over the law of the case. Zdanok v. Glidden Co., supra; White v. Higgins, 116 F.2d 312, 317 (1st Cir. 1940). We are asked to indulge in exactly that type of piece meal litigation and forum shopping against which the doctrine militates. Dictograph Products Co. v. Sonotone Corp., 230 F.2d 131, 135 (2d Cir. 1956). Nor is Judge Palmieri’s decision immune from reconsideration, as was the case in Dictograph. THE DISENFRANCHISEMENT OF THE EXCHANGE AND BANKS We agree with the referee and Judge Palmieri that after the signing of the November 25th agreement Haupt was controlled by the Committee, which was in effect control exercised by the Exchange and the Banks. Section 44, sub. a excludes other similar controlling bodies of a bankrupt corporation from appointing a trustee. Assuming this section relates to Haupt, a partnership, a question which will eventually be decided with reference to the disenfranchisement of the Limited Partners, are the Exchange and the Banks the controlling bodies excluded by the statute? We think not. Whether relatives of a bankrupt, its officers, directors or shareholders would be permitted to vote prior to the enactment of the disenfranchising provisions usually depended upon whether there was shown to be some collusion with the bankrupt or a strong danger of it or not. “The amendment merely extends and makes mandatory a policy which the courts had sometimes enforced in the absence of express statutory direction.” In re Latham Lithographic Corp., 107 F.2d 749, 750 (2d Cir. 1939) (dictum). The language of the statute was “employed to overturn the older tradition which allowed these classes to vote. * * Schwartz v. Mills, 192 F.2d 727, 729,29 A.L.R.2d 1161 (2d Cir. 1951). It has been narrowly construed. A creditor corporation whose president and 50% shareholder was also president and half owner of the bankrupt has been permitted to vote in the election for a trustee. The disenfranchisement provisions have been said to be personal in nature and would not disqualify a bona fide assignee of a claim from one disqualified" }, { "docid": "8506596", "title": "", "text": "of business by itself would exculpate one otherwise disenfranchised by the section from the provisions of that statute. . In re Ira Haupt & Co., supra, 234 F. Supp. at 168 n. 1. . While arguing that “other similar controlling bodies” refers to members of the board of directors and groups esjudem, generis (note 14, supra), counsel for First National City and Morgan Guaranty distinguish the creditor signatories of the November 25th agreement. They state in their memorandum: “there is no and can be no logical reason for seeking to preclude from voting those creditors who in an attempt to protect their own interests, either singly or in concert, endeavor to prevent the deterioration or dissipation of a financially embarrassed debtor * * * by directing, guiding or even controlling the liquidation of such debtor’s assets in order to safeguard the creditor’s interest.” . Ibid. . Note 13, supra, and accompanying text. All such references are to pages in the transcript. . But see note 28, infra. . “Referee: I am of the opinion that the parties were not prepared to substantiate the landlord’s claim and in view of the fact that the ascertainment of the amount of that claim would require a trial that would consume quite some time, and in view of the fact that all of the claims other than the nine employees would also require the resolution of issues of fact and issues of law, I am going to provisionally disallow all the claims except the employees claims. “Charles Seligson has been elected trustee on nine claims in the amount of $153,944.25; the other count being three claims for Samuel Adelman in the sum of $34,006.77.” (159-60). . “Referee: My mistakes are on the record preserved for the District Court and as I declined to reopen argument for Mr. Freund, I will do the same for Mr. Adelman. (168-69).” . It is alleged in the Landlord’s petition to review that the claim should have been allowed for $416,814 “the estimated amount set forth in the Bankrupt’s schedules,” or; $366,401 “the liquidated portion thereof,” apparently the difference" } ]

[ { "docid": "22723240", "title": "", "text": "or “original capital.” Use of these “tests” of partnership indicates, at best, an error in emphasis. It ignores what we said is the ultimate question for decision, namely ^“whether the partnership is real within the meaning of the federal revenue laws” and makes decisive what we described as “circumstances [to be taken] into consideration” in making that determination. The Tower case thus provides no support for such an approach. We there said that the question whether the family partnership is real for income-tax purposes depends upon “whether the partners really and truly intended to join together for the purpose of carrying on business and sharing in the profits or losses or both. And their intention in this respect is a question of fact, to be determined from testimony disclosed by their ‘agreement, considered as a whole, and by their conduct in execution of its provisions.’ Drennen v. London Assurance Co., 113 U. S. 51, 56; Cox v. Hickman, 8 H. L. Cas. 268. We see no reason why this general rule should not apply in tax cases where the Government challenges the existence of a partnership for tax purposes.” 327 U. S. at 287. The question is not whether the services or capital contributed by a partner are of sufficient importance to meet some objective standard supposedly established by the Tower, case, but whether, considering all the facts — the agreement, the conduct of the parties in execution of its provisions, their statements, the testimony of disinterested persons, the relationship of the parties, their respective abilities and capital contributions, the actual control of income and the purposes for which it is used, and any other facts throwing light on their true intent — the parties in good faith and acting with a business purpose intended to join together in the present conduct of the enterprise. There is nothing new or particularly difficult about such a test. Triers of fact are constantly called upon to determine the intent with which a person acted. The Tax Court, for example, must make such a determination in every estate tax case in which it" } ]

[ { "docid": "2457633", "title": "", "text": "exist which are directly on point. There is a substantial body of law, however, which defines the characteristics that a venture must have in order to constitute a partnership for Federal tax purposes. We believe that the factors which determine whether a venture is a partnership for Federal tax purposes must inherently also define when a venture becomes a partnership for such purposes. We therefore consider the characteristics of a partnership for Federal tax purposes. Section 761(a) states in part, For purposes of this subtitle, the term “partnership” includes a syndicate, group, pool, joint venture or other unincorporated organization through or by means of which any business, financial operation, or venture is carried on, and which is not, within the meaning of this title [subtitle], a corporation or a trust or estate. * * * [Emphasis added.] The Supreme Court has stated that the existence of a partnership depends upon “whether, considering all the facts * * * the parties in good faith and acting with a business purpose intended to join together in the present conduct of the enterprise.” Commissioner v. Culbertson, 337 U.S. 733, 742 (1949) (Fn. ref. omitted; emphasis added.); see also Commissioner v. Tower, 327 U.S. 280 (1946); Sparks v. Commissioner, 87 T.C. 1279 (1986). Based on the above, for Federal tax purposes a partnership cannot exist unless the parties thereto have a good-faith intent to presently conduct an enterprise with a business purpose. This requirement may in some situations lead to issues such as whether intending to presently conduct an enterprise with a business purpose should be considered synonymous with actually engaging in business or what level of activity or engagement in business is necessary for a partnership to come into existence. On the facts of this case, however, we do not believe that it is necessary for us to delve into these more detailed issues. The parties who established Regency clearly did not have a good-faith intention to presently conduct an enterprise with a business purpose prior to entering into the sale leaseback transaction here under consideration. Regency was organized as a limited partnership" }, { "docid": "2457634", "title": "", "text": "present conduct of the enterprise.” Commissioner v. Culbertson, 337 U.S. 733, 742 (1949) (Fn. ref. omitted; emphasis added.); see also Commissioner v. Tower, 327 U.S. 280 (1946); Sparks v. Commissioner, 87 T.C. 1279 (1986). Based on the above, for Federal tax purposes a partnership cannot exist unless the parties thereto have a good-faith intent to presently conduct an enterprise with a business purpose. This requirement may in some situations lead to issues such as whether intending to presently conduct an enterprise with a business purpose should be considered synonymous with actually engaging in business or what level of activity or engagement in business is necessary for a partnership to come into existence. On the facts of this case, however, we do not believe that it is necessary for us to delve into these more detailed issues. The parties who established Regency clearly did not have a good-faith intention to presently conduct an enterprise with a business purpose prior to entering into the sale leaseback transaction here under consideration. Regency was organized as a limited partnership under the laws of the State of Connecticut in December 1973, with Hurwitz as its sole general partner and Goldenberg as its sole limited partner. Two days before the consummation of the transaction here in issue, the partnership agreement was amended and petitioner became the sole general partner of Regency, the four trusts for petitioner’s children became limited partners, and Hurwitz and Goldenberg became limited partners with only nominal interests. Regency’s 1974 partnership return shows that at the beginning of 1974, Regency had no assets and no liabilities. The return shows that at the end of 1974, Regency’s only assets were the equipment subject to the sale leaseback and $200 in “capital contribution receivables” from Hurwitz and Goldenberg, and that Regency’s only liability was the Regency note. Based on the above facts, we conclude that Regency was not involved in conducting any enterprise prior to the transaction here in issue. Petitioner has not alleged that Regency did conduct any activities prior to this transaction. Further, Regency was without capital prior to the amending of the" }, { "docid": "13640212", "title": "", "text": "OPINION. Black, Judge: Certain minor issues raised by the pleadings have been settled by stipulation. The only issue which remains pertains to the validity of the partnership described in our Findings of Fact. The respondent determined that each petitioner and E. M. Ford owned a 25 per cent interest in tbe partnership Forcum-James during 1942 and 1943. It. M. Ford is not a petitioner before us. Petitioners allege that the partnership was a bona fide legal partnership and was composed of the partners named in our Findings of Fact and with percentage interests named therein. We have given the details of this partnership agreement and the surrounding circumstances attending its formation in our Findings of Fact and it is not necessary to repeat them here. We have found that the petitioners and other partners entered into a partnership agreement with bona fide intent and a business purpose to conduct the Forcum-James Construction Company as a general partnership. Having considered all the facts and evidence, we hold the respondent’s determination was error. The question of whether a family partnership is real for income tax purposes depends upon “whether the partners really and truly intended to join together for the purpose of carrying on the business and sharing in the profits and losses or both. And their intention in this respect is a question of fact.” Commissioner v. Culbertson, 337 U. S. 733. In the Culbertson case the Court also said: The question is not whether the services or capital contributed by a partner are of sufficient importance to meet some objective standard supposedly established by the Tower case, but whether, considering all the facts — the agreement, the conduct of the parties in execution of its provisions, their statements, the testimony of disinterested persons, the relationship of the parties, their respective abilities and capital contributions, the actual control of income and the purposes for which it is used, and any other facts throwing light on their true intent— the parties in good faith and acting with a business purpose intended to join together in the present conduct of the enterprise. *" }, { "docid": "9432277", "title": "", "text": "parties, their respective abilities and capital contributions, the actual control of income and the purposes for which it is used, and any other facts throwing light on their true intent — the parties in good faith and acting with a business purpose intended to join together in the present conduct of the enterprise. There is nothing new or particularly difficult about such a test. Triers of fact are constantly called upon to determine the intent with which a person acted.” 337 U.S. 742-743, 69 S.Ct. 1214. Both Culbertson and Tower are family partnership cases. While family partnership cases present some problems not present in arms’-length partnerships, the general principles set out in Tower and Culbertson apply to all partnership situations. In Bartholomew v. Commissioner, 8 Cir., 186 F.2d 315, we set out and applied the Culbertson and Tower tests to a joint venture entered into between strangers dealing at arms-length. We stated: “Whether, under the evidence, Royer was a ‘partner’ with respect to the Norfolk-Portsmouth project, or merely an employee of the partnership of Harland Bartholomew & Associates, was a question of fact for the determination of the Tax Court.” 186 F.2d 318. All judges agreed that the evidence was sufficient to support the Tax Court’s finding that the parties did not intend to join together in the conduct of the enterprise as a joint venture. The Tax Court had made no finding as to the existence of a partnership. The majority, believing that some type of partnership other than a joint venture could possibly be found to exist, remanded the case for an express finding upon the issue of whether there was a partnership. Judge Johnsen, in his dissent, expressed the view that the Tax Court’s finding that no joint venture existed was adequate to support the court’s decision as no other type of partnership had been asserted and that no showing was made that any type of partnership other than a joint venture did exist. The basic problem confronting us here is similar to that in Bartholomew, to wit, whether the contract here involved creates a joint venture" }, { "docid": "11876872", "title": "", "text": "judgment. Applicable to the questions presented by the instant appeal are the following well-established principles: The term “partnership” as used in Sections 181, 182, Internal Revenue Code, means ordinary partnerships. “A partnership is generally said to be created when persons join together their money, goods, labor, or skill for the purpose of carrying on a trade, profession, or business and when there is community of interest in the profits and losses. When the existence of an alleged partnership arrangement is challenged by outsiders, the question arises whether the partners really and truly intended to join together for the purpose of carrying on business and sharing in the profits or losses or both. And their intention in this respect is a question of factj to be determined from testimony disclosed by their ‘agreement, considered as a whole, and by their conduct in execution of its provisions.’ ” Commissioner of Internal Revenue v. Tower, supra, 327 U.S. 286-287, 66 S.Ct. 535 (emphasis supplied); Lusthaus v. Commissioner, supra; Helvering v. Clifford, supra. The rule stated applies in tax cases where the government challenges the existence of a partnership for tax purposes. In determining whether there was a true partnership for income tax purposes, the fact that there was no contribution of “original capital” or “vital services” is to be taken into consideration, but it is not conclusive. The test is: \" * * * whether, considering all the facts — the agreement, the conduct of the parties in execution of its provisions, their statements, the testimony of disinterested persons, the relationship of the parties, their respective abilities and capital contributions, the actual control of income and the purposes for which it is used, and any other facts throwing light on their true intent — the parties in good faith and acting with a business purpose intended to join together in' the present conduct of the enterprise. * * * Triers of fact are constantly called upon to determine the intent with which a person acted. * * * If, upon a consideration of all the facts, it is found that the partners joined" }, { "docid": "6744096", "title": "", "text": "he reported one-half of the 1972 installment as allocated to the covenant not to compete, and therefore as ordinary income, the remaining one-half was reported as long term capital gain resulting from the “sale\" of his partnership interest. In his 1973 return, taxpayer reported none of that year’s installment as ordinary income. At trial, taxpayer conceded that the one-half of the 1973 payment allocated to the covenant not to compete should have been reported as ordinary income. . The Tax Court’s opinion is reported at 71 T.C. 1017. . The Tax Court upheld the Commission’s deficiency determination on another transaction not herein relevant. . The Court stated the test as [wjhether, considering all the facts — the agreement, the conduct of the parties in execution of its provisions, their statements, the testimony of disinterested persons, the relationship of the parties, their respective abilities and capital contributions, the actual control of income and the purposes for which it is used, and any other facts throwing light on their true intent — the parties in good faith and acting with a business purpose intended to join together in the present conduct of the enterprise. . In any event, the evidence is more than sufficient to establish that taxpayer never participated as a partner in the merged firm, nor did any of the parties to the transaction contemplate that he would do so. . As the court noted in Proulx v. United States, 594 F.2d 832, 833 n.l (Ct.Cl. 1979), “[t]his form-substance maxim has been referred to by Judge Learned Hand as an ‘anodyne(s) for the pains of reasoning,’ ” quoting Commissioner v. Sansome, 60 F.2d 931, 933 (2d Cir.), cert. denied 287 U.S. 667, 53 S.Ct. 291, 77 L.Ed. 575 (1932). . It does not appear in the record that, as against the continuing partners, the Commissioner ever challenged the transaction." }, { "docid": "14078222", "title": "", "text": "enterprises,” as well as by established, ongoing businesses. A trade or business test under section 174 which depended upon the existence of production or sales of the invention \"would defeat the congressional purpose somewhat to equalize the tax benefits of the ongoing companies and those that are upcoming and about to reach the market.” 416 U.S. at 504. Therefore, the Court held that the partnership was entitled to a deduction under section 174 even though it had not yet had any sales. Although the Supreme Court established in Snow that the taxpayer need not currently be producing or selling any product in order to obtain a deduction for research expenses, it did not eliminate the \"trade or business” requirement of section 174 altogether. For section 174 to apply, the taxpayer must still be engaged in a trade or business at some time, and we must still determine, through an examination of the facts of each case, whether the taxpayer’s activities in connection with a product are sufficiently substantial and regular to constitute a trade or business for purposes of such section. Cf. Higgins v. Commissioner, supra; International Trading Co. v. Commissioner, 275 F.2d 578 (7th Cir. 1960), affg. a Memorandum Opinion of this Court; Ditunno v. Commissioner, 80 T.C. 362 (1983). The existence of a profit motive is an important factor because it distinguishes between an enterprise carried on in good faith as a trade or business and an enterprise merely carried on as a hobby. International Trading Co. v. Commissioner, supra at 584 ; see Snow v. Commissioner, 416 U.S. at 504. However, the Commissioner’s concession that LaSala’s activities were profit motivated establishes only the first step in our inquiry; we still must decide whether those activities were such as to constitute a trade or business. The fact that LaSala carried on its investment activity through a partnership form establishes little. At common law, a partnership is generally defined as an association of two or more persons to carry on, as co-owners, a business for profit (see Uniform Partnership Act sec. 6), but the Internal Revenue Code’s definition of" }, { "docid": "14078223", "title": "", "text": "business for purposes of such section. Cf. Higgins v. Commissioner, supra; International Trading Co. v. Commissioner, 275 F.2d 578 (7th Cir. 1960), affg. a Memorandum Opinion of this Court; Ditunno v. Commissioner, 80 T.C. 362 (1983). The existence of a profit motive is an important factor because it distinguishes between an enterprise carried on in good faith as a trade or business and an enterprise merely carried on as a hobby. International Trading Co. v. Commissioner, supra at 584 ; see Snow v. Commissioner, 416 U.S. at 504. However, the Commissioner’s concession that LaSala’s activities were profit motivated establishes only the first step in our inquiry; we still must decide whether those activities were such as to constitute a trade or business. The fact that LaSala carried on its investment activity through a partnership form establishes little. At common law, a partnership is generally defined as an association of two or more persons to carry on, as co-owners, a business for profit (see Uniform Partnership Act sec. 6), but the Internal Revenue Code’s definition of a partnership for tax purposes is substantially broader. See secs. 761, 7701(a)(2); sec. 301.7701-3, Proced. & Admin. Regs. In numerous cases, arrangements treated as partnerships for tax purposes were found not to be engaged in a trade or business. See, e.g., Mitchell v. Commissioner, 47 T.C. 120 (1966); Cohen v. Commissioner, 39 T.C. 886 (1963). An examination of LaSala’s limited activity reveals that it functioned only as a vehicle for injecting risk capital into the development and commercialization of the four inventions. Its activities never surpassed those of an investor. It was not the up-and-coming business which section 174 is intended to promote. LaSala’s activities in 1979, the year for which the section 174 deduction is claimed, were very limited. Reorganized in December 1979 by the substitution of all new partners, LaSala had no history as a trade or business. Its general partner, Tower Hill, likewise had no business history as it had been incorporated just the month before. On December 24,1979, the partnership executed the acquisition and license agreements which effected the simultaneous purchase" }, { "docid": "18040538", "title": "", "text": "the present conduct of the enterprise.” This pronouncement reads as though it might have been written with the facts of the instant case in mind. The court in the Culbertson case left no doubt that the predominant factor is the good faith and legitimate purpose of the parties in forming a partnership. The court said, 337 U.S. at page 743, 69 S.Ct. at page 1215: “But the Tax Court did not view the question as one concerning the bona fide intent of the parties to join together as partners.” And on the following page, the court again emphasized t'he element of good faith by stating: “If, upon a consideration of all the facts, it is found that the partners joined together in good faith to conduct a business, having agreed that the services or capital to be contributed presently by each is of such value to the partnership that the contributor ■should participate in the distribution of profits, that is sufficient. The Tower case did not purport to authorize the Tax Court to substitute its judgment for that of the parties; it simply furnished some guides to the determination of their true intent.” •Another contention closely tied in with the lack of capital as an income producing factor is that petitioner by the rendition of personal service was responsible for production of the income. It is true the court in Tower stated, 327 U.S. at page 289, 66 S.Ct. at page 537, “The issue is who earned the income,” but the court also stated, “that issue depends on whether this husband and wife really intended to carry on business as a partnership.” If the partnership in the instant case was bona fide, as we think it was, the income earned was that of the partnership and not that of petitioner. While petitioner undoubtedly was the predominating force in the conduct and management of the business, the Commissioner overlooks the fact that the partnership paid him a salary of $45,000 per annum during each of the taxable years for his services thus rendered. In this connection, it is pertinent to note" }, { "docid": "6070499", "title": "", "text": "partners. Petitioners take the position that as members of one or the other of two partnerships, 14th P.A. or 37th P.A., they were entitled to deduct their distributive share of the alleged partnership losses. In support of their position, petitioners contend that the sale and leaseback was a bona fide transaction, that the substance of the sale and leaseback comported with its form, that petitioners entered the transaction for reasons of economic substance apart from tax considerations, that indirectly through the various partnership tiers they acquired a depreciable interest in the property and sufficient obligations vis-a-vis the debt to entitle them to depreciation and interest deductions, and that the partners’ compensation at issue was payment for future services. Respondent makes three alternative arguments: 1. The transactions were contrived and “sham” transactions entered into by petitioners for the purpose of creating and obtaining deductions for artificial tax losses and nondeductible payments. 2. The sale and leaseback was a mere financing transaction and petitioners through their partnership interests did not acquire sufficient risks, benefits and burdens of ownership to constitute them as the owners of the Property for tax purposes. 3. The transactions involving petitioners were not transactions entered into for profit but were without any legal, economic or business purpose other than tax avoidance. Consequently, respondent’s view is that petitioners are not entitled to any partnership loss deductions during the years at issue. Respondent has also raised various alternative issues in the event we uphold the validity of the sale-leaseback and find that Fourth Cavendish acquired an interest in the Bakersfield property which passed through to petitioners. These issues are as follows: (1) Whether the alleged salary payments by the partnerships to their general partners were nondeductible capital expenditures rather than ordinary and necessary business expenses. (2) Whether the losses incurred for an entire year may be retroactively allocated to a limited partnership which did not acquire its indirect interest in the property until near the end of that year. (3) Whether the property was acquired as new property eligible for 200-percent declining balance depreciation. (4) Whether the partnership which held" }, { "docid": "2519567", "title": "", "text": "return, by the end of 1982 ACTF was fully subscribed, all contributed capital had been deposited in ACTF’s operating account, and the capital had been employed in ACTF’s business. Bryant entered into four lease agreements with EMCI in December 1982 to acquire four master audio cassette tapes, ACTF’s business assets, and prepaid the rent for the full term of each lease. These actions sufficiently implement the subscribers’ intent in executing the subscription agreement with the attached pro forma partnership agreement to form a partnership in 1982. The recorded agreement of limited partnership does not require a different result. The agreement is dated 1983 and provides that the “General Partner shall record with the county recorder in the county in which the Partnership has its principal office, a Certificate of Limited Partnership” and that the “Partnership shall commence on the date on which the Certificate has been recorded.” “Partnership,” for purposes of the agreement of limited partnership, however, means a limited partnership formed under California law. Although ACTF was not a California limited partnership in 1982 because it had not yet complied with the statutory recording requirements (Cal. Corp. Code sec. 15502 (West 1977)), it was a partnership for Federal tax purposes. Moreover, before the end of 1982, the partners had joined together with the present intent of conducting a business enterprise. Torres v. Commissioner, 88 T.C. 702 (1987); Sparks v. Commissioner, 87 T.C. at 1282. ACTF had acquired all of its business assets by December 31, 1982, and was an unincorporated organization through which a business, financial operation, or venture was carried on. Consequently, its first taxable year began in December 1982. In addition, Bryant filed a partnership return, Form 1065, for the taxable year 1982 which stated that ACTF had commenced business on November 30, 1982, and issued Forms K-l to the partners. This fact alone suggests the applicability of the partnership audit and litigation provisions pursuant to section 6233(a). Respondent’s regulations provide as follows: [With an exception not relevant], the provisions of subchapter C of chapter 63 of the Code [(the partnership audit and litigation provisions)] and the" }, { "docid": "2519568", "title": "", "text": "because it had not yet complied with the statutory recording requirements (Cal. Corp. Code sec. 15502 (West 1977)), it was a partnership for Federal tax purposes. Moreover, before the end of 1982, the partners had joined together with the present intent of conducting a business enterprise. Torres v. Commissioner, 88 T.C. 702 (1987); Sparks v. Commissioner, 87 T.C. at 1282. ACTF had acquired all of its business assets by December 31, 1982, and was an unincorporated organization through which a business, financial operation, or venture was carried on. Consequently, its first taxable year began in December 1982. In addition, Bryant filed a partnership return, Form 1065, for the taxable year 1982 which stated that ACTF had commenced business on November 30, 1982, and issued Forms K-l to the partners. This fact alone suggests the applicability of the partnership audit and litigation provisions pursuant to section 6233(a). Respondent’s regulations provide as follows: [With an exception not relevant], the provisions of subchapter C of chapter 63 of the Code [(the partnership audit and litigation provisions)] and the regulations thereunder shall apply with respect to any taxable year of an entity for which such entity files a partnership return as well as to such entity’s items for that taxable year and to any person holding an interest in such entity at any time during that taxable year. [Sec. 301.6233-lT(a), Temp. Proced. & Admin. Regs., 52 Fed. Reg. 6779 (Mar. 5, 1987).] Section 6233 is inapplicable in this case because we have found that ACTF was a partnership in December 1982. Even if there were evidence (and none has been offered) indicating that ACTF’s leasing activities never began, however, this case would be subject to the partnership audit and litigation provisions because ACTF filed a partnership return for 1982. Sec. 6233(a); sec. 301.6233-lT(a), Temp. Proced. & Admin. Regs., 52 Fed. Reg. 6759 . (Mar. 5, 1987). Respondent accepted ACTF’s partnership return. He has offered no rationale for ignoring section 6233(a). As a partnership formed after September 3, 1982, with its fiscal year ending December 31, 1982, ACTF was subject to the partnership audit and" }, { "docid": "16555420", "title": "", "text": "in execution of its provisions.’ ” Commissioner v. Tower, 327 U.S. 280. Tn Commissioner of Internal Revenue v. Culbertson, 337 U.S. 733, 69 S.Ct. 1210, 1214, 93 L.Ed. 1659, the Supreme Court gave further consideration to the family partnership problem and gave added emphasis to the thought that the intent of the parties is of very great if, indeed, not controlling importance. In the course of that opinion it is said: “The question is not whether the services or capital contributed by a partner are of sufficient importance to meet some objective standard supposedly established by the Tower case, but whether, considering all the facts — the agreement, the conduct of the parties in execution of its provisions, their statements, the testimony of disinterested persons, the relationship of the parties, their respective abilities and capital contributions, the actual control of income and the purposes for which it is used, and any other facts throwing light on their true intent — the parties in good faith and acting with a business purpose intended to join together in the present conduct of the enterprise. There is nothing new or particularly difficult about such a test. Triers of fact are constantly called upon to determine the intent with which a persoii acted.” In the instant case the Tax Court found as a fact from all the evidence and attending circumstances that “the petitioner and his wife did not form, or intend to form, a bona fide partnership to operate a news agency prior to or during 1943 and 1944.” The income here involved resulted from operating the news agency. The income arising from rentals of the Carberry Apartments was reported by petitioner’s wife. In the course of the Tax Court’s opinion it is observed that, “According to the evidence, the petitioner operated the news agency as his own individual business. His wife did render valuable assistance to him in the earlier years from about 1906 to 1924, but she has taken no active part in the business since that time. No partnership, agreement, was ever entered into and proof is lacking even of" }, { "docid": "2519565", "title": "", "text": "a corporation or a trust or estate.” Sec. 761(a); sec. 7701(a)(2). A partnership is formed when the parties to a venture join together with the intent of conducting, presently, a business enterprise. Sparks v. Commissioner, 87 T.C. 1279, 1282 (1986); see Commissioner v. Culbertson, 337 U.S. 733, 742 (1949); Commissioner v. Tower, 327 U.S. 280, 287-288 (1946). The existence or nonexistence of a partnership under State law is not determinative for Federal tax purposes. See Commissioner v. Tower, supra at 287-288; Hensel Phelps Construction Co. v. Commissioner, 74 T.C. 939, 947 (1980), affd. 703 F.2d 485 (10th Cir. 1983). Respondent argues that no partnership existed until at least April 7, 1983, when Bryant recorded the confidential private placement memorandum with the State of California. Respondent characterizes Bryant’s actions as general partner prior to April 7, 1983, as “pre-operating” activities. See Sparks v. Commissioner, 87 T.C. at 1284. Petitioners contend that though ACTF may not have been a California limited partnership until 1983, it was a partnership within the meaning of section 761(a) in December 1982. We agree with petitioners. In Sparks v. Commissioner, supra, the general partner had incurred expenses, commenced negotiations with third parties, and obtained some subscriptions prior to September 3, 1982. The offering was not closed, however, until December 1982, and the partnership documents stated that the partnership would be formed and the interests of the partners would vest only on completion of the offering. Until the offering was closed in December 1982, all subscription money received was kept in an escrow account and was not available for use by the partnership. We characterized the general partner’s activities prior to the completion of the offering as pre-operating activities. We held that the partnership, being formed after September 3, 1982, was thus subject to the partnership audit and litigation procedures (sec. 6221 et seq.), for its taxable year ending December 31, 1982. In the instant case, by December 31, 1982, Bryant’s activities as general partner were more than pre-operating activities, and the partners’ capital interests in ACTF had vested. Although ACTF reported no income on its 1982 partnership" }, { "docid": "3914605", "title": "", "text": "the reason Bussing made payments to it on the short-term note. Petitioner also argues that this case is indistinguishable from Gefen u. Commissioner, 87 T.C. 1471 (1986). Again, we are compelled to disagree. In Gefen, the Court determined that the taxpayer invested in a limited partnership that purchased and leased computer equipment in a genuine multiple-party transaction. The taxpayer in Gefen contributed cash to the partnership and executed a guaranty for her proportionate share of the recourse obligations of the partnership. The partnership, in turn, purchased certain computer equipment which was financed through a third-party lender, and leased the equipment to another party. We determined in Gefen that the terms of the transaction at issue reflected arm’s-length negotiation, and that the activity of the parties demonstrated that the substance of the transaction matched its form. In this case, however, the parties’ actions did not comport with the form of the transaction. No lease payments were made by AG, and no note payments were made by Bussing. The record demonstrates that Sutton’s participation was merely an attempt to qualify the transaction for Federal tax purposes. Petitioners have failed to establish that the parties respected the form of the transaction. The evidence, moreover, does not support a finding that AG could find a third-party, unrelated financial institution that would purchase Bussing’s note if AG became financially strapped. Such a showing would have helped in establishing the reality of the obligation. Amicus curiae asks us to elucidate the circumstances under which a seller-financed sale and leaseback will be recognized for Federal income tax purposes. We do not decide cases other than the ones before us. In this case the sale-leaseback was a paper shuffle. As discussed infra, Bussing acquired his interest in the equipment as a joint venturer with AG. The equipment remains subject to the underlying lease between AG and Continentale, and the underlying debt that AG owes. AG retains, therefore, a significant economic interest in current rent. Bussing’s interest is subordinate to that debt. State law, while not binding, is of interest; California law provides that a cotenant may use and" }, { "docid": "13640213", "title": "", "text": "a family partnership is real for income tax purposes depends upon “whether the partners really and truly intended to join together for the purpose of carrying on the business and sharing in the profits and losses or both. And their intention in this respect is a question of fact.” Commissioner v. Culbertson, 337 U. S. 733. In the Culbertson case the Court also said: The question is not whether the services or capital contributed by a partner are of sufficient importance to meet some objective standard supposedly established by the Tower case, but whether, considering all the facts — the agreement, the conduct of the parties in execution of its provisions, their statements, the testimony of disinterested persons, the relationship of the parties, their respective abilities and capital contributions, the actual control of income and the purposes for which it is used, and any other facts throwing light on their true intent— the parties in good faith and acting with a business purpose intended to join together in the present conduct of the enterprise. * * * The gist of the respondent’s argument is that the alleged partnership was invalid because the new partners performed no important and necessary services, and skill, know-how, and contacts were important to the partnership’s success. However, capital was a material, important, and necessary element for success in the Forcum-James contracting business. Without adequate capital there could have been no profits. The testimony shows that this was a hazardous business involving large risks and considerable amounts of money. The fact that capital contributions were gifts is not controlling, if the gifts were absolute and unconditional as they were here. Commissioner v. Culbertson, supra. The new partners risked their capital gifts and their entire separate estates by becoming partners. Moreover, the petitioners did not benefit from nor retain dominion or control of the new partners’ investments or income in the partnership. The original partners and the new partners entered into the partnership agreement with bona fide intent and a business purpose of risking their capital in this partnership. We hold that the partner ship in question" }, { "docid": "2457636", "title": "", "text": "partnership return and was incapable of conducting any business. Clearly, the parties involved in Regency did not intend to presently conduct any enterprise through Regency until the consummation of the sale leaseback transaction. As such, in accordance with the definition of a partnership for Federal tax purposes, Regency did not come into existence as a partnership prior to engaging in the sale leaseback transaction with Copylease. Accordingly, Regency had a short 1974 taxable year which commenced on November 13, 1974. Secs. 441(b)(3), 443(a)(2). Therefore, pursuant to section 1.167(a)-ll(c)(2) (iv)(6), Income Tax Regs., Regency was not entitled to depreciation in 1974 based on applying the half-year convention to a 12-month taxable year, but rather must apply such convention to the short taxable year commencing on November 13, 1974. Appropriate orders will be entered. Hurwitz and Goldenberg had interests in Regency of approximately 0.00011 percent according to Regency’s 1974 partnership return. Their capital contributions to the partnership were each approximately 0.0076 percent of the total contributions to the capital of Regency. See Estate of Thomas v. Commissioner, 84 T.C. 412 (1985). The effect of this provision was to entitle Curtis to payments from the net cash-flow account equal to the greater of either the $20,833 fixed rent amount or 23.7 percent of the net credit balance in the net cash-flow account for the preceding month. This figure may have been a typographical error. The figure actually used in the transaction was 23.7 percent. The figures shown for the period ended 2/28/75 were for the 2 months preceding that date. These figures are calculated by allocating quarterly estimates of “additional rent” on pro rata basis to each month within such quarter for months after Dec. 31, 1975, the date following which payments of additional rent were to commence. The figure for contingent rent in 1981 includes only payments of contingent rent expected for the first 2 months of 1981. Unless otherwise stated, all Rule references are to the Tax Court Rules of Practice and Procedure. Admittedly, an investor’s confidence in the profit potential inherent in this transaction would be significantly decreased were the" }, { "docid": "18040537", "title": "", "text": "sufficient for the needs of the business in connection with the available income which the partnership had. More than that, the parties stood ready to contribute further capital, if needed, from the respective estates and, of course, they were personally liable for the liabilities of the partnership. More important, however, we think this contention is answered in the Culbertson case, where the court stated 337 U.S. at page 742, 69 S.Ct. at page 1214: “The question is not whether the services or capital contributed by a partner are of sufficient importance to meet some objective standard supposedly established by the Tower case, but whether, considering all the facts—the agreement, the conduct of the parties in execution of its provisions, their statements, the testimony of disinterested persons, the relationship of the parties, their respective abilities and capital contributions, the actual control of income and the ¡purposes for which it is used, and any other facts throwing light on their true intent—the parties in good faith and acting with a business purpose intended to join together in the present conduct of the enterprise.” This pronouncement reads as though it might have been written with the facts of the instant case in mind. The court in the Culbertson case left no doubt that the predominant factor is the good faith and legitimate purpose of the parties in forming a partnership. The court said, 337 U.S. at page 743, 69 S.Ct. at page 1215: “But the Tax Court did not view the question as one concerning the bona fide intent of the parties to join together as partners.” And on the following page, the court again emphasized t'he element of good faith by stating: “If, upon a consideration of all the facts, it is found that the partners joined together in good faith to conduct a business, having agreed that the services or capital to be contributed presently by each is of such value to the partnership that the contributor ■should participate in the distribution of profits, that is sufficient. The Tower case did not purport to authorize the Tax Court to substitute its" }, { "docid": "2457635", "title": "", "text": "under the laws of the State of Connecticut in December 1973, with Hurwitz as its sole general partner and Goldenberg as its sole limited partner. Two days before the consummation of the transaction here in issue, the partnership agreement was amended and petitioner became the sole general partner of Regency, the four trusts for petitioner’s children became limited partners, and Hurwitz and Goldenberg became limited partners with only nominal interests. Regency’s 1974 partnership return shows that at the beginning of 1974, Regency had no assets and no liabilities. The return shows that at the end of 1974, Regency’s only assets were the equipment subject to the sale leaseback and $200 in “capital contribution receivables” from Hurwitz and Goldenberg, and that Regency’s only liability was the Regency note. Based on the above facts, we conclude that Regency was not involved in conducting any enterprise prior to the transaction here in issue. Petitioner has not alleged that Regency did conduct any activities prior to this transaction. Further, Regency was without capital prior to the amending of the partnership return and was incapable of conducting any business. Clearly, the parties involved in Regency did not intend to presently conduct any enterprise through Regency until the consummation of the sale leaseback transaction. As such, in accordance with the definition of a partnership for Federal tax purposes, Regency did not come into existence as a partnership prior to engaging in the sale leaseback transaction with Copylease. Accordingly, Regency had a short 1974 taxable year which commenced on November 13, 1974. Secs. 441(b)(3), 443(a)(2). Therefore, pursuant to section 1.167(a)-ll(c)(2) (iv)(6), Income Tax Regs., Regency was not entitled to depreciation in 1974 based on applying the half-year convention to a 12-month taxable year, but rather must apply such convention to the short taxable year commencing on November 13, 1974. Appropriate orders will be entered. Hurwitz and Goldenberg had interests in Regency of approximately 0.00011 percent according to Regency’s 1974 partnership return. Their capital contributions to the partnership were each approximately 0.0076 percent of the total contributions to the capital of Regency. See Estate of Thomas v. Commissioner," }, { "docid": "4873565", "title": "", "text": "purposes, “partnership” is defined as including “a syndicate, group, pool, joint venture or other unincorporated organization through or by means of which any business, financial operation, or venture is carried on, and which is not, within the meaning of this title [subtitle], a corporation or a trust or estate.” Sec. 761(a). A partnership is formed when the parties to a venture join together capital or services with the intent of conducting presently an enterprise or business. Commissioner v. Tower, 327 U.S. 280 (1946). The partnership is deemed to have been formed as of the date on which the first parties to the venture acquired their respective capital interests in the partnership. Hensel Phelps Construction Co. v. Commissioner, 74 T.C. 939, 948 (1980), affd. 703 F.2d 485 (10th Cir. 1983). Each party must contribute either capital or services to the partnership to qualify as a partner in the venture. Commissioner v. Culbertson, 337 U.S. 733 (1949). The agreement, the offering memorandum, and the notice of claim of exemption state uniformly that the partnership would be formed on the completion of the offering. The parties agree that the offering was not closed until December of 1982. The agreement states further that the respective interests of the partners would vest only upon the completion of the offering. See Hensel Phelps Construction Co. v. Commissioner, supra. In fact, the subscription amounts were held in escrow until December 31, 1982, when the capital contributions of the subscribers were transferred to an operating account. The documents reflect the intent of the parties to form the partnership in December of 1982. For the foregoing reasons, we conclude that for Federal tax purposes the partnership was formed subsequent to September 3, 1982. Petitioners argue that the partnership was formed de facto prior to September 4, 1982, because the general partner of Project Omega incurred expenses, commenced negotiation of agreements on behalf of the partnership, and obtained some subscriptions prior to September 4, 1982. Further, petitioners argue that the partnership’s amended return indicates that its operations commenced on January 1, 1982. We find petitioners’ arguments unpersuasive. The solicitation of" } ]

[ { "docid": "15094442", "title": "", "text": "The Hobbs Act prohibits extortion or attempted extortion where such crime “in any way or degree, obstructs, delays or affects commerce.” 18 U.S.C. § 1951(a). The Hobbs Act’s scope extends to the limit of Congress’ Commerce Clause authority. See Stirone v. United States, 361 U.S. 212, 215, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960); United States v. DiGregorio, 605 F.2d 1184, 1190 (1st Cir.1979). Because of the statute’s broad sweep, to prove a Hobbs Act violation, the government must show only that the extortionate conduct created “a realistic probability of a de minimis effect on interstate commerce.” United States v. Butt, 955 F.2d 77, 80 n. 2 (1st Cir.1992); see United States v. Devin, 918 F.2d 280, 293 (1st Cir.1990); DiGregorio, 605 F.2d at 1190. Capozzi contends that, in light of the Supreme Court’s Commerce Clause decisions in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995) and United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000), the “de minimis effect” on interstate commerce standard for establishing a Hobbs Act violation is unconstitutional. We reject this contention. In Lopez, the Supreme Court addressed a Commerce Clause challenge to the Gun Free School Zones Act, a law which prohibited a person from possessing a gun while in a school zone. 514 U.S. at 552-68, 115 S.Ct. 1624. In declaring the statute unconstitutional, the Court identified three categories of conduct which Congress may regulate under its Commerce Clause authority: (1) the use of channels of interstate commerce; (2) the instrumentalities of interstate commerce or persons or things in interstate commerce; and (3) activities that substantially affect interstate commerce. Id. at 558-59, 115 S.Ct. 1624. The Court held that the proper test for evaluating a statute like the Gun Free School Zones Act, which neither regulated commercial activity nor contained a jurisdictional element requiring that the regulated activity be connected to interstate commerce, is whether the statute “substantially affects” interstate commerce. Id. at 559, 115 S.Ct. 1624. Applying this test, the Court invalidated the Act because the “possession of a gun in a" } ]

[ { "docid": "13124859", "title": "", "text": "followed. II. A. Constitutional Claim Morales appears to bring both facial and as-applied challenges to the constitutionality of § 2251(a). Relying on United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995) and United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000), Morales urges that § 2251(a) is unconstitutional because it attempts to regulate intrastate child pornography created exclusively for personal use which, Morales argues, does not affect interstate commerce. Morales further argues that even if the statute is facially constitutional, it is unconstitutional as applied to him because his activities were not commercial in nature and did not implicate interstate commerce. We review constitutional challenges de novo. United States v. Robinson, 137 F.3d 652, 653 (1st Cir. 1998). Section 2251(a) is part of a broad regulatory scheme that prohibits the production, receipt, transmission, and possession of child pornography. See 18 U.S.C. §§ 2251, 2252, 2252A. When this statute was originally enacted as part of the Protection of Children Against Sexual Exploitation Act of 1977, Pub.L. No. 95-225, § 2(a), 92 Stat. 7, 8 (1978)(codified at 18 U.S.C. §§ 2251 et seq.)(“the Act”), it targeted production of child pornography only if the pornographic depiction itself was transported in interstate commerce, or if the defendant knew, or should have known, that the depiction would be transported in interstate commerce. In 1998, Congress amended the Act by adding the jurisdictional element we have before us today: only the materials used to produce the pornographic depictions must “have been mailed, shipped, or transported in interstate or foreign commerce by any means .... ” to subject a potential defendant to liability. 18 U.S.C. § 2251(a). 1. Lopez and Morrison Morales argues that the “materials-in-commerce” Morales argues that the “materials-in-commerce” jurisdictional element in § 2251(a) is an unconstitutional exercise of Congress’s Commerce Clause power in light of United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995) and United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000). In Lopez, the Supreme Court struck down the Gun-Free School" }, { "docid": "22113602", "title": "", "text": "Clause cast doubt on the continuing vitality of Scarborough. Those decisions are United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000), and Jones v. United States, 529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000). In Lopez, the Supreme Court struck down the “Gun-Free School Zone Act,” 18 U.S.C. § 922(q)(l)(a), holding it exceeded Congressional power under the Commerce Clause because the Act did not regulate a commercial activity (possession of a gun near a school) nor did it contain a requirement the possession of a firearm in a school zone be connected in any way to interstate commerce. Lopez, 514 U.S. at 567-68, 115 S.Ct. 1624. Lopez recognized three broad areas which Congress may regulate under the Commerce Clause: 1) channels of interstate commerce; 2) instrumentalities of interstate commerce, or persons and things in interstate commerce, even though the threat may only come from intrastate activities; and 3) activities that substantially affect interstate commerce. Lopez, 514 U.S. at 558-59, 115 S.Ct. 1624. This Court’s decision in United States v. Bolton, 68 F.3d 396 (10th Cir.1995) (holding § 922(g)(1) a valid exercise of the commerce power because it required the firearm to have traveled in interstate commerce), foreclosed any appeal of Mr. Dorris’ conviction based solely on the Lopez decision. We also examined § 922(g)(l)’s application post-Lopez in United States v. Farnsworth, 92 F.3d 1001 (10th Cir.1996), where the appellant argued the government must show the possession of the firearm had substantial effect on interstate commerce. We rejected that argument, holding an individualized showing of substantial effect on commerce was unnecessary. Farnsworth, 92 F.3d at 1006. Nevertheless, Mr. Dorris argues the effect of Lopez, when combined with Morrison and Jones, calls for us to overturn our decisions in Bolton and Farnsworth. In Morrison, the Court struck down the civil remedy provision of the Violence Against Women Act (VAWA), 42 U.S.C. 13981(b), holding it exceeded Congressional authority to regulate interstate commerce. Morrison, 120 S.Ct. at 1754. In so doing, the Court" }, { "docid": "14229855", "title": "", "text": "did not prove a sufficient link to interstate commerce or because the District Court did not adequately instruct the jury as to the necessity of finding a sufficient link to interstate commerce. Mr. Hatcher, for example, argues that, in light of the Supreme Court rulings in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), and United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000), the evidence linking the robberies to interstate commerce was insufficient. Each of the appellants likewise argues that there was instructional error regarding the necessary link to commerce. We reject these arguments. There was overwhelming evidence to show that the robberies substantially affected interstate commerce. Appellants strongly urge that the government was required to prove that the jewelry stores were actively engaged in interstate commerce at the time of the robberies to satisfy its burden of proof. One case cited repeatedly for this proposition is United States v. Peterson, 236 F.3d 848 (7th Cir.2001). This case does not support the proposition, however. In Peterson, the Seventh Circuit held that the government need prove only a de minimis effect on interstate commerce, and stated “[tjraditionally, the government meets the de minimis standard under the ‘depletion of assets’ theory. The government presents evidence that a business is either actively engaged in interstate commerce or customarily purchases items in interstate commerce, and has its assets depleted by the robbery, thereby curtailing the business’ potential as a purchaser of such goods.” Id. at 854 (emphasis added). Nothing in the opinion indicates that it was meant as an exhaustive list of the methods that the government could use to prove a link to interstate commerce: it was merely illustrative. Even if United States v. Peterson did stand for the proposition asserted by appellants, we would be forced to reject it, because our Court’s precedents do not require the government to prove that the business was actively engaged in interstate commerce at the time of the robbery. In United States v. Vong, 171 F.3d 648 (8th Cir.1999), we held that proof that" }, { "docid": "5632153", "title": "", "text": "at 36-37. In his supplemental opening brief, Grassie covers the subject in eight lines, this time offering the rationale that arson is a paradigmatic common law state crime, and in this case the buildings and their use, and the vehicle’s use, did not have a commercial character, citing Jones and United States v. Lopez, 514 U.S. 549, 580, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995) (Kennedy, J. concurring). We have discussed Jones above, along with the question of whether churches can ever be involved in activities affecting interstate commerce. To that discussion we add that by making interstate commerce an element of the crime under both § 247 and § 844(i), to be decided on a case-by-case basis, constitutional problems are avoided. See United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 1751, 146 L.Ed.2d 658 (2000); Lopez, 514 U.S. at 561-62, 115 S.Ct. 1624; Malone, 222 F.3d at 1295. We decline to pursue the issue by raising, then answering, further arguments on the subject. (2) The Truck Arson In his opening brief, Mr. Grassie contends that the evidence was insufficient to support a jury finding that the use of Norman Jensen’s truck had even a de minimis effect on interstate commerce. Appellant’s Opening Br. at 30-35. He pursues this argument in his supplemental brief dealing with the alleged impact of Jones. Appellant’s Supp. Br. at 11. Sufficiency of the evidence as to whether Norman Jensen’s truck was used in an activity affecting interstate commerce presents a more difficult question than the church damage and arson convictions. We note, however, that a reversal on this count will have little or no effect in view of the convictions on the church damage and arson counts. As Mr. Grassie points out, Jensen’s truck was mostly used for personal purposes such as going to school. Its active connection with interstate commerce was several trips each year (not in June, at the time of the arson) transporting Mrs. Jones’ pecans to a broker. The distance was short, approximately two miles according to Mr. Jensen. Tr. at 1006, 1012. The amount was not great," }, { "docid": "7451524", "title": "", "text": "argues that applying section 2332a to his conduct would violate the Commerce Clause because Congress may not regulate conduct whose only effect on interstate commerce is purely theoretical. It would be proper to consider whether his actions actually affected interstate commerce, he argues, but it is inappropriate to base the exercise of jurisdiction on speculation about would have happened in an alternate scenario. Davila’s argument is unavailing. It is well established that the Commerce Clause permits Congress to criminalize activity that threatens to affect interstate commerce, even if that threat does not materialize in every case. “Congress can constitutionally reach inchoate offenses because these offenses pose a potential threat to interstate commerce; the existence of such a threat ties ‘the proscribed conduct to the area of federal concern delineated by the statute.’ ” United States v. Jannotti, 673 F.2d 578, 592 (3d Cir.1982) (quoting United States v. Feola, 420 U.S. 671, 695, 95 S.Ct. 1255, 43 L.Ed.2d 541 (1975)); accord United States v. Curdo, 759 F.2d 237, 241-42 (2d Cir.1985). We see no material distinction between Congress’s authority to criminalize the inchoate offenses of attempt or conspiracy, on one hand, and the perpetration of a hoax, on the other. All of these activities purport to pose a threat to interstate commerce, regardless of whether they are actually capable of being carried out. See United States v. Clemente, 22 F.3d 477, 480-81 (2d Cir.1994) (“ ‘Factual impossibility’ is no defense to the inchoate offense of conspiracy under the Hobbs Act.”). Davila argues that in light of United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000), and United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), the Commerce Clause must be read as imposing a requirement of something beyond a minimal or theoretical effect on interstate commerce. His reliance on these cases is misplaced. Both Morrison and Lopez were concerned with statutes that lacked an explicit jurisdictional element. See Morrison, 529 U.S. at 613, 120 S.Ct. 1740 (“Like the Gun-Free School Zones Act at issue in Lopez, § 13981 contains no jurisdictional" }, { "docid": "2309151", "title": "", "text": "Fleming’s § 924(c) convictions were imposed consecutively, as required by § 924(c)(1)(D). Sutton received a sentence of 52 years and 3 months. His sentencing included a two-level sentencing enhancement under U.S. Sentencing Guidelines Manual § 3C1.1 (“U.S.S.G.”) for obstructing justice by providing a false alibi defense in Sutton’s state case, and attempting to do so during the federal case. There are five issues on appeal. First, all of the appellants claim that the government did not provide sufficient evidence of an effect on interstate commerce to support the Hobbs Act convictions. Second, the appellants all challenge the exclusion of the government’s fingerprint reports. Third, Brown and Sutton appeal the district court’s decision to allow Detective Dandurand to testify about Fleming’s confession. Fourth,-Sutton appeals the district court’s obstruction of justice finding and subsequent sentence enhancement of two levels. Fifth, Fleming appeals his consecutive life sentences. II. A. Hobbs Act All three defendants appeal the court’s decision that there was sufficient effect on interstate commerce to support the indictments’ counts under the Hobbs Act. They argue that, after the Supreme Court’s decisions in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995) and United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000), the government must prove a “substantial effect” on interstate commerce in order for there to be jurisdiction to prosecute under the Hobbs Act, and failed to do so. 18 U.S.C. § 1951. However, the defendants acknowledge that this argument has been rejected by this court in the past. We have ruled definitively that the Hobbs Act only requires that the government show a de minimis effect on interstate commerce to “bring robbery within its prosecutorial reach.” United States v. Peterson, 236 F.3d 848, 851-52 (7th Cir.2001) The defendants also acknowledge that application of the government’s “depletion of assets” theory easily meets the de minimis effect standard. We find nothing in the defendants’ arguments that would persuade us to overrule established circuit precedent. B. Fingerprint Evidence The admission or exclusion of evidence (when objected to at trial) is re-' viewed for" }, { "docid": "2643451", "title": "", "text": "Freitas Invoices schemes: (1) there was insufficient evidence that these schemes had the constitutionally required impact on interstate commerce; (2) there was insufficient evidence that he affirmatively acted in such a way as to be fairly accused of having attempted or conspired to engage in extortion; and (3) the district court’s jury instructions erroneously described what was required to establish an attempt or conspiracy to engage in extortion. There is some question whether each of these arguments was made below as to each of the three convictions, but we bypass issues of forfeiture because none of the arguments is persuasive on its merits. Corrente’s first argument is largely based on an assertion that his convictions are unconstitutional because his offense conduct had to, but did not, have more than a de minimis effect on interstate commerce in order to jibe with the Supreme Court’s decisions in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), and United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000). After briefs were filed in this case, another panel of the court rejected this argument, United States v. Capozzi, 347 F.3d 327, 334-336 (1st Cir.2003), so we must reject it too, see, e.g., United States v. Downs-Moses, 329 F.3d 253, 263 (1st Cir.2003). Corrente alternatively argues that no reasonable factfinder could have found that his offense conduct had such a de minimis effect. He is wrong. With respect to Corrente’s attempted extortion in connection with the Freitas Lease scheme, the jury could have found that, but for Freitas’ agreement to pay Corrente for favorable intervention on his behalf with the school department, there was a realistic probability that the City contractor (an entity engaged in interstate commerce and whose lease agreement would be a transaction affecting interstate commerce ) would have leased space in Cranston, Rhode Island. This evidence alone satisfies constitutional concerns, even if the space for which Corrente advocated actually proved to be a better fit for the contractor. See Capozzi, 347 F.3d at 335 (extortionate conduct need only create a realistic probability" }, { "docid": "14043541", "title": "", "text": "$8.5 million was insufficient to cause the kind of effect on commerce necessary to trigger the applicability of the Hobbs Act. In United States v. Capozzi, considering the effect of United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), and United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000), we reaffirmed that, to establish the requisite effect on interstate commerce for a Hobbs Act violation, the government need show only that the conduct created a “realistic probability” of a minimal effect on interstate commerce. Capozzi, 347 F.3d 327, 335 (1st Cir.2003). The Concord Wal-Mart store manager testified at trial that if the stolen money had not been taken, it would have been reinvested in the purchase of goods manufactured outside the state of New Hampshire. That evidence sufficed to show the necessary effect on commerce. See Capozzi at 335. D. Resentencing under Blakely/Booker. In his original brief, Brennick made the argument, for the first time on appeal, that it was plain error to sentence him as a Career Offender under U.S.S.G. § 4B1.1 without a jury finding of the required elements because, under the reasoning of Blakely, the Sixth Amendment right to jury trial applies to sentencing increases specified in the United States Sentencing Guidelines. After oral argument in this case, the Supreme Court decided United States v. Booker. We invited both parties to file supplemental briefs on the point. Bren-nick now contends that he is entitled to a remand for resentencing at which he and his counsel would have an opportunity to present mitigating evidence. We reject Brennick’s argument. As Brennick concedes in his supplemental brief, the Booker error was not preserved by objection during the proceedings below. As we made clear in United States v. Antonakopoulos, under the Supreme Court’s teachings of United States v. Olano, for a court of appeals to notice and correct an error not objected to in the district court, “[tjhere must be an ‘error’ that is ‘plain’ and that ‘affect[s] substantial rights.’ ” Antonakopoulos, 399 F.3d 68, 77 (1st Cir.2005) (quoting Olano, 507" }, { "docid": "2643455", "title": "", "text": "acknowledges that we are powerless to grant him relief and that he must go to the Supreme Court. Id. There are hints of other arguments in Corrente’s brief, but none is sufficiently developed to warrant consideration on the merits. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.1990). In any event, our review of the record convinces us that there is no basis for reversing or vacating Corrente’s attempted extortion and extortion conspiracy convictions. Any sufficiency challenge is doomed because there was sufficient evidence to support the convictions even under the more demanding interpretation of the Hobbs Act for which Corrente advocates. With respect to the Freitas Lease scheme, the jury could have found that Corrente “induced” payments from Freitas when, at one point prior to receiving any money related to this scheme, he suggested to Freitas that City Hall could either hurt or help his chances of securing the lease (depending, presumably, on whether Freitas anted up). With respect to the Freitas Invoices scheme, the jury could have found that Pannone, Corrente’s co-conspirator, induced payments on Corrente’s behalf by encouraging Freitas to “throw something” at Corrente — i.e., to “pay to get paid.” So too with the jury instructions. As clarified in a supplemental charge just pri- or to the return of the verdicts, the instructions on the attempted extortion and extortion conspiracy charges were, if anything, overly generous to Corrente. And because the evidence was sufficient to support the convictions even under the arguably too lenient instructions, any error was harmless. See Fed.R.Crim.P. 52(a); United States v. Royal, 100 F.3d 1019, 1027 (1st Cir.1996). IV. Admission of the Pannone Tapes Defendants contend that the district court violated various Rules of Evidence and their confrontation and due process rights in admitting into evidence certain tape-recorded conversations among Frei-tas (who was acting as a government agent), Pannone, the Chairman of the Board of Tax Assessment Review and an alleged co-conspirator, and various other individuals, some identified and others not. They also argue that the court erred in precluding them from interposing objections to the admission of these tape" }, { "docid": "2643450", "title": "", "text": "argument is unconvincing. There was evidence that, during a face-to-face meeting in which his favorable intercessions were sought, Autiello told Mary Maggiacomo and her husband that Providence police officer positions were prized and that Joseph Maggiacomo’s chances were not good because the Mag-giacomos were not Providence taxpayers and had not made any “contributions.” In nearly the same breath, Autiello told them that, if they wanted Joseph to be accepted into the police academy, they would have to come up with $5,000 in cash. The juxtaposition of these two comments, combined with the evidence that Autiello himself held no authority to make police academy admission decisions, permitted a reasonable inference that the $5,000 was to be a political “contribution” that would serve as Joseph’s ticket of admission when passed along to someone with authority over academy admission decisions. B. Hobbs Act Attempted Extortion and Extortion Conspiracy (Cor-rente) Corrente makes three arguments in favor of reversing or vacating his convictions for Hobbs Act attempted extortion and Hobbs Act extortion conspiracy in connection with the Freitas Lease and Freitas Invoices schemes: (1) there was insufficient evidence that these schemes had the constitutionally required impact on interstate commerce; (2) there was insufficient evidence that he affirmatively acted in such a way as to be fairly accused of having attempted or conspired to engage in extortion; and (3) the district court’s jury instructions erroneously described what was required to establish an attempt or conspiracy to engage in extortion. There is some question whether each of these arguments was made below as to each of the three convictions, but we bypass issues of forfeiture because none of the arguments is persuasive on its merits. Corrente’s first argument is largely based on an assertion that his convictions are unconstitutional because his offense conduct had to, but did not, have more than a de minimis effect on interstate commerce in order to jibe with the Supreme Court’s decisions in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), and United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000)." }, { "docid": "19942303", "title": "", "text": "court then sentenced Baylor to a term of 56 months of imprisonment on Count One and 84 months on Count Two, to be served consecutively, for a total term of 140 months of imprisonment. II. Baylor argues that in order to satisfy the jurisdictional element of the Hobbs Act, his activity must have had more than a de minimis effect on interstate commerce. Accordingly, Baylor contends that our prior cases interpreting the Hobbs Act, which have held that a de minimis effect on interstate commerce is sufficient to meet constitutional requirements, should be re-examined in light of the Supreme Court’s decision in Morrison. In Morrison, the Court invalidated the civil remedy provision of the Violence Against Women Act, holding that it did not regulate activity that substantially affected interstate commerce. 529 U.S. at 613, 120 S.Ct. 1740. Five years earlier, in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), the Court held that Congress’s enactment of the Gun-Free School Zones Act of 1990 exceeded the scope of its authority under the Commerce Clause, in that “possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce.” Lopez, 514 U.S. at 567, 115 S.Ct. 1624. See also United States v. Dupree, 323 F.3d 480, 485 n. 1 (6th Cir.2003) (summarizing the holdings of Lopez and Morrison). We review Baylor’s argument de novo because it raises a question of law. United States v. Smith, 182 F.3d 452, 455 (6th Cir.1999). The Hobbs Act provides that “[wjhoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion ... shall be fined ... or imprisoned.... ” 18 U.S.C. § 1951(a). In Smith, we reaffirmed our pre-Lopez holdings that the government must prove only that a robbery had a de minimis effect on interstate commerce in order to satisfy the jurisdictional requirement of the Hobbs Act. Surveying the weight of authority from our sister circuits, we observed that:" }, { "docid": "23087952", "title": "", "text": "by the Second Amendment. Id. at 226 n. 21. Section 922(g)(1) does not violate the Second Amendment. B.Commerce Clause Darrington argues that section 922(g)(1) exceeds congressional power to regulate interstate commerce because the statute does not require a “substantial” effect on interstate commerce. We rejected a commerce clause challenge to section 922(g)(1) in United States v. Daugherty, 264 F.3d 513, 518 (5th Cir.2001). We reaffirmed that “ ‘the constitutionality of § 922(g) is not open to question.’ ” Id. (quoting United States v. De Leon, 170 F.3d 494, 499 (5th Cir.1999)). Daugherty rejected Darringtoris argument that section 922(g)(1) cannot pass constitutional muster in light of the Supreme Court’s decisions in United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000), Jones v. United States, 529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000), and United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). Daugherty, 264 F.3d at 518. See also United States v. Rawls, 85 F.3d 240, 242 (5th Cir.1996). As in the pending case, the interstate commerce requirement was met in Daugherty because the gun traveled in interstate commerce. Daugherty, 264 F.3d at 518. Insofar as Darrington suggests that Emerson somehow upsets our prior holdings in Daugherty and other cases, one panel of this court cannot overrule the decision of another panel. FDIC v. Dawson, 4 F.3d 1303, 1307 (5th Cir.1993). Emerson itself recognized that it could not overrule Fifth Circuit precedent in this regard. Emerson, 270 F.3d at 217. Alternatively, Darrington argues that even if the statute is facially constitutional, his indictment was defective for failing to allege that his specific offense had a substantial effect on interstate commerce. We rejected this argument in United States v. Gresham, 118 F.3d 258, 264-65 (5th Cir.1997). He also argues that the factual basis for his plea was insufficient because the evidence established only that the firearm was manufactured in California and traveled across state lines at some unspecified point in the past. We have also rejected this argument. United States v. Fitzhugh, 984 F.2d 143, 145-46 (5th Cir.1993). C. Tenth" }, { "docid": "22884927", "title": "", "text": "210 (citation omitted). Applying these principles, we found it “clear that interstate commerce was affected, however minimally, because the bar sold Heineken and Miller beer that came from outside the Virgin Islands[,]” id. at 211 n. 7, and because “the bar’s assets were depleted” by the robbery. Id. There thus appears to be little doubt that our precedent supports the District Court’s use of “potential” effect and its formulation of the depletion of assets theory in the jury instructions. Appellants counter with several arguments, none of which alter our view. First, Appellants invoke a trilogy of Supreme Court Commerce Clause cases beginning with United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), and proceeding to United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000) and Jones v. United States, 529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000). Appellants argue that construing the Hobbs Act to require only proof of a potential effect would be constitutionally doubtful in light of this trilogy of cases, thus compelling a strict construction of the Act as requiring proof of an “actual effect” in order to avoid constitutional doubt. But Appellants do not clearly articulate what would be constitutionally doubtful about interpreting the Hobbs Act to require only proof of a potential effect on commerce. We surmise that after the Lopez-Morrisonr-Jones trilogy, the purported constitutional doubtfulness of such a construction stems from those decisions’ holdings that Congress may only regulate activities “having a substantial relation to interstate commerce .... i.e. those activities that substantially affect interstate commerce.” Lopez, 514 U.S. at 558-59, 115 S.Ct. 1624. But we have already rejected the argument that Lopez and its progeny require proof of a “substantial effect” on commerce in an individual case in order to show a Hobbs Act violation. See United States v. Clausen, 328 F.3d 708, 711 (3d Cir.2003). In Clausen, we followed the lead of other circuits, including the Fifth Circuit, which had held that after Lopez, “legislation concerning an intrastate activity will be upheld if Congress could rationally have concluded that the" }, { "docid": "2643452", "title": "", "text": "After briefs were filed in this case, another panel of the court rejected this argument, United States v. Capozzi, 347 F.3d 327, 334-336 (1st Cir.2003), so we must reject it too, see, e.g., United States v. Downs-Moses, 329 F.3d 253, 263 (1st Cir.2003). Corrente alternatively argues that no reasonable factfinder could have found that his offense conduct had such a de minimis effect. He is wrong. With respect to Corrente’s attempted extortion in connection with the Freitas Lease scheme, the jury could have found that, but for Freitas’ agreement to pay Corrente for favorable intervention on his behalf with the school department, there was a realistic probability that the City contractor (an entity engaged in interstate commerce and whose lease agreement would be a transaction affecting interstate commerce ) would have leased space in Cranston, Rhode Island. This evidence alone satisfies constitutional concerns, even if the space for which Corrente advocated actually proved to be a better fit for the contractor. See Capozzi, 347 F.3d at 335 (extortionate conduct need only create a realistic probability of an effect on interstate commerce) (citations omitted); id. at 337 (conviction for attempted extortion requires only a showing that the identified effect would have occurred had the defendant succeeded in the extortion); United States v. Tormos-Vega, 959 F.2d 1103, 1113 (1st Cir.1992) (extortionate conduct meets constitutional requirements even where it “has a beneficial effect on interstate commerce”) (citation and internal quotation marks omitted); id. (where the victim’s acquiescence in an extortion results in a transaction with effects on interstate commerce, constitutional concerns are satisfied). With respect to the Freitas Invoices scheme, the jury could have found that a city contractor that was indisputably engaged in interstate commerce was deprived of $1,100 in order to facilitate payments to which it was entitled. This was enough. See Capozzi, 347 F.3d at 337 (“One common method for the government to establish the required ‘de minimis effect’ on interstate commerce is to show that the defendant’s activity “minimally depletes the assets of an entity doing business in interstate commerce.” ”) (quoting United States v. Nguyen, 246 F.3d 52," }, { "docid": "5746434", "title": "", "text": "require proof of different elements. Thus, the district court did not commit plain error in determining that two convictions were authorized under the language of section 924(c). III. Hobb’s Act Claims Malone next argues that the district court erred in instructing the jury that only a de minimis effect on interstate commerce is needed to prove the jurisdictional nexus under 18 U.S.C. § 1951. According to Malone, the Hobb’s Act requires a showing of a substantial effect on interstate commerce. A panel of this Circuit has previously held that the “ ‘jurisdictional predicate of the Hobbs Act can be satisfied by a showing of any de minimis effect on commerce.’ ” United States v. Bolton, 68 F.3d 396, 398 (10th Cir.1995) (quoting United States v. Zeigler, 19 F.3d 486, 489 (10th Cir.1994)). We agree with the holding of Bolton and are bound, in any event, by this precedent. See In re Smith, 10 F.3d 723, 724 (10th Cir.1993) (“We cannot overrule the judgment of another panel of this court. We are bound by the precedent of prior panels absent en banc reconsideration or a superseding contrary decision by the Supreme Court.”). Malone, however, points to the Supreme Court’s recent decisions in Jones v. United States, — U.S. -, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000) and United States v. Morrison, — U.S. -, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000) to support his argument that more than a de minimis showing is required under the Hobbs Act. We do not believe that either of these decisions affect this court’s prior holding that only a de minimis showing is required under the Hobbs Act. In United States v. Morrison, the Supreme Court held that 42 U.S.C. § 13981 of the Violence Against Women Act of 1994 (“VAWA”) could not be sustained under the Commerce Clause. See —- U.S. at --, 120 S.Ct. at 1754. In reaching this conclusion, the court relied heavily on its earlier decision of United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). This court in Bolton determined that Lopez was consistent with" }, { "docid": "12678793", "title": "", "text": "effect on interstate commerce. All that is required is some effect on interstate commerce.” Marino argues that under the Supreme Court’s rulings in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), and United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000), the government had to show that the enterprise’s activity had a substantial effect on interstate commerce. That is not so. In Lopez, the Gun-Free School Zones Act, 18 U.S.C. § 922(q) (Supp. II 1990) (amended 1994), was struck down because it did not have a “jurisdictional element which would ensure, through case-by-case inquiry, that the [activity] in question affect[ed] interstate commerce.” Lopez, 514 U.S. at 561, 115 S.Ct. 1624. In Morrison the Supreme Court invalidated the civil remedy provided by the Violence Against Women Act, 42 U.S.C. § 13981, for similar reasons: “[l]ike the Gun-Free School Zones Act at issue in Lopez, § 13981 contains no jurisdictional element establishing that the federal cause of action is in pursuance of Congress’ power to regulate inter state commerce.” Morrison, 529 U.S. at 613, 120 S.Ct. 1740. In contrast, RICO contains a jurisdictional element: “It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate ... in the conduct of such enterprise’s affairs.... ” 18 U.S.C. § 1962(c) (emphasis added). A number of circuit courts have held, post-Lopez, that the government does not need to show that the RICO enterprise’s effect on interstate commerce is substantial. United States v. Riddle, 249 F.3d 529, 537 (6th Cir.) (holding that “RICO enterprise’s necessary relationship to interstate commerce” is still “de minimis”), cert. denied, — U.S. -, 122 S.Ct. 292, 151 L.Ed.2d 216 (2001); United States v. Juvenile Male, 118 F.3d 1344, 1347 (9th Cir.1997) (“[AJI that is required to establish federal jurisdiction in a RICO prosecution is a showing that the individual predicate racketeering acts have a de minimis impact on interstate commerce.”); United States v. Miller, 116 F.3d 641, 674 (2d Cir.1997) (holding" }, { "docid": "21630192", "title": "", "text": "in a 39-count superseding indictment and jointly tried before a jury. The court denied their motions for severance, as well as various other motions challenging the admissibility of evidence. The foursome now appeal these adverse trial rulings, their sentences and their convictions. II A number of the arguments before us are common to all four appellants. We address those first and -then turn to the individual points presented by appellants Moore, Ramos and Young. A. Common Arguments ■1 The Officers start with an argument that they concede is foreclosed by earlier decisions of this court. They ask that we find that the Hobbs Act does not reach individual robberies involving drug dealers as victims unless the government proves that the particular robbery had a substantial effect on interstate commerce. They contend that no less is required in the wake of the Supreme Court’s decisions in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995); United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000); and Jones v. United States, 529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000). Yet they have offered no reason why we should revisit our decisions in United States v. Sutton, 337 F.3d 792, 796 (7th Cir.2003) (rejecting argument that the government must show a substantial effect on interstate commerce to support a Hobbs Act violation); United States v. Marrero, 299 F.3d 653, 655-56 (7th Cir.2002); United States v. Peterson, 236 F.3d 848, 852 (7th Cir.2001); and United States v. Bailey, 227 F.3d 792, 797 (7th Cir.2000). Sutton, Peterson and Marrero each explicitly considered the Supreme Court’s - developing jurisprudence in this area and rejected this argument. They hold that no more than a de minimis effect on interstate commerce need be shown so long as the entity itself belongs to a class of businesses that in the aggregate has a substantial effect on interstate commerce. Other courts of appeals to consider this issue have likewise rejected the Officers’ position. See, e.g., United States v. Dupree, 323 F.3d 480, 485-86 (6th Cir.2003) (upholding standard allowing de" }, { "docid": "2643454", "title": "", "text": "54 (1st Cir.2001)). Corrente’s other two arguments are very difficult to follow. In the main, they appear to be interrelated attacks on the correctness of Evans v. United States, 504 U.S. 255, 112 S.Ct. 1881, 119 L.Ed.2d 57 (1992). Evans interpreted the provision of the Hobbs Act under which Corrente was convicted — one which prohibits extortion by means of “the obtaining of property from another, with his consent, ... [2] under color of official right,” 18 U.S.C. § 1951(b)(2) — not to require that the government prove that the defendant initiated the extortionate transaction or otherwise induced the payments. Rather, “the Government need only show that a public official has obtained a payment to which he was not entitled, knowing that the payment was made in return for official acts.” Id. at 268, 112 S.Ct. 1881. Corrente appears to believe that the Evans Court erred in concluding that the defendant need not induce the payment or otherwise initiate the event. See Corrente Br. at 49. To the extent that he is so arguing, Cor-rente acknowledges that we are powerless to grant him relief and that he must go to the Supreme Court. Id. There are hints of other arguments in Corrente’s brief, but none is sufficiently developed to warrant consideration on the merits. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.1990). In any event, our review of the record convinces us that there is no basis for reversing or vacating Corrente’s attempted extortion and extortion conspiracy convictions. Any sufficiency challenge is doomed because there was sufficient evidence to support the convictions even under the more demanding interpretation of the Hobbs Act for which Corrente advocates. With respect to the Freitas Lease scheme, the jury could have found that Corrente “induced” payments from Freitas when, at one point prior to receiving any money related to this scheme, he suggested to Freitas that City Hall could either hurt or help his chances of securing the lease (depending, presumably, on whether Freitas anted up). With respect to the Freitas Invoices scheme, the jury could have found that Pannone, Corrente’s" }, { "docid": "19942312", "title": "", "text": "standard was satisfied where defendant attempted to rob a bar that purchased alcohol that had traveled in interstate commerce). IV. For the reasons stated, we affirm Baylor’s convictions. SUHRHEINRICH, Circuit Judge, concurring. I concur because the majority’s decision is consistent with the law of this Circuit and most other circuits, and is thus correct. However, I think those decisions are inconsistent with the recent Supreme Court precedent, and more fundamentally, the doctrine of federalism. In United States v. Lopez, the Supreme Court held that to fall within the scope of the Commerce Clause, the regulated activity must substantially affect interstate commerce. United States v. Lopez, 514 U.S. 549, 559, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995) (“Where economic activity substantially affects interstate commerce, legislation regulating that activity will be sustained.”). In United States v. Morrison, the Supreme Court expressly rejected an aggregation theory when regulating non economic activity. The regulation and punishment of intrastate violence that is not directed at the instrumentalities, channels, or goods involved in interstate commerce has always been the province of the States. Indeed, we can think of no better example of the police power, which the Founders denied the National Government and reposed in the States, than the suppression of violent crime and vindication of its victims. United States v. Morrison, 529 U.S. 598, 617, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000) (citations omitted). By continuing to allow a de minimis standard for individual violations of the Hobbs Act, we are essentially nullifying the “substantial effect” test of Lopez and Morrison. See United States v. Dupree, 323 F.3d 480, 485 (6th Cir.2003) (holding that “the traditional de minimis standard for Hobbs Act violations survived Lopez”). The effect of our Court’s rulings is that every local robbery of a business in the United States is a federal crime. I acknowledge that the Supreme Court has held that Congress intended to include within the scope of the Hobbs Act conduct that was already punishable under the state robbery and extortion statutes. See United States v. Culbert, 435 U.S. 371, 379-80, 98 S.Ct. 1112, 55 L.Ed.2d 349 (1978)." }, { "docid": "2643453", "title": "", "text": "of an effect on interstate commerce) (citations omitted); id. at 337 (conviction for attempted extortion requires only a showing that the identified effect would have occurred had the defendant succeeded in the extortion); United States v. Tormos-Vega, 959 F.2d 1103, 1113 (1st Cir.1992) (extortionate conduct meets constitutional requirements even where it “has a beneficial effect on interstate commerce”) (citation and internal quotation marks omitted); id. (where the victim’s acquiescence in an extortion results in a transaction with effects on interstate commerce, constitutional concerns are satisfied). With respect to the Freitas Invoices scheme, the jury could have found that a city contractor that was indisputably engaged in interstate commerce was deprived of $1,100 in order to facilitate payments to which it was entitled. This was enough. See Capozzi, 347 F.3d at 337 (“One common method for the government to establish the required ‘de minimis effect’ on interstate commerce is to show that the defendant’s activity “minimally depletes the assets of an entity doing business in interstate commerce.” ”) (quoting United States v. Nguyen, 246 F.3d 52, 54 (1st Cir.2001)). Corrente’s other two arguments are very difficult to follow. In the main, they appear to be interrelated attacks on the correctness of Evans v. United States, 504 U.S. 255, 112 S.Ct. 1881, 119 L.Ed.2d 57 (1992). Evans interpreted the provision of the Hobbs Act under which Corrente was convicted — one which prohibits extortion by means of “the obtaining of property from another, with his consent, ... [2] under color of official right,” 18 U.S.C. § 1951(b)(2) — not to require that the government prove that the defendant initiated the extortionate transaction or otherwise induced the payments. Rather, “the Government need only show that a public official has obtained a payment to which he was not entitled, knowing that the payment was made in return for official acts.” Id. at 268, 112 S.Ct. 1881. Corrente appears to believe that the Evans Court erred in concluding that the defendant need not induce the payment or otherwise initiate the event. See Corrente Br. at 49. To the extent that he is so arguing, Cor-rente" } ]

[ { "docid": "23659824", "title": "", "text": "and facilities involved, the process employed, the engineering aspects of the application of various types of control techniques, process changes, the cost of achieving such effluent reduction, non-water quality environmental impact (including energy requirements), and such other factors as the Administrator deems appropriate * * *. B. THE JURISDICTIONAL ISSUE. The jurisdictional issue hinges on the relationship of § 304(b) to § 301(b) and their relationship to the permit-issuing process under § 402. The parties agree that this Court has jurisdiction under § 509(b) to directly review only certain actions of the EPA. The parties also agree that guidelines published under § 304(b) are not directly reviewable by this Court under § 509 and that, therefore, if the existing source regulations were published exclusively pursuant to § 304(b), we do not have jurisdiction to examine them in an original proceeding. The EPA urges that the regulations were promulgated not only pursuant to a § 304(b) power to publish guidelines, but also pursuant to a § 301(b) power to publish limitations. It contends that, in using the passive voice, “there shall be achieved * * * effluent limitations,” Congress intended to require the EPA to promulgate effluent limitations by regulation under § 301(b). Such effluent limitations would then serve as minimum national standards for industry categories, to be mechanically cranked into individual permits issued by the states or the EPA. Since § 509 provides that actions of the Administrator under § 301 are directly reviewable in the Courts of Appeals, the EPA asserts that we have jurisdiction to review the regulations pertaining to existing sources. The petitioners contend on the other hand that the EPA does not have power under § 301 to promulgate effluent limitations for existing sources by regulation. Instead, say the companies, the EPA is to publish guidelines under § 304(b), which shall be consulted by the permit-issuing authority. Under their view of the statute, the effluent limitations are to be set in the granting of individual permits. We conclude that the statute does not grant to the Administrator a separate power under § 301 to promulgate by" } ]

[ { "docid": "22041890", "title": "", "text": "any statutory timetable for § 301 limitations, can be explained on the basis of the greater difficulty of drafting § 301 regulations. (2) There was heated debate in Congress concerning whether EPA should be able to veto individual state permits, as the Act now provides. The Eighth Circuit believed that “creation of the veto power would make no sense if the EPA was already empowered to promulgate regulations under §301.” CPC I, supra, at 1040-1041. We disagree. “[A] veto power could have been considered just as necessary to ensure compliance by the permit grantors with section 301 limitations as with section 304 guidelines.” American Iron & Steel Institute, supra, at 1041. The veto power would be especially important because large numbers of permits could be issued before the § 301 regulations were promulgated. During this interim period, inconsistency with the § 304 (b) guidelines could be a ground for vetoing a permit. (Moreover, we disagree with the Eighth Circuit’s contention that EPA’s power to object to “the issuance of such permit as being outside the guidelines and requirements of this Act,” § 402 (d)(2), can only refer to § 304 (b) guidelines. CPC I, supra, at 1038-1039. Section 304 (h) provides for guidelines governing the procedure for issuance of permits; EPA can veto a permit if “the issuance of such permit” violated these guidelines.) We are also unconvinced by the argument that our view of the Act violates the congressional intent to leave the States a major role in controlling water pollution. See American Meat Institute, supra, at 452. Petitioners contend that the administrative construction should not receive deference because it was not contemporaneous with the passage of the Act. They base this argument primarily on the fact that EPA’s initial notices of its proposed rulemaking refer to § 304 (b), rather than § 301, as the source of authority. But this is merely evidence that the Administrator originally intended to issue guidelines prior to issuing effluent limitation regulations. American Frozen Food Institute v. Train, supra, at 128 n. 6, 539 F. 2d, at 130 n. 6. In fact, in" }, { "docid": "22041860", "title": "", "text": "of sources. “The Conferees agreed upon this limited cost-benefit analysis in order to maintain uniformity within a class and category of point sources subject to effluent limitations, and to avoid imposing on the Administrator any requirement to consider the location of sources within a category or to ascertain water quality impact of effluent controls, or to determine the economic impact of controls on any individual plant in a single community.” 118 Cong. Rec. 33696 (1972), Leg. Hist. 170 (emphasis added). He added that: “The Conferees intend that the factors described in section 304 (b) be considered only within classes or categories of point sources and that such factors not be considered at the time of the application of an effluent limitation to an individual point source within such a category or class.” 118 Cong. Rec. 33697 (1972), Leg. Hist. 172. This legislative history supports our reading of § 301 and makes it clear that the § 304 guidelines are not merely aimed at guiding the discretion of permit issuers in setting limitations for individual plants. What, then, is the function of the § 304 (b) guidelines? As we noted earlier, § 304 (b) requires EPA to identify the amount of effluent reduction attainable through use of the best practicable or available technology and to “specify factors to be taken into account” in determining the pollution control methods “to be applicable to point sources . . . within such categories or classes.” These guidelines are to be issued “[f]or the purpose of adopting or revising effluent limitations under this Act.” As we read it, § 304 requires that the guidelines survey the practicable or available pollution-control technology for an industry and assess its effectiveness. The guidelines are then to describe the methodology EPA intends to use in the § 301 regulations to determine the effluent limitations for particular plants. If the technical complexity of the task had not prevented EPA from issuing the guidelines within the statutory deadline, they could have provided valuable guidance to permit issuers, industry, and the public, prior to the issuance of the § 301 regulations. Our" }, { "docid": "22041847", "title": "", "text": "to § 402. §§ 304 (h), (f), (g). Within 270 days, he was to develop the information to be used in formulating standards for new plants pursuant to § 306. § 304 (c). And within one year he was to publish regulations providing guidance for effluent limitations on existing point sources. Section 304 (b) goes into great detail concerning the contents of these regulations. They must identify the degree of effluent reduction attainable through use of the best practicable or best available technology for a class of plants. The guidelines must also “specify factors to be taken into account” in determining the control measures applicable to point sources within these classes. A list of factors to be considered then follows. The Administrator was also directed to develop and publish, within one year, elaborate criteria for water quality accurately reflecting the most current scientific knowledge, and also technical information on factors necessary to restore and maintain water quality. § 304 (a). The title of § 304 describes it as the “information and guidelines\" portion of the statute. Section 301 is captioned “effluent limitations.” Section 301 (a) makes the discharge of any pollutant unlawful unless the discharge is in compliance with certain enumerated sections of the Act. The enumerated sections which are relevant to this case are § 301 itself, § 306, and § 402. A brief word about each of these sections is necessary. Section 402 authorizes the Administrator to issue permits for individual point sources, and also authorizes him to review and approve the plan of any State desiring to administer its own permit program. These permits serve “to transform generally applicable effluent limitations . . . into the obligations (including a timetable for compliance) of the individual discharger[s] . . . .\" EPA v. California ex rel. State Water Resources Control Board, 426 U. S. 200, 205. Petitioner chemical companies’ position in this litigation is that § 402 provides the only statutory authority for the issuance of enforceable limitations on the discharge of pollutants by existing plants. It is noteworthy, however, that although this section authorizes the imposition of" }, { "docid": "23390475", "title": "", "text": "the application of the best control measures and practices achievable.” Since the Administrator does not need guidelines to guide himself, the intention of Congress, they argue, was to guide the permit-issuing official or agency who, in issuing permits for specific plants, would thereby create the effluent limitations for that plant. Thus, since the regulations were not promulgated pursuant to § 301, Petitioners conclude that the regulations are “effluent limitation guidelines” promulgated solely pursuant to § 304, a section not included in the reviewable sections listed in § 509. The record, upon which the regulations are based, is steeped in technological data and the only section dealing with specific technology and factors to be considered in determining controls and practices applicable to point sources is § 304. EPA claims that the Administrator has combined in the regulations “efflüent limitations” promulgated pursuant to § 301 and “effluent limitation guidelines” promulgated pursuant to § 304 and that Congress intended that EPA promulgate § 301 “effluent limitations” by regulation before the permit-granting procedure is initiated. The Administrator promulgated § 304 “effluent limitation guidelines” which assertedly define in concrete terms the abstract norms of § 301 “effluent limitations”. These definitions are then incorporated into § 301 “effluent limitations” and the limitations are then incorporated into permits by permit-grantors. No express statutory authority supports this conclusion except that the effluent limitations of § 301 are to be “as defined by the Administrator pursuant to section 304(b).” On this fragile nexus of § 304 to § 301 to § 509, jurisdiction in the Court of Appeals is asserted to rest. Seeking guidelines of our own from the other Courts of Appeals which have had to cope with this problem of jurisdiction, a brief review of recent decisions from the Third, Fourth, Seventh and Eighth Circuits is a useful introduction to our discussion. In CPC International, Inc. v. Train, 515 F.2d 1032 (8th Cir. 1975), the Eighth Circuit concluded that “the guidelines [§ 304] for existing plants cannot be directly reviewed” and accordingly dismissed the petitions for review. The Court buttressed its opinion by “legislative history [which] confirms" }, { "docid": "23565349", "title": "", "text": "differing language in §§ 301(b)(1)(A) and 301(b)(2)(A) indicates that the administration of the Act differs as between 1977 and 1983 limitations. Noting that § 301(b)(1)(A) requires the achievement of “effluent limitations for point sources,” whereas § 301(b)(2)(A) requires the achievement of “effluent limitations for categories and classes of point sources,” Youngstown appears to argue that the 1983 limitations can only be established on a category or class basis while conceding that they can be established on an individual basis for 1977. However, we see nothing in the legislative history indicating that the regulatory scheme was to be so radically different as between the 1977 and 1983 limitations. Furthermore, it makes little sense to have the limitations applied on a point source by point source basis in 1977, while permitting limitations on a category-wide basis six years later. We thus conclude that any ambiguity created by §§ 301(b)(1)(A) and 301(b)(2)(A) on this point was inadvertent and was a result of imprecise legislative drafting. . Substantially similar language is included in section 304(b)(2)(B), pertaining to guidelines for 1983 standards. . Leg.Hist. at 172. . Id. at 254-55. . Id. at 1468. . Id. at 172. . As the Eighth Circuit in CPC International stated, “[t]his preoccupation with the precision of the guidelines as a means of achieving uniformity makes no sense in a regime where the permit-issuing authorities are to look, not to the guidelines, but to regulations promulgated under § 301.” Where we disagree with the Eighth Circuit is its conclusion that the permit grantors were not also constrained by § 301 limitations. As explained below, we conclude that they are bound to follow both § 301 limitations and § 304 guidelines. . Leg.Hist. at 1468 (emphasis added). . Id. (emphasis added). . Id. at 169 (emphasis added). . Id. at 1468 (emphasis added). . While Congress used the term “base level,” henceforth in our discussion of limitations we will refer to a ceiling of effluent discharge which the polluter cannot exceed, since we believe that the latter term more clearly expresses Congress’ intent. . Those twelve subcategories are: by-product coke," }, { "docid": "23199556", "title": "", "text": "under section 301.” The regulations unquestionably fall within the statutory definition of effluent limitations. Section 502(11) defines “effluent limitation” as “any restriction established by a State or the Administrator on quantities, rates, and concentrations” of discharges from point sources. Furthermore, the preambles to both the proposed and final regulations state that the regulations are promulgated pursuant to § 301 and § 304(b). 39 Fed.Reg. 7894 (1974) (final regulations); 38 Fed.Reg. 29858 (1973) (proposed regulations). Thus, on the surface, there would appear to be no question that the regulations are “effluent limitations” and “promulgated under § 301.” Nevertheless, and although the parties agree that the Administrator had authority to establish these regulations under § 301, his authority has been challenged by amici curiae, who argue that he had authority to issue such regulations as § 304(b) guidelines but not as § 301 effluent limitations. If this is so, our jurisdiction would at best be questionable, since § 509(b)(1), the source of our jurisdiction, does not provide that § 304(b) guidelines are directly reviewable. We therefore must consider whether the Administrator has authority to promulgate existing-source regulations under § 301. While ordinarily we would not allow amici to inject new issues into a case, our continuing duty to satisfy ourselves of our jurisdiction requires us to consider their argument. Amici assert that individual effluent limitations must be established for each existing point source through the permit-issuing process of § 402, using regulations promulgated under § 304(b) as guidelines. Thus, effluent limitations would be set on a case-by-case basis, rather than being prescribed by regulations covering entire subcategories. Under this view, the Administrator lacked the authority to establish across-the-board effluent limitations by regulation, so the regulations were not properly issued as § 301 limitations and are therefore not reviewable here. In essence, this was the position adopted by the Eighth Circuit in CPC International Inc. v. Train, 515 F.2d 1032, 1037 (8th Cir. 1975). In that case, the court held that it lacked jurisdiction to review similar regulations promulgated for a different point source category. The Third Circuit, in American Iron and Steel" }, { "docid": "23390477", "title": "", "text": "that Congress intended to enforce uniformity of conditions for existing plants, not by authorizing the promulgation of regulations under § 301, but by granting the EPA power to issue permits and to veto state-issued permits which do not comply with guidelines promulgated under § 304(b).” Next came the Third Circuit with American Iron and Steel Institute v. Environmental Protection Agency, 526 F.2d 1027 (3rd Cir. 1975) (November 7, 1975). There, a group of steel companies sought to review regulations entitled “Effluent Guidelines and Standards, Iron and Steel Manufacturing Point Source Category” promulgated by the Administrator as effluent limitations. The Court acknowledged that the “first, and most basic, challenge is to the Administrator’s very power to promulgate nationwide single number effluent limitations for existing point sources” and found that the answer “which goes to the very heart of the administration of the Act, depends upon our resolution of the interrelationship of three key sections of the Act— 301, 304 and 402.” The petitioners there had contended (as do Petitioners here) that limitations could only be established by the permit-granting authorities which would apply § 304 guidelines in issuing permits on a plant-by-plant basis under § 402. Although the Court recognized that § 301(b) “does not explicitly authorize the Administrator (or anyone else) to promulgate regulations establishing such limitations”, it concluded that in light of the statutory scheme and legislative history such power could be “inferred”. This inference was strengthened, in the Court’s opinion, by the “repeated reference to such limitations” as being “under” or “pursuant” to § 301. Accordingly, the Third Circuit disagreed with the Eighth’s conclusion in CPC Inter national and held that EPA did have the power to issue limitations under § 301. The Court concluded that “a joint reading of sections 304 and 301 lends support for the Administrator’s position” and accepted § 509 initial jurisdiction. A few days later (November 24,1975) the Seventh Circuit in American Meat Institute v. Environmental Protection Agency, 526 F.2d 442 (7th Cir., 1975), solved the problem of limitations or guidelines by flatly declaring at the outset “This is a review of effluent" }, { "docid": "23565246", "title": "", "text": "specific reference to the section 304(b) guidelines, the Eighth Circuit’s emphasis on that word ignores the fact that the permit grantors must also comply with the “requirements” of the Act. In section 402 (b)(1)(A), the Act requires that any permits issued “apply, and insure compliance with, any applicable requirements of sections 301, 302, 306, 307 and 403.” Section 304, unlike section 301, is never explicitly mentioned in section 402. We thus read the whole of section 402 as requiring compliance both with section 301 limitations and with any guidelines promulgated by the Administrator. We also believe that a close reading of the legislative history supports the Administrator’s position. The Senate Report accompanying the bill stated: “It is the Committee’s intention that pursuant to subsection 301(b)(1)(A), and Section 304(b) the Administrator will interpret the term ‘best practicable’ when applied to various categories of industries as a basis for specifying clear and precise effluent limitations to be implemented by January 1, 1976.” Virtually identical language was used by Senator Muskie, the principal author of the bill, in explaining the Report of the House-Senate Conference Committee. Senator Bentsen, a member of the Senate Public Works Committee which drafted the bill, gave perhaps the clearest indication that Congress contemplated that the Administrator would establish section 301 limitations: “In phase I, for point sources of pollutants, effluent limits shall be established not later than January 1, 1977 [now July 1, 1977], which comply with specifically defined levels of effluent controls and treatment. As defined in section 301(b)(1) of the bill, and as elaborated in the regulations which we anticipate the Administrator shall issue pursuant to section 301 and section 304, these 1976 [now 1977] goals shall be at least . . . the ‘best practicable control technology currently available’ for [industrial] point sources. ” The petitioners, as did the Eighth Circuit in CPC International, also rely on portions of the legislative history as support for their interpretation, but we believe that a close reading of the parts on which they rely does not contradict our analysis. Many of the statements indicating the need for flexibility," }, { "docid": "23390476", "title": "", "text": "304 “effluent limitation guidelines” which assertedly define in concrete terms the abstract norms of § 301 “effluent limitations”. These definitions are then incorporated into § 301 “effluent limitations” and the limitations are then incorporated into permits by permit-grantors. No express statutory authority supports this conclusion except that the effluent limitations of § 301 are to be “as defined by the Administrator pursuant to section 304(b).” On this fragile nexus of § 304 to § 301 to § 509, jurisdiction in the Court of Appeals is asserted to rest. Seeking guidelines of our own from the other Courts of Appeals which have had to cope with this problem of jurisdiction, a brief review of recent decisions from the Third, Fourth, Seventh and Eighth Circuits is a useful introduction to our discussion. In CPC International, Inc. v. Train, 515 F.2d 1032 (8th Cir. 1975), the Eighth Circuit concluded that “the guidelines [§ 304] for existing plants cannot be directly reviewed” and accordingly dismissed the petitions for review. The Court buttressed its opinion by “legislative history [which] confirms that Congress intended to enforce uniformity of conditions for existing plants, not by authorizing the promulgation of regulations under § 301, but by granting the EPA power to issue permits and to veto state-issued permits which do not comply with guidelines promulgated under § 304(b).” Next came the Third Circuit with American Iron and Steel Institute v. Environmental Protection Agency, 526 F.2d 1027 (3rd Cir. 1975) (November 7, 1975). There, a group of steel companies sought to review regulations entitled “Effluent Guidelines and Standards, Iron and Steel Manufacturing Point Source Category” promulgated by the Administrator as effluent limitations. The Court acknowledged that the “first, and most basic, challenge is to the Administrator’s very power to promulgate nationwide single number effluent limitations for existing point sources” and found that the answer “which goes to the very heart of the administration of the Act, depends upon our resolution of the interrelationship of three key sections of the Act— 301, 304 and 402.” The petitioners there had contended (as do Petitioners here) that limitations could only be established" }, { "docid": "11796864", "title": "", "text": "301(b), 304(b), and 402, establishes that the Administrator has a primary duty to publish section 304(b)(1)(A) guidelines by December 31, 1974. The Act relies on effluent limitations on individual point sources as the “basis of pollution prevention and elimination.” The achievement of these limitations depends on coordination of the different roles played .by sections 301(b), 304(b), and 402 in the formulation and implementation of the effluent limitations. Section 301(b) contains a broad description of the phase one and phase two effluent limitations, to be achieved' by July 1, 1977, and. July 1, 1983, respectively. The limitations established under section 301(b) are to be imposed upon individual point sources through permits issued under the National Pollutant Discharge Elimination System (NPDES) established by section 402. Those permits are to contain schedules which will assure phased compliance with the effluent limitations no later than the final dates set forth in section 301(b). Section 304(b) calls for the publication of regulations containing guidelines for effluent limitations for classes and categories of point sources. These guidelines are intended to assist in the establishment of section 301(b) limitations that will provide uniformity in the permit conditions imposed on similar sources within the same category by diverse state and federal permit authorities. The timetable governing the operation of these sections is controlled by the schedule for the issuance of permits under section 402. Section 301(a) of the Act prohibits the discharge of any pollutant unless there is compliance with the other sections listed therein. The key provision referred to in section 301(a) is section 402, which pertains to the creation of the national pollution discharge elimination system and the issuance of permits thereunder. Section 402(k) makes December 31, 1974, a critical date. Until then, the pendency of a permit application will prevent a finding of violation of section 301. After December 31, 1974, however, persons discharging pollutants must have obtained a permit in order to have a legal defense against prosecution. Obviously, Congress contemplated that the task of evaluating permit applications and issuing permits would be completed by that date. The Act’s text and its legislative history" }, { "docid": "22041891", "title": "", "text": "guidelines and requirements of this Act,” § 402 (d)(2), can only refer to § 304 (b) guidelines. CPC I, supra, at 1038-1039. Section 304 (h) provides for guidelines governing the procedure for issuance of permits; EPA can veto a permit if “the issuance of such permit” violated these guidelines.) We are also unconvinced by the argument that our view of the Act violates the congressional intent to leave the States a major role in controlling water pollution. See American Meat Institute, supra, at 452. Petitioners contend that the administrative construction should not receive deference because it was not contemporaneous with the passage of the Act. They base this argument primarily on the fact that EPA’s initial notices of its proposed rulemaking refer to § 304 (b), rather than § 301, as the source of authority. But this is merely evidence that the Administrator originally intended to issue guidelines prior to issuing effluent limitation regulations. American Frozen Food Institute v. Train, supra, at 128 n. 6, 539 F. 2d, at 130 n. 6. In fact, in a letter urging the President to sign the Act, the Administrator stated that “[t]he Conference bill fully incorporates as its central regulatory point the Administration’s proposal concerning effluent limitations in terms of industrial categories and groups ultimately applicable to individual dischargers through a permit system.” 118 Cong. Rec. 36777 (1972), Leg. Hist. 149 (emphasis added). Finally, the EPA interpretation would be entitled to some deference even if it was not contemporaneous, “having in mind the complexity and technical nature of the statutes and the subjects they regulate, the obscurity of the statutory language, and EPA’s unique experience and expertise in dealing with the problems created by these conditions.” American Meat Institute v. EPA, supra, at 450 n. 16. This litigation exemplifies the wisdom of allowing difficult issues to mature through full consideration by the courts of appeals. By eliminating the many subsidiary, but still troubling, arguments raised by industry, these courts have vastly simplified our task, as well as having underscored the reasonableness of the agency view. It should be noted that petitioners’ principal arguments" }, { "docid": "11796869", "title": "", "text": "soon as possible after the passage of the Act. It believed that the states would shoulder the primary burden of issuing permits to individual dis-chargers. With the establishment of a qualified state program, EPA duties were to be restricted to assuring that the state followed the procedural guidelines and to reviewing individual permits of major significance. The decentralization of permit issuing authority envisioned by section 402 prompted concerns that industrial threats to relocate in areas where pollution controls were less restrictive would coerce states into adopting lax permit requirements. The effluent limitation guidelines contained in section 304(b) and the corresponding effluent limitations to be promulgated under section 301(b) were intended to safeguard against industrial pressures by establishing a uniform “minimal level of control imposed on all sources within a category or class.” Senator Muskie emphasized the function of the guidelines in promoting uniformity. He stated that “[t]he Administrator is expected to be precise in his guidelines so as to assure that similar point sources with similar characteristics, regardless of their location or the nature of the water into which the discharge is made, will meet similar effluent limitations.” Prior to the promulgation of effluent limitations under section 301, the director of a state program is instructed merely to impose such terms and conditions in each permit as he determines are necessary to carry out the provisions of the Act. Once an effluent limitation is established, however, the state director and the regional EPA administrator are required to apply the specified, uniform effluent limitations, modified only as necessary to take account of fundamentally different factors pertaining to particular point sources within a given class or category. Any variation in the uniform limitations adopted for specific dischargers must be approved by the Administrator. The interrelationship of sections 301(b), 304(b), and 402 underscores the contemplation of Congress that the Administrator has a primary responsibility to publish effluent limitation guidelines for the great bulk of the classes and categories of point sources prior to the December 31, 1974, date by which existing polluters must obtain permits. The general expectation of Congress was that the" }, { "docid": "22041853", "title": "", "text": "standards are only pre sumptively applicable. Ibid. For convenience, we will refer to the chemical companies as the “petitioners.” The Issues The broad outlines of the parties’ respective theories may be stated briefly. EPA contends that § 301 (b) authorizes it to issue regulations establishing effluent limitations for classes of plants. The permits granted under § 402, in EPA’s view, simply incorporate these across-the-board limitations, except for the limited variances allowed by the regulations themselves and by § 301 (c). The § 304 (b) guidelines, according to EPA, were intended to guide it in later establishing § 301 effluent-limitation regulations. Because the process proved more time consuming than Congress assumed when it established this two-stage process, EPA condensed the two stages into a single regulation. In contrast, petitioners contend that § 301 is not an independent source of authority for setting effluent limitations by regulation. Instead, § 301 is seen as merely a description of the effluent limitations which are set for each plant on an individual basis during the permit-issuance process. Under the industry view, the § 304 guidelines serve the function of guiding the permit issuer in setting the effluent limitations. The jurisdictional issue is subsidiary to the critical question whether EPA has the power to issue effluent limitations by regulation. Section 509 (b)(1), 86 Stat. 892, 33 U. S. C. 1369 (b)(1), provides that “[r]eview of the Administrator’s action . . . (E) in approving or promulgating any effluent limitation . . . under section 301” may be had in the courts of appeals. On the other hand, the Act does not provide for judicial review of § 304 guidelines. If EPA is correct that its regulations are “effluent limitation[s] under section 301,” the regulations are directly reviewable in the Court of Appeals. If industry is correct that the regulations can only be considered § 304 guidelines, suit to review the regulations could probably be brought only in the District Court, if anywhere. Thus, the issue of jurisdiction to review the regulations is intertwined with the issue of EPA’s power to issue the regulations. I We think" }, { "docid": "11796863", "title": "", "text": "EPA’s Acting Deputy General Counsel which was a considered disposition by key agency officials. The agency’s good faith reliance on the congressional intent underlying section 304(b)(1)(A) is entitled to weight in the scales, and under the circumstances present in this case that weight is decisive. We find that the Act does not require the publication of guidelines for nonsection 306(b)(1)(A) categories within one year after its enactment as a nondiscretionary imperative. B. Primary Duty To Publish Guidelines for A11 Categories of Point Sources By December SI, 1974 The Administrator contends that “Section 304(b)(1)(A) grants [him] the authority and discretion to determine which classes and categories of point source discharges require the publication of guidelines and when those guidelines should be issued.” While we agree with the Administrator that he has some latitude concerning the date of publication of guidelines for Group II categories, we do not accept the position that this discretion is at large. It is our view that the Act and its legislative history reign in the Administrator’s discretion. The interrelationship of sections 301(b), 304(b), and 402, establishes that the Administrator has a primary duty to publish section 304(b)(1)(A) guidelines by December 31, 1974. The Act relies on effluent limitations on individual point sources as the “basis of pollution prevention and elimination.” The achievement of these limitations depends on coordination of the different roles played .by sections 301(b), 304(b), and 402 in the formulation and implementation of the effluent limitations. Section 301(b) contains a broad description of the phase one and phase two effluent limitations, to be achieved' by July 1, 1977, and. July 1, 1983, respectively. The limitations established under section 301(b) are to be imposed upon individual point sources through permits issued under the National Pollutant Discharge Elimination System (NPDES) established by section 402. Those permits are to contain schedules which will assure phased compliance with the effluent limitations no later than the final dates set forth in section 301(b). Section 304(b) calls for the publication of regulations containing guidelines for effluent limitations for classes and categories of point sources. These guidelines are intended to assist" }, { "docid": "11796868", "title": "", "text": "define the effluent limitations required by the first and second phases of the program established under section 301. As Senator Muskie succinctly stated: “The information under section 304(b) is to be applied in setting effluent limitations.” EPA correctly notes that under section 402(a) EPA may issue permits — upon “such conditions as the Administrator determines are necessary to carry out the provisions of this Act” — prior to taking implementing action with regard to listed sections including section 301. Although Congress contemplated that the permit program would be begun before the establishment of the section 301 effluent limitations, we believe it intended that EPA formulate effluent limitations for the great bulk of point source categories prior to completing the permit process for existing polluters. Section 402 was designed to give responsibility for issuing permits to states that established a program conforming to procedural guidelines to be issued by EPA within 60 days of the enactment of the statute. Congress sought to expedite these procedural guidelines to enable the states to qualify to issue permits as soon as possible after the passage of the Act. It believed that the states would shoulder the primary burden of issuing permits to individual dis-chargers. With the establishment of a qualified state program, EPA duties were to be restricted to assuring that the state followed the procedural guidelines and to reviewing individual permits of major significance. The decentralization of permit issuing authority envisioned by section 402 prompted concerns that industrial threats to relocate in areas where pollution controls were less restrictive would coerce states into adopting lax permit requirements. The effluent limitation guidelines contained in section 304(b) and the corresponding effluent limitations to be promulgated under section 301(b) were intended to safeguard against industrial pressures by establishing a uniform “minimal level of control imposed on all sources within a category or class.” Senator Muskie emphasized the function of the guidelines in promoting uniformity. He stated that “[t]he Administrator is expected to be precise in his guidelines so as to assure that similar point sources with similar characteristics, regardless of their location or the nature of" }, { "docid": "23199557", "title": "", "text": "consider whether the Administrator has authority to promulgate existing-source regulations under § 301. While ordinarily we would not allow amici to inject new issues into a case, our continuing duty to satisfy ourselves of our jurisdiction requires us to consider their argument. Amici assert that individual effluent limitations must be established for each existing point source through the permit-issuing process of § 402, using regulations promulgated under § 304(b) as guidelines. Thus, effluent limitations would be set on a case-by-case basis, rather than being prescribed by regulations covering entire subcategories. Under this view, the Administrator lacked the authority to establish across-the-board effluent limitations by regulation, so the regulations were not properly issued as § 301 limitations and are therefore not reviewable here. In essence, this was the position adopted by the Eighth Circuit in CPC International Inc. v. Train, 515 F.2d 1032, 1037 (8th Cir. 1975). In that case, the court held that it lacked jurisdiction to review similar regulations promulgated for a different point source category. The Third Circuit, in American Iron and Steel Institute v. EPA, 526 F.2d 1027, No. 74-1640 (Nov. 7, 1975), has reached an opposite result, as have several district courts. E. I. DuPont de Nemours & Co. v. Train, 383 F.Supp. 1244, 1253 (W.D.Va.1974), appeal pending, No. 74--2237 (4th Cir.); American Paper Inst. v. Train, 381 F.Supp. 553, 554 (D.D.C.1973), appeal pending, No. 74-1544 (D.C.Cir.); American Petroleum Inst. v. Train, No. 74-F-8 at 6 (D.Col., April 8, 1975). In EPA’s view, the Act calls for the setting of across-the-board effluent limitations pursuant to § 301(b), based on guidelines prescribed pursuant to § 304(b). The permit-issuing process, according to EPA, is a mechanism for verifying compliance by each plant and individualizing the effluent limitations to the extent required by the peculiarities of individual point sources. In choosing between these conflicting views, we are guided by the teaching of the Supreme Court in Train v. Natural Resources Defense Council, Inc., 421 U.S. 60, 95 S.Ct. 1470, 43 L.Ed.2d 731 (1975), which arose under the Clean Air Amendments of 1970, 42 U.S.C. § 1857a et seq. The" }, { "docid": "23199563", "title": "", "text": "We agree with the courts in American Iron and Steel Institute v. EPA, supra, 526 F.2d at 1038, and E. I. DuPont de Nemours & Co. v. Train, 383 F.Supp. 1244, 1251 (W.D.Va.1974), appeal pending, No. 74-2237 (4th Cir.), that under the interpretation of the Act urged by amici here subsections (2) and (6) of § 505(f) would be redundant, and disagree with the Eight Circuit (CPC International Inc. v. Train, supra, 515 F.2d at 1043) that the reference to § 301 in § 505(f)(2) is to § 301(f). In summary, the most natural reading of the language of the Act is that § 301 is a source of authority to promulgate effluent limitations, independent of the § 402 permit procedure. The legislative history also contains support for the EPA position. Senator Bentsen, a member of the Public Works Committee that reported out the original version of the Act, stated during the Senate debate: “In phase I, for point sources of pollutants, effluent limits shall be established not later than January 1, 1976 [now July 1, 1977], which comply with specifically defined levels of effluent control and treatment. As defined in section 301(b)(1) of the bill, and as elaborated in the regulations which we anticipate the Administrator shall issue pursuant to sections 301 and 304, these . . . goals shall be at least the ‘best practicable control technology currently available’ for [industrial] point sources . . . .” Quoted in Congressional Research Service, A Legislative History of Water Pollution Control Act Amendments of 1972, at 1283 (1973) (emphasis added) (hereinafter “Leg.Hist.”). The Senate Report stated specifically that, “pursuant to subsection 301(b)(1) (A) and section 304(b)” the Administrator is to interpret “best practicable” as a “basis for specifying clear and precise effluent limitations.” Leg.Hist. 1468. Also, during Senate consideration of the conference committee report, Senator Muskie, the principal author of the Act, explained: “[T]he conference agreement provides that each poluter within a category or class of industrial sources will be required to achieve nationally uniform effluent limitations based on ‘best practicable’ technology no later than July 1, 1977. This does" }, { "docid": "22041850", "title": "", "text": "best available technology economically achievable. The statute expressly provides that the limitations which are to become effective in 1983 are applicable to “categories and classes of point sources”; this phrase is omitted from the description of the 1977 limitations. While § 301 states that these limitations “shall be achieved,” it fails to state who will establish the limitations. Section 301 (c) authorizes the Administrator to grant variances from the 1983 limitations. Section 301 (e) states that effluent limitations established pursuant to § 301 shall be applied to all point sources. To summarize, § 301 (b) requires the achievement of effluent limitations requiring use of the “best practicable” or “best available” technology. It refers to § 304 for a definition of these terms. Section 304 requires the publication of “regulations, providing guidelines for effluent limitations.” Finally, permits issued under § 402 must require compliance with § 301 effluent limitations. Nowhere are we told who sets the § 301 effluent limitations, or precisely how they relate to § 304 guidelines and § 402 permits. The Regulations The various deadlines imposed on the Administrator were too ambitious for him to meet. For that reason, the procedure which he followed in adopting the regulations applicable to the inorganic chemical industry and to other classes of point sources is somewhat different from that apparently contemplated by the statute. Specifically, as will appear, he did not adopt guidelines pursuant to § 304 before defining the effluent limitations for existing sources described in § 301 (b) or the national standards for new sources described in § 306. This case illustrates the approach the Administrator followed in implementing the Act. EPA began by engaging a private contractor to prepare a Development Document. This document provided a detailed technical study of pollution control in the industry. The study first divided the industry into categories. For each category, present levels of pollution were measured and plants with exemplary pollution control were investigated. Based on this information, other technical data, and economic studies, a determination was made of the degree of pollution control which could be achieved by the various levels" }, { "docid": "23199614", "title": "", "text": "this provision is not subject to judicial review in any later enforcement proceeding. § 509(b)(2). . CPC International Inc. and the American Petroleum Institute filed briefs attacking the Administrator’s authority; the National Resources Defense Council filed briefs in support of the Administrator. References in the text to “amici” refer only to CPC and American Petroleum Institute. . EPA argues that we would still have jurisdiction to review the regulations because of the close interrelationship between § 301 limitations and § 304(b) guidelines, and because bifurcated review of the limitations and guidelines would frustrate an important purpose behind the judicial review provisions of the Act — expeditious and consistent application of effluent limitations. See Foti v. Immigration and Naturalization Service, 375 U.S. 217, 84 S.Ct. 306, 11 L.Ed.2d 281 (1963); E. I. DuPont de Nemours v. Train, 383 F.Supp. 1244, 1253-1254 (W.D.Va.1975), appeal pending, No. 74-2237 (4th Cir.). Cf. National Resources Defense Council, Inc. v. Train, 519 F.2d 287, 290 (D.C.Cir. 1975). We need not reach this point in view of our conclusion as to § 301. In American Iron and Steel Institute v. EPA, 526 F.2d 1027, No. 74-1640 (Nov. 7, 1975), cited infra, p. 449, et seq., the court (p. 1045, et seq.) reviewed effluent regulations issued under both § 301(b) and § 304(b) and found that they did not meet the requirements of § 304(b). It is not contended in the case at bar that the requirements of § 304(b) were not complied with. . Both EPA and amici apparently assume that rejection of EPA’s interpretation of § 301 would require a radical change in the way the Act is now administered. This is far from clear. Admittedly, if amici’s view of § 301 were accepted, effluent limitations applicable to a particular source could not be set until the permit issuance proceeding, but it does not necessarily follow that, before issuing the permit, EPA would be forced to gather and analyze data on the individual characteristics of each plant. Instead, EPA could perhaps include minimum effluent limitations in the guidelines and place the burden on the applicant of" }, { "docid": "11796841", "title": "", "text": "achieving the effluent limitations by the deadlines contained in section 301(b) is the National Pollutant Discharge Elimination System (NPDES) established by section 402. After dates set forth in that section, a person must obtain a permit and comply with its terms'in order to discharge any pollutant. The conditions of the permit must assure that any discharge complies with the applicable requirements of numerous sections including the effluent limitations of section 301(b). The timetable for permit issuance is set forth in section 402(k). For the first 180 days after the enactment of the statute, the discharge of any pollutant shall not be a violation of the Act if the dis-charger applies for a permit within the 180 day period. Until December 31, 1974, the pendency of an application for a permit containing the necessary information for processing of the application will prevent a polluter from being in violation of the permit requirement. After December 31, 1974, the Act contemplates that all discharges from point sources shall be made in conformity with a permit. The permits may be issued by the states under approved programs or by the Administrator in the absence of a state program. The Act vests the Administrator with final review authority for permits issued by the states. The effluent limitations incorporated in the permit conditions are to be based on regulations published under section 304(b) providing guidelines “[f]or the purpose of adopting or revising effluent limitations.” Subsection (1) of that provision deals with guidelines for the effluent limitations to be achieved by July 1, 1977, limitations based on use of the best practicable control technology currently available. The provision involved in this appeal, section 304(b)(1)(A), requires the identification of the “degree of effluent reduction attainable through the application” of that technology to classes and categories of point sources “in terms of amounts of constituents and chemical, physical, and biological characteristics of pollutants.” The companion provision, section 304(b)(1)(B), calls on the Administrator to set forth factors for determining the control measures and practices to be applied to point sources. The primary question in this case is the interpretation of" } ]

[ { "docid": "6625763", "title": "", "text": "recent pronouncement on the interpretation of affidavits for search warrants, the Supreme Court cautioned that “after-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review. A magistrate’s ‘determination of probable cause should be paid great deference by reviewing courts.’ * * sfc * * ifs [S]o long as a magistrate had a ‘substantial basis for ... concluding]’ that a search would uncover evidence of wrongdoing, the Fourth Amendment requires no more.” Illinois v. Gates, -U.S.-,-, 103 S.Ct. 2317, 2331, 76 L.Ed.2d 527 (1983) (citations omitted). This does not mean that reviewing courts should simply rubber stamp a magistrate’s conclusions; it does require the application of a common sense standard. United States v. Ventresca, 380 U.S. 102, 108, 109, 85 S.Ct. 741, 745, 746, 13 L.Ed.2d 684 (1965); see also Gates, -U.S. at -, -, 103 S.Ct. at 2331, 2333. When reviewing an application, courts must also bear in mind that search warrants are directed, not at persons, but at property where there is probable cause to believe that instrumentalities or evidence of crime will be found. Zurcher v. Stanford Daily, 436 U.S. 547, 553-560, 98 S.Ct. 1970, 1975-1978, 56 L.Ed.2d 525 (1978). The affi davit in support of a warrant need not present information that would justify the arrest of the individual in possession of or in control of the property. Nor is it required that the owner be suspected of having committed a crime. Property owned by a person absolutely innocent of any wrongdoing may nevertheless be searched under a valid warrant. See Id. These fourth amendment principles are the same in an authorization for a wiretap as in a property search. That the subscriber of the telephone service be suspected of unlawful activity is not a prerequisite to a wiretap authorization. As expressed in the statutory language, what is necessary is probable cause to believe that “an individual .. . has committed or is about to commit a particular offense” and that “communications concerning that offense” may be intercepted from a designated facility. 18 U.S.C. § 2518(3) (1982); see" } ]

[ { "docid": "13428697", "title": "", "text": "the initial probable cause determination made by the magistrate. Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). This is the same deferential review the District Court should have conducted. Id. at 238-239, 103 S.Ct. 2317. The role of a reviewing court is not to decide probable cause de novo, but to determine whether “the magistrate had a substantial basis for concluding that probable cause existed.” Id. at 238, 103 S.Ct. 2317 (citation and quotation omitted). As we explained in Jones, [0]ur role is not to make our own assessment as to whether probable cause existed. Rather, we are constrained to determine only whether the affidavit provides a sufficient basis for the decision the magistrate judge actually made. Jones, 994 F.2d at 1057. If a substantial basis exists to support the magistrate’s probable cause finding, we must uphold that finding even if a “different magistrate judge might have found the affidavit insufficient to support a warrant.” Conley, 4 F.3d at 1205. Although we do not merely “rubber stamp a magistrate’s conclusions,” Whitner, 219 F.3d at 296 (citation and quotation omitted), we must heed the Supreme Court’s direction that “doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.” Gates, 462 U.S. at 237 n. 10, 103 S.Ct. 2317 (citation and quotation omitted). Probable cause is a “fluid concept” that “turn[s] on the assessment of probabilities in particular factual contexts.” Id. at 232, 103 S.Ct. 2317. When presented with an application for a search warrant, the magistrate must “make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit ... there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Id. at 238, 103 S.Ct. 2317. Although every affidavit ideally would contain direct evidence linking the crime with the place to be searched, a magistrate may issue a search warrant even without direct evidence. Probable cause can be, and often is, inferred from “the type of crime, the nature of the items sought, the" }, { "docid": "23558337", "title": "", "text": "(3) approximately 2 .5 kilograms of marijuana, (4) $14,800 in U.S. currency, (5) two electronic scales, (6) a cellular telephone, and (7) miscellaneous items of indicia of occupancy. On September 22, 1999, a grand jury in the Western District of Pennsylvania indicted Whitner on four counts of conspiring to distribute cocaine and possession of cocaine, cocaine base, and marijuana with the intent to distribute each. On December 21, 1999, Whitner filed a pretrial motion to suppress the evidence obtained as a result of the search of the Monroeville apartment. As noted, the district court granted the motion to suppress, holding that the search warrant was unsupported by probable cause and is not saved by the good-faith exception established in Leon. The government appeals the suppression order. We have jurisdiction to hear this appeal by virtue of .18 U.S.C. § 3731. II. DISCUSSION There are two relevant standards of review on this appeal between which we must distinguish at the outset of our probable cause analysis. The first is our review of the district court’s decision and the second is our review of the magistrate judge’s probable cause determination. Inasmuch as the district court confined its decision to whether the information within the four corners of the affidavit established probable cause to issue the search warrant, our review of the district court’s decision is plenary. As we indicated in United States v. Conley, 4 F.3d 1200, 1204 (3d Cir.1993), “When a district court, in reviewing a magistrate’s determination of probable cause, bases its probable cause ruling [solely] on facts contained in an affidavit, we exercise plenary review over the district court’s decision.” See also United States v. Jones, 994 F.2d 1051, 1055 & n. 5 (3d Cir.1993). In contrast, a reviewing court may not conduct a de novo review of the magistrate judge’s determination of probable cause. Conley, 4 F.3d at 1205. “[B]oth we and the district court exercise only a deferential review of the initial probable cause determination made by the magistrate.” Id. See Illinois v. Gates, 462 U.S. at 236, 103 S.Ct. at 2331 (“A magistrate’s ‘determination of probable" }, { "docid": "15468988", "title": "", "text": "not form an adequate basis for the issuance of a warrant under Gates and its progeny. 462 U.S. at 233, 103 S.Ct. 2317 (replacing two-prong test with a “totality of the circumstances” approach for determining if an informant’s tip established probable cause). The government counters that Howell’s affidavit appropriately incorporated his past personal experience of having seized marijuana from the property in question in 2002 to corroborate the more recent anonymous tips. To some extent, we think, both parties’ assertions have merit. On the one hand, a warrant may issue even in the absence of direct, first-hand evidence. See United States v. Burton, 288 F.3d 91, 103 (3d Cir.2002) (noting that “direct evidence linking the residence to criminal activity is not required to establish probable cause”); United States v. Jones, 994 F.2d 1051, 1056 (3d Cir.1993) (“While ideally every affidavit would contain direct evidence linking the place to be searched to the crime, it is well established that direct evidence is not required for the issuance of a search warrant.”). Gates requires that a court considering the sufficiency of an agent’s affidavit look at the “totality of the circumstances,” and, in employing this flexible standard, the Supreme Court has explained that the “task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair proba bility that contraband or evidence of a crime will be found in a particular place.” Id. at 238-39, 103 S.Ct. 2317 (citations omitted). In other words, an issuing court need only conclude that it would be reasonable to seek the sought-after objects in the place designated in the affidavit; a court need not determine that the evidence is in fact on the premises. See Conley, 4 F.3d at 1205 (“Keeping in mind that the task of the issuing magistrate is simply to determine whether there is a ‘fair probability that contraband or evidence of a crime will be found in a particular place’ ... a reviewing" }, { "docid": "22884898", "title": "", "text": "likelihood that [the arres-tee’s] residence contains evidence of the crime.”); cf. Conley, 4 F.3d at 1207 (Previous arrests and convictions may help to establish probable cause.). Finally, Abraham, an experienced police officer, believed that Hodge’s home would likely contain evidence related to Hodge’s drug activities. The magistrate judge was entitled to “give considerable weight to the conclusions of[this] experienced law enforcement officer[ ] regarding where evidence of a crime [was] likely to be found.” Whitner, 219 F.3d at 296 (quoting Caicedo, 85 F.3d at 1192). The cumulative evidence outlined above provided a substantial basis from which to infer that a search of Hodge’s home would yield evidence of Hodge’s drug-related activities. To be sure, “it would have been preferable if [Abraham] could have supplied more information linking [Hodge’s home] to the criminal activity.” Whitner, 219 F.3d at 299; see also Jones, 994 F.2d at 1057. Nonetheless, “the fact remains that he did bring the evidence ... to a magistrate judge, who determined that there was probable cause to issue the warrant ].” Jones, 994 F.2d at 1057. “[A] ‘grudging or negative attitude by reviewing courts toward warrants’ is inconsistent with the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant.” Id. (quoting Ventresca, 380 U.S. at 108, 85 S.Ct. 741). This preference for warrants further persuades us to hold that the magistrate judge had a substantial basis for finding probable cause. III. Good Faith Exception Even if a substantial basis for finding probable cause were lacking, however, the evidence obtained through the search would be admissible under the good faith exception to the exclusionary rule. See United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405 (1984). A. The District Court found that the good faith exception did not apply in this case because Abraham’s affidavit was so deficient as to render reliance on it unreasonable. We exercise plenary review over the District Court’s conclusion. See Loy, 191 F.3d at 367 n. 5; United States v. Williams, 3 F.3d 69, 71 n. 2 (1993). B. The good faith exception instructs that suppression of evidence “is inappropriate when an" }, { "docid": "8992117", "title": "", "text": "be found in a particular place.” United States v. Biglow, 562 F.3d 1272, 1280-81 (10th Cir.2009) (quoting Illinois v. Gates, 462 U.S. at 238, 103 S.Ct. 2317). A magistrate judge’s decision to issue a search warrant may not be solely a ratification of the law-enforcement officials’ conclusion that a suspect has committed a crime; rather, affidavits supporting a search-warrant request must provide the magistrate judge with a substantial basis on which to issue a warrant. See United States v. Biglow, 562 F.3d at 1281; United States v. Prince, 593 F.3d 1178, 1186 (10th Cir.2010) (“An affidavit submitted in support of a search warrant must provide the magistrate with a substantial basis for determining the existence of probable cause.”) (internal quotation marks omitted). In other words, the magistrate judge must perform his or her own unbiased and independent review of the facts presented. See United States v. Leon, 468 U.S. 897, 914, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). To assure that warrants are not based on bare conclusions, the Supreme Court has mandated the courts to “conscientiously review the sufficiency of affidavits on which warrants are issued.” Illinois v. Gates, 462 U.S. at 239, 103 S.Ct. 2317. See United States v. Biglow, 562 F.3d at 1281. A magistrate judge’s finding of probable cause is nevertheless given great deference, with the court’s role in reviewing the probable-cause finding limited to the sufficiency of the warrant affidavit; the Supreme Court prohibits after-the-fact de novo scrutiny of the probable-cause determination. See United States v. Biglow, 562 F.3d at 1281 (quoting Illinois v. Gates, 462 U.S. at 238-40, 103 S.Ct. 2317, and Massachusetts v. Upton, 466 U.S. 727, 733, 104 S.Ct. 2085, 80 L.Ed.2d 721 (1984)). 2. Warrantless Searches: Limited Fourth Amendment Exceptions. Not all searches require a warrant. The Supreme Court has instructed that, when assessing the reasonableness of a warrant-less search, a court must begin “with the basic rule that ‘searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment— subject only to a few specifically established and well-delineated exceptions.’ ”" }, { "docid": "22884891", "title": "", "text": "seized during the search of his residence. The suppression order must be reversed if (1) the affidavit provided a substantial basis for finding probable cause to search Hodge’s home or (2) the officers relied on the warrant in objective good faith. II. Probable Cause A. In ruling on Hodge’s motion to suppress, the District Court “did not question the facts contained in the affidavit” supporting the search warrant. United States v. Jones, 994 F.2d 1051, 1055 (3d Cir.1993). Accordingly, this Court’s review of the suppression order is plenary. Id. at 1055 & n. 5; see also United States v. Conley, 4 F.3d 1200, 1204-05 (3d Cir.1993). The Court sits like a district court and must, like the district court, give great deference to the magistrate judge’s probable cause determination. See United States v. Loy, 191 F.3d 360, 365 (3d Cir.1999); Conley, 4 F.3d at 1205. A magistrate judge may find probable cause when, viewing the totality of the circumstances, “there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). This Court must uphold the finding if the affidavit on which it was based provided a substantial basis for finding probable cause. See id. at 236; Conley, 4 F.3d at 1205; Jones, 994 F.2d at 1054, 1055. The Court need not determine whether probable cause actually existed, but only whether there was “a ‘substantial basis’ for finding probable cause.” Jones, 994 F.2d at 1054; see id. at 1055, 1057. In making this determination, the Court confines itself “to the facts that were before the magistrate judge, i.e., the affidavit, and [does] not consider information from other portions of the record.” Id. at 1055. “[T]he resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.” Id. at 1057-58 (quoting United States v. Ventresca, 380 U.S. 102, 109, 85 S.Ct. 741, 13 E.Ed.2d 684 (1965)). B. Hodge argues, and the District Court agreed, that the affidavit failed to establish" }, { "docid": "23558338", "title": "", "text": "and the second is our review of the magistrate judge’s probable cause determination. Inasmuch as the district court confined its decision to whether the information within the four corners of the affidavit established probable cause to issue the search warrant, our review of the district court’s decision is plenary. As we indicated in United States v. Conley, 4 F.3d 1200, 1204 (3d Cir.1993), “When a district court, in reviewing a magistrate’s determination of probable cause, bases its probable cause ruling [solely] on facts contained in an affidavit, we exercise plenary review over the district court’s decision.” See also United States v. Jones, 994 F.2d 1051, 1055 & n. 5 (3d Cir.1993). In contrast, a reviewing court may not conduct a de novo review of the magistrate judge’s determination of probable cause. Conley, 4 F.3d at 1205. “[B]oth we and the district court exercise only a deferential review of the initial probable cause determination made by the magistrate.” Id. See Illinois v. Gates, 462 U.S. at 236, 103 S.Ct. at 2331 (“A magistrate’s ‘determination of probable cause should be paid great deference by reviewing courts.’ ”) (quoting Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 591, 21 L.Ed.2d 637 (1969)). A reviewing court must determine only that the magistrate judge had a “substantial basis” for concluding that probable cause existed to uphold the warrant. Gates, 462 U.S. at 238, 103 S.Ct. at 2331. In Jones we summarized the “substantial basis” standard, commenting that: We recognize that a different magistrate judge might have found the affidavit insufficient to support a warrant. However, our role is not to make our own assessment as to whether probable cause existed. Rather, we are constrained to determine only whether the affidavit provides a sufficient basis for the decision the magistrate judge actually made. Jones, 994 F.2d at 1057. Although our role in reviewing the magistrate judge’s decision is limited, we have explained that deference to the judge’s determination “does not simply mean that reviewing courts should rubber stamp a magistrate’s conclusions.” Id. at 1055. In determining whether a “substantial basis” exists for the" }, { "docid": "15468984", "title": "", "text": "on the warrant’s failure to particularize the place to be searched, the District Court found the warrant facially defective and based on the fourth factor above, declined to apply the good faith exception. “When the police officers realized that there were multiple dwelling units and the search warrant gave them no guidance as to which unit(s) were to be searched, the. police officers could not be said to have been executing the warrant in good faith by subsequently searching at least four different residential units.” All evidence seized pursuant to the search warrant, the District Court thus concluded, should be suppressed. II. Analysis A. Jurisdiction and Standard of Review The District Court had jurisdiction under 48 U.S.C. § 1612; we have jurisdiction over this government appeal pursuant to 18 U.S.C. § 3731. On a motion to suppress, the government bears the burden of showing that each individual act constituting a search or seizure under the Fourth Amendment was. reasonable. United States v. Johnson, 63 F.3d 242, 245 (3d Cir.1995). With respect to a suppression order, we review the District Court’s factual findings for clear error, see United States v. Roberson, 90 F.3d 75, 77 (3d Cir.1996) (citing Ornelas v. United States, 517 U.S. 690, 699-700, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)), and exercise plenary review over its legal determinations, see United States v. Coggins, 986 F.2d 651, 654 (3d Cir.1993). However, when a district court, in reviewing a magistrate’s determination of probable cause, bases its probable cause ruling on facts contained in an affidavit, we exercise plenary review over the district court’s decision. United States v. Conley, 4 F.3d 1200, 1204 (3d Cir.1993) (citations omitted). In contrast, both our court and the district court exercise a deferential review of the magistrate’s initial probable cause determination. Id. at 1205 (citing Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). B. Discussion The Fourth Amendment of the United States Constitution provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and" }, { "docid": "23558339", "title": "", "text": "cause should be paid great deference by reviewing courts.’ ”) (quoting Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 591, 21 L.Ed.2d 637 (1969)). A reviewing court must determine only that the magistrate judge had a “substantial basis” for concluding that probable cause existed to uphold the warrant. Gates, 462 U.S. at 238, 103 S.Ct. at 2331. In Jones we summarized the “substantial basis” standard, commenting that: We recognize that a different magistrate judge might have found the affidavit insufficient to support a warrant. However, our role is not to make our own assessment as to whether probable cause existed. Rather, we are constrained to determine only whether the affidavit provides a sufficient basis for the decision the magistrate judge actually made. Jones, 994 F.2d at 1057. Although our role in reviewing the magistrate judge’s decision is limited, we have explained that deference to the judge’s determination “does not simply mean that reviewing courts should rubber stamp a magistrate’s conclusions.” Id. at 1055. In determining whether a “substantial basis” exists for the magistrate judge’s decision we must keep in mind the judge’s task in authorizing search warrants. “The task of the issuing magistrate is make a practical commonsense decision whether, given all the circumstances set forth in the affidavit before him ... there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Gates, 462 U.S. at 238, 103 S.Ct. at 2332. In Gates, the Supreme Court stated that “probable cause is a fluid concept — turning on the assessment of probabilities in particular factual contexts — not readily, or even usefully, reduced to a neat set of legal rules.” 462 U.S. at 232, 103 S.Ct. at 2329. “The supporting affidavit must be read in its entirety and in a commonsense and nontechnical manner.” Conley, 4 F.3d at 1206 (citing Gates, 462 U.S. at 230-31, 103 S.Ct. at 2328). “[Statements in an affidavit may not be read in isolation — the affidavit must be read as a whole.” Conley, 4 F.3d at 1208 (quoting United States v. Brown, 3" }, { "docid": "15468985", "title": "", "text": "we review the District Court’s factual findings for clear error, see United States v. Roberson, 90 F.3d 75, 77 (3d Cir.1996) (citing Ornelas v. United States, 517 U.S. 690, 699-700, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)), and exercise plenary review over its legal determinations, see United States v. Coggins, 986 F.2d 651, 654 (3d Cir.1993). However, when a district court, in reviewing a magistrate’s determination of probable cause, bases its probable cause ruling on facts contained in an affidavit, we exercise plenary review over the district court’s decision. United States v. Conley, 4 F.3d 1200, 1204 (3d Cir.1993) (citations omitted). In contrast, both our court and the district court exercise a deferential review of the magistrate’s initial probable cause determination. Id. at 1205 (citing Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). B. Discussion The Fourth Amendment of the United States Constitution provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const, amend. IV. The right of security in person and property afforded by the Fourth Amendment may be invaded in various different ways by searches and seizures — here, defendants challenge the magistrate’s issuance of the warrant as well as the government’s execution of that warrant; however, “[i]t must always be remembered that what the Constitution forbids is not all searches and seizures, but unreasonable searches and seizures,” Elkins v. United States, 364 U.S. 206, 222, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960). 1. Probable Cause The threshold requirement for issuance of a warrant is probable cause. However, in reviewing the issuance of a warrant and given the historic preference expressed by our courts for the warrant process, see Johnson v. United States, 333 U.S. 10, 13-14, 68 S.Ct. 367, 92 L.Ed. 436 (1948), we are to determine whether the magistrate had a “substantial basis”" }, { "docid": "22884890", "title": "", "text": "of Number 48 that Hodge lived in the home behind Number 48. Id. at 188-89. Based on this information, Abraham averred that Hodge resided in the home behind Number 48. Id. at 189. Abraham also averred that “[t]he quantity of cocaine involved in [Hodge’s] attempted transaction and the circumstances surrounding] his arrest indicate[d] that Hodge was possessing the crack cocaine with an intent to distribute it.” Id. “Based upon [his] training and experience,” Abraham stated that he knew “that persons involved in the receipt and distribution of controlled substances commonly keep within their resi dences evidence of their criminal activity.” Id. Relying on Abraham’s affidavit, a magistrate judge found probable cause to search Hodge’s home. During the search, the police located approximately 600 grams of crack cocaine, over 30 grams of marijuana, a machine gun, and live ammunition. Hodge was indicted for possessing a firearm as a felon, possessing cocaine base with intent to distribute, and possessing cocaine base near a school, with intent to distribute. Prior to trial, Hodge successfully moved to suppress evidence seized during the search of his residence. The suppression order must be reversed if (1) the affidavit provided a substantial basis for finding probable cause to search Hodge’s home or (2) the officers relied on the warrant in objective good faith. II. Probable Cause A. In ruling on Hodge’s motion to suppress, the District Court “did not question the facts contained in the affidavit” supporting the search warrant. United States v. Jones, 994 F.2d 1051, 1055 (3d Cir.1993). Accordingly, this Court’s review of the suppression order is plenary. Id. at 1055 & n. 5; see also United States v. Conley, 4 F.3d 1200, 1204-05 (3d Cir.1993). The Court sits like a district court and must, like the district court, give great deference to the magistrate judge’s probable cause determination. See United States v. Loy, 191 F.3d 360, 365 (3d Cir.1999); Conley, 4 F.3d at 1205. A magistrate judge may find probable cause when, viewing the totality of the circumstances, “there is a fair probability that contraband or evidence of a crime will be found in" }, { "docid": "23555989", "title": "", "text": "the contraband home after picking it up at the airport, despite the fact that the warrant was conditioned on the contraband arriving at defendant’s house). Consequently, when presented with an application for an anticipatory warrant, the magistrate judge cannot rely on police assurances that the search will not be conducted until probable cause exists. Rowland, 145 F.3d at 1202. Instead, the magistrate judge must find, based on facts existing when the warrant is issued, that there is probable cause to believe the contraband, which is not yet at the place to be searched, will be there when the warrant is executed. Id. Since our review of the district court’s decision denying Loy’s motion to suppress is plenary, United States v. Williams, 3 F.3d 69, 71 (3d Cir.1993), we must apply the same deferential standard as the district court in reviewing the magistrate judge’s initial probable cause determination. Id. at 71 n. 2 (citing United States v. Jones, 994 F.2d 1051 (3d Cir.1993)). This deferential standard, however, “does not mean that reviewing courts should simply rubber stamp a magistrate’s conclusions....” United States v. Tehfe, 722 F.2d 1114, 1117 (3d Cir.), cert. denied, 466 U.S. 904, 104 S.Ct. 1679, 80 L.Ed.2d 154 (1984). Instead, the duty of a reviewing court is to ensure that the magistrate judge had a “substantial basis” for concluding that probable cause existed. Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Where the warrant application indicates that there will be a controlled delivery of contraband to the place to be searched, the nexus requirement of probable cause is usually satisfied. Rowland, 145 F.3d at 1202-03. However, where as here, the delivery of the contraband is to a place other than the one to be searched, namely, Loy’s post office box, “the warrant application must present additional facts establishing [that] the contraband will be taken to the place designated for [the] search.” Id. at 1203. As explained above, the fact that an anticipatory warrant is conditioned on the contraband arriving at the place to be searched is insufficient to meet the probable cause" }, { "docid": "23314476", "title": "", "text": "their persons, houses, papers, and effects, against unreasonable searches and seizure, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. U.S. Const, amend. IV. One’s home is sacrosanct, and unreasonable government intrusion into the home is “the chief evil against which the wording of the Fourth Amendment is directed.” Payton v. New York, 445 U.S. 573, 585, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) (quoting United States v. United States District Court, 407 U.S. 297, 313, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972)). The Fourth Amendment prohibits a general warrant. Boyd v. United States, 116 U.S. 616, 625, 6 S.Ct. 524, 29 L.Ed. 746 (1886); Andresen v. Maryland, 427 U.S. 463, 480, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976). A magistrate must determine that there is a “fair probability that ... evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (quoting Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960)). The warrant must also describe the things to be seized with sufficient particularity and be “no broader than the probable cause on which it is based.” United States v. Weber, 923 F.2d 1338, 1342 (9th Cir.1991). We exercise plenary review of the District Court’s denial of Zimmerman’s motion to suppress. United States v. Loy, 191 F.3d 360, 365 (3d Cir.1999). Thus, we apply the same standard the District Court was required to apply and determine whether the magistrate who issued the warrant had a “substantial basis” for determining that probable cause existed. United States v. Harvey, 2 F.3d 1318, 1322 (3d Cir.1993). In so doing, we must determine if a “practical, commonsense decision [was made] whether, given all the circumstances set forth in the affidavit before him ... there is a fair probability that contraband or evidence of a crime [would] be found in a particular place.” Gates, 462 U.S. at 238, 103" }, { "docid": "1400551", "title": "", "text": "to run concurrently. Rodriguez-Suazo now timely appeals from the district court’s judgment and its order denying his motions to suppress. II. ANALYSIS A. Standard of Review When reviewing a district court’s denial of a motion to suppress evidence, we review the factual findings for clear error and the legal conclusions as to the existence of probable cause de novo. United States v. Hill, 195 F.3d 258, 264 (6th Cir.1999), cert. denied, 528 U.S. 1176, 120 S.Ct. 1207, 145 L.Ed.2d 1110 (2000). “It is well settled that in seeking suppression of evidence the burden of proof is upon the defendant to display a violation of some constitutional or statutory right justifying suppression.” United States v. Feldman, 606 F.2d 673, 679 n. 11 (6th Cir.1979). “When reviewing the denial of a motion to suppress evidence, we must consider the evidence in the light most favorable to the government.” United States v. Garza, 10 F.3d 1241, 1245 (6th Cir.1993). The standard of review for determining the sufficiency of the affidavit “is whether the magistrate had a substantial basis for finding that the affidavit established probable cause to believe that the evidence would be found at the place cited.” United States v. Davidson, 936 F.2d 856, 859 (6th Cir.1991). We do not engage in de novo review of the affidavit, but “[rjather the magistrate’s probable cause determination should be afforded great deference.” Id.; see also United States v. Leon, 468 U.S. 897, 914, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) (“[T]he preference for warrants is most appropriately effectuated by according ‘great deference’ to a magistrate’s determination.”). This deferential review is consistent with “the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant.” Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Our determination of whether the information supporting the affidavit is stale utilizes the same standard of review as used to determine the sufficiency of an affidavit. United States v. Canan, 48 F.3d 954, 958-59 (6th Cir.1995). B. The Searches The Fourth Amendment to the United States Constitution provides for the issuance of warrants based on probable" }, { "docid": "20501493", "title": "", "text": "found in a particular place. United States v. Reed, 195 Fed.Appx. 815, 821 (10th Cir.2006) (unpublished) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). See United States v. Glover, 104 F.3d 1570, 1578 (10th Cir.1997) (finding that, in determining whether an affidavit supports a finding of probable cause, the court must review the affidavit as a whole and look to the totality of the information contained therein), abrogated on other grounds by Corley v. United States, 556 U.S. 303, 129 S.Ct. 1558, 173 L.Ed.2d 443 (2009). In making his or her determination, the magistrate judge “may draw reasonable inferences from the material provided in the warrant application.” United States v. Rowland, 145 F.3d 1194, 1205 (10th Cir.1998). “A reviewing court should accord great deference to a magistrate’s determination of probable cause.” United States v. Reed, 195 Fed.Appx. at 822. The court’s duty is “simply to ensure that the magistrate had a substantial basis for ... concluding] that probable cause existed.” Illinois v. Gates, 462 U.S. at 236, 238-39, 103 S.Ct. 2317. This deference is appropriate to further the Fourth Amendment’s strong preference for warrants. See Massachusetts v. Upton, 466 U.S. 727, 733, 104 S.Ct. 2085, 80 L.Ed.2d 721 (1984); United States v. Ventresca, 380 U.S. 102, 105-06, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965) (“An evaluation of the constitutionality of a search warrant should begin with the rule that the informed and deliberate determinations of magistrates empowered to issue warrants ... are to be preferred over the hurried action of office[r]s .... ”). Because of the strong preference for warrants, “in a doubtful or marginal case a search under a warrant may be sustainable where without one it would fall.” United States v. Ventresca, 380 U.S. at 106, 85 S.Ct. 741. The deference accorded a magistrate judge’s probable cause determination, however, is not boundless. See United States v. Leon, 468 U.S. 897, 914, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). The Court should not defer to a magistrate judge’s probable-cause determination where there is no substantial basis for concluding that the affidavit in" }, { "docid": "22884892", "title": "", "text": "a particular place.” Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). This Court must uphold the finding if the affidavit on which it was based provided a substantial basis for finding probable cause. See id. at 236; Conley, 4 F.3d at 1205; Jones, 994 F.2d at 1054, 1055. The Court need not determine whether probable cause actually existed, but only whether there was “a ‘substantial basis’ for finding probable cause.” Jones, 994 F.2d at 1054; see id. at 1055, 1057. In making this determination, the Court confines itself “to the facts that were before the magistrate judge, i.e., the affidavit, and [does] not consider information from other portions of the record.” Id. at 1055. “[T]he resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.” Id. at 1057-58 (quoting United States v. Ventresca, 380 U.S. 102, 109, 85 S.Ct. 741, 13 E.Ed.2d 684 (1965)). B. Hodge argues, and the District Court agreed, that the affidavit failed to establish a nexus between Hodge’s drug activity and Hodge’s home and thus did not provide a sufficient basis for probable cause to search the home. “[D]irect evidence linking the place to be searched to the crime is not required for the issuance of a search warrant.” Conley, 4 F.3d at 1207. “Instead, probable cause can be, and often is, inferred by ‘considering the type of crime, the nature of the items sought, the suspect’s opportunity for concealment and normal inferences about where a criminal might hide’ ” the fruits of his crime. Jones, 994 F.2d 1051 (quoting United States v. Jackson, 756 F.2d 703, 705 (9th Cir.1985)). A court “is entitled to draw reasonable inferences about where evidence is likely to be kept, based on the nature of the evidence and the type of offense.” United States v. Whitner, 219 F.3d 289, 296 (3d Cir.2000) (quoting United States v. Caicedo, 85 F.3d 1184, 1192 (6th Cir.1996)). In the present ease, there is no direct evidence that drugs or drug paraphernalia would be located at Hodge’s home." }, { "docid": "5983196", "title": "", "text": "search warrant application was detailed with respect to the alleged scheme by the grocery stores and the Chinese restaurants to fraudulently redeem food stamps, it provided almost no information linking those activities to Kim’s.” Appellant’s Brief at 35-35. Kim’s also contends that even if the officers could have reasonably thought that the information in the affidavit provided probable cause that Kim’s premises once contained evidence of the illegal scheme, any reasonable officer should have realized that the information was stale by the time the warrant was issued. A magistrate judge may find probable cause when, viewing the totality of the circumstances, “there is a fair probability that ... evidence of a crime will be found in a particular place.” Gates, 462 U.S. at 238, 103 S.Ct. 2317. When a warrant is issued and later challenged, a deferential standard of review is applied in determining whether the magistrate judge’s probable cause decision was erroneous. The reviewing court inquires whether there was “a ‘substantial basis’ for finding probable cause,” Hodge, 246 F.3d at 305 quoting United States v. Jones, 994 F.2d 1051, 1054 (3d Cir.1993), as “after-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review.” Gates, 462 U.S. at 236, 103 S.Ct. 2317. “[T]he resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.” Jones, 994 F.2d at 1057-58, quoting United States v. Ventresca, 380 U.S. 102, 109, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965). B. We are not persuaded that the affidavit in this case was so deficient in probable cause as to render reliance on it unreasonable. On the contrary, we view the affidavit as making a substantial showing of probable cause on which it was objectively reasonable for the officers to rely. See Hodge, 246 F.3d at 309 citing Williams, 3 F.3d at 74. The affidavit provided great detail regarding a complex food stamp fraud and money laundering scheme that had been extensively investigated by experienced officers. Specifically, the affidavit provided information that the Wang-Chen Partnership was engaged" }, { "docid": "23314477", "title": "", "text": "S.Ct. 2317, 76 L.Ed.2d 527 (1983) (quoting Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960)). The warrant must also describe the things to be seized with sufficient particularity and be “no broader than the probable cause on which it is based.” United States v. Weber, 923 F.2d 1338, 1342 (9th Cir.1991). We exercise plenary review of the District Court’s denial of Zimmerman’s motion to suppress. United States v. Loy, 191 F.3d 360, 365 (3d Cir.1999). Thus, we apply the same standard the District Court was required to apply and determine whether the magistrate who issued the warrant had a “substantial basis” for determining that probable cause existed. United States v. Harvey, 2 F.3d 1318, 1322 (3d Cir.1993). In so doing, we must determine if a “practical, commonsense decision [was made] whether, given all the circumstances set forth in the affidavit before him ... there is a fair probability that contraband or evidence of a crime [would] be found in a particular place.” Gates, 462 U.S. at 238, 103 S.Ct. 2317. The decision of the magistrate “should be paid great deference.” Haney, 2 F.3d at 1322. This, however, “does not mean that reviewing courts should simply rubber stamp a magistrate’s conclusions.” United States v. Tehfe, 722 F.2d 1114, 1117 (3d Cir.1983). At the time the search warrant was issued, Zimmerman had been charged in state court with two crimes: corruption of minors and simple assault. The affidavit of Sergeant O’Connor is replete with probable cause that Zimmerman committed both crimes. But the police were not looking for evidence of “wrongdoing,” which is the only probable cause the District Court found and the conduct on which the Dissent, mistakenly in our view, focuses. The police were looking for pornography. As the government argued at the suppression hearing, “It was a warrant for the adult pornography that the Defendant had shown to three minor children at his residence.” App. at 289. And, as we will explain, it was also a warrant for child pornography, although the government attempts to recast history on that score. A. Child" }, { "docid": "13428696", "title": "", "text": "had “standing.” In particular, we must decide the constitutional merits of the searches of: 4049 Higbee and 5038 Homestead as to Joseph Doebley; 5022 and 5034 Homestead as to Michael Doebley; and 5019 Homestead as to Edward Stearn. Additionally, we must decide whether the District Court erred in concluding that the warrant for Edward Steam’s saliva was inadmissible as “fruit of the poisonous tree.” Moreover, because the probable cause and good faith analyses are not defendant-specific, any search we deem to be constitutional will be upheld against all three defendants. By contrast, evidence from an illegal search is suppressed only against the defendants who are able to satisfy Raleas’s “standing” prong. IV. We now consider the Government’s arguments that each search was supported by probable cause, or at the very least, good faith reliance on a validly issued search warrant. A. We exercise plenary review over the District Court’s evaluation of the magistrate’s probable cause determination. United States v. Conley, 4 F.3d 1200, 1205 (3d Cir.1993). By contrast, we conduct only a deferential review of the initial probable cause determination made by the magistrate. Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). This is the same deferential review the District Court should have conducted. Id. at 238-239, 103 S.Ct. 2317. The role of a reviewing court is not to decide probable cause de novo, but to determine whether “the magistrate had a substantial basis for concluding that probable cause existed.” Id. at 238, 103 S.Ct. 2317 (citation and quotation omitted). As we explained in Jones, [0]ur role is not to make our own assessment as to whether probable cause existed. Rather, we are constrained to determine only whether the affidavit provides a sufficient basis for the decision the magistrate judge actually made. Jones, 994 F.2d at 1057. If a substantial basis exists to support the magistrate’s probable cause finding, we must uphold that finding even if a “different magistrate judge might have found the affidavit insufficient to support a warrant.” Conley, 4 F.3d at 1205. Although we do not merely “rubber stamp a magistrate’s" }, { "docid": "1959380", "title": "", "text": "Id. (citing Gates, 462 U.S. at 246, 103 S.Ct. 2317). Normally, we do not “flyspeck” the affidavit supporting a search warrant through de novo review; rather, the magistrate judge’s determination “ ‘should be paid great deference.’ ” Gourde, 440 F.3d at 1069 (quoting Gates, 462 U.S. at 236, 103 S.Ct. 2317 (quoting Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969))). In addition, the Supreme Court has reminded reviewing courts that “[ajlthough in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, resolution of doubtful or marginal cases in this area should largely be determined by the preference to be accorded to warrants.” Gates, 462 U.S. at 237 n. 10, 103 S.Ct. 2317 (quoting United States v. Ventresca, 380 U.S. 102, 109, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965)). This case presents an unusual situation because a portion of the affidavit was redacted by the district court. The propriety of the redaction is unchallenged. Other circuits have concluded that review of the sufficiency of an excised affidavit cannot be deferential. See, e.g., United States v. Elkins, 300 F.3d 638, 651 (6th Cir.2002); United States v. Kolodziej, 712 F.2d 975, 977 (5th Cir.1983). We agree that this limited exception to the “great deference” rule makes sense, for the magistrate’s judgment would have been based on facts that are no longer on the table. In this case, the paragraph that was purged recites powerful evidence seized from Kelley’s AOL account that cannot be factored into the probable cause calculus. We have no way of telling the extent to which the excised portion influenced the magistrate judge’s determination. Therefore, we will review his determination without particular deference. The ultimate question remains whether there is a substantial basis for concluding that the search would likely uncover evidence of wrongdoing. See Gates, 462 U.S. at 236, 103 S.Ct. 2317; see also United States v. Bishop, 264 F.3d 919, 924 (9th Cir.2001) (noting that once an affidavit is purged of illegally obtained information, the court determines whether the remaining facts" } ]

[ { "docid": "22326112", "title": "", "text": "to a case, exported from Argentina on May 22,1959, and entered for consumption at the port of New York on June 19, 1959, which was subsequent to the effective date of the Customs Simplification Act of 1956 (T.D. 54165); that said merchandise is not identified on the final list, of the Secretary of the Treasury, published pursuant to said act (T.D. 54521) and is, accordingly, subject to appraisement under section 402 of the Tariff Act of 1930, as amended by said act. 2. That on or about the date of exportation, such merchandise was freely sold or offered for sale in Argentina for exportation to the United States. 3. That the merchandise, subject of this appeal, was appraised on the basis of the price, at the time of exportation, at which similar merchandise was freely sold or offered for sale in Argentina in the usual wholesale quantities and in the ordinary course of trade for exportation to the United States under section 402(b), Tariff Act of 1930, as amended; that such price was $2.6975 per dozen tins, net, packed. 4. That an export tax, or retention tax, was imposed in Argentina upon the exportation of this merchandise; that said tax, with regard to the Argentine laws, decrees, and regulations pertaining to its imposition and collection, and with regard to the method of payment by the exporter, is the same in all material respects as that described in International Packers, Limited v. United States, 52 Cust. Ct. 472, Reap. Dec. 10696, which record has been incorporated herein. 5. That the said tax was $0.35 per dozen tins, and was added in appraisement to the price of $2.6975 in computing $3.0475 as the unit export value of the merchandise. I conclude as a matter of law: 1. That export value, as defined.in section 402 (b) of the Tariff Act of 1930, as amended, is the proper basis of appraisement of this merchandise. 2. That the tax, here in issue, amounting to $0.35 per dozen tins, forms no part of export value, as such value is defined in section 402 (b), Tariff Act" } ]

[ { "docid": "22326106", "title": "", "text": "and collection, and with regard to the method of payment by the exporter, is the same in all material respects as that involved in International Packers, Ltd. v. United States, R.D. 10696; that the record in said case may be incorporated in the record herein. 7. That the sole issue herein is whether said “Retention” charge, in the amount as determined by the appraiser, properly forms part of statutory export value as defined in said Section 402(b), Tariff Act of 1930 as amended. 8. _ That at the time of exportation of the merchandise involved herein the export value thereof as such value is defined in said Section 402 (b) of the Tariff Act of 1930 as amended was $2.6975 per dozen tins net packed, exclusive of said “Retention” charge. 9. That the instant appeal for reappraisement may be submitted for decision upon this stipulation and the incorporated record, the same being limited to the merchandise and issue described herein. 10. That the plaintiff may have ten days from the date of notice of approval of this stipulation within which to file its brief and that defendant may have ten days from the date of filing of plaintiff’s brief within which to respond. Plaintiff’s brief relies on an assumption that, in appeals to re-appraisement, the court is bound by the agreement of the parties as to what the value is. This assumption is erroneous. Moreover, it affords the court no assistance in determining the question of law which the stipulated facts raise, namely, whether $0.35 per dozen tins “included in the appraisement” and representing a charge “the same in all material respects as that involved in International Packers, Ltd. v. United States, R.D. 10696 * * * properly forms part of statutory export value as defined in * * * Section 402(b), Tariff Act of 1930, as amended.” (Paragraphs 5, 6, and 7 of stipulation, supra.) The fact having been stipulated that this merchandise is not an article on the final list published under the Customs Simplification Act of 1956 by the Secretary of the Treasury (T.D. 54521) and that" }, { "docid": "23276548", "title": "", "text": "Donlon, Judge: This appeal to reappraisement has been submitted on the following stipulation of facts: IT IS HEREBY STIPULATED AND AGREED by and between the parties hereto, subject to the approval of the court, as follows: 1. That the instant -appeal for reappraisement is limited to the merchandise covered by Invoice No. 2 on the entry, to wit, 2000 cartons of canned corned beef in 3-lb. tins, packed 12 tins per carton, exported from Argentina on July 6, 1959 by Cia. Swift de la Plata, S.A. 2. That the involved merchandise was entered for consumption on or after the effective date of the Customs Simplification Act of 1956 (Public Law 927, 84th Congress, T.D. 54165) : that said merchandise is not identified on the final list published by the Secretary of the Treasury (T.D. 54521) pursuant to said Customs Simplification Act, and that appraisement was accordingly made under the provisions of Section 402 of the Tariff Act of 1930 as amended by said act. 3. That on or about the date of exportation, such or similar merchandise was not freely sold or offered for sale in Argentina for exportation to the United States; and that on or about said date of exportation and for a period of not less than 90 days after the date of the instant importation, such or similar merchandise was not freely sold or offered for sale for domestic consumption in the United States; that appraisement was accordingly made upon the basis of constructed value as defined in Section 402(d) of the Tariff Act of 1930 as amended; that neither party challenges said basis of appraisement. 4. That the appraised constructed value of $12.4462 per dozen tins, net packed, includes an amount of $1.0597 representing a retention charge paid in Argentina upon the exportation of the involved merchandise; that said retention charge, with regard to the Argentine laws, decrees and regulations pertaining to its imposition and collection, and with regard to the method of payment by the exporter, is the same in all material respects as that described in International Packers, Ltd. v. United States, Reappraisement" }, { "docid": "22326111", "title": "", "text": "case, that I there held this export tax was no part of “general expenses,” as defined in .amended section 402(d). Defendant’s brief cites cases holding that various export charges, therein litigated, are not part of export value of imported merchandise for tariff purposes. United States v. International Commercial Co., Inc., et al., 28 Cust. Ct. 629, Reap. Dec. 8112; Henry D. Gee Co. v. United States, 24 Cust. Ct. 508, Reap. Dec. 7772; Caradine Hat Company et al. v. United States, 25 Cust. Ct. 411, Reap. Dec. 7876. On authority of those cases, and of International Packers, Limited v. United States, supra, I hold that the Argentine export tax, or retention tax, of $0.35 per dozen tins, is not a charge that should be added to the price at which such or similar merchandise was freely sold in the Argentine for export to the United States. I make the following findings of fact: 1. That the merchandise the subject of this appeal consists of canned corned beef, first grade, in 12-ounce tins, packed 24 tins to a case, exported from Argentina on May 22,1959, and entered for consumption at the port of New York on June 19, 1959, which was subsequent to the effective date of the Customs Simplification Act of 1956 (T.D. 54165); that said merchandise is not identified on the final list, of the Secretary of the Treasury, published pursuant to said act (T.D. 54521) and is, accordingly, subject to appraisement under section 402 of the Tariff Act of 1930, as amended by said act. 2. That on or about the date of exportation, such merchandise was freely sold or offered for sale in Argentina for exportation to the United States. 3. That the merchandise, subject of this appeal, was appraised on the basis of the price, at the time of exportation, at which similar merchandise was freely sold or offered for sale in Argentina in the usual wholesale quantities and in the ordinary course of trade for exportation to the United States under section 402(b), Tariff Act of 1930, as amended; that such price was $2.6975 per" }, { "docid": "4782400", "title": "", "text": "NewmaN, Judge: This is an application for review by plaintiff below of a decision and judgment of Hon. David J. Wilson, the trial judge, covering 102 consolidated appeals for reappraisement in Luckytex, Ltd. v. United States, 60 Cust Ct. 826, R.D. 11511 (1968), holding that the appraised values were the proper dutiable export values of various items of cotton wearing apparel. The merchandise was exported by Asia Industrial Development Co., Ltd., Hong Kong during the period between December 1960 and October 1962, and was entered at the ports of Baltimore and New York. Entry was made by the importer in each appeal at the invoiced unit c.i.f. prices, less the included and separately stated total charges for .ocean freight and marine insurance premium. Appraisements are designated on the official papers in two ways: In most of the appeals, the appraised values are shown to be at the invoiced unit prices, net packed; and in the others the appraiser indicated specific unit values, net packed, which are equal to the invoiced c.i.f. prices. There is no indication in the official papers that the invoiced charges for ocean freight and insurance are included in the appraised values. Both parties agree that export value, as defined in section 402(b) of the Tariff Act of 1930, and as amended by the Customs Simplification Act of 1956, 91 Treas. Dec. 295, T.D. 54165, is the proper basis for appraisement. The parties also agree that this case is a retrial of Luckytex, Ltd. v. United States, 56 Cust. Ct. 575, R.D. 11119 (1965), wherein Chief Judge Nao sustained the appraised values of certain wearing apparel exported by Asia Industrial Development Co., Ltd., on October 11, 1961, which date is within the period of exportation involved herein. The record of the prior case was incorporated into the record of the present trial on appellant’s motion, without objection by appellee (R. 31). Appellant’s principal argument is that it has now made a prima facie case, establishing as the correct dutiable export values certain f.o.b. prices at which the merchandise was freely offered for sale to Luchytex and others," }, { "docid": "1997339", "title": "", "text": "that the facts recited in that affidavit, insofar as they relate to the actual course of doing business, do not support a conclusion that Choueke was an independent seller in his own right. When viewed in the light of the complete context of business dealings, as related at length by Mr. Shalom and Mrs. Choueke, the bona fdes of the buying agency herein is unshaken. In view of the foregoing, I find as matters of fact: 1. The merchandise involved herein consists of boys’ western shirts exported from Japan between August 18, 1961 and June 22, 1963. 2. Said merchandise does not appear on the Final List published as provided for in the Customs Simplification Act of 1956, 93 Treas. Dec. 14, T.D. 54521. 3. The merchandise was appraised on the basis of export value as that value is defined in section 402(b) of the Tariff Act of 1930, as amended by the Customs Simplification Act of 1956, 91 Treas. Dec. 295, T.D. 54165. 4. The merchandise covered by K61/24016 was appraised at a value of $3.85 per dozen plus 5 percent packed. 5. The merchandise covered by K.62/8222, K62/10042 and 3162/11174 was appraised at a value of $3.87 per dozen plus 5 percent net packed. 6. The merchandise covered by E.62/6520 was appraised at a value of $4.06 per dozen net packed while the merchandise covered by E63/8618, E63/8655, E63/8656, E63/10852, E63/12090, E63/12091, E63/12157 and E63/12158 was appraised at a value of $3.99 per dozen net packed. 7. Tliat those appraisements expressed herein as a single figure are composed of the original declared value and an addition of 5 percent. 8. That in all cases the addition of 5 percent was the result of adding to the invoice amounts, a figure declared on said invoices to be the buying commission payable to the shipper, Ezra Choueke. 9. That with regard to the merchandise herein the firm of Ezra Choueke of Osaka, Japan, participated in these transactions as a bona fide buying commissionaire. I,therefore, conclude as a matter of law: 1. That export value as defined in section 402(b) of" }, { "docid": "10923367", "title": "", "text": "Ford, Judge: The proper value for dutiable purposes of certain grain milling machinery described on the invoice as “B-10 measurers” forms the subject of the above appeal for a reappraisement. The measurers were invoiced at a price of $392 per unit, plus packing case, plus carriage and f.o.b. expenses, less a discount of 20 percent. The appraiser at Minneapolis appraised the merchandise as entered on the basis of constructed value, as defined in section 402(d), Tariff Act of 1930, as amended by the Customs Simplification Act of 1956, 91 Treas. Dec. 295, T.D. 54165, since the merchandise does not appear on the final list as promulgated in T.D. 54521. It is the contention of plaintiffs herein that said merchandise should have been appraised at the invoice unit price, plus packing, carriage, and f.o.b. expenses, less 20 percent, on the basis of either export value, as defined in section 402(b), Tariff Act of 1930, as amended, supra, or on the basis of constructed value, as defined in section 402(d) of said act, as amended, swpra. The pertinent portions of section 402, Tariff Act of 1930, as amended by the Customs Simplification Act of 1956, supra, provide as follows: (a) Basis. — Except as otherwise specifically provided for in this Act, the value of imported merchandise for the purposes of this Act shall be— (1) the export value, or (2) if the export value cannot be determined satisfactorily, then the United States value, or (3) if neither the export value nor the United States value can be determined satisfactorily, then the constructed value; (b) Expokt Value. — For the purposes of this section, the export value of imported merchandise shall be the price, at the time of exportation to the United States of the merchandise undergoing appraisement, at which such or similar merchandise is freely sold or, in the absence of sales, offered for sale in the principal markets of the country of exportation, in the usual wholesale quantities and in the ordinary course of trade, for exportation to the United States, plus, when not included in such price, the cost of" }, { "docid": "6604820", "title": "", "text": "Rao, Chief Judge: This is an application for review of a decision and judgment sustaining the appraised values of certain imported handmade wool hooked rugs (Tapetes Luxor, S.A., et al. v. United States, 53 Cust. Ct. 504, Reap. Dec. 10866). Involved herein are 19 appeals for reappraisement, consolidated for purposes of trial, which relate to merchandise exported from Mexico during the period between July 26, 1956, and February 27, 1959. In all of said cases except reappraisement R59/8198, the importer of record was the manufacturer and seller, appellant above named, Tapetes Luxor, S.A., and the rugs were invoiced and entered at unit values per square meter which allegedly reflected f.o.b. Texcoco, Mexico, prices. Reappraisement R59/8198 covers several importations in the name of El Bordador S. de R. L. (hereinafter referred to as “El Bordador”), also a manufacturer and shipper, which, though invoiced at f.o.b. Laredo, Tex., unit prices, less 10 percent discount, were likewise entered at f.o.b. Texcoco prices per square meter. The appraiser invoked the cost of production provisions of section 402(f) of the Tariff Act of 1930 as the basis of his valuation of the rugs exported prior to February 27, 1958, and the export value provisions of section 402 (b) of said tariff act, as amended by the Customs Simplification Act of 1956, for his determination of the values of the rugs exported subsequent to said date. The result in all instances was an amount equivalent to f.o.b. Texcoco prices per square meter, plus 5 percent. It is the 5 percent increase over the entered values which is the point of contention between the parties in this case; appellants otherwise concede both that the respective bases of appraisement adopted by the appraiser were proper and that the per se unit values thereby computed were correct. The statutory provisions here involved read as follows: Section 402(f) of the Tariff Act of 1930— Seo. 402. Value. (f) Cost oe Production. — For the purpose of this title the cost of production of imported merchandise shall be the sum of- — ■ (1) The cost of materials of, and of" }, { "docid": "22326105", "title": "", "text": "and is not identified on the Final List published by the 'Secretary of the Treasury pursuant to said Act (T.D. 54521); that appraisement was accordingly made under the provisions or Section 402 of the Tariff Act of 1930 as amended by said Act. 4. That on or about the date of exportation, such merchandise, as defined in Section 402(f)(4)(A), Tariff Act of 1930, as amended, was not freely sold or offered in Argentina for sale for export to the United States; that appraisement was accordingly made under the export value, as such value is defined in Section 402(b) of the Tariff Act of 1980, as amended, of similar merchandise as defined in Section 402(f) (4) (B); that neither party challenges the basis of appraisement. 5. That appraisement of the involved merchandise was made at $3.0475 per dozen tins net packed, and that there was included in said appraisement a “Retention” charge equal to $.3500 per dozen tins. 6. That said “Retention” charge, with regard to the Argentine laws, decrees and regulations pertaining to its imposition and collection, and with regard to the method of payment by the exporter, is the same in all material respects as that involved in International Packers, Ltd. v. United States, R.D. 10696; that the record in said case may be incorporated in the record herein. 7. That the sole issue herein is whether said “Retention” charge, in the amount as determined by the appraiser, properly forms part of statutory export value as defined in said Section 402(b), Tariff Act of 1930 as amended. 8. _ That at the time of exportation of the merchandise involved herein the export value thereof as such value is defined in said Section 402 (b) of the Tariff Act of 1930 as amended was $2.6975 per dozen tins net packed, exclusive of said “Retention” charge. 9. That the instant appeal for reappraisement may be submitted for decision upon this stipulation and the incorporated record, the same being limited to the merchandise and issue described herein. 10. That the plaintiff may have ten days from the date of notice of approval" }, { "docid": "11629540", "title": "", "text": "per gross to 43 cents per gross. Appraisement was on the basis of export value, as that value is defined in section 402(b) of the Tariff Act of 1930, as amended by the Customs Simplification Act of 1956. Except as to the lily of the valley items, these appeals concern items appraised at the unit invoice prices plus a proportionate share of the charges marked “X.” The merchandise covered by appeal No. R62/14647 is described as “cartons of artificial flowers” and defendant contends that the following articles are not included: Wooden planter (new wooden spinning wheel planter) and Christmas goods (chandelier). The merchandise covered by appeal No. R62/15443 is described as “rayon ornaments, leaves and corsages” and defendant contends that the following articles are not included: Cotton Santa, angel porcelain head, nylon butterfly, and nylon angels. Since these items were not specified by the appeals and do not fall within the descriptive language thereof, they are not presently before the court. International Packers, Ltd. v. United States, 55 Cust. Ct. 606, Reap. Dec. 11072. The merchandise involved here is not included on the final list published by the Secretary of the Treasury, 93 Treas. Dec. 14, T.D. 54521, and plaintiff does not contest the basis of valuation adopted by the appraiser. It claims, however, that the correct dutiable value of each of the items involved herein is the unit invoice ex-factory price without the addition of charges for inland freight, insurance, hauling, storage, and lighterage, and that the values of the lily of the valley items are the invoice unit prices, net, packed. Defendant contends that the appraised values are correct. At the trial, there were offered in evidence 6 affidavits of officers of various companies in Japan which acted as buying agents for the plaintiff. Objection was made by the Government on the ground that in each case a schedule referred to by the affiant was not included. Final decision on the admissibility of these documents was reserved by the trial judge. Each of the affidavits is in similar language and states that the company acted as purchasing agent" }, { "docid": "16311781", "title": "", "text": "Landis, Judge: This matter comes up on application to review the decision and judgment of the single judge, after trial, holding that the amount of export value proper for canned frozen strawberries and strawberry puree, exported from Mexico during the period April 2, 1958, to July 8, 1963, was the claimed invoice prices rather than the appraised unit prices. Lockwood & Freidin v. United States, 58 Cust. Ct. 622, R.D. 11273. The shipments, too numerous to recount, were serviced by Lockwood & Freidin, customhouse brokers at Laredo, Texas. They are all covered by the 76 appeals for reappraisement listed in schedule A, attached to and made a part of this decision, consolidated for trial to test the appraisements under section 402 of the Tariff Act of 1930, as amended by the Customs Simplification Act of 1956, T.D. 54165. There is no issue as to valuation basis under section 402, as amended. Frozen strawberries are not on the final list published by the Secretary of the Treasury, T.D. 54521, pursuant to the 1956 Simplification Act, sufra. The strawberries were appraised on export value basis. Export value is the claimed and preferred statutory basis under section 402, as amended, where it is defined as follows: (b) ExpoRT Value. — For the purposes of this section, the export value of imported merchandise shall be the price, at the time of exportation to the United States of the merchandise undergoing ap-praisement, at which such or similar merchandise is freely sold or, in the absence of sales, offered for sale in the principal markets of the country of exportation, in the usual wholesale quantities and in the ordinary course of trade, for exportation to the United States, plus, when not included in such price, the cost of all containers and coverings of whatever nature and all other expenses incidental to placing the merchandise in condition, packed ready for shipment to the United States. The dispute as to the amount of export value is set in the fact that the packer of the imported strawberries, Empacadora Mexicana, SA. (hereinafter referred to as Empacadora), sold them at" }, { "docid": "23276553", "title": "", "text": "the same general class or kind as the merchandise undergoing appraisement which are made by producers in the country of exportation, in the usual wholesale quantities and in the ordinary course of trade, for shipment to the United States; and (3) the cost of all containers and coverings of whatever nature, and all other expenses incidental to placing the merchandise undergoing appraisement in condition, packed ready for shipment to the United States. In International Packers, Limited v. United States, 52 Cust. Ct. 472, Reap. Dec. 10696, I held that the Argentine exaction, here in issue, is an export tax, payable by the exporter, and as such was a necessary expense from the place of shipment of the merchandise to the place of delivery. As such a tax, I held it properly allowable as an expense in computing United States value. The clear intent of section 402(d) is to construct, absent the preferred bases of appraisement, a value for merchandise at the point where it is “packed ready for shipment to the United States.” If this tax is an expense of exportation from the Argentine, and I have held that it is, then it cannot very well be said also to be an expense, within the Argentine, of producing the merchandise and packing it, ready for shipment from the Argentine to the United States. The language of new section 402(d) and of old section 402(f) (now 402a (f)) is similar in that respect. Both contemplate a cost for merchandise packed ready for shipment to the United States, without inclusion of costs of export. International Packers, Limited v. United States, 51 Cust. Ct. 362, Reap. Dec. 10581, supports this interpretation, and is relevant here. I make the following findings of fact: 1. That the merchandise the subject of this appeal consists of canned corned beef in 3-pound tins, exported from Argentina on July 6,1959, and entered for consumption at the port of New York on July 21,1959, subsequent to the effective date of the Customs Simplification Act of 1956 (T.D. 54165); that said merchandise is not identified on the final list of" }, { "docid": "10490026", "title": "", "text": "FoRd, Judge: The appeals listed in schedule “A,” annexed hereto and made a part hereof, have been filed by Lockwood & Freidin, customs brokers, on behalf of the actual importer, Nico, Inc. These appeals are directed against the appraisement of a number of shipments of canned frozen strawberries and crushed strawberries (puree) in 30-pound cans and in some instances 10-pound cans, which were exported by Empacadora Mexicana, S.A., from April 1958 to July 1963. The merchandise was appraised at various values on the basis of similar merchandise under the provisions of section 402(b), Tariff Act of 1930, as amended by the Customs Simplification Act of 1956, 91 Treas. Dec. 295, T.D. 54165. Plaintiff herein does not contest the basis, export value, but contends the export value of the identical strawberries as represented by the invoice price is the proper export value under section 402 (b), supra. The invoice prices of Empacadora Mexicana, S.A., frozen strawberries ranged from 9 cents to 12 cents per pound f.o.b., Silao, Mexico, and the strawberries were appraised at values ranging from 9 cents to 16.5 cents per pound, net packed. The claims in the appeals in which the appraised value was less than the invoice value, having been abandoned, are accordingly dismissed. The pertinent portions of the statute involved herein provide as follows: Section 402, Tariff Act of 1930, as amended by the Customs Simplification Act of 1956: Section 402(b) : (b) Expoet Value. — For the purposes of this section, the export value of imported merchandise shall be the price, at the time of exportation to the United States of the merchandise undergoing appraisement, at which such or similar merchandise is freely sold or, in the absence o-f sales, offered for sale in the principal markets of the country of exportation, in the usual wholesale quantities and in the ordinary course of trade, for exportation to the United States, plus, when not included in such price, the cost of all containers and coverings of whatever nature and all other expenses incidental to placing the merchandise in condition, packed ready for shipment to the United" }, { "docid": "23276555", "title": "", "text": "the Secretary of the Treasury, published pursuant to said act (T.D. 54521) and is, accordingly, subject to appraisement under section 402 of the Tariff Act of 1930, as amended by said act. 2. That, on or about the date of exportation, such or similar merchandise was not freely sold or offered for sale in Argentina for exportation to the United States. 3. That, on or about said date of exportation and for a period of not less than 90 days after the date of the instant importation, such or similar merchandise was not freely sold or offered for sale for domestic consumption in the United States. 4. That appraisement was made on the basis of constructed value under section 402(d), Tariff Act of 1930, as amended, at $12.4462 per dozen tins, net, packed. 5. That an export tax was imposed in Argentina upon the exportation of the involved merchandise; that said tax, with regard to the Argentine laws, decrees, and regulations pertaining to its imposition and collection, and with regard to the method of payment by the exporter, is the same in all material respects as that described in International Packers, Limited v. United States, 52 Cust. Ct. 472, Reap. Dec. 10696, which record has been incorporated herein. 6. That the said export tax was determined by the appraiser to be $1.0597 per dozen tins, and was added in the appraisement as a general expense, as defined in section 402(d)(2), Tariff Act of 1930, as amended, in computing the unit constructed value of this merchandise. I conclude as a matter of law: 1. That at the time of exportation there was no export value or United States value for the canned corned beef, subject of this appeal, as such values are defined in section 402 of the Tariff Act of 1930, as amended by the Customs Simplification Act of 1956. 2. That constructed value, as defined in section 402 (d) of the Tariff Act of 1930, as amended, is the proper basis of appraisement for such merchandise. 3. That the export tax, here involved, amounting to $1.0597 per dozen tins," }, { "docid": "2637217", "title": "", "text": "Foed, Judge: These appeals for reappraisement listed in schedule “A,” annexed hereto and made a part hereof, were consolidated for purposes of trial, and involve merchandise which is parts of electronic computers. Specifically, t’he merchandise consists of inner and outer memory planes and extended core mats which were exported from Hong Kong during the period from November 1965 to October 1966 after being assembled there from components fabricated in the United States. The merchandise was appraised on the basis of constructed value as defined in section 402(d), Tariff Act of 1930, as amended by the Customs Simplification Act of 1956, 91 Treas. Dec. 295, T.D. 54165. Plaintiff claims the imported merchandise is properly dutiable on the basis of export value as defined in section 402(b), Tariff Act of 1930, as amended by the Customs Simplification Act of 1956, or in the alternative, constructed value as defined in section 402(d) of said act. As regards plaintiff’s claim under export value, plaintiff contends the dutiable value is the invoiced and entered value of the merchandise less the value of the components fabricated in the United States. With respect to the alternative claim under constructed value, the dispute between the parties centers on the amount of profit entering into said value. The relevant statutory provisions are as follows: Section 402(a) of the Tariff Act of 1930, 46 Stat. 708, as amended by the Customs Simplification Act of 1956, 70 Stat. 943: (a) Basis. — Except as otherwise specifically provided for in •this Act, the value of imported merchandise for the purposes of this Act shall be— (1) the export value, or (2) if the export value cannot be determined satisfactorily, then the United States value, or (3) if neither the export value nor the United States value can be determined satisfactorily, then the constructed value; * * * * # * * Section 402(b) of the Tariff Act of 1930, 46 Stat. 708, as amended by the Customs Simplification Act of 1956,70 Stat. 943: (b) Export Value. — For the purposes of this section, the export value of imported merchandise shall be the" }, { "docid": "22326104", "title": "", "text": "Donlon, Judge: The rule 15(d) statements filed by the parties both claim that the proper basis of appraisement of this Argentine corned beef is export value and that such value is $2.6975 per dozen tins, net, packed. Appraisement was at $3.0475 per dozen tins, net, packed. The difference is the amount of the so-called Argentine .“retention tax” of $0.35 per dozen tins, which the appraiser included in dutiable export value. The case has been submitted on the following stipulation: IT IS HEREBY STIPULATED AND AGREED, by and between the parties hereto, subject to the approval of the court, as follows: 2. That the involved merchandise consists of 4,440 cases of canned corned beef, first grade, in 12 ounce tins, packed 24 tins per case, exported from Argentina on May 22, 1959 'by the firm of Cia. Swift de la Plata, S.A., and entered for consumption at the port of New York on June 19,1959. 3. That the merchandise was entered for consumption after the effective date of the Customs Simplification Act of 1956 (T.D. 54165), and is not identified on the Final List published by the 'Secretary of the Treasury pursuant to said Act (T.D. 54521); that appraisement was accordingly made under the provisions or Section 402 of the Tariff Act of 1930 as amended by said Act. 4. That on or about the date of exportation, such merchandise, as defined in Section 402(f)(4)(A), Tariff Act of 1930, as amended, was not freely sold or offered in Argentina for sale for export to the United States; that appraisement was accordingly made under the export value, as such value is defined in Section 402(b) of the Tariff Act of 1980, as amended, of similar merchandise as defined in Section 402(f) (4) (B); that neither party challenges the basis of appraisement. 5. That appraisement of the involved merchandise was made at $3.0475 per dozen tins net packed, and that there was included in said appraisement a “Retention” charge equal to $.3500 per dozen tins. 6. That said “Retention” charge, with regard to the Argentine laws, decrees and regulations pertaining to its imposition" }, { "docid": "22326107", "title": "", "text": "of this stipulation within which to file its brief and that defendant may have ten days from the date of filing of plaintiff’s brief within which to respond. Plaintiff’s brief relies on an assumption that, in appeals to re-appraisement, the court is bound by the agreement of the parties as to what the value is. This assumption is erroneous. Moreover, it affords the court no assistance in determining the question of law which the stipulated facts raise, namely, whether $0.35 per dozen tins “included in the appraisement” and representing a charge “the same in all material respects as that involved in International Packers, Ltd. v. United States, R.D. 10696 * * * properly forms part of statutory export value as defined in * * * Section 402(b), Tariff Act of 1930, as amended.” (Paragraphs 5, 6, and 7 of stipulation, supra.) The fact having been stipulated that this merchandise is not an article on the final list published under the Customs Simplification Act of 1956 by the Secretary of the Treasury (T.D. 54521) and that the merchandise was exported from Argentina after the final list became effective, it follows that appraisement should be under amended section 402. That it was appraised, and rightly so, on the basis of export value, is not controverted. Plaintiff’s basic appeal is that the item of $0.85 per dozen tins was improperly included m export value, appraised under section 402 (b), as amended, which provides as follows: For the purposes of this section, the export value of imported merchandise shall be the price, at the time of exportation to the United States of the merchandise undergoing appraisement, at which such or similar merchandise is freely sold or, in the absence of sales, offered 'for sale in the principal markets of the country of exportation, in the usual wholesale quantities and in the ordinary course of trade, for exportation to the United States, plus, when not included in such price, the cost of all containers and coverings of whatéver nature and all other expenses incidental to placing the merchandise in condition, packed ready for shipment to" }, { "docid": "23276554", "title": "", "text": "tax is an expense of exportation from the Argentine, and I have held that it is, then it cannot very well be said also to be an expense, within the Argentine, of producing the merchandise and packing it, ready for shipment from the Argentine to the United States. The language of new section 402(d) and of old section 402(f) (now 402a (f)) is similar in that respect. Both contemplate a cost for merchandise packed ready for shipment to the United States, without inclusion of costs of export. International Packers, Limited v. United States, 51 Cust. Ct. 362, Reap. Dec. 10581, supports this interpretation, and is relevant here. I make the following findings of fact: 1. That the merchandise the subject of this appeal consists of canned corned beef in 3-pound tins, exported from Argentina on July 6,1959, and entered for consumption at the port of New York on July 21,1959, subsequent to the effective date of the Customs Simplification Act of 1956 (T.D. 54165); that said merchandise is not identified on the final list of the Secretary of the Treasury, published pursuant to said act (T.D. 54521) and is, accordingly, subject to appraisement under section 402 of the Tariff Act of 1930, as amended by said act. 2. That, on or about the date of exportation, such or similar merchandise was not freely sold or offered for sale in Argentina for exportation to the United States. 3. That, on or about said date of exportation and for a period of not less than 90 days after the date of the instant importation, such or similar merchandise was not freely sold or offered for sale for domestic consumption in the United States. 4. That appraisement was made on the basis of constructed value under section 402(d), Tariff Act of 1930, as amended, at $12.4462 per dozen tins, net, packed. 5. That an export tax was imposed in Argentina upon the exportation of the involved merchandise; that said tax, with regard to the Argentine laws, decrees, and regulations pertaining to its imposition and collection, and with regard to the method of payment" }, { "docid": "23276556", "title": "", "text": "by the exporter, is the same in all material respects as that described in International Packers, Limited v. United States, 52 Cust. Ct. 472, Reap. Dec. 10696, which record has been incorporated herein. 6. That the said export tax was determined by the appraiser to be $1.0597 per dozen tins, and was added in the appraisement as a general expense, as defined in section 402(d)(2), Tariff Act of 1930, as amended, in computing the unit constructed value of this merchandise. I conclude as a matter of law: 1. That at the time of exportation there was no export value or United States value for the canned corned beef, subject of this appeal, as such values are defined in section 402 of the Tariff Act of 1930, as amended by the Customs Simplification Act of 1956. 2. That constructed value, as defined in section 402 (d) of the Tariff Act of 1930, as amended, is the proper basis of appraisement for such merchandise. 3. That the export tax, here involved, amounting to $1.0597 per dozen tins, properly forms no part of the “general expenses,” as defined in section 402 (d) (2), Tariff Act of 1930, as amended. 4. That the statutory constructed value of the canned corned beef of this appeal, in 3-pound tins, is $11.3865 per dozen tins, net, packed. 5. That plaintiff having abandoned its appeal with regard to all other merchandise covered by the entry, the same is hereby dismissed, and the appraised value is affirmed as to such merchandise. Judgment will be entered accordingly." }, { "docid": "23382165", "title": "", "text": "flowers and birds, baskets, mosaic tiles, and dolls. The parties in both appeals agree -that the correct basis of valuation is “export value” as defined in section 402 (b) of the Tariff Act of 1930, as amended by the Customs Simplification Act of 1956, T.D. 54165, which reads in pertinent part: (b) Vkoport Value. — For the purposes of this section, the export value of imported merchandise shall be the price, at the time of exportation to the United States of the merchandise undergoing appraisement, at which such or similar merchandise is freely sold or, in the absence of sales, offered for sale[ ] in the principal markets of the ¡country of exportation in the usu'al wholesale quantities and in the ordinary course of trade, for exportation to the United States, plus, when not included in such price, the cost of all containers and coverings of whatever nature and all other expenses incidental to placing the merchandise in condition, packed ready for shipment to the United States. [Emphasis added.] Each appeal involves a “separable appraisement” and application of the so-called “separability rule,” both of which were succinctly explained in United States v. Supreme Merchandise Co., 48 Cust. Ct. 714, A.R.D. 145 (1962): If ex-factory prices and other charges are separately stated on the invoices and the appraiser’s finding of value is expressed in terms of the invoice unit prices plus the questioned charges, the appraisement is deemed to be separable. United States v. Dan Brechner et al., 38 Cust. Ct. 719, A.R.D. 71; United States v. Gitkin Co., supra; Valley Knitting Co., Inc., et al. v. United States, 44 Cust. Ct. 599, Reap. Dec. 9627. Under the rule expressed in United States v. Fritzsche Bros., Inc., 35 C.C.P.A. (Customs) 60, C.A.D. 371, a party ■to a reappraisement proceeding may challenge one or more of the elements entering into an appraisement, while relying upon the presumption of correctness of the appraiser’s return as to all other elements, whenever the challenged items do not disturb the effect of the remainder of the appraisement. Such is the ease in the instance of an" }, { "docid": "22326108", "title": "", "text": "the merchandise was exported from Argentina after the final list became effective, it follows that appraisement should be under amended section 402. That it was appraised, and rightly so, on the basis of export value, is not controverted. Plaintiff’s basic appeal is that the item of $0.85 per dozen tins was improperly included m export value, appraised under section 402 (b), as amended, which provides as follows: For the purposes of this section, the export value of imported merchandise shall be the price, at the time of exportation to the United States of the merchandise undergoing appraisement, at which such or similar merchandise is freely sold or, in the absence of sales, offered 'for sale in the principal markets of the country of exportation, in the usual wholesale quantities and in the ordinary course of trade, for exportation to the United States, plus, when not included in such price, the cost of all containers and coverings of whatéver nature and all other expenses incidental to placing the merchandise in condition, packed ready for shipment to the United States. In International Packers, Limited v. United States, 52 Cust. Ct. 518, Reap. Dec. 10724, where the issue was whether such charge, paid to the Argentine government, should be included or deducted in computing constructed value (section 402(d), as amended), the following opinion language has some relevance here. In International Packers, Limited v. United States, 52 Cust. Ct. 472, Reap. Dec. 10696 [cited in paragraph 6 of stipulation, supra], I held that the Argentine exaction, here in issue, is an export tax, payable by the exporter, and as such was a necessary expense from the place of shipment of the merchandise to the place of delivery. As such a tax, I held it properly allowable 'as an expense in computing United States value. Q sP p fr4 ct-P ■ , ,, CD fcy* £-1^ CP CD H ü.‘m 8 ts PjS‘&? 43-^5 r?l ri HP CO ( — t E8 a <B pj ct-cn? ct-® g i^sfa o P P W rí2 P O & a cj I a * CTct ^ %" } ]

[ { "docid": "18771793", "title": "", "text": "long as the approval of the settlement came before the plan. Regardless of when the compromise is approved, looking only to the fairness of the settlement as between the debtor and the settling claimant contravenes a basic notion of fairness. An estate might be wholly depleted in settlement of junior claims — depriving senior creditors of full payment— and still be fair as between the debtor and the settling creditor. Our understanding of bankruptcy law’s underlying policies leads us to make a limited extension of the fair and equitable standard: a bankruptcy court abuses its discretion in approving a settlement with a junior creditor unless the court concludes that priority of payment will be respected as to objecting senior creditors. IV. INFORMED DETERMINATIONS Having ascertained the standard which governs approval of the settlement in this case, we must now decide whether that standard was met. Initially, we note that important determinations in reorganization proceedings must receive the “informed, independent judgment of the Bankruptcy Court.” Protective Committee v. Anderson, supra, 390 U.S. at 424, 88 S.Ct. at 1163. The duty of a bankruptcy judge to reach an “intelligent, objective and educated evaluation” of settlements cannot be carried out absent a sufficient factual background. Matter of Jackson Brewing Co., supra, 624 F.2d at 602. This requisite factual background assumes particular importance with respect to determinations hinging on the fair and equitable standard. A decision on whether a settlement with a junior creditor depletes the estate so severely as to endanger senior claims requires full and accurate information about the net value of estate assets. An examination of the record in the case before us reveals gaping holes in the background of information regarding the United-AWECO settlement. Although the court found that $30 million worth of assets would remain in the estate after the settlement, the examiner’s testimony as to specific assets totalled only a little over $17 million. Even with respect to the assets that the examiner specifically named, the information before the bankruptcy court was inadequate. The examiner, who put a $13 million tag on AWECO’s interest in the Lake Charles" } ]

[ { "docid": "584025", "title": "", "text": "is not as vague as it might appear to be. The words fair and equitable are terms of art—they mean that senior interests are entitled to full priority over junior ones. In deciding whether a settlement of litigation is fair and equitable, a judge in bankruptcy must make a well-informed decision, comparing the terms of the compromise with the likely rewards of litigation. In particular, the judge must evaluate and set forth in a comprehensible fashion: (1) the probability of success in the litigation, with due consideration for the uncertainty in fact and law, (2) the complexity and likely duration of the litigation and any attendant expense, inconvenience and delay, and (3) all other factors bearing on the wisdom of the compromise. Id. at 355-56 (internal quotations omitted). In explaining what bankruptcy courts must do to satisfy the first factor— i.e., probability of success in the litigation, the Circuit further stated that “it is unnecessary to conduct a mini-trial to determine the probable outcome of any claims waived in the settlement. ‘The judge need only apprise himself of the relevant facts and law so that he can make an informed and intelligent decision Id. at 356 (quoting LaSalle Nat’l Bank v. Holland (In re Am. Reserve Corp.), 841 F.2d 159, 163 (7th Cir.1987)). Finally, the Fifth Circuit noted in Cajun that [ujnder the rubric of the third, catch-all provision, we have specified two additional factors that bear on the decision to approve a proposed settlement. First, the court should consider the best interest of the creditors, with proper deference to their reasonable views. Second, the court should consider’ the extent to which the settlement is truly the product of arms-length bargaining, and not of fraud or collusion. Id. at 356 (internal citations omitted). The parties agree this is the relevant legal standard to be applied. They disagree, however, about its proper application here. B. Application of the Legal Standard to the Settlement with the Client Claimants and Mikron 1. Complexity and Likely Success At the outset of its analysis, the Court notes the complexity of the legal and factual issues" }, { "docid": "19738754", "title": "", "text": "both ‘fair and equitable,’ apply to compromises just as to other aspects of reorganizations.”). When a settlement is presented for court approval apart from a reorganization plan, however, the priority rule of 11 U.S.C. § 1129 is not necessarily implicated. Without the requirement that pre-plan settlements conform to the absolute priority rule, only the bankruptcy court’s invocation of Rule 9019 factors would protect the interests of any nonsignatory intermediate or impaired creditors. In response to this concern, the Fifth Circuit held that the absolute priority rule should also apply to pre-plan settlements, concluding that “a bankruptcy court abuses its discretion in approving a [pre-plan] settlement with a junior creditor unless the court concludes that priority of payment will be respected as to objecting senior creditors.” United States v. AW-ECO, Inc. (In re AWECO, Inc.), 725 F.2d 293, 298 (5th Cir.1984). The pre-plan settlement in ÁWECO sought to resolve liti gation involving the debtor and a junior unsecured creditor. Id. The district court approved the settlement without considering proof from the senior secured creditors that the costs of the settlement could seriously deplete the estate and jeopardize the priority position of the senior creditors. The junior creditor argued that priority creditors’ claims are often unresolved when settlements with individual creditors occur well in advance of approval of a reorganization plan. Thus it pressed that requiring conformity with the absolute priority rule would effectively preclude all settlements prior to a plan of reorganization. The Fifth Circuit rejected that argument and held that extension of the absolute priority rule to pre-plan settlements was necessary. As soon as a debtor files a petition for relief, fair and equitable settlement of creditors’ claims becomes a goal of the proceedings. The goal does not suddenly appear during the process of approving a plan of compromise. Moreover, if the standard had no application before confirmation of a reorganization plan, then bankruptcy courts would have the discretion to favor junior classes of creditors so long as the approval of the settlement came before the plan. Regardless of when the compromise is approved, looking only to the fairness of" }, { "docid": "19738756", "title": "", "text": "the settlement as between the debtor and the settling claimant contravenes a basic notion of fairness. An estate might be wholly depleted in settlement of junior claims — depriving senior creditors of full payment — and still be fair as between the debtor and the settling creditor. Id. at 298. The Fifth Circuit accurately captures the potential problem a pre-plan settlement can present for the rule of priority, but, in our view, employs too rigid a test. The Settlement here differs significantly from the facts in play in AWECO, and points out the shortcomings of the AW-ECO rule. The Settlement resolves claims of one group of senior creditors while at the same time compromising their preferred position by providing that they be paid only a portion of any monies received from the Motorola litigation. The Settlement also funds pursuit of the Estate’s most significant asset — the Motorola claims. Lastly, many important facts are still in dispute. Motorola’s claim as an administrative creditor is yet to be established, the costs of the litigation (and any balance remaining in the litigation fund at the close of the proceedings) are at best estimates, and the claims against Motorola are perhaps years from a sum certain judgment. It is difficult to employ the rule of priorities in the approval of a settlement in a case such as this when the nature and extent of the Estate and the claims against it are not yet fully resolved. In our view, a rigid per se rule cannot accommodate the dynamic status of some pre-plan bankruptcy settlements. Rejection of a per se rule has an unfortunate side effect, however: a heightened risk that the parties to a settlement may engage in improper collusion. Thus, whether a particular settlement’s distribution scheme complies with the Code’s priority scheme must be the most important factor for the bankruptcy court to consider when determining whether a settlement is “fair and equitable” under Rule 9019. The court must be certain that parties to a settlement have not employed a settlement as a means to avoid the priority strictures of the Bankruptcy" }, { "docid": "6943755", "title": "", "text": "it is “fair and equitable” and in the best interest of creditors and the estate. See Protective Comm. for Indep. Stockholders of TMT Trailer Ferry, Inc. v. Anderson, 390 U.S. 414, 424, 88 S.Ct. 1157, 20 L.Ed.2d 1 (1968). A settlement is fair and equitable as long as “senior interests are entitled to full priority over junior ones.” In re AWECO, Inc., 725 F.2d 293, 298 (5th Cir.1984). In evaluating whether a proposed settlement is in the best interest of creditors and the estate, courts look to the following factors: “(1) the probability of success in litigation; (2) the likely difficulties in collection; (3) the complexity of the litigation involved, and the expense, inconvenience and delay necessarily attending it; and (4) the paramount interest of the creditors.” See In re Martin, 91 F.3d 389, 393 (3d Cir.1996). The proponent of a settlement has the burden of proving its reasonableness and courts must take into consideration “the fairness of the settlement to the other persons, i.e., the parties who did not settle.” See In re TCI 2 Holdings, LLC, 428 B.R. 117, 136 (Bankr. D.N.J.2010) (quoting In re Nutraquest, Inc., 434 F.3d 639, 645 (3d Cir.2006)). Because the Trustee’s Motion seeks to combine the proposed settlement with a dismissal of the case, its reasonableness cannot be evaluated without analyzing and considering the effect of dismissal on all parties. B. Dismissal Pursuant to 11 U.S.C. § 1112(b) The Motion also seeks an order dismissing the case pursuant to § 1112(b), which requires conversion or dismissal of a chapter 11 proceeding if the movant establishes cause and such relief is in the best interests of the estate and creditors. See 11 U.S.C. § 1112(b). Section 1112(b)(4) provides a non-exhaustive list of grounds that constitute “cause” for dismissal or conversion. 11 U.S.C. § 1112(b)(4)(A)-(P). If cause exists, the court must determine whether conversion or dismissal is in the best interests of the estate and its creditors. See Rollex Corp. v. Associated Materials (In re Superior Siding & Window), 14 F.3d 240, 242 (4th Cir.1994) (“Once ‘cause’ is established, a court is required to consider" }, { "docid": "1142812", "title": "", "text": "and particular factors used in applying the standard. The juniors argue, however, that the fair and equitable standard has the specific meaning assigned those words in the Bankruptcy Code. See In re AWECO, Inc., 725 F.2d 293 (5th Cir.), cert. denied, 469 U.S. 880, 105 S.Ct. 244, 83 L.Ed.2d 182 (1984). The code used those words as a term of art that meant that senior interests are entitled to full priority over junior interests. Id. at 298. Because no junior receives more value than a senior claimant, the settlement absolutely meets that particular invocation of the phrase “fair and equitable.” Next, .the juniors insist that the settlement must meet a higher standard because it is part of the plans rather than an independent settlement. See id. Whether the settlement is proposed during pre-confir-mation proceedings or contemporaneously as part of a plan is entirely beside the point. These estates have paid more money in settlements before these plans were ever proposed than the attacked settlement distributes to the FDIC. Of course, using a different standard in plan-connected settlements than in independent pre- or post-plan settlements lacks an economic, legal, or rational basis. If a settlement is essential to the plan and if it treats one class better than its statutory position, a higher standard may be necessary, but only to the extent of protecting senior creditors’ rights. This is not an issue in this case. See Aweco, 725 F.2d at 298. B. Law of the Case. The argument has been made that the bankruptcy court’s findings in rejecting confirmation of the earlier plan has established law of the case about the value of the FDIC litigation. This is wrong. First, the bankruptcy court did not rule on the merits of the FDIC litigation, but rather it was concerned with the arbitrary estimation that the debtors proposed. See In re MCorp Financial, 137 B.R. at 225-26. Second, the disapproval of a plan is an interlocutory decision that can be revised by the trial court as changes in the facts, evidence, and law may suggest. More important, what matters to this court in" }, { "docid": "18535879", "title": "", "text": "(5th Cir.), cert. denied, 469 U.S. 880, 105 S.Ct. 244, 83 L.Ed.2d 182 (1984). \"A court may approve such a compromise or settlement only when it is ‘fair and equitable.' The words ‘fair and equitable' are terms of art — they mean that 'senior interests are entitled to full priority over junior ones.' \" Id. at 298 (quoting S.E.C. v. American Trailer Rentals Co., 379 U.S. 594, 85 S.Ct. 513, 13 L.Ed.2d 510 (1965)) (internal citations omitted); see also Continental Airlines, Inc. v. Air Line Pilots Ass’n (In re Continental Airlines Corp.), 907 F.2d 1500, 1508 (5th Cir.1990) (noting that \"fair and equitable” means that senior creditors have priority over junior creditors); American Can Co. v. Herpel (In re Jackson Brewing Co.), 624 F.2d 605, 608 (5th Cir.1980) (requiring court to ensure that compromise is fair and equitable and “in the best interest of the estate”); Momentum Mfg. Corp. v. Employee Creditors Comm. (In re Momentum Mfg. Corp.), 25 F.3d 1132, 1136 (2d Cir.1994) (\"It is well settled that bankruptcy courts are courts of equity, empowered to invoke equitable principles to achieve fairness and justice in the reorganization process.”); In re Energy Coop., Inc., 886 F.2d 921, 927 (7th Cir.1989) (\"The benchmark for determining the propriety of a bankruptcy settlement is whether the settlement is in the best interests of the estate.”). . See also Commonwealth Oil Ref. Co. v. U.S.E.P.A. (In re Commonwealth Oil Ref. Co.), 805 F.2d 1175, 1188 n. 16 (5th Cir.1986) (“[T|he powers of a court [to grant equitable relief] are not unlimited.”), cert. denied, 483 U.S. 1005, 107 S.Ct. 3228, 97 L.Ed.2d 734 (1987); Gallucci v. Grant (In re Gallucci), 931 F.2d 738, 742 (11th Cir.1991) (discussing turnover action as normally a core proceeding, but ”[i]f the action does not involve property of the estate, then not only is it a noncore proceeding, it is an unrelated matter completely beyond the bankruptcy court’s subject matter jurisdiction”). . See, e.g., In re Wood, 825 F.2d at 94 (holding that claim against third party was related to bankruptcy because any liability would be shared by estate and" }, { "docid": "19284984", "title": "", "text": "Approval should only be given if the settlement is “fair and equitable and in the best interest of the estate.” Id. (citing In re Jackson Brewing Co., 624 F.2d at 602 (additional citations omitted)). The “fair and equitable standard” is not as vague as it might appear to be. “The words ‘fair and equitable’ are terms of art — they mean that senior interests are entitled to full priority over junior ones.” United States v. AWECO, Inc. (In re AWECO, Inc.), 725 F.2d 293, 298 (5th Cir.) (internal quotation marks and citations omitted), cert. denied, 469 U.S. 880, 105 S.Ct. 244, 83 L.Ed.2d 182 (1984). In deciding whether a settlement of litigation is fair and equitable, a judge in bankruptcy must make a well-informed decision, “comparting] the terms of the compromise with the likely rewards of litigation.” Jackson Brewing Co., 624 F.2d at 602 (internal quotation marks and citation omitted). In particular: [The judge] must evaluate and set forth in a comprehensible fashion: (1) The probability of success in the litigation, with due consideration for the uncertainty in fact and law, (2) The complexity and likely duration of the litigation and any attendant expense, inconvenience and delay, and (3) All other factors bearing on the wisdom of the compromise. Id. (internal citation omitted). [13] With respect to the first factor, it is unnecessary to conduct a mini-trial to determine the probable outcome of any claims waived in the settlement. “The judge need only apprise himself of the relevant facts and law so that he can make an informed and intelligent decision....” La Salle Nat’l Bank v. Holland (In re American Reserve Corp.), 841 F.2d 159, 163 (7th Cir.1987). Under the rubric of the third, catchall provision, we have specified two additional factors that bear on the decision to approve a proposed settlement. First, the court should consider the best interests of the creditors, “with proper deference to their reasonable views.” Foster Mortgage Corp., 68 F.3d at 917. Second, the court should consider “the extent to which the settlement is truly the product of arms-length bargaining, and not of fraud or" }, { "docid": "584024", "title": "", "text": "satisfies the legal requirements for confirmation—i.e., have the Kornman Parties raised any sustainable objections to confirmation of the Second Amended Plan. Because the settlements with the Client Claimants, Mikron, and Canada are integral to the Second Amended Plan, and because the Second Amended Plan cannot be confirmed if those settlements fail to satisfy the legal test for approval of settlements in this Circuit, the Court will start its legal analysis of confirmation with its analysis of the proposed settlements and will then turn to the Kornman Parties’ more technical objections to confirmation of the Second Amended Plan A. Legal Standard for Approval of Bankruptcy Settlements This Court is authorized to approve settlements in accordance with Federal Rule of Bankruptcy Procedure 9019(a). According to the Fifth Circuit, “[a]pproval should only be given if the settlement is fair and equitable and in the best interest of the estate.” In re Cajun Elec. Power Coop., Inc., 119 F.3d 349, 355 (5th Cir.1997) (internal quotations omitted). In Cajun, the Fifth Circuit further stated that [t]he fair and equitable standard is not as vague as it might appear to be. The words fair and equitable are terms of art—they mean that senior interests are entitled to full priority over junior ones. In deciding whether a settlement of litigation is fair and equitable, a judge in bankruptcy must make a well-informed decision, comparing the terms of the compromise with the likely rewards of litigation. In particular, the judge must evaluate and set forth in a comprehensible fashion: (1) the probability of success in the litigation, with due consideration for the uncertainty in fact and law, (2) the complexity and likely duration of the litigation and any attendant expense, inconvenience and delay, and (3) all other factors bearing on the wisdom of the compromise. Id. at 355-56 (internal quotations omitted). In explaining what bankruptcy courts must do to satisfy the first factor— i.e., probability of success in the litigation, the Circuit further stated that “it is unnecessary to conduct a mini-trial to determine the probable outcome of any claims waived in the settlement. ‘The judge need only" }, { "docid": "18771790", "title": "", "text": "of a hard and fast rule (citations omitted). When invoked as a guide to judicial action, it means a sound discretion, that is to say, a discretion exercised not arbitrarily or wilfully, but with regard to what is right and equitable under the circumstances and the law, and directed by the reason and conscience of the judge to a just result. Langnes v. Greene, 282 U.S. 531, 541, 51 S.Ct. 243, 247, 75 L.Ed. 520 (1931). With regard to approval of compromises that form part of a plan of reorganization, an even more definite rule limits the exercise of discretion. A court may approve such a compromise or settlement only when it is “fair and equitable.” Protective Committee v. Anderson, 390 U.S. 414, 424, 88 S.Ct. 1157, 1163, 20 L.Ed.2d 1 (1968); Matter of Jackson Brewing Co., supra, 624 F.2d at 602. The words “fair and equitable” are terms of art — they mean that “senior interests are entitled to full priority over junior ones.” SEC v. American Trailer Rentals Co., 379 U.S. 594, 85 S.Ct. 513, 13 L.Ed.2d 510 (1965); Protective Committee v. Anderson, supra, 390 U.S. at 441, 88 S.Ct. at 1171. If a court approves a settlement as part of a reorganization plan absent reasonable assurance that the settlement accords with the fair and equitable standard, that court has abused its discretion. The facts of this case pose the following question: in the period prior to confirmation of a reorganization plan, must the bankruptcy court apply the fair and equitable standard in considering a priority creditor’s objections to a settlement? United argues that the fair and equitable standard should not extend so far, implying that a bankruptcy court should not concern itself with the objection pressed by the government. Citing no authority, United argues that extension of the fair and equitable standard would frustrate the new Bankruptcy Code’s policy of “less rigid and formalized procedures.” Because classes of claims are not complete in the pre-plan stages of reorganization proceedings, application of the fair and equitable standard would preclude all compromises or settlements prior to a plan of" }, { "docid": "19738751", "title": "", "text": "9019.02 (15th ed. rev.) (citing TMT Trailer Ferry). Those interrelated factors are: (1) the balance between the litigation’s possibility of success and the settlement’s future benefits; (2) the likelihood of complex and protracted litigation, “with its attendant expense, inconvenience, and delay,” including the difficulty in collecting on the judgment; (3) “the 'paramount interests of the creditors,” including each affected class’s relative benefits “and the degree to which creditors either do not object to or affirmatively support the proposed settlement”; (4) whether other parties in interest support the settlement; (5) the “competency and experience of counsel” supporting, and “[t]he experience and knowledge of the bankruptcy court judge” reviewing, the settlement; (6) “the nature and breadth of releases to be obtained by officers and directors”; and (7) “the extent to which the settlement is the product of arm’s length bargaining.” In re World-Com, Inc., 347 B.R. 123, 137 (Bankr.S.D.N.Y.2006); see also TMT Trailer Ferry, 390 U.S. at 424, 88 S.Ct. 1157; In re Drexel Burnham, 960 F.2d at 292. C. The “Fair and Equitable” Standard Motorola does not contend that the Settlement fails under this multi-factor test. Rather, it argues that the Settlement should not have been approved because it provides for the transfer of money from the Estate to the ILLLC, and from the ILLLC to the unsecured creditors after the Motorola-related litigation. Motorola claims that a settlement can never be fair and equitable if junior creditors’ claims are satisfied before those of more senior creditors. The phrase “fair and equitable” derives from Section 1129(b)(2)(B)(ii) of the Bankruptcy Code, which describes the conditions under which a plan of reorganization may be approved notwithstanding the objections of an impaired class of creditors, a situation known as a “cramdown.” See Coltex Loop Cent. Three Partners v. BT/SAP Pool C Assocs. (In re Coltex Loop Cent. Three Partners, L.P.), 138 F.3d 39, 42 (2d Cir.1998); see also Kenneth N. Klee, All You Ever Wanted to Know About the Cram Down Rule Under the New Bankruptcy Code, 53 AM. BANKR. L.J. 133 (1979). This provision codifies the judge-made “absolute priority rule,” which provided that any" }, { "docid": "1142811", "title": "", "text": "The probability of success in the litigation, with due consideration for the uncertainty in fact and law, (2) The complexity and likely duration of the litigation and the attendant expense, inconvenience and delay, and (3) All other factors bearing on the wisdom of the compromise.” See, e.g., In re Jackson Brewing Co., 624 F.2d 599, 602 (5th Cir.1980). Although the factors speak of plain reasonableness, they especially seem to focus on reasonableness in the sense of trying to discover arbitrariness or collusion. In assessing a settlement, the factors must be tailored to the factual context and complexities of the particular settlement. Some situations require a detailed list of specific aspects of the terms of the settlement. See, e.g., American Employers’ Ins. Co. v. King Resources Co., 556 F.2d 471 (10th Cir.1977). In this case, the difficulties in collecting judgments from political agencies must be considered. See, e.g., Drexel v. Loomis, 35 F.2d 800, 806 (8th Cir.1929). Be cause the concept's in both rules are elastic, the “standard” chosen is less important than the specific analysis and particular factors used in applying the standard. The juniors argue, however, that the fair and equitable standard has the specific meaning assigned those words in the Bankruptcy Code. See In re AWECO, Inc., 725 F.2d 293 (5th Cir.), cert. denied, 469 U.S. 880, 105 S.Ct. 244, 83 L.Ed.2d 182 (1984). The code used those words as a term of art that meant that senior interests are entitled to full priority over junior interests. Id. at 298. Because no junior receives more value than a senior claimant, the settlement absolutely meets that particular invocation of the phrase “fair and equitable.” Next, .the juniors insist that the settlement must meet a higher standard because it is part of the plans rather than an independent settlement. See id. Whether the settlement is proposed during pre-confir-mation proceedings or contemporaneously as part of a plan is entirely beside the point. These estates have paid more money in settlements before these plans were ever proposed than the attacked settlement distributes to the FDIC. Of course, using a different standard in" }, { "docid": "18568767", "title": "", "text": "the settlement’s terms with the litigation’s probable costs and probable benefits. Among the factors the bankruptcy judge should consider in his analysis are the litigation’s probability of success, the litigation’s complexity, and the litigation’s attendant expense, inconvenience, and delay (including the possibility that disapproving the settlement will cause wasting of assets). See In re A & C Properties, 784 F.2d at 1381; In re Blair, 538 F.2d at 851; cf. McDonald v. Chicago Milwaukee Corp., 565 F.2d 416, 427 (7th Cir.1977) (noting similar factors to consider in approving a settlement in a class action). The bankruptcy judge should also consider the credi tors’ objections to the settlement; however, the creditors’ views are not controlling. In re A & C Properties, 784 F.2d at 1382. The appellants insist that a bankruptcy judge may approve a settlement only if it is “fair and equitable.” “Fair and equitable” is a term of art that means that “ ‘senior interests are entitled to full priority over junior ones.’ ” In re AWECO, Inc., 725 F.2d 293, 298 (5th Cir.) (citation omitted), cert. denied, 469 U.S. 880, 105 S.Ct. 244, 83 L.Ed.2d 182 (1984). In a settlement context, “fair and equitable” means that the settlement reasonably accords with the competing interests’ relative priorities. Any distinction between the “best interests of the estate” and the “fair and equitable” standards is of little consequence. The cases appellants cite for the “fair and equitable” standard considered the factors we have noted above. See, e.g., Protective Committee for Independent Stockholders of TMT Trailer Ferry v. Anderson, 390 U.S. 414, 424, 88 S.Ct. 1157, 1163, 20 L.Ed.2d 1 (1968); In re A & C Properties, 784 F.2d at 1381. Moreover, in comparing the settlement’s terms with the litigation’s probable costs and probable benefits, the central inquiry in determining whether a proposed settlement is in an estate’s best interests, the bankruptcy judge must necessarily examine the relative priorities of the contested claim and the estate’s other claims. Claims with different priorities will have different settlement values. For example, administrative expenses have priority over general, unsecured claims; therefore, all else being equal," }, { "docid": "1142810", "title": "", "text": "Reserve Board’s capital allocation directive; presided over most of the debtors’ defensive litigation; and, by necessity, acquired a familiarity with the Dallas litigation. Whatever standard is used, it must be established by a preponderance of the evidence. See Heartland Federal Savings & Loan Ass’n v. Briscoe Enter., Ltd., 994 F.2d 1160, 1165 (5th Cir.1993). Two standards are described in the cases. One of the standards, apparently the lesser one, is a bare reasonableness test: A settlement is to be approved if it can be said to have reached the lowest point in the range of reason. See In re Teltronics Svs., Inc., 762 F.2d 185, 189 (2d Cir.1985). The other standard is a fair and equitable test: A settlement is to be approved if it can be said to have treated the affected interests fairly and equitably. Because the terms of this rule are less than precise, courts tend to list the factors that should be taken into account in an effort to reveal whether the settlement is fair and equitable. One list is: “(1) The probability of success in the litigation, with due consideration for the uncertainty in fact and law, (2) The complexity and likely duration of the litigation and the attendant expense, inconvenience and delay, and (3) All other factors bearing on the wisdom of the compromise.” See, e.g., In re Jackson Brewing Co., 624 F.2d 599, 602 (5th Cir.1980). Although the factors speak of plain reasonableness, they especially seem to focus on reasonableness in the sense of trying to discover arbitrariness or collusion. In assessing a settlement, the factors must be tailored to the factual context and complexities of the particular settlement. Some situations require a detailed list of specific aspects of the terms of the settlement. See, e.g., American Employers’ Ins. Co. v. King Resources Co., 556 F.2d 471 (10th Cir.1977). In this case, the difficulties in collecting judgments from political agencies must be considered. See, e.g., Drexel v. Loomis, 35 F.2d 800, 806 (8th Cir.1929). Be cause the concept's in both rules are elastic, the “standard” chosen is less important than the specific analysis" }, { "docid": "19284983", "title": "", "text": "Gulf States and RUS. However, Cajun retains as much as $1.1 billion in non-River Bend assets. In sum, the settlement does not “alter creditors’ rights, dispose of assets, end release claims to the extent proposed in the wide-ranging transaction disapproved in” Braniff. Richmond Leasing, 762 F.2d at 1303. The cases are entirely distinguishable, and the settlement at issue does not effect a sub rosa plan. III. FAIR AND EQUITABLE SETTLEMENT The Committee argues in the alternative that the settlement violates the “fair and equitable” standard and that the district court erred by approving it without conditioning the settlement on approval of a reorganization plan. We review the district court’s decision to approve the settlement for an abuse of discretion. Connecticut Gen. Life Ins. Co. v. United Cos. Fin. Corp. (In re Foster Mortgage Corp.), 68 F.3d 914, 917 (5th Cir.1995) (internal citations omitted). Subsidiary factual findings are reviewed for clear error. Id. [10,11] As noted above, the courts are empowered to approve a compromise settlement of a debtor’s claim under Bankruptcy Rule 9019(a). See id. Approval should only be given if the settlement is “fair and equitable and in the best interest of the estate.” Id. (citing In re Jackson Brewing Co., 624 F.2d at 602 (additional citations omitted)). The “fair and equitable standard” is not as vague as it might appear to be. “The words ‘fair and equitable’ are terms of art — they mean that senior interests are entitled to full priority over junior ones.” United States v. AWECO, Inc. (In re AWECO, Inc.), 725 F.2d 293, 298 (5th Cir.) (internal quotation marks and citations omitted), cert. denied, 469 U.S. 880, 105 S.Ct. 244, 83 L.Ed.2d 182 (1984). In deciding whether a settlement of litigation is fair and equitable, a judge in bankruptcy must make a well-informed decision, “comparting] the terms of the compromise with the likely rewards of litigation.” Jackson Brewing Co., 624 F.2d at 602 (internal quotation marks and citation omitted). In particular: [The judge] must evaluate and set forth in a comprehensible fashion: (1) The probability of success in the litigation, with due consideration for" }, { "docid": "19738755", "title": "", "text": "costs of the settlement could seriously deplete the estate and jeopardize the priority position of the senior creditors. The junior creditor argued that priority creditors’ claims are often unresolved when settlements with individual creditors occur well in advance of approval of a reorganization plan. Thus it pressed that requiring conformity with the absolute priority rule would effectively preclude all settlements prior to a plan of reorganization. The Fifth Circuit rejected that argument and held that extension of the absolute priority rule to pre-plan settlements was necessary. As soon as a debtor files a petition for relief, fair and equitable settlement of creditors’ claims becomes a goal of the proceedings. The goal does not suddenly appear during the process of approving a plan of compromise. Moreover, if the standard had no application before confirmation of a reorganization plan, then bankruptcy courts would have the discretion to favor junior classes of creditors so long as the approval of the settlement came before the plan. Regardless of when the compromise is approved, looking only to the fairness of the settlement as between the debtor and the settling claimant contravenes a basic notion of fairness. An estate might be wholly depleted in settlement of junior claims — depriving senior creditors of full payment — and still be fair as between the debtor and the settling creditor. Id. at 298. The Fifth Circuit accurately captures the potential problem a pre-plan settlement can present for the rule of priority, but, in our view, employs too rigid a test. The Settlement here differs significantly from the facts in play in AWECO, and points out the shortcomings of the AW-ECO rule. The Settlement resolves claims of one group of senior creditors while at the same time compromising their preferred position by providing that they be paid only a portion of any monies received from the Motorola litigation. The Settlement also funds pursuit of the Estate’s most significant asset — the Motorola claims. Lastly, many important facts are still in dispute. Motorola’s claim as an administrative creditor is yet to be established, the costs of the litigation (and any" }, { "docid": "19738753", "title": "", "text": "plan of reorganization in which “stockholders [a]re preferred before the creditor, [is] invalid.” In re Armstrong World Indus., Inc., 320 B.R. 523, 533 (D.Del.), aff'd 432 F.3d 507 (3d Cir.2005) (quoting N. Pac. Ry. v. Boyd, 228 U.S. 482, 504, 33 S.Ct. 554, 57 L.Ed. 931 (1913) (second alteration in original)). In its current statutory form, the rule provides that “the holder of any claim or interest that is junior to the claims of such class will not receive or retain under the plan on account of such junior claim or interest any property.” 11 U.S.C. § 1129(b)(2)(B)(ii). Although the statute by its terms applies only to plans of reorganization, the Supreme Court has held that a settlement presented for approval as part of a plan of reorganization, because it constitutes part of the plan, may only be approved if it, too, is “fair and equitable” in the sense of conforming to the absolute priority rule. See TMT Trailer Ferry, 390 U.S. at 424, 88 S.Ct. 1157 (“The requirements ... that plans of reorganization be both ‘fair and equitable,’ apply to compromises just as to other aspects of reorganizations.”). When a settlement is presented for court approval apart from a reorganization plan, however, the priority rule of 11 U.S.C. § 1129 is not necessarily implicated. Without the requirement that pre-plan settlements conform to the absolute priority rule, only the bankruptcy court’s invocation of Rule 9019 factors would protect the interests of any nonsignatory intermediate or impaired creditors. In response to this concern, the Fifth Circuit held that the absolute priority rule should also apply to pre-plan settlements, concluding that “a bankruptcy court abuses its discretion in approving a [pre-plan] settlement with a junior creditor unless the court concludes that priority of payment will be respected as to objecting senior creditors.” United States v. AW-ECO, Inc. (In re AWECO, Inc.), 725 F.2d 293, 298 (5th Cir.1984). The pre-plan settlement in ÁWECO sought to resolve liti gation involving the debtor and a junior unsecured creditor. Id. The district court approved the settlement without considering proof from the senior secured creditors that the" }, { "docid": "19738752", "title": "", "text": "not contend that the Settlement fails under this multi-factor test. Rather, it argues that the Settlement should not have been approved because it provides for the transfer of money from the Estate to the ILLLC, and from the ILLLC to the unsecured creditors after the Motorola-related litigation. Motorola claims that a settlement can never be fair and equitable if junior creditors’ claims are satisfied before those of more senior creditors. The phrase “fair and equitable” derives from Section 1129(b)(2)(B)(ii) of the Bankruptcy Code, which describes the conditions under which a plan of reorganization may be approved notwithstanding the objections of an impaired class of creditors, a situation known as a “cramdown.” See Coltex Loop Cent. Three Partners v. BT/SAP Pool C Assocs. (In re Coltex Loop Cent. Three Partners, L.P.), 138 F.3d 39, 42 (2d Cir.1998); see also Kenneth N. Klee, All You Ever Wanted to Know About the Cram Down Rule Under the New Bankruptcy Code, 53 AM. BANKR. L.J. 133 (1979). This provision codifies the judge-made “absolute priority rule,” which provided that any plan of reorganization in which “stockholders [a]re preferred before the creditor, [is] invalid.” In re Armstrong World Indus., Inc., 320 B.R. 523, 533 (D.Del.), aff'd 432 F.3d 507 (3d Cir.2005) (quoting N. Pac. Ry. v. Boyd, 228 U.S. 482, 504, 33 S.Ct. 554, 57 L.Ed. 931 (1913) (second alteration in original)). In its current statutory form, the rule provides that “the holder of any claim or interest that is junior to the claims of such class will not receive or retain under the plan on account of such junior claim or interest any property.” 11 U.S.C. § 1129(b)(2)(B)(ii). Although the statute by its terms applies only to plans of reorganization, the Supreme Court has held that a settlement presented for approval as part of a plan of reorganization, because it constitutes part of the plan, may only be approved if it, too, is “fair and equitable” in the sense of conforming to the absolute priority rule. See TMT Trailer Ferry, 390 U.S. at 424, 88 S.Ct. 1157 (“The requirements ... that plans of reorganization be" }, { "docid": "18771791", "title": "", "text": "S.Ct. 513, 13 L.Ed.2d 510 (1965); Protective Committee v. Anderson, supra, 390 U.S. at 441, 88 S.Ct. at 1171. If a court approves a settlement as part of a reorganization plan absent reasonable assurance that the settlement accords with the fair and equitable standard, that court has abused its discretion. The facts of this case pose the following question: in the period prior to confirmation of a reorganization plan, must the bankruptcy court apply the fair and equitable standard in considering a priority creditor’s objections to a settlement? United argues that the fair and equitable standard should not extend so far, implying that a bankruptcy court should not concern itself with the objection pressed by the government. Citing no authority, United argues that extension of the fair and equitable standard would frustrate the new Bankruptcy Code’s policy of “less rigid and formalized procedures.” Because classes of claims are not complete in the pre-plan stages of reorganization proceedings, application of the fair and equitable standard would preclude all compromises or settlements prior to a plan of reorganization. We reject United’s argument on two grounds. First, the argument is simply not relevant here. An application of the fair and equitable doctrine in this case does not take us as far as United suggests. The limited question that we face is whether the holder of an outstanding senior claim can validly object to a proposed settlement with a junior claimant on the basis that the settlement will keep the senior claimant from being paid in full. The answer to this question has no necessary implications beyond the present, limited context. Second, we find the policy arguments convincing that some extension of the fair and equitable standard is proper. As soon as a debtor files a petition for relief, fair and equitable settlement of creditors’ claims becomes a goal of the proceedings. The goal does not suddenly appear during the process of approving a plan of compromise. Moreover, if the standard had no application before confirmation of a reorganization plan, then bankruptcy courts would have the discretion to favor junior classes of creditors so" }, { "docid": "1142807", "title": "", "text": "$30 million and forego the potential of affirmative recoveries against it clearly undervalues the assets of the estate. A particular set of self interests are at work here. The seniors’ best interests are served by distributions now, achieving a sizable percentage of their original claim and avoiding the potential of an FDIC affirmative recovery larger than the $34 million that the seniors are giving up through the limit on their claim. The juniors, because of the nature of subordination, are to be paid about five percent of their claim. In fact, if their fears about overvalued non-cash assets and understated professional fees are realized, they may wind up with nothing. It is in their economic interest for the estates to litigate with the FDIC to the end, precisely because then-amount at risk is relatively low and then-gain could be huge. From their perspective, as well as from the perspective of the equity holders, they are litigating with other people’s money. If the FDIC wins, other credi tors will suffer substantial losses; the juniors have little to lose. The analysis of the propriety of the settlement cannot come from either of these points of view. Instead, it must come from the estates’ view. Whatever the legal standard, the settlement must maximize value to the estates, not to any single creditor. A. The Legal Standard. How a settlement should be approached for approval is a matter of some dispute. The proponents argue that the settlement should be approved under a reasonableness test first, and then the plans should be confirmed under the fair and equitable standard. The juniors argue that approval of the settlement must be on the same standard as confirmation of the plans. The most important standard is procedural; the proposed settlement must have been inspected by the court. In reviewing the settlement, the court cannot accept the propriety of the settlement on the mere assertion of its value by the proponents. It must make an independent, thorough examination of the rewards gained in settling the claim and the potential benefits lost to the estate in ending the litigation. See" }, { "docid": "18771789", "title": "", "text": "STANDARD The bankruptcy court derives its authority to approve settlements from Bankruptcy Rule 919(a). The Rule provides that, “on application by the trustee or receiver and after hearing on notice to the creditors as provided in Rule 203(a) and to such persons as the court may designate, the court may approve a compromise or settlement.” 11 U.S.C. Rule 919(a). Compromises may be effected separately during reorganization proceedings or in the body of the reorganization plan itself. 6 (part 2) Collier on Bankruptcy, ¶ 8.07 at 1405 (14th ed. 1978). The decision of whether to approve a particular compromise lies within the discretion of the trial judge; an appellate court will reverse only when that discretion has been abused. Matter of Jackson Brewing Co., 624 F.2d 599, 602-03 (5th Cir.1980); see also Matter of Walsh Const., 669 F.2d 1325, 1328 (9th Cir.1982); Matter of Ocobock, 608 F.2d 1358, 1360 (10th Cir.1979); In re Albert Harris, 313 F.2d 447, 449 (6th Cir.1963). The exercise of'judicial discretion always carries with it responsibility. The term “discretion” denotes the absence of a hard and fast rule (citations omitted). When invoked as a guide to judicial action, it means a sound discretion, that is to say, a discretion exercised not arbitrarily or wilfully, but with regard to what is right and equitable under the circumstances and the law, and directed by the reason and conscience of the judge to a just result. Langnes v. Greene, 282 U.S. 531, 541, 51 S.Ct. 243, 247, 75 L.Ed. 520 (1931). With regard to approval of compromises that form part of a plan of reorganization, an even more definite rule limits the exercise of discretion. A court may approve such a compromise or settlement only when it is “fair and equitable.” Protective Committee v. Anderson, 390 U.S. 414, 424, 88 S.Ct. 1157, 1163, 20 L.Ed.2d 1 (1968); Matter of Jackson Brewing Co., supra, 624 F.2d at 602. The words “fair and equitable” are terms of art — they mean that “senior interests are entitled to full priority over junior ones.” SEC v. American Trailer Rentals Co., 379 U.S. 594, 85" } ]

[ { "docid": "22830706", "title": "", "text": "Harv. L. Rev. 1; Griswold, A Plan for the Coordination of the Income, Estate and Gift Tax Provisions (1942) 56 Harv. L. Rev. 337. But to interpret the same phrases in the two taxes concerning the same subject matter in different ways where obvious reasons do not compel divergent treatment is to introduce another and needless complexity into this already irksome situation. Here strong reasons urge identical construction. To hold otherwise would encourage tax avoidance. Commissioner v. Bristol, supra at 136; 2 Paul, Estate and Gift Taxation (1942) p. 1118. And it would not fulfill the purpose of the gift tax in discouraging family settlements so as to avoid high income surtaxes. H. Rep. No. 708, 72d Cong., 1st Sess., p. 28; S. Rep. No. 665, 72d Cong., 1st Sess., p. 40. There is thus every reason in this case to construe the provisions of both taxes harmoniously. Estate of Sanford v. Commissioner, supra. Affirmed. Mr. Justice Roberts dissents. Treasury Regulations 79 (1936 ed.) Art. 8 is inapplicable. To find that the transaction was “made in the ordinary course of business” is to attribute to the Treasury a strange use of English. Mr. Justice Reed, dissenting. This case differs from Commissioner v. Wemyss, ante, p. 303. Whether the transferor of the sums paid for the release of dower and other marital rights, received ade quate and full consideration in money and money’s worth, is a question of fact. The agreement recites that the parties contemplate marriage and provides that the trust shall be set up only in the event of and following the marriage. Petitioner was obligated to create the trust upon consideration of the relinquishment of marital rights and did so, and hence this is not a case involving marriage alone as consideration. Through the tables of mortality, the value of a survivor’s right in a fixed sum receivable at the death of a second party may be adequately calculated. By adopting present value as the accepted future value, the uncertainty inherent in fluctuations of an estate’s value is theoretically eliminated. The trial court thus found the present value" } ]

[ { "docid": "22777533", "title": "", "text": "problem discussed in Part III, infra, p. 71. Cases in which this Court has held transfers of property in exchange for the release of marital rights subject to gift taxes are based not on the premise that such transactions are inherently gifts but on the concept that in the contemplation of the gift tax statute they are to be taxed as gifts. Merrill v. Fahs, 324 U. S. 308 (1945); Commissioner v. Wemyss, 324 U. S. 303 (1945); see Harris v. Commissioner, 340 TJ. S. 106 (1950). In interpreting the particular income tax provisions here involved, we find ourselves unfettered by the language and considerations ingrained in the gift and estate tax statutes. See Farid-Es-Sultaneh v. Commissioner, 160 F. 2d 812 (C. A. 2d Cir. 1947). Under the present administrative practice, the release of marital rights in exchange for property or other consideration is not considered a taxable event as to the wife. For a discussion of the difficulties confronting a wife under a contrary approach, see Taylor and Schwartz, Tax Aspects of Marital Property Agreements, 7 Tax L. Rev. 19, 30 (1951); Comment, The Lump Sum Divorce Settlement as a Taxable Exchange, 8 U. C. L. A. L. Rev. 593, 601-602 (1961). Section 1012 of the Internal Revenue Code of 1954 provides that: “The basis of property shall be the cost of such property, except as otherwise provided in this subchapter and subchapters C (relating to corporate distributions and adjustments), K (relating to partners and partnerships), and P (relating to capital gains and losses). . . .” We do not pass on the soundness of the taxpayer’s other attacks upon this determination, for these contentions were not presented to the Commissioner or the Court of Claims." }, { "docid": "11006211", "title": "", "text": "sum, I.R.C. § 483 prevents a seller of property under an installment contract for sale or exchange of property from converting ordinary income (interest) into capital gains (principal). B. In contrast, I.R.C. § 2501(a)(1) imposes a tax on property transferred by gift. See I.R.C. § 2501(a)(1) (“A tax ... is hereby imposed ... on the transfer of property by gift.”). Section 2512(a) provides: “[i]f the gift is made in property, the value thereof at the date of the gift shall be considered the amount of the gift.” I.R.C. § 2512(a). Section 2512(b) of the tax code provides that: “[w]here property is transferred for less than an adequate and full consideration in money or money’s worth, then the amount by which the value of the property exceeded the value of the consideration shall be deemed a gift.” I.R.C. § 2512(b). Consequently, under 1.R.C. §§ 2501(a)(1), 2512(b), the IRS assesses a gift tax when the value of property transferred exceeds the value of the consideration received. See generally Commissioner v. Wemyss, 324 U.S. 303, 306, 65 S.Ct. 652, 654, 89 L.Ed. 958 (1945) (observing that IRS may tax as a gift the difference in value between property transferred and inadequate consideration received in return). Under settled precedent, the IRS may determine for gift tax valuation purposes the amount by which the fair market value of property exceeds the value of an installment sales contract by examining the face value of the contract, the interest rate, the prevailing market interest rate, and the length of the contract. E.g., Blackburn v. Commissioner, 20 T.C. 204, 207, 1953 WL 229 (1953). Pursuant to §§ 2501, 2512 the IRS may impose a gift tax when the value of property transferred by a taxpayer exceeds the present value of a promissory note that bears a below market interest rate. Id. at 206-07. C. The conflict in the instant case presents a narrow issue based upon the tax code sections summarized above. A taxpayer who uses the safe harbor interest rate in an installment sales contract prevents the IRS from applying § 483(a) to recharacterize portions of payments" }, { "docid": "20638167", "title": "", "text": "transferred, namely a gain of $6,758.24. Similarly, plaintiff disparages the value of the boats, automobiles and real property in which Mr. DeFina surrendered his nominal interest, because neither he nor Mara-villa had any beneficial interest in these items. As for the agreement by Mr. DeFina to join in plaintiff’s 1957 gift tax return, and to refrain from remarrying during the remainder of that year, plaintiff asserts that the resultant gift tax saving to her of $541,563.64 did not constitute “property received” within the meaning of the code, nor economic detriment to Mr. DeFina. Plaintiff paid all the gift taxes due. Moreover, she cites Estate and Gift Tax Peg. § 25.2511-1 (d) .to the effect that payment by one spouse of the income tax due on a joint return, is not a transfer subject to gift tax, nor is payment of a gift tax in the case of husband and wife who have consented to have 'the gifts made considered as made half by each of them. Plaintiff reasons from this that a transaction which does not constitute a “transfer” or “property” for gift tax purposes, similarly Should not be deemed a “transfer” or “property” for income tax purposes. Thus Mr. DeFina’s splitting of plaintiff’s gifts does not constitute “property received” by plaintiff. In summary, plaintiff acknowledges that this transaction was a taxable event, as held in Davis; but that Davis created merely a rebuttable presumption that the marital rights surrendered by the transferee were equal in value to the property for which they were exchanged; and that in this case, using the words of Davis, there is in fact “evidence to the contrary.” The consideration given by Mr. DeFina, in contrast to the rights surrendered by the former Mrs. Davis, are subject to valuation, and the rule in Dwvis does not therefore bar their valuation by approximation. As might be expected, defendant places a considerably higher valuation on the rights surrendered by Mr. DeFina. The Government points out that the boats, automobiles and real property, as to which Mr. DeFina surrendered his or Marayilla’s nominal title, had a conceded value" }, { "docid": "15692395", "title": "", "text": "income tax law. In Merrill v. Fahs, supra, it was pointed out that the estate and gift tax statutes are in pari materia and are to be so construed. Estate of Sanford v. Commissioner of Internal Revenue, 308 U.S. 39, 44, 60 S.Ct. 51, 84 L.Ed. 20. The estate tax provisions in the Revenue Act of 1916 required the inclusion in a decedent’s gross estate of transfers made in contemplation of death, or intended to take effect in possession and enjoyment at or after death except when a transfer was the result of “a bona fide sale for a fair consideration in money or money’s worth.” Sec. 202(b), 39 Stat. 756, 777, The first gift tax became effective in 1924, and provided inter alia, that where an exchange or sale of property was for less than a fair consideration in money or money’s worth the excess should be taxed as a gift. Rev.Act of 1924, § 320, 43 Stat. 314, 26 U.S. C.A. Int.Rev.Acts, page 81. While both taxing statutes thus provided, it was held that a release of dower rights was a fair consideration in money or money’s worth. Ferguson v. Dickson, 3 Cir., 300 F. 961, certiorari denied 266 U.S. 628, 45 S.Ct. 126, 69 L.Ed. 476; McCaughn v. Carver, 3 Cir., 19 F.2d 126. Following that, Congress in 1926 replaced the words “fair consideration” in the 1924 Act limiting the de-ductibility of claims against an estate with the words “adequate and full consideration in money or money’s worth” and in 1932 the gift tax statute as enacted limited consideration in the same way. Rev.Act 1932, § 503. Although Congress in 1932 also expressly provided that the release of marital rights should not be treated as a consideration in money or money’s worth in administering the estate tax law, Rev.Act of 1932, § 804, 26 U.S.C.A. Int.Rev.Acts, page 642, and failed to include such a provision in the gift tax statute, it was held that the gift tax law should be construed to the same effect. Merrill v. Fahs, supra. We find in this decision no indication, however," }, { "docid": "3568114", "title": "", "text": "in part to adult children. Petitioner next argues that the case of Harris v. Commissioner, 340 U.S. 106 (1950), blocks respondent’s path. We disagree. The Supreme Court in Harris was presented with the question whether petitioner was liable for a gift tax where she and her husband mutually exchanged certain interests in property and certain rights that they had against each other, including the surrender of marital inheritance rights, pursuant to a separation agreement, and where it was conceded that the value of what she gave exceeded the value of what she received. The agreement was conditioned upon the subsequent divorce; it was to be (and was) submitted for approval to the divorce court; it was not operative unless the divorce followed. The agreement was also written so as to survive the divorce decree. And, it is noted, the Nevada divorce court there involved has the power to accept or discard the settlement agreement provisions, to add or subtract from them as it saw fit. The Court held that the transfer in question was not made pursuant to a “promise or agreement” but was “founded” upon the divorce decree; therefore, the transfer was not a taxable gift under gift tax rules imported from the estate tax area. Respondent makes two arguments to support his circumvention of Harris: First, Harris is distinguishable. There the divorce court had the power to vary the terms of the parties’ separation agreement, a factor that has been considered as significant in subsequent cases. McMurtry v. Commissioner, 203 F. 2d 659 (C.A. 1, 1953); Commissioner v. Watson’s Estate, 216 F. 2d 941 (C.A. 2, 1954) (an estate tax case). Here the divorce court had no such power. Consequently, “the rationale of the Harris case does not apply.” Estate of Chester H. Bowers, 23 T.C. 911 (1955), acq. 1955-2 C.B. 4; Eev. Eul. 60-160, 1960-1 C.B. 374. Second, the holding in Harris does not immunize from the gift tax all transfers that are enforceable as court decrees. Stated another way: Thus, although the crux of the Harris case was that the transfer was made pursuant to a" }, { "docid": "22777531", "title": "", "text": "himself and not those of his wife. Here the fees paid her attorney do not appear to be “in connection with the determination, collection, or refund” of any tax of the taxpayer. As the Court of Claims found, the wife’s attorney “considered the problems from the standpoint of his client alone. Cer tainly then it cannot be said that . . . [his] advice was directed to plaintiff’s tax problems . . . .” 152 Ct. Cl., at 805, 287 F. 2d, at 171. We therefore conclude, as did the Court of Claims, that those fees were not a deductible item to the taxpayer. Reversed in part and affirmed in part. Mr. Justice Frankfurter took no part in the decision of these cases. Mr. Justice White took no part in the consideration or decision of these cases. Davis’ present wife, Grace Ethel Davis, is also a party to these proceedings because a joint return was filed in the tax year in question. The holding in the instant case is in accord with Commissioner v. Marshman, 279 F. 2d 27 (C. A. 6th Cir. 1960), but is contra to the holdings in Commissioner v. Halliwell, 131 F. 2d 642 (C. A. 2d Cir. 1942), and Commissioner v. Mesta, 123 F. 2d 986 (C. A. 3d Cir. 1941). 12 Del. Code Ann. (Supp. 1960) § 512; 13 Del. Code Ann. § 1531. In the case of realty, the wife in addition to the above has rights of dower. 12 Del. Code Ann. §§ 502, 901, 904, 905. Internal Revenue Code of 1954 §61 (a). Iiiternal Revenue Code of 1954 §§ 1001, 1002. Any suggestion that the transaction in question was a gift is completely unrealistic. Property transferred pursuant to a negotiated settlement in return for the release of admittedly valuable rights is not a gift in any sense of the term. To intimate that there was a gift to the extent the value of the property exceeded that of the rights released, not only invokes the erroneous premise that every exchange not precisely equal involves a gift but merely raises the measurement" }, { "docid": "3568113", "title": "", "text": "[discussed elsewhere in the opinion],” the Court is speaking of “gift” for income tax purposes. The next sentence in the footnote makes this clear: “Cases in which this Court has held transfers of property in exchange for the release of marital rights subject to gift taxes are based not on the premise that such transactions are inherently gifts but on the concept that in the contemplation of the gift tax statute they are to be taxed as gifts.” United States v. Davis, supra at 69 fn. 6. And in Matthews, the plaintiff argued that there was a gift, hoping to avoid a finding that the transaction was a transfer for consideration to which the income tax rule of Davis would apply. However, the Court of Claims found that there was no gift under Federal income tax law. Matthews v. United States, supra at 748-754. Moreover, neither case involved a transfer of appreciated property to persons other than a spouse or minor children. Here we have, among other things, a transfer of present and future interests in part to adult children. Petitioner next argues that the case of Harris v. Commissioner, 340 U.S. 106 (1950), blocks respondent’s path. We disagree. The Supreme Court in Harris was presented with the question whether petitioner was liable for a gift tax where she and her husband mutually exchanged certain interests in property and certain rights that they had against each other, including the surrender of marital inheritance rights, pursuant to a separation agreement, and where it was conceded that the value of what she gave exceeded the value of what she received. The agreement was conditioned upon the subsequent divorce; it was to be (and was) submitted for approval to the divorce court; it was not operative unless the divorce followed. The agreement was also written so as to survive the divorce decree. And, it is noted, the Nevada divorce court there involved has the power to accept or discard the settlement agreement provisions, to add or subtract from them as it saw fit. The Court held that the transfer in question was not" }, { "docid": "3568111", "title": "", "text": "these sections to mean, in the context of this case, that petitioner must prove that the transfer of stock in trust was either to settle his wife’s marital or property rights or to provide a reasonable allowance for the support of the minor children. Having failed to prove this with respect to a portion of the property transferred, that portion must be taxed as a gift. Incident to the problem of proof, we observe that respondent has not determined that the value of the income interest going to the minor children was excessive, i.e., that the transfer provided for more than a reasonable support allowance. Respondent has simply calculated the value of Margaret’s income interest and the children’s minority income interests — all according to the tables appearing in section 20.2031-7 (f), Estate Tax Regs. — and subtracted the sum of these values from the total value of the stock transferred. The end result is that the value of the taxable gift is $448,158.37. Petitioner does not challenge respondent’s calculations or his use of the estate tax tables. Petitioner argues that no gift was intended and that, in fact, no gift occurred, citing United States v. Davis, supra, and Matthews v. United States, 425 F.2d 738 (Ct. Cl. 1970). But it is well settled that donative intent on the part of the transferor is not an essential element in the application of the gift tax to a given transfer. Sec. 25.2511-1 (g) (1), Gift Tax Regs.; Commissioner v. Wemyss, 324 U.S. 303 (1945); Merrill v. Fahs, 324 U.S. 308 (1945); May T. Hrobon, 41 T.C. 476, 499 (1964). And as for the two cases cited by the petitioner, both deal with the gift concept under income tax as opposed to gift tax law. Thus, in Davis, where the Supreme Court states in a footnote that “To intimate that there was a gift to the extent the value of the property exceeded that of the rights released not only invokes the erroneous premise that every exchange not precisely equal involves a gift but merely raises the measurement problem * * *" }, { "docid": "22220642", "title": "", "text": "antenuptial agreement and therefore satisfies the requirement of “an adequate and full consideration in money or money’s worth” which we found wanting in Merrill v. Fahs, and unless we are further to overrule Merrill v. Fahs insofar as it joined the gift tax and the estate tax of the Revenue Act of 1932, so as to infuse into the gift tax the explicitness of the estate tax in precluding the surrender of marital rights from being deemed to any extent a consideration “in money or money’s worth,” we must hold that a settlement of property surrendering marital rights in anticipation of divorce is not made for “an adequate and full consideration in money or money’s worth.” The same year that it enacted the gift tax Congress amended the estate tax by adding to the provision that “adequate and full consideration” was prerequisite to deduction of “claims against the estate” the phrase, “when founded upon a promise or agreement.” Revenue Act of 1932, § 805,47 Stat. 280, now I. R. C., § 812 (b), 26 U. S. C. § 812 (b). Legislative history demonstrates that this amendment was intended not to change the law but to make clear that the requirement of consideration did not prevent “deduction of liabilities imposed by law or arising out of torts.” H. R. Rep. No. 708, 72d Cong., 1st Sess. 48: S. Rep. No. 665, 72d Cong., 1st Sess. 51. A similar principle is implicit in the gift tax. By its statutory language and authoritative commentaries thereon Congress did not leave the incidence of the gift tax at large by entrusting its application to the play of subtleties necessary to finding a “donative intent.” Commissioner v. Wemyss, 324 U. S. 303, 306. But while by the gift tax Congress meant “to hit all the protean arrangements which the wit of man can devise that are not business transactions” to the common understanding, Commissioner v. Wemyss, ibid., a gift tax is an exaction which does presuppose the voluntary transfer of property and not a transfer in obedience to law. In Merrill v. Fahs, supra, at 313," }, { "docid": "23030535", "title": "", "text": "2511 (a) highlights the broad sweep of the tax imposed by §2501, providing in pertinent part: “Subject to the limitations contained in this chapter, the tax imposed by section 2501 shall apply whether the transfer is in trust or otherwise, whether the gift is direct or indirect, and whether the property is real or personal, tangible or intangible . . . The language of these statutes is clear and admits of but one reasonable interpretation: transfers of property by gift, by whatever means effected, are subject to the federal gift tax. The Committee Reports accompanying the Revenue Act of 1932, ch. 209, 47 Stat. 169, which established the present scheme of federal gift taxation, make plain that Congress intended the gift tax statute to reach all gratuitous transfers of any valuable interest in property. Among other things, these Reports state: “The terms ‘property,’ ‘transfer,’ ‘gift,’ and ‘indirectly’ are used in the broadest and most comprehensive sense; the term ‘property’ reaching every species of right or interest protected by law and having an exchangeable value. “The words ‘transfer ... by gift’ and ‘whether . . . direct or indirect’ are designed to cover and comprehend all transactions . . . whereby, and to the extent. . . that, property or a property right is donatively passed to or conferred upon another, regardless of the means or the device employed in its accomplishment.” H. R. Rep. No. 708, 72d Cong., 1st Sess., 27-28 (1932); S. Rep. No. 665, 72d Cong., 1st Sess., 39 (1932). The plain language of the statute reflects this legislative history; the gift tax was designed to encompass all transfers of property and property rights having significant value. On several prior occasions, this Court has acknowledged the expansive sweep of the gift tax provisions. In Commissioner v. Wemyss, 324 U. S. 303, 306 (1945), the Court explained that “Congress intended to use the term ‘gifts’ in its broadest and most comprehensive sense ... [in order] to hit all the protean arrangements which the wit of man can devise that are not business transactions within the meaning of ordinary speech.”" }, { "docid": "5367275", "title": "", "text": "or if chancery did it for them, there would seem to be no doubt that the unscrambling of the business interests would satisfy the spirit of the Regulations. No reason is apparent why husband and wife should be under a heavier handicap absent a statute which brings all marital property settlements under the gift tax.” We infer from this statement that even a family transaction may for gift tax purposes be treated as one “in the ordinary course of business” as defined in this Regulation if each of the parenthetical criteria is fully met. C. I. R. v. Wemyss, 324 U.S. 303, 65 S.Ct. 652, 89 L.Ed. 958, 156 A.L.R. 1022, suggests no contrary rule. It holds merely that the absence of donative intent as known to the common law will not alone prevent a transfer from being subject to gift taxation. See also Merrill v. Fahs, 324 U.S. 308, 65 S.Ct. 655, 89 L.Ed. 963; Farid-Es-Sultaneh v. C. I. R., 2 Cir., 160 F.2d 812, 816. The Court noted in the Wemyss case, 324 U.S. at page 307, 65 S.Ct. at page 654, 89 L.Ed. 958, that the Tax Court had there in effect found that the transfer “was not made at arm’s length in the ordinary course of business.” In the instant case the Tax Court made no findings — express or even clearly implied — as to whether the surrender of the 1944 promise for the new 1946 obligation was a bona fide arm’s length transaction without donative intent on the taxpayer’s part. The taxpayer suggests on brief that the court found the requisite elements of an ordinary business transaction as defined in the Regulation when it said in its Findings of Fact: “In 1945 petitioner consulted attorneys who endeavored to amend the agreement of July 26, 1944, through negotiation, in order to translate the annual payments to the children into one funded payment, in so far as that was possible, and to translate what they thought was the equitable equivalent of the annual payments into one lump sum payment.” 17 T.C. at page 1054. This finding" }, { "docid": "3568115", "title": "", "text": "made pursuant to a “promise or agreement” but was “founded” upon the divorce decree; therefore, the transfer was not a taxable gift under gift tax rules imported from the estate tax area. Respondent makes two arguments to support his circumvention of Harris: First, Harris is distinguishable. There the divorce court had the power to vary the terms of the parties’ separation agreement, a factor that has been considered as significant in subsequent cases. McMurtry v. Commissioner, 203 F. 2d 659 (C.A. 1, 1953); Commissioner v. Watson’s Estate, 216 F. 2d 941 (C.A. 2, 1954) (an estate tax case). Here the divorce court had no such power. Consequently, “the rationale of the Harris case does not apply.” Estate of Chester H. Bowers, 23 T.C. 911 (1955), acq. 1955-2 C.B. 4; Eev. Eul. 60-160, 1960-1 C.B. 374. Second, the holding in Harris does not immunize from the gift tax all transfers that are enforceable as court decrees. Stated another way: Thus, although the crux of the Harris case was that the transfer was made pursuant to a court decree rather than a promise or agreement, Harris did not incorporate a broad rule that all transfers based on a court decree need not be supported by adequate consideration, and that all involuntary transfers are free from gift tax. It would seem that the Harris rationale is to be limited only to those eases involving relinquishment of marital rights. * * * [Surrey & Warren, Federal Estate and Gift Taxation 222-223 (1961).] We agree that respondent’s second route is a correct one on the authority of In Re Estate of Hartshorne, 402 F. 2d 592 (C.A. 2,1968); Rosenthal v. Commissioner, 205 F. 2d 505 (C.A. 2, 1953); Karl T. Wiedemann, 26 T.C. 565 (1956); Roland M. Hooker, 10 T.C. 388 (1948), affd. 174 F. 2d 863 (C.A. 5,1949); Edmund C. Converse, 5 T.C. 1014 (1945), affd. 163 F. 2d 131 (C.A. 2, 1947). These cases are precedent for the rule that a taxpayer-transferor who transfers property (a) in return for his or her spouse’s marital rights or property rights, (b) to provide a reasonable" }, { "docid": "20638171", "title": "", "text": "stock to Mr. DeFina constituted a gift, because of the huge disparity between the value of the stock transferred and the value of the rights relinquished by Mr. DeFina. Citing Commissioner v. Duberstein, 363 U.S. 278 (1960), defendant notes that “the quality of the bargain is irrelevant if in fact there was not the donative intent to make a gift.” This highlights the importance of footnote 6 to the Drnis opinion, which reads as follows: Any suggestion that the transaction in question was a gift is completely unrealistic. Property transferred pursuant to a negotiated settlement in return for the release of admittedly valuable rights is not a gift in any sense of the term. To intimate that there was a gift to the extent the value of the property exceeded that of the rights released not only invokes the erroneous premise that every exchange not precisely equal involves a gift but merely raises the measurement problem discussed in Part III, infra, p. 71. Cases in which this 'Court has held transfers of property in exchange for the release of marital rights subject to gift taxes are based not on the premise that such transactions are inherently gifts but on the concept that in the contemplation of the gift tax statute they are to be taxed as gifts. Merrill v. Fahs, 324 U.S. 308 (1945); Cornmissioner v. Wemyss, 324 U.S. 303 (1945); see Harris v. Commissioner, 340 U.S. 106 (1950). In interpreting the particular income tax provisions here involved, we find ourselves unfettered by the language and considerations ingrained in the gift and estate tax statutes. See Farid-Es-Sultaneh v. Commissioner, 160 F. 2d 812 (C.A. 2d Cir. 1947). No part of any property transferred to Mr. DeFina was reported in plaintiff’s gift tax returns, and defendant there fore argues that there is no authority for the position that “a person may avoid both income and gift tax on the same transfer by taking the position for gift tax purposes that the transfer was made pursuant to a settlement of marital and property rights, and for income tax purposes that the transfer" }, { "docid": "20638170", "title": "", "text": "the termination of the life of either taxpayer or Mr. DeFina.” Moreover, defendant insists that this right under New York law applied to all the plaintiff’s property, wheresoever located, since “Mr. DeFina could Time claimed his rights in taxpayer’s property as a New York resident simply by showing that he had an actual intent to make the State of New York his legal domicile.” [Emphasis supplied.] Finally, defendant argues that plaintiff saved legal fees in Mr. DeFina’s “consent to the uncontested divorce.” In the last analysis, defendant places principal reliance on the broad application of the Davis rule to the facts in this case. Here too, it is argued, there is uncertainty as to the value of the “property received” by taxpayer. Moreover, the settlement here was expressed in dollars, and the number of shares of stock was adjusted to preserve that dollar amount, so that “for all practical purposes, taxpayer made a sale of the shares.” Defendant’s strongest argument is its rebuttal of plaintiff’s position that the bulk of the transfer of Standard Oil stock to Mr. DeFina constituted a gift, because of the huge disparity between the value of the stock transferred and the value of the rights relinquished by Mr. DeFina. Citing Commissioner v. Duberstein, 363 U.S. 278 (1960), defendant notes that “the quality of the bargain is irrelevant if in fact there was not the donative intent to make a gift.” This highlights the importance of footnote 6 to the Drnis opinion, which reads as follows: Any suggestion that the transaction in question was a gift is completely unrealistic. Property transferred pursuant to a negotiated settlement in return for the release of admittedly valuable rights is not a gift in any sense of the term. To intimate that there was a gift to the extent the value of the property exceeded that of the rights released not only invokes the erroneous premise that every exchange not precisely equal involves a gift but merely raises the measurement problem discussed in Part III, infra, p. 71. Cases in which this 'Court has held transfers of property in exchange" }, { "docid": "22777532", "title": "", "text": "279 F. 2d 27 (C. A. 6th Cir. 1960), but is contra to the holdings in Commissioner v. Halliwell, 131 F. 2d 642 (C. A. 2d Cir. 1942), and Commissioner v. Mesta, 123 F. 2d 986 (C. A. 3d Cir. 1941). 12 Del. Code Ann. (Supp. 1960) § 512; 13 Del. Code Ann. § 1531. In the case of realty, the wife in addition to the above has rights of dower. 12 Del. Code Ann. §§ 502, 901, 904, 905. Internal Revenue Code of 1954 §61 (a). Iiiternal Revenue Code of 1954 §§ 1001, 1002. Any suggestion that the transaction in question was a gift is completely unrealistic. Property transferred pursuant to a negotiated settlement in return for the release of admittedly valuable rights is not a gift in any sense of the term. To intimate that there was a gift to the extent the value of the property exceeded that of the rights released, not only invokes the erroneous premise that every exchange not precisely equal involves a gift but merely raises the measurement problem discussed in Part III, infra, p. 71. Cases in which this Court has held transfers of property in exchange for the release of marital rights subject to gift taxes are based not on the premise that such transactions are inherently gifts but on the concept that in the contemplation of the gift tax statute they are to be taxed as gifts. Merrill v. Fahs, 324 U. S. 308 (1945); Commissioner v. Wemyss, 324 U. S. 303 (1945); see Harris v. Commissioner, 340 TJ. S. 106 (1950). In interpreting the particular income tax provisions here involved, we find ourselves unfettered by the language and considerations ingrained in the gift and estate tax statutes. See Farid-Es-Sultaneh v. Commissioner, 160 F. 2d 812 (C. A. 2d Cir. 1947). Under the present administrative practice, the release of marital rights in exchange for property or other consideration is not considered a taxable event as to the wife. For a discussion of the difficulties confronting a wife under a contrary approach, see Taylor and Schwartz, Tax Aspects of Marital Property" }, { "docid": "20743701", "title": "", "text": "a full, complete, and final settlement of all claims of each in the property of the other. The two pieces of property in question had a combined value of $32,643. During the years from 1928 to 1937, inclusive, the net income returned by petitioner for Federal income tax was as follows: Respondent contends that the transfer of money and property by petitioner to his former wife under the foregoing circumstances was a taxable gift. He has consistently maintained the position heretofore that payments under antenuptial agreements constituting the consideration for surrender by the intended wife of the inchoate right of dower to which she would be otherwise entitled after marriage are subject to the gift tax. See Bennet B. Bristol, 42 B. T. A. 263; reversed, Commissioner v. Bristol, 121 Fed. (2d) 129. But, so far as we are advised, this is the first instance where respondent has taken the position that payments made by a husband to his wife, incidental to divorce proceedings and in settlement of her rights to maintenance and support, are taxable as gifts. Section 804 of “Title VI — Estate Tax Amendments” in the Revenue Act of 1932 amended section 303 (d) of the estate tax provisions of the Revenue Act of 1926, by providing that, “For the purposes of this title * * release of dower, curtesy, or similar rights “shall not be considered to any extent a consideration ‘in money or money’s worth.’ ” The gift tax law was enacted as Title III of the same Revenue Act of 1932 and contained no comparable provision. Despite this pointed omission, respondent’s theory in the Bristol case was that in construing section 503 of the gift tax law we should read into it the quoted amendment to the estate tax provisions. The effect of that theory, of course, would require a holding in every case that a payment for surrender of dower or other marital rights would be subject to gift tax. We rejected that theory in the Bristol case. In that proceeding, involving a payment under an antenuptial contract, it was held that the" }, { "docid": "3568112", "title": "", "text": "estate tax tables. Petitioner argues that no gift was intended and that, in fact, no gift occurred, citing United States v. Davis, supra, and Matthews v. United States, 425 F.2d 738 (Ct. Cl. 1970). But it is well settled that donative intent on the part of the transferor is not an essential element in the application of the gift tax to a given transfer. Sec. 25.2511-1 (g) (1), Gift Tax Regs.; Commissioner v. Wemyss, 324 U.S. 303 (1945); Merrill v. Fahs, 324 U.S. 308 (1945); May T. Hrobon, 41 T.C. 476, 499 (1964). And as for the two cases cited by the petitioner, both deal with the gift concept under income tax as opposed to gift tax law. Thus, in Davis, where the Supreme Court states in a footnote that “To intimate that there was a gift to the extent the value of the property exceeded that of the rights released not only invokes the erroneous premise that every exchange not precisely equal involves a gift but merely raises the measurement problem * * * [discussed elsewhere in the opinion],” the Court is speaking of “gift” for income tax purposes. The next sentence in the footnote makes this clear: “Cases in which this Court has held transfers of property in exchange for the release of marital rights subject to gift taxes are based not on the premise that such transactions are inherently gifts but on the concept that in the contemplation of the gift tax statute they are to be taxed as gifts.” United States v. Davis, supra at 69 fn. 6. And in Matthews, the plaintiff argued that there was a gift, hoping to avoid a finding that the transaction was a transfer for consideration to which the income tax rule of Davis would apply. However, the Court of Claims found that there was no gift under Federal income tax law. Matthews v. United States, supra at 748-754. Moreover, neither case involved a transfer of appreciated property to persons other than a spouse or minor children. Here we have, among other things, a transfer of present and future interests" }, { "docid": "5367274", "title": "", "text": "release of the 1944 obligation constituted “adequate and full consideration in money or money’s worth” so as completely to exempt the 1946 promise from gift taxation under I. R. C. § 1002, 26 U.S.C. § 1002, is of course another question. Treas. Reg. 108, § 86.8, referred to above, provides that “a sale, exchange, or other transfer of property made in the ordinary course of business (a transaction which is bona fide, at arm’s length, and free from any donative intent), will be considered as made for an adequate and full consideration in money or money’s worth.” The Supreme Court’s observations on this provision in the Harris case, 340 U.S. at page 112, 71 S.Ct. at page 185, 95 L.Ed. 111, are equally apposite here: “This transaction is not ‘in the ordinary course of business’ in any conventional sense. New transactions between husband and wife ever would be; and those under the aegis of a divorce court are not. But if two partners on dissolution of the firm entered into- a transaction of this character or if chancery did it for them, there would seem to be no doubt that the unscrambling of the business interests would satisfy the spirit of the Regulations. No reason is apparent why husband and wife should be under a heavier handicap absent a statute which brings all marital property settlements under the gift tax.” We infer from this statement that even a family transaction may for gift tax purposes be treated as one “in the ordinary course of business” as defined in this Regulation if each of the parenthetical criteria is fully met. C. I. R. v. Wemyss, 324 U.S. 303, 65 S.Ct. 652, 89 L.Ed. 958, 156 A.L.R. 1022, suggests no contrary rule. It holds merely that the absence of donative intent as known to the common law will not alone prevent a transfer from being subject to gift taxation. See also Merrill v. Fahs, 324 U.S. 308, 65 S.Ct. 655, 89 L.Ed. 963; Farid-Es-Sultaneh v. C. I. R., 2 Cir., 160 F.2d 812, 816. The Court noted in the Wemyss case, 324" }, { "docid": "22220628", "title": "", "text": "Mr. Justice Douglas delivered the opinion of the Court. The federal estate tax and the federal gift tax, as held in a line of cases ending with Commissioner v. Wemyss, 324 U. S. 303, and Merrill v. Fahs, 324 U. S. 308, are construed in pari materia, since the purpose of the gift tax is to complement the estate tax by preventing tax-free depletion of the transferor’s estate during his lifetime. Both the gift tax and the estate tax exclude transfers made for “an adequate and full consideration in money or money’s worth.” In the estate tax this requirement is limited to deductions for claims based upon “a promise or agreement”; but the consideration for the “promise or agreement” may not be the release of marital rights in the decedent’s property. In the Wemyss and Merrill cases the question was whether the gift tax was applicable to premarital property settlements. If the standards of the estate tax were to be applied ex proprio vigore in gift tax cases, those transfers would be taxable because there was a “promise or agreement” touching marital rights in property. We sustained the tax, thus giving “adequate and full consideration in money or money’s worth” the same meaning under both statutes insofar as premarital property settlements or agreements are concerned. The present case raises the question whether Wemyss and Merrill require the imposition of the gift tax in the type of post-nuptial settlement of property rights involved here. Petitioner divorced her husband, Reginald Wright, in Nevada in 1943. Both she and her husband had substantial property interests. They reached an understanding as respects the unscrambling of those interests, the settlement of all litigated claims to the separate properties, the assumption of obligations, and the transfer of properties. Wright received from petitioner the creation of a trust for his lifetime of the income from her remainder interest in a then-existing trust; an assumption by her of an in-débtedness of his of $47,650; and her promise to pay him $416.66 a month for ten years. Petitioner received from Wright 21/90 of certain real property in controversy; a" }, { "docid": "20638172", "title": "", "text": "for the release of marital rights subject to gift taxes are based not on the premise that such transactions are inherently gifts but on the concept that in the contemplation of the gift tax statute they are to be taxed as gifts. Merrill v. Fahs, 324 U.S. 308 (1945); Cornmissioner v. Wemyss, 324 U.S. 303 (1945); see Harris v. Commissioner, 340 U.S. 106 (1950). In interpreting the particular income tax provisions here involved, we find ourselves unfettered by the language and considerations ingrained in the gift and estate tax statutes. See Farid-Es-Sultaneh v. Commissioner, 160 F. 2d 812 (C.A. 2d Cir. 1947). No part of any property transferred to Mr. DeFina was reported in plaintiff’s gift tax returns, and defendant there fore argues that there is no authority for the position that “a person may avoid both income and gift tax on the same transfer by taking the position for gift tax purposes that the transfer was made pursuant to a settlement of marital and property rights, and for income tax purposes that the transfer was not made in settlement of marital or property rights, but pursuant to the detached generosity of one of the parties.” This is, incidentally, not an accurate statement of plaintiff’s position. She draws attention to the fact that cases like Duberstein all occurred in a business context. And she reiterates Gift Tax Regulations § 25.2511-1 (g) (1) earlier cited to the effect that: Donative intent on the part of the transferor is not an essential element in the application of the gift tax to the transfer. The application of the tax is based on the objective facts of the transfer and the circumstances under which it is made, rather than on the subjective motives of the donor. * * * In the earlier described Tax Court litigation in which plaintiff is resisting imposition of a gift tax on the transfers to Mr. DeFina, she is not inconsistently arguing that this was not a gift, but rather that it is not taxable as a gift because of the exception conferred by section 2516 of the code," } ]

[ { "docid": "23657737", "title": "", "text": "El-Shafei’s credibility was disclosed with plenty of time for him to make use of the information. B) Travel Act We review the district court’s denial of O’Hara’s motion for judgment of acquittal on Count IV de novo. United States v. Griffin, 194 F.3d 808, 816 (7th Cir.1999). A motion for judgment of acquittal should only be granted if there is insufficient evidence to sustain the conviction. United States v. Jones, 222 F.3d 349, 351-52 (7th Cir.2000) (citing Federal Rule of Criminal Procedure 29(a)). In considering the sufficiency of the evidence, we view the evidence in the light most favorable to the prosecution and will overturn a conviction only if the record contains no evidence on which a rational jury could have returned a guilty verdict. Count IV charged O’Hara with violating the Travel Act, 18 U.S.C. § 1952, which prohibits travel in interstate commerce with the intent of promoting or engaging in extortion in violation of state law. See 18 U.S.C. § 1952(b)(2) (defining the term “unlawful activity” to include extortion under state law). O’Hara first argues that the Travel Act is unconstitutionally ambiguous. We disagree. “[T]he void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definitiveness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” United States v. Collins, 272 F.3d 984, 988 (7th Cir.2001), cert. denied, — U.S. —, 122 S.Ct. 1938, 152 L.Ed.2d 842 (2002) (citations omitted). The goal of the void-for-vagueness doctrine is to ensure that defendants are given “fair and reasonable warning.” United States v. Pitt-Des Moines, Inc., 168 F.3d 976, 987 (7th Cir.1999). Where, as here, the constitutional challenge for vagueness involves no First Amendment issue, we evaluate it in light of the statute’s application to the facts of the case. Collins, 272 F.3d at 988. We believe that O’Hara had more than fair and reasonable warning that his conduct was violative of the Travel Act. The Act plainly prohibits crossing state lines to promote or engage in extortion. O’Hara did just that. He traveled interstate between Milwaukee" } ]

[ { "docid": "23696719", "title": "", "text": "third count, using or carrying a firearm during and in relation to a drug trafficking crime. He has also appealed his sentence. II. Sloley claims that the district court erred by denying his motion for acquittal on the firearm count because his use of Card-well’s gun was neither “during” nor “in relation to” the drug conspiracy offense for which he was indicted and convicted. In reviewing the denial of a motion for acquittal, we consider the evidence and all reasonable inferences that can be drawn from it in the light most favorable to the Government, as we determine whether any rational factfinder could have found the essential elements of the crime beyond a reasonable doubt. See United States v. Bell, 954 F.2d 232, 235 (4th Cir.1992), cert. denied, — U.S. -, 114 S.Ct. 112, 126 L.Ed.2d 77 (1993). Rule 29 of the Federal Rules of Criminal Procedure provides that a court shall grant a defendant’s motion for judgment of acquittal “if the evidence is insufficient to sustain a conviction.” Fed.R.Crim.P. 29(a). To sustain a conviction under 18 U.S.C. § 924(c)(1), the Government must prove beyond a reasonable doubt that the defendant “use[d] or carrie[d] a firearm” “during and in relation to” a “drug trafficking crime.” 18 U.S.C. § 924(c)(1). By its terms, the statute requires the prosecution to make two showings: first, the Government must prove that the defendant “use[d] or carrie[d] a firearm”; and second, it must prove that the use or carrying was “during and in relation to” a “drug trafficking crime.” Smith v. United States, — U.S. -, -, 113 S.Ct. 2050, 2053, 124 L.Ed.2d 138 (1993). Here, the jury heard ample evidence establishing the first showing. The contested issue is whether there was sufficient evidence to prove beyond a reasonable doubt that Sloley used or carried Cardwell’s gun “during and in relation to” the underlying drug-trafficking conspiracy. The Supreme Court recently interpreted § 924(e)(1) and concluded that the “in relation to” language requires, at a minimum, that the use or carrying of the firearm facilitated, furthered, or had the potential to facilitate or further the drug" }, { "docid": "11385432", "title": "", "text": "in overruling Rush-Richardson’s motions for judgment of acquittal because there was insufficient evidence to convict him; (2) erroneously overruled Rush-Richardson’s objection to Instruction 5; and (3) improperly denied Rush-Richardson a two-level downward adjustment for acceptance of responsibility on the drug charge. We reverse the district court and remand the case based upon Instruction 5, but we will first address Rush-Richardson’s sufficiency of the evidence claim. See Burks v. United States, 437 U.S. 1, 18, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978) (holding “the Double Jeopardy Clause precludes a second trial once the reviewing court has found the evidence legally insufficient”); Palmer v. Grammer, 863 F.2d 588, 592 (8th Cir.1988) (stating “it is well-established that Burks does not allow an appellate court to reverse for trial error and remand for retrial while ignoring a claim of insufficient evidence”). A. Sufficiency of the Evidence Rush-Richardson first argues the district court erroneously denied his motions for judgment of acquittal because there was insufficient evidence for a reasonable jury to convict him of knowingly possessing firearms in furtherance of a drug trafficking crime. Rush-Richardson contends the government failed to produce enough evidence for a jury to find a nexus between the drugs and the firearms because (1) there was no evidence Rush-Richardson knew about the firearms, (2) there was no evidence the firearms were in close proximity to the drugs, and (3) the firearms were not accessible to further the drug trafficking crime. “We review the denial of a motion for judgment of acquittal de novo, viewing the evidence in the light most favorable to the verdict.” United States v. Wallenfang, 568 F.3d 649, 656 (8th Cir.2009) (internal quotations and citations omitted). “We will reverse only if no reasonable jury could have found the accused guilty.” Id. (internal quotations and citations omitted). “To secure a conviction under [18 U.S.C.] § 924(c)(1)(A), the government must present evidence from which a reasonable juror could find a ‘nexus’ between the defendant’s possession of the charged firearm and the drug crime, such that this possession had the effect of ‘furthering, advancing or helping forward’ the drug crime.” United" }, { "docid": "23707805", "title": "", "text": "the police. II. DISCUSSION A Motion for Acquittal Manning argues that there was insufficient evidence to support his conviction for using a destructive device during and in relation to a drug trafficking crime, and so the district court erred in denying Ms motion for acquittal on Count II. We review the district court’s disposition of a motion for acquittal de novo, viewing the evidence, and all reasonable inferences that may be drawn therefrom, in the light most favorable to the government. United States v. Loder, 23 F.3d 586, 589-90 (1st Cir.1994). Approximately one month after oral arguments in tMs case, the Supreme Court decided Bailey v. United States, - U.S. -, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), and concluded that “use” of a firearm in 18 U.S.C. § 924(c)(1) means “active employment of the firearm” wMch “includes brandishing, displaying, bartering, striking with, and most obviously, firing or attempting to fire, a firearm.” Id. at -, 116 S.Ct. at 505, 508. Our careful review of the record reveals that the government’s evidence was insufficient to show “use” under the Bailey standard. The government did not present any evidence that Manning had brandished, displayed, bartered, struck someone with, fired/detonated or attempted to fire/detonate either the 9 millimeter handgun or the six pipe bombs. The evidence presented at trial was simply that Manning had carried the briefcase containing the gun, pipe bombs, drugs, and drug paraphernalia into the garage of 151 Doyle Avenue and nothing more. The reach of 18 U.S.C. § 924(c)(1), however, extends beyond the use of a firearm. Section 924(c)(1) applies to any person who either “uses or carries a firearm.” 18 U.S.C. § 924(c)(1) (emphasis added). At issue, therefore, is whether the government succeeded in presenting evidence sufficient to show that Manning was guilty of carrying a firearm during and in relation to any drug trafficking crime. Conviction under § 924(c)(1) requires proof beyond a reasonable doubt that Manning: (1) committed the drug trafficking crime of possession with intent to distribute as charged in the indictment, (2) knowingly carried a firearm, and (3) did so during and in" }, { "docid": "23696718", "title": "", "text": "charged them with possession with intent to distribute 73.3 kilograms of marijuana, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). Count Three — the subject of the instant appeal— charged only Sloley with using or carrying a firearm during and in relation to a drug trafficking crime (conspiracy to possess marijuana with the intent to distribute), in violation of 18 U.S.C. § 924(e)(1). At trial, the district judge denied Sloley’s motion for acquittal on the third count and rejected his request for a jury instruction on self-defense. The jury found Sloley guilty of all three counts. The judge sentenced him to the mandatory 60-month consecutive sentence on Count Three. He also enhanced Sloley’s offense level for assaulting an “official victim” under § 3A1.2(b) of the federal Sentencing Guidelines, and sentenced him to 65 months on Counts One and Two. On appeal, Sloley has not challenged his convictions for conspiracy to possess marijuana with the intent to distribute or for possession with intent to distribute marijuana. He does seek reversal of his conviction on the third count, using or carrying a firearm during and in relation to a drug trafficking crime. He has also appealed his sentence. II. Sloley claims that the district court erred by denying his motion for acquittal on the firearm count because his use of Card-well’s gun was neither “during” nor “in relation to” the drug conspiracy offense for which he was indicted and convicted. In reviewing the denial of a motion for acquittal, we consider the evidence and all reasonable inferences that can be drawn from it in the light most favorable to the Government, as we determine whether any rational factfinder could have found the essential elements of the crime beyond a reasonable doubt. See United States v. Bell, 954 F.2d 232, 235 (4th Cir.1992), cert. denied, — U.S. -, 114 S.Ct. 112, 126 L.Ed.2d 77 (1993). Rule 29 of the Federal Rules of Criminal Procedure provides that a court shall grant a defendant’s motion for judgment of acquittal “if the evidence is insufficient to sustain a conviction.” Fed.R.Crim.P. 29(a). To sustain a conviction" }, { "docid": "19136032", "title": "", "text": "conspiracy counts (Counts 8, 9, 14, and 15), 5 years for the first firearms count (Count 10), and 25 years for the second firearms count (Count 16). See 21 U.S.C. § 841(b)(1)(A) (drug trafficking crimes); 18 U.S.C. § 924(c)(l)(A)(i) (firearms in drug offense); 18 U.S.C. § 924(c)(1)(C)© (second conviction for firearms in drug offense). The 10-year drug trafficking sentences were to run concurrently, after which the 5-year and 25-year firearms sentences were to be served consecutively. That sentence totals to 40 years’ imprisonment. Diaz-Castro timely appealed. II. Diaz-Castro presents a variety of challenges to his conviction and sentence. Specifically, he argues: (1) that the evidence was insufficient to sustain his conviction; (2) that the district court erroneously denied him the opportunity to present entrapment, derivative entrapment, or duress defenses; (3) that the prosecutor’s statements at closing argument improperly shifted the burden onto the defendant and improperly vouched for witnesses; and (4) that the two conspiracies were in fact a single one and so Diaz-Castro should have been convicted and sentenced on only a single count of conspiracy, and on only one count of possession of firearms in relation to a drug trafficking crime. We address each of these arguments in turn. A. Sufficiency of the Evidence At multiple points during his trial, Diaz-Castro filed motions for acquittal, claiming that the government’s evidence was insufficient to support a conviction. See Fed. R.Crim.P. 29. The district court denied each, and Diaz-Castro now argues that those denials constitute reversible error. We review the denial of a motion for acquittal de novo. See United States v. Willson, 708 F.3d 47, 52 (1st Cir.2013). Denial of a motion for acquittal is proper if, “taking the evidence at trial in the light most favorable to the jury’s verdict, a rational factfinder could find that the government proved each essential element of the crime beyond a reasonable doubt.” United States v. Soto, 720 F.3d 51, 55 (1st Cir.2013). In this case, the evidence presented at trial was more than sufficient to support the jury’s verdict. As to Count 8 (the first conspiracy count), the evidence at trial" }, { "docid": "14493270", "title": "", "text": "incident to a lawful arrest. See Arizona v. Gant, 556 U.S. 332, 338-39, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009). In sum, at no point from the initial stop through the time of Mr. McGehee’s arrest was the Fourth Amendment violated. For that reason, the district court properly denied Mr. McGehee’s motion to suppress. B. Sufficiency of the Evidence Mr. McGehee also contends that there was insufficient evidence for the jury to convict him of possessing a firearm in furtherance of a drug-trafficking crime — that is, of the crime charged in Count Two of the indictment. “In reviewing the sufficiency of the evidence and denial of a motion for judgment of acquittal, this court reviews the record de novo to determine whether, viewing the evidence in the light most favorable to the government, any rational trier of fact could have found the defendant guilty of the crime beyond a reasonable doubt.” United States v. Irvin, 656 F.3d 1151, 1162 (10th Cir.2011). In conducting this inquiry, the court may “not ‘weigh conflicting evidence.’ ” Id. (quoting United States v. Evans, 318 F.3d 1011, 1018 (10th Cir. 2003)). Moreover, in making its determination, the “court considers the entire record, including both direct and circumstantial evidence, together with the reasonable inferences to be drawn from it.” United States v. Mendez, 514 F.3d 1035, 1041 (10th Cir.2008). “A conviction under [18 U.S.C.] § 924(c)(1)(A) requires more than just possession of a firearm; it also requires that such possession be ‘in furtherance’ of ... a drug trafficking crime.” United States v. King, 632 F.3d 646, 655 (10th Cir.2011). As a preliminary matter, Mr. McGehee does not appear to argue that the evidence was insufficient to establish that he possessed — or constructively possessed — the firearm in question. He argues only that the evidence could not satisfy the “in furtherance” element of § 924(c)(1)(A). “We have previously held that ‘possession in furtherance[ ] requires the government to show that the weapon furthered, promoted or advanced a drug trafficking crime.’” United States v. Luke-Sanchez, 483 F.3d 703, 706 (10th Cir.2007) (quoting United States v. Robinson," }, { "docid": "23228113", "title": "", "text": "with intent to distribute 4.9 grams of crack. The third count charged Thorpe with carrying a firearm during and in relation to drug trafficking crimes. At trial, a police officer testifying as an expert witness for the government stated that the house was fortified in a manner typical of crack houses and that when police enter these types of premises the occupants are likely to throw down their weapons and run. Thorpe introduced medical records showing he had been hospitalized following an assault several weeks earlier. He claimed that he was in the house to search for the persons who had beaten him. On January 13, 1989, a jury found Alan Thorpe guilty on the conspiracy, possession, and firearms charges. After the jury returned its verdict, the court ruled on Thorpe’s motion for judgment of acquittal under Fed.R.Crim.P. 29. Thorpe claimed that the circumstantial evidence merely proved his presence at the scene of the crime, and that there was no evidence of an agreement to possess or distribute crack or that he was using or carrying a weapon. The district court denied the motion, finding that the evidence against Thorpe showed more than mere presence, and was enough to support a finding that Thorpe was aware the premises were used as a crack house, that the house was being raided for illegal drug activity, and that Thorpe’s possession of the 9 millimeter round was sufficient to support an inference that he had control of at least one weapon in the house. On April 19, 1989, a second jury found Morris Pearce guilty on the conspiracy and possession charges. This timely appeal followed. II. In determining the sufficiency of the evidence to support a guilty verdict “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). Thorpe and Pearce claim that the evidence is insufficient to sustain their convictions for conspiracy" }, { "docid": "5385562", "title": "", "text": "in furtherance of a drug trafficking crime, see 18 U.S.C. § 924(c)(1), or aiding and abetting such offenses, see 18 U.S.C. § 2(a). Mr. Espinosa pleaded guilty to the drug offenses. He pleaded not guilty to the firearms charge, but was convicted by a jury on that count as an aider and abettor. Mr. Lofton pleaded not guilty to all three charges, but a jury convicted him on all counts. Mr. Espinosa appeals from the denial of his motion for judgment of acquittal and, in the an alternative, for a new trial. A motion for judgment of acquittal should be granted only “where the evidence, viewed in the light most favorable to the government, is such that a reasonably minded jury must have a reasonable doubt as to the existence of any essential elements of the crime charged.” United States v. Mundt, 846 F.2d 1157, 1158 (8th Cir.1988). The standard for granting a motion for new trial is somewhat less exacting because the evidence need not be viewed in the light most favorable to the government; but a defendant is nevertheless not entitled to a new trial unless “ ‘the evidence weighs heavily enough against the verdict that a miscarriage of justice may have occurred.’ ” United States v. Lacey, 219 F.3d 779, 783-84 (8th Cir.2000) (quoting United States v. Lanier, 838 F.2d 281, 284-85 (8th Cir.1988) (per curiam)). We will not reverse a district court’s order denying a motion for a new trial, moreover, unless the court clearly abused its discretion. See United States v. Worley, 88 F.3d 644, 646 (8th Cir.1996). To sustain the conviction, we must find sufficient evidence on two points: first, Mr. Espinosa must have aided and abetted the use, carrying, or possession of a firearm; and, second, that firearm must have been used or carried “during and in relation to” a drug trafficking crime or possessed “in furtherance of’ a drug trafficking crime. See 18 U.S.C. §§ 2(a), 924(c)(1). Mr. Espinosa argues that neither he nor Mr. Lofton “use[d]” a firearm, as that term is employed in § 924(c)(1), and therefore he could not" }, { "docid": "2812874", "title": "", "text": "On appeal, Simms argues that there was insufficient evidence to convict him on the firearm charge, that the “reasonable doubt” jury instruction given by the district court was erroneous, and that he was denied effective assistance of counsel. Ricketts argues that there was insufficient evidence to convict him on the possession charge. Both Simms and Ricketts raise equal protection and due process challenges to the guideline sentences for cocaine base. II. DISCUSSION A. Roosevelt Simms 1. Simms first argues that there was insufficient evidence to convict him of using a firearm in relation to a drug trafficking crime and that the district court erred by denying his motion for judgment of acquittal. In reviewing Simms’s challenge to the sufficiency of the evidence, “we must affirm the conviction if, after viewing the evidence in the light most favorable to the government and giving the government the benefit of all reasonable inferences, we conclude that a reasonable jury could have found [Simms] guilty beyond a reasonable doubt.” United States v. Mejia, 8 F.3d 3, 5 (8th Cir.1993) (per curiam). Section 924(c)(1) of Title 18 provides that “Whoever, during and in relation to any crime of ... drug trafficking ... uses or carries a firearm, shall, in addition to the punishment provided for such ... drug trafficking crime, be sentenced to imprisonment for five years.... ” The phrase “in relation to” has an “expansive” meaning. Smith v. United States, — U.S.-,-, 113 S.Ct. 2050, 2058, 124 L.Ed.2d 138 (1993). This phrase “clarifies that the firearm must have some purpose or effect with respect to the drug trafficking crime,” and requires that the firearm “ ‘facilitate], or ha[ve] the potential of facilitating,’ the drug trafficking offense.” Id. at-, 113 S.Ct. at 2059 (alteration in original) (quoting United States v. Stewart, 779 F.2d 538, 540 (9th Cir.1985)). Section 924(c)(1) requires the prosecution to prove two separate elements. First, “the prosecution must demonstrate that the defendant ‘use[d] or carrie[d] a firearm.’ Second, it must prove that the use or carrying was ‘during and in relation to’ a drug trafficking crime.” Id. at -, 113 S.Ct. at" }, { "docid": "10921288", "title": "", "text": "the search incident to arrest exception.”). B. Sufficiency of the Evidence Second, X challenges the district court’s denial of his motion for judgment of acquittal as to the charge of use of a firearm during and in relation to drug trafficking crimes, arguing the government failed to prove beyond a reasonable doubt X “used” a firearm within the meaning of 18 U.S.C. § 924(c)(1)(A). “We review the denial of a motion for a judgment of acquittal de novo, with all evidence viewed in the light most favorable to the nonmoving party, the Government. We will reverse only if no reasonable jury could have found [the defendant] guilty beyond a reasonable doubt.” United States v. Faulkner, 636 F.3d 1009, 1021 (8th Cir.2011) (citing United States v. Robertson, 606 F.3d 943, 953 (8th Cir.2010)). Three separate crimes are enumerated in 18 U.S.C. § 924(c)(1)(A): (1) using a firearm during and in relation to a crime of violence or drug trafficking crime; (2) carrying a firearm during and in relation to a crime of violence or drug trafficking crime; and (3) possessing a firearm in furtherance of a crime of violence or drug trafficking crime. See Abbott v. United States, — U.S. -, 131 S.Ct. 18, 22, 178 L.Ed.2d 348 (2010); see also United States v. Kent, 531 F.3d 642, 654 (8th Cir.2008). The distinction between the offenses is more than trivial. For example, although the “use” offense requires more than simple possession, Bailey v. United States, 516 U.S. 137, 143, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), the “during and in relation to” requirement of the “use” and “carry” offenses is a lesser standard than the “in furtherance of’ requirement of the possession offense, United States v. Gamboa, 439 F.3d 796, 810 (8th Cir.2006). The Indictment charged that X used or carried a firearm during and in relation to a drug trafficking crime, however, the verdict form submitted to the jury eliminated the “carried” language. Accordingly, the narrow issue before us is whether the evidence supports the jury’s finding that X “used” a firearm during and in relation to a drug trafficking" }, { "docid": "20637331", "title": "", "text": "Second, he asserts that the District Court erred in denying his motion to suppress evidence gathered at his base home. Finally, he argues that the District Court erred in denying his motion to suppress statements he made after his arrest. II. DISCUSSION A. Sufficient Evidence Supports Mr. Banks’ Conviction for Carrying a Firearm During and In Relation to a Drug Trafficking Crime We review claims of insufficient evidence de novo. United States v. LaVallee, 439 F.3d 670, 697 (10th Cir.2006). “ ‘[W]e ask only whether taking the evidence — both direct and circumstantial, together with the reasonable inferences to be drawn therefrom — in light most favorable to the government, a reasonable jury could find the defendant guilty beyond a reasonable doubt.’ ” United States v. Radcliff, 331 F.3d 1153, 1157 (10th Cir.2003) (quotations omitted). We do not assess the credibility of witnesses or weigh conflicting evidence because these tasks are exclusively those of the jury. United States v. Castorena-Jaime, 285 F.3d 916, 933 (10th Cir.2002). Accordingly, we may reverse “only if no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Wacker, 72 F.3d 1453, 1462-63 (10th Cir.1995). Under 18 U.S.C. § 924(c)(1)(A)®, “any person who, during and in relation to any crime of violence or drug trafficking crime ... uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm” is subject to a mandatory five-year term of imprisonment. Mr. Banks was convicted under the first prong of the statute, which requires the Government to prove three elements beyond a reasonable doubt: (1) Mr. Banks committed a drug trafficking offense (in this case, the conspiracy to distribute crack cocaine); (2) Mr. Banks knowingly carried a firearm; and (3) Mr. Banks carried a firearm during and in relation to the conspiracy to distribute crack cocaine. See United States v. McKissick, 204 F.3d 1282, 1292 (10th Cir.2000). Mr. Banks concedes that he was involved in the drug conspiracy, but he argues that insufficient evidence demonstrates that he carried the Lorcin pistol during and in" }, { "docid": "19763235", "title": "", "text": "and that single dosage units typically sell for ten dollars. Officer Bunn further testified that twenty dollars is a very common purchase level. With respect to the charge of possession of a firearm in furtherance of a drug trafficking offense, the district court instructed the jury as follows: The defendant is charged in Count Three of the indictment with possessing a firearm in furtherance of a drug trafficking crime in violation of Section 924(c)(1) of Title 18 of the United States Code. In order for the defendant to be found guilty of that charge, the Government must prove each of the following elements beyond a reasonable doubt: First, the defendant committed the crime of drug trafficking specified in Count Four of the indictment; Second, the defendant knowingly possessed a firearm; and Third, the defendant possessed the firearm in furtherance of the crime. The jury instructions did not separately define the term “in furtherance” in the third element. A jury convicted Lopez on all five counts. Lopez appeals, arguing that: (1) insufficient evidence existed to support conviction under Counts Three and Four; (2) the district court plainly erred by failing to define “in furtherance” in the jury instruction for Count Three; and (3) the district court abused its discretion when it denied his motion to sever the drug-related charges from the others. II. ANALYSIS We review claims of insufficient evidence de novo. Sufficient evidence supports a conviction if, “after viewing the evidence in the light most favorable to the prosecution, no rational trier of fact could have found each of the essential elements of the crime beyond a reasonable doubt.” We review a complaint regarding jury instruction for plain error where a defendant neither proposed nor objected to a jury instruction. Finally, we review the district court’s denial of a motion to sever for abuse of discretion. A. Sufficient evidence supported the jury’s guilty verdict on the charge of possession of cocaine with intent to distribute. In order to convict under 21 U.S.C. § 841(a), the Government must prove beyond a reasonable doubt that Lopez both knowingly possessed cocaine and that" }, { "docid": "5385561", "title": "", "text": "MORRIS SHEPPARD ARNOLD, Circuit Judge. Fabian Espinosa appeals his conviction in the district court for aiding and abetting the use, carrying, or possession of a firearm in relation to drug trafficking. See 18 U.S.C. §§ 2(a), 924(c)(1). We affirm. I. Sioux City police officers stopped a vehicle that Mr. Espinosa was driving for traffic violations and smelled marijuana inside. While Mr. Espinosa and his passenger, Richard Lofton, were detained, an officer observed a handgun on the floor of the vehicle at Mr. Lofton’s feet. Mr. Lofton told police that the gun belonged to him and that he had it because he and Mr. Espinosa were traveling. The officers then searched the vehicle and found methamphetamine and marijuana. Both men were arrested and subsequently indicted for possession of methamphetamine with intent to distribute it and for possession of marijuana with intent to distribute it. See 21 U.S.C. §§ 841(a)(1). They were also indicted in a single count for using or carrying a firearm during and in relation to a drug trafficking crime, or possessing a firearm in furtherance of a drug trafficking crime, see 18 U.S.C. § 924(c)(1), or aiding and abetting such offenses, see 18 U.S.C. § 2(a). Mr. Espinosa pleaded guilty to the drug offenses. He pleaded not guilty to the firearms charge, but was convicted by a jury on that count as an aider and abettor. Mr. Lofton pleaded not guilty to all three charges, but a jury convicted him on all counts. Mr. Espinosa appeals from the denial of his motion for judgment of acquittal and, in the an alternative, for a new trial. A motion for judgment of acquittal should be granted only “where the evidence, viewed in the light most favorable to the government, is such that a reasonably minded jury must have a reasonable doubt as to the existence of any essential elements of the crime charged.” United States v. Mundt, 846 F.2d 1157, 1158 (8th Cir.1988). The standard for granting a motion for new trial is somewhat less exacting because the evidence need not be viewed in the light most favorable to the" }, { "docid": "7763546", "title": "", "text": "turned out to be cocaine base; Officer Mayweather found a handgun under the vehicle, which he believed, based on its location and Allen’s movements, had been slid underneath the car from the passenger’s side. A police camera located in Officer Mayweather’s cruiser recorded the arrest. A grand jury indicted Allen for: conspiring to distribute and possess with intent to distribute more than five grams of crack cocaine; possessing with intent to distribute more than five grams of crack cocaine; possessing a firearm in furtherance of a drug trafficking crime; and possessing a firearm after a felony conviction. Allen pled guilty, but the district court allowed him to withdraw his guilty plea and proceed to trial after Officer Goodine was indicted on multiple charges relating to theft and official misconduct. The jury found Allen guilty of all counts, and he was sentenced to 360 months on Counts One, Two, and Four, with the sentences to run concurrently. Allen received a life sentence on Count Three, to be served eonsec- utively with the other sentences. This timely appeal followed. II. ANALYSIS Allen challenges whether: (1) there was sufficient evidence to support his conviction; (2) evidence of prior acts should have been admitted under Rule 404(b); (3) there was a proper chain of custody for the crack cocaine found ■ at the scene of the arrest; (4) the district court erred in refusing to dismiss his indictment due to outrageous government conduct; and (5) the district court erred in refusing to grant his motion to suppress. 1. Sufficiency of the evidence Allen challenges the sufficiency of the evidence with respect to his motion for mistrial and his motion for acquittal concerning his convictions for possession and conspiracy to possess. The denial of a motion for acquittal is reviewed de novo to ascertain, “whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Garrido, 467 F.3d 971, 984 (6th Cir.2006) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct." }, { "docid": "19136033", "title": "", "text": "of conspiracy, and on only one count of possession of firearms in relation to a drug trafficking crime. We address each of these arguments in turn. A. Sufficiency of the Evidence At multiple points during his trial, Diaz-Castro filed motions for acquittal, claiming that the government’s evidence was insufficient to support a conviction. See Fed. R.Crim.P. 29. The district court denied each, and Diaz-Castro now argues that those denials constitute reversible error. We review the denial of a motion for acquittal de novo. See United States v. Willson, 708 F.3d 47, 52 (1st Cir.2013). Denial of a motion for acquittal is proper if, “taking the evidence at trial in the light most favorable to the jury’s verdict, a rational factfinder could find that the government proved each essential element of the crime beyond a reasonable doubt.” United States v. Soto, 720 F.3d 51, 55 (1st Cir.2013). In this case, the evidence presented at trial was more than sufficient to support the jury’s verdict. As to Count 8 (the first conspiracy count), the evidence at trial showed that Diaz-Castro agreed with Kento to provide armed protection at a drug deal. A video recording of the transaction, introduced at trial, shows Diaz-Castro arriving, socializing, then frisking the buyer for weapons, and accepting payment for his services, all overt acts in furtherance of the conspiracy. As to Count 9 (attempted drug trafficking with respect to the first transaction), the video also showed the purported buyer counting six kilograms of a substance he claimed was cocaine in Diaz-Castro’s presence, then consummating the transaction. And as to Count 10 (possession of a firearm in relation to a drug trafficking crime), the video further shows that Diaz-Castro brought his firearm and had it with him during the transaction. The evidence equally supports the juiy’s verdict with respect to the second transaction. As to Count 14 (the second conspiracy count), Benitez-Falcon, the officer Diaz-Castro recruited, testified that he had agreed with Diaz-Castro to provide armed protection for the drug deal. The video of the transaction, introduced at trial, shows that Diaz-Castro actually played a part in the" }, { "docid": "22288554", "title": "", "text": "12 of possession of a firearm in violation of 18 U.S.C. § 924(c). We review the “denial of a motion for judgment of acquittal de novo, viewing the evidence in the light most favorable to the government.” United States v. Austin, 231 F.3d 1278, 1283 (10th Cir.2000). We must determine whether there is evidence “from which a jury could find the defendant guilty beyond a reasonable doubt.” See id. Although we review the record to determine if there is evidence to support the verdict, we do not “weigh the evidence or consider the credibility of the witnesses in making [our] determination.” Id. Reversal is warranted “ ‘only if no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” United States v. Haslip, 160 F.3d 649, 652 (10th Cir.1998) (quoting United States v. Wacker, 72 F.3d 1453, 1462-63 (10th Cir.1995)). In this case, Count 12 charged that on or about January 21, 1999, Gary Lott “knowingly carried and possessed a firearm, [the Sig-Sauer automatic pistol found in the Camaro] during and in relation to and in furtherance of a drug trafficking offense, that is, attempting to manufacture methamphetamine” in violation of 18 U.S.C. § 924(c)(1). This count included two distinct offenses for which the jury could have found Gary Lott guilty. The statute provides an enhanced sentence for those “who, during and in relation to any crime of violence or drug trafficking crime ... uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm.” § 924(c)(1)(A) (emphasis added). “[A] crime denounced in the statute disjunctively may be alleged in an indictment in the conjunctive, and thereafter proven in the disjunctive.” United States v. Powell, 226 F.3d 1181, 1192 n. 4 (10th Cir.2000). Accordingly, we must examine the evidence to determine whether the jury could have found Gary Lott guilty either of carrying a weapon during and in relation to a drug trafficking offense, or of possessing the weapon in furtherance of the drug trafficking offense. We find sufficient evidence to support a jury finding that Gary" }, { "docid": "6930951", "title": "", "text": "entrapment by estoppel defenses, none of them correctly stated the law or had the requisite evidentiary basis for it to be submitted to a jury. Accordingly, we find that the district court did not abuse its discretion in rejecting Hale’s proposed entrapment-by-estoppel defense. E. Hale contends that the district court erred when it refused to enter a judgment of acquittal on the firearms charge (count 2), which required that the government prove beyond a reasonable doubt that Hale (i) used or carried a firearm in relation to a drug trafficking offense or (ii) possessed a firearm in furtherance of a drug trafficking an offense. Because Hale moved for a judgment of acquittal both after the government’s case in chief and at the close of the trial, we review a challenge to the sufficiency of the evidence de novo, reviewing the evidence in the light most favorable to the verdict and determining whether any rational jury could have found guilt beyond a reasonable doubt. United States v. Clayton, 506 F.3d 405, 412 (5th Cir.2007). Hale argues that the evidence presented at trial established that his carrying a handgun during the Embassy Suites meeting “played no part” in the crime of conspiracy to commit a drug trafficking offense. He likewise argues that his possession of the handgun at the meeting was not “in furtherance of’ the conspiracy because he never “brandished, employed, engaged, or used [the handgun] in any way and [that it] had no effect of changing the results of the meeting.” His excuse for taking the handgun into the meeting was that there was no safe place to leave it in the vehicle because the door lock was not working. Both of Hale’s arguments fail. There is sufficient evidence in the record that the jury could have reasonably relied upon showing that Hale committed a drug trafficking crime and that he knowingly carried a firearm during and in relation to that crime. See United States v. Speer, 30 F.3d 605, 612 (5th Cir.1994). Several witnesses testified that Hale took his handgun from the vehicle, cocked it, and carried it tucked" }, { "docid": "11004433", "title": "", "text": "On March 17, 1994, the federal government indicted Hernandez in the present action, charging him with two counts based on the events of April 27, 1989. Hernandez made motions to suppress the evidence seized from the garage and to have the indictment dismissed for vindictive prosecution and double jeopardy. The district court denied these motions after holding a Franks hearing. A jury then found Hernandez guilty on both counts, and he appeals. DISCUSSION 1. Sufficiency of the Evidence Hernandez claims that the evidence was insufficient to support his conviction on Count I for using or carrying a firearm during and in relation to a drug trafficking crime. Hernandez argues that the government failed to establish that he “used or earned” a firearm, because the gun was inside a locked toolbox during the time of the relevant drug trafficking crime. Section 924(c)(1) requires the imposition of enhanced penalties if the defendant “during and in relation to any crime of violence or drug trafficking crime ... uses or carries a firearm_” 18 U.S.C. § 924(c)(1) (emphasis added). There is sufficient evidence to support a conviction if, reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. United States v. Vgeri, 51 F.3d 876, 879 (9th Cir.1995). In its recent decision in Bailey, the Supreme Court stated that “a conviction for ‘use’ of a firearm under § 924(c)(1) requires more than a showing of mere possession .... ” Bailey, — U.S. at -, 116 S.Ct. at 506. To establish “use” under section 924(c)(1), the government must show “an active employment of the firearm.” Id. at -, 116 S.Ct. at 505. “The active-employment understanding of ‘use’ certainly includes brandishing, displaying, bartering, striking with, and most obviously, firing or attempting to fire, a firearm.” Id. at -, 116 S.Ct. at 508. It, however, does not encompass the action in which a defendant hides a gun where he can grab and use it if necessary, unless the defendant makes a reference to the gun in his possession" }, { "docid": "23177979", "title": "", "text": "of Booker Hudson had failed to knock and announce their presence before entering, the issue before the Court in Hudson was one of remedy: “whether violation of the ‘knock and announce’ rule requires the suppression of all evidence found in the search.” Id. at 2162. The Court answered that question in the negative, holding that the strong medicine of suppression was inappropriate for an officer’s failure to knock and announce. Accordingly, the district court did not err in refusing to exclude the evidence seized at 183 Sixth Street. B. INSUFFICIENT EVIDENCE: POSSESSION “IN FURTHERANCE” Marcus Snow challenges the sufficiency of the evidence in support of his conviction for possession of two specifically-described handguns in furtherance of the charged drug trafficking offenses. . See 18 U.S.C. § 924(c)(1)(A). We review a challenge to the sufficiency of the evidence de novo, although the defendant bears a “heavy burden” to overturn a conviction on this ground. United States v. Naiman, 211 F.3d 40, 46 (2d Cir.2000). The burden is heavy, in part, because we view the evidence at trial in the light most favorable to the government, and we draw every inference in its favor. Id. So long as any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, the jury’s verdict will stand. Id. A person may be convicted under § 924(c)(1)(A) for “mere possession of a firearm” so long as “that possession is ‘in furtherance’ of a drug trafficking crime.” United States v. Lewter, 402 F.3d 319, 321 (2d Cir.2005). Marcus Snow does not dispute that he possessed the handguns alleged in the indictment, since he does not challenge his conviction under § 922(g)(1) for being a felon in possession of these particular firearms. At issue is whether there was sufficient evidence that he possessed the firearms “in furtherance” of the charged drug trafficking offenses. Snow argues that the evidence was insufficient, since it established “no more than that the guns were merely present where the Government alleged drug transactions to have taken place.” We find this argument unpersuasive. To be sure, Snow" }, { "docid": "21490767", "title": "", "text": "983 F.2d at 990 (“[T]he fact that defendant carried the weapon for personal protection when engaged in lawful activities does not negate the effect of its presence during illegal narcotics transactions.”) Moreover, an experienced police officer testified that the weapons and ammunition found in Defendant’s car constituted “a substantial amount of fire power” (Tr. at 188) and in particular that Defendant’s .50 caliber handgun was “an extremely powerful firearm” that he did not often see in his duties as a police officer (Tr. at 163). For the foregoing reasons, we hold that the government presented sufficient evidence from which the jury could conclude that Defendant carried the firearms during and in relation to a drug trafficking offense. IV. Motion for Judgment of Acquittal We review the denial of Defendant’s motion for judgment of acquittal de novo, viewing the evidence in the light most favorable to the government. United States v. Austin, 231 F.3d 1278, 1283 (10th Cir.2000). “[Rjeversal is only appropriate if no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (internal quotation marks omitted). Defendant argues that the district court should have granted his motion for acquittal as to count two of the indictment because count two was based on the count one charge of drug trafficking and the evidence presented at trial could not sustain a conviction on count one. As discussed above, however, we hold that there was sufficient evidence to support a finding of drug trafficking on count one. We also find sufficient evidence to sustain the conviction on count two. We therefore affirm the district court’s denial of Defendant’s motion for judgment of acquittal. V. Order of Forfeiture Defendant argues that the order of forfeiture should be set aside because his convictions were based on evidence obtained from an illegal search and seizure and because there was insufficient evidence to support his conviction under count one. For the reasons discussed above, however, we disagree with both of these underlying arguments. We also agree with the district court’s conclusion that the government established by a preponderance" } ]

[ { "docid": "22622743", "title": "", "text": "which it was in terms made unlawful to enter into any contract for the purpose of preventing competition in the, transportation of persons or property. As thus amended the bill went back to the Senate, which itself amended the amendment by making the act apply to any such contract as tended to raise prices for transportation above what was just and reasonable. This amendment by the Senate of the amendment proposed by the House was disagreed to by that body. The amendments were then considered by conference committees, and the first conference committee reported to each house in favor of the amendment of the Senate. This report was diságreed tó and another committee appointed, which agreed to strike out both amendments and leave the bill as it stood when it first passed the Senate, and that report was finally adopted, and the bill thus passed. Looking at the debates during the various times when the bill was before the Senate and the House, both on its original passage by the Senate and upon the report from the conference committees, it is seen that various views were declared in regard to the legal import of the act. Some of the members of the House wanted it placed beyond doubt or cavil that contracts in relation to the transportation of persons and property were included in the bill. Some thought the amendment unnecessary as the language of the act already covered it, and some refused to vote for the amendment or for the bill if the amendments were adopted on the ground that it would then interfere with the Interstate Commerce Act, and tend to create confusion as to the meaning of each act. ■ Senator Hoar (who was a member of, the first committee of - conference from the Senate), when reporting the result arrived at by the judiciary committee recommending the adoption of the House amendment, said: “ The other clause, of the House amendment is that contracts or agreements entered into for the purpose of preventing competition in the transportation of persons or property from one State or Territory" } ]

[ { "docid": "6468741", "title": "", "text": "of proceedings is conducive to effective and efficient enforcement of the anti-trust laws.” There follows what this Court deems to be a critical colloquy between Mr. Celler, the proponent of the legislation, and Mr. Patman: “Mr. Celler: The statute of limitations will start running from the time the action accrues, not from the time of discovery. If you make it time of discovery, then you practically have no statute of limitations at all. * * * We provide that the 4-year statute shall start to run from the time of the accrual of damages, from the time the wrong was done, not from the time of discovery. “Mr. Patman: Even in the case of fraud or conspiracy \"l “Mr. Celler: No. In the case of fraud or conspiracy the statute of limitations only runs from the time of discovery. “Mr. Patman: That is the point I wanted to make sure of. You are not attempting to change that particular part of it? “Mr. Celler: Not at all.” (Italics supplied.) Defendants eschew this colloquy completely on the ground that “Congressmen cannot accomplish their legislative goals in this manner,” citing Pennsylvania Railroad Company v. International Coal Mining Company, 230 U.S. 184, at p. 199, 33 S.Ct. 893, at p. 897, 57 L.Ed. 1446 (1913), where it was said: “But while they may be looked at to explain doubtful expressions, not even formal reports — much less the language of a member of a Committee — can be resorted to for the purpose of construing a statute contrary to its plain terms, or to make identical that which is radically different.” In that case, the provision contended for had been omitted from the Act as finally reported, so that the Court deemed the omission not only “significant” but “con-elusive.” The defendants further assert that “the primary function of statutory construction is to effectuate the intent of Congress, and that function cannot properly be discharged by reliance upon a statement of a single Congressman, in the face of the weighty countervailing considerations which are present.” quoting from Federal Trade Commission v. Anheuser-Busch, Inc., 363" }, { "docid": "3220939", "title": "", "text": "to Subsection (d), already in the bill, but several Senators said the final statute would really be written in conference. And in fact this amendatory provision was omitted by the conference. The incident of this amendment, like many other phases of the debate, is indicative of the mood of the Senate and the broad sweep of its purposes and consideration. The other amendment adopted on the floor of the Senate, offered by Senator Moore, was to add a subsection identical to present Subsection (b). Thus, as the bill passed the Senate on April 30, 1936, it included (1) our present Subsection (d), making it unlawful to pay anything to a customer as compensation “for any services or facilities furnished by or through such customer” unless offered to all competing customers; (2) a separate subsection making unlawful any discrimination in discounts, rebates, allowances, or advertising service charges; and (3) the meet-competition defense applied to “the furnishing of services or facilities to any purchaser”. The bill then contained no Subsection (e) or any equivalent thereof. Thus there can be no doubt whatsoever that, so far as the Senate was concerned, the proviso in Subsection (b) applied to discriminations in compensation or allowances made to customers for services or facilities furnished by them, as now provided in Subsection (d); there was nothing else in the bill for this language to apply to. The bill thus passed went to the House. In the meantime, on March 31, 1936, the House bill (H.R. 8442) had been reported (H.R.Rep. 2287). As thus reported, it contained Subsection (d), Subsection (e), and a subsection which contained a meet-competition defense in respect to price discrimination only, saying nothing about services or facilities. On June 2nd the House ordered its bill printed, with the Senate bill substituted as its text. Thus the bill as it passed the Senate became H.R. 8442 on the calendar of the House. The House committee proposed its own bill as an amendment. Then the committee offered amendments to this amendment. One such amendment thus offered and adopted on the floor was to change the subsection" }, { "docid": "4213993", "title": "", "text": "that these sources can be referred to. If the language is clear and free from ambiguity, there is nothing for the courts to construe. United States v. Union Pacific Railroad, 91 U. S. 72, 23 L. Ed. 224; United States v. Trans-Missouri freight Asso., 166 U. S. 290, 17 Sup. Ct. 540, 41 L. Ed. 1007; Dunlap v. United States, 173 U. S. 65, 19 Sup. Ct. 319, 43 L. Ed. 616; Maxwell v. Dow, 176 U. S. 581, 20 Sup. Ct. 448, 494, 44 F. Fd. 597; Dewey v. United States, 178 U. S. 510, 20 Sup. Ct. 981, 44 L. Ed. 1170; MacKenzie v. Hare, 239 U. S. 299, 307, 36 Sup. Ct. 106, 60 L. Ed. 297. Aside from this, the record of the proceedings of the two Houses of Congress shows that section 3 of the Clayton Act, as finally enacted, differs materially from the section as passed by each House. The words “where the effect of such lease, sale, contract for sale, or such condition, agreement, or understanding may be to substantially lessen competition, or tend to create a monopoly in any line of commerce,” are not found in either of the acts as passed by the House of Representatives or the Senate. Nor does the act as finally passed make the violation of that section a penal offense, although each of the houses had made such a provision. The act as finally passed was the result of the conference committees appointed by the two houses. What induced the conferees to make the changes, and Congress to adopt them in the final enactment of the statute, is unknown. Whether the speeches made, while the bill was pending, influenced the conference committees, and, if so, to what extent, is merely speculative, and for the courts to consider them in construing the act, as finally passed, might be misleading. A careful reading of this section of the act leaves no room for doubt as to what Congress intended. The language is plain, and the court is unable to find any ambiguity in it, which would malee it" }, { "docid": "23575342", "title": "", "text": "statements that state courts will have concurrent jurisdiction to hear and decide actions brought under this section, and that subsection (d)(3) of the Act allows an aggrieved party to bring an action in federal or state court. Id. These provisions, according to the Judiciary Committee, would serve the primary purpose of deterring any violations of the Act’s provisions. Id. Finally, the Judiciary Committee also considered an amendment which would have stricken the new federal cause of action. This amendment was defeated by a roll call vote of sixteen to eighteen. H.R. Rep. No. 241(III), 99th Cong., 1st Sess., 8, reprinted in 1986 U.S. Code Cong. & Admin. News 730. This is further evidence of the fact that Congress clearly intended to provide a federal cause of action. The House Conference Report No. 99-453, Dec. 19, 1985, 1986 U.S. Code Cong. & Admin. News 42, also lends strong support to a legislative intent to provide a federal cause of action for violations of the Act. The House bill contained explicit language providing for a federal cause of action, whereas the Senate amendment to the House bill contained no provisions for either a federal cause of action or a more general private civil cause of action. H.R. Conf.Rep. No. 453, 99th Cong., 1st Sess. 475, 476 (1985). Both enforcement measures were reconciled in the Conference agreement, which contained the following: the House bill was adopted, a provision for civil enforcement was included, and the courts were directed to apply the law of the State in which the violating hospital is located when assessing damages to the injured party. Id. at 476. It is therefore clear that both the Senate and the House agreed to provide a federal cause of action and to instruct both state and federal courts to apply state law when determining damages. III. Conclusion The plain language of the Emergency Medical Treatment and Active Labor Act clearly provides a private cause of action to enforce its provisions. After review of the legislative history of the Act, which included extensive consideration by both the House Ways and Means Committee and" }, { "docid": "22734698", "title": "", "text": "been agreed to and are recommended by the committee of conference: * ** *' * * * * * ' sfc “Sections 2, 3, and 4 of the Senate bill, prohibiting discriminations, contained provisions in relation to the recovery of damages. These have been stricken out of said sections, and have been grouped-together in one section, which is made section 8 of the committee.bill. Except as to this rearrangement, substantially the only change made has been the addition of the provision of the House bill that a reason able counsel or attorney’s fee’ shall be allowed by the court in every case of the recovery of damages. The parts of said sections which are stricken out in consequence of the rearrangement referred to are all of section 2 after the word ‘unlawful,’ in line 13, all of section 3 after the word ‘business,’ in line 18, and lines 23 to 27, both inclusive, in section.4. No other change is made in section 2.” 49 Cong. Rec. 2d Sess., vol. 18, Part. 1, p. 170. .Section 7 of the House Bill (H. R. 5667) provided that if any carrier should do an act forbidden or omitted to do an act required, or should violate the statute, such carrier should be “held to pay to the person or persons injured the full amount of damages so sustained . . ' . with reasonable counsel or attorney’s fees. . . .” This bill was before the Conference Committee, and the House members, as required by the rules of the Bouse, made a written statement of the action of the Conference, in which it was said (vol, 18, Part IT, Cong. Rec., 49th Cong., 2d Sess., pp. 695, 6-98, 774) that “the eighth section of the substitute bill” — being the eighth section of the present act — “contains the substance of the seventh section of the House Bill in regard to damages and counsel fees but expressed in somewhat different language.” Mr. Justice Pitney, dissenting. The judgment' under review sustains a recovery in behalf of a Company shipping coal in interstate commerce, that" }, { "docid": "2334787", "title": "", "text": "of the rule or regulation under which he is charged. The provision has never been construed, although it has been held con stitutional in the face of vagueness attack. The first step, indeed the most essential step, in the construction of any statute is to ascertain the intent of the Congress in passing it. Unfortunately, in the case of this “no knowledge” clause, the evidence of such intent is somewhat obscure. The clause was added in the conference committee formed to compromise the differences in the bills passed by the Senate and the House of Representatives, which ultimately became the Securities Exchange Act of 1934. The report of the conference committee announced but did not explain the compromise between the House and Senate versions of Section 32 of the Act. From the research conducted by counsel, and its own independent research, the Court is persuaded that no minutes or other records of the conference committee’s deliberations exist. But earlier debates in both House and Senate cast some light on the purpose of the clause, for they reveal the fears generated by the spectre of a severe penalty ensuing from violation of a rule or regulation of the proposed new administrative body, of which the person charged had no knowledge. The bill approved by the House had a more stringent punishment provision than the compromise contained in § 78 ff(a). It did not distinguish violations of rules from violations of the Act. For either kind of violation an offender might be fined or imprisoned or both. Representative Cooper, a member of the House Committee on Interstate and Foreign Commerce which had considered the bill, offered an amendment that would have limited criminal punishment to violations of the Act itself. The amendment was defeated. The House rejected Representative Cooper’s argument that an administrative board should not be granted the \"unlimited power to draft rules and regulations the violation of which is a criminal offense.” The Senate version, by contrast, distinguished violations of a rule from a violation of the Act. The maximum penalty for the former was to be only a $10,000" }, { "docid": "22734680", "title": "", "text": "means the same thing as the omitted clause. But while they may be looked at to explain doubtful expressions, not even formal reports — much less the language of a member of a Committee — can be resorted to for the purpose of construing a statute contrary to its plain terms, -or to make identical that which is radically different. United States v. Freight Association, 166 U. S. 290, 318; Maxwell v. Dow, 176 U. S. 581, 601. Section 2 of the original Senate Bill said nothing about damages but in case of rebating gave a shipper a right, in the nature of an action, for a penalty to be measured by the difference between the lawful and the unlawful rate, whether damage resulted or not. That provision was stricken out and § 8 of the Act, as passed by both Houses of Congress and approved by the President, gave a right of action for damages and attorneys’ fees to “the person injured” — and, of course, to the extent of the injury. 3. There were many provisions in the statute for imprisonment and fines. On the'civil side the Act provided for compensation — not punishment. Though the Act has been held to be intíiany respects highly penal, yet there was no fixed measure of damage in favor of the plaintiff. But, as said in Parsons v. Chicago & N. W. Railway, 167 U. S. 447, 460, construing this section (8) “before'any party can recover under the.act he must show not merely the wrong of the carrier, but that that wrong has in fact operated to his injury.” Congress had not then and has not since given any indication of an intent that persons not injured might, nevertheless, recover what though called damages- would really be a penalty, in addition to the penalty payable to the Government. On the contrary, and in answer to the argument that damages might be a cover for rebates, the act of June 18, 1910 (36 Stat. 539, c. 309), provided that where a carrier misquotes a rate it should pay a penalty of $250," }, { "docid": "22734681", "title": "", "text": "were many provisions in the statute for imprisonment and fines. On the'civil side the Act provided for compensation — not punishment. Though the Act has been held to be intíiany respects highly penal, yet there was no fixed measure of damage in favor of the plaintiff. But, as said in Parsons v. Chicago & N. W. Railway, 167 U. S. 447, 460, construing this section (8) “before'any party can recover under the.act he must show not merely the wrong of the carrier, but that that wrong has in fact operated to his injury.” Congress had not then and has not since given any indication of an intent that persons not injured might, nevertheless, recover what though called damages- would really be a penalty, in addition to the penalty payable to the Government. On the contrary, and in answer to the argument that damages might be a cover for rebates, the act of June 18, 1910 (36 Stat. 539, c. 309), provided that where a carrier misquotes a rate it should pay a penalty of $250, not to the shipper, but to the Government, recoverable by . a civil action brought by the United States.' 35 Stat. 166. Congressional Record (1910), 7569. The danger that payment of damages for violations of the law might be used as a means of paying rebates under the name of damages is also pointed out by the Commission in 121. C. C. 418-421, 423; 14 I. C. C. 82. 4. It is said,- however, that it-is impossible to prove the damages occasioned one shipper by the payment of rebates to another; and that if the plaintiff is not entitled to recover as damages the same drawback that was paid to its competitor, the statute not only gives no remedy but deprives the plaintiff of a right.it had at common law to recover this difference between the lawful and the unlawful rate. We are cited to no authority which shows that there was any such ancient measure of damages, and no case has been found in which damages were awarded for such discrimination. Indeed, it is" }, { "docid": "17624455", "title": "", "text": "labor organization he is a member as defined by Section 3(o). There is another aspect of the legislative history of Section 3(o) not relied upon by Local 11, but which, nevertheless, must be commented upon. Section 601 (n) of S. 1555 the Kennedy Bill as modified by the so-called “Kuchel substitute”, which passed the Senate on April 25, 1959, provided: “ ‘Member’ or “member in good standing”, when used in reference to a labor organization, includes any person who has fulfilled or tendered the lawful requirements for membership in such organization, and who neither has voluntarily withdrawn from membership nor has been expelled or suspended from membership after appropriate proceedings consistent with lawful provisions of the constitution, bylaws, or other governing charter of such organization.” Both H.R. 8342, the so-called “committee” or Elliott Bill, and H.R. 8400, the Landrum-Griffin Bill, which finally in substance, passed both houses contained definitions of “member” identical with present Section 3(o). The conference committee adopted the House definitions in all major respects thus deleting the phrase, “or tendered the lawful requirements for membership” contained in the Senate bill. See Conference Report to accompany S. 1555, reprinted in full at 105 Cong.Rec. 18,124-27 (1959). No reason was given by the committee for this specific change. Nor has any other discussion on the matter been recorded so far as we can ascertain. There can be no doubt that if the Act, as finally passed, defined “member” as did the Senate bill, Hughes would qualify as a member of Local 11. He clearly alleges that he has tendered the lawful requirements for membership in that labor organization. It does not follow, however, that the deletion of that phrase by the conference committee means that Congress did not intend a person in Hughes’ position to be deemed a “member” within the meaning of the Act. In construing a statute a court should first look to the plain meaning of the words as they have been actually enacted by Congress. The words of Section 3(o), on their face, define as a member anyone who has fulfilled all of the requirements" }, { "docid": "22734679", "title": "", "text": "which, as it passed the Senate May 12, 1886, did provide that the carrier “shall be liable to all persons who have been charged a higher rate than was charged' any other person or persons-for.\"the difference between-such higher rate and the lowest rate charged upon like shipments during the same period; or if such lower rate was made on any time contract or understanding, the said common carrier shall be liable to pay a like rebate or drawback to all other shippers over the same route between the same points who have shipped goods during the. time that such contract or understanding was in operation.” The fact that this provision measuring the amount of recovery by rebate was omitted from the Act, as finally reported to -both Houses and passed, is not only significant, but so conclusive against the contention of the plaintiff that it quotes — not the report of the conference committee — but a statement, made by a member of the Senate Conference Committee, to support the present argument that § 8 means the same thing as the omitted clause. But while they may be looked at to explain doubtful expressions, not even formal reports — much less the language of a member of a Committee — can be resorted to for the purpose of construing a statute contrary to its plain terms, -or to make identical that which is radically different. United States v. Freight Association, 166 U. S. 290, 318; Maxwell v. Dow, 176 U. S. 581, 601. Section 2 of the original Senate Bill said nothing about damages but in case of rebating gave a shipper a right, in the nature of an action, for a penalty to be measured by the difference between the lawful and the unlawful rate, whether damage resulted or not. That provision was stricken out and § 8 of the Act, as passed by both Houses of Congress and approved by the President, gave a right of action for damages and attorneys’ fees to “the person injured” — and, of course, to the extent of the injury. 3. There" }, { "docid": "22734710", "title": "", "text": "shipper and consignee, and whether the discriminations have resulted in the loss of a particular sale, or of a particular profit, or of a particular customer? Congress, of course, recognized the notorious fact that rate discriminations often rendered it impossible for the disfavored shippers to profitably • continue in business. Rate discriminations were prohibited for that reason, amongst others. But Congress, I submit, never intended to impose upon the injured party the impossible task of tracing his ultimate losses to this or to that shipment. But it is said that whatever view might otherwise be entertained, a particular (and, as I think, a very strained) meaning must be attributed to the word “damages” as used in the Interstate Commerce Act, because of the course of proceedings in Congress that resulted in the enactment of that statute. It is pointed out that § 2 of the original bill provided in terms that in the case of a rate discrimination, the carrier should be liable to the disfavored shipper “for the difference between such higher rate and the lowest rate charged upon like shipments during the same period,” with a similar provision respecting rebates and drawbacks, and it is said that because this provision was finally omitted from the Act, the result is not only significant but conclusive evidence' of a legislative intent that the “damages” in § 8, so far as discriminatory rates are concerned, are to be measured in some other manner. If § 8 had in terms prescribed any other measure than that which was in the original § 2, or if any other had been then known to the law, I' could appreciate the force of the argument.' The course of the debate in Congress,“as quoted in the opinion, shows that Senator Cullom, -who was the chief sponsor .for the 'bill, and a member. of the Senate Conference Committee, explained the change as intended to simply group into one section all the provisions respecting damages that had been contained in three sections. That this was done merely for the purpose of simplification, and with the understanding that the" }, { "docid": "22734699", "title": "", "text": "7 of the House Bill (H. R. 5667) provided that if any carrier should do an act forbidden or omitted to do an act required, or should violate the statute, such carrier should be “held to pay to the person or persons injured the full amount of damages so sustained . . ' . with reasonable counsel or attorney’s fees. . . .” This bill was before the Conference Committee, and the House members, as required by the rules of the Bouse, made a written statement of the action of the Conference, in which it was said (vol, 18, Part IT, Cong. Rec., 49th Cong., 2d Sess., pp. 695, 6-98, 774) that “the eighth section of the substitute bill” — being the eighth section of the present act — “contains the substance of the seventh section of the House Bill in regard to damages and counsel fees but expressed in somewhat different language.” Mr. Justice Pitney, dissenting. The judgment' under review sustains a recovery in behalf of a Company shipping coal in interstate commerce, that was charged and paid the lawful published rates of freight, for the difference betweén the rates thus charged and paid and the less rates customarily allowed to other shippers of coal during the same period and between the same termini. 173 Fed. Rep. 1. The action is based upon §§ 2 and 8 of the Interstate Commerce Act. (24 Stat.. 379, Chap. 104.) The discrimination was accomplished by' means of rebates allowed to the other shippers, the excuse for which, or the reason for the discrimination as assigned by the plaintiff in error, was that the coal on which the rebates were allowed was shipped pursuant to contracts of sale made by the favored shippers' prior to the putting in force of the published tariff, and made in reliance upon the lower rates then in force. It was proved that during the two years from April 1, 1899, to April 1, 1901, the plaintiff shipped about 40,000 tons, upon which it paid the full tariff rate. The verdict and judgment for $12,013.51 represent the difference" }, { "docid": "13211440", "title": "", "text": "the Act passed by the Senate, granted broad equitable jurisdiction to the district courts, much like that conferred by the statute involved in Porter v. Warner Co., supra. It provided: The Attorney General of the United States, ... or any aggrieved person, may bring an action in the appropriate United States district court against any person who has engaged, is engaged, or is about to engage in any acts or practices in violation of the provisions of this Act ... to enjoin such acts or practices. S. 3418, at § 304(a). In contrast, H.R. 16373, the House version of the Act, authorized the district courts to enjoin agencies from wrongfully withholding records, as in subsection (g)(1)(B) and (3) of the Act, supra, but provided only monetary relief for other forms of agency misconduct, as in subsections (g)(1)(C) and (D) and (4) of the Act, supra. Ordinarily, the differences between the two bills would have been resolved by a conference committee. However, “the lateness of the session and the pressures on Members of both bodies due to other pressing legislative business” dictated use of a more expedient procedure. Remarks of Congressman Moorhead, reprinted from the Congressional Record in Committee on Government Operations, United States Senate and Committee on Government Operations, House of Representatives, Legislative History of the Privacy Act of 1974, 94th Cong., 2d Sess. 985-86 (Joint Comm.Print 1976) (“Legislative History\"). Accordingly, members of the House and Senate Government Operations Committees met informally and hammered out the compromise bill ultimately enacted into law as the Privacy Act of 1974. (Legislative History at 873, remarks of Senator Percy.) The two houses adopted, in large measure, the civil remedies section contained in the original House bill. They modified the House bill in one significant respect, however, adding a right to injunctive relief for an agency’s wrongful refusal to correct an individual’s records. (See subsections (g)(1)(A) and (2), supra.) This course of action suggests that Congress deliberately opted for the limited right to injunctive relief provided by the House Bill. In amending the House bill Congress chose to add an agency’s wrongful refusal to" }, { "docid": "22734697", "title": "", "text": "It does not appear that the plaintiffs sold their coal for any less than the current market price, . . . except when they and the other dealers were engaged in a war of prices and sold it far below the actual cost, in a struggle to capture the market.” In view of the express provisions of § 8 of the Act to Regulate Commerce, it was error to refuse to charge that .“to entitle the plaintiff to recover, the jury must be satisfied that it sustained some loss or injury due to the fact that the defendant was carrying at the same time at lower rates coal shipped by other shippers.” The judgment of the Circuit Court of Appeals is reversed and the ease remanded to the District Court, with directions to grant a new trial.' Reversed. Mr. Cullom. Before action on my motion, I desire to make a statement of the changes in the bill. The following is a statement of the changes in the bill as passed by the Senate which have been agreed to and are recommended by the committee of conference: * ** *' * * * * * ' sfc “Sections 2, 3, and 4 of the Senate bill, prohibiting discriminations, contained provisions in relation to the recovery of damages. These have been stricken out of said sections, and have been grouped-together in one section, which is made section 8 of the committee.bill. Except as to this rearrangement, substantially the only change made has been the addition of the provision of the House bill that a reason able counsel or attorney’s fee’ shall be allowed by the court in every case of the recovery of damages. The parts of said sections which are stricken out in consequence of the rearrangement referred to are all of section 2 after the word ‘unlawful,’ in line 13, all of section 3 after the word ‘business,’ in line 18, and lines 23 to 27, both inclusive, in section.4. No other change is made in section 2.” 49 Cong. Rec. 2d Sess., vol. 18, Part. 1, p. 170. .Section" }, { "docid": "22741621", "title": "", "text": "opposed it. The challenged clause, .although twice formally approved, was finally stricken out upon assurance that .a new provision (afterwards adopted) would direct disposition of the official records “ whenever the said principal officer shall be removed from office by the President of the United States or in any other case of vacancy.” This was susceptible of different interpretations and probably did not mean the same thing.to all. The majority said nothing. The.result of the discussion and vote was to affirm that the President held the appointing power with a right of negation in the Senate; and that, under the commonly accepted rule, he might remove without concurrence of the Senate when there was no inhibition by Constitution or statute.. That the majority did not suppose they had assented to the doctrine under which the President could remove inferior officers contrary to an inhibition prescribed by Congress, is shown plainly enough by the passage later in the same session of- two Acts containing provisions ¡wholly inconsistent with any such idea. Acts of August 7, 1789, and September 24, 1789, infra. - Following much discussion of Mr. Madison’s motion of May 19, a special committee reported this bill to the House on June 2. Debates upon it. commenced June 16 and continued until June 24, when it passed by twenty-nine to twenty-two. The Senate gave it great consideration, commencing June 25, and passed it July 18, with amendments accepted by the House July 20. The Diary of President John Adams (Works 1851 ed., v. 3, p. 412) states that the Senate voted nine to nine and that the deciding vote was given by the Vice President in favor of the President’s power to remove. He also states that Senator Ellsworth strongly supported the bill and Senator Patterson voted for it. These senators were members of the committee which drafted the Judiciary Bill spoken of below. It seems indubitable that when the debate began Mr. Madison did not entertain the extreme view concerning illimitable presidential power now urged upon us; and it is not entirely clear that he hád any very definite" }, { "docid": "6468742", "title": "", "text": "the ground that “Congressmen cannot accomplish their legislative goals in this manner,” citing Pennsylvania Railroad Company v. International Coal Mining Company, 230 U.S. 184, at p. 199, 33 S.Ct. 893, at p. 897, 57 L.Ed. 1446 (1913), where it was said: “But while they may be looked at to explain doubtful expressions, not even formal reports — much less the language of a member of a Committee — can be resorted to for the purpose of construing a statute contrary to its plain terms, or to make identical that which is radically different.” In that case, the provision contended for had been omitted from the Act as finally reported, so that the Court deemed the omission not only “significant” but “con-elusive.” The defendants further assert that “the primary function of statutory construction is to effectuate the intent of Congress, and that function cannot properly be discharged by reliance upon a statement of a single Congressman, in the face of the weighty countervailing considerations which are present.” quoting from Federal Trade Commission v. Anheuser-Busch, Inc., 363 U.S. 536, 553, 80 S.Ct. 1267, 1276, 4 L.Ed.2d 1385 (1960). We do not have here the “weighty countervailing considerations present” to overcome the extremely pertinent statements of Mr. Celler, corroborated as they are by well-established judicial precedent, hereinafter discussed. The Court concludes therefore that the legislative history of Section 4B discloses simply that the earlier bills had included proposals for tolling for non-discovery of the existence of a cause of action, as distinguished from tolling for fraudulent concealment, so that Congressional rejection of provisions of that nature is not significant. The colloquy of Mr. Celler and Mr. Patman, hereinabove quoted, corroborates this conclusion and further emphasizes the true intent of Congress to incorporate into Section 4B the fraudulent concealment tolling exception. 2. Procedural or Substantive Character of Section 4B. A legal problem fraught with confusion is presented as to the nature of the statute of limitations added by Section 4B of the Clayton Act. Defendants deem it a substantive provision, being applicable to a right created by statute and not existing at common law," }, { "docid": "22734678", "title": "", "text": "departure from the published tariff was forbidden, and § 8 (24 Stat. 382) expressly provided that any carrier doing any act prohibited by the statute should be “liable to the person injured thereby for the full amount of damages sustained in consequence of any such violation, together with reasonable attorneys-’ fees.” 2. But although this .suit was brought to enforce a cause of action given by this section to any person injured, it is a noticeable fact that in its pleading the plain tiff does not claim to have been damaged and there is neither allegation nor- proof, that it suffered any injury. ■It contends, however, that this was not necessary for the reason that, as matter of law, it was entitled to recover as damages the same rate per ton on all plaintiff’s shipments as had been rebated any other person,, on any of his tonnage, shipped at the same time over the same route. And such a right of action was expressly given in § 2 of the original Bill to Regulate Commerce, which, as it passed the Senate May 12, 1886, did provide that the carrier “shall be liable to all persons who have been charged a higher rate than was charged' any other person or persons-for.\"the difference between-such higher rate and the lowest rate charged upon like shipments during the same period; or if such lower rate was made on any time contract or understanding, the said common carrier shall be liable to pay a like rebate or drawback to all other shippers over the same route between the same points who have shipped goods during the. time that such contract or understanding was in operation.” The fact that this provision measuring the amount of recovery by rebate was omitted from the Act, as finally reported to -both Houses and passed, is not only significant, but so conclusive against the contention of the plaintiff that it quotes — not the report of the conference committee — but a statement, made by a member of the Senate Conference Committee, to support the present argument that § 8" }, { "docid": "22734711", "title": "", "text": "the lowest rate charged upon like shipments during the same period,” with a similar provision respecting rebates and drawbacks, and it is said that because this provision was finally omitted from the Act, the result is not only significant but conclusive evidence' of a legislative intent that the “damages” in § 8, so far as discriminatory rates are concerned, are to be measured in some other manner. If § 8 had in terms prescribed any other measure than that which was in the original § 2, or if any other had been then known to the law, I' could appreciate the force of the argument.' The course of the debate in Congress,“as quoted in the opinion, shows that Senator Cullom, -who was the chief sponsor .for the 'bill, and a member. of the Senate Conference Committee, explained the change as intended to simply group into one section all the provisions respecting damages that had been contained in three sections. That this was done merely for the purpose of simplification, and with the understanding that the courts would of course apply the proper measure of damages in each case, and would not need Congress to tell them how to do this, clearly appears from Senator'Cullom’s remarks in explanation of the change. If any other measure of damages in rate discrimination cases had ever been successfully applied, I could concede some force to the reasoning that is based upon this change in the bill during its progress through Congress. • But no other measure has been applied, nor does the opinion point out how any other can be. As a great English judge said, in one of the cases referred to below: “I think that there would be very great difficulty, if the principle of overcharge [meaning a comparison of the rates charged] were rejected, in finding any other remedy by way of damages applicable to such a case.” These words were used in the House of Lords in the last of a series of notable cases that finally settled the measure of damages for rate discriminations, under an Act of Parliament" }, { "docid": "16552280", "title": "", "text": "legislation that becomes our duty to handle in this body. 94 Cong.Rec. 6865 (1948) (emphasis supplied). Following the above debates in the Senate and the House, a joint conference committee composed of members of both the House and Senate was formed to attempt to work out the differences between the competing versions of the DPA. On June 18, 1948, the Joint Conference Committee issued a report to accompany the revised 5.2242, while H.6396 was laid on the table. 5.2242, which finally included § 13, was subsequently enacted by Congress with minor amendments irrelevant for present purposes. The Joint Conference Committee report accompanying S.2242 contained the following statement which served to elaborate on the meaning and purpose behind the inclusion of § 13: The various differences between the measures passed by both Houses pertaining to the administration of the bill were composed so as to insure the proper enforcement of the law, a suitable resettlement of displaced persons all over the United States, its Territories and possessions, and by preserving all safeguards with respect to exclusion of subversives and by providing for proper assurances that new immigrants shall not become public charges. H.R.No. 2410, 80th Cong., 2d Sess. 8 (1948) (emphasis supplied). Finally, after the submission of the Joint Conference Committee report, the following additional debate ensued on the floors of Congress during which several comments were made that directly bear on the intended meaning of § 13 and its future application. The following remarks were made by Senator Revercomb, a member of the Joint Conference Committee, following debate on the merits of S.2242: Mr. President, we have covered this subject pretty fully. Some statement was made to the effect that we were going to permit to enter this country persons who had fought against America, persons who had supported Hitler. That is probably one of the most mistaken and unwarranted statements made in the debate, and I wish to read from section 13 of the reported bill, which rather indicates that Senators who make such a statement have not studied the bill or read it. I know they would not" }, { "docid": "4213994", "title": "", "text": "to substantially lessen competition, or tend to create a monopoly in any line of commerce,” are not found in either of the acts as passed by the House of Representatives or the Senate. Nor does the act as finally passed make the violation of that section a penal offense, although each of the houses had made such a provision. The act as finally passed was the result of the conference committees appointed by the two houses. What induced the conferees to make the changes, and Congress to adopt them in the final enactment of the statute, is unknown. Whether the speeches made, while the bill was pending, influenced the conference committees, and, if so, to what extent, is merely speculative, and for the courts to consider them in construing the act, as finally passed, might be misleading. A careful reading of this section of the act leaves no room for doubt as to what Congress intended. The language is plain, and the court is unable to find any ambiguity in it, which would malee it necessary to resort, for aid in its construction, to any source outside the act itself. In plain and concise language it declares that it shall be unlawful for any person engaged in interstate commerce to lease, sell, or con-, tract fot sale of any commodity, whether patented or not, for use, consumption, or resale, and fix a price for, a discount from or rebate up on such price, on the condition, agreement, or understanding, that the lessees shall not purchase such articles from the competitors of the lessor or the seller, and then is added: “If the effect of such ail agreement, or understanding, may be to lessen competition, or tend to create a monopoly.” That the leases made by the defendants, as shown by the extracts attached to the complaint as exhibits, provide for rebates on condition that the lessee shall only use the machines and materials manufactured and dealt in by the defendants, and forbids the use of machines purchased from other manufacturers, under penalty of having the leases canceled and machines taken" } ]

[ { "docid": "19350875", "title": "", "text": "necesRarily incident to the business, and actually formed a part of the contract, then it may furnish a legal excuse for the non-delivery of such a proportion of the goods as the general course of the business and the usage of the seller authorize, for the reason that such general usage, being a part of the contract, has the effect to limit and qualify its terms. Linsley v. Lovely, 26 Vt., 187. Customary rights and incidents, universally’ attaching to the subject matter of the contract in the place where it was made, are impliedly annexed to the language and terms of the contract, unless the custom is particularly and expressly’ excluded. Parol evidence of custom, consequently, is generally admissible to enable the court to arrive at the real meaning of the parties, who are uaturally presumed to have contracted in conformity with the known and established usage. But parol evidence of custom and usage is not admitted to contradict or vary express stipulations or provisions restricting or enlarging the exercise aud enjoyment of the customary right. Omissions may be supplied, in some cases, by the introduction of the custom, but the custom cannot prevail over or nullify the express provisions and stipulations of the contract. 2 Add. on Con., 970. Proof of usage, says Mr. Greenleaf, is admitted either to interpret the meaning of the language of the contract, or to ascertain the nature and extent of the contract, in the absence+-of express stipulations, and where the meaning is equivocal or obscure. 1 Greenl. Ev., sec. 292. Its true aud appropriate office is to interpret the otherwise indeterminate intention of the parties, and to ascertain .the nature and extent of their contracts, arising not from express stipulations, but from mere implications and presumptions, and acts of a doubtful or equivocal character. The Reeside, 2 Sum., 564. Nothing can be plainer than the proposition, that the evidence in the case proved that the supply with the defendants was much less than the demand of their customers. To avoid dissatisfaction, therefore, they were obliged to devise some system which would enable them" } ]

[ { "docid": "18034667", "title": "", "text": "scope of the damage limitation provision. To have done so would have required a distortion of the plain meaning of that provision. As the court stated in DeVries v. Brydges, 57 Mich.App. 36, 41, 225 N.W.2d 195, 198 (1974), when addressing the general rules of contract construction: Indeed, if the language of the entire contract is clear and unambiguous, there is no room for construction by the courts, and in such case, the language must be held to express the intention of the parties and the court need not search for meanings nor indulge in inferences as to the intention of the parties. Thus, applying the provisions of section 2202, this court refused to consider the deposition testimony offered by plaintiffs to demonstrate that the parties had a different intention, i.e. that the limitation of damages regarded delivery of goods only, since such evidence contradicted the express terms of the contract. Furthermore, even had it not contradicted the terms of the contract, the deposition testimony would not have been permitted under subsection a of 2202 that allows contractual terms to be explained by course of dealing, usage of trade or course of performance, none of which the testimony addressed. See MICH. COMP. LAWS ANN. §§ 440.-1205 & 440.2208 (1967); see also, “Practice Commentary” to MICH. COMP. LAWS ANN. § 440.2202 (1967); cf. Michigan Bean Co. v. Senn., 93 Mich.App. 440, 287 N.W.2d 257 (1979). Plaintiffs’ other line of argument regarding the effectiveness of the damage limitation clause was that the language used failed to adequately disclaim liability for either breach of implied warranties or negligence. As to implied warranties, plaintiffs pointed to § 440.2316(2) of the MICH. COMP. LAWS ANN., which provides that: [T]o exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous. Based on that provision, plaintiffs contended that the subject clause was ineffective as none of the requirements of subsection 2316(2)" }, { "docid": "13900629", "title": "", "text": "N. E. 59; Danforth v. Chandler, 237 Mass. 518, 520, 522, 130 N. E. 105; Hall v. Bates, 216 Mass. 140, 103 N. E. 285. We think the District Court made no error in admitting evidence of statements by Cowdery, either in person or by telephone, tending to show admissions of the defendant, nor admitting testimony relating to declarations of Cowdery as tending to show warranty. We are of the opinion that, under the Sales Act and upon all the proofs, there is imposed upon the transaction an implied warranty that the goods, namely, the B. R. Y., sold by the defendant to the plaintiff, were reasonably fit for the purposes for which they were sold. The warranty imposed by the Sales Act results from evidence that the buyer made known to him — the seller — the particular purpose for which the goods were required, and that the buyer relied on the seller’s skill and judgment to prodiice a merchantable article, free from latent defects which would render it unfit for the disclosed purpose. We think a completed contract resulted from the letter of December 27th, written by the defendant to the plaintiffs and accepted by the plaintiffs; for it seems clear to us that the minds of the parties met on the question of a purchase and sale. It is true that this contract did not contain such details as are often put into contracts. It did not fix the time of sale. It did not deal in any way with the question of warranty. The express provision of the Sales Act, in clause 6, is: “An express warranty or condition does not negative a warranty or condition implied under this chapter unless inconsistent therewith.” The Sales Act makes no distinction between contracts in writing and other contracts. It is true that, where a written contract expresses a particular warranty, it becomes plain that the minds of the parties have dealt with the general subject as to what warranties should be given, and by specifying one have excluded others; but the reason for the rule fails where no" }, { "docid": "16001732", "title": "", "text": "and November 10th indicate that the parties intended that the rock would come from a stock on hand, but they hardly suffice to add that term to the agreement. The contract alleged is thus vitally different from that shown by the exhibits. As to quantity, under a contract for the sale of a pile, the amount actually in the pile sold would be important. Under the contract to sell rock for the causeway, the amount on hand would be immaterial, and the amount necessary for the causeway would control. As to quality, in a sale of a particular pile, it being at hand and capable of inspection, and not being the manufacture or product of the seller, there would be no implied warranty, but caveat emptor would apply. Barnard v. Kellogg, 10 Wall. 383, 19 L. Ed. 987. But, if unascertained rock were sold for a particular use known to the seller, he would be held to furnish rock suitable for that use. See Kellogg Bridge Co. v. Hamilton, 110 U. S. 108, 3 S. Ct. 537, 28 L. Ed. 86; Dushane v. Benedict, 120 U. S. 630, 7 S. Ct. 696, 30 L. Ed. 810. The exMbits thus contradict the declaration, and there results confusion as to the exact sort of case to be tried, the thing which declarations and demurrers were intended to avoid. Therefore the grounds of demurrer that no valid contract is shown, and that the writings are insufficient under the statute of frauds, were properly overruled. That no time is fixed for delivery is meritless. The expression, “Date wanted — as desired,” means “on demand,” a usual stipulation in mercantile contracts. The ground that no quantity of rock to be delivered is stated cannot be sustained, for, as above pointed out, two measures in this respect are set forth. This fault of duplicity is reached by the fourth ground that the declaration is “vague, indefinite and uncertain in that it alleges that the defendant agreed to sell and the plaintiff to buy certain rock mentioned in said declaration on November 2nd, 1925, but the exhibits" }, { "docid": "22078718", "title": "", "text": "as to the quality. It says.: “ Thebe goods [are] to be. exactly the same quality as we make for the De 'Witt Wire Cloth Company of New York, and as per sample bbls. delivered.” Now there is good authority for the proposition that if the contract of sale is in writing and contains no warranty, parol evidence is not admissible to add a warranty. Van Ostrand v. Reed, 1 Wend. 424; Lamb v. Crafts, 12 Met. 350, 353; Dean v. Mason, 4 Connecticut, 428, 432; Reed v. Wood, 9 Vermont, 285; 1 Parsons on Cont. (6th edition) 589. If it be true that the failure of a vendee to exact a warranty when hé takes a written contract precludes him .from showing a warranty by parol, a multo fortiori when his written contract contains a warranty on the identical question., and one in its terms, inconsistent with the one claimed. In the case of The Feeside, 2 Sumner, 567, Mr. Justice Story said: “ I apprehend that it can never be proper to resort to any usage or custom to control or vary the positive stipulations in a written qontract, and a fortiori not in order to contradict them. An express contract- of the parties is always admissible to supersede, or vary or control a usage or custom; for the latter may always be waived at the will of the parties. But a written and express contract cannot be controlled or varied or contradicted by a usage or custom ; for that would not only be to admit parol evidence to control, vary, or contradict written contracts ; but it'would be to allow mere presumptions and implications, properly arising in the absence of .any positive expressions of intention, to control, vary, or contradict the most formal and deliberate written declarations of. the parties.”' The. principle is, that, while parol evidence is sometimes admissible to explain such terms in the'contract as are doubtful, it is not admissible to contradict what is plain, or to add new terms. Thus, where a certain written •contract’ was for “ primé singed bacon,” evidence" }, { "docid": "22632106", "title": "", "text": "below evidence was offered by the company, and was permitted, over the objection of plaintiffs, to go to the jury, to the effect that, when this contract was made, there existed in the cities of New York and Brooklyn an established, well-known general custom in fire insurance business, which authorized an insurance company, entitled upon notice to terminate its policy, to give such notice to the broker by or through, whom the insurance was procured. This evidence was inadmissible because it contradicted the manifest intention of the parties as indicated by the policy. The objection to its introduction should have been sustained. The contract, as we have seen, did not authorize the company to cancel it upon -notice merely to the party procuring the insurance — his agency, aqcording to; the evidence, not extending beyond the consummation of the contract. The contract, by necessary implication, required notice to be given to the insured,'or to some one who was his agent to receive such, notice. An express written contract, embodying in clear and positive terms the intention of the parties, cannot be varied by evidence of usage or custom. In Barnard v. Kellogg, 10 Wall. 383, this court quotes with approval the language’ of Lord Lyndhurst in Blackett v. Royal Exchange Assurance Co., 2 Cromp. & Jervis, 244, that “usage may be admissible to explain what is doubtful; i,t is never admissible to contradict what is plain.” This rule is based upon the theory that the parties, if aware of any usage or custom relating to the subject-matter of their negotiations, have so expressed their intention as to take the contract out of the operation of any rules established by mere usage or custom. \"Whatever apparent conflict exists in the adjudged cases as to the office of custom or usage in the interpretation of contracts, the established doctrine of this court is as we have stated. Partridge v. Insurance Co., 15 Wall. 573; Robinson v. United States, 13 Wall. 363; The Delaware, 14 Wall. 579; Nat. Bank v. Burkhardt, 100 U. S. 686. The'record in this case presents a question of" }, { "docid": "13900631", "title": "", "text": "warranty of any kind is inserted in the written contract. Glackin v. Bennett, 226 Mass. 316, 115 N. E. 490; Grace & Co. v. National Wholesale, etc., Co., 251 Mass. 251, 146 N. E. 908; Whitmore v. South Boston Iron Co, 2 Allen, 52. The testimony received in evidence as to the statements of Cowdery upon the subject of warranty of fitness of the B. R. Y. for a disclosed purpose was admitted, not to vary any contract, but as bearing on the question whether the buyer made known to the seller the purpose for which the goods were sold, and whether the buyer relied on the seller’s skill and judgment to produce a merchantable article, free from latent defects which would render it unfit for the disclosed purpose. The important question is whether such testimony was sufficient to allow the imposition of an implied warranty of fitness under the Sales Act. We think it admissible and clearly sufficient for such purpose. Ward v. Atlantic & Pacific Co., 231 Mass. 90, 120 N. E. 225, 5 A. L. R. 242; Grace & Co. v. National Wholesale Co., 251 Mass. 251, supra; Bird & Son, Inc., v. Guarantee Const. Co. (C. C. A. ) 295 F. 451. We are, then, constrained by the proofs to find that the Sales Act imposed a warranty of fitness of the B. R. Y. for the purpose for which it was sold; that the buyer relied upon the seller’s skill and judgment to produce a merchantable article, free from latent defects, which would render it unfit for the disclosed purpose; that the goods sold, namely, the B. R. Y., was not fit for the purpose for which it was sold; that it had latent defects which could not be discovered, and were not discovered, until long afterwards, when, the goods came into the cobblers’ hands. We are clearly of the opinion that the evidence shows a breach of the implied warranty imposed by the Sales Act. It is unnecessary, then, to consider further questions of express warranty found by the District Court. We think there" }, { "docid": "22341801", "title": "", "text": "out of the general rule applied in such controversies. Evidence of usage is ‘admissible in mercantile contracts to prove that the words in which the contract is expressed, in the particular trade to which the contract refers, are used in a particular sense and different from the sense which they ordinarily import; and it is also admissible in certain cases, for the purpose of annexing incidents to the contract in matters upon which the contract is silent, but .it is never admitted to make a contract dr to add a new element to the terms of a contact previously made by the parties. Such evidence may be introduced to explain what is ambiguous, but it is never admissible to vary or contradict what is plain. Evidence of the kind may be admitted for the purpose of defining what is uncertain, but it is never properly admitted to alter a general rule .of law, nor to make the legal rights or liabilities of the parties other or different from what they are by the common law. Cases may arise where such evidence may be admissible and material, but as none such was offered in this case it is not necessary to pursue that inquiry. Exceptions.also exist to the rule that parol evidence is not admissible to vary or contradict the terms of a written instrument where it appears that the instrument was not within the statute of frauds nor under seal, as where the evidence offered tends to prove a subsequent agreement upon a new consideration. Subsequent oral agreements in respect to a prior written agreement, not falling within the statute of frauds, may haye the effect to enlarge the time of performance, or may vary any other of its terms, or, if founded upon a new consideration, may waive and discharge it altogether. Verbal agreements, however, between the parties to a written contract, made before or at the time of the execution of the contract, are in general inadmissible to contradict or vary its terms or to affect its construction, as all such verbal agreements are considered as merged in" }, { "docid": "9654477", "title": "", "text": "to contradict what is plain.’ And it is well settled that usage cannot be allowed tr> subvert the settled rules of law.” So, in the case of Merchants’ Bank v. State Bank, 10 Wall. 604, 667, Mr. justice Clifford uses the following language: “Evidence of usage is admissible in mercantile contracts to prove that the words in which the contract is expressed in the particular trade to which the contract refers, are used in a particular sense, and different from the sense which they ordinarily import; and it is also admissible in certain cases for the purpose of annexing incidents to the contract in matters upon which the contract is silent; but it is never admissible to make a contract, or to add a new element to the terms of a contract previously made by the parties. Snell evidence maybe introduced to explain what is ambiguous and doubtful, but it is never admissible to vary or contradict what is plain. Where the language employed is technical or ambiguous, such evidence is admitted for the purpose of defining what is uncertain; but it is never properly admitted to alter a general principle or rule of law, nor to make the legal rights or liabilities of the parties other or different from what they are by the common law.” The usage offered to be proved in this ease was.not for the purpose of showing that tho term “stevedore” meant anything different in this charter from its ordinary signification; nor would the effect of tho evidence, if received, he to nullify the effect of the clause as it stands; for the charterers did select and pay for a stevedore at the port of loading. The purpose of the evidence of this usage is to limit tho extent of the application of the clause in question by confining it to the port of loading only. Considering that tho phrase is used in the singular number; that it is only by construction that it would be made ordinarily applicable, in tho plural sense, to all the, stevedores that might be necessary in tbe ordinary course" }, { "docid": "22771843", "title": "", "text": "contract; that Hamilton took the false work for what' it Was, and just as it stood; consequently, that-the rule of oaveat emptor applies with full force. The position of counsel for Hamilton is that, as in cases of sales of articles by those manufacturing or making them, there was an implied warranty by the Bridge Company that the work sold or transferred to Hamilton was ■ reasonably fit for the purposes for which it was purchase d. The cases in whLn the general rule of oaveat emptor applies are indicated in Bernard v. Kellogg, 10 Wall. 383, 388, where, speaking by Mr. Justice Davis,, the court observed; that, “No principle of the common law has been better established, ormore often affirmed, both in this country and in England, than that in sales of personal property, in the absence of express warranty, wheré the buyer has an opportunity to inspect the commodity, and the seller is guilty of no fraud, and is neither the manufacturer npr grower of the article he sells, the-maxim of oaveat emptor applies.” An examination of the ground upon which some of the cases have placed the general rule, as well as the reasons against its application, under particular circumstances, to sales of articles by those who have manufactured them, will aid us in determining how far the doctrines of those cases should control the one before us. The counsel for the Bridge Company relies upon Parkinson v. Lee, 2 East, 314, as illustrating the rule applicable in ordinary sales of merchandise. That case arose out of a sale of five pockets of hops, samples of which were taken from each pocket and exhibited at the time of sale. The question was whether, under the circumstances of that case — there being no express warranty and no fraud by the seller — there was an implied warranty that the commodity was merchantable. It was resolved in the negative, upon the ground that it was the fault of the buyer that he did not insist on a warranty; the commodity was one which might or might not have" }, { "docid": "19577489", "title": "", "text": "claim for breach of express warranty on this basis, it does not address Defendant's additional arguments for dismissal of this claim. 3. Breach of Implied Warranty In the Complaint, Plaintiff alleges that NNA impliedly warranted that its CVTs were not inherently defective, were of good and merchantable quality, and were fit for the ordinary purposes for which they were sold. (Compl. ¶ 95.) He asserts that NNA breached the warranty because the vehicles were \"prone to substantial failure and malfunction, pose serious safety concerns,\" and have \"substantially failed and malfunctioned.\" (Id. ¶ 97.) Defendant argues that Plaintiff's claim for breach of implied warranty fails for two reasons. First, it contends that the claim does not allege a defect that manifested within the time and mileage limits of the express warranty. (Def.'s Dismiss Mem. at 12.) Second, NNA asserts that Plaintiff's vehicle was merchantable as a matter of law. (Id. ) An implied warranty of merchantability requires that goods be \"fit for the ordinary purposes for which such goods are used.\" Daigle v. Ford Motor Co. , 713 F.Supp.2d 822, 826 (D. Minn. 2010). An implied warranty of merchantability is breached on a showing that a \" 'product is defective to a normal buyer making ordinary use of the product.' \" Thunander v. Uponor, Inc. , 887 F.Supp.2d 850, 860 (D. Minn. 2012) (quoting Driscoll v. Standard Hardware, Inc. , 785 N.W.2d 805, 816 (Minn. Ct. App. 2010) ). Under Minnesota law, a written implied warranty of merchantability may be excluded or modified by using language that mentions merchantability and is conspicuous. Minn. Stat. § 336.2-316(2). Here, the Warranty mentions merchantability in all capital letters, stating, \"ANY IMPLIED WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE SHALL BE LIMITED TO THE DURATION OF THIS WRITTEN WARRANTY.\" (Wittie Decl., Ex. A (Nissan 2012 Warranty Info. Booklet at 6).) This language is found within a rectangular box under the heading \"LIMITATION OF WARRANTIES AND OTHER WARRANTY TERMS AND STATE LAW RIGHTS,\" and precedes the express warranty terms. (Id. ) In light of this language, Defendant asserts that for Knotts to sufficiently plead" }, { "docid": "6335699", "title": "", "text": "See also the cases annotated 133 A.L.R. 1349, 1364, note VII (b). . Where the written contract, upon inspection, shows a complete legal obligation, without any uncertainty of obligation, parol evidence is not admissible to prove an express warranty which is not ’ contained in the wilting. Sterling-Midland Coal Co. v. Great Lakes Coal, etc. Co., 334 Ill. 281, 165 N.E. 793; Boston Consol. Gas Co. v. Folsom, 237 Mass. 565, 130 N.E. 197; Star Fuse Co. v. Prussian, 248 Mass. 126, 143 N.E. 145; Aetna Chemical Co. v. Spaulding & Kimball Co., 98 Vt. 51, 126 A. 582; Northwestern Blaugas Co. v. Guild, 169 Wis. 98, 171 N.W. 662; Blecker v. Schmidt, 211 Iowa 1063, 235 N.W. 34; Barry v. Cronin, 272 Mass. 477, 172 N.E. 595; Demos Const. Co., Inc. v. Service Supply Corp., 153 Pa. Super. 623, 34 A.2d 828; Valley Refrigeration Co. v. Lange Co., 242 Wis. 466, 8 N.W.2d 294. . By the same rule, where the written agreement specifically excludes and negatives implied warranties, parol evidence is not admissible to establish an implied warranty, and to vary or contradict the express terms of the written agreement. While implied warranties may be proved by parol evidence, yet if the parol evidence seeks to establish an implied warranty, specifically negatived and excluded by the express terms of the written agreement, it should be excluded under the parol evidence rule as inadmissible and incompetent to vary or contradict the ierais of the written agreement. See 46 Am. Jur., Sales, §§ 315 and 333. It would appear provisions of the kind contained in the instant contract are thoroughly valid and competent, and the parties may, by express agreement, limit their rights, duties and obligations arising thereunder, by the terms of the contract. See Tharp v. Allis-Chalmers Mfg. Co., 42 N.M. 443, 81 P.2d 703, 117 A.L. R. 1344, at page 1350 and annotation “Validity of provision of contract of sale of personal property negativing implied warranties” and the cases cited therein; and 46 Am.Jur., Sales, §§ 335, 336; Deere & Webber Co. v. Moch, 71 N.D. 649, 3" }, { "docid": "22552122", "title": "", "text": "courts both of law and equity, that parol contemporaneous evidence is inadmissible to contra-diet or vary the terms of a valid written instrument. This rule is thus'expressed in Greenleaf on Evidence, vol. 1, sec. 275, 12th ed.: . “ When parties have deliberately put their engagements into, writing, in such terms as import a legal obligation, without any uncertainty as to the object or extent of such engagement, it is conclusively presumed that the whole engagement of the parties, and the extent and manner of their undertaking was reduced to writing; and all oral testimony of a previous eolio--quium between the parties, or of conversation or declarations at the time when it- was completed, or afterwards, as it would tend in many instances to substitute a new and different contract for the one which was really agreed upon, to the prejudice, possibly, of one of the parties, is rejected.” The rule is thus expressed by Starkie, 587, 9th Am. ed.: “ It is likewise a general and most inflexible rule, that where-ever written instruments are appointed, either by the requirement of law, or by the compact of the parties, to be the repositories and memorials of truth, any other evidence is excluded from being used, either as a substitute for such instruments or to contradict or alter them. This is a matter both of principle and policy ; of principle, because such instruments are in their nature and origin entitled to a much higher degree of credit than parol evidence; of policy, because it would be attended with great mischief if those instruments upon which men’s rights depended were liable to be impeached by loose collateral evidence.” This rule has always been followed and applied by the English courts in the case of policies of insurance in writing. Thus in Weston v. Eames, 1 Taunt. 115, it was held that parol evidence of what passed at the time of effecting a policy is not admissible to restrain the effect of the policy, Mansfield, C. J., observing that “ such evidence could not be admitted, without abandoning in the case of" }, { "docid": "13900630", "title": "", "text": "We think a completed contract resulted from the letter of December 27th, written by the defendant to the plaintiffs and accepted by the plaintiffs; for it seems clear to us that the minds of the parties met on the question of a purchase and sale. It is true that this contract did not contain such details as are often put into contracts. It did not fix the time of sale. It did not deal in any way with the question of warranty. The express provision of the Sales Act, in clause 6, is: “An express warranty or condition does not negative a warranty or condition implied under this chapter unless inconsistent therewith.” The Sales Act makes no distinction between contracts in writing and other contracts. It is true that, where a written contract expresses a particular warranty, it becomes plain that the minds of the parties have dealt with the general subject as to what warranties should be given, and by specifying one have excluded others; but the reason for the rule fails where no warranty of any kind is inserted in the written contract. Glackin v. Bennett, 226 Mass. 316, 115 N. E. 490; Grace & Co. v. National Wholesale, etc., Co., 251 Mass. 251, 146 N. E. 908; Whitmore v. South Boston Iron Co, 2 Allen, 52. The testimony received in evidence as to the statements of Cowdery upon the subject of warranty of fitness of the B. R. Y. for a disclosed purpose was admitted, not to vary any contract, but as bearing on the question whether the buyer made known to the seller the purpose for which the goods were sold, and whether the buyer relied on the seller’s skill and judgment to produce a merchantable article, free from latent defects which would render it unfit for the disclosed purpose. The important question is whether such testimony was sufficient to allow the imposition of an implied warranty of fitness under the Sales Act. We think it admissible and clearly sufficient for such purpose. Ward v. Atlantic & Pacific Co., 231 Mass. 90, 120 N. E. 225," }, { "docid": "6335700", "title": "", "text": "to establish an implied warranty, and to vary or contradict the express terms of the written agreement. While implied warranties may be proved by parol evidence, yet if the parol evidence seeks to establish an implied warranty, specifically negatived and excluded by the express terms of the written agreement, it should be excluded under the parol evidence rule as inadmissible and incompetent to vary or contradict the ierais of the written agreement. See 46 Am. Jur., Sales, §§ 315 and 333. It would appear provisions of the kind contained in the instant contract are thoroughly valid and competent, and the parties may, by express agreement, limit their rights, duties and obligations arising thereunder, by the terms of the contract. See Tharp v. Allis-Chalmers Mfg. Co., 42 N.M. 443, 81 P.2d 703, 117 A.L. R. 1344, at page 1350 and annotation “Validity of provision of contract of sale of personal property negativing implied warranties” and the cases cited therein; and 46 Am.Jur., Sales, §§ 335, 336; Deere & Webber Co. v. Moch, 71 N.D. 649, 3 N.W.2d 471, 139 A.D.R. 1270. . In fact, the above principles are implicit in § 71 of the Sales Act, Del.Rev.Code 1935, § 6050, which provides as follows: “Variation of Implied Obligations:— Where any right, duty or liability would arise under a contract to sell or a sale by implication of law, it may be negatived or varied by express agreement or by the course of dealing between the parties, or by custom, if the custom be such as to bind both parties to the contract or the sale.” . This would appear clear from § 14 of the Sales Act, Del.Rev.Code 1935, § 5993, which speaks of, by way of heading, “Implied Warranty in Sale by Description”. Apart from the SalSs Act there is early authority that no warranty of any kind arises from mere descriptive language. Budd v. Fairmaner, 8 Bing. 48, 131 Eng. Rep. 318; Richardson v. Brown, 1 Bing. 344; Anthony v. Halstead, 37 LT (NS) 433; Willard v. Stevens, 24 N.H. 271. No Delaware ease on this precise point has" }, { "docid": "22078719", "title": "", "text": "to any usage or custom to control or vary the positive stipulations in a written qontract, and a fortiori not in order to contradict them. An express contract- of the parties is always admissible to supersede, or vary or control a usage or custom; for the latter may always be waived at the will of the parties. But a written and express contract cannot be controlled or varied or contradicted by a usage or custom ; for that would not only be to admit parol evidence to control, vary, or contradict written contracts ; but it'would be to allow mere presumptions and implications, properly arising in the absence of .any positive expressions of intention, to control, vary, or contradict the most formal and deliberate written declarations of. the parties.”' The. principle is, that, while parol evidence is sometimes admissible to explain such terms in the'contract as are doubtful, it is not admissible to contradict what is plain, or to add new terms. Thus, where a certain written •contract’ was for “ primé singed bacon,” evidence offered to prove that by the’usage of the trade a certain latitude, of deterioration called “average taint” was allowed to subsist before' the bacon ceased to answer -that description, was held to be inadmissible. 1 Greenleaf on Evidence, § 292, note 3; Yates v. Pym, 6 Taunt. 446; Barnard v. Kellogg, 10 Wall. 383; Bliven v. New England Screw Company, 23 How. 420; Oelricks v. Ford, 23 How. 49. There are numerous well considered cases that an express warranty of quality excludes any implied warranty that the articles sold were merchantable or fit for their intended use. International Pavement Co. v. Smith, 17 Missouri App. 264; Johnson v. Latimer, 71 Georgia, 470; Cosgrove v. Bennett, 32 Minnesota, 371; Shepherd v. Gilroy, 46 Iowa, 193; McGraw v. Fletcher, 35 Michigan, 104. Nor is there any conflict between these authorities and others like them on the one hand, and those on the other, which hold that goods sold by a manufacturer, in the absence of an express contract, are impliedly warranted as merchantable, or as suited to" }, { "docid": "9654476", "title": "", "text": "3 Ware, 215, 218. 2. In the case of Barnard v. Kellogg, 10 Wall. 383, 390, the office of custom or usage is stated as follows: “The proper office of a custom or usage in trade is to ascertain and explain the meaning and intention of the parties to a contract, — whether written or in parol,' — which could not be done without the aid of this extrinsic evidence. It does not go beyond this, and is used as a mode of interpretation, on the theory that the parties knew of its existence, and contracted with reference to it. It is often employed to explain words and phrases in a contract of doubtful signification, or which may be understood in different senses, according to the subject-matter to which they are applied. But if it be inconsistent with the contract, or expressly or by necessary implication contradicts it, it cannot be received in evidence to affect it. ‘ Usage,’ says Lord LyNdhurst, ‘ may be admissible to explain what is doubtful; it is never admissible to contradict what is plain.’ And it is well settled that usage cannot be allowed tr> subvert the settled rules of law.” So, in the case of Merchants’ Bank v. State Bank, 10 Wall. 604, 667, Mr. justice Clifford uses the following language: “Evidence of usage is admissible in mercantile contracts to prove that the words in which the contract is expressed in the particular trade to which the contract refers, are used in a particular sense, and different from the sense which they ordinarily import; and it is also admissible in certain cases for the purpose of annexing incidents to the contract in matters upon which the contract is silent; but it is never admissible to make a contract, or to add a new element to the terms of a contract previously made by the parties. Snell evidence maybe introduced to explain what is ambiguous and doubtful, but it is never admissible to vary or contradict what is plain. Where the language employed is technical or ambiguous, such evidence is admitted for the purpose" }, { "docid": "22078721", "title": "", "text": "the known purpose of the buyer. Dushane v. Benedict, 120 U. S. 630, 636, and cases there cited.' It is the existence of the express warranty, or its absence, which determines the question. In the case at bar there was such an express warranty of quality in terms. Not only that, but there was a sample delivered and accepted, as such. The law is well settled, that, under such circumstances, implied warranties do not exist. Mumford v. McPherson, 1 Johns. 414; Sands v. Taylor, 5 Johns. 395; Beck v. Sheldon, 48 N. Y. 365; Parkinson v. Lee, 2 East, 314. In Jones v. Just, L. R. 3 Q. B. 197, 202, quoted by Mr. Benjamin in his work on Sales, § 657, Mellor, j., delivering the opinion' of the court,laid down among others the following rule: “ Where a known described and defined article is ordered of a manufacturer, although-it is stated to be required by the purchaser for a particular purpose, still, if the known defined and described thing be actually supplied, there is no warranty that it shall answer the particular- purpose intended by the buyer. Chanter v. Hopkins, 4 M. & W. 399; Ollivant v. Bayley, 5 Q. B. 288.” • jEiXamming now-the express terms of the contract, in order to see what they are, and \"whether they fairly import the warranty claimed by the plaintiffs in error, we find them to be as follows: “ These goods to be exactly the same quality as we make for the De \"Witt \"Wire Cloth Company of New York, and. as per sample bbls. delivered. Turpentine copal varnish at 65 cts. per gallon-; turpentine japan dryer a$ 55 cts. per gallon.-” There are here three .items of description claimed by the. plaintiffs in error: (1) That they should be the same as those made for the D.e Witt.Wire Cloth Company; and there is.no evidence whatever that they were not. the samé, nor is a difference in this respect any part of their claim.- (2) That they should conform to á sample delivered;' and here again is an entire absence" }, { "docid": "22078720", "title": "", "text": "offered to prove that by the’usage of the trade a certain latitude, of deterioration called “average taint” was allowed to subsist before' the bacon ceased to answer -that description, was held to be inadmissible. 1 Greenleaf on Evidence, § 292, note 3; Yates v. Pym, 6 Taunt. 446; Barnard v. Kellogg, 10 Wall. 383; Bliven v. New England Screw Company, 23 How. 420; Oelricks v. Ford, 23 How. 49. There are numerous well considered cases that an express warranty of quality excludes any implied warranty that the articles sold were merchantable or fit for their intended use. International Pavement Co. v. Smith, 17 Missouri App. 264; Johnson v. Latimer, 71 Georgia, 470; Cosgrove v. Bennett, 32 Minnesota, 371; Shepherd v. Gilroy, 46 Iowa, 193; McGraw v. Fletcher, 35 Michigan, 104. Nor is there any conflict between these authorities and others like them on the one hand, and those on the other, which hold that goods sold by a manufacturer, in the absence of an express contract, are impliedly warranted as merchantable, or as suited to the known purpose of the buyer. Dushane v. Benedict, 120 U. S. 630, 636, and cases there cited.' It is the existence of the express warranty, or its absence, which determines the question. In the case at bar there was such an express warranty of quality in terms. Not only that, but there was a sample delivered and accepted, as such. The law is well settled, that, under such circumstances, implied warranties do not exist. Mumford v. McPherson, 1 Johns. 414; Sands v. Taylor, 5 Johns. 395; Beck v. Sheldon, 48 N. Y. 365; Parkinson v. Lee, 2 East, 314. In Jones v. Just, L. R. 3 Q. B. 197, 202, quoted by Mr. Benjamin in his work on Sales, § 657, Mellor, j., delivering the opinion' of the court,laid down among others the following rule: “ Where a known described and defined article is ordered of a manufacturer, although-it is stated to be required by the purchaser for a particular purpose, still, if the known defined and described thing be actually supplied, there is" }, { "docid": "15393963", "title": "", "text": "768, 164 N. Y. S. 887. In that ease the court said: “It is clear from the pleadings and the evidence that Coyle bought these • goods as the agent‘of defendants and accepted delivery of them in New Orleans. It was a sale of existing and specific goods, made aft>er inspection by defendants’ agent, Coyle. The title, therefore, passed at once to the defendants. Brigg v. Hilton, 99 N. Y. 517-529, 3 N. E. 51, 52 Am. Rep. 63. It is not a case where the vendee relied upon the judgment of the vendor. There was therefore no warranty as to the condition of the goods. Hight v. Bacon, 126 Mass. 10, 30 Am. Rep. 639. Coyle, as agent for the defendants, dealt with the plaintiff on equal terms, so far as the quality and condition of the goods were concerned. It is a ease - where the rule of caveat emptor applies, and there was no warranty, express, or implied. Therefore the evidence as to the condition of the garlic on the dock at New York after a sea voyage, as well as the expert evidence to the effect that the bad condition as shown on arrival was the result of defects existing at the time of the sale, was immaterial and inadmissible.” The maxim of caveat emptor embodies an ancient rule of the common law. It is based on the principle that the purchaser buys at his own risk unless the seller gives an express warranty, or unless the law implies a warranty from the circumstances of the ease or the nature of the thing sold, or unless the seller be guilty of fraudulent misrepresentation or concealment in a material inducement to the sale. Under it the buyer is put upon his guard and must stand the loss of an imprudent purchase unless the soundness of the thing bought is warranted by the seller. It applies to sales of personalty where the buyer has an opportunity to inspect the goods and the seller is. guilty of no fraud. Barnard v. Kellogg, 10 Wall. 383, 388, 19 L. Ed." }, { "docid": "13900618", "title": "", "text": "per cent. The Uniform Sales Act (Gen. Laws Mass, c. 106, § 17), in its material parts, is as follows: “(1) Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller’s skill or judgment, whether he be the grower or manufacturer or not, there is an implied warranty that the goods shall be reasonably fit for such purpose. “(2) Where the goods are bought by description from a seller who deals in goods of that description, whether he be the grower or manufacturer or not, there is an implied warranty that they shall be of merchantable quality. “ (3) If the buyer has examined the goods,' there is no implied warranty as regards defects which such examination ought to have revealed. “(4) In the case of a contract to sell or a sale of a specified article under its patent or other trade-name, there is no implied warranty as to its fitness for any particular purpose. * * * “(6) An express warranty or condition does not negative a warranty or condition implied under this chapter unless inconsistent therewith.” As early as 1918, and afterwards in 1919, the plaintiff was solicited by one A. B. Cowdery, who appeared to be an agent of the defendant, to substitute B. R. V. for the 80-80 which the plaintiff was using as the chief ingredient of its oil for stiffening scrap rubber. The plaintiff was entirely ignorant of B. R. V. By assignment of error the defendant challenges the admission of testimony relating to conversations between Cowdery and the plaintiff in these solicitations, and to subsequent conversations and a conference by telephone, on the ground that there is no evidence of authority on Cowdery’s part to make a warranty or to bind the defendant by admission of defects in the B. R. V: The evidence shows that Cowdery, as the seller’s agent, knew the conditions of manufacture in the plaintiff’s factory and the manner in which it was proposed to úse the" } ]

[ { "docid": "22185318", "title": "", "text": "1861-1867, will produce more thoroughly representative juries in the Southern District of New York, we find no evidence of invidious discrimination sufficient to require invalidation of this indictment. II. Evidence allegedly stemming from an independent venture by Reid Turning to the conduct of the trial, we shall deal first with two contentions which have as a common ground a claim that Reid’s final trip was not a part of the conspiracy charged in the indictment but rather an independent venture of his own. One of these, to be discussed below, relates to a statement made considerably before the trip by Lewis to Reid concerning Jessup. The other is that it was error to admit into evidence against all the defendants the heroin seized from Reid in Honolulu and to allow the jury to hear the story of his post-arrest contacts with Egan and Harris. Since the heroin was real evidence, its admissibility is governed by the rule, stated in Lutwak v. United States, 344 U.S. 604, 618, 73 S.Ct. 481, 97 L.Ed. 593 (1963), that though hearsay declarations of a co-conspirator are admissible against the others only if made during and in furtherance of the conspiracy, acts relevant to prove the conspiracy are admissible even if they occurred after the conspiracy had ended. Here the jury could reasonably have inferred from proof of Reid’s possession of concealed heroin on his person at the time of his passage through Customs that he either had had previous experience as a courier or had been instructed by other conspirators. Furthermore, the heroin would have been properly admitted even if it were necessary to show that it was taken from Reid while he was acting in furtherance of the conspiracy. It is common ground that in conspiracy the agreement itself is the crime, and that “it is therefore essential to determine what kind of agreement or understanding existed as to each defendant.” United States v. Borelli, 336 F.2d 376, 384, and 385 (2 Cir. 1964), cert. denied, Cinquegrano v. United States, 379 U.S. 960, 85 S.Ct. 647, 13 L.Ed.2d 555 (1965), quoting United States" } ]

[ { "docid": "11537661", "title": "", "text": "had earlier objected to the introduction of alleged hearsay testimony concerning statements by coconspirators. In response to the earlier objection, the trial judge instructed the jury as required by Apollo, supra, 476 F.2d 156. This charge was clearly intended to have a continuing effect with respect to all coconspirator hearsay testimony elicited at trial. The charge was also reiterated by the judge in his final instructions to the jury. As McLees’ testimony concerned hearsay declarations made after the termination of the conspiracy and not in furtherance of any of its goals, the jury, in accordance with the judge’s instructions, must have disregarded it. We note that the government does not rely on this evidence in its discussion of the sufficiency issue. Nor may we place any reliance on this testimony in assessing the sufficiency of evidence supporting the conviction. In view of our determination on the sufficiency issue, we do not reach the appellant’s contention that admission of this testimony in itself constitutes reversible error under Krulew-itch v. United States, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790 (1949). See Anderson v. United States, 417 U.S. 211, 94 S.Ct. 2253, 41 L.Ed.2d 20 (1974); cf. Lutwak v. United States, 344 U.S. 604, 73 S.Ct. 481, 97 L.Ed. 593 (1953) (non-hearsay actions). . Agent Theodore Baden testified as to events following the arrest of Casillas. Baden testified that he warned Casillas of his rights and that Casillas made a statement. The next portion of Baden’s testimony proceeded as follows: Q. (By Mr. Walker:) Did you ask Mr. Ca-sillas any questions? A. Yes, sir, I did. Q. All right, what questions did you ask Mr. Casillas? A. I asked Mr. Casillas to whom the heroin belonged. I asked him where he was supposed to take the money to after he received it from the undercover agents. I asked him to whom the automobile belonged that he was driving. Q. Okay. A. I asked him if he would take us to the place and the person to whom he was to pay the money. Q. Following this conversation that you had with" }, { "docid": "3986322", "title": "", "text": "an alleged co-conspirator may be admitted at trial if relevant to prove the conspiracy existed, even if made after the conspiracy ended. Anderson v. United States, 417 U.S. 211, 219, 94 S.Ct. 2253, 2260, 41 L.Ed.2d 21 (1974); Lutwak v. United States, 344 U.S. 604, 618, 73 S.Ct. 481, 489-90, 97 L.Ed. 593 (1953). Thus, statements made by Cawthon after his arrest were correctly received into evidence. “Future Conspiracy” Instruction The defendant Veal requested the following written instruction: If you find that the Defendant’s statements and actions were directed to a future transaction and not the alleged conspiracy at trial, then you should find the Defendant not guilty. The trial court declined to give this instruction over defense counsel’s objection. “It is elementary law that the defendant in a criminar case is entitled to have presented instructions relating to a theory of defense for which there is any foundation in the evidence.” Perez v. United States, 297 F.2d 12, 15, 16 (5th Cir.1961). This does not, however, entitle the defendant to a charge that is legally erroneous. The proffered instruction is confusing in that it is overly broad and argumentative with misplaced burden of proof. The trial court had properly excluded evidence of Veal’s discussions of deals beyond the initial one thousand pounds. There was evidence before the jury with respect to the remaining six hundred and fifty pounds of a one thousand pound transaction, of which three hundred and fifty pounds had been delivered. Veal was present and participated in the discussions concerning the sale and anticipated delivery of one thousand pounds, of which three hundred and fifty pounds were delivered. The charge is too broad and is argumentative. It does not separate Veal’s and his co-conspirators’ statements concerning one thousand pounds. Veal had participated in discussions at different times which included one thousand pounds. It ignores contemporaneous statements made about one thousand pounds when the three hundred and fifty pounds were delivered. In effect it is a directed verdict on an argumentative premise. The charge was offered in support of defendant’s theory of future transactions. It appears the" }, { "docid": "5683506", "title": "", "text": "Therefore, it may not be considered by this court in determining whether the trial judge abused his discretion. United States v. Uptain, supra. An examination of the above described facts clearly indicates that there was no abuse of discretion. Appellant also contends that the trial court improperly permitted the jury to consider out-of-court statements made by his alleged co-conspirators. While this court adopted new rules governing admission of co-conspirator statements in United States v. James, 590 F.2d 575 (5 Cir.) (en banc), cert. denied, 442 U.S. 917, 99 S.Ct. 2836, 61 L.Ed.2d 283 (1979), our decision in United States v. Robinson, 591 F.2d 1202 (5 Cir. 1979), stated that “it is clear that James only applies prospectively.” Id. at 1204. Because the trial of this case ended on October 30, 1978, this issue is governed by this court’s earlier decision in United States v. Apollo, 476 F.2d 156 (5 Cir. 1973). Apollo requires the trial judge to give a cautionary instruction to the jury on the limited use of evidence of co-conspirators’ statements. This court in Apollo noted that the Supreme Court’s decision in Lutwak v. United States, 344 U.S. 604, 73 S.Ct. 481, 97 L.Ed. 593 (1953), established the following requirement: a minimum obligation on the trial judge in a conspiracy case in which extrajudicial statements of alleged co-conspirators are proffered to give a cautionary instruction on the limited uses of hearsay testimony, explaining clearly to the jury the requirement that the conspiracy itself and each defendant’s participation in it must be established by independent non-hearsay evidence which must be given either prior to the introduction of any evidence or immediately upon the first instance of such hearsay testimony. See Menendez v. United States, 393 F.2d 312 (5 Cir. 1968), cert. denied, 393 U.S. 1029, 89 S.Ct. 639, 21 L.Ed.2d 572 (1969). Testimony concerning the declarations of co-conspirators may be admitted before the existence of the conspiracy is established by independent evidence. But the unmistakable hazard of allowing this procedure highlights the need for the court to condition the minds of the jurors so that they will not fail" }, { "docid": "13976338", "title": "", "text": "on conspiracy and particularly “mere presence” reveals that the charge was correct as given and substantially included the instruction requested. The court’s instruction on aiding and abetting is detailed and lengthy; while it does not include an instruction on “mere presence”, it does emphasize the element of willfulness in several places. The charge as given substantially included the requested charge. There was no error. ADMISSIBILITY OF EVIDENCE Perkins challenged the trial court’s admission of hearsay statements of Hits-man. As McConnell was about to testify to what Hitsman had told him about the lab, Perkins’ attorney objected, and a hearing was conducted by the judge outside the presence of the jury. After testimony by Hitsman, the trial court determined that a conspiracy did exist and that the statements had been made during the course of and in furtherance of it. This satisfies the requirement laid down in United States v. James, 590 F.2d 575 (5th Cir. 1979), and the finding is not clearly erroneous. Perkins now argues that the statements of Hitsman to McConnell were made during the coverup phase of the conspiracy and are thus inadmissible under Lutwak v. United States, 344 U.S. 604, 73 S.Ct. 481, 97 L.Ed. 593 (1953). The evidence shows, however, that while the lab might have been moved at the date the statements were made, methamphetamine was still being distributed; thus, the court’s ruling was correct. Perkins’ argument that the admission of Hitsman’s statement about him operated to deny him his sixth amendment right to confrontation is frivolous. See United States v. Johnson, 575 F.2d 1347, 1362 (5th Cir. 1978) (citing Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970)). Thus, the trial judge was correct in denying Perkins’ motion for severance. Perkins challenges the admission of a copy of his college transcript by the government. We agree that the transcript could not properly be admitted as a business record under Fed.R.Evid. 803(6), since neither the custodian nor any other qualified witness was available to testify as to how such records were kept. However, the court admitted the transcript under Rule" }, { "docid": "15987572", "title": "", "text": "attacks. First, he argues that it was error for the Court to admit the testimony of a Government witness of threats made against that witness by Jerry Edward Pate when the witness and Defendants were incarcerated together in the Selma, Alabama jail after their arrest. However, the Court carefully and repeatedly emphasized to the jury that they were to consider this evidence only to show consciousness of guilt of the one who made the threats and, further, that the jury was only to consider this evidence against Jerry Edward Pate, and not against Eddie Wayne Pate. Under these circumstances, we find no reversible error. See Rich v. United States, 5 Cir., 1967, 384 F.2d 887, 888; United States v. Freundlich, 2 Cir., 1938, 95 F.2d 376, 378-79. The subordinate contention that this was hearsay is palpably frivolous since the words related were verbal acts and were not introduced to prove the truth of them. Second, Defendant argues that it was error for the Court to allow the testimony of one of the Government witnesses because it related to events occurring after the conspiracy had ended. It is certainly true that declarations and statements made by a conspirator after the conspiracy is terminated are inadmissible against his co-conspirator. See Lutwak v. United States, 1953, 344 U.S. 604, 618, 73 S.Ct. 481, 489, 97 L.Ed.2d 593, 603-04. However, the record below clearly supports the District Court’s finding that the statements in question were made during the course of and in furtherance of an ongoing conspiracy. Under these circumstances, admission of the testimony was not error. See Anderson v. United States, 1974, 417 U.S. 211, 218, 94 S.Ct. 2253, 2259, 41 L.Ed.2d 20, 27-28. Third, Defendant urges that there was insufficient evidence to support the verdict as to two counts of the indictment. Defendant was convicted and sentenced under a general verdict and sentence, so that we may not escape ruling on this claim on the basis of the concurrent sentence doctrine. In ruling on this it is important that Defendant did not move for a directed judgment of acquittal. Consequently, the convictions" }, { "docid": "4438094", "title": "", "text": "conviction of William Hollis Price for a determination as to the legality of the search. If the district court finds that the search was proper, a new judgment of conviction should be entered. If the search is found to have been illegal and the resulting evidence must be suppressed, a new trial should be held. The district court should make findings of fact on these issues. II. The arguments raised by John Thomas Price can be disposed of more briefly. We find no merit to any of them. First, John Price seeks derivative standing to challenge the search and seizure because William, or George Price, who was indicted in the Middle District of Pennsylvania, has standing. This will not do. He was not charged with possession, and the search was not directed against him. Nor has he shown any proprietary interest in the premises, and there is no indication that he was on the New Milford property at the time of the search. As held in Alderman v. United States, 394 U.S. 165, 171-172, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969), a person whose rights were not violated by the search is given no special standing as a co-defendant or co-conspirator. Accord, United States ex rel. Cardaio v. Cassacles, 446 F.2d 632, at 635 (2 Cir., 1971). John Thomas Price next contends that the trial judge should have granted defendants’ motion for a new jury after Mirabelli pleaded guilty. Mirabelli changed his plea after the jury had been sworn but before trial commenced, and then testified for the government at trial. But the plea was taken outside the presence of the jury, and thus no error was committed. United States v. Kelly, 349 F.2d 720, 767-768 (2 Cir. 1965), cert. denied, 384 U.S. 947, 86 S.Ct. 1467, 16 L.Ed.2d 544 (1966); United States v. Crosby, 294 F.2d 928 (2 Cir. 1961), cert. denied [Mittleman v. United States, Pettit v. United States, Meredith v. United States], 368 U.S. 984, 82 S.Ct. 599, 7 L.Ed.2d 523 (1962). Appellants can hardly complain that Judge Curtin should have cautioned the jury at the beginning" }, { "docid": "9877527", "title": "", "text": "brother Rene Rivera were statements made during the course of that conspiracy in furtherance of that conspiracy. That statement, coming within minutes after the attempted robbery, was sufficient to support the trial judge’s determination that the conspiracy had not been abandoned and was ongoing at that time. As to the second question, whether or not the statement was made in furtherance of the conspiracy to rob the bank, the statement was a request for aid. Rene Rivera testified that immediately after the statement was made he took the clothes from Roberto and threw them in the incinerator. From this act it could be inferred that the statement by Roberto Rivera was made within minutes after the aborted robbery attempt to gain Rene Rivera’s help in destroying the clothes. We find that the statement was not “crucial or devastating” to Rucker’s case. Roberto Rivera’s testimony describing in thorough detail both the planning and the robbery was corroborated by other evidence. Roberto’s statements to Rene concerning the destruction of the clothes was in furtherance of the conspiracy to rob the bank. It was made in furtherance of and during the course of the conspiracy, was supported by sufficient independent evidence of conspiracy, and so was properly admitted under Rule 801(d)(2)(E). The statements by Rene were cumulative, repetitive, and corroborated to such a point that we cannot believe that the verdict on the rights of the parties could have been appreciably affected by this reported snatch of conversation. A complete answer to Rucker’s contention, however, is that the error (assuming error was made in the admission of the statement) was harmless. This is a proper case for the application of Rule 52(a) of the Fed.R.Cr.P. The record clearly and conclusively reveals the guilt of Rucker, and we cannot conceive how this one admission could possibly influence the jury to reach an improper verdict. Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973); Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); Lutwak v. United States, 344 U.S. 604, 73 S.Ct. 481, 97 L.Ed. 593" }, { "docid": "4438097", "title": "", "text": "States v. Bennett, 409 F.2d 888 (2 Cir.) cert. denied [Haywood v. United States, Jessup v. United States], 396 U.S. 852, 90 S.Ct. 113, 117, 24 L.Ed.2d 101 (1969); United States v. Levinson, 405 F.2d 971, 987 (6 Cir. 1968) cert. denied [Strang v. United States], 395 U.S. 906, 89 S.Ct. 1746, 23 L.Ed.2d 219 (1969). No special instructions to the jury on this evidence were necessary, and none were requested. The next set of objections concerns the trial judge’s handling of jury requests in the course of their deliberations. First, it is claimed that Judge Curtin far exceeded the jury’s request for a clarification of the theft charge against John Price in Count II. The argument is frivolous. After Judge Cur-tin had briefly defined “theft” in one sentence, the jury indicated that it still did not understand, so he properly expanded his explanation. Appellant points to no errors in this supplemental charge, and we find none. Second, it is argued that the court erred in refusing to re-read Mirabelli’s testimony. The jury asked “to see the testimony of F. Mirabelli,” but the transcript was only partially completed. Judge Curtin acknowledged that he could have read all 94 pages of testimony to the jury, but he felt this would give a lopsided view. Such determinations are committed to the sound discretion of the trial judge. United States v. DePalma, 414 F.2d 394 (9 Cir. 1969), cert denied, 396 U.S. 1046, 90 S.Ct. 697, 24 L.Ed.2d 690 (1970); United States v. Braxton, 417 F.2d 878 (5 Cir. 1969); Pinckney v. United States, 352 F.2d 69 (5 Cir. 1965); see United States v. Desist, 384 F.2d 889 (2 Cir. 1967), aff’d, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969) ; cf. Tyler v. United States, 361 F.2d 862 (10 Cir. 1966). John Thomas Price’s final contention is that the trial court erred in refusing his request to charge that the jury could convict for a misdemeanor if they found that the value of the stolen goods did not exceed one hundred dollars. The argument is frivolous. It was undisputed that" }, { "docid": "8066567", "title": "", "text": "after receiving full warnings as to his rights. No evidence to the contrary appears in the record. See United States v. Nielsen, 392 F.2d 849 (7th Cir. 1968). The motion to suppress agent Tolan’s testimony was properly denied. IV. THE POST-CONSPIRACY STATEMENT Pyne also assigns as error a ruling of the trial court which permitted the jury to apply against Pyne a post-conspiracy statement made by Fellabaum to agent Toian. Toian testified that on June 20, 1966, Fellabaum told him about the meeting with Kaiser and the events that ensued in the hotel room. This admission to Toian took place after the conspiracy, by the terms of the indictment, had ended. It was not, therefore, admissible against Pyne, a co-conspirator. Krulewitch v. United States, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790 (1949) ; Fiswick v. United States, 329 U.S. 211, 67 S.Ct. 224, 91 L.Ed. 196 (1946). Fellabaum’s statement to Toian did not directly inculpate Pyne, and therefore the error did not reach constitutional proportions un,der Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Cf. United States v. Lyon, 397 F.2d 505 (7th Cir. 1968) ; United States v. Guajardo-Melendez, 401 F.2d 35 (7th Cir. 1968). Upon objection, the trial judge originally ruled that Fellabaum’s admission was not to be applied to Pyne, and he instructed the jury that “the record may show that this testimony at this time pertains only to the defendant Fella-baum”. (Tr. 77) Again, a few moments later, the judge stated “at this time it applies only to the defendant Fellabaum”. (Tr. 78) See Lutwak v. United States, 344 U.S. 604, 73 S.Ct. 481, 97 L.Ed. 593 (1953). Two days later, the government moved to have the testimony of another witness admitted against both Pyne and Fellabaum on the ground that a prima facie case of conspiracy had been proved. After hearing argument in that matter, the court ruled that “All of the evidence that has been introduced, that the court indicated would apply just to either the defendant Fellabaum or to the defendant Pyne, or that would" }, { "docid": "23141812", "title": "", "text": "evidence was inadmissible because it concerned matters and dealings with which he had no connection and because the acts were committed subsequent to the termination of the conspiracy with which he was allegedly connected. Strang relies on the well settled principle of law that the declarations of a co-conspirator made after the termination of the conspiracy and not in furtherance thereof are admissible only against the declarant and not against the other alleged conspirators. See, Krulewitch v. United States, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790. While Krulewitch may apply to declarations of conspirators, the case does not govern evidence of acts of co-conspirators committed subsequent to the termination of the alleged conspiracy which are admissible if relevant to prove the conspiracy and which demonstrate its existence and illegal purposes. Lutwak v. United States, 344 U.S. 604, 73 S.Ct. 481, 97 L.Ed. 593, rehearing den. 345 U.S. 919, 73 S.Ct. 726, 97 L.Ed. 1352. Cerwin’s testimony was relevant to prove the aims of the conspirators and the manner in which similar frauds were perpetrated and as such were admissible against all appellants. Appellants Levinson and Franklin argue that the admission of such testimony was contrary to the trial judge’s original order severing counts 26 through 33 from the trial herein and was extremely prejudicial to their positions. The mere granting of a severance does not thereafter preclude a trial judge from admitting evidence relating to crimes which are the subject of the severed counts of an indictment if such evidence satisfies the applicable rules of relevancy to the issues of the case on trial. As indicated above such evidence was clearly admissible. We hold that the trial judge did not abuse his discretion and thereby commit error in permitting Cerwin to testify concerning the securing of FHA mortgage insurance on the Reese and Spates loans. During the course of the trial, over the objection of Franklin’s and Levinson’s counsel, F.B.I. Agent Bolton testified to the substance of an oral statement made to him by their co-defendant Strang and the government introduced into evidence the unsigned copy of the" }, { "docid": "4193978", "title": "", "text": "two pictures of Lannom. Were the rule of Chimel v. California (1969) 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 applicable to searches conducted before the Chimel decision, this search incident to John’s arrest would have been invalid, but we have held to the contrary in Williams v. United States (9th Cir. 1969) 418 F.2d 159, cert. granted 397 U.S. 986, 90 S.Ct. 1120, 25 L.Ed.2d 394 (1970). Matching this search against the pr e-Chimel standards of United States v. Rabinowitz (1950) 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 and Harris v. United States (1947) 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399, we hold the search valid. (See also Jack v. United States (9th Cir. 1967) 387 F.2d 471, 473-474, cert. denied 392 U.S. 934, 88 S.Ct. 2299, 20 L.Ed.2d 1393 (1968).) He also complains that certain of the testimony of Wright concerning transactions between him and John should have been stricken because those transactions occurred after the alleged conspiracy had ended. There was no error in admitting the challenged portions of Wright’s testimony, because that testimony related to a conspirator’s acts tending to prove the existence of the conspiracy and, as such, the evidence was admissible against both the actor and his coconspirators even if the conspiracy had terminated at the time those acts took place. (Lutwak v. United States (1953) 344 U.S. 604, 618, 73 S.Ct. 481, 97 L.Ed. 593; United States v. Bennett (2d Cir.) 409 F.2d 888, 893, cert. denied sub nom. (1969) Haywood v. United States, 396 U.S. 852, 90 S.Ct. 113, 24 L.Ed.2d 101.) John next assigns as error the introduction of four of seven cashier’s checks offered against him. A bank teller testified that John purchased three of the checks from her. The bank’s records indicate that John purchased all seven checks. On two of the checks the address listed for the purchaser is the same as that of the residence where John was arrested. A receipt for one of the questioned checks was found in the search of John’s home. The direct and circumstantial evidence adequately supplied" }, { "docid": "4193979", "title": "", "text": "portions of Wright’s testimony, because that testimony related to a conspirator’s acts tending to prove the existence of the conspiracy and, as such, the evidence was admissible against both the actor and his coconspirators even if the conspiracy had terminated at the time those acts took place. (Lutwak v. United States (1953) 344 U.S. 604, 618, 73 S.Ct. 481, 97 L.Ed. 593; United States v. Bennett (2d Cir.) 409 F.2d 888, 893, cert. denied sub nom. (1969) Haywood v. United States, 396 U.S. 852, 90 S.Ct. 113, 24 L.Ed.2d 101.) John next assigns as error the introduction of four of seven cashier’s checks offered against him. A bank teller testified that John purchased three of the checks from her. The bank’s records indicate that John purchased all seven checks. On two of the checks the address listed for the purchaser is the same as that of the residence where John was arrested. A receipt for one of the questioned checks was found in the search of John’s home. The direct and circumstantial evidence adequately supplied the foundation for the admission of all the checks. His final evidentiary challenge is equally unavailing. He says that there was inadequate foundation for the admission against him of telephone records relating to a telephone listed in Rachel Robles’ name because there was no direct evidence that he used that telephone to place the calls to the Hernandez residence. We think the circumstantial evidence was more than adequate to identify him as the caller. Direct proof of his identity is not required (See United States v. Roselli (9th Cir. 1970) 432 F.2d 879, 896, cert. denied, 401 U.S. 924, 91 S.Ct. 883, 27 L.Ed.2d 828 (1971).) We reject John’s contention that the court erred in refusing to give two instructions that he had proposed. The first concerned the purpose for which the court admitted into evidence eight pounds of narcotics seized from Palma at the border. The requested charge instructed the jury that the exhibit was admitted “for the limited purpose of corroborating the testimony of Palma that he had access to certain quantities of" }, { "docid": "5683507", "title": "", "text": "in Apollo noted that the Supreme Court’s decision in Lutwak v. United States, 344 U.S. 604, 73 S.Ct. 481, 97 L.Ed. 593 (1953), established the following requirement: a minimum obligation on the trial judge in a conspiracy case in which extrajudicial statements of alleged co-conspirators are proffered to give a cautionary instruction on the limited uses of hearsay testimony, explaining clearly to the jury the requirement that the conspiracy itself and each defendant’s participation in it must be established by independent non-hearsay evidence which must be given either prior to the introduction of any evidence or immediately upon the first instance of such hearsay testimony. See Menendez v. United States, 393 F.2d 312 (5 Cir. 1968), cert. denied, 393 U.S. 1029, 89 S.Ct. 639, 21 L.Ed.2d 572 (1969). Testimony concerning the declarations of co-conspirators may be admitted before the existence of the conspiracy is established by independent evidence. But the unmistakable hazard of allowing this procedure highlights the need for the court to condition the minds of the jurors so that they will not fail to remember that none of this hearsay will bootstrap the necessary establishment of the conspiracy itself by firsthand proof. Therefore, we must first determine whether the trial judge gave a proper cautionary instruction to the jury at the time the hear say testimony was offered so as to defuse the dangerous nature of the co-conspirators’ hearsay statements. Appellant’s objection is addressed to the testimony of Brenner and Gillespie with respect to the content of telephone conversations they had with Fiore and Cotrone relating to the payments made to Tilton. The record reveals that the trial judge properly instructed the jury concerning the co-conspirators’ statements in accordance with the requirements of Apollo as follows: You should remember that any admission or incriminating statement made or act done outside of court by one person may not be considered as evidence against any defendant who was not present and did not hear the statement made or see the act done. However, if you find beyond a reasonable doubt that from independent evidence a conspiracy existed and that a" }, { "docid": "21913777", "title": "", "text": "prejudicial. Jenkins testified at trial from his present recollection concerning roughly a dozen cash payments to Judge Campbell and the provision of other favors, and the defense was not deprived of effective cross-examination as to these events. Jenkins was on the stand for six days of the trial, and any erroneous ruling as to the admissibility of evidence concerning the exact year these payments began could hardly have been prejudicial. See Lutwak v. United States, 344 U.S. 604, 619-20, 73 S.Ct. 481, 490, 97 L.Ed. 593 (1953). Appellants also object to the government’s introduction of evidence concerning the conversation between Jenkins and Jones that took place after Jenkins’ first grand jury appearance. Although it is well settled that statements made by co-conspirators after the termination of the conspiracy generally may not be admitted against co-conspirators who were not privy to those conversations as substantive evidence of their association with the conspiracy, Krulewitch v. United States, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790 (1949), appellants’ objection misapprehends the only purpose for which this evidence was introduced. We must also note that the defendants made no objection at trial to the questions put to Jenkins and Jones about their meeting, and that any evidentiary error here could hardly be considered plain. See United States v. McCray, 433 F.2d 1173, 1175 n.l (D.C.Cir.1970). C. Jury Instructions The district court instructed the jury that the offense of giving a bribe charged in Count III of the indictment “necessarily includes the lesser offense of giving an illegal gratuity.” The court then stated five elements of that offense, of which the final two were “that the defendant gave the money for or because of an official act,” and “that the defendant acted knowingly and willfully.” Tr. 6287-88. The elements of the offense of receiving an illegal gratuity were substantially the same, including that the defendant “received the money for or because of an official act performed or to be performed by him,” and that the defendant acted “knowingly and willfully.” Tr. 6293. Appellants urge that these instructions were erroneous on two grounds. First, relying" }, { "docid": "2002429", "title": "", "text": "substance of interviews he conducted with the defendants during his case investigation. During the interviews the defendants admitted signing certain documents with knowledge of their inaccurate contents and participating in the loan consolidation meetings. They also admitted acting with knowledge their actions were being taken for Copple’s benefit. All of these interviews took place after November 1981. We need not evaluate the basis for the district court’s ruling on the admissibility of the challenged statements in the circumstances of this case. “[I]f the grounds given by the district court for admissibility of the evidence are incorrect, the court’s ruling will be reversed only if there are no grounds under which the evidence could properly have been admitted.” United States v. Ray, 768 F.2d 991, 994 (8th Cir. 1985). After reviewing the record, we conclude the defendants’ statements about which Campbell and others testified were independently admissible as admissions of parties. Fed.R.Evid. 801(d)(2)(A). As admissions, the statements were admissible without regard to when they were made in relation to the duration of the conspiracy. See United States v. DeLuna, 763 F.2d 897, 917 (8th Cir.), cert. denied, 474 U.S. 980, 106 S.Ct. 382, 88 L.Ed.2d 336 (1985); United States v. Smith, 600 F.2d 149, 152 (8th Cir.1979). Nor was the jury left in doubt concerning its consideration of the statements. Before Campbell testified and again in the final instructions, the jury was cautioned it was not permitted to consider these statements against all defendants, but only against the defendant who made the statement. Thus, the district court’s mistaken reliance on an inappropriate theory of admissibility is harmless error. See Fed.R.Crim.P. 52(e); Metallurgical Indus., Inc. v. Fourtek, Inc., 790 F.2d 1195, 1207 (5th Cir.1986). Finally, contrary to defendants’ contention, the postconspiracy evidence, once properly admitted, may be considered by the jury against individual defendants on both the aiding and abetting and conspiracy charges. See Lutwak v. United States, 344 U.S. 604, 618, 73 S.Ct. 481, 489, 97 L.Ed. 593 (1953); DeLuna, 763 F.2d at 917; Smith, 600 F.2d at 152 & n. 2. VI. Copple, Saylor-Robinson, and Kahle argue much of the" }, { "docid": "4438096", "title": "", "text": "of trial, for he asked counsel whether they wanted him to say anything and they stood mute. Both in his opening statement and charge to the jury, Judge Curtin cautioned that the testimony of accomplices should be given especially close and searching scrutiny, and that the jury should consider “any demonstrated hope of leniency or reward to be gained through testifying.” See United States v. Kelly, supra, 349 F.2d at 767-768. Defendants also argue that the trial court erred in receiving testimony concerning events after the termination of the conspiracy. The evidence which was admitted did not concern statements made by eo-eonspirators after the conspiracy had ended. Instead the alleged error was allowing the police to testify regarding the fruits of their search, and receiving the testimony of Baker and Davison concerning the burning of copper wire on the New Milford property in the weeks after the theft. This evidence was properly admitted against both defendants on all counts. United States v. Lutwak, 344 U.S. 604, 617-618, 73 S.Ct. 481, 97 L.Ed. 593 (1953); United States v. Bennett, 409 F.2d 888 (2 Cir.) cert. denied [Haywood v. United States, Jessup v. United States], 396 U.S. 852, 90 S.Ct. 113, 117, 24 L.Ed.2d 101 (1969); United States v. Levinson, 405 F.2d 971, 987 (6 Cir. 1968) cert. denied [Strang v. United States], 395 U.S. 906, 89 S.Ct. 1746, 23 L.Ed.2d 219 (1969). No special instructions to the jury on this evidence were necessary, and none were requested. The next set of objections concerns the trial judge’s handling of jury requests in the course of their deliberations. First, it is claimed that Judge Curtin far exceeded the jury’s request for a clarification of the theft charge against John Price in Count II. The argument is frivolous. After Judge Cur-tin had briefly defined “theft” in one sentence, the jury indicated that it still did not understand, so he properly expanded his explanation. Appellant points to no errors in this supplemental charge, and we find none. Second, it is argued that the court erred in refusing to re-read Mirabelli’s testimony. The jury asked “to" }, { "docid": "21224943", "title": "", "text": "ample evidence, apart from the admissions and statements of Forte, from which the jury might reasonably infer the existence of a concert of action on the part of appellants. Williams v. United States, 289 F.2d 598 (9th Cir. 1961); Fuentes v. United States, 283 F.2d 537 (9th Cir. 1960). If it could be said that the extrajudicial statements made after the robbery were inadmissible against the non-declarant, the error, if any, would be harmless under Rule 52(a) of the Federal Rules of Criminal Procedure, 18 U.S.C.A. Since the hearsay rule only excludes declarations and not acts, Firman’s testimony that Forte produced a roll of money and forced Firman to pat his gun was admissible as the description of an act. Lutwak v. United States, 344 U.S. 604, 617, 73 S.Ct. 481, 97 L.Ed. 593 (1953). Not only did each appellant admit his participation in the robbery, but both appellants were identified as being at the scene of the crime. Hence we cannot say that the admission of their declarations against the non-declarant had substantial influence in bringing about the verdict. See Krulewitch v. United States, supra, 336 U.S. at 444, 445, 69 S.Ct. at 718-719, 93 L.Ed. 790; Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). It will be noticed that the Court in admitting certain testimony limited some of it only against appellant Forte on all counts; some was admitted against Forte on all counts and against appellant Atkins only on the conspiracy count; some was admitted against Atkins on all counts and against Forte only on the conspiracy count; and some against both appellants on all counts. Notwithstanding the trial judge’s admonition to the jury when this testimony was received as evidence and the use of proper limiting instructions in his charge, appellants contend that the instructions given to the jury were not sufficiently clear so that it was reasonably possible for the jury to follow them. We do not agree. The instructions clearly presented the law applicable to the facts of this case. We also note that appellants did not object" }, { "docid": "4438095", "title": "", "text": "S.Ct. 961, 22 L.Ed.2d 176 (1969), a person whose rights were not violated by the search is given no special standing as a co-defendant or co-conspirator. Accord, United States ex rel. Cardaio v. Cassacles, 446 F.2d 632, at 635 (2 Cir., 1971). John Thomas Price next contends that the trial judge should have granted defendants’ motion for a new jury after Mirabelli pleaded guilty. Mirabelli changed his plea after the jury had been sworn but before trial commenced, and then testified for the government at trial. But the plea was taken outside the presence of the jury, and thus no error was committed. United States v. Kelly, 349 F.2d 720, 767-768 (2 Cir. 1965), cert. denied, 384 U.S. 947, 86 S.Ct. 1467, 16 L.Ed.2d 544 (1966); United States v. Crosby, 294 F.2d 928 (2 Cir. 1961), cert. denied [Mittleman v. United States, Pettit v. United States, Meredith v. United States], 368 U.S. 984, 82 S.Ct. 599, 7 L.Ed.2d 523 (1962). Appellants can hardly complain that Judge Curtin should have cautioned the jury at the beginning of trial, for he asked counsel whether they wanted him to say anything and they stood mute. Both in his opening statement and charge to the jury, Judge Curtin cautioned that the testimony of accomplices should be given especially close and searching scrutiny, and that the jury should consider “any demonstrated hope of leniency or reward to be gained through testifying.” See United States v. Kelly, supra, 349 F.2d at 767-768. Defendants also argue that the trial court erred in receiving testimony concerning events after the termination of the conspiracy. The evidence which was admitted did not concern statements made by eo-eonspirators after the conspiracy had ended. Instead the alleged error was allowing the police to testify regarding the fruits of their search, and receiving the testimony of Baker and Davison concerning the burning of copper wire on the New Milford property in the weeks after the theft. This evidence was properly admitted against both defendants on all counts. United States v. Lutwak, 344 U.S. 604, 617-618, 73 S.Ct. 481, 97 L.Ed. 593 (1953); United" }, { "docid": "22291777", "title": "", "text": "alleged in the indictment had terminated. Appellants claim that it was reversible error for this evidence to have been introduced at trial. They argue strenuously that the evidence is too prejudicial to be admitted in view of its only slight probative impact. See United States v. Papadakis, 510 F.2d 287, 294-95 (2d Cir.), cert. denied, 421 U.S. 950, 95 S.Ct. 1682, 44 L.Ed.2d 104 (1975). Evidence obtained by searches conducted after the termination of a conspiracy has frequently been held admissible to prove the existence of the conspiracy even though occurring after its conclusion. For example, in Lutwak v. United States, 344 U.S. 604, 617, 73 S.Ct. 481, 97 L.Ed. 593 (1953), in a case involving a conspiracy to enter into false marriages for the purpose of circumventing immigration restrictions, the Supreme Court held admissible evidence of post-conspiracy conduct which showed the false character of the marriages and the fraudulent intent of the parties in entering upon them. Compare Anderson v. United States, 417 U.S. 211, 94 S.Ct. 2253, 41 L.Ed.2d 20 (1974) (post-conspiracy declarations admissible where not offered to prove truth of declaration and hence not hearsay), with United States v. Krulewitch, 336 U.S. 440, 443, 69 S.Ct. 716, 93 L.Ed. 790 (1949) (declarations of one conspirator after conspiracy has ended inadmissible). The rule these cases have articulated is that “acts of one alleged conspirator could be admitted into evidence against the other conspirator, if relevant to prove the existence of the conspiracy, ‘even though they might have occurred after the conspiracy ended.’ ” Anderson v. United States, supra, 417 U.S. at 219, 94 S.Ct. 2260; quoting Lutwak v. United States, supra, 344 U.S. at 618, 73 S.Ct. 481. This reasoning has been applied in both United States v. Tramunti, supra, 513 F.2d at 1116, and United States v. Bennett, 409 F.2d 888, 895-96 (2d Cir.), cert. denied, 396 U.S. 852, 90 S.Ct. 113, 24 L.Ed.2d 101 (1969), to find that narcotics seized after the termination of a conspiracy are admissible to prove the prior existence of the conspiracy. In Bennett the court allowed into evidence the fruits of" }, { "docid": "3986321", "title": "", "text": "Veal made no statement regarding the subsequent purchase of six hundred and fifty pounds until after paying for three hundred and fifty pounds. Thus, evidence of any statement made by Veal regarding the six hundred and fifty pound negotiation was irrelevant as beyond the scope of the conspiracy as charged. Fed.R.Evid. 402. Evidence of statements made by Cawthon after his arrest was hearsay, Fed.R.Evid. 802, and not subject to the exception that declarations of one conspirator may be used against another if made during the course of or in furtherance of the conspiracy charged, see, e.g., Lutwak v. United States, 344 U.S. 604, 618, 73 S.Ct. 481, 489-90, 97 L.Ed. 593 (1953). The record shows there was evidence that the deal underlying the conspiracy count charged here was for one thousand pounds of marijuana. Thus, Veal’s statements regarding the disposal of the remaining six hundred and fifty pounds were probative of the facts, although possibly not in accord with the defendants’ theory of the case. Regarding the statements of Cawthon, the acts or statements of an alleged co-conspirator may be admitted at trial if relevant to prove the conspiracy existed, even if made after the conspiracy ended. Anderson v. United States, 417 U.S. 211, 219, 94 S.Ct. 2253, 2260, 41 L.Ed.2d 21 (1974); Lutwak v. United States, 344 U.S. 604, 618, 73 S.Ct. 481, 489-90, 97 L.Ed. 593 (1953). Thus, statements made by Cawthon after his arrest were correctly received into evidence. “Future Conspiracy” Instruction The defendant Veal requested the following written instruction: If you find that the Defendant’s statements and actions were directed to a future transaction and not the alleged conspiracy at trial, then you should find the Defendant not guilty. The trial court declined to give this instruction over defense counsel’s objection. “It is elementary law that the defendant in a criminar case is entitled to have presented instructions relating to a theory of defense for which there is any foundation in the evidence.” Perez v. United States, 297 F.2d 12, 15, 16 (5th Cir.1961). This does not, however, entitle the defendant to a charge that is" } ]

[ { "docid": "555373", "title": "", "text": "regulatory scheme’s random inspections, the state trooper in this case had no authority to stop Herrera. The trooper’s seizure of Herrera, therefore, violated the Fourth Amendment. C. Whether the good-faith exception to the application of the exclusionary rule should apply under the circumstances of this case. Having concluded that there was a Fourth Amendment violation in this case because Herrera’s truck was not a commercial vehicle subject to the random inspections permitted under the Kansas scheme regulating motor carriers, we must decide what to do about that violation. That question leads us to United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). In Leon, the Supreme Court accepted that there had been a Fourth Amendment violation when police officers seized evidence pursuant to a search warrant that a court later determined was not supported by probable cause. See id. at 902-03, 905, 104 S.Ct. 3405. The Supreme Court, therefore, had to decide the appropriate remedy for the Fourth Amendment violation occurring in that case. See id. at 906, 104 S.Ct. 3405 (noting that “[w]hether the exclusionary sanction is appropriately imposed [as a remedy] in a particular case, our decisions make clear, is an issue separate from the question whether the Fourth Amendment rights of a party seeking to invoke the rule were violated by police conduct”) (quotation omitted); see also United States v. Nielson, 415 F.3d 1195, 1202 (10th Cir.2005), petition for cert. filed, 74 U.S.L.W. 3532 (U.S. Mar. 10, 2006) (No. 05-1152). Ordinarily, courts will remedy a Fourth Amendment violation by invoking the exclusionary rule to exclude the Government’s introduction of the unlawfully seized evidence as direct evidence against the defendant in a criminal prosecution. See Illinois v. Krull, 480 U.S. 340, 347, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987); see also James v. Illinois, 493 U.S. 307, 311, 110 S.Ct. 648, 107 L.Ed.2d 676 (1990) (noting exclusionary rule is the “principal mode of discouraging lawless police conduct. Without it the constitutional guarantee against unreasonable searches and seizures would be a mere form of words.”) (alteration, quotation omitted); United States v. Hill, 60 F.3d" } ]

[ { "docid": "13128453", "title": "", "text": "amend. IV. Probable cause exists when, under the totality of the circumstances, “there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). The government concedes that the warrant here was not supported by probable cause, and that the search of Luong’s residence was therefore unconstitutional. However, the government maintains that suppression of the fruits of this unconstitutional search is unnecessary because the officers relied on the warrant in good faith, as set forth in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). In Leon, the Supreme Court announced a “good faith” exception to the application of the exclusionary rule. Id. at 922-23, 104 S.Ct. 3405. Working from the premise that the exclusionary rule is a judicially created, as opposed to constitutionally required, remedy for Fourth Amendment violations, the Court reasoned that where police conduct is “pursued in complete good faith,” the rule’s deterrent function “loses much of its force.” Id. at 919, 104 S.Ct. 3405 (quoting United States v. Peltier, 422 U.S. 531, 539, 95 S.Ct. 2313, 45 L.Ed.2d 374 (1975) (internal quotation marks omitted)). As such, the Court concluded that the exclusionary rule should not bar the government’s introduction of evidence obtained by officers acting in objectively reasonable reliance on a search warrant that is subsequently invalidated. Id. at 918-21, 104 S.Ct. 3405. The Court stressed that the good faith test is an objective one. We ask not what the executing officer believed, or could have believed, but “whether a reasonably well trained officer would have known that the search was illegal despite the magistrate’s authorization.” Id. at 922, 104 S.Ct. 3405 n. 23; United States v. Clark, 31 F.3d 831, 835 (9th Cir.1994). While this inquiry is necessarily tied to the facts of each case, the Supreme Court has identified at least four situations in which reliance on a warrant cannot be considered objectively reasonable, and therefore the good faith exception cannot apply: (1) when the affiant knowingly or" }, { "docid": "19779998", "title": "", "text": "to one claim constituted waiver). Therefore, the district court’s invalidation of the protective sweep must stand. The only issues the government properly raised before this court are whether the search warrant validly issued on a showing of probable cause and, if not, whether the search could be saved by application of the good-faith exception to the exclusionary rule. rv. The Fourth Amendment provides that “no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const, amend. IV. Whether the police had probable cause to search determines whether a search conducted pursuant to a warrant comports with the Fourth Amendment. Warden v. Hayden, 387 U.S. 294, 301-02, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); Thacker v. City of Columbus, 328 F.3d 244, 252 (6th Cir.2003). “Though evidence obtained in violation of the Fourth Amendment is generally excluded, the Supreme Court has held that the exclusionary rule ‘should be modified so as not to bar the admission of evidence seized in reasonable, good-faith reliance on a search warrant that is subsequently held to be defective.’ ” United States v. Frazier, 423 F.3d 526, 533 (6th Cir.2005) (quoting United States v. Leon, 468 U.S. 897, 905, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984)). The district court found that probable cause was so lacking that neither was the search warrant valid nor was the officers’ belief in its validity reasonable. Therefore, the district court found that the search violated the Fourth Amendment and suppressed the evidence seized. A. “When reviewing decisions on motions to suppress, this court will uphold the factual findings of the district court unless clearly erroneous, while legal conclusions are reviewed de novo.\" United States v. Weaver, 99 F.3d 1372, 1376 (6th Cir.1996). This court views the evidence “in the light most likely to support the district court’s decision.” United States v. Williams, 962 F.2d 1218, 1221 (6th Cir.1992) (internal quotation omitted). B. A search warrant comports with the Fourth Amendment if it was issued by a “magistrate [who] had a" }, { "docid": "23371902", "title": "", "text": "be suppressed if the good-faith exception to the exclusionary rule, set out in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), applies. The applicability of the Leon good-faith exception is a question of law which this court reviews de novo. See Corral-Cotral, 899 F.2d at 929. In Leon, the Supreme Court modified the Fourth Amendment exclusionary rule by holding that evidence seized pursuant to a search warrant later found to be invalid need not be suppressed if the executing officers acted in objectively reasonable, good-faith reliance on the warrant. See 468 U.S. at 922, 104 S.Ct. 3405. The Leon Court stated that the “suppression of evidence obtained pursuant to a warrant should be ordered only on a case-by-case basis and only in those unusual cases in which exclusion will further the purposes of the exclusionary rule.” Id. at 918, 104 S.Ct. 3405. The Court explained that the exclusionary rule’s purpose is “to deter police misconduct rather than to punish the errors of judges and magistrates.” Id. at 916, 104 S.Ct. 3405. The Court further reasoned that police misconduct would not be deterred by excluding evidence seized by officers acting pursuant to a search warrant in the objectively reasonable belief that their conduct did not violate the Fourth Amendment. See id. at 918-21,104 S.Ct. 3405. Although the Court indicated that evidence seized pursuant to a warrant should only be suppressed in unusual cases, the Court did recognize that there are circumstances in which an officer’s reliance on a warrant could not be objectively reasonable and suppression is appropriate. See id. at 922-23, 104 S.Ct. 3405. The Court described four such situations, two of which Rowland argues apply here. First, an officer’s reliance is not objectively reasonable when the warrant is “based on an affidavit ‘so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.’ ” Id. at 923, 104 S.Ct. 3405 (quoting Brown v. Illinois, 422 U.S. 590, 610-11, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975) (Powell, J., concurring in part)). Second, the good-faith exception will not apply" }, { "docid": "13428717", "title": "", "text": "the magistrate judge lacked a sufficient basis for his probable cause determinations, that fact alone does not warrant the “extreme sanction of exclusion.” Leon, 468 U.S. at 926, 104 S.Ct. 3405. In Leon, the Supreme Court established the good faith exception to the exclusionary rule, carefully tethering the exclusionary remedy to its overarching policy of “deterring official unlawlessness.” Id. at 907 n. 6, 104 S.Ct. 3405 (citations and quotations omitted). Balancing the exclusionary remedy’s “substantial costs” against its deterrent “benefits,” Leon held that the exclusionary remedy was not justified where officers act in the “objectively reasonable belief that their conduct d[oes] not violate the Fourth Amendment.” Id. at 918, 104 S.Ct. 3405. If an officer ob tains a warrant and executes it in good faith, “there is no police illegality and thus nothing to deter.” Id. at 921, 104 S.Ct. 3405. Accordingly, a court should not suppress evidence seized under a warrant’s authority, even if that warrant is subsequently invalidated, unless “a reasonably well trained officer would have known that the search was illegal despite the magistrate’s authorization.” United States v. Zimmerman, 277 F.3d 426, 436 (3d Cir.2002) (quoting Leon, 468 U.S. at 922 n. 23, 104 S.Ct. 3405). Ordinarily, the “mere existence of a warrant ... suffices to prove that an officer conducted a search in good faith,” and will obviate the need for “any deep inquiry into reasonableness.” Hodge, 246 F.3d at 308 (citing Leon, 468 U.S. at 922 n. 23, 104 S.Ct. 3405); Leon, 468 U.S. at 922, 104 S.Ct. 3405 (citation and quotation omitted). Indeed, we neither expect nor require police to perform complex legal analysis in the field, for they are untrained in the law and are often called to make “hurried judgments].” Zimmerman, 277 F.3d at 436 (quoting Leon, 468 U.S. at 922 n. 23, 104 S.Ct. 3405). In “narrow circumstances,” however, the good faith doctrine is not sufficient to override the warrant’s lack of probable cause. Relevant for our purposes, the good faith exception does not apply where the affidavit is “so lacking in indicia of probable cause as to render official belief" }, { "docid": "23656879", "title": "", "text": "would protect his legitimate interests and also permit a thorough search for evidence of drug trafficking. See Brooks, 427 F.3d at 1251 (“[N]or has Brooks suggested how the search in this case would have been different with a scripted search protocol.”). On these facts, we cannot say the Fourth Amendment was violated. d. Leon Good Faith Even if the warrant was not sufficiently particularized to comply with the Fourth Amendment, the evidence need not be excluded if the search qualified under the good faith doctrine of United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). Whether the “good faith exception” to the exclusionary rule should be applied is a question of law, subject to de novo review by this Court. Leary, 846 F.2d at 606. In Leon, the Supreme Court held the purpose of the exclusionary rule is to deter police misconduct and “suppression of evidence obtained pursuant to a warrant should be ordered only on a case-by-case basis and only in those unusual cases in which exclusion will further” that purpose. 468 U.S. at 918, 104 S.Ct. 3405. “Where an officer acting with objective good faith obtains a search warrant from a detached and neutral magistrate and the executing officers act within its scope, there is nothing to deter.” United States v. Nolan, 199 F.3d 1180, 1184 (10th Cir.1999). Burgess argues the Leon exception does not apply here because the warrant was “so facially deficient ... the executing officers [could] not [have] reasonably presumed] it to be valid.” Leon, 468 U.S. at 923, 104 S.Ct. 3405. It is the government’s burden to prove “its agents’ reliance upon the warrant was objectively reasonable.” United States v. Corral-Corral, 899 F.2d 927, 932 (10th Cir.1990) (quotations omitted). “Just as reviewing courts give ‘great deference’ to the decisions of judicial officers who make probable-cause determinations, police officers should be entitled to rely upon the probable-cause determination of a neutral magistrate when defending an attack on their good faith for either seeking or executing a warrant.” Id. at 939. It is the magistrate’s responsibility to determine whether the officer’s" }, { "docid": "23036700", "title": "", "text": "should be suppressed. IY. Exclusion Our conclusion that the Kleinberg warrant was invalid does not necessarily mean that the evidence seized under the warrant must be suppressed. The government argues that we should apply the “good faith” exception to the exclusionary rule created in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) and reverse the district court’s decision. The district court found the good faith exception inapplicable, but we note that whether the “good faith” exception to the exclusionary rule should be applied is a question of law, subject to de novo review by this court. See United States v. Mi- chaelian, 803 F.2d 1042, 1046 (9th Cir.1986); United States v. Maggitt, 778 F.2d 1029, 1034-35 (5th Cir.1985), cert. denied, 476 U.S. 1184, 106 S.Ct. 2920, 91 L.Ed.2d 548 (1986). In Leon, the Supreme Court modified the fourth amendment exclusionary rule to provide that evidence seized under a warrant later found to be invalid may be admissible if the executing officers acted in good faith and in reasonable reliance on the warrant. United States v. Medlin, 798 F.2d 407, 409 (10th Cir.1986); see generally 1 LaFave § 1.3. The Leon Court applied the “good faith” exception to admit the evidence from a search warrant subsequently invalidated by a lack of probable cause. In Massachusetts v. Sheppard, 468 U.S. 981, 988, 104 S.Ct. 3424, 3427, 82 L.Ed.2d 737 (1984) the Court held that the same exception could also be applied to warrants that violate the fourth amendment’s particularity requirement. Of course, Leon does not mean that evidence obtained under an invalid warrant should never be suppressed. “The Court mandated that the exclusionary rule be invoked only in those ‘unusual’ cases in which its purposes would be served, i.e., in which it would deter police misconduct.” Medlin, 798 F.2d at 409. The Court also identified certain circumstances where suppression remains an appropriate remedy, including where the warrant is “so facially deficient — i.e., in failing to particularize the place to be searched or the things to be seized — that the executing officers cannot reasonably presume" }, { "docid": "23576212", "title": "", "text": "Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (internal quotation marks omitted). Even were we to conclude that probable cause was not established, we would affirm the denial of Perrine’s motion to suppress under the good faith exception of United States v. Leon, 468 U.S. 897, 920-24, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). In Leon, “the Supreme Court adopted a good-faith exception to the application of the exclusionary rule and specifically applied that exception where ‘an officer acting with objective good faith has obtained a search warrant from a judge or magistrate and acted within its scope,’ even though the search warrant was later deemed to be invalid.” United States v. Herrera, 444 F.3d 1238, 1249 (10th Cir.2006) (quoting Leon, 468 U.S. at 920, 104 S.Ct. 3405). “In this circuit, we have concluded that ‘Leon’s good faith exception applies only narrowly, and ordinarily only when an officer relies, in an objectively reasonable manner, on a mistake made by someone other than the officer.’ ” United States v. Cos, 498 F.3d 1115, 1132 (10th Cir.2007) (quoting Herrera, 444 F.3d at 1249). In this case, law enforcement personnel searched Perrine’s house in reliance on warrants issued by a state judge. “When reviewing the reasonableness of an officer’s reliance upon a search warrant, this court must examine the underlying documents to determine whether they are ‘devoid of factual support.’ ” Danhauer, 229 F.3d at 1006 (quoting United States v. McKneely, 6 F.3d 1447, 1454 (10th Cir.1993)). The Leon Court recognized four situations in which an officer would not have reasonable grounds for believing that a search warrant had been properly issued. In any of those situations, the good- faith exception to the exclusionary rule does not apply. Thus, if the issuing judge was misled by an affidavit containing false information or information that the affiant would have known was false but for his “reckless disregard of the truth,” the evidence should be suppressed. Leon, 468 U.S. at 923, 104 S.Ct. 3405. Or suppression is required when the affidavit supporting the warrant is “so lacking in indicia" }, { "docid": "5275044", "title": "", "text": "841(a)(1) and 845a (now § 860), and the state charges against him were dismissed. Before his federal trial, Moore filed a motion to suppress all evidence seized by the state officers. Following an evidentia-ry hearing, the district court held (i) that the legality of the seizure for purposes of this federal prosecution must be determined “as if the search and seizure had been made by federal officers,” citing Preston v. United States, 376 U.S. 364, 366, 84 S.Ct. 881, 883, 11 L.Ed.2d 777 (1964); (ii) that the evidence must be excluded because the no-knock search warrant violated 18 U.S.C. § 3109 (1988); and (iii) that the evidence could not be admitted under the good faith exception to the exclusionary rule established in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), because: the affidavit is so completely lacking in particularized facts which would provide reasonable or probable cause to waive the knock and announce requirement of 18 U.S.C. § 3109 [that] the officers cannot be said to have had an objective reasonable belief in the sufficiency of the affidavit and the warrant issued therefrom. The government has appealed the district court’s decision, arguing that the evidence seized at Moore’s residence is admissible under Leon’s good faith exception to the exclusionary rule because the state officers’ good faith should be determined under Nebraska rather than federal law. II. In Leon, the Supreme Court held that the Fourth Amendment’s exclusionary rule does not apply to “evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant.” 468 U.S. at 922, 104 S.Ct. at 3420. As the district court noted, however, this good faith exception does not apply if the warrant was based upon an affidavit “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” Id. at 923, 104 S.Ct. at 3421. See also United States v. Sager, 743 F.2d 1261, 1263 (8th Cir.1984), cert. denied sub nom., Harmon v. United States, 469 U.S. 1217, 105 S.Ct. 1196, 84 L.Ed.2d 341 (1985). In this case, it is undisputed that" }, { "docid": "22975808", "title": "", "text": "a warrant, we must determine whether the underlying documents are ‘devoid of factual support, not merely whether the facts they contain are legally sufficient.’ ” United States v. McKneely, 6 F.3d 1447, 1454 (10th Cir.1993), quoting United States v. Cardall, 773 F.2d 1128, 1133 (10th Cir.1985). “Our good-faith inquiry is confined to the objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal despite the magistrate’s authorization.” Leon, 468 U.S. at 922 n. 23, 104 S.Ct. 3405. “In making this determination, we consider ‘all of the circumstances,’ and assume the executing officers have ‘a reasonable knowledge of what the law prohibits.’ ” Rowland, 145 F.3d at 1207, quoting Leon, 468 U.S. at 919 n. 20, 104 S.Ct. 3430. As we have recently explained: The Supreme Court recognizes four situations in which an officer would not have reasonable grounds for believing a warrant was properly issued. See Leon, 468 U.S. at 922-23, 104 S.Ct. 3405, 82 L.Ed.2d 677. In these situations, the good-faith exception to the exclusionary rule would not apply. See id. First, evidence should be suppressed if the issuing magistrate was misled by an affidavit containing false information or information that the affiant would have known was false if not for his “reckless disregard of the truth.” Id. at 923, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677. Second, the exception does not apply when the “issuing magistrate wholly abandon[s her] judicial role.” Id. Third, the good-faith exception does not apply when the affidavit in support of the warrant is “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” Id. (quotation omitted). Fourth, the exception does not apply when a warrant is so facially deficient that the executing officer could not reasonably believe it was valid. See id. United States v. Danhauer, 229 F.3d 1002, 1007 (10th Cir.2000). “The applicability of the Leon good-faith exception is a question of law which this court reviews de novo.” Rowland, 145 F.3d at 1206. Tisdale does not assert that Judge Owens abandoned his judicial role in" }, { "docid": "23372417", "title": "", "text": "pursuant to 18 U.S.C. § 3731. Discussion In reviewing a district court’s disposition of a motion to suppress, we accept the factual findings unless they are clearly erroneous, and review questions of law de novo. United States v. Artez, 389 F.3d 1106, 1111 (10th Cir.2004); United States v. Danhauer, 229 F.3d 1002, 1005 (10th Cir.2000). Whether a warrant is supported by probable cause and whether the Leon good faith exception applies are both questions of law. Danhauer, 229 F.3d at 1005. Appellate courts have discretion to address probable cause or to proceed directly to good faith. United States v. Rowland, 145 F.3d 1194, 1206 n. 8 (10th Cir.1998). Here, as the government concedes, the affidavit clearly lacked probable cause as it failed to establish any connection between the place to be searched and Mr. Gonzales or the suspected criminal activity. It is well-settled that for probable cause to exist there must be a “nexus between [the contraband to be seized or] suspected criminal activity and the place to be searched.” Id. at 1203-04 (quoting United States v. Corral-Corral, 899 F.2d 927, 937 (10th Cir.1990) (alteration in original)). Thus, we proceed directly to the good faith analysis. Searches conducted pursuant to a warrant are favored, Leon, 468 U.S. at 914, 104 S.Ct. 3405, and, as such, the magistrate’s determination that probable cause exists is entitled to great deference. Danhauer, 229 F.3d at 1006. Likewise, officers are generally not required to second-guess the magistrate’s decision in granting a warrant. United States v. Tuter, 240 F.3d 1292, 1300 (10th Cir.2001). These principles are clearly in line with the exclusionary rule’s purpose of deterring improper police action, rather than punishing errors made by magistrates. Leon, 468 U.S. at 916, 104 S.Ct. 3405. Thus, the Supreme Court in Leon established that evidence obtained pursuant to a warrant that is later found to be defective is not properly excluded when the warrant is relied on by the officers in objective good faith. That said, the deference given to such warrants “is not boundless.” Id. at 914, 104 S.Ct. 3405. Indeed, there are four contexts where an" }, { "docid": "4575558", "title": "", "text": "a decision regarding whether probable cause existed to search Defendant’s residence, we begin, like the district court, with the question of the applicability of the good-faith exception to the exclusionary rule. Under the good-faith exception to the exclusionary rule, “[i]f a warrant is not supported by probable cause, the evidence seized pursuant to the warrant need not be suppressed if the executing officer acted with an objective good-faith belief that the warrant was properly issued by a neutral magistrate.” United States v. Campbell, 603 F.3d 1218, 1225 (10th Cir.2010) (internal quotation marks omitted). An executing officer is generally presumed to be acting in good-faith reliance upon a warrant. Id. at 1230. However, this presumption is not absolute. There are four situations in which the presumption of good faith and, consequently, the good-faith exception to the exclusionary rule do not apply: (1) when “the issuing magistrate was misled by an affidavit containing false information or information that the affiant would have known was false if not for his ‘reckless disregard of the truth’ (2) when the “ ‘issuing magistrate wholly abandon[s her] judicial role’ (3) when “the affidavit in support of the warrant is ‘so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable’ and (4) when “a warrant is so facially deficient that the executing officer could not reasonably believe it was valid.” Danhauer, 229 F.3d at 1007 (quoting United States v. Leon, 468 U.S. 897, 923, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984)) (alteration in original). Here, Defendant argues the good-faith exception to the exclusionary rule does not apply to the execution of the warrant to search Defendant’s residence because “the affida vit in support of the warrant [was] ‘so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.’ ” Id. (quoting Leon, 468 U.S. at 923, 104 S.Ct. 3430). “[G]ood faith may exist when a minimal nexus between the place to be searched and the suspected criminal activity is established.” United States v. Gonzales, 399 F.3d 1225, 1231 (10th Cir.2005). An officer’s reliance on" }, { "docid": "2197814", "title": "", "text": "his motion to suppress. II. When reviewing the district court’s suppression determination, we review the legal conclusions de novo and the findings of fact for clear error. United, States v. Sterling, 283 F.3d 216, 218 (4th Cir.2002). We construe the evidence in the light most favorable to the Government, the prevailing party below. United States v. Han, 74 F.3d 537, 540 (4th Cir. 1996). A. The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” and states that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const, amend. IV. Ordinarily, when a search violates the Fourth Amendment, the fruits thereof are inadmissible under the exclusionary rule, “a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect.” See United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974); see also Mapp v. Ohio, 367 U.S. 643, 654-55, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) (holding that the Fourth Amendment, and particularly the exclusionary rule, is applicable to states through the Fourteenth Amendment). However, this deterrence objective “is not achieved through the suppression of evidence obtained by ‘an officer acting with objective good faith’ within the scope of a search warrant issued by a magistrate.” United States v. Perez, 393 F.3d 457, 461 (4th Cir.2004) (quoting Leon, 468 U.S. at 920,104 S.Ct. 3405). As such, in Leon, the Supreme Court established a good faith exception to the exclusionary rule under which “evidence obtained pursuant to a search warrant issued by a neutral magistrate does not need to be excluded if the officer’s reliance on the warrant was ‘objectively reasonable.’ ” Id. at 461 (quoting Leon, 468 U.S. at 922, 104 S.Ct. 3405); accord United States v. Bynum, 293 F.3d 192, 195 (4th Cir.2002) (“[A] court should not suppress the fruits of a search conducted under the authority of a warrant, even a ‘subsequently invalidated’ warrant, unless" }, { "docid": "8399330", "title": "", "text": "“When the Government conducts a search pursuant to a warrant that does not particularly describe the things to be seized, the appropriate remedy is for the court to exclude from the evidence in a later criminal action the items improperly taken.” Cook, 657 F.2d at 734. This Court conducts a two-part inquiry to determine whether a seizure conducted pursuant to a search warrant violated the Fourth Amendment. Chema, 184 F.3d at 407. First, we ask whether the seizure falls within the good-faith exception to the exclusionary rule. United States v. Leon, 468 U.S. 897, 920-21, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984); Cherna, 184 F.3d at 407. The good-faith inquiry is confined “to the objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal despite the magistrate’s authorization.” Leon, 468 U.S. at 923 n. 23, 104 S.Ct. 3405. Thus, under the good-faith exception, if the evidence was obtained by law enforcement officers who relied on the warrant in objectively reasonable good-faith, then the evidence obtained during 'the search is admissible. United States v. Davis, 226 F.3d 346, 351 (5th Cir.2000) (citing United States v. Shugart, 117 F.3d 838, 843 (5th Cir.1997)). This is true even if the evidence in the affidavit on which the warrant was based was not sufficient to establish probable cause. Id. If the good-faith exception applies, this court affirms the district court’s decision denying the motion to suppress. Id. If the good-faith exception does not apply, then this court goes to the second step and determines whether the magistrate issuing the warrant had a “substantial basis for believing there was probable cause for the search.” Id. (citing Cherna, 184 F.3d at 407). ANALYSIS At the suppression hearing, and in his motion to suppress, Allen argued that the good-faith exception to the exclusionary rule should not be applied because the warrant was overly broad and failed the particularity requirement and that no reasonable officer should have relied on the validity of the warrant. Allen also argued that the warrant was so lacking in probable cause that no reasonable officer would" }, { "docid": "11910863", "title": "", "text": "of Russian’s arrest and certain data that might be found on them, the ,warrant itself merely authorized a search of Russian’s residence and seizure of any cell phones found inside. The warrant did not identify either of the phones that were already in law enforcement’s custody, nor did it specify what material (e.g., text messages, photos, or call logs) law enforcement was authorized to seize. Accordingly, we agree with Russian that the warrant failed to meet the Fourth Amendment’s particularity requirement. 2. Good Faith Exception to the Exclusionary Rule Although the warrant was invalid, we can also consider whether the good faith exception to the exclusionary rule applies. Russian contends it does not, arguing the warrant was so facially deficient that Deputy Wilson could not reasonably have presumed it to be valid. We disagree, because we find Deputy Wilson’s reliance on the warrant was objectively reasonable under the circumstances. Even if a warrant fails to satisfy the Fourth Amendment’s particularity requirement, the exclusionary rule should not be applied to suppress evidence obtained by officers acting in objectively reasonable reliance on a search warrant issued by a detached and neutral magistrate judge that is ultimately deemed invalid. United States v. Leon, 468 U.S. 897, 922, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). The rationale for Leon’s good faith exception is the underlying purpose of the exclusionary rule — namely, to deter police misconduct. When an officer acts in good faith, there is nothing to deter. Id. at 918, 104 S.Ct. 3405. Thus, “the suppression of evidence obtained pursuant to a warrant should be ordered only in the unusual cases in which exclusion will further the purposes of the exclusionary rule.” Riccardi, 405 F.3d at 863. But the officer’s reliance on the defective warrant still must be objectively reasonable: the government is not entitled to the good faith exception when a warrant is “so facially deficient — i.e., in failing to particularize the place to be searched or the things to be seized — that the executing officers cannot reasonably presume it to be valid.” Leon, 468 U.S. at 922-23, 104 S.Ct." }, { "docid": "13106538", "title": "", "text": "Aguilar v. Texas, 378 U.S. 108, 109 n. 1, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) (“It is elementary that in passing on the validity of a warrant, the reviewing court may consider only information brought to . the magistrate’s attention.”), overruled on other grounds, Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527. We conclude, therefore, that the district court correctly held that the facts set forth in the affidavit fell short of providing probable cause for a search warrant. The minimal corroboration of innocent, readily observable facts was insufficient to establish the veracity or reliability of the caller or to link Tuter with the allegation that he was making pipe bombs in his garage. II. LEON GOOD FAITH EXCEPTION Although the search warrant was not supported by probable cause, we conclude that the evidence seized at Tuter’s residence need not be suppressed because of the good faith exception to the exclusionary rule set forth in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). In Leon, the Supreme Court held that the purpose of the exclusionary rule is to deter police misconduct, id. at 916, 104 S.Ct. 3405, and that “the suppression of evidence obtained pursuant to a warrant should be ordered ... only in those unusual cases in which exclusion will further the purposes of the exclusionary rule,” id. at 918, 104 S.Ct. 3405. “Where an officer acting with objective good faith obtains a search warrant from a detached and neutral magistrate and the executing officers act within its scope, there is nothing to deter.” United States v. Nolan, 199 F.3d 1180, 1184 (10th Cir.1999). (citing Leon, 468 U.S. at 920-21, 104 S.Ct. 3405). “The Supreme Court recognizes four situations in which an officer would not have reasonable grounds for believing a warrant was properly issued. In these situations, the good-faith exception to the exclusionary rule would not apply.” Danhauer, 229 F.3d at 1007 (citation omitted). First, evidence should be suppressed if the issuing magistrate was misled by an affidavit containing false information or information that the affiant would have known" }, { "docid": "22975807", "title": "", "text": "L.Ed.2d 502 (1983) (plurality). The Court believes that this test has been satisfied in this case. Therefore, Judge Owens’ finding that, based upon Sergeant Allen’s application and affidavit, probable cause existed to issue the search warrant and the district court’s denial of Tisdale’s motion to suppress are affirmed. 2. Good Faith Exception Even assuming, arguendo, that Sergeant Allen’s application was insufficient to establish probable cause to issue the search warrant, we agree with the district court that the evidence obtained pursuant to the warrant should not be suppressed because the Wichita police officers who executed the warrant acted in good faith and reasonably relied upon the warrant issued by Judge Owens. In United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), the United States Supreme Court held that the Fourth Amendment’s exclusionary rule should not bar the use of evidence obtained by police officers acting in good faith and with reasonable reliance on a facially valid search warrant. Id. at 919—20, 104 S.Ct. 3405. “[W]hen reviewing an officer’s reliance upon a warrant, we must determine whether the underlying documents are ‘devoid of factual support, not merely whether the facts they contain are legally sufficient.’ ” United States v. McKneely, 6 F.3d 1447, 1454 (10th Cir.1993), quoting United States v. Cardall, 773 F.2d 1128, 1133 (10th Cir.1985). “Our good-faith inquiry is confined to the objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal despite the magistrate’s authorization.” Leon, 468 U.S. at 922 n. 23, 104 S.Ct. 3405. “In making this determination, we consider ‘all of the circumstances,’ and assume the executing officers have ‘a reasonable knowledge of what the law prohibits.’ ” Rowland, 145 F.3d at 1207, quoting Leon, 468 U.S. at 919 n. 20, 104 S.Ct. 3430. As we have recently explained: The Supreme Court recognizes four situations in which an officer would not have reasonable grounds for believing a warrant was properly issued. See Leon, 468 U.S. at 922-23, 104 S.Ct. 3405, 82 L.Ed.2d 677. In these situations, the good-faith exception to the exclusionary rule would" }, { "docid": "22300033", "title": "", "text": "exception to the exclusionary rule “When evidence is obtained in violation of the Fourth Amendment, the judicially developed exclusionary rule usually precludes its use in a criminal proceeding against the victim of the illegal search and seizure.” Illinois v. Krull, 480 U.S. 340, 347, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987). Courts should not, however, suppress “evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant.” United States v. Leon, 468 U.S. 897, 922, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). But this good-faith exception to the exclusionary rule does not apply in circumstances where “the officer will have no reasonable grounds for believing that the warrant was properly issued.” Id. at 923,104 S.Ct. 3405. Thus, an officer would not “manifest objective good faith in relying on a warrant based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” Id. (quotation omitted). a. Whether the officers had a reasonable basis to believe that the information actually submitted supported the issuance of the search warrant Pursuant to Leon, we must now decide whether the officers in the instant case had a reasonable basis to believe that the information that was submitted supported the issuance of the search warrant. In considering this question, we agree with the following analysis by the Fourth Circuit: If a lack of a substantial basis also prevented application of the Leon objective good faith exception, the exception would be devoid of substance. In fact, Leon states that ... a finding of objective good faith [is inappropriate] when an officer’s affidavit is “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” This is a less demanding showing than the “substantial basis” threshold required to prove the existence of probable cause in the first place. United States v. Bynum, 293 F.3d 192, 195 (4th Cir.2002) (citation omitted). The affidavit in the case before us failed to provide a substantial basis for probable cause because it did not provide the required nexus between the residence and the illegal activity." }, { "docid": "3947168", "title": "", "text": "to the lack of probable cause, “the police officers who acted on the warrant nonetheless did so in good faith.” Id. at 30:4-5. As a result, the court concluded the good-faith exception to the exclusionary rule shielded the officers’ conduct in searching for and seizing the child pornography from Mr. Edwards’s home, despite any presumed deficiency in the warrant. Id. at 30:6-23. Mr. Edwards then entered a conditional guilty plea to the indictment’s first count of possession of child pornography, and the district court dismissed the remaining counts on the Government’s motion. The district court sentenced Mr. Edwards to sixty-three months in prison and seven years of supervised release. Mr. Edwards now appeals his conviction on the ground that the motion to suppress should have been granted. III. DISCUSSION A. Probable Cause Our precedent allows us discretion “to address probable cause or to proceed directly to good faith” in reviewing the denial of a motion to suppress. United States v. Gonzales, 399 F.3d 1225, 1228 (10th Cir.2005). We are mindful, however, that “[t]here is no need for courts to adopt the inflexible practice of always deciding whether the officers’ conduct manifested objective good faith before turning to the question whether the Fourth Amendment has been violated.” United States v. Leon, 468 U.S. 897, 924, 104 S.Ct. 3430, 82 L.Ed.2d 677 (1984). Thus where, as here, “resolution of a Fourth Amendment issue is ‘necessary to guide future action by law enforcement officers and magistrates,’ ” we may find it appropriate to address the adequacy of the search warrant’s probable-cause determination first. United States v. Danhauer, 229 F.3d 1002, 1005 (10th Cir.2000) (quoting Leon, 468 U.S. at 925, 104 S.Ct. 3405). 1. Standard of Review On review of a district court’s denial of a motion to suppress, “we review the district court’s factual findings for clear error and consider the evidence in the light most favorable to the Government.” United States v. Haymond, 672 F.3d 948, 958 (10th Cir.2012). Moreover, determinations by the district court “relating to the sufficiency of a search warrant are conclusions of law which this court reviews de" }, { "docid": "8992141", "title": "", "text": "At least in the context of the officers’ motivation for requesting consent to search, “the inquiry turns on whether the evidence is obtained by means, although influenced by prior illegal police actions, which are different enough from the prior illegality to be ‘sufficiently distinguishable.’ ” United States v. Carson, 793 F.2d at 1149 (emphasis added). b. The Good-Faith Exception. Another exception to the exclusionary rule is the investigating officer’s “good-faith.” In United States v. Leon, the Supreme Court faced the question whether to create an exception to the exclusionary rule when a police officer obtained evidence through the use of a warrant that he mistakenly thought probable cause supported. See 468 U.S. at 905, 104 S.Ct. 3405. The Supreme Court noted that excluding evidence which was obtained pursuant to a warrant that the officer reasonably thought to be valid would not deter police misconduct, because the affected officer had taken all steps in his power to comply with the Fourth Amendment. See 468 U.S. at 918-19, 104 S.Ct. 3405. It further noted that, when a warrant is issued on less than probable cause, the person whose conduct the law wishes to deter is the issuing judge and that such exclusion would not have a significantly deterrent effect on judicial conduct. See 468 U.S. at 916-17, 104 S.Ct. 3405. The Supreme Court thus concluded that a court need not suppress evidence seized pursuant to a facially valid warrant which later turns out to lack probable cause, as long as police were acting in good-faith reliance on that warrant. See 468 U.S. at 922-23, 104 S.Ct. 3405. The Tenth Circuit therefore now applies the rule that, in cases where the police obtained a warrant but the affidavit supporting the warrant does not establish probable cause, suppression of the evidence found is generally not warranted, so long as the officers relied in good faith on the warrant. See United States v. Tutor, 240 F.3d 1292, 1300 (10th Cir.2001); United States v. Danhauer, 229 F.3d 1002, 1007 (10th Cir.2000). [T]he suppression of evidence obtained pursuant to a warrant should be ordered only in those" }, { "docid": "22464745", "title": "", "text": "the affiant but outside the four corners of the affidavit in order to determine whether the Leon good faith exception applied in this case; (2) the warrant was so lacking in probable cause that the detective’s belief in it was entirely unreasonable; and (3) the issuing judge [Mickle] abandoned his judicial role and acted as a “rubber stamp for the police.” STANDARD OF REVIEW We review de novo the legal issue as to whether the Leon good faith exception to the exclusionary rule applies to this search, whereas “the underlying facts upon which that determination is based are binding on appeal unless clearly erroneous.” United States v. Norton, 867 F.2d 1354, 1360 (11th Cir.1989). DISCUSSION The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. Evidence seized as the result of an illegal search may not be used by the government in a subsequent criminal prosecution. Franks v. Delaware, 438 U.S. 154, 171, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). The exclusionary rule, as it is known, is “a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect.” United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974). One exception to this exclusionary rule is the Leon good faith exception. United States v. Leon, 468 U.S. 897, 922, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), stands for the principle that courts generally should not render inadmissible evidence obtained by police officers acting in reasonable reliance upon a search warrant that is ultimately found to be unsupported by probable cause. The Leon good faith exception applies in all but four limited sets of circumstances. Id. at 923, 104 S.Ct. 3405. The four sets of circumstances are as follows: , (1) where “the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or -would have known was false except for his reckless disregard of the truth”; (2) “where the issuing magistrate wholly abandoned" } ]

[ { "docid": "23123602", "title": "", "text": "insufficient to permit an age discrimination suit to survive summary judgment. Taken altogether as true — as they must be at summary judgment — they are more than enough to support a jury verdict that plaintiff was picked to be “downsized” in part because of his age. Accordingly, the judgment of the district court is REVERSED, and the matter is REMANDED for trial. . The author of this opinion dissented in Stem, see Stem, 131 F.3d at 314-20 (Calahresi, J., dissenting), not with respect to the legal proposition for which it is cited above, but because he disagreed with the application of that principle to the facts of the case. In Stem, judgment as a matter of law against the plaintiff was reversed. We believe that plaintiffs evidence in this case is at least as strong as the evidence adduced by the plaintiff in Stem. . The dissent correctly notes, quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993), that once the employer produces an age-neutral reason for the plaintiffs termination, the presumption of discrimination “drops out of the picture” and the burden shifts to the plaintiff to rebut the employer's proffered reason. But this does not mean that the evidence that the plaintiff used to establish his prima facie case is wiped out; there is no reason that the plaintiff cannot rely on evidence offered to establish his prima facie case — in this case, Danzer s affidavit — subsequently to rebut the employer’s age-neutral explanation. . For a cogent discussion of the interaction between RIF cases and the burden of proof in employment discrimination litigation, see (now) Chief Judge Winter's opinion in Burger v. New York Institute of Technology, 94 F.3d 830, 832-34 (2d Cir.1996). . Norden’s position is that its supposed attempt to relocate Danzer — rather than fire him- — shows that it was trying its best to help him out in an era of corporate downsizing. But even if this were so, it only shows that Norden was being solicitous — which is not logically related" } ]

[ { "docid": "1487648", "title": "", "text": "merely insinuates without alleging directly — let alone offering evidence to support the notion — that these employees were told to transfer because they would face age discrimination under Guccione’s leadership. Next, plaintiff claims that a USMS secretary who was over fifty years old was “replaced’’ by a woman in her twenties. (Id. ¶ 50.) This secretary was apparently not fired, however, but transferred to the Eastern District of New York “with a pay reduction as a proximate result of Guc-cione’s disparate treatment of her due to her age.” (Id.) The Complaint alleges no facts supporting plaintiffs conclusion as to the reason for the pay reduction. Plaintiff also states that he saw Gue-cione treat an administrative officer who was in her fifties “disparately from younger individuals in that he unjustly ridiculed her and assigned her menial tasks.” (Id. ¶ 51.) Finally, plaintiff claims that Guc-cione once got a thirty-something Deputy “unarrested” but refused to do the same for a fifty-year-old Deputy. (Id. ¶ 52.) All of these statements are purely conclusory allegations unsupported by any actual evidence of discriminatory acts or intentions. They are therefore insufficient to defeat summary judgment. See, e.g., Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.1985). D. Summary Judgment is Granted as to Plaintiff’s Age Discrimination Claim In deciding a defendant’s summary judgment motion when the plaintiff has offered multiple forms of evidence, a court must always keep in mind the entire record before it: [T]he court should not consider the record solely in piecemeal fashion, giving credence to innocent explanations for individual strands of evidence, for a jury, in assessing whether there was impermissible discrimination and whether the defendant’s proffered explanation is a pretext for such discrimination, would be entitled to view the evidence as a whole. Howley, 217 F.3d at 151. In this case, plaintiff has offered a great number of allegations in his attempt to rebut defendants’ justification for not promoting him. Each one is simply too vague, conclusory, unsupported or otherwise legally insufficient to do so. Taken as a whole, they come no closer to raising a genuine issue of material" }, { "docid": "22337846", "title": "", "text": "the University had deviated from its normal decisionmaking procedures, had stated that it needed more Hispanics in the department in question, had appointed advis-ors who lacked proficiency in the skills they were asked to evaluate, and had informed another potential candidate that Stern’s candidacy would not be considered seriously, we eonclude that there were genuine issues of fact to be tried as to whether the University’s explanation that it hired Puleo only because he was better than Stern was true, and whether the University refused to give serious consideration to Stern’s candidacy because he was not of Hispanic origin. CONCLUSION We have considered all of the University’s arguments on this appeal in support of summary judgment and have found them to be without merit. The judgment is vacated, and the matter is remanded for trial. CALABRESI, Circuit Judge, dissenting: I do not disagree with the majority that Stern has.made out a prima facie case of discrimination in violation of Title VII. It is clear that he has done so. But unlike the majority, I believe that his prima facie case is precisely the kind of minimal one discussed in this court’s in banc decision in Fisher v. Vassar College, 114 F.3d 1332, 1336-37 (2d Cir.1997) (in bane). It is likewise indisputable that the university responded to Stern’s prima facie case by proffering evidence of a non-discriminatory reason for its hiring decision. The majority believes that Stern presented evidence to allow a reasonable jury to infer .that the explanation given by the defendant was pretextual and that discrimination was the real ground for defendant’s actions. I disagree. Based on the facts presented, and the legally permissible inferences that may be drawn from those facts, I think that no factfinder could reasonably conclude that the defendant’s explanation was false and, as required by Fisher, that bias was the true basis for the university’s decision. Because this is so, the defendant was entitled to judgment as a matter of law. I therefore respectfully dissent. This case comes before us on motion for summary judgment. Summary judgment is appropriate “if the pleadings, depositions, answers" }, { "docid": "1487649", "title": "", "text": "actual evidence of discriminatory acts or intentions. They are therefore insufficient to defeat summary judgment. See, e.g., Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.1985). D. Summary Judgment is Granted as to Plaintiff’s Age Discrimination Claim In deciding a defendant’s summary judgment motion when the plaintiff has offered multiple forms of evidence, a court must always keep in mind the entire record before it: [T]he court should not consider the record solely in piecemeal fashion, giving credence to innocent explanations for individual strands of evidence, for a jury, in assessing whether there was impermissible discrimination and whether the defendant’s proffered explanation is a pretext for such discrimination, would be entitled to view the evidence as a whole. Howley, 217 F.3d at 151. In this case, plaintiff has offered a great number of allegations in his attempt to rebut defendants’ justification for not promoting him. Each one is simply too vague, conclusory, unsupported or otherwise legally insufficient to do so. Taken as a whole, they come no closer to raising a genuine issue of material fact regarding defendants’ justification for their decision. Plaintiff can not show that his qualifications were so superior to Mullee’s that no reasonable person would have promoted the latter over the former, which means he must offer some other evidence of discrimination to survive summary judgment. See Byrnie, 243 F.3d at 103. But plaintiffs “direct evidence” of discrimination — the “beauty contest” remark and Guccione’s recommendation — -is simply incapable of supporting the interpretation plaintiff attaches to it. And as for the events plaintiff calls a “pattern and practice” of discrimination, he has offered absolutely no evidence that any of these events were motivated by bias. Plaintiff can not make up in quantity of allegations for what his case lacks in quality. Defendants’ motion for summary judgment is granted as to plaintiffs age discrimination claim. IV. Plaintiff’s Retaliation Claim In his Memorandum of Law in Opposition to Defendants’ Motion for Summary Judgment, plaintiff alleges that defendants have retaliated against him in various ways since he filed a Charge of Discrimination with the EEOC on May 27," }, { "docid": "22337847", "title": "", "text": "that his prima facie case is precisely the kind of minimal one discussed in this court’s in banc decision in Fisher v. Vassar College, 114 F.3d 1332, 1336-37 (2d Cir.1997) (in bane). It is likewise indisputable that the university responded to Stern’s prima facie case by proffering evidence of a non-discriminatory reason for its hiring decision. The majority believes that Stern presented evidence to allow a reasonable jury to infer .that the explanation given by the defendant was pretextual and that discrimination was the real ground for defendant’s actions. I disagree. Based on the facts presented, and the legally permissible inferences that may be drawn from those facts, I think that no factfinder could reasonably conclude that the defendant’s explanation was false and, as required by Fisher, that bias was the true basis for the university’s decision. Because this is so, the defendant was entitled to judgment as a matter of law. I therefore respectfully dissent. This case comes before us on motion for summary judgment. Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2551, 91 L.Ed.2d 265 (1986). A dispute regarding a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2509, 91 L.Ed.2d 202 (1986). We must construe the record in the light most favorable to the non-movant, in this case the plaintiff, drawing all permissible inferences in his favor. See, e.g., id. at 255, 106 S.Ct. at 2513; Vann v. City of New York, 72 F.3d 1040, 1048-49 (2d Cir.1995). The inferences drawn must be supported by the evidence, however, and “mere speculation and conjecture” is insufficient to defeat a motion for summary judgment. Western World Ins. Co." }, { "docid": "22337844", "title": "", "text": "merely our compliance with summary judgment jurisprudence, which requires this Court to construe the record in the light most favorable to the party against whom summary judgment was granted. A factfinder of course would not be required to draw inferences favorable to the plaintiff; however, where, as here, the factfinder would be permitted to do so, this Court in reviewing summary judgment must do so. Finally, the dissent considers the record solely in piecemeal fashion, proffering innocent explanations for individual strands of evidence. The jury, however, will be entitled to view the evidence as a whole in assessing whether there was impermissible discrimination and whether the University’s proffered explanation is a pretext for that discrimination. Cf., e.g., Washington v. Davis, 426 U.S. 229, 242, 96 S.Ct. 2040, 2048, 48 L.Ed.2d 597 (1976) (“an invidious discriminatory purpose may often be inferred from the totality of the relevant facts”). For example, the dissent concedes that the search eqmmittee Chair’s statement to Crapotta “that Stern was ‘not going to be seriously considered for this job,’ ” is “evidence in the case suggesting that Columbia’s explanation — that it hired Puleo over Stern because Puleo gave a better teaching performance — might be pretextual.” Dissenting opinion post at 319. Though the dissent characterizes the Chair’s statement as the “only” evidence from which pretext could be inferred, id., the jury will plainly be entitled to assess that statement in the context of the record as a whole — including the circumstances that Puleo’s teaching performance was evaluated by a committee whose majority, appointed by the- University in a deviation from its usual procedure, did not know the language in which he taught — and to conclude that the relative teaching performances of Stern and Puleo were not a genuine reason for the University’s decision and that the decision was based in whole or in part on a preference for hiring a person of Hispanic origin. In sum, where, as here, the proffered rationale was that an evaluation had been made that one candidate was better than another, and the challenged decision was made only after" }, { "docid": "13506091", "title": "", "text": "motion for summary judgment. In other cases, however, the prima facie case and proof of pretext alone will not be enough to create a genuine issue of fact, such as when “plaintiff create [s] a weak issue of fact as to whether the employer’s reason was untrue and there [is] abundant and uncontroverted independent evidence that no discrimination had occurred.” Id. at 2109. In the latter instance, the plaintiff will be required to present additional evidence to defeat the motion. The key is whether there is sufficient evidence in the record — whether it consists of just the prima facie case and proof of pretext alone or those items together with additional evidence — to sup port an inference of discrimination. B. Application Here, I assume that plaintiff has made out a prima facie case. Defendant has articulated a legitimate, nondiscriminatory reason for firing him, contending that plaintiff was terminated because he violated defendant’s “no retaliation policy” concerning employees who reported environmental violations. Hence, rather than address each of the different steps of the different prongs of the McDonnell Douglas test, I proceed directly to the ultimate question of whether plaintiff has presented sufficient evidence from which a reasonable jury could find discrimination. I do so by evaluating first plaintiffs evidence, then defendant’s evidence, and finally the record as a whole, keeping in mind the elusiveness of proof of discrimination and the principle that the jury is “entitled to view the evidence as a whole.” Stern v. Trustees of Columbia Univ., 131 F.3d 305, 314 (2d Cir.1997); see also Siano v. Haber, 40 F.Supp.2d 516, 520 (S.D.N.Y.1999), aff'd mem. 201 F.3d 432, 1999 WL 1295923 (2d Cir.1999); Lapsley v. Columbia University-College of Physicians and Surgeons, 999 F.Supp. 506, 515 (S.D.N.Y.1998). 1. Plaintiff’s Evidence In opposition to Con Edison’s motion for summary judgment, plaintiff submitted only the following: the Appeal Board’s decision, his December 6, 1996 performance review, and excerpts taken from his deposition and the depositions of two former employees. Plaintiff did not take any depositions, nor did he submit any affidavits or any other documentary evidence. Hence, plaintiffs purported" }, { "docid": "5939435", "title": "", "text": "they occurred under circumstances giving rise to an inference of discrimination. See Stern v. Trustees of Columbia Univ., 131 F.3d 305, 314 (2d Cir.1997) (noting that the jury “will be entitled to view the evidence as a whole in assessing whether there was impermissible discrimination and whether [defendant’s] proffered explanation is a pretext for that discrimination.”) (citing Washington v. Davis, 426 U.S. 229, 242, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976)); see also Schwapp, 118 F.3d at 110; Fierro, 13 F.Supp.2d at 488. Accordingly, the Court finds that plaintiff has met his de minimis burden of establishing a prima facie case of racial discrimination. At this point, a presumption of unlawful discrimination exists which: places upon the defendant the burden of producing an explanation to rebut the prima facie case — i.e., the burden of “producing evidence” that the adverse employment actions were taken for a legitimate, nondiscriminatory reason. The defendant must clearly set forth, through the introduction of admissible evidence, reasons for its actions which, if believed by the trier of fact, would support a finding that unlawful discrimination was not the cause of the employment action. Hicks, 509 U.S. at 506, 113 S.Ct. 2742 (quotations omitted); see also Trustees of Columbia Univ., 131 F.3d at 312. The explanations proffered by the employer must be “clear and specific,” Gallo, 22 F.3d at 1226 (quoting Meiri, 759 F.2d at 997); Ryduchowski v. The Port Auth. of New York and New Jersey, 1998 WL 812633, at *8 (E.D.N.Y. Nov.19, 1998) (noting that shifting the burden to the employer “forces the defendant to ‘give an explanation for its conduct, in order to prevent employers from simply remaining silent while the plaintiff founders on the difficulty of proving discriminatory intent.’ ”) (quoting Fisher, 114 F.3d at 1337), and must address “each of the adverse employment actions of which plaintiff complains.” Ryduchowski, 1998 WL 812633, at *8 (emphasis added); see also Riedinger v. D’Amicantino, 974 F.Supp. 322, 329 (S.D.N.Y.1997). Plaintiffs prima facie case is predicated on specific alleged acts of discrimination: (1) Greene’s alleged racially derogatory comment referring to plaintiff as a “lazy nigger”;" }, { "docid": "22337843", "title": "", "text": "credits the University’s explanation of the reason for its employment decision as a matter of law. While we do not second-guess an employer’s hiring standards, the reasons for its employment decision, including its alleged reliance on such standards, are subject to scrutiny under Titlé VII, and “[departures from procedural regularity,” for example, “can raise a question as to the good faith of the process where the departure may reasonably affect the decision.” Zahorik v. Cornell University, 729 F.2d 85, 93 (2d Cir.1984). Where the plaintiff has presented evidence sufficient to support an inference of impermissiblé discrimination and an inference that the reasons given by the defendant for its employment decision were not its real reasons, triable issues of fact are presented. Second, the dissent draws all factual inferences adversely to Stern. Though a factfin-der after trial surely would be permitted to draw the inferences argued for in the dissent, it would not be required to do so. What the dissent characterizes in the majority opinion as “speculation and conjecture,” dissenting opinion post at 315, is merely our compliance with summary judgment jurisprudence, which requires this Court to construe the record in the light most favorable to the party against whom summary judgment was granted. A factfinder of course would not be required to draw inferences favorable to the plaintiff; however, where, as here, the factfinder would be permitted to do so, this Court in reviewing summary judgment must do so. Finally, the dissent considers the record solely in piecemeal fashion, proffering innocent explanations for individual strands of evidence. The jury, however, will be entitled to view the evidence as a whole in assessing whether there was impermissible discrimination and whether the University’s proffered explanation is a pretext for that discrimination. Cf., e.g., Washington v. Davis, 426 U.S. 229, 242, 96 S.Ct. 2040, 2048, 48 L.Ed.2d 597 (1976) (“an invidious discriminatory purpose may often be inferred from the totality of the relevant facts”). For example, the dissent concedes that the search eqmmittee Chair’s statement to Crapotta “that Stern was ‘not going to be seriously considered for this job,’ ” is “evidence" }, { "docid": "22116545", "title": "", "text": "various forms of discrimination may well co-exist in a workplace. Thus, a jury might find it more plausible that a supervisor would be willing to fire a woman for refusing a sexual advance if it also had reason to think that he discounted women’s abilities to be productive workers. Or it might conclude that his request for a quid 'pro quo reflected an insistence that women relate to men according to sexual stereotypes rather than as co-workers. And these considerations may well, in combination, demonstrate that the employee’s sex played a sufficient causal role, as to result in Title VII liability. This could be so, moreover, even though, in isolation, no single way in which sex influenced the employer’s decision sufficed to warrant that conclusion. See Howley, 217 F.3d at 151 (“[T]he court should not consider the record solely in piecemeal fashion, giving credence to innocent explanations for individual strands of evidence, for a jury, in assessing whether there was impermissible discrimination ... would be entitled to view the evidence as a whole.”) In the case before us, plaintiffs allegations suggest an interconnection between Daly’s acts of possible sexual intimidation (including his comments about rape and his threatening manner of approaching Gregory) and his derogation of her work competence. See Farmer Bros., 31 F.3d at 897-98 (explaining that “sexual harassment may be symptomatic of gender-based hostility, the employer or supervisor using sexual harassment primarily to subordinate women, to remind them of their lower status in the workplace, and to demean them,” rather than exclusively “in order to gratify his sexual desires”). And this is so, although we very much doubt that the “get on board or quit” remark would, on its own, support any cause of action. In sum, when allegations of a sexual quid pro quo co-exist with allegations of other circumstances suggesting that the challenged employment actions were taken because of plaintiffs sex, we look to the totality of the circumstances to determine whether there is a sufficient basis to infer sex-based discrimination. See Chertkova, 92 F.3d at 91. We do not disaggregate mutually supportive assertions that plaintiffs" }, { "docid": "22160006", "title": "", "text": "what inferences should be drawn, see, e.g., Cronin v. Aetna Life Insurance Co., 46 F.3d at 204; Chambers v. TRM Copy Centers Corp., 43 F.3d at 38; if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper, see, e.g., Stern v. Trustees of Columbia University, 131 F.3d at 312; Brady v. Town of Colchester, 863 F.2d 205, 210 (2d Cir.1988). Guided by these principles, we review a district court’s grant of summary judgment de novo. See, e.g., Kerzer v. Kingly Manufacturing, 156 F.3d 396, 400 (2d Cir.1998); Shumway v. United Parcel Service, Inc., 118 F.3d 60, 63 (2d Cir.1997). In determining the appropriateness of summary judgment, the court should not consider the record solely in piecemeal fashion, giving credence to innocent explanations for individual strands of evidence, for a jury, in assessing whether there was impermissible discrimination and whether the defendant’s proffered explanation is a pretext for such discrimination, would be entitled to view the evidence as a whole. See, e.g., Stern v. Trustees of Columbia University, 131 F.3d at 314; cf. Washington v. Davis, 426 U.S. 229, 242, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976) (“an invidious discriminatory purpose may often be inferred from the totality of the relevant facts”). In the present case, the district court granted summary judgment dismissing the failure-to-promote claim because it found the evidence presented by Howley insufficient to establish that the Town’s explanations were pretext. Our review of the record persuades us that in reaching this conclusion, the district court did not view the record as a whole in the light most favorable to Howley or give credit to permissible inferences that could be drawn in her favor as to each of the three reasons advanced by the Town for not promoting Howley. First, the Town took the position that Howley was simply ineligible (an issue that goes not only to pretext but to whether Howley established a prima facie case) because she did not have four years of line-officer experience. The district judge" }, { "docid": "22863729", "title": "", "text": "for “openness and integrity of the educational institutions that provide [legal] training” without reference to any consequential educational benefits). One must also consider the Law School’s refusal to entertain changes to its current admissions system that might produce the same educational benefits. The Law School adamantly disclaims any race-neutral alternative that would reduce “academic selectivity,” which would in turn “require the Law School to become a very different institution, and to sacrifice a core part of its educational mission.” Brief for Respondent Bollinger et al. 33-36. In other words, the Law School seeks to improve marginally the education it offers without sacrificing too much of its exclusivity and elite status. The proffered interest that the majority vindicates today, then, is not simply “diversity.” Instead the Court upholds the use of racial discrimination as a tool to advance the Law School’s interest in offering a marginally superior education while maintaining an elite institution. Unless each constituent part of this state interest is of pressing public necessity, the Law School’s use of race is unconstitutional. I find each of them to fall far short of this standard. III A A close reading of the Court s opinion reveals that all of its legal work is done through one conclusory statement: The Law School has a “compelling interest in securing the educational benefits of a diverse student body.” Ante, at 33B. No serious effort is made to explain how these benefits fit with the state interests the Court has recognized (or rejected) as compelling, see Part I, supra, or to place any theoretical constraints on an enterprising court’s desire to discover still more justifications for racial discrimination. In the absence of any explanation, one might expect the Court to fall back on the judicial policy of stare decisis. But the Court eschews even this weak defense of its holding, shunning an analysis of the extent to which Justice Powell’s opinion in Regents of Univ. of Cal. v. Bakke, 438 U. S. 265 (1978), is binding, ante, at 325, in favor of an unfounded wholesale adoption of it. Justice Powell’s opinion in Bakke and" }, { "docid": "13506092", "title": "", "text": "prongs of the McDonnell Douglas test, I proceed directly to the ultimate question of whether plaintiff has presented sufficient evidence from which a reasonable jury could find discrimination. I do so by evaluating first plaintiffs evidence, then defendant’s evidence, and finally the record as a whole, keeping in mind the elusiveness of proof of discrimination and the principle that the jury is “entitled to view the evidence as a whole.” Stern v. Trustees of Columbia Univ., 131 F.3d 305, 314 (2d Cir.1997); see also Siano v. Haber, 40 F.Supp.2d 516, 520 (S.D.N.Y.1999), aff'd mem. 201 F.3d 432, 1999 WL 1295923 (2d Cir.1999); Lapsley v. Columbia University-College of Physicians and Surgeons, 999 F.Supp. 506, 515 (S.D.N.Y.1998). 1. Plaintiff’s Evidence In opposition to Con Edison’s motion for summary judgment, plaintiff submitted only the following: the Appeal Board’s decision, his December 6, 1996 performance review, and excerpts taken from his deposition and the depositions of two former employees. Plaintiff did not take any depositions, nor did he submit any affidavits or any other documentary evidence. Hence, plaintiffs purported evidence that he was dismissed because of his age consists of: (a) his age; (b) his positive performance review; (c) the alleged discriminatory remarks; (d) pretext; and (e) the excerpts from the depositions of the two other employees. a. Age Plaintiff was forty-three years old when he was fired. (PL Dep. at 24; Codner Aff. ¶ 21). Hence, plaintiff was in the protected age category at the time of his discharge. b. December 1996 Performance Review Codner and Gabrois gave plaintiff excellent performance reviews in December 1996. As a result of this review, plaintiff received a company incentive award of $8,500 in 1997. (PLEx. 7; PI. Dep. at 69-72). Moreover, plaintiff had been employed by Con Edison for more than twenty years. Thus, a jury could certainly find that plaintiff performed his duties, in general, in a satisfactory manner. c. Discriminatory Remarks At his deposition, plaintiff testified that he had heard from someone that MacGrath had publicly announced a company policy to replace older employees with younger ones. He contends that this constitutes evidence that" }, { "docid": "5939434", "title": "", "text": "adverse.”); de la Cruz, 82 F.3d at 21 (citing Day v. Derwinski, 771 F.Supp. 588, 592 (S.D.N.Y.) (“If an employee’s transfer to a different job is motivated by race or age considerations, it is obviously a discriminatory action affecting terms or conditions of employment.”), aff'd, 953 F.2d 635 (2d Cir.1991)); Collins v. Illinois, 830 F.2d 692, 702-04 (7th Cir.1987) (lateral transfer involving equal pay and benefits with change in responsibilities constitutes adverse employment action). Here, while plaintiffs pecuniary benefits may have remained the same after his transfer, under the standard enunciated in de la Cruz, the Court finds that plaintiffs workplace conditions and transfer from a position of significant responsibility to a position consisting mainly of menial, clerical tasks, sufficient to satisfy the third element of his prima facie case. See Greenway v. The Buffalo Hilton Hotel, 143 F.3d 47, 53 (2d Cir.1998) (“Courts — not juries — should determine whether the initial McDonnell Douglas burdens of production have been met.”). Moreover, viewing the totality of plaintiffs allegations of racial discrimination, the Court finds that they occurred under circumstances giving rise to an inference of discrimination. See Stern v. Trustees of Columbia Univ., 131 F.3d 305, 314 (2d Cir.1997) (noting that the jury “will be entitled to view the evidence as a whole in assessing whether there was impermissible discrimination and whether [defendant’s] proffered explanation is a pretext for that discrimination.”) (citing Washington v. Davis, 426 U.S. 229, 242, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976)); see also Schwapp, 118 F.3d at 110; Fierro, 13 F.Supp.2d at 488. Accordingly, the Court finds that plaintiff has met his de minimis burden of establishing a prima facie case of racial discrimination. At this point, a presumption of unlawful discrimination exists which: places upon the defendant the burden of producing an explanation to rebut the prima facie case — i.e., the burden of “producing evidence” that the adverse employment actions were taken for a legitimate, nondiscriminatory reason. The defendant must clearly set forth, through the introduction of admissible evidence, reasons for its actions which, if believed by the trier of fact, would support" }, { "docid": "22759622", "title": "", "text": "it too well. The problem both Weinstoek and Hopkins faced is that their employers demanded that they perform both “masculine” and “feminine” roles, yet perceived those roles as fundamentally incompatible. Unlike “masculine”- men at Price Waterhouse, Hopkins was punished because her “masculinity” appeared inconsistent with gendered stereotypes of how women should look and behave; Weinstoek was punished because her “femininity” appeared inconsistent with “masculine” success as a researcher. Yet if Weinstoek had chosen to project a more “masculine” image, she could very well have ■ suffered the same fate as Hopkins. 2. Procedural Irregularities. In the instant case, Weinstock has raised significant questions about Columbia’s proffered nondiscriminatory reason for its tenure decision — more than enough evidence to overcome a motion for summary judgment. In any other employment setting, the procedural irregularities and shifting standards outlined earlier that characterized the entire process of Weinstock’s tenure review, would undeniably suggest pretext. See DeMarco v. Holy Cross High Sch., 4 F.3d 166, 171 (2d Cir.1993) (implausibility of employer’s nondiscriminatory rationale shows pretext); Schmitz.v. St. Regis Paper Co., 811 F.2d 131, 132-33 (2d Cir.1987) (employer shifting explanations provides evidence of pretext). The context of a tenure decision is no different, as Title VII applies with the same force to universities as to all employers. University of Pa. v. EEOC, 493 U.S. 182, 190-91, 110 S.Ct. 577, 107 L.Ed.2d 571 (1990). In fact, we have held that procedural irregularities can create an inference of discrimination in tenure decisions. See Stern v. Trustees of Columbia Univ., 131 F.3d 305, 313 (2d Cir.1997) (reversing summary judgment where procedural irregularities raised inference that reasons given for employment decision were not the real reasons); Zahorik v. Cornell Univ., 729 F.2d 85, 93 (2d Cir.1984) (procedural irregularities can raise an inference of bias). Whether the affiliation agreement gave Cole the power to reject unilaterally the ad hoc’s tenure recommendation has no bearing on whether he exercised that discretion in a discriminatory fashion. The discretion accorded to Cole as university provost does not place his actions above the law. In addition to the ample evidence of pretext plaintiff has offered," }, { "docid": "16000242", "title": "", "text": "age and national origin discrimination in violation of the Fourteenth Amendment’s Equal Protection Clause, the State Human Rights Law, and the City Human Rights Law. Section 1983 furnishes a cause of action for the violation of federal Constitutional rights, see Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 617, 99 S.Ct. 1905, 60 L.Ed.2d 508 (1979), and provides a vehicle through which public sector employees may vindicate their constitutional rights to be free from discrimination. Like Title VII claims, Section 1983 claims premised upon equal protection violations ultimately demand proof of purposeful discrimination. See Giano v. Senkowski, 54 F.3d 1050, 1057 (2d Cir. 1995). Because the standards governing liability under the NYHRL are virtually identical to those applied to Title VII and Section 1983 claims, the discussion below also equally applies to Menes’s state law causes of action. See Ortega, 1999 WL 342353, at *3 n. 2; Gibson, 1998 WL 132796, at *4 n. 4; see also Tomka, 66 F.3d at 1305 n. 4. To establish a prima facie case of unlawful employment discrimination under Title VII, a plaintiff must show that (1) he belongs to a protected class; (2) his job performance was satisfactory; (3) he was subject to an adverse employment action; and (4) the adverse employment action occurred under circumstances that give rise to an inference of discrimination based on membership in the class. See Stem v. Trustees of Columbia Univ., 131 F.3d 305, 311-12 (2d Cir.1997). Establishing a pri-ma facie case of discrimination is not an onerous task. See Burdine, 450 U.S. at 253, 101 S.Ct. 1089. If established, the burden then shifts to the defendant to articulate legitimate, non-discriminatory reasons for its actions. To survive summary judgment, a plaintiff must ultimately demonstrate that a genuine issue of fact exists as to whether the defendant’s proffered reason or explanation for the employment action was merely a pretext, and that the action was instead prompted by an impermissible motive. See Brennan v. City of White Plains, 67 F.Supp.2d 362, 372 (S.D.N.Y.1999); see also Samuels v. New York State Dep’t of Correctional Servs., No. 94 Civ. 8645(SAS)," }, { "docid": "22160005", "title": "", "text": "e.g., Chertkova v. Connecticut General Life Insurance Co., 92 F.3d 81, 91 (2d Cir.1996); Cronin v. Aetna Life Insurance Co., 46 F.3d 196, 204 (2d Cir.1995); Washington v. Garrett, 10 F.3d 1421, 1434 (9th Cir.1993). In deciding a motion for summary judgment, the district court is not to resolve issues of fact but only to determine whether there is a genuine triable issue as to a material fact. In making that determination, the court is required to resolve all ambiguities, and to credit all factual inferences that could rationally be drawn, in favor of the party against whom summary judgment is sought. See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 465 (2d Cir.1989); Donahue v. Windsor Locks Board of Fire Commissioners, 834 F.2d 54, 57 (2d Cir.1987). It is not the province of the court itself to decide what inferences should be drawn, see, e.g., Cronin v. Aetna Life Insurance Co., 46 F.3d at 204; Chambers v. TRM Copy Centers Corp., 43 F.3d at 38; if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper, see, e.g., Stern v. Trustees of Columbia University, 131 F.3d at 312; Brady v. Town of Colchester, 863 F.2d 205, 210 (2d Cir.1988). Guided by these principles, we review a district court’s grant of summary judgment de novo. See, e.g., Kerzer v. Kingly Manufacturing, 156 F.3d 396, 400 (2d Cir.1998); Shumway v. United Parcel Service, Inc., 118 F.3d 60, 63 (2d Cir.1997). In determining the appropriateness of summary judgment, the court should not consider the record solely in piecemeal fashion, giving credence to innocent explanations for individual strands of evidence, for a jury, in assessing whether there was impermissible discrimination and whether the defendant’s proffered explanation is a pretext for such discrimination, would be entitled to view the evidence" }, { "docid": "22116544", "title": "", "text": "or a job benefit. It does not, for instance, delineate distinct claims for employers who dislike women, doubt their abilities, demand that they conform to sex stereotypes, or want their policies to reflect actuarial differences between the sexes. What matters, instead, is simply whether an employment action was based on plaintiffs sex. Similarly, there is no reason to create a separate doctrinal category for employers who make women’s workplace success contingent on submission to a supervisor’s sexual demands. For such a sexual quid pro is just another way in which an employer, in violation of Title VII, makes an employee’s sex relevant to an employment decision. See Johnson Controls, 499 U.S. at 199, 111 S.Ct. 1196 (holding that whether an employment practice is based on sex “does not depend on why the employer discriminates”); E.E.O.C. v. Joe’s Stone Crab, Inc., 220 F.3d 1263, 1283 (11th Cir.2000) (same). As a result, a plaintiff seeking to demonstrate sex discrimination is not required to disentangle various threads that, after all, need not have a separate existence, given that various forms of discrimination may well co-exist in a workplace. Thus, a jury might find it more plausible that a supervisor would be willing to fire a woman for refusing a sexual advance if it also had reason to think that he discounted women’s abilities to be productive workers. Or it might conclude that his request for a quid 'pro quo reflected an insistence that women relate to men according to sexual stereotypes rather than as co-workers. And these considerations may well, in combination, demonstrate that the employee’s sex played a sufficient causal role, as to result in Title VII liability. This could be so, moreover, even though, in isolation, no single way in which sex influenced the employer’s decision sufficed to warrant that conclusion. See Howley, 217 F.3d at 151 (“[T]he court should not consider the record solely in piecemeal fashion, giving credence to innocent explanations for individual strands of evidence, for a jury, in assessing whether there was impermissible discrimination ... would be entitled to view the evidence as a whole.”) In the" }, { "docid": "22337845", "title": "", "text": "in the case suggesting that Columbia’s explanation — that it hired Puleo over Stern because Puleo gave a better teaching performance — might be pretextual.” Dissenting opinion post at 319. Though the dissent characterizes the Chair’s statement as the “only” evidence from which pretext could be inferred, id., the jury will plainly be entitled to assess that statement in the context of the record as a whole — including the circumstances that Puleo’s teaching performance was evaluated by a committee whose majority, appointed by the- University in a deviation from its usual procedure, did not know the language in which he taught — and to conclude that the relative teaching performances of Stern and Puleo were not a genuine reason for the University’s decision and that the decision was based in whole or in part on a preference for hiring a person of Hispanic origin. In sum, where, as here, the proffered rationale was that an evaluation had been made that one candidate was better than another, and the challenged decision was made only after the University had deviated from its normal decisionmaking procedures, had stated that it needed more Hispanics in the department in question, had appointed advis-ors who lacked proficiency in the skills they were asked to evaluate, and had informed another potential candidate that Stern’s candidacy would not be considered seriously, we eonclude that there were genuine issues of fact to be tried as to whether the University’s explanation that it hired Puleo only because he was better than Stern was true, and whether the University refused to give serious consideration to Stern’s candidacy because he was not of Hispanic origin. CONCLUSION We have considered all of the University’s arguments on this appeal in support of summary judgment and have found them to be without merit. The judgment is vacated, and the matter is remanded for trial. CALABRESI, Circuit Judge, dissenting: I do not disagree with the majority that Stern has.made out a prima facie case of discrimination in violation of Title VII. It is clear that he has done so. But unlike the majority, I believe" }, { "docid": "22160003", "title": "", "text": "meet in order to defeat summary judgment at the prima facie stage is “not onerous,” Texas Department of Community Affairs v. Bur-dine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), and has been described as “de minimis,” Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 37 (2d Cir.1994); see, e.g., Dister v. Continental Group, Inc., 859 F.2d 1108, 1114 (2d Cir.1988). If the plaintiff meets that burden, and the employer then comes forward with admissible evidence of a legitimate nondiscriminatory reason for its adverse employment decision, the plaintiff is given an opportunity to adduce admissible evidence that would be sufficient to permit a rational finder of fact to infer that the employer’s proffered reason is pretext for an impermissible motivation, see, e.g., Texas Department of Community Affairs v. Burdine, 450 U.S. at 254-56, 101 S.Ct. 1089; McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. 1817. However, merely showing that the employer’s proffered explanation is not a genuine explanation does not in itself entitle the plaintiff to prevail; the plaintiff is not entitled to judgment unless she shows that the challenged employment decision was more likely than not motivated, in whole or in part, by unlawful discrimination. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 523-24, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993); Stern v. Trustees of Columbia University, 131 F.3d 305, 312 (2d Cir.1997); Fisher v. Vassar College, 114 F.3d 1332, 1339 (2d Cir.1997) (en banc), cert. denied, 522 U.S. 1075, 118 S.Ct. 851, 139 L.Ed.2d 752 (1998). “The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.” Texas Department of Community Affairs v. Burdine, 450 U.S. at 253, 101 S.Ct. 1089. “While we do not second-guess an employer’s hiring standards, the reasons for its employment decision, including its alleged reliance on [nondiscriminatory] standards, are subject to scrutiny under Title VII....” Stern v. Trustees of Columbia University, 131 F.3d at 313. Circumstances from which invidious discrimination may be inferred include preferential treatment given to employees outside the protected class. See," }, { "docid": "2013731", "title": "", "text": "at 207-08. As the Second Circuit noted in James: “the way to tell whether a plaintiffs case is sufficient to sustain a verdict is to analyze the particular evidence to determine whether it reasonably supports an inference of the facts plaintiff must prove—particularly discrimination.” 233 F.3d at 157; see Lapsley v. Columbia Univ., 999 F.Supp. 506 (S.D.N.Y.1998) (advocating elimination of McDonnell Douglas test in favor of simplified approach focusing on ultimate issue of whether sufficient evidence exists to permit jury to find discrimination). B. Application Defendants argue that plaintiff is unable to establish the fourth element of the pri-ma facie case: that he was denied a promotion because of his record of disability. In the alternative, defendants assert that even if plaintiff is able to establish a prima facie case, he is unable to show that' their proffered reason for the promotion decision is a pretext for discrimination on the basis of disability. Here, I address defendants’ arguments in the context of examining the entire record in considering the “ultimate question”: whether the record contains sufficient evidence from which a reasonable jury could find discrimination. I evaluate first plaintiffs evidence, then defendants’ evidence, and finally the record as a whole, keeping in mind the elusiveness of proof of discrimination and the principle that the jury is “entitled to view the evidence as a whole.” Stern v. Trustees of Columbia Univ., 131 F.3d 305, 314 (2d Cir.1997). 1. Plaintiff’s Evidence To support his discrimination claim, plaintiff offers the following evidence: his seizure disorder and related record of disability; his absences from work resulting from his medical condition; the performance of his work in a more than satisfactory manner as confirmed by positive performance evaluations, departmental recognition, and the recommendation of his commanding officer; the denial of plaintiff’s promotion to sergeant; the CARB’s review of documents detailing his medical history, sick record, use of anti-seizure medication, and history of limited or restricted duty; the CARB’s review of internal NYPD documents that referred to plaintiffs sick record as “excessive” and “extensive”; the CARB’s recommendation that plaintiff not be promoted because of “performance”; the" } ]

[ { "docid": "4433779", "title": "", "text": "for claims of discrimination in [covered] federal employment.” Id. at 835, 96 S.Ct. at 1969. The Title VII remedy declared exclusive for federal employees in Brown v. GSA precludes actions against federal officials for alleged constitutional violations as well as actions under other federal legislation. See Gissen v. Tackman, 537 F.2d 784 (3d Cir.1976) (en banc). We have followed the Supreme Court’s clear instruction, and have no warrant to depart from it in this case. See Lawrence v. Staats, 665 F.2d 1256, 1259 (D.C.Cir.1981); Torre v. Barry, 661 F.2d 1371, 1374 (D.C.Cir.1981); Hofer v. Campbell, 581 F.2d 975, 978 (D.C.Cir.1978), cert. denied, 440 U.S. 909, 99 S.Ct. 1218, 59 L.Ed.2d 457 (1979); Richardson v. Wiley, 569 F.2d 140, 141 (D.C.Cir.1977) (per curiam) (federal employee covered by Title VII may not sue under any other federal statute, e.g., 42 U.S.C. § 1981 (1976), or under the fifth amendment). See also Morris v. WMATA, 702 F.2d 1037 at 1040 (D.C.Cir.1983). Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979), relied upon by the Kizas complainants, leaves untouched the square ruling in Brown v. GSA that for the covered federal employee, Title VII is the “exclusive, pre-emptive administrative and judicial scheme for the redress of federal employment discrimination.” 425 U.S. at 829, 96 S.Ct. at 1966. Davis involved employment in the office of a member of Congress in a position outside Title VII’s domain. The Court held in Davis that section 717 does not foreclose the implication of a claim for damages directly under the fifth amendment when the complainant is “expressly unprotected by [Title VII].” 442 U.S. at 247, 99 S.Ct. at 2278. Citing Brown v. GSA, however, the Court noted that Title VII is exclusive when covered federal employees “seek to redress the violation of rights guaranteed by the statute.” Id. at 247 n. 26, 99 S.Ct. at 2278 n. 26. The Kizas complainants suggest, in repeated but less than lucid argument, that the Constitution’s equal protection principle entails a stricter restraint on classification by race or sex than does Title VII and would shelter them against" } ]

[ { "docid": "15976112", "title": "", "text": "(D.C.Cir.1981) (fifth amendment claim based on race discrimination would be barred if § 717 applied); Torre v. Barry, 661 F.2d 1371, 1372, 1374 (D.C.Cir.1981) (fifth amendment claim based on race discrimination barred); Hofer v. Campbell, 581 F.2d 975, 976, 978 (D.C.Cir. 1978) (fifth amendment claim based on national origin discrimination barred), cert. denied, 440 U.S. 909, 99 S.Ct. 1218, 59 L.Ed.2d 457 (1979); Richardson v. Wiley, 569 F.2d 140, 141 (D.C.Cir.1977) (per curiam) (fifth amendment claim based on race discrimination barred); cf. Morris v. Washington Metropolitan Area Transit Auth., 702 F.2d 1037, 1039-40 (D.C.Cir.1983) (if employer in case were federal agency, first amendment claim for retaliatory discharge prohibited by Title VII would be barred). . See Porter v. Adams, 639 F.2d 273, 277-78 (5th Cir.1981) (§ 2000e-16 prohibits retaliation against federal employee invoking Title VII rights). . See Hampton v. Mow Sun Wong, 426 U.S. 88, 96 S.Ct. 1895, 48 L.Ed.2d 495 (1976) (discussed with respect to § 717 in Davis v. Passman, 442 U.S. 228, 247, 99 S.Ct. 2264, 2278, 60 L.Ed.2d 846 (1979)); Ray v. Nimmo, 704 F.2d 1480, 1485 (11th Cir.1983) (§ 717 does not foreclose federal employee’s suit for deprivation of constitutionally protected property interest without due process); Brosnahan v. Eckerd, 435 F.Supp. 26, 28 (D.D.C.1977); cf. Davis v. Passman, 442 U.S. 228, 246-47, 99 S.Ct. 2264, 2277-78, 60 L.Ed.2d 846 (1979) (implied cause of action and damages remedy under fifth amendment against congressman not foreclosed by § 717, where § 717 does not cover congressional employee). . The EELC also claimed that the Library's decision was arbitrary and capricious in violation of the Administrative Procedure Act, 5 U.S.C. § 702. In Kissinger v. Reporters Comm, for Freedom of the Press, 445 U.S. 136, 100 S.Ct. 960, 63 L.Ed.2d 267 (1980), the Supreme Court noted that the Library of Congress is not an agency under the Freedom of Information Act. Id. at 145, 100 S.Ct. at 695; see 1 J. O’Reilly, Federal Information Disclosure § 5.02 at 5-5 (1984); cf. 36 C.F.R. § 703.1 (1984). As the definition of an agency in the Freedom of Information" }, { "docid": "10432775", "title": "", "text": "the council members took any actions for which they could be held liable, if they did take any such action with respect to plaintiff’s employment status, it was clearly of an administrative rather than a legislative nature, in that it affected only a single individual. Therefore, we will not dismiss plaintiff’s claims against the council members on legislative immunity grounds. V. Title VII Claims Before a Title VII claim may be brought in a district court, an administrative charge must be filed with the Equal Employment Opportunity Commission. See 42 U.S.C. § 2000e-5(f); Ostapowicz v. Johnson Bronze Co., 541 F.2d 394, 398 (3d Cir.1976), cert. denied, 429 U.S. 1041, 97 S.Ct. 741, 50 L.Ed.2d 753 (1977); Sandom v. Travelers Mortgage Services, Inc., 752 F.Supp. 1240, 1246 (D.N.J.1990). Plaintiff admits that she did not pursue any administrative remedies, and she has not responded to defendants’ argument that her Title VII claims are therefore barred. Accordingly, plaintiff's Title VII claims will be dismissed. VI. Title VII Preemption of § 1981, § 1983, and § 1985 Claims Defendants argue that because plaintiff’s claims are cognizable both under the Civil Rights Statutes, 42 U.S.C. §§ 1981, 1983, and 1985, and under Title VII, they can only be brought under Title VII because Title VII preempts the other causes of action. This argument is simply wrong, and is clearly based on a misreading of the case law. First, defendants rely on Great American Federal Savings and Loan Ass’n v. Novotny, 442 U.S. 366, 99 S.Ct. 2345, 60 L.Ed.2d 957 (1979) for the proposition that § 1985(3) claims are preempted by Title VII. In fact, this case stands for a very different proposition. Section 1985 creates no substantive rights, but merely provides a civil cause of action where some otherwise defined federal right is breached by a conspiracy in the manner defined by the statute. In Novotny, the Supreme Court simply held that a § 1985 plaintiff cannot rely on Title VII for that otherwise defined federal right. See id. at 378, 99 S.Ct. at 2352. Where, as here, the § 1985 claim is based on" }, { "docid": "16411800", "title": "", "text": "the first act of discrimination is alleged to have occurred in October 1973. It is not necessary, however, for the Court to determine whether the one-year or two-year limitation period is applicable, because plaintiff has alleged a pattern and practice of unlawful sex-based discriminatory activity by defendants continuing at least to the date of the second amended complaint. Taliaferro v. State Council of Higher Education, 372 F.Supp. 1378, 1383 (E.D.Va.1974); Dupree v. City of Chattanooga, 362 F.Supp. 1136, 1139 (E.D.Tenn.1973); cf. Williams v. Norfolk & Western Railway Co., 530 F.2d 539, 542 (4th Cir. 1975) (statute of limitations for Section 1981 action inapplicable when discrimination is continuing). The Court holds that plaintiff’s claims under Sections 1983 and 1985(3) are not barred by the statute of limitations. B. Title VII as Preempting a Section 1983 Action Defendants contend that Title VII provides the exclusive judicial remedy for sex-based employment discrimination, preempting a Section 1983 action. The Supreme Court has twice recently considered the availability of a companion civil rights statute, 42 U.S.C. § 1981, as furnishing an alternative remedy to Title VII. In Johnson v. Railway Express Agency, supra, the Court unanimously held that in the context of private employment “the remedies available under Title VII and under § 1981, although related, and although directed to most of the same ends, are separate, distinct, and independent.” Id. 421 U.S. at 461, 95 S.Ct. at 1721. See also Alexander v. Gardner-Denver Co., 415 U.S. 36, 48, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974) (“. . . the legislative history of Title VII manifests a congressional intent to allow an individual to pursue independently his rights under both Title VII and other applicable state and federal statutes”). In Brown v. General Services Administration, 425 U.S. 820, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976), the Court held, however, that Section 717 of the Civil Rights Act of 1964, as added by Section 11 of the Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000e-16, provides the exclusive judicial remedy for claims of discrimination in federal employment. In Brown, the Court used a two-pronged" }, { "docid": "1083036", "title": "", "text": "Ms. Otto filed a timely appeal with this court seeking review of the dismissal of her constitutional and tort claims against Mr. Jacobson. DISCUSSION All the questions raised in this appeal are legal issues reviewable de novo by this court. United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.1984) (en banc), cert. denied — U.S. —, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). The questions presented for our review are whether Title VII provides the exclusive remedies for sex discrimination and, if not, whether Otto has stated claims for relief based on violations of her constitutional rights or on the tor-tious conduct of her supervisor. The district court dismissed Otto’s complaints on the authority of Brown v. GSA, 425 U.S. 820, 835, 96 S.Ct. 1961, 1969, 48 L.Ed.2d 402 (1976), which held that Title VII “provides the exclusive judicial remedy for claims of discrimination in federal employment.” A. Title VII Remedies Do Not Preclude Other Judicial Relief. The fundamental question in this case is whether Otto’s claims of constitutional violations and tortious conduct are claims of discrimination in employment. Both parties agree that Brown means that Title VII provides the exclusive remedy for discrimination in federal employment, and that sexual harassment has been considered sex discrimination since 1977. Barnes v. Costle, 561 F.2d 983, 989 (D.C.Cir.1977). This court followed Brown in holding that Title VII is the sole remedy for a race discrimination claim by a federal employee, but specifically noted that Title VII does not preclude separate remedies for “unconstitutional action other than discrimination.” White v. GSA, 652 F.2d 913, 917 (9th Cir.1981). Having acknowledged that unconstitutional actions may occur along with Title VII statutory violations, this court refused to view a federal employee’s due process claim arising from involuntary resignation caused by sex discrimination as a separately remediable claim because “the factual predicate for [her] due process claim [was] the discrimination which [was] the basis of her Title VII claim.” Nolan v. Cleland, 686 F.2d 806, 815 (9th Cir.1982); accord Clemente v. United States, 766 F.2d 1358, 1364 n. 7 (9th Cir.1985). Otto argues that her constitutional" }, { "docid": "20269084", "title": "", "text": "563, 127 S.Ct. 1955. Under the standard set forth in Twombly, a “court deciding a motion to dismiss must ... assume all the allegations in the complaint are true (even if doubtful in fact) ... [and] must give the plaintiff the benefit of all reasonable inferences derived from the facts alleged.” Aktieselskabet AF 21. November 2001 v. Fame Jeans Inc., 525 F.3d 8, 18 (D.C.Cir.2008) (internal quotations marks and citations omitted); see also Tooley v. Napolitano, 586 F.3d 1006, 1007 (D.C.Cir.2009) (declining to reject or address the government’s argument that Iqbal invalidated Aktieselskabet). III. Analysis Defendants first argue that Count VI must be dismissed because Title VII provides the exclusive remedy for allegations of discrimination and retaliation in federal employment. Second, Defendants argue that special factors counsel hesitation in the creation of a Bivens remedy for Kittner’s constitutional claims. Finally, Defendants argue that, even if Kittner can bring her Bivens claims, the Defendants sued in their individual capacities are entitled to qualified immunity. A. Title VII and the CSRA Counsel Hesitation in Creating a Bivens Remedy for Plaintiffs Constitutional Claims. Defendants rely on Brown v. Gen. Serv. Admin., 425 U.S. 820, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976), to argue that Title VII preempts Kittner’s constitutional claim. Brown held that Title VII “provides the exclusive judicial remedy for claims of discrimination in federal employment.” Id. at 834, 96 S.Ct. 1961. As a general rule, then, “when a plaintiff alleges facts that are actionable under Title VII and for which Title VII provides a remedy, Title VII preempts virtually all other federal causes of action.” Rochon v. FBI, 691 F.Supp. 1548, 1555 (D.D.C.1988). Plaintiff responds by citing Neely v. Blumenthal, 458 F.Supp. 945, 957 (D.D.C.1978), where the District Court held that Brown’s preemption rule is inapplicable to Bivens claims for damages brought against individual officers accused of discrimination. Neely held that “Brown’s preemption rule stands circumscribed to the extent of cutting off only official remedies for federal employment discrimination,” and not judicially created remedies. Id. at 954. In reaching this conclusion, Judge Sirica relied on the fact that the issue was" }, { "docid": "7771697", "title": "", "text": "it unlikely that the Kansas courts would adopt a liability rule with such broad implications. This inventive cause of action appears to be nothing more than an attempt to circumvent the strictures of the employment-at-will doctrine by implying a duty that exposes higher level supervisors to liability for actions for which her immediate supervisors are not liable. We affirm the district court’s entry of summary judgment on this issue. IV Title VII Violations as § 1983 Claims Plaintiff has asserted claims under 42 U.S.C. § 1983, alleging that her termination violated her rights under the First Amendment, the Equal Protection Clause of the Fourteenth Amendment, and Title VII, 42 U.S.C. § 2000e-2 et seq. Plaintiffs First Amendment claim was submitted to the jury, which returned a verdict for defendants. She does not appeal this decision. Her Title VII-based claim was rejected by the district court on the ground that the enforcement provisions expressly created in Title VII provide the exclusive remedy for employment discrimination suits premised solely on its violation. We agree. The precisely drawn, detailed enforcement structure of the later statute must be deemed to preempt the earlier general remedial statute. See Day v. Wayne County Bd. of Auditors, 749 F.2d 1199, 1203-04 (6th Cir.1984); cf. Brown v. General Services Administration, 425 U.S. 820, 835, 96 S.Ct. 1961, 1969, 48 L.Ed.2d 402 (1976) (dismissing 42 U.S.C. § 1981 claim because Title VII “provides the exclusive judicial remedy for claims of discrimination in federal employment”); Preiser v. Rodriguez, 411 U.S. 475, 489, 500, 93 S.Ct. 1827, 1836, 1841, 36 L.Ed.2d 439 (1973) (federal prisoners may not bring § 1983 action to challenge length of imprisonment due to availability of specific writ of habeas corpus remedies). We also agree with the court below, however, that “a plaintiff may base a section 1983 claim on actions proscribed by Title VII where those actions also violate the United States Constitution.” Polson, 635 F.Supp. at 1140. See, e.g., Grano v. Department of Dev., 637 F.2d 1073 (6th Cir.1980) (employee allowed to sue employer under both Title VII and § 1983 when same employer conduct" }, { "docid": "10967461", "title": "", "text": "of employment discrimination actions. Thus, the plaintiffs claim under 42 U.S.C. § 1985(3) must fail. Support for dismissal of the conspiracy claim is found in Great American Savings & Loan Assoc. v. Novotny, 442 U.S. 366, 99 S.Ct. 2345, 60 L.Ed.2d 957 (1978) which teaches that claims under Title VII and § 1985(3) may not be brought based on the same factual occurrence. Id. at 378, 99 S.Ct. at 2352. The Court continued, “§ 1985(3) may not be invoked to redress violations of Title VII.” Id. Although Novotny specifically addressed private sector employment situations, it is consistent to similarly apply it to a federal employment setting. Indeed, where § 1985(3) claims have arisen in federal employment actions, they have been dismissed as outside the exclusive Title VII remedy established in Brown and Novotny. See White v. General Services Administration, 652 F.2d 913 (9th Cir.1981); Quillen v. United States Postal Service, 564 F.Supp. 314 (E.D.Mich.1983). B. Constitutional Claims Brown, supra, has also been interpreted to bar employment claims under constitutional causes of action; e.g., White v. General Services Administration, 652 F.2d 913 (9th Cir.1981); Richardson v. Wiley, 569 F.2d 140 (D.D.C. 1977). In Richardson, the District of Columbia Circuit relied on Brown in holding that where a federal employee challenged an adverse personnel action under both the Fifth Amendment and Title VII, only Title VII was applicable. 569 F.2d at 141. See also, Lang v. Schweiker, 26 FEP 1413 (N.D.Ga.1981), aff'd, 692 F.2d 769 (11th Cir.1982); Broussard v. United States Postal Service, 674 F.2d 1103 (5th Cir.1982). In White, supra, the Ninth Circuit reached a similar result regarding First Amendment and Title VII claims. Citing Brown, that court found a claim of EEO retaliation well within the coverage of Title VII and therefore that the constitutional claim of retaliation was precluded. 652 F.2d at 917. The analysis of these courts applies to the plaintiffs state and federal constitutional claims in this case. In every instance the constitutional claims are predicated upon the same allegations as her sex and handicap discrimination, retaliation, and sexual harassment claims. The plaintiff has a sufficient statutory" }, { "docid": "11512185", "title": "", "text": "Court has held squarely that section 717 “provides the exclusive judicial remedy for claims of discrimination in federal employment.” Brown v. General Services Administration, 425 U.S. 820, 835, 96 S.Ct. 1961, 1969, 48 L.Ed.2d 402 (1976). The Court held that the Johnson case was distinguishable: In Johnson the Court held that in the context of private employment Title VII did not preempt other remedies. But that decision is inapposite here. In the first place, there were no problems of sovereign immunity in the context of the Johnson case. Second, the holding in Johnson rested upon the explicit legislative history of the 1964 Act which “ ‘manifests a congressional intent to allow an individual to pursue independently his rights under both Title VII and other applicable state and federal statutes.’ ” ****** There is no such legislative history behind the 1972 amendments. Indeed, as indicated above, the congressional understanding was precisely to the contrary. 425 U.S. at 833-34, 96 S.Ct. at 1968-69 [emphasis in original]. The Court also concluded that the “balance, completeness, and structural integrity” of section 717’s administrative and judicial enforcement mechanisms evinced Congress’ intention to preclude all other forms of relief. Id. at 832-33, 96 S.Ct. at 1967-68. Therefore, a federal employee who is covered by section 717 may not sue under section 1981 or the Fifth Amendment. See Richardson v. Wiley, 186 U.S.App.D.C. 309, 310, 569 F.2d 140, 141 (1977). Thus, to decide in the present case whether the appellant Torre could bring his race discrimination suit under section 1981 or whether that action was precluded by the 1972 amendments to Title VII, we must determine the status of employees of the District of Columbia Fire Department under Title VII. 2. The Status of District of Columbia Employees under Title VII Congress recognized two categories of District of Columbia employees in the 1972 amendments to Title VII. First, section 717 of the Act applies to “employees ... in those units of the Government of the District of Columbia having positions in the competitive service.” 42 U.S.C. § 2000e-16(a). In contrast, section 706 applies to employers as defined" }, { "docid": "18435908", "title": "", "text": "Brown, 425 U.S. at 829, 90 S.Ct. at 1966. Thus, the Supreme Court held that, “the established principle leads unerringly to the conclusion that Section 717 of the Civil Rights Act of 1964, as amended, provides the exclusive judicial remedy for claims of discrimination in federal employment.” Brown, 425 U.S. at 835, 96 S.Ct. at 1969. The federal courts have consistently applied this rule. Nolan v. Cleland, 686 F.2d 806, 815 (9th Cir.1982); White v. General Services Administration, 652 F.2d 913, 916 (9th Cir.1981); Eastland v. Tennessee Valley Authority, 553 F.2d 364 (5th Cir.1979); cert. denied, 434 U.S. 985, 98 S.Ct. 611, 54 L.Ed.2d 479 (1976); Gissen v. Tackman, 537 F.2d 784 (3rd Cir.1976) (per curiam) (en banc); see Purtill v. Harris, 658 F.2d 134, 137 (3rd Cir.1981). A careful reading of Plaintiff’s response to Defendant’s motion indicates that he is claiming that he has a right to assert that Defendant violated his First Amendment rights in a Rivens-type action and that this claim is separate and distinct from his Title VII claim. The Ninth Circuit, in Nolan v. Cleland, supra, considered Nolan’s conten tion that her due process claim should be considered separately from her claim brought pursuant to Section 717 of the Civil Rights Act of 1964. The Ninth Circuit, however, struck Nolan’s due process claim, holding that Brown v. General Services Administration, supra, provided Nolan with an exclusive judicial remedy. “[W]e feel that such holding cannot be circumvented where the factual predicate for Nolan’s due process claim is the discrimination which is the basis of her Title VII claim.” Nolan v. Cleland, 686 F.2d at 815. Likewise, the factual predicate for Plaintiff’s First Amendment claim is the discrimination which is the basis of his Title VII claim. Thus, Brown is controlling here. Plaintiff also argues that he is entitled to make a claim for a Bivens-type remedy because he satisfies the Bivens two-prong test; that there are no special factors counselling hesitation and that Congress has not provided an alternative remedy which is a substitute for recovery directly under the Constitution. This is a specious argüment, however." }, { "docid": "10967460", "title": "", "text": "a final agency decision ever issued. The plaintiff asserts in the September letter that upon a finding by the USPS that she was mentally disabled, the USPS was required by the Rehabilitation Act of 1973 to reasonably accommodate her condition. She claims no effort was made by the USPS to find her another job which she was capable of performing and thus, that she was terminated in violation of the Rehabilitation Act. Finally, the plaintiff claims that her First, Fourth, and Fifth Amendment rights were violated in retaliation for her filing of EEO complaints and because she was a woman. Discussion of the Law I. Exclusivity of Title VII in Federal Employment Discrimination Actions A. 42 U.S.C. § 1985(3) Conspiracy Claims Title 42 U.S.C. § 2000e-16 is the exclusive remedy for federal employees in employment discrimination cases. Brown v. General Services Administration, 425 U.S. 820, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1975). As discussed in the companion ruling of even date, Dr. Makover's Motion to Dismiss, postal service workers are considered federal employees for purposes of employment discrimination actions. Thus, the plaintiffs claim under 42 U.S.C. § 1985(3) must fail. Support for dismissal of the conspiracy claim is found in Great American Savings & Loan Assoc. v. Novotny, 442 U.S. 366, 99 S.Ct. 2345, 60 L.Ed.2d 957 (1978) which teaches that claims under Title VII and § 1985(3) may not be brought based on the same factual occurrence. Id. at 378, 99 S.Ct. at 2352. The Court continued, “§ 1985(3) may not be invoked to redress violations of Title VII.” Id. Although Novotny specifically addressed private sector employment situations, it is consistent to similarly apply it to a federal employment setting. Indeed, where § 1985(3) claims have arisen in federal employment actions, they have been dismissed as outside the exclusive Title VII remedy established in Brown and Novotny. See White v. General Services Administration, 652 F.2d 913 (9th Cir.1981); Quillen v. United States Postal Service, 564 F.Supp. 314 (E.D.Mich.1983). B. Constitutional Claims Brown, supra, has also been interpreted to bar employment claims under constitutional causes of action; e.g., White v." }, { "docid": "15976111", "title": "", "text": "and practices; (5) it provides proof of membership of not less than 50 employees of the Library of Congress ____ Section 4C of LCR 2022-2 (1975) provides in part: The Director of Personnel ... may withdraw recognition of any organization when: (1) it fails to meet or to conform with the requirements of this Regulation, as set out in A. above; or (2) its activities infringe upon the exclusive functions and rights of labor organizations . See LCR 2010-3.1 § 12B (1974) (quoted supra note 9). The record does not contain details of the Library’s request for further information and the responses, if any, of the EELC. We express no opinion on whether the EELC’s filing of an administrative complaint, followed by its alleged failure to provide additional information, constituted adequate exhaustion of administrative remedies. . See Kizas v. Webster, 707 F.2d 524, 542 (D.C. Cir.1983) (fifth amendment claim based on race and sex discrimination barred), cert. denied, — U.S.-, 104 S.Ct. 709, 79 L.Ed.2d 173 (1984); Lawrence v. Staats, 665 F.2d 1256, 1257, 1259 (D.C.Cir.1981) (fifth amendment claim based on race discrimination would be barred if § 717 applied); Torre v. Barry, 661 F.2d 1371, 1372, 1374 (D.C.Cir.1981) (fifth amendment claim based on race discrimination barred); Hofer v. Campbell, 581 F.2d 975, 976, 978 (D.C.Cir. 1978) (fifth amendment claim based on national origin discrimination barred), cert. denied, 440 U.S. 909, 99 S.Ct. 1218, 59 L.Ed.2d 457 (1979); Richardson v. Wiley, 569 F.2d 140, 141 (D.C.Cir.1977) (per curiam) (fifth amendment claim based on race discrimination barred); cf. Morris v. Washington Metropolitan Area Transit Auth., 702 F.2d 1037, 1039-40 (D.C.Cir.1983) (if employer in case were federal agency, first amendment claim for retaliatory discharge prohibited by Title VII would be barred). . See Porter v. Adams, 639 F.2d 273, 277-78 (5th Cir.1981) (§ 2000e-16 prohibits retaliation against federal employee invoking Title VII rights). . See Hampton v. Mow Sun Wong, 426 U.S. 88, 96 S.Ct. 1895, 48 L.Ed.2d 495 (1976) (discussed with respect to § 717 in Davis v. Passman, 442 U.S. 228, 247, 99 S.Ct. 2264, 2278, 60 L.Ed.2d 846 (1979));" }, { "docid": "894138", "title": "", "text": "VII was the exclusive remedy available to a federal employee alleging job-related racial discrimination. He therefore recommended that the district court dismiss all claims other than those based on 42 U.S.C. § 2000e-16. The magistrate also recommended that the district court dismiss all the individual defendants except the GSA Administrator in his official capacity. The district court adopted these recommendations. As originally enacted, Title VII did not provide a remedy for a federal employee alleging job-related racial discrimination. Brown v. General Services Administration, 425 U.S. 820, 825, 96 S.Ct. 1961, 1964, 48 L.Ed.2d 402 (1976). This loophole in the statute was filled by § 2000e-16 of the 1972 amendments. In Brown, the Supreme Court, after a review of both the statutory language and the legislative history, concluded that the effect of the 1972 amendments was to make Title VII the exclusive remedy for federal employee race discrimination. The Brown rule was subsequently applied by this court in Scott v. Perry, 569 F.2d 1064 (9th Cir. 1973). White asserts, however, that the holding in Brown is limited to actions against the United States and does not extend to actions against federal officials acting in their individual capacities. We disagree. Brown did not distinguish between a suit against the government or its individual employees; rather, the court concluded that congressional intent underlying § 2000e-16 was to create “an exclusive, preemptive administrative and judicial scheme for the redress of federal employment discrimination.” 425 U.S. at 829, 96 S.Ct. at 1966. We believe that allowing additional individual remedies would interfere with that carefully devised scheme by permitting circumvention of administrative remedies. We therefore conclude that the principles announced in Brown govern this case and limit plaintiff to his Title VII claim against the federal government. We note that the Third Circuit and the Fifth Circuit share our view of Brown. Gissen v. Tackman, 537 F.2d 784 (3d Cir. 1976) (en banc); Newbold v. United States Postal Service, 614 F.2d 46 (5th Cir.), cert. denied, 449 US. 878, 101 S.Ct. 225, 66 L.Ed.2d 101 (1980). See Berio v. EEOC, 446 F.Supp. 171 (D.D.C.1978). C. Title" }, { "docid": "894139", "title": "", "text": "limited to actions against the United States and does not extend to actions against federal officials acting in their individual capacities. We disagree. Brown did not distinguish between a suit against the government or its individual employees; rather, the court concluded that congressional intent underlying § 2000e-16 was to create “an exclusive, preemptive administrative and judicial scheme for the redress of federal employment discrimination.” 425 U.S. at 829, 96 S.Ct. at 1966. We believe that allowing additional individual remedies would interfere with that carefully devised scheme by permitting circumvention of administrative remedies. We therefore conclude that the principles announced in Brown govern this case and limit plaintiff to his Title VII claim against the federal government. We note that the Third Circuit and the Fifth Circuit share our view of Brown. Gissen v. Tackman, 537 F.2d 784 (3d Cir. 1976) (en banc); Newbold v. United States Postal Service, 614 F.2d 46 (5th Cir.), cert. denied, 449 US. 878, 101 S.Ct. 225, 66 L.Ed.2d 101 (1980). See Berio v. EEOC, 446 F.Supp. 171 (D.D.C.1978). C. Title VII as the exclusive judicial remedy for retaliation for filing an EEO complaint. Finally, White argues, with very little elaboration, that the actions of the defendant officials in demoting him were in retaliation for his making an EEO complaint, and that the chilling effect violated his first amendment rights. He contends that as a result he has a right of action against the officials independent of his Title VII remedy- It is true that Title VII does not preclude separate remedies for unconstitutional action other than discrimination based on race, sex, religion or national origin. See Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980); Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). In this instance, however, White has not asserted a separate constitutional claim for which there is no statutory remedy. Any claims of retaliation are within the scope of Title VII. Section 2000e-3 provides in pertinent part: (a) It shall be unlawful employment practice for an employer to discriminate against any" }, { "docid": "10967462", "title": "", "text": "General Services Administration, 652 F.2d 913 (9th Cir.1981); Richardson v. Wiley, 569 F.2d 140 (D.D.C. 1977). In Richardson, the District of Columbia Circuit relied on Brown in holding that where a federal employee challenged an adverse personnel action under both the Fifth Amendment and Title VII, only Title VII was applicable. 569 F.2d at 141. See also, Lang v. Schweiker, 26 FEP 1413 (N.D.Ga.1981), aff'd, 692 F.2d 769 (11th Cir.1982); Broussard v. United States Postal Service, 674 F.2d 1103 (5th Cir.1982). In White, supra, the Ninth Circuit reached a similar result regarding First Amendment and Title VII claims. Citing Brown, that court found a claim of EEO retaliation well within the coverage of Title VII and therefore that the constitutional claim of retaliation was precluded. 652 F.2d at 917. The analysis of these courts applies to the plaintiffs state and federal constitutional claims in this case. In every instance the constitutional claims are predicated upon the same allegations as her sex and handicap discrimination, retaliation, and sexual harassment claims. The plaintiff has a sufficient statutory remedy without this Court implying a constitutional remedy. The Court therefore dismisses the plaintiffs federal and state constitutional claims. C. 29 U.S.C. § 794c — Rehabilitation Act Claim Several courts have found that a plaintiff may have a cause of action under the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791 et seq. in addition to Title VII claims. See, e.g., Counts v. United States Postal Service, 631 F.2d 46 (5th Cir.1980); McNutt v. Hills, 426 F.Supp. 990 (D.D.C.1977); Cagan v. United States Postal Service, Civ. Action 81-0032-F (D.Mass.1982) [Available on WESTLAW, DCTU database]. The rational for this finding rests upon the fact that 42 U.S.C. § 2000e to 2000e-17 proscribe only discrimination based on race, color, religion, sex, or national origin. McNutt, 426 F.Supp. at 1002, n. 27. Failure to permit a plaintiff to bring suit under the Rehabilitation Act would therefore preclude a remedy for this type of claim. Id., at 1002. The Court finds that it has subject matter jurisdiction over the plaintiffs Rehabilitation Act claim because it is not" }, { "docid": "4936849", "title": "", "text": "Title VII preempts § 1983 constitutional claims for employment discrimination have reached varying results. See, e.g., Waid v. Merrill Area Public Schools, 91 F.3d 857, 861-62 (7th Cir.1996) (claims for relief covered by Title VII are preempted, others are not); Jackson v. City of Atlanta, Tx., 73 F.3d 60, 63 (5th Cir.) (Title VII preempts § 1983 claims of discrimination in public employment arising from the same facts), cert. denied, — U.S. —, 117 S.Ct. 70, 136 L.Ed.2d 30 (1996); Beardsley, 30 F.3d at 527 (1991 amendments to Title VII do not indicate Congress’s intent to preempt other remedies, therefore § 1983 claim not preempted). The First Circuit has not considered the issue since the 1991 amendments to Title VII and judges within the district of Puerto Rico, where the preemption issue has arisen, disagree. Compare Marrero-Rivera v. Department of Justice, 800 F.Supp. 1024, 1031-32 (D.P.R.1992) (holding that the 1991 amendments to Title VII provide comprehensive remedy for employment discrimination and preempt all other causes of action including § 1983 actions) with Ribot Espada v. Woodroffe, 896 F.Supp. 69, 70 (D.P.R.1995) (holding that Title VII does not provide exclusive remedy for claims of employment discrimination). As the First Circuit has not reconsidered its decision in Lipsett, 864 F.2d at 896-97, which it followed in Pontarelli 930 F.2d at 113, Lipsett provides the rule for this case, permitting concurrent causes of action for employment discrimination under Title VII and § 1983. 8. Municipal Liability Under § 1988 The Laconia School District asserts that Madon has failed to state a claim against it because his allegations rely on a theory of respondeat superior. A claim under § 1983 against a municipal entity, such as a school district, must be based on a municipal policy, custom, or practice that caused, or was a moving force behind, a deprivation of the plaintiffs constitutional rights, and cannot rest on a respondeat theory. Monell v. Department of Social Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 2037-38, 56 L.Ed.2d 611 (1978). Therefore, to state a claim against the school district, Madon must allege that: (1) a" }, { "docid": "20269085", "title": "", "text": "Remedy for Plaintiffs Constitutional Claims. Defendants rely on Brown v. Gen. Serv. Admin., 425 U.S. 820, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976), to argue that Title VII preempts Kittner’s constitutional claim. Brown held that Title VII “provides the exclusive judicial remedy for claims of discrimination in federal employment.” Id. at 834, 96 S.Ct. 1961. As a general rule, then, “when a plaintiff alleges facts that are actionable under Title VII and for which Title VII provides a remedy, Title VII preempts virtually all other federal causes of action.” Rochon v. FBI, 691 F.Supp. 1548, 1555 (D.D.C.1988). Plaintiff responds by citing Neely v. Blumenthal, 458 F.Supp. 945, 957 (D.D.C.1978), where the District Court held that Brown’s preemption rule is inapplicable to Bivens claims for damages brought against individual officers accused of discrimination. Neely held that “Brown’s preemption rule stands circumscribed to the extent of cutting off only official remedies for federal employment discrimination,” and not judicially created remedies. Id. at 954. In reaching this conclusion, Judge Sirica relied on the fact that the issue was never raised in Brown. However, it does not follow logically that the absence of the issue in Brown compels the conclusion that the Brown holding is not applicable to the facts in Neely. It would certainly appear that Neely has not withstood the test of time nor the thrust of new caselaw, considering that the opinion, which was issued over thirty years ago, has never been cited by any federal court and is not consistent with the teachings of Schweiker v. Chilicky, 487 U.S. 412, 108 S.Ct. 2460, 101 L.Ed.2d 370; Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983); and Spagnola v. Mathis, 859 F.2d 223, 226 (D.C.Cir.1988) (en banc). Our Court of Appeals has subsequently ruled that Brown’s preemption rule would apply to preempt a plaintiffs common-law state tort claims alleging discrimination against individual federal officials. Ramey v. Bowsher, 915 F.2d 731, 734 (D.C.Cir.1990) (“[T]o the extent that Ramey attempts to recast his tort claims against the supervisors as pure discrimination claims, they are in any event barred by" }, { "docid": "21402050", "title": "", "text": "prima facie case under § 1983: There must be conduct by someone acting under color of state law and this conduct must deprive Plaintiff of rights secured by the Constitution or laws of the United States. Day v. Wayne County Bd. of Auditors, 749 F.2d 1199, 1205 (6th Cir.1984). Section 1983 is a remedial statute which does not create substantive rights. Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 616-18, 99 S.Ct. 1905, 60 L.Ed.2d 508 (1979). It provides a remedy for the violation of rights created elsewhere. See, e.g., Albright v. Oliver, 510 U.S. 266, 271, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994). As the Supreme Court made clear in Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980), § 1983 provides a remedy for actions under color of law which contravene federally protected rights, whether those rights derive from the Constitution or from a federal statute. Here, it is undisputed that Defendants acted under color of state law. Also, as outlined above, they violated Title VII, a federal statute, by retaliating against Plaintiff for his complaints concerning their employment practices. Thus, while the prima facie case under § 1983 has been satisfied, there is something about the relationship between Title VII and § 1983 that requires a different conclusion. Defendants claim that a § 1983 claim is preempted by Title VII. Title VII, however, does not categorically preempt all § 1983 claims based on employment discrimination. See, e.g., Andrews v. City of Philadelphia, 895 F.2d 1469 (3d Cir.1990); Regan v. Township of Lower Merion, 36 F.Supp.2d 245 (E.D.Pa.1999). The issue here is whether a § 1983 claim is cognizable when the only conduct at issue is retaliation in violation of Title VII. Most circuits, including the Third Circuit, have held that “Title VII is not the exclusive remedy for discrimination claims against state or municipal employers, where those claims derive from violations of Constitutional rights.” Annis v. County of Westchester, 36 F.3d 251, 254 (2d Cir.1994). See also, Bradley v. Pittsburgh Bd. of Educ., 913 F.2d 1064, 1079 (3d Cir.1990) (“Title VII does" }, { "docid": "10955142", "title": "", "text": "federal employee cases, distinguishing these cases on the basis of legislative history of the Title VII amendment enacting Section 717 and sovereign immunity. Brown at 833-34, 96 S.Ct. at 1968-69. Title VII, and specifically Section 717, is a “precisely drawn statute” and Section 717 preempted “more general statutes.” Brown at 834, 96 S.Ct. at 1968. Section 717 might probably “be driven out of currency were immediate access to the courts under other, less demanding, statutes permissible.” Id. at 833, 96 S.Ct. at 1968. “Based upon this analysis, jurisdiction has been denied in suits tying § 717 actions with ... Fifth Amendment claims ... and First Amendment claims.” Lage v. Thomas, 585 F.Supp. 403, 405-06 (N.D.Tex.1984); see, e.g., Kizas v. Webster, 707 F.2d 524, 542 (D.C.Cir.1983), cert. denied, 464 U.S. 1042, 104 S.Ct. 709, 79 L.Ed.2d 173 (1984) (fifth amendment claim); Porter v. Adams, 639 F.2d 273, 278 (5th Cir.1981) (fifth amendment claim); Sorrells v. V.A., 576 F.Supp. 1254, 2258 (S.D.Ohio 1983) (first amendment claim); Munoz v. Orr, 559 F.Supp. 1017, 1019 (W.D.Tex.1983) (first amendment claim). While Section 717 is the exclusive judicial remedy for discrimination against federal employees, “Title VII does not preclude separate remedies for unconstitutional action other than discrimination based on race, sex, religion or national origin.” White v. GSA, 652 F.2d 913, 917 (9th Cir. 1981) (emphasis added); see also Carlson v. Green, 446 U.S. 14, 21, 100 S.Ct. 1468, 1473, 64 L.Ed.2d 15 (1980). Therefore, non-Title VII claims would not be foreclosed if they were based on actions other than the discrimination outlawed by Title VII. “Nothing in [Title VII’s legislative] history even remotely suggests that Congress intended to prevent federal employees from suing their employers for constitutional violations against which Title VII provides no protection at all.” Ethnic Employees of Library of Congress v. Boorstin, 751 F.2d 1405, 1405-16 (D.C.Cir.1985); see Ray v. Nimmo, 704 F.2d 1480, 1485 (11th Cir.1983) (Section 717 does not foreclose federal employee’s suit for deprivation of constitutionally protected property interest without due process). Thus, plaintiff’s non-Title VII claims would stand if they were based on other than the discriminatory actions" }, { "docid": "10955141", "title": "", "text": "RULING ON MOTION TO DISMISS and MOTION TO STRIKE DORSEY, District Judge. Defendants have moved to dismiss plaintiff’s third, fourth and sixth claims (the fifth claim for violation of the right to disclose information without retaliation has been deleted from plaintiff’s second amended complaint). These three claims are founded, respectively, upon the fifth and first amendments and a claimed contractual right to union representation contained within a labor agreement. In private employer situations, the Supreme Court has insisted that “the aggrieved individual clearly is not deprived of other remedies he possesses and is not limited to Title VII in his search for relief.” Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 459, 95 S.Ct. 1716, 1719, 44 L.Ed.2d 295 (1975). However, “[Section] 717 of the Civil Rights Act of 1964, as amended, provides the exclusive judicial remedy for claims of discrimination in federal employment.” Defendants’ Memorandum of Law at 3, citing Brown v. GSA, 425 U.S. 820, 835, 96 S.Ct. 1961, 1969, 48 L.Ed.2d 402 (1976). Brown makes clear that Johnson is inapposite in federal employee cases, distinguishing these cases on the basis of legislative history of the Title VII amendment enacting Section 717 and sovereign immunity. Brown at 833-34, 96 S.Ct. at 1968-69. Title VII, and specifically Section 717, is a “precisely drawn statute” and Section 717 preempted “more general statutes.” Brown at 834, 96 S.Ct. at 1968. Section 717 might probably “be driven out of currency were immediate access to the courts under other, less demanding, statutes permissible.” Id. at 833, 96 S.Ct. at 1968. “Based upon this analysis, jurisdiction has been denied in suits tying § 717 actions with ... Fifth Amendment claims ... and First Amendment claims.” Lage v. Thomas, 585 F.Supp. 403, 405-06 (N.D.Tex.1984); see, e.g., Kizas v. Webster, 707 F.2d 524, 542 (D.C.Cir.1983), cert. denied, 464 U.S. 1042, 104 S.Ct. 709, 79 L.Ed.2d 173 (1984) (fifth amendment claim); Porter v. Adams, 639 F.2d 273, 278 (5th Cir.1981) (fifth amendment claim); Sorrells v. V.A., 576 F.Supp. 1254, 2258 (S.D.Ohio 1983) (first amendment claim); Munoz v. Orr, 559 F.Supp. 1017, 1019 (W.D.Tex.1983) (first amendment claim)." }, { "docid": "4936848", "title": "", "text": "Title VII preempts other similar employment discrimination claims brought by federal employees, Brown v. General Servs. Admin., 425 U.S. 820, 832, 96 S.Ct. 1961, 1967-68, 48 L.Ed.2d 402 (1976), and that claims alleging a conspiracy to violate Title VII are not actionable under 42 U.S.C.A. § 1985, Great American Federal Savings and Loan Ass’n v. Novotny, 442 U.S. 366, 378, 99 S.Ct. 2345, 2352, 60 L.Ed.2d 957 (1979). Before the Civil Rights Act of 1991, which amended Title VII to broaden the remedies available, courts generally recognized that Title VII was not intended to be the sole remedy for discrimination in public employment. Beardsley v. Webb, 30 F.3d 524, 527 (4th Cir.1994); see also Lonsdorf v. Seefeldt, 47 F.3d 893 (7th Cir.1995); Annis v. County of Westchester, 36 F.3d 251, 254-55 (2d Cir.1994); Notari v. Denver Water Dept., 971 F.2d 585 (10th Cir.1992); Pontarelli v. Stone, 930 F.2d 104, 113 (1st Cir.1991); Lipsett v. University of Puerto Rico, 864 F.2d 881, 896-97 (1st Cir.1988). Since the 1991 amendments, courts that have addressed the question whether Title VII preempts § 1983 constitutional claims for employment discrimination have reached varying results. See, e.g., Waid v. Merrill Area Public Schools, 91 F.3d 857, 861-62 (7th Cir.1996) (claims for relief covered by Title VII are preempted, others are not); Jackson v. City of Atlanta, Tx., 73 F.3d 60, 63 (5th Cir.) (Title VII preempts § 1983 claims of discrimination in public employment arising from the same facts), cert. denied, — U.S. —, 117 S.Ct. 70, 136 L.Ed.2d 30 (1996); Beardsley, 30 F.3d at 527 (1991 amendments to Title VII do not indicate Congress’s intent to preempt other remedies, therefore § 1983 claim not preempted). The First Circuit has not considered the issue since the 1991 amendments to Title VII and judges within the district of Puerto Rico, where the preemption issue has arisen, disagree. Compare Marrero-Rivera v. Department of Justice, 800 F.Supp. 1024, 1031-32 (D.P.R.1992) (holding that the 1991 amendments to Title VII provide comprehensive remedy for employment discrimination and preempt all other causes of action including § 1983 actions) with Ribot Espada v." } ]

[ { "docid": "5388410", "title": "", "text": "the Examining Officer, and I would like to ask you at this time if you desire a continuance. A. No. “By Hearing Officer: Very well, Mr. De Lucia, you may proceed. “By Examining Officer: I have no further questions to the respondent at this time in regard to the deportation charges. The attorney for the respondent has indicated that he desires to present some witnesses. “By Hearing Officer to Counsel: Counsel, you may cross examine”. It will be noticed that while the old charge remained, i. e., that appellant was a member of or was affiliated with an organization which advocates overthrow of the government by force or violence, appellant was now further charged with having been a member of the Communist Party after his entrance into the United States. Appellant was then questioned by his own attorney and gave testimony directly in conflict with Mr. Chandler’s and Mrs. Mesta’s testimony and contrary to the written statements given to Mr. Chandler. Several character witnesses were sworn and gave testimony most favorable to appellant. Appellant’s wife was sworn and gave testimony to the effect that her husband only attended lodge and union meetings. Upon the evidence as above outlined, the warrant of deportation, giving rise to the habeas corpus petition in suit, issued as of October 30, 1951. Appellant contends that the Internal Security Act of 1950, 8 U.S.C. § 137, as amended, 1950, infringed his constitutional rights as guaranteed by the Fifth Amendment, by making membership in the Communist Party a basis for deportation. We hold that Harisiades v. Shaughnessy, 1952, 342 U.S. 580, 72 S.Ct. 512, and Carlson v. Landon, 1952, 342 U.S. 524, 72 S.Ct. 525, see Carlson v. Landon, 9 Cir., 1950, 186 F.2d 183, and Carlson v. Landon, 9 Cir., 1951, 187 F.2d 991, are in direct opposition to appellant’s contention, inasmuch as each of these cases holds that Congress has plenary power to provide for the expulsion or deportation of aliens. The next point is made that the “evidence is insufficient to sustain the charge.” This point is wholly without merit. The next point is" } ]

[ { "docid": "14204481", "title": "", "text": "have been found in the United States in violation of the Immigration Act of February 5, 1917 in that on or after May 1, 1917 you have been sentenced to imprisonment for a term of one year or more because of a conviction in this country of a crime involving moral turpitude committed within five years after entry; to wit: making false and fraudulent statements to an agency of the United States Government in violation of Section 80, Title 18, United States Code.” It will be noted that the original charge was that petitioner had conspired to violate Section 80, while the new charge left out the element of conspiracy. This is consistent with the record (Items 1 and 3). The procedure followed that prescribed by former 8 C.F.R. § 151.2(d) (Nov. 10, 1950, 1949 ed., 1951 Supp.) and now required by 8 C.F.R. § 242.53(1) regarding additional charges. It was never charged, either in the warrant or later, that petitioner had violated 49 U.S.C.A. § 121 or 50 U.S.C.A.Appendix, § 701. Again, counsel was present and no objection was made. The offer of proof, made by petitioner at the first hearing, was renewed, and a motion to dismiss was made, on the ground “that the offenses on which he was convicted do not, in the light of all the circumstances, constitute crimes involving moral turpitude within the intent and meaning of the Immigration Act of February 5, 1917”. This was denied. The hearing officer found that petitioner was twice convicted of violation of Title 18 U.S.C. § 80, once in the Eastern District of New York (Case No. Cr-42116, Item 1, supra) and once in the Southern District (Case No. C 128/377, Item 3, supra). He made no finding as to the other two cases (C 128/376, Item 2 and C 128/378, Item 4, supra). He concluded that violation of 18 U.S.C. § 80 is a crime involving moral turpitude, and entered an order of deportation. Petitioner appealed to the Board of Immigration Appeals, which affirmed. The opinion of the Board is quite extraordinary. It states that Count 4" }, { "docid": "11879344", "title": "", "text": "SWAIM, Circuit Judge. The relator, Nickolas Diani Circella, filed in the United States District Court for the Northern District of Illinois a petition for a writ of habeas corpus alleging that his detention by Marcus T. Neelly, the District Director of Immigration and Naturalization, United States Department of Justice, was illegal and in violation of relator’s constitutional rights. The relator was taken into custody by the respondent on a warrant for relator’s arrest which charged that he was subject to deportation under the 1917 Immigration Act, 8 U.S.C.A. (1940 Edition) § 155(a), because he had been convicted prior to his entry into the United States of assault with intent to murder, an offense involving moral turpitude. At the conclusion of the hearing on this first charge the Service lodged an additional charge that relator was also subject to deportation under the Immigration and Nationality Act of 1952, 8 U.S.C.A. § 1251 et seq., because he had been convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct, which crimes were committed after his entry into the United States in 1902. The second crime was conspiracy to interfere with trade and commerce by violence, threats and coercion in violation of the Anti-Racketeering Act, former Title 18 U.S.C.A. § 420a, repealed in 1948. In the hearing conducted before a special inquiry officer concerning the deportation, evidence was offered by the Service to show that the relator was born in Italy, August 24, 1898; that he first entered the United States on January 26, 1902; that he had never been naturalized; that his first conviction of a crime was on September 14, 1916, in the Criminal Court of Cook County, Illinois, which was an assault with intent to murder; and that on his conviction of this crime relator was sentenced to the Illinois State Reformatory at Pontiac for an indeterminate number of years. On February 2, 1929, the relator made a trip by plane from Miami, Florida, to Bimini in the Bahamas, returning to Florida on the same day. It was also shown that on April" }, { "docid": "8490082", "title": "", "text": "that it was his intention when he deserted his vessel to remain here permanently. The presiding inspector, pursuant to Federal Regulations, thereupon lodged an additional charge that at the time of entry he was an immigrant not in possession of a valid visa. 8 C.F.R. 150.6(1). On December 29th, 1947 the inspector found that the plaintiff was subject to deportation on the charge made at the hearing but not on the original charge, and recommended deportation. He also reported adversely on plaintiff’s application for voluntary departure and pre-examination. The inspector’s recommendations were upheld by the Commissioner and an order entered thereon on January 5th, 1949 and a warrant issued directing plaintiff’s deportation to Greece. An appeal was taken therefrom to the Board of Immigration Appeals. The appeal was not heard until May 15th, 1949, when plaintiff’s counsel upon the oral argument applied for a suspension of the order of deportation under Section 19(c) (2) of the Immigration Act of 1917, as amended. 8 U.S.C.A. § 155(c) (2). The amendment which became effective July 1st, 1948, and so was not available to plaintiff at the time of the hearings in November and December 1947, enlarged the class of those eligible for suspension of deportation to include aliens who had resided continuously in the United States for seven years or more. The Board on June 24th, 1949 denied the request for relief under Section 19(c) (2) and also dismissed the appeal from the Commissioner’s order. On September 28th, 1950 a warrant of deportation was served upon plaintiff and he was ordered to surrender himself at Ellis Island on November 1st, 1950 for immediate departure to Greece. The present suit was then instituted against the District Director of Immigration and Naturalization at the Port of New York. The plaintiff challenges the order of deportation as invalid on the grounds that (1) the hearings of November 14th and December 22nd, 1947 did not comply with the provisions of the Administrative Procedure Act then in force and effect in that judicial and prosecutive functions were vested in the same person; (2) that the denial of" }, { "docid": "12873501", "title": "", "text": "an aggravated felony in the form of a “theft offense” under 8 U.S.C. § 1101(a)(43)(G), and (2) two crimes of moral turpitude. Thereafter, in response to petitioner’s motion to terminate pro ceedings, the government acknowledged that neither rationale was viable. As a result, it issued a Form 1-261, entitled “Additional Charges of Inadmissibility/De-portability,” which set forth an amended charge based solely on subsection (R). Petitioner did not object to the filing of this new charge, and he received an extension of time to respond thereto. Nonetheless, he now argues that the government could not repair the defective notice to appear simply by filing a new charge on Form 1-261; rather, it was required to dismiss the original notice to appear and issue a new one. Had that sequence been followed, he contends, the government would have been barred by res judicata from seeking removal based on the same conviction. The BIA perceived no error, even while describing the presentation of charges here as “slightly awkward.” We agree that this claim falls short. By regulation, the government is entitled to lodge “additional or substituted charges” of removability “[a]t any time during the proceeding.” 8 C.F.R. § 1240.10(e); accord 8 C.F.R. § 1003.30. We have stated that “there is no requirement that the [government] advance every conceivable basis for deportability in the original show cause order.” De Faria v. INS, 13 F.3d 422, 424 (1st Cir.1993) (per curiam) (allowing reopening by government to file substitute charges after conviction underlying original charge was vacated by state court); accord Park, 472 F.3d at 73 (declining to apply “judicial estoppel” to prevent lodging of additional charge on remand after validity of original charge was called into question). In the case at hand, the BIA determined that the filing of an amended charge on Form 1-261 was the “functional equivalent” of filing the same charge on the notice to appear. It also held that petitioner had been given adequate notice of the new charge and ample time to respond thereto (findings that petitioner has not disputed). And, finally, the application of res judicata in this context" }, { "docid": "13507773", "title": "", "text": "support the warrant of deportation. In a deportation proceeding the alien must be accorded a fair hearing. To render a hearing unfair, the defect or practice complained of must have been such as might have led to a denial of justice, or there must have been absent an element deemed essential to due process. The charge of unfairness in this proceeding is without support. The alien was fully advised of the charges against him; was advised of his right to have counsel, and was given the opportunity to cross-examine adverse witnesses. He produced witnesses in his own behalf, and was given numerous continuances and delays in which to prepare his case and secure counsel. This was not denial of a fair hearing. Bilokumsky v. Tod, 263 U.S. 149, 44 S.Ct. 54, 68 L.Ed. 221; Tisi v. Tod, 264 U.S. 131, 44 S.Ct. 260, 68 L. Ed. 590; Hays v. Zahariades, 8 Cir., 90 F. 2d 3; Chiuye Inouye v. Carr, 9 Cir., 98 F.2d 46; Murdoch v. Clark, 1 Cir., 53 F. 2d 155. The credibility of the witnesses and the weight of their testimony was for the immigration authorities. On habeas corpus, if‘the petitioner has been given a fair trial, the court will not disturb the findings of fact of the immigration authorities if such findings are supported by substantial evidence. There was substantial evidence Jo support the findings and deportation order. Lindsey v. Dobra, 5 Cir., 62 F.2d 116; Ranieri v. Smith, 7 Cir., 49 F.2d 537; Jew Hong Sing v. Tillinghast, 1 Cir., 35 F.2d. 559. The judgment is affirmed." }, { "docid": "12995677", "title": "", "text": "and affirmed by the Supreme Court, 1954, 347 U.S. 522, 74 S.Ct. 737, 98 L.Ed. 911. In the course of the administrative hearings in that case, after lodgment of the additional charge, all earlier proceedings were made part of the record by stipulation. It is implicit from the Supreme Court’s opinion that that court found no jurisdictional or due process objection to the integration of the original and the second charge to constitute an amended charge. In this regard it is interesting to read the comment in Harisiades v. Shaughnessy, 1952, 342 U.S. 580, 593, 72 S.Ct. 512, 520, 96 L.Ed. 586, in a situation somewhat comparable to the instant case. We quote from page 593 in the margin. Appellant argues that the order of deportation is invalid because it was not against the law to be a Communist or to belong to that Party at the time the warrant-charge issued, or during the period in which he was a member of the Communist Party. But in Marcello v. Bonds, 1955, 349 U.S. 302, 75 S.Ct. 757, 99 L.Ed. 1107, the appellant alien was under order of deportation because he had in the past been convicted of a crime which, at the time of commission and conviction, was not cause for deportation. The order of deportation there was affirmed. Appellant contends that the situation just outlined violates the ex post facto interdiction of the United States Constitution. Harisiades v. Shaughnessy, 1952, 342 U.S. 580, 593, 72 S.Ct. 512, 520, as quoted in note 12, supra, disposes on principle of this contention. Also see Galvan v. Press, 9 Cir., 1953, 201 F.2d 302, affirmed, 1954, 347 U.S. 522, 74 S.Ct. 737, 98 L.Ed. 911; Marcello v. Bonds, 1955, 349 U.S. 302, 75 S.Ct. 757, 99 L.Ed. 1107. We shall make no detailed reply to appellant’s philosophical discussion to the effect that the Immigration Act of 1952, and the orders under it, violate the Fifth, Seventh, Eighth, and Tenth Amendments to the Constitution of the United States. The argument is ingenious and interesting, but the points stressed have already been adversely ruled" }, { "docid": "14204485", "title": "", "text": "and it affirms. Q. E. D.! It thus held petitioner not deportable under the two charges actually made, but deportable by reason of matters never charged. This will not do. The Board had no right to rely upon the convictions of violating 49 U.S.C.A. § 121 (Item 2, supra) or 50 U.S.C.A.Appendix, § 701 (Item 4, supra). At the time of the first hearing, 8 U.S.C.A. § 1252, effective December 24, 1952, had not been enacted. It requires (§ 1252(b)): “(1) the alien shall be given notice, reasonable under all the circumstances, of the nature of the charges against him * * *,” and also provides for a hearing. However, there were then in effect regulations giving the petitioner substantially the same rights, namely the right to a hearing and a statement of the charges against him. Former 8 C.F.R. § 151 (1949 Ed., 1951 Supp.) provided:. “After the alien has been taken into custody under a warrant of arrest and has been given a reasonable-period of time to arrange for the presentation of his case, including if desired representation by counsel, the ease of the alien shall be referred to an appropriate officer for hearing to determine whether the alien is. subject to deportation. The alien shall be timely informed of the time and place of hearing.” § 151.2(b): “The hearing officer shall conduct a fair and impartial hearing * * He shall exclude from the record any evidence that is irrelevant * * § 151.2(c): “At the commencement of the-hearing * * * the hearing officer shall * * * (2) enter of record a copy of the warrant of arrest and' explain to the alien in simple, understandable language the nature of the charges contained therein * * *.” § 151.2(d) contains similar provisions' as to the making and explanation of additional charges. The regulations implementing the new statute, 8 U.S.C.A. §• 1252, contain similar provisions. (See-former 8 C.F.R. §§ 242.14(a), 242.52, 242.53(b) and (d) (1952 ed.)) The present regulations are similar. (See-8 C.F.R. §§ 242.1(b), 242.16(a), 242.-16(d).) Thus, at all pertinent times, petitioner was entitled to" }, { "docid": "12995676", "title": "", "text": "needed. Appellant objected to the lodgment of the additional charge, and objected to its consideration upon the ground that it was a different charge than the one upon which the original warrant was issued. In reality, the purpose of the original and of the additional charge was at all times, one and the same. That is, the deportation of the alien because of his membership in, and affiliation with, the Communist Party as an organization advocating the overthrow of the United States Government by force or violence. The fact was so generally and conclusively known that the Communist Party was advocating force or violence to accomplish such purpose, and was teaching such doctrine, that the Congress did away with the necessity of proving those purposes in the administrative and court hearings. Proof of membership in the Communist Party was enough. A like additional charge, under like circumstances, was permitted to be lodged in Galvan v. Press, in which the decision of the district court was affirmed by this court, 9 Cir., 1953, 201 F.2d 302, and affirmed by the Supreme Court, 1954, 347 U.S. 522, 74 S.Ct. 737, 98 L.Ed. 911. In the course of the administrative hearings in that case, after lodgment of the additional charge, all earlier proceedings were made part of the record by stipulation. It is implicit from the Supreme Court’s opinion that that court found no jurisdictional or due process objection to the integration of the original and the second charge to constitute an amended charge. In this regard it is interesting to read the comment in Harisiades v. Shaughnessy, 1952, 342 U.S. 580, 593, 72 S.Ct. 512, 520, 96 L.Ed. 586, in a situation somewhat comparable to the instant case. We quote from page 593 in the margin. Appellant argues that the order of deportation is invalid because it was not against the law to be a Communist or to belong to that Party at the time the warrant-charge issued, or during the period in which he was a member of the Communist Party. But in Marcello v. Bonds, 1955, 349 U.S. 302, 75" }, { "docid": "12995678", "title": "", "text": "S.Ct. 757, 99 L.Ed. 1107, the appellant alien was under order of deportation because he had in the past been convicted of a crime which, at the time of commission and conviction, was not cause for deportation. The order of deportation there was affirmed. Appellant contends that the situation just outlined violates the ex post facto interdiction of the United States Constitution. Harisiades v. Shaughnessy, 1952, 342 U.S. 580, 593, 72 S.Ct. 512, 520, as quoted in note 12, supra, disposes on principle of this contention. Also see Galvan v. Press, 9 Cir., 1953, 201 F.2d 302, affirmed, 1954, 347 U.S. 522, 74 S.Ct. 737, 98 L.Ed. 911; Marcello v. Bonds, 1955, 349 U.S. 302, 75 S.Ct. 757, 99 L.Ed. 1107. We shall make no detailed reply to appellant’s philosophical discussion to the effect that the Immigration Act of 1952, and the orders under it, violate the Fifth, Seventh, Eighth, and Tenth Amendments to the Constitution of the United States. The argument is ingenious and interesting, but the points stressed have already been adversely ruled upon in many Supreme Court opinions. See Harisiades v. Shaughnessy, 1952, 342 U.S. 580, 72 S.Ct. 512, supra, and Galvan v. Press, 1954, 347 U.S. 522, 74 S.Ct. 737, supra. Appellant asserts that no evidence was offered in support of the newly lodged charge. As we have already seen, there was no new evidence introduced connecting appellant with the Communist Party after the additional charge had been lodged. But it was clearly stated at the hearing that reliance was had on appellant’s own testimony, unqualifiedly admitting Communist membership at the hearing while the proceedings were being conducted under legal sanction. His point being based upon his contention that the proceeding under the added charge was not in fact a continuation of the proceeding under the original charge, hence, the testimony received prior to the lodgment of the added charge was not competent and relevant to the charge as it stood after such lodgment; but, by what we have already said, the argument is without merit. See “Introduction” to “Legislative History” in “Commentary on the Immigration" }, { "docid": "8490081", "title": "", "text": "and was admitted to bail. A hearing was held, following which an order and warrant of deportation was issued on July 3rd, 1940. On July 17th, 1945 an attorney representing the plaintiff appeared before the Board of Immigration Appeals and applied for the privilege of voluntary departure in lieu of deportation pursuant to section 19(c)(1) of the Act of February 5, 1917, 8 U.S.C.A. § 155(c) (1), and the additional privilege of pre-examination, and also requested that the warrant of deportation be withdrawn. This application was granted, and on July 20th, 1945 an order was entered which directed (1) that the outstanding order and warrant of deportation he withdrawn and (2) that the proceeding he reopened to permit plaintiff to apply for voluntary departure and pre-examination. On October 15th, 1945, plaintiff filed written Form 1-255 for such voluntary departure and pre-examination, as required by 8 C.F.R. 150.6(g). Exhibit 2, hearing, November 14th, 1947. The hearings for such discretionary relief were not held until November 14th and December 22nd, 1947. At the first hearing plaintiff testified that it was his intention when he deserted his vessel to remain here permanently. The presiding inspector, pursuant to Federal Regulations, thereupon lodged an additional charge that at the time of entry he was an immigrant not in possession of a valid visa. 8 C.F.R. 150.6(1). On December 29th, 1947 the inspector found that the plaintiff was subject to deportation on the charge made at the hearing but not on the original charge, and recommended deportation. He also reported adversely on plaintiff’s application for voluntary departure and pre-examination. The inspector’s recommendations were upheld by the Commissioner and an order entered thereon on January 5th, 1949 and a warrant issued directing plaintiff’s deportation to Greece. An appeal was taken therefrom to the Board of Immigration Appeals. The appeal was not heard until May 15th, 1949, when plaintiff’s counsel upon the oral argument applied for a suspension of the order of deportation under Section 19(c) (2) of the Immigration Act of 1917, as amended. 8 U.S.C.A. § 155(c) (2). The amendment which became effective July 1st, 1948," }, { "docid": "15830001", "title": "", "text": "under Section 241(a) (4) of the Immigration and Nationality Act [8 U.S.C.A. § 1251(a) (4)] the respondent is subject to deportation on the ground that, after entry on to wit, January 26, 1902, he has been convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct, to wit, assault with intent to murder and conspiracy to interfere with trade and commerce by violence, threats, and coercion in violation of Section 420a, b, d of Title 18 of the U.S.Code.” On the basis of these Findings and Conclusions, Mr. Berman ordered that Circella be deported from the United States. The petition next alleges that the aforesaid Findings, Conclusions and order were duly entered after Circella was arrested under a warrant for arrest of an alien dated October 1, 1952, in which it was stated that Circella was subject to be deported for the following reasons: “The Act of February 5, 1917, in that he has been convicted of a felony or other crime or misdemeanor involving moral turpitude prior to entry into the United States, to-wit: assault to murder;” that in addition thereto, at the hearing under said warrant, there was placed the “lodged charge” that Circella is unlawfully in the United States in violation of Section 241(a) (4) of the Immigration and Nationality Act, in that he has been convicted of two crimes involving moral turpitude after his entry into the United States in 1902; and that subsequent to the entry of the aforesaid order of Mr. Berman, Circella appealed to the Board of Immigration Appeals of the Department of Justice, and his appeal was dismissed.- Circella concludes his petition with about thirty specific allegations attacking the validity of the order of deportation; the merits of these allegations will be reached at a later part of this memorandum. On September 21, 1953, Marcus T. Neelly appeared before this court and filed his return to the writ. The return stated, in substance, that at the time the writ issued Mr. Neelly did not have custody of Cireella’s person, and that Circella was then, and" }, { "docid": "14204480", "title": "", "text": "10, 1952 the hearing officer made an order, reading in part as follows: “During the course of the hearing there was received in evidence certified conviction records establishing that the respondent had been convicted within five years after entry in the United States District Court for violation of Section 80, Title 18, U.S.Code for knowingly and willfully making and causing to be made false and fraudulent statements and representations in a matter within a District [sic] of a Department and Agency of the United States for which he was sentenced to imprisonment for a term of one year or more. “It is ordered that the hearing be re-opened for the purpose of lodging against the respondent an additional charge consistent with the evidence adduced.” A further hearing was had on July 10, 1952, at which the hearing officer said: “In addition to the charge contained in the warrant of arrest, which charge I explained to you during the course of the hearing on May 21, 1952, I am lodging against you the charge that you have been found in the United States in violation of the Immigration Act of February 5, 1917 in that on or after May 1, 1917 you have been sentenced to imprisonment for a term of one year or more because of a conviction in this country of a crime involving moral turpitude committed within five years after entry; to wit: making false and fraudulent statements to an agency of the United States Government in violation of Section 80, Title 18, United States Code.” It will be noted that the original charge was that petitioner had conspired to violate Section 80, while the new charge left out the element of conspiracy. This is consistent with the record (Items 1 and 3). The procedure followed that prescribed by former 8 C.F.R. § 151.2(d) (Nov. 10, 1950, 1949 ed., 1951 Supp.) and now required by 8 C.F.R. § 242.53(1) regarding additional charges. It was never charged, either in the warrant or later, that petitioner had violated 49 U.S.C.A. § 121 or 50 U.S.C.A.Appendix, § 701. Again, counsel was" }, { "docid": "13349758", "title": "", "text": "that argument in this court. Ng Sui Wing v. United States, 46 F.2d 755 (C.A.7, 1931). See also, Pino v. Nicolls, 215 F.2d 237, 245 (C.A.1, 1954), reversed on other grounds, sub' nom. Pino v. Landon, 349 U.S. 901, 75-S.Ct. 576, 99 L.Ed. 1239 (1955). The recent amendment providing for exclusive review of final orders-of deportation in the courts of appeals of the United States, 8 U.S.C.A. § 1105a. (a), is challenged in petitioner’s brief as-violating his constitutional rights by depriving him of an appeal from a judgment of a district court. Apparently this: contention was abandoned at oral argument. In any event we see no merit to-it. It is well settled that Congress may provide whatever procedure that it deems appropriate for judicial review of administrative orders. City of Tacoma v. Taxpayers of Tacoma, 357 U.S. 320, 336, 78 S.Ct. 1209, 2 L.Ed.2d 1345 (1958). The order of the Board will be affirmed. . Deportation was ordered pursuant to the following sections of Title 8 United States Code (1958 ed.): “§ 1251. Deportable aliens — General classes “ (a) Any alien in the United States (including an alien crewman) shall, upon the order of the Attorney General, be deported who— “(1) at the time of entry was within one or more of the classes of aliens ex-cludable by the law existing at the time of such entry * * “§ 1182. Excludable classes of aliens * * * “(a) Except as otherwise provided in this chapter, the following classes of aliens * * • shall be excluded from admission into the United States: sfc * * * * “(9) Aliens who have been convicted of a crime involving moral turpitude (other than a purely political offense) * Si? * )1 . The section was adopted as a “floor” amendment. Accordingly, there are no committee reports to reveal Congressional intent. However, Congressman Walter, in a letter to Senator McCarran which was read into the Congressional Record, stated “ * * * my amendment * * * is intended to require the meeting of two standards, namely, the offense must be" }, { "docid": "5602815", "title": "", "text": "PER CURIAM. This case is before us upon the petition for the writ, the return thereto and the administrative record submitted with the return. As no traverse was filed and no evidence offered to contradict the allegations of the return, they must be accepted as true. 28 U.S.C.A. § 2248. From the facts recited in the return it is clear beyond question that the relator is deporta-ble. He is an alien of Italian citizenship who first entered the United States in 1930 as a deserting seaman and was deported in 1932. In December 1948 he again arrived as a seaman, obtained shore leave by failing to disclose his prior deportation, 8 U.S. C.A. § 180(c), and again deserted his ship with the intention of remaining here permanently. In September 1950 a warrant for his arrest for deportation was issued, charging that he had entered as an immigrant without possessing a valid immigration visa. Thereafter he pleaded guilty to a criminal charge of violating 8 U.S.C.A. § 180(a) and was sentenced to three months imprisonment. Before the sentence expired a deportation hearing was held at the Federal Correctional Institution where he was confined, on the charge stated in the warrant of arrest. During the hearing an additional charge was lodged — that of reentering without permission after a previous deportation. At the conclusion of the hearing the hearing officer on the basis of both charges ordered the relator deported, the Assistant Commissioner of Immigration and Naturalization reviewed the record and sustained this conclusion, and the Board of Immigration Appeals dismissed his appeal. The present writ which was issued on the eve of relator’s scheduled departure attacks the fairness of the administrative hearing on several grounds, the first of which is the lodging of the additional charge without notifying the relator or giving him an opportunity to prepare a defense. The district court dismissed the writ after hearing oral argument and this appeal followed. We find relator’s asserted grounds of unfairness wholly unsupportable. Section 151.2(d), 8 C.F.R., authorizes a hearing officer to lodge additional charges against an alien, as was done here." }, { "docid": "14204488", "title": "", "text": "v. City of Louisville, 1960, 362 U.S. 199, 206, 80 S.Ct. 624, 4 L.Ed.2d 654; Parr V. United States, 1960, 363 U.S. 370, 393-394, 80 S.Ct. 1171, 4 L.Ed.2d 1277.) Here, petitioner was first advised that the charge was that he had conspired to violate 18 U.S.C. § 80. Later, a second charge, violating the same statute (but minus the conspiracy), was added, in the manner required by the regulation. This was proper (see Galvan v. Press, 9 Cir., 1953, 201 F.2d 302, aff’d 1954, 347 U.S. .522, 74 S.Ct. 737, 98 L.Ed. 911). Petitioner was found by the hearing officer to be deportable under the second charge, but not the first. But he was never charged with the violation of 49 U.S.C.A. § 121, upon which the Board relies. The hearing officer properly disregarded the evidence as to this offense (Item 2, supra), as it did not in any way support the charge. The regulation then in effect required that he exclude both Item 2 and Item 4; they were irrelevant to the charges being heard. The Board had no authority to rely upon Item 2, even though it had been offered in evidence and received without objection. That evidence was simply not material to the charge. (See Maltez v. Nagle, 9 Cir., 1928, 27 F.2d 835, 837.) Failure to object may make incompetent • evidence competent, but it cannot make irrelevant evidence relevant. The deportation order cannot be sustained on the 'basis of petitioner’s conviction for violation of 49 U.S.C. § 121 (Item 2 above). (See Mouratis v. Nagle, 9 Cir., 1928, 24 F.2d 799.) Can it be sustained under the • charge found valid by the hearing officer, violation of 18 U.S.C. § 80? A conviction of violation of that section does not necessarily show “a crime involving moral turpitude”. Our most recent decision construing that section (now 18 U.S.C. § 1001) is Neely v. United States, 9 Cir., 1962, 300 F.2d 67, cert, den., 369 U.S. 864, 82 S.Ct. 1030, 8 L.Ed.2d 84, where, in a prosecution for its violation, we upheld an instruction that “" }, { "docid": "6077148", "title": "", "text": "the statute that the INS proposes also raises due process concerns. “It is well established that the Fifth Amendment entitles aliens to due process of law in deportation proceedings.” Reno v. Flores, 507 U.S. 292, 306, 113 S.Ct. 1439, 1449, 123 L.Ed.2d 1 (1993). At the core of these due process rights is the right to notice of the nature of the charges and a meaningful opportunity to be heard. See, e.g., Kwong Hai Chew v. Colding, 344 U.S. 590, 596-98, 73 S.Ct. 472, 477-78, 97 L.Ed. 576 (1953); Kaczmarczyk v. INS, 933 F.2d 588, 596 (7th Cir.1991)(citing cases). We do not need to determine what form of notice would be constitutionally required, .because the statutory and regulatory scheme under which deportation proceedings are conducted mandate specific procedures. The INA itself provides that, in deportation proceedings, written notice — referred to as an order to show cause — shall be given to the alien specifying, among other things, “[t]he charges against the alien and the statutory provisions alleged to be have been violated.” 8 U.S.C. § 1252b(a)(1)(D). INS regulations permit the INS to lodge additional charges of deportability “at any time during a hearing” before an Immigration Judge, but specifically state that these charges must be submitted in writing for service on the alien and for entry into the record, that the Immigration Judge shall read the additional charges to the alien and explain them to her, and that the alien may have a reasonable time, including requesting a continuance, to respond to additional charges. 8 C.F.R. § 242.16(d). It is undisputed that the INS did not, at any time, reopen deportation proceedings to comply with these statutory and regulatory formalities. In Hirsch v. I.N.S., 308 F.2d 562 (9th Cir.1962), the BIA had ordered petitioner deported on the basis of crimes which were admitted into evidence at, his deportation hearing, but which were never added to the INS’s charge against him. The court found that this procedure not only violated INS regulations similar to the ones discussed above, but also contravened basic notions of procedural due process: [A]t all pertinent" }, { "docid": "14204486", "title": "", "text": "case, including if desired representation by counsel, the ease of the alien shall be referred to an appropriate officer for hearing to determine whether the alien is. subject to deportation. The alien shall be timely informed of the time and place of hearing.” § 151.2(b): “The hearing officer shall conduct a fair and impartial hearing * * He shall exclude from the record any evidence that is irrelevant * * § 151.2(c): “At the commencement of the-hearing * * * the hearing officer shall * * * (2) enter of record a copy of the warrant of arrest and' explain to the alien in simple, understandable language the nature of the charges contained therein * * *.” § 151.2(d) contains similar provisions' as to the making and explanation of additional charges. The regulations implementing the new statute, 8 U.S.C.A. §• 1252, contain similar provisions. (See-former 8 C.F.R. §§ 242.14(a), 242.52, 242.53(b) and (d) (1952 ed.)) The present regulations are similar. (See-8 C.F.R. §§ 242.1(b), 242.16(a), 242.-16(d).) Thus, at all pertinent times, petitioner was entitled to a statement of the charges against him, to a hearing of those charges, and to answer them. Procedural due process requires no less, and such due process is required in such a hearing. (See Wong Yang Sung v. McGrath, 1950, 339 U.S. 33, 49-50, 70 S.Ct. 445, 94 L.Ed. 616; Hyun v. Landon, 9 Cir., 1955, 219 F.2d 404, 406, aff’d 1956, 350 U.S. 990, 76 S.Ct. 541, 100 L.Ed. 856.) We have frequently commented upon the severity of the remedy of deportation (see, e. g., Fong v. Immigration and Naturalization Service, 9 Cir., 1962, 308 F.2d 191), with the conse quent requirement that prescribed procedures must be followed for the protection of the alien. (E. g., Bridges v. Wixon, 1945, 326 U.S. 135, 65 S.Ct. 1443, 89 L.Ed. 2103; De Souza v. Barber, 9 Cir., 1959, 263 F.2d 470, 475.) Surely being advised of the charges upon which the proceeding is based is fundamental to ■due process. (See De Jonge v. Oregon, 1937, 299 U.S. 353, 362, 57 S.Ct. 255, 81 L.Ed. 278; Thompson" }, { "docid": "5602816", "title": "", "text": "the sentence expired a deportation hearing was held at the Federal Correctional Institution where he was confined, on the charge stated in the warrant of arrest. During the hearing an additional charge was lodged — that of reentering without permission after a previous deportation. At the conclusion of the hearing the hearing officer on the basis of both charges ordered the relator deported, the Assistant Commissioner of Immigration and Naturalization reviewed the record and sustained this conclusion, and the Board of Immigration Appeals dismissed his appeal. The present writ which was issued on the eve of relator’s scheduled departure attacks the fairness of the administrative hearing on several grounds, the first of which is the lodging of the additional charge without notifying the relator or giving him an opportunity to prepare a defense. The district court dismissed the writ after hearing oral argument and this appeal followed. We find relator’s asserted grounds of unfairness wholly unsupportable. Section 151.2(d), 8 C.F.R., authorizes a hearing officer to lodge additional charges against an alien, as was done here. He was asked whether he desired any time in which to prepare a defense against this new charge. He was represented by competent counsel who was admitted to practice before the Department and Board of Immigration Appeals, and his attorney replied that he did not need additional time. This procedure was eminently fair. Relator’s other contentions are equally without merit. The combination of hearing and investigating functions in one person in deportation proceedings is not a denial of due process. Nor has any showing been made that the interpreter was not qualified or did not perform her duties competently. As against relator’s bald assertions there is the untraversed return which states the interpreter was qualified, and the fact that neither relator nor his attorney objected at any time during the proceedings. Lastly, the failure to warn relator that his statements at the hearing might be used against him did not violate due process. We have been directed to no statutory or regulatory requirement that such a warning should be given. In its absence the Supreme" }, { "docid": "14204487", "title": "", "text": "a statement of the charges against him, to a hearing of those charges, and to answer them. Procedural due process requires no less, and such due process is required in such a hearing. (See Wong Yang Sung v. McGrath, 1950, 339 U.S. 33, 49-50, 70 S.Ct. 445, 94 L.Ed. 616; Hyun v. Landon, 9 Cir., 1955, 219 F.2d 404, 406, aff’d 1956, 350 U.S. 990, 76 S.Ct. 541, 100 L.Ed. 856.) We have frequently commented upon the severity of the remedy of deportation (see, e. g., Fong v. Immigration and Naturalization Service, 9 Cir., 1962, 308 F.2d 191), with the conse quent requirement that prescribed procedures must be followed for the protection of the alien. (E. g., Bridges v. Wixon, 1945, 326 U.S. 135, 65 S.Ct. 1443, 89 L.Ed. 2103; De Souza v. Barber, 9 Cir., 1959, 263 F.2d 470, 475.) Surely being advised of the charges upon which the proceeding is based is fundamental to ■due process. (See De Jonge v. Oregon, 1937, 299 U.S. 353, 362, 57 S.Ct. 255, 81 L.Ed. 278; Thompson v. City of Louisville, 1960, 362 U.S. 199, 206, 80 S.Ct. 624, 4 L.Ed.2d 654; Parr V. United States, 1960, 363 U.S. 370, 393-394, 80 S.Ct. 1171, 4 L.Ed.2d 1277.) Here, petitioner was first advised that the charge was that he had conspired to violate 18 U.S.C. § 80. Later, a second charge, violating the same statute (but minus the conspiracy), was added, in the manner required by the regulation. This was proper (see Galvan v. Press, 9 Cir., 1953, 201 F.2d 302, aff’d 1954, 347 U.S. .522, 74 S.Ct. 737, 98 L.Ed. 911). Petitioner was found by the hearing officer to be deportable under the second charge, but not the first. But he was never charged with the violation of 49 U.S.C.A. § 121, upon which the Board relies. The hearing officer properly disregarded the evidence as to this offense (Item 2, supra), as it did not in any way support the charge. The regulation then in effect required that he exclude both Item 2 and Item 4; they were irrelevant to the charges" }, { "docid": "13507772", "title": "", "text": "155. Kielema was advised that he had the right to be represented by counsel. Thereupon, he was immediately released and his hearing set for August 25, 1936. He employed counsel and they appeared at the hearing. At the request of his newly acquired counsel the hearing was again continued. When the case was resumed on September 3, 1936, the charges were again explained to the alien in the presence of his counsel and the evidence was presented upon which the warrant of arrest was issued. This evidence consisted of the sworn statements of Grace Joliff Roberson and Thelma Parker. The Immigration Inspector produced the witnesses who had made the ex parte affidavits. These witnesses identified their respective statements and were then fully cross-examined by appellant’s counsel. Kielema was given the opportunity to produce evidence and witnesses in his own behalf which he did. Kielema contends that he was not given a fair hearing before the immigration authorities. Fie attacks the ex parte statements of the witnesses and asserts that there was no substantial evidence to support the warrant of deportation. In a deportation proceeding the alien must be accorded a fair hearing. To render a hearing unfair, the defect or practice complained of must have been such as might have led to a denial of justice, or there must have been absent an element deemed essential to due process. The charge of unfairness in this proceeding is without support. The alien was fully advised of the charges against him; was advised of his right to have counsel, and was given the opportunity to cross-examine adverse witnesses. He produced witnesses in his own behalf, and was given numerous continuances and delays in which to prepare his case and secure counsel. This was not denial of a fair hearing. Bilokumsky v. Tod, 263 U.S. 149, 44 S.Ct. 54, 68 L.Ed. 221; Tisi v. Tod, 264 U.S. 131, 44 S.Ct. 260, 68 L. Ed. 590; Hays v. Zahariades, 8 Cir., 90 F. 2d 3; Chiuye Inouye v. Carr, 9 Cir., 98 F.2d 46; Murdoch v. Clark, 1 Cir., 53 F. 2d 155. The" } ]

[ { "docid": "10788178", "title": "", "text": "contrast, occurs in a bench trial when the trial judge concludes that the plaintiff has not made out a case. The trial judge in ruling on a Rule 41(b) motion is the factfinder. The distinction has been explained as follows: This role of the court [in granting a Rule 41(b) dismissal] is quite different than [its role in directing a] verdict in a jury case where the judge is not the trier of the facts and cannot make the factual determination. In the court ease, however, since the judge is the trier of the facts he may weigh and consider the evidence and sustain defendant’s motion though plaintiff’s evidence establishes a prima facie case that would have precluded a directed verdict for defendant in a jury case. 5 Moore’s Federal Practice 141.13[4] at 41-193 through 94 (second ed. 1980); see Southern Arizona York Refrigeration Co. v. Bush Manufacturing Co., 331 F.2d 1, 6 (9th Cir. 1964); Ellis v. Carter, 328 F.2d 573, 577 (9th Cir. 1964). The findings of fact that Rule 41(b) requires the judge to make may not be reversed on appeal unless clearly erroneous. Moore v. City of San Jose, 615 F.2d 1265, 1273 (9th Cir. 1980). Wilson argues that the doctrine of res ipsa loquitur required the judge to deny the Rule 41(b) motion and to direct the government to rebut the inference of negligence. This argument is based on a misconception of the procedural effect of the doctrine of res ipsa loquitur. In this circuit, the application of the doctrine of res ipsa loquitur simply makes it permissible to draw an inference of negligence from a set of facts. Invocation of the doctrine does not establish a presumption of negligence or shift the burden of proof. Bilger v. Maritime Overseas Corp., 439 F.2d 707 (9th Cir. 1971); Ursich v. da Rosa, 328 F.2d 794, 796-98 (9th Cir.), cert. denied, 379 U.S. 920, 85 S.Ct. 273, 13 L.Ed.2d 334 (1964). (b) INVOLUNTARY DISMISSAL: EFFECT THEREOF.... After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the" } ]

[ { "docid": "15830065", "title": "", "text": "to dismiss under Rule 49(b) of this court’s Rules. Rule 49(b) provides in part as follows: “ * * * Promptly after the plaintiff has completed the presentation of his evidence, the defendant, without waiving its right to offer evidence in the event the motion is not granted, may move the Commissioner for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to recover. If the Commissioner is not clearly convinced that the motion should be granted, he shall overrule the motion and the defendant'shall thereupon proceed with the presentation of its evidence. If the Commissioner is convinced, upon a consideration of both the facts and the law, that the motion should be granted, he shall make and file his findings of facts material to the issues raised by the motion and his recommendation for conclusions of law thereon. Thereafter all proceedings shall be the same as in a case where a Commissioner’s report is filed upon the entire evidence produced by both parties. The Court may render judgment against the plaintiff, or may decline to render any judgment until the close of all the evidence. “Unless the Court in its order for dismissal otherwise specifies, a dismissal under this subdivision * * operates as an adjudication upon the' merits.” The above rule is based upon Rule 41(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A., which reads in pertinent part as follows: «* * * After the plaintiff has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. In an action tried by the court without a jury the court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff, the court" }, { "docid": "1686924", "title": "", "text": "is now clear to the Court that the motions are to be regarded as being made pursuant to Rule 41(b), seeking involuntary dismissal at the conclusion of the Plaintiff’s evidence. Fed.R.Civ.P. 41(b). This technical mislabeling of the motion has no effect: the Court is to treat a motion for a directed verdict in a nonjury case as if it were a motion to dismiss pursuant to Rule 41(b). James v. DuBreuil, 500 F.2d 155, 156 (5th Cir.1974); Federal Ins. Co. v. Hardy, 222 F.Supp. 68 (E.D.Mo.1963). Rule 41(b) provides in pertinent part as follows: After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all of the evidence. If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in Rule 52(a). The rule further provides that the granting of such motion, with exceptions not pertinent here, operates as an adjudication upon the merits. The Court, however, has the discretionary authority to reserve judgment until all the evidence is in. Smith Petroleum Serv., Inc. v. Monsanto Chem. Co., 420 F.2d 1103, 1116 (5th Cir.1970). In finding the facts on a motion under Rule 41(b), the Court is not to make any special inferences in the plaintiff’s favor. Bertolino v. Italian Line, 414 F.Supp. 279, 284 (S.D.N.Y.1976); Emerson Elec. Co. v. Farmer, 427 F.2d 1082 (5th Cir.1970); contra Ettore v. Philco Television Broadcasting Corp., 229 F.2d 481 (3rd Cir.), cert. denied, 351 U.S. 926, 76 S.Ct. 783, 100 L.Ed. 1456 (1956). “The rule bestows on courts considerable discretion in their treatment of motions to dismiss in nonjury cases. A court faced with a Rule 41(b) motion" }, { "docid": "1751083", "title": "", "text": "Debtor knowingly and fraudulently made false oaths or presented a false claim in connection with his Bankruptcy Petition. 3. The Plaintiffs Complaint for a determination of the non-dischargeability of the Debtor’s obligation for the Plaintiffs legal services for the Debtor must be dismissed for lack of any proof as to any fraudulent conduct on the part of the Debtor in obtaining those services. Therefore, the Debtor’s debt of $149,229.83 owed to the Plaintiff is dischargeable. III. Discussion Federal Rule of Civil Procedure 41(b) states in pertinent part: ... After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in Rule 52(a). This Federal Rule, per Bankruptcy Rule 7041, applies in bankruptcy proceedings. In examining the facts and the applicable law, we find that the Plaintiff has shown no right to relief, and we shall therefore grant the Debtor’s Rule 41(b) motion to dismiss. As the trier of fact, this Court has the right to apply its own judgment to weigh the Plaintiff’s evidence and to consider the law at this juncture, the close of the Plaintiff’s case. O’Brien v. Westinghouse Electric Corp., 293 F.2d 1 (3d Cir.1961). The Plaintiff objects to the Debt- or’s discharge pursuant to 11 U.S.C. § 727(a)(4)(A) and (B), which provide, in pertinent part, as follows: (a) The court shall grant the debtor a discharge, unless— (4) the debtor knowingly and fraudulently, in or in connection with the case— (A) made a false oath or account; (B) presented or used a false claim; The analysis of whether" }, { "docid": "1896514", "title": "", "text": "that he seeks. Affirmed. . Rule 41(b) provides in part: (b) After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in Rule 52(a). Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits. .A dismissal under Rule 41(b) differs markedly from a directed verdict in a jury trial case, because in a Rule 41(b) case \"the court need not determine that the defendant is entitled to judgment as a matter of law.” duPont v. Southern National Bank of Houston, 771 F.2d 874, 879 (5th Cir.1985), cert. denied, — U.S. -, 106 S.Ct. 1467, 89 L.Ed.2d 723 (1986) (citing 5 J. Moore, J. Lucas, & J. Wicker, Moore's Federal Practice, ¶41.13[4], at 41-177 to 41-179 (2d ed. 1985)); see Phillips Oil Company v. OKC Corporation, 812 F.2d 265, 273 n. 15 (5th Cir.1987). Furthermore, on appeal, the standard of review we apply to a directed verdict and to involuntary dismissals are very different. On review of a directed verdict, we apply the same standard as did the district court in deciding to grant the directed verdict. See Hersch, 719 F.2d at 877. . On appeal, the parties do not dispute that Illinois law governs Furth’s claim. . Advertising space in Inc. magazine is purchased by an advertiser, or its" }, { "docid": "20921544", "title": "", "text": "the law the plaintiff has shown no right to relief The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in Rule 52(a). Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits [emphasis added]. When the defendant makes a Rule 41(b) motion to dismiss for insufficiency of the plaintiff's evidence, it becomes the duty of the court to weigh and evaluate the evidence. In Hawkins v. Ohio Bell Telephone Company, 93 F.R.D. 547 (S.D.Ohio 1982) the court wrote: Fed.R.Civ.P. 41(b) provides that, in a non-jury trial, the defendant, after plaintiff’s case has been presented, ‘may move for a dismissal on the ground that upon the facts and the law, the plaintiff has shown no right to relief.’ This procedure was clearly applicable to the instant case. Unlike a directed verdict in a jury trial, a Fed.R.Civ.P. 41(b) motion permits the ... trier of fact, to weigh the evidence and to consider the law at the close of the pre sentation of plaintiffs evidence. Back v. Friden Calculating Machinery Co., 148 F.2d 407, 409-11 (6th Cir.1945); 5 Moore’s Federal Practice, § 41.18[4] at 41-198 (2d ed. 1981). As stated in United States v. American Telephone and Telegraph Co., 524 F.Supp. 1836 (D.C.1981), the Court’s power as to a motion to dismiss under Rule 41 consists of a: ... grant [by this Rule, and judicial interpretations thereof], to the courts [of] considerable discretion in their treatment of motions to dismiss in non-jury cases. A court faced with Rule 41(b) motion— unlike one passing on a motion for a directed verdict in a jury case — is not required to view" }, { "docid": "6162427", "title": "", "text": "ruled that Burns and Mass. Gen.Laws Ann. ch. 151B, § 5 governed all of the claims for statute of limitations purposes. We, of course, do not agree, but we note that the district court’s opinion preceded even Judge Caffrey’s opinion in Hussey. . Holden represents to us that she was not appointed as a civil servant and was not entitled to the administrative protections provided to civil servants under Mass.Gen.Laws Ann. ch. 31. . Our concern in Burns was that if federal claims enjoyed longer limitations periods than state claims, plaintiffs would bypass state administrative remedies thereby preventing prompt resolution of personnel disputes and converting federal courts to surrogate state personnel departments. Burns v. Sullivan, 619 F.2d at 107. . 42 U.S.C. § 1988, which provides for attorney’s fees awards in successful suits under §§ 1981, 1983, 1985 and other civil rights statutes, should also be subject to the same rules as those statutes. . Fed.R.Civ.P. 41(b) provides in pertinent part as follows: (b) Involuntary Dismissal: Effect Thereof. For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against him. After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in Rule 52(a). . The original complaint was filed on November 28, 1973, within 90 days after Holden had received a right-to-sue letter from the EEOC on September 4, 1973, thereby satisfying the limitations period of 42 U.S.C. § 2000e-5(f)(l)." }, { "docid": "18392451", "title": "", "text": "interstate commerce, or of the mails or of any facility of any national securities exchange, (a) To employ any device, scheme, or artifice to defraud, (b) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or (c) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security. 17 C.F.R. 240.1Ob-5 (1980). . Rule 41(b) provides in pertinent part: After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. Fed.R.Civ.P. 41(b). . In passing on a rule 41(b) motion, “[t]he court is not to make any special inferences in the plaintiffs favor nor concern itself with whether plaintiff has made out a prima facie case. Instead it is to weigh the evidence, resolve any conflicts in it, and decide for itself where the preponderance lies.” Sworob v. Harris, 451 F.Supp. 96, 99 (E.D.Pa.), aff'd mem., 578 F.2d 1376 (3d Cir. 1978), cert. denied, 439 U.S. 1089, 99 S.Ct. 871, 59 L.Ed.2d 55 (1979), quoting 9 A. WRIGHT & C. MILLER, FEDERAL PRACTICE AND PROCEDURE: Civil § 2371, at 224-25 (1971). See also Pan American World Airways, Inc. v. Continental Bank, 435 F.Supp. 642, 643 n.l (E.D.Pa. 1977). . The following “FACTUAL BACKGROUND” and “DISCUSSION” sections shall comprise my findings of fact in compliance with Federal Rules of Civil Procedure 41(b) and 52(a). . From December, 1963, to October," }, { "docid": "16727028", "title": "", "text": "Procedure. The court suspended the trial to consider the motion and allowed counsel for DPA to submit memorandum of law in opposition. Plaintiff’s lawyer did in fact file his opposition that same day. Based on the foregoing, the court granted the motion and dismissed the complaint for plaintiff’s failure to sustain its burden of proof. On appeal, plaintiff contends that the trial court erred first in dismissing the complaint by granting defendant’s motion for involuntary dismissal prior to the conclusion of plaintiff’s case, and second in ruling that plaintiff had not met its burden of proof. At the outset we note that the standard of review for a Rule 41(b) dismissal is abuse of discretion. Corchado v. Puerto Rico Marine Management, Inc., 665 F.2d 410 (1st Cir.1981). Rule 41(b) of the Federal Rules of Civil Procedure provides in relevant part, After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all evidence. The rule bestows on courts considerable discretion in their treatment of motions to dismiss in non-jury cases. A court faced with a Rule 41(b) motion to dismiss is empowered to weigh and evaluate plaintiff’s evidence and to grant the dismissal if said evidence preponderates against the plaintiff. Soliz v. Plunkett, 615 F.2d 272 (5th Cir.1980); Weissinger v. United States, 423 F.2d 795 (5th Cir.1970) (en banc). Nonetheless, Rule 41(b) dismissals should be granted sparingly. We approve the Fifth Circuit’s following admonition in Riegel Fiber Corp. v. Anderson Gin Co., 512 F.2d 784, 793 n. 19 (5th Cir.1975): “Except in unusually clear cases the district judge can and should carry the defendant’s Rule 41(b) motion with the case — or simply" }, { "docid": "15398364", "title": "", "text": "which the United States moved for involuntary dismissal and Rockwell moved for a directed verdict. The trial court issued oral findings of fact and conclusions of law granting the motion of the United States and took Rockwell’s motion under advisement. Subsequently, the trial court issued a written opinion granting Rockwell’s motion for a directed verdict thereby disposing of the matter in its entirety. These appeals ensued and were consolidated. As indicated, the district judge was acting as trier of fact in the Tort Claim lodged against the United States while a jury was seated to find the facts in the action against Rockwell. At the close of the plaintiffs’ case the United States advanced, and was granted, a motion for involuntary dismissal under Rule 41(b), Fed. R.Civ.P. Rockwell’s motion for a directed verdict, however, was made, and granted, pursuant to Rule 50(a), Fed.R.Civ.P. The distinction is crucial for “[although [Rule 41(b) ] somewhat fulfills for a nonjury case the function of a motion for a directed verdict in a jury case, the standard by which the court passes on the two kinds of motions is very different....” 9 C. Wright and A. Miller, Federal Practice and Procedure § 2371 (1971). Rule 41(b), provides, in pertinent part: After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in Rule 52(a). As the Rule indicates, “[w]hen the defendant makes a Rule 41(b) motion to dismiss for insufficiency of the plaintiff’s evidence it becomes the duty of the court to weigh and evaluate the" }, { "docid": "12818657", "title": "", "text": "for not promoting Mitchell occurred only after plaintiff had rested, plaintiff argued that defendant’s Rule 41(b) motion should be denied. Alternately, plaintiff asked to reopen his case-in-chief so that he could rebut the nondiscriminatory explanation. Id. at 201. The district court did not grant plaintiff’s request to reopen; instead, it proceeded to final judgment basing its dismissal of Mitchell’s discrimination claim on findings that the selectees were better qualified than was Mitchell. Because plaintiff had established a prima facie case of discrimination, and was not given a fair opportunity to rebut the nondiscriminatory reasons presented by the defense after plaintiff had completed presentation of his evidence, we vacate the dismissal of the discrimination claim and remand for further proceedings consistent with this opinion. It is so ordered. . Fed.R.Civ.P. 41(b) states, in relevant part: After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in Rule 52(a). A district court ruling on a Rule 41(b) motion \"is not to make any special inferences in the plaintiffs favor____ Instead it is to weigh the evidence, resolve any conflicts in it, and decide for itself where the preponderance lies.\" C. Wright & A. Miller, Federal Practice and Procedure § 2371, at 224-25 (1971) (footnotes omitted). . If a nondiscriminatory reason for defendant’s actions is plainly put forward during the presentation of plaintiffs evidence, and plaintiff, despite notice and an opportunity to do so, fails to rebut persuasively, then it is unnecessary to determine whether plaintiff initially established a prima facie case; in such" }, { "docid": "4795709", "title": "", "text": "low grades in judgment, organizational support, and desirability for command. (Defendant’s Exh. M, Testimony of Rinard). Secretary Lehman did not direct the preparation of the fitness report on Banks. (Testimony of Lehman, Lehman Dep. at 31-32, Testimony of Rinard). Secretary Lehman did not give his approval to Banks’ letter. (Lehman Dep. at 47). On January 10, 1986 the adverse fitness report was removed from plaintiff’s records. (Defendant’s Exh. Z). The Naval Investigative Service has conducted an investigation of the entire letter writing incident. (Plaintiffs Exh. 18). II This case presents itself as a Motion to Dismiss Pursuant to Rule 41(b) of the Fed eral Rules of Civil Procedure. Rule 41(b) expressly authorizes a motion for dismissal by a defendant after the plaintiff has completed the presentation of his evidence on the grounds that upon the facts and the law, the plaintiff has shown no right to relief. Rule 41(b) states in pertinent part: After the plaintiff, in an action tried by the court without a jury, has completed the presentation of evidence, the defendant, without waiving the right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all evidence. In deciding a motion for involuntary dismissal under Rule 41(b), the court is free to weigh the evidence and pass on the credibility of witnesses, which it may not do when deciding whether or not to grant a motion for a directed verdict in a jury case. Rule 41(b) requires a court rendering judgment on the merits against the plaintiff to make findings as provided in Rule 52(a) of the Federal Rules of Civil Procedure. The Fourth Circuit has held that Rule 41(b): requires the judge, as the trier of fact, to weigh and consider all of the evidence, and he may sustain the motion even though the" }, { "docid": "15830066", "title": "", "text": "may render judgment against the plaintiff, or may decline to render any judgment until the close of all the evidence. “Unless the Court in its order for dismissal otherwise specifies, a dismissal under this subdivision * * operates as an adjudication upon the' merits.” The above rule is based upon Rule 41(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A., which reads in pertinent part as follows: «* * * After the plaintiff has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. In an action tried by the court without a jury the court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in Rule 52(a). Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction or for improper venue, operates as an adjudication upon the merits.” The Third Circuit Court of Appeals in the Schad case, supra, has held that on a motion under Rule 41 (b) the function of the court is the same as on a motion to direct in a jury case; that the court does not weigh the evidence but merely decides whether there is evidence which would support a judgment for the plaintiff. (This view is expressed in the Schad case relied on by plaintiff.) Several other circuits adhere to a different view, however, which appears now to represent the weight of authority, i. e., that the judge, in an action tried by the court without a jury, is the trier of the facts; that his function is not the same on a motion under" }, { "docid": "17944581", "title": "", "text": "plaintiffs rested, whereupon defendants moved for judgment pursuant to Fed.R.Civ.P. 41(b). Because of the extensive testimonial and documentary evidence, the Court required that defendants’ motion be set forth in writing and that the briefs on both sides contain specific citations to the record. Having received such materials, the Court is prepared to adjudicate defendants’ motions. I. THE SCOPE OF THE COURT’S REVIEW ON THE PRESENT MOTION As relevant, Fed.R.Civ.P. 41(b) reads as follows: After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in Rule 52(a). [Emphasis added]. It is now settled law that a judge, as trier of the facts, should critically evaluate plaintiffs’ evidence pursuant to a Rule 41(b) motion. E.g., Emerson Electric Company v. Farmer, 427 F.2d 1082 (5th Cir.1970). When such a motion is filed, the judge must weigh and evaluate the evidence in the same manner as though he were making findings of fact at the conclusion of the entire case, according it such weight as he believes it is entitled to receive. A mere prima facie showing by a plaintiff will not withstand a defense motion under Rule 41(b). E.g., Ellis v. Carter, 328 F.2d 573, 577 (9th Cir.1964). Subsequent to the adoption in 1946 of amendments to Rule 41(b) which added the last two sentences quoted above, it is clear that “the Court is not to make any special inferences in plaintiffs’ favor, nor concern itself with whether plaintiff has made out a prima facie case. Instead, it is to weigh the evidence, resolve" }, { "docid": "21354721", "title": "", "text": "parties. The Court may render judgment against the plaintiff, or may decline to render any judgment until the close of all the evidence. Unless the Court in its order for dismissal otherwise specifies, a dismissal under this subdivision * * * operates as an adjudication upon the merits. The above rule is based upon Rule 41 (b) of the Federal Rules of Civil Procedure, which reads in pertinent part as follows: * * * After the plaintiff has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. In an action tried by the court without a jury the court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in Rule 52 (a). Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction or for improper venue, operates as an adjudication upon the merits. The Third Circuit Court of Appeals in the Schad case, supra, has held that on a motion under Rule 41 (b) the function of the court is the same as on a motion to direct in a jury case; that the court does not weigh the evidence but merely decides whether there is evidence which would support a judgment for the plaintiff. (This view is expressed in the Shad case relied on by plaintiff.) Several other circuits adhere to a different view, however, which appears now to represent the weight of authority, i. e., that the judge, in an action tried by the court without a jury, is the trier of the facts; that his function is not the same" }, { "docid": "7449497", "title": "", "text": "findings of fact and conclusions of law appear therein. Findings of fact and conclusions of law are unnecessary on decisions of motions under Rules 12 or 56 or any other motion except as provided in Rule 41(b). Fed.R.Civ.P. 41(b) provides: Involuntary Dismissal: Effect Thereof. For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against him. After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in Rule 52(a). Unless the court in its order for dismissal under this subdivision otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits. . The findings required by Fed.R.Civ.P. 52(a) serve three important purposes: they aid the appellate court by helping it to understand the basis of the trial court’s decision; they clarify the precise issues which are decided by the court, in order to allow the doctrines of collateral estoppel and res judicata to operate in future cases; and they insure care on the part of the trial judge in ascertaining the facts. See 9 C. Wright & A. Miller, Federal Practice and Procedure § 2571, at 679-90 (1971); 5A Moore’s Federal Practice ' 52.06(1) (1980). All three of these purposes are served whenever the district court makes" }, { "docid": "22307049", "title": "", "text": "INVOLUNTARY DISMISSALS: EFFECT THEREOF. For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against him. After the plaintiff, in an action tried by the court without a jury, has completed the presentation of this evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in Rule 52(a). Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits. . A dismissal pursuant to Fed.R.Civ.P. 41(b) is a final order that is subject to appeal. See J. Moore, Federal Practice H 41.11 [2], at 41-148 (2d ed. 1978). . Fed.R.Civ.P. 12(d) gives the trial court discretion to conduct a preliminary hearing either on a motion for judgment on the pleadings or on certain defenses such as lack of jurisdiction over subject matter, lack of jurisdiction of the person, improper venue, insufficient process or service of process, and failure to join an indispensable party. The purpose of such hearing is to allow the trial court to decide promptly issues that need not be deferred until trial. See J. Moore, Federal Practice fl 12.16 (2d ed. 1978). . 28 U.S.C. § 1651(a) reads: Writs (a) The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and" }, { "docid": "19856401", "title": "", "text": "maintain affirmative action programs. Accordingly, the defendant’s motion for judgment under Rule 41(b) of the Federal Rules of Civil Procedure is granted. The foregoing Memorandum Opinion constitutes the Findings of Fact and Conclusions of Law required by Rule 52(a) of the Federal Rules of Civil Procedure. The defendant shall prepare and lodge with this Court, by October 10, 1975, a form of judgment in form approved by the plaintiff. . Rule 41(b) of the Federal Rules of Civil Procedure provides: “Involuntary Dismissal: Effect Thereof. For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against him. After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in Rule 52(a). Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits.” . See note, Federal Power to Regulate Private Discrimination: The Revival of the Enforcement Clauses of the Reconstruction Era Amendments, 74 Col.L.Rev. 449 (1974) ; note, The \"Xew” Thirteenth Amendment: A Preliminary Analysis, 82 Harv.L.Rev. 1294 (1969). . It is clear that if a black or other member of a racial minority is given training inadequate because not equal to that afforded whites, 42 U.S.C. § 1981 may be" }, { "docid": "23662881", "title": "", "text": "ground that upon the facts and the law the plaintiff has shown no right to relief. (3) The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. (4) If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in Rule 52(a). (5) Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits. The procedure followed by counsel and the trial judge in this case is that contemplated and provided by the second and third sentences of Rule 41(b), and it was carried out in the manner required by the fourth sentence. “The second sentence of Rule 41(b) provides, in a court-tried action, for an involuntary nonsuit — a dismissal, on defendant’s motion made at the close of plaintiff’s case, of plaintiff’s action or of any claim made against the defendant, because upon the facts and the law the plaintiff has shown no right to relief as against the moving defendant.” 5 Moore, Federal Practice, ¶ 41.13[1], at 1145-46 (2d ed. 1969). See also 2B Barron & Holtzoff, Federal Practice & Procedure, § 919 at 146 (Wright ed. 1961). This procedure is analogous to the motion for directed verdict in a jury trial. In fact, the phrase of the second sentence, “in an action tried by the court without a jury” was added by amendment in 1963 to remove a confusing overlap in provisions of Rule 41(b) and the motion for a directed verdict under Rule 50(a). The trial judge may conclude, as occurred in this case, that it is inadvisable to sustain the defendant’s motion midway in the trial and that the trial should be completed. The denial amounts to no more than a refusal to enter judgment at" }, { "docid": "4795710", "title": "", "text": "waiving the right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all evidence. In deciding a motion for involuntary dismissal under Rule 41(b), the court is free to weigh the evidence and pass on the credibility of witnesses, which it may not do when deciding whether or not to grant a motion for a directed verdict in a jury case. Rule 41(b) requires a court rendering judgment on the merits against the plaintiff to make findings as provided in Rule 52(a) of the Federal Rules of Civil Procedure. The Fourth Circuit has held that Rule 41(b): requires the judge, as the trier of fact, to weigh and consider all of the evidence, and he may sustain the motion even though the plaintiff may have presented a prima facie case. Holmes v. Bevilacqua, 794 F.2d 142, 147 (4th Cir.1986). The court’s review of this case is governed by the arbitrary and capricious standard. Under this standard in order to uphold the Secretary’s action, the court must find that his action was not “arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law.” See 5 U.S.C. § 706(2)(A) (1977). The Supreme Court in Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 824, 28 L.Ed.2d 136 (1971), clarified the court’s review of agency decisions stating: Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its Judgment for that of the agency. The D.C. Circuit in Trans-Pacific Freight v. Federal Maritime Com’n, 650 F.2d 1235, 1251, (D.C.Cir.1980), cert. denied, 451 U.S. 984, 101 S.Ct. 2316, 68 L.Ed. 2d 840 (1981), provided additional guidance in reviewing agency decisions stating that the reviewing" }, { "docid": "20070737", "title": "", "text": "must put on a defense in the CERCLA litigation. A judgment in plaintiffs’ favor here will obviate the accrual of further defense costs and provide insurance against any damages assessed at trial. A loss here, on the other hand, will presumably spark a vigorous contestation of liability against the generators. Based on the foregoing, and taking into account the convenience to the parties of the declaratory judgment mechanism, and the fact that the factors which will determine the relative rights and obligations between the parties in the CERCLA litigation are distinct from the obligations of the parties to the Settlement and Maintenance Agreements, I find that jurisdiction is proper under the Declaratory Judgment Act. See ACandS, Inc. v. Aetna Casualty & Surety Co., 666 F.2d 819, 822-23 (3d Cir.1981); Bitiminous Coal Operators’ Ass’n, Inc. v. International Union, United Mineworkers of America, 585 F.2d 586, 596-97 (3d Cir.1978). B. Rule 41(b) Standard Rule 41(b) of the Federal Rules of Civil Procedure provides: After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. A dismissal under Rule 41(b) differs from a directed verdict in a jury trial in that the court need not determine that the defendant is entitled to judgment as a matter of law. See Martin v. E.I. duPont de Nem ours & Co., Inc., 281 F.2d 801, 802 (3d Cir.1960); 5 J. Moore, J. Lucas & J. Wicker, Moore’s Federal Practice ¶ 41.13(4) at 41-177 to 41-179 (2d ed. 1985). Instead, as the finder of fact, the court must weigh the evidence and resolve disputed issues of fact and credibility. DuPont v. Southern Nat’l Bank, 771 F.2d 874," } ]

[ { "docid": "19100033", "title": "", "text": "violation of § 1962(a). MONY and Raymond have both moved to dismiss Count I for failure to state a claim, arguing that the complaint: 1) fails to allege an injury resulting from the investment of racketeering income; 2) fails to allege a pattern of racketeering activity and; 3) fails to identify a RICO enterprise. Section 1962(a) prohibits “any person who has received any income derived, directly or indirectly, from a pattern of racketeering activity ... to use or invest, directly or indirectly, any part of such income, or the proceeds of such income and the acquisition of any interest in, or the establishment or operation of, any enterprise which is engaged in or the activities of which affect interstate commerce.” Section 1964(c) in turns provides a cause of action to anyone injured in his business or property “by reason of’ a violation of § 1962. Defendants argue that plaintiffs have not alleged that they have been injured “by reason of’ a § 1962(a) violation. Put in other words, defendants argue that plaintiffs have not and cannot allege that they have been injured by defendants’ “use of any income” derived from the pattern of racketeering activity, as opposed from being injured by the predicate acts themselves. As the parties have noted, the Seventh - Circuit has not yet addressed the issue of whether to state a claim under § 1962(a) the plaintiff must allege injury from the use or investment of income derived from racketeering activity. The majority of circuit courts to address the issue have held that such allegations are necessary, and that allegations of injury from the racketeering activity alone are insufficient. See Fujisawa Pharmaceutical Co. Limited v. Kapoor, 814 F.Supp. 720, 734 (N.D.Ill.1993) (compiling cases). These decisions are based on the plain wording of the statute. Id. This court agrees with the reasoning of those cases, and notes particularly, Judge Shadur’s explanation in P.M.F. Services, Inc. v. Grady, 681 F.Supp. 549, 556 (N.D.Ill.1988): By contract § 1964’s private civil remedy mandates the identification of such victims, in order that they have standing to sue. Most importantly, each such" } ]

[ { "docid": "11356486", "title": "", "text": "373 F.3d 851, 853 (7th Cir.2004); see also Payne v. Churchich, 161 F.3d 1030, 1037 n. 8 (7th Cir.1998). The doctrine is not the impenetrable barrier, as portrayed by plaintiff, with respect to the new argu ments plaintiff has presented in her amended complaint. The doctrine prevents the reopening of issues decided earlier in the litigation (Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 815-16, 108 S.Ct. 2166, 100 L.Ed.2d 811 (1988)), but several issues regarding plaintiffs new claims are outstanding. See Roboserve, Inc. v. Kato Kagaku Co., 121 F.3d 1027, 1032 (7th Cir.1997) (“Law of the case is limited insofar as it applies only to issues that were decided in the former proceeding but not to questions which might have been decided but were not.”). We first turn to defendants’ arguments against the § 1962(a) claim. Section 1962(a) Claim Section 1962(a) makes it unlawful “for any person who has received any income derived, directly or indirectly, from a pattern of racketeering activity or through collection of an unlawful debt ... to use or invest, directly or indirectly, any part of such income, or the proceeds of such income, in acquisition of any interest in, or the establishment or operation of, any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce.” Defendants argue that plaintiff cannot raise the § 1962(a) claim because she neither bought nor sold campaign fundraiser tickets. They base that argument on the investment injury rule, which states that “the use or investment of the racketeering income must proximately cause the plaintiffs injury; injury caused by the predicate racketeering acts is inadequate.” Vicom, Inc. v. Harbridge Merchant Servs., Inc., 20 F.3d 771, 778 n. 6 (7th Cir.1994). See also Vemco, Inc. v. Camardella, 23 F.3d 129, 132 (6th Cir.1994) (“to state a claim under § 1962(a), a plaintiff must plead a specific injury to the plaintiff caused by the investment of income into the racketeering enterprise, distinct from any injuries caused by the predicate acts of racketeering.”). In response, plaintiff asserts that her refusal to join the enterprise led to" }, { "docid": "16965546", "title": "", "text": "address each section of the civil RICO statute and determine whether Plaintiff' has properly averred any other RICO violation. “[T]o bring a claim under 18 U.S.C. § 1962(a), a plaintiff must allege an injury from the use or investment of the racketeering income that is separate and distinct from injuries allegedly caused by the defendant’s engaging in the predicate acts.” Fogie v. THORN Americas, Inc., 190 F.3d 889, 896 (8th Cir.1999). In Fogie, the Eighth Circuit held that the district court properly dismissed a claim brought under § 1962(a) for lack of standing under Rule 12(b)(6) because “plaintiffs have not and apparently cannot allege an injury from a use or investment distinct or separate from the predicate acts they allege.” Id. Plaintiff has not alleged any facts in the Complaint or in her other pleadings to show that she sustained an injury arising out of the defendants’ use or investment of racketeering income. Accordingly, Plaintiff has failed to state a claim under 18 U.S.C. § 1962(a). Likewise, Plaintiff has failed to state a claim under § 1962(b), which prohibits a person from acquiring an interest in an enterprise through a pattern of racketeering activity, because she has not alleged any facts indicating that a defendant obtained an interest in an enterprise through racketeering. Cf. Informa tion Exchange Sys., Inc. v. First Bank Nat’l Ass’n, 994 F.2d 478 (8th Cir.1993) (affirming the trial court’s dismissal of the § 1962(b) claim even though the plaintiffs alleged that defendants took over his business because the plaintiff failed “to demonstrate both the requisite predicate acts and the requisite relatedness of those acts.”). Defendants believe that Plaintiff is attempting to assert a violation of 18 U.S.C. § 1962(c), and the Court agrees. “To state a claim under § 1962(c), a plaintiff must establish: (1) the existence of an enterprise; (2) conduct by the defendants in association with the enterprise; (3) the defendants’ participation in at least two predicate acts of racketeering; and (4) conduct that constitutes a pattern of racketeering activity.” In re Sac & Fox Tribe of Mississippi in Iowa/Meskwaki Casino Litig., 340 F.3d" }, { "docid": "19757292", "title": "", "text": "is a debtor in relation to Mr. James. Mr. James has alleged that he is a creditor of Timothy McCoy. Mr. James has not, however, stated this fraud claim with particularity. See Fed.R.Civ.P. 9(b). The Court finds that Mr. James has failed to state a fraud claim under § 1313.56 against Timothy McCoy or to produce evidence to support these claims against the other Defendants, and Defendants are therefore entitled to judgment on these claims. 3. Claim Nine: Federal RICO Violations Defendants argue that the Complaint fails to state a cause of action under RICO because Mr. James has failed to allege the elements necessary to state a prima facie RICO claim. Mr. James does not specifically identify which subsections of 18 U.S.C. § 1962 Defendants have allegedly violated. Defendants argue, however, that the complaint fails to state a cause of action under any of the subsections of the statute. Subsection (a) of 18 U.S.C. § 1962 provides: It shall be unlawful for any person who has received any income derived, directly or indirectly, from a pattern of racketeering activity ... to use or invest, directly or indirectly, any part of such income, or the proceeds of such income, in acquisition of any interest in, or the establishment or operation of, any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce.... 18 U.S.C. § 1962(a) (1984). The Sixth Circuit has held that in order to state a claim under § 1962(a), a plaintiff must plead a specific injury caused by the investment of income into the racketeering enterprise, distinct from any injuries caused by the predicate acts of racketeering. See Vemco, Inc. v. Camardella, 23 F.3d 129, 132 (6th Cir.1994); Craighead, 899 F.2d at 494. In Vemco, the Sixth Circuit held that the plaintiff had failed to state a claim under § 1962(a) when the complaint alleged only that the defendants reinvested in their enterprise income derived from their racketeering activities against the plaintiff. See 23 F.3d at 133. The plaintiff had alleged only an injury arising out of the predicate acts of racketeering," }, { "docid": "13223711", "title": "", "text": "1991 WL 8543, at *8-9, 1991 U.S.Dist. LEXIS 584, at *24-25 (S.D.N.Y.1991). Moreover, the assertion that Katz was injured through the alleged mail fraud, (see RICO Case Statement ¶¶ 4, 15,16), is not an adequate substitute because the required allegation of injury from the use or investment of racketeering income must be distinct from the injury allegedly caused by the predicate acts. Morin, 832 F.Supp. at 99 (“In this Court, § 1962(a) only allows a plaintiff to sue for injuries which arise out of the use or investment of racketeering income, not merely for injuries based on racketeering activity”); Zaro Licensing, 779 F.Supp. at 283 (noting that injury must stem from the use or investment of the income in some enterprise and not from the predicate acts). Finally, Plaintiffs’ allegation that VSC used “overpayments” it received from the alleged mail fraud to perpetuate the fraud and send out catalogs that Katzman and Katz eventually received, (see RICO Case Statement ¶ 11), is also insufficient. Courts have repeatedly held that the injury causation requirement of § 1962(a) is not satisfied by allegations that a defendant, which is also the enterprise, invested the racketeering income in its general operations, thereby permitting it to continue its pattern of racketeering and cause further injury. See Vista Co. v. Columbia Pictures Indus., Inc., 725 F.Supp. 1286, 1299-1300 (S.D.N.Y.1989); DeMuro v. E.F. Hutton, 643 F.Supp. 63, 67 (S.D.N.Y.1986) (rejecting such an argument as “a vast and unwarranted extension of the boundaries of civil RICO”). Plaintiffs therefore fail to state a claim under § 1962(a). 2. Section 1962(b) Subsection 1962(b) makes it unlawful for “any person through a pattern of racketeering activity ... to acquire or maintain, directly or indirectly, any interest in or control of any enterprise.” Thus, “[t]o state a claim under § 1962(b), a plaintiff must allege an injury resulting from the acquisition or control of an enterprise through a pattern of racketeering activity.” Official Publications v. Kable News Co., 775 F.Supp. 631, 635 (S.D.N.Y.1991). As with § 1962(a), in order to state a claim under § 1962(b), a plaintiff must allege that the" }, { "docid": "17674612", "title": "", "text": "plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 550, 570 (2007); see also Ashcroft v. Iqbal, — U.S. -, 129 S.Ct. 1937, 1949-53, 173 L.Ed.2d 868 (2009). Rao’s complaint purported to allege several RICO counts. He listed a claim for violation of 18 U.S.C. § 1962(a), which prohibits the use or investment of income in an enterprise that was derived from a pattern of racketeering activity. A section 1962(a) claim requires a showing that a defendant: (1) received income from a pattern of racketeering activity; (2) used or invested that income in the operation of an enterprise; and (3) caused the injury complained of by the use or investment of racketeering income in an enterprise. Vicom, Inc., v. Harbridge Merch. Servs., Inc., 20 F.3d 771, 778 n. 6 (7th Cir.1994). Rao’s complaint merely restates the elements of section 1962(a) in boilerplate fashion and contains no suggestion that money was used or invested in the operation of an enterprise or that he suffered an injury caused by the use or investment of racketeering income. Accordingly, the district court properly dismissed this claim. See Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (complaint must allege more than “a formulaic recitation of the elements of a cause of action” to survive a motion to dismiss). Rao’s complaint also invoked 18 U.S.C. § 1962(c), which makes it unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity or collection of unlawful debt. A claim under section 1962(c) therefore requires a plaintiff to demonstrate (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity. Vicom, Inc., 20 F.3d at 778. The defendants maintain that the complaint fails to state a claim for several reasons, including that it fails to allege an enterprise. The RICO statute defines an “enterprise” to include “any individual, partnership, corporation, association, or other legal entity, and any union or group" }, { "docid": "22119249", "title": "", "text": "issue to date, the majority of circuits hold that the use or investment of the racketeering income must proximately cause the plaintiff’s injury; injury caused by the predicate racketeering acts is inadequate. See Nugget Hy droelectric, L.P. v. Pacific Gas & Elec. Co., 981 F.2d 429, 437 (9th Cir.1992) (concluding that \"a plaintiff seeking civil damages for a violation of section 1962(a) must allege facts tending to show that he or she was injured by the use or investment of racketeering income'’), cert. denied, - U.S. -, 113 S.Ct. 2336, 124 L.Ed.2d 247 (1993); Ouaknine v. MacFarlane, 897 F.2d 75, 82 (2d Cir.1990) (same); Craighead v. E.F. Hutton & Co., 899 F.2d 485, 494 (6th Cir.1990) (same); Rose v. Bartle, 871 F.2d 331, 356-58 (3d Cir.1989) (same); Grider v. Texas Oil & Gas Corp., 868 F.2d 1147, 1149 (10th Cir.) (same), cert. denied, 493 U.S. 820, 110 S.Ct. 76, 107 L.Ed.2d 43 (1989). But see Busby v. Crown Supply, Inc., 896 F.2d 833, 838 (4th Cir.1990) (stating that no investment-use injury need be alleged); Mid-State Fertilizer v. Exchange Nat’l Bank, 693 F.Supp. 666, 670-73 (N.D.Ill.1988) (same), aff'd on other grounds, 877 F.2d 1333 (7th Cir.1989). Moreover, the majority view is that the mere reinvestment of the racketeering proceeds into a business activity is not sufficient for § 1962(a) standing. See, e.g., Brittingham v. Mobil Corp., 943 F.2d 297, 305 (3d Cir.1991) (\"If [reinvestment] were to suffice, the use-or-investment injury requirement would be almost completely eviscerated when the alleged pattern of racketeering is committed on behalf of a corporation.... Over the long term, corporations generally reinvest their profits, regardless of source.\"). Vicom lacks § 1962(a) standing under the majority rule because it has alleged injury only from the alleged predicate acts, not from the investment-usé of the converted funds. However, because we conclude that Vicom has failed to demonstrate the existence of a \"pattern” of racketeering activity, we need not state definitively our view on the majority's requirement that an allegation of investment-use is necessary to assert standing under § '1962(a). Cf. Mid-State, 877 F.2d at 1340 n. 1 (Ripple, J.," }, { "docid": "1494373", "title": "", "text": "ownership interests in Dover and other Company Defendants in furtherance of a long-term scheme allegedly aimed at de-’ frauding Standard of millions of dollars. This scheme, it is alleged, was designed to allow AS and MS to ensure (through their positions as Standard employees) that various contract work and non-contract maintenance work required by Standard would be improperly and fraudulently given to Dover and other Company Defendants. The Amended Complaint further shows that the predicate acts allegedly committed by Defendants have (1) the same victim (Standard); (2) similar and interrelated purposes (to defraud Standard of money); (3) the same or similar participants (the association-in-fact and its participants); and (4) similar methods of commission (mail and wire frauds involving bid-rigging, fraudulent invoices, misrepresentations, self-dealing, etc.). Finally, Standard clearly alleges that, for a period of fifteen years, fraud was Defendants’ “regular way of doing business.” Defendants’ contention that the Amended Complaint does not allege a pattern of racketeering activity is without merit. E. RICO Section 1962(a): Injury Resulting from Investment of Income Derived from a Pattern of Racketeering Activity Defendants contend that Standard’s section 1962(a) claim should be dismissed because “there is no possible scenario under which Plaintiff could plead that its alleged injuries were caused by a ‘use or investment’ of income.” (D.I. 22 at 23) Although Defendants’ sweeping proposition clearly goes too far, the Court agrees that controlling precedent in this circuit requires dismissal of Standard’s section 1962(a) claim. To sustain a civil RICO claim under any of the subsections of RICO section 1962, the plaintiff must plead and prove that his alleged injury was caused by the violative conduct described in the particular section 1962 subsection upon which he relies. 18 U.S.C. § 1964(c). The Third Circuit has held that in pleading a section 1962(a) claim specifically, the plaintiff must allege an injury that was “caused -by the use or investment of income in the enterprise, rather than by the predicate racketeering acts or pattern.” Rose v. Bartle, 871 F.2d 331, 357 (3d Cir. 1989); accord Brittingham v. Mobil Corporation, 943 F.2d 297, 304 (3d Cir.1991) (“A § 1962(a)" }, { "docid": "17674611", "title": "", "text": "to terminate its relationship with Rao upon the “[cjommission ... of any deceptive, fraudulent, illegal, immoral, or other improper act relevant to the operation of the business on the Facility which is detrimental to [BP Products] ....” As we discussed, the undisputed facts reflect that Rao engaged in fraudulent activities relevant to the operation of the station, namely paying off Yarr in exchange for favorable treatment. Therefore, summary judgment was proper on Rao’s breach of contract claim. C. Dismissal of RICO Claims Proper Rao also appeals the dismissal of the RICO claims he asserted in his complaint against BP (referred to as Amoco in the complaint), Yarr, Thomason, and Schu-macher. The district court granted the defendants’ motion to dismiss the RICO claims for failure to state a claim upon which relief could be granted. Our review of the grant of a motion to dismiss is de novo, and our inquiry asks whether the plaintiff has provided allegations that “raise a right to relief above the speculative level” and “state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 550, 570 (2007); see also Ashcroft v. Iqbal, — U.S. -, 129 S.Ct. 1937, 1949-53, 173 L.Ed.2d 868 (2009). Rao’s complaint purported to allege several RICO counts. He listed a claim for violation of 18 U.S.C. § 1962(a), which prohibits the use or investment of income in an enterprise that was derived from a pattern of racketeering activity. A section 1962(a) claim requires a showing that a defendant: (1) received income from a pattern of racketeering activity; (2) used or invested that income in the operation of an enterprise; and (3) caused the injury complained of by the use or investment of racketeering income in an enterprise. Vicom, Inc., v. Harbridge Merch. Servs., Inc., 20 F.3d 771, 778 n. 6 (7th Cir.1994). Rao’s complaint merely restates the elements of section 1962(a) in boilerplate fashion and contains no suggestion that money was used or invested in the operation of an enterprise or that he suffered an injury caused by the use or investment of" }, { "docid": "6419014", "title": "", "text": "the SSB Defendants is that they remitted commissions to Co-mart, the Trust’s registered introducing broker. (Compl.¶ 240(b)(vi).) The complaint does not allege that the SSB Defendants knew that the funds at issue were stolen, nor pleads to specific facts relating to the stealing of the funds. 1. Section 1962(a) Lesavoy fails to assert a violation of Sections 1962(a) and (b) which “seek to prevent criminals from investing in or taking over and maintaining previously legitimate businesses.” Zaro Licensing, Inc., 779 F.Supp. at 283. Section 1962(a) “makes it unlawful for a person ‘who has received any income derived ... from a pattern of racketeering activity ... ’ to use or invest [that income] in the [acquisition, establishment or operation of] any enter prise.” Katzman v. Victoria’s Secret Catalogue, 167 F.R.D. 649, 657 (S.D.N.Y.1996) (dismissing complaint and ordering sanctions and payment of legal fees), aff'd, 113 F.3d 1229, 1997 WL 259746 (2d Cir.1997). “[A] violation of this section is not established by showing participation in the alleged pattern of racketeering activity, or the derivation of income from that pattern, but is established instead by showing the use or investment of that income in acquiring, establishing or operating an enterprise.” Zaro Licensing, Inc., 779 F.Supp. at 283. Here, Lesavoy has failed even to identify any enterprise which the SSB Defendants used “racketeering income” to acquire, establish, or operate. Moreover, Lesavoy fails to “allege any injury caused by the use or investment of alleged racketeering income.” Katzman, 167 F.R.D. at 657 (“[T]he injury causation requirement of § 1962(a) is not satisfied by allegations that a defendant, which is also the enterprise, invested the racketeering income in its general operations.”). “This alone bars [Plaintiffs] § 1962(a) claim.” Id. 2. Section 1962(b) Section 1962(b) requires that the plaintiff “allege an injury resulting from the acquisition or control of an enterprise through a pattern of racketeering activity.” Katzman, 167 F.R.D. at 657 (citations omitted). However, the complaint contains no allegations that SSB Defendants “directly or indirectly invest[ed] in, or maintain[ed] an interest in” any such enterprise. Jordan (Bermuda), 154 F.Supp.2d at 693 (quoting Citadel Mgmt., Inc. v." }, { "docid": "8992381", "title": "", "text": "in the predicate acts. Accordingly, the AFELMCC fails to state a claim for RICO violation against the Toyota Defendants because it does not “reasonably notify the defendants of their purported role in the scheme,” which is “perhaps the most basic consideration underlying Rule 9(b).” Vicom, Inc. v. Harbridge Merchant Servs., Inc., 20 F.3d 771, 778 (7th Cir.1994) (internal quotation marks and citations omitted). Accordingly, the Court finds that the Plaintiffs have failed to state a claim for violation of RICO because they have not adequately alleged predicate acts of racketeering activity. Although this deficiency provides an independent basis for dismissing Plaintiffs’ RICO claim, the Court notes that additional deficiencies exist with respect to Plaintiffs’ allegations under each of the subsections of § 1962. B. Section 1962(a) Section 1962(a) makes it “unlawful for any person who has received any income derived ... from a pattern of racketeering activity or through collection of an unlawful debt ... to use or invest ... any part of such income, or the proceeds of such income, in acquisition of any interest in, or the establishment or operation of’ an enterprise. 18 U.S.C. § 1962(a). “A plaintiff must show that the defendant’s RICO violation was not only a ‘but for’ cause of his injury, but that it was a proximate cause as well.” Oki Semiconductor Co. v. Wells Fargo Bank, N.A., 298 F.3d 768, 773 (9th Cir.2002) (citing Holmes v. Sec. Investor Prot. Corp., 503 U.S. 258, 268-69, 112 S.Ct. 1311, 117 L.Ed.2d 532 (1992)). To adequately allege proximate cause, a “ ‘plaintiff seeking civil damages for violation of § 1962(a) must allege facts tending to show that he or she was injured by the use or investment of racketeering income.’ ” Sybersound Records, Inc. v. UAV Corp., 517 F.3d 1137, 1149 (9th Cir. 2008) (quoting Nugget Hydroelectric, L.P. v. Pac. Gas & Elec. Co., 981 F.2d 429, 437 (9th Cir.1992)). Alleging that a defendant reinvested “proceeds from alleged racketeering activity back into the enterprise to continue its racketeering activity is insufficient to show proximate causation.” Id. (citations omitted). Otherwise, “ ‘almost every pattern of racketeering" }, { "docid": "14176719", "title": "", "text": "which makes it unlawful for any person who has received any income derived, directly or indirectly, from a pattern of racketeering activity ... to use or invest, directly or indirectly, any part of such income, or the proceeds of such income, in acquisition of any interest in, or the establishment or operation of, any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce 18 U.S.C. § 1962(a). Section 1962(a) “was primarily directed at halting the investment of racketeering proceeds into legitimate businesses, including the practice of money laundering.” Brittingham v. Mobil Corp., 943 F.2d 297, 303 (3d Cir.1991). Accordingly, to sufficiently plead a violation of § 1962(a), a plaintiff must allege three elements: (1) the defendant has received money from a pattern of racketeering activity; (2) the defendant then utilized that money to acquire or establish in an enterprise; and (3) that enterprise affects interstate or foreign commerce. Additionally, a plaintiff “must allege an injury resulting from the investment of racketeering income distinct from an injury caused by the predicate [racketeering] acts themselves.” Guy’s Mech. Sys., Inc. v. FIA Card Servs., N.A., 339 Fed.Appx. 193, 194 (3d Cir.2009) (quoting Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1188 (3d Cir.1993)); see also Kolar v. Preferred Real Estate Investments, Inc., 361 Fed.Appx. 354, 360 (3d Cir.2010) (“Because the objectives of § 1962(a) are directed specifically at the use or investment of racketeering income, it requires that a plaintiffs injury be caused by the use or investment of income in [an] enterprise.”) (quoting Brittingham, 943 F.2d at 303). In her Complaint, Macauley does not set forth how she was injured as a result of Defendants’ investment of their alleged racketeering income; the Complaint, in a conclusory fashion, merely restates the elements of a § 1962(a) claim. (Compl. at ¶¶ 126-132.) Further, Macauley’s RICO Case Statement only alleges that Hill “either pocket[ed] refinance funds'or use[d] them for the purchase of the next home, which he would promptly sell or refinance.” (RICO Case Statement at ¶ 8(b).) Such an allegation — that Hill continued to reinvest racketeering" }, { "docid": "11356489", "title": "", "text": "the income, and not by the plaintiffs investment of that income into a defendant’s enterprise. It is true, as defendants emphasize, that in many cases arising under § 1962(a) the defendant dupes the plaintiff into investing money in the defendant’s organization, but that common scenario is not invariably the case. See, e.g., Ideal Steel Supply Corp. v. Anza, 373 F.3d 251 (2d Cir.2004). Further illustrating why the injury and not the investment is key, is the fact that even when the plaintiff supplies the income no actionable § 1962(a) claim lies unless the plaintiff is injured as a result of the defendant’s use of that income. Ultimately, defendants’ construction of § 1962(a) finds no support in the plain language of the statute, and it also unnecessarily constricts scope of the statute. See Morgan v. Bank of Waukegan, 804 F.2d 970, 974 (7th Cir. 1986) (noting that the court of appeals “has consistently held that RICO must be given the broad effect mandated by its plain language.”). Having cleared the first hurdle set by defendants, plaintiff now faces a more formidable obstacle in the form of the investment injury rule. As discussed above, to state a § 1962(a) claim plaintiff must allege that her injury was caused by defendants’ use or investment of income derived from racketeering activity, and she cannot merely claim harm caused by predicate racketeering acts. The Seventh Circuit has not adopted the investment injury rule, but, in Vicom, the court expressed accord with the majority of circuits that have adopted the rule. See Vicom, 20 F.3d at 778 n. 6. Following Vicom, district courts in the Seventh Circuit have applied the investment injury rule and have required the investment of income to cause a plaintiffs injuries. See, e.g., Bd. of Trs. v. Nationwide Life Ins. Co., 2005 WL 711977, **7-8, 2005 U.S. Dist. LEXIS 6159, *22, 2005 WL 711977 (N.D.Ill.2005); Vega v. Contract Cleaning Maint., Inc., 2004 WL 2358274, **12-13, 2004 U.S. Dist. LEXIS 20949, *40-42, 2004 WL 2358274 (N.D.Ill.2004); Carnegie v. Household Int’l, Inc., 220 F.R.D. 542, 546 (N.D.Ill.2004) (stating that § 1962(a) “covers injuries which" }, { "docid": "8344680", "title": "", "text": "at bar took place over a period of, at most, twelve months and because there is no threat that this activity will continue into the future, Plaintiff has failed to allege the type of long-term criminal activity necessary to satisfy the continuity prong of the pattern requirement. The failure to allege a pattern of racketeering activity is fatal to the Plaintiffs RICO cause of action. 3. RICO Injury Under Section 1962(a) Defendants argue that the Plaintiffs claim under section 1962(a) of the RICO statute must fail because the Plaintiff did not allege any injury resulting from the “use or investment” in the enterprise of income derived from a pattern or racketeering activity. Plaintiff contends that she is only required to show that her injuries stemmed from the predicate acts underlying the section 1962(a) claim. Despite the Plaintiffs contentions to the contrary, the Third Circuit requires that when a section 1962(a) violation is alleged, the plaintiff must establish injury not only from the predicate acts themselves but also from the use or investment of the proceeds of the racketeering activity into the enterprise. Rose v. Bartle, 871 F.2d at 367-78 (“Moreover, requiring the allegation of income use or investment injury ‘is consistent with both the literal language and the fair import of the language [of section 1962(a) ].’ ” (citations omitted)); Curley v. Cumberland Farms Dairy, Inc., 728 F.Supp. 1123, 1139 (D.N.J.1989) (“... under 1962(a), it is illegal to invest the income of racketeering activity. Therefore, it is not sufficient for the plaintiff merely to show that the alleged injury was caused by the alleged pattern of racketeering activity.”); Uniroyal Goodrich Tire Co. v. Munnis, No. 89-2690, slip op. at 4, Kahn, J., 1990 WL 45367 (E.D.Pa. Apr. 11, 1990). In the present case, Plaintiff has not alleged, nor has evidence been presented that in any way demonstrates that the injuries complained of were caused by the use or investment of the fraudulently obtained funds in the enterprise. At most, Plaintiffs injuries stem from the securities fraud and the mail fraud predicate acts. She was not injured by the investment of" }, { "docid": "11356491", "title": "", "text": "are caused by the use or investment of racketeering income”); Xinos v. Kappos, 270 F.Supp.2d 1027, 1031 (N.D.Ill.2003) (“a plaintiff bringing a claim under Section 1962(a) must allege that he was injured from the defendants’ use or investment of income that they derived from racketeering activity”); Shapo v. O’Shaughnessy, 246 F.Supp.2d 935, 965 (N.D.Ill.2002) (collecting cases). Indeed, we have already accepted the rule (Pinski v. Adelman, 1995 U.S. Dist. LEXIS 16550, *27-30,1995 WL 669101, *8-9 (N.D.Ill.1995)), and see no reason to change course. Plaintiff fails to allege any injury caused by defendants’ investment or use of income derived from racketeering activity. Plaintiff does state that she and the putative class members were injured by both defendants’ predicate racketeering acts and their investment and reinvestment of income derived from those acts into the enterprise (plf.cplt.¶ 93). That statement suggests a distinct investment injury, but plaintiff then submarines her § 1962(a) claim when she attributes her injury to the underlying predicate act of extortion, claiming that she was demoted “for failing to succumb to or comply with the demands of Sheahan’s Political Enterprise, which constitute an illegal extortionate political campaign contribution scheme” (id. at ¶ 94). The alleged extortion is a predicate racketeering act, not a § 1962(a) injury. Moreover, plaintiffs contention that defendants used the investment income to support the enterprise does not establish standing because the mere reinvestment of racketeering proceeds into the enterprise does not create § 1962(a) standing. See Vicom, 20 F.3d at 779 n. 6; Wagh v. Metris Direct, Inc., 348 F.3d 1102, 1110 (9th Cir.2003). Plaintiff also argues that she has standing as a result of losing her salary, but that argument only reinforces the absence of a § 1962(a) claim. Plaintiff lost her salary due to her demotion, and she alleges that she was demoted because she refused to participate in defendants’ alleged scheme. Plaintiff acknowledges that the predicate act (extortion), and not the investment of any income, caused her loss of salary. Thus, plaintiff fails to allege how the investment of income harmed her, and instead admits that she was injured by the predicate" }, { "docid": "13223710", "title": "", "text": "of these subsections. 1. Section 1962(a) Subsection 1962(a) makes it unlawful for a person “who has received any income derived ... from a pattern of racketeering activity ... to use or invest [that income] in the [acquisition, establishment or operation of] any enterprise.” If Plaintiffs had adequately alleged that the Defendants engaged in a pattern of racketeering activity, they would then be required to allege an injury suffered as a result of the use or investment of alleged racketeering income. Plaintiffs here not only failed to allege a pattern of racketeering activity, they also completely failed to allege any injury caused by the use or investment of alleged racketeering income. This alone bars their § 1962(a) claim. Ouaknine, 897 F.2d at 82-83; Morin v. Trupin, 832 F.Supp. 93, 99 (S.D.N.Y.1993). Plaintiffs’ conclusory allegation that Defendants “used or invested” income received from VSC, (see RICO Case Statement § 11), is insufficient because it fails to allege how that use or investment injured them or any member of the proposed class. See Schick v. Ernst & Whinney, 1991 WL 8543, at *8-9, 1991 U.S.Dist. LEXIS 584, at *24-25 (S.D.N.Y.1991). Moreover, the assertion that Katz was injured through the alleged mail fraud, (see RICO Case Statement ¶¶ 4, 15,16), is not an adequate substitute because the required allegation of injury from the use or investment of racketeering income must be distinct from the injury allegedly caused by the predicate acts. Morin, 832 F.Supp. at 99 (“In this Court, § 1962(a) only allows a plaintiff to sue for injuries which arise out of the use or investment of racketeering income, not merely for injuries based on racketeering activity”); Zaro Licensing, 779 F.Supp. at 283 (noting that injury must stem from the use or investment of the income in some enterprise and not from the predicate acts). Finally, Plaintiffs’ allegation that VSC used “overpayments” it received from the alleged mail fraud to perpetuate the fraud and send out catalogs that Katzman and Katz eventually received, (see RICO Case Statement ¶ 11), is also insufficient. Courts have repeatedly held that the injury causation requirement of §" }, { "docid": "11356492", "title": "", "text": "the demands of Sheahan’s Political Enterprise, which constitute an illegal extortionate political campaign contribution scheme” (id. at ¶ 94). The alleged extortion is a predicate racketeering act, not a § 1962(a) injury. Moreover, plaintiffs contention that defendants used the investment income to support the enterprise does not establish standing because the mere reinvestment of racketeering proceeds into the enterprise does not create § 1962(a) standing. See Vicom, 20 F.3d at 779 n. 6; Wagh v. Metris Direct, Inc., 348 F.3d 1102, 1110 (9th Cir.2003). Plaintiff also argues that she has standing as a result of losing her salary, but that argument only reinforces the absence of a § 1962(a) claim. Plaintiff lost her salary due to her demotion, and she alleges that she was demoted because she refused to participate in defendants’ alleged scheme. Plaintiff acknowledges that the predicate act (extortion), and not the investment of any income, caused her loss of salary. Thus, plaintiff fails to allege how the investment of income harmed her, and instead admits that she was injured by the predicate act of extortion. Having failed to state any distinct investment injury, plaintiffs § 1962(a) claim is dismissed. Section 1962(c) Claim Under § 1962(c) it is “unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity or collection of unlawful debt.” Under § 1964(c), plaintiff must show that she was demoted “by reason of’ defendants’ extortionate scheme. Defendants argue that the § 1962(c) claim must be dismissed because plaintiff fails to allege that her injury was caused by the predicate racketeering act of extortion. However, in the court’s April 14, 2004, order, we found plaintiffs allegations of causation survived defendants’ 12(b)(6) motion. Discussion of defendants’ arguments reinforces that finding. Defendants rely on Reddy v. Litton Indus., Inc., 912 F.2d 291, 294 (9th Cir.1990), and in that case the defendant fired the plaintiff after he raised concerns about defendant’s illegal activity (bribery to obtain" }, { "docid": "11356487", "title": "", "text": "invest, directly or indirectly, any part of such income, or the proceeds of such income, in acquisition of any interest in, or the establishment or operation of, any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce.” Defendants argue that plaintiff cannot raise the § 1962(a) claim because she neither bought nor sold campaign fundraiser tickets. They base that argument on the investment injury rule, which states that “the use or investment of the racketeering income must proximately cause the plaintiffs injury; injury caused by the predicate racketeering acts is inadequate.” Vicom, Inc. v. Harbridge Merchant Servs., Inc., 20 F.3d 771, 778 n. 6 (7th Cir.1994). See also Vemco, Inc. v. Camardella, 23 F.3d 129, 132 (6th Cir.1994) (“to state a claim under § 1962(a), a plaintiff must plead a specific injury to the plaintiff caused by the investment of income into the racketeering enterprise, distinct from any injuries caused by the predicate acts of racketeering.”). In response, plaintiff asserts that her refusal to join the enterprise led to her demotion and loss of money in the form of reduced salary. Plaintiff also highlights sections of the April 14, 2004, order in which the court found that plaintiff adequately alleged that defendants attempted to obtain money from her. Initially, defendants’ interpretation of § 1962(a) improperly narrows the scope of the statute because the fact that plaintiff refused to buy and sell fundraiser tickets does not preclude her from suing under that section. Section 1962(a) specifies that income used or invested by an enterprise must be derived from illegal racketeering activity or the collection of an unlawful debt. The statute is silent as to the source of the income, and it does not grant standing only to those who actually provide income to a RICO enterprise. Indeed, it is the civil remedies section of RICO that provides standing to “any person injured in his business or property by reason of a violation of section 1962.” 18 U.S.C. § 1964(c). Thus, standing to sue depends on the injury caused by an enterprise’s use or investment of" }, { "docid": "19757293", "title": "", "text": "a pattern of racketeering activity ... to use or invest, directly or indirectly, any part of such income, or the proceeds of such income, in acquisition of any interest in, or the establishment or operation of, any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce.... 18 U.S.C. § 1962(a) (1984). The Sixth Circuit has held that in order to state a claim under § 1962(a), a plaintiff must plead a specific injury caused by the investment of income into the racketeering enterprise, distinct from any injuries caused by the predicate acts of racketeering. See Vemco, Inc. v. Camardella, 23 F.3d 129, 132 (6th Cir.1994); Craighead, 899 F.2d at 494. In Vemco, the Sixth Circuit held that the plaintiff had failed to state a claim under § 1962(a) when the complaint alleged only that the defendants reinvested in their enterprise income derived from their racketeering activities against the plaintiff. See 23 F.3d at 133. The plaintiff had alleged only an injury arising out of the predicate acts of racketeering, and not an injury stemming from the reinvestment. See id. Because the allegations were insufficient as a matter of law, the plaintiffs § 1962(a) RICO claim was dismissed. See id. Defendants argue that Mr. James’s complaint does not allege that he was injured as a result of Defendants’ alleged investment of income derived from racketeering activity. The complaint alleges that “Defendants violated 18 U.S.C. § 1962 ... [b]y using income derived from the above described pattern of racketeering activity in the operation of the enterprise.” (Comply 48). Defendants argue that Mr. James has not alleged that he was injured by the alleged investment, but only that he was damaged by the underlying acts of fraud and conspiracy which constitute predicate acts. Mr. James argues that he was harmed by reinvestment when ARC’s assets were invested in ACMV for little consideration, and that the transfer from Timothy McCoy to ACMV made the debt owed to him by Timothy McCoy uncollectible. This Court has held that the conduct discussed in the bankruptcy court’s order of May 10," }, { "docid": "1494374", "title": "", "text": "Racketeering Activity Defendants contend that Standard’s section 1962(a) claim should be dismissed because “there is no possible scenario under which Plaintiff could plead that its alleged injuries were caused by a ‘use or investment’ of income.” (D.I. 22 at 23) Although Defendants’ sweeping proposition clearly goes too far, the Court agrees that controlling precedent in this circuit requires dismissal of Standard’s section 1962(a) claim. To sustain a civil RICO claim under any of the subsections of RICO section 1962, the plaintiff must plead and prove that his alleged injury was caused by the violative conduct described in the particular section 1962 subsection upon which he relies. 18 U.S.C. § 1964(c). The Third Circuit has held that in pleading a section 1962(a) claim specifically, the plaintiff must allege an injury that was “caused -by the use or investment of income in the enterprise, rather than by the predicate racketeering acts or pattern.” Rose v. Bartle, 871 F.2d 331, 357 (3d Cir. 1989); accord Brittingham v. Mobil Corporation, 943 F.2d 297, 304 (3d Cir.1991) (“A § 1962(a) violation occurs not when the defendant engages in the predicate, acts, but only when he uses or invests the proceeds of that activity in an enterprise.”). The Third Circuit, however, also stated in Brittingham, 943 F.2d at 304, that to prevail on a section 1962(a) claim, a plaintiff must “demonstrate that 'the use or investment of racketeering income was a ‘substantial factor’ in causing the injury.” In an obvious effort to state a section 1962(a) claim comporting with the just-quoted language from Brittingham, Standard sets forth the following allegation in its Amended Complaint: Defendants’ use or investment of racketeering income, as aforesaid, constituted a substantial factor in the sequence of responsible causation of injuries to Standard’s business or property over a 15-year period of time. Such use of reinvestment did not constitute a normal reinvestment of corporate, profits, in that, among other things, each- successive Company Defendant tvould not have ,been created and, therefore would not have been capable of perpetrating its own forms of fraud against Standard, if income from each earlier fraud against" }, { "docid": "11356490", "title": "", "text": "now faces a more formidable obstacle in the form of the investment injury rule. As discussed above, to state a § 1962(a) claim plaintiff must allege that her injury was caused by defendants’ use or investment of income derived from racketeering activity, and she cannot merely claim harm caused by predicate racketeering acts. The Seventh Circuit has not adopted the investment injury rule, but, in Vicom, the court expressed accord with the majority of circuits that have adopted the rule. See Vicom, 20 F.3d at 778 n. 6. Following Vicom, district courts in the Seventh Circuit have applied the investment injury rule and have required the investment of income to cause a plaintiffs injuries. See, e.g., Bd. of Trs. v. Nationwide Life Ins. Co., 2005 WL 711977, **7-8, 2005 U.S. Dist. LEXIS 6159, *22, 2005 WL 711977 (N.D.Ill.2005); Vega v. Contract Cleaning Maint., Inc., 2004 WL 2358274, **12-13, 2004 U.S. Dist. LEXIS 20949, *40-42, 2004 WL 2358274 (N.D.Ill.2004); Carnegie v. Household Int’l, Inc., 220 F.R.D. 542, 546 (N.D.Ill.2004) (stating that § 1962(a) “covers injuries which are caused by the use or investment of racketeering income”); Xinos v. Kappos, 270 F.Supp.2d 1027, 1031 (N.D.Ill.2003) (“a plaintiff bringing a claim under Section 1962(a) must allege that he was injured from the defendants’ use or investment of income that they derived from racketeering activity”); Shapo v. O’Shaughnessy, 246 F.Supp.2d 935, 965 (N.D.Ill.2002) (collecting cases). Indeed, we have already accepted the rule (Pinski v. Adelman, 1995 U.S. Dist. LEXIS 16550, *27-30,1995 WL 669101, *8-9 (N.D.Ill.1995)), and see no reason to change course. Plaintiff fails to allege any injury caused by defendants’ investment or use of income derived from racketeering activity. Plaintiff does state that she and the putative class members were injured by both defendants’ predicate racketeering acts and their investment and reinvestment of income derived from those acts into the enterprise (plf.cplt.¶ 93). That statement suggests a distinct investment injury, but plaintiff then submarines her § 1962(a) claim when she attributes her injury to the underlying predicate act of extortion, claiming that she was demoted “for failing to succumb to or comply with" } ]

[ { "docid": "8278006", "title": "", "text": "the dominant and accused majority stockholder, after accusations of wrongdoing have been made, were selected for membership on the Board to protect the interests of the minority stockholders and to assure a vigorous prosecution of effective litigation against the offending majority.” Finally, we are of the opinion that this case, raising as it does serious questions, must be heard and determined on its merits. We conclude that the defendants so dominated American Industries, Inc. that a demand on its board of directors would probably have come to naught; that in the long run it would have been a futile and useless gesture. Since this derivative action is the only effective method of litigating the plaintiffs’ claims, the demand requirement of Rule 23.1(2) is excused. II. THIRD - PARTY DEFENDANT’S MOTION FOR SUMMARY JUDGMENT. The third-party complaint seeks indemnification for all damages assessed against the defendants, as well as certain injunctive and affirmative relief against third-party defendant, William R. Loeffler. Under Rule 14 of the Federal Rules of Civil Procedure, the third-party complaint is a narrow device for seeking indemnification or contribution from a person “who is or may be liable to [the defendant] for all or part of the plaintiff’s claim against him.” It cannot be used as a method of bringing into controversy other matters which happen to have some relationship to the original action. 3 Moore’s Federal Practice ft 14.04. Thus, all claims in the third-party complaint which seek affirmative or injunctive relief against the third-party defendant must be dismissed from the case. If the third-party plaintiffs wish to pursue these claims, a separate lawsuit should be filed in the appropriate court. As to the claim for indemnification, the third-party plaintiffs allege that they did not knowingly mislead Inland’s public shareholders, and that if the shareholders were mislead, this was due to the fraudulent conduct of the third-party defendant. In support of this allegation, the third-party plaintiffs have produced evidence that, (as legal counsel for the corporations involved, Loeffler assisted in preparing the allegedly fraudulent proxy solicitations and they argue that it was his duty to make whatever" } ]

[ { "docid": "13444368", "title": "", "text": "over to the defendant for all or part of the plaintiff’s recovery * However, the very wording of Rule 14 indicates that there is nothing to require that the third-party defendant be “automatically liable,” since it reads “is or may be liable.” As is stated by Moore: “[T]he allegations of the third-party complaint need not show that recovery is a certainty; the complaint should be allowed to stand if, under some construction of the facts which might be adduced at trial, recovery would be possible.” 3 Moore, ¶ 14.10, at 555. Regardless of whether the recovery (if any) by plaintiff and that by third-party plaintiff rest on different theories, Moore states that “it is immaterial that the liability of the third party rests on a different theory from that underlying plaintiff’s claim.” Id. at 553-54. This has been well stated by the Fifth Circuit in American Fid. & Cas. Co. v. Greyhound Corp., 232 F.2d 89, 92 (5 Cir. 1956): “It is settled that impleader under Rule 14(a) does not require an identity of claims, or even that the claims rest on the same theory. Otherwise the purposes of the Rule would be defeated. Plainly, if the theories differ, the facts supporting each will differ, and the question is what degree of difference will be allowed in the facts relied upon. In answering this question, the purposes of the Rule, including the desire to avoid circuity of actions and to obtain consistent results, must be balanced against any prejudice which the impleaded party might suffer, and these considerations are left to the discretion of the trial court.” This is not to say that impleader is a “device for bringing into an action any controversy which may happen to have some relationship with it.” 3 Moore, ¶ 14.04, at 502. A trial court would be proper in denying third-party practice if “it would introduce an unrelated controversy or unduly complicate the case to the prejudice of the plaintiff.” 3 Moore, ¶ 14.05 [1], at 505. This is by no means an “unrelated controversy,” and the only prejudice possible to plaintiff is" }, { "docid": "9425859", "title": "", "text": "single collection, will have no claim against the third parties. By the same token, only if plaintiff succeeds will it be necessary to determine finally their alleged liability. And it makes no pertinent difference, of course, that both the plaintiff and the third parties may be held free of liability. It is sufficient under the Rule that a third party “may” be liable. The issue to be tried out between plaintiff and defendant is whether, for the relevant time, plaintiff was a “responsible person.” This cannot be determined without inquiry into the affairs of Dynamic and its officers, the proposed third-party defendants. Their testimony will be vital to the case, and it would be wastefully duplicative to require the United States to proceed separately against them. Rule 14 is designed for this precise type of problem. It is no barrier that the claims here are not identical and that some facts may not be material to both aspects of the ease. American Fidelity & Casualty Co. v. Greyhound Corp., 232 F.2d 89, 92 (5th Cir.1956). The Rule is operative where “defendant’s right against the third party is merely the outgrowth of the same aggregate or core of facts which is determinative of the plaintiff’s claim,” Dery v. Wyer, supra, 265 F.2d at 807. It is likewise no obstacle that affirmative relief is sought against the proposed third-party defendants, above the amount claimed by Crompton-Richmond. See Noland Company v. Graver Tank & Manufacturing Co., 301 F.2d 43 (4th Cir.1962). Amended Rule 18(a) and the Advisory Committee Note thereto make it clear that, assuming the third-party complaint to be otherwise proper, additional claims against third-party defendants are permissible. See 39 F.R.D. at 87 (“a party asserting a * * * third-party claim * * * may join as many claims as he has against an opposing party”). Finally, plaintiff’s claims of prejudice and burdensome complications are, for reasons already outlined, unimpressive. While the addition of new parties may, of course, add somewhat to the length and complexity of discovery procedures, the price is small compared to the alternative prospect of separate, largely" }, { "docid": "2075900", "title": "", "text": "served with the summons and third-party complaint, hereinafter called the third-party defendant, shall make his defenses to the third-party plaintiff’s claim as provided in Rule 12 and his counterclaims against the third-party plaintiff and cross-claims against other third-party defendants as provided in Rule 13.... Fed.R.Civ.P. 14 (emphasis added). The primary purpose of Rule 14 is to promote judicial efficiency and it is intended to provide a mechanism for disposing of multiple claims arising from a single set of facts in one action. Colton v. Swain, 527 F.2d 296 (7th Cir., 1975); Eastman Chemical International, Ltd. v. Virginia National Bank, 94 F.R.D. 21, (D.C.Tenn.1981); Tiesler v. Martin Paint Stores, 76 F.R.D. 640 (D.C. Pa.1977); In re Joyanna Holitogs, Inc., 21 B.R. 323 (Bktcy.S.D.N.Y.1982). A third-party action is proper only when the third-party’s liability is somehow dependent on the outcome of the main action or when the third party is secondarily liable to the defendant. Hefley v. Textron, Inc., 713 F.2d 1487 (10th Cir.1983); U.S. v. Joe Grasso & Son, Inc., 380 F.2d 749 (5th Cir.1967); Index Fund, Inc. v. Hagopian, 417 F.Supp. 738 (S.D.N.Y.1976). In order to maintain a third-party complaint, a direct line of liability must be alleged to exist between the third-party plaintiff and third-party defendant. Moorhead Construction Company, Inc. v. City of Grand Forks, 508 F.2d 1008 (8th Cir.1975), citing 6 Wright and Miller, Federal Practice and Procedure § 1442. It is not enough that the third-party claim is alleged to stem from the same transaction. Nagunst v. Western Union Tel. Co., 76 F.R.D. 631 (D.C.Kansas 1977). Finally, while Rule 14 should be liberally construed, the permissibility of a third-party action is committed to the discretion of the court. Farmers & Merchants Mutual Fire Insurance Company v. Pulliam, 481 F.2d 670 (10th Cir.1973); General Electric Company v. Irvin, 274 F.2d 175 (6th Cir.1960); Wright and Miller, Federal Practice & Procedure: Civil § IMS. Borreson’s third-party complaint does arise out of the same factual circumstances as the trustee’s preference action. The outcome of the preference action with respect to two of the payments in particular may well depend on" }, { "docid": "5727078", "title": "", "text": "the same transaction, occurrence, or series of transactions or occurrences. In such a case the third-party plaintiff may also demand judgment against the third-party defendant in favor of the plaintiff, in which event the third-party defendant shall make his defenses to the claim of the plaintiff as well as to that of the third-party plaintiff in the manner provided in Rule 12 and the action shall proceed as if the plaintiff had commenced it against the third-party defendant as well as the third-party plaintiff. (emphasis supplied). The unique features of Rule 14(c) which distinguishes it from traditional third-party practice are described in 3 J. Moore, Federal Practice ¶ 14.34 (2d ed. 1980): A third-party defendant may be brought in not only on a theory of liability over to the third-party plaintiff for any recovery the original plaintiff may secure from such third-party plaintiff (the original defendant), but also on a theory that the third-party defendant is directly liable to the original plaintiff either jointly with the original defendant or instead of the original defendant. (footnotes omitted). See also Rosario v. American Export-Isbrandtsen Lines, Inc., 531 F.2d 1227, 1231-32 (3d Cir.), cert. denied, 429 U.S. 857, 97 S.Ct. 156, 50 L.Ed.2d 135 (1976); Tri-State Oil Tool Industries, Inc. v. Delta Marine Drilling Company, 410 F.2d 178, 186-87 (5th Cir. 1969); MISR Insurance Company v. M-V Har Sinai, 80 F.R.D. 438, 440 (S.D.N.Y.1978); Northern Contracting Co. v. C. J. Langenfelder & Sons, Inc., 439 F.Supp. 621, 623 n.1 (E.D.Pa.1977); Stinson v. S. S. Kenneth McKay, 360 F.Supp. 674, 675 (S.D.Tex.1973). This interpretation of Rule 14(c) was made clear in Ohio River Company v. Continental Grain Company, 352 F.Supp. 505, 512 (N.D.Ill.1972). There, the district court reasoned in part as follows: If the contention of Oil Transport [third-party defendant] were correct, either a separate suit for contribution or repetitious pleadings and testimony on the part of the plaintiff and the third-party plaintiff would be necessary in the original trial. Such cannot be the meaning of Rule 14(c). The rule provides instead that the third-party plaintiff may demand judgment against the third-party defendant in" }, { "docid": "7029425", "title": "", "text": "similar cause of action in the complaint or the amended complaint in the creditors’ committee’s adversary proceeding. Rule 14(a), F.R.Civ.P., provides in pertinent part: “At any time after the commencement of the action a defending party, as a third-party plaintiff, may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff’s claim against him ... ”. Impleader is proper only when the allegations of the third-party complaint necessarily depend upon the outcome of the main claim against the defendant third-party plaintiff. Index Fund, Inc. v. Hagopian, 417 F.Supp. 738 (S.D.N.Y.1976). In short, while Rule 14, F.R.Civ.P., should be construed liberally to achieve its purpose, “it is not a catchall for independent litigation”. United States Fidelity & Guaranty Co. v. Perkins, 388 F.2d 771, 733 (10th Cir. 1968). United States v. Joe Grasso & Sons, 380 F.2d 749 (5th Cir. 1967), discusses impleader as follows, at 750-751: “[A]n entirely separate and independent claim cannot be maintained against a third party under Rule 14, even though it does rise out of the same general set of facts as the main claim. The question whether a defendant’s demand presents an appropriate occasion for the use of impleader or else constitutes a separate claim has been resolved consistently by permitting impleader and in cases where the third party’s liability was in some way derivative of the outcome of the main claim. In most cases it has been held that for impleader to be available the third party defendant must be ‘liable secondarily to the original defendant in the event that the latter is held liable to the plaintiff.’ Stating the same principle in different words, other authorities declare that the third party must necessarily be liable over to the defendant for all or part of the plaintiff’s recovery, or that the defendant must attempt to pass on to the third party all or part of the liability asserted against the defendant. Whichever expression is preferred, it is clear that impleader under Rule" }, { "docid": "14467496", "title": "", "text": "recovery,” or that “the defendant must attempt to pass on to the third party all or part of the liability asserted against the defendant.” See, e.g., United States v. Joe Grasso & Son, Inc., 380 F.2d 749, 751-52 (5th Cir.1967) (emphasis in original) (citations omitted). “Whichever expression is preferred, it is clear that impleader under Rule 14 requires that the liability of the third party be dependent upon the outcome of the main claim.” Id. at 752 (emphasis added). Because the third-party claim must be “dependent” upon the original claim, “there must be a more than tenuous relationship between the main and third-party claims,” National Union Fire Ins. Co. of Pittsburgh, PA v. Gordon, No. 87 Civ. 7695, 1991 WL 4753, at *7 (S.D.N.Y. Jan. 14,1991), and “[t]he mere fact that the alleged third-party claim arises from the same transaction or set of facts as the original claim is not enough.” 6 Charles A. Wright, Arthur R. Miller & Mary K. Kane, Federal Practice and Procedure § 1446, at 377-79 (1990). Moreover, the liability of the third-party defendant “must not arise out of a separate, and independent claim.” Blais Constr. Co., 733 F.Supp. at 152 (quoting Farmers Prod. Credit Ass’n of Oneonta v. Whiteman, 100 F.R.D. 310, 312 (N.D.N.Y.1983)). Finally, “[t]he decision whether to permit a defendant to implead a third-party defendant rests in the trial court’s discretion,” Kenneth Leventhal & Co. v. Joyner Wholesale Co., 736 F.2d 29, 31 (2d Cir.1984) (citation omitted), and the Court “must balance the benefits of settling related matters in one suit against the possible prejudice to the plaintiff and the third-party defendant.” Affiliated FM Ins. Co. v. Jou Jou Designs, Inc., No. 90 Civ. 8262, 1993 WL 427406, at *3 (S.D.N.Y. Oct. 15, 1993) (quoting Consolidated Rail Corp. v. Metz, 115 F.R.D. 216, 218 (S.D.N.Y.1987)). Unlike the traditional grounds for a third-party action — indemnification or contribution — the third-party claim in this action is based upon the theory of breach of contract. The City contends that breach of contract is an inappropriate basis for impleader. It further contends that the breach of" }, { "docid": "5727079", "title": "", "text": "omitted). See also Rosario v. American Export-Isbrandtsen Lines, Inc., 531 F.2d 1227, 1231-32 (3d Cir.), cert. denied, 429 U.S. 857, 97 S.Ct. 156, 50 L.Ed.2d 135 (1976); Tri-State Oil Tool Industries, Inc. v. Delta Marine Drilling Company, 410 F.2d 178, 186-87 (5th Cir. 1969); MISR Insurance Company v. M-V Har Sinai, 80 F.R.D. 438, 440 (S.D.N.Y.1978); Northern Contracting Co. v. C. J. Langenfelder & Sons, Inc., 439 F.Supp. 621, 623 n.1 (E.D.Pa.1977); Stinson v. S. S. Kenneth McKay, 360 F.Supp. 674, 675 (S.D.Tex.1973). This interpretation of Rule 14(c) was made clear in Ohio River Company v. Continental Grain Company, 352 F.Supp. 505, 512 (N.D.Ill.1972). There, the district court reasoned in part as follows: If the contention of Oil Transport [third-party defendant] were correct, either a separate suit for contribution or repetitious pleadings and testimony on the part of the plaintiff and the third-party plaintiff would be necessary in the original trial. Such cannot be the meaning of Rule 14(c). The rule provides instead that the third-party plaintiff may demand judgment against the third-party defendant in favor of the plaintiff and shall be construed as meaning precisely that. Ohio River [plaintiff] is thus entitled to recover its damages from both Continental [third-party plaintiff] and the Bayou La Reine [third-party defendant]. (emphasis supplied). In its third-party complaint against Cairo, Trumbull prayed for the following: (1) That process in due form of law, according to the practice of this Court in causes of admiralty and maritime jurisdiction pursuant to the provisions of Rules 4 and 14(c) of the Federal Rules of Civil Procedure, issue against Third Party Defendant Cairo Marine Service, Inc. requiring it to appear and answer this Third Party Complaint and answer the Complaint of Plaintiff; As in United States v. Isco, Inc., 463 F.Supp. 1293 (E.D.Wis.1979), we believe the unmistakable meaning of this language was to designate Cairo as a defendant to River-way’s complaint. Thus, the district court properly applied Rule 14(c) and was correct in treating this action as if Riverway had commenced it against Cairo and Trumbull as joint defendants. The last issue we must address is the" }, { "docid": "2950506", "title": "", "text": "it $420,465 for work done pursuant to the contract, for work performed pursuant to change orders authorized by Tishman, and for other work not called for in the contract or change orders performed by Artex. (Third-Party Complaint, 111125-28.) In addition Artex claims that Seaport was unjustly enriched at least in the amount of $79,600, the value of the stone installed by Artex at the Sea port Market Place, plaint, ¶¶ 29-32.) (Third-Party Com- Seaport’s Motion to Dismiss the Third-Party Complaint Fed.R.Civ.P. 14 provides that “[a]t any time after commencement of the action a defending party ... may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff’s claim against him.” The rule was “designed to eliminate multiple and repetitive lawsuits and trials by allowing for a single presentation of evidence when multiple claims turn upon identical or similar proof.” Sirota v. Solitron Devices, Inc., 97 F.R.D. 732, 736 (S.D.N.Y.1983); see also Oliner v. McBride’s Industries, Inc., 106 F.R.D. 14, 20 (S.D.N.Y.1985). The interest in judicial economy which underlies the rule is advanced, of course, only when “the defendant’s right against the third party is merely the outgrowth of the same aggregate or core of facts which is determinative of the plaintiff’s claim.” Dery v. Wyer, 265 F.2d 804, 807 (2d Cir.1959). Further, “[t]he mere fact that the alleged third-party claim arises from the same transaction or set of facts as the original claims is not enough.” Farmers Production Credit Ass’n of Oneonta v. Whiteman, 100 F.R.D. 310, 312 (N.D.N.Y.1983) (quoting 6 Wright & Miller, Federal Prac. & Pro. § 1446, at 257 (1971)). The essential purpose of Rule 14 requires that defendant’s third-party claim derive from the main claim, and that “the claim of liability to the defendant and third-party plaintiff accrue only upon a finding of defendant’s liability to the plaintiff on the main claim.” Index Fund, Inc. v. Hagopian, 417 F.Supp. 738, 744 (S.D.N.Y.1976). The requirements for impleader under Rule 14 are not met here. As" }, { "docid": "4881609", "title": "", "text": "him for all or part of the plaintiff’s claim against him.” This has been liberally interpreted to allow third-party claims to be asserted even though they do not allege the same cause of action or the same theory of liability as the original complaint. See e. g., Judd v. General Motors Corp., 65 F.R.D. 612, 614 (M.D.Penn. 1974); 3 Moore’s Federal Practice ¶ 14.07(1) (1979). Therefore it is of no consequence that the original complaint did not allege a defect in the boat. Crookston Marine’s third-party complaint against Lund American alleges that Lund American’s acts were “the sole or contributing cause of the death of plaintiff’s decedent” and is liable for “all or a part of the Plaintiff’s claim against it by right of contribution and/or indemnity.” Lund American asserts that Rule 14 allows a defendant to implead one who is or may be liable to the defendant, and may not substitute the third party as one liable to the plaintiff. It alleges that Crookston Marine is attempting to prove Lund American as being the “sole” cause of the injury and disclaiming its own liability in the matter. Lund American’s assertion of the law is correct, see Murray v. Reliance Insurance Co., 60 F.R.D. 390, 391 (D.Minn.1973), but Crookston Marine, contrary to Lund American’s allegations, has not attempted to substitute Lund American’s liability for its own. It alleges that Lund American is a “sole or a contributing cause” and seeks contribution or indemnity. A third-party claim is proper under Rule 14(a) if the third-party’s liability is in some way dependent on the outcome of the main claim, or the third party is secondarily liable to defendant. United States v. Joe Grasso & Son, Inc., 380 F.2d 749, 751 (5th Cir. 1967); United States Fidelity & Guaranty Co. v. American State Bank, 372 F.2d 449, 450 (10th Cir. 1967). Since contribution is a secondary or derivative liability and is recognized as a basis for bringing a third-party claim, see Wright and Miller, Federal Practice and Procedure § 1446 (1971), Crookston Marine’s claim is a proper one under Rule 14. It is" }, { "docid": "15220550", "title": "", "text": "the involuntary petition in bankruptcy of Autocue Sales in November 1956. The third-party defendants allegedly continued their conspiracy after the adjudication in bankruptcy by “sabotaging the efforts of the trustee”. It is clear that a substantial part of the complaint, whether or not it states a sufficient claim, alleges acts which directly injured Autocue Sales. Rule 14 (a) does not provide for impleading a party who is or may be liable to plaintiff directly. A plaintiff cannot be forced to bring an action against a person whom it does not wish to sue. The direct liability of the third-party defendants to plaintiff, if any, is therefore not a proper basis for impleader in this action. Goddard v. Shasta S. S. Co., D.C.W.D.N.Y., 9 F.R.D.12; Higgins v. Shenango Pottery, D.C. W.D.Pa., 12 F.R.D. 510, 514. The third-party complaint also alleges liability to the third-party plaintiffs. That is sufficient ground for service of a third-party complaint only if the third-party defendant “is or may be liable to him for all or part of the plaintiff’s claim against him.” Rule 14(a), F.R. Civ.P. The courts have gone far to permit third-party claims in order to avoid multiplicity of actions even though the claim is based on a different theory from that alleged in the original complaint and the third-party complaint introduces new factual issues. American Fidelity & Casualty v. Greyhound Corp., 5 Cir., 232 F.2d 89; United States v. Scott, D.C.S.D. N.Y., 18 F.R.D. 324. In these cases, however, the facts involved in the third-party claim were substantially the same as in the original claim and there was the element of passing on to the third-party defendant liability for the claim against the third-party plaintiff. The liability alleged in the third-party complaint here is not at all dependent upon the liability of third-party plaintiff. Not a fact is pleaded which would indicate that, if the third-party plaintiff were found liable for the claims in the original complaint, this would in any way affect the possible liability of third-party defendants. The conspiracies alleged in the two complaints appear to be based upon unrelated events" }, { "docid": "4245025", "title": "", "text": "of Rule 14(a) is not a bar to joining Irwin and Ethel Judd as third-party defendants in this ease. Plaintiffs next argue that severance and joinder are inappropriate because the complaint and the third-party complaint rest on two different theories of liability, strict liability under Section 402(a) of the Restatement, Second, Torts, and negligence. At the outset, I note that there does not seem to be the complete disparity in theories of liability between the complaint and the third-party complaint that plaintiffs urge is present here. Even assuming that such disparity exists, however, it would not be a ground for disallowing the defendant’s motion. Rule 14(a) provides that a defendant may join as a third-party defendant a person “who is or may be liable to him for all or part of the plaintiff’s claim against him.” The rule has been liberally interpreted to allow third-party claims to be asserted even though they do not allege the same cause of action or the same theory of liability as the original complaint. 3 Moore’s Federal Practice Para. 14.07(1). As the court in American Fidelity & Casualty Co. v. Greyhound Corp., 232 F.2d 89, 92 (5th Cir. 1956) stated: “It is settled that impleader under Rule 14(a) does not require an identity of claims, or even that the claims rest on the same theory. Otherwise the purposes of the Rule would be defeated. Plainly, if the theories differ, the facts supporting each will differ, and the question is what degree of difference will be allowed in the facts relied upon. In answering this question, the purposes of the Rule, including the desire to avoid circuity of actions and to obtain consistent results, must be balanced against any prejudice which the impleaded party might suffer, and these considerations are left to the discretion of the trial court.” Accordingly, the mere fact that the complaint and the third-party complaint as sert different theories of liability is not a ground for denying the defendant’s motion. Plaintiffs’ final contention, that allowance of defendant’s motion will result in circuity of action and undue complexity, brings me to a" }, { "docid": "702623", "title": "", "text": "Barnett v. Sears Roebuck and Co., 80 F.R.D. 662, 665 (W.D.Okla.1978). Hence, it is permissible to implead third party defendants even if there is no basis for the third party defendants to be directly liable to the plaintiffs. Given the above, the third party defendants’ argument is essentially reduced to the contention that indemnity liability cannot be transferred through dissimiliar causes of action. However, the claims upon which indemnity is based need not be similiar to the claims asserted in the original complaint. • In Givoh Associates v. American Druggists Ins. Co., 562 F.Supp. 1346, 1350 (E.D.N.Y.1983), the court noted that, “... Rule 14 actions are normally interpreted to allow claims even though they do not allege the same cause of action or the same theory of liability as the original complaint.” Indeed, impleader should be allowed if the third party complaint arises out of the same set of operative facts, and “if under some construction of facts which might be adduced at trial, recovery might be possible.” Tiesler v. Martin Paint Stores, Inc., 76 F.R.D. 640, 643 (E.D.Pa.1977). “Dismissal is not favored unless it appears that in no event would the pleader be able to prove an actionable claim.” Parr v. Great Lake’s Express Co., 484 F.2d 767, 770 (7th Cir.1973). It is of no import that the defendants’ liability is premised upon a federal statute, and the liability of the third party defendants is derived from state law. See, Kennedy v. Pennsylvania Railroad Co., 282 F.2d 705 (3rd Cir.1960) (original complaint based on Federal Employers’ Liability Act and third party complaint based on various state law claims). Hence, if there is any possible scenario under which the third party defendants may be liable for all or part of the defendants’ liability to the plaintiffs, the third party complaint should be allowed to stand. Under Rule 14(a), a third party may be impleaded only if the third party “is or may be liable to him [the original defendant] for all or part of the plaintiff’s claim against him.” In this case, the defendants may be liable to the plaintiffs" }, { "docid": "4881610", "title": "", "text": "“sole” cause of the injury and disclaiming its own liability in the matter. Lund American’s assertion of the law is correct, see Murray v. Reliance Insurance Co., 60 F.R.D. 390, 391 (D.Minn.1973), but Crookston Marine, contrary to Lund American’s allegations, has not attempted to substitute Lund American’s liability for its own. It alleges that Lund American is a “sole or a contributing cause” and seeks contribution or indemnity. A third-party claim is proper under Rule 14(a) if the third-party’s liability is in some way dependent on the outcome of the main claim, or the third party is secondarily liable to defendant. United States v. Joe Grasso & Son, Inc., 380 F.2d 749, 751 (5th Cir. 1967); United States Fidelity & Guaranty Co. v. American State Bank, 372 F.2d 449, 450 (10th Cir. 1967). Since contribution is a secondary or derivative liability and is recognized as a basis for bringing a third-party claim, see Wright and Miller, Federal Practice and Procedure § 1446 (1971), Crookston Marine’s claim is a proper one under Rule 14. It is alleged by Lund American that the applicable law does not allow indemnity in the present case so that the third-party complaint should be dismissed. The court need not address that issue since Crookston Marine has asked for contribution as well. A motion to dismiss will not be granted unless Crookston Marine is clearly not entitled to any relief against Lund American. The third party complaint will not be dismissed merely because Crookston Marine may not be entitled to as much indemnity as it seeks in the third-party complaint. Williams v. Midland Constructors, 221 F.Supp. 400, 403 (E.D.Ark.1963). Therefore, if a potential right to contribution could be found to exist between Lund American and Crookston Marine, the latter’s third-party complaint will not be dismissed, even though no right to indemnity would be possible. Rule 14 does not grant any substantive rights. “If by the law of the state a joint tortfeasor is not liable to his co-tortfeasor for contribution, no such liability can be imposed upon him by the federal court on a third-party complaint under" }, { "docid": "23125063", "title": "", "text": "The SBA raises an initial objection that Stoppelmoor’s pleading is not a proper third party complaint because Stoppelmoor has not and could not plead that the SBA is liable to him for all or part of the plaintiffs’ claim against' him, as required by Fed.R.Civ.P. 14. The plaintiffs’ cláim is based on default under a real estate lease, but Stoppelmoor’s second amended third-party complaint, does not explain how the SBA could be liable to him for any part of the plaintiffs’ lease claim. Rule 14(a) allows a defendant to assert a claim against any person not a party to the main action only if that third person’s liability on that claim is in some way dependent upon the outcome of the main claim. Rule 14(a) does not allow the defendant to assert a separate and independent claim even though the claim arises out of the same general set of facts as the main claim. United States v. Olavarrieta, 812 F.2d 640, 643 (11th Cir.1987). Accord Gaines v. Sunray Oil Co., 539 F.2d 1136, 1139 n. 7 (8th Cir.1976) (“Sunray’s claim could not be maintained as a third-party claim since it is not one for indemnity.”); Stewart v. American Internat'l Oil & Gas Co., 845 F.2d 196, 199 (9th Cir.1988) (“Thus, a third-party claim may be asserted only when the third party’s liability is in some way dependent on the outcome of the main claim and is secondary or derivative thereto.”). Stoppelmoor alleges no coherent legal theory under which the SBA could be liable to indemnify Stoppelmoor for his real estate lease obligation. The act of guaranteeing a loan does not cause the guarantor to become liable on a real estate lease that is — as far as we can tell from the complaint — completely separate from the loan. We cannot fill in the enormous gaps in Stoppelmoor’s legal theory to make a valid Rule 14 impleader. Stoppelmoor argues that the SBA failed to preserve below its argument that his complaint is not a valid third-party complaint. The SBA’s attorney argued to the district court: We continue to assert under" }, { "docid": "2075901", "title": "", "text": "Fund, Inc. v. Hagopian, 417 F.Supp. 738 (S.D.N.Y.1976). In order to maintain a third-party complaint, a direct line of liability must be alleged to exist between the third-party plaintiff and third-party defendant. Moorhead Construction Company, Inc. v. City of Grand Forks, 508 F.2d 1008 (8th Cir.1975), citing 6 Wright and Miller, Federal Practice and Procedure § 1442. It is not enough that the third-party claim is alleged to stem from the same transaction. Nagunst v. Western Union Tel. Co., 76 F.R.D. 631 (D.C.Kansas 1977). Finally, while Rule 14 should be liberally construed, the permissibility of a third-party action is committed to the discretion of the court. Farmers & Merchants Mutual Fire Insurance Company v. Pulliam, 481 F.2d 670 (10th Cir.1973); General Electric Company v. Irvin, 274 F.2d 175 (6th Cir.1960); Wright and Miller, Federal Practice & Procedure: Civil § IMS. Borreson’s third-party complaint does arise out of the same factual circumstances as the trustee’s preference action. The outcome of the preference action with respect to two of the payments in particular may well depend on resolution of the issue of whether the debtor or Peterson himself owes Borreson $44,000.00. That same question appears to be the sole issue in the third-party complaint. Furthermore, assuming there is a basis for the indemnity claim, Peterson’s liability can be characterized as dependent on the outcome of the main action. But again, this is not enough without some showing that there exists a direct line of liability between Borreson and Peterson, which brings us to the substance of the third-party complaint. Rule 14 is procedural only; impleader is properly limited to situations where a right to relief exists under the applicable substantive law. Hefley v. Textron, Inc., 713 F.2d 1487 (10th Cir.1983); Colton v. Swain, 527 F.2d 296 (7th Cir.1975); Murray v. Reliance Ins., Co., 60 F.R.D. 390 (D.C.Minn.1973). The purpose of the inquiry into the substance of both counts of the third-party complaint is twofold. In addition to deciding whether the action is proper under Rule 14(a), which would in turn support ancillary jurisdiction, Peterson alleged that both counts of the complaint fail" }, { "docid": "12386905", "title": "", "text": "the reasons discussed in connection with the complaint and the cross-complaint above, the RICO count does not state a claim upon which relief may be granted and is dismissed, with prejudice. Count Three asserts a claim for indemnity. Third-party defendants argue that it fails to state a claim because Crazy Eddie contributed to the wrong that caused plaintiffs’ injuries and because indemnity is not available for securities law violations. These arguments are unavailing for the reasons stated concerning the cross-complaint. Third-party defendants urge that the third-party complaint is not a proper impleader under Federal Rule of Civil Procedure 14. That Rule provides that a defendant may implead against “a person not a party to the action who is or may be liable to him for all or part of the plaintiff’s claim against him.” Fed.R.Civ.P. 14(a). The Rule is to be liberally construed so as to promote judicial efficiency. See, e.g., Givoh Assocs. v. American Druggists Ins. Co., 562 F.Supp. 1346, 1350 (E.D.N.Y.1983); Argonaut Ins. Co. v. Halvanon Ins. Co., 545 F.Supp. 21, 23 (S.D.N.Y.1981). Impleader is proper if the liability of the third-party defendant is “ ‘in some way dependent on the outcome of the main claim.’ ” Prudential Ins. Co. v. BMC Indus., Inc., 113 F.R.D. 100, 102 (S.D.N.Y.1986) (quoting 6 C. Wright & A. Miller, supra, § 1446 at 246 (1976)). In this case the liability of third-party defendants is clearly dependent on the outcome of the original action and the cross-claim. If Crazy Eddie escapes liability to plaintiffs or the individual defendants are exonerated, there will be no claim against third-party defendants. If, on the other hand, the individual defendants are proven to have committed the frauds alleged in the various complaints, it would be fatuous to require a separate trial of third-party defendants’ participation in those frauds. Contrary to third-party defendants’ contention, impleader against an employee of a corporate defendant is permissible. See, e.g., Rodriguez v. United States Lines Co., 181 F.Supp. 95, 96 (S.D.N.Y.1960). The third-party complaint is therefore a proper impleader. Although sufficient in other respects, the third-party complaint fails to plead fraud" }, { "docid": "17970480", "title": "", "text": "CROAKE, District Judge. Plaintiff in this action seeks a refund of $3,723.90 from the United States consisting of a penalty assessment against him, pursuant to 26 U.S.C. §§ 6671, 6672. The penalty was imposed upon him for the alleged failure of Toys of the World Club, Inc., to pay over certain income taxes withheld from the salaries of its employees to the Internal Revenue Service. The plaintiff and one Alistair Kyle were jointly assessed for the penalty because it was alleged that they were officers “required to collect, truthfully account for, and pay over such tax.” The plaintiff paid the full assessed amount but denies that he was a responsible officer of the company liable for the penalty. The United States in this application moves, pursuant to Rule 14(a) of the Federal Rules of Civil Procedure, to im-plead the said Alistair Kyle for the purpose of obtaining judgment against him for the assessed penalty in the event it must make a refund to plaintiff of the amount collected. The plaintiff opposes this application on the grounds that the claim of plaintiff against defendant is independent from the claim of defendant against Alistair Kyle, and that he will be greatly inconvenienced if defendant is permitted to implead a third party at this time. “It is settled that impleader under Rule 14(a) does not require an identity of claims, or even that the claims rest on the same theory.” American Fidelity & Casualty Co. v. Greyhound Corp., 5 Cir., 232 F.2d 89, 92 (1956). If the Government is permitted to implead Alistair Kyle it will be able to determine the liability of both Alistair Kyle and plaintiff for the assessed penalty. This result would be consistent with the purpose of Rule 14(a) which is to avoid circuity and to enable disputed jural relationships that grow out of the same matter to be resolved consistently in one action. Furthermore, the delay of the United States in bringing on this motion to implead may be excused by the fact that the whereabouts of Alistair Kyle until recently were not known to the defendant. Accordingly," }, { "docid": "4881608", "title": "", "text": "to relief.” Rule 8 is to be liberally construed. A pleading which gives defendant fair notice of what plaintiff’s claim is and the grounds upon which it rests complies with the rule. Hanson v. Hunt Oil Company, 398 F.2d 578, 581 (8th Cir. 1968). The pleadings served upon Lund American have given it fair notice that it is allegedly liable under theories of negligence and strict products liability for a defect in the boat which contributed to the described incident. Additional information relative to the specific defect alleged is available to it by means of pretrial discovery. Rule 8 requires nothing more. See Wright and Miller, Federal Practice & Procedure, § 1218 (1969). Lund American also alleges that Crookston Marine’s third-party claim of a defect in the boat is improper under Rule 14 since plaintiff’s original complaint alleged only á defect in the boat motor, making no reference to a defect in the boat. Rule 14 provides that a defendant may join as á third-party defendant a person “who is or may be liable to him for all or part of the plaintiff’s claim against him.” This has been liberally interpreted to allow third-party claims to be asserted even though they do not allege the same cause of action or the same theory of liability as the original complaint. See e. g., Judd v. General Motors Corp., 65 F.R.D. 612, 614 (M.D.Penn. 1974); 3 Moore’s Federal Practice ¶ 14.07(1) (1979). Therefore it is of no consequence that the original complaint did not allege a defect in the boat. Crookston Marine’s third-party complaint against Lund American alleges that Lund American’s acts were “the sole or contributing cause of the death of plaintiff’s decedent” and is liable for “all or a part of the Plaintiff’s claim against it by right of contribution and/or indemnity.” Lund American asserts that Rule 14 allows a defendant to implead one who is or may be liable to the defendant, and may not substitute the third party as one liable to the plaintiff. It alleges that Crookston Marine is attempting to prove Lund American as being the" }, { "docid": "14467495", "title": "", "text": "at 5-12.) Rule 14(a) provides in relevant part that [a]t any time after commencement of the action a defending party, as a third-party plaintiff, may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to the third-party plaintiff for all or part of the plaintiffs claim against the third-party plaintiff. Fed.R.Civ.P. 14(a) (emphasis added). The general purpose of Rule 14(a) is to serve judicial economy, discourage inconsistent results, and limit the prejudice incurred by a defendant by removal of the time lag between a judgment against the defendant and a judgment over against a third-party defendant. Blais Constr. Co., Inc. v. Hanover Square Assocs.-I, 733 F.Supp. 149, 152 (N.D.N.Y.1990) (citing Dery v. Wyer, 265 F.2d 804, 806-07 (2d Cir.1959)). It is well settled that, for impleader to be available, the third party defendant must be “liable secondarily to the original defendant,” or that “the third party must necessarily be liable over to the defendant for all or part of the plaintiffs recovery,” or that “the defendant must attempt to pass on to the third party all or part of the liability asserted against the defendant.” See, e.g., United States v. Joe Grasso & Son, Inc., 380 F.2d 749, 751-52 (5th Cir.1967) (emphasis in original) (citations omitted). “Whichever expression is preferred, it is clear that impleader under Rule 14 requires that the liability of the third party be dependent upon the outcome of the main claim.” Id. at 752 (emphasis added). Because the third-party claim must be “dependent” upon the original claim, “there must be a more than tenuous relationship between the main and third-party claims,” National Union Fire Ins. Co. of Pittsburgh, PA v. Gordon, No. 87 Civ. 7695, 1991 WL 4753, at *7 (S.D.N.Y. Jan. 14,1991), and “[t]he mere fact that the alleged third-party claim arises from the same transaction or set of facts as the original claim is not enough.” 6 Charles A. Wright, Arthur R. Miller & Mary K. Kane, Federal Practice and Procedure § 1446, at 377-79 (1990). Moreover, the liability of" }, { "docid": "22862317", "title": "", "text": "paid to the fishermen. For this to be so, it must be assumed that the crewmen are employed either by Grasso or by the captains. We can agree with the general principle, as did the court below, that use of the word “claim” in Rule 14 avoids the narrow concepts of “cause of action” and employs instead the idea of the claim as a group of operative facts giving occasion for judicial action. See Dery v. Wyer, 265 F.2d 804, 807 (2d Cir. 1959). Cf. American Fid. & Cas. Co. v. Greyhound Corp., 232 F.2d 89, 92 (5th Cir. 1956). And it is true that when the defendant’s right against the third party is merely an outgrowth of the same core of facts which determines the plaintiff’s claim, im-pleader is properly used “to reduce litigation by having one lawsuit do the work of two.” Falls Indus., Inc. v. Consolidated Chem. Indus., Inc., 258 F.2d 277, 283 (5th Cir. 1959). But we are also cognizant of the obverse rule, which the government seemingly ignores, that an entirely separate and independent claim cannot be maintained against a third party under Rule 14, even though it does arise out of the same general set of facts as the main claim. Cf. Horn v. Daniel, 315 F.2d 471, 474 (10th Cir. 1962); Kohn v. Teleprompter Corp., 22 F.R.D. 259 (S.D.N.Y.1958). The question whether a defendant’s demand presents an appropriate occasion for the use of impleader or else constitutes a separate claim has been resolved consistently by permitting impleader only in cases where the third party’s liability was in some way derivative of the outcome of the main claim. In most such cases it has been held that for impleader to be available the third party defendant must be “liable secondarily to the original defendant in the event that the latter is held liable to the plaintiff.” (emphasis added) Holtzoff, Entry of Additional Parties in a Civil Action, 31 F.R.D. 101, 106 (1962). Accord, Cass v. Brown, 41 F.R.D. 284, 286 (D.Colo.1966); National Fire Ins. Co. v. Daniel J. Keating Co., 35 F.R.D. 137, 139" } ]

[ { "docid": "22724663", "title": "", "text": "of Appeals was correct. Constitutional power is merely the first hurdle that must be overcome in determining that a federal court has jurisdiction over a particular controversy. For the jurisdiction of the federal courts is limited not only by the provisions of Art. Ill of the Constitution, but also by Acts of Congress. Palmore v. United States, 411 U. S. 389, 401; Lockerty v. Phillips, 319 U. S. 182, 187; Kline v. Burke Constr. Co., 260 U. S. 226, 234; Cary v. Curtis, 3 How. 236, 245. That statutory law as well as the Constitution may limit a federal court’s jurisdiction over nonfederal claims is well illustrated by two recent decisions of this Court, Aldinger v. Howard, 427 U. S. 1, and Zahn v. International Paper Co., 414 U. S. 291. In Aldinger the Court held that a Federal District Court lacked jurisdiction over a state-law claim against a county, even if that claim was alleged to be pendent to one against county officials under 42 U. S. C. § 1983. In Zahn the Court held that in a diversity class action under Fed. Rule Civ. Proc. 23 (b)(3), the claim of each member of the plaintiff class must independently satisfy the minimum jurisdictional amount set by 28 U. S. C. § 1332 (a), and rejected the argument that jurisdiction existed over those claims that involved $10,000 or less as ancillary to those that involved more. In each case, despite the fact that federal and non-federal claims arose from a “common nucleus of operative fact,” the Court held that the statute conferring jurisdiction over the federal claim did not allow the exercise of jurisdiction over the nonfederal claims. The Aldinger and Zahn cases thus make clear that a finding that federal and nonfederal claims arise from a “common nucleus of operative fact,” the test of Gibbs, does not end the inquiry into whether a federal court has power to hear the nonfederal claims along with the federal ones. Beyond this constitutional minimum, there must be an examination of the posture in which the nonfederal claim is asserted and of the" } ]

[ { "docid": "2436537", "title": "", "text": "plaintiffs to join an independent “nonfederal claim” with a claim “arising under” the Constitution, laws, or treaties of the United States. Due to their similarities, however, it is not uncommon to find that a legal writer has applied one doctrine under the banner of the other or to find a combination of both doctrines serving as authority for a single legal proposition. Nevertheless, the doctrine of pendent jurisdiction concerns the federal judicial power to take cognizance of and adjudicate issues within the contours of Art. Ill, § 2 of the Constitution. In the landmark decision of United Mine Workers v. Gibbs, supra, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966), the Supreme Court adopted a broad definition of the term “case” as used in Art. III. In Gibbs, the Supreme Court stated that [p]endent jurisdiction, in the sense of judicial power, exists whenever . the relationship between . . . [the federal] claim and the state claim permits the conclusion that the entire action before the court comprises but one constitutional ‘case.’ . . . [and is] derive[d] from a common nucleus of operative fact . [which] would ordinarily be expected to . [be tried] all in one judicial proceeding. . United Mine Workers v. Gibbs, supra, at 725, 86 S.Ct. at 1138 (footnotes omitted). This result fosters a policy of “judicial economy, convenience and fairness to litigants.” Id. at 726, 86 S.Ct. at 1139. . Following this pronouncement by the Supreme Court, litigants have sought to extend the Gibbs rationale to “pendent parties.” Recently however, the Supreme Court has rejected the concept of pendent-party jurisdiction when asserted against a municipal corporation in an action brought under 28 U.S.C. § 1343(3) and 42 U.S.C. § 1983. Aldinger v. Howard, supra, 427 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d 276 (1976), discussed in 3A J. Moore, Federal Practice ¶ 20.07[5.-l] (2d ed. 1977). In Aldinger, the Supreme Court approached the question of federal judicial po.wer over “pendent parties’’-from a twofold prospective. Before pendent-party jurisdiction is sustained in a particular case, the- Supreme Court held that a court must satisfy" }, { "docid": "9982639", "title": "", "text": "of judicial economy, convenience, fairness and comity, and the extent to which the interests of the federal government are involved are all factors determining whether this power is to be exercised in a particular case. Gibbs, 383 U.S. at 726, 86 S.Ct. at 1139. Although Gibbs dealt only with pendent claims, the Gibbs test has also been applied in other areas of ancillary jurisdiction since the constitutional limitations are the same. CCF Indus. Park v. Hastings Indus., 392 F.Supp. 1259 (E.D.Pa.1975). The outside parameters of pendent jurisdiction are not yet well defined, but the Supreme Court limited the use of the device somewhat in the decision of Aldinger v. Howard, 421 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d 276 (1976). The Court found pendent jurisdiction did not exist where jurisdiction over the “pendent party” was lacking in the principal claim because the federal statute which was the basis for the suit did not apply to this party, the claim asserted against this “pendent party” was also a pendent non-federal claim, and no diversity of citizenship existed. In this case, pendent jurisdiction was not appropriate as a basis for impleading a party over whom no independent jurisdiction existed simply because the claim stemmed from a common nucleus of operative facts. The party against whom the pendent claim was asserted was never properly under the court’s jurisdiction originally. To compound a pendent claim with a “pendent party” went beyond the court’s constitutional and statutory power where the federal statute expressly or impliedly excepted that party from persons defined as subject to its reach. Aldinger, 427 U.S. at 16-17, 96 S.Ct. at 2421. Although the Court denied pendent jurisdiction in this situation, it also set forth an intention not to have its decision in this case be interpreted as a general all-encompassing jurisdictional rule for the availability of pendent jurisdiction. Aldinger, 427 U.S. at 18, 96 S.Ct. at 2422. Pendent jurisdiction has been expanded in other contexts since Gibbs. Some courts have limited this expansion to federal question actions. Hymer v. Chai, 407 F.2d 136 (9th Cir.1969). Other courts, however, have used the" }, { "docid": "17718649", "title": "", "text": "v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218, and as further considered as to parties and as to statutory power in Aldinger v. Howard, 427 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d 276. “Pendent jurisdiction” is not treated as such in Zahn v. International Paper Co., 414 U.S. 291, 94 S.Ct. 505, 38 L.Ed.2d 511, but the case is significant as to the problem before us. The Supreme Court in Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 98 S.Ct. 2396, 57 L.Ed.2d 274, however, did consider pendent jurisdiction as it related to the inclusion of additional parties in the context of diversity. The Supreme Court in Aldinger v. Howard, 427 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d 276, expressly limited its holding to “ ‘pendent party’ jurisdiction with respeet to a claim brought under §§ 1343(3) and 1983.” 427 U.S., at 18, 96 S.Ct. at 2422. Thus in each subsequent case involving pendent party jurisdiction, “. . .a federal court must satisfy itself not only that Art. Ill permits it, but that Congress in the statutes conferring jurisdiction has not expressly or by implication negated its existence.” 427 U.S., at 18, 96 S.Ct. at 2422. This Circuit in Transok Pipeline Co. v. Darks, 565 F.2d 1150 (10th Cir.), noted that a narrow reading of Aldinger was not necessarily justified. The court stated that Aldinger “. . . can be read to indicate that there is power to exercise pendent party jurisdiction unless Congress expressly or impliedly negated such power in a particular jurisdictional context.” The plaintiff in Transok Pipeline brought a federal action for condemnation against certain Indians, and a state cause against non-Indians. Plaintiff there alleged jurisdiction under 25 U.S.C. § 357 which authorized the federal courts to entertain actions to condemn lands allotted in severalty to certain Indians. Jurisdiction over the state law condemnation cause against the non-Indians was based upon pendent jurisdiction. One of the defendant-appellants had an Indian cotenant and Indians held mineral rights on both appellants’ land. Jurisdiction over the non-Indians was upheld in Transok Pipeline under the doctrine" }, { "docid": "5614862", "title": "", "text": "to negligence within the scope of the FELA, it does not render the co-worker liable under the statute. Accordingly, Paz is not a proper party defendant under the FELA, and the Court does not have subject matter jurisdiction over the claims asserted against Paz on the basis of a federal question. Thus, in the absence of federal question (see 28 U.S.C. § 1331) or diversity (see 28 U.S.C. § 1332) jurisdiction, the Court must then determine whether pendent-party jurisdiction is available against a co-employee in an action brought under the FELA. (b) Pendent-Party Jurisdiction. Although Fed.R.Civ.P. 18(a) expressly permits the joinder of “as many claims” as a party has against another in an action, this rule is not without limitation and is subject to the doctrine of pendent jurisdiction. Rooted in the early Supreme Court decision of Hurn v. Oursler, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148 (1933), the doctrine was later refined in the landmark decision of United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). While stressing that the doctrine is one “of discretion, not of plaintiff’s right” (id. at p. 726, 86 S.Ct. at p. 1139), the Court in Gibbs nonetheless held that federal courts have the Article III power to hear state-law claims if, taken together with the federal question providing jurisdiction, “the entire action before the court comprises but one constitutional ‘case’ ” (id. at p. 725, 86 S.Ct. at p. 1138). The test is whether “[t]he state and federal claims [] derive from a common nucleus of operative fact” (id.). Following Gibbs, several courts, including the Second Circuit (see, e.g., Almenares v. Wyman, 453 F.2d 1075, 1084-85 [2d Cir. 1971] [Friendly, J.], cert. denied, 405 U.S. 944, 92 S.Ct. 962, 30 L.Ed.2d 815 [1972]), applied the Gibbs analysis to permit the assertion of pendent claims over parties not the subject of the federal claim. This “pendent-party” jurisdiction was addressed by the Supreme Court in Aldinger v. Howard, 427 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d 276 (1976). “Pendent-party” jurisdiction is broader than “pendent-claim” jurisdiction in that" }, { "docid": "9982638", "title": "", "text": "1055, 88 L.Ed. 1572 (1944). These difficulties culminated in the decision of United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966), which required a new analysis of the required relationship between the principal claim and any ancillary or pendent claim. According to the Gibbs decision, the power of a federal court to hear one constitutional case is extended to include pendent non-federal question claims when the feder al question claim is substantial enough to establish original jurisdiction, and both the federal claim and the state claim stem from a common nucleus of operative facts. Further, without considering whether the claim is based on federal or state law, all the claims must be such that the plaintiff would ordinarily expect to try them in one judicial proceeding. If those factors are present, then the court has power to hear the entire case. Gibbs, 383 U.S. at 715, 86 S.Ct. at 1130. The Supreme Court in Gibbs held that the exercise of this power was discretionary and not constitutionally required. Considerations of judicial economy, convenience, fairness and comity, and the extent to which the interests of the federal government are involved are all factors determining whether this power is to be exercised in a particular case. Gibbs, 383 U.S. at 726, 86 S.Ct. at 1139. Although Gibbs dealt only with pendent claims, the Gibbs test has also been applied in other areas of ancillary jurisdiction since the constitutional limitations are the same. CCF Indus. Park v. Hastings Indus., 392 F.Supp. 1259 (E.D.Pa.1975). The outside parameters of pendent jurisdiction are not yet well defined, but the Supreme Court limited the use of the device somewhat in the decision of Aldinger v. Howard, 421 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d 276 (1976). The Court found pendent jurisdiction did not exist where jurisdiction over the “pendent party” was lacking in the principal claim because the federal statute which was the basis for the suit did not apply to this party, the claim asserted against this “pendent party” was also a pendent non-federal claim, and no diversity of citizenship" }, { "docid": "20103136", "title": "", "text": "no independent basis for federal jurisdiction (see United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 [1966]). Under Gibbs, if a federal claim is sufficient to confer subject matter jurisdiction over a controversy, then it is discretionary for a court to exercise jurisdiction over state-law claims that do not have an independent basis for jurisdiction, so long as the state and federal claims “derive from a common nucleus of operative fact” (United Mine Workers of Am. v. Gibbs, supra, 383 U.S. at p. 725, 86 S.Ct. at p. 1138). “Pendent-party” jurisdiction refers to “the joining of additional parties with respect to whom there is no independent basis of federal jurisdiction” (Aldinger v. Howard, 427 U.S. 1, 6, 96 S.Ct. 2413, 2416, 49 L.Ed.2d 276 [1976]; see also Finley v. United States, 490 U.S. 545, 109 S.Ct. 2003, 104 L.Ed.2d 593 [1989]). Effect of Finley v. United States: In Finley v. United States, 490 U.S. 545, 109 S.Ct. 2003, 104 L.Ed.2d 593 (1989), the Supreme Court specifically held that in an action brought under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b), a District Court may not exercise “pendent-party” jurisdiction over a related state-law claim by the plaintiff against a defendant over whom no independent basis for federal jurisdiction exists. That is, if no “federal question” or “diversity” jurisdiction exists with respect to the claims asserted against that party, the Court cannot exercise pendent-party jurisdiction. Although Finley did not totally eliminate pendent-party jurisdiction (see, e.g., Roco Carriers, Ltd. v. M/V Nurnberg Express, 899 F.2d 1292 [2d Cir.1990] [“pendent party-jurisdiction is available in the unique area of admiralty”]), it expressly did so with respect to claims asserted under the FTCA (see Associated Dry Goods Corp. v. Towers Financial Corp., 920 F.2d 1121, 1125 [2d Cir.1990]; cf. Lee v. Transportation Communications Union, 734 F.Supp. 578, 581 [E.D.N.Y.1990] [no pendent-party jurisdiction in action brought under the FELA]). “Supplemental Jurisdiction” Under 28 U.S.C. § 1367: President Bush recently signed into law the Judicial Improvements Act of 1990, Pub.L. 101-650, which made major changes in federal jurisdiction" }, { "docid": "5614863", "title": "", "text": "While stressing that the doctrine is one “of discretion, not of plaintiff’s right” (id. at p. 726, 86 S.Ct. at p. 1139), the Court in Gibbs nonetheless held that federal courts have the Article III power to hear state-law claims if, taken together with the federal question providing jurisdiction, “the entire action before the court comprises but one constitutional ‘case’ ” (id. at p. 725, 86 S.Ct. at p. 1138). The test is whether “[t]he state and federal claims [] derive from a common nucleus of operative fact” (id.). Following Gibbs, several courts, including the Second Circuit (see, e.g., Almenares v. Wyman, 453 F.2d 1075, 1084-85 [2d Cir. 1971] [Friendly, J.], cert. denied, 405 U.S. 944, 92 S.Ct. 962, 30 L.Ed.2d 815 [1972]), applied the Gibbs analysis to permit the assertion of pendent claims over parties not the subject of the federal claim. This “pendent-party” jurisdiction was addressed by the Supreme Court in Aldinger v. Howard, 427 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d 276 (1976). “Pendent-party” jurisdiction is broader than “pendent-claim” jurisdiction in that the former refers to “the joining of additional parties with respect to whom there is no independent basis of federal jurisdiction” (Aldinger, 427 U.S. at p. 6, 96 S.Ct. at p. 2416), not simply the joining of additional claims between parties already subject to federal jurisdiction. Although Aldinger affirmed the dismissal of the pendent claims asserted there, the Court nevertheless indicated that in determining whether pendent-party jurisdiction is available, the district court must look to whether Congress expressly or impliedly negated the exercise of federal jurisdiction in the statute providing the basis for the action (see id. at p. 18, 96 S.Ct. at p. 2422). The reach of this doctrine, however, has been significantly curtailed in light of the recent Supreme Court decision of Finley v. United States, - U.S. -, 109 S.Ct. 2003, 104 L.Ed.2d 593 (1989), which held that pendent-party jurisdiction is not available in actions brought under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b). In restricting the scope of pendent-party jurisdiction, the Court concluded that it is only available" }, { "docid": "4926926", "title": "", "text": "issue and hence no question of statutory construction was present. Nor did Gibbs involve the question of pendent party jurisdiction since all the parties were already before the court. Three more recent Supreme Court cases have involved but not resolved the question of pendent party jurisdiction. In Zahn v. International Paper Co., 414 U.S. 291, 94 S.Ct. 505, 38 L.Ed.2d 511 (1973), a diversity class action, the Court held that multiple plaintiffs with separate and distinct claims must each satisfy the amount-in-controversy requirement. Rejecting application of principles of pendent jurisdiction, the Court held that the statute required dismissal of those litigants who do not satisfy the jurisdictional amount, even though other litigants assert claims sufficient to invoke the jurisdiction of the federal court. 414 U.S. at 300, 94 S.Ct. at 511. The Court’s analysis and holding in Zahn clearly involved statutory construction, not interpretation of the constitutional limits of the district court’s jurisdiction. Construing “the ‘matter in controversy’ requirement of § 1332,” the Court reasoned that a contrary rule “would undermine the purpose and intent of Congress” in enacting the statute and upheld the “historic construction of the jurisdictional statutes, left undisturbed by Congress over these many years.” 414 U.S. at 301, 94 S.Ct. at 511. In Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 98 S.Ct. 2396, 57 L.Ed.2d 274 (1978), the Supreme Court held that the district court had no jurisdiction to entertain plaintiff’s claim against a third party defendant since diversity of citizenship was lacking and there was no independent basis for jurisdiction over the claim. The Court emphasized that while Gibbs addressed only the constitutional limits of federal judicial power, statutory law also imposed limits on federal court jurisdiction such that “[cjonstitutional power is merely the first hurdle that must be overcome in determining that a federal court has jurisdiction over a particular controversy.” 437 U.S. at 372, 98 S.Ct. at 2401. Turning to the jurisdictional statute at issue, 28 U.S.C. § 1332(a)(1), the Court found that allowing suit under the circumstances before it would circumvent the complete diversity requirement. The Court took cognizance" }, { "docid": "1134633", "title": "", "text": "States Code, as such section applies to an action affecting the property of the estate in bankruptcy. The Court concludes that this statute does not limit the federal courts’ ancillary jurisdiction in bankruptcy cases. The Supreme Court found statutory limitations on ancillary or pendent jurisdiction in Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 98 S.Ct. 2396, 57 L.Ed.2d 274 (1978), in Aldinger v. Howard, 427 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d 276 (1976), and in Zahn v. International Paper Company, 414 U.S. 291, 94 S.Ct. 505, 38 L.Ed.2d 511 (1973). In Owen Equipment and Zahn, the court construed the scope of ancillary and pendent jurisdiction under 28 U.S.C. § 1332(a), the statute conferring jurisdiction on the federal courts in diversity cases. In both cases, the court interpreted congressional intent in the face of longstanding strict construction of Section 1332. Over the years Congress has repeatedly reenacted or amended the statute conferring diversity jurisdiction, leaving intact this rule of complete diversity. Whatever may have been the original purposes of diversity of citizenship jurisdiction, this subsequent history clearly demonstrates a congressional mandate that diversity jurisdiction is not to be available when any plaintiff is a citizen of the same state as any defendant. [Citations omitted.] Owen Equipment, 437 U.S. at 373-74, 98 S.Ct. at 2402. See also Zahn, 414 U.S. at 301, 94 S.Ct. at 512. However, no such history suggests that this reasoning is applicable to the recently enacted jurisdictional grant in bankruptcy, 28 U.S.C. § 1334. In Aldinger, the court interpreted the scope of the jurisdictional grant of 28 U.S. C. § 1343(3) together with the scope of 42 U.S.C. § 1983, delimiting a civil rights act cause of action: The question here, ... is whether by virtue of the statutory grant of subject-matter jurisdiction, upon which petitioner’s principle claim against the treasurer rests, Congress has addressed itself to the party as to whom jurisdiction pendent to the principle claim is sought. And it undoubtedly has done so. ... In short, as against a plaintiff’s claim of additional power over a ‘pendent party,’ the reach of" }, { "docid": "18611182", "title": "", "text": "it is both permissible and desirable to retain the County as a party defendant. The Supreme Court, in United Mine Workers of America v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966), held that a federal court had power to adjudicate both a federal and a state claim asserted against a defendant if the “federal claim [has] substance sufficient to confer subject matter jurisdiction on the Court [and] . . . [t]he state and federal claims . .. derive from a common nucleus of operative facts.” Id. at 725, 86 S.Ct. at 1138. The decision to exercise this pendent jurisdiction is a matter of discretion for the trial court. In exercising its discretion, the court is to look to the “considerations of judicial economy, convenience and fairness to litigants.” Id. at 726, 86 S.Ct. at 1139. In addition, “[n]eedless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties.” Id. Gibbs deals only with the federal court’s power to hear a claim which otherwise would not be before it. The power to hear a claim against a party over whom independent federal jurisdiction does not exist was addressed by the Supreme Court in Aldinger v. Howard, 427 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d 276 (1976). In that case, the Supreme Court held that a federal court had no jurisdiction to hear a claim against a non-diverse party over whom no independent federal jurisdiction existed pendent to a claim brought under 28 U.S.C. § 1343(3) and 42 U.S.C. § 1983. However, the Court refused to rule out use of “pendent party jurisdiction” in all cases. In order for a federal court to hear such a claim against a non-diverse party, the court “must satisfy itself not only that Art. Ill [of the Constitution] permits it, but that Congress in the statutes conferring jurisdiction has not expressly or by implication negated its existence.” Id. at 18, 96 S.Ct. at 2422. The Court specifically pointed, in dicta, to claims brought under the Federal Tort Claims Act — where the" }, { "docid": "23281706", "title": "", "text": "have been at pains to show, stated no federal claim against LindWaldock, the only basis for exercising federal jurisdiction over the claim against Lind-Waldock in the amended complaint was that it was pendent to Bernstein’s federal-law claim against the Chicago Mercan tile Exchange. But since the district judge properly dismissed that claim before trial, and since the considerations of judicial economy that underlie pendent jurisdiction are but weakly engaged when the federal claim drops out so soon, the judge was required in the absence of extraordinary circumstances not shown here to remand the pendent claim to state court rather than go on and decide it. See United Mine Workers of America v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966). All the circumstances of the case were against retaining the pendent claim. It was a pendent-party claim. This term refers to the case where there are two or more factually related claims, with one party (plaintiff or defendant) in common, and one claim is within the statutory jurisdiction of the federal courts and the other is not. An example is Supreme Tribe of Ben-Hur v. Cauble, 255 U.S. 356, 366, 41 S.Ct. 338, 342, 65 L.Ed. 673 (1921), which held that in a class action the citizenship of the unnamed class members is irrelevant to determining whether there is the complete diversity of citizenship ordinarily required to bring a case within the federal diversity jurisdiction, and which by so holding allowed nondiverse, nonfederal claims to be joined with factually related claims. But pendent party jurisdiction is an embattled concept these days, see, e.g., Aldinger v. Howard, 427 U.S. 1, 14-15, 96 S.Ct. 2413, 2420-21, 49 L.Ed.2d 276 (1976); Zahn v. International Paper Co., 414 U.S. 291, 94 S.Ct. 505, 38 L.Ed.2d 511 (1973) (and maybe Ben-Hur is vulnerable, see Currie, Pendent Parties, 45 U.Chi.L.Rev. 753, 762-64 (1978)). For example, we have held recently that a diversity claim for less than the statutory minimum amount in controversy is not within pendent party jurisdiction when the main claim is also a diversity claim. Hixon v. Sherwin-Williams Co.," }, { "docid": "4926925", "title": "", "text": "and the state claim is such that the entire action can be said to comprise “one constitutional ‘case’.” Gibbs, supra, 383 U.S. at 725, 86 S.Ct. at 1138. The Court noted that the claims must derive from a “common nucleus of operative fact” so that the plaintiff would ordinarily be expected to try the entire case in one forum. Ibid. Finally, the court held that the doctrine of pendent jurisdiction is “a doctrine of discretion, not of plaintiff’s right” and focus must be on the considerations of “judicial economy, convenience and fairness to litigants” in determining whether it should be applied. Gibbs, supra, 383 U.S. at 726, 86 S.Ct. at 1139. Gibbs, then, stands for the proposition that as a matter of interpreting the constitutional grant of judicial power in Article III, when there is federal jurisdiction over parties who have federal and non-federal claims in dispute, the federal court has the power to adjudicate the non-federal portions of the parties’ dispute. Gibbs did not involve an area in which Congress had spoken to the issue and hence no question of statutory construction was present. Nor did Gibbs involve the question of pendent party jurisdiction since all the parties were already before the court. Three more recent Supreme Court cases have involved but not resolved the question of pendent party jurisdiction. In Zahn v. International Paper Co., 414 U.S. 291, 94 S.Ct. 505, 38 L.Ed.2d 511 (1973), a diversity class action, the Court held that multiple plaintiffs with separate and distinct claims must each satisfy the amount-in-controversy requirement. Rejecting application of principles of pendent jurisdiction, the Court held that the statute required dismissal of those litigants who do not satisfy the jurisdictional amount, even though other litigants assert claims sufficient to invoke the jurisdiction of the federal court. 414 U.S. at 300, 94 S.Ct. at 511. The Court’s analysis and holding in Zahn clearly involved statutory construction, not interpretation of the constitutional limits of the district court’s jurisdiction. Construing “the ‘matter in controversy’ requirement of § 1332,” the Court reasoned that a contrary rule “would undermine the purpose and intent" }, { "docid": "20103135", "title": "", "text": "action in August 1989 against FFCA, Ticor and United Guaranty, alleging seven causes of action, including wrongful termination of the lease, conversion, fraud and breach of contract. Federal jurisdiction is predicated on diversity of citizenship (see Amended Complaint at p. 1; see also 28 U.S.C. § 1332). The plaintiffs' seventh cause of action is against Ticor for allegedly converting the plaintiffs’ $36,000 which was held in escrow (see Amended Complaint ¶¶ 77-85). The plaintiffs also allege that Ticor conspired with FFCA in converting this amount. This is the only cause of action alleged against Ticor. Defendant Ticor now moves pursuant to Fed.R.Civ.P. 12(b)(1) to dismiss for lack of subject matter jurisdiction, since the amount in controversy does not exceed the required jurisdictional amount, namely, $50,000. In opposition, the plaintiffs do not dispute that the amount in controversy is below the required jurisdictional amount. Rather, the plaintiffs “cross-move”, requesting the Court to exercise pendent jurisdiction over the claim against Ticor. III. DISCUSSION Pendent Jurisdiction, Generally: Pendent jurisdiction involves additional claims asserted by the plaintiff which have no independent basis for federal jurisdiction (see United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 [1966]). Under Gibbs, if a federal claim is sufficient to confer subject matter jurisdiction over a controversy, then it is discretionary for a court to exercise jurisdiction over state-law claims that do not have an independent basis for jurisdiction, so long as the state and federal claims “derive from a common nucleus of operative fact” (United Mine Workers of Am. v. Gibbs, supra, 383 U.S. at p. 725, 86 S.Ct. at p. 1138). “Pendent-party” jurisdiction refers to “the joining of additional parties with respect to whom there is no independent basis of federal jurisdiction” (Aldinger v. Howard, 427 U.S. 1, 6, 96 S.Ct. 2413, 2416, 49 L.Ed.2d 276 [1976]; see also Finley v. United States, 490 U.S. 545, 109 S.Ct. 2003, 104 L.Ed.2d 593 [1989]). Effect of Finley v. United States: In Finley v. United States, 490 U.S. 545, 109 S.Ct. 2003, 104 L.Ed.2d 593 (1989), the Supreme Court specifically held that" }, { "docid": "18689322", "title": "", "text": "party jurisdiction. Pendent claim jurisdiction presumes the existence of a claim over which the court has federal jurisdiction, and another claim involving the same parties lacking federal question or diversity jurisdiction. The exercise of pendent jurisdiction over the latter claim is appropriate if (1) the court has power under Article III, Section 2 of the Constitution to assert jurisdiction over the pendent claim, measured by whether the pendent claim and a “substantial” federal claim derive from a common nucleus of operative facts, and (2) the court in its discretion determines to exercise pendent jurisdiction, based upon considerations of judicial economy, convenience and fairness to the litigants. United Mine Workers of America v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). However, “if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well” (footnote omitted), id. at 726, 86 S.Ct. at 1139; Crane Co. v. American Standard, Inc., 603 F.2d 244, 254 (2d Cir. 1979), absent exceptional circumstances not present here, Kavit v. A. L. Stamm & Co., 491 F.2d 1176, 1180 (2d Cir. 1974). Consequently, there can be no pendent claim jurisdiction here over common law claims by plaintiffs whose federal claims have been dismissed. See Point 1, supra. Pendent party jurisdiction, on the other hand, may typically be sought by one who has no claim against the relevant party for which there is federal jurisdiction, but only a related claim against another party for which there is federal jurisdiction. Plaintiffs’ theory here is that the accountants are pendent defendants; i. e., that plaintiffs’ common law claims against the accountants, against whom they have no federal claims, are pendent to plaintiffs’ claims against other defendants. Pendent party jurisdiction is not only subject to the two requirements of Gibbs, supra, but also requires a determination “that Congress in the statutes conferring jurisdiction has not expressly or by implication negated its existence.” Aldinger v. Howard, 427 U.S. 1, 18, 96 S.Ct. 2413, 2422, 49 L.Ed.2d 276 (1976). In Aldinger, supra, the Court reasoned that pendent party" }, { "docid": "7554165", "title": "", "text": "least by the stipulation, either in their action against the Sheriff or the Deputy or in any future action against the excess insurer. What they stipulated was the unvarnished truth. Plaintiffs also argue that the stipulation may require them to relitigate their claims against the Sheriff and Dixie Auto in another forum because of the failure to satisfy the jurisdictional amount required of diversity cases in federal court. However, this would be so only if there were no other jurisdictional basis for the claims against those defendants. For reasons set forth in this opinion, I believe that this court’s pendent jurisdiction provides such a basis and that the unusual circumstances of this case warrant its exercise. Moreover, even if plaintiffs were required to relitigate their claims, that additional expense and inconvenience scarcely rises to the level of “manifest injustice.” Ill The power to hear a pendent claim between two parties already before the court was established in United Mine Workers v. Gibbs, 1966, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218. The court, in Gibbs, reasoned that, where federal and state claims derive from a common nucleus of operative fact, they constitute but one “case” within the terms of Article III, Section 2 of the Constitution; hence, there is constitutional authority to hear the whole matter. This power is discretionary with the court, to be exercised after balancing considerations of “judicial economy, convenience and fairness to the litigants” with those of comity. 383 U.S. at 726, 86 S.Ct. at 1139. Within several years after Gibbs was decided, six of the seven courts of appeals had considered the issue of asserting pendent jurisdiction over a claim lacking an independent jurisdictional basis either by or against a party not otherwise subject to federal jurisdiction, and asserted that they had power to do so. The Ninth Circuit alone reached a different conclusion. Last term, the Supreme Court considered a closely related issue in Aldinger v. Howard, 1976, 427 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d 276. The court concluded that, by excluding municipal corporations, such as countries, from liability in 42 U.S.C." }, { "docid": "17718648", "title": "", "text": "lacked subject matter jurisdiction. Jurisdiction was sought to be based on diversity of citizenship and the requisite amount in controversy. 28 U.S.C. § 1332(a). While diversity of citizenship between the plaintiff and the defendants is not contest ed, the defendants do point out that several of the claims of plaintiff were for less than the requisite amount. There is no question that the district court had jurisdiction over the $11,000.00 products liability action asserted against Piper in the First Claim. While defendants would disagree, plaintiff urges that the court also had jurisdiction over the $11,-000.00 negligence claim against United States Aviation Underwriters asserted as the Seventh Claim as a claim made in good faith. Wheel Horse Sales, Inc. v. Spence, 566 F.2d 679 (10th Cir.). The complaint only asserts claims in the amount of $7,000.00 against Aetna and Mr. Phelps. Plaintiff, as to these, relies upon the doctrine of pendent jurisdiction. It would serve no purpose to review the well-known standards for the Article III requisites of pendent jurisdiction set forth in United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218, and as further considered as to parties and as to statutory power in Aldinger v. Howard, 427 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d 276. “Pendent jurisdiction” is not treated as such in Zahn v. International Paper Co., 414 U.S. 291, 94 S.Ct. 505, 38 L.Ed.2d 511, but the case is significant as to the problem before us. The Supreme Court in Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 98 S.Ct. 2396, 57 L.Ed.2d 274, however, did consider pendent jurisdiction as it related to the inclusion of additional parties in the context of diversity. The Supreme Court in Aldinger v. Howard, 427 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d 276, expressly limited its holding to “ ‘pendent party’ jurisdiction with respeet to a claim brought under §§ 1343(3) and 1983.” 427 U.S., at 18, 96 S.Ct. at 2422. Thus in each subsequent case involving pendent party jurisdiction, “. . .a federal court must satisfy itself not only that Art. Ill permits" }, { "docid": "1134628", "title": "", "text": "Inc., 62 B.R. 699, 702 (Bankr.S.D.Tex.1986). Federal courts have ancillary jurisdiction to hear nonfederal claims in order to effectively resolve an entire, logically entwined lawsuit. See, e.g., Owen Equipment & Erection Company v. Kroger, 437 U.S. 365, 377, 98 S.Ct. 2396, 2404, 57 L.Ed.2d 274 (1978). The term ancillary jurisdiction, in fully flowered form, then, is used to consider the court’s jurisdiction over claims which are an outgrowth of the claims by the original plaintiff or plaintiffs against the original defendant or defendants. These would include compulsory counterclaims, cross-claims, third-party claims, claims against an additional party as part of one of the above, and intervention as of right. J. Landers & James A. Martin, Civil Procedure 214 (1981). The contours of ancillary jurisdiction were defined by the Supreme Court in United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966), then further limited by Aldinger v. Howard, 427 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d 276 (1975), and Zahn v. International Paper Co., 414 U.S. 291, 94 S.Ct. 505, 38 L.Ed.2d 511 (1973). Owen Equipment, 437 U.S. at 371-373, 98 S.Ct. at 2401-2402. Gibbs involved pendent jurisdiction, but it delineated the constitutional limits of the federal judicial power to hear state law claims when independent bases for federal jurisdiction are not present. The state and federal claims must derive from a common nucleus of operative fact. But if, considered without regard to their federal or state character, a plaintiff’s claims are such that he would ordinarily be expected to try them all in one judicial proceeding, then, assuming substantiality of the federal issues, there is power in federal courts to hear the whole. [Emphasis in original.] 383 U.S. at 725, 86 S.Ct. at 1138. However, Aldinger and Zahn noted that this federal judicial power may be limited by statute. The Aldinger, and Zahn, cases thus make clear that a finding that federal and nonfederal claims arise from a ‘common nucleus of operative fact,’ the test of Gibbs, does not end the inquiry into whether a federal court has power to hear the non-federal claims along" }, { "docid": "18316409", "title": "", "text": "Gibbs delineated the constitutional limits of federal judicial power. But even if it be assumed that the District Court in the present case had constitutional power to decide the respondent’s lawsuit against the petitioner, it does not follow that the decision of the Court of Appeals was correct. Constitutional power is merely the first hurdle that must be overcome in determining that a federal court has jurisdiction over a particular controversy. For the jurisdiction of the federal courts is limited not only by the provisions of Art. Ill of the Constitution, but by Acts of Congress. [Citations omitted]. “That statutory law as well as the Constitution may limit a federal court’s jurisdiction over non-federal claims is well illustrated by two recent decisions of this Court, Aldinger v. Howard, 427 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d 276, and Zahn v. International Paper Co., 414 U.S. 291, 94 S.Ct. 505, 38 L.Ed.2d 511. In Aldinger the Court held that a Federal District Court lacked jurisdiction over a state-law claim against a county, even if that claim was alleged to be pendent to one against county officials under 42 USC § 1983 [42 USCS § 1983], In Zahn the Court held that in a diversity class action under Fed. Rule Civ.Proc. 23(b)(3), the claim of each member of the plaintiff class must independently satisfy the minimum jurisdictional amount of $10,000 set by 28 USC § 1332(a) [28 USCS § 1332(a)], and rejected the argument that jurisdiction existed over those claims that involved less than $10,000 as ancillary to those that involved more. In each case, despite the fact that federal and nonfederal claims arose from a ‘common nucleus of operative fact,’ the Court held that the statute conferring jurisdiction over the federal claim did not allow the exercise of jurisdiction over the nonfederal claim. “The Aldinger and Zahn cases thus make clear that a finding that federal and nonfederal claims arise from a ‘common nucleus of operative fact,’ the test of Gibbs, does not end the inquiry into whether a federal court has power to hear the nonfederal claims along with the" }, { "docid": "15851793", "title": "", "text": "and used in ways which exceeded the subject matter jurisdiction of the federal courts. Indeed, pendent/ancillary practice became so “liberal” that the Supreme Court on no less than four occasions — in Zahn v. International Paper Co., 414 U.S. 291, 94 S.Ct. 505, 38 L.Ed.2d 511 (1973), Aldinger v. Howard, 427 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d 276 (1976), Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 98 S.Ct. 2396, 57 L.Ed.2d 274 (1978), and Finley v. United States, — U.S. -, 109 S.Ct. 2003, 104 L.Ed.2d 593 (1989) — was forced to halt what others considered a “common sense solution to piece-meal litigation.” II THE LIMITS OF ANCILLARY & PENDENT JURISDICTION The diversity jurisdiction statute grants the district courts original jurisdiction of all civil actions where “the matter in contro versy” [1] exceeds a certain amount (it is now $50,000; at the time of Zahn it was $10,000)[;] “and [2] is between citizens of different states.” 28 U.S.C. § 1332(a)(1) (emphasis added). In Zahn, plaintiffs, who could not meet the jurisdictional-amount requirement had joined other, jurisdictionally-sound plaintiffs in a putative class action against a paper company from a different state who, it was alleged, had befouled plaintiffs’ property with pollution. Under the Gibbs test, the claims of the plaintiffs who failed to meet the jurisdictional-amount requirement were undoubtedly just as much a part of the Article III “case,” (or § 1332(a)’s “civil action”) as the jurisdic-tionally adequate claims of the other plaintiffs since all of the claims arose out a common nucleus of operative fact. But Mr. Justice White, writing for the Supreme Court in Zahn, concentrated on the statutory phrase “matter in controversy” and held that each “matter in controversy” must not only be between citizens of different states but must also meet the jurisdictional-amount requirement. Accordingly, under Zahn, only those plaintiffs who individually meet the jurisdictional requirement may join a class action brought in federal court on the basis of diversity of citizenship — “one plaintiff may not ride on another’s coattails.” 414 U.S. at 301, 94 S.Ct. at 512 (internal quotations omitted). Zahn" }, { "docid": "7554166", "title": "", "text": "Gibbs, reasoned that, where federal and state claims derive from a common nucleus of operative fact, they constitute but one “case” within the terms of Article III, Section 2 of the Constitution; hence, there is constitutional authority to hear the whole matter. This power is discretionary with the court, to be exercised after balancing considerations of “judicial economy, convenience and fairness to the litigants” with those of comity. 383 U.S. at 726, 86 S.Ct. at 1139. Within several years after Gibbs was decided, six of the seven courts of appeals had considered the issue of asserting pendent jurisdiction over a claim lacking an independent jurisdictional basis either by or against a party not otherwise subject to federal jurisdiction, and asserted that they had power to do so. The Ninth Circuit alone reached a different conclusion. Last term, the Supreme Court considered a closely related issue in Aldinger v. Howard, 1976, 427 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d 276. The court concluded that, by excluding municipal corporations, such as countries, from liability in 42 U.S.C. § 1983, Congress intended similarly to limit the statutory authority of 28 U.S.C. § 1343(3), the jurisdictional grant for Section 1983 claims. Therefore, a plaintiff asserting a federal cause of action under that statute may not implead a county for purposes of asserting a state law claim against it. The court specifically limited its holding to Section 1343(3) cases, but offered guidance for resolving analogous cases involving other jurisdictional grants: Two observations suffice for the disposition of the type of case before us. If the new party sought to be impleaded is not otherwise subject to federal jurisdiction, there is a more serious obstacle to the exercise of pendent jurisdiction tha[n] if parties are required to litigate a state law claim. Before it can be concluded that jurisdiction exists, a federal court must satisfy itself not only that Article III permits it, bur Congress in the statutes conferring jurisdiction has not expressly or by implication negated it. The Fifth Circuit has recently considered the admonition of Aldinger in the context of the jurisdictional grant for" } ]

[ { "docid": "12766461", "title": "", "text": "may resist producing subpoenaed documents where the implicit authentication amounts to testimony that the defendant “owns or at least possesses the documents.” See United States v. Fox, 721 F.2d 32, 38 (2d Cir.1983). There is no dispute that these documents were produced by Robert Seibel, CDM’s custodian of records, in response to a request for CDM’s documents. Had he testified, Sei-bel would be able to authenticate the corporate records. Despite Seibel’s invocation of his Fifth Amendment right, he has implicitly authenticated these documents by his act of production as records maintained by CDM concerning the shipment of Paul Mitchell products. Give the circumstances of production and the documents themselves, this Court finds that the documents marked as Plt.Ex. 128 to 131 have been authenticated. Thus authenticated, the documents are admissible as business records of CDM or, in the alternative, pursuant to the residual hearsay exception. See Fed. R.Evid. 803(6) & 807. The act of production indicates Robert Seibel’s belief that the documents record the shipment of the Paul Mitchell products to Europe and that the documents were maintained in the ordinary course of CDM’s business. A district court may admit hearsay documents pursuant to Fed.R.Evid. 807 where (i) the hearsay is particularly trustworthy, (ii) the hearsay bears on a material fact, (iii) the hearsay is the most probative evidence addressing the fact, (iv) the proffer follows adequate notice to the adverse party, and (v) the1 admission is consistent with the rules of evidence and advances the interests of justice. See United States v. Bryce, 208 F.3d 346, 350 (2d Cir.1999). Each of these conditions is addressed in turn. The trustworthiness of these documents is established by their appearance and the fact that they were produced by Robert Seibel against his interests in the litigation. The issue of whether the Paul Mitchell product was sold and shipped to Quality King is material to the litigation, and the documents are probative of the fact that CDM believed the products were shipped from its warehouse in China to Rotterdam. Due to the Fifth Amendment invocation of several defendants and the apparent refusal of" } ]

[ { "docid": "20384175", "title": "", "text": "in as a hearsay exception under Federal Rule of Evidence 803(6) as business records of the supremacy groups’ Internet service providers. Internet service providers, however, are merely conduits. The Internet service providers did not themselves post what was on Storm Front and the Euro-American Student Union’s websites. Jackson presented no evidence that the Internet service pro viders even monitored the contents of those web sites. The fact that the Internet service providers may be able to retrieve information that its customers posted or email that its customers sent does not turn that material into a business record of the Internet service provider. Any evidence procured off the Internet is adequate for almost nothing, even under the most liberal interpretations of the hearsay exception rules. Jackson, 208 F.3d at 637 (citation and internal punctuation omitted). The Jackson Court went on to state that, even if admissible as business records, the website postings should still have been excluded because they lacked authentication under Rule 901. Id. at 638. The Court concluded that, to be admissible under Rule 803(6), the business records must be rehable and “business records are inadmissible if the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.” Id. (quoting United States v. Croft, 750 F.2d 1354, 1367 (7th Cir.1984)). The Seventh Circuit then affirmed the district court ruling that the postings were inadmissible because, among other things, the movant was “unable to show that these postings were authentic.” Id. Applying Jackson to his case, Mr. Cameron contends that the digital images found on the ISP servers are not admissible under Rule 803(6) — the business record exception — and he extrapolates a further point: that the Confrontation Clause of the Sixth Amendment mandates that he be given the opportunity to cross-examine the persons at the ISPs who located the images and traced them to him. C. Jackson and Cameron The brief answer to Mr. Cameron’s contentions is that Jackson does not apply because the images are not hearsay to begin with and the business records exception does not apply. Jackson’s holding, which affected" }, { "docid": "4056172", "title": "", "text": "be authenticated by a witness with personal knowledge. United States v. Kassimu, 2006 WL 1880335 (5th Cir. May 12, 2006) (ruling that copies of a post office’s computer records could be authenticated by a custodian or other qualified witness with personal knowledge of the procedure that generated the records); St. Luke’s, 2006 WL 1320242 at *3-4 (“To authenticate printouts from a website, the party proffering the evidence must produce ‘some statement or affidavit from someone with knowledge [of the website] ... for example [a] web master or someone else with personal knowledge would be sufficient.’ ” (citation omitted)); Safavian, 435 F.Supp.2d at 40 n. 2 (D.D.C.2006) (noting that e-mail may be authenticated by a witness with knowledge that the exhibit is what it is claimed to be); Wady, 216 F.Supp.2d 1060 (sustaining objection to affidavit of plaintiffs witness attempting to authenticate documents taken from the defendant’s website because the affiant lacked personal knowledge of who maintained the website or authored the documents). Although Rule 901(b)(1) certainly is met by the testimony of a witness that actually drafted the exhibit, it is not required that the authenticating witness have personal knowledge of the making of a particular exhibit if he or she has personal knowledge of how that type of exhibit is routinely made. Weinstein at § 901.03[2]. It is necessary, however, that the authenticating witness provide factual specificity about the process by which the electronically stored information is created, acquired, maintained, and preserved without alteration or change, or the process by which it is produced if the result of a system or process that does so, as opposed to boilerplate, conclusory statements that simply parrot the elements of the business ree ord exception to the hearsay rule, Rule 803(6), or public record exception, Rule 803(8). Rule 901(b)(3). This rule allows authentication or identification by “Comparison by the trier of fact or by expert witnesses with specimens which have been authenticated.” Interestingly, the rule allows either expert opinion testimony to authenticate a questioned document by comparing it to one known to be authentic, or by permitting the factfinder to do so." }, { "docid": "6702709", "title": "", "text": "Homestore, so is an exception to the hearsay rule. Fed. R.Evid. 803(6). Third, Ms. Campos’ position provided her the personal knowledge necessary to review and sign off on this document when it was written. This PwC work paper was prepared by Wade Kruse and signed by Jennifer Campos, both PwC auditors. Although Ms. Campos testified in her deposition that she did not personally write the document and could not “recall” the basis for any statements contained in the report, (Ex. B, Campos Dep. 96:5-100:25), she testified that she must have agreed with it when she reviewed it. (Id., 99:18-19). Finally, this document is relevant to how Mr. Wolff operated as Homestore’s CEO. b. Emails between Wolff and AOL (Exs.NN, 00, PP, 00, RR, SS, TT, UU, W) These exhibits contain emails sent from Defendant Wolff to his own staff and to others outside Homestore. Defendant objects to these exhibits as hearsay, lacking foundation, vague and uncertain, irrelevant, and not properly authenticated. The Court addresses the issue of authentication first. Although none of these documents have affidavits from the actual authors laying the foundation that the emails are what they purport to be, Orr, 285 F.3d at 777, these documents are deemed authentic because Plaintiff identified the documents as being produced by parties in discovery. Id., n. 20. According to Plaintiffs, Exhibits NN, 00, PP, QQ, and RR were retrieved from Homestore’s email database and produced by PwC for this litigation. Exhibit SS was produced by Homestore via Wolffs computer hard drive and printed by Plaintiffs. Exhibits TT, UU, and W were produced by AOL, once a party to this litigation but now dismissed. Second, emails written by a party are admissions of a party opponent and admissible as non-hearsay under Fed. R.Evid. 801(d)(2). These emails were written by Wolff; Plaintiffs offer his own statements against him. Third, the Court finds that these emails clearly relate to a transaction between AOL and Homestore during a time period in question in this case. Finally, these emails are highly relevant to Defendant Wolffs involvement in Homestore’s financial dealings and are hereby admitted. c." }, { "docid": "20384189", "title": "", "text": "were authentic and relevant. The Government presented a Web-based roadmap that traced the images to Mr. Cameron, and images of child pornography are obviously relevant to a child pornography case. Thus, here, the Government sustained its burden to admit these images under the business records exception, if it applies. Second, the Court would be required to balance the probative value of the exhibit against its prejudicial impact. Fed. R. Evtd. 403. Here, the Court engaged in such a balancing test and concluded that the images were not unfairly prejudicial and should be admitted. See United States v. Morales-Aldahondo, 524 F.3d 115, 120 (1st Cir.2008) (admitting images of child pornography over the defendant’s Rule 403 objections and noting that “only ‘unfair’ prejudice is to be avoided, as by design, all evidence is meant to be prejudicial” (internal quotation marks omitted)). 2. Admissibility as an Admission If the images are potentially “statements” subject to the rule against hearsay, a final means for admission is as admission by a party-opponent under Rule 801(d)(2). Since the possession of these images could constitute an admission by the Defendant of the commission of the crime of possession of child pornography, once traced to the defendant, they become an admission and not hearsay. See Fed.R.Evid. 801(d)(2) (admission by a party-opponent is not hearsay). G. ISP Documents In addition to the images, the Government introduced into evidence a number of written documents that contain such evidence as emails, electronic receipts, and chain of custody evidence. These documents fit squarely into the business records exception to the hearsay rule and have been authenticated. Fed.R.Evid. 803(6); Fed.R.Evid. 901. The Court remains satisfied that these documents were properly admitted. H. YahooFs Search and the Government Action Before, during, and after trial, Mr. Cameron has challenged YahooFs search of its servers as the actions of a Government agent. The Court previously addressed this issue and the Court again rejects Mr. Cameron’s argument for the same reasons. See Order on Second Mot. to Suppress (Docket # 167). Yahoo! is not an agent of the United States Government and did not act in concert" }, { "docid": "6702708", "title": "", "text": "of summary judgment. See Fed.R.Evid. 901(a). 3. Documents Produced in Litigation a. PwC Work Papers (Exs. CC & EE) Defendant objects to Exhibit CC, a PwC work paper, as hearsay, irrelevant, speculation, and for lack of foundation. PwC produced this document during discovery for this litigation; the document is a PwC work paper prepared during the course of business and is admissible as a business record. Defendant also objects to Exhibit EE, a document attached as an exhibit to PwC Auditor Jennifer Campos’ deposition. The grounds for objection include hearsay, lack of foundation, speculation, improper opinions, conclusion, and summary, lack of authentication, and relevance. First, the Court finds this document to be authenticated. PwC produced Exhibit EE during the discovery process; such documents are deemed authentic when offered by a party-opponent. Orr v. Bank of America, 285 F.3d 764, 777 n. 20 (9th Cir.2002) (citing Maljack Prods., Inc. v. GoodTimes Home Video Corp., 81 F.3d 881, 889 n. 12 (9th Cir.1996)). Second, the document was created during the normal course of PwC’s business of auditing Homestore, so is an exception to the hearsay rule. Fed. R.Evid. 803(6). Third, Ms. Campos’ position provided her the personal knowledge necessary to review and sign off on this document when it was written. This PwC work paper was prepared by Wade Kruse and signed by Jennifer Campos, both PwC auditors. Although Ms. Campos testified in her deposition that she did not personally write the document and could not “recall” the basis for any statements contained in the report, (Ex. B, Campos Dep. 96:5-100:25), she testified that she must have agreed with it when she reviewed it. (Id., 99:18-19). Finally, this document is relevant to how Mr. Wolff operated as Homestore’s CEO. b. Emails between Wolff and AOL (Exs.NN, 00, PP, 00, RR, SS, TT, UU, W) These exhibits contain emails sent from Defendant Wolff to his own staff and to others outside Homestore. Defendant objects to these exhibits as hearsay, lacking foundation, vague and uncertain, irrelevant, and not properly authenticated. The Court addresses the issue of authentication first. Although none of these documents have" }, { "docid": "20004304", "title": "", "text": "as inadmissible hearsay. However, these emails have been properly authenticated to the extent that they were produced to Petitioner by BGR itself during discovery. See John Paul Mitchell Sys. v. Quality King Distribs., Inc., 106 F.Supp.2d 462, 472 (S.D.N.Y.2000) (holding that the act of production itself implicitly authenticates documents). They also were identified at Loren Monroe’s deposition. See Fed. R.Evid. § 901(b) (providing that “[t]estimony that a matter is what it claimed to be” is an example of identification which satisfies the authentication requirement of Rule 901(a)). A more significant problem with the BGR emails is that they contain hearsay. Petitioner argues that the BGR emails constitute business records and are therefore admissible under the business-records hearsay exception of Rule 803(6). However, “a party seeking to introduce an email made by an employee about a business matter under the hearsay exception under Rule 803(6) must show that the employer imposed a business duty to make and maintain such a record.” Canatxx Gas Storage Ltd. v. Silverhawk Capital Partners, LLC, Civ. No. H-06-11220, 2008 WL 1999234, at * 12 (S.D.Tex. May 8, 2008); see also DirecTV, Inc. v. Murray, 307 F.Supp.2d 764, 772-73 (D.S.C.2004) (admitting sales records contained in emails under the business records hearsay exception when the sale orders were regularly received by email and the emails were retained as records of each order). Because Petitioner has submitted absolutely no information regarding the practice or composition of the emails at issue, the Court will not deem them admissible as business records. New York v. Microsoft, No. CIV A. 98-1233(CKK), 2002 WL 649951, at *2 (D.D.C. April 12,2002). Petitioner also argues that the emails are offered not to prove the truth of the matters asserted within them but as circumstantial evidence of Mr. Monroe’s and other writers’ and recipients’ states of mind. See Fed.R.Evid. 803(3); United States v. Dupre, 462 F.3d 131, 137 (2d Cir.2006). However, as cited by Petitioner in its briefs, the emails are offered not to reflect anyone’s state of mind but to prove that certain meetings and hearings happened and that certain lobbying strategies were employed. To" }, { "docid": "20384174", "title": "", "text": "137). Before trial, the Court dismissed without prejudice a motion in limine premised on Sixth Amendment violations. Order on Mot in Limine Regarding Documentary Evidence (Docket # 172) {Mot. in Limine Order). During trial, the Court rejected the same objections and admitted the contested exhibits. Mr. Cameron now moves for a new trial on similar grounds. B. United States v. Jackson To set the stage for Mr. Cameron’s objections, it is necessary to review the Seventh Circuit case of United States v. Jackson, 208 F.3d 633 (7th Cir.2000), which Mr. Cameron cites in support of his motions. In Jackson, the Seventh Circuit addressed whether the contents of Web site postings could be admitted into evidence under the business records exception to the rule against hearsay evidence. Id. at 637. See also Fed.R.Evid. 803(6). Noting that the comments on the Web sites were being introduced for their truth and were therefore hearsay, the Seventh Circuit rejected the contention that the website postings were the business records of the ISPs: Jackson tries to fit the web postings in as a hearsay exception under Federal Rule of Evidence 803(6) as business records of the supremacy groups’ Internet service providers. Internet service providers, however, are merely conduits. The Internet service providers did not themselves post what was on Storm Front and the Euro-American Student Union’s websites. Jackson presented no evidence that the Internet service pro viders even monitored the contents of those web sites. The fact that the Internet service providers may be able to retrieve information that its customers posted or email that its customers sent does not turn that material into a business record of the Internet service provider. Any evidence procured off the Internet is adequate for almost nothing, even under the most liberal interpretations of the hearsay exception rules. Jackson, 208 F.3d at 637 (citation and internal punctuation omitted). The Jackson Court went on to state that, even if admissible as business records, the website postings should still have been excluded because they lacked authentication under Rule 901. Id. at 638. The Court concluded that, to be admissible under Rule" }, { "docid": "20004303", "title": "", "text": "official publications issued by a public authority. Although nothing on the page of the exhibit submitted by Petitioner demonstrates that it was an official document issued by Representative Shays’ office, see Sannes v. Jeff Wyler Chevrolet, Inc., No. C-1-97-930, 1999 WL 33313134, at *3 n. 3 (S.D.Ohio March 31, 1999) (holding that Federal Trade Commission press releases “printed from the FTC’s government world wide web page[ ] are self-authenticating official publications under Rule 902(5).”), STN included the web address for Representative Shays’ press releases in its Local Rule 56(a)(1) statement, thereby allowing the Court to verify that the press release in the record was a copy of an official document issued by a public authority. See 2 McCormick On Evid. § 227 (6th ed.2006) (noting that information “retrieved from government websites ... has been treated as self-authenticating, subject only to proof that the webpage does exist at the governmental web location.”). Respondents also move to strike numerous emails sent to and from the lobbying firm Barbour Griffith & Rogers (“BGR”) for lack of authentication and as inadmissible hearsay. However, these emails have been properly authenticated to the extent that they were produced to Petitioner by BGR itself during discovery. See John Paul Mitchell Sys. v. Quality King Distribs., Inc., 106 F.Supp.2d 462, 472 (S.D.N.Y.2000) (holding that the act of production itself implicitly authenticates documents). They also were identified at Loren Monroe’s deposition. See Fed. R.Evid. § 901(b) (providing that “[t]estimony that a matter is what it claimed to be” is an example of identification which satisfies the authentication requirement of Rule 901(a)). A more significant problem with the BGR emails is that they contain hearsay. Petitioner argues that the BGR emails constitute business records and are therefore admissible under the business-records hearsay exception of Rule 803(6). However, “a party seeking to introduce an email made by an employee about a business matter under the hearsay exception under Rule 803(6) must show that the employer imposed a business duty to make and maintain such a record.” Canatxx Gas Storage Ltd. v. Silverhawk Capital Partners, LLC, Civ. No. H-06-11220, 2008 WL 1999234," }, { "docid": "20004302", "title": "", "text": "(D.Mass.2007) (finding testimony of currently unavailable FBI agents before House Committee on Government Reform admissible as party admissions over government’s hearsay objection, even though at time of testimony agents were no longer employed by government); see also In re Jacoby Airplane Crash Litigation, No. 99-6073(HAA), 2007 WL 2746833, at *4-5 (D.N.J. Sept.19, 2007) (collecting cases where out-of-court statements by government employees were admissible against the government). Despite the assertion in their reply to the contrary, Respondents merely cite a list of contested documents in their motion to strike, failing to specify what about any of the documents renders them inadmissible. Respondents assert that many of the contested documents are inadmissible because they are unauthenticated documents. However, the news and magazine articles submitted by Petitioner (Pet’r’s Exs. 17, 79) are self-authenticating under Rule 902(6) of the Federal Rules of Evidence and are therefore admissible. Petitioner’s Exhibit 31, the press release issued by Representative Christopher Shays on March 12, 2004, may also be considered self-authenticating. Press releases by government authorities may be self-authenticating under Rule 902(5) as official publications issued by a public authority. Although nothing on the page of the exhibit submitted by Petitioner demonstrates that it was an official document issued by Representative Shays’ office, see Sannes v. Jeff Wyler Chevrolet, Inc., No. C-1-97-930, 1999 WL 33313134, at *3 n. 3 (S.D.Ohio March 31, 1999) (holding that Federal Trade Commission press releases “printed from the FTC’s government world wide web page[ ] are self-authenticating official publications under Rule 902(5).”), STN included the web address for Representative Shays’ press releases in its Local Rule 56(a)(1) statement, thereby allowing the Court to verify that the press release in the record was a copy of an official document issued by a public authority. See 2 McCormick On Evid. § 227 (6th ed.2006) (noting that information “retrieved from government websites ... has been treated as self-authenticating, subject only to proof that the webpage does exist at the governmental web location.”). Respondents also move to strike numerous emails sent to and from the lobbying firm Barbour Griffith & Rogers (“BGR”) for lack of authentication and" }, { "docid": "16068300", "title": "", "text": "has to both the affidavits and the emails. NAC has not outlined any undue prejudice it would suffer were the Court to permit the affidavits to be filed. The Court finds that the unusual circumstances described in the motion excuse Plaintiffs’ brief delay and therefore grants the motion to supplement. With the addition of the affidavits, it is clear that the emails in question were authored by Airman Lipfird and Captain Snyder in May 2013 in direct response to an inquiry by the NTSB lead investigator, Captain David Lawrence, and forwarded through the military chain of command. (See R. 36-1, Lipfird Aff.; R. 36-2, Snyder Aff.) They were printed from the email account of Captain Lawrence, as evidenced by the header on the emails, arid were also attached,a's exhibits to Captain Lawrence’s final report. (R. 37-4, NTSB Factual Re port, Witness Statements at 19, 31-32.) The Court finds that these documents are sufficiently authenticated to be considered in connection with the motion to remand. See Fed. R. Evid. 901(a)-(b) (proponent of evidence must “produce evidence sufficient to support a finding that the item is what the proponent claims it is,” which can be accomplished through testimony of a witness “that an item is what it is claimed to be”). NAC also argues that the emails constitute inadmissible hearsay. (R. 33, NAC’s Mot. to Strike at 4-6.) Under the Federal Rules'of Evidence, hearsay is defined as a statement that “the declarant does not make while testifying at the current-trial or hearing” that is offered in evidence “to prove the truth of the matter asserted in the statement.” Fed. R. Evid. 801(c)(l)-(2). There are various exceptions to the rule prohibiting the admission of hearsay, including, as is relevant here, the public records exception. See Fed. R. Evid. 803(8)(A)-(B). The public records exception allows a “record or statement of a public office” to be admitted if it pertains to “a matter observed while under a legal duty to report” or to “factual findings from a legally authorized investigation,” and “the opponent does not show that the source of information or other circumstances indicate" }, { "docid": "180055", "title": "", "text": "the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case. Fed. R. Evid. 702. Path argues that in the portions of the Snyder Report objected to by Path, Snyder offers his opinion as to what he believes the TCPA prohibits, how FCC rulings should be interpreted, and whether certain legal standards have been met in this case. However, Snyder merely discusses the law and facts to give a background and overview for his report. Also, pursuant to Federal Rule of Evidence 704, Snyder is not barred from giving an opinion as to the ultimate issue before the trier of fact. Fed. R. Evid. 704. Path has not shown that Snyder has overstepped his bounds as an expert witness or that Snyder is attempting to instruct the court as to the law as a legal expert. Therefore, no section of the Snyder Report is stricken. B. Articles Path moves to strike the Articles presented by Sterk in support of his partial motion for summary judgment. Path contends that the statements made in such articles are inadmissable hearsay. Sterk argues that he would not introduce the Articles to show the truth of the statements contained in the Articles. Sterk has provided a legitimate basis for the potential introduction of the Articles at trial. Therefore, the Articles are not stricken. C. Neustar Documents Path moves to strike the Neustar Documents on the basis that they are not properly authenticated and are inadmissible hearsay. Sterk has cured any potential deficiency in authentication with a later filed declaration. Sterk has also shown that the Neustar Documents that are computer records fall under the business records hearsay exception. Path also moves to strike an email (Email) in the Neustar Documents on the basis that it was not properly authenticated and is inadmissible hearsay. Sterk has properly authenticated the Email and has indicated that he is not going to introduce the Email to establish the truth of any facts contained in the Email. Path has not shown at this juncture that the Neustar" }, { "docid": "20004306", "title": "", "text": "the extent that these emails constitute a record of correspondence between Department officials, legislative staffers, members of TASK, and employees of BGR about the opposition to STN’s acknowledgment, the Court recognizes the existence of this paper trail as a part of the admissible record. The truth of the content of the emails written by BGR and by Congressional aides, however, are inadmissible hearsay and will therefore not be considered. Because BGR was hired by a community organization and was not acting in this instance as an agent of the state or federal government, communications from BGR cannot be considered party admissions which fall within a hearsay exception. The Court will also strike emails written by the co-founders of TASK, which is not a party to this action and which was not acting as an agent of the state. Similarly, because no members of Congress or their aides are parties to this case, the emails written by Congressional staffers are not party admissions either. Emails written from staff members of Governor Rell’s office and by employees of the Department, however, will be considered admissions of party-opponents excludable from the definition of hearsay under Rule 801(d)(2)(D) and will therefore remain in the record. For these reasons, Respondents’ Motion to Strike is granted in part. Exhibits 7, 18, 24, 28, 36, 39, 40, and 53, and portions of Exhibits 22, 38, 69, 38 to the Petitioner’s motion for summary judgment will be stricken from the record. II. MOTION FOR SUMMARY JUDGMENT A. Standard of Review Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c). No genuine issue of material fact exists and summary judgment is therefore appropriate when “the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). A material fact is one which “might affect the outcome of the suit under" }, { "docid": "1713266", "title": "", "text": "to proving the falsity of her claim that UPS defaced her packages with racial slurs. But if someone else actually sent the fake hate mail under the UPS logo, that would have little relevance to the veracity of Jackson’s claim that someone at UPS defiled her packages. The web postings were not statements made by declarants testifying at trial, and they were being offered to prove the truth of the matter asserted. That means they were hearsay. Fed. R. Evid. 801. Jackson tries to fit the web postings in as a hearsay exception under Federal Rule of Evidence 803(6) as business records of the supremacy groups’ Internet service providers. Internet service providers, however, are merely conduits. The Internet service providers did not themselves post what was on Storm Front and the Euro-American Student Union’s web sites. Jackson presented no evidence that the Internet service providers even monitored the contents of those web sites. The fact that the Internet service providers may be able to retrieve information that its customers posted or email that its customers sent does not turn that material into a business record of the Internet service provider. “[A]ny evidence procured off the Internet is adequate for almost nothing, even under the most liberal interpretations of the hearsay exception rules.” St. Clair v. Johnny’s Oyster & Shrimp, Inc., 76 F.Supp.2d 773, 775 (S.D. Texas 1999). Even if we are wrong about the web postings being unfairly prejudicial, irrelevant, and hearsay, Judge Norgle still was justified in excluding the evidence because it lacked authentication. See Fed. R.Evid. 901. Jackson needed to show that the web postings in which the white supremacist groups took responsibility for the racist mailings actually were posted by the groups, as opposed to being slipped onto the groups’ web sites by Jackson herself, who was a skilled computer user. “[Cjomputer data compilations are admissible as business records under Fed. R.Evid. 803(6) if a proper foundation as to the reliability of the records is established.” United States v. Briscoe, 896 F.2d 1476, 1494 (7th Cir.1990). Even' if these web postings did qualify for the business records" }, { "docid": "180056", "title": "", "text": "for summary judgment. Path contends that the statements made in such articles are inadmissable hearsay. Sterk argues that he would not introduce the Articles to show the truth of the statements contained in the Articles. Sterk has provided a legitimate basis for the potential introduction of the Articles at trial. Therefore, the Articles are not stricken. C. Neustar Documents Path moves to strike the Neustar Documents on the basis that they are not properly authenticated and are inadmissible hearsay. Sterk has cured any potential deficiency in authentication with a later filed declaration. Sterk has also shown that the Neustar Documents that are computer records fall under the business records hearsay exception. Path also moves to strike an email (Email) in the Neustar Documents on the basis that it was not properly authenticated and is inadmissible hearsay. Sterk has properly authenticated the Email and has indicated that he is not going to introduce the Email to establish the truth of any facts contained in the Email. Path has not shown at this juncture that the Neustar Documents are inadmissible for all purposes at trial. Therefore, the Neustar Documents are not stricken. Based on the above, Path’s motion to strike is denied. III. Motions for Summary Judgment Sterk has filed a partial motion for summary judgment on the issue of whether the Text was sent via an ATDS. Path moves for summary judgment on that same issue. Path also moves for summary judgment as to Sterk’s entire claim in this action. A Use of ATDS The parties both argue that they are entitled to judgment as a matter of law as to whether Path used an ATDS to send the Text. The TCPA defines the term “automatic telephone dialing system” as “equipment which has the capacity — (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” 47 U.S.C. § 227(a)(1); see also Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 952 (9th Cir.2009)(noting that the FCC has confirmed that the ATDS restriction applied to text messages). It" }, { "docid": "20645304", "title": "", "text": "produced by StreamCast in discovery but by its public relations firm, KVO Communications, and its primary venture capital investor, Timberline Venture Partners. In Homestore.com, the court ruled that documents produced by the defendant corporation’s auditor were deemed authenticated by, virtue of production in discovery when offered against the corporation’s CEO. 347 F.Supp.2d at 781. It could be argued that Homestore.com is distinguishable because the auditor was a co-defendant there, whereas in the instant case neither KVO nor Timberline are co-defendants with StreamCast. However, the question ultimately remains whether production in discovery is sufficient for a reasonable jury to find the document authentic. Since KVO and Timberline were StreamCast’s business partners and their interests are not adverse to StreamCast’s, there is no reason to doubt the authenticity of documents they produced. Thus, a reasonable jury can find Exhibits 16 and 17 to be authentic. B. Hearsay StreamCast also objects to Exhibits 14 through 17 on hearsay grounds. Hearsay is an out-of-court statement “offered in evidence to prove the truth of the matter asserted.” Fed.R.Evid. 801(c). Hearsay is generally not admissible unless it meets the definition of non-hearsay set forth in Rule 801(d), or falls under an hearsay exception set forth in Rule 803 or 804. See Fed.R.Evid. 801(d), 803 & 804. For convenience, most of the documents comprising Exhibits 14 through 17 can be divided into three categories: (1) emails, including attachments, sent by StreamCast or individual StreamCast agents; (2) emails, including attachments, sent to StreamCast or its agents by third parties, including users and business associates; (3) documents, not attached to emails, that contain business or marketing plans and meeting notes. First, under Rule 801(d)(2)(D), “a statement made by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship,” is non-hearsay. Fed.R.Evid. 801(d)(2)(D). Plaintiffs contend that emails sent by StreamCast agents are admissible as vicarious admissions by a party’s agents under Rule 801(d)(2)(D). The rule “requires the proffering party to lay a foundation to show that an otherwise excludable statement relates to a matter within the scope" }, { "docid": "4056192", "title": "", "text": "upon all official publications; it merely provides a means whereby them authenticity may be taken as established for purposes of admissibility.” Fed.R.Evid. 902(5) advisory committee’s note. This means that, to be admissible, the proponent may also need to establish that the official record qualifies as a public record hearsay exception under Rule 803(8). Weinstein at § 902.02[2]. Although the rule is silent regarding the level of government that must authorize the publication, commentators suggest that the list includes the United States, any State, district, commonwealth, territory or insular possession of the United States, the Panama Canal Zone, the Trust Territory of the Pacific islands, or a political subdivision, department, officer, or agency of any of the foregoing. Id. In Equal Employment Opportunity Commission v. E.I. DuPont de Nemours and Co., the court admitted into evidence printouts of postings on the website of the United States Census Bureau as self-authenticating under Rule 902(5). 2004 WL 2347556 (E.D.La. Oct.18, 2004). Given the frequency with which official publications from government agencies are relevant to litigation and the increasing tendency for such agencies to have their own websites, Rule 902(5) provides a very useful method of authenticating these publications. When combined with the public records exception to the hearsay rule, Rule 803(8), these official publications posted on government agency websites should be admitted into evidence easily. Rule 902(7) provides that exhibits may be self-authenticated by “[i]nscriptions, signs, tags, or labels purporting to have been affixed in the course of business and indicating ownership, control, or origin.” As one commentator has noted, “[u]nder Rule 902(7), labels or tags affixed in the course of business require no authentication. Business emails often contain information showing the origin of the transmission and identifying the employer-company. The identification marker alone may be sufficient to authenticate an e-mail under Rule 902(7).” Weinstein at § 900.07[3][c], Rule 902(11) also is extremely useful because it affords a means of authenticating business records under Rule 803(6), one of the most used hearsay exceptions, without the need for a witness to testify in person at trial. It provides: “(11) Certified domestic records of regularly" }, { "docid": "20735706", "title": "", "text": "be admitted as a business record, it must be “(1) made by a regularly conducted business activity, (2) kept in the ‘regular course’ of that business, (3) ‘the regular practice of that business to make the memorandum,’. (4) and made by a person with knowledge or from information transmitted by a person with knowledge.” Clark v. City of L.A., 650 F.2d 1033, 1036-37 (9th Cir.1981) (quoting Fed. R.Evid. 803(6)). E-mails, however, present unique problems of recent vintage in the context of the business records exception. As one district court recently explained: Courts are in disagreement on whether emails can and should fall under the business records hearsay exception. The business records exception assumes that records containing information necessary in the regular running of a business will be accurate and reliable. See Certain Underwriters at Lloyd’s London v. Sinkovich, 232 F.3d 200, 204-05 (4th Cir.2000). Email, however, is typically a more casual form of communication than other records usually kept in the course of business, such that it may not be appropriate to assume the same degree of accuracy and reliability. As email is more commonly used to communicate business matters both internally and externally, however, more formal paper records are becoming more unusual It’s My Party, Inc. v. Live Nation, Inc., No. JFM-09-547, 2012 WL 3655470 at *5 (D.Md. Aug. 23, 2012) (unpublished). The district court in that case excluded the emails on the basis that the “more specificity is required regarding the party’s recordkeeping practices to show a particular email in fact constitutes a reliable business record.” Id. While properly authenticated emails may be admitted into evidence under the business records exception, it would be insufficient to survive a hearsay challenge simply to say that since a business keeps and receives e-mails, then ergo all those emails are business records falling within the ambit of Rule 803(6)(B). “An e-mail created within a business entity does not, for that reason alone, satisfy the business records exception of the hearsay rule.” Morisseau v. DLA Piper, 532 F.Supp.2d 595, 621 n. 163 (S.D.N.Y.2008). The district court’s observation that the e-mails were kept" }, { "docid": "1056113", "title": "", "text": "accounts receivable reports are admissible under the business records exception to the rule against hearsay. See Fed.R.Evid. 803(6). Plaintiff also responds that the EOBs are authenticated because defendants produced them, and that the EOBs will not be offered for their truth. “Evidence sufficient to support a finding that the matter in question is what its proponent claims” satisfies Rule 901’s requirement of authentication. Fed. R.Evid. 901(a). “Rule 901 does not erect a particularly high hurdle.” United States v. Dhinsa, 243 F.3d 635, 658 (2d Cir.2001) (internal quotations omitted). “Testimony that a matter is what it is claimed to be” sufficiently authenticates a document. Fed.R.Evid. 901(b)(1). Production of documents by an adversary also factors into a Court’s decision on the authenticity of a document. See John Paul Mitchell Sys. v. Quality King Distribs. Inc., 106 F.Supp.2d 462, 472 (S.D.N.Y.2000). Moreover, a document’s appearance and content may demonstrate its authenticity. Id. Unless an exception applies, a statement made out of court subsequently offered for its truth is hearsay, and is inadmissible. Fed.R.Evid. 801, 802. A statement not offered for its truth is not hearsay, and is admissible if relevant and reliable. Fed.R.Evid. 801(c). Records “kept in the course of a regularly conducted business activity” are not excluded by the hearsay rule. Fed.R.Evid. 803(6). Business records generally must meet three criteria for admission: (1) the document was kept in the course of a regularly conducted business activity; (2) it was the regular practice of that business activity to make the record; and (3) either a custodian of the document testifies to (1) and (2) or the document is properly certified. United States v. Freidin, 849 F.2d 716, 719-20 (2d Cir.1988). “Rule 803(6) favors the admission of evidence rather than its exclusion if it has any probative value at all.” Phoenix Assocs. III v. Stone, 60 F.3d 95, 101 (2d Cir.1995). Here, the Court is ill-equipped to make a determination regarding the authenticity of either the accounts receivable reports prepared by KMBS, or the EOBs, because the parties have not submitted copies of the documents to the Court. The Court is also ill-equipped to" }, { "docid": "20004305", "title": "", "text": "at * 12 (S.D.Tex. May 8, 2008); see also DirecTV, Inc. v. Murray, 307 F.Supp.2d 764, 772-73 (D.S.C.2004) (admitting sales records contained in emails under the business records hearsay exception when the sale orders were regularly received by email and the emails were retained as records of each order). Because Petitioner has submitted absolutely no information regarding the practice or composition of the emails at issue, the Court will not deem them admissible as business records. New York v. Microsoft, No. CIV A. 98-1233(CKK), 2002 WL 649951, at *2 (D.D.C. April 12,2002). Petitioner also argues that the emails are offered not to prove the truth of the matters asserted within them but as circumstantial evidence of Mr. Monroe’s and other writers’ and recipients’ states of mind. See Fed.R.Evid. 803(3); United States v. Dupre, 462 F.3d 131, 137 (2d Cir.2006). However, as cited by Petitioner in its briefs, the emails are offered not to reflect anyone’s state of mind but to prove that certain meetings and hearings happened and that certain lobbying strategies were employed. To the extent that these emails constitute a record of correspondence between Department officials, legislative staffers, members of TASK, and employees of BGR about the opposition to STN’s acknowledgment, the Court recognizes the existence of this paper trail as a part of the admissible record. The truth of the content of the emails written by BGR and by Congressional aides, however, are inadmissible hearsay and will therefore not be considered. Because BGR was hired by a community organization and was not acting in this instance as an agent of the state or federal government, communications from BGR cannot be considered party admissions which fall within a hearsay exception. The Court will also strike emails written by the co-founders of TASK, which is not a party to this action and which was not acting as an agent of the state. Similarly, because no members of Congress or their aides are parties to this case, the emails written by Congressional staffers are not party admissions either. Emails written from staff members of Governor Rell’s office and by employees" }, { "docid": "4056193", "title": "", "text": "tendency for such agencies to have their own websites, Rule 902(5) provides a very useful method of authenticating these publications. When combined with the public records exception to the hearsay rule, Rule 803(8), these official publications posted on government agency websites should be admitted into evidence easily. Rule 902(7) provides that exhibits may be self-authenticated by “[i]nscriptions, signs, tags, or labels purporting to have been affixed in the course of business and indicating ownership, control, or origin.” As one commentator has noted, “[u]nder Rule 902(7), labels or tags affixed in the course of business require no authentication. Business emails often contain information showing the origin of the transmission and identifying the employer-company. The identification marker alone may be sufficient to authenticate an e-mail under Rule 902(7).” Weinstein at § 900.07[3][c], Rule 902(11) also is extremely useful because it affords a means of authenticating business records under Rule 803(6), one of the most used hearsay exceptions, without the need for a witness to testify in person at trial. It provides: “(11) Certified domestic records of regularly conducted activity. The original or a duplicate of a domestic record of regularly conducted activity that would be admissible under Rule 803(6) if accompanied by a written declaration of its custodian or other qualified person, in a manner complying with any Act of Congress or rule prescribed by the Supreme Court pursuant to statutory authority, certifying that the record: (A) was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters; (B) was kept in the course of the regularly conducted activity; and (C) was made by the regularly conducted activity as a regular practice. A party intending to offer a record into evidence under this paragraph must provide written notice of that intention to all adverse parties, and must make the record and declaration available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge them.” This rule was added in the 2000 amendments to the" } ]

[ { "docid": "18058375", "title": "", "text": "905 F.2d at 1427-28; see also Gambale, 377 F.3d at 141-42 (2d Cir.). In this case, the district court, although acknowledging that at least some of the sealed information had already been made public, nevertheless denied Defendants’ motion to unseal the DEA records. Defendants appeal that decision. II. THRESHOLD JURISDICTIONAL QUESTIONS As threshold matters, the United States argues that Defendants lack Article III standing to seek to have the DEA records unsealed and that that motion is, in any event, moot. We disagree. Standing “requires the litigant to prove that he has suffered a concrete and particularized injury that is fairly traceable to the challenged conduct, and is likely to be redressed by a favorable judicial decision.” Hollingsworth v. Perry, — U.S. -, 133 S.Ct. 2652, 2661, 186 L.Ed.2d 768 (2013). Mootness is standing in the context of time, requiring that “[t]he requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout [the litigation’s] existence.” Arizonans for Official English v. Arizona, 520 U.S. 43, 68 n. 22, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997). Here, Defendants have alleged an actual injury: they cannot use the information in the sealed documents. And they want to use that information in a variety of ways. That injury is traceable to the district court’s order sealing the DEA records during Defendants’ trial. And an order from the district court unsealing the documents will redress Defendants’ injury. This is sufficient to establish Defendants’ standing to seek to have the DEA documents unsealed. See United States v. Pickard, 676 F.3d 1214, 1218 n. 2 (10th Cir.2012) (holding, in mandamus action in these same proceedings, that “there is little doubt that Defendants have Article III standing to seek the unsealing of documents in the file because [Defendants] claim a First Amendment interest in communicating information that they already have”) (citing In re Special Grand Jury 89-2, 450 F.3d 1159, 1172-73 (10th Cir.2006)). The Government complains that Defendants do not intend to use the unsealed documents in any proceedings in their criminal case. Nevertheless, Defendants must seek redress for their injury —" } ]

[ { "docid": "1197579", "title": "", "text": "publicity is likely. On the facts of this case, however, given the high level of publicity already demonstrated, the unusually serious nature of the charges, and the contents of the sealed documents, the Associated Press test is met. For the reasons stated, the motion to unseal is denied at the present stage of the case. The motion need not be renewed later and will be treated as continuing. During or before the jury deliberations the court will make a further ruling on the motion. Absent some compelling reason that is not now apparent, the two briefs and the financial affidavits will be unsealed when the verdict is returned. DATED: January 19, 1988. SUPPLEMENTAL ORDER RE MOTION TO UNSEAL JUDICIAL RECORDS The order entered herein on January 19, 1988, provided that the motion of three newspaper publishers to unseal certain pretrial documents would be treated as continuing, and that a subsequent ruling would be made. (Order, p. 1525 supra.) Upon a further review of the authorities the court has determined that redacted copies of the sealed detention briefs should be placed in the open file. That alternative was rejected in the January 19 order on the basis that it would serve no purpose since “[t]o excise the potentially damaging material would leave very little except legal arguments, citations, and background facts which are already public.” (Order, p. 1525 supra.) However, even if the parts that can be unsealed would add little or nothing to what has been said by counsel in open court or in other briefs on file, they should still be disclosed. The first amendment right of access extends to cumulative materials as well as to others. A temporary denial of access should be no greater than necessary to protect the defendant’s sixth amendment rights. See United States v. Brooklier, 685 F.2d 1162, 1172 (9th Cir.1982). Accordingly, the court has redacted a set of the sealed briefs to the extent found to be essential to protect the defendant’s right to a fair trial by an impartial jury. Counsel for the government and for the defendant have examined these today" }, { "docid": "817733", "title": "", "text": "answers to interrogatories or responses to requests for production of documents containing alleged confidential or privileged material filed with the Court under seal. The only Court sealed material consisted of Defendants’ Memorandum in Opposition to Plaintiffs’ Motion to Compel Discovery (docket no. 145); Plaintiffs’ Reply to Defendants’ Opposition to Motion to Compel (docket no. 158); Plaintiffs’ Motion for Leave to File Motion in Limine (docket nos. 171 and 173); Plaintiffs’ Memorandum in Support of Their Motion in Limine (docket no. 172); and Plaintiffs’ Opposition to Defendants’ Motion for a Limited Protective Order (docket no. 182). At the Court’s request, counsel for the parties reviewed the sealed documents to determine if they would voluntarily agree to unseal any of this material. Counsel agreed to the unsealing of Plaintiffs’ Motion to Compel (docket no. 145), and Plaintiffs’ Motion for Leave to File Motion in Limine (docket nos. 171 and 173). Moreover, the Defendants agreed to unseal the remaining pleadings on the condition that a quotation on page 4 of the Plaintiffs’ Opposition to the Defendants’ Motion for a Protective Order (docket no. 182) be redacted; that the Metropolitan Police Department Internal Affairs Division (IAD) investigative report be redacted; and lastly, that two quotations found in the Plaintiffs’ Reply to the Defendants’ Opposition (docket no. 158) be redacted. Right to Intervene Although the defendants’ contend that Channel 9 has no standing to intervene, they do not argue that position. Instead, they strongly urge that Channel 9 has no right of access to pretrial discovery material. But this potential issue was later defused when Channel 9 agreed to limit its request to materials filed with the Court under seal. It is generally recognized that the public has a common law right to inspect and copy judicial records, Nixon v. Warner Communications, Inc., 435 U.S. 589, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978), particularly pleadings and motions upon which the court is called upon to act because it enhances public understanding and promotes public confidence in the judicial system. Littlejohn v. BIC Corp., 851 F.2d 673, 677-78 (3d Cir.1988), Mokhiber v. Davis, 537 A.2d 1100," }, { "docid": "23198199", "title": "", "text": "the bottle, albeit because of what we consider to be the district court’s error. We have not the means to put the genie back. CONCLUSION For the foregoing reasons, we affirm the district court’s order but remand the case to the district court with instructions for it to seal permanently the transcript of the May 27, 2003, conference unless and until all confidential information, including references, direct and indirect, to confidential information, is first redacted from it and no party has otherwise carried its burden of establishing that the document should be sealed in its entirety. . In its letter, the Bank seemed to concede that the court would have jurisdiction to consider such a motion in the event that a third party moved to unseal the documents. We find it difficult to reconcile that concession with the Bank's position that the district court was without jurisdiction to decide whether the documents at issue should be unsealed. . Although we do not know whether the second set of four pages of the diversity study were previously filed under temporary seal, in its July 2, 2003, order, the district court temporarily sealed these pages until July 14, 2003. See Gambale, 2003 WL 21511851, at *2 n. 2, 2003 U.S. Dist. LEXIS 11180, at *6 n. 2. . The Court expresses its thanks to pro bono counsel for his dedicated and highly professional assistance. . See, e.g., Hartford Courant Co. v. Pellegrino, 371 F.3d 49, 57 (2d Cir.2004) (\"[T]he media and the public possess a qualified First Amendment right to inspect docket sheets, which provide an index to the records of judicial proceedings.”); United States v. McVeigh, 119 F.3d 806, 811 (10th Cir.1997) (\"A number of circuits have concluded that the logic of [Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 7-9, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986) (establishing a First Amendment right of access to preliminary hearings in state criminal cases) ] extends to at least some categories of court documents and records, such that the First Amendment balancing test there articulated should be applied before such qualifying documents and" }, { "docid": "18058377", "title": "", "text": "the inability to use this sealed information— through a motion to the court that sealed the documents, asking that court to unseal them. See United Nuclear Corp., 905 F.2d at 1427. The Government further contends that Defendants’ motion to unseal the DEA documents is moot because Defendants already have the sealed information. Even if that is correct, Defendants remain bound by the district court’s order sealing the documents and so they still cannot use that information until the court unseals the documents. Therefore, their motion to unseal the documents is not moot. See Ameziane v. Obama, 620 F.3d 1, 4-5 (D.C.Cir.2010). Because Defendants, thus, have standing to move the district court to unseal the DEA documents, and because their request is not moot, we turn to the district court’s denial of the motion to unseal. III. DISCUSSION A. Standard of review We review for an abuse of discretion the district court’s decisions regarding whether to seal or unseal documents. See Colony Ins., 698 F.3d at 1241 n. 28 (10th Cir.) (decision to seal); see also Nat’l Org. for Marriage v. McKee, 649 F.3d 34, 70 (1st Cir.2011) (decision to unseal). But we review de novo the legal principles that the district court applied in considering such a motion. See United States v. Wecht, 484 F.3d 194, 208 (3d Cir.2007); see also Ameziane, 620 F.3d at 5 (D.C.Cir.). Of course, applying incorrect legal principles is an abuse of discretion. See ClearOne Commc’ns, Inc. v. Bowers, 643 F.3d 735, 773 (10th Cir.2011). B. Common law right of access to judicial documents generally “Courts have long recognized a common-law right of access to judicial records.” Colony Ins., 698 F.3d at 1241 (internal quotation marks omitted). Although this “right is not absolute,” id. (internal quotation marks omitted), there is a “strong presumption in favor of public access,” Mann v. Boatright, 477 F.3d 1140, 1149 (10th Cir.2007). That is particularly so where the district court used the sealed documents “to determine litigants’ substantive legal rights.” Colony Ins., 698 F.3d at 1242. Here, at the very least, the court appeared to have had some familiarity with" }, { "docid": "18058376", "title": "", "text": "1055, 137 L.Ed.2d 170 (1997). Here, Defendants have alleged an actual injury: they cannot use the information in the sealed documents. And they want to use that information in a variety of ways. That injury is traceable to the district court’s order sealing the DEA records during Defendants’ trial. And an order from the district court unsealing the documents will redress Defendants’ injury. This is sufficient to establish Defendants’ standing to seek to have the DEA documents unsealed. See United States v. Pickard, 676 F.3d 1214, 1218 n. 2 (10th Cir.2012) (holding, in mandamus action in these same proceedings, that “there is little doubt that Defendants have Article III standing to seek the unsealing of documents in the file because [Defendants] claim a First Amendment interest in communicating information that they already have”) (citing In re Special Grand Jury 89-2, 450 F.3d 1159, 1172-73 (10th Cir.2006)). The Government complains that Defendants do not intend to use the unsealed documents in any proceedings in their criminal case. Nevertheless, Defendants must seek redress for their injury — the inability to use this sealed information— through a motion to the court that sealed the documents, asking that court to unseal them. See United Nuclear Corp., 905 F.2d at 1427. The Government further contends that Defendants’ motion to unseal the DEA documents is moot because Defendants already have the sealed information. Even if that is correct, Defendants remain bound by the district court’s order sealing the documents and so they still cannot use that information until the court unseals the documents. Therefore, their motion to unseal the documents is not moot. See Ameziane v. Obama, 620 F.3d 1, 4-5 (D.C.Cir.2010). Because Defendants, thus, have standing to move the district court to unseal the DEA documents, and because their request is not moot, we turn to the district court’s denial of the motion to unseal. III. DISCUSSION A. Standard of review We review for an abuse of discretion the district court’s decisions regarding whether to seal or unseal documents. See Colony Ins., 698 F.3d at 1241 n. 28 (10th Cir.) (decision to seal); see also" }, { "docid": "14287731", "title": "", "text": "not relevant to the question of damages, and that admitting it would be needlessly prejudicial to Microsoft. For these reasons, Defendants’ objections to the admission of this report of Microsoft’s earnings under Rules 401 and 403 are sustained. I. UNSEALING DOCUMENTS In a Stipulated Protective Order dated October 3, 2002 (the “Stipulated Protective Order”), the parties provided for the designation of material produced during discovery as protected material to be filed under seal. Fournier now seeks an order unsealing these documents. Defendants object, arguing that Fournier has offered no compelling reason to unseal the given documents. American courts have historically recognized the right to access public records and documents, including evidence in a civil trial, in order to “keep a watchful eye on the workings of public agencies.” Nixon v. Warner Communications, Inc., 435 U.S. 589, 597, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978); see United States v. Amodeo, 44 F.3d 141, 145 (2nd Cir.1995). This right, however, is not absolute. See Nixon, 435 U.S. at 597, 98 S.Ct. 1306; Amodeo, 44 F.3d at 145. The Second Circuit has recently summarized the law concerning sealing and unsealing evidence as follows: [W]hen a district court initially considers a request to seal a file or to approve or take other protective measures, it enjoys considerable discretion in determining whether good cause exists to overcome the presumption of open access to documents filed in our courts. However, after a district court has approved a sealing order, discretion of that breadth no longer exists. Although a district court has power to modify a protective order ..., the required showing must be more substantial than the good cause needed to obtain a sealing order in the first instance. “Absent a showing of improvidence in the grant of a Rule 26(c) protective order or some extraordinary circumstance or compelling need ... a witness should be entitled to rely upon the enforceability of a protective order....” Geller v. Branic Int'l Realty Corp., 212 F.3d 734, 738 (2nd Cir.2000) (quoting Martindell v. Int’l Tel. & Tel. Corp., 594 F.2d 291, 296 (2nd Cir.1979)) (citation omitted); see In re" }, { "docid": "5705320", "title": "", "text": "unseal the transcript placed under seal as well as “all sealed records.” (Motion at p. 1:9-10). In response to Copley’s motion, the Government filed under seal copies of the intercepted telephone transcripts earlier submitted and the federal search warrant affidavit executed on May 14, 2003. DISCUSSION Motion to Intervene Neither the Government nor Copley dispute that the public and press have a presumptive qualified right to seek access to pretrial criminal proceedings and documents. Whether the court treats the motion to intervene as a miscellaneous civil motion seeking access to court records, see In re Application of New York Times, 708 F.Supp. 603, 604 (S.D.N.Y.1989), or as a motion to intervene pursuant to Federal Rule of Civil Procedure 24(b), the result is the same. Copley has standing to seek access to court records. Motion for Access to Sealed Records The First Amendment recognizes “a general right to inspect and copy public records and documents, including judicial documents and records.” Phoenix Newspapers v. United States Dist. Court, 156 F.3d 940, 946 (9th Cir.1998) (quoting Nixon v. Warner Communications, 435 U.S. 589, 597, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978)). However, “there is no right of access which attaches to all judicial proceedings, even all criminal proceedings.” Id.; Times Mirror Co. v. United States, 873 F.2d 1210, 1217 (9th Cir.1989). In addition to a constitutional right of access, “there is a strong presumption in favor of the common law right to inspect and copy judicial records.” Phoenix Newspapers, 156 F.3d at 946. Press-Enterprise II Any discussion of the qualified First Amendment right of public access to criminal proceedings and records must begin with the leading case of Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986) (Press-Enterprise II). Press-Enterprise II sets forth the analytical framework to be followed in a case such as this. Under the two-step framework adopted by the Supreme Court, the court determines in the first instance whether a qualified First Amendment right of access attaches to the proceeding or documents at issue and, if so, then the court determines whether closure serves" }, { "docid": "11291298", "title": "", "text": "country’s strong tradition of access to judicial proceedings.” Hubbard, 650 F.2d at 317 n. 89. The Three-Judge District Court only quotes a snippet of material, which does not indicate any sensitive personal information about individual donors. The quote is highly probative and is narrowly tailored to protect both CDP Plaintiffs and third party privacy interests. As a result, this material will be disclosed to the public as it appears, quoted in the Three-Judge District Court’s opinion. (j) Adams Plaintiffs Adams Plaintiffs have waived their objections to the unsealing of all the documents that they filed with the Court. Adams Pis.’ Supp. Submission Regarding the Status of Docs. Filed Under Seal at 3 (“Therefore, all materials that the Adams plaintiffs filed under seal should be unsealed as of the date specified in the stipulation.”) (emphasis in original). (k) Thompson Plaintiffs Thompson Plaintiffs did not file any objections to the Three-Judge District Court’s Oral Order and have thereby waived any objection to this Court’s order to unseal portions of the record. (1) Defendant Intervenors Defendant Intervenors filed a memorandum, arguing that “the Court can and should- — with a very few exceptions — open the record in this case to public view.” Memorandum in Resp. to the Opp’ns to the Unsealing of the Record at 1. Defendant Intervenors did not object to the disclosure of testimony or documents that they supplied to the Court. See generally id. As a result, Defendant Intervenors have waived any objection to the Court’s order to unseal portions of the record provided by Defendant Intervenors. (2) Non-Party Objections As observed above, under the Hubbard test, the Court must take into consideration the identity of the party raising the objection. Hubbard, 650 F.2d at 319. Indeed, Hubbard observed that “the fact that [the] objection to access is made by a third party weighs in favor of non-disclosure.” Id. at 320. Nonetheless, the D.C. Circuit did not suggest that third party status, alone, was dispositive of this inquiry. Moreover, in Hubbard, the D.C. Circuit did not consider the type of third party documents and testimony at issue in this" }, { "docid": "3056763", "title": "", "text": "file remain sealed until it issued a written order. II. ISSUES PRESENTED Two issues are presented by the government’s motion to continue the sealing the file for an additional nine months: 1. Whether a person whose property is seized pursuant to a search warrant has a constitutional right to examine the affidavit upon which the warrant was issued; and 2. If such a constitutional right exists, under what circumstances, if any, may a court deny or delay such examination? These issues are addressed below. III. CONCLUSIONS OF LAW Once a search warrant has been executed, it is returned to the federal magistrate judge designated in the warrant. Fed.R.Crim.P. 41(c)(1). Upon its return, the magistrate judge attaches all papers connected with the warrant and “file[s] them with the clerk of the district court”. Fed.R.Crim.P. 41(g). Such records, like most court records, are generally available to the public for inspection and copying. The Supreme Court has recognized a First Amendment and common law right of public access to court proceedings and records. See, e.g., Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986); Nixon v. Warner Communications, 435 U.S. 589, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978). Public access to judicial proceedings and records is essential to the proper functioning of the criminal justice system, Press-Enterprise, supra, at 12, 106 S.Ct. at 2742, and serves other important purposes. The right of access to sealed search warrant affidavits is usually litigated by news gathering organizations, whose motions to unseal search warrants or the supporting documents are the subject of most published opinions addressing the issue. See, e.g., id.; In re Search Warrant for Secretarial Area Outside Office of Thomas Gunn, McDonnell Douglas Corp., 855 F.2d 569 (8th Cir.1988) (hereinafter Gunn I); In Re Search Warrant for Second Floor Bedroom, 489 F.Supp. 207 (D.R.I.1980). The right of public access, however, is not absolute, and the Supreme Court has recognized the supervisory power of every court over its own records and files. Nixon, supra, at 597-98, 98 S.Ct. at 1311-12. [T]he right to inspect and copy judicial records is" }, { "docid": "3276411", "title": "", "text": "for ten days so that the defendants may pursue an immediate appeal. Finally, after reviewing the record, the court will not alter the initial allocation of the special master’s fee which split his costs evenly between the plaintiffs and the defendants since the circumstances of this case warranted the appointment of a special master and the current allocation of his fee is equitable. The court will issue and order to this effect in conjunction with this opinion. . The defendants also level an objection. Specifically, they contend that the plaintiffs lack standing to object to the special master’s recommendations because they did not join in Ms. Farrell’s motion to unseal portions of the record. Nevertheless, the special master invited the plaintiffs to brief the issues raised by Ms. Farrell’s motion, and the defendants did not object to this approach at the time. Given their apparent consent to the plaintiffs’ presence in these proceedings, the defendants cannot now claim that the plaintiffs should be prohibited from lodging objections to the report and recommendation issued by the special master. . As an. aside, the court notes that, throughout these proceedings, Ms. Farrell has maintained that she has a First Amendment right to view the sealed records which effectively trumps all other interests in keeping the documents under seal. However, “[t]he Supreme Court has made it plain that all persons seeking to inspect and copy judicial records stand on the same footing, regardless of their motive for inspecting such records. Thus, the press has no greater right of access than does the general public.” See Leucadia, 998 F.2d at 167 (citing Nixon v. Warner Communications, Inc., 435 U.S. 589, 609, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978)). In other words, even if Ms. Farrell does have a First Amendment right to view sealed judicial records because she is a member of the press, the scope of this right is no greater than the scope of the common law right of access. As the Third Circuit has explained, this common law right is not absolute and does not extend to materials which, if disclosed," }, { "docid": "3056764", "title": "", "text": "Superior Court, 478 U.S. 1, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986); Nixon v. Warner Communications, 435 U.S. 589, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978). Public access to judicial proceedings and records is essential to the proper functioning of the criminal justice system, Press-Enterprise, supra, at 12, 106 S.Ct. at 2742, and serves other important purposes. The right of access to sealed search warrant affidavits is usually litigated by news gathering organizations, whose motions to unseal search warrants or the supporting documents are the subject of most published opinions addressing the issue. See, e.g., id.; In re Search Warrant for Secretarial Area Outside Office of Thomas Gunn, McDonnell Douglas Corp., 855 F.2d 569 (8th Cir.1988) (hereinafter Gunn I); In Re Search Warrant for Second Floor Bedroom, 489 F.Supp. 207 (D.R.I.1980). The right of public access, however, is not absolute, and the Supreme Court has recognized the supervisory power of every court over its own records and files. Nixon, supra, at 597-98, 98 S.Ct. at 1311-12. [T]he right to inspect and copy judicial records is not absolute. Every court has supervisory power over its own records and files, and access has been denied where court files might have become a vehicle for improper purposes. Other courts have recognized that this power, under some circumstances, permits courts to seal records pertaining to search warrants. In the Matter of the Sealed Affidavit(s) to Search Warrants Executed on February 14, 1979, 600 F.2d 1256, 1257 (9th Cir.1979). The power to seal court records is necessarily limited by the Constitution and the laws of the United States. Id. The Eighth Circuit has established a First Amendment right of access for documents filed in support of search warrant applications. Gunn I, supra. In Gunn I, agents executed more than forty search warrants on June 14, 1988, as part of an investigation of defense contractors. The warrant for Gunn’s office, the attached affidavits, and all other materials were sealed. A local newspaper filed a motion to unseal the file. The government, Gunn, and the defense contractor who employed Gunn all opposed unsealing the file. The trial" }, { "docid": "6302868", "title": "", "text": "Madison warned, “A popular Government without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy: or perhaps both.... A people who mean to be their own Governors, must arm themselves with the power which knowledge gives.” Like the First Amendment, then, the right of inspection serves to produce “an informed and enlightened public opinion.” Like the public trial guarantee of the Sixth Amendment, the right serves to “safeguard against any attempt to employ our courts as instruments of persecution,” to promote the search for truth, and to assure “confidence in ... judicial remedies.” Id. at 315 n.79 (quoting United States v. Mitchell, 551 F.2d 1252, 1258 (D.C. Cir. 1976), rev’d on other grounds sub nom. Nixon, 435 U.S. 589, 98 S.Ct. 1306). In light of these considerations, there is a “strong presumption in favor of public access to judicial proceedings.” Hubbard, 650 F.2d at 317; see Hardaway v. D.C. Housing Auth., 843 F.3d 973, 980 (D.C. Cir. 2016). That presumption may be outweighed in certain cases by competing interests. In Hubbard, we crafted a six-factor test to balance the interests presented by a given case. See 650 F.2d at 317-22. Specifically, when a court is presented with a motion to seal or unseal, it should weigh: “(1) the need for public access to the documents at issue; (2) the extent of previous public access to the documents; (3) the fact that someone has objected to disclosure, and the identity of that person; (4) the strength of any property and privacy interests asserted; (5) the possibility of prejudice to those opposing disclosure; and (6) the purposes for which the documents were introduced during the judicial proceedings.” EEOC v. Nat’l Children’s Ctr., Inc., 98 F.3d 1406, 1409 (D.C. Cir. 1996) (citing Hubbard, 650 F.2d at 317-22). A seal may be maintained only “if the district court, after considering the relevant facts and circumstances of the particular case, and after weighing the interests advanced by the parties in light of the public interest and the duty of the courts, concludes that justice so requires.”" }, { "docid": "6302869", "title": "", "text": "by competing interests. In Hubbard, we crafted a six-factor test to balance the interests presented by a given case. See 650 F.2d at 317-22. Specifically, when a court is presented with a motion to seal or unseal, it should weigh: “(1) the need for public access to the documents at issue; (2) the extent of previous public access to the documents; (3) the fact that someone has objected to disclosure, and the identity of that person; (4) the strength of any property and privacy interests asserted; (5) the possibility of prejudice to those opposing disclosure; and (6) the purposes for which the documents were introduced during the judicial proceedings.” EEOC v. Nat’l Children’s Ctr., Inc., 98 F.3d 1406, 1409 (D.C. Cir. 1996) (citing Hubbard, 650 F.2d at 317-22). A seal may be maintained only “if the district court, after considering the relevant facts and circumstances of the particular case, and after weighing the interests advanced by the parties in light of the public interest and the duty of the courts, concludes that justice so requires.” In re Nat’l Broad. Co., 653 F.2d 609, 613 (D.C. Cir. 1981) (internal quotation marks and citations omitted). In subsequent cases involving motions to seal or unseal judicial records, the Hubbard test has consistently served as our lodestar because it ensures that we fully account for the various public and private interests at stake. See, e.g., Hardaway, 843 F.3d at 980; Primas v. District of Columbia, 719 F.3d 693, 698-99 (D.C. Cir. 2013); Nat’l Children’s Ctr., 98 F.3d at 1409-11; Johnson v. Greater Se. Cmty. Hosp. Corp., 951 F.2d 1268, 1277 & n.14 (D.C. Cir. 1991). Relying on the common-law right of public access to judicial records, Better Markets contends that the district court improperly sealed parts of the summary-judgment briefs and joint appendix because it did so without applying the Hubbard test. MetLife and FSOC respond with two principal contentions: (1) those documents do not qualify as judicial records subject to the common-law right; and (2) even if they do, the Dodd-Frank Act supersedes that right. We address these contentions in the following two" }, { "docid": "5943961", "title": "", "text": "submissions were made. See August 22, 1997. Nevertheless, they failed to do so until reminded by the court on September 3, 1997. . The August 22, 1997 Order directed the government to file \"any objection to the complete unsealing [of the motion to dismiss] within two business days of the submission.” . Defendants' September 3, 1997 letter requests that the court order the unsealing of the submissions relating to the motion to dismiss and \"all other documents and information which relate to the defendants' pretrial motions.” This request appears to include the documents and information defendants have received in discovery pursuant to the June 26, 1997 Order. If defendants wish to request the unsealing of only submissions made to the court in August 1997 concerning discovery disputes, they shall describe those documents, and the reasons for their unsealing, with particularity and the government shall respond in the manner required by the August 22, 1997 Order. . \"There is not yet any definitive Supreme Court ruling on whether there is a [First Amendment] constitutional right [in addition to the common law right] of access to court documents and, if so, the scope of such right.” United States v. McVeigh, 119 F.3d 806, 812 (10th Cir.1997). The Court of Appeals for the First Circuit has held that there is a qualified First Amendment right to access to pretrial proceedings in a criminal case and, without analysis, to related documents. See In re Globe Newspaper Co., 729 F.2d 47, 59 (1st Cir.1984) (holding that public had a First Amendment right of access to bail proceedings and related documents in United States v. Anguilo, which was trumped by defendants’ paramount interest in a fair trial where hearings and documents involved information derived from electronic surveillance that was subject to a motion to suppress); Globe Newspaper Co. v. Pokaski, 868 F.2d 497, 502 (1st Cir.1989) (holding that First Amendment is implicated in blanket restrictions on access to records of criminal cases not resulting in a conviction). In McVeigh, 119 F.3d at 811-12, the Court of Appeals for the Tenth Circuit recently surveyed the case law" }, { "docid": "1197566", "title": "", "text": "and other parts of the file are unsealed and open to the public with four exceptions: the two financial affidavits filed by the defendant Stella Nickell in support of her application for court-appointed counsel, and the two briefs initially filed by the parties for and against pretrial detention. The question is whether these four documents, or any of them, should be unsealed in whole or in part. For the reasons given below, the court has determined that the motion to unseal must be denied at the present stage. It is expected that the documents will be ordered unsealed, without a further motion or other proceedings, when the jury returns its verdict. Until then, they should remain under seal to protect the defendant’s constitutional right to trial by a fair and impartial jury. The movants publish the three largest daily newspapers in the Western District of Washington. There is no doubt as to their diligence in seeking to protect first amendment rights or as to their standing to bring the present motion. The first amendment right of the public and the press to have access to criminal trials is well established. Press Enterprise Co. v. Superior Court, [478 U.S. 1] 106 S.Ct. 2735, [92 L.Ed.2d 1] (1986), (Press-Enterprise II); Richmond Newspapers, Inc. v. Commonwealth of Virginia, 448 U.S. 555 [100 S.Ct. 2814, 65 L.Ed.2d 978] (1980). Openness is essential because it “enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system” Press Enterprise II, 106 S.Ct. at 2741 (quoting Press Enterprise Co. v. Superior Court, 464 U.S. 501, 504 [104 S.Ct. 819, 821, 78 L.Ed.2d 629] (1984) (Press Enterprise I)). The right of access extends, with certain qualifications, to pretrial proceedings and court documents in criminal cases. Press-Enterprise II, 106 S.Ct. at 2741; CBS, Inc. v. District Court, 765 F.2d 823, 825 (9th Cir.1985); Application of the Herald Co., 734 F.2d 93, 98 (2d Cir.1984); Associated Press v. District Court, 705 F.2d 1143, 1145 (9th Cir.1983); United States v. Chagra, 701 F.2d 354, 364 (5th Cir.1983); United States v." }, { "docid": "11104278", "title": "", "text": "mooted by the December 9 order because the transcripts have, in fact, been unsealed. On that issue, no meaningful relief remains to be granted, and an opinion on the matter would appear to be advisory in nature. We believe, however, that the court’s sealing of the voir dire falls within that class of eases which are “capable of repetition, yet evading review.” Southern Pacific Terminal Co. v. Interstate Commerce Comm’n, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911). See, e.g., Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 6, 106 S.Ct. 2735, 2739, 92 L.Ed.2d 1 (1986) (“Press-Enterprise II”). The “capable of repetition” doctrine is a narrow exception to the mootness principle, appropriately limited to cases satisfying the following two requirements: (1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there is a reasonable likelihood that the same complaining party would be subjected to the same action again. Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 349, 46 L.Ed.2d 350 (1975) (per curiam). See also Dia Navigation Co. v. Pomeroy, 34 F.3d 1255 (3d Cir.1994). In cases such as this, involving the presumptive right of access to the stages of a criminal proceeding, a prohibition on access is tied in some fashion to the ongoing proceeding. As such, it typically is of short duration and could easily evade review. Cf. Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982). Based on the court’s post hoe rationale of protecting the jury during its deliberations, the court could have unsealed the transcripts in a matter of days, once the verdict had been returned. It did not do so for five months. However, the fact that the court has now lifted a ban that was improperly imposed should not work to preclude appellate review. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 563, 100 S.Ct. 2814, 2820, 65 L.Ed.2d 973 (1980) (“This Court has frequently recognized ... that its jurisdiction is not necessarily defeated by the" }, { "docid": "22881958", "title": "", "text": "in this case had access, inter alia, to the courtroom proceedings on the motion to suppress, to the memoranda filed by the parties in connection with that motion, to the trial judge’s memorandum decision on the suppression motion, to the trial judge’s memorandum decision on the negotiated disposition, to the stipulated record which was the basis for the defendants’ convictions and to the actual “trial” of the criminal charges of which the defendants were convicted. None of the documents at issue here was either used in the examination of witnesses during the protracted public hearing on the suppression motion or specifically referred to in the trial judge’s public decision on the motion to suppress or included as part of the publicly available stipulated record on which the defendants’ criminal convictions were had. Id. at 317-18. The court also found it significant that until the unsealing order appealed from was entered, the public had not had access to the documents. The Tenth Circuit considered the propriety of retaining under seal appellate briefs that discussed and quoted from some of several hundred documents that were subject to a district court protective order in Crystal Grower's Corp. v. Dobbins, 616 F.2d 458 (10th Cir. 1980). Appended to the briefs was a copy of the trial court’s sealed opinion that relied on the documents. That court had ordered that the documents be filed under seal because the producing party asserted attorney-client privilege and work-product immunity in them. Oral argument before the court of appeals was open to the public, but the content of individual documents was not discussed. Weighing the interests of the public against those of the parties, the Tenth Circuit found that disclosure was not warranted. First, the court noted that while the general public interest in understanding and monitoring judicial proceedings favored unsealing, the attorney-client privilege and work-product immunity doctrines incorporated a specific public interest. That interest was the encouragement both of full and unimpeded communication between clients and their counsel and of complete preparation by attorneys. In addition, the court found that one party had a substantial interest in nondisclosure," }, { "docid": "22871852", "title": "", "text": "OPINION BETTY B. FLETCHER, Circuit Judge. This case calls upon us to determine when parties other than the original litigants may gain access to materials that a court has placed under protective seal. Private and Public Intervenors appeal. Private Intervenors appeal from the district court’s refusal to unseal discovery materials and court records. Public Intervenors appeal from the dismissal of their second motion to unseal documents. This case follows upon the settlement of a lawsuit that charged State Farm Mutual Automobile Insurance Company (“State Farm”) with fraud. In district court, in-tervenors representing the public moved for public access to sealed court records from that suit. Private Intervenors — individuals involved in collateral litigation against State Farm — sought access to both discovery materials and court records. The district court denied Public Interve-nors’ renewed motion to unseal documents. The district court granted in part the Private Intervenors’ motions to unseal. Three categories of documents, however, remained under seal: (1) various discovery documents, following the denial of the Private Intervenors’ motion to modify the protective order covering them; (2) the summary judgment motions and supporting materials; and (3) other court records that had previously been filed under seal pursuant to the district court’s blanket protective order in discovery. These appeals followed. We affirm the district court’s denial of the Public Intervenors’ motion. We affirm in part and reverse in part the Private Intervenors’ motions to unseal, and remand with instructions. I. FACTUAL AND PROCEDURAL BACKGROUND In the underlying litigation, Debbie Foltz and others alleged that State Farm conspired with California Institute of Medical Research & Technology (“CMR”), which provided medical review services, to defraud insureds of personal injury protection owed to them under their State Farm automobile policies. Both State Farm and CMR were named as defendants in the Foltz litigation. During the discovery process, the defendants requested and the district court entered three protective orders. The first kept confidential all documentary evidence and testimony concerning a motion by State Farm to disqualify the law firm representing the plaintiff. The second specifically protected from disclosure a floppy disk produced by CMR during" }, { "docid": "12591429", "title": "", "text": "is not a sufficient explanation from the district court for us to evaluate whether redaction was a reasonable alternative to sealing the entire complaint. For these reasons, we vacate the district court’s order denying the motion to unseal the complaint. We remand the case for the district court to assess whether redaction of confidential business information is practicable. The court should either unseal a redacted complaint or deny the motion to unseal with an explanation why the entire complaint should remain under seal. . The Honorable Harry F. Barnes, United States District Judge for the Western District of Arkansas. We reject APLC's alternative contention that a right of public access grounded in the First Amendment applies to the antitrust complaint, such that a more stringent standard must be satisfied before the pleading may be sealed. This circuit has not decided whether there is a First Amendment right of public access to the court file in civil proceedings. See Webster Groves Sch. Dist., 898 F.2d at 1377. For such a right to be recognized, the Supreme Court's decisions establish at least two prerequisites: (1) a historical tradition of accessibility, and (2) a significant positive role for public access in the functioning of the judicial process in question. See Press-Enterprise Co. v. Superior Court of Cal., Cnty. of Riverside, 478 U.S. 1, 8, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986). Whatever the evolution of the federal common-law right of access, APLC has not established a strong historical tradition of public access to complaints in civil cases that are settled without adjudication on the merits. See In re Reporters Comm. for Freedom of the Press, 773 F.2d at 1333-36 & n. 8. And public access to the complaint would add little if any value to the judicial process where, as here, the court’s only action was to seal the complaint and sign a stipulated dismissal." }, { "docid": "16439982", "title": "", "text": "unseal grand-jury materials, and because historical value is not among them, the court was wrong to grant Carlson’s petition. II Before turning to the merits of the appeal, we must assure ourselves that both the district court and we have jurisdiction over this matter. Because neither Carlson nor any of his fellow petitioner-appellees were parties to the underlying grand jury investigation, we must confirm that at least-one of them has,standing to bring this claim. See Ezell v. City of Chicago, 651 F.3d 684, 696 n.7 (7th Cir. 2011) (“Where at least one plaintiff has standing, jurisdiction is seeuref,]” citing Vill. Of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977)). And because Carlson does not invoke a Federal Rule of Criminal Procedure as the basis for granting his petition to obtain the records, relying instead on the court’s inherent power, we must confirm that we have subject-matter jurisdiction. We solicited supplemental briefs from the parties on these important points. A 1 As a member of the public, Carlson has standing to assert his claim to the grand-jury transcripts, because they are public records to which the public may seek access, even if that effort is ultimately unsuccessful (perhaps because of sealing, national security concerns, or other reasons). Article III of the Constitution limits the federal courts’ power to the adjudication of actual “Cases” and “Controversies!” U.S. Const. Art. III. The doctrine of standing has “developed ... to ensure that federal courts do not exceed” this authority. Spokeo, Inc. v. Robins, — U.S.--, 136 S.Ct. 1540, 1547, 194 L.Ed.2d 635 (2016). To have standing, a plaintiff “must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Id. (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). We review each element in turn. Carlson’s injury-in-fact is the denial of access to government documents that he has a right to seek. A plaintiff" } ]

[ { "docid": "14959064", "title": "", "text": "still a sufficiently large group to satisfy rule 23(a)(1) where the members of the class are unable to sue individually. See Swanson v. American Consumer Industries, Inc., 415 F.2d 1326, 1333 n.9 (7th Cir. 1969). Therefore, the requirement under rule 23(a)(1) of numerosity is satisfied. Rule 23(a)(2) does not require that all questions of law or fact raised in the litigation be common. There need be only a single issue common to all members of the class. Therefore, when the party opposing the class has engaged in some course of conduct that affects a group of persons and gives rise to a cause of action, one or more of the elements of that cause of action will be common to all of the persons affected. H. Newberg, Class Actions § 1110a, at 180-81 (1977); 3B Moore’s Federal Practice ¶ 23.06-1, at 23-173 (2d ed. 1979); Wright & Miller, Federal Practice & Procedure: Civil § 1763, at 603-04 (1972). Plaintiff contends common questions of both fact and law are presented because the nature of a Title VII action is such that there must be common questions regarding defendants’ employment policies, practices and actions. The court does not agree. Otherwise, every Title VII case would be a class action. See Gresham v. Ford Motor Co., 53 F.R.D. 105, 106 (N.D.Ga. 1970). However, the Complaint does allege across-the-board racial and sexual discrimination. Where an across-the-board or permeating policy of discrimination is alleged in a class action, the requirement under rule 23(a)(2) of commonality is satisfied. See e. g., Rich v. Martin Marietta Corp., 522 F.2d 333, 341 (10th Cir. 1975); Barnett v. W. T. Grant Co., 518 F.2d 543, 547-48 (4th Cir. 1975); Wetzel v. Liberty Mutual Insurance Co., 508 F.2d 239, 255 (3d Cir.), cert. denied, 421 U.S. 1011, 95 S.Ct. 2415, 44 L.Ed.2d 679 (1975); Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122, 1124 (5th Cir. 1969). Therefore, the requirement under rule 23(a)(2) of commonality is satisfied. The first two prerequisites of rule 23, numerosity and commonality, focus on characteristics of the class. The second two prerequisites, typicality and adequacy" } ]

[ { "docid": "14680087", "title": "", "text": "to represent. See Newton v. The Kroger Company, supra; Tuft v. McDonnell Douglas Corp., 581 F.2d 1304, 17 FEP Cases 1442 (8th Cir. 1978). Plaintiffs, by their own testimony, have failed to prove they possess the same interest or have suffered the same injury as a purported class of persons who have applied for and have been rejected, or have sought promotion and been denied such promotion to supervisory and/or administrative positions within the District and, thus, plaintiffs are precluded from representing such a purported class. As to the requirement of numerosity, plaintiffs cannot rely solely upon the bare allegations set forth in their complaint. In the case of Blankenship v. Wometco-Blue Circle, Inc., 59 F.R.D. 308 (ED Tenn.1972), the court stated at page 309: “It is also incumbent upon plaintiff to prove that the class she represents is so numerous that joinder is impractical. . .. There is no magic in the phrase ‘similarly situated’. Designating an action as a class action produces serious consequences for the parties involved, the Court, and others who may be bound. If joinder is practical, it should be attempted. ...” A bare allegation of numerosity does not satisfy the requirement of Rule 23(a)(1). As stated in Rex v. Owens, ex rel. State of Oklahoma, 585 F.2d 432, 436 (10th Cir. 1978): “In class action suits there must be presented some evidence of established, ascertainable numbers constituting the class in order to satisfy even the most liberal interpretation of the numerosity requirement.” Although no court has attempted to select an arbitrary numerical limit which would satisfy the numerosity requirement of Rule 23(a), the courts have, in all cases, including Title VII cases, consistently applied stringent requirements to numerosity. See, e. g., Pruitt v. Commercial Carriers, Inc., 395 F.Supp. 1040, EPD 9344 (ND Ala. 1974), in which class action was denied because it had less than 30 members; Moore v. Louisville Downs, Inc., 7 EPD 9151 (WD Ky.1973), aff’d. 7 EPD 9210 (6th Cir. 1973), where a class action was denied for a group numbering 13; and Mason v. Calgon Corporation, 63 F.R.D. 98 (WD" }, { "docid": "12551451", "title": "", "text": "was not sufficient where joinder is practicable because the majority of class members were controlled by the same corporation); Liberty Lincoln-Mercury, Inc. v. Ford Marketing Corp., 149 F.R.D. 65 (D.N.J.1993) (finding that 123 class members was not sufficient where the class members were large businesses capable of litigating their claims individually). As a general proposition, although the numerosity analysis does not rest on any magic number, see Allen v. City of Chicago, 828 F.Supp. 543, 550 (N.D.Ill.1993), permissive joinder is usually deemed impracticable where the class members number 40 or more. See H. Newberg, Class Actions § 305 (1992); Ikonen v. Hartz Mountain Corp., 122 F.R.D. 258, 262 (S.D.Cal.1988). That standard is met in this case. Southwest concedes that the proposed class would consist of approximately 50 members for purposes of the TILA claim [count I] and approximately 150 members for purposes of the Consumer Fraud Act claim [count II], but argues that these classes are insufficiently numerous to warrant certification. Southwest cites Marcial, In re Cardinal Indus., and Liberty Lincoln-Mercury as support for its argument. See Defendant’s Response in Opposition to Plaintiffs Motion for Class Certification at 4. However, in each of these cases, class certification was denied for reasons unrelated to numerosity. Moreover, the facts of this case are significantly different than those presented in the cases cited by Southwest. In the instant case, the dispute concerns a standard form document signed by all proposed class members, who are otherwise unrelated and would unlikely be motivated to bring individual actions given the relatively small size of the claim. These factors militate in favor of class certification even where the number of class members is relatively small. See, e.g., Swanson v. American Consumer Indus., 415 F.2d 1326, 1333 n. 9 (7th Cir.1969) (finding 40 class members sufficient for certification where individual class members are widely scattered and the amount at issue too small to warrant undertaking individual actions). In the instant case, the Court finds that the proposed classes are sufficiently numerous to make joinder impracticable. Accordingly, we find the numerosity requirement to be satisfied. B. Commonality Rule 23(a)(2)" }, { "docid": "2220823", "title": "", "text": "the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action. See, e.g., In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124, 132-33 (2nd Cir.2001). “In determining the propriety of a class action, the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met.” Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974); In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d at 133. A. NUMEROSITY Rule 23(a)(1) requires the Kings to show that the numerosity of the putative class members makes joinder of all its members “impracticable.” “Impracticable” here does not mean impossible, and the Kings need not precisely quantify the putative class so long as they reasonably estimate its number. See Robidoux v. Celani, 987 F.2d 931, 935 (2nd Cir.1993); In re NASDAQ Market-Makers Antitrust Litig., 169 F.R.D. 493, 509 (S.D.N.Y.1996). “Plaintiffs may rely on reasonable inferences drawn from the available facts in order to estimate the size of the class.” In re NASDAQ Market-Makers Antitrust Litig., 169 F.R.D. at 509. This District has certified, and the Second Circuit has affirmed, classes with members as few as thirty-five to forty. See, e.g., Marcera v. Chinlund, 595 F.2d 1231, 1238 (2nd Cir.1979) (42 members); Korn v. Franchard Corp., 456 F.2d 1206, 1209 (2nd Cir.1972) (70 members); Town of New Castle v. Yonkers Contracting Co., Inc., 131 F.R.D. 38, 41 (S.D.N.Y.1990) (36 members). Fidelis Corp. v. Litton Ind. Inc., 293 F.Supp. 164, 170 (S.D.N.Y.1968) (35-70 members). In this case, the evidence indicates that the number of institutional investors alone was 106. (Affidavit of Daniel Weaver dated May 31, 2002, 1157.) Accordingly, the Court finds that the numerosity requirement for class certification with respect to the § 11 claims has been satisfied. B. COMMONALITY Rule 23(a)(2) requires" }, { "docid": "4239076", "title": "", "text": "of the litigation. Hawaii v. Standard Oil, 405 U.S. 251, 266, 92 S.Ct. 885, 31 L.Ed.2d 184 (1972). Nothing stated above should be construed to suggest the defendants shoulder a burden to demonstrate the absence of a class. The burden of demonstrating compliance with rule 23 is on the plaintiff. Amswiss International Corp. v. Heublein, Inc., 69 F.R.D. 663 (N.D.Ga.1975). However, in making the certification decision, the court makes no inquiry into the merits of suit. Eisen v. Carlisle & Jacqueline, 417 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974). The court will therefore first consider whether plaintiffs have complied with the prerequisites under rule 23(a) and then make the independent consideration of whether there has been compliance under rule 23(b)(3). I Numerosity The proposed class plainly meets the first requirement that its membership is so numerous that joinder is impracticable. The proposed class members are alleged to number over 1000 and to be geographically diverse, living throughout the United States and abroad. See generally 3B Moore’s Federal Practice ¶ 56.07, at 23-273 (2d ed. 1978) (a number exceeding 1000 is obviously sufficient). See, e. g., Swanson v. American Consumer Industries, Inc., 415 F.2d 1326, 1333 n. 9 (7th Cir. 1969) (class of forty). II Commonality Under subsection (a)(2) of the rule, plaintiffs must demonstrate that common questions of law or fact are held by all members of the class. The instant action alleges a common scheme of nondisclosure beginning sometime before 1972 and continuing until July 11, 1975. Where the same scheme operates on a class of open market purchasers over an extended length of time, the requisite of subsection (a)(2) has been met. See Green v. Wolf Corp., 406 F.2d 291 (2d Cir. 1968), cert. denied, 395 U.S. 977, 89 S.Ct. 2131, 23 L.Ed.2d 766 (1969); Lewis v. Capital Mortgage Investments, 78 F.R.D. 295 (D.Md.1977); Kaufman v. Lawrence, 76 F.R.D. 397 (S.D.N.Y.1977). Here, the class members are bound by the existence, nature and materiality of the misleading statements and omissions. This view was expressed in Blackie v. Barrack, 524 F.2d at 902: Confronted with a class of" }, { "docid": "16254007", "title": "", "text": "the fair and efficient adjudication of the controversy.” When evaluating a motion for class certification, the court accepts as true the allegations made in support of certification, and does not examine the merits of the case. Hardin, 814 F.Supp. at 706 (citing, inter alia, Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-78, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974)). The party seeking class certification bears the burden of showing that the requirements for class certification have been met. Id. (citing, inter alia, Gen. Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982)). Failure to establish any one of the requirements precludes class certification. Retired Chicago Police Ass’n v. City of Chicago, 7 F.3d 584, 596 (7th Cir.1993). BACKGROUND The court previously gave extensive treatment to the factual allegations of this case in its opinion denying in part defendants’ motion to dismiss. See In re Neopharm Sec. Litig., No. 02 C 2976, 2003 WL 262369 (N.D.Ill. Feb. 7, 2003). The factual background, therefore, will not be repeated again here. DISCUSSION A. Rule 23(a) 1. Numerosity-Rule 23(a)(1) To meet the numerosity requirement, the class must be so large “that joinder of all members is impracticable.” Keele, 149 F.3d at 594; Fed.R.Civ.P. 23(a)(1). In order to establish numerosity, a plaintiff need not allege the exact number of members of the proposed class. Johnson v. Rohr-Ville Motors, Inc., 189 F.R.D. 363, 368 (N.D.Ill.1999). Generally, where the membership of the proposed class is at least 40, joinder is impracticable and the numerosity requirement is met. Id. (citing Swanson v. American Consumer Indus., Inc., 415 F.2d 1326, 1333 (7th Cir. 1969)). The court is entitled to make “common-sense assumptions that support a finding of numerosity.” Gaspar v. Linvatec Corp., 167 F.R.D. 51, 56 (N.D.Ill.1996). Defendants do not contest numerosity. Although Operating Engineers does not specify the exact number of proposed class members, the court is satisfied that the numerosity requirement is met. As Operating Engineers points out, NeoPharm stock trades on NASDAQ and more than 16 million shares are outstanding. It can be reasonably inferred that hundreds," }, { "docid": "18333136", "title": "", "text": "must initially find that a precisely defined class exists, Roman v. ESB, Inc., 550 F.2d 1343, 1348 (4th Cir.1976), and also that the class representatives are indeed members of the proposed class. East Texas Motor Freight System, Inc. v. Rodriguez, 431 U.S. 395, 403, 97 S.Ct. 1891, 1896, 52 L.Ed.2d 453 (1977). These requirements are implicit prerequisites to the maintenance of any action under Rule 23. Dirks, supra, at 130-131. In the case at bar, plaintiffs have precisely defined the class they wish to represent as all migrant farmworkers who were used or employed by the Barnes at a specific location, during a specific time frame, and who were injured in one of four delineated ways. Thus, the precisely defined class requirement is satisfied. See Roman, supra, at 1348. ■ The second implicit criterion is also met. First, defendants do not contest the named plaintiffs’ status in this regard. Second, the numerous affidavits and depositions of the original plaintiffs filed to date indicate they are all members of the class they seek to represent. See e.g., Declarations of Willie Haywood, Nallie Hairston, Jr., Elbert Grays, Diane Sanders, Dennis Franklin and Marshall Miller attached to plaintiffs’ December 9, 1983 Memorandum of Law in Support of Motion for Class Certification; Deposition of Larry Williams at 11-13; Deposition of Joe Lee Malima at 6-8. 1. Numerosity Rule 23(a)(1) permits a class action only when “the class is so numerous that joinder of all class members is impracticable.” No definite standard exists as to what size class satisfies the requirements of Rule 23(a)(1). See Garcia v. Gloor, 618 F.2d 264, 267 (5th Cir.1980), cert. denied, 449 U.S. 1113, 101 S.Ct. 923, 66 L.Ed.2d 842 (1981). Courts have, however, certified classes composed of as few as eighteen, Cypress v. Newport News General and Nonsectarian Hospital Ass’n., 375 F.2d 648, 653 (4th Cir.1967) and twenty-five members, Philadelphia Electric Co. v. Anaconda American Brass Co., 43 F.R.D. 452, 463 (E.D.Pa.1968). Furthermore, the fact that the precise number of potential members of the class can not be ascertained does not bar class certification. Meyer v. Citizens and Southern" }, { "docid": "14680088", "title": "", "text": "may be bound. If joinder is practical, it should be attempted. ...” A bare allegation of numerosity does not satisfy the requirement of Rule 23(a)(1). As stated in Rex v. Owens, ex rel. State of Oklahoma, 585 F.2d 432, 436 (10th Cir. 1978): “In class action suits there must be presented some evidence of established, ascertainable numbers constituting the class in order to satisfy even the most liberal interpretation of the numerosity requirement.” Although no court has attempted to select an arbitrary numerical limit which would satisfy the numerosity requirement of Rule 23(a), the courts have, in all cases, including Title VII cases, consistently applied stringent requirements to numerosity. See, e. g., Pruitt v. Commercial Carriers, Inc., 395 F.Supp. 1040, EPD 9344 (ND Ala. 1974), in which class action was denied because it had less than 30 members; Moore v. Louisville Downs, Inc., 7 EPD 9151 (WD Ky.1973), aff’d. 7 EPD 9210 (6th Cir. 1973), where a class action was denied for a group numbering 13; and Mason v. Calgon Corporation, 63 F.R.D. 98 (WD Pa.1974), where a class action was denied for a class of 23 persons. The Eighth Circuit Court of Appeals has held that separate classes of 13 applicants and 11 applicants were too small to be certified as a class action. Tuft v. McDonnell Douglas Corporation, supra. Plaintiffs have been unable to demonstrate any awareness of the discrimination inflicted upon the alleged 12 class members named. To simply state names of blacks who have not been employed by the District does not adequately support the claim that such unemployed persons are the victims of discrimination, particularly when plaintiffs have a lack of knowledge with regard to any specific acts of discrimination allegedly perpetrated against these persons. In Foster v. Bechtel Power Corp., 89 F.R.D. 624, 25 FEP Cases 1549 (ED Ark.1981), Judge Henry Woods said: “The Court agrees with the Defendant that broad allegations of class discrimination do not in and of themselves satisfy the numerosity requirement.” In Martin v. Arkansas Arts Center, supra, the Court stated: “While the discovery evidenced before the Court establishes the" }, { "docid": "12551452", "title": "", "text": "argument. See Defendant’s Response in Opposition to Plaintiffs Motion for Class Certification at 4. However, in each of these cases, class certification was denied for reasons unrelated to numerosity. Moreover, the facts of this case are significantly different than those presented in the cases cited by Southwest. In the instant case, the dispute concerns a standard form document signed by all proposed class members, who are otherwise unrelated and would unlikely be motivated to bring individual actions given the relatively small size of the claim. These factors militate in favor of class certification even where the number of class members is relatively small. See, e.g., Swanson v. American Consumer Indus., 415 F.2d 1326, 1333 n. 9 (7th Cir.1969) (finding 40 class members sufficient for certification where individual class members are widely scattered and the amount at issue too small to warrant undertaking individual actions). In the instant case, the Court finds that the proposed classes are sufficiently numerous to make joinder impracticable. Accordingly, we find the numerosity requirement to be satisfied. B. Commonality Rule 23(a)(2) requires the presence of questions of law or fact common to the class. A “common nucleus of operative fact” is gen erally enough to satisfy the commonality requirement. Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir.1992) (citing Franklin v. City of Chicago, 102 F.R.D. 944, 949-50 (N.D.Ill.1984)). A common nucleus of operative fact is typically found where, as in the instant case, the defendants have engaged in standardized conduct toward members of the proposed class. Franklin, 102 F.R.D. 944, 949 (N.D.Ill.1984) (citing Katz v. Carte Blanche Corp., 52 F.R.D. 510, 514 (W.D.Pa. 1971)) (finding class certification appropriate where plaintiff challenged city police department’s standard method of transporting all arrestees); Heartland Communications, Inc. v. Sprint Corp., 161 F.R.D. Ill (D.Kan.1995) (granting class certification where the contracts signed by all proposed class members, while not identical, contained virtually the same provision as that challenged by the named class representative); In re United Energy Corp. Solar Power Modules Tax Shelter Invs., 122 F.R.D. 251 (D.Cal.1988) (finding class certification appropriate where the class claims were primarily grounded on" }, { "docid": "18333137", "title": "", "text": "e.g., Declarations of Willie Haywood, Nallie Hairston, Jr., Elbert Grays, Diane Sanders, Dennis Franklin and Marshall Miller attached to plaintiffs’ December 9, 1983 Memorandum of Law in Support of Motion for Class Certification; Deposition of Larry Williams at 11-13; Deposition of Joe Lee Malima at 6-8. 1. Numerosity Rule 23(a)(1) permits a class action only when “the class is so numerous that joinder of all class members is impracticable.” No definite standard exists as to what size class satisfies the requirements of Rule 23(a)(1). See Garcia v. Gloor, 618 F.2d 264, 267 (5th Cir.1980), cert. denied, 449 U.S. 1113, 101 S.Ct. 923, 66 L.Ed.2d 842 (1981). Courts have, however, certified classes composed of as few as eighteen, Cypress v. Newport News General and Nonsectarian Hospital Ass’n., 375 F.2d 648, 653 (4th Cir.1967) and twenty-five members, Philadelphia Electric Co. v. Anaconda American Brass Co., 43 F.R.D. 452, 463 (E.D.Pa.1968). Furthermore, the fact that the precise number of potential members of the class can not be ascertained does not bar class certification. Meyer v. Citizens and Southern National Bank, 106 F.R.D. 356, 360 (M.D.Ga.1985). It is not necessary that the members of the class be so clearly and completely identified that any member can be presently ascertained. Jones v. Diamond, 519 F.2d 1090, 1100 (5th Cir.1975). In fact, difficulty in immediately identifying all class members makes joinder more impractical and certification more desirable. Doe v. Charleston Area Medical Center, Inc., 529 F.2d 638, 645 (4th Cir.1975). It suffices that it be apparent, either through direct evidence or a reasonable estimate of the numbers of the pur ported class, that the size of the class makes joinder impracticable. In re Asbestos School Litigation, 104 F.R.D. at 428. The decision as to whether joinder is impracticable is essentially a subjective determination based on expediency and the inconvenience of trying individual lawsuits. Pabon v. McIntosh, 546 F.Supp. 1328, 1333 (E.D.Pa.1982). In the case at bar, defendant Carson Barnes testified that approximately 800 migrant laborers were employed by the Barnes from April 12 — August 1, 1983 with 400-500 present on any given day. Although the" }, { "docid": "12551450", "title": "", "text": "the controversy. Chandler maintains that all of the requirements of Rule 23(a) and (b)(3) are met. Southwest contends that Chandler fails to meet any of Rule 23’s requirements. Accordingly, we address each of the requirements for Rule 23(b)(3) certification in turn below. A. Numerosity Rule 23’s first express requirement is that the class be “so numerous that joinder of all members is impracticable.” Fed. R.Civ.P. 23(a)(1). The issue of whether the numerosity requirement is satisfied is extremely fact-specific. Courts have granted class certification to groups smaller than 30, see Riordan v. Smith Barney, 113 F.R.D. 60 (N.D.Ill.1986) (finding 29 class members sufficient in securities fraud case where the class members were geographically diverse), and denied class certification in eases where the proposed class exceeded 100 members. Marcial v. Coronet Ins. Co., 880 F.2d 954 (7th Cir.1989) (denying certification to proposed class of 400-600 members where class membership could only be determined by an inquiry into the individual circumstances of each member); In re Cardinal Indus., 139 B.R. 703 (Bankr.S.D.Ohio 1991) (holding that 205 class members was not sufficient where joinder is practicable because the majority of class members were controlled by the same corporation); Liberty Lincoln-Mercury, Inc. v. Ford Marketing Corp., 149 F.R.D. 65 (D.N.J.1993) (finding that 123 class members was not sufficient where the class members were large businesses capable of litigating their claims individually). As a general proposition, although the numerosity analysis does not rest on any magic number, see Allen v. City of Chicago, 828 F.Supp. 543, 550 (N.D.Ill.1993), permissive joinder is usually deemed impracticable where the class members number 40 or more. See H. Newberg, Class Actions § 305 (1992); Ikonen v. Hartz Mountain Corp., 122 F.R.D. 258, 262 (S.D.Cal.1988). That standard is met in this case. Southwest concedes that the proposed class would consist of approximately 50 members for purposes of the TILA claim [count I] and approximately 150 members for purposes of the Consumer Fraud Act claim [count II], but argues that these classes are insufficiently numerous to warrant certification. Southwest cites Marcial, In re Cardinal Indus., and Liberty Lincoln-Mercury as support for its" }, { "docid": "4243231", "title": "", "text": "plaintiff to establish his right to a class. Senter v. General Motors Corp., 532 F.2d 511 (6th Cir.), cert. denied, 429 U.S. 870, 97 S.Ct. 182, 50 L.Ed.2d 150 (1976); Amswiss International Corp. v. Heublein, 69 F.R.D. 663 (N.D.Ga. 1975). However, in making the certification decision, the court makes no inquiry into the merits of the suit. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974). a. Numerosity “Consistent with his overall burden to show the prerequisites for a class action, the one who asserts the class must show some evidence or reasonable estimate of the number of class members.” 3B Moore’s Federal Practice, ¶23.05[3] (2d ed. 1978). See, e. g., DeMarco v. Edens, 390 F.2d 836 (2d Cir. 1968). To meet this burden, plaintiff need not allege the exact number or identity of the class membership. Wolfson v. Solomon, 54 F.R.D. 584 (S.D.N.Y.1972); Fischer v. Kletz, 41 F.R.D. 377 (S.D.N.Y. 1966). See Newberg, Class Actions § 1105h (1977). Generally, a good faith estimate is sufficient where it is difficult to assess the exact class membership. See Brady v. Lac, Inc., 72 F.R.D. 22 (S.D.N.Y.1976). Plaintiff cites certain statistics indicating that between the 1971-72 and 1974-75 academic years, 7,337 suspensions were ordered by defendants and that between the 1971-72 and 1976-77 academic years, there were 84 expulsions. This amount clearly satisfied the impracticability of joinder requirements for the general class. Of those suspended, 3,418 were black and 64 of the 82 students expelled were black. Thus, the numerosity requirement for the subclass has been met. See generally, 3B Moore’s Federal Practice ¶ 23.05[1], at 23-155 (2d ed. 1978) (number exceeding 1000 is sufficient). See, e. g., Swanson v. American Consumer Industries, Inc., 415 F.2d 1326, 1333 n.9 (7th Cir. 1969) (class of forty). b. Commonality The second precondition or rule 23(a) is that there must be questions of law or fact common to the class members. As to the main class, the allegation that all students are subjected to an allegedly unconstitutional suspension and expulsion procedure is sufficient to meet the commonality requirement. In" }, { "docid": "172704", "title": "", "text": "of the parties. Defendants, in opposition to the motion, primarily argue that class certification is inappropriate since two major elements required under Rule 23(a)(1) and (b)(3) are lacking — the proposed class must be so numerous so as to make joinder of all members impracticable (“numerosity”) and the predominance of common issues over individual ones. Numerosity In determining whether the numerosity requirement is met, a court should depend upon the circumstances surrounding a case rather than “mere numbers” to determine whether joinder is impracticable. See DeMarco v. Edens, 390 F.2d 836, 845 (2d Cir.1968). Nevertheless, numbers are one factor to be weighed pursuant to Rule 23(a)(1). Plaintiff asserts that the proposed class will number about 36. According to Professor Moore, while there is no hard and fast rule, there are observable general tendencies: While there are exceptions, numbers under twenty-one have generally been held to be too few. Numbers between twenty-one and forty have evoked mixed responses and again, while there are exceptions, numbers in excess of forty, particularly those exceeding 100 or 1,000 have sustained the requirement. 3B Moore’s Federal Practice, II 23.05 (1987); see also Davis v. Northside Realty Associates, Inc., 95 F.R.D. 39, 43 (N.D.Ga.1982) (if class has more than 40 people in it then numerosity is satisfied; less than 25 people in it, numerosity is lacking) (quoting A. Miller, An Overview of Federal Class Actions: Past, Present and Future (1977)); Fifth Moorings, 81 F.R.D. at 715 (if class exceeds 40 people there is sufficient numerosity under the Rule). Thus, the instant number of potential class members hovers near the number which most generally agree will satisfy the numerosity requirement. Indeed, even the Second Circuit has stated that there is “little doubt” that a group of 42 New York State county sheriffs satisfied the numerosity requirement of Rule 23(a)(1). Marcera v. Chinlund, 595 F.2d 1231, 1238 (2d Cir.1979), vacated on other grounds, 442 U.S. 915, 99 S.Ct. 2833, 61 L.Ed.2d 281 (1979). District courts in this circuit have not been uniform in construing the numerosity requirement as applied to groups of approximately the size of the instant" }, { "docid": "18325404", "title": "", "text": "determination, Rule 23(a) should be liberally construed to support its policy of favoring the maintenance of class actions. King v. Kansas City S. Indus., Inc., 519 F.2d 20, 25-26 (7th Cir.1975). After certifying a class, the Court retains broad power to modify the definition of the class if it believes that the class definition is inadequate. BuycksRoberson v. Citibank Fed. Sav. Bank, 162 F.R.D. 322, 328-29 (N.D.Ill.1995). II. Analysis Murray argues that the proposed class meets each of the four Rule 23(a) prerequisites and requests that the Court grant certification pursuant to Rule 23(b)(3). (R. 61, Pl.’s Mem. at 5-11) Although E*Trade refutes only the adequacy of Murray as class representative, the Court must consider whether Murray meets each requirement. Valley Drug Co. v. Geneva Pharms., Inc., 350 F.3d 1181, 1188 (11th Cir.2003) (holding that even if a defendant in a proposed class action does not seriously contest whether the Rule 23 requirements have been met, “a court nevertheless has the responsibility of conducting its own inquiry as to whether the requirements of Rule 23 have been satisfied in a particular case”); see also New Cingular Wireless Servs., 232 F.R.D. at 298 (consider ing each Rule 23 requirement although the defendant did not challenge them all). A. Numerosity As a prerequisite to class certification, Rule 23(a)(1) requires that the number of class members be “so numerous that joinder of all members is impracticable.” Courts consider the class size, the geographic dispersion of the class members, the type of relief sought, and the practicability of relitigating the common core issue, when determining whether joinder would be practicable. Radmanovich v. Combined Ins. Co. of Am., 216 F.R.D. 424, 431 (N.D.Ill.2003). As few as forty class members may meet the numerosity requirement, particularly when they are “widely scattered and their holdings are generally too small to warrant undertaking individual actions.” Swanson v. Am. Consumer Indus., Inc., 415 F.2d 1326, 1333 (7th Cir.1969), cited in Murray v. Sunrise Chevrolet, Inc., No. 04 C 7668, 2006 WL 862886, at *1-2, 2006 U.S. Dist. LEXIS 19626, at *4 (N.D.Ill. Mar. 30, 2006); Steinbrecher v. Oswego Police" }, { "docid": "18423990", "title": "", "text": "23(b)(2) is satisfied. Epstein v. Weiss, 50 F.R.D. 387 (E.D.La.1970); A1 Barnett & Son, Inc. v. Outboard Marine Corp., 64 F.R.D. 43 (D.Del.1974); City of Philadelphia v. Emhart Corp., 50 F.R.D. 282 (E.D.Pa.1970). In that plaintiffs have not established that “the class is so numerous that joinder of all members is impracticable” under Rule 23(a)(1), the motion for class certification must be denied. State of Utah v. American Pipe and Construction Co., 49 F.R.D. 17 (C.D.Cal.1969). Holly Springs Funeral Home v. United Funeral Service, 303 F.Supp. 128 (N.D.Miss.1969). Plaintiffs assert that “well over 100 women” are members of the class sought to be represented, thus the joinder and numerosity requirements of Rule 23(a)(1) are met. Such a bare showing does not meet the burden of proof placed upon the plaintiffs. In Tolbert v. Western Electric Co.,56 F.R.D. 108, 113 (D.C.Ga.1972) in holding that a class action was not appropriate, the Court states: “The burden of satisfying the requirements of Rule 23 falls on those who seek to maintain a class action and it is their obligation to make a positive showing that, among other things, the members of the proposed class are so numerous that their joinder is impracticable. Demarco v. Edens, 390 F.2d 836 (2d Cir. 1968); Neddo v. Housing Authority of City of Milwaukee, 335 F.Supp. 1397 (E.D.Wis.1971); Kinzler v. New York Stock Exchange, 53 F.R.D. 75 (S.D.N.Y.1971); Cannon v. Texas Gulf Sulphur Co., 53 F.R.D. 216 (S.D.N.Y.1971). While the failure to enumerate and identify class members with precision is not fatal, Price v. Skolnik, 54 F.R.D. 261 (S.D.N.Y.1971); Vernon J. Rockier & Co. v. Graphic Enterprises, Inc., 52 F.R.D. 335 (D.Minn. 1971), mere speculation as to the existence of the class is insufficient to comply with Rule 23(a)(1). Kinzler v. New York Stock Exchange, supra; Cannon v. Texas Gulf Sulphur Co., supra.” In the case at hand, plaintiffs are speculating that a large number of women who took maternity leave from the Orleans Parish School Board have similar claims. In fact, after this Court decided in 1974 that there should not be a class certification, only one" }, { "docid": "22846901", "title": "", "text": "J. Moore & J. Kennedy, Moore’s Federal Practice H 23.02-2, at 23-96 (1980). The particular requirement at issue here is stated in Rule 23(a)(1): the purported class must be “so numerous that joinder of all members is impracticable.” In order to satisfy his burden with respect to this prerequisite, a plaintiff must ordinarily demonstrate some evidence or reasonable estimate of the number of purported class members. See J. Moore & J. Kennedy, supra, at 123.05[3]. However, this does not mean that the actual number of class members is the determinative question, for “[t]he proper focus [under Rule 23(a)(1)] is not on numbers alone, but on whether joinder of all members is practicable in view of the numerosity of the class and all other relevant factors.” Philips v. Joint Legislative Committee, 637 F.2d 1014, 1022 (5th Cir. 1981). See Garcia v. Gloor, 618 F.2d 264, 267 (5th Cir. 1980), cert, denied, 449 U.S. 1113, 101 S.Ct. 923, 66 L.Ed.2d 842 (1981). Thus, a number of facts other than the actual or estimated number of purported class members may be relevant to the “numerosity” question; these include, for example, the geographical dispersion of the class, the ease with which class members may be identified, the nature of the action, and the size of each plaintiff’s claim. See Garcia v. Gloor, supra, at 267; 7 C. Wright & A. Miller, Federal Practice & Procedure § 1762, at 600-03 (1972). It is not surprising, therefore, that no definitive pattern has emerged under Rule 23(a)(1) in terms of the number of purported class members. Indeed, classes with as few as twenty-five or thirty members have been certified by some courts. See C. Wright & A. Miller, supra, at 597-99. We must emphasize, however, that this issue is — as are other questions involved in the decision to certify a class action — left to the sound discretion of the district court. ' Because the certification of a class action has such a great effect on the district court’s control of litigation before it, and because certification involves substantial fact questions, we will not reverse a" }, { "docid": "23045069", "title": "", "text": "arrest records, and marijuana conviction records was pled as a class action. . For example, in Dale Electronics Inc. v. RCL Electronics, Inc., 53 F.R.D. 531 (D.N.H.1971), the court held that joinder of 13 class members was clearly impracticable where the members were spread out from North Carolina to Nebraska and from California to New York. In Swanson v. American Consumer Industries, 415 F.2d 1326 (7th Cir. 1969), the court held that 40 class members was a sufficiently numerous group to satisfy Rule 23(a)(1) where the class members were widely scattered and their individual claims were too small to warrant instituting separate actions. And, in Afro American Patrolmen’s League v. Duck, 366 F.Supp. 1095 (N.D.Ohio 1973), aff’d in part, remanded in part, 503 F.2d 294 (6th Cir. 1974), a Title VII employment discrimination class action seeking injunctive relief, the court found the numerosity requirement to have been met based upon the large number of future class members, even though the class members’ identities could not be precisely ascertained. See also 7 Wright and Miller, Federal Practice and Procedure § 1771, at 662-63 (1972) (the courts’ permissive attitude toward Title VII suits is reflected by a liberalized application of the Rule 23(a) requirements in Rule 23(b)(2) cases). . Classes with fewer known class members have been certified in the following cases: Horn v. Associated Wholesale Grocers, Inc., 555 F.2d 270, 275 (10th Cir. 1977) (41-46 class members); Cross v. National Trust Life Insurance Co., 553 F.2d 1026, 1030 (6th Cir. 1977) (7 class members); Afro American Patrolmen’s League v. Duck, 503 F.2d 294, 298 (6th Cir. 1974) (35 class members); Jack v. American Linen Supply Co., 498 F.2d 122, 124 (5th Cir. 1974) (51 class members); Arkansas Education Ass’n v. Board of Education, 446 F.2d 763, 765 (8th Cir. 1971) (20 class members); Cypress v. Newport News Hospital Ass’n, 375 F.2d 648, 653 (4th Cir. 1967) (18 class members); Col-ston v. Maryland Cup Corp., 18 Fair Empl. Prac. Cas. 83, 85 (D.Md.1978) (25 class members); Smith v. General Motors Corp., 14 Fair Empl.Prac.Cas. 987, 991 (E.D.Mich.1977) (35 class members); United States" }, { "docid": "962370", "title": "", "text": "which must be met under Rule 23(a) for certification of a class action: (1) the class is so numerous that joinder is impracticable; (2) there are questions of law or fact common to the class; (3) the representative’s claims or defenses are typical of the claims or defenses of the class; and (4) the representative will fairly and adequately protect the class. Defendants argue that plaintiffs fail to satisfy the numerosity and commonality of law or fact requirements. A. Numerosity At a hearing on the motion to amend the class, counsel represented that at that time there were approximately twenty-five (25) residents of NEFSH who were solely mentally retarded; forty-nine (49) residents who were diagnosed as both mentally retarded and mentally ill; and two (2) residents who were “functionally mentally retarded.” V Under Rule 23(c)(4), the Court may divide the class into subclasses, and each subclass will be treated as a class. Each subclass, however, must independently meet the requirements of Rule 23. Johnson v. American Credit Co., 581 F.2d 526, 532 (5th Cir.1978). Defendants contend that the proposed subclasses fail to meet the numerosity requirements of Rule 23(a). As an initial matter, it should be noted that Rule 23(a) will be read liberally in the context of a civil rights suit. Jones v. Diamond, 519 F.2d 1090, 1099 (5th Cir.1975). This “general rule encouraging liberal construction of civil rights class actions applies with equal force to the numerosity requirement of Rule 23(a)(1).” Id. at 1100. The numerosity requirement should not be applied in a yardstick fashion —i.e. whether 25 class members are enough or too few to satisfy Rule 23(a)(1). A cursory review of the case law indicates that classes with fewer have been certified, and those with many more have been denied certification on the basis of lack of numerosity. See, e.g., Kilgo v. Bowman Transportation, Inc., 87 F.R.D. 26, 29-30 (N.D.Ga.1980) (23 and unknown future members satisfied numerosity requirement); Philadelphia Electric Co. v. Anaconda American Brass Co., 43 F.R.D. 452, 463 (D.C.Pa.1968) (class of 25 certified), but see, Crawford v. Western Electric Co., 614 F.2d 1300 (5th" }, { "docid": "962371", "title": "", "text": "contend that the proposed subclasses fail to meet the numerosity requirements of Rule 23(a). As an initial matter, it should be noted that Rule 23(a) will be read liberally in the context of a civil rights suit. Jones v. Diamond, 519 F.2d 1090, 1099 (5th Cir.1975). This “general rule encouraging liberal construction of civil rights class actions applies with equal force to the numerosity requirement of Rule 23(a)(1).” Id. at 1100. The numerosity requirement should not be applied in a yardstick fashion —i.e. whether 25 class members are enough or too few to satisfy Rule 23(a)(1). A cursory review of the case law indicates that classes with fewer have been certified, and those with many more have been denied certification on the basis of lack of numerosity. See, e.g., Kilgo v. Bowman Transportation, Inc., 87 F.R.D. 26, 29-30 (N.D.Ga.1980) (23 and unknown future members satisfied numerosity requirement); Philadelphia Electric Co. v. Anaconda American Brass Co., 43 F.R.D. 452, 463 (D.C.Pa.1968) (class of 25 certified), but see, Crawford v. Western Electric Co., 614 F.2d 1300 (5th Cir.1980) (34 members did not meet numerosity requirement). The primary focus is whether joinder of the proposed class members is impracticable. With regard to the first two proposed subclasses, the solely mentally retarded and the dually diagnosed, the Court is of the opinion that joinder is impracticable. Although the proposed subclasses are relatively small, each subclass includes future residents of NEFSH who are mentally retarded or dually diagnosed. The joinder of unknown persons is clearly impracticable. Phillips v. Joint Legislative Committee, 637 F.2d 1014, 1022 (5th Cir.1981), cert. denied, 456 U.S. 960, 102 S.Ct. 2035, 72 L.Ed.2d 483 (1982); Jones v. Diamond, 519 F.2d at 1100. The consideration of future potential class members is particularly appropriate in this action which seeks only prospective injunctive relief. As such, plaintiffs are attempting to deter conduct which allegedly not only infringes their constitutional rights but will also infringe the rights of future residents of NEFSH. See Gurmankin v. Costanzo, 626 F.2d 1132, 1135 (3d Cir.1980) (numerosity requirements poses less of an obstacle when plaintiffs seek prospective remedial relief" }, { "docid": "13794393", "title": "", "text": "that Elgin violated Title VII under a disparate treatment theory of liability. Elgin urges this Court to decertify the class because the plaintiffs do not satisfy Rule 23(a)’s numerosity requirement for the class as a whole, and fail to establish a pattern or practice of discrimination and therefore cannot satisfy Rule 23(a)’s commonality, typicality, or adequacy of representation requirements. Alternatively, Elgin argues that this Court should limit the class to those applicants who auditioned, in which ease the modified class cannot satisfy the numerosity requirement. C. Prerequisites to Class Certification Under Rule 23(a) Because Plaintiffs, in “seeking to maintain a class action under Title VII must meet ‘the prerequisites of numerosity, commonality, typicality, and adequacy of representation’ specified in Rule 23(a),” this Court will discuss each element in turn. See Falcon, 457 U.S. at 156, 102 S.Ct. 2364 (quoting Gen. Tel. Co. of the Northwest v. E.E.O.C., 446 U.S. 318, 330, 100 S.Ct. 1698, 64 L.Ed.2d 319 (1980)). 1. Numerosity Rule 23(a)(1) requires that the class be so numerous to render joinder of all class members impracticable. “Impracticability does not mean impossibility, but instead requires plaintiffs to prove that it would be inconvenient and difficult to join all proposed members of the class.” Bethards v. Bard Access Sys., Inc., No. 94 C 1522, 1995 WL 75356, at *3 (N.D.Ill. Feb.22, 1995). Although plaintiffs may not rely on conclusory allegations or on speculation regarding class size, they need not reach a threshold number of claims. Allen v. City of Chicago, 828 F.Supp. 543, 550 (N.D.Ill.1993) (citations omitted). See also, e.g. Gaspar v. Linvatec Corp., 167 F.R.D. 51, 56 (N.D.Ill.1996) (noting that a small class does not preclude certification because of failure to satisfy numerosity, and citing eases with similarly small classes). Indeed, courts need not consider solely the number of potential class members when evaluating whether a plaintiff satisfies the numerosity requirement. Gaspar, 167 F.R.D. at 56. To determine whether joinder is impracticable courts must consider the circumstances unique to each case. Patrykus, 121 F.R.D. at 361 (citing Swanson v. Am. Consumer Indus., 415 F.2d 1326, 1333 (7th Cir. 1969)). Such" }, { "docid": "15698754", "title": "", "text": "“circumscribed by some objective set of criteria.” Ridgeway v. I.B.E.W., supra; Carpenter v. Davis, 424 F.2d 257 (5th Cir. 1970). Plaintiffs’ definition of the class for which certification is now being sought clearly meets this requirement. See, generally, Alliance to End Repression v. Rochford, 565 F.2d 975, 977-978 (7th Cir. 1977). A second threshold requirement for class certification is that the representatives are members of that class. Equal Employment Opportunity Comm. v. Whirlpool Corp., 80 F.R.D. 10, 14 (N.D.Ind.1978); Inmates of Lycoming v. Strode, supra. This prerequisite has been described as “the most fundamental requirement of Rule 23(a).” E.E.O.C. v. Whirlpool Corp., supra. The named plaintiffs here are prisoners who are confined at the Indiana State Prison, Michigan City, Indiana, in custody of the Indiana Department of Correction. Complaint at 2 and 4 (Pars. 1 and 7), and, therefore, these representatives are members of the proposed class. A. The class is so numerous that joinder of all members is impracticable. The proposed class consists of the current prisoner population at the Prison, numbering approximately 1900 persons. The class would also include all those persons who, in the future, are incarcerated at I.S.P., potentially hundreds or thousands of additional class members. It is appropriate to include future inmates in a class action challenging prison conditions. Ahrens v. Thomas, 570 F.2d 286, 288 (8th Cir. 1978); Inmates of Lycoming County Prison v. Strode, supra, at 231. While numbers alone do not satisfy the numerosity requirement, they are a relevant consideration. In Swanson v. American Consumer Industries, Inc., 415 F.2d 1326 (7th Cir. 1969), it was held that 151 class members was a sufficient number to satisfy the requirement of F.R.Civ.P. 23(a)(1). Joinder of 1008 class members has also been held to be impracticable. Hopson v. Schilling, 418 F.Supp. 1223 at 1236-1237, as it has when the class included “hundreds of persons,” Ridgeway v. I.B.E.W., supra, at 603. The inclusion within the class of persons who will, in the future, be incarcerated at I.S.P. makes the class even more numerous, and makes joinder of all class members totally impracticable. It has been said" } ]

[ { "docid": "21288165", "title": "", "text": "the district court affirmed. Reasoning as the bankruptcy court did, the district court stated that “equitable tolling is inconsistent with the text of § 727(a)(8)” and that “even if § 727(a)(8) were subject to equitable tolling, it would be inappropriate to apply that doctrine here because Tidewater voluntarily chose not to protect its rights during the period between Williams’ Chapter 7 cases.” From the order of the district court, Tidewater Finance filed this appeal, raising the sole issue of whether § 727(a)(8)’s six-year look-back period should exclude the time during which Williams was protected by Chapter 13 proceedings from the creditors’ efforts to collect debts. II Because the resolution of this issue involves the construction of several provisions of the Bankruptcy Code, I begin with a recitation of the statutory scheme in which § 727(a)(8) functions. Chapter 7 of the Bankruptcy Code provides for the liquidation and distribution of the assets of a debtor upon being adjudged bankrupt and discharged of debts. See 11 U.S.C. § 701 et seq. Under this proceeding, creditors usually receive a portion of the proceeds in lieu of full repayment of debts, and the debtor receives a fresh start through the discharge. See 1 Collier on Bankruptcy ¶ 1.03[2] (15th ed.2006). The discharge absolves the debtor of all debts existing when the Chapter 7 petition was filed, except for certain debts deemed non-dischargeable by 11 U.S.C. § 523. See 11 U.S.C. §§ 727(b), 524. Because a Chapter 7 discharge is such strong medicine, the debtor may receive it only upon satisfying the conditions stated in 11 U.S.C. § 727(a). See 11 U.S.C. § 727(a); see also Kontrick v. Ryan, 540 U.S. 443, 447, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004). One of these conditions is the passage of a six-year period of nondis-chargeability, as provided in § 727(a)(8): The court shall grant the debtor a discharge, unless ... the debtor has been granted a discharge under [Chapter 7 or Chapter 11] in a case commenced within 6 years before the date of the filing of the petition. 11 U.S.C. § 727(a)(8) (2000). Section 727(a)(8) thus" } ]

[ { "docid": "17536402", "title": "", "text": "test for particular claims.” 341 B.R. at 537-38 (quoting In re Williams, 333 B.R. at 74). In other words, equitable tolling of § 727(a)(2)(A) is “inconsistent with the text of the relevant statute,” and thus should not be applied. See Young, 535 U.S. at 49, 122 S.Ct. 1036 (quoting United States v. Beggerly, 524 U.S. 38, 48, 118 S.Ct. 1862, 141 L.Ed.2d 32 (1998)). Other support exists for our holding here, but these courts were also short on analysis. See Melancon v. Jones (In re Jones), 292 B.R. 555, 560 (Bankr.E.D.Tex.2003) (post-Young case; holding that creditor could not “reach back” to debtor’s prior bankruptcy filing to circumvent the one-year period under § 727(a)(2)(A), because the effect of dismissal of the prior bankruptcy case was to nullify it); U.S. Fid. & Guar. Co. v. Hogan (In re Hogan), 208 B.R. 459, 463 n. 3 (Bankr.E.D.Ark.1997) (pre-Young case; recognizing that no Code provision or nonbankruptcy law “suspended” the one-year period in § 727(a)(2)(A); however, the chapter 7 trustee may still be able to avoid any fraudulent transfers under § 544(b)). DeNoce contends that if courts refuse to apply the equitable tolling doctrine to § 727(a)(2)(A), debtors will inequitably be allowed to take advantage of a “loophole” by filing successive chapter 13 bankruptcy cases, then filing a chapter 7 bankruptcy case after the one-year period has expired. The district court in Tidewater responded best to this argument: Congress decided not to address any alleged ‘loophole’ with respect to the relation between the serial filing of Chapter 13 cases and the discharge of a second Chapter 7 case in its recent restructuring of the Bankruptcy Code. See Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub. L. No. 109-8 (2005) [“BAPCPA”]. It is not the role of this Court to override decisions already made by Congress with respect to the discharge of a Chapter 7 debtor. 341 B.R. at 538-39. We agree that if this alleged “loophole” in § 727(a)(2)(A) was of concern to Congress, it would have been addressed with BAPCPA, as was the “loophole” found by the Supreme Court in Young" }, { "docid": "17536409", "title": "", "text": "units, only to the extent that such claims are for'— (A) a tax on or measured by income or gross receipts for a taxable year ending on or before the date of the filing of the petition— (i) for which a return, if required, is last due, including extensions, after three years before the date of the filing of the petition; (ii) assessed within 240 days before the date of the filing of the petition, exclusive of— (I) any time during which an offer in compromise with respect to that tax was pending or in effect during that 240-day period, plus 30 days; and (II) any time during which a stay of proceedings against collections was in effect in a prior case under this title during that 240-day period, plus 90 days[.] . Section 523(a)(1)(A) provides: \"A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt— (1) for a tax or a customs duty — (A) of the kind and for the periods specified in section 507(a)(3) or 507(a)(8) of this title, whether or not a claim for such tax was filed or allowed.” . Section 727(a)(8) provides, in relevant part: \"The court shall grant the debtor a discharge, unless — the debtor has been granted a discharge under this section ... in a case commenced within 8 years before the date of the filing of the petition!.]” . We note that even if § 727(a)(2)(A) were subject to equitable tolling, it would be inappropriate to apply that doctrine here because DeNoce relentlessly sought and obtained the dismissal of Neffs Second Bankruptcy Case, which forced Neff to then file a third one." }, { "docid": "17536381", "title": "", "text": "Case, the bankruptcy court became aware of the transfer of the Lake Harbor Property and the fact that the transfer occurred during the First Bankruptcy Case. Facing resultant dismissal, Neff agreed to record a quitclaim deed transferring the Lake Harbor Property back to himself. He thereafter filed an amended SOFA, reporting both the initial and subsequent transfers. In September 2010, DeNoce moved to dismiss Neffs Second Bankruptcy Case for bad faith, contending, among other things, that the transfer of the Lake Harbor Property to the Retirement Trust during the course of his First Bankruptcy Case was fraudulent. After four days of evidentiary hearings on the matter, Neff agreed to withdraw his opposition to the motion to dismiss as long as he was not barred from filing a chapter 7 case. The bankruptcy court accepted his withdrawal and orally granted DeNoce’s motion dismissing the Second Bankruptcy Case. It entered the related order on November 14, 2011. While the motion to dismiss the Second Bankruptcy Case was pending, DeNoce had filed a first amended nondischargeability complaint against Neff on July 22, 2011, seeking to except his debt from discharge under § 523(a)(6). However, once Neffs Second Bankruptcy Case was dismissed, DeNoce’s § 523 action also was dismissed. D. Neffs third bankruptcy case and the § 727 action Neff filed a third bankruptcy case under chapter .7 on October 24, 2011 (the “Third Bankruptcy Case”), before the order dismissing the Second Bankruptcy Case was entered on November 14. DeNoce filed a complaint seeking to deny Neffs discharge under § 727(a)(2) (the'“727 Complaint”). DeNoce contended that the transfer of the Lake Harbor Property into the Retirement Trust and Neffs acts and schemes to conceal it were fraudulent and done with the intent to avoid paying his creditors’ claims. Neffs answer denied the allegations and asserted several affirmative defenses, including that the 727 Complaint failed to state a claim for which relief could be granted and that it was barred by all applicable statutes of limitations. Neff later moved for partial summary judgment on DeNoce’s claim under § 727(a)(2)(A) (the “PSJ Motion”) on the basis" }, { "docid": "17536383", "title": "", "text": "that the transfer of the Lake Harbor Property into the Retirement Trust, which occurred on April 7, 2010, was more than one year prior to the filing of the Third Bankruptcy Case on October 24, 2011. Alternatively, the date upon which Neff transferred the Lake Harbor Property back into his name — August 4, 2010 — was still more than one year prior to the filing of the Third Bankruptcy Case. Therefore, argued Neff, DeNoce’s claim could not support a denial of discharge, and he was entitled to discharge notwithstanding § 727(a)(2)(A) as a matter of law. DeNoce opposed the PSJ Motion and filed a cross-motion for partial summary judgment (“PSJ Cross-Motion”), contending he was entitled to judgment on his claims under § 727(a)(2)(A) and (B). De-Noce contended that the one-year limitation did not apply because Neff had filed three consecutive bankruptcy cases, and so the actual bankruptcy “process” started with his First Bankruptcy Case in March 2010. Thus, he argued that the “postpetition” transfer on April 7, 2010, supported a claim under § 727(a)(2)(B). Alternatively he argued that since the transfer occurred within one year prior to his Second Bankruptcy Case filed on June 18, 2010, it supported a claim under § 727(a)(2)(A). Finally, DeNoce contended that the one-year limitation did not apply because Neff continued to conceal the transfer, claiming it as an exempt retirement asset up until the day before he filed his PSJ Motion. The bankruptcy court held a hearing on the PSJ Motion on July 11, 2012. After some preliminary argument by the parties, the court ruled that the one-year provision in § 727(a)(2)(A) was a statute of repose and not subject to equitable tolling. Hence, assuming that the transfer occurred when the quitclaim deed transferring the Lake Harbor Property from Neff to the Retirement Trust was recorded on April 7, 2010, that was more than one year prior to the filing of the Third Bankruptcy Case and could not be the basis for a claim under § 727(a)(2)(A). Therefore, because the initial transfer occurred outside the statutory period, Neff would not be denied a" }, { "docid": "17536405", "title": "", "text": "record. Although the quitclaim deed stated that “Grantee asserts this is an exempt asset under California law as a retirement asset or plan,” Neffs failed attempt at trying to preserve the property as an exempt retirement asset did nothing to change the title or his 100% fee interest, as the bankruptcy court correctly noted. As such, no “concealment” occurred -within the meaning of the doctrine. Contrary to DeNoce’s contention, the “continuing concealment” doctrine is not analogous to an “equitable tolling” of the one-year period in § 727(a)(2)(A), and therefore our decision here is not contrary to In re Lawson. The doctrine is not a “tolling” of the statute. Rather, it applies only when the offending conduct — debtor’s intentional concealment of an interest in transferred property — has been ongoing into the year prior to the debtor’s bankruptcy filing. Thus, nothing is being “tolled” with respect to the one-year period. Because § 727(a)(2)(A) is a statute of repose not subject to equitable tolling, De-Noce could not prove one of the necessary elements to deny Neffs discharge — that the transfer of the Lake Harbor Property occurred within one year of the filling of Neffs Third Bankruptcy Case. Accordingly, the bankruptcy court did not err when it determined that no genuine issue of material fact existed and that Neff was entitled to summary judgment as a matter of law. Likewise, because the subject transfer occurred more than one year pri- or to the filing of Neffs Third Bankruptcy Case, it obviously could not have occurred postpetition. Hence, DeNoce had no claim under § 727(a)(2)(B), and the bankruptcy court did not err in denying his PSJ Cross-Motion. VI. CONCLUSION For the foregoing reasons, we AFFIRM. . Unless specified otherwise, all chapter, code and rule references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, and the Federal Rules of Bankruptcy Procedure, Rules 1001-9037. The Federal Rules of Civil Procedure will be referred to as \"Civil Rules.” . Neff's dental license was revoked by the California dental board in January 2010 due to his substance abuse and other issues. . DeNoce, a former" }, { "docid": "14710999", "title": "", "text": "over this matter pursuant to 28 U.S.C. §§ 1334(b) and 157(a) and (b). Venue is appropriate under 28 U.S.C. § 1409. Notice of the hearing is proper in all respects. II.FACTUAL BACKGROUND The facts for the purposes of this motion are not in dispute. The Debtors filed for chapter 7 bankruptcy relief on May 20, 2005. Discharge was granted on August 31, 2005, and the case was closed on September 8, 2005. On November 7, 2006, the case was reopened at the request of the Trustee. On September 22, 2008, the Trustee filed this adversary proceeding seeking revocation of the Debtors’ discharge pursuant to § 727(d)(2), and for a money judgment for improperly retaining property of the bankruptcy estate that was never scheduled. The Debtors moved to dismiss the complaint as untimely, arguing that it has been more than three years since their discharge and the closing of their case. III.DISCUSSION Section 727(e)(2) limits a trustee’s ability to seek a revocation of discharge under section 727(d)(2), stating, in relevant part, “[t]he trustee, ... may request a revocation of a discharge ... before the later of (A) one year after the granting of such discharge; and (B) the date the case is closed.” In this case the Debtors were granted a discharge on August 31, 2005, and the case was closed on September 8, 2005. The Trustee brought this proceeding on September 22, 2008 — more than three years after the Debtors’ discharge and the closing of the case. The Debtors argue that based on the plain language of the statute, the Trustee’s motion is untimely and the adversary proceeding should be dismissed. The Trustee, on the other hand, argues that § 727(e)(2) does not bar his complaint for the following reasons. First, the case was never fully closed under § 350 because the Debtors had concealed a property of the estate that was never fully administered. Second, under the doctrine of equitable tolling the Court should toll the statutory deadlines set forth in § 727(e)(2). A. The Effect of § 350(a) The Trustee’s first argument is that the case was" }, { "docid": "17536384", "title": "", "text": "Alternatively he argued that since the transfer occurred within one year prior to his Second Bankruptcy Case filed on June 18, 2010, it supported a claim under § 727(a)(2)(A). Finally, DeNoce contended that the one-year limitation did not apply because Neff continued to conceal the transfer, claiming it as an exempt retirement asset up until the day before he filed his PSJ Motion. The bankruptcy court held a hearing on the PSJ Motion on July 11, 2012. After some preliminary argument by the parties, the court ruled that the one-year provision in § 727(a)(2)(A) was a statute of repose and not subject to equitable tolling. Hence, assuming that the transfer occurred when the quitclaim deed transferring the Lake Harbor Property from Neff to the Retirement Trust was recorded on April 7, 2010, that was more than one year prior to the filing of the Third Bankruptcy Case and could not be the basis for a claim under § 727(a)(2)(A). Therefore, because the initial transfer occurred outside the statutory period, Neff would not be denied a discharge. An order granting the PSJ Motion was entered on August 10, 2012 (the “PSJ Order”). DeNoce timely filed a motion to reconsider the PSJ Order, which the bankruptcy court denied. The only issue before it was whether the one-year “lookback” period in § 727(a)(2)(A) is a statute of repose or a statute of limitations subject to equitable tolling. Noting the lack of any controlling authority on the matter, the bankruptcy court reviewed Womble v. Pher Partners (In re Womble), 299 B.R. 810 (N.D.Tex.2003), aff'd on other grounds, 108 Fed.Appx. 993 (5th Cir.2004) (“Womble ”), which, relying upon Young v. United States, 535 U.S. 43, 122 S.Ct. 1036, 152 L.Ed.2d 79 (2002), held that the one-year period in § 727(a)(2)(A) is a limitation period that can be equitably tolled, and a Fourth Circuit case, Tidewater Fin. Co. v. Williams (In re Williams), 498 F.3d 249, 257 (4th Cir.2007) (2-1 decision) (‘Tidewater ”), which criticized Womble and held that the eight-year lookback period for denial of discharge under § 727(a)(8) is a statute of repose not" }, { "docid": "17536406", "title": "", "text": "discharge — that the transfer of the Lake Harbor Property occurred within one year of the filling of Neffs Third Bankruptcy Case. Accordingly, the bankruptcy court did not err when it determined that no genuine issue of material fact existed and that Neff was entitled to summary judgment as a matter of law. Likewise, because the subject transfer occurred more than one year pri- or to the filing of Neffs Third Bankruptcy Case, it obviously could not have occurred postpetition. Hence, DeNoce had no claim under § 727(a)(2)(B), and the bankruptcy court did not err in denying his PSJ Cross-Motion. VI. CONCLUSION For the foregoing reasons, we AFFIRM. . Unless specified otherwise, all chapter, code and rule references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, and the Federal Rules of Bankruptcy Procedure, Rules 1001-9037. The Federal Rules of Civil Procedure will be referred to as \"Civil Rules.” . Neff's dental license was revoked by the California dental board in January 2010 due to his substance abuse and other issues. . DeNoce, a former attorney, was disbarred by the California State Bar in 1997. . About one year later, on September 27, 2011, the chapter 13 trustee also moved to dismiss Neffs Second Bankruptcy Case for a variety of reasons, including an objection to Neff's use of the Lake Harbor Property as a retirement vehicle and the fact that Neff had insufficient income to fund a plan. . Because DeNoce had not properly set the PSJ Cross-Motion for hearing, the bankruptcy court did not hear that motion until August 22, 2012. It is not entirely clear what happened after that, but the PSJ Cross-Motion was ultimately denied. . Generally, orders granting partial summary judgment without the certification required by Civil Rule 54(b) are interlocutory orders. Belli v. Temkin (In re Belli), 268 B.R. 851, 856-57 (9th Cir. BAP 2001). “Unlike final orders, interlocutory orders decide merely one aspect of the case without disposing of the case in its entirety on the merits.” Thomas J. Salerno & Jordan A. Kroop, Bankruptcy Litigation & Practice: A Practitioner's Guide § 3.16[B], at" }, { "docid": "18502429", "title": "", "text": "to any issue raised by these adversary proceedings. Similarly, the Bank alleges that Burgess Sr. falsely represented on Schedule B-2(e) that the value of his personal property was $1,000. In an effort to substantiate its contention, the Bank relied entirely on the fact that Burgess Sr., approximately two years prior to bankruptcy, submitted a financial statement in which he valued unidentified \"personal property” at $60,000. The Bank’s contention compares \"apples and oranges.” Official Form 6, Schedule B-2(e) (1983), relates exclusively to \"Wearing apparel, jewelry, firearms, sports equipment and other personal possessions.” Official Form 6, Schedule B (1983), contained more than twenty-one required listings of other types of personal property, from annuities to vehicles. Moreover, the Bank presented no evidence as to the value of the property listed on Schedule B-2(e). Additionally, the Bank alleged that Burgess Sr. failed to list two joint bank accounts in his and his wife’s name. The Bank introduced no evidence that any funds in these accounts belonged to Burgess Sr. The evidence before the bankruptcy court showed that there were no funds in either account at the time of the filing of the involuntary chapter 7 petition. Although the failure to list a bank account for the fraudulent purpose of concealing voidable prepetition transfers certainly would satisfy the \"materiality” requirement under Bankruptcy Code § 727(a)(4)(A), see In re Chalik, 748 F.2d 616, 618 (11th Cir.1984) (\"The subject matter of a false oath is ‘material,’ and thus sufficient to bar discharge, if it bears a relationship to the bankrupt’s business transactions or estate, or concerns the discovery of assets, business dealings, or the existence and disposition of property.\") (emphasis added), the Bank presented no evidence of any such fraudulent purpose in the present case. . The Bank asserts that these transfers constituted an unexplained \"loss or deficiency of assets\" warranting denial of a discharge in bankruptcy pursuant to Bankruptcy Code § 727(a)(5). Since the bankruptcy court supportably credited the Burgesses’ testimony that these proceeds were used to meet BEMC payrolls, its ruling that the transfer did not result in a “loss or deficiency of assets to" }, { "docid": "17536401", "title": "", "text": "limitations provision. Id. at 256 n. 7. Although one could argue that § 727(a)(8) and § 727(a)(2) serve different purposes, they do share one important similarity — neither expressly provides for tolling and neither contains the two required characteristics for a limitations period which can be equitably tolled. Therefore, we find the reasoning in Tidewater persuasive and agree that Young does not control the outcome here. We are particularly persuaded by the following discussion from the district court in Tidewater and believe it applies equally to § 727(a)(2)(A): [I]f equitable tolling were applied to § 727(a)(8), every debt encompassed by a debtor’s Chapter 7 petition — not just the debt of the single creditor seeking equitable tolling — would not be discharged. Thus, potentially numerous creditors would unwittingly and perhaps undeservedly benefit from relief granted to a single creditor. This situation seems inconsistent with Congress’ determination that specific categories of debt are excepted from discharge under § 727(b) and § 523, and effectively “con-vertís] the disqualifications of a debtor from a discharge into a dischargeability test for particular claims.” 341 B.R. at 537-38 (quoting In re Williams, 333 B.R. at 74). In other words, equitable tolling of § 727(a)(2)(A) is “inconsistent with the text of the relevant statute,” and thus should not be applied. See Young, 535 U.S. at 49, 122 S.Ct. 1036 (quoting United States v. Beggerly, 524 U.S. 38, 48, 118 S.Ct. 1862, 141 L.Ed.2d 32 (1998)). Other support exists for our holding here, but these courts were also short on analysis. See Melancon v. Jones (In re Jones), 292 B.R. 555, 560 (Bankr.E.D.Tex.2003) (post-Young case; holding that creditor could not “reach back” to debtor’s prior bankruptcy filing to circumvent the one-year period under § 727(a)(2)(A), because the effect of dismissal of the prior bankruptcy case was to nullify it); U.S. Fid. & Guar. Co. v. Hogan (In re Hogan), 208 B.R. 459, 463 n. 3 (Bankr.E.D.Ark.1997) (pre-Young case; recognizing that no Code provision or nonbankruptcy law “suspended” the one-year period in § 727(a)(2)(A); however, the chapter 7 trustee may still be able to avoid any fraudulent transfers" }, { "docid": "6634473", "title": "", "text": "issued to the Debtor’s son, Oliver Moeritz, on November 21, 2002. (UST’s Exhibit 4). The Debtor testified, however, that he purchased the vehicle for his own use in connection with his occupation as a realtor, and that he was in possession of the car. (Transcript, pp. 27, 38-39, 43, 47). One month after the purchase of the Toyota, on December 20, 2002, the Debtor filed his petition under chapter 7 of the Bankruptcy Code. On his “Schedule B— Personal Property,” the Debtor represented that he owned no bank accounts or other financial accounts, no interest in any business, and no vehicles. Additionally, on his Statement of Financial Affairs, the Debtor represented that he had made no gifts or other transfers within the one-year period prior to the filing of the petition, and that he had owned no interest in any business within the six-year period prior to the bankruptcy. The Schedules and Statement of Financial Affairs were signed on December 18, 2002. On March 24, 2003, the UST filed a Complaint Objecting to the Entry of the Debtor’s Discharge. (Doc. 1). In the Complaint, the UST requested that the Court deny the Debtor’s discharge pursuant to § 727(a)(2)(A), § 727(a)(2)(B), § 727(a)(4)(A), and § 727(a)(4)(D) of the Bankruptcy Code. In May and June of 2003, approximately two months after the Complaint was filed, the Debtor paid the total sum of $23,912.00 to the Chapter 7 Trustee. The amount paid to the Trustee represents the amount transferred to the Ohio Account in October and November of 2002, as well as the nonexempt portion of the personal property scheduled by the Debtor. The Debtor’s chapter 7 case has been fully administered, dividends have been disbursed to creditors, and the Chapter 7 Trustee has filed her Final Account. Discussion Section 727(a) of the Bankruptcy Code provides in part: 11 U.S.C. § 727. Discharge (a) The court shall grant the debtor a discharge, unless— (2) the debtor, with intent to hinder, delay, or defraud a creditor or an officer of the estate charged with custody of property under this title, has transferred, removed, destroyed," }, { "docid": "4634431", "title": "", "text": "property continued to the time of the bankruptcy filing. The court rejected the debtor’s argument that the transfer fell outside of the one year period set forth in § 727(a)(2)(A), despite the fact that the paper transfer occurred seven years before, and affirmed the lower courts’ decisions denying the debtor a discharge. The Fifth Circuit followed the continuing concealment doctrine to hold: “[T]he concealment of an interest in an asset that continues, with the requisite intent, into the year before bankruptcy constitutes a form of concealment which occurs within the year before bankruptcy and, therefore, that such concealment is within the reach of section 727(a)(2)(A).” Id. at 555. This Court further considers as persuasive the policy behind § 554 concerning the abandonment of estate assets at the time of closing of a case. See 11 U.S.C. § 554. Under this section, scheduled assets not otherwise administered are deemed abandoned to the debtor. However, under § 554(d) unscheduled assets remain property of the estate and are not deemed abandoned to the debtor at the time of the closing of the case; thus, the debtor is prevented from profiting from his own fraud by having undisclosed assets deemed abandoned to him. In re Petty, 93 B.R. at 212 “Generally, there can be no abandonment, by mere operation of law, of property that was not listed in the debtors’ schedules or otherwise disclosed to creditors.” Id. This policy should be applicable to situations arising under other Code sections in which fraudulent conduct of a debt- or may be present. The Court is aware of cases in which some courts have not extended or tolled the one year limitations period set forth in another subsection of § 727(e). However, these cases dealt with the limitations period set forth in § 727(e)(1), a subsection tied to other grounds for revoking discharge than that presented here. The limitations period contained in § 727(e)(1) governs the timeliness of actions brought under § 727(d)(1), which provides for revocation if the “discharge was obtained through the fraud of the debtor, and the requesting party did not know of such" }, { "docid": "4634435", "title": "", "text": "the period began. Id. at 1006. The court denied relief under this equitable doctrine because the creditor had other avenues available to prevent the time period from expiring, i.e., he could have filed a request to extend the bar date, or if fraud was later found, a complaint to revoke discharge. Id. at 1007. Again, this Court does not consider the Santos case applicable by analogy to the case at bar as it did not involve continuing concealment by the debtor of property of the estate. Lastly, the Court realizes that the discharge granted debtors under § 727 provides them with a “fresh start” to begin anew. However, the public policy behind the “fresh start” doctrine applies only to the honest debtor. This policy was affirmatively reiterated by the Fifth Circuit when reviewing the history of the Bankruptcy Code’s nondischargeable debt provisions. See Matter of Boyle, 819 F.2d 583, 587 (5th Cir.1987). In this case, the Fifth Circuit stated that “[t]he general policy of bankruptcy law favors allowing the debtor to discharge debts and to make a fresh start. This policy, however, is subject to exceptions for certain types of debts, including from a debtor’s malfeasance.” Id. at 587. Although the Code is protective of a debt- or’s ability to receive a discharge, e.g., by requiring strict interpretations of exceptions to discharge, the fresh start doctrine should not be applied to safeguard a debtor who conceals property beyond the limitations period set out in § 727(e)(2) so as to allow him to benefit from his own misdeeds. To the extent the Defendant concealed the existence of his interest in a condemnation proceeding in California and later received property therefrom which is property of the estate, the statute of limitations period has been tolled to allow the Plaintiff to pursue his causes of action against the Defendant. CONCLUSION The Defendant’s Motion to Dismiss is a motion under Bankruptcy Rule 7012(b). As such, the Court must accept as true all the allegations in Plaintiff’s Complaint. Plaintiff’s cause of action is not barred by the statute of limitations period set forth in §" }, { "docid": "17536379", "title": "", "text": "first impression in this circuit: Whether the one-year “lookback” period in § 727(a)(2)(A) is a “statute of limitations” subject to equitable tolling or whether it is a “statute of repose” not subject to equitable tolling. We hold that the one-year period is a statute of repose, and we AFFIRM. I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY A.Events leading to Neffs first bankruptcy case In 2007, Neff, a former dentist, treated DeNoce with the surgical placement of eight dental implants. It was a major full-day surgery. Within a month or so, each tooth had either fallen out or failed. Neff performed further surgery to correct the eight implants, but, within a couple of months, each fell out or failed again. De-Noce still apparently suffers from the improper implant procedures. In October 2008, DeNoce filed suit against Neff in state court for medical malpractice. Ultimately, DeNoce was awarded a judgment of $310,000. In March 2008, a few months prior to DeNoce’s filing of the medical malpractice action, Neff executed a revocable living trust (the “Retirement Trust”). The trust res consisted solely of certain real property (the “Lake Harbor Property”), which Neff had owned since 1978. According to Neff, after executing the Retirement Trust at his attorney’s office, he was sent home to prepare a quitclaim deed transferring the Lake Harbor Property from himself to the Retirement Trust. It is undisputed, however, that the quitclaim deed was not recorded until two years later, on April 7, 2010. B. The first bankruptcy case Neff filed his first chapter 13 bankruptcy case on March 4, 2010 (the “First Bankruptcy Case”). It was dismissed on April 9, 2010, for Neff’s failure to appear at the scheduled § 341(a) meeting of creditors. C. The second bankruptcy case Neff filed his second chapter 13 bankruptcy case two months later on June 18, 2010 (the “Second Bankruptcy Case”). In his Schedule B, Neff reported that the Retirement Trust owned the Lake Harbor Property. He did not disclose the recent transfer of it to the Retirement Trust in Question 10 of his Statement of Financial Affairs (“SOFA”). During the Second Bankruptcy" }, { "docid": "17536403", "title": "", "text": "under § 544(b)). DeNoce contends that if courts refuse to apply the equitable tolling doctrine to § 727(a)(2)(A), debtors will inequitably be allowed to take advantage of a “loophole” by filing successive chapter 13 bankruptcy cases, then filing a chapter 7 bankruptcy case after the one-year period has expired. The district court in Tidewater responded best to this argument: Congress decided not to address any alleged ‘loophole’ with respect to the relation between the serial filing of Chapter 13 cases and the discharge of a second Chapter 7 case in its recent restructuring of the Bankruptcy Code. See Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub. L. No. 109-8 (2005) [“BAPCPA”]. It is not the role of this Court to override decisions already made by Congress with respect to the discharge of a Chapter 7 debtor. 341 B.R. at 538-39. We agree that if this alleged “loophole” in § 727(a)(2)(A) was of concern to Congress, it would have been addressed with BAPCPA, as was the “loophole” found by the Supreme Court in Young with the codification of § 507(a)(8)(A)(ii)(IR. We also disagree with De-Noce’s argument that the doctrine of “continuing concealment” applies in this case. Under this doctrine, discharge can be denied under § 727(a)(2)(A), even though the subject transfer occurred more than one year before the debtor filed bankruptcy, if the debtor allowed his or her interest in the property to remain concealed into the year preceding the bankruptcy filing. In re Lawson, 122 F.3d at 1240. “Concealment” in this sense focuses on the debtor’s intent to conceal any “interest” in the transferred property into the year before the bankruptcy filing, not whether the debtor intended to conceal “the transfer.” Id. Although Neff did not initially disclose the transfer of the Lake Harbor Property in his first two bankruptcy cases, no concealment of his “interest” in it occurred into the year before he filed his Third Bankruptcy Case, thereby triggering the doctrine. Within the year before he filed his third case, title to the Lake Harbor Property was in his name only as a matter of public" }, { "docid": "17536382", "title": "", "text": "Neff on July 22, 2011, seeking to except his debt from discharge under § 523(a)(6). However, once Neffs Second Bankruptcy Case was dismissed, DeNoce’s § 523 action also was dismissed. D. Neffs third bankruptcy case and the § 727 action Neff filed a third bankruptcy case under chapter .7 on October 24, 2011 (the “Third Bankruptcy Case”), before the order dismissing the Second Bankruptcy Case was entered on November 14. DeNoce filed a complaint seeking to deny Neffs discharge under § 727(a)(2) (the'“727 Complaint”). DeNoce contended that the transfer of the Lake Harbor Property into the Retirement Trust and Neffs acts and schemes to conceal it were fraudulent and done with the intent to avoid paying his creditors’ claims. Neffs answer denied the allegations and asserted several affirmative defenses, including that the 727 Complaint failed to state a claim for which relief could be granted and that it was barred by all applicable statutes of limitations. Neff later moved for partial summary judgment on DeNoce’s claim under § 727(a)(2)(A) (the “PSJ Motion”) on the basis that the transfer of the Lake Harbor Property into the Retirement Trust, which occurred on April 7, 2010, was more than one year prior to the filing of the Third Bankruptcy Case on October 24, 2011. Alternatively, the date upon which Neff transferred the Lake Harbor Property back into his name — August 4, 2010 — was still more than one year prior to the filing of the Third Bankruptcy Case. Therefore, argued Neff, DeNoce’s claim could not support a denial of discharge, and he was entitled to discharge notwithstanding § 727(a)(2)(A) as a matter of law. DeNoce opposed the PSJ Motion and filed a cross-motion for partial summary judgment (“PSJ Cross-Motion”), contending he was entitled to judgment on his claims under § 727(a)(2)(A) and (B). De-Noce contended that the one-year limitation did not apply because Neff had filed three consecutive bankruptcy cases, and so the actual bankruptcy “process” started with his First Bankruptcy Case in March 2010. Thus, he argued that the “postpetition” transfer on April 7, 2010, supported a claim under § 727(a)(2)(B)." }, { "docid": "17536394", "title": "", "text": "at 771). Section 727(a)(2)(A) does not share either one of the required characteristics of a statute of limitations. It does not provide a creditor with a specified period of time for pursuing a claim to preserve a remedy, and the one-year period is not dependent on the discovery or accrual of a claim. Rather, the one-year period is based on when the debtor files the bankruptcy petition. D. Analysis Nonetheless, our inquiry does not stop here, as some courts have found that certain “lookback” periods in the Bankruptcy Code, including the one-year period in § 727(a)(2)(A), are a limitations period that can be tolled for the reasons argued by DeNoce. The only published decision squarely addressing this issue with respect to § 727(a)(2)(A) is Womble. In Womble, the district court affirmed the bankruptcy court’s decision to apply equitable tolling to § 727(a)(2)(A) and agreed that Young compelled this outcome. 299 B.R. at 812-13. In Young, which DeNoce contends is controlling, debtors failed to include payment with their 1992 federal income tax return, due and filed on October 15, 1993. 535 U.S. at 44^15, 122 S.Ct. 1036. They filed a chapter 13 bankruptcy case on May 1, 1996, still owing the bulk of their $15,000 tax debt. Id. at 45, 122 S.Ct. 1036. Debtors moved to dismiss that case on October 23, 1996. One day before the bankruptcy court dismissed it, on March 12, 1997, debtors filed a second bankruptcy case, this time under chapter 7. Debtors received a discharge in June 1997, and the chapter 7 case was closed in September 2007. Upon the IRS’s subsequent demand for payment of the 1992 tax debt, debtors moved to reopen their chapter 7 case to have the debt declared discharged. They contended that the tax debt fell outside the three-year lookback period in §§ 507(a)(8)(A) and 523(a)(1)(A), and therefore had been discharged, because it pertained to a tax return due on October 15, 1993, more than three years before their chapter 7 filing on March 12, 1997. The bankruptcy court reopened the case and ruled for the IRS, holding that the lookback" }, { "docid": "2568644", "title": "", "text": "contravene the purpose of section 727(a)(2), and violate the spirit and letter of the Bankruptcy Code. Since the Debtor transferred property, both one year before filing his petition and after filing his peti tion, with the intent to hinder, delay, or defraud his creditors, pursuant to section 727(a)(2)(A) and (B), he will not receive a discharge. B. SECTION 727(a)(4) The Plaintiff also contends that Defendant’s discharge should be denied under section 727(a)(4) of the Bankruptcy Code. This provision essentially codifies a fundamental policy of the Bankruptcy Code — that only honest, unfortunate debtors receive a discharge, and thus the benefit of a fresh start. The Debtor herein is neither honest nor unfortunate. Pursuant to section 521 of the Bankruptcy Code, debtors must: “file a list of creditors, and unless the court orders otherwise, a schedule of assets and liabilities, a schedule of current income and current expenditures, and a statement of the debtor’s financial affairs,” “cooperate with the trustee as necessary to enable the trustee to perform the trustee’s duties,” and “surrender to the trustee any recorded information, including books, documents, records, and papers relating to property of the estate.” The petition, schedules, and statement of financial affairs are executed under oath and penalty of perjury. Fed. R. Bankr.P. 1008; Official Form 1 (Voluntary Petition); Official Form 7 (Statement of Financial Affairs). See Heil, 289 B.R. at 907-08. See also Hamo v. Wilson (In re Hamo), 233 B.R. 718, 725 (6th Cir. BAP 1999); Beaubouef v. Beaubouef (In re Beaubouef), 966 F.2d 174, 178 (5th Cir.1992). Moreover, a debtor testifies at the meeting of creditors under oath. 11 U.S.C. § 343; Fed. R. Bankr.P. 2003(c). The debtor must fully disclose all information relevant to the administration of the bankruptcy case. Kentile Floors, Inc. v. Winham, 440 F.2d 1128 (9th Cir.1971); In the Matter of Garman, 643 F.2d 1252 (7th Cir.1980). See In re Robinson, 292 B.R. 599 (Bankr.D.Ohio 2003); Woolman v. Wallace (In re Wallace), 289 B.R. 428 (Bankr.N.D.Okla.2003); Fleet Securities, Inc. v. Vina (In re Vina), 283 B.R. 803 (Bankr.M.D.Fla.2002); In re Firrone, 212 B.R. 213 (Bankr.N.D.Ill.2000); In re" }, { "docid": "17536404", "title": "", "text": "with the codification of § 507(a)(8)(A)(ii)(IR. We also disagree with De-Noce’s argument that the doctrine of “continuing concealment” applies in this case. Under this doctrine, discharge can be denied under § 727(a)(2)(A), even though the subject transfer occurred more than one year before the debtor filed bankruptcy, if the debtor allowed his or her interest in the property to remain concealed into the year preceding the bankruptcy filing. In re Lawson, 122 F.3d at 1240. “Concealment” in this sense focuses on the debtor’s intent to conceal any “interest” in the transferred property into the year before the bankruptcy filing, not whether the debtor intended to conceal “the transfer.” Id. Although Neff did not initially disclose the transfer of the Lake Harbor Property in his first two bankruptcy cases, no concealment of his “interest” in it occurred into the year before he filed his Third Bankruptcy Case, thereby triggering the doctrine. Within the year before he filed his third case, title to the Lake Harbor Property was in his name only as a matter of public record. Although the quitclaim deed stated that “Grantee asserts this is an exempt asset under California law as a retirement asset or plan,” Neffs failed attempt at trying to preserve the property as an exempt retirement asset did nothing to change the title or his 100% fee interest, as the bankruptcy court correctly noted. As such, no “concealment” occurred -within the meaning of the doctrine. Contrary to DeNoce’s contention, the “continuing concealment” doctrine is not analogous to an “equitable tolling” of the one-year period in § 727(a)(2)(A), and therefore our decision here is not contrary to In re Lawson. The doctrine is not a “tolling” of the statute. Rather, it applies only when the offending conduct — debtor’s intentional concealment of an interest in transferred property — has been ongoing into the year prior to the debtor’s bankruptcy filing. Thus, nothing is being “tolled” with respect to the one-year period. Because § 727(a)(2)(A) is a statute of repose not subject to equitable tolling, De-Noce could not prove one of the necessary elements to deny Neffs" }, { "docid": "17536378", "title": "", "text": "OPINION KIRSCHER, Bankruptcy Judge. Creditor, Douglas J. DeNoce (“De-Noce”), appeals the orders granting partial summary judgment to chapter 7 debtor, Ronald A. Neff (“Neff”), and denying De-Noce’s cross-motion for partial summary judgment. Approximately eighteen months before Neff filed the instant chapter 7 case, he had filed the first of two successive chapter 13 cases, both of which were dismissed. During the course of his first chapter 13 case and about seventeen months before he filed the instant chapter 7 case, Neff transferred certain real property to his revocable living trust. DeNoce contended that the transfer was fraudulent and sought to deny Neffs discharge under § 727(a)(2). The bankruptcy court held that Neffs discharge would not be denied, because any alleged fraudulent transfer occurred more than one year before the chapter 7 petition was filed, and the one-year “lookback” period was not subject to equitable tolling based on Neffs prior bankruptcies. Accordingly, it granted partial summary judgment to Neff on that issue and denied it as to DeNoce. The issue presented here is a matter of first impression in this circuit: Whether the one-year “lookback” period in § 727(a)(2)(A) is a “statute of limitations” subject to equitable tolling or whether it is a “statute of repose” not subject to equitable tolling. We hold that the one-year period is a statute of repose, and we AFFIRM. I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY A.Events leading to Neffs first bankruptcy case In 2007, Neff, a former dentist, treated DeNoce with the surgical placement of eight dental implants. It was a major full-day surgery. Within a month or so, each tooth had either fallen out or failed. Neff performed further surgery to correct the eight implants, but, within a couple of months, each fell out or failed again. De-Noce still apparently suffers from the improper implant procedures. In October 2008, DeNoce filed suit against Neff in state court for medical malpractice. Ultimately, DeNoce was awarded a judgment of $310,000. In March 2008, a few months prior to DeNoce’s filing of the medical malpractice action, Neff executed a revocable living trust (the “Retirement Trust”). The trust" } ]

[ { "docid": "9575871", "title": "", "text": "the arbitrators the power to decide whether § 15 bars it from exercising jurisdiction. Sorrells, 957 F.2d at 514 & n. 6 (citing AT & T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 649, 106 S.Ct. 1415, 1418-19, 89 L.Ed.2d 648 (1986)) (“Unless the parties clearly and unmistakably provide otherwise, the question of whether the parties agreed to arbitrate is to be decided by the court, not the arbitrator”). A substantial minority, typified by the Fifth and Eighth Circuits, hold only arbitrators, and not courts, can decide the issue. In FSC Securities Corp. v. Freel, 14 F.3d 1310, 1312-13 (8th Cir.1994), the Eighth Circuit relied exclusively on § 35 of the NASD Code and held that provision is a “clear and unmistakable” expression of the parties intent to have the arbitrators, rather than the courts, decide whether § 15 applies. In Smith Barney Shearson, Inc. v. Boone, 47 F.3d 750, 753 (5th Cir.1995), the Fifth Circuit did not consider § 35, but instead concluded the “crucial distinction” was whether § 15 relates to the “ ‘substantive arbitrability’ ” of a claim or merely “present[s] issues of ‘pro cedural arbitrability’ relating to the procedure of arbitration agreed upon.” It held only the arbitrator could determine whether § 15 applies, because under Fifth Circuit precedent timeliness issues are procedural and must be decided by the arbitrator. Id. at 754. Merrill Lynch contends we should adopt the majority position. We agree. In its recent unanimous decision in First Options of Chicago, Inc. v. Kaplan, — U.S. -, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995), the Supreme Court spelled out the analysis courts must apply in determining whether arbitrators or courts are to decide whether a matter is subject to arbitration. It explained “[jlust as the arbitrability of the merits of a dispute depends upon whether the parties agreed to arbitrate that dispute, ... so the question ‘who has the primary power to decide arbitrability’ turns upon what the parties agreed about that matter.” Id., — U.S. at -, 115 S.Ct. at 1923. “When deciding whether the parties agreed to arbitrate" } ]

[ { "docid": "22975104", "title": "", "text": "the number announced by Ashcraft & Gerel as the senior partners’ draw, or did the firm have an obligation under the contract to follow its usual accounting practices to determine the cap on Coady’s compensation? Coady says that the panel concluded in its February 1999 order that the cap number was not the one announced by Ashcraft in 1997, but that the actual number was yet unknown, as Coady had submitted prima fa-cie evidence of “a substantial straddle of income in 1997.” B. Standard of Review and Interpretation of the Arbitration Clause The question of the appropriate standard of review is multifaceted. The question whether the parties agreed to arbitrate certain matters was for the court to decide. See First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995). Indeed, in PaineWebber, Inc. v. Elahi, 87 F.3d 589 (1st Cir.1996), we held that “the question whether the subject matter of the underlying dispute is within the scope of an expressly limited arbitration agreement is an ‘arbitrability’ issue.” Id. at 596 (construing AT & T Techs., Inc. v. Communications Workers of Am., 475 U.S. 643, 651, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986)). And “arbitrability depends on contract interpretation, which is a question of law.” Id. at 592 (construing Commercial Union Ins. Co. v. Gilbane Bldg. Co., 992 F.2d 386, 388 (1st Cir.1993)). AlS stated in First Options, “[cjourts should not assume that the parties agreed to arbitrate arbitrability unless there is ‘clea[r] and unmistakable]’ evidence that they did so.” First Options, 514 U.S. at 944, 115 S.Ct. 1920 (quoting AT & T Techs., 475 U.S. at 649, 106 S.Ct. 1415) (second and third alterations in original). The limited arbitration clause in Coady’s employment agreement contains no such “clear and unmistakable” language; there is in fact no evidence that the parties agreed to submit the question of arbitrability to arbitration. Thus, the arbitrators’ views about what is arbitrable are not given the usual leeway courts give to arbitrators. See id. at 945-47, 115 S.Ct. 1920. Coady responds by citing the familiar doctrine that" }, { "docid": "6206234", "title": "", "text": "(remanding the case to the district court to decide whether the collective bargaining agreement allowed arbitration of a particular labor dispute). The Supreme Court explained the applicable standards in First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995), where it held that “[j]ust as the arbitrability of the merits of a dispute depends upon whether the parties agreed to arbitrate that dispute, so the question ‘who has the primary power to decide arbitrability’ turns upon what the parties agreed about that matter.” 514 U.S. at 943, 115 S.Ct. 1920 (citations omitted). The First Options Court also noted, however, the particular difficulty in allowing arbitrators to decide the scope of their own jurisdiction: [T]he “who (primarily) should decide ar-bitrability” question ... is rather arcane. A party often might not focus upon that question or upon the significance of having the arbitrators decide the scope of their own powers. And, given the principle that a party can be forced to arbitrate only those issues it specifically has agreed to submit to arbitration, one can understand why courts might hesitate to interpret silence or ambiguity on the “who should decide arbitrability” point as giving the arbitrators that power, for doing so might too often force unwilling parties to arbitrate a matter they reasonably would have thought a judge, not an arbitrator, would decide. Id. at 945, 115 S.Ct. 1920 (citations omitted). Accordingly, the Court imposed a stringent test for the courts to apply in cases where the parties disagree over who should decide the arbitrability issue. Specifically, the Court stated: “Courts should not assume that the parties agreed to arbitrate arbitrability unless there is ‘elea[r] and unmistakabl[e]’ evidence that they did so.” Id. at 944, 115 S.Ct. 1920 (citing AT & T, 475 U.S. at 649, 106 S.Ct. 1415) (alteration in original). We adopted this standard in Cogswell, where we were asked to decide whether the district court or an arbitrator should determine whether an arbitration claim is barred under the time limit contained in NASD Code § 10304. See 78 F.3d at 476. The" }, { "docid": "12955856", "title": "", "text": "it was for the Court to determine the scope of the Arbitration Clause. “[Battaglia’s] attempts to raise the actual merits of the claims here are completely irrelevant to the issue of arbitrability, which is the only issue before the Court. See AT & T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 649, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986) (arbitrability of a dispute is for the court to decide).” Memorandum Opinion at 11. Cf. Flightways Corp. v. Keystone Helicopter Corp., 459 Pa. 660, 331 A.2d 184,185 (1975). “[W]hen deciding whether the parties agreed to arbitrate a certain matter (including arbitrability), courts generally ... should apply ordinary state-law principles that govern the formation of contracts.” First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995). Under Pennsylvania law, “the threshold question of whether a party agreed to arbitrate a dispute is a jurisdictional question that must be decided by a court.” Smith v. Cumberland Group, Ltd., 455 Pa.Super. 276, 687 A.2d 1167, 1171 (1997). Furthermore, there is no indication — in the language of the Arbitration Clause or otherwise in the record before this Court — that the parties intended to arbitrate the scope of the Clause itself. Consequently, this determination was properly made by the District Court. See First Options, 514 U.S. at 944, 115 S.Ct. 1920 (“[CJourts should not assume that the parties agreed to arbitrate arbitrability unless there is ‘clea[r] and unmistakfable] evidence’ that they did so.”) (second and third alterations in original). B. Battaglia’s next argument on appeal is that the Arbitration Clause is limited to disputes involving the interpretation and performance of the Settlement Agreement, and thus the Clause does not encompass disputes going to the formation of that Agreement. In particular, Battaglia asserts that because the Arbitration Clause uses the language “any controversy [that] arises hereunder [i.e., under the Settlement Agreement],” rather than broader language such as “any controversy arising under or related to the Settlement Agreement,” the Arbitration Clause does not encompass the Appellees’ counterclaim in the arbitration proceeding alleging that the Settlement" }, { "docid": "23501431", "title": "", "text": "to determining two issues: i) whether a valid agreement or obligation to arbitrate exists, and ii) whether one party to the agreement has failed, neglected or refused to arbitrate.” PaineWebber Inc. v. Bybyk, 81 F.3d at 1198. In addressing these issues, courts are mindful that “arbitration is a matter of contract,” AT & T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 648, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986), and that parties cannot be compelled to arbitrate issues that they have not specifically agreed to submit to arbitration, First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 945, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995). Whether parties have obligated themselves to arbitrate certain issues, including the question of arbitrability, is determined by state law. See id. at 944, 115 S.Ct. 1920; Bell v. Cendant Corp., 293 F.3d at 566. Nevertheless, under the FAA, certain presumptions inform the analysis. Specifically, the federal policy in favor of arbitration requires that “any doubts concerning the scope of arbitrable issues” be resolved in favor of arbitration. Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. at 24-25, 103 S.Ct. 927. An important exception applies, however, when the doubt concerns who should decide arbitrability. The law then reverses the presumption to favor judicial rather than arbitral resolution. See First Options of Chicago, Inc. v. Kaplan, 514 U.S. at 944-45, 115 S.Ct. 1920. Thus, as federal case law makes plain, “the issue of arbitra-bility may only be referred to the arbitrator if ‘there is “dear and unmistakable\" evidence from the arbitration agreement, as construed by the relevant state law, that the parties intended that the question of arbitrability shall be decided by the arbitrator.’” Bell v. Cendant Corp., 293 F.3d at 566 (emphasis in original) (quoting PaineWebber Inc. v. Bybyk, 81 F.3d at 1198-99 (quoting First Options of Chicago, Inc. v. Kaplan, 514 U.S. at 944)). New York law follows the same rule, i.e., it acknowledges the “well settled proposition that the question of arbitrability is an issue generally for judicial determination,” but at the same time it recognizes an" }, { "docid": "8606236", "title": "", "text": "Emergency Law) — extrapolating the value of BG Group’s total investment and assessing the difference as the damages caused by the Emergency Law: $185,285,485.85 in U.S. dollars (excluding interest, costs, and attorneys’ fees). Argentina petitioned to vacate or modify the Final Award pursuant to the FAA, 9 U.S.C. §§ 10(a) & II. BG Group filed an opposition and a cross-motion for recognition and enforcement of the Final Award, and for a prejudgment bond. Following further filings in opposition or reply, the district court denied vacatur and granted enforcement. Republic of Argentina v. BG Group PLC, 715 F.Supp.2d 108 (D.D.C.2010); Republic of Argentina v. BG Group PLC, 764 F.Supp.2d 21 (D.D.C.2011). Argentina appeals; our review of the district court’s findings of fact is for clear error and our review of questions of law is de novo. See First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 947-48, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995); Lessin v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 481 F.3d 813, 816 (D.C.Cir.2007). II. The “gateway” question in this appeal is arbitrability: when the United Kingdom and Argentina executed the Treaty, did they, as contracting parties, intend that an investor under the Treaty could seek arbitration without first fulfilling Article 8(l)’s requirement that recourse initially be sought in a court of the contracting party where the investment was made? That question raises the antecedent question of whether the contracting parties intended the answer to be provided by a court or an arbitrator. The Supreme Court has held that the intent of the contracting parties controls whether the answer to the question of arbitrability is to be provided by a court or an arbitrator. See, e.g., First Options, 514 U.S. at 943, 115 S.Ct. 1920. “Courts should not assume that the parties agreed to arbitrate arbitrability unless there is ‘clea[r] and unmistakable]’ evidence that they did so.” Id. at 944, 115 S.Ct. 1920 (quoting AT & T Techs., Inc. v. Commc’ns Workers of Am., 475 U.S. 643, 649, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986)) (alterations in original). This comports with the “basic objective” of arbitration," }, { "docid": "20514193", "title": "", "text": "governs the arbitra-bility question. Volt’s holding does not address this question and does not alter our conclusion that federal law of arbitra-bility applies. B. Brennan next contends that even if federal arbitrability law applies, the district court erred by concluding that incorporation of the AAA rules constitutes “clear and unmistakable” evidence that the parties intended to delegate the arbitrability question to an arbitrator. We disagree. Generally, in deciding whether to compel arbitration, a court must determine two “gateway” issues: (1) whether there is an agreement to arbitrate between the parties; and (2) whether the agreement covers the dispute. Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 84, 123 S.Ct. 588, 154 L.Ed.2d 491 (2002). However, these gateway issues can be expressly delegated to the arbitrator where “the parties clearly and unmistakably provide otherwise.” AT & T Techs., Inc. v. Commc’ns Workers of Am., 475 U.S. 643, 649, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986) (emphasis added); see also First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995) (“Courts should not assume that the parties agreed to arbitrate arbitrability unless there is ‘clea[r] and unmistakable]’ evidence that they did so”). The district court agreed with Opus Bank that under federal arbitrability law, the Delegation Provision “clearly and unmistakably” delegated to an arbitrator the question whether the Arbitration Clause was enforceable by expressly incorporating the AAA arbitration rules, one of which provides that the “arbitrator shall have the power to rule on his or her own jurisdiction, including any objections with respect to the ... validity of the arbitration agreement.” In Oracle America, Inc. v. Myriad Group AG., 724 F.3d 1069 (9th Cir.2013) we observed that “[virtually every circuit to have considered the issue has determined that incorporation of the [AAA] arbitration rules constitutes clear and unmis: takable evidence that the parties agreed to arbitrate arbitrability.” Id. at 1074. We found this consensus persuasive in holding that incorporation of the UNCITRAL rules — which contain a jurisdictional provision “almost identical” to the one in the AAA rules — constituted “clear and unmistakable" }, { "docid": "16267038", "title": "", "text": "dismissals without prejudice. We agree with the reasoning of other courts that have rejected this distinction. See Hill v. Rent-A-Center, Inc., 398 F.3d 1286, 1288 (11th Cir.2005); Blair v. Scott Specialty Gases, 283 F.3d 595, 602 (3d Cir.2002); Salim Oleochemicals v. M/V Shropshire, 278 F.3d 90, 91 (2d Cir.2002); Interactive Flight Techs., Inc. v. Swissair Swiss Air Transp. Co., 249 F.3d 1177, 1179 (9th Cir.2001). In brief, these courts concluded that both types of dismissal are equivalent with respect to the Supreme Court’s rationale in Green Tree — that the arbitration order “plainly disposed of the entire case on the merits and left no part of it pending before the court,” 531 U.S. at 86, 121 S.Ct. 513. Cf. Mirpuri v. ACT Mfg., Inc., 212 F.3d 624, 628-29 (1st Cir.2000) (a dismissal without prejudice that entirely terminates the litigation is a final order). We therefore hold that the Municipality’s appeal is properly before us. B. Arbitrability of the Termination Dispute We think it most helpful to begin this discussion by reviewing several basic arbitration principles noted by the Supreme Court in AT & T Techs., Inc. v. Communications Workers, 475 U.S. 643, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986), and derived from prior case law. See id. at 648, 106 S.Ct. 1415 (referring to the Steelworkers Trilogy ). First, “ ‘arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.’. ” Id. at 648, 106 S.Ct. 1415 (citation omitted). Second, “the question of arbitrability ... is undeniably an issue for judicial determination.” Id. at 649, 106 S.Ct. 1415. Third, a court deciding whether the parties have agreed to submit a particular grievance to arbitration is “not to rule on the potential merits of the underlying claims.” Id. And, finally, when a contract contains an arbitration clause, “ ‘[d]oubts should be resolved in favor of coverage.’ ” Id. at 650 (citation omitted); see also, e.g., First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944-45, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995). In other" }, { "docid": "21869195", "title": "", "text": "decision.” General Motors Corp. v. Pamela Equities Corp., 146 F.3d 242, 248 (5th Cir.1998). In Free Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995) (establishing “presumption against the finding of an agreement to arbitrate arbitral authority or, in other words, ..., the ... requirement that such agreements be proved by clear and unmistakable evidence”) and AT & T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986), the Supreme Court recognized a presumption “against an arbitrator having the power to decide the scope of his own power,” in other words there is a presumption that parties to a contract did not agree to submit any question regarding the scope of an arbitrator’s authority to that same arbitrator; moreover it held that “any silence, ambiguity or doubts about this question [of arbitrability] should be resolved in favor of concluding that the parties did not agree to submit the issue to the arbitrator.” Id. at 250, 249, 248. Instead, unless the parties demonstrate by “clear and unmistakable evidence” that they intended that an arbitrator to determine whether an issue should arbitrated, the determination “ ‘whether an agreement creates a duty for parties to arbitrate a particular grievance’ ” is for the court. Id. at 248-49. See also Bell v. Cendant Corp., 293 F.3d 563, 566 (2d Cir.2002) (although “where the scope of an arbitration agreement is ambiguous, the Federal Arbitration Act’s poli cy favoring arbitration requires that ‘any doubts ... be resolved in favor of arbitration,’ .. where the ambiguity relates to who determines arbitrability — that is, the arbitrability of the question of arbitrability — -the Act’s presumption is reversed and a court ordinarily decides the question”; “the issue of arbitrability may only be referred to the arbitrator if ‘there is char and unmistakable ’ evidence from the arbitration agreements, as construed by the relevant state law, that the parties intended that question of arbitrability shall be decided by the arbitrator.”) (relying inter alia on First Options); PaineWebber, Inc. v. Bybyk, 81 F.3d 1193," }, { "docid": "8541698", "title": "", "text": "have interpreted the FAA as having a narrow exception, rendering it inapplicable to employment contracts for seamen, railroad workers and others “involved in, or closely related to, the actual movement of goods in interstate eommerce.” Dickstein, 443 F.2d at 785; see, e.g., Cole, 105 F.3d at 1471. In the present case, Plaintiff worked for Defendant as a manager at a paper mill, and was not employed as a seaman, rail worker, or otherwise within the narrow exception. Furthermore, the First Circuit has specifically ruled that arbitration agreements apply to claims brought under Title VII for employment discrimination. See Rosenberg v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 170 F.3d 1, 11-12 (1st Cir.1999). Thus, the FAA applies to the instant case. B. Whether a Valid Contract Exists Next, the Court considers whether or not the Employee Solution Program booklet constitutes a valid, binding agreement between Plaintiff and Defendant. See Bangor Hydro-Elec. Co. v. New England Tel. & Tel. Co., 62 F.Supp.2d 152, 156 (D.Me.1999) (“The first and primary question before the Court in this case is whether the parties entered into an arbitration agreement at all.”). The FAA states that a “written provision in ... a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction ... shall be valid, irrevocable, and enforceable, save upon grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2. “ ‘[Arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.’ ” McCarthy v. Azure, 22 F.3d 351, 355 (1st Cir.1994) (quoting AT & T Technologies, Inc. v. Communications Workers, 475 U.S. 643, 648, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986)). Furthermore, it is the duty of the court—not the arbitrator—to decide whether the parties, in fact, agreed to arbitrate. See First Options v. Kaplan, 514 U.S. 938, 942-44, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995). When determining whether the parties entered into a contract, federal courts utilize general state law" }, { "docid": "7580872", "title": "", "text": "recent years. See, e.g., Paine-Webber, Inc. v. Bybyk, 81 F.3d 1193, 1202 (2d Cir.1996); FSC Sec. Corp. v. Freel, 14 F.3d 1310, 1312-13 (8th Cir.1994) (language of section 35 indicates that parties “clearly and unmistakably” wanted questions of arbitra-bility to be decided by arbitrator). This court adopted a different approach to section 35 in Sorrells, where the question was whether the court should conclude that section 15 of the NASD Code (now Rule 10304) imposes an absolute bar to arbitration for claims more than six years old, or if arbitrators should decide what its effect would be. See Sorrells, 957 F.2d at 514 n. 6, which quoted section 35 and commented that: we do not believe that this provision is a clear and unmistakable expression of the parties’ intent to have the arbitrators, and not the court, determine which disputes the parties have agreed to submit to arbitration. Id. Other courts have agreed with us. See Smith Barney, Inc. v. Sarver, 108 F.3d 92, 96-97 (6th Cir.1997); Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Cohen, 62 F.3d 381, 384 (11th Cir.1995). The Flumes have urged us to reconsider our conclusion in Sorrells, or at a minimum to distinguish limitations-of-actions cases arising under section 15 from cases arising under other provisions of the Code. With all due respect to the courts that have taken the other position, we are not inclined to revisit Sorrells in the present case. First Options, which was decided after Sorrells, approved our requirement of a showing of “clear and unmistakable” evidence that the parties intended to have the arbitrators decide the preliminary issue of arbitrability. Section 35 says nothing about arbitrability; it instead empowers the arbitrators to “interpret and determine the applicability of all provisions under this Code.” However, both interpretation and determinations about applicability are steps that take place after the threshold determination of arbitrability has occurred; or, at the very least, section 35 can reasonably be read that way. Even if it would not do violence to the language of section 35 to conclude that arbitrability may also be resolved by the arbitrators," }, { "docid": "15416070", "title": "", "text": "that the award was not procured through fraud or undue means under 9 U.S.C. § 10(a)(1). Finally, the district court ordered prejudgment interest after August 26, 2010, ruling that prejudgment interest recommenced after DM failed to pay the award within the thirty-day period. II. This court reviews “a district court’s confirmation of an award de novo, but the review of the underlying award is exceedingly deferential.” Apache Bohai Corp. LDC v. Texaco China BV, 480 F.3d 397, 401 (5th Cir.2007) (internal quotation marks omitted). A. On appeal, DM argues that the arbitration panel exceeded its powers by issuing an award on a claim not covered by the parties’ arbitration agreement. 9 U.S.C. § 10(a)(4) (allowing a district court to vacate an award “where the arbitrators exceeded their powers”). Specifically, DM contends that the calculations in the expert report were extinguished by the 2005 release and therefore fall outside the parties’ agreement to arbitrate. Petrofac responds that the parties contracted for the arbitration panel (and not the courts) to decide this question of arbitrability, and even if the arbitration panel did not have the power to decide arbitrability, the district court properly determined that the claims at issue were within the arbitration agreement. We first consider if the arbitration panel properly determined the initial question of arbitrability, i.e. whether the claim is within the parties’ agreement to arbitrate. “Just as the arbitrability of the merits of a dispute depends upon whether the parties agreed to arbitrate that dispute, so the question ‘who has the primary power to decide arbitrability’ turns upon what the parties agreed about that matter.” First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 943, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995) (internal citations omitted). We will not assume that the parties agreed to arbitrate arbitrability “[ujnless the parties clearly and unmistakably provide otherwise.” AT & T Techs., Inc. v. Commc’ns Workers of Am., 475 U.S. 643, 649, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986). Accordingly, we must decide if DM and Petrofac “clearly and unmistakably” provided for the arbitration panel to decide arbitrability. Here, the parties" }, { "docid": "3961876", "title": "", "text": "clearly and unmistakably provide otherwise, the question of whether the parties agreed to arbitrate is to be decided by the court, not the arbitrator.” AT & T Technologies v. Communications Workers, 475 U.S. 643, 649, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986). Unlike the general presumption that a particular issue is arbitrable when the existence of an arbitration agreement is not in dispute, see Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983), when the dispute is whether there is a valid and enforceable arbitration agreement in the first place, the presumption of arbitrability falls away. See First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944-45, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995). As the Court explained, Courts should not assume that the parties agreed to arbitrate arbitrability unless there is “clear and unmistakable” evidence that they did so. In this manner, the law treats silence or ambiguity about the question “who (primarily) should decide arbi-trability” differently from the way it treats silence or ambiguity about the question “whether a particular merits-related dispute is arbitrable because it is within the scope of a valid arbitration agreement”— for in respect to this latter question the law reverses the presumption. Id. (citations omitted); see also Cogswell v. Merrill Lynch, Pierce, Fenner & Smith Inc., 78 F.3d 474, 480 (10th Cir.1996). Courts will not apply the traditional presumption in fa vor of arbitrability when the particular issue is whether the parties have agreed to allow an arbitrator to decide the existence of their putative agreement to arbitrate because “doing so might ... force unwilling parties to arbitrate a matter they reasonably would have thought a judge, not an arbitrator, would decide.” First Options, 514 U.S. at 945, 115 S.Ct. 1920. Furthermore, “the issue is not whether it would be more convenient for courts or arbitrators to decide” whether the parties have a valid and enforceable agreement to arbitrate, but rather “whether the parties’ agreement contains ‘clear and unmistakable’ evidence they intended the arbitrator to decide the issue.” Cogswell, 78 F.3d" }, { "docid": "10539548", "title": "", "text": "in the record before the district court. In response to Circuit City’s motion, we deferred action on the motion to permit the parties to file a similar motion in the district court so that the district court could rule on the motion in the first instance. The district court denied Circuit City’s motion to correct the record on February 17, 1998, and we subsequently deferred action on Circuit City’s motion to correct the record pending oral argument. II. The district court held as a matter of law that the arbitration agreement signed by Johnson in this case was not supported by adequate consideration and was, therefore, unenforceable. Because its decision was a legal one, our review is de novo. See Higgins v. E.I. DuPont de Nemours & Co., 863 F.2d 1162, 1167 (4th Cir.1988) (whether a party was entitled to summary judgment is a matter of law which we review de novo). Whether a party agreed to arbi-. trate a particular dispute is an issue for judicial determination to be decided as a matter of contract. See AT & T Technologies, Inc. v. Communications Workers of Am., 475 U.S. 643, 648-49, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986); Arrants v. Buck, 130 F.3d 636, 640 (4th Cir.1997). In so deciding, the court should apply “ordinary state-law principles that govern the formation of contracts.” First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995); see also Arrants, 130 F.3d at 640 (“Courts decide whether there is an agreement to arbitrate according to common law principles of contract law.”). However, the Supreme Court has emphasized that “it should be kept in mind that ‘questions of arbitrability must be addressed with a healthy regard for the federal policy favoring arbitration.’ ” Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991) (quoting Moses H. Cone Mem’l Hosp. v. Memory Constr. Corp., 460 U.S. 1, 24, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983)). “Pursuant to that liberal policy, ‘any doubts concerning the scope of arbitrable issues should be resolved in" }, { "docid": "4041132", "title": "", "text": "arbitration a controversy thereafter arising out of such contract.” 9 U.S.C. § 2, Federal policy strongly favors arbitration. See O’Neil v. Hilton Head Hospital, 115 F.3d 272, 273 (4th Cir.1997) (citing Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983)). In accordance with that policy, “any doubts concerning the scope of the arbitrable issues should be resolved in favor of arbitration.... ” Moses H. Cone, 460 U.S. at 24-25, 103 S.Ct. 927. As a result, in a “close-call” on arbitrability, the Court must decide in favor of sending the parties to arbitration. See Long v. Silver, 248 F.3d 309, 316 (4th Cir.2001) (citing Peoples Sec. Life Ins. Co. v. Monumental Life Ins. Co., 867 F.2d 809, 812 (4th Cir.1989)). While federal policy favors arbitration, a court must first determine whether the parties actually agreed to arbitrate. This determination is a matter of contract law and “ ‘a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.’ ” AT & T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 648, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986) (quoting United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-83, 80 S.Ct. 1347, 4 L.Ed. 1409 (1960)). Whether parties have contracted to arbitrate is a matter of state contract law, and the court must apply “ ‘ordinary state-law principles that govern the formation of contracts ....”’ Johnson v. Circuit City Stores, Inc., 148 F.3d 373, 377 (4th Cir.1998) (quoting First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995)). Accordingly, the Court must apply state-law principles governing contracts when analyzing formation and federal substantive law in analyzing arbitrability. See Int’l Paper Co. v. Schwabedissen Maschinen Anlagen GMBH, 206 F.3d 411, 417 n. 4 (4th Cir.2000). As a preliminary matter, this Court agrees with the Eastern District of New York’s determination that claims under the Jury System Improvement Act are subject to arbitration under the FAA. See McNulty v. Prudential-Bache" }, { "docid": "22445847", "title": "", "text": "find “clear and unmistakable” evidence that the parties agreed that the Tribunal would determine its own jurisdiction, undertook an independent review of whether the Government was bound to arbitrate with Bridas. First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944-47, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995). Accord AT&T Technologies, Inc. v. Communications Workers, 475 U.S. 643, 649, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986). Whether a party is bound by an arbitration agreement is generally considered an issue for the courts, not the arbitrator, “[ujnless the parties clearly and unmistakably provide otherwise.” AT&T Tech., 475 U.S. at 649, 106 S.Ct. 1415. The district court concluded that despite the Government’s non-signatory status, principles of agency and equitable estoppel bound the Government to the JVA. C. As a preliminary matter, we will address Bridas’s assertion that the Government waived its right to contest the Tribunal’s jurisdiction because: (1) it failed to challenge the Tribunal’s Order No. 5; and (2) it voluntarily took part in the arbitration through Turkmenneft. Both of these arguments are meritless. Under § 172.082(f) of the Texas International Arbitration Act (“TIAA”), Tex. Civ. Prac. & Rem.Code § 172.082(f) (Vernon 1997 & Supp.2003), if a tribunal makes a preliminary ruling that it has jurisdiction (not that it has jurisdiction to determine jurisdiction), a party waives any objection to the ruling, unless it requests the district court of the county in which the arbitration is taking place to decide the matter. Tex. Civ. Prac. & Rem.Code § 172.082(f). Order No. 5 states: “[w]e have not yet decided whether the Government is bound by the commitment to arbitrate.” The order, thus, did not address whether the Tribunal had jurisdiction over the Government. § 172.082(f) of the TIAA is therefore inapplicable. Second, while it is rare that we are asked to decide a jurisdictional issue such as this one after the proceedings have concluded, neither the fact that the Government “allowed the proceeding to continue” over its objection, nor its “virtual representation” at the arbitration by Turk-menneft, waive its right to dispute the Tribunal’s jurisdiction in court. See, e.g., First" }, { "docid": "1960443", "title": "", "text": "panel that had been presiding over proceedings on the parties’ underlying dispute for more than a year, to decide whether the petitioner had waived its right to arbitrate by previously litigating the same contractual dispute in a case brought before another court. In these circumstances, referring the waiver issue to an arbitration panel that already has intimate familiarity with the parties’ underlying dispute would be preferable to having it decided by a trial judge with no prior involvement in the case. In short, whether viewed as a case involving a claim of waiver based on arbitration conduct or a claim of waiver based on litigation conduct, we believe the Eighth Circuit’s decision in Transameñca does not support GSI’s position here. We now make explicit that which is implicit in our decision in Palcko; we hold that waiver of the right to arbitrate based on litigation conduct remains presumptively an issue for the court to decide in the wake of Howsam and Green Tree. C. We must still consider GSI’s argument that the Agreement provides for resolution of the waiver defense raised here by an arbitrator, notwithstanding any presumption to the contrary. An issue that is presumptively for the court to decide will be referred to the arbitrator for determination only where the parties’ arbitration agreement contains “clear and unmistakable evidence” of such an intent. First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995) (quoting AT & T Technologies, Inc. v. Communications Workers of Am., 475 U.S. 643, 649, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986)) (alterations omitted). The Agreement in this case fails to satisfy this onerous standard. GSI primarily relies on the following arbitration provision in the Agreement: 17. MATTERS ARBITRABLE All claims or matters arising out of or relating in any fashion to this Agreement, to the breach of this Agreement, or to Employee’s dealings with Employer, Employee’s employment or the suspension or termination of Employee’s employment with Employer shall be considered arbitrable. Arbitrable matters include, but are not limited to, the following: claims for wrongful or retaliatory discharge" }, { "docid": "1403068", "title": "", "text": "an agreement to arbitrate encompasses statutory claims, the arbitrator has the authority to enforce substantive statutory rights, even if those rights are in conflict with contractual limitations in the agreement that would otherwise apply. Based upon these principles and Supreme Court precedent, we held in Larry’s United Super, 253 F.3d at 1086, and again in Arkcom, 289 F.3d at 539, that the extent of an arbitrator’s procedural and remedial authority are issues for the arbitrator to resolve in the first instance. Accord Gannon v. Circuit City Stores, Inc., 262 F.3d 677, 681-82 (8th Cir.2001). Second, in denying Ameriquest’s motion to compel arbitration, the district court compared the terms of the Arbitration Agreement with the provisions of the FLSA and declared the agreement to arbitrate unenforceable. We will assume without deciding that the grounds-for-revocation proviso in 9 U.S.C. § 2 creates an exception to arbitrability over and above the “fraud or overwhelming economic power” exception noted in Gilmer. But even if that is true, the district court’s decision is contrary to AT & T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 649, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986), where the Court adopted the rule that issues of arbitrability are to be decided by the arbitrator in the first instance if the agreement to arbitrate “clearly and unmistakably” so provides. Accord First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944-45, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995). In this case, the Arbitration Agreement clearly and unmistakably left the issues addressed by the district court to the arbitrators in the first instance. For these reasons, the district court erred in denying the motion to compel arbitration. Its Order of January 23, 2002 is reversed. The mandate shall issue forthwith. . The account executives argue that the Arbitration Agreement is unenforceable because its one-year statute of limitations unlawfully limits the damages they may recover under the FLSA; because the agreement’s cost-sharing provision may impose significantly greater costs than a judicial forum; because the California venue provision may increase costs and discourage the assertion of FLSA claims; and because" }, { "docid": "6206233", "title": "", "text": "United Food, 889 F.2d 940 at 947. We therefore conclude that both the 1992 ACCESS Agreement and the 1997 Submission Agreement apply in this case. c. The 1992 ACCESS Agreement, as supplemented by the 1997 Submission Agreement, does not “clearly and unmistakably” demonstrate the parties’ intent to have issues of arbi-trability decided by an arbitrator rather than by the comts 1) Agreement must provide clear and unmistakable evidence of the parties’ intent The Supreme Court has stated that “arbitration is a matter of contract,” and thus that parties should not be forced to arbitrate issues that have not been agreed upon. See AT & T Tech., Inc. v. Communications Workers of Am., 475 U.S. 643, 648, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986) (interpreting an arbitration clause contained in a collective bargaining agreement). The Court has further stated that “[u]nless the parties clearly and unmistakably provide otherwise, the question of whether the parties agreed to arbitrate [a particular claim] is to be decided by the court, not the arbitrator.” Id. at 649, 106 S.Ct. 1415 (remanding the case to the district court to decide whether the collective bargaining agreement allowed arbitration of a particular labor dispute). The Supreme Court explained the applicable standards in First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995), where it held that “[j]ust as the arbitrability of the merits of a dispute depends upon whether the parties agreed to arbitrate that dispute, so the question ‘who has the primary power to decide arbitrability’ turns upon what the parties agreed about that matter.” 514 U.S. at 943, 115 S.Ct. 1920 (citations omitted). The First Options Court also noted, however, the particular difficulty in allowing arbitrators to decide the scope of their own jurisdiction: [T]he “who (primarily) should decide ar-bitrability” question ... is rather arcane. A party often might not focus upon that question or upon the significance of having the arbitrators decide the scope of their own powers. And, given the principle that a party can be forced to arbitrate only those issues it specifically has agreed to" }, { "docid": "12683137", "title": "", "text": "question of the arbitrability of ADA claims and reached the controlling issue of whether the arbitration agreement at issue were valid. See Gibson v. Neighborhood Health Clinics, Inc., 121 F.3d 1126, 1130 (7th Cir.1997) (“The parties agree that an employee and employer may contractually agree to submit federal claims, including Title VII and ADA claims, to arbitration. See Gilmer, 500 U.S. at 35, 111 S.Ct. at 1656.”). With that by way of explanation, this court, too, reaches the remaining (and controlling) issue: whether a binding arbitration agreement exists and compels Mr. Penn to submit his ADA claims to arbitration. The FAA provides that agreements “to settle by arbitration a controversy thereafter arising out of such contract or transaction ... shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2. The Seventh Circuit explained in Gibson v. Neighborhood Health Clinics, Inc. that [a]n agreement to arbitrate is treated like any other contract. Kresock v. Bankers Trust Co., 21 F.3d 176, 178 (7th Cir.1994). If there is no contract there is to be no forced arbitration. Matthews v. Rollins Hudig Hall Co., 72 F.3d 50, 53 (7th Cir.1995); Farrand v. Lutheran Bhd., 993 F.2d 1253, 1255 (7th Cir.1993) (citing AT & T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986)); Adamovic v. METME Corp., 961 F.2d 652, 654 (7th Cir.1992). In determining whether a valid arbitration agreement arose between the parties, a federal court should look to the state law that ordinarily governs the formation of contracts. 9 U.S.C. § 2; First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 943, 115 S.Ct. 1920, 1924, 131 L.Ed.2d 985 (1995). In the present case, because Indiana was the situs of all relevant events in this dispute, we look to the contract law of that state. First Options of Chicago, 514 U.S. at 944, 115 S.Ct. at 1924. Indiana courts apply ordinary contract principles to arbitration agreements. St. John Sanitary Dist. v. Schererville, 621 N.E.2d 1160, 1162" }, { "docid": "12683138", "title": "", "text": "176, 178 (7th Cir.1994). If there is no contract there is to be no forced arbitration. Matthews v. Rollins Hudig Hall Co., 72 F.3d 50, 53 (7th Cir.1995); Farrand v. Lutheran Bhd., 993 F.2d 1253, 1255 (7th Cir.1993) (citing AT & T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986)); Adamovic v. METME Corp., 961 F.2d 652, 654 (7th Cir.1992). In determining whether a valid arbitration agreement arose between the parties, a federal court should look to the state law that ordinarily governs the formation of contracts. 9 U.S.C. § 2; First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 943, 115 S.Ct. 1920, 1924, 131 L.Ed.2d 985 (1995). In the present case, because Indiana was the situs of all relevant events in this dispute, we look to the contract law of that state. First Options of Chicago, 514 U.S. at 944, 115 S.Ct. at 1924. Indiana courts apply ordinary contract principles to arbitration agreements. St. John Sanitary Dist. v. Schererville, 621 N.E.2d 1160, 1162 (Ind.Ct.App.1993); see also Gateway Coal Co. v. United Mine Workers of America, 414 U.S. 368, 374, 94 S.Ct. 629, 635, 38 L.E.2d 583 (1974); International Union of Oper. Engineers v. Indiana Constr. Co., 910 F.2d 450, 453 (7th Cir.1990). Under Indiana contract law, the party seeking to compel arbitration has the burden of demonstrating the existence of an enforceable arbitration agreement. Wilson Fertilizer & Grain v. ADM Milling Co., 654 N.E.2d 848, 849 (Ind.Ct.App.1995). We also note that where, as here, the contract issue can be determined without resort to extrinsic evidence, the question is for the court and not a jury. Kokomo Veterans, Inc. v. Schick, 439 N.E.2d 639, 643 (Ind.Ct.App.1982); see also Coplay Cement Co., Inc. v. Willis & Paul Group, 983 F.2d 1435, 1438 (7th Cir.1993) (noting that federal courts applying state contract law follow state rules regarding assignment of duty of interpretation). Gibson v. Neighborhood Health Clinics, Inc., 121 F.3d 1126, 1130 (7th Cir.1997). The court concludes that there are two grounds for the revocation of the Agreement, resulting in the" } ]

[ { "docid": "14952034", "title": "", "text": "be ineffective, they say, unless the government were collecting metadata from every large carrier such as Verizon Wireless; ergo it must be collecting such data. Appellee’s Br. 27-28. This inference was also the district judge’s sole basis for finding standing. Klayman v. Obama, 957 F.Supp.2d 1, 27 & n. 36 (2013). Yet the government has consistently maintained that its collection “never encompassed all, or even virtually all, call records and does not do so today.” Gov’t’s Br. at 39; Decl. of Teresa Shea, NSA Signals Intelligence Director at ¶ 8, Addendum to Gov’t’s Br. at 101 (similar). While one district judge has claimed that “the Government acknowledged that since May 2006, it has collected this information for substantially every telephone call in the United States,” neither of his sources — an Administration “White Paper” and a declaration by an NSA official— actually supports the claim. ACLU v. Clapper, 959 F.Supp.2d 724, 735 (S.D.N.Y. 2013), vacated and remanded, 785 F.3d 787 (2d Cir.2015); see Administration White Paper, Bulk Collection of Telephony Metadata Under Section 215 of the USA Patriot Act at 3 (Aug. 9, 2013) (“FBI obtains orders from the FISC directing certain telecommunications service providers to produce business records that contain information about communications between telephone numbers ...” (emphasis added)); Decl. Teresa Shea ¶ 14, ACLU v. Clapper, 13-cv-3994 (S.D.N.Y. Oct. 1, 2013), ECF No. 63 (“FBI obtains orders from the FISC directing certain telecommunications service providers to produce all business records created by them (known as call detail records) that contain information about communications between telephone numbers” (emphasis added)). I note the Second Circuit’s observation that the government had not “seriously” disputed the contention that “all significant service providers” were subject to the bulk collection program. ACLU, 785 F.3d at 797. But in that case the government said, “Various details of the program remain classified, precluding further explanation here of its scope,” and went on to insist that “the record does not support the conclusion that the program collects ‘virtually all telephony metadata’ about telephone calls made or received in the United States. Nor is that conclusion correct.” See" } ]

[ { "docid": "21659502", "title": "", "text": "at 277 (“Prohibition on Bulk Collection”); see 50 U.S.C. §§ 1861(b)(2), 1842(c). In place of bulk collection under Section 215, the USA FREEDOM Act requires targeted searches, whereby the Government must submit an application to the FISC identifying “a specific selection term,” such as a telephone number, “to be used as the basis for production” of the call-detail records sought. See USA FREEDOM Act §§ 101 (a)(3)(C)©, 103(a), 129 Stat. 270, 272; see Murphy Deck ¶ 14. As part of the NSA’s transition to this new targeted collection program, the Government sought authority for — and the FISC approved — the following minimization procedures: (1) the Government would retain certain data in order to comply with its evidence preservation obligations; and (2) the Government would retain a three-month period of technical access, ending on February 29, 2016, so that NSA technical personnel could verify the accuracy of productions under the new targeted system. See Murphy Deck ¶ 16; Murphy Deck Ex. B (“Nov. 24, 2015 FISC Order”). F. The Litigation on Remand Although I enjoined the NSA’s surveillance program in December 2013, the Court of Appeals did not issue its opinion until August 28, 2015. When it finally did, it vacated my preliminary injunction on the ground that plaintiffs, as subscribers of Verizon, rather than VBNS — the sole provider the Government has acknowledged as participating in the surveillance program — had not shown a substantial likelihood of standing to pursue their claims. See Obama v. Klayman, 800 F.3d 559, 564 (D.C. Cir. 2015) (Brown, J.); id. at 565, 568-69 (Williams, J.). As such, the Circuit did not address my ruling that the surveillance program likely constituted an unconstitutional search under the Fourth Amendment. With little time left before the intermediate bulk collection program was set .to lapse, plaintiffs moved for — and I granted — leave to file amended complaints to address the standing issue. See Klayman I, Min. Entry, Sept. 16, 2015; Klayman II, Min. Entry, Feb. 11, 2016. As relevant here, these complaints added the Little Plaintiffs—both of whom allege they have been subscribers to VBNS at" }, { "docid": "21659519", "title": "", "text": "enter an order that would prohibit defendants from “destroy[ing] any records relating to the Plaintiffs until- this 'case is tried and all appeals are heard.” Klayman I, Pls.’ Renewed Mot. Prelim. Inj. Proposed Order [Dkt. # 149-3]. And the same is true in the other civil litigation concerning the Government’s , challenged surveillance programs. See, e.g., Preservation Order A, D, Jewel, No. 4:08-cv-4373-JSW (N.D. Cal. Nov. 16, 2009); Preservation Order A, E, First Unitarian Church, No. 4:13-cv-3287-JSW (N.D. Cal. Mar. 21, 2014). As such, any injury plaintiffs may suffer as a result of this retention is either self-inflicted or traceable to the actions of third parties who are hot before this Court. Plaintiffs accordingly lack standing to pursue their claims for expungement of the remaining bulk telephony metadata. B. Plaintiffs’ Challenge to FISA’s Pen-Trap Provision In addition to their challenges to the Government’s now defunct surveillance program under Section 215 of the USA PATRIOT Act, plaintiffs seek a “cease and desist order to prohibit” the NSA from collecting or querying bulk Internet meta-data pursuant to Section 402 of FISA, and an order requiring the “expunge[ment] from federal government records” of any data the NSA collected as .part of this program. Klayman II, 3d Am. Compl. ¶ 77. Defendants insist that plaintiffs’ claims do not present an Article III case or controversy because the NSA ceased FISC-authorized bulk collection of Internet metadata — and destroyed all metadata collected pursuant to Section 402 — in December of 2011. See Klayman I, Defs.’ Mem. Supp. Mot. Dismiss Klayman I & Klayman II for Lack of Subj. Matter Jurisdiction 31 (“Defs. Mem.”) [Dkt. # 178-1], Unfortunately for plaintiffs, defendants are correct. Eighteen months before plaintiffs filed this suit, the NSA had already discontinued its bulk collection program under FISA and destroyed the accumulated me-tadata. See Murphy Decl, ¶¶ 19-21.- And four years after the Section 402 program was discontinued, Congress enacted the USA FREEDOM Act, which prohibits bulk collection of metadata under FISA’s pen-trap provision. USA FREEDOM Act § 201, 129 Stat.. at 277; 50 U.S.C. § 1842(c)(3). Thus, even assuming that plaintiffs’ Internet" }, { "docid": "21659504", "title": "", "text": "all material times as parties to both actions. See Klayman I, 4th Am. Compl. ¶ 18; Klayman II, 3d Am. Compl. ¶22. Plaintiffs also bolstered the complaint in Klayman I by pleading additional facts to support their allegation that Verizon was a participating telecommunications service provider in the challenged surveillance programs. Klayman I, 4th Am. Compl. ¶¶ 47-48. With the Section 215 bulk-collection program set to expire on November 29, 2015, I warned plaintiffs at a status conference on September 2, 2015 that, if they wanted to litigate their Fourth Amendment claims, it was “time to move” because “the clock is running. And there isn’t much time ...” Klayman I, Status Hr’g Tr. 23:6, 15:5-6, Sept. 2, 2015 [Dkt. # 143]. Accordingly, on September 21, 2015, plaintiffs renewed their motion for a preliminary injunction against the programs, and also sought to prohibit the Government from destroying “any records relating to the Plaintiffs until this case is tried and all appeals are heard, and only then to purge them from government retention.” Klayman I, Pls.’ Renewed Mot. Prelim. Inj., Proposed Order (“Pls.’ Proposed Order”) [Dkt. # 149 — 3]. On November 9, 2015,1 granted the Little Plaintiffs a preliminary injunction barring bulk collection of records about their calls under Section 215, but I denied relief to the other plaintiffs. Klayman v. Obama, 142 F.Supp.3d 172, 178 (D.D.C. 2015). This time, however, I did not stay my injunction. Id. at 198. Not surprisingly, the Government immediately appealed, and our Circuit granted their request for a stay of my injunction, pending appeal. Order, Klayman v. Obama, No. 15-5307, 2015 WL 9010330 (D.C. Cir. Nov. 16 2015). Less than ten days later, the USA FREEDOM Act went into effect, and the Government accordingly moved to vacate the injunction and dismiss their appeal as moot. In an unpublished order dated April 4, 2016, the Court of Appeals granted the Government’s motion, vacating the injunction and dismissing the appeal as moot. See Order, Klayman v. Obama, No. 15-5307 (D.C. Cir. Apr. 4, 2016), Doc. No. 1606954. Once again on remand to this Court, the individual-capacity defendants" }, { "docid": "21659489", "title": "", "text": "the Foreign Intelligence Surveillance Court (“FISC”) for an order requiring the “production of any tangible things ... for an investigation to protect against,” among other things, “international terrorism.” Pub. L. No. 107-56, 115 Stat. 272, 287 (2001) (codified at 50 U.S.C. § 1861(a)(1)). In May 2006 — after the Government sought and received authorization from judges of the FISC — the NSA began the bulk telephony metadata program that plaintiffs challenge today. See Klayman I, Decl. of Acting Assistant Dir. Robert J. Holley, FBI, ¶ 6 [Dkt. # 25-5]; Klayman I, Decl. of Teresa H. Shea, Signals Intelligence Dir., NSA, ¶ 13 [Dkt. # 25-4]. As part of this program, the NSA conducted daily bulk collection, storage, and analysis of telephony metadata. See id. From May 2006 until the termination of the program in November 2015, the Government obtained FISC orders directing certain telecommunications service providers to produce, in bulk, call-detail records, which contained metadata about telephone calls, including the time andv duration of a call and the dialing and .receiving numbers. Klayman I, Decl. of Wayne Murphy, Dir. of Operations, NSA, ¶¶6-7 (“Murphy Deck”) [Dkt. # 178-2]; Murphy Deck Ex. A (“Aug. 27, 2015 FISC Order”). The FISC orders expressly excluded the content of the call as well, as “the name, address, or financial information of a [telephone] subscriber or customer.” See Aug. 27, 2015 FISC Order at 3 n.1. In total, the FISC authorized the program forty-three times, under orders issued by at least nineteen different FISC judges. See Murphy Decl. ¶ 7. ■Under the program, once the data was collected, the Government created a repository where data could be accessed and queried by NSA analysts for the purpose of detecting and preventing terrorist attacks. Id. ¶¶ 6, 8-9. Among other minimization procedures designed to protect privácy interests of U.S. citizens, FISC orders authorizing the program required that metadata obtained through the program- be destroyed within five years of collection. Id. ¶ 11. ■ Beginning in March 2014, however, the FISC authorized the NSA to delay the destruction of metadata that had passed the five-year mark. Id. This" }, { "docid": "21659495", "title": "", "text": "# 1]; Klayman II, Compl., June 12, 2013 [Dkt. # 1]. As relevant here, Snowden’s “leaks” revealed, among other things, that a FISC order dated April 25, 2013 compelled Verizon Business Network Services (“VBNS”) to produce to the NSA on “an ongoing daily basis ... all call detail records or ‘telephony metadata’ created by Verizon for communications (i) between the United States and abroad; or (ii) wholly within the United States, including local telephone calls.’.’ Klayman I, Defs.’ Opp’n Pls.’ Mots. Prelim. Inj. Ex. F (“Apr. 25, 2013 FISC Order”) [Dkt. # 25-7]; see also Klayman I, Defs.’ Opp’n Pls.’ Mots. Prelim. Inj. 21 n.9 [Dkt. # 25] (“The Government has acknowledged the authenticity of an unlawfully disclosed Secondary Order of the FISC dated April 25, 2013, which listed Verizon Business Network Services, Inc. (VBNS) as a recipient of that order at that time.”). As subscribers of Verizon, plaintiffs alleged that their communications were likely among those collected through the Government’s program. In general, plaintiffs’ original complaints alleged that the Government uses the information collected through the surveillance programs I outlined above to create comprehensive profiles on U.S. citizens, including intimate details about their lives and personal associations. See, e.g., Klayman II, 3d Am. Compl. ¶¶ 1-3. According to plaintiffs, the NSA’s use of their personal information restricts their “abilities to communicate via telephone, e-mail, social media and otherwise on the Internet, out of fear that their confidential, private, and often privileged communications are being and will be overheard by the NSA’s surveillance program.” Id. ¶ 49. In the most recent versions of the complaints in. these two consolidated cases, plaintiffs, challenge the NSA’s bulk collection of. telephony metadata under Section 215, the Section 402 program, the PRISM program, and another program plaintiffs refer to as MUSCULAR See Klayman I, 4th Am. Compl. ¶¶ 44, 46, 51, 54, 59-60, 67; Klayman II, 3d Am. Compl. ¶¶ 10, 58, 63-64, 70, 73. In both cases, plaintiffs claim that the challenged surveillance programs violated — and continue to- violate their First, Fourth, and Fifth Amendment rights. Klayman I, 4th Am. Compl. ¶¶" }, { "docid": "21659518", "title": "", "text": "Cir. 1986) (quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41-42, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976)). Similarly, our Circuit has “consistently held that self-inflicted harm doesn’t satisfy the basic requirements for standing.” Nat'l Family Planning & Reprod. Health Ass’n v. Gonzales, 468 F.3d 826, 831 (D.C. Cir. 2006). Here, defendants have retained the remaining call-detail records at the request of plaintiffs — in this litigation — and third parties in other similar cases. As discussed above, the FISC’s November 24, 2015 order required the Government to destroy all bulk telephony metadata produced under the Section 215 program once its preservation obligations in civil litigation had been lifted. See Murphy Decl. ¶ 18; Nov. 24, 2015 FISC Order at 8. And as of the date of this opinion, the only metadata that the Government still retains from its bulk collection under Section 215 is metadata that is subject to a preservation obligation in this and other litigation. Murphy Decl. ¶ 18. Indeed, it was plaintiffs who explicitly requested that this Court enter an order that would prohibit defendants from “destroy[ing] any records relating to the Plaintiffs until- this 'case is tried and all appeals are heard.” Klayman I, Pls.’ Renewed Mot. Prelim. Inj. Proposed Order [Dkt. # 149-3]. And the same is true in the other civil litigation concerning the Government’s , challenged surveillance programs. See, e.g., Preservation Order A, D, Jewel, No. 4:08-cv-4373-JSW (N.D. Cal. Nov. 16, 2009); Preservation Order A, E, First Unitarian Church, No. 4:13-cv-3287-JSW (N.D. Cal. Mar. 21, 2014). As such, any injury plaintiffs may suffer as a result of this retention is either self-inflicted or traceable to the actions of third parties who are hot before this Court. Plaintiffs accordingly lack standing to pursue their claims for expungement of the remaining bulk telephony metadata. B. Plaintiffs’ Challenge to FISA’s Pen-Trap Provision In addition to their challenges to the Government’s now defunct surveillance program under Section 215 of the USA PATRIOT Act, plaintiffs seek a “cease and desist order to prohibit” the NSA from collecting or querying bulk Internet meta-data pursuant to" }, { "docid": "14952021", "title": "", "text": "associated with A, B, and C. (Before 2014, the FISC orders allowed the government to conduct queries for any number within three steps of the approved identifier, and the FISC did not play any role in assessing the government’s “reasonable articulable suspicion” for each query. Id. at 12 n.3). Once the government has retrieved the metadata, which does not include the content of the calls or the identities of the callers, it uses the data “in conjunction with a range of analytical tools to ascertain contact information that may be of use in identifying individuals who may be associated with certain foreign terrorist organizations because they have been in communication with certain suspected-terrorist telephone numbers or other selectors.” Id. at 9,15. Plaintiffs contend that this bulk collection constitutes an unlawful search under the Fourth Amendment; they seek injunctive and declaratory relief as well as damages. Third Amended Complaint ¶ 53, Klayman v. Obama, 13-cv-851 (D.D.C. Feb. 10, 2014), EOF No. 77. The'district court issued a preliminary injunction barring the government from collecting plaintiffs’ call records, but stayed its order pending appeal. Klayman v. Obama, 957 F.Supp.2d 1, 44 (2013). The court reverses the judgment of the district court, and for the reasons stated in the opinions of Judge Brown and Judge Williams orders the case remanded to the district court. (Judge Sentelle dissents from the order of remand and would order the case, dismissed.) The opinions of the judges appear below after a brief explanation of why the case is not moot. Under a “sunset” clause, the section of the U.S. Code amended by Section 215 was scheduled to revert to its pre-2001 form on June 1, 2015 unless Congress acted. See Pub. L. No. 109-177, § 102(b)(1), 120 Stat. 192, 194-95 (2006); Pub. L. No. 112-14, § 2(a), 125 Stat. 216, 216 (2011). That date came and went without any legislative action. One day after the deadline, however, Congress enacted the USA Freedom Act, which revived the language added by Section 215 with some substantial changes. See Pub. L. No. 114-23, Tit. I, 129 Stat. 268, 269-77 (2015), codified" }, { "docid": "21659511", "title": "", "text": "and prospective injunctive relief are accordingly mooted by this change in law. First,' plaintiffs’ request for a “cease and desist order to prohibit” the bulk collection of their telephony metadata under Section 215 is moot because the USA FREEDOM Act prohibits bulk collection. See Klayman I, 4th Am. Compl. ¶71. Indeed, “[i]t is well established that a case must be dismissed as moot if new legislation addressing the matter in-dispute is enacted while the case is still. pending.” Am. Bar Ass’n v. Fed. Trade Comm’n, 636 F.3d 641, 643 (D.C. Cir. 2011). Second, plaintiffs’ request for a “cease and desist order to prohibit” the NSA from querying plaintiffs’ metadata allegedly collected pursuant to Section 215 is also-moot because the FISC has prohibited the NSA from accessing this data for intelligence analysis purposes. See Klayman I, 4th Am. Compl. ¶ 71; Klayman II, 3d Am. Compl. ¶ 47; Nov. 24, 2015 FISC Order at 6; Murphy Decl. ¶ 17. Because of this intervening action by Congress and the FISC, it is clear that a decision by this Court would “neither presently affect” plaintiffs’ rights -nor “have a more-than-speculative chance of affecting them in the- future,” and thus plaintiffs’ claims no longer present a live Article III case or controversy. Chamber of Commerce, 642 F.3d at 199 (quoting Clarke, 915 F.2d at 701). Plaintiffs rejoin that the voluntary-cessation exception to the mootness doctrine applies here, and thus that their claims are not moot. Klayman I, Pls.’ Opp’n to Defs.’ Mot. Dismiss Klayman I & Klayman II for Lack of Subj. Matter Jurisdiction 14-15 (“Pls.’ Opp’n”) [Dkt. # 182], I disagree. “The rationale-supporting voluntary cessation as an exception to mootness is that, without an order from the Court preventing [the defendant] from continuing the allegedly illegal practice, the defendant [would be] free to return to its old ways — thereby subjecting the plaintiff to the same harm but, at the same time, avoiding judicial review.” Jackson v. U.S. Parole Comm’n, 806 F.Supp.2d 201, 207-08 (D.D.C. 2011) (internal quotation marks omitted). Here, defendants are plainly not “free” to reinstitute the Section 215 bulk collection" }, { "docid": "21659501", "title": "", "text": "the capabilities we need without the Government holding this bulk metadata,” in order to “give the public greater confidence that their privacy is appropriately protected.” Presidential Statement on the National Security Agency’s Section 215 Bulk Telephony Metadata Program, 2014 Daily Comp. Pres. Doc. 213,1 (Mar. 27,2014). Congress, too, responded in kind. On June 2, 2015, it enacted the USA FREEDOM Act, Pub. L. No. 114-23, 129 Stat. 268, which prohibits the Government from obtaining telephony metadata in bulk. See id. § 103, 129 Stat. at 272. The President quickly signed the USA FREEDOM Act into law, making the bulk collection of metadata unlawful, effective November 29, 2015. See id. §§ 103, 109, 129 Stat. at 272, 276. Importantly, the USA FREEDOM Act amends both Section 402 of FISA and Section 215 of the USA PATRIOT Act to prevent bulk collection by the Government. Id. § 101, 129 Stat. at 269 (“Additional Requirements for Call Detail Records”); id. § 103, 129 Stat. at 272 (“Prohibition on Bulk Collection of Tangible Things”); id. § 201, 129 Stat. at 277 (“Prohibition on Bulk Collection”); see 50 U.S.C. §§ 1861(b)(2), 1842(c). In place of bulk collection under Section 215, the USA FREEDOM Act requires targeted searches, whereby the Government must submit an application to the FISC identifying “a specific selection term,” such as a telephone number, “to be used as the basis for production” of the call-detail records sought. See USA FREEDOM Act §§ 101 (a)(3)(C)©, 103(a), 129 Stat. 270, 272; see Murphy Deck ¶ 14. As part of the NSA’s transition to this new targeted collection program, the Government sought authority for — and the FISC approved — the following minimization procedures: (1) the Government would retain certain data in order to comply with its evidence preservation obligations; and (2) the Government would retain a three-month period of technical access, ending on February 29, 2016, so that NSA technical personnel could verify the accuracy of productions under the new targeted system. See Murphy Deck ¶ 16; Murphy Deck Ex. B (“Nov. 24, 2015 FISC Order”). F. The Litigation on Remand Although I enjoined" }, { "docid": "21659510", "title": "", "text": "276- 50 U.S.C, § 1861(c)(3). Effective November 29, 2015, the bulk collection of telephony metadata authorized under Section 215 was replaced by a process for targeted production of call-detail records by telecommunications service providers, pursuant to FISC order. USA FREEDOM Act § 101, 129 Stat. at 269-70; Murphy Decl. ¶ 13. In accordance with Congress’s directive in the'USA FREEDOM Act, the final FISC order authorizing bulk collection of telephony metadata under Section 215 expired on November 28, 2015. See Aug. 27, 2015 FISC Order at 4. Despite the November 29, 2015 deadline, on November 24, 2015, the FISC authorized temporary; limited access to the collected metadata by NSA personnel through February 29, 2016, but it did so “solely for the purpose of verifying the completeness and accuracy of call detail records produced under the targeted (i.e„ non-bulk) production orders” issued by the FISC under the USA FREEDOM Act’s targeted collection program. Nov. 24, 2015 FISC Order at 6. And even this limited access ended over twenty months ago. Id. Both of plaintiffs’ requests for declaratory and prospective injunctive relief are accordingly mooted by this change in law. First,' plaintiffs’ request for a “cease and desist order to prohibit” the bulk collection of their telephony metadata under Section 215 is moot because the USA FREEDOM Act prohibits bulk collection. See Klayman I, 4th Am. Compl. ¶71. Indeed, “[i]t is well established that a case must be dismissed as moot if new legislation addressing the matter in-dispute is enacted while the case is still. pending.” Am. Bar Ass’n v. Fed. Trade Comm’n, 636 F.3d 641, 643 (D.C. Cir. 2011). Second, plaintiffs’ request for a “cease and desist order to prohibit” the NSA from querying plaintiffs’ metadata allegedly collected pursuant to Section 215 is also-moot because the FISC has prohibited the NSA from accessing this data for intelligence analysis purposes. See Klayman I, 4th Am. Compl. ¶ 71; Klayman II, 3d Am. Compl. ¶ 47; Nov. 24, 2015 FISC Order at 6; Murphy Decl. ¶ 17. Because of this intervening action by Congress and the FISC, it is clear that a decision by" }, { "docid": "21659509", "title": "", "text": "873 F.Supp.2d at 368 (quoting 5B Charles Alan Wright & Arthur Miller, Federal Practice and Procedure § 1350 (3d ed. 2004)). ANALYSIS A. Plaintiffs’ Challenge to Section 215 Surveillance 1. Plaintiffs’ Claims for Declaratory and Prospective Injunctive Relief Defendants argue that the statutorily mandated cessation of the Section 215 bulk collection program has mooted plaintiffs’ claims for declaratory and prospective injunctive relief. See Klayman I, Defs.’ Reply Supp. Mot. Dismiss Klayman I & Klayman II for Lack of Subj. Matter Jurisdiction 3 [Dkt. # 184]. Because the Government’s challenged conduct is now prohibited — both by federal statute and by an order of the FISC — I agree with defendants that plaintiffs’ challenge to the Section 215 program no longer presents an Article HI case or controversy. . As. discussed above, the USA FREEDOM Act-which was largely motivated by the .same concerns I articulated in my December 2013 opinion in this case — expressly prohibits the bulk collection of telephony metadata under Section 215. See USA FREEDOM Act §§ 103, 109, 129 Stat. at 272, 276- 50 U.S.C, § 1861(c)(3). Effective November 29, 2015, the bulk collection of telephony metadata authorized under Section 215 was replaced by a process for targeted production of call-detail records by telecommunications service providers, pursuant to FISC order. USA FREEDOM Act § 101, 129 Stat. at 269-70; Murphy Decl. ¶ 13. In accordance with Congress’s directive in the'USA FREEDOM Act, the final FISC order authorizing bulk collection of telephony metadata under Section 215 expired on November 28, 2015. See Aug. 27, 2015 FISC Order at 4. Despite the November 29, 2015 deadline, on November 24, 2015, the FISC authorized temporary; limited access to the collected metadata by NSA personnel through February 29, 2016, but it did so “solely for the purpose of verifying the completeness and accuracy of call detail records produced under the targeted (i.e„ non-bulk) production orders” issued by the FISC under the USA FREEDOM Act’s targeted collection program. Nov. 24, 2015 FISC Order at 6. And even this limited access ended over twenty months ago. Id. Both of plaintiffs’ requests for declaratory" }, { "docid": "14952033", "title": "", "text": "records from their telecommunications provider relating to their calls. But.plaintiffs are subscribers of Verizon Wireless, not of Verizon Business Network Services, Inc. — the sole provider that the government has acknowledged targeting for bulk collection. Gov’t’s Br. at 38; Appellees’ Br. at 26-28; see also Secondary Order, In re Application of FBI, No. BR 13-80 (FISC, Apr. 25, 2013) (Vinson, J.). Thus, unlike some others who have brought legal challenges to the bulk collection program, plaintiffs lack direct evidence that records involving their calls have actually been collected. Cf. ACLU v. Clapper, 785 F.3d 787, 801 (2d Cir.2015) (finding that Verizon Business subscribers had standing to challenge the bulk collection program because “the government’s own orders demonstrate that appellants’ call records are indeed among those collected as part of the telephone metadata program”). Plaintiffs’ contention that the government is collecting data from Verizon Wireless (a contention that the government neither confirms nor denies, Gov’t’s Br. at 38-39), depends entirely on an inference from the existence of the bulk collection program itself. Such a program would be ineffective, they say, unless the government were collecting metadata from every large carrier such as Verizon Wireless; ergo it must be collecting such data. Appellee’s Br. 27-28. This inference was also the district judge’s sole basis for finding standing. Klayman v. Obama, 957 F.Supp.2d 1, 27 & n. 36 (2013). Yet the government has consistently maintained that its collection “never encompassed all, or even virtually all, call records and does not do so today.” Gov’t’s Br. at 39; Decl. of Teresa Shea, NSA Signals Intelligence Director at ¶ 8, Addendum to Gov’t’s Br. at 101 (similar). While one district judge has claimed that “the Government acknowledged that since May 2006, it has collected this information for substantially every telephone call in the United States,” neither of his sources — an Administration “White Paper” and a declaration by an NSA official— actually supports the claim. ACLU v. Clapper, 959 F.Supp.2d 724, 735 (S.D.N.Y. 2013), vacated and remanded, 785 F.3d 787 (2d Cir.2015); see Administration White Paper, Bulk Collection of Telephony Metadata Under Section 215 of" }, { "docid": "21659488", "title": "", "text": "and return of any collected data pertaining to plaintiffs’ communications. See Klayman I, 4th Am. Compl. ¶ 71; Klayman II, 3d Am. Compl. ¶ 77. They also seek a multi-billion dollar award for compensatory, actual, and punitive damages and for attorneys’ fees and costs. Klayman I, 4th Am. Compl. ¶ 70; Klayman II, 3d Am. Compl, ¶ 76. • These cases áre before the Court on defendants’ consolidated Motion to Dis miss. See Klayman I [Dkt. # 178]; Klayman II [Dkt. # 123]. Upon consideration of the parties’ submissions, and the entire record herein, defendants’ motion is GRANTED and plaintiffs’ complaints are DISMISSED with prejudice. BACKGROUND Because the controversy surrounding the Government’s challenged conduct in these cases has featured prominently in the news media over the last four years, familiarity with this case is likely. 1 nonetheless will provide a brief background of these two related suits. A. The Section 215 Bulk Telephony Metadata Program Section 215 of the USA PATRIOT Act, which governs access to certain “business records,” authorizes the Government to apply to the Foreign Intelligence Surveillance Court (“FISC”) for an order requiring the “production of any tangible things ... for an investigation to protect against,” among other things, “international terrorism.” Pub. L. No. 107-56, 115 Stat. 272, 287 (2001) (codified at 50 U.S.C. § 1861(a)(1)). In May 2006 — after the Government sought and received authorization from judges of the FISC — the NSA began the bulk telephony metadata program that plaintiffs challenge today. See Klayman I, Decl. of Acting Assistant Dir. Robert J. Holley, FBI, ¶ 6 [Dkt. # 25-5]; Klayman I, Decl. of Teresa H. Shea, Signals Intelligence Dir., NSA, ¶ 13 [Dkt. # 25-4]. As part of this program, the NSA conducted daily bulk collection, storage, and analysis of telephony metadata. See id. From May 2006 until the termination of the program in November 2015, the Government obtained FISC orders directing certain telecommunications service providers to produce, in bulk, call-detail records, which contained metadata about telephone calls, including the time andv duration of a call and the dialing and .receiving numbers. Klayman I, Decl." }, { "docid": "2982256", "title": "", "text": "from Edward Snowden, a former NSA contract employee, which have revealed — and continue to reveal — multiple U.S. government intelligence collection and surveillance programs. See Glenn Greenwald, NSA collecting phone records of millions of Verizon customers daily, Guardian (London), June 5, 2013. That initial media report disclosed a FISC order dated April 25, 2013, compelling Verizon Business Network Services to produce to the NSA on “an ongoing daily basis ... all call detail records or ‘telephony metadata’ created by Verizon for communications (i) between the United States and abroad; or (ii) wholly within the United States, including local telephone calls.” Secondary Order, In re Application of the [FBI] for an Order Requiring the Production of Tangible Things from Verizon Business Network Services, Inc. on Behalf of MCI Communication Services, Inc. djb/a Verizon Business Services, No. BR 13-80 at 2 (FISC Apr. 25, 2013) (attached as Ex. F to Gilligan Decl.) [Dkt. # 25-7] (“Apr. 25, 2013 Secondary Order”). According to the news article, this order “show[ed] ... that under the Obama administration the communication records of millions of US citizens are being collected indiscriminately and in bulk — regardless of whether they are suspected of any wrongdoing.” Greenwald, supra. In response to this disclosure, the Government confirmed the authenticity of the April 25, 2013 FISC Order, and, in this litigation and in certain public statements, acknowledged the existence of a “program” under which “the FBI obtains orders from the FISC pursuant to Section 215 [of the USA PATRIOT Act] directing certain telecommunications service providers to produce to the NSA on a daily basis electronic copies of ‘call detail records.’ ” Govt’s Opp’n at 8. Follow-on media reports revealed other Government surveillance programs, including the Government’s collection of internet data pursuant to a program called “PRISM.” See Glenn Greenwald & Ewen MacAskill, NSA Prism program taps in to user data of Apple, Google and others, GUARDIAN (London), June 6, 2013. Soon after the first public revelations in the news media, plaintiffs filed their complaints in these two cases on June 6, 2013 (Klayman I) and June 12, 2013 (Klayman II)," }, { "docid": "21659499", "title": "", "text": "communications. Klayman I, 4th Am. Compl. ¶ 71; Klayman II, 3d Am. Compl. ¶77. . In October 2013, four months after filing their complaints, plaintiffs moved for preliminary -injunctions in both cases. See Klayman I, Pls.’ Mot. Prelim. Inj. [Dkt. # 13], Klayman II, Pls.’ Mot. Prelim. Inj. [Dkt. # 10]. And in December of that year, I enjoined the Government from further collecting plaintiffs’ call records. Klayman v. Obama, 957 F.Supp.2d 1, 43-14 (D.D.C. 2013), vacated and remanded, 800 F.3d 559 (D.C. Cir. 2015) (per curiam). In so ruling, I held that plaintiffs Klayman and Charles Strange had standing to challenge both the bulk collection of metadata under these programs and the analysis of that data through the .NSA’s electronic querying process. Id. at 8, 26-29. On the merits, I fqund it significantly likely that plaintiffs would be able to show that these programs violated their reasonable expectation of privacy and therefore constituted a Fourth Amendment search, and that the- searches were unreasonable. Id. at 30-42. But in light of the “significant national security interests at stake,” I voluntarily stayed my order pending the Government’s appeal. Id. at 43. To say the least, that opinion unleashed a firestorm of press and public discussion! E. The USA FREEDOM Act While my December 2013 injunction in Klayman I was stayed pending appeal, the other branches began to grapple with the significant constitutional questions raised by the NSA’s surveillance programs, and they accordingly took steps to weigh in on the issue. In early 2014, President Barack Obama voiced many of the same concerns articulated in my December 2013 opinion. See Remarks on United States Signals Intelligence and Electronic Surveillance Programs, 2014 Daily Comp. Pres. Doc. 30, 2 (Jan. 17, 2014) (“[I]n our rush to respond to a very real and novel set of threats, the risk of Government overreach — the possibility that we lose some of our core liberties in pursuit of security also became more pronounced.”). And in March of that year, he announced that he would seek legislation to replace the Section 215 program with “a mechanism to preserve" }, { "docid": "12652729", "title": "", "text": "failed by a vote of 58^12, thereby preventing the bill from coming up for a vote in the Senate despite the desire of 58 senators to proceed to a vote on the measure. USA FREEDOM Act, S. 2685, 113th Cong. (2014). The current Congress is likewise considering bills aimed at modifying § 215; a bill that would place the bulk metadata collected into the hands of telecommunications providers, to be accessed by the government only with FISC authorization, has been introduced in both the House and the Senate in recent weeks. See USA FREEDOM Act of 2015, H.R. 2048/S. 1123, 114th Cong. (2015). On April 30, 2015, the bill passed the House Judiciary Committee. See USA FREEDOM Act of 2015, H.R. 2048, 114th Cong. (2015). A vote from the full House on the bill is expected later this month. Finally, the program has come under scrutiny by Article III courts other than the FISC. In addition to this case, similar cases have been filed around the country challenging the government’s bulk collection of telephone metadata. See, e.g., Smith v. Obama, 24 F.Supp.3d 1005 (D.Idaho 2014), No. 14-35555 (9th Cir. argued Dec. 8, 2014); Klayman v. Obama, 957 F.Supp.2d 1 (D.D.C.2013), No. 14-5004 (D.C. Cir. argued Nov. 4, 2014). IV. Procedural History On June 11, 2013, the American Civil Liberties Union and American Civil Liberties Union Foundation (collectively, “ACLU”) and the New York Civil Liberties Union and New York Civil Liberties Union Foundation (collectively, “NY-CLU”) — current and former- Verizon customers, respectively — sued the government officials responsible for administering the telephone metadata program, challenging the program on both statutory and constitutional grounds and seeking declaratory and injunctive relief. The complaint asks the court to declare that the telephone metadata program exceeds the authority granted by § 215, and also violates the First and Fourth Amendments to the U.S. Constitution. It asks the court to permanently enjoin defendants from continuing the program, and to order defendants to “purge from their possession all of the call records of [plaintiffs’ communications” collected in accordance with the program. Joint App’x 27. On August 26," }, { "docid": "21659500", "title": "", "text": "interests at stake,” I voluntarily stayed my order pending the Government’s appeal. Id. at 43. To say the least, that opinion unleashed a firestorm of press and public discussion! E. The USA FREEDOM Act While my December 2013 injunction in Klayman I was stayed pending appeal, the other branches began to grapple with the significant constitutional questions raised by the NSA’s surveillance programs, and they accordingly took steps to weigh in on the issue. In early 2014, President Barack Obama voiced many of the same concerns articulated in my December 2013 opinion. See Remarks on United States Signals Intelligence and Electronic Surveillance Programs, 2014 Daily Comp. Pres. Doc. 30, 2 (Jan. 17, 2014) (“[I]n our rush to respond to a very real and novel set of threats, the risk of Government overreach — the possibility that we lose some of our core liberties in pursuit of security also became more pronounced.”). And in March of that year, he announced that he would seek legislation to replace the Section 215 program with “a mechanism to preserve the capabilities we need without the Government holding this bulk metadata,” in order to “give the public greater confidence that their privacy is appropriately protected.” Presidential Statement on the National Security Agency’s Section 215 Bulk Telephony Metadata Program, 2014 Daily Comp. Pres. Doc. 213,1 (Mar. 27,2014). Congress, too, responded in kind. On June 2, 2015, it enacted the USA FREEDOM Act, Pub. L. No. 114-23, 129 Stat. 268, which prohibits the Government from obtaining telephony metadata in bulk. See id. § 103, 129 Stat. at 272. The President quickly signed the USA FREEDOM Act into law, making the bulk collection of metadata unlawful, effective November 29, 2015. See id. §§ 103, 109, 129 Stat. at 272, 276. Importantly, the USA FREEDOM Act amends both Section 402 of FISA and Section 215 of the USA PATRIOT Act to prevent bulk collection by the Government. Id. § 101, 129 Stat. at 269 (“Additional Requirements for Call Detail Records”); id. § 103, 129 Stat. at 272 (“Prohibition on Bulk Collection of Tangible Things”); id. § 201, 129 Stat." }, { "docid": "21659487", "title": "", "text": "in these Government surveillance programs. See Klayman I, 4th Am. Compl. ¶¶7-18 [Dkt. # 145-1]; Klayman II, 3d Am. Compl. ¶¶ 4-23 [Dkt. # 112], In the operative complaints, plaintiffs challenge the Government’s wholesale collection and analysis of the phone and Internet metadata of U.S. citizens. Plaintiffs allege that these surveillance programs violated — and continue to violate — their First, Fourth, and Fifth Amendment rights. See Klayman I, 4th Am. Compl. ¶¶ 49-69; Klayman II, 3d Am. Compl. ¶¶ 55-75. In the actions as filed, defendants are several federal agencies and departments, executive and judicial officials, and telecommunications and Internet service providers and their executive officers. See Klayman I, 4th Am. Compl. ¶¶ 19—25; Klayman II, 3d Am. Compl. ¶¶ 24-35. To remedy defendants’ alleged constitutional infractions, plaintiffs seek three distinct forms of declaratory and injunctive relief: (1) an injunction against future bulk collection of metadata about their calls; (2) an injunction against NSA queries of plaintiffs’ metadata that may have been-collected under the program; and (3) an accounting, expungement from federal Government records, and return of any collected data pertaining to plaintiffs’ communications. See Klayman I, 4th Am. Compl. ¶ 71; Klayman II, 3d Am. Compl. ¶ 77. They also seek a multi-billion dollar award for compensatory, actual, and punitive damages and for attorneys’ fees and costs. Klayman I, 4th Am. Compl. ¶ 70; Klayman II, 3d Am. Compl, ¶ 76. • These cases áre before the Court on defendants’ consolidated Motion to Dis miss. See Klayman I [Dkt. # 178]; Klayman II [Dkt. # 123]. Upon consideration of the parties’ submissions, and the entire record herein, defendants’ motion is GRANTED and plaintiffs’ complaints are DISMISSED with prejudice. BACKGROUND Because the controversy surrounding the Government’s challenged conduct in these cases has featured prominently in the news media over the last four years, familiarity with this case is likely. 1 nonetheless will provide a brief background of these two related suits. A. The Section 215 Bulk Telephony Metadata Program Section 215 of the USA PATRIOT Act, which governs access to certain “business records,” authorizes the Government to apply to" }, { "docid": "21659508", "title": "", "text": "Cir. 2011) (quoting Clarke v. United States, 915 F.2d 699, 701 (D.C. Cir. 1990)). Here, defendants have filed a motion to : dismiss pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, and thus they seek dismissal of plaintiffs’ complaints based on lack of subject matter jurisdiction. Under Rule 12(b)(1), “[a] defendant may make a factual attack on the Court’s subject matter jurisdiction ... as opposed to a facial attack based solely on the-complaint.” Finca Santa Elena, Inc. v. U.S. Army Corps of Eng’rs, 873 F.Supp.2d 363, 368 (D.D.C. 2012). When a defendant makes a factual attack on jurisdiction — as defendants do here — “no presumption of truthfulness applies to the factual allegations” in- the plaintiff’s complaint. Richards v. Duke Univ., 480 F.Supp.2d 222, 232 (D.D.C. 2007) (quoting Ohio Nat’l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990)). I therefore am “not-obliged to accept [plaintiffs’] allegations as true and may examine evidence to the contrary and reach [my] own conclusion on the matter,” Finca Santa Elena, Inc., 873 F.Supp.2d at 368 (quoting 5B Charles Alan Wright & Arthur Miller, Federal Practice and Procedure § 1350 (3d ed. 2004)). ANALYSIS A. Plaintiffs’ Challenge to Section 215 Surveillance 1. Plaintiffs’ Claims for Declaratory and Prospective Injunctive Relief Defendants argue that the statutorily mandated cessation of the Section 215 bulk collection program has mooted plaintiffs’ claims for declaratory and prospective injunctive relief. See Klayman I, Defs.’ Reply Supp. Mot. Dismiss Klayman I & Klayman II for Lack of Subj. Matter Jurisdiction 3 [Dkt. # 184]. Because the Government’s challenged conduct is now prohibited — both by federal statute and by an order of the FISC — I agree with defendants that plaintiffs’ challenge to the Section 215 program no longer presents an Article HI case or controversy. . As. discussed above, the USA FREEDOM Act-which was largely motivated by the .same concerns I articulated in my December 2013 opinion in this case — expressly prohibits the bulk collection of telephony metadata under Section 215. See USA FREEDOM Act §§ 103, 109, 129 Stat. at 272," }, { "docid": "21659494", "title": "", "text": "Government to conduct the data acquisition with the assistance of an electronic communication service provider, and the Government must do so “in a manner consistent with the [F]ourth [A]mendment.” 50 U.S.C. § 1881a(b)(5), (g)(2)(A)(vi), (b); Murphy Decl. ¶¶ 22-23. Unlike the surveillance programs under Section 215 of the USA PATRIOT Act or Section 402 of FISA, Section 702 of FISA is a targeted content-collection program, not a bulk collection program. See Murphy Decl. ¶¶ 23, 26. As such, PRISM collection can only target non-U.S. persons located abroad who possess or are likely to receive or communicate foreign intelligence information authorized for acquisition. Id. ¶¶ 22-23. The identities of persons targeted under this program are classified, as are the identities of the electronic communications service providers that assist in the acquisition. Id. ¶ 27. D. The Initial Litigation Shortly after Edward Snowden’s disclosure of classified material — which revealed some of' the NSA’s' surveillance programs for the first time — plaintiffs filed suit in both of these cases. See Klayman I, Compl., June 6, 2013 [Dkt. # 1]; Klayman II, Compl., June 12, 2013 [Dkt. # 1]. As relevant here, Snowden’s “leaks” revealed, among other things, that a FISC order dated April 25, 2013 compelled Verizon Business Network Services (“VBNS”) to produce to the NSA on “an ongoing daily basis ... all call detail records or ‘telephony metadata’ created by Verizon for communications (i) between the United States and abroad; or (ii) wholly within the United States, including local telephone calls.’.’ Klayman I, Defs.’ Opp’n Pls.’ Mots. Prelim. Inj. Ex. F (“Apr. 25, 2013 FISC Order”) [Dkt. # 25-7]; see also Klayman I, Defs.’ Opp’n Pls.’ Mots. Prelim. Inj. 21 n.9 [Dkt. # 25] (“The Government has acknowledged the authenticity of an unlawfully disclosed Secondary Order of the FISC dated April 25, 2013, which listed Verizon Business Network Services, Inc. (VBNS) as a recipient of that order at that time.”). As subscribers of Verizon, plaintiffs alleged that their communications were likely among those collected through the Government’s program. In general, plaintiffs’ original complaints alleged that the Government uses the information collected" } ]

[ { "docid": "1900535", "title": "", "text": "striking his head on the concrete floor. . Commercial Casualty Ins. Co. v. Hoage, 64 App.D.C. 158, 159, 75 F.2d 677, 678 (1945). . Hancock v. Einbinder, 114 U.S.App.D.C. 67, 71, 310 F.2d 872, 876 (1962) where we rejected the “notion that an injury is not compensable unless it resulted from the performance of unusual work.\" (Emphasis added.) . General Accident Fire & Life Assur. Corp. v. Donovan, 102 U.S.App.D.C. 204, 251 F.2d 915 (1958). . President and Directors of Georgetown College v. Stone, 61 App.D.C. 200, 59 F.2d 875 (1932). . Ibid.; compare Employers Mut. L. Ins. Co. of Wisconsin v. Industrial Acc. Com’n, (Sup.Ct.Calif. en banc), 41 Cal.2d 676, 263 P.2d 4 (1953). . Hartford Accident & Indemnity Co. v. Cardillo, 72 App.D.C. 52, 55, 112 F.2d 11, 14, cert. denied, 310 U.S. 649, 60 S.Ct. 1100, 84 L.Ed. 1415 (1940). . See New Amsterdam Casualty Co. v. Hoage, 61 App.D.C. 306, 307, 62 F.2d 468, 469 (1932) where the court said: “From the record it appears probable that Brosnan’s fall was occasioned by a loss of balance due to stumbling, slipping, or sudden dizziness while crossing the street.” One year earlier this court had reversed an award where an employee while crossing a street was struck by a streetcar. The court concluded that the presumption of compensability was countered by substantial evidence that the employee was not then performing services arising from his employment. New Amsterdam Casualty Co. v. Hoage, 60 App.D.C. 40, 46 F.2d 837 (1931). . O’Leary v. Brown-Pacific-Maxon, 340 U.S. 504, 507, 71 S.Ct. 470, 472, 95 L.Ed. 483 (1951). . Id., 340 U.S. at 508, 71 S.Ct. at 472. . Cardillo v. Liberty Mutual Co., 330 U.S. 469, 479, 67 S.Ct. 801, 807, 91 L.Ed. 1028 (1947)." } ]

[ { "docid": "243681", "title": "", "text": "a conclusion to that effect. It provides: “ * * * in the absence of substantial evidence to the contrary • * * * ” it shall be presumed “ * * * That the claim comes within the provisions [of the Act]. * * *» 44 stat. 1436 (1927), 33 U.S.C.A. § 920(a) It is held, as we have seen, that when death in the course of employment results from an aggravation, caused by the employment, of a pre-existing illness, it is compensable under the statute. We think it follows that the statutory presumption brings the death within the Act when it results in the course of employment from an illness which has taken a sudden and unusual turn for the worse, not shown by substantial evidence to be unrelated to the employment. In Del Vecchio v. Bowers, 1935, 296 U.S. 280, 56 S.Ct. 190, 80 L.Ed. 229, in a case involving the presumption that injury was not occasioned by the willful intention of the employee to kill himself, the Court, though finding the presumption overcome by substantial evidence, stated the rule as-follows: “The act * * * does not leave the matter to be determined by the general principles of law, but announces its own rule, to the effect that the claimant, in the absence of substantial evidence to the contrary, shall have the benefit of the presumption of accidental death. * * * ” 296 U.S. at page 286, 56 S.Ct. at page 193. In our own court the presumption has been partially relied upon in several cases, not limited to the question of jurisdiction. Hartford Accident & Indemnity Co. v. Cardillo, 1940, 72 App.D.C. 52, 54, 58, 112 F.2d 11, 13, 17, certiorari denied, 310 U.S. 649, 60 S.Ct. 1100, 84 L.Ed. 1415; Maryland Casualty Co. v. Cardillo, 1939, 71 App.D.C. 160, 107 F.2d 959; New Amsterdam Casualty Co. v. Hoage, 1932, 61 App.D.C. 306, 307, 62 F.2d 468, 469, certiorari denied, 1933, 288 U.S. 608, 53 S.Ct. 400, 77 L.Ed. 982. See, also, Marra Bros. v. Cardillo, 3 Cir., 1946, 154 F.2d 357, 359, where" }, { "docid": "14170209", "title": "", "text": "& Philadelphia Steamboat Co. v. Norton, 284 U.S. 408, 414, 52 S.Ct. 187, 189, 76 L.Ed. 366, 369-370 (1932). . Id. . J. V. Vozzolo, Inc. v. Britton, supra note 29, 126 U.S.App.D.C. at 262, 377 F.2d at 147 (foot notes omitted). See also Wheatley v. Adler, supra note 29, 132 U.S.App.D.C. at 184, 407 F.2d at 314; Voris v. Eikel, 346 U.S. 228, 333, 74 S.Ct. 88, 91-92, 98 L.Ed. 5, 10 (1953); Baltimore & Philadelphia Steamboat Co. v. Norton, supra note 54, 284 U.S. at 414, 52 S.Ct. at 189, 76 L.Ed. at 369-370; Howell v. Einbinder, supra note 29, 121 U.S.App.D.C. at 314, 350 F.2d at 444; Hancock v. Einbinder, supra note 34, 114 U.S.App.D.C. at 70, 310 F.2d at 875; Phoenix Assurance Co. v. Britton, 110 U.S.App.D.C. 118, 120, 289 F.2d 784, 786 (1961); Friend v. Britton, 95 U.S.App.D.C. 139, 141, 220 F.2d 820, 821, cert. denied, 350 U.S. 836, 76 S.Ct. 72, 100 L.Ed. 745 (1955). . Wheatley v. Adler, supra note 29, 132 U.S.App.D.C. at 182, 407 F.2d at 312, quoting O’Keeffe v. Smith, Hinchman & Grylls Associates, supra note 29, 380 U.S. at 363, 85 S.Ct. at 1015, 13 L.Ed.2d at 898. . Wheatley v. Adler, supra note 29, 132 U.S.App.D.C. at 183, 407 F.2d at 313. The quoted language is from Commercial Cas. Ins. Co. v. Hoage, 64 App.D.C. 158, 159, 75 F.2d 677, 678, cert. denied, 295 U.S. 733, 55 S.Ct. 645, 79 L.Ed. 1682 (1935). . Wheatley v. Adler, supra note 29, 132 U.S.App.D.C. at 183, 407 F.2d at 312. . See cases cited supra note 34. . For other cases in this circuit reversing for insufficiency of the evidence to rebut the statutory presumption, see Mitchell v. Woodworth, supra note 29, 146 U.S.App.D.C. at 23, 449 F.2d at 1100; Wheatley v. Adler, supra note 29, 132 U.S.App.D.C. at 182-194, 407 F.2d at 312-314; Butler v. District Parking Management Co., supra note 29, 124 U.S.App.D.C. at 196-197, 363 F.2d at 683-684; Hancock v. Einbinder, supra note 34, 114 U.S.App.D.C. at 71, 310 F.2d at 876; Robinson v. Bradshaw, supra note" }, { "docid": "15069068", "title": "", "text": "supra note 10, 340 U.S. at 507-509, 71 S.Ct. 470; Cardillo v. Liberty Mutual Insurance Co., supra note 14, 330 U.S. at 477-478, 67 S.Ct. 801. . “Substantial evidence is ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ ” Avignone Freres, Inc. v. Cardillo, 73 App.D.C. 149, 150, 117 F.2d 385, 386 (1940), quoting Consolidated Edison Co. of New York v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938). . 33 U.S.C. § 904(b). . Avignone Freres, Inc. v. Cardillo, supra note 19; Hartford Accident & Indemnity Co. v. Cardillo, 72 App.D.C. 52, 112 F. 2d 11, cert. denied 310 U.S. 649, 60 S.Ct. 1100, 84 L.Ed. 1415 (1940). . See Great American Indemnity Co. v. Cardillo, 77 U.S.App.D.C. 306, 135 F.2d 241 (1943); Avignone Freres, Inc. v. Cardillo, supra note 19; New Amsterdam Casualty Co. v. Cardillo, 71 App.D.C. 172, 108 F.2d 492 (1939); National Casualty Co. v. Hoage, 64 App.D.C. 33, 73 F.2d 850 (1934). See also cases cited supra note 13. . See Richardson v. Britton, 89 U.S.App. D.C. 391, 192 F.2d 423 (1951), cert. denied 343 U.S. 920, 72 S.Ct. 676, 96 L.Ed. 1334 (1952); Carson v. Cardillo, 77 U.S. App.D.C. 82,132 F.2d 604 (1942); Hoage v. Liberty Mutual Insurance Co., 64 App. D.C. 395, 78 F.2d 874 (1935); Powell v. Hoage, 61 App.D.C. 99, 57 F.2d 766 (1932). See also Lumbermen’s Mutual Casualty Co. v. Einbinder, 120 U.S.App. D.C. 56, 343 F.2d 338 (1965). . See the cases cited supra notes 13 and 22. . “In any proceeding for the enforcement of a claim for compensation under this chapter it shall be presumed, in the absence of substantial evidence to the contrary — (a) That the claim comes within the provisions of this chapter. * * * ” 33 IJ.S.C. § 920. . We do not regard the Deputy Commissioner’s disposition of the companion claim as having that effect. As mentioned previously, the employee’s effort in that proceeding to obtain compensation for temporary total disability subsequent to March 18, 1963, was predicated factually upon" }, { "docid": "15069067", "title": "", "text": "Cardillo, 75 U.S.App.D.C. 342, 127 F.2d 334 (1942); Hoage v. Royal Indemnity Co., 67 App.D.C. 142, 90 F.2d 387, cert. denied Royal Indemnity Co. v. Cardillo, 302 U.S. 736, 58 S.Ct. 122, 82 L.Ed. 569 (1937) ; London Guarantee & Accident Co. v. Hoage, 63 App.D.C. 323, 324, 72 F.2d 191, 192 (1934) ; Hoage v. Employers’ Liability Assurance Corp., supra note 12, 62 App.D.C. at 79, 64 F.2d at 717; New Amsterdam Casualty Co. v. Hoage, 61 App.D.C. 306, 62 F.2d 468 (1932), cert. denied 288 U.S. 608, 53 S.Ct. 400, 77 L. Ed. 982 (1933). . Cardillo v. Liberty Mutual Insurance Co., 330 U.S. 469, 478, 67 S.Ct. 801, 91 L.Ed. 1028 (1947). . O’Leary v. Brown-Pacific-Maxon, Inc., supra note 10, 340 U.S. at 508, 71 S.Ct. 470. . Cardillo v. Liberty Mutual Insurance Co., supra note 14, 330 U.S. at 478, 67 S.Ct. 801. . im. . O’Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359, 362, 85 S.Ct. 1012, 13 L.Ed.2d 895 (1965). See also O’Leary v. Brown-Pacific-Maxon, Inc., supra note 10, 340 U.S. at 507-509, 71 S.Ct. 470; Cardillo v. Liberty Mutual Insurance Co., supra note 14, 330 U.S. at 477-478, 67 S.Ct. 801. . “Substantial evidence is ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ ” Avignone Freres, Inc. v. Cardillo, 73 App.D.C. 149, 150, 117 F.2d 385, 386 (1940), quoting Consolidated Edison Co. of New York v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938). . 33 U.S.C. § 904(b). . Avignone Freres, Inc. v. Cardillo, supra note 19; Hartford Accident & Indemnity Co. v. Cardillo, 72 App.D.C. 52, 112 F. 2d 11, cert. denied 310 U.S. 649, 60 S.Ct. 1100, 84 L.Ed. 1415 (1940). . See Great American Indemnity Co. v. Cardillo, 77 U.S.App.D.C. 306, 135 F.2d 241 (1943); Avignone Freres, Inc. v. Cardillo, supra note 19; New Amsterdam Casualty Co. v. Cardillo, 71 App.D.C. 172, 108 F.2d 492 (1939); National Casualty Co. v. Hoage, 64 App.D.C. 33, 73 F.2d 850 (1934). See also cases cited supra note 13." }, { "docid": "14170202", "title": "", "text": "L.Ed.2d 954, 960 (1967); Ex parte Collett, 337 U.S. 55, 69 S.Ct. 944, 93 L.Ed. 1207, 10 A.L.R.2d 921 (1949); Pruess v. Udall, 123 U.S.App.D.C. 301, 359 F.2d 615 (1965). . O’Leary v. Brown-Pacific Maxon, Inc., 340 U.S. 504, 508, 71 S.Ct. 470, 472, 95 L.Ed. 483, 487 (1951); Cardillo v. Liberty Mut. Ins. Co., supra note 1. . Mitchell v. Woodworth, 146 U.S.App.D.C. 21, 23, 449 F.2d 1097, 1099 (1971); Wheatley v. Adler, 132 U.S.App.D.C. 177, 180, 407 F.2d 307, 310 (an banc 1968); J. V. Vozzolo, Inc. v. Britton, 126 U.S.App.D.C. 259, 262, 377 F.2d 144, 147 (1967); Butler v. District Parking Management Co., 124 U.S.App.D.C. 195, 199, 363 F.2d 682, 684 (1966); Howell v. Einbinder, 121 U.S.App.D.C. 312, 313-314, 350 F.2d 442, 443-444 (1965); Robinson v. Bradshaw, 92 U.S.App.D.C. 216, 220, 206 F.2d 435, 439, cert. denied, 346 U.S. 899, 74 S.Ct. 226, 98 L.Ed. 400 (1953). . “In any proceeding for the enforcement of a claim for compensation under this chapter it shall be presumed, in the absence of substantial evidence to the contrary — (a) That the claim comes within the provisions of this chapter. . . ” Longshoremen’s and Harbor Workers’ Compensation Act, § 20, 33 U.S.C. § 920 (1970). . Wheatley v. Adler, supra note 29, 132 U.S.App.D.C. at 182, 407 F.2d at 312, quoting O’Keefe v. Smith, Hinchman, & Grylls Associates, 380 U.S. 359, 363, 85 S.Ct. 1012, 1015, 13 L.Ed.2d 895, 898 (1965). . Del Vecchio v. Bowers, 296 U.S. 280, 286, 56 S.Ct. 190, 193, 80 L.Ed. 229, 232-233 (1935). . Swinton makes a second argument for reversal, urging that the District Court erred in refusing to consider, as a ground for setting aside the Deputy Commissioner’s award, the claim that the back condition was an occupational disease. Finding that Swinton did not raise this claim before the Deputy Commissioner, the District Court refused to consider it. In view of our reversal on the evidence issue, we need not consider this contention. . This court has frequently drawn upon the presumption to assist a determination as to whether a particular" }, { "docid": "15069070", "title": "", "text": "the lifting of a heavy truck tire and rim on March 9, 1963. Largely on findings that the employee had not utilized opportunities to mention such an occurrence, and that the employer’s records failed to show the removal of a truck tire and rim on that date, “the testimony of the claimant as to the fact of the alleged injury on March 9, 1963 was,” in the words of the Deputy Commissioner, “deemed incredible.” Rejection of the claim was rested solely upon the ultimate finding “[t]hat the claimant did not sustain an injury on March 9, 1963, as alleged,” and this unappealed conclusion we, of course, accept as we must. But there was no finding, or even an intimation, that an employment event other than that relied on by the employee had not occurred to directly induce the second infarction, or that it was brought on by something outside the employment. We therefore cannot accept the Deputy Commissioner’s action as a finding that the second infarction was not related to the employment. In passing we also note cases holding that an employee who sustains a compensable injury, and later an additional though perhaps employment-unrelated injury as a natural result of the original injury, is entitled to compensation for both. Zurich General Accident & Liability Insurance Co. v. Daffern, 81 F.2d 179 (5th Cir.), cert. denied 298 U.S. 667, 56 S.Ct. 751, 80 L.Ed. 1391 (1936) ; Cyr v. Crescent Wharf & Warehouse Co., 211 F.2d 454 (9th Cir. 1954) ; Head Drilling Co. v. Industrial Accident Comm., 177 Cal. 194, 170 P. 157 (1918); Continental Casualty Co. v. Industrial Comm., 75 Utah 220, 284 P. 313 (1929). . See Hancock v. Einbinder, supra note 6, 114 U.S.App.D.C. at 71, 310 F.2d at 876; Travelers Insurance Co. v. Donovan, 95 U.S.App.D.C. 331, 333-334, 221 F.2d 886, 888-889 (1955); Robinson v. Bradshaw, supra note 10, 92 U.S.App. D.C. at 219-220, 208 F.2d at 438-439; Hartford Accident, & Indemnity Co. v. Cardillo, supra note 21, 72 App.D.C. at 54, 58, 112 F.2d at 13, 17; Maryland Casualty Co. v. Cardillo, 71 App.D.C. 160," }, { "docid": "14170205", "title": "", "text": "Ins. Co. v. Cardillo, 78 U.S.App.D.C. 255, 257, 140 F.2d 10, 12 (1943); Hartford Accident & Indem. Co. v. Cardillo, 72 App.D.C. 52, 54-59, 112 F.2d 11, 13-18, cert. denied, 310 U.S. 649, 60 S.Ct. 1100, 84 L.Ed. 1415 (1940); Maryland Cas. Co. v. Cardillo, 71 App.D.C. 160, 163, 107 F.2d 959, 962 (1939); New Amsterdam Cas. Co. v. Hoage, 61 App.D.C. 306, 307-309, 62 F.2d 468, 469-471 (1932), cert. denied, 288 U.S. 608, 53 S.Ct. 400, 77 L.Ed. 982 (1933). . Appellees point out that neither did Swinton present any expert opinion contending the accident did cause the back condition, It was not, however, the claimant’s burden to do that unless and until the employer presented sufficient evidence to rebut the presumed causal connection. While it is true that the presumption is not itself evidence, and once rebutted “falls away,” nevertheless it must first be rebutted. Del Vecchio v. Bowers, supra note 32, 296 U.S. at 286, 56 S.Ct. at 193, 80 L.Ed. at 232-233; Hancock v. Einbinder, supra note 34. See cases cited supra note 29. . Swinton testified that he was involved in no accidents between June, 1969, when he resumed work, and February, 1970, when he returned to Dr. Lowman. . See, however, text infra at notes 49-50. . App. Ex. A. at 2. . Id. . The nurse who took Swinton’s history when he first came to Farragut Clinic on May 28, 1969, testified that neither on that visit nor on his June 20, 1969, visit did he indicate that he had injured his back; he reported injuries to his right knee, right ribs, right elbow, and left hand. The clinic’s treatment consisted only of whirlpool therapy for his right knee. Dr. Frederick Hartsock, the clinic physician who treated Swinton also testified that he had no knowledge of a back injury prior to March, 1970, and that the main problem was Swinton’s right knee. He noted that Swinton had mentioned his right rib injury and the fact that he was under treatment by Dr. Lowman; Dr. Hart-sock, however, “didn’t go into the rib problem because" }, { "docid": "14170203", "title": "", "text": "to the contrary — (a) That the claim comes within the provisions of this chapter. . . ” Longshoremen’s and Harbor Workers’ Compensation Act, § 20, 33 U.S.C. § 920 (1970). . Wheatley v. Adler, supra note 29, 132 U.S.App.D.C. at 182, 407 F.2d at 312, quoting O’Keefe v. Smith, Hinchman, & Grylls Associates, 380 U.S. 359, 363, 85 S.Ct. 1012, 1015, 13 L.Ed.2d 895, 898 (1965). . Del Vecchio v. Bowers, 296 U.S. 280, 286, 56 S.Ct. 190, 193, 80 L.Ed. 229, 232-233 (1935). . Swinton makes a second argument for reversal, urging that the District Court erred in refusing to consider, as a ground for setting aside the Deputy Commissioner’s award, the claim that the back condition was an occupational disease. Finding that Swinton did not raise this claim before the Deputy Commissioner, the District Court refused to consider it. In view of our reversal on the evidence issue, we need not consider this contention. . This court has frequently drawn upon the presumption to assist a determination as to whether a particular malady was causally connected with job-related activity. See Mitchell v. Woodworth, supra note 29, 146 U.S.App.D.C. at 23, 449 F.2d at 1100; Wheatley v. Adler, supra note 29, 132 U.S.App.D.C. at 182—184, 407 F.2d at 312-314; J. V. Vozzolo, Inc. v. Britton, supra note 29, 126 U.S.App.D.C. at 265, 377 F.2d at 150; Butler v. District Parking Management Co., supra note 29, 124 U.S.App.D.C. at 196-197, 363 F.2d at 683-684; Howell v. Einbinder, supra note 29, 121 U.S.App.D.C. at 315, 350 F.2d at 445; Wolff v. Britton, 117 U.S.App.D.C. 209, 212, 328 F.2d 181, 184 (1964); Hancock v. Einbinder, 114 U.S.App.D.C. 67, 71, 310 F.2d 872, 876 (1962); General Accident Fire & Life Assurance Corp. v. Donovan, 102 U.S.App.D.C. 204, 206, 251 F.2d 915, 917, reconsideration denied, 102 U.S.App.D.C. 207, 251 F.2d 961 (1958); Travelers Ins. Co. v. Donovan, 95 U.S.App.D.C. 331, 333-334, 221 F.2d 886, 888-889 (1955); Vandemia v. Cristaldi, 95 U.S.App.D.C. 230, 232, 221 F.2d 103, 105 (1955); Robinson v. Bradshaw, supra note 29, 92 U.S.App.D.C. at 219-220, 206 F.2d at 438-439; Travelers" }, { "docid": "18442865", "title": "", "text": "U.S.C. §§ 901-950, made applicable to the District of Columbia by D.C. Code § 36-501. . Cardillo v. Liberty Mut. Ins. Co., 330 U.S. 469, 477, 67 S.Ct. 801, 91 L.Ed. 1028 (1947); Hurley v. Lowe, 83 U.S. App.D.C. 123, 125-126, 168 F.2d 553, 555-556, cert. denied, 334 U.S. 828, 68 S.Ct. 1338, 92 L.Ed. 1756 (1948). . This is so even if the time of death is taken at 9:45 a. m. as stated in the autopsy certificate, and a fortiori if it was 10:22 a. m., as the Commissioner found. . 1 A. Larson, Workmens Compensation Law § 21.53 at 321 (1965). . See id. at 21.82-21.84 at 340-48. . See Commercial Cas. Ins. Co. v. Hoage, 64 App.D.C. 158, 159, 75 F.2d 677, 678. cert. denied, 295 U.S. 733, 55 S.Ct. 645. 79 L.Ed. 1682 (1935): It has been held a number of times, and we think correctly, that an accidental injury may occur notwithstanding the injured is then engaged in his usual and ordinary work, and likewise that the injury need not be external. It is enough if something unexpectedly goes wrong within the human frame. . See Hartford Accident & Indem. Co. v. Cardillo, 72 App.D.C. 52, 54, 112 F.2d 11, 13, cert. denied 310 U.S. 649, 60 S.Ct. 1100, 84 L.Ed. 1415 (1940); New Amsterdam Cas. Co. v. Hoage, 61 App.D.C. 306, 307, 62 F.2d 468, 469, cert. denied, 288 U.S. 608, 53 S.Ct. 400, 77 L.Ed. 982 (1933). . SEO v. Chenery Corp., 318 U.S. 80, 63 S.Ct. 454, 87 L.Ed. 626 (1943). . 33 U.S.C. § 920(a) (1964); O’Keeffe v. Smith, Hinchman & Grylls Assoc., 380 U.S. 359, 362, 85 S.Ct. 1012, 13 L.Ed. 2d 895 (1965). . Del Vecchio v. Bowers, 296 U.S. 280, 56 S.Ct. 190, 80 L.Ed. 229 (1935) ; Butler v. District Parking Management Co., 124 U.S.App.D.C. 195, 363 F.2d 682 (1966). . “Thus the cases almost invariably decide that the fact that the injury would not have resulted but for the pre-existing disease, or might just as well have been caused by a similar strain at home" }, { "docid": "15069066", "title": "", "text": "Co., 288 U.S. 162, 166, 53 S.Ct. 380, 77 L.Ed. 676 (1933); Friend v. Britton, supra note 7, 95 U.S.App.D.C. at 141, 220 F.2d at 821; Robinson v. Bradshaw, 92 U.S.App.D.C. 216, 217, 206 F.2d 435, 436, cert. denied 346 U.S. 899, 74 S.Ct. 226, 98 L.Ed. 400 (1953). . The evidence was to the effect that coronary arteriosclerosis is practically the sole prerequisite for myocardial infarction. . Hoage v. Employers’ Liability Assurance Corp., 62 App.D.C. 77, 79, 64 F.2d 715, 717, cert. denied Employers’ Liability Assurance Corporation v. Kerper, 290 U.S. 637, 54 S.Ct. 54, 78 L.Ed. 554 (1933). . Howell v. Einbinder, supra note 7; Hancock v. Einbinder, supra note 6; Vinson v. Einbinder, 113 U.S.App.D.C. 246, 307 F.2d 387 (1962), cert. denied Aetna Cas. & Sur. Co. v. Vinson, 372 U.S. 934, 83 S.Ct. 880, 9 L.Ed.2d 765 (1963); Vendemia v. Cristaldi, 95 U.S.App.D.C. 230, 232, 233, 221 F.2d 103, 105, 106 (1955); Friend v. Britton, supra note 7; Robinson v. Bradshaw, supra note 10; Great Atlantic & Pacific Tea Co. v. Cardillo, 75 U.S.App.D.C. 342, 127 F.2d 334 (1942); Hoage v. Royal Indemnity Co., 67 App.D.C. 142, 90 F.2d 387, cert. denied Royal Indemnity Co. v. Cardillo, 302 U.S. 736, 58 S.Ct. 122, 82 L.Ed. 569 (1937) ; London Guarantee & Accident Co. v. Hoage, 63 App.D.C. 323, 324, 72 F.2d 191, 192 (1934) ; Hoage v. Employers’ Liability Assurance Corp., supra note 12, 62 App.D.C. at 79, 64 F.2d at 717; New Amsterdam Casualty Co. v. Hoage, 61 App.D.C. 306, 62 F.2d 468 (1932), cert. denied 288 U.S. 608, 53 S.Ct. 400, 77 L. Ed. 982 (1933). . Cardillo v. Liberty Mutual Insurance Co., 330 U.S. 469, 478, 67 S.Ct. 801, 91 L.Ed. 1028 (1947). . O’Leary v. Brown-Pacific-Maxon, Inc., supra note 10, 340 U.S. at 508, 71 S.Ct. 470. . Cardillo v. Liberty Mutual Insurance Co., supra note 14, 330 U.S. at 478, 67 S.Ct. 801. . im. . O’Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359, 362, 85 S.Ct. 1012, 13 L.Ed.2d 895 (1965). See also O’Leary v. Brown-Pacific-Maxon, Inc.," }, { "docid": "18442880", "title": "", "text": "Britton, 117 U.S.App.D.C. 209, 213, 328 F.2d 181, 185 (1964), in my view correctly stated the law that where the Deputy Commissioner reached a conclusion upon a record which supported his findings “there is factual and legal support for that conclusion, [and] our task is at an end,” quoting Cardillo v. Liberty Mutual Insurance Co., 330 U.S. 469, 479, 67 S.Ct. 801, 91 L.Ed. 1028 (1947). Our opinion in Wolff pointed out that the work “must bring ‘the worker within the orbit of whatever dangers the environment affords.’ ” 117 U.S.App.D.C. at 213, 328 F.2d at 185. I find nothing in this record that even suggests that the appellant’s work brought him within the orbit of any real, possible or probable danger. Applying the test outlined in O’Leary v. Brown-Pacific-Maxon, Inc., 340 U.S. 504, 507, 71 S.Ct. 470, 472, 95 L.Ed. 483 (1951), the record is completely devoid of any showing “that the ‘obligations or conditions’ of employment” created any “ ‘zone of special danger’ out of which the injury arose.” The Deputy Commissioner-appellee made detailed findings of fact as a result of his hearing in this case. As I have indicated, these findings are supported and justified by the evidence. We are required to sustain the decisions of the Deputy Commissioner if they are supported by substantial evidence, O’Leary v. Brown-Pacific-Maxon, Inc., supra, or if his holding is not irrational, O’Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359, 85 S.Ct. 1012, 13 L.Ed. 2d 895 (1965) or if the order under review is not “forbidden by the law,” Cardillo v. Liberty Mutual Insurance Co., supra at 478, 67 S.Ct. 801. As the majority opinion accurately points out, the evidence before the Commissioner easily permits the drawing of adverse inferences, but this fact does not allow us to overthrow the inferences drawn by the Deputy Commissioner if his selection is reasonable. Cardillo v. Liberty Mutual Insurance Co., supra; Del Vecehio v. Bowers, 296 U.S. 280, 56 S.Ct. 190, 80 L.Ed. 229 (1935); Voehl v. Indemnity Insurance Co., 288 U.S. 162, 53 S.Ct. 380, 77 L.Ed. 676 (1933)." }, { "docid": "14170204", "title": "", "text": "malady was causally connected with job-related activity. See Mitchell v. Woodworth, supra note 29, 146 U.S.App.D.C. at 23, 449 F.2d at 1100; Wheatley v. Adler, supra note 29, 132 U.S.App.D.C. at 182—184, 407 F.2d at 312-314; J. V. Vozzolo, Inc. v. Britton, supra note 29, 126 U.S.App.D.C. at 265, 377 F.2d at 150; Butler v. District Parking Management Co., supra note 29, 124 U.S.App.D.C. at 196-197, 363 F.2d at 683-684; Howell v. Einbinder, supra note 29, 121 U.S.App.D.C. at 315, 350 F.2d at 445; Wolff v. Britton, 117 U.S.App.D.C. 209, 212, 328 F.2d 181, 184 (1964); Hancock v. Einbinder, 114 U.S.App.D.C. 67, 71, 310 F.2d 872, 876 (1962); General Accident Fire & Life Assurance Corp. v. Donovan, 102 U.S.App.D.C. 204, 206, 251 F.2d 915, 917, reconsideration denied, 102 U.S.App.D.C. 207, 251 F.2d 961 (1958); Travelers Ins. Co. v. Donovan, 95 U.S.App.D.C. 331, 333-334, 221 F.2d 886, 888-889 (1955); Vandemia v. Cristaldi, 95 U.S.App.D.C. 230, 232, 221 F.2d 103, 105 (1955); Robinson v. Bradshaw, supra note 29, 92 U.S.App.D.C. at 219-220, 206 F.2d at 438-439; Travelers Ins. Co. v. Cardillo, 78 U.S.App.D.C. 255, 257, 140 F.2d 10, 12 (1943); Hartford Accident & Indem. Co. v. Cardillo, 72 App.D.C. 52, 54-59, 112 F.2d 11, 13-18, cert. denied, 310 U.S. 649, 60 S.Ct. 1100, 84 L.Ed. 1415 (1940); Maryland Cas. Co. v. Cardillo, 71 App.D.C. 160, 163, 107 F.2d 959, 962 (1939); New Amsterdam Cas. Co. v. Hoage, 61 App.D.C. 306, 307-309, 62 F.2d 468, 469-471 (1932), cert. denied, 288 U.S. 608, 53 S.Ct. 400, 77 L.Ed. 982 (1933). . Appellees point out that neither did Swinton present any expert opinion contending the accident did cause the back condition, It was not, however, the claimant’s burden to do that unless and until the employer presented sufficient evidence to rebut the presumed causal connection. While it is true that the presumption is not itself evidence, and once rebutted “falls away,” nevertheless it must first be rebutted. Del Vecchio v. Bowers, supra note 32, 296 U.S. at 286, 56 S.Ct. at 193, 80 L.Ed. at 232-233; Hancock v. Einbinder, supra note 34. See cases cited" }, { "docid": "909710", "title": "", "text": "627 F.2d 455 (D.C.Cir.1980), cert. granted, 446 U.S. 941, 100 S.Ct. 2165, 64 L.Ed.2d 796 (1981); Swinton v. Kelly, 554 F.2d 1075 (D.C.Cir.), cert. denied, 429 U.S. 820, 97 S.Ct. 67, 50 L.Ed.2d 81 (1976); Wheatley v. Adler, supra. The Act provides that compensation shall be payable when an employee covered under the Act suffers an “injury,” defined as “accidental injury ... arising out of and in the course of employment . . . . ” 33 U.S.C. § 902(2). Section 20 of the Act further provides that “[i]n any proceeding for the enforcement of a claim for compensation under this chapter it shall be presumed, in the absence of substantial evidence to the contrary — (a) That the claim comes within the provisions of this chapter.” 33 U.S.C. § 920 (emphasis supplied). The Section 20 presumption is but one indication of the “humanitarian nature” of the Act generally, O’Keefe v. Smith, Hinchman & Grylls Assoc., Inc., 380 U.S. 359, 362, 85 S.Ct. 1012, 1014, 13 L.Ed.2d 895 (1965), and the “beneficent purposes” which underlie it. Friend v. Britton, 220 F.2d 820, 821 (D.C.Cir.), cert. denied, 350 U.S. 836, 76 S.Ct. 72, 100 L.Ed. 745 (1955). The presumption operates in favor of the claimant unless and until “substantial evidence” is presented by the respondent showing that the claimant’s malady did not arise out of and in the course of his employment. At that point, the presumption “falls out of the case.” Del Vecchio v. Bowers, 296 U.S. 280, 286, 56 S.Ct. 190, 193, 80 L.Ed. 229 (1935); Swinton v. Kelly, supra, 554 F.2d at 1082 n.35; Maryland Shipbuilding & Drydock Co. v. Jenkins, 594 F.2d 404, 407 (4th Cir., 1979); St. Louis Shipbuilding Co. v. Director, Office of Workers’ Compensation Programs, 551 F.2d 1119, 1124 (8th Cir., 1977); Travelers Insurance Co. v. Belair, 412 F.2d 297, 301 n.6 (1st Cir., 1969). This circuit has not decided whether, once the presumptive “bubble” bursts and falls out of the case, the ultimate burden of persuasion as to work-relatedness rests with the employer or employee. Cf. Parsons Corp. of California v. Director, Office" }, { "docid": "15069065", "title": "", "text": "52 S.Ct. 187, 76 L.Ed. 366 (1932). . Voris v. Eikel, 346 U.S. 328, 333, 74 S. Ct. 88, 98 L.Ed. 5 (1953); Baltimore & Philadelphia Steamboat Co. v. Norton, supra note 5, 284 U.S. at 414, 52 S.Ct. 187; Hancock v. Einbinder, 114 U.S.App.D.C. 67, 70, 310 F.2d 872, 875 (1962); Phoenix Assurance Co. of New York v. Britton, 110 U.S.App.D.C. 118, 120, 289 F.2d 784, 786 (1961). . Howell v. Einbinder, 121 U.S.App.D.C. 312, 314, 350 F.2d 442, 444 (1965); Hancock v. Einbinder, supra note 6, 114 U.S.App.D.C. at 70, 310 F.2d at 875; Phoenix Assurance Co. of New York v. Britton, supra note 6, 110 U.S.App.D.C. at 120, 289 F.2d at 786; Friend v. Brit-ton, 95 U.S.App.D.C. 139, 141, 220 F.2d 820, 821, cert. denied Harry Alexander, Inc. v. Friend, 350 U.S. 836, 76 S.Ct. 72, 100 L.Ed. 745 (1955). . 33 U.S.C. § 919(a). . 33 U.S.C. § 921(b). . O’Leary v. Brown-Pacific-Maxon, Inc., 340 U.S. 504, 508, 71 S.Ct. 470, 95 L.Ed. 483 (1951). See also Voehl v. Indemnity Insurance Co., 288 U.S. 162, 166, 53 S.Ct. 380, 77 L.Ed. 676 (1933); Friend v. Britton, supra note 7, 95 U.S.App.D.C. at 141, 220 F.2d at 821; Robinson v. Bradshaw, 92 U.S.App.D.C. 216, 217, 206 F.2d 435, 436, cert. denied 346 U.S. 899, 74 S.Ct. 226, 98 L.Ed. 400 (1953). . The evidence was to the effect that coronary arteriosclerosis is practically the sole prerequisite for myocardial infarction. . Hoage v. Employers’ Liability Assurance Corp., 62 App.D.C. 77, 79, 64 F.2d 715, 717, cert. denied Employers’ Liability Assurance Corporation v. Kerper, 290 U.S. 637, 54 S.Ct. 54, 78 L.Ed. 554 (1933). . Howell v. Einbinder, supra note 7; Hancock v. Einbinder, supra note 6; Vinson v. Einbinder, 113 U.S.App.D.C. 246, 307 F.2d 387 (1962), cert. denied Aetna Cas. & Sur. Co. v. Vinson, 372 U.S. 934, 83 S.Ct. 880, 9 L.Ed.2d 765 (1963); Vendemia v. Cristaldi, 95 U.S.App.D.C. 230, 232, 233, 221 F.2d 103, 105, 106 (1955); Friend v. Britton, supra note 7; Robinson v. Bradshaw, supra note 10; Great Atlantic & Pacific Tea Co. v." }, { "docid": "14170208", "title": "", "text": "subsequently discovered to be worse. See Stancil v. Massey, 141 U.S.App.D.C. 120, 436 F.2d 274, 14 A.L.R.Fed. 390 (1970). . Tr. 97. While apparently neither this report nor the report referred to in note 50 infra, was ever introduced into evidence, their existence and content are not contested. . Tr. 98, 103-104. See note 49 supra. . Avignone Freres, Inc. v. Cardillo, 73 App.D.C. 149, 150, 117 F.2d 385, 386 (1940), quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216-217, 83 L.Ed. 126, 140 (1938). . While the Deputy Commissioner made much of the lack of early protestations of back pain by Swinton, App. Ex. A at 2, we have held that mere failure to complain may be “a completely inadequate and insubstantial basis for” concluding that a causal link between accident and injury is nonexistent. Howell v. Einbinder, supra note 29, 121 U.S.App.D.C. at 314, 350 F.2d at 444. . J. V. Vozzolo, Inc. v. Britton, supra note 29, 126 U.S.App.D.C. at 265, 377 F.2d at 150. . Baltimore & Philadelphia Steamboat Co. v. Norton, 284 U.S. 408, 414, 52 S.Ct. 187, 189, 76 L.Ed. 366, 369-370 (1932). . Id. . J. V. Vozzolo, Inc. v. Britton, supra note 29, 126 U.S.App.D.C. at 262, 377 F.2d at 147 (foot notes omitted). See also Wheatley v. Adler, supra note 29, 132 U.S.App.D.C. at 184, 407 F.2d at 314; Voris v. Eikel, 346 U.S. 228, 333, 74 S.Ct. 88, 91-92, 98 L.Ed. 5, 10 (1953); Baltimore & Philadelphia Steamboat Co. v. Norton, supra note 54, 284 U.S. at 414, 52 S.Ct. at 189, 76 L.Ed. at 369-370; Howell v. Einbinder, supra note 29, 121 U.S.App.D.C. at 314, 350 F.2d at 444; Hancock v. Einbinder, supra note 34, 114 U.S.App.D.C. at 70, 310 F.2d at 875; Phoenix Assurance Co. v. Britton, 110 U.S.App.D.C. 118, 120, 289 F.2d 784, 786 (1961); Friend v. Britton, 95 U.S.App.D.C. 139, 141, 220 F.2d 820, 821, cert. denied, 350 U.S. 836, 76 S.Ct. 72, 100 L.Ed. 745 (1955). . Wheatley v. Adler, supra note 29, 132 U.S.App.D.C. at 182, 407 F.2d at" }, { "docid": "15069071", "title": "", "text": "also note cases holding that an employee who sustains a compensable injury, and later an additional though perhaps employment-unrelated injury as a natural result of the original injury, is entitled to compensation for both. Zurich General Accident & Liability Insurance Co. v. Daffern, 81 F.2d 179 (5th Cir.), cert. denied 298 U.S. 667, 56 S.Ct. 751, 80 L.Ed. 1391 (1936) ; Cyr v. Crescent Wharf & Warehouse Co., 211 F.2d 454 (9th Cir. 1954) ; Head Drilling Co. v. Industrial Accident Comm., 177 Cal. 194, 170 P. 157 (1918); Continental Casualty Co. v. Industrial Comm., 75 Utah 220, 284 P. 313 (1929). . See Hancock v. Einbinder, supra note 6, 114 U.S.App.D.C. at 71, 310 F.2d at 876; Travelers Insurance Co. v. Donovan, 95 U.S.App.D.C. 331, 333-334, 221 F.2d 886, 888-889 (1955); Robinson v. Bradshaw, supra note 10, 92 U.S.App. D.C. at 219-220, 208 F.2d at 438-439; Hartford Accident, & Indemnity Co. v. Cardillo, supra note 21, 72 App.D.C. at 54, 58, 112 F.2d at 13, 17; Maryland Casualty Co. v. Cardillo, 71 App.D.C. 160, 107 F.2d 959 (1939). See also O’Keeffe v. Smith, Hinchman & Grylls Associates, Inc., supra note 18, 380 U.S. at 362-363, 85 S.Ct. 1012; Del Vecchio v. Bowers, 296 U.S. 280, 286-287, 56 S.Ct. 190, 80 L.Ed. 229 (1935); Wolff v. Britton, 117 U.S.App.D.C. 209, 212, 328 F.2d 181, 184 (1964)." }, { "docid": "18442866", "title": "", "text": "not be external. It is enough if something unexpectedly goes wrong within the human frame. . See Hartford Accident & Indem. Co. v. Cardillo, 72 App.D.C. 52, 54, 112 F.2d 11, 13, cert. denied 310 U.S. 649, 60 S.Ct. 1100, 84 L.Ed. 1415 (1940); New Amsterdam Cas. Co. v. Hoage, 61 App.D.C. 306, 307, 62 F.2d 468, 469, cert. denied, 288 U.S. 608, 53 S.Ct. 400, 77 L.Ed. 982 (1933). . SEO v. Chenery Corp., 318 U.S. 80, 63 S.Ct. 454, 87 L.Ed. 626 (1943). . 33 U.S.C. § 920(a) (1964); O’Keeffe v. Smith, Hinchman & Grylls Assoc., 380 U.S. 359, 362, 85 S.Ct. 1012, 13 L.Ed. 2d 895 (1965). . Del Vecchio v. Bowers, 296 U.S. 280, 56 S.Ct. 190, 80 L.Ed. 229 (1935) ; Butler v. District Parking Management Co., 124 U.S.App.D.C. 195, 363 F.2d 682 (1966). . “Thus the cases almost invariably decide that the fact that the injury would not have resulted but for the pre-existing disease, or might just as well have been caused by a similar strain at home or at recreation, are both immaterial.” H. McNiece, Heart Disease and the Law 12 (1961). See also id. at 57-59. . See generally Larson, The “Heart Cases” in Workmen’s Compensation; An Analysis and Suggested Solution, 65 Mich.L.Rev. 441 (1967); H. McNiece, supra note 11, at 110-138 (1961). . Baltimore & Philadelphia Steamboat Co. v. Norton, 284 U.S. 408, 414, 52 S.Ct. 187, 76 L.Ed. 366 (1932) (Butler, J.). “The law’s humanitarian purpose is to ensure that all shall be compensated, regardless of the employer’s fault.” Jack son v. Lykes Bros. S. S. Co., 386 U.S. 731, 736, 87 S.Ct. 1419, 1423, 18 L.Ed.2d 488 (1967). This expression in Justice Stewart’s dissent was not controverted in the majority opinion. . See J. Y. Vozzolo, Inc. v. Britton, 126 U.S.App.D.C. 259, 377 F.2d 144, 147 (1967); Howell v. Einbinder, 121 U.S.App.D.C. 312, 314, 350 F.2d 442, 444 (1965); Hancock v. Einbinder, 114 U.S.App.D.C. 67, 70, 310 F.2d 872, 875 (1962); Phoenix Assurance Co. of New York v. Britton, 110 U.S.App.D.C. 118, 120, 289 F.2d 784, 786 (1961)." }, { "docid": "18442881", "title": "", "text": "detailed findings of fact as a result of his hearing in this case. As I have indicated, these findings are supported and justified by the evidence. We are required to sustain the decisions of the Deputy Commissioner if they are supported by substantial evidence, O’Leary v. Brown-Pacific-Maxon, Inc., supra, or if his holding is not irrational, O’Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359, 85 S.Ct. 1012, 13 L.Ed. 2d 895 (1965) or if the order under review is not “forbidden by the law,” Cardillo v. Liberty Mutual Insurance Co., supra at 478, 67 S.Ct. 801. As the majority opinion accurately points out, the evidence before the Commissioner easily permits the drawing of adverse inferences, but this fact does not allow us to overthrow the inferences drawn by the Deputy Commissioner if his selection is reasonable. Cardillo v. Liberty Mutual Insurance Co., supra; Del Vecehio v. Bowers, 296 U.S. 280, 56 S.Ct. 190, 80 L.Ed. 229 (1935); Voehl v. Indemnity Insurance Co., 288 U.S. 162, 53 S.Ct. 380, 77 L.Ed. 676 (1933). We have repeatedly adhered to these principles. Wolff v. Britton, supra, Phoenix Assurance Co. of New York v. Britton, 110 U.S.App.D.C. 118, 120, 289 F.2d 784, 786 (1961); General Accident Fire & Life Assurance Corp. v. Britton, 103 U.S.App.D.C. 135, 255 F.2d 544 (1958); Liberty Mutual Insurance Co. v. Britton, 100 U.S.App.D.C. 236, 243 F.2d 659 (1957); United States Fidelity & Guaranty Co. v. Britton, 88 U.S.App.D.C. 293, 294, 188 F.2d 674, 675 (1951). The principle has been applied even in instances where, as stated in Cardillo v. Liberty Mutual Insurance Co., supra, at 478, 67 S.Ct. 801, the inference to be drawn from the facts is “more legal than factual. * * * ” Thus, even though the reviewing court might not agree with the Deputy Commissioner’s determination for itself (see Wolff v. Britton, supra), that determination, if not “forbidden by the law,” is to be sustained. Cardillo v. Liberty Mutual Insurance Co., supra at 478, 67 S.Ct. 801. My deep concern about the majority opinion is that in an effort to achieve a" }, { "docid": "14170210", "title": "", "text": "312, quoting O’Keeffe v. Smith, Hinchman & Grylls Associates, supra note 29, 380 U.S. at 363, 85 S.Ct. at 1015, 13 L.Ed.2d at 898. . Wheatley v. Adler, supra note 29, 132 U.S.App.D.C. at 183, 407 F.2d at 313. The quoted language is from Commercial Cas. Ins. Co. v. Hoage, 64 App.D.C. 158, 159, 75 F.2d 677, 678, cert. denied, 295 U.S. 733, 55 S.Ct. 645, 79 L.Ed. 1682 (1935). . Wheatley v. Adler, supra note 29, 132 U.S.App.D.C. at 183, 407 F.2d at 312. . See cases cited supra note 34. . For other cases in this circuit reversing for insufficiency of the evidence to rebut the statutory presumption, see Mitchell v. Woodworth, supra note 29, 146 U.S.App.D.C. at 23, 449 F.2d at 1100; Wheatley v. Adler, supra note 29, 132 U.S.App.D.C. at 182-194, 407 F.2d at 312-314; Butler v. District Parking Management Co., supra note 29, 124 U.S.App.D.C. at 196-197, 363 F.2d at 683-684; Hancock v. Einbinder, supra note 34, 114 U.S.App.D.C. at 71, 310 F.2d at 876; Robinson v. Bradshaw, supra note 29, 92 U.S.App.D.C. at 219-220, 406 F.2d at 438-439. See also Howell v. Einbinder, supra note 29, 121 U.S.App.D.C. at 315, 350 F.2d at 445; Vendemia v. Cristaldi, supra note 34, 95 U.S.App.D.C. at 232-234, 221 F.2d at 105-107. . Steele v. Adler, 269 F.Supp. 376, 379 (D.D.C.1967). See also Mitchell v. Woodworth, supra note 29, 146 U.S.App.D.C. at 23, 449 F.2d at 1100. . Wheatley v. Adler, supra note 29, 132 U.S.App.D.C. at 184, 407 F.2d at 314, quoting Friend v. Britton, supra note 56, 95 U.S.App.D.C. at 141, 220 F.2d at 822. . Wheatley v. Adler, supra note 29, 132 U.S.App.D.C. at 184, 407 F.2d at 314." }, { "docid": "243682", "title": "", "text": "presumption overcome by substantial evidence, stated the rule as-follows: “The act * * * does not leave the matter to be determined by the general principles of law, but announces its own rule, to the effect that the claimant, in the absence of substantial evidence to the contrary, shall have the benefit of the presumption of accidental death. * * * ” 296 U.S. at page 286, 56 S.Ct. at page 193. In our own court the presumption has been partially relied upon in several cases, not limited to the question of jurisdiction. Hartford Accident & Indemnity Co. v. Cardillo, 1940, 72 App.D.C. 52, 54, 58, 112 F.2d 11, 13, 17, certiorari denied, 310 U.S. 649, 60 S.Ct. 1100, 84 L.Ed. 1415; Maryland Casualty Co. v. Cardillo, 1939, 71 App.D.C. 160, 107 F.2d 959; New Amsterdam Casualty Co. v. Hoage, 1932, 61 App.D.C. 306, 307, 62 F.2d 468, 469, certiorari denied, 1933, 288 U.S. 608, 53 S.Ct. 400, 77 L.Ed. 982. See, also, Marra Bros. v. Cardillo, 3 Cir., 1946, 154 F.2d 357, 359, where in the absence of evidence as to the circumstances surrounding death the court said of the provisions of the basic .Act relative to the presumption: “ * * * The language of the section was designed to meet just such fact situations as the one presently before us. We conclude that if it be proved as here that the decedent was employed as a longshoreman and that he met his death in or about a vessel on the navigable waters of the United States and that nothing more is shown, tile Deputy Commissioner must hold that his widow’s claim is within the purview of the statute.” While under settled principles the weight and deference to be given to the findings of the Deputy Commissioner, and of the court below, ordinarily require approval of their factual findings and the legal consequences attendant thereupon, nevertheless, when convinced that the evidence, with the statute, requires a different result we must not refuse a remedy. Fidelity & Casualty Co. of New York v. Burris, supra. We are of opinion" } ]

[ { "docid": "9000016", "title": "", "text": "MILLER, Associate Justice. Appellant was indicted for robbery, on four charges. He pleaded not guilty; was tried and convicted in one case; whereupon he withdrew his pleas in the other three and entered pleas of guilty. He was sentenced to serve consecutive terms totaling eight to twelve years. Thereafter, he filed a petition for a writ of habeas corpus. The court granted the writ; appointed an attorney to represent the petitioner; a full hearing was held; findings of fact were made; the court concluded that he was properly detained and discharged the writ. Thereafter, appellant presented a second petition for a writ of habeas corpus, together with a pauper’s oath. The trial court permitted the petition to be filed and directed appellee to show cause why a writ should not be granted. To this rule, appellee made his return, setting forth the facts stated above and attaching the findings of fact and conclusions of law in the previous habeas corpus proceeding. Thereupon, the court discharged the rule and denied the petition. This appeal followed. The record reveals that the allegations of appellant’s petition in the present case brought to the court’s attention exactly the same grounds as those urged by him in his earlier petition upon which he was given a full hearing. The question is thus squarely presented whether the procedure of habeas corpus can be used to require repeated consideration of the same grounds; repeated hearings to determine their sufficiency; and repeated determination of the question whether the petitioner is properly held. Whatever justification there may be for permitting such procedure in the case of a person committed for insanity, there is none in the present case. If the commitment was proper in the first place, detention under it continues to be proper until the sentence imposed has been served. Although lapse of time may restore sanity, it cannot change the fact of guilt. There is no question here concerning termination of sentence. Illegality of detention, if it exists, must result from illegality of commitment. Here the jurisdiction of the court is conceded both as to the cause" } ]

[ { "docid": "2204373", "title": "", "text": "PER CURIAM: This is an appeal, in forma pauperis, from the denial by the District Court for the Southern District of Texas without an evidentiary hearing of appellant’s petition for a writ of habeas corpus under 28 U.S.C. § 2241. Appellant is attacking his separate convictions on two charges of robbery with firearms. In both cases he was found guilty after trials before a jury on pleas of not guilty. He was represented by counsel at the trials. Both convictions were affirmed on appeal to the Texas Court of Criminal Appeals. See Johnson v. State, 170 Tex.Cr.R. 173, 339 S.W.2d 214 (1960); Johnson v. State, 170 Tex.Cr.R. 349, 341 S.W.2d 170 (1960). Appellant’s petition for a writ of habeas corpus in the state court was denied without written order. The sentences in the two cases were set at forty and fifty years respectively, the second sentence to run consecutively to the first. In exchange for a motion to dismiss this appeal, filed by appellant’s appointed counsel but opposed by appellant himself, the trial court resentenced appellant to make the two sentences run concurrently. This court, however, denied the motion to dismiss this appeal. Since the writ of habeas corpus is only available in situations where discharge from custody will result from the granting of relief, if the second conviction of appellant resulting in the longer sentence is not subject to attack, it would be premature to inquire into the first conviction McNally v. Hill, 293 U.S. 131, 55 S.Ct. 24, 79 L.Ed. 238 (1934); Brown v. Beto, 377 F.2d 950 (5 Cir. 1967); Wilson v. Gray, 345 F.2d 282 (9 Cir. 1965); Wood v. Crouse, 327 F.2d 81 (10 Cir. 1964). Limiting our inquiry to the second conviction, appellant urges (1) that a pistol obtained as a result of an illegal search and seizure was admitted into evidence; (2) that the sentence was improperly cumulated with his prior sentence; (3) that he was illegally detained and interrogated by the police; (4) that the trial court was prejudiced; (5) that certain police officers’ testimony should not have been admitted; and (6)" }, { "docid": "810529", "title": "", "text": "SOBELOFF, Chief Judge. Clarence Duke McGann, now at Leavenworth serving a twenty-year sentence, appeals from the District Court’s denial of his motion, filed under Title 28 U.S. C.A. § 2255, to vacate the conviction which he asserts has subjected him to double jeopardy. In 1954 the United States Grand Jury for the District of Maryland returned two indictments against the appellant. The first, Criminal No. 23017, was in four counts and charged him with robbery of a national bank in violation of Title 18 U.S.C.A. § 2113. The indictment described the bank as a member of the Federal Reserve System, organized and operating under the laws of the United States, insured by the Federal Deposit Insurance Corporation and located at the Andrews Air Force Base in Maryland. The second, Criminal No. 23024, charged McGann with robbery on the same occasion, on lands within the territorial jurisdiction of the United States, namely, the Andrews Air Force Base in Maryland, in violation of Title 18 U.S.C.A. § 2111. On September 20, 1954, the appellant, represented by two court-appointed counsel, entered a plea of guilty to each charge in the District Court for the District of Maryland and was sentenced to twenty years under the first indictment and five years under the second, the sentences to run concurrently. In 1957 McGann filed an application for a writ of habeas corpus, treated by the District Court as a motion for relief under Title 28 U.S.C.A. § 2255, alleging that a national bank cannot be on a United States Air Force Base. This court affirmed the District Court’s denial of McCann’s motion, 4 Cir., 1957, 249 F.2d 431. In April, 1958, McGann filed his second motion for relief under Section 2255, this time charging that the two indictments were duplicitous and, as such, constitute double jeopardy. Having served the five-year sentence, he urged that the twenty-year sentence be vacated. The District Judge filed a carefully written opinion answering the petition at length and denied the motion, D.C.Md.1958, 161 F. Supp. 629. No appeal was taken, but in May, 1958, McGann filed his third motion for" }, { "docid": "5366334", "title": "", "text": "AUGUSTUS N. HAND, Circuit Judge. The relator sought a writ of habeas corpus in the District Court for the Southern District of New York on the ground that his present New York sentence as a second offender is illegal since his prior federal conviction was invalid on the constitutional ground that he was deprived of the assistance of counsel at his trial, and that therefore he should be remanded to the New York State Court for resentencing as a first offender. On March 28, 1943, the relator was sentenced to a term of eighteen months by the District Court for the Eastern District of New York on a plea of guilty to the crime of forging a postal money order. On De- ' cember 20, 1943, he was released on parole. It is this conviction that is claimed to be void because the relator neither was afforded the assistance of counsel nor waived his constitutional -right thereto when he entered his plea of guilty. U.S.Const. Amend. VI. Subsequently he was tried in the County Court of Kings County, New York, and convicted of the crime of grand larceny in the first degree. On November 27, 1945, pursuant to § 1941 of the New York Penal Law, McKinney’s Consol.Laws, c. 88, he was sentenced as a second felony offender to State’s Prison for an indeterminate term of from five to fifteen years. On November 8, 1950, he moved in the District Court for the Eastern District of New York under the provisions of 28 U.S.C.A. § 2255 to vacate his conviction in that court on the same grounds now asserted in his petition for a writ of habeas corpus. After a hearing the judge determined that Lavelle had competently and intelligently waived his right to counsel and denied the motion on the merits. On appeal, this Court reversed without passing on the merits and remanded the case with directions to dismiss on the ground that the remedy provided by § 2255 was not available to a person who was not in custody under the sentence his motion attacked. United States v." }, { "docid": "15802654", "title": "", "text": "Appeals rendered a decision holding that counts 1 and 2 charged a single offense, vacating Hewitt’s sentence on count 1 and affirming his sentence on count 2. Certiorari to review that decision was denied on May 27, 1940. Thereafter appellant and Harris moved the Missouri court to vacate their sentences on count 1 and petitioned the Circuit Court of Appeals for a writ of mandamus to compel a judge of the Missouri court to grant the motion. On January 18, 1941, the Circuit Court of Appeals rendered a decision holding that the motion should be granted. Accordingly, on January 30, 1941, appellant’s sentence on count 1 was vacated. His sentence on count 2 was not disturbed. The United States penitentiary at Leavenworth, Kansas, was designated as the place where appellant’s sentences should be served. On or about January 5, 1938, appellant was transferred from that penitentiary to the United States penitentiary at Alcatraz, California, where he ever since has been and is now confined. On September 26, 1938 — before his sentence on count 1 was vacated — appellant petitioned the District Court of the United States for the Northern District of California, hereafter called the California court, for a writ of habeas corpus directed to appellee, warden of the penitentiary at Alcatraz. The proceeding thus commenced was No. 22,802. In that proceeding, appellee was ordered to show cause why a writ of habeas corpus should not be issued. In response thereto, appellee filed a return, which appellant did not traverse. On October 26, 1938, judgment was entered denying the petition. That judgment was affirmed on May 29, 1939. Certiorari to review its affirmance was denied on October 9, 1939. On April 1, 1941 — after his sentence on count 1 was vacated — appellant again petitioned the California court for a writ of habeas corpus directed to appellee. The proceeding thus commenced was No. 23,450. In that proceeding, a writ of habeas corpus was issued, appellant was produced, a hearing was had, and on April 9, 1942, judgment was entered discharging the writ and remanding appellant to appellee’s custody." }, { "docid": "503027", "title": "", "text": "LINDLEY, Circuit Judge. Petitioner, on March 19, 1942, began serving a two-year sentence imposed by the U. S. District Court. On April 28, 1943, while still in custody under that sentence, he was again brought before the same court, found guilty on another charge, and sentenced to a term of five years imprisonment, the second sentence to commence upon termination of the first. After having served almost five years, petitioner was conditionally released from custody on February 17, 1947. Subsequently, on November 22, 1948, the Board of Parole issued a parole warrant charging him with violation of the terms of his conditional release and he was taken into custody by respondent acting under that warrant. His petition for a writ of habeas corpus then filed alleged that, under the applicable statute, 18 U.S.C.A. § 710 [now § 4161], he had earned 144 days “good time” on his first sentence; that, but for the imposition of the second sentence, this “good time” deduction would have made him eligible for release on October 24, 1943; that, consequently, his second sentence began to run on that date and expired five years later, on October 24, 1948, some 10 days prior to the issuance of the parole warrant, and that the parole warrant, having been issued after expiration of his sentence, was void and his detention thereunder without authority in law. The District Court issued a writ of habeas corpus returnable November 23, 1948; respondent filed a motion to quash the writ and dismiss the petition, alleging that petitioner had erroneously computed his “good time” allowance on the basis of the two-year sentence, whereas it should have been computed on the aggregate of the two-year and five-year sentences; that petitioner, although released for good conduct, had continued on parole for the full term of the two consecutive sentences — i. e., until March 18, 1949, and, consequently, that the warrant, which had been issued well before that date, was valid and petitioner’s detention thereunder lawful and proper. The District Court, on December 14, 1948, granted respondent’s motion and, accordingly, entered an order quashing the" }, { "docid": "7680255", "title": "", "text": "OPINION OF THE COURT PER CURIAM. On December 9, 1959, John Lester, the appellant, now a prisoner in the United States Penitentiary at Lewisburg, Pennsylvania, was indicted in the United States District Court for the Eastern District of Pennsylvania in two counts. The first charged him with conspiracy to violate 18 U.S.C. § 371 and the second with a substantive violation of 18 U.S.C. § 2113(d). On January 10, 1960, appellant pled guilty to an indictment by the Philadelphia County Grand Jury alleging violation of the laws of Pennsylvania based upon the same transaction upon which the federal indictment was grounded. On February 9, 1960, appellant was brought from the custody of the Commonwealth of Pennsylvania under a writ of habeas corpus ad prosequendum to the United States District Court for the Eastern District of Pennsylvania where he was sentenced to imprisonment for five years on the second count of the indictment to commence upon his release from the custody of the Commonwealth of Pennsylvania. Thereupon he was remanded to the Pennsylvania authorities pursuant to the requirement of the writ of habeas corpus ad prosequendum. Thereafter, on February 29, 1960, appellant withdrew his plea of guilty in the state court, went to trial and was convicted and sentenced to from 6 to 12 years in prison. On November 21,1966, he was released from the state prison and, pursuant to a detainer, was turned over to the federal authorities to begin his federal sentence. In 1968 appellant filed a motion under 28 U-S.C. § 2255 in the United States District Court for the Eastern District of Pennsylvania to vacate or set aside its sentence of February 9, 1960 which, he contended, was “repugnant to due process of law in that it was imposed to begin running at an uncertain future time.” The District Court found no merit to his contention and denied the motion. This appeal followed. Appellant here reiterates the arguments he raised in the District Court asserting that since no sentence had been imposed by the Commonwealth at the time of the federal sentence, it was to run an" }, { "docid": "15816883", "title": "", "text": "DENMAN, Chief Judge. This is an appeal from an order entered by the United States District Court for the Northern District of California, Southern Division, two judges acting, granting Wells’ application for a writ of habeas corpus and ordering Wells discharged from custody. After a plea of guilty, Wells, in 1938, was sentenced to prison by the United States District Court for the Western District of Texas. So far as we are concerned, appellee was sentenced upon pleas of guilty to the third count of an indictment charging robbery of a bank and putting the life of a person in jeopardy by the use of a dangerous weapon (in the commission of the robbery) and to the fourth count charging entering the bank with intent to commit a felony, to wit, the robbery. The sentences were fixed to run consecutively. Wells has served his time except for the sentence imposed on his plea of guilty to count four. He contends that this sentence is void as the offense charged in count four merged into the one charged in count three. Wells had previously moved for relief pursuant to 28 U.S.C. § 2255 and been denied. Wells v. United States, 5 Cir., 210 F.2d 112. There is no allegation in Wells’ petition that the remedy by motion is inadequate or ineffective. I. The District Court has no jurisdiction to issue the writ of habeas corpus. An application for a writ of habeas corpus “shall not be entertained” if the applicant has been denied relief on a § 2255 motion. 28 U.S.C. § 2255. The district court was without jurisdiction to issue the writ. Winhoven v. Swope, 9 Cir., 195 F.2d 181. If this is true, Wells argues, then § 2255 is an unconstitutional suspension of the writ under Art. I, Sec. 9, cl. 2 of the United States Constitution. The constitutionality of § 2255 has been upheld in two fully reasoned opinions. Jones v. Squier, 9 Cir., 195 F.2d 179; Barrett v. Hunter, 10 Cir., 180 F.2d 510, 20 A.L.R.2d 965. Habeas corpus has been denied on the basis of §" }, { "docid": "13729376", "title": "", "text": "PER CURIAM. Following trial by jury, in which appellant was represented by counsel of his own choosing, and verdict of guilty on June 26,1953, appellant William Howard Dunn received a sentence of twenty-five years for bank robbery in violation of Section 2113, Title 18, U.S.Code. An appeal was taken to this Court. Thereafter, on appellant’s motion to withdraw the appeal, an order was entered on September 18,1953 docketing and dismissing the appeal. No. 12,030. On October 26, 1953 and October 28, 1953, appellant addressed to an individual Judge of this Court an application and supplement thereto “seeking some relief and/or advice in the name of justice.” On November 7, 1953 he filed a “Motion For Review and Relief” and requested that the three applications be consolidated into one petition for presentation. Said applications were construed as a petition for leave to appeal from an order of the District Court denying a petition for a writ of habeas corpus and on December 17, 1953 denied. No. 12,030. On January 14, 1954, appellant filed in the District Court motion to vacate sentence under Section 2255, Title 28, U.S. Code. Upon the overruling of said motion on March 2, 1954 appellant appealed the ruling to this Court but failed to prosecute said appeal, which by order of July 19, 1954 was docketed and dismissed by this Court. No. 12,287. On June 14, 1954, appellant filed in the District Court motion to vacate sentence under Section 2255, Title 28, U.S.Code, which was overruled by the District Court, on August 18, 1954, from which ruling an appeal was taken to this Court on September 1, 1954. Upon failure to prosecute said appeal an order was entered by this Court on April 25,1955 docketing and dismissing the appeal. No. 12,515. On January 26, 1955, appellant filed in the District Court motion to void judgment and discharge prisoner, which after due consideration by the Court, including a review of the previous similar applications by the appellant, was overruled on March 18, 1955. On August 17, 1955, appellant filed in this Court a petition for Writ of Habeas" }, { "docid": "18444828", "title": "", "text": "OPINION OF THE COURT STAHL, Circuit Judge. This is an appeal from an order of the district court dismissing without an evi-dentiary hearing appellant’s petition for a writ of habeas corpus on the ground that state remedies had not been exhausted. The facts relevant to the present appeal are briefly as follows: On April 28, 1966, while incarcerated in Butler County pending imposition of sentence on charges of issuing worthless checks, appellant, who had pleaded guilty to the charges, escaped from prison. He was arrested on April 29, 1966, in Tona-wanda, New York, as a fugitive from justice and, following the culmination of proceedings in the New York courts in which appellant challenged his arrest and extradition, he was returned to Pennsylvania. In July 1966, appellant pleaded guilty to charges of prison breach and larceny of an automobile, which evidently arose in connection with the prison breach, and was sentenced to terms of from four to eight years and two to four years on the respective charges, the sentences to run consecutively. Some time after the imposition of sentence, appellant filed a Pennsylvania Post Conviction Hearing Act petition attacking his conviction and sentence on a number of grounds, including the denial of effective assistance of counsel and the claim that his guilty plea had been unlawfully induced. Subsequent to the filing of the petition, the Butler County court set aside appellant’s guilty plea, vacated the sentences and ordered a new trial. On January 25, 1968, Kelly again pleaded guilty to the prison breach charge and was sentenced to a term of four to eight years. The larceny charge was nolle prossed. On February 7, 1968, appellant filed a habeas corpus petition in the district court, seeking release from confinement on the ground that he had been unlawfully extradited from New York to Pennsylvania. The allegations offered in support of his claim were, first, that his arrest in New York was illegal because the arresting officers lacked probable cause to believe he was a fugitive when they apprehended him, and secondly, that he was deprived of his right to appeal to" }, { "docid": "1735191", "title": "", "text": "PER CURIAM: The appellant, a prisoner of the State of Louisiana, applied to the federal district court for a writ of habeas corpus. The court denied the application without a hearing, stating, “ * * * it affirmatively appearing on the face of the record herein that no federal question is involved for this court’s consideration, and that no necessity is shown for holding an evidentiary hearing herein.” Briefly summarized, the application contained the following material aver-ments. Applicant was involved in an automobile accident on November 16, 1964. On December 10, 1964, the Grand Jury of the Parish of St. Mary returned an indictment charging him with negligent homicide. After arraignment and the appointment of counsel, applicant was tried, found guilty and sentenced to five years’ hard labor. Appointed counsel refused to appeal the case and applicant began the service of his sentence. Several days thereafter, on March 30, 1965, an information was filed against the applicant under Louisiana Revised Statute 15:529.1, accusing him of a previous conviction. On April 2, 1965, applicant was taken back into the state court, the five-year sentence imposed on March 26 was revoked and set aside, the applicant was denied a trial by jury on the additional charge, a new and increased sentence of seven and one-half years was imposed upon him, and he was remanded to serve this second sentence. The district court could deny the writ of habeas corpus without a hearing only if it affirmatively appeared from the application that the applicant was not entitled to the writ. 28 U.S.C.A. § 2243. To justify the issuance of the writ, the applicant seeks to show that he is in custody in violation of the Constitution of the United States. See 28 U.S.C.A. § 2241(c). He made an informa pauperis affidavit and moved the district court to appoint counsel to represent him on his application for habeas corpus. The district court entered no order on that motion. The applicant’s petition for habeas corpus in the state trial court was denied on November 18, 1965. His application to the Louisiana Supreme Court for appointment" }, { "docid": "17079903", "title": "", "text": "PER CURIAM: This appeal is taken from an order of the district court denying the petition of a Georgia state convict for the writ of habeas corpus. We affirm on the basis of the district court’s opinion-order attached as Appendix A. Appellant was convicted on his pleas of guilty of three counts of burglary, one count of auto larceny, and eleven counts of forgery, and was sentenced on October 15, 1964, to a total of 18 years imprisonment. He filed a petition in the state court for habeas corpus relief, whereupon an evidentiary hearing was held. Relief was denied, the court making findings of fact and conclusions of law. An appeal to the Georgia Supreme Court was dismissed for lack of prosecution. Appellant then filed his habeas petition in federal court alleging illegal arrest, incommunicado detention for ten days before being brought before a magistrate, ineffective court-appointed counsel, racial discrimination in selecting the grand jurors, and that he did not receive a full and fair hearing in state court. The court below denied relief, making independent findings of fact from the record and transcript of the state habeas proceedings. The court below found that appellant’s guilty pleas were voluntarily entered on advice of counsel, that counsel was not ineffective, that no evidence was presented to show discrimination in selecting the grand jury, and that the hearing in state court satisfied the standards of 28 U.S.C. § 2254. A reading of the state record reveals no clear error in these-findings. Appellant stated at the hearing that he pled guilty upon advice of counsel. This is supported by the testimony of counsel, who based his advice upon an investigation of the facts and circumstances of the ease and appellant’s previous record. Counsel also testified that he met with appellant on several occasions before trial. The record is completely devoid of anything more than the conelusory allegation that there was racial discrimination in grand jury selection. No facts are alleged and no evidence was presented at the hearing to support that conclusion. Appellant’s guilty pleas having been voluntarily entered, he is not entitled" }, { "docid": "8079800", "title": "", "text": "SOBELOFF, Chief Judge. A prisoner in the Ohio State Penitentiary, James R. Whiting, filed a petition seeking a writ of habeas corpus in the United States District Court for the Eastern District of Virginia, naming Charles P. Chew, the Director of the Virginia Parole Board, as defendant. The District Court dismissed the petition, and Whiting appeals. The allegations of the petition are meagre, and do not clearly disclose the grounds upon which the writ is sought. Amplifying the allegations by independent search of the records, the facts appear to be as follows. In 1938, the appellant was convicted in Virginia on two charges of attempted murder, and one of armed robbery, and given sentences totalling forty years. After serving twelve years, he was paroled in 1950, but in 1956 was again convicted of armed robbery, this time in the Court of Common Pleas of Cuyahoga County, Ohio. He is presently serving a prison sentence in Ohio for that offense. Upon learning from the Ohio authorities that Whiting had been convicted in that state, a member of the Virginia Parole Board filed a detainer against him on the ground that he had violated the conditions of his Virginia parole. The appellant does not seek release from the Ohio prison, but he does seek, by his petition for a writ of habeas corpus, to cause the removal of the de-tainer lodged against him by the Virginia official in the hands of the Ohio authorities. As a basis for his conten-tention that the detainer is unlawful, he alleges that the 1938 Virginia convictions were void because he (1) was denied counsel, (2) was never taken before an examining magistrate, and (3) was never advised “of his right to trial.” Without deeper consideration of his allegations, it is manifest that the petition states no ground upon which a writ of habeas corpus could be issued in the District Court, inasmuch as the petitioner is not being detained within the-territorial jurisdiction of the court to. which the petition is addressed. Section 2241(a) of 28 U.S.C.A., giving District Courts power to grant writs of habeas corpus" }, { "docid": "2831605", "title": "", "text": "him under the ‘6th — Amendment to our United States Constitution,’ nor did the petitioner competently, intelligently and with the full understanding and the comprehension of the complications facing him, plead guilty, or/and waive his right to counsel. * * * ” Issuance of the writ was denied, and the appellant prosecuted this appeal. The foregoing detailed account of appellant’s previous attempts to be released from the sentences of 1949 makes it clear, we think, that the District Court properly refused to entertain Kesel's 1959 petition for habeas corpus, whether it be treated as such or as a motion under § 2255. The District Court is not required to entertain a petition for habeas corpus which “presents no new ground not theretofore presented and determined” (28 U.S.C. § 2244) nor “a second or successive motion for similar relief [under 28 U.S.C. § 2255] on behalf of the same prisoner.” The only allegation contained in the present petition that had not been made in an earlier motion is that appellant, who received a combined sentence of eight to twenty-four years, was assured by several police officers that a guilty plea would result in a sentence of not more than one to three years. Appellant must have known this alleged fact when he filed his first motion. The petition made no suggestion thát he was previously unable to assert it or unaware of its significance. Under these circumstances, the District Court’s refusal to entertain the petition was entirely correct under Turner v. United States, 1958, 103 U.S. App.D.C. 313, 258 F.2d 165; and Moore v. United States, 108 U.S.App.D.C. 14, 278 F.2d 459. Affirmed. FAHY, Circuit Judge (dissenting). On May 15, 1959, the District Court without a hearing denied appellant’s section 2255 motion. The motion alleged inter alia that at the time of his plea of guilty of robbery, and sentence therefor in 1949, he was not competent to stand trial or to assist in his defense. His motion papers gave certain details. He alleged he had been discharged from the United States Navy in 1945 because he was then suffering from" }, { "docid": "5366335", "title": "", "text": "of Kings County, New York, and convicted of the crime of grand larceny in the first degree. On November 27, 1945, pursuant to § 1941 of the New York Penal Law, McKinney’s Consol.Laws, c. 88, he was sentenced as a second felony offender to State’s Prison for an indeterminate term of from five to fifteen years. On November 8, 1950, he moved in the District Court for the Eastern District of New York under the provisions of 28 U.S.C.A. § 2255 to vacate his conviction in that court on the same grounds now asserted in his petition for a writ of habeas corpus. After a hearing the judge determined that Lavelle had competently and intelligently waived his right to counsel and denied the motion on the merits. On appeal, this Court reversed without passing on the merits and remanded the case with directions to dismiss on the ground that the remedy provided by § 2255 was not available to a person who was not in custody under the sentence his motion attacked. United States v. Lavelle, 2 Cir., 194 F.2d 202; cf. United States v. Bradford, 2 Cir., 194 F.2d 197, certiorari denied 343 U.S. 979, 72 S.Ct. 1079, 96 L.Ed. 1371. On March 19, 1952, the present petition for a writ of habeas corpus was brought in the District Court for the Southern District of New York in which district the relator was then confined. 28 U.S.C.A. § 2241 et seq. The District Court dismissed the petition without a hearing, apparently on the ground that there was no allegation that Lavelle was innocent of the crime of which he claimed to have been illegally convicted or any other indication that his conviction in the federal court was unfair. A petition for a rehearing was denied on May 2 and he filed his notice of appeal from the order dismissing his petition for a writ of habeas corpus on May 5. On July 23, this court denied a motion to dismiss the appeal as frivolous and for want of a certificate of probable cause. A motion to proceed in forma" }, { "docid": "15348491", "title": "", "text": "CHOY, Circuit Judge: Petitioner Lewis Lee Boniface appeals from the denial of his motion to vacate conviction and sentence under 28 U.S.C. § 2255. We affirm. I. Statement of the case Petitioner Boniface and others were indicted by a federal grand jury on charges of conspiracy, making a destructive device, possessing a destructive device, damaging and destroying property, and aiding and abetting. Counsel was appointed for petitioner and he entered a plea of not guilty on all counts. Trial was set for May 20, 1975. On May 19, 1975, Boniface changed his plea to guilty as to count seven of the indictment in return for dismissal of the other thirteen counts. He was sentenced to ten years imprisonment on count seven. On February 3, 1978, Boniface filed his motion to vacate conviction and sentence under 28 U.S.C. § 2255. A month later he filed for a writ of habeas corpus under 28 U.S.C. § 2243, which was denied four days later. The district court also denied the § 2255 petition. This appeal followed. II. The § 2255 proceeding Boniface first attacks the manner in which the § 2255 proceedings were conducted. In this regard he makes three claims. A. Time limits for a § 2255 motion Boniface claims that it was error for the district court not to order the Government to respond to his § 2255 petition until 18 days after receiving it and then to allow the Government 30 days to respond. The Advisory Committee on the rules governing § 2255 petitions has stated: Unlike the habeas corpus statutes (see 28 U.S.C. §§ 2243, 2248) § 2255 does not specifically call for a return or answer by the United States Attorney or set any time limits as to when one must be submitted. Rather, the court is given discretion to require a response and to set a time for any response. Rule 4 of the Rules Governing Section 2255 Proceedings & Advisory Committee Note; see Advisory Committee Note to Rule 4 of the Rules Governing Section 2254 Proceedings. The district court acted well within its discretion in setting" }, { "docid": "14200284", "title": "", "text": "NOEL, District Judge. This is an appeal from the denial by the district court of appellant’s petition for writ of habeas corpus. The appellant was convicted in the United States District Court for the Southern District of New York under three counts of a five-count indictment: Count I, alleging conspiracy to violate the narcotics laws, and Counts IV and V, alleging substantive violations of the narcotics laws. He was sentenced on December 22,1954. His conviction was affirmed by the Court of Appeals for the Second Circuit in United States v. Paccione, 224 F.2d 801 (2d Cir. 1955), cert. den. 350 U.S. 896, 76 S.Ct. 155, 100 L.Ed. 788 (1955). Subsequently, on October 22, 1960, appellant unsuccessfully moved to correct his sentence under 28 U.S.C.A. § 2255. An appeal from the denial of this motion was dismissed as frivolous by the Court of Appeals for the Second Circuit on April 10, 1961. Being confined in a federal penitentiary in Georgia, appellant then filed a petition for writ of habeas corpus in Georgia, which was denied. On appeal this Court affirmed the denial per curiam. Paccione v. Heritage, 301 F.2d 702 (5th Cir. 1962). Because this Court failed to appoint counsel to represent the appellant or to permit him to appear in his own behalf, although the Government was allowed to argue on appeal, the Supreme Court reversed. Counsel was appointed and the case was rescheduled for argument. The appellant and appellee are in agreement that 28 U.S.C.A. § 2255 does not foreclose habeas corpus relief to the appellant since he contends that his sentence is being erroneously construed by his warden rather than that it is illegal. Appellant (petitioner below) complains that in imposing sentence upon him, the District Judge (a) failed to state the sequence in which the sentences under the three respective counts of the indictment were to be served, and (b) failed to make any reference to the separate counts of the indictment from which the sequence of service might be inferred. Appellant asserts that the Court below (Northern District of Georgia) erred in not releasing him from" }, { "docid": "9576579", "title": "", "text": "MURRAH, Circuit Judge. This is an appeal from an order denying a petition for a writ of habeas corpus. On July 30, 1937, petitioner was indicted in the District Court of the United States, Eastern District of Michigan. The indictment contained five counts, charging violations of Section 194. of the Criminal Code, 18 U.S.C.A. § 317 (stealing, secreting, or embezzling mail matter). On August 9, 1939, the petitioner appeared in person, without counsel, and entered his plea of guilty to each count in the indictment. The court committed the petitioner to the custody of the Attorney General for a total period of fifteen years, without apportioning the gross sentence to the respective counts in the indictment, or providing for the sequence of their service. The petitioner commenced the service of his sentence on August 26, 1937. On July 29, 1938, petitioner filed a writ of habeas corpus in the District Court of Kansas, seeking release on the ground that he had been denied the assistance of counsel, as guaranteed by the 6th Amendment to the Constitution. On appeal to this court from an order denying the writ, the case was reversed and remanded with directions to hear testimony tendered by the petitioner touching the allegations in the petition for the writ. See Levine v. Hudspeth, 10 CF, 102 F.2d 691. After hearing on remand, the District Court found the petitioner had been denied the assistance of counsel at the time of his plea and sentence by the District Court for the Eastern District of Michigan. The court ordered the petitioner discharged on the writ and removed to the jurisdiction of the sentencing court, there to answer the charges against him. After the petitioner’s release and return to the Eastern District of Michigan, and on December 29, 1939, he appeared in person and by counsel; was arraigned in the same court and on the same indictment on which he had theretofore been sentenced. The petitioner waived the reading of the indictment, but refused to plead, whereupon by order of the court a plea of not guilty was entered in his behalf." }, { "docid": "1837083", "title": "", "text": "GARRECHT, Circuit Judge. This is an appeal from an order of the United States District Court for the Northern District of California denying appellant’s petition for a writ of habeas corpus. On February 15, 1938, an indictment in four counts was returned by the Grand Jury of the trial court [The District Court of the United States for the Eastern District of Michigan, Southern Division], charging appellant with the violation of Section 588b (a) and (b) of Title 12 U.S.C.A. The appellant was arraigned before the trial court on February 18, 1938, at which time he was represented by counsel; he waived the reading of the indictment and pleaded “not guilty” to the charges alleged in the indictment. Appellant was represented by counsel throughout the trial which commenced on April 19, 1938 and concluded on April 29, 1938 when the jury returned a verdict of “guilty” on all counts of the indictment. Appellant was also represented by counsel when .the trial court rendered judgment on May 14, 1938, and pronounced sentence thereon. Subsequently, appellant filed a petition 'for a writ of habeas corpus in the United States District Court for the Northern District of California, Southern Division, invoking the Fourth and Fifth Amendments to the Constitution of the United States upon the ground that his residence was subjected to an allegedly illegal search and seizure and the materials obtained used in evidence against him, and upon, the further ground that the trial judge was allegedly disqualified from hearing the prosecution. The district court denied the petition and on May 14, 1941, the appellant brought the matter to this court which heard the appeal and affirmed the lower court. A lengthy opinion discussing all the points presented was filed on February 11, 1942 and is reported at 125 F.2d 806, certiorari denied 316 U.S. 677, 62 S.Ct. 1106, 86 L.Ed. 1750. Of all the issues raised by the appellant in this appeal, the only question properly before this court and not previ ously decided was appellant’s contention that he was denied the aid of counsel at the trial, by reason of" }, { "docid": "2831604", "title": "", "text": "he had known of the diagnoses from the times they were made. On July 29, 1959, Kesel filed a petition for a writ of habeas corpus. In that petition he again alleged he was deprived of the assistance of counsel without waiver, and again recited that he had signed papers requesting counsel in the District Jail. Appellant also alleged his discharge from the Navy and his syphilitic condition, adding that he “faintly” recalled pleading guilty when he was asked to plead, yet “at the same time” remembered that several police officers had assured him a guilty plea would result in a sentence no greater than one to three years. Appellant described the § 2255 motion filed by his attorney as “a challenge as to the ability and the competency of petitioner to voluntarily and/or, understandingly enter a plea of ‘guilty’ at the time such plea was so made by petitioner.” And he summed up his habeas corpus petition thus: “Petitioner’s position is simply this: He did not have the assistance of counsel as guaranteed to him under the ‘6th — Amendment to our United States Constitution,’ nor did the petitioner competently, intelligently and with the full understanding and the comprehension of the complications facing him, plead guilty, or/and waive his right to counsel. * * * ” Issuance of the writ was denied, and the appellant prosecuted this appeal. The foregoing detailed account of appellant’s previous attempts to be released from the sentences of 1949 makes it clear, we think, that the District Court properly refused to entertain Kesel's 1959 petition for habeas corpus, whether it be treated as such or as a motion under § 2255. The District Court is not required to entertain a petition for habeas corpus which “presents no new ground not theretofore presented and determined” (28 U.S.C. § 2244) nor “a second or successive motion for similar relief [under 28 U.S.C. § 2255] on behalf of the same prisoner.” The only allegation contained in the present petition that had not been made in an earlier motion is that appellant, who received a combined sentence of" }, { "docid": "8796076", "title": "", "text": "MURRAH, Chief Judge. The trial court dismissed the petitioner’s application for a writ of habeas corpus on the grounds that the exclusive remedy for his alleged illegal restraint was provided in Section 2255, 28 U.S.C.A. Appeal was allowed in forma pauperis and appointed counsel has advanced the rather novel argument that the prior unsuccessful proceedings under Section 2255 was “ineffective and inadequate” because the petitioner was not represented by counsel in those proceedings and the ancient writ is therefore available to test the cause of his restraint on the same grounds. The facts are that on a plea of guilty in the Western District of Texas for violation of Section 2312, 18 U.S.C.A. (interstate transportation of a stolen vehicle) the petitioner was committed to the custody of the Attorney General for three years. Soon after his confinement, petitioner filed a motion under Section 2255 to vacate his sentence on seven different grounds, one being that he was without counsel at arraignment and sentence. About the same time, or soon thereafter, the petitioner also applied to the Court of the District of his confinement for a writ of habeas corpus. This petition was dismissed and an application for rehearing denied because of the adequacy of the remedy under Section 2255. Soon thereafter the sentencing court dismissed the 2255 petition without a hearing and the Court of Appeals for the Fifth Circuit denied leave to appeal in forma pauperis. About three months later this habeas corpus proceedings was commenced in the District of his confinement, alleging substantially the same grounds as in the prior 2255 proceedings. The principal contention here, as in the sentencing court and the habeas corpus court, is that he was detained for a period of 110 days between his arrest and arraignment, and that he was induced to plead guilty on the representation that he would receive one year instead of three; that he was denied the effective assistance of counsel, both at the time of his sentencing and in the subsequent 2255 proceedings. For the purpose of this proceeding, we will assume, without deciding, that he was" } ]

[ { "docid": "22746600", "title": "", "text": "Bush v. Orleans School Board, 194 F. Supp. 182, 185, affirmed sub nom. Tugwell v. Bush, 367 U. S. 907; Gremillion v. United States, 368 U. S. 11. Appellants’ allegations and offers of proof outline the chilling effect on free expression of prosecutions initiated and threatened in this case. Early in October 1963 appellant Dombrowski and intervenors Smith and Waltzer were arrested by Louisiana state and local police and charged with violations of the two statutes. Their offices were raided and their files and records seized. Later in October a state judge quashed the arrest warrants as not based on probable cause, and discharged the appellants. Subsequently, the court granted a motion to suppress the seized evidence on the ground that the raid was illegal. Louisiana officials continued, however, to threaten prosecution of the appellants, who thereupon filed this action in November. Shortly after the three-judge court was convened, a grand jury was summoned in the Parish of Orleans to hear evidence looking to indictments of the individual appellants. On appellants’ application Judge Wisdom issued a temporary restraining order against prosecutions pending hearing and decision of the case in the District Court. Following a hearing the District Court, over Judge Wisdom’s dissent, dissolved the temporary restraining order and, at the same time, handed down an order dismissing the complaint. Thereafter the grand jury returned indictments under the Subversive Activities and Communist Control Law against the individual appellants. These events, together with repeated announcements by appellees that the appellant organization is a subversive or Communist-front organization, whose members must register or be prosecuted under the Louisiana statutes, have, appellants allege, frightened off potential members and contributors. Cf. Anti-Fascist Committee v. McGrath, 341 U. S. 123. Seizures of documents and records have paralyzed operations and threatened exposure of the identity of adherents to a locally unpopular cause. See NAACP v. Alabama, 357 U. S. 449. Although the particular seizure has been quashed in the state courts, the continuing threat of prosecution portends further arrests and seizures, some of which may be upheld and all of which will cause the organization inconvenience or" } ]

[ { "docid": "2727596", "title": "", "text": "Fourth Amendment. On these legal issues we largely agree with the defendants and therefore reverse the District Court; we remand, however, for the determination of certain disputed factual issues which conceivably might show plaintiffs to have a cause of action. I. Factual Background Reference is made to this court’s earlier opinions in United States v. McSurely and McSurely v. McClellan for a detailed exposition of the factual background of this lawsuit. In brief, in 1967 Alan and Margaret McSurely were field organizers for the Southern Conference Educational Fund, Inc., in Pike County,- Kentucky. Alan McSurely was also connected with the National Conference of New Politics and Vietnam Summer, both unincorporated associations. On the night of 11 August 1967, under authority of a warrant charging seditious activities against the Commonwealth of Kentucky in violation of KRS 432.040, officials of Pike County arrested the McSurelys and seized a large volume of books, posters, pamphlets, and other private and published documents found in their home. On 14 September 1967, in response to a complaint filed by the McSurelys, a three-judge District Court in Kentucky held KRS 432.040 facially unconstitutional and enjoined state prosecution of the McSurelys. In its order the court directed the Commonwealth Attorney for Pike County, Thomas B. Ratliff, to hold in safekeeping the materials taken from the McSurelys’ house, pending his possible appeal of the court’s decision. Shortly thereafter, the Assistant Counsel to the Permanent Subcommittee on Investigations (“Subcommittee”) of the Senate Committee on Government Operations (“Committee”), Lavern Duffy, contacted Ratliff by telephone to inquire about the seized items. Ratliff had previously made a public announcement that the materials would be made available to Congressional committees. As a result of the Duffy telephone call, in early October 1967 John Brick, a Subcommittee investigator, visited Ratliff in Pikeville. After confirming with Ratliff that the McSurely material contained information relating to the activities of a number of organizations in which the Subcommittee was interested, Brick examined and made notes on the seized items. In addition, he was provided with copies of 234 of the documents, which he took with him on his" }, { "docid": "18202138", "title": "", "text": "Also presented for determination is whether Congress by legislation has preempted this field so as to give federal courts exclusive jurisdiction; and, should this Court enjoin a state court from proceeding with a prosecution brought under the statute. The individual plaintiffs, Alan McSurely, Margaret McSurely, Joseph Mulloy, Carl Braden, and Anne Braden, are under indictment in the Pike County, Kentucky, Circuit Court for advocating sedition and criminal syndicalism. The defendants are Robert Matthews, Attorney General of Kentucky; Thomas B. Ratliff, Commonwealth’s Attorney for the Pike County Circuit Court; Perry A. Justice, Sheriff of Pike County; and Grover Atkins, Jailer of Pike County. Alan and Margaret McSurely, husband and wife, are field organizers for plaintiff Southern Conference Educational Fund, Inc., in Pike County, Kentucky. Alan McSurely is also a field organizer for the National Conference of New Politics and has distributed literature of Vietnam Summer, both unincorporated associations and both plaintiffs here. Joseph Mulloy is a field representative for the Appalachian Volunteers, an organization funded primarily by the United States Office of Economic Opportunity. According to the McSurelys and Mulloy, their official duties are to investigate the socio-eco-political milieu of Pike County, “to inform the people of their rights,” and to help local citizens “organize to overcome their problems.” Anne and Carl Braden, husband and wife, are directors of the Southern Conference Educational Fund. On the night of August 11, 1967, under authority of warrant charging seditious activities against the United States and the Commonwealth of Kentucky in violation of KRS 432.040, officials of Pike County and their deputies .arrested the McSurelys and Mulloy. The officials also seized and impounded 564 loose books, twenty-six posters, and twenty-two boxes of books, pamphlets, and other private and published documents found in the McSurely home. They also impounded a suitcase of clothes and several personal items which were caught up in the whirlwind of the search. The McSurelys, together _with Southern Conference Educational_ Fund and Vietnam Summer, filed their complaint in the United States District Court for the Eastern District of Kentucky. They alleged that KRS 432.040 is on its face unconstitutional and asked" }, { "docid": "14812675", "title": "", "text": "as he does not deem material to the investigation and prosecution,” to retain custody of all other evidence, and to produce an inventory list of the seized materials. None of their property was returned to the McSurelys at this time. On September 14, the three-judge federal court declared the Kentucky statute unconstitutional on its face and enjoined further proceedings against the McSurelys under the statute. The court also ordered that all books, papers, documents and other materials now in the custody of the Commonwealth Attorney of Pike County, Ratliff, reflected by the Inventory filed in this action continue to be held by him in safekeeping until final disposition of this case by appeal or otherwise. After the order was issued, Laverne Duffy, Assistant Counsel for the Subcommittee, telephoned Ratliff to inquire whether he had possession of the seized materials. Thereafter, John Brick, a Subcommittee investigator, contacted Ratliff and arranged to examine the materials. These contacts occurred during the pendency of the safekeeping order; all were made prior to the expiration of time for appeal from the district court ruling. Ratliff subsequently gave Brick access to the materials in his custody. As we noted in United States v. McSurely, 473 F.2d at 1191: A locked door was opened for the investigator. He entered and inspected the documents, made notes therefrom and received xeroxed copies of some of them from one of Mr. Ratliff’s subordinates. Brick transported copies of over two hundred documents to Washington including several personal letters belonging to Mrs. McSurely. On these facts, the McSurelys allege that Ratliff disseminated documents to the federal defendants which he knew were irrelevant to their official business and conspired with these officials to transfer to them documents illegally seized and which Ratliff had no legal right to transfer. Ratliff responds first, that the safekeeping order did not prevent him from allowing Brick to inspect and photocopy the papers, and second, that his actions were approved by one of the district court judges who signed the order. Ratliff asserts that before making the materials available to Brick, he telephoned Judge Moynahan—the dissenting member of" }, { "docid": "14812641", "title": "", "text": "a search warrant for the McSurelys’ home. The arrest warrant charged McSurely with sedition against the state in violation of Ky.Rev.Stat. § 432.040. The search warrant authorized in general terms the seizure of “seditious matter or printing press or other machinery to print or circulate seditious matter.” In an earlier proceeding, we found that the affidavit, in part because it was based on hearsay, did not “support a finding of probable cause,” United States v. McSurely, 473 F.2d 1178, 1187 (D.C.Cir.1972). We further described the search warrant as “the very antithesis of the ‘particularity’ required by the Fourth Amendment.” Id. at 1189. On the evening of August 11, pursuant to the warrant, Pike County officials, directed by Ratliff, arrested Alan McSurely and searched the McSurelys’ home. The search appears to have gone far beyond the warrant’s scope. See id. at 1187-88. During the search, which lasted several hours, Ratliff discovered that Margaret McSurely had once been employed by the Student Non-Violent Coordinating Committee. He thereupon obtained a warrant for her arrest as well. On September 14, 1967, in response to a complaint filed by the McSurelys, a three-judge district court in Kentucky (one judge dissenting on procedural grounds) held the sedition statute unconstitutional on its face and enjoined state prosecution of the McSurelys. McSurely v. Ratliff, 282 F.Supp. 848 (E.D.Ky.1967), app. dismissed, 390 U.S. 412, 88 S.Ct. 1112, 19 L.Ed.2d 1272 (1968). The court also directed Ratliff to hold “in safekeeping” the materials taken from the McSurelys’ home, pending a possible appeal of the court’s decision. No appeal was ever filed. Shortly thereafter, Laverne Duffy, Assistant Counsel to the Permanent Subcommittee on Investigations (Subcommittee) of the Senate Committee on Government Operations, contacted Ratliff by telephone to inquire about the seized items. Pursuant to this telephone call, a Subcommittee investigator, John Brick, visited Ratliff in Pike-ville. Ratliff, concerned that the safekeeping order might prohibit his allowing Brick to examine the McSurely materials, telephoned Judge Moynahan, the dissenting judge on the three-judge panel that had issued the order, for advice. The judge was noncommittal. As Judge Moynahan later explained in his deposition:" }, { "docid": "14812674", "title": "", "text": "overcome this presumption. In this case, the invalidity in fact of the search and arrest warrants is sufficiently clear that there is a genuine issue whether the McSurelys will be able to show that a reasonable prosecutor would have known that they were invalid. See Baskin v. Parker, 602 F.2d 1205, 1208 (5th Cir.1979) (sheriff may be liable for obtaining and executing an invalid search warrant). 2. Safekeeping Activities We consider next Ratliff’s conduct under the district court’s “safekeeping” order. The following facts have been established. United States v. McSurely, 473 F.2d at 1190-91. On August 12, 1967, the day after the raid on the McSurelys’ home, Ratliff announced publicly that he would provide congressional committees with access to the materials seized from the McSurelys’ home. Four days later, the McSurelys brought suit in federal court seeking a declaratory judgment that the Kentucky sedition statute was unconstitutional, an injunction against prosecution, and the return of the seized materials. On September 11, the court ordered Ratliff to “return to the plaintiffs such personal articles and property as he does not deem material to the investigation and prosecution,” to retain custody of all other evidence, and to produce an inventory list of the seized materials. None of their property was returned to the McSurelys at this time. On September 14, the three-judge federal court declared the Kentucky statute unconstitutional on its face and enjoined further proceedings against the McSurelys under the statute. The court also ordered that all books, papers, documents and other materials now in the custody of the Commonwealth Attorney of Pike County, Ratliff, reflected by the Inventory filed in this action continue to be held by him in safekeeping until final disposition of this case by appeal or otherwise. After the order was issued, Laverne Duffy, Assistant Counsel for the Subcommittee, telephoned Ratliff to inquire whether he had possession of the seized materials. Thereafter, John Brick, a Subcommittee investigator, contacted Ratliff and arranged to examine the materials. These contacts occurred during the pendency of the safekeeping order; all were made prior to the expiration of time for appeal from" }, { "docid": "2727692", "title": "", "text": "U.S. at 317, 93 S.Ct. 2018, permits the public and press to inspect documents internally distributed within Congress, and presumably publish what they find. . Compare Rea v. United States, 350 U.S. 214, 217, 76 S.Ct. 292, 100 L.Ed. 233 (1956). . The majority in this case argues that “[t]here was no implication in the [three-judge court’s protective] order that investigatory bodies which would otherwise be entitled to utilize unlawfully seized materials were barred from such utilization by the court’s formal rul ing” (172 U.S.App.D.C. pp.---, 521 F.2d pp. 1046-1047). The majority’s reading of the protective order would defeat the very purpose for which it was issued. This is evident from the factual context underlying the court’s order — arrests and seizures of books and other ideational matter pursuant to a statute proscribing mere advocacy of ideas as sedition, prosecutions instituted to stop organizing activities in the county by the McSurelys and their supporters, and official calls to halt federal funding for those activities. See McSurely v. Ratliff, 282 F.Supp. 848, 851-53 (E.D.Ky.1967). It strains credulity that a court’s “safekeeping” directive regarding illegally seized books, posters and pamphlets issued in the face of a systematic official effort to freeze, let alone chill, the exercise of First Amendment rights, id. at 852-53, can be read to have authorized disclosure of the impounded materials without either the court’s or the McSurelys’ permission. . The court was careful to make clear its conclusion that Brick’s examination constituted an independent constitutional violation. It stated: Not only was the search and seizure of appellants’ property by the Commonwealth officials illegal, but the subsequent search and use of that property by the Subcommittee investigator, with the cooperation of the Commonwealth attorney, violated appellants’ constitutional right to have their property sate and secure from unwarranted inspections. And it found that “the framing by the Subcommittee of the subpoenas relied upon here for conviction of the McSurelys was based upon information derived from unconstitutional searches, both by state officials and by the Subcommittee’s investigator.” 154 U.S.App.D.C. at 155, 473 F.2d at 1192. . While in the present case" }, { "docid": "7894809", "title": "", "text": "in chambers. There was no record entry as to what took place in chambers, except as was indicated ten days later in a court order. In that order, the court stated, in relevant part, that “[t]he parties having agreed thereto ... the material, literature and all objects seized herein shall be kept in the custody of ... Thomas B. Ratliff, and that same shall be made available to the United States Marshal ____” Plaintiffs’ Exhibit No. 7, reprinted in J.A. 1782-83. The court further ordered the U.S. Marshal and Ratliff to make an inventory of the material, and ordered Ratliff to return “such personal articles and property as he does not deem material to the investigation and prosecution herein.” Id. at 1783. Ratliff prepared the inventory, but never returned any of the property. Three days later, on September 14, the three-judge court, one judge dissenting, issued an order declaring the Kentucky sedition statute unconstitutional. The final paragraph of that order directed Ratliff to retain custody of the seized material pending appeal of the judgment. That paragraph, referred to throughout these proceedings as the “safekeeping order,” stated: It is further ordered that all books, papers, documents and other material now in the custody of the Commonwealth Attorney of Pike County, Ratliff, reflected by the Inventory filed in this action continue to be held by him in safe keeping until final disposition of this case by appeal or otherwise. Plaintiffs’ Exhibit No. 9, reprinted in J.A. 1796. One month later, the court issued an opinion setting forth its rationale for declaring the sedition statute unconstitutional. The opinion made no mention of the “safekeeping order.” McSurely v. Ratliff, 282 F.Supp. 848 (E.D.Ky.1967). The Senate defendants first became involved with the McSurely material sometime in September, over a month after the McSurelys’ home was searched. The Subcommittee was conducting a wide-ranging investigation into civil and criminal disorders throughout the country. After being notified by a Washington attorney that Ratliff had information regarding efforts to organize young people “to engage in violence and demonstrations,” Trial Transcript (Tr.) of Dec. 2, 1982, at 79, reprinted in" }, { "docid": "14812638", "title": "", "text": "Opinion PER CURIAM. PER CURIAM: In August 1967, Kentucky officials, executing warrants issued under a state sedition statute, arrested the McSurelys (appellees) and seized books, papers, and other personal possessions from their home. Shortly thereafter, a federal court declared the state statute unconstitutional, enjoined prosecution, and ordered the appellant Thomas B. Ratliff (Commonwealth Attorney for Pike County, Kentucky) to hold the seized material in safekeeping pending final disposition of the case. McSurely v. McClellan, 282 F.Supp. 848 (E.D.Ky.1967), app. dismissed, 390 U.S. 412, 88 S.Ct. 1112, 19 L.Ed.2d 1272 (1968). The state prosecutor subsequently made these papers available to a Senate subcommittee investigating riots which occurred in Nashville, Tennessee earlier that year. In 1969, the McSurelys sued Senator John L. McClellan (Chairman of the Senate subcommittee), several subcommittee staffers, and appellant, claiming that the defendants had unlawfully seized and disseminated personal papers from their home and seeking compensatory and punitive damages for loss of employment, invasion of privacy, and embarrassment resulting from these actions. Shortly before trial, Ratliff moved for dismissal or, in the alternative, for summary judgment based on claims of absolute and qualified prosecutorial immunity. The district court denied this motion and an oral request for stay pending appeal. Ratliff appealed and moved this court for stay pending appeal. We denied his request for stay, but expedited consideration of the appeal. We now affirm the district court’s order. Ratliff’s investigation and arrest of the McSurelys and his subsequent actions as custodian of the McSurelys’ papers are not advocative functions and thus are not protected by absolute immunity from suit. Moreover, Ratliff is not entitled to summary judgment on qualified immunity because material facts are placed in dispute by the McSurelys’ proffer of evidence that Ratliff should have known that his actions were illegal. I. Factual Background This court’s earlier opinions in United States v. McSurely, 473 F.2d 1178, 1180-84 (D.C.Cir.1972), and McSurely v. McClellan, 426 F.2d 664, 666-67 (D.C.Cir.1970) describe in detail much of the factual background of this lawsuit. Because this case arises on pretrial motion, we construe the facts which remain in dispute in the light" }, { "docid": "7894806", "title": "", "text": "McSurelys, however, Ratliff has been removed as a party defendant on appeal. The jury returned verdicts against each Senate defendant for violating the McSure-lys’ first and fourth amendment rights under the United States Constitution and their right to privacy under the common law. The Senate defendants appeal from those verdicts. The allegedly unlawful conduct that underlay the verdicts against all three defendants was Brick’s inspection and transportation of the documents back to Washington, and the manner in which he ultimately returned personal papers to the McSurelys. The McSurelys alleged that Senator McClellan and General Counsel Adlerman entered into a conspiracy with Brick to violate the McSurelys’ rights and that, as coconspirators, they are liable for Brick’s conduct. Although the McSurelys’ factual allegations are fairly straightforward, the legal issues surrounding their claims are extremely complex, as this opinion and prior decisions of this court indicate. For the reasons stated below, we affirm the verdict against the investigator, John Brick, for violation of the McSurelys’ right to privacy under the common law. We reverse, however, all of the other verdicts. Factual Background We have narrated the factual background of this case on numerous occasions. The appendix to this opinion sets forth a list and brief description of the federal court decisions that have affected the McSurelys over the last seventeen years. We summarize that history only briefly here. In 1967, Alan and Margaret McSurely were field organizers in Pike County, Kentucky, for a civil rights organization known as the Southern Conference Educational Fund, Inc. On August 11 of that year (unless otherwise stated, all dates refer to 1967), county officials obtained an arrest warrant charging Alan McSurely with sedition against the state under Ky.Rev.Stat. § 432.040. They also obtained a warrant to search the McSurelys’ home for “seditious matter.” Pursuant to that warrant, over a dozen men, many of them armed, came to the McSurelys’ home and seized all of their papers, several hundred books, and some of their clothing. Both Alan and Margaret McSurely were arrested and charged with sedition. The Pike County prosecutor at the time, Thomas Ratliff, helped to" }, { "docid": "7894804", "title": "", "text": "Opinion for the Court PER CURIAM. PER CURIAM: Introduction On the evening of August 11, 1967, local law enforcement officials of Pike County, Kentucky, entered Alan and Margaret McSurely’s home and seized a huge quantity of books, papers, and other personal effects. The officials arrested the McSure-lys and charged them with violation of Kentucky’s anti-sedition statute. Thus began the McSurelys’ seventeen-year odyssey through the courts. They have been involved in four lawsuits here and in the Sixth Circuit, all of which arose from the events of August 11. This court alone has rendered five decisions involving the McSurelys and has issued nine separate opinions filling nearly one-hundred and fifty pages of the Federal Reporter. Today we seek to end another episode in the McSurelys’ quest for judicial relief and compensation stemming from the events that began on that night seventeen years ago. At issue in this appeal are the McSure-lys’ claims for damages against three federal government officials — a Senator and two members of his staff — for alleged violations of certain of the McSurelys’ constitutional and common law rights. Those officials are Senator John McClellan, former chairman of the Permanent Subcommittee on Investigations of the Senate Government Operations Committee (the Subcommittee), Jerome Adlerman, former general counsel of the Subcommittee, and John Brick, a former Subcommittee investigator. (All three defendants died while this case was pending. Although parties were substituted when deaths occurred, for convenience we will refer to the three officials collectively as the Senate defendants and discuss them as if they were still the named defendants here.) The Senate defendants became embroiled in this controversy when John Brick went to Kentucky in October 1967 to inspect the material seized from the McSurelys’ home. Without the McSurelys’ knowledge or consent, Brick looked through the material and took back to Washington copies of over two hundred items, including papers of a highly personal nature. The McSurelys also named Thomas Ratliff as a defendant in this suit. Ratliff was the Kentucky official who gave Brick access to the McSurelys’ papers. Because of a recent settlement agreement between him and the" }, { "docid": "14812640", "title": "", "text": "most favorable to the McSurelys. In brief, Alan and Margaret McSurely were field organizers for the Southern Conference Educational Fund, Inc. Alan McSurely was also connected with the National Conference of New Politics and Vietnam Summer. According to the McSurelys, their duties included investigating the socio-political milieu of Pike County, informing the people of their legal rights, and helping local citizens to organize to overcome their problems. On August 11, 1967, Ratliff and approximately twenty other persons, including local businessmen, the McSurelys’ landlord, and a local judge, met at the Pikeville courthouse to discuss the McSurelys’ activities and to plan the McSurelys’ arrest for sedition and a search of their home. At the meeting, Ratliff stated that a Pike County jury would “undoubtedly” convict the McSurelys and that, although the conviction would “probably” be overturned on appeal, “his purposes would be accomplished by the initial conviction.” He prepared an affidavit for the McSurelys’ landlord to sign and then presented the signed affidavit to the local judge, who prepared an arrest warrant for Alan McSurely and a search warrant for the McSurelys’ home. The arrest warrant charged McSurely with sedition against the state in violation of Ky.Rev.Stat. § 432.040. The search warrant authorized in general terms the seizure of “seditious matter or printing press or other machinery to print or circulate seditious matter.” In an earlier proceeding, we found that the affidavit, in part because it was based on hearsay, did not “support a finding of probable cause,” United States v. McSurely, 473 F.2d 1178, 1187 (D.C.Cir.1972). We further described the search warrant as “the very antithesis of the ‘particularity’ required by the Fourth Amendment.” Id. at 1189. On the evening of August 11, pursuant to the warrant, Pike County officials, directed by Ratliff, arrested Alan McSurely and searched the McSurelys’ home. The search appears to have gone far beyond the warrant’s scope. See id. at 1187-88. During the search, which lasted several hours, Ratliff discovered that Margaret McSurely had once been employed by the Student Non-Violent Coordinating Committee. He thereupon obtained a warrant for her arrest as well. On September" }, { "docid": "14734342", "title": "", "text": "PER CURIAM. State and local authorities of Kentucky commenced a prosecution of Alan McSurely and wife, Margaret McSurely, under the Anti-Sedition Law of the Commonwealth, KRS 432.040. Numerous books, pamphlets and documents were seized in connection with the arrests. The McSurelys brought an action in the United States District Court to enjoin the prosecution, invoking the doctrine of Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22. A three-judge District Court held the Anti-Sedition statute to be unconstitutional on the grounds of vagueness and federal preemption. 282 F.Supp. 848. Enforcement of the statute and the pending State criminal prosecution were enjoined. No appeal was taken from this decision. The District Court directed that the seized documents be retained in the possession of the Commonwealth attorney for safekeeping until final disposition of the case by appeal or otherwise. After the decision of the District Court and before the time for appeal had expired, subpoenas duces tecum ordering production of certain of the seized documents were issued by the Permanent Subcommittee on Investigations of the Committee on Government Operations of the United States Senate. The Subcommittee issued the subpoenas in connection with its investigation of riots and civil disturbances. Identical subpoenas were served upon Mr. and Mrs. MeSurely, the Commonwealth attorney and the United States Marshal. The McSurelys filed motions in the District Court for an order directing the return of the seized documents and seeking to enjoin the release of the documents pursuant to the subpoenas. The District Court denied this motion and ordered the parties to the action and officers of the court to cooperate with the Senate Committee in making available such material, or copies thereof, as the Committee considers pertinent to the inquiry, but in a manner to keep the materials intact for use in the event of appeal. The Supreme Court dismissed an appeal for want of jurisdiction. McSurely et al. v. Ratliff, 390 U.S. 412, 88 S.Ct. 1112, 19 L.Ed.2d 1272. The stay order previously granted by the Supreme Court was continued in effect pending an appeal to this Court. Two other orders" }, { "docid": "7894807", "title": "", "text": "the other verdicts. Factual Background We have narrated the factual background of this case on numerous occasions. The appendix to this opinion sets forth a list and brief description of the federal court decisions that have affected the McSurelys over the last seventeen years. We summarize that history only briefly here. In 1967, Alan and Margaret McSurely were field organizers in Pike County, Kentucky, for a civil rights organization known as the Southern Conference Educational Fund, Inc. On August 11 of that year (unless otherwise stated, all dates refer to 1967), county officials obtained an arrest warrant charging Alan McSurely with sedition against the state under Ky.Rev.Stat. § 432.040. They also obtained a warrant to search the McSurelys’ home for “seditious matter.” Pursuant to that warrant, over a dozen men, many of them armed, came to the McSurelys’ home and seized all of their papers, several hundred books, and some of their clothing. Both Alan and Margaret McSurely were arrested and charged with sedition. The Pike County prosecutor at the time, Thomas Ratliff, helped to organize the search and arrests. Ratliff had responsibility for prosecuting the McSurelys under the sedition statute. His involvement in this case is chronicled in more detail in McSurely v. McClellan, 697 F.2d 309 (D.C.Cir.1982). The day after the search, Ratliff stated publicly that he intended to make the McSurelys’ materials available to congressional committees. Five days after their arrest, and while they were still in jail, the McSurelys filed suit in federal court to have the Kentucky statute declared unconstitutional and to enjoin the threatened prosecution. Because the suit sought to enjoin enforcement of a state statute, a three-judge district court was convened to consider the McSurelys’ claims. See Act of June 25, 1948, ch. 646, § 1, 62 Stat. 968 (repealed 1976). At a hearing on September 1, the McSurelys’ attorney asked the court either to seal the seized material or to place it in the exclusive custody of the U.S. Marshal. Plaintiffs’ Exhibit No. 44, reprinted in Joint Appendix (J.A.) 1863. Following this request, the attorneys for both sides met with the judges" }, { "docid": "14812642", "title": "", "text": "14, 1967, in response to a complaint filed by the McSurelys, a three-judge district court in Kentucky (one judge dissenting on procedural grounds) held the sedition statute unconstitutional on its face and enjoined state prosecution of the McSurelys. McSurely v. Ratliff, 282 F.Supp. 848 (E.D.Ky.1967), app. dismissed, 390 U.S. 412, 88 S.Ct. 1112, 19 L.Ed.2d 1272 (1968). The court also directed Ratliff to hold “in safekeeping” the materials taken from the McSurelys’ home, pending a possible appeal of the court’s decision. No appeal was ever filed. Shortly thereafter, Laverne Duffy, Assistant Counsel to the Permanent Subcommittee on Investigations (Subcommittee) of the Senate Committee on Government Operations, contacted Ratliff by telephone to inquire about the seized items. Pursuant to this telephone call, a Subcommittee investigator, John Brick, visited Ratliff in Pike-ville. Ratliff, concerned that the safekeeping order might prohibit his allowing Brick to examine the McSurely materials, telephoned Judge Moynahan, the dissenting judge on the three-judge panel that had issued the order, for advice. The judge was noncommittal. As Judge Moynahan later explained in his deposition: I didn’t think it behooved me to give him legal advice but he persisted and I said, well, I’m not going to tell you to get into any confrontation with the Senate Committee. Ratliff made no further inquiry into his duties under the safekeeping order. Brick confirmed with Ratliff that the McSurely material contained information relating to the activities of a number of organizations in which the Subcommittee was interested. Ratliff permitted Brick to examine and make notes on the seized materials and provided him with copies of 234 of the documents, which Brick took back with him to Washington. 473 F.2d at 1191. A number of Margaret McSurely’s personal possessions were among the copied materials, including the names and addresses of friends and a love letter from a prominent Washington columnist. Subsequently, on October 16,1967, at the direction of Senator McClellan, Chairman of the Subcommittee, Brick subpoenaed certain of the McSurely materials in Ratliff’s possession. When the McSurelys received the subpoenas, they asked the three-judge court for an order prohibiting Ratliff from releasing the" }, { "docid": "7894889", "title": "", "text": "involved in the following related lawsuits: 1) Challenge to the Validity of the Kentucky Sedition Statute. Shortly after they were arrested, the McSurelys brought suit in federal district court to prevent the Kentucky prosecutor, Thomas Ratliff, from proceeding with any prosecution of the McSurelys under the state sedition statute, Ky.Rev.Stat. § 432.040. A three-judge panel, one judge dissenting, found the statute unconstitutional on its face. McSurely v. Ratliff, 282 F.Supp. 848 (E.D.Ky.1967). The court ordered Ratliff and the U.S. Marshal to retain possession of the seized material pending appeal. No appeal was ever taken. 2) Suit to Enjoin Ratliff and the U.S. Marshal from Complying with the Senate Subpoenas. As soon as the McSurelys received the Senate subpoenas for documents held in Ratliffs custody, they asked the three-judge district court to issue a temporary restraining order to prevent compliance with the subpoenas. This is the chronology of their effort to block compliance with the subpoenas: October 18, 1967: The McSurelys filed their motion for a temporary restraining order in the district court. October 23, 1967: The three-judge court denied the motion and ordered all parties to cooperate with the Subcommittee. November 10, 1967: The Supreme Court stayed the district court order on condition that the McSurelys obtain a ruling on the validity of the subpoenas. 389 U.S. 949, 88 S.Ct. 313, 19 L.Ed.2d 358 (1967). December 5, 1967: A hearing was held before the district court on the validity of the subpoenas. At that hearing, the McSurelys learned, for the first time, that John Brick, a Subcommittee investigator, had taken copies of 234 documents to Washington and that those copies were still in the Subcommittee’s possession. Brick refused to tell the McSurelys which documents the Subcommittee had. December 13, 1967: The district court again ordered compliance with the subpoenas. January 29, 1968: The Supreme Court granted another stay, reserving for future determination whether it had jurisdiction of the appeal from the district court. 390 U.S. 914 (1968). March 18, 1968: The Supreme Court dismissed the appeal for want of jurisdiction, but continued the stay so that the McSure-lys could seek" }, { "docid": "7894810", "title": "", "text": "paragraph, referred to throughout these proceedings as the “safekeeping order,” stated: It is further ordered that all books, papers, documents and other material now in the custody of the Commonwealth Attorney of Pike County, Ratliff, reflected by the Inventory filed in this action continue to be held by him in safe keeping until final disposition of this case by appeal or otherwise. Plaintiffs’ Exhibit No. 9, reprinted in J.A. 1796. One month later, the court issued an opinion setting forth its rationale for declaring the sedition statute unconstitutional. The opinion made no mention of the “safekeeping order.” McSurely v. Ratliff, 282 F.Supp. 848 (E.D.Ky.1967). The Senate defendants first became involved with the McSurely material sometime in September, over a month after the McSurelys’ home was searched. The Subcommittee was conducting a wide-ranging investigation into civil and criminal disorders throughout the country. After being notified by a Washington attorney that Ratliff had information regarding efforts to organize young people “to engage in violence and demonstrations,” Trial Transcript (Tr.) of Dec. 2, 1982, at 79, reprinted in J.A. 825, Lavern Duffy, a Subcommittee staff member, contacted Ratliff by telephone on September 25. During that conversation, Duffy (who is not a party to this suit) set up an appointment to come to Kentucky to inspect the documents. The next day, Duffy wrote a memorandum to defendant Adlerman stating that Ratliff “would arrange to have the [ ] records turned over to the subcommittee upon receipt of a subpoena____” Plaintiffs’ Exhibit No. 35, reprinted in J.A. 1843. On October 8, pursuant to directions from Adlerman, defendant Brick, a Subcommittee investigator, went to Kentucky in place of Duffy. Plaintiffs’ Exhibit No. 36, reprinted in J.A. 1844. Brick inspected the material being held in Ratliff’s custody at the Pike County courthouse and took copies of 234 documents back to Washington with him. There is conflicting evidence in the record concerning how Brick ultimately came to possess those particular documents. The jury could have found either that he was given them by one of Ratliff’s assistants or that he selected them himself while at the courthouse. Among" }, { "docid": "2727595", "title": "", "text": "WILKEY, Circuit Judge: This appeal is from an order entered on 12 June 1973 by the District Court in an action brought by Alan and Margaret McSurely against Senator John L. McClellan and three of his aides in their individual capacity. The plaintiffs’ (ap-pellees’) suit seeks damages of $800,000 for alleged violations of their constitutional rights arising from the defendants’ (appellants’) use of materials taken from the home of the plaintiffs in an unlawful search and seizure by agents of the Commonwealth of Kentucky on 11 August 1967. The District Court’s order denied the defendants’ motion to dismiss or for summary judgment, and allowed the suit to proceed over the defendants’ objections. Those objections, now made the principal points on appeal, are that further proceedings would violate defendants’ right under the Speech or Debate Clause of the Constitution not to be questioned outside Congress for their legislative acts, and that the use in a Congressional investigation by the defendant Senator and his committee aides of documents unlawfully seized by others was not barred by the Fourth Amendment. On these legal issues we largely agree with the defendants and therefore reverse the District Court; we remand, however, for the determination of certain disputed factual issues which conceivably might show plaintiffs to have a cause of action. I. Factual Background Reference is made to this court’s earlier opinions in United States v. McSurely and McSurely v. McClellan for a detailed exposition of the factual background of this lawsuit. In brief, in 1967 Alan and Margaret McSurely were field organizers for the Southern Conference Educational Fund, Inc., in Pike County,- Kentucky. Alan McSurely was also connected with the National Conference of New Politics and Vietnam Summer, both unincorporated associations. On the night of 11 August 1967, under authority of a warrant charging seditious activities against the Commonwealth of Kentucky in violation of KRS 432.040, officials of Pike County arrested the McSurelys and seized a large volume of books, posters, pamphlets, and other private and published documents found in their home. On 14 September 1967, in response to a complaint filed by the McSurelys," }, { "docid": "2727597", "title": "", "text": "a three-judge District Court in Kentucky held KRS 432.040 facially unconstitutional and enjoined state prosecution of the McSurelys. In its order the court directed the Commonwealth Attorney for Pike County, Thomas B. Ratliff, to hold in safekeeping the materials taken from the McSurelys’ house, pending his possible appeal of the court’s decision. Shortly thereafter, the Assistant Counsel to the Permanent Subcommittee on Investigations (“Subcommittee”) of the Senate Committee on Government Operations (“Committee”), Lavern Duffy, contacted Ratliff by telephone to inquire about the seized items. Ratliff had previously made a public announcement that the materials would be made available to Congressional committees. As a result of the Duffy telephone call, in early October 1967 John Brick, a Subcommittee investigator, visited Ratliff in Pikeville. After confirming with Ratliff that the McSurely material contained information relating to the activities of a number of organizations in which the Subcommittee was interested, Brick examined and made notes on the seized items. In addition, he was provided with copies of 234 of the documents, which he took with him on his return to Washington. Subsequently, on 16 October 1967, at the direction of Senator McClellan, Chairman of the Subcommittee, Brick prepared subpoenas for certain of the McSurely materials in Ratliff’s possession which the Senator had determined would be of value to the Subcommittee investigation of riots which occurred in Nashville, Tennessee, in April 1967. When the plaintiffs received the subpoenas, they filed motions with the three-judge court seeking orders blocking Ratliff from releasing the seized ma-. terials to the Subcommittee and directing him to return those materials to the McSurelys. This action culminated in a decision by the Sixth Circuit Court of Appeals in July 1968 that the documents must be returned to the McSurelys, but without prejudice to the right of the Subcommittee to proceed with the enforcement of its subpoenas. The lower court thereupon directed Ratliff to return all of the seized materials on 8 November 1968. On the same day the McSurelys received the xerox copies of 234 documents which Brick had taken with him to Washington. Upon receipt of these materials the" }, { "docid": "18202139", "title": "", "text": "the McSurelys and Mulloy, their official duties are to investigate the socio-eco-political milieu of Pike County, “to inform the people of their rights,” and to help local citizens “organize to overcome their problems.” Anne and Carl Braden, husband and wife, are directors of the Southern Conference Educational Fund. On the night of August 11, 1967, under authority of warrant charging seditious activities against the United States and the Commonwealth of Kentucky in violation of KRS 432.040, officials of Pike County and their deputies .arrested the McSurelys and Mulloy. The officials also seized and impounded 564 loose books, twenty-six posters, and twenty-two boxes of books, pamphlets, and other private and published documents found in the McSurely home. They also impounded a suitcase of clothes and several personal items which were caught up in the whirlwind of the search. The McSurelys, together _with Southern Conference Educational_ Fund and Vietnam Summer, filed their complaint in the United States District Court for the Eastern District of Kentucky. They alleged that KRS 432.040 is on its face unconstitutional and asked (1) that a three judge district court be convened; (2) that defendants be enjoined from prosecuting the plaintiffs in the state court; (3) for an interlocutory injunction pending determination of the request for permanent relief; and (4) that the seized material be impounded by a federal marshal. Judge Moynahan sustained the motion to certify for designation of a three judge district court. He denied the motion for interlocutory injunction and the motion to impound the seized material. Joseph Mulloy was permitted to intervene as a plaintiff. After the hearing before Judge Moynahan, the warrants were amended so as to eliminate the charge of sedition against the United States. This Court was convened on September 1, 1967. The ¡Kentucky Civil Liberties Union was permitted to tender its motion to intervene as amicus curiae and to submit a brief. At the hearing on September 1, the parties agreed to a stipulation of facts, and the Court fixed time for making up the pleadings and for the filing of briefs. No temporary injunction was issued but the defendant" }, { "docid": "7894811", "title": "", "text": "J.A. 825, Lavern Duffy, a Subcommittee staff member, contacted Ratliff by telephone on September 25. During that conversation, Duffy (who is not a party to this suit) set up an appointment to come to Kentucky to inspect the documents. The next day, Duffy wrote a memorandum to defendant Adlerman stating that Ratliff “would arrange to have the [ ] records turned over to the subcommittee upon receipt of a subpoena____” Plaintiffs’ Exhibit No. 35, reprinted in J.A. 1843. On October 8, pursuant to directions from Adlerman, defendant Brick, a Subcommittee investigator, went to Kentucky in place of Duffy. Plaintiffs’ Exhibit No. 36, reprinted in J.A. 1844. Brick inspected the material being held in Ratliff’s custody at the Pike County courthouse and took copies of 234 documents back to Washington with him. There is conflicting evidence in the record concerning how Brick ultimately came to possess those particular documents. The jury could have found either that he was given them by one of Ratliff’s assistants or that he selected them himself while at the courthouse. Among the documents were numerous personal letters and notes, including a love letter from columnist Drew Pearson to Margaret McSurely that was addressed “Dearest Cucumber.” Upon his return to Washington, Brick conferred with Adlerman and with Senator McClellan, then-chairman of the Subcommittee. Brick showed McClellan only one of the documents — the “Dearest Cucumber” letter. Both McClellan and Adlerman agreed to Brick’s suggestion that Brick go back and inspect more of the seized material. On October 12-13, Brick inspected the material in Kentucky and took notes on what he found. He then returned to Washington and prepared subpoenas for Senator McClellan’s signature. On October 18, Brick personally served congressional subpoenas on the McSurelys for numerous documents that had been seized from their home in August. Because the documents were not in the McSurelys’ possession, Brick also served subpoenas on Ratliff and the U.S. Marshal. Upon service of the subpoenas, the McSurelys learned, for the first time, that the Subcommittee was interested in their material. They immediately filed a motion in the district court to prevent Ratliff" } ]

[ { "docid": "12444305", "title": "", "text": "not correct. The Delfín was a 'stateless' vessel. It not only failed to respond to multilingual inquiries about its nationality, but also the Coast Guard could find no evidence of its nationality on board. The relevant statute, 46 U.S.C. App. § 1903(c), provides that 'any vessel aboard which the master or person in charge fails, upon request of an officer of the United States ... , to make a claim of nationality or registry for that vessel' is a 'vessel without nationality.' The statute says that such a vessel is 'subject to the jurisdiction of the United States.' And, as United States courts have interpreted international law, the law gives the 'United States . . . authority to treat stateless vessels as if they were its own.' Thus the United States, as a matter of international law, may prosecute drug offenders on stateless ships found on the high seas. 876 F.2d at 1010 (case citations omitted.) If sections 1903(a), (c) and (j) leave any doubt about the district court's jurisdiction, which they do not, Congress certainly eliminated that doubt in 46 U.S.C. app. § 1903(h) which, without requiring that an act to be punished must have a domestic nexus, provides that section 1903 \"is intended to reach acts of possession, manufacture, or distribution outside the.territorial jurisdiction of the United States.\" Moreover, 46 U.S.C. app. § 1903(d) provides \"A claim of failure to comply with international law in the enforcement of [the Maritime Drug Law Enforcement Act] may be invoked solely by a foreign nation, and a failure to comply with international law shall not divest a court of jurisdiction or otherwise constitute a defense to any proceeding under [the Maritime Drug Law Enforcement Act].\" We recognize that we have held that under 21 U.S.C. § 955a(d)(l), the predecessor section to 46 U.S.C. app. § 1903, prosecutions were permissible only if the government demonstrated that the smugglers intended their activities to have an effect on the United States. United States v. Wright-Barker, 784 F.2d 161, 168-169 (3d Cir. 1986). We concluded that there was a domestic effects requirement because of \"the" } ]

[ { "docid": "12444303", "title": "", "text": "the United States on board any vessel, to knowingly or intentionally manufacture or distribute, or to possess with intent to manufacture or distribute, a controlled substance. (j) Any person who attempts or conspires to commit any offense defined in [the Maritime Drug Law Enforcement Act] shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy. (Emphasis added.) Section 1903(c)(1)(A) provides that \"a vessel without nationality\" is \"subject to the jurisdiction of the United States.\" Sections 1903(c)(2)(A) and (B) in turn define a \"vessel without nationality\" as including: (A) a vessel aboard which the master or person in charge makes a claim of registry, which claim is denied by the flag nation whose registry is claimed; (B) any vessel aboard which the master or person in charge fails, upon request of an officer of the United States empowered to enforce applicable provisions of United States law, to make a claim of nationality or registry for that vessel. (Emphasis added.) Clearly the 26-foot boat was a \"vessel without nationality\" because Colombia disclaimed its registry in the second SNO. Accordingly, there is no doubt that the district court had jurisdiction even if there was not a nexus between Martinez's activities and the United States. Our conclusion is consistent with the decision of the Court of Appeals for the First Circuit in United States v. Victoria, 876 F.2d 1009 (1st Cir. 1989), a case dealing with a marijuana prosecution arising from the seizure of a vessel originally sighted by the United States Navy 60 miles north of Colombia. The Victoria court, in the course of an extensive review of the cases dealing with extraterritorial application of United States narcotics laws on the high seas, held: First, after urging that Congress did not intend the statute under which he was convicted to extend beyond the bounds of international law, appellant says that international law would not permit the United States to convict him for possessing marijuana so near Colombia and so far from the United States. This latter assertion is" }, { "docid": "23688919", "title": "", "text": "the vessel Don Yeyo was “subject to the jurisdiction of the United States.” 46 U.S.C.App. § 1903(a). The document, written on official stationery, is signed and sealed by the Commander General of the Honduran Navy. It is certified by the United States embassy in Honduras. On its face, the document identifies the Don Yeyo as an Honduran vessel and accords Honduran consent to the United States’ exercise of jurisdiction over the Don Yeyo. The defendants have challenged both the document and the circumstances under which it was admitted, arguing that the jury had before it no competent evidence to find United States jurisdiction. 1. Standing. — The government asserted at oral argument that 46 U.S.C. App. § 1903(d) deprives defendants of standing to object to the United States’ exercise of jurisdiction over the Don Yeyo. Section 1903(d) provides as follows: A claim of failure to comply with international law in the enforcement of this chapter may be invoked solely by a foreign nation, and a failure to comply with international law shall not divest a court of jurisdiction or otherwise constitute a defense to any proceeding under this chapter. 46 U.S.C.A.App. § 1903(d). The defendants, however, do not complain of a violation of international law. They assert that no competent evidence showed compliance with the domestic-law requirement found in 46 U.S.C.App. § 1903(a) that their vessel be “subject to the jurisdiction of the United States.” Certain language in the legislative history of section 1903(d) indicates that Congress intended to prevent defendants from raising any objection regarding United States jurisdiction over a vessel. For example, the accompanying Senate Report states that, under existing law: [Djefendants have been insisting at trial that the government present judicially admissible documentary evidence from the affected foreign nation to prove consent or denial of a claim of registry. These tactics have met with varying success, depending on the court. But prosecutors have had to go to great lengths to protect their cases from the possibility of an adverse ruling. Obtaining documents from foreign governments that are sufficient to withstand evidentiary objections in a U.S. courtroom can" }, { "docid": "12444302", "title": "", "text": "which the court had resolved against him when it denied his Rule 29 motion for acquittal. Martinez and Guzman were convicted on both counts. The court sentenced Martinez to a custodial term of 235 months and he then appealed. II. DISCUSSION - 1. May the government prosecute Martinez under the Maritime Drug Law Enforcement Act? Martinez contends that the government did not show that he intended that the drugs eventually would reach the United States. Thus, in his view, the district court did not have jurisdiction and he could not be prosecuted under 46 U.S.C. app. §§ 1903(a) and (j). However, Martinez's contention is legally inadequate because the Maritime Drug Enforcement Act clearly allows for his prosecution in the United States regardless of the destination of the drugs. Sections 1903(a) and (j) state: (a) It is unlawful for any person on board a vessel of the United States, or on board a vessel subject to the jurisdiction of the United States, or who is a citizen of the United States or a resident alien of the United States on board any vessel, to knowingly or intentionally manufacture or distribute, or to possess with intent to manufacture or distribute, a controlled substance. (j) Any person who attempts or conspires to commit any offense defined in [the Maritime Drug Law Enforcement Act] shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy. (Emphasis added.) Section 1903(c)(1)(A) provides that \"a vessel without nationality\" is \"subject to the jurisdiction of the United States.\" Sections 1903(c)(2)(A) and (B) in turn define a \"vessel without nationality\" as including: (A) a vessel aboard which the master or person in charge makes a claim of registry, which claim is denied by the flag nation whose registry is claimed; (B) any vessel aboard which the master or person in charge fails, upon request of an officer of the United States empowered to enforce applicable provisions of United States law, to make a claim of nationality or registry for that vessel. (Emphasis added.) Clearly the" }, { "docid": "3856194", "title": "", "text": "forth in the agreement. And it is important to note that there is no requirement in the agreement for the advance consent by the United Kingdom to any particular boarding. It is questionable whether that agreement applies to this case. The agreement, in paragraph nine, defines the geographic areas in which the agreement is applicable. That definition does not include the waters of the Pacific Ocean. However, in this case the Coast Guard did request the consent of the United Kingdom to board the Myth. And in its reply telex, the United Kingdom gave its consent under the terms and conditions of the agreement. Assuming that the agreement applies to this case, defendants argue that its terms were not complied with because the Coast Guard did not have a “reasonable belief” that the Myth was importing drugs into the United States at the time of requesting the United Kingdom’s consent. It is primarily on this issue that defendants request an evidentiary hearing. Defendants also argue that the 1981 agreement only covers importation offenses. However, it is the conclusion of this court that defendants lack standing to raise either of these issues. First, the 1981 agreement sets forth in paragraphs four, five, seven, and eight the procedures and remedies. Those remedies refer only to rights and duties of the United Kingdom and the United States, and do not contain any inference that any private party has standing to object to actions of the United States or the United Kingdom under that agreement. Second, 46 U.S.C. § 1903(d) also indicates that defendants have no standing to object to any alleged deficiencies. That section states: A claim of failure to comply with international law in the enforcement of this chapter may be invoked solely by a foreign nation, and a failure to comply with international law shall not divest a court of jurisdiction or otherwise constitute a defense to any proceeding under this chapter. Third, the legislative history of Section 1903 clearly shows that Congress intended to foreclose the type of arguments that defendants seek to make here. The Senate Report notes that," }, { "docid": "23368297", "title": "", "text": "Romain boarded the Myth. By that time, the Myth had sailed to a location approximately 100 miles west of the California coast. The boarding officer smelled marijuana in the cabin of the Myth. Davis informed the boarding officer that he kept a shotgun below deck, and Davis and the boarding officer went below to obtain it. Below deck, the boarding officer saw numerous bales of material and smelled marijuana. Davis admitted that the bales were marijuana. The Coast Guard then arrested Davis and his crew and brought the Myth to the Coast Guard station on Yerba Buena Island in San Francisco. The Coast Guard there confiscated over 7,000 pounds of marijuana from the Myth. Davis is not a citizen of the United States. On September 2, 1987, Davis filed a motion to dismiss for lack of jurisdiction and a motion to suppress evidence obtained from the Myth. The district court denied both motions. United States v. Biermann, 678 F.Supp. 1437 (N.D.Cal.1988). On July 26, 1988, the district court found Davis guilty on stipulated facts. Davis timely appealed. We have jurisdiction pursuant to 28 U.S.C. § 1291 (1982). II. DISCUSSION A. LEGISLATIVE JURISDICTION Davis contends that the provisions of the statute under which he was convicted, the Maritime Drug Law Enforcement Act, 46 U.S.C. app. §§ 1903(a), 1903®, do not apply to persons on foreign vessels outside the territory of the United States. The question of whether the United States may pun ish Davis’ conduct involves three issues: 1) whether Congress has constitutional authority to give extraterritorial effect to the Maritime Drug Law Enforcement Act; if so, 2) whether the Constitution prohibits the United States from punishing Davis’ conduct in this instance; and, if not, 3) does the Maritime Drug Law Enforcement Act apply to Davis’ conduct? Whether Congress may give extraterritorial effect to the statute in question is an issue of law which we review de novo. United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). Whether application of a particular statute violates due process" }, { "docid": "23368298", "title": "", "text": "timely appealed. We have jurisdiction pursuant to 28 U.S.C. § 1291 (1982). II. DISCUSSION A. LEGISLATIVE JURISDICTION Davis contends that the provisions of the statute under which he was convicted, the Maritime Drug Law Enforcement Act, 46 U.S.C. app. §§ 1903(a), 1903®, do not apply to persons on foreign vessels outside the territory of the United States. The question of whether the United States may pun ish Davis’ conduct involves three issues: 1) whether Congress has constitutional authority to give extraterritorial effect to the Maritime Drug Law Enforcement Act; if so, 2) whether the Constitution prohibits the United States from punishing Davis’ conduct in this instance; and, if not, 3) does the Maritime Drug Law Enforcement Act apply to Davis’ conduct? Whether Congress may give extraterritorial effect to the statute in question is an issue of law which we review de novo. United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). Whether application of a particular statute violates due process is a mixed question of law and fact which we review de novo. Id. at 1202. 1. Congressional Authority to Give Extraterritorial Effect to the Maritime Drug Law Enforcement Act The Maritime Drug Law Enforcement Act, 46 U.S.C. app. § 1903(a) and (j) state: (a) It is unlawful for any person on board a vessel of the United States, or on board a vessel subject to the jurisdiction of the United States, to knowingly or intentionally manufacture or distribute, or to possess with intent to manufacture or distribute, a controlled substance. (j) Any person who attempts or conspires to commit any offense defined in this Act [46 U.S.C. app. §§ 1904] is punishable by imprisonment or fine, or both, which may not exceed the maximum punishment prescribed for the offense, the commission of which was the object of the attempt of the conspiracy. The United States Congress sits as a legislature of enumerated and specific powers. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176, 2 L.Ed. 60 (1803). The Constitution gives Congress the" }, { "docid": "8818940", "title": "", "text": "possessing with the intent to distribute marijuana while on board a vessel subject to the jurisdiction of the United States in violation of 46 U.S.C. app. § 1903(a). The defendants appealed. DISCUSSION I The Maritime Drug Law Enforcement Act (“MDLEA”) makes it “unlawful for any person ... on board a vessel subject to the jurisdiction of the United States ... to possess with intent to manufacture or distribute, a controlled substance.” 46 U.S.C. app. § 1903(a). One of the MDLEA’s definitions of a vessel subject to the jurisdiction of the United States is “a vessel registered in a foreign nation where the flag nation has consented or waived objection to the enforcement of United States law by the United States.” Id. § 1903(c)(1)(C). In this case, the defendants were convicted of aiding and abetting each other in the possession with intent to distribute marijuana on board a vessel, the CORSICA, subject to the jurisdiction of the United States. The CORSICA was registered in Venezuela, and the government of Venezuela consented to the application of United States law to the defendants. The government therefore satisfied the jurisdictional requirements of the MDLEA. The defendants contend that the Fifth Amendment Due Process Clause requires the government to prove a nexus between their criminal conduct and the United States in a prosecution for violating the MDLEA. Although the MDLEA does not explicitly contain a domestic nexus requirement, the Ninth Circuit has read into the MDLEA a nexus requirement with respect to foreign-registered vessels. See United States v. Klimavicius-Viloria, 144 F.3d 1249, 1257 (9th Cir.1998) (requiring government to prove that offense conduct is likely to have effects in United States); United States v. Davis, 905 F.2d 245 (9th Cir.1990) (requiring sufficient nexus between criminal conduct and United States such that application of U.S. law would not be arbitrary or unfair). This nexus requirement, however, was specifically rejected by the Third Circuit. See United States v. Martinez-Hidalgo, 993 F.2d 1052 (3d Cir.1993) (reasoning that statute does not contain nexus requirement, and that Congress intended MDLEA to override international law to extent nexus might be required). We" }, { "docid": "22177986", "title": "", "text": "the constitutionality of the MDLEA jurisdiction and venue provision, 46 U.S.C. app. § 1903(f), which removes from the jury the question of whether a vessel is subject to the jurisdiction of the United States. As in the previous section, we begin with the language of the statute. See Prather, 205 F.3d at 1269. Section 1903(a), among other things, defines the substantive offense of “possession with intent to manufacture or distribute controlled substances on board vessels,” and, in so doing, states that such possession is unlawful when it occurs “on board a vessel subject to the jurisdiction of the United States.” 46 U.S.C. app. § 1903(a). Section 1903(c)(1)(A), in turn, states that a “vessel subject to the jurisdiction of the United States” includes a “a vessel without nationality.” 46 U.S.C. app. § 1903(c)(1)(A). A “vessel without nationality” is defined in § 1903(c)(2) as: (A) a vessel aboard which the master or person in charge makes a claim of registry, which claim is denied by the flag nation whose registry is claimed; (B) any vessel aboard which the master or person in charge fails, upon request of an officer of the United States empowered to enforce applicable provisions of United States law, to make a claim of nationality or registry for that vessel; and (C) a vessel aboard which the master or person in charge makes a claim of registry and the claimed nation of registry does not affirmatively and unequivocally assert that the vessel is of its nationality. 46 U.S.C. app. § 1903(c)(2). Building on this statutory framework, Congress amended the MDLEA in 1996, choosing to add a new subsection, § 1903(f), entitled “Jurisdiction and Venue.” See Coast Guard Authorization Act of 1996, Pub.L. 104-324, § 1138(a)(5), 110 Stat. 3901 (1996). Section 1903(f) provides that “^jurisdiction of the United States with respect to vessels subject to this chapter is not an element of any offense.” 46 U.S.C. app. § 1903(f). The section further states: “All jurisdictional issues arising under this chapter are preliminary questions of law to be determined solely by the trial judge.” Id. 2. The Appellants’ Argument In light" }, { "docid": "3856188", "title": "", "text": "obtained from the search and seizure of the Myth. Their arguments in that regard are primarily two. One is that the Coast Guard’s request to the United Kingdom for permission to board and search the Myth was not in compliance with the 1981 agreement between the United States and the United Kingdom. The second is that the search and seizure were in violation of the Fourth Amendment of the United States Constitution. As stated, defendants also request an evidentiary hearing on those issues and have requested the further production of evidence by the government in that regard. The court will discuss each of those issues in order. IV. JURISDICTION UNDER THE APPLICABLE STATUTES Do these criminal statutes of the United States, 46 U.S.C. § 1903(a) and (j), apply to persons on a foreign flag vessel in international waters? 46 U.S.C. § 1903 is part of Chapter 38 of the Shipping Code. That chapter expressly deals with “Maritime Drug Law Enforcement.” (emphasis added). The statute was originally passed in 1980, then as Section 955c of Title 21, regarding food and drugs. The section was enacted to fill a void left by the Comprehensive Drug Abuse Prevention and Control Act of 1970, which superseded prior drug enforcement legislation but inadvertently omitted to replace the provision under which drug offenders apprehended on the high seas were prosecuted. See S.Rep. No. 855, 96th Cong., 2d Sess., reprinted in 1980 U.S. Code Cong. & Admin.News 2785. The section was amended in 1986 and restated as Section 1903 of the Shipping Code. The Senate Report pertaining to that amendment stated that, under the statute before its amendment, some defendants had successfully resisted prosecution by “relying heavily on international jurisdictional questions as legal technicalities.” S.Rep. No. 530, 99th Cong., 2d Sess., reprinted in 1986 U.S.Code Cong. & Admin.News 5986, 6000. The amendment therefore included a provision prohibiting individual defendants from relying as a defense on the government’s failure to comply with international law. In 46 U.S.C. § 1902 Congress specifically found and declared that trafficking in controlled substances aboard vessels is a serious international problem and is" }, { "docid": "1860054", "title": "", "text": "BOUDIN, Chief Judge. On this appeal, we face a narrow set of issues arising from a recent amendment of the Maritime Drug Law Enforcement Act (“Maritime Act”), 46 U.S.C. app. §§ 1901 et seq. (2000), intended by Congress to facilitate the prosecution of high-seas drug smuggling on U.S. or stateless vessels. In a nutshell, the issue is whether, by pleading guilty unconditionally to a drug trafficking charge (possession of drugs on a stateless vessel with intent to distribute) the defendant Jose Alberto Gonzalez forfeited any claim that the boat in question was a foreign (rather than a stateless) vessel. The pertinent facts, derived from the plea agreement, can be stated briefly. On April 27, 1999, Gonzalez and another individual were rescued from a speed boat that was two-thirds submerged on the high seas off the coast of the British Virgin Islands. Summoned by the rescuing vessel, the U.S. Coast Guard responded and on inspection found that the speed boat carried numerous bales of cocaine. Defendant and his companion were indicted for possessing the cocaine, with intent to distribute it, aboard “a vessel without nationality” in violation of 46 U.S.C. app. § 1903(a). That statute makes possession of cocaine with intent to distribute a federal crime where possession occurs either on board a “vessel of the United States” or on board a “vessel subject to jurisdiction of the United States”; id. § 1903(a); and the statute places “a vessel without nationality” (sometimes called a stateless vessel) in the latter category. Id. § 1903(c)(1)(A). “Vessel without nationality” is further defined to include: (A) a vessel aboard which the master or person in charge makes a claim of registry, which claim is denied by the flag nation whose registry is claimed; (B) any vessel aboard which the master or person in charge fails, upon request of an officer of the United States empowered to enforce applicable provisions of United States law, to make a claim of nationality or registry for that vessel; and (C) a vessel aboard which the master or person in charge makes a claim of registry and the claimed nation" }, { "docid": "2096215", "title": "", "text": "FARRIS, Circuit Judge: We must decide whether the Maritime Drug Law Enforcement Act, 46 U.S.C. app. §§ 1901-1903, can be applied, consistent with due process, to defendants apprehended aboard a “stateless” vessel on the high seas when there is no nexus between the defendants and the United States. I. BACKGROUND This is an appeal from the district court’s order granting a defense motion to dismiss. We accept the facts alleged by the government as true. United States v. Buckley, 689 F.2d 893, 897 (9th Cir.1982), cert. denied, 460 U.S. 1086, 103 S.Ct. 1778, 76 L.Ed.2d 349 (1983). On November 15, 1993, the United States Coast Guard apprehended the six defendants, all foreign nationals, on a thirty-five foot power boat floating dead in the water approximately 200 miles off the coast of Nicaragua and 2,000 miles from San Diego. The defendants’ boat was not registered to any nation, and it flew no nation’s flag. Before being boarded by the Coast Guard, the defendants jettisoned 2,567 pounds of cocaine into the ocean. The Coast Guard recovered the cocaine. The government acknowledges “[tjhere was no evidence that the vessel, its cargo or its crew were destined for the United States, or that any part of the criminal venture occurred in the United States.” Each of the defendants was charged with possession of cocaine with intent to distribute and conspiracy in violation of 46 U.S.C. app. § 1903(a), (j). The district judge dismissed the complaint, concluding that because the government failed to demonstrate any nexus with the United States, prosecution was “arbitrary and fundamentally unfair under the Fifth Amendment.” We have jurisdiction, 18 U.S.C. § 3731, and reverse. II. DISCUSSION We review de novo the dismissal of an indictment on due process grounds. United States v. Barrera-Moreno, 951 F.2d 1089, 1091 (9th Cir.1991), cert. denied, — U.S. -, 113 S.Ct. 417, 121 L.Ed.2d 340 (1992). Section 1903(a) makes it “unlawful for any person on board a vessel ... subject to the jurisdiction of the United States, ... to knowingly or intentionally ... possess with intent to ... distribute, a controlled substance.” A “vessel subject" }, { "docid": "12444306", "title": "", "text": "certainly eliminated that doubt in 46 U.S.C. app. § 1903(h) which, without requiring that an act to be punished must have a domestic nexus, provides that section 1903 \"is intended to reach acts of possession, manufacture, or distribution outside the.territorial jurisdiction of the United States.\" Moreover, 46 U.S.C. app. § 1903(d) provides \"A claim of failure to comply with international law in the enforcement of [the Maritime Drug Law Enforcement Act] may be invoked solely by a foreign nation, and a failure to comply with international law shall not divest a court of jurisdiction or otherwise constitute a defense to any proceeding under [the Maritime Drug Law Enforcement Act].\" We recognize that we have held that under 21 U.S.C. § 955a(d)(l), the predecessor section to 46 U.S.C. app. § 1903, prosecutions were permissible only if the government demonstrated that the smugglers intended their activities to have an effect on the United States. United States v. Wright-Barker, 784 F.2d 161, 168-169 (3d Cir. 1986). We concluded that there was a domestic effects requirement because of \"the traditional requirement of international law that a state apply criminal jurisdiction to acts committed outside its territorial borders only where an effect occurs within those borders.\" Id. at 167. But the \"effects\" requirement of Wright-Barker now has been superseded by 46 U.S.C. app. § 1903(d). There is, of course, no doubt the Congress may override international law by clearly expressing its intent to do so. See United States v. James-Robinson, 515 F. Supp. 1340, 1343 (S.D. Fla. 1981). Inasmuch as Congress in section 955a expressed no such intent, we felt obligated in Wright-Barker to apply the nexus test as required by international law. But 46 U.S.C. app. § 1903(d) expresses the necessary congressional intent to override international law to the extent that international law might require a nexus to the United States for the prosecution of the offenses defined in the Maritime Drug Law Enforcement Act. We further acknowledge that our conclusion that the government need not establish a domestic nexus to prosecute offenses under the Maritime Drug Law Enforcement Act is not reconcilable with" }, { "docid": "3856195", "title": "", "text": "is the conclusion of this court that defendants lack standing to raise either of these issues. First, the 1981 agreement sets forth in paragraphs four, five, seven, and eight the procedures and remedies. Those remedies refer only to rights and duties of the United Kingdom and the United States, and do not contain any inference that any private party has standing to object to actions of the United States or the United Kingdom under that agreement. Second, 46 U.S.C. § 1903(d) also indicates that defendants have no standing to object to any alleged deficiencies. That section states: A claim of failure to comply with international law in the enforcement of this chapter may be invoked solely by a foreign nation, and a failure to comply with international law shall not divest a court of jurisdiction or otherwise constitute a defense to any proceeding under this chapter. Third, the legislative history of Section 1903 clearly shows that Congress intended to foreclose the type of arguments that defendants seek to make here. The Senate Report notes that, under prior law, defendants have been insisting at trial that the government present judicially admissible documentary evidence from the affected foreign nation to prove consent or denial of a claim of registry. These tactics have met with varying suc cess, depending on the court. But prosecutors have had to go to great lengths to protect their cases from the possibility of an adverse ruling____ In the view of the Committee, only the flag nation of a vessel should have a right to question whether the Coast Guard has boarded that vessel with the required consent. The international law of jurisdiction is an issue between sovereign nations. Drug smuggling is universally recognized criminal behavior, and defendants should not be allowed to inject these collateral issues into their trials. S.Rep. 530, 99th Cong., 2d Sess. 15-16, reprinted in 1986 U.S.Code Cong. & Admin.News 5986, 6000-01. Finally, defendants’ lack of standing here is also consistent with a recent decision of the United States Court of Appeals for the Ninth Circuit. In United States v. Peterson, 812 F.2d 486" }, { "docid": "12444307", "title": "", "text": "traditional requirement of international law that a state apply criminal jurisdiction to acts committed outside its territorial borders only where an effect occurs within those borders.\" Id. at 167. But the \"effects\" requirement of Wright-Barker now has been superseded by 46 U.S.C. app. § 1903(d). There is, of course, no doubt the Congress may override international law by clearly expressing its intent to do so. See United States v. James-Robinson, 515 F. Supp. 1340, 1343 (S.D. Fla. 1981). Inasmuch as Congress in section 955a expressed no such intent, we felt obligated in Wright-Barker to apply the nexus test as required by international law. But 46 U.S.C. app. § 1903(d) expresses the necessary congressional intent to override international law to the extent that international law might require a nexus to the United States for the prosecution of the offenses defined in the Maritime Drug Law Enforcement Act. We further acknowledge that our conclusion that the government need not establish a domestic nexus to prosecute offenses under the Maritime Drug Law Enforcement Act is not reconcilable with some of the wording in the opinion of the Court of Appeals for the Ninth Circuit in United States v. Davis, 905 F.2d 245 (9th Cir. 1990), cert. denied, 111 S.Ct. 753 (1991). The Davis court indicated that, in a section 1903 prosecution, to apply the statute extraterritorially \"consistently with due process, there must be a sufficient nexus between the defendant and the United States so that such application would not be arbitrary or fundamentally unfair.\" 905 F.2d at 248-49. We decline to follow Davis as we see nothing fundamentally unfair in applying section 1903 exactly as Congress intended — ex-traterritorially without regard for a nexus between a defendant's conduct and the United States. In this regard, we point out that the framers of the Constitution themselves provided that Congress had the power \"[t]o define and punish Piracies and Felonies committed on the high seas, and Offenses against the Law of Nations.\" U.S. Const, art. I, § 8, cl. 10. Inasmuch as the trafficking of narcotics is condemned universally by law-abiding nations, we see no" }, { "docid": "3856200", "title": "", "text": "on the high seas is operating in violation of U.S. laws. This holding was noted by the Ninth Circuit in U.S. v. Peterson, 812 F.2d at 493. But the Peterson court stated that Section 89(a), in the context of enforcing the statutory predecessor of 46 U.S.C. § 1903, “specifically applies to the high seas and does not restrict the Coast Guard to actions based on reasonable suspicion or probable cause.” Id. The Ninth Circuit, however, avoided a direct conflict with the Fifth Circuit by holding that the search in Peterson was conducted pursuant to a different jurisdictional predicate, i.e. that the vessel was boarded within the customs waters of the United States. Id. As this court has already discussed above, the Myth was also located in the customs waters of the United States within the definition of the applicable statutes. This court therefore concludes that: the Myth was in the customs waters of the United States; the Coast Guard had authority to board the Myth without reasonable suspicion or probable cause under 14 U.S.C. § 89(a); the Myth and defendants are subject to United States jurisdiction under 46 U.S.C. § 1903(c)(1)(C) and (D); and 46 U.S.C. § 1903(a) and (j) do apply to the Myth and to defendants. That extension of jurisdiction is just what the U.S. Congress and the United Kingdom intended. V. JURISDICTIONAL LIMITATIONS UNDER THE CONSTITUTION Defendants then contend that such an extension of the statutes of the United States to international waters, even with the consent of a foreign government, is an unconstitutional exercise of extraterritorial jurisdiction. Defendants argue that the U.S. Constitution, together with judicially developed doctrines of jurisdiction, preclude application of substantive United States criminal law to persons on foreign vessels outside of United States territory. The constitutionality of Section 1903’s predecessor statute, 21 U.S.C. § 955c, has been upheld by several federal courts of appeal. See United States v. Peterson, 812 F.2d 486 (9th Cir.1987); United States v. Romero-Galue, 757 F.2d 1147 (11th Cir. 1985). The constitutional analysis in such cases begins with the proposition, discussed above, that in enacting Section 1903 Congress" }, { "docid": "22177957", "title": "", "text": "BIRCH, Circuit Judge: Defendants-appellants Manuel Hernandez and Tito Daniel Estupinan appeal their convictions under the Maritime Drug Law Enforcement Act, 46 U.S.C. app. § 1901 et seq. (1994 & Supp. V 1999) (“MDLEA”). They were convicted of conspiracy to possess with intent to distribute five kilograms or more of cocaine while on board a vessel subject to the jurisdiction of the United States, in violation of 46 U.S.C. app. § 1903(a), (g), and (j), and of possession with intent to distribute five kilograms or more of cocaine while on board a vessel subject to the jurisdiction of the United States, in violation of 46 U.S.C. app. § 1903(a), (g) and 18 U.S.C. § 2 (2000). We AFFIRM their convictions. I. BACKGROUND A. Factual Background 1. The United States Coast Guard’s Interception of the Smuggling Vessel in International Waters On 18 June 2000, the United States Coast Guard cutter Thetis, a 270-foot ship with approximately 90 to 95 crew members, was on a counter-narcotics patrol in the eastern Pacific Ocean. During the patrol, the Thetis encountered a fiberglass vessel approximately 475 nautical miles west of the Columbian/Ecuadorian border in international waters. The vessel was approximately 40 feet in length,, equipped with three outboard motors, and low in profile to the water. Thetis crew members later testified that Coast Guard officials refer to such vessels as “go-fast” boats because they can travel at high rates of speed, which makes them a favored vehicle for drug and alien smuggling operations. When the crew first observed the vessel, it was approximately 300 miles from the nearest point of land. Randy Bradley, a law enforcement officer aboard the Thetis, later testified that this type of vessel, when used for recreational purposes, usually would stay within 20 nautical miles of the shore due to its limited fuel capacity. Using binoculars, Thetis crew members did not see any markings of identification or a flag on the vessel. The crew attempted to hail the vessel by way of radio communications in English and Spanish but received no response. As the Thetis proceeded towards the vessel, the Thetis crew" }, { "docid": "7996664", "title": "", "text": "pulling white bundles from below-deck compartments on the vessel, which they proceeded to throw overboard. The vessel eventually was stopped and boarded by Coast Guard personnel. All on board stated that they were Colombian nationals, while the individual identified as the captain of the boat claimed that it was of Colombian registry. The Coast Guard then notified the State Department which in turn contacted the Colombian government in an effort to verify registry. The Colombian government neither confirmed nor denied that the ship was in fact Colombian. The vessel was deemed stateless and the Defendants were taken into custody, brought to San Diego, and, on August 21, 2000, indicted for violations of 46 App. U.S.C. § 1903, the Maritime Drug Law Enforcement Act (“MDLEA”). Specifically, the Defendants were charged with violations of section 1903(a), possession of cocaine on board a vessel subject to the jurisdiction of the United States with intent to distribute, and section 1903(j), conspiracy to possess cocaine on board a vessel subject to the jurisdiction of the United States with intent to distribute. On August 24, the Defendants moved to dismiss the indictment on the grounds that (1) the MDLEA is an unconstitutional exercise of congressional authority; (2) the district court lacked jurisdiction over the Defendants; and (3) the penalty provisions of the MDLEA violate the Fifth and Sixth Amendments by allowing for increased maximum penalties on the basis of facts not charged in the indictment and submitted to the jury. On October 18, 2000, following a hearing, the district court denied the Defendants’ challenges to the constitutionality of the statute and to the court’s jurisdiction. In denying the motion to dismiss for lack of jurisdiction, the district court stated: Insofar as the argument that the statute is basically unconstitutional, or at least the jurisdiction of this court is unconstitutional, the Government has relied on the U.S. Constitution, Article I, Section 8, Clause 10, which allows Congress to define and punish piracies and felonies on the high seas and offenses against the laws of nations, and the Ninth Circuit has specifically held the Maritime Drug Law Enforcement" }, { "docid": "12444297", "title": "", "text": "OPINION OF THE COURT GREENBERG, Circuit Judge I. FACTUAL AND PROCEDURAL BACKGROUND Defendant-appellant Nicomedes Martinez-Hidalgo appeals from the judgment of conviction and sentence entered on October 20, 1992, following his conviction at a jury trial in the District Court of the Virgin Islands for possession of cocaine on the high seas with intent to distribute and conspiracy on the high seas to distribute cocaine in violation of the Maritime Drug Law Enforcement Act, 46 U.S.C. app. §§ 1903(a) and (j) (Supp. 1992). Martinez, a Colombian national, and the other members of the crew of his vessel were arrested in international waters after the Coast Guard boarded his vessel and found that it contained eight burlap bags of cocaine, later determined to weigh 282 kilos. He contends, as he did in the district court, that the Maritime Drug Law Enforcement Act does not apply to him because he was a nonresident alien on a foreign vessel sailing outside United States territorial waters and there was an insufficient nexus between his activities and the United States to sustain the district court's jurisdiction. In addition, for the first time he now advances the contention that the Coast Guard searched and seized his vessel in violation of the Fourth Amendment. We will affirm. The facts in the case are not complicated nor, insofar as material to the issues raised on this appeal, in dispute. On December 12, 1991, the USS Hercules, a navy vessel with four Coast Guard members on board, was on patrol at a point approximately 60 miles southwest of St. Croix and 80 miles south of Puerto Rico. The Coast Guard command in San Juan had warned the Hercules crew to be on the alert for a drug drop. At that time the Hercules encountered a 26-foot flagless boat without name or numbers. This boat was constructed of wood and fiberglass and was difficult to detect on radar because of the unusually small amount of metal used in its construction. An officer on the Hercules contacted the boat's crew through a bull horn and asked their nationality, the place of origin" }, { "docid": "12444304", "title": "", "text": "26-foot boat was a \"vessel without nationality\" because Colombia disclaimed its registry in the second SNO. Accordingly, there is no doubt that the district court had jurisdiction even if there was not a nexus between Martinez's activities and the United States. Our conclusion is consistent with the decision of the Court of Appeals for the First Circuit in United States v. Victoria, 876 F.2d 1009 (1st Cir. 1989), a case dealing with a marijuana prosecution arising from the seizure of a vessel originally sighted by the United States Navy 60 miles north of Colombia. The Victoria court, in the course of an extensive review of the cases dealing with extraterritorial application of United States narcotics laws on the high seas, held: First, after urging that Congress did not intend the statute under which he was convicted to extend beyond the bounds of international law, appellant says that international law would not permit the United States to convict him for possessing marijuana so near Colombia and so far from the United States. This latter assertion is not correct. The Delfín was a 'stateless' vessel. It not only failed to respond to multilingual inquiries about its nationality, but also the Coast Guard could find no evidence of its nationality on board. The relevant statute, 46 U.S.C. App. § 1903(c), provides that 'any vessel aboard which the master or person in charge fails, upon request of an officer of the United States ... , to make a claim of nationality or registry for that vessel' is a 'vessel without nationality.' The statute says that such a vessel is 'subject to the jurisdiction of the United States.' And, as United States courts have interpreted international law, the law gives the 'United States . . . authority to treat stateless vessels as if they were its own.' Thus the United States, as a matter of international law, may prosecute drug offenders on stateless ships found on the high seas. 876 F.2d at 1010 (case citations omitted.) If sections 1903(a), (c) and (j) leave any doubt about the district court's jurisdiction, which they do not, Congress" }, { "docid": "23368301", "title": "", "text": "violate the due process clause of the fifth amendment. Thomas, at 1068. In this case, Congress explicitly stated that it intended the Maritime Drug Law Enforcement Act to apply extraterritorially. 46 U.S.C. app. § 1903(h) (Supp.IV 1986) (“This section is intended to reach acts of possession, manufacture, or distribution outside the territorial jurisdiction of the United States”). Therefore, the only issue we must consider is whether application of the Maritime Drug Law Enforcement Act to Davis’ conduct would violate due process. In order to apply extraterritorially a federal criminal statute to a defendant consistently with due process, there must be a sufficient nexus between the defendant and the United States, see United States v. Peterson, 812 F.2d 486, 493 (9th Cir.1987), so that such application would not be arbitrary or fundamentally unfair. In the instant case, a sufficient nexus exists so that the application of the Maritime Drug Law Enforcement Act to Davis’ extraterritorial conduct does not violate the due process clause. “Where an attempted transaction is aimed at causing criminal acts within the United States, there is a sufficient basis for the United States to exercise its jurisdiction.” Id. The facts found by the district court in denying Davis’ motion to dismiss for lack of jurisdiction support the reasonable conclusion that Davis intended to smuggle contraband into United States territory. At the time of its first detection, the Myth was 35 miles away from, and headed for, San Francisco. As the Coast Guard approached, the Myth changed its course for the Caribbean by way of Mexico, although the Myth was many miles from the Great Circle route from Hong Kong to Acapulco. The Myth is on a list of boats suspected of drug smuggling. It is unusual for a 58 foot sailing vessel to have sailed from the Myth’s asserted point of departure, Hong Kong. The foregoing evidence is sufficient to establish a nexus between the Myth and the United States. We therefore find that the Constitution does not prohibit the application of the Marijuana Drug Law Enforcement Act to Davis. 3. Application of the Maritime Drug Law Enforcement" } ]

[ { "docid": "12352197", "title": "", "text": "relief against federal government policies would be nearly unattainable, as government experts will likely attest that the public interest favors the federal government’s preferred policy, regardless of procedural failures. We hold that the district court abused its discretion by deferring to agency views concerning the equitable prerequisites for an injunction. We therefore vacate the district court’s narrow permanent injunction and remand for analysis of the requirements of a permanent injunction without deference to the Forest Service’s experts simply because of their relationship with the agency. Our interim injunction will remain in place until the district court has addressed these cases on remand and crafted its own injunctive order. VI. NEPA Conclusion We hold that the district court properly granted the Forest Service summary judgment on Sierra Forest’s and California’s NEPA claims. The Forest Service did not violate NEPA when promulgating the 2004 Framework or approving the Basin Project. We vacate, however, the district court’s permanent injunction and remand for analysis without unwarranted deference to Forest Service experts. REINHARDT, Circuit Judge: VII. National Forest Management Act A. Sierra Forest challenges the United States Forest Service’s forest management plan for the Sierra Nevada (“the 2004 Framework” or “the Framework”) and the Forest Service’s decision to approve the Basin Group Selection Project (“the Project”), a timber harvesting project designed to implement the 2004 Framework. Sierra Forest contends that the Forest Service violated the National Forest Management Act (the NFMA) by approving the Project without complying with the population monitoring requirements for management indicator species that were set forth in the 2004 Framework. Sierra Forest also contends that the 2004 Framework itself violates the NFMA because it will not sufficiently maintain species viability. First, the district court granted summary judgment for the Forest Service on the claim that the Project had been approved without required population trend data. It did so because it concluded that the 2007 Amendment to the forest plan removed the monitoring requirements contained in the 2004 Framework, and that the 2007 Amendment applied retroactively to the Basin Project. Sierra Nevada Forest Protection Campaign v. Rey, 573 F.Supp.2d 1316, 1335 (E.D.Cal.2008)." } ]

[ { "docid": "7707314", "title": "", "text": "of fish and 35 species of amphibians. The Sierra Nevada Ecosystem Project, a study commissioned by Congress, concluded in 1996 that their environment has been severely degraded: “The aquatic/riparian systems are the most altered and impaired habitats in the Sierra.” The national forests in the Sierras are managed under eleven Forest Plans (“the Forest Plans”). In January 2001, the United States Forest Service (“Forest Service”) issued a Final Environmental Impact Statement (“2001 EIS”) recommending amendments to the Forest Plans in the Sierras. The amendments were intended, among other things, to conserve and repair the aquatic and riparian ecosystems. In January 2001, under the administration of President Clinton, the Forest Service adopted a modified version of the preferred alternative recommended in the 2001 EIS. The parties refer to this as the 2001 Framework. In November 2001, under the administration of newly elected President Bush, the Chief of the Forest Service asked for a review of the 2001 Framework. In January 2004, the Forest Service issued a Final Supplemental Environmental Impact Statement (“2004 EIS”) recommending significant changes to the 2001 Framework. The Forest Service adopted the preferred alternative in the 2004 EIS. The parties refer to this as the 2004 Framework. Plaintiff-Appellant Pacific Rivers Council (“Pacific Rivers”) brought suit in federal district court challenging the 2004 Framework as inconsistent with the National Environmental Protection Act (“NEPA”) and the Administrative Procedure Act (“APA”). The gravamen of Pacific Rivers’ complaint is that the 2004 EIS does not sufficiently analyze the environmental consequences of the 2004 Framework for fish and amphibians. On cross-motions for summary judgment, the district court granted summary judgment to the Forest Service. Pacific Rivers timely appealed the grant of summary judgment. For the reasons that follow, we conclude that the Forest Service’s analysis of fish in the 2004 EIS does not comply with NEPA. However, we conclude that the Forest Service’s analysis of amphibians does comply with NEPA. We therefore reverse in part, affirm in part, and remand to the district court. I. Background Stretching along a north-south axis for more than 400 miles, the Sierra Nevada Mountains form one of" }, { "docid": "13125574", "title": "", "text": "LUCERO, Circuit Judge. At issue is the extent of the United States Forest Service’s obligations under its regulations to monitor management indicator species before approving forest management activities. Finding the Forest Service’s monitoring efforts sufficient, the district court affirmed the Record of Decision authorizing the Monroe Mountain Ecosystem Restoration Project. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we REVERSE and REMAND. I Monroe Mountain, part of the Fishlake National Forest approximately 140 airline miles south of Salt Lake City in Central Utah, is the center of the Monroe Mountain Ecosystem Restoration Project (the “Monroe Project”). The Monroe Project area covers approximately 50,000 acres, consisting of forest (primarily fir occasionally mixed with aspen) and non-forest (grass and sagebrush) land. As part of the National Forest System, the Fishlake National Forest is maintained under a Forest Management Plan (the “Fishlake Forest Plan”), pursuant to the National Forest Management Act (“NFMA”), 16 U.S.C. § 1604; the Fish-lake Forest Plan was approved in 1986. Forest Management Plans are to be revised every ten to fifteen years and can be amended. 16 U.S.C. § 1604(f). To accomplish NFMA’s broad land management responsibilities, the Forest Service has promulgated regulations, including: further clarification of general forest planning procedures, 36 C.F.R. § 219.10; minimum forest management requirements, 36 C.F.R. § 219.27; requirements to ensure diversity of plant and animal species, 36 C.F.R. § 219.26; and habitat requirements for native and desirable non-native species, 36 C.F.R. § 219.19. To execute specific Forest Management Plans, the Forest Service proposes individual projects. See, e.g., Ohio Forestry Assoc., Inc. v. Sierra Club, 523 U.S. 726, 729-730, 118 S.Ct. 1665, 140 L.Ed.2d 921 (1998) (describing the steps involved in proposing and adopting a site-specific action under the Wayne National Forest’s Management Plan); Colorado Environmental Coalition v. Dombeck, 185 F.3d 1162, 1168 (10th Cir.1999) (“The Forest Service implements the Forest Plan by approving ... or disapproving particular projects_”). Individual projects must comply with the NFMA’s enacting regulations. 16 U.S.C. § 1604(i). Specifically, any projects undertaken by the Forest Service in the Fishlake National Forest must be consistent with the Fishlake Forest Plan. 16" }, { "docid": "18429395", "title": "", "text": "the cumulative impact analysis required by NEPA. See Earth Island Inst. v. U.S. Forest Serv., 351 F.3d 1291, 1306-07 (9th Cir.2003) (holding that a cumulative impact analysis violated NEPA when a FEIS did not assess the role of foreseeable future projects on remaining suitable spotted owl habitat in a nearby home range core area within close proximity to the project’s area). C. Riparian Reserves and Restricted Watershed Terrain We next turn to ONRC’s claim that the Forest Service violated the NFMA by failing to appropriately designate “Riparian Reserves” and “Restricted Watershed” terrain as required by the Rogue River LRMP and the NWFP. The rules governing the Forest Service’s designation and management of Riparian Reserves and watersheds are complex and overlapping. The principal source of these rules is the NWFP itself, and, derivatively, the Aquatic Conservation Strategy (ACS) adopted pursuant to the NWFP. Under the ACS, Riparian Reserves are essentially buffer zones along streams, lakes, wetlands, and mudslide-risk areas, and “watersheds” are aquatic habitats or other hydrologically important areas. See Pac. Coast Fed’n of Fishermen’s Ass’ns, Inc. v. Nat’l Marine Fisheries Serv., 265 F.3d 1028, 1031-32 (9th Cir.2001). Recognizing that riparian terrain “offer[s] core areas of high quality stream habitat,” and that watersheds “are crucial to at-risk fish species and stocks and provide high quality water,” the ACS standards and guidelines “prohibit or regulate activities in Riparian Reserves that retard or prevent attainment of the Aquatic Conservation Strategy objectives.” The Forest Service must, however, comply with more than just the NWFP’s ACS. When the NWFP was enacted, it did not completely displace existing forest management plans. In addition to setting out its own standards and guidelines, the NWFP also provides that the standards and guidelines of the pre-existing individual forest management plans-including the Rogue River LRMP-remain effective “where they are more restrictive or provide greater benefits to late-successional forest related species.” Accordingly, the Forest Service must also comply with the Rogue River LRMP’s more restrictive standards and guidelines for lands designated Restricted Riparian, Management Strategy 26 (MS 26) and for lands designated Restricted Watershed, Management Strategy 22 (MS 22). These standards" }, { "docid": "19237933", "title": "", "text": "“soil, slope or other watershed conditions will not be irreversibly damaged,” and provide protection for streams from “detrimental” deposits of sediment “where harvests are likely to seriously and adversely affect water conditions or fish habitat.” Id. § 1604(g)(3)(E). The National Environmental Policy Act, 42 U.S.C. §§ 4321 et seq., contains additional procedural requirements. Its purposes are to ensure the decision-maker will have detailed information on environmental impacts and to provide that information to the public. Inland Empire Pub. Lands Council v. U.S. Forest Serv., 88 F.3d 754, 758 (9th Cir.1996). The Forest Service must prepare an EIS, which identifies environmental effects and alternative courses of action, when undertaking any management project. Id.; 42 U.S.C. § 4332(c). “In contrast to NFMA, NEPA exists to ensure a process, not to mandate particular results.” Neighbors of Cuddy Mountain v. Alexander, 303 F.3d 1059, 1063 (9th Cir.2002). The agency must only take a “hard look” at its proposed action. Id. at 1070. Two Forest Service regulations also apply here. The “1982 Rule” requires the Forest Service to identify and monitor management indicator species (“MIS”) and directs that “fish and wildlife habitat shall be managed to maintain viable populations of existing native and desired non-native vertebrate species.” 47 Fed.Reg. 43048 (Sept. 30, 1982). The KNF Forest Plan incorporated this and several other provisions of the 1982 Rule. The 1982 Rule was partially superceded in 2000 (the “2000 Rule”). The 2000 Rule’s substantive provisions did not apply to site-specific decisions made between 2000 and 2005. 69 Fed.Reg. 58,055-58 (Sept. 29, 2004). The “transition” portions of the rule, which did apply during this time, required the responsible officials to consider the “best available science” when implementing existing land and resource man agement plans. 36 C.F.R. § 219.35(a) (2001); 69 Fed.Reg. 58,057 (Sept. 29, 2004). The requirements of the superceded 1982 Rule apply only to the extent they were incorporated into the Forest Plan. See generally Citizens for Better Forestry v. U.S. Dep’t of Ag., 341 F.3d 961, 966-68 (9th Cir.2003) (discussing in detail the provisions of the 1982 and 2000 Rules). B. The Forest Plan The Forest" }, { "docid": "19489363", "title": "", "text": "of-or \"tiering to\"-prior agency documents that did not undergo a full NEPA review. Finally, the Alliance claimed the Forest Service violated the Endangered Species Act (\"ESA\") by failing to reinitiate consultation with the United States Fish and Wildlife Service regarding the effects on critical habitat for the bull trout. In its present appeal, the Alliance challenges the district court's grant of summary judgment in favor of the Forest Service and Intervenor-Defendants-Appellees Adams County and the Payette Forest Coalition (collectively, \"Adams County\"). We have jurisdiction under 28 U.S.C. § 1291. We affirm in part and reverse and remand in part. I. Statutory & Factual Background A. The NFMA The NFMA charges the Forest Service with the management of national forest land, including planning for the protection and use of the land and its natural resources. See 16 U.S.C. § 1600 et seq. Under NFMA, forest land management occurs on two levels: (1) the forest level, and (2) the individual project level. Native Ecosystems Council v. Weldon , 697 F.3d 1043, 1056 (9th Cir. 2012). \"On the forest level, the Forest Service develops a Land and Resource Management Plan (forest plan), which consists of broad, long-term plans and objectives for the entire forest.\" Id. The forest plan is then implemented at the project level. See id. Site-specific projects and activities must be consistent with an approved forest plan. 16 U.S.C. § 1604(i) ; 36 C.F.R. § 219.10(e)(1998) ; Native Ecosystems Council v. U.S. Forest Serv. , 418 F.3d 953, 961 (9th Cir. 2005) (\"It is well-settled that the Forest Service's failure to comply with the provisions of a Forest Plan is a violation of NFMA.\"); Idaho Sporting Cong., Inc. v. Rittenhouse , 305 F.3d 957, 962 (9th Cir. 2002) (\"[A]ll management activities undertaken by the Forest Service must comply with the forest plan, which in turn must comply with the Forest Act....\"). A project is consistent if it conforms to the applicable \"components\" of the forest plan, including the standards, guidelines, and desired conditions that are set forth in the forest plan and that collectively establish the details of forest management. Consistency" }, { "docid": "1434417", "title": "", "text": "adversely modified. We grant WCLA’s motion to dismiss the cross-appeal for lack of jurisdiction because there was no final, appealable order. BACKGROUND In Seattle Audubon Soc’y v. Evans, 952 F.2d 297 (9th Cir.1991) (Evans), we affirmed the district court’s judgment that the Forest Service had violated the NFMA by failing to prepare a plan for managing suitable spotted owl habitat in the national forests of Washington, Oregon and northern California. We also affirmed the district court’s order permanently enjoining timber sales in owl habitat pending the Forest Service’s preparation of an owl management plan in accordance with the requirements of both NFMA and NEPA. As a result of our opinion in Evans, the Forest Service published a final environmental impact statement (EIS) for its management plan for spotted owl habitat on January 31, 1992. By its March 3, 1992 record of decision (ROD), the Service adopted regional guide amendments incorporating the recommendations of the ISC as its owl management plan. The so-called ISC Strategy has two major components. First, the plan delineates “habitat conservation areas” (HCAs) where logging would be prohibited. Second, the plan regulates the rate of cutting on forest lands between HCAs so that half of this land would provide for the safe dispersal of owls at all times through the use of the “50/11/40” rule. See generally Seattle Audubon Soc’y v. Evans, 771 F.Supp. 1081, 1092-93 (W.D.Wash.1991), aff'd., 952 F.2d at 297. SAS then filed this action in district court challenging the ROD and the EIS as viola-tive of NEPA and the NFMA. The district court granted SAS’s cross-motion for summary judgment on SAS’s NEPA claims, granted partial summary judgment in favor of the Forest Service on one of SAS’s NFMA claims and struck the remainder of SAS’s NFMA claims without prejudice to renewal upon the Service’s completion of a supplemental EIS. Subsequently, the district court granted a permanent injunction prohibiting the Forest Service from auctioning or awarding any additional timber sales until the Forest Service adopts and implements revised standards and guidelines for the management of spotted owl habitat which comply with both NEPA and NFMA," }, { "docid": "22292102", "title": "", "text": "(9th Cir.1996) (describing how the For est Service first develops a Forest Plan or Land Resource Management Plan consistent with the requirements of NFMA), and once the Forest Plan is adopted, NFMA prohibits any site-specific activities that are inconsistent with the Forest Plan. Inland Empire Pub. Lands Council, 88 F.3d at 757 (“[S]ite-specifie projects must be consistent with the stage-one, forest-wide plan.”). The Lands Council contends that the Project does not comply with the Forest Plan in three areas: Protection of fisheries; soils impact; and old-growth species viability. We address each in turn. A The Lands Council first argues that the Forest Service did not comply with the portion of the IPNF Forest Plan that protects fisheries within the forest. The Forest Plan incorporates an 80 percent success rate for fry emergence as a measure of the health of the fisheries. The Lands Council asserts that, pursuant to the NFMA, the Forest Service had a duty to analyze whether the project would meet the fry emergence standard within the Forest Plan. The Forest Service concedes that it did not analyze the Project under the fry emergence standard, but argues that it did not have to do so. In 1995, the Forest Service amended the Forest Plan to incorporate the Inland Native Fish Strategy (“INFISH”). INFISH creates buffer zones in Riparian Habitat Conservation Areas where the INFISH standards limit timber harvest and minimize road construction to lessen sediment delivery to streams. See Inland Native Fish Strategy: Decision Notice and Finding of No Significant Impact A-5 — A-7 (1995). INFISH also stated that “[the INFISH] interim standards and guidelines replace existing conflicting direction [in Forest Plans] except where Forest Plan direction provides for more protection for inland native fish habitat.” Inland Native Fish Strategy: Decision Notice and Finding of No Significant Impact (1995); see also Inland Native Fish Strategy, 60 Fed. Reg. 43758 (Aug. 23, 1995) (publishing the Finding of No Significant Impact). The issue is whether the INFISH amendment supersedes, or instead supplements, the Forest Plan’s existing fry emergence standard. If the fry emergence standard is not implicitly superseded by INFISH," }, { "docid": "13215718", "title": "", "text": "from “detrimental” deposits of sediment “where harvests are likely to seriously and adversely affect water conditions or fish habitat.” Id. § 1604(g)(3)(E). The National Environmental Policy Act, 42 U.S.C. §§ 4321 et seq., contains additional procedural requirements. Its purposes are to ensure the decision-maker will have detailed information on environmental impacts and to provide that information to the public. Inland Empire Pub. Lands Council v. U.S. Forest Serv., 88 F.3d 754, 758 (9th Cir.1996). The Forest Service must prepare an EIS, which identifies environmental effects and alternative courses of action, when undertaking any management project. Id.; 42 U.S.C. § 4332(c). “In contrast to NFMA, NEPA exists to ensure a process, not to mandate particular results.” Neighbors of Cuddy Mountain v. Alexander, 303 F.3d 1059, 1063 (9th Cir.2002). The agency must only take - a “hard look” at its proposed action. Id. at 1070. Two Forest Service regulations also apply' here. The “1982 Rule” requires the Forest Service to identify and monitor management indicator species (“MIS”) and directs that “fish and wildlife habitat shall be managed to maintain viable populations of existing native and desired non-native vertebrate species.” 47 Fed.Reg. 43048 (Sept. 30, 1982). The KNF Forest Plan incorporated this and several other provisions of the 1982 Rule. The 1982 Rule was partially superceded in 2000 (the “2000 Rule”). The 2000 Rule’s substantive provisions did not apply to site-specific decisions made between 2000 and 2005. 69 Fed.Reg. 58,055-58 (Sept. 29, 2004). The “transition” portions of the rule, which did apply during this time, required the responsible officials to consider the “best available science” when implementing existing land and resource management plans. 36 C.F.R. § 219.35(a) (2001); 69 Fed.Reg. 58,057 (Sept. 29, 2004). The requirements of the superceded 1982 Rule apply only to the extent they were incorporated into the Forest Plan. See generally Citizens for Better Forestry v. U.S. Dep’t of Ag., 341 F.3d 961, 966-68 (9th Cir.2003) (discussing in detail the provisions of the 1982 and 2000 Rules). B. The Forest Plan The Forest Plan establishes twenty-four long-term goals, including “providing] a sustained yield of timber volume responsive to national" }, { "docid": "1434416", "title": "", "text": "SCHROEDER, Circuit Judge: The United States Forest Service and Washington Contract Loggers Association, et al. (WCLA) each appeal the district court’s grant of summary judgment and permanent injunctive relief in favor of Seattle Audubon Society (SAS). SAS challenged the Forest Service’s Final Environmental Impact Statement and Record of Decision adopting the Interagency Scientific Committee’s Report as the Forest Service’s spotted owl management plan. The district court held that adoption of the Interagency Scientific Committee (ISC) Report without consideration of alternatives, and without consideration of intervening information on the status of the owl violated the National Forest Management Act, 16 U.S.C. § 1604 (NFMA) and the National Environmental Policy Act, 42 U.S.C. §§ 4321-47 (NEPA). In so holding, the district court rejected the defendants’ contentions that plaintiffs lacked standing and that the dispute was not ripe. We affirm. In appeal no. 92-36560, SAS cross-appeals the portion of the district court’s March 28, 1992 judgment holding that the Forest Service was not obligated to promulgate independent regulations ensuring that critical owl habitat will not be destroyed or adversely modified. We grant WCLA’s motion to dismiss the cross-appeal for lack of jurisdiction because there was no final, appealable order. BACKGROUND In Seattle Audubon Soc’y v. Evans, 952 F.2d 297 (9th Cir.1991) (Evans), we affirmed the district court’s judgment that the Forest Service had violated the NFMA by failing to prepare a plan for managing suitable spotted owl habitat in the national forests of Washington, Oregon and northern California. We also affirmed the district court’s order permanently enjoining timber sales in owl habitat pending the Forest Service’s preparation of an owl management plan in accordance with the requirements of both NFMA and NEPA. As a result of our opinion in Evans, the Forest Service published a final environmental impact statement (EIS) for its management plan for spotted owl habitat on January 31, 1992. By its March 3, 1992 record of decision (ROD), the Service adopted regional guide amendments incorporating the recommendations of the ISC as its owl management plan. The so-called ISC Strategy has two major components. First, the plan delineates “habitat conservation areas”" }, { "docid": "22292103", "title": "", "text": "that it did not analyze the Project under the fry emergence standard, but argues that it did not have to do so. In 1995, the Forest Service amended the Forest Plan to incorporate the Inland Native Fish Strategy (“INFISH”). INFISH creates buffer zones in Riparian Habitat Conservation Areas where the INFISH standards limit timber harvest and minimize road construction to lessen sediment delivery to streams. See Inland Native Fish Strategy: Decision Notice and Finding of No Significant Impact A-5 — A-7 (1995). INFISH also stated that “[the INFISH] interim standards and guidelines replace existing conflicting direction [in Forest Plans] except where Forest Plan direction provides for more protection for inland native fish habitat.” Inland Native Fish Strategy: Decision Notice and Finding of No Significant Impact (1995); see also Inland Native Fish Strategy, 60 Fed. Reg. 43758 (Aug. 23, 1995) (publishing the Finding of No Significant Impact). The issue is whether the INFISH amendment supersedes, or instead supplements, the Forest Plan’s existing fry emergence standard. If the fry emergence standard is not implicitly superseded by INFISH, then the Forest Service’s decision must be set aside because the fry emergence standard was never evaluated in the Final Environmental Impact Statement. Neighbors of Cuddy Mountain, 137 F.3d 1372. The Forest Service argues that the two standards are in conflict, and that the fry emergence rule is less strict, and therefore that INFISH superseded the fry emergence standard. The Lands Council argues to the contrary. INFISH itself describes our framework for analysis. We must first determine whether INFISH and the fry emergence standard are in conflict. If they are, then we must determine if the fry emergence standard “provides for more protection” than INFISH alone. The Lands Council has the better of the argument. The two standards do not necessarily conflict. The INFISH standard tries to minimize sediment deposits by limiting where timber harvest may. take place within the National Forest. The emerging fry standard requires corrective actions if a certain sedimentation threshold is met. There is no explicit rejection of the fry emergence standard in the INFISH requirements. There is also no implicit" }, { "docid": "10916127", "title": "", "text": "due to rain-on-snow events. Since the Project was determined to have no significant impacts as a result of rain-on-snow events, and since peak flows associated with rain-on-snow events can cause in-channel erosion, the Federal Defendants reasonably determined that no significant adverse environmental impacts would arise from the Project due to instream and stre-ambank sediment discharges. Accordingly, their decision to adopt and implement the Project does not violate NEPA on the grounds that the FEIS failed to disclose significant adverse environmental impacts from instream and streambank sediment discharges. Plaintiffs’ motion for summary judgment on this issue is DENIED; the Federal Defendants’ summary judgment motion is GRANTED. D. Fisheries Plaintiffs assert that the Federal Defendants’ decision violates NFMA because the Federal Defendants did not demonstrate that the Project is consistent with the CNF and IPNF LRMP standards for protecting fisheries. The Federal Defendants respond that the LRMP standard has been superseded by the Inland Native Fish Strategy (“INFISH”) and that the Project’s consistency with INFISH standards has been demonstrated. Plaintiffs reply that INFISH augments but does not replace the LRMP fish standards and that compliance with the LRMP standards has not been demonstrated. In mid 1995, the Forest Service adopted INFISH, which amended the CNF and IPNF LRMPs. (Ct. Rec. 7 Ex. 1. CNF ROD at 5, IPNF ROD at 9, FEIS at HI-187, III — 518, III-746.) INFISH sets forth standards and guidelines for Riparian Habitat Conservation Areas (“RHCAs”). RHCAs are portions of watersheds where riparian-dependent resources receive primary emphasis, and management activities are subject to specific standards and guidelines. [RHCAs] include traditional riparian corridors, wetlands, intermittent streams and other areas that help maintain the integrity of aquatic ecosystems by (1) influencing the delivery of coarse sediment, organic matter, and woody debris to streams, (2) providing root strength for channel stability, (3) shading the stream, and (4) protecting water quality. (Ct. Rec. 97 CD-ROM Disk 10, Inland Native Fish Strategy Environmental Assessment, Other*infs*INFS_DN_1995.pdf at A-4.) RHCA standards and guidelines replace existing conflicting direction in the LRMPs, except where the LRMPs provide more protection for inland native fish habitat. (Ct. Rec. 97" }, { "docid": "23335803", "title": "", "text": "OPINION D.W. NELSON, Circuit Judge. Plaintiff environmental groups Neighbors of Cuddy Mountain, The Ecology Center, and Idaho Sporting Congress (collectively, “Neighbors”) appeal the district court’s dismissal of their action challenging a timber sale on national forest land in Idaho. Neighbors asserts that the United States Forest Service (“Forest Service”) violated the National Forest Management Act (“NFMA”), 16 U.S.C. §§ 1600-1687, and the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321-4370Í, when it approved a timber sale in the Grade and Dukes Creek area (“the Grade/Dukes sale”) in Payette National Forest (“Pay-ette”). We have jurisdiction under 28 U.S.C. § 1291. . Although the timber sale is now complete, we conclude that Neighbors’ challenge to the sale is not moot because effective relief may still be granted. We reverse the district court’s dismissal of Neighbors’ NFMA claims, affirm its dismissal of Neighbors’ NEPA claims, and remand. I BACKGROUND A. The Forest Service’s decisions regarding Payette are governed by NFMA, which sets forth a statutory framework for the management of our national forests. See Neighbors of Cuddy Mountain v. United States Forest Serv., 137 F.3d 1372, 1376 (9th Cir.1998) (.Neighbors 1). NFMA first requires the Forest Service to develop a Land Resources Management Plan (commonly known as a forest plan) for the entire forest. Id.; 36 C.F.R. § 219.10(a), (b). The Forest Service is then required to ensure that the forest is managed in compliance with the forest plan. See 36 C.F.R. § 219.10(e). Specific projects, such as- the Grade/Dukes timber sale, must be analyzed by the Forest Service and the analysis must show that each project is consistent with the plan. See 16 U.S.C. § 1604(i); 36 C.F.R. § 219.10.(e). NFMA requires that the Forest Service “provide for diversity of plant and animal communities” in managing national forests. 16 U.S.C. § 1604(g)(3)(B). Section 219.19 of Volume 36 of the Code of Federal Regulations, one of the many regulations promulgated to ensure such diversity, states that wildlife habitat shall be managed to maintain viable populations of existing native and desired non-native vertebrate species in the planning area. For planning purposes, a viable" }, { "docid": "6451811", "title": "", "text": "and susceptible to high-intensity wildfires and forest diseases; that some types of tree stands were over-represented as compared to historical conditions, while other types of stands were under-represented; and that riparian habitats along streams exhibited similar problems. The Watershed Analysis accordingly concluded that the Forest Service should undertake a blend of management activities to alleviate and improve these unsatisfactory conditions. B. The Project In October 1999, based on the results of the Watershed Analysis, the Forest Service initiated the NEPA documentation process for the Project. In April 2001, the Forest Service published a draft Environmental Impact Statement (EIS) and, after receiving public comments and making adjustments, issued a final EIS in September 2001. The Forest Service also issued a corresponding Record of Decision (ROD). Shortly thereafter, LOWD filed an administrative appeal of the Project on behalf of itself and a number of environmental organizations. In response, the Forest Service withdrew the original ROD to perform additional analyses on the Project’s effects, and dismissed the appeal as moot. In July 2002, the Forest Service issued a draft supplemental EIS for the Project. After receiving and considering public comments, the Forest Service issued a FSEIS in January 2004. According to the FSEIS, the stated purpose and need for the Project are to: (1) “move the landscape-level diversity of vegetation and associated wildlife habitat closer to the [historic range of variability (HRV) ] ... in terms of species composition and structure,” given that “forest vegetation is outside the [HRV] for 57% of the [watershed]”; (2) “increase the amount of single strata late and old structure (LOS) stands” and move “the overall abundance of LOS closer to the [HRV]”; (3) “reduce the forest’s susceptibility to moderate and high severity fires” by lowering fuel levels, reducing stand densities, “increasing the relative abundance of fire tolerant species, and re-introducing fire into the watershed”; (4) “reduce the [forest’s] susceptibility ... to insects, diseases, and wildfires by reducing their stocking levels”; (5) “enhance vegetative conditions in the aspen, riparian, upland shrub, and meadow communities” that have gradually declined over time; and (6) “improve water quality and enhance the" }, { "docid": "6451810", "title": "", "text": "of the Forest Service, and we remand this case so the Forest Service can reissue its NEPA documentation to include the omitted information regarding past timber sales contained in the watershed analysis. FACTUAL AND PROCEDURAL BACKGROUND A. 1999 Deep Creek Watershed Analysis The Forest Service manages the Ochoco National Forest under the Ochoco Nation al Forest Land and Resource Management Plan (Ochoco LRMP). In 1993, the Regional Forester directed the Paulina Ranger District, among others, to conduct a watershed analysis that identified “processes and functions within the Deep Creek watershed that are key to maintaining sustainable and resilient terrestrial and aquatic ecosystems.” To carry out these instructions, the Forest Service created an interdisciplinary team of employees that eventually documented its findings and conclusions in the August 1999 Deep Creek Watershed Analysis (Watershed Analysis). The Watershed Analysis collectively considered past actions in the Deep Creek watershed and the results of those actions to determine existing conditions and trends. Based on this cumulative evaluation, the Watershed Analysis determined that many of the tree stands were overly dense and susceptible to high-intensity wildfires and forest diseases; that some types of tree stands were over-represented as compared to historical conditions, while other types of stands were under-represented; and that riparian habitats along streams exhibited similar problems. The Watershed Analysis accordingly concluded that the Forest Service should undertake a blend of management activities to alleviate and improve these unsatisfactory conditions. B. The Project In October 1999, based on the results of the Watershed Analysis, the Forest Service initiated the NEPA documentation process for the Project. In April 2001, the Forest Service published a draft Environmental Impact Statement (EIS) and, after receiving public comments and making adjustments, issued a final EIS in September 2001. The Forest Service also issued a corresponding Record of Decision (ROD). Shortly thereafter, LOWD filed an administrative appeal of the Project on behalf of itself and a number of environmental organizations. In response, the Forest Service withdrew the original ROD to perform additional analyses on the Project’s effects, and dismissed the appeal as moot. In July 2002, the Forest Service issued a" }, { "docid": "22228652", "title": "", "text": "FLETCHER, Circuit Judge: We are called upon to determine whether the United States Forest Service (“Forest Service”) could award a series of contracts for timber salvage sales in the Umatilla National Forest in eastern Oregon without preparing an Environmental Impact Statement (“EIS”) for the largest project and without evaluating the cumulative effects of multiple sales proposed in an area burned by a large wildfire. The Blue Mountains Biodiversity Project, Blue Mountain Native Forest Alliance, Society Advocating Natural Ecosystems, and Cascadia Fire Ecology Education Project (collectively “BMBP”) contend that the Forest Service’s decision to proceed using an Environmental Assessment instead of a more comprehensive EIS violated the National Environmental Policy Act. The district court denied plaintiffs’ motion for summary judgment and permanent injunction and granted the Forest Service’s cross-motion for summary judgment. We have jurisdiction pursuant to 28 U.S.C. § 1291. We reverse and remand with instructions that the Forest Service prepare an EIS. FACTUAL AND PROCEDURAL BACKGROUND The Umatilla National Forest, east of Uki-ah, Oregon, includes a portion of the Blue Mountain Range that extends from northeastern Oregon to southeastern Washington. Within the National Forest’s borders lies the John Day Basin, the only major river basin in Oregon that contains no dams; it also contains the North Fork of the John Day River, a designated Wild and Scenic River and home to the largest spawning population of summer steelhead and wild spring chinook salmon in the entire Columbia River system. In August 1996, three wildfires swept through the North Fork John Day watershed. The largest of these fires, the “Tower Fire,” engulfed 51,000 acres in a 10-by 14-mile swath. It was the largest wildfire in the recorded history of the Umatilla National Forest. The fire killed all trees, shrubs, and ground cover in several thousand acres. The remaining acreage burned less intensely. In the end, however, the fire depleted stream shade along miles of streams, exposed soils to erosion, deposited sediment into waterways, killed fish, and destroyed fish and wildlife habitat. Over one half of the acres burned in the Tower Fire drain directly into the North Fork of the" }, { "docid": "14103220", "title": "", "text": "PAUL KELLY, JR., Circuit Judge. Plaintiff-Appellant Utah Environmental Congress filed suit in federal district court challenging the Forest Service’s approval of the Trout Slope West Timber Sale project in the Ashley National Forest. UEC brought its suit pursuant to § 706 of the Administrative Procedure Act, arguing that the Forest Service’s approval of the project was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” See 5 U.S.C. § 706(2)(A); Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). Specifically, UEC argued that the Forest Service failed to adequately monitor the Colorado River Cutthroat Trout (a management indicator species), that it improperly assessed the project’s impact on old-growth trees and that it failed to comply with old-growth standards, that it failed to maintain water quality standards, and that it failed to assess the cumulative effects of the project on the Colorado River Cutthroat Trout and water quality. We exercise jurisdiction pursuant to 28 U.S.C. § 1291. For the reasons stated below, we affirm in part, reverse in part, and remand. Background The Ashley National Forest consists of 1,384,132 acres of land in northeastern Utah and Wyoming. The Trout Slope West project (“the project”) area comprises 18,500 acres of land in the Vernal Ranger District of the Ashley National Forest in Utah. The project area includes portions of three watersheds and is covered with pine, spruce, fir, and aspen trees. As a result of a 1980s beetle infestation, a significant number of trees in the project area are dead or fallen. The project was designed to clear out these dead or fallen trees, recover their economic value, and improve habitat within the project area. The project includes a number of mitigation measures to protect the watersheds from increased run-off and erosion resulting from the trees’ removal. The Forest Service began planning the project in 1998. In February 2004, it issued a draft Environmental Impact Statement (“EIS”) and sought public comment. At the same time, it issued a Biological Evaluation and Biological Assessment addressing the project’s expected impact" }, { "docid": "19489362", "title": "", "text": "in federal court, claiming Defendants-Appellees United States Forest Service, Thomas Tidwell, Keith Lannom, and Nora Rasure (collectively, \"Forest Service\") violated the National Forest Management Act (\"NFMA\") by failing to adhere to the requirements of the 2003 Payette National Forest Land and Resource Management Plan (\"the Payette Forest Plan\" or \"the 2003 Plan\"). The 2003 Plan governs management decisions on all land within the Payette National Forest, including the Lost Creek Project. Specifically, the Alliance claimed that the Forest Service acted inconsistently with the Payette Forest Plan, in a manner that would harm certain habitat within the forest, when it created a new definition for \"old forest habitat\" and designated certain land to be managed for landscape restoration, as opposed to commodity production. According to the Alliance, although the Lost Creek Project espoused certain environmental benefits, the upshot of these decisions would be an increase in commercial logging and a decrease in habitat protected as \"old forest.\" The Alliance also claimed the Forest Service violated the National Environmental Policy Act (\"NEPA\") by improperly incorporating the analysis of-or \"tiering to\"-prior agency documents that did not undergo a full NEPA review. Finally, the Alliance claimed the Forest Service violated the Endangered Species Act (\"ESA\") by failing to reinitiate consultation with the United States Fish and Wildlife Service regarding the effects on critical habitat for the bull trout. In its present appeal, the Alliance challenges the district court's grant of summary judgment in favor of the Forest Service and Intervenor-Defendants-Appellees Adams County and the Payette Forest Coalition (collectively, \"Adams County\"). We have jurisdiction under 28 U.S.C. § 1291. We affirm in part and reverse and remand in part. I. Statutory & Factual Background A. The NFMA The NFMA charges the Forest Service with the management of national forest land, including planning for the protection and use of the land and its natural resources. See 16 U.S.C. § 1600 et seq. Under NFMA, forest land management occurs on two levels: (1) the forest level, and (2) the individual project level. Native Ecosystems Council v. Weldon , 697 F.3d 1043, 1056 (9th Cir. 2012). \"On the" }, { "docid": "6451809", "title": "", "text": "OPINION MILAN D. SMITH, JR., Circuit Judge: In their suit filed pursuant to the Administrative Procedures Act (APA), 5 U.S.C. § 706, the League of Wilderness Defenders — -Blue Mountains Biodiversity Project and Cascadia Wildlands Project (collectively, LOWD) sought declaratory and injunctive relief to halt the Deep Creek Vegetation Management Project (the Project), which called for the selective logging of 12.8 million board feet of timber in the Ochoco National Forest. LOWD claims in its suit that the United States Forest Service (Forest Service) failed to comply with the National Environmental Policy Act (NEPA), 42 U.S.C. § 4231 et seq., and the National Forest Management Act (NFMA), 16 U.S.C. § 1600 et seq., in developing and implementing the Project. The district court denied LOWD’s motion for summary judgment and granted the Forest Service’s cross-motion for summary judgment. Because the Final Supplemental Environmental Impact Statement (FSEIS) may not tier to a non-NEPA watershed analysis to consider adequately the aggregate cumulative effects of past timber sales, we reverse the district court’s grant of summary judgment in favor of the Forest Service, and we remand this case so the Forest Service can reissue its NEPA documentation to include the omitted information regarding past timber sales contained in the watershed analysis. FACTUAL AND PROCEDURAL BACKGROUND A. 1999 Deep Creek Watershed Analysis The Forest Service manages the Ochoco National Forest under the Ochoco Nation al Forest Land and Resource Management Plan (Ochoco LRMP). In 1993, the Regional Forester directed the Paulina Ranger District, among others, to conduct a watershed analysis that identified “processes and functions within the Deep Creek watershed that are key to maintaining sustainable and resilient terrestrial and aquatic ecosystems.” To carry out these instructions, the Forest Service created an interdisciplinary team of employees that eventually documented its findings and conclusions in the August 1999 Deep Creek Watershed Analysis (Watershed Analysis). The Watershed Analysis collectively considered past actions in the Deep Creek watershed and the results of those actions to determine existing conditions and trends. Based on this cumulative evaluation, the Watershed Analysis determined that many of the tree stands were overly dense" }, { "docid": "7707315", "title": "", "text": "to the 2001 Framework. The Forest Service adopted the preferred alternative in the 2004 EIS. The parties refer to this as the 2004 Framework. Plaintiff-Appellant Pacific Rivers Council (“Pacific Rivers”) brought suit in federal district court challenging the 2004 Framework as inconsistent with the National Environmental Protection Act (“NEPA”) and the Administrative Procedure Act (“APA”). The gravamen of Pacific Rivers’ complaint is that the 2004 EIS does not sufficiently analyze the environmental consequences of the 2004 Framework for fish and amphibians. On cross-motions for summary judgment, the district court granted summary judgment to the Forest Service. Pacific Rivers timely appealed the grant of summary judgment. For the reasons that follow, we conclude that the Forest Service’s analysis of fish in the 2004 EIS does not comply with NEPA. However, we conclude that the Forest Service’s analysis of amphibians does comply with NEPA. We therefore reverse in part, affirm in part, and remand to the district court. I. Background Stretching along a north-south axis for more than 400 miles, the Sierra Nevada Mountains form one of the longest continuous mountain ranges in the lower 48 states. The Forest Service manages nearly 11.5 million acres of land under the Forest Plans. Each Forest Plan is a Land and Resource Management Plan (“LRMP”) formulated and promulgated pursuant to the National Forest Management Act (“NFMA”). See 16 U.S.C. § 1604. NFMA requires the Forest Service to provide for and to coordinate multiple uses of the national forests, including “outdoor recreation, range, timber, watershed, wildlife and fish, and wilderness.” 16 U.S.C. § 1604(e)(1). An LRMP adopted pursuant to NFMA guides all management decisions within the forests subject to that LRMP. Individual projects are developed according to the guiding principles and management goals expressed in the LRMP. See Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 729-31, 118 S.Ct. 1665, 140 L.Ed.2d 921 (1998). The Forest Plans govern the eleven national forests that run the length of the Sierras from Southern California to the California-Oregon border — the Sequoia, Inyo, Sierra, Stanislaus, Humboldt-Toiyabe, Eldorado, Tahoe, Plumas, Lassen, and Modoc National Forests, and the Lake" }, { "docid": "19339463", "title": "", "text": "OPINION GOULD, Circuit Judge: The League of Wilderness Defenders/Blue Mountain Biodiversity Project and the Hells Canyon Preservation Council (collectively “the LOWD plaintiffs”) appeal from the district court’s denial of their motion to preliminarily enjoin the Snow Basin logging project. We have jurisdiction under 28 U.S.C. § 1292(a)(1). We affirm in part and reverse in part the district court’s order, and remand the case to the district court for the entry of a preliminary injunction, the scope of which the district court should determine on remand. I The Snow Basin project area encompasses nearly 29,000 acres of the Whitman-Wallowa National Forest (“the Forest”) in northeast Oregon, and the United States Forest Service (“USFS”) has been planning a logging project in this area since 2008. A draft environmental impact statement (“EIS”) was issued in March 2011, and the final EIS (“FEIS”) was issued in March 2012. One way in which the FEIS differed from the draft EIS is that one segment of the project, about 170 acres of regenerative logging, had been removed from consideration in the FEIS. After the adoption of the FEIS, in April 2012, the Forest Supervisor withdrew the Forest’s Travel Management Plan (“TMP”), which had proposed to regulate off-road motorized travel and reduce the amount of roads within the Forest, and which had been mentioned in addressing environmental harms from the logging project. In July 2012, the USFS issued a correction notice that said that “group selection” treatment was being considered for 130 of the 170 acres that had been removed from the draft EIS and not considered in the FEIS. The LOWD plaintiffs filed suit seeking to enjoin the timber sale on the grounds that the USFS and the United States Fish & Wildlife Service (“USFWS”) had violated the National Environmental Policy Act (“NEPA”) and the Endangered Species Act (“ESA”). The district court held that the LOWD plaintiffs were not likely to succeed on any of their claims, and that the balance of harms did not tip sharply in the LOWD plaintiffs’ favor. The district court therefore denied the preliminary injunction. The LOWD plaintiffs filed a timely" } ]

[ { "docid": "22430801", "title": "", "text": "the medical findings and other evidence presented in support of the attending physician’s opinion of total disability. Id. In doing so, the ALJ must weigh the relative worth of a treating physician’s report against the reports submitted by other physicians who have examined the claimant. See Cotter v. Harris, 642 F.2d 700, 705, reh’g denied, 650 F.2d 481 (3d Cir.1981). The record indicates that Dr. Sanchezs Pena and Dr. Polanco are Adorno’s treating physicians. The ALJ and the district court addressed only the opinion of Dr. Sanchez-Pena, and concluded it was not entitled to significant weight. See Jones v. Sullivan, 954 F.2d 125, 129 (3d Cir.1991) (an unsupported diagnosis is not entitled to significant weight). Adorno, however, also points to the testimony of Dr. Polanco and argues that the Secretary failed to give it the weight it deserved. In the ALJ’s decision, he states that he made his findings “[a]fter careful consideration of the entire record,” Admin.Rec. at 14, but the ALJ did not otherwise explain his reasons for not mentioning Dr. Polanco’s note indicating that Adorno was treated for “acute asthma.” Adorno relies primarily on the proposition that the Secretary must “explicitly” weigh aE relevant, probative and available evidence. Dobrowolsky v. Califano, 606 F.2d 403, 407 (3d Cir.1979); see also Brewster v. Heckler, 786 F.2d 581, 584 (3d Cir.1986); Cotter, 642 F.2d at 705. The Secretary must provide some explanation for a rejection of probative evidence which would suggest a contrary disposition. Brewster, 786 F.2d at 585. The Secretary may properly accept some parts of the medical evidence and reject other parts, but she must consider all the evidence and give some reason for discounting the evidence she rejects. Stewart v. Secretary of H.E.W., 714 F.2d 287, 290 (3d Cir.1983). For these reasons, we wiE vacate the district court’s order and remand for further proceedings. On remand, if Adorno has carried her initial burden of estabhshing an impairment so severe that she cannot perform the kind of work in which she was previously engaged, the Secretary has the burden of supplying substantial evidence, usuaEy in the form of a" } ]

[ { "docid": "15577919", "title": "", "text": "Coum-adin Therapy. (AR at 185). The final treatment note from Dr. Andres, dated September 15, 1998, provides in its entirety that Plaintiff is “not getting Better — .” Id. Fundamentally, Dr. Andres does not opine that Plaintiff is able to work in any record document; his hopeful comments about Plaintiffs future abilities cannot be read as an indication of Plaintiffs actual capacity. Furthermore, Dr. Andres’ later reports, in contrast to his earlier ones, cast no doubt on the veracity of Plaintiffs complaints and recommend that Plaintiff continue seeing Dr. Brocker. It is also not clear to us that the State Agency physicians’ reports can be read as indicating that Plaintiff is able to work. In the face of conflicting evidence, an ALJ is permitted to choose whom to credit but may not “reject evidence for no reason or the wrong reason.” Cotter v. Harris, 642 F.2d 700, 707 (3d Cir.1981). Here, however, it is not readily apparent that the medical evidence is in conflict, and the ALJ has not adequately explained his conclusion that it is. In sum, an ALJ is required to explicitly weigh all relevant, probative and available evidence and to provide an explanation for any evidence that he rejects. Adorno v. Shalala, 40 F.3d 43, 47-48 (3d Cir.1994); see also Dobrowolsky v. Califano, 606 F.2d 403, 407 (3d Cir.1979); Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir.1999). Because the ALJ failed to do so adequately in this case, we will remand. B. Evaluation of Plaintiff’s Credibility Plaintiff also challenges the ALJ’s decision to not fully credit his testimony. In his opinion, the ALJ found that Plaintiffs activities of daily living were not “indicative of someone alleging a totally disabling impairment.” (AR at 21). The ALJ also found that Plaintiffs statements regarding the ineffectiveness of his medications were not entirely credible because he continued to take these medications and often reported to his physicians that they were providing relief from his pain. Id. An ALJ is required to “give serious consideration to a claimant’s subjective complaints of pain, even where those complaints are not supported by objective" }, { "docid": "22546616", "title": "", "text": "the hearing examiner because he had failed to address significant items of evidence which were in direct conflict with his findings. In Schaaf v. Matthews, 574 F.2d 157 (3d Cir. 1978), we held that it was error for an ALJ to reject uncontradicted medical evidence without a clear statement of the reasons for doing so. See also Smith v. Califano, 637 F.2d 968 (3d Cir. 1981) (Adams, J., concurring and dissenting); Gachette v. Weinberger, 551 F.2d 39 (3d Cir. 1977); Walker v. Mathews, 546 F.2d 814 (9th Cir. 1976); Rosario v. Harris, 492 F.Supp. 414 (D.N.J.1980). Since it is apparent that the ALJ cannot reject evidence for no reason or for the wrong reason, King v. Califano, 615 F.2d 1018 (4th Cir. 1980), an explanation from the ALJ of the reason why probative evidence has been rejected is required so that a reviewing court can determine whether the reasons for rejection were improper. For example, in Gober v. Matthews, supra, we held that the ALJ had rejected medical testimony for improper reasons, a holding we could not have made without knowing the basis of the rejection. We also note with interest that the Fourth Circuit requires that the Secretary must consider all the evidence and explain on the record the reasons for his findings, including reasons for rejecting evidence in support of the claim. See King v. Califano, 615 F.2d at 1020; Myers v. Califano, 611 F.2d 980, 983 (4th Cir. 1980); Stawls v. Califano, 596 F.2d 1209, 1213 (4th Cir. 1979). Turning to the decision of the ALJ in this case, we note there was expert medical testimony that was probative and supportive of Cotter’s claim which conflicted with the medical testimony accepted by the ALJ. The ALJ’s failure to explain his implicit rejection of this evidence or even to acknowledge its presence was error. Moreover, as noted above, the ALJ appears to have misunderstood some of Dr. Kimber’s findings and this misunderstanding may have affected his decision. In addition, the ALJ’s conclusion that Cotter’s impairment of premature ventricular contractions did not prevent the performance of his past relevant" }, { "docid": "22386780", "title": "", "text": "case where the claimant, such as Fargnoli, has voluminous medical records, we do expect the ALJ, as the factfinder, to consider and evaluate the medical evidence in the record consistent with his responsibilities under the regulations and case law. His failure to do so here leaves us little choice but to remand for a more comprehensive analysis of the evidence consistent with the requirements of applicable regulations and the law of this Circuit, both as discussed in more detail below. 2. The ALJ Must Assess the Credibility of, and Explain the Weight Given To, Conflicting Medical Evidence by the Claimant’s Treating Physicians. This Court has long been concerned with ALJ opinions that fail properly to consider, discuss and weigh relevant medical evidence. See Dobrowolsky v. Califano, 606 F.2d 403, 406-07 (3d Cir.1979) (“This Court has repeatedly emphasized that the special nature of proceedings for disability benefits dictates care on the part of the agency in developing an administrative record and in explicitly weighing all evidence.”). Where there is conflicting probative evidence in the record, we recognize a particularly acute need for an explanation of the reasoning behind the ALJ’s conclusions, and will vacate or remand a case where such an explanation is not provided. See Cotter, 642 F.2d at 706 (listing cases remanded for ALJ’s failure to provide explanation of reason for rejecting or not addressing relevant probative evidence). In his opinion the ALJ finds Fargnoli to have a severe back impairment, but not so severe that it prevents him from performing light work that includes frequentlydift-ing ten pounds, occasionally lifting twenty pounds, and standing and walking for six hours out of an eight-hour day. In reaching this finding, the ALJ does not mention the contradictory finding of Dr. Zaslow, nor does he explain his assessment of the credibility of Drs. Zaslow and Karpin or the weight given to their treatment notes and opinions. Under applicable regulations and the law of this Court, opinions of a claimant’s treating physician are entitled to substantial and at times even controlling weight. See 20 C.F.R. § 404.1527(d)(2); Cotter, 642 F.2d at 704. The" }, { "docid": "15577920", "title": "", "text": "is. In sum, an ALJ is required to explicitly weigh all relevant, probative and available evidence and to provide an explanation for any evidence that he rejects. Adorno v. Shalala, 40 F.3d 43, 47-48 (3d Cir.1994); see also Dobrowolsky v. Califano, 606 F.2d 403, 407 (3d Cir.1979); Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir.1999). Because the ALJ failed to do so adequately in this case, we will remand. B. Evaluation of Plaintiff’s Credibility Plaintiff also challenges the ALJ’s decision to not fully credit his testimony. In his opinion, the ALJ found that Plaintiffs activities of daily living were not “indicative of someone alleging a totally disabling impairment.” (AR at 21). The ALJ also found that Plaintiffs statements regarding the ineffectiveness of his medications were not entirely credible because he continued to take these medications and often reported to his physicians that they were providing relief from his pain. Id. An ALJ is required to “give serious consideration to a claimant’s subjective complaints of pain, even where those complaints are not supported by objective evidence.” Mason v. Shalala, 994 F.2d 1058, 1067 (3d Cir.1993) (citing Ferguson v. Schweiker, 765 F.2d 31, 37 (3d Cir.1985)). It is not required that objective evidence of the pain itself exist, although there must be objective evidence of some condition that could reasonably produce the pain. Green v. Schweiker, 749 F.2d 1066, 1070-71 (3d Cir.1984). In situations where there is medical evidence .supporting a claimant’s complaints of pain, the “complaints should then be given ‘great weight’ and may not be disregarded unless there exists contrary medical evi dence.” Mason, 994 F.2d at 1067-68 (citing Carter v. Railroad Retirement Board, 834 F.2d 62, 65 (3d Cir.1987); Ferguson v. Schweiker, 765 F.2d 31, 37 (3d Cir.1985)). Further, the ALJ’s “determination or decision must contain specific reasons for the finding on credibility, supported by the evidence in the case record, and must be sufficiently specific to make clear ... the weight the adjudicator gave to the individual’s statements and the reasons for that weight.” Schwartz v. Halter, 134 F.Supp.2d 640, 654 (E.D.Pa.2001) (quoting Social Security Ruling 96-7p," }, { "docid": "15577923", "title": "", "text": "Id. at 655. We are also troubled by the vagueness of the ALJ’s explanation. In his opinion, Plaintiffs daily activities are referenced in broad brush, but no connection is drawn between the Plaintiffs ability to, for example, drive eight miles and the ALJ’s conclusion that Plaintiff could engage in more physical activities than he claimed. See id. at 655 n. 13 (“The ALJ did not explain how Schwartz’s admission to these limited activities persuaded him to believe that Schwartz could sit, stand, or walk for longer than he professed he could.”). Accordingly, we will remand on this issue as well. C. Evaluation of the Vocational Expert Testimony Plaintiffs final argument is that the ALJ erred in his assessment of the vocational expert’s testimony. A vocational expert’s testimony may be relied upon as substantial evidence when it is given in response to a hypothetical question that “fairly set[s] forth every credible limitation established by the physical evidence.” Plummer v. Apfel, 186 F.3d 422, 431 (3d Cir.1999). In this case, the hypothetical relied on by the ALJ is apparently the one incorporating the following: a restriction to work at the light exertional level; only occasional postural movements; a sit-stand option; no bending or twisting; and no extreme temperatures. (AR at 56-57). Given our disposition on the medical evidence and credibility determinations, however, we cannot determine at this point that this hypothetical fairly set forth all of Plaintiffs physical limitations. The ALJ will necessarily need to reconsider the adequacy of the hypothetical question he relied on after reconsidering the medical evidence and Plaintiffs’ subjective complaints of pain. D. Remand or Reversal? It remains for us to decide whether we will remand the case for further administrative proceedings or reverse and direct an award of benefits. The Third Circuit has held that the decision to award benefits “should be made only when the administrative record of the case has been fully developed and when substantial evidence in the record as a whole indicates that the claimant is disabled and entitled to benefits.” Podedworny v. Harris, 745 F.2d 210, 222 (3d Cir.1984). In this instance," }, { "docid": "5050962", "title": "", "text": "365-9) confirm various medical and psychological problems, but give further evidence that these problems are not so severe as to prevent all substantial gainful activity. Furthermore, the reports of Drs. Hudgins and Prince were made after most of the treating physician’s reports relied on by the plaintiff. The mere presence of medical problems does not constitute disability; there must also be disabling effects. The plaintiff has not directed the court to any clinical evidence establishing disabling effects from his medical problems. The ALJ made a detailed review of the medical evidence (Tr. 11-24); his conclusions meet the substantial evidence test and must stand. B. Pain Plaintiff’s allegations of pain, like all matters of fact, are not to be accepted blindly and must be evaluated against the other evidence. Laffoon v. Califano, 558 F.2d 253 (5th Cir. 1977). The question whether the applicant is able to work despite some resulting pain is within the province of the administrative agency and is to be upheld if supported by substantial evidence. Newborn v. Harris, 602 F.2d 105 (5th Cir. 1979). The ALJ may properly challenge credibility of pain testimony. Allen v. Schweiker, 642 F.2d 799 (5th Cir. 1981). The plaintiff has not shown where in the record it is established by recognized diagnostic techniques that he suffers severe pain from a medically recognized impairment. See Aubeuf v. Schweiker, 649 F.2d 107, 112 (2d Cir. 1981). He relies primarily on his own testimony of pain, and while this evidence must be considered, see Rodriguez v. Schweiker, 640 F.2d 682, 685 (5th Cir. 1981), it is not sufficient to establish a disability in light of the medical evidence to the contrary. See Aubeuf, supra. The medical evidence indicates that plaintiff was not in such severe pain that it would impair his capacity to perform basic work related functions. (Tr. 335, 360, 362-3). To the extent there was any conflicting evidence, the determination of credibility is to be made by the ALJ. C. Effect of Medication The plaintiff’s final objection to the ALJ’s report is that ALJ Rothbloom did not accept the plaintiff’s testimony that the" }, { "docid": "6215970", "title": "", "text": "to sew or crochet. She can no longer do any gardening, cooking or housekeeping. Because her neck movement is restricted, her doctor has advised her not to drive. 9. Mrs. Smith’s testimony was corroborated by her daughter, who lives with her. The disabling nature of Mrs. Smith’s impairments was also attested to by her attending physicians, including her family physician, who was of the opinion that she was totally disabled. However, a medical consultant, Dr. Gillis, who was appointed by the Secretary, was of the opinion that none of Mrs. Smith’s illnesses taken alone constituted a disability as defined by the Listing of Impairments. As is permitted by regulation, Dr. Gillis based his opinion solely on the medical record; he did not examine Mrs. Smith. 20 C.F.R. § 404.1526(b). 10. The ALJ, relying solely on the report of Dr. Gillis, and rejecting all other evidence, found that Mrs. Smith’s ailments in combination did not disable her. III. Discussion 11. This court’s standard of review is whether there exists substantial evidence in the record to support the Secretary’s findings. 42 U.S.C. § 405(g). Under this standard, the question is whether the record contains “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971), quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938). See also Lewis v. Califano, 616 F.2d 73, 76 (3d Cir. 1980); Dobrowolsky v. Califano, 606 F.2d 403, 406 (3d Cir. 1979). Upon review we conclude that the findings in this case are not supported by substantial evidence for two reasons. First, the ALJ assessed the available evidence improperly, giving undue weight to the report of Dr. Gillis. Second, the ALJ appears not to have considered Mrs. Smith’s pain when he found that, viewed in combination, her impairments were not disabling. 12. In his decision, the ALJ treated the report of the medical consultant Dr. Gillis as conclusive and as unrebutted by the other evidence. The ALJ never stated why" }, { "docid": "22386779", "title": "", "text": "stated that he wanted a light duty job, but no light duty work was available for him. A medical report by Dr. Karpin, dated February 22,1991, stated that the claimant was still having difficulty with his lower back, but was able to cope with the pain and discomfort as long as he took his muscle relaxant and non-steroidal anti-inflammatory. The claimant was maintained on Robaxin, Feldene and physical therapy. In the passages quoted above, the ALJ describes four diagnostic tests and five treatment notes. Yet our review of the record reflects over 115 pages of relevant, probative treatment notes from Drs. Zaslow and Karpin detailing Fargnoli’s medical condition and progress. The disparity between the actual record and the ALJ’s sparse synopsis of it makes it impossible for us to review the ALJ’s decision, for we “cannot tell if significant probative evidence was not credited or simply ignored.” Burnett, 220 F.3d at 121 (quoting Cotter, 642 F.2d at 705). Although we do not expect the ALJ to make reference to every relevant treatment note in a case where the claimant, such as Fargnoli, has voluminous medical records, we do expect the ALJ, as the factfinder, to consider and evaluate the medical evidence in the record consistent with his responsibilities under the regulations and case law. His failure to do so here leaves us little choice but to remand for a more comprehensive analysis of the evidence consistent with the requirements of applicable regulations and the law of this Circuit, both as discussed in more detail below. 2. The ALJ Must Assess the Credibility of, and Explain the Weight Given To, Conflicting Medical Evidence by the Claimant’s Treating Physicians. This Court has long been concerned with ALJ opinions that fail properly to consider, discuss and weigh relevant medical evidence. See Dobrowolsky v. Califano, 606 F.2d 403, 406-07 (3d Cir.1979) (“This Court has repeatedly emphasized that the special nature of proceedings for disability benefits dictates care on the part of the agency in developing an administrative record and in explicitly weighing all evidence.”). Where there is conflicting probative evidence in the record, we" }, { "docid": "22766887", "title": "", "text": "his personal observations of Morales at the administrative hearing, the evidence in the record of malingering, and notations in Dr. Erro’s treatment notes that Morales was stable and well controlled with medication. A cardinal principle guiding disability eligibility determinations is that the ALJ accord treating physicians’ reports great weight, especially “when their opinions reflect expert judgment based on a continuing observation of the patient’s condition over a prolonged period of time.” Plummer, 186 F.3d at 429 (quoting Rocco v. Heckler, 826 F.2d 1348, 1350 (3d Cir.1987)); see also Adorno v. Shalala, 40 F.3d 43, 47 (3d Cir.1994); Jones, 954 F.2d at 128; Allen v. Bowen, 881 F.2d 37, 40-41 (3d Cir.1989); Frankenfield v. Bowen, 861 F.2d 405, 408 (3d Cir.1988); Brewster, 786 F.2d at 585. Where, as here, the opinion of a treating physician conflicts with that of a non-treating, non-examining physician, the ALJ may choose whom to credit but “cannot reject evidence for no reason or for the wrong reason.” Plummer, 186 F.3d at 429 (citing Mason v. Shalala, 994 F.2d 1058, 1066 (3d Cir.1993)). The ALJ must consider the medical findings that support a treating physician’s opinion that the claimant is disabled. See Adorno, 40 F.3d at 48. In choosing to reject the treating physician’s assessment, an ALJ may not make “speculative inferences from medical reports” and may reject “a treating physician’s opinion outright only on the basis of contradictory medical evidence” and not due to his or her own credibility judgments, speculation or lay opinion. Plummer, 186 F.3d at 429; Frankenfield v. Bowen, 861 F.2d 405, 408 (3d Cir.1988); Kent, 710 F.2d at 115. The ALJ’s refusal to credit Dr. Erro’s opinion was not based on objective medical evidence. The ALJ rejected Dr. Erro’s opinion simply because he did not believe Morales’s testimony at the hearing and because Dr. Jaffe and Dr. Lindner noted that Morales appeared to be malingering in their examinations of him. Although an ALJ may consider his own observations of the claimant and this Court cannot second-guess the ALJ’s credibility judgments, they alone do not carry the day and override the medical opinion" }, { "docid": "15577918", "title": "", "text": "out of work from the end of March till July 1, 1998 and that he thereafter recommended that Plaintiff continue with'Dr. Brocker for treatment of his chronic back and neck pain. In a treatment note dated August 11, 1998, Dr. Andres stated in part that: [h]e is still having chronic pain. I talked to him about that. It seems like the best course of action is to have his neurosurgeon work on his back pain and neck pain. He should see an orthopod for his shoulder pain and I want to work on the DVT pain. Since being on the Plavix, his leg has slightly increased in size more than before and he has had more pain ... He is getting a PT on Saturday and then every Tuesday thereafter to see if we need to make any other changes. Other than that his physical exam looks pretty good. We are going to check the size of his thigh which is 54 cm mid-thigh right now to see if it decreased at all with the Coum-adin Therapy. (AR at 185). The final treatment note from Dr. Andres, dated September 15, 1998, provides in its entirety that Plaintiff is “not getting Better — .” Id. Fundamentally, Dr. Andres does not opine that Plaintiff is able to work in any record document; his hopeful comments about Plaintiffs future abilities cannot be read as an indication of Plaintiffs actual capacity. Furthermore, Dr. Andres’ later reports, in contrast to his earlier ones, cast no doubt on the veracity of Plaintiffs complaints and recommend that Plaintiff continue seeing Dr. Brocker. It is also not clear to us that the State Agency physicians’ reports can be read as indicating that Plaintiff is able to work. In the face of conflicting evidence, an ALJ is permitted to choose whom to credit but may not “reject evidence for no reason or the wrong reason.” Cotter v. Harris, 642 F.2d 700, 707 (3d Cir.1981). Here, however, it is not readily apparent that the medical evidence is in conflict, and the ALJ has not adequately explained his conclusion that it" }, { "docid": "6496023", "title": "", "text": "According to that opinion, Wallace was unable to perform any substantial gainful activity. Dr. Kaufman’s April 1981 report also supports this conclusion. No conflicting medical opinions were submitted regarding the psychiatric component of disability. The ALJ therefore erred in ignoring this evidence in favor of his own conclusion that there was no evidence of significant mental impairment. Tr. at 17, 36. Recently, this Court reversed an ALJ who ignored competent medical evidence regard ing psychological disability in favor of his own contrary conclusion. Van Horn v. Schweiker, 717 F.2d 871 (3d Cir.1983). The Van Horn Court noted that it has “repeatedly [been] held that ‘an ALJ is not free to set his own expertise against that of physicians who present competent medical evidence.’ ” 717 F.2d at 874 (quoting Fowler v. Califano, 596 F.2d 600, 603 (3d Cir.1979)). See also Kelly v. Railroad Retirement Board, 625 F.2d 486, 494 (3d Cir.1980) (“An ALJ may not reject professional medical evidence on the basis of his own observation.”) Because the ALJ either misread the report of Dr. Sibert or rejected his medical conclusion without explaining his reasons for doing so, the matter must be remanded. Kent v. Schweiker, supra, 710 F.2d at 115 n. 5; Cotter v. Harris, 642 F.2d 700, 706-707 (3d Cir.1981). The ALJ also rejected an opinion to the same effect by Dr. Kaufman. This runs contrary to the precept that the opinion of Dr. Kaufman, the treating physician, is entitled to substantial weight. Cotter v. Harris, 642 F.2d at 704. Accordingly, there is an insufficient evidentiary basis for the finding that mental impairment was insignificant, and thus there may not be substantial evidence for a finding of non-disability. Moreover, neither the district court nor the ALJ had the benefit of the Supreme Court’s decision in Heckler, etc. v. Campbell, - U.S. -, 103 S.Ct. 1952, 76 L.Ed.2d 66 (1983), when making their decisions in this case. In Heckler, the Court used this language, inter alia, at-, 103 S.Ct. at 1957: [I]n determining whether a claimant can perform less strenuous work, the Secretary must make two determinations. She must" }, { "docid": "15577910", "title": "", "text": "assistance of a vocational expert at this fifth step. This case was resolved at the fifth step. Plaintiff argues that the Commissioner erred in three respects: 1) assessing his credibility; 2) evaluating the medical evidence; and 3) evaluating the vocational expert’s testimony. We will address the second argument first. A. Evaluation of the Medical Evidence Plaintiffs first argument is that the ALJ erred in his assessment of the medical evidence; specifically, he argues that the ALJ erroneously declined to give Dr. Brocker’s opinion controlling weight. The ALJ did not explicitly specify the weight he attributed to Dr. Brocker’s opinion that Plaintiff was worsening, although it appears that he rejected it altogether. (AR at 20). Plainly, the ALJ did not give it controlling weight or great weight. He found it to be inconsistent with the physician’s conclusion that Plaintiffs major systems were stable, and specifically criticized Dr. Brocker for not explaining this inconsistency in his examination notes. Id. Later in his opinion, the ALJ purported to give controlling weight to Dr. Andres’ opinion, stating that “the State Agency physicians support the conclusion of Dr. Andres that the claimant should return to work.” Id. An “ALJ may reject a treating physician’s opinion on the basis of contradictory medical evidence, and may afford a medical opinion more or less weight depending upon the degree to which supporting explanations are provided and whether the treating doctor is a specialist.” Frankenfield v. Bowen, 861 F.2d 405, 408 (3d Cir.1988); 20 C.F.R. § 404.1527(d). A treating physician’s medical opinion is to be given controlling weight when it is “well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the claimant’s] case record.” 20 C.F.R. § 404.1527(d)(2). Even when a treating physician’s opinion is not given controlling weight, it is entitled to “great weight, especially when [it] reflects] expert judgment based on a continuing observation of the patient’s condition over a prolonged period of time.’ ” Morales v. Apfel, 225 F.3d 310, 317-18 (3d Cir.2000) (quoting Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir.1999)). Finally, in rejecting" }, { "docid": "22058503", "title": "", "text": "ALJ an opportunity, using this definition, to reassess whether Schaudeck’s Hodgkin’s Disease meets or equals in severity the listed impairment of “Hodgkin’s Disease ... not controlled by prescribed therapy.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 13.06A. B. Evaluating the medical evidence On remand, should the ALJ again find that Schaudeek’s Hodgkin’s Disease did not meet or equal a listed impairment, the ALJ will need to reassess his determination that Schaudeck was capable of doing her past relevant work despite her severe impairment and make more explicit the reasoning behind his conclusion. An ALJ must give great weight to a claimant’s subjective testimony of the inability to perform even light or sedentary work when this testimony is supported by competent medical evidence. See Dobrowolsky v. Califano, 606 F.2d 403, 409 (3d Cir.1979). Although the ALJ can reject such claims if he does not find them credible, see Baerga v. Richardson, 500 F.2d 309, 312 (3d Cir.1974), when assessing a claimant’s credibility: [i]n instances in which the adjudicator has observed the individual, the adjudicator is not free to accept or reject that individual’s complaints solely on the basis of such personal observations. Rather, in all cases in which pain or other symptoms are alleged, the determination or decision rationale must contain a thorough discussion and analysis of the objective medical and the other evidence, including the individual’s complaints of pain or other symptoms and the adjudicator’s personal observations. The rationale must include a resolution of any inconsistencies in the evidence as a whole and set forth a logical explanation of the individual’s ability to ivork. Social Security Ruling (“S.S.R.”) 95-5P, 1995 WL 670415, at *2 (emphasis added). We have reemphasized the need for such specificity, holding that the ALJ must indicate in his decision which evidence he has rejected and which he is relying on as the basis for his finding. See Cotter v. Harris, 642 F.2d 700, 705-06 (3d Cir.1981); see also S.S.R. 96-7P, 1996 WL 374186, at *4 (“The reasons for the credibility finding must be grounded in the evidence and articulated in the determination or decision.”)." }, { "docid": "16232556", "title": "", "text": "pain, he is able to concentrate and his lifestyle, although restricted, is not consistent with total disability”). Accordingly, the R & R’s references to “total disability” and “total inability to work” were in no way erroneous. R & R at 13,17. B. Second Objection Next, Plaintiff contends that the R & R impermissibly discredits two consultative physicians based on the Magistrate Judge’s own “newly minted theories,” while the ALJ failed to provide adequate reasons for discounting those consultants. Obj. at 6. It is well established that an ALJ must explain his reasons for discounting evidence that is contrary to his conclu sions. See, e.g., Fargnoli v. Massanari, 247 F.3d 34, 43 (3d Cir.2001); Cotter v. Harris, 642 F.2d 700, 706 (3d Cir.1981) (explaining “there is a particularly acute need for some explanation by the ALJ when s/he has rejected relevant evidence or when there is conflicting probative evidence in the record”). The Third Circuit has recognized that it is the ALJ’s obligation “to provide an adequate basis so that the reviewing court can determine whether the administrative decision is based on substantial evidence.” Cotter, 642 F.2d at 706. Without such an explanation, the court is “handicapped,” as it is “impossible to determine whether the ALJ’s [conclusion] is supported by substantial evidence.” Fargnoli, 247 F.3d at 40. An ALJ . “may properly accept some parts of the medical evidence and reject other parts, but she must consider all ,the evidence and give some reason for discounting the evidence she rejects.” Adorno v. Shalala, 40 F.3d 43, 48 (3d Cir.1994). However, consideration of all the evidence does not mean that the ALJ must explicitly refer to each and every exhibit in the record. In Fargnoli, the Third Circuit recently explained: Although we do not expect the ALJ to make reference to every relevant treatment note in a case where the claimant, such as Fargnoli, has voluminous medical records, we do expect the ALJ, as the factfinder, to consider and evaluate the medical evidence in the record consistent with his responsibilities under the regulations and case law. 247 F.3d at 42 (emphasis added)." }, { "docid": "15577916", "title": "", "text": "cardiovascular and/or other systems. This is an impermissible lay opinion that does not adequately address the pertinent issues of whether Dr. Brocker’s opinion is well-supported and whether it is consistent with the other substantial record evidence. Notably, Dr. Brocker had treated Plaintiff for eight months at the time of the administrative hearing, is a specialist, and his conclusions regarding Plaintiffs position were accompanied by detailed examination notes explaining his conclusions. Notwithstanding these facts, the ALJ fails to make explicit the weight he allots to Dr. Brock-er’s opinion and to adequately explain his reasons for allotting the opinion such weight. It is clear that “[w]here competent evidence supports a claimant’s claims, the ALJ must explicitly weigh the evidence and explain a rejection of the evidence.” Schaudeck v. Comm’r of Soc. Sec., 181 F.3d 429, 435 (3d Cir.1999), (citing Dobrowolsky v. Califano, 606 F.2d 403, 407 (3d Cir.1979); Benton v. Bowen, 820 F.2d 85, 88 (3d Cir.1987)). The ALJ also purports to give controlling weight to the clinical findings, opinions and assessments of the Plaintiffs family doctor, Dr. Andres, noting that the “state Agency physicians support the conclusion of Dr. Andres that the claimant should return to work.” Id. We observe that the first treatment note from Dr. Andres is dated February 17, 1998, which is four months earlier than Dr. Brocker’s first note, although the latest note from Dr. Andres is dated September 11, 1998, almost a full five months before the date of the administrative hearing; Dr. Brocker’s last examination note of record is dated January 9,1999. We find that the ALJ substantially mischaracterized Dr. Andres’ opinion. The ALJ mentions parts of Dr. Andres’ notes that, when viewed in context, are selective and not fairly representative of his findings as a whole. For instance, the ALJ mentions that Dr. Andres considered that Plaintiff may have been exaggerating his symptoms at a visit in June, 1998 and that Dr. Andres felt Plaintiff would be able to return to work at “some point in time” in April, 1998. (AR at 19). The ALJ neglects to mention, however, that Dr. Andres kept Plaintiff" }, { "docid": "22771062", "title": "", "text": "fully, he argues, the ALJ could not have found him able to perform light exertional work. We examine the ALJ’s conclusions as to Burns’ residual functional capacity with the deference required of the substantial evidence standard of review. The ALJ, nonetheless, must have evaluated all relevant evidence, Fargnoli v. Massanari, 247 F.3d 34, 40-41 (3d Cir.2001), and explained his reasons for rejecting any such evidence. Burnett v. Commissioner of Soc. Sec. Admin., 220 F.3d 112, 122 (3d Cir.2000). He also must have given Bums subjective complaints “serious consideration,” Mason v. Shalala, 994 F.2d 1058, 1067 (3d Cir.1993), and made specific findings of fact, including credibility, as to Burns’ residual functional capacity. Burnett, 220 F.3d at 120; see also Cotter v. Harris, 642 F.2d 700, 704 (3d Cir.1981). Here, the ALJ complied with these mandates. He specifically addressed Bums’ testimony regarding his pain and his limitations in the March 8, 2000 opinion. He found that the pain was not disabling and that Burns’ testimony as to the impact of his impairments on his ability to work was “not fully credible.” Importantly, Burns does not point to any relevant medical opinion that supports his allegations that his pain and exertional limitations are more severe than the ALJ found them to be. Cf. Cotter, 642 F.2d at 706-07 (remanding to the ALJ to reconsider .a denial of disability benefits because the ALJ’s opinion did not address contradictory medical evidence). Instead, he notes only his testimony before the ALJ. As for pain, Burns did testify to experiencing various forms of pain, and the ALJ clearly addressed that testimony and did not reject Burns’ allegations completely. As already mentioned, the ALJ found that Burns did suffer from chronic back pain. Nevertheless, the ALJ noted that other parts of Bums’ testimony, namely those addressing the number and type of activities he engages in on a daily basis, seemed to belie his assertion that the páin is dis abling. In fact, as the ALJ noted, Burns specifically stated that he does not experience pain when he plays the drums. Likewise, Burns’ testimony regarding his limitations does not" }, { "docid": "16232555", "title": "", "text": "“severe right shoulder impingement syndrome,” Plaintiff retained the residual functional capacity (RFC) to perform “light” exertion work. (R. 17). In his R & R, the Magistrate Judge noted that “Dr. Sfedu’s examination notes do not support a finding of total disability.” R & R at 13. The phrase “total disability” was obviously intended by the Magistrate to mean disability under the Social Security Act’s strict standards. It is not uncommon for courts to use the term “total” as a modifier, simply to reflect the legal, as opposed to layman’s, definition of “disability.” See, e.g., Adorno v. Shalala, 40 F.3d 43, 48 (3d Cir.1994) (“The ALJ must review all the medical findings and other evidence presented in support of the attending physician’s opinion of total disability.”); Chamberlain v. Shalala, 47 F.3d 1489, 1494 (8th Cir.1995) (holding ALJ rightly discounted physician’s conclusory findings of plaintiffs “inability to bend or stoop and his total disability”); Wiley v. Chater, 967 F.Supp. 446, 450 (D.Kan.1997) (upholding ALJ’s denial of benefits where ALJ “found that despite claimant’s complaints of fatigue and pain, he is able to concentrate and his lifestyle, although restricted, is not consistent with total disability”). Accordingly, the R & R’s references to “total disability” and “total inability to work” were in no way erroneous. R & R at 13,17. B. Second Objection Next, Plaintiff contends that the R & R impermissibly discredits two consultative physicians based on the Magistrate Judge’s own “newly minted theories,” while the ALJ failed to provide adequate reasons for discounting those consultants. Obj. at 6. It is well established that an ALJ must explain his reasons for discounting evidence that is contrary to his conclu sions. See, e.g., Fargnoli v. Massanari, 247 F.3d 34, 43 (3d Cir.2001); Cotter v. Harris, 642 F.2d 700, 706 (3d Cir.1981) (explaining “there is a particularly acute need for some explanation by the ALJ when s/he has rejected relevant evidence or when there is conflicting probative evidence in the record”). The Third Circuit has recognized that it is the ALJ’s obligation “to provide an adequate basis so that the reviewing court can determine whether" }, { "docid": "15577922", "title": "", "text": "1996 WL 374 (1996) and citing Schaudeck v. Commr. of Soc. Sec. Admin., 181 F.3d 429, 433 (3d Cir.1999)). Here, the record is replete with evidence of conditions that could reasonably produce Plaintiffs pain, for example Dr. Brocker’s diagnoses. Our conclusion on the medical evidence issue is therefore relevant here; in light of our determination that the ALJ did not adequately consider the medical evidence, we cannot find that the ALJ adequately considered Plaintiffs subjective complaints of pain. See Mason, 994 F.2d at 1068 ( ... “the ALJ cannot be assumed to have given appellant’s subjective complaints of pain the substantial weight they are due — particularly since the complaints were deprived of the weight of substantiation by medical evidence.”). One relevant factor in evaluating a claimant’s subjective complaints of pain is “treating and examining physicians’ opinions regarding the credibility and severity of the claimant’s subjective complaints.” Schwartz, 134 F.Supp.2d at 654 (citing SSR 96-7p). If the ALJ had credited Dr. Brocker’s opinion, his analysis of Plaintiffs credibility may have been different and vice versa. Id. at 655. We are also troubled by the vagueness of the ALJ’s explanation. In his opinion, Plaintiffs daily activities are referenced in broad brush, but no connection is drawn between the Plaintiffs ability to, for example, drive eight miles and the ALJ’s conclusion that Plaintiff could engage in more physical activities than he claimed. See id. at 655 n. 13 (“The ALJ did not explain how Schwartz’s admission to these limited activities persuaded him to believe that Schwartz could sit, stand, or walk for longer than he professed he could.”). Accordingly, we will remand on this issue as well. C. Evaluation of the Vocational Expert Testimony Plaintiffs final argument is that the ALJ erred in his assessment of the vocational expert’s testimony. A vocational expert’s testimony may be relied upon as substantial evidence when it is given in response to a hypothetical question that “fairly set[s] forth every credible limitation established by the physical evidence.” Plummer v. Apfel, 186 F.3d 422, 431 (3d Cir.1999). In this case, the hypothetical relied on by the ALJ" }, { "docid": "22331980", "title": "", "text": "of appellant’s treating physicians and gave no basis for so doing. This course of action is inconsistent with the ALJ’s duty: This Court has recognized that there is a particularly acute need for some explanation by the ALJ when s/he has rejected relevant evidence or when there is conflicting probative evidence in the record .... [I]n Kennedy v. Richardson, 454 F.2d 376 (3d Cir.1972), we vacated and remanded the decision of the ALJ because it failed to afford an explanation why the AU rejected medical evidence that supported the claimant which was inconsistent with other medical evidence and the ALJ’s findings.... In Schaaf v. Matthews, 574 F.2d 157 (3d Cir.1978), we held that it was error for an ALJ to reject uncontradieted medical evidence without a clear statement of the reasons for doing so. Cotter v. Harris, supra, 642 F.2d at 706. Moreover, this Court has also declared that “[tjestimony of subjective pain and inability to perform even light work is entitled to great weight, particularly when ... it is supported by competent medical evidence,” Dobrowolsky v. Califano, 606 F.2d 403, 409 (3d Cir.1979), and that an ALJ’s failure seriously to consider subjective evidence of pain can itself constitute grounds for reversal, see Smith v. Califano, 637 F.2d 968, 972 (3d Cir.1981). Here, however, the ALJ’s dismissal of appellant’s complaints of pain appears to have been solely a function of the ALJ’s own credibility judgment and of appellant’s failure to have visited her physicians more frequently. When we recall that appellant has been treated by some eight physicians, that she was taking heavy doses of prescribed medications, and that she was unemployed and hence had limited funds, it becomes evident that the considerations upon which the ALJ relied do not constitute a proper basis for rejecting appellant’s complaints of pain, especially when we consider that her complaints were supported by medical testimony. In short, the ALJ did not explain, except in the most conclusory terms and as a function of either his own credibility judgments or his own medical opinion, his rejection of appellant’s medical evidence with respect to either" }, { "docid": "15577915", "title": "", "text": "bit worse on the left than the right. There is still a decreased left brachiodialis reflex and triceps, but now there is a decreased right brachioradialis reflex. He still has right sided straight leg raising positive, dy-sesthesia of the whole right leg, but more prominently of the right L5 der-matome. He has right sided foot drop and right SI hypalgesia in addition. Examination of the heart, lungs, and abdomen was devoid of pathological lesions. Progress of Patient: He is worsening with the clot to right inguinal area and the pain in the right leg is worse, and things are progressing in the right and left arm. (AR at 221). We have little difficulty concluding that the ALJ’s decision to discount or reject Dr. Brocker’s opinion is not supported by substantial evidence. The ALJ’s only explanation for criticizing it, that it is inconsistent with the doctor’s conclusion that Plaintiffs major systems are stable, appears to be based solely on the ALJ’s own conclusion that someone suffering from musculoskeletal pain would necessarily also have abnormal hearing, vision, cardiovascular and/or other systems. This is an impermissible lay opinion that does not adequately address the pertinent issues of whether Dr. Brocker’s opinion is well-supported and whether it is consistent with the other substantial record evidence. Notably, Dr. Brocker had treated Plaintiff for eight months at the time of the administrative hearing, is a specialist, and his conclusions regarding Plaintiffs position were accompanied by detailed examination notes explaining his conclusions. Notwithstanding these facts, the ALJ fails to make explicit the weight he allots to Dr. Brock-er’s opinion and to adequately explain his reasons for allotting the opinion such weight. It is clear that “[w]here competent evidence supports a claimant’s claims, the ALJ must explicitly weigh the evidence and explain a rejection of the evidence.” Schaudeck v. Comm’r of Soc. Sec., 181 F.3d 429, 435 (3d Cir.1999), (citing Dobrowolsky v. Califano, 606 F.2d 403, 407 (3d Cir.1979); Benton v. Bowen, 820 F.2d 85, 88 (3d Cir.1987)). The ALJ also purports to give controlling weight to the clinical findings, opinions and assessments of the Plaintiffs family doctor," } ]

[ { "docid": "22175346", "title": "", "text": "exceed 240 months, and that Kelly would receive a three-level reduction for acceptance of responsibility. The government also agreed that, based on Kelly’s continued cooperation, it would make a downward departure motion and recommend a sentence of 168 months. Both defendants agreed to the sentencing calculations attached to the worksheets that were part of the written plea agreement: The worksheets attached to this agreement represent the joint position of the parties on the factors to be considered in calculating the appropriate sentence range under the sentencing guidelines promulgated under 28 U.S.C. § 994(a). (App. 27.) More significantly, however, both Bazzi and Kelly agreed to a waiver of appeal: Defendant agrees not to appeal or otherwise challenge the constitutionality or legality of the sentencing guidelines. Defendant agrees not to appeal the accuracy of any factor stipulated to m the attached worksheets. (App. 34). The worksheet for each defendant specifically provided for a four-level increase for their role in the offense referencing § 3B1.1 of the sentencing guidelines. We are already on record in this circuit as construing such waivers to be binding. In United States v. Ashe, 47 F.3d 770, 775-76 (6th Cir.), cert. denied, Daughtrey v. United States, — U.S. -, 116 S.Ct. 166, 133 L.Ed.2d 108 (1995), we stated: Initially, it should be noted that Daugh-trey’s plea agreement waived his right to contest any aspect of his sentencing. As previously disclosed, the subsequent amendment to that contract invested him with the right to appeal only the statutory construction issue resolved herein Any right, even a constitutional right, may be surrendered in a plea agreement if that waiver was made knowingly and voluntarily- We recently reaffirmed this holding in United States v. Allison, 59 F.3d 43, 46 (6th Cir.), cert. denied, — U.S. -, 116 S.Ct. 548, 133 L.Ed.2d 450 (1995): By appealing an issue that she stipulated to and agreed not to contest Allison is attempting to void the plea agreement in violation of Ashe. See also United States v. Mandell, 905 F.2d 970, 972 (6th Cir.1990) (“[Ojnce the district court accepts the plea agreement, it is bound by" } ]

[ { "docid": "22298858", "title": "", "text": "(Case No. 01-1124). By letter dated September 5, 2001, the SSA notified the government that it had a policy of not paying social security income benefits retroactively to an individual who, like Defendant, fraudulently collected disability benefits. On September 13, 2001, the government filed a motion to admit the SSA’s September 5, 2001-letter into the record pursuant to Federal Rule of Appellate Procedure 10(e)(2). In its motion, the government claimed that it was unaware of the district court’s notation in the judgment directing the SSA to resolve the offset dispute until Case No. 01-1124 was on appeal. Defendant filed a response to the government’s motion on September 28, 2001. In his response, Defendant objected to the admission of the letter into the record and requested a hearing on the matter. By order entered on October 4, 2001, the district court granted the government’s motion without conducting a hearing on the matter. Defendant timely filed a notice of appeal on October 11, 2001, appealing the district court’s order (Case No. 01-2427). DISCUSSION , I. WAIVER OF RIGHT TO APPEAL (Case No. 01-1124) This Court reviews the question of whether a defendant waived his right to appeal his sentence in a valid plea agreement de novo. United States v. Stubbs, 279 F.3d 402, 411 (6th Cir.2002). It is well settled that a defendant in a criminal case may waive his right to appeal his sentence in a valid plea agreement. See United States v. Fleming, 239 F.3d 761, 763-64 (6th Cir.2001); Stubbs, 279 F.3d at 410. For a plea agreement to be constitutionally valid, a defendant must have entered into the agreement knowingly and voluntarily. See Fleming, 239 F.3d at 764. “When a [djefendant waives his right to appeal his sentence in a valid plea agreement, this Court is bound by that agreement and will not review the sentence except in limited circumstances.” Stubbs, 279 F.3d at 410. In the plea agreement, Defendant agreed to “pay restitution for all losses resulting from his relevant offense conduct,” and to “knowingly and voluntarily give[ ] up any right he may have to appeal any" }, { "docid": "23358926", "title": "", "text": "the plain language of this waiver provision, Pepshi now contends that his sentence should be vacated (1) because he received ineffective assistance of counsel at sentencing given his attorney’s failure to seek enforcement of the agreement to avoid the use of multiple grouping analysis in calculating Pepshi’s guideline range, and (2) because the district court erred in holding that only 18 months of Pepshi’s incarceration would run concurrently with his New Jersey state sentence. The government responds that the defendant is baried from appealing his sentence because he knowingly and voluntarily waived his right to appeal a sentence within the stipulated Guidelines range of 57 to 71 months. We agree. II. It is by now well-settled that a defendant’s knowing and voluntary waiver of his right to appeal a sentence within an agreed upon guideline range is enforceable. See United States v. Chen, 127 F.3d 286, 289-90 (2d Cir.1997) (noting that “[t]he right to appeal may be waived as part of a plea agreement,” but declining to enforce a waiver that was not knowing and voluntary); United States v. Rosa, 123 F.3d 94, 97 (2d Cir.1997) (enforcing voluntary waiver even where the plea agreement specified that defendant would not appeal any sentence within or below the guidelines range “as determined by the Court”); United States v. Maher, 108 F.3d 1513, 1531 (2d Cir.1997) (refusing to address defendants’ sentencing contentions where both defendants were sentenced in accordance with their plea agreements); United States v. Ready, 82 F.3d 551, 555-57 (2d Cir.1996) (declining to enforce waiver where district court had instructed the defendant that his waiver of the right to appeal was “a limited one”); United States v. Yemitan, 70 F.3d 746, 747-48 (2d Cir.1995) (holding that appeal was foreclosed by plea agreement where district court imposed a sentence within the range stipulated by the agreement); United States v. Salcido-Contreras, 990 F.2d 51, 53 (2d Cir.1993) (per curiam) (“In no circumstance ... may a defendant, who has secured the benefits of a plea agreement and knowingly and voluntarily waived the right to appeal a certain sentence, then appeal the merits of a" }, { "docid": "7444453", "title": "", "text": "except the defendant retains the right to appeal a sentence imposed above the sentencing guideline range as determined by the district court. Miller received a within-Guidelines sentence. The law in this area is well-settled: “Criminal defendants may waive their right to appeal as part of a plea agreement so long as the waiver is made knowingly and voluntarily.” United States v. Swanberg, 370 F.3d 622, 625 (6th Cir.2004). When they do so, “[o]nly challenges to the validity of the waiver itself will be entertained on appeal.” United States v. Toth, 668 F.3d 374, 377 (6th Cir.2012). Miller does not contend that her plea was unknowing or involuntary. She instead argues that the waiver provision does not cover challenges to the district court’s alleged misapplication of the Sentencing Guidelines and, alternatively, that the waiver is unenforceable on account of the government’s breach of the plea agreement. We take the arguments in turn. 1. The terms of Miller’s appeal waiver are broad. She waived the right to appeal any sentence unless it is “above the sentencing guideline range as determined by the district court.” (Emphasis added.) Reasonably read, this language defers to the district court’s discretion in calculating Miller’s Guidelines range and permits her to challenge the resulting sentence only if it exceeds the top end of the range the court calculates. Miller’s sentence does not exceed the top end of the range as calculated by the district court. Therefore, the appeal waiver covers her present sentencing challenge and precludes our review. Had Miller wished to preserve a challenge to the district court’s Guidelines calculation, she certainly could have bargained for it. See, e.g., United States v. Brandon, 445 Fed.Appx. 845, 846 (6th Cir.2012) (plea agreement stating that “Defendant retains his right to directly appeal the Court’s adverse determination of any dis puted guideline issue that was raised at or before the sentencing hearings”); United States v. Deanda, 450 Fed.Appx. 498, 499 (6th Cir.2011) (agreement stating that defendant “waives the right to appeal a sentence that is within or below the guideline range as determined by the Court at sentencing ... except" }, { "docid": "22102822", "title": "", "text": "to the plea agreement, “WORKSHEET A (Offense Level),” provides that Allison’s offense level should be increased by two levels pursuant to U.S.S.G. § 3B1.3, “Abuse of Position of Trust or Use of Special Skill.” In United States v. Ashe, 47 F.3d 770 (6th Cir.1995), petition for cert. filed, (U.S. June 26, 1995) (No. 94-9835), this court held: Initially, it should be noted that Daughtrey’s plea agreement waived his right to contest any aspect of his sentencing____ Any right, even a constitutional right, may be surrendered in a plea agreement if that waiver was made knowingly and voluntarily. This reviewing court finds no clear error in the district court’s finding that Daughtrey understood the terms of the plea agreement when he voluntarily executed it, and therefore he cannot be excused from the plain meaning of that contract. Id. at 775-76 (citations omitted). See also United States v. Marshall, 996 F.2d 1218 (6th Cir.1993) (unpublished) (Batchelder, J., concurring) (“[T]he defendant in this case not only entered into the plea agreement recited in the majority opinion, but specifically agreed, as part of that plea agreement, that he waived the right to appeal his sentence. Because the defendant presents nothing to this court which would tend to demonstrate that the plea agreement itself is invalid, or that the facts contained in the presentence report and relied upon by the district court were not those upon which the plea agreement was based, I would hold that the defendant has waived his right to appeal his sentence. Such a holding has been expressly approved in other circuits, and has been approved in dicta from this circuit.”). As part of the plea bargaining process, both Allison and the United States compromised to obtain the benefits of the plea agreement. Specifically, the United States agreed to a three-level reduction for acceptance of responsibility and assured Allison that her sentence would not exceed the midpoint of her sentencing guideline range. Allison, in turn, agreed: to pay restitution “in any amount not exceeding $454,477.82”; that her crime involved more than minimal planning; and, that she abused a position of trust" }, { "docid": "22787914", "title": "", "text": "The government moved to dismiss the appeal and we denied the motion, directing the parties to address in their appellate briefs the question of Fleming’s waiver of his right to appeal. II. The issue of whether the court’s concluding admonition regarding the right to appeal controls over Fleming’s prior written waiver is one of law. We therefore review the claim de novo. See Costo v. United States, 904 F.2d 344, 346 (6th Cir.1990). Fleming pins his hopes on the court’s having included in the sentencing proceeding the standard post-sentence advice regarding a right to appeal. Fleming claims that the reading of the Rule 32 advice evidences the court’s specific rejection of the waiver of appeal found in the plea agreement. Although we have held that a court’s failure to give the notice of appeal when appeals have been waived is not error, we have never ruled on the issue of whether a superfluous notice restores rights which have been waived. Everard v. United States, 102 F.3d 763, 766 (6th Cir.1996). It is well settled that a defendant in a criminal case may waive “any right, even a constitutional right,” by means of a plea agreement. United States v. Ashe, 47 F.3d 770, 775-76 (6th Cir.1995). The sine qua non of a valid waiver is that the defendant enter into the agreement knowingly and voluntarily. See Town of Newton v. Rumery, 480 U.S. 386, 393, 107 S.Ct. 1187, 94 L.Ed.2d 405 (1987), see also Ashe, 47 F.3d at 776. The record here clearly demonstrates that Fleming understood the waiver contained in the plea agreement and consented to it voluntarily. Fleming has not produced any evidence to suggest otherwise or asserted any claim that the plea was not knowing and voluntary. When presented with a knowing and voluntary plea agreement, a district court’s options are limited. If the plea agreement is of the type specified in Rule 11(e)(1)(A) or (C), the court may accept or reject the agreement, or may defer consideration of the plea agreement pending a presentence report. Fed.R.Crim.P. 11(e)(2); United States v. Skidmore, 998 F.2d 372, 374 (6th Cir.1993);" }, { "docid": "23014277", "title": "", "text": "the original Judgment shall remain unchanged.” II. We review de novo the district court’s denial of Hunter’s motion under 28 U.S.C. § 2255, but review for clear error any associated factual findings. See Nagi v. United States, 90 F.3d 130, 134 (6th Cir.1996). III. A. We first address the government’s contention that Hunter is precluded from bringing this appeal because he expressly waived his right to appeal his sentence in his plea agreement. On the one hand, it is clear that an appeal-waiver provision in a plea agreement is binding so long as it is made knowingly and voluntarily. See United States v. Ashe, 47 F.3d 770, 775-76 (6th Cir.1995); accord United States v. Bazzi, 94 F.3d 1025, 1028 (6th Cir.1996); United States v. Allison, 59 F.3d 43, 46 (6th Cir.1995). But, as with any other argument, the government can forfeit a waiver argument by failing to raise it in a timely fashion. See United States v. Canady, 126 F.3d 352, 359 (2d Cir.1997); Shukwit v. United States, 973 F.2d 903, 904 (11th Cir.1992); cf. Doe v. United States, 51 F.3d 693, 697-99 (7th Cir.1995). Hunter’s position is that because the government did not argue in the district court, during the section 2255 hearing, that he waived his “appeal” rights in the plea agreement, the government is precluded from doing so now. The government, however, takes the position that the issue whether Hunter waived his “appeal” rights was not implicated until Hunter filed this appeal, and so the government did not forfeit the argument by failing to raise it below. The government’s justification for not raising the waiver issue below is devoid of logic. Either the appeal-waiver provision encompasses the arguments made in Hunter’s 2255 motion, or it does not; it makes no sense to say that the provision did not preclude the 2255 motion itself, but would preclude an appeal of a possibly erroneous district court disposition of that motion. If the appeal-waiver provision forecloses a collateral attack just as much as it does a direct appeal, the collateral attack would be foreclosed at its inception, not just on" }, { "docid": "22994911", "title": "", "text": "conviction or sentence collaterally,” but reserved the right to appeal a punishment in excess of the statutory maximum and an upward departure from the most applicable sentencing guidelines range, because restitution fell under neither exception); United States v. Behrman, 235 F.3d 1049, 1052 (7th Cir.2000) (concluding that “[a]n agreement waiving appeal from ‘any sentence within the maximum provided by Title 18’ or similar language would foreclose [an appeal from the restitution order]”); but see United States v. Phillips, 174 F.3d 1074, 1075-76 (9th Cir.1999) (finding no waiver of right to appeal restitution where defendant “knowingly and voluntarily waive[d][his] right to appeal any sentence and restitution order imposed by the Court and the manner in which the Court determine[d][his] sentence and restitution order, so long as the sentence is up to a net offense level of 12 following an adjustment for acceptance of responsibility,” because the plea agreement contained no cap on restitution and the plea agreement was ambiguous as to the amount of damages the defendant might owe); United States v. Cupit, 169 F.3d 536, 539 (8th Cir.1999) (per curiam) (considering challenge to restitution order despite defendant’s agreement to “waive all rights to appeal whatever sentence is imposed,” expressly declining to “resolve the waiver of restitution issue in this case”); United States v. Ready, 82 F.3d 551, 559-60 (2d Cir.1996) (concluding that defendant did not waive his right to appeal a restitution order despite his “admittedly broad [ Jwaiver of right to appeal ‘whatever sentence is imposed’ ” because the terms of the plea agreement were ambiguous as to whether “sentence” included “restitution”). C. Cohen’s final claim is that the appeal waiver does not preclude his appeal from the restitution portion of his sentence because the amount of the restitution obligation exceeded the district court’s authority under the MVRA. Although we enforce appeal waivers that are knowing and voluntary, “even valid appeal waivers [do] not bar appellate review of every sentence.” Broughton-Jones, 71 F.3d at 1146 (internal quotation marks omitted). A “defendant who waives his right to appeal does not subject himself to being sentenced entirely at the whim of" }, { "docid": "22457223", "title": "", "text": "for a downward departure under § 5K1.1 or make any reference to such a motion. McGil-very raised no objection. At the sentencing hearing, defense counsel moved for a downward departure for aberrant behavior. After hearing argument by defense counsel and additional comments by McGilvery himself, the district court denied the motion to depart downward for aberrant behavior, stating: “I don’t see a basis for a downward departure at this time, and so I’m just going to sentence Mr. McGilvery at the bottom of the guidelines.” McGilvery was sentenced to twenty-one months’ imprisonment, the low end of the Guidelines range for offense level 16, Criminal History Category I (21-27 months). II. ANALYSIS We review the question of whether a defendant waived his right to appeal his sentence in a valid plea agreement de novo. United States v. Murdock, 398 F.3d 491, 496 (6th Cir. Feb.15, 2005) (citations omitted). “ ‘It is well settled that a defendant in a criminal case may waive any right, even a constitutional right, by means of a plea agreement.’ ” United States v. Calderon, 388 F.3d 197, 199 (6th Cir.2004) (quoting United States v. Fleming, 239 F.3d 761, 763-64 (6th Cir.2001) (internal quotation marks and citation omitted)). McGilvery agreed, pursuant to a plea agreement, to waive his right to appellate review if the district court imposed a sentence equal to or less than twenty-four months. Here, the district court sentenced McGilvery to twenty-one months’ imprisonment. During the plea colloquy, the district court complied with Federal Rule of Criminal Procedure ll(b)(l)(N), which requires that, before a guilty plea is accepted, the court must inform the defendant of, and determine that the defendant understands the terms of any appellate-waiver provision in the plea agreement. See Murdock, 398 F.3d at 495-96, 499 (using plain-error analysis in holding that the district court’s failure to inquire into the defendant’s understanding of the appellate-waiver provision of the plea agreement rendered the waiver unenforceable). Here, the district court entrusted the responsibility of summarizing the plea agreement to the government, and the government explained that McGilvery agreed to waive his appellate rights on the" }, { "docid": "22876976", "title": "", "text": "district court therefore did not clearly err by relying on the Report in determining the quantity of drugs attributable to Swan-berg. B. Tuimala’s waiver of his right to appeal Criminal defendants may waive their right to appeal as part of a plea agreement' so long as the waiver is made knowingly and voluntarily. United States v. Fleming, 239 F.3d 761, 763-64 (6th Cir.2001). In the present case, Tuimala waived his right to appeal his sentence in his plea agreement, but now contends that the waiver was not knowingly made because the district court erroneously informed him at the sentencing hearing that he had the right to appeal. “This Court reviews the question of whether a defendant waived his right to appeal his sentence in a valid plea agreement de novo.” United States v. Smith, 344 F.3d 479, 483 (6th Cir.2003). The plea agreement between Tuimala and the government states that “[t]he defendant and the United States knowingly and expressly waive all rights conferred by 18 U.S.C. § 3742 to appeal whatever sentence is imposed, including any issues that relate to the establishment of the guideline range....” At the plea colloquy, Tuimala answered “yes” when the district court asked if he “had an adequate opportunity to read and review this entire plea agreement with [his] attorney[.]” The prosecutor then read into the record various parts of the plea agreement. He also explained that the agreement “specifically states that there is no appeal — Mr. Tuimala waives the right to appeal the calculation of the guideline range and ... he can only appeal a departure upward or downward from the guideline range or a sentence that exceeds the maximum set by law.” Finally, the district court expressly found that “the plea is made knowingly and with full understanding of the rights that I’ve explained to the defendant.” At the subsequent sentencing proceeding, however, the district court erroneously informed Tuimala that “[y]ou have a right of appeal from the sentence in this matter.” Tuimala contends that, as a result of the district court’s incorrect statement at sentencing, he did not knowingly give up" }, { "docid": "23358925", "title": "", "text": "provided for a three-level reduction for acceptance of responsibility pursuant to § 3E1.1 of the Guidelines. As a result of the above stipulations, the parties agreed to an offense level of 21. Based on the information then available, Pepshi was in Criminal History Category IV, which produced a stipulated sentencing range of 57 to 71 months. The agreement also provided that Pepshi’s federal sentence was to run concurrent with his state sentence in New Jersey in connection with a 1992 burglary conviction. Finally, and most importantly for purposes of this appeal, the plea agreement states in relevant part: It is further agreed (i) that the defendant will neither appeal, nor otherwise litigate under [28 U.S.C. § 2255] any sentence within or below the stipulated Guidelines ranges set forth above and (ii) that the Government will not appeal any sentence within or above the stipulated Guidelines ranges. This provision is binding on the parties even if the Court employs a Guidelines analysis different from that stipulated to herein. (emphasis added). In an apparent effort to circumvent the plain language of this waiver provision, Pepshi now contends that his sentence should be vacated (1) because he received ineffective assistance of counsel at sentencing given his attorney’s failure to seek enforcement of the agreement to avoid the use of multiple grouping analysis in calculating Pepshi’s guideline range, and (2) because the district court erred in holding that only 18 months of Pepshi’s incarceration would run concurrently with his New Jersey state sentence. The government responds that the defendant is baried from appealing his sentence because he knowingly and voluntarily waived his right to appeal a sentence within the stipulated Guidelines range of 57 to 71 months. We agree. II. It is by now well-settled that a defendant’s knowing and voluntary waiver of his right to appeal a sentence within an agreed upon guideline range is enforceable. See United States v. Chen, 127 F.3d 286, 289-90 (2d Cir.1997) (noting that “[t]he right to appeal may be waived as part of a plea agreement,” but declining to enforce a waiver that was not knowing and" }, { "docid": "22876975", "title": "", "text": "she would purchase/receive from Mr. Tuimala). Ms. Sanderson testified [that] Mr. Swan-berg received 75 percent of the cocaine she purchased from Mr. Tuimala. Taking into account the conservative quantity of cocaine attributed to Ms. Sander-son, receipt of this percentage of the total amount distributed or intended for distribution provides a culpability attributable to Mr. Swanberg of 18.75 ounces (531.5 grams). Although Swanberg objected to the Presentence Report’s calculation of the drug quantity attributable to him, he produced no contradictory evidence at the hearing. This court has held that “[i]n most instances, a sentencing court may rely on undisputed facts that are recited in a presentence report to conclude that the defendant committed acts offered as relevant conduct.” United States v. Shafer, 199 F.3d 826, 830 n. 1 (6th Cir.1999); see also Fed.R.Crim.P. 32(i)(3) (“At sentencing, the court ... may accept any undisputed portion of the presentence report as a finding of fact....v). In the present case, the facts set forth in the Presentence Report were consistent with the other evidence presented in Swanberg’s ease. The district court therefore did not clearly err by relying on the Report in determining the quantity of drugs attributable to Swan-berg. B. Tuimala’s waiver of his right to appeal Criminal defendants may waive their right to appeal as part of a plea agreement' so long as the waiver is made knowingly and voluntarily. United States v. Fleming, 239 F.3d 761, 763-64 (6th Cir.2001). In the present case, Tuimala waived his right to appeal his sentence in his plea agreement, but now contends that the waiver was not knowingly made because the district court erroneously informed him at the sentencing hearing that he had the right to appeal. “This Court reviews the question of whether a defendant waived his right to appeal his sentence in a valid plea agreement de novo.” United States v. Smith, 344 F.3d 479, 483 (6th Cir.2003). The plea agreement between Tuimala and the government states that “[t]he defendant and the United States knowingly and expressly waive all rights conferred by 18 U.S.C. § 3742 to appeal whatever sentence is imposed, including" }, { "docid": "8585", "title": "", "text": "A threshold question is whether Pearson waived his right to appeal the restitution order. A defendant’s knowing and voluntary waiver of his right to appeal a conviction and sentence within an agreed upon guideline range is enforceable. See United States v. Hernandez, 242 F.3d 110, 113 (2d Cir.2001) (per curiam). “Waivers of appellate rights ... are to be applied narrowly and construed strictly against the Government.” Id. (internal quotation marks omitted). However, “[i]n no circumstance ... may a defendant, who has secured the benefits of a plea agreement and knowingly and voluntarily waived the right to appeal a certain sentence, then appeal the merits of a sentence conforming to the agreement.” United States v. Salcido-Contreras, 990 F.2d 51, 53 (2d Cir. 1993) (per curiam). In this case, Pearson waived his right to appeal “his conviction and any sentence incorporating the agreed disposition specified herein.” Plea Agreement ¶ 11. According to the parties’ stipulation, the “agreed disposition” included, inter alia, an order of restitution “as specified above,” id. ¶3, to wit, an order to pay restitution “in full,” id. ¶ 1(c). Such an agreement plainly contemplates a future determination of the amount necessary to provide “full” restitution to defendant’s victims. In these circumstances, we conclude that Pearson has unambiguously waived his right to appeal a district court’s award of full restitution, but he has not unambiguously waived appeal of possible errors in the determination of what amount constitutes full restitution. In United States v. Ready, we considered the following waiver language: “[The defendant] and the United States knowingly and expressly waive all rights conferred by 18 U.S.C. Section 3742 to appeal whatever sentence is imposed, including any issues that relate to the establishment of the guideline range, reserving only the right to appeal from a sentence resulting from an adjusted base offense level of greater than twenty-three.” 82 F.3d 551, 560 (2d Cir.1996) (alteration in original). Elsewhere the agreement provided: “Th[e] Court may also order your client to make restitution pursuant to 18 U.S.C. Sections 8663 and 3661.” Id. at 559 (alteration in original). Noting this latter provision of the agreement," }, { "docid": "23014276", "title": "", "text": "addressed him directly during his initial sentencing or that he has been represented by counsel during both sentencing hearings. Therefore, there is no question that Hunter entered his guilty plea before this Court knowingly and intelligently. 6. Considering the evidence presented to this Court, it is reasonably foreseeable that Hunter is accountable for 35 grams of cocaine base as his part in the conspiracy. As such, the Base Offense Level of 29 set forth in his plea agreement with the government shall remain under the provisions of the Guidelines. In addition, the government recommended a two level reduction for Acceptance of Responsibility pursuant to USSG § 3E1.1, bringing his Total Offense Level down to 27. With a Criminal History Category of III, Hunter’s range of imprisonment is 87-108 months. 7.Based upon these findings of fact and conclusions of law, the Court adopts the Guideline calculations set forth in the Pre-Sentence Report. Accordingly, Hunter’s 87 month term of imprisonment shall remain in effect. (Citations and footnotes omitted.) In October 1996, the court issued an order “that the original Judgment shall remain unchanged.” II. We review de novo the district court’s denial of Hunter’s motion under 28 U.S.C. § 2255, but review for clear error any associated factual findings. See Nagi v. United States, 90 F.3d 130, 134 (6th Cir.1996). III. A. We first address the government’s contention that Hunter is precluded from bringing this appeal because he expressly waived his right to appeal his sentence in his plea agreement. On the one hand, it is clear that an appeal-waiver provision in a plea agreement is binding so long as it is made knowingly and voluntarily. See United States v. Ashe, 47 F.3d 770, 775-76 (6th Cir.1995); accord United States v. Bazzi, 94 F.3d 1025, 1028 (6th Cir.1996); United States v. Allison, 59 F.3d 43, 46 (6th Cir.1995). But, as with any other argument, the government can forfeit a waiver argument by failing to raise it in a timely fashion. See United States v. Canady, 126 F.3d 352, 359 (2d Cir.1997); Shukwit v. United States, 973 F.2d 903, 904 (11th Cir.1992); cf." }, { "docid": "22876977", "title": "", "text": "any issues that relate to the establishment of the guideline range....” At the plea colloquy, Tuimala answered “yes” when the district court asked if he “had an adequate opportunity to read and review this entire plea agreement with [his] attorney[.]” The prosecutor then read into the record various parts of the plea agreement. He also explained that the agreement “specifically states that there is no appeal — Mr. Tuimala waives the right to appeal the calculation of the guideline range and ... he can only appeal a departure upward or downward from the guideline range or a sentence that exceeds the maximum set by law.” Finally, the district court expressly found that “the plea is made knowingly and with full understanding of the rights that I’ve explained to the defendant.” At the subsequent sentencing proceeding, however, the district court erroneously informed Tuimala that “[y]ou have a right of appeal from the sentence in this matter.” Tuimala contends that, as a result of the district court’s incorrect statement at sentencing, he did not knowingly give up his right to appeal. This court faced a nearly identical situation in United States v. Fleming, 239 F.3d 761 (6th Cir.2001), where the defendant waived his right to appeal his sentence as part of a written plea agreement. At the plea colloquy, the district court orally informed the defendant that “the Government has the right to appeal any sentence that I might impose. You, on the other hand, have given up your right to appeal any sentence that I might impose, even though you don’t know what the sentence is going to be.” Id. at 763. The court also found “that Fleming’s guilty pleas had been knowingly and voluntarily entered.” Id. At the subsequent sentencing proceeding, however, the district court erroneously informed the defendant that “you do have the right to appeal this matter to the United States Court of Appeals for the 6th Circuit.” Id. On appeal, this court held that “[t]he record here clearly demonstrates that Fleming understood the waiver contained in the plea agreement[,]” id. at 764, and that the district court’s" }, { "docid": "23390909", "title": "", "text": "government could request a downward departure for substantial assistance under U.S.S.G. § 5K1.1). The agreed-upon range was 240 months. The agreement also contained a waiver of Mr. Calderon’s appellate rights: “If the court imposes a sentence equal to or less than the [agreed-upon] maximum sentence ..., defendant waives any right he may have to appeal his conviction or sentence, including any right under 18 U.S.C. § 3742 to appeal on the grounds that the sentence was imposed as a result of an incorrect application of the sentencing guidelines.” At the plea hearing, Mr. Calderon and the government stipulated that Calderon would be permitted to request a downward departure from the guidelines sentence range on the basis of “medical and/or psychological factors.” Mr. Calderon subsequently moved for a downward departure, and the district court denied the motion. The court granted the government’s § 5K1.1 motion, however, and sentenced Calderon to 120 months of imprisonment. Mr. Estrada’s plea agreement likewise stated that he and the government had agreed on the appropriate sentence range. A hand-written modification, however, provided that Estrada reserved the right to seek a downward adjustment of his offense level on the ground that he was a minor participant in the conspiracy. The sentence range that was agreed upon (subject to Mr. Estrada’s reservation of rights) was 168 to 210 months; the parties further agreed that Estrada’s sentence should not exceed the midpoint of that range, 189 months. Mr. Estrada’s agreement contained the same waiver of appellate rights that appeared in Mr. Calderon’s agreement. At sentencing, the district court determined that Mr. Estrada was not a minor participant in the conspiracy. The court then sentenced Estrada to 168 months of imprisonment, the low end of the guidelines range. Each defendant filed a timely appeal of his sentence. II “It is well settled that a defendant in a criminal case may waive any right, even a constitutional right, by means of a plea agreement.” United States v. Fleming, 239 F.3d 761, 763-64 (6th Cir.2001) (internal quotation marks omitted). In the case at bar, we believe, each defendant waived the appeal rights" }, { "docid": "22298859", "title": "", "text": "RIGHT TO APPEAL (Case No. 01-1124) This Court reviews the question of whether a defendant waived his right to appeal his sentence in a valid plea agreement de novo. United States v. Stubbs, 279 F.3d 402, 411 (6th Cir.2002). It is well settled that a defendant in a criminal case may waive his right to appeal his sentence in a valid plea agreement. See United States v. Fleming, 239 F.3d 761, 763-64 (6th Cir.2001); Stubbs, 279 F.3d at 410. For a plea agreement to be constitutionally valid, a defendant must have entered into the agreement knowingly and voluntarily. See Fleming, 239 F.3d at 764. “When a [djefendant waives his right to appeal his sentence in a valid plea agreement, this Court is bound by that agreement and will not review the sentence except in limited circumstances.” Stubbs, 279 F.3d at 410. In the plea agreement, Defendant agreed to “pay restitution for all losses resulting from his relevant offense conduct,” and to “knowingly and voluntarily give[ ] up any right he may have to appeal any sentence which is within the parameters of this agreement^]” (J.A. at 15.) The government argues that the above-quoted language indicates that Defendant knowingly and voluntarily waived his right to appeal his sentence in any respect. Defendant, on the other hand, argues that he did not knowingly and voluntarily waive his right to appeal the manner in which the district court determined the amount of restitution. The plea agreement is ambiguous as to the amount and manner of determining restitution. The plea agreement merely provides that the district court can order Defendant to pay restitution for all losses resulting from his relevant offense conduct. The plea agreement, however, does not provide the manner in which the district court can determine the amount of loss. Because Defendant argues on appeal that the district court erred in determining that the SSA sustained a loss in the amount of $61,744.80, the manner in which the district court determined the amount of loss is the primary issue on appeal, which \"falls outside the scope of the plea agreement. We therefore" }, { "docid": "22604808", "title": "", "text": "a pro se motion on March 11, 2008, seeking a reduction in his sentence based on Amendment 706. The court granted Leniear’s subsequent request for appointment of counsel. After holding a hearing on May 28, 2008, the district court denied the resentencing motion. The court concluded that it lacked jurisdiction to modify Leniear’s sentence because, in light of the grouping rules under U.S.S.G. § 3D1.4, Amendment 706 did not lower the applicable guideline range. Leniear timely appealed. II The government contends that the instant appeal is barred by the waiver contained in its plea agreement with Leniear: The defendant also understands and agrees that as consideration for the government’s commitments under this plea agreement, and if the court accepts this plea agreement and imposes a sentence no greater than the maximum statutory penalties available for the offense of conviction, including any forfeiture under this plea agreement, he will knowingly and voluntarily waive his right, contained in 18 U.S.C. § 3742, to appeal the sentence — including all conditions of supervised release and forfeiture — imposed. We consider de novo whether, pursuant to a plea agreement, a defendant waived his right to appeal. United States v. Speelman, 431 F.3d 1226, 1229 (9th Cir.2005). Specifically, “[a] defendant’s waiver of his appellate rights is enforceable if (1) the language of the waiver encompasses his right to appeal on the grounds raised, and (2) the waiver is knowingly and voluntarily made.” Id. (quoting United States v. Jeronimo, 398 F.3d 1149, 1153 (9th Cir.2005)). As Leniear does not argue on appeal that the waiver was anything other than knowing and voluntary, we consider only whether the instant appeal is encompassed within the waiver’s scope. Although Leniear appeals pursuant to 18 U.S.C. § 3742, his appeal is not barred by the above waiver. “The scope of a knowing and voluntary waiver is demonstrated by the express language of the plea agreement.” United States v. Anglin, 215 F.3d 1064, 1066 (9th Cir.2000). “Plea agreements are generally construed according to the principles of contract law, and the government, as drafter, must be held to an agreement’s literal terms.”" }, { "docid": "22876978", "title": "", "text": "his right to appeal. This court faced a nearly identical situation in United States v. Fleming, 239 F.3d 761 (6th Cir.2001), where the defendant waived his right to appeal his sentence as part of a written plea agreement. At the plea colloquy, the district court orally informed the defendant that “the Government has the right to appeal any sentence that I might impose. You, on the other hand, have given up your right to appeal any sentence that I might impose, even though you don’t know what the sentence is going to be.” Id. at 763. The court also found “that Fleming’s guilty pleas had been knowingly and voluntarily entered.” Id. At the subsequent sentencing proceeding, however, the district court erroneously informed the defendant that “you do have the right to appeal this matter to the United States Court of Appeals for the 6th Circuit.” Id. On appeal, this court held that “[t]he record here clearly demonstrates that Fleming understood the waiver contained in the plea agreement[,]” id. at 764, and that the district court’s subsequent statement to Fleming did not restore his right to appeal. Id. at 765. This court therefore dismissed the appeal. Id. at 765-66. As in Fleming, the waiver provision in the present case was contained in a written plea agreement, Tuimala was informed in open court that he had given up his right to appeal whatever sentence he received, and the district court expressly found that Tuimala made the waiver knowingly. Tuimala also “had an adequate opportunity to read and review this entire plea agreement with [his] attorney[,]” a factor not mentioned in Fleming, but which also suggests that Tuimala knowingly waived his appellate rights. We therefore conclude that Tuimala knowingly waived the right to appeal whatever sentence he received, despite the district court’s incorrect statement to the contrary at Tuimala’s sentencing hearing. C. The government’s alleged breach of its plea agreement with Tuimala 1. Standard of review Tuimala’s alternative position is that even if he would have normally been barred from appealing due to his waiver, he is not so bound in the present" }, { "docid": "23025355", "title": "", "text": "to appeal. United States v. Shimoda, 334 F.3d 846, 848 (9th Cir.2003). “Generally, courts will enforce a defendant’s waiver of his right to appeal if (1) the language of the waiver encompasses the defendant’s right to appeal on the grounds claimed on appeal, and (2) the waiver is ‘knowingly and voluntarily made.’ ” United States v. Martinez, 143 F.3d 1266, 1270-71 (9th Cir.1998) (citations and quotation omitted). “Pursuant to the first requirement, we determine whether the agreement, by its terms, waives the right to appeal.” United States v. Nunez, 223 F.3d 956, 958 (9th Cir.2000). In the plea agreement Smith formed with the government, Smith waived “any right to appeal or collaterally attack the conviction and sentence,” unless the “sentence [exceeded] the high end of the guideline range based on an adjusted offense level of 13.” The district court sentenced Smith, based on “a total adjusted offense level of 13” and a criminal history category of IV, “to custody for a period of 24 months.” Because the guideline range for an offense level of 13 and a criminal history category of IV is 24 to 30 months, the district court’s sentence fell within the range for which Smith waived his right to appeal. “The second requirement for a valid waiver is that the defendant knowingly and voluntarily consent to the agreement’s express terms.” Id.; (citing Fed.R.Crim.P. 11(c) & (d)). The record clearly shows that Smith’s waiver of his appellate rights was knowing and voluntary. Therefore, our “inquiry into the waiver’s validity is at an end; the valid waiver bars [Smith’s] ... challenges to his ... sentence and we must dismiss the appeal.” United States v. Nguyen, 235 F.3d 1179, 1182 (9th Cir.2000) (citing United States v. Michlin, 34 F.3d 896, 898 (9th Cir.1994)). III. CONCLUSION For the foregoing reasons, Smith’s conviction is AFFIRMED and the appeal to his sentence is DISMISSED. . Upon reconsideration, the district court determined that the evidence of counterfeiting activity found within Smith's vehicle was seized pursuant to a valid search incident to arrest. Alternatively, the district court determined that the search and consequent seizure of" }, { "docid": "22168651", "title": "", "text": "complains that Officer Stocks must not have been motivated by safety concerns, because Caruthers could have had another weapon on his person yet Officer Stocks did not frisk Caruthers before placing him in the cruiser. We acknowledge that this may have constituted bad policing, as it could have resulted in an armed individual being left unsupervised in the vehicle, but an officer's motivations are not relevant to the objective reasonableness standard of the Fourth Amendment. In any event, even with this oversight, detaining Caruthers in the patrol car had the safety benefit mentioned in the text. Finally, the argument that the Fourth Amendment is violated when an officer's actions were not intrusive enough (i.e., he should have frisked Caruthers, too) is curious, to say the least. . Caruthers does not deny that his agreement was knowing, voluntary, and intelligent. See United States v. Fleming, 239 F.3d 761, 763-64 (6th Cir.2001); United States v. Ashe, 47 F.3d 770, 775-76 (6th Cir.), cert. denied, 516 U.S. 859, 116 S.Ct. 166, 133 L.Ed.2d 108 (1995). . This development (or lack thereof) appears to be an artifact of the language used in many of the appellate waivers in this circuit, which explicitly permit appeals of sentences exceeding the statutory maximum. See, e.g., United States v. Luebbert, 411 F.3d 602, 603 (6th Cir.2005) (quoting the plea agreement, which provided that \"[t]he defendant additionally waives the right to appeal his sentence on any ground ... other than any sentence imposed in excess of the statutory maximum ...(emphasis added) (first omission in original)), cert. denied, - U.S. -, 126 S.Ct. 1178, 163 L.Ed.2d 1136 (2006). . The circuits have been similarly uniform in accepting the principle that defendants who have otherwise waived their appellate rights may yet attack sentences based on constitutionally impermissible criteria like race. See, e.g., Bownes, 405 F.3d at 637. The soundness of this rule is incontrovertible, and the fact that it is often paired with the doctrine we consider today lends support to the latter. To paraphrase a familiar adage from another context: \"a [doctrine] is known by the company it keeps.” Gustafson" } ]

[ { "docid": "23493896", "title": "", "text": "false statements that Vilar knowingly made, and it was his mailing in support of this scheme that constituted the essential element of the mail fraud. It was, therefore, entirely unnecessary for the government also to prove that the account statement itself was false, and it has long been held that it is no constructive amendment “to drop from an indictment those allegations that are unnecessary to an offense that is clearly contained within it....” Miller, 471 U.S. at 144, 105 S.Ct. 1811; see also United States v. Rosenthal, 9 F.3d 1016, 1023 (2d Cir.1993) (“While it is the Government’s burden to prove the essential elements of a charged crime, allegations in an indictment that go beyond the essential elements which are required for conviction do not increase the Government’s burden.”). Accordingly, we do not understand the jury instructions as “supporting] a theory ... that was distinctly different from the one charged,” nor do we think that Vilar would have been surprised by the introduction “of different and unrelated proof adduced at trial.” D'Amelio, 683 F.3d at 421. Indeed, the mailing specified in the indictment was the very mailing for which Vilar was convicted. In other words, the indictment informed the defendant as to the specific time and place of the criminal conduct for which he could be held liable, such that the “core of criminality” was clear. See, e.g., United States v. Danielson, 199 F.3d 666, 670 (2d Cir.1999); United States v. Knuckles, 581 F.2d 305, 312 (2d Cir.1978). For these reasons, the indictment “fairly inform[ed the] defendant of the charge against which he [had to] defend,” and was not constructively amended. United States v. Resendiz-Ponce, 549 U.S. 102, 108, 127 S.Ct. 782, 166 L.Ed.2d 591 (2007). V. Sufficiency of the Evidence The defendants advance a legion of challenges to the sufficiency of the evidence marshaled against them at trial. Although we review sufficiency challenges de novo, United States v. Desposito, 704 F.3d 221, 226 (2d Cir.2013), we “must view the evidence in the light most favorable to the government, crediting every inference that could have been drawn in the" } ]

[ { "docid": "20511183", "title": "", "text": "mistrial for abuse of discretion. Frederick v. Kirby Tankships, Inc., 205 F.3d 1277, 1285 (11th Cir.2000). We find no such abuse. Earnest argues that a mistrial was “manifestly necessary,” because the mutually antagonistic defenses of Earl and Earnest made it impossible for Earnest to receive a fair trial. But “co-defendants do not suffer prejudice simply because one co-defendant’s defense directly inculpates another, or it is logically impossible for a jury to believe both co-defendants’ defenses.” United States v. Blankenship, 382 F.3d 1110, 1125 (11th Cir.2004). Furthermore, the specific comments complained of by Earnest were isolated and served mainly as commentary. on the government’s characterization of Earnest, rather than as an attempt by Earl to independently inculpate Earnest. We find no abuse of discretion in the district court’s refusal to grant Earnest a mistrial based on these statements. See id. at 1122, 1125-26 (holding that there was neither prejudice nor a need for a mistrial despite repeated remarks by counsel for co-defendant directly targeting appellants). 3. Sufficiency of Evidence Regarding Fraudulent Claims Conspiracy Earnest argues that the evidence was insufficient to convict him of conspiracy to submit fraudulent claims to the government. Earnest argues that there was no evidence that he personally filed any fraudulent tax returns; rather, the only evidence linking him to the conspiracy was his receipt of the conspiracy’s proceeds. We review challenges to the sufficiency of the evidence to support a conviction de novo, viewing the evidence and all reasonable inferences derived therefrom in the light most favorable to the government. United States v. To, 144 F.3d 737, 743 (11th Cir.1998). 18 U.S.C. § 286 provides that: Whoever enters into any agreement, combination, or conspiracy to defraud the United States, or any department or agency thereof, by obtaining or aiding to obtain the payment or allowance of any false, fictitious or fraudulent claim, shall be fined under this title or imprisoned not more than ten years, or both. To prove the conspiracy element, the government was required to show “the existence of an agreement to achieve an unlawful objective, the defendant’s knowing and voluntary participation in the" }, { "docid": "16706246", "title": "", "text": "there was insufficient evidence to sustain his convictions for conspiring to defraud the IRS or aiding in the filing of false tax returns. We review challenges to the sufficiency of the evidence at a bench trial under the same demanding standard applied to a jury trial. United States v. Doody, 600 F.3d 752, 754 (7th Cir.2010). Thus, we will overturn the verdict only if we conclude, after viewing the evidence in the light most favorable to the prosecution, that no rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Id. We neither reweigh the evidence nor assess witness credibility, and may uphold even a verdict based entirely on circumstantial evidence. United States v. Kruse, 606 F.3d 404, 408 (7th Cir.2010). To prove that Wasson violated 18 U.S.C. § 371 by conspiring to defraud the IRS, the government must demonstrate “(1) an agreement to accomplish an illegal objective against the United States; (2) one or more overt acts in furtherance of the illegal purpose; and (3) the intent to commit the substantive offense, i.e., to defraud the United States.” United States v. Furkin, 119 F.3d 1276, 1279 (7th Cir.1997) (citation and internal quotations omitted). The government’s obligation to prove “intent to defraud” refers to evidence showing the defendant knew of his tax liability, not that he knew “of the criminality of the objective.” Id. (quoting United States v. Cyprian, 23 F.3d 1189, 1201 (7th Cir.1994)). As relevant here, a conviction for aiding in the filing of a false tax return under 26 U.S.C. § 7206(2) requires proof that the defendant willfully assisted in the preparation of a false or fraudulent tax return. See United States v. Powell, 576 F.3d 482, 495 (7th Cir.2009). Wasson continues to press his claim that he sincerely believed in the legality of the Aegis system, and thus the government faded to prove that he willfully violated the tax laws. To prove willfulness in a criminal tax case, the government must show that “the law imposed a duty on the defendant, that the defendant knew of this duty, and that he voluntarily" }, { "docid": "22457026", "title": "", "text": "Cir.1965). Provided a defendant has adequate time to make all legally tenable arguments supported by the facts of the ease, the district court will not be reversed for limiting closing arguments. United States v. Gaines, 690 F.2d 849, 858 (11th Cir.1982). Munoz’s attorney did not identify any specific issues that he had failed to address in his closing argument. The district court reviewed the transcript of his closing argument and found that he had covered all of the obvious arguments on his client’s behalf. The court then decided that granting his request would give Munoz an unfair advantage because the government had already completed its closing arguments. We hold that the district court did not abuse its discretion in denying Munoz’s request to reopen closing arguments. D. McGregor’s Remaining Claims. 1. Sufficiency of the Evidence. McGregor argues that the evidence was insufficient to establish that he knowingly made false statements in furtherance of the fraudulent scheme. There is sufficient evidence to support a conviction if, viewing the evidence in the light most favorable to the prosecution, a rational jury could have found the elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). When sufficiency of the evidence is preserved by making a motion for acquittal after the close of the evidence, we review the district court’s denial of the motion de novo. United States v. Tucker, 133 F.3d 1208, 1214 (9th Cir.1998). Under 18 U.S.C. § 1341 the elements of mail fraud are: (1) proof of a scheme or artifice to defraud, and (2) using or causing the use of the mails in order to further the fraudulent scheme. See United States v. Serang, 156 F.3d 910, 914 (9th Cir.1998). The government must demonstrate specific intent to defraud but intent may be inferred from the defendant’s statements and conduct. See United States v. Beecroft, 608 F.2d 753, 757 (9th Cir.1979). The government points to four categories of evidence that demonstrate McGregor knew the scheme was fraudulent at the time of the December 15, 1991, mailings. First, McGregor" }, { "docid": "23109639", "title": "", "text": "rescission of the contract based on failure to disclose facts in the insurance application; Cigna did not assert that DeGeorge made a fraudulent claim for the loss of the Principe. See Cigna Prop. & Cas. Ins. v. Polaris Pictures, 159 F.3d 412, 419-20 (9th Cir.1998). DeGeorge’s argument is misguided. The fact that the Libovich story was not the basis upon which to rescind the contract does not mean that the Libovich story was not relevant to the issue of rescission or that it had no tendency to influence the decision-maker in the civil trial. Instead, the implausibility of the Libovich story was relevant to show that DeGeorge had ulterior motives from the outset of his relationship with Cigna, including his intent to scuttle the yacht and to deliberately conceal his ownership interest and prior losses in applying for insurance. In fact, we observe that DeGeorge himself offered the Libovich story as part of his defense, thus indicating his belief in the story’s materiality. Viewing the evidence in the light most favorable to the government, we conclude that sufficient evidence existed to support the jury’s verdict that the allegedly false statements were material to the civil trial in which they were made. D. Polaris Pictures filed a summary judgment motion in the civil case on February 15, 1996, and attached a copy of a proof of loss that recited the Libovich story and had been sent by Ebeling (on be half of Polaris) to Cigna three years earlier. Count Four of DeGeorge’s indictment alleged that he had caused the mailing of this attached proof of loss in furtherance of his scheme to defraud Cigna. DeGeorge argues that the attachment of the, proof of loss to the summary judgment motion is insufficient to sustain a mail fraud conviction because he did not actually cause it to be mailed and, in any event, it was, not in furtherance of his allegedly fraudulent scheme. We conclude that the evidence adduced at. trial was sufficient to establish the two general elements of mail fraud: first, that DeGeorge devised or intended to devise a scheme to" }, { "docid": "4848501", "title": "", "text": "claims there is no such evidence and therefore he should have been acquitted on the Equitable Life mail fraud counts. We review de novo a district court’s decision to deny a motion for judgment of acquittal, viewing the evidence in the light most favorable to the government. United States v. Schluneger, 184 F.3d 1154, 1158 (10th Cir.1999), cert. denied, 528 U.S. 1080, 120 S.Ct. 800, 145 L.Ed.2d 674 (2000). In the course of this review we determine “whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (quotation omitted). Based upon our review of the record, we conclude the government established that Mr. Haber’s false representations to Equitable Life about his occupation and income were directly connected to his scheme to defraud the Visions International investors. Mr. Haber used the investors’ money to misrepresent to Equitable Life that he owned a large window and door business in Israel from which he earned an annual income of $120,000. He could not have obtained the policy, or the disability benefits he received thereunder, had he not fraudulently obtained money from the Chafis and Ms. Corwin. Moreover, when Equitable Life began to investigate the disability claim after his injury, Mr. Haber used the money from the Chafis and Ms. Corwin, which he had deposited into his personal savings and checking accounts, to create the false impression that his business provided him a significant and regular flow of income. There is also evidence that Mr. Haber promised Ms. Chafi he would pay back her Visions International investment from the proceeds of his disability insurance settlement. We conclude the district court did not err in denying Mr. Haber’s motion for judgment of acquittal on the mail fraud counts related to Equitable Life. B. Special Unanimity Jury Instructions We have held that 18 U.S.C. § 1341 identifies two interrelated but separate offenses: (1) engaging in a scheme or artifice to defraud, or (2) engaging in a scheme to obtain money or property by false or fraudulent pretenses. United States v. Cronic, 900 F.2d 1511, 1513 (10th" }, { "docid": "6861511", "title": "", "text": "16, 1998, we denied this petition as untimely. See United States v. Bouyea, No. 97-1169 (2d Cir. July 16, 1998) (order denying rehearing and withdrawing summary order). Nonetheless, Bouyea pointed out certain matters that led us to withdraw our previously entered summary order. See id. We now issue this published opinion in its stead. DISCUSSION In considering Bouyea’s challenge to the sufficiency of the evidence supporting his wire fraud conviction, we review the evidence “in the light most favorable to the Government.” United States v. Amato, 15 F.3d 230, 235 (2d Cir.1994). All inferences from the evidence and issues of credibility must be resolved in favor of the verdict. See United States v. Aulicino, 44 F.3d 1102, 1114 (2d Cir.1995); Amato, 15 F.3d at 235. Bouyea bears “a heavy burden.” United States v. Matthews, 20 F.3d 538, 548 (2d Cir.1994). First, Bouyea argues that there is insufficient evidence to prove “intent” and “materiality.” In order to convict Bouyea of wire fraud, the government was obligated to prove that he devised a scheme “to defraud, or for obtaining money or property by means of false or fraudulent pretenses, or promises ...,” and that he used interstate wires or communications to execute the scheme. 18 U.S.C. § 1343. In addition, the government had to prove that Bouyea had a fraudulent intent. United States v. D'Amato, 39 F.3d 1249, 1257 (2d Cir.1994); United States v. Starr, 816 F.2d 94, 98 (2d Cir.1987). The false representation or failure to disclose must relate to material information. See United States v. Mittelstaedt, 31 F.3d 1208, 1216-17 (2d Cir.1994). The government presented more than sufficient evidence for a rational juror to conclude that Bouyea engaged in a scheme to defraud Center Capital; that Bouyea made misstatements in furtherance of that scheme; that he knew of the misstatements and intentionally made them in order to get a loan from Center Capital; that those misstatements were material; and that Bouyea used the interstate wires (that is, a facsimile machine) in order to effectuate his scheme. Accordingly, we decline to reverse the wire fraud conviction on this ground. The second" }, { "docid": "23016212", "title": "", "text": "a pool used to treat multiple individuals, with no window access, no aide present, and no physical therapist available to supervise the patients — would not be billable as a Hubbard Tank or as pool therapy. We also find that the evidence supported the jury’s finding that Lopez possessed the requisite intent to defraud. Lopez was active in selecting billing codes, he adjusted the billing codes submitted by other employees, and at least on one occasion, he received and annotated billing statements from insurance companies. When viewed in the light most favorable to the verdict, we find this evidence sufficient to support the conclusion that Lopez intended to submit bills containing material misstatements to the insurance companies for reimbursement. After reviewing the record, therefore, we find that the evidence is sufficient to establish both that billing for a Hubbard Tank was a material misstatement and that Lopez possessed the requisite intent to support his conviction for mail fraud. 2. Goldberg: Mail Fraud Goldberg also challenges the sufficiency of the evidence to support his convictions. Goldberg was convicted on one count of conspiracy to commit mail fraud and one count of conspiracy to commit money laundering in violation of 18 U.S.C. § 1956. Goldberg makes the related arguments that the evidence failed to show that he possessed the requisite intent to commit mail fraud, and that since the offense of money laundering requires knowledge that the laundered funds are the proceeds of unlawful activity, he can therefore be found guilty neither of mail fraud nor money laundering. In addition, Goldberg maintains that the Government failed to' prove that the funds transferred to the Cayman Islands were the proceeds of unlawful activity. A section 371 conspiracy comprises the following elements: (1) an agreement between the defendant and a co-conspirator to violate a law of the United States; (2) an overt act by one conspirator in furtherance of the conspiracy; and (3) the specific intent to further an unlawful objective of the conspiracy. United States v. Sharpe, 193 F.3d 852, 863 (5th Cir.1999). The requirement of an agree ment is the central element" }, { "docid": "4848500", "title": "", "text": "are three components to a violation of the mail fraud statute: “(1) the devising of a scheme or artifice either (a) to defraud or (b) for obtaining money by means of false or fraudulent pretenses, representations, or promises, (2) the specific intent to defraud, and (3) the use of the United States mails to execute the scheme.” United States v. Kennedy, 64 F.3d 1465, 1475 (10th Cir.1995); 18 U.S.C. § 1341. The indictment charged that Mr. Haber’s actions with respect to Equitable Life and his false statements to the Chafis and Ms. Corwin were part of one overall scheme to defraud and obtain money by false pretenses. Mr. Haber contends the misrepresentations on his disability insurance application and his actions with respect to Equitable Life were unrelated to his efforts to obtain money from the Visions International investors. He argues proof of a “common scheme” to defraud the investors would require evidence that he planned in advance to suffer an injury and to use the resulting disability benefits to attract or reassure the investors. He claims there is no such evidence and therefore he should have been acquitted on the Equitable Life mail fraud counts. We review de novo a district court’s decision to deny a motion for judgment of acquittal, viewing the evidence in the light most favorable to the government. United States v. Schluneger, 184 F.3d 1154, 1158 (10th Cir.1999), cert. denied, 528 U.S. 1080, 120 S.Ct. 800, 145 L.Ed.2d 674 (2000). In the course of this review we determine “whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (quotation omitted). Based upon our review of the record, we conclude the government established that Mr. Haber’s false representations to Equitable Life about his occupation and income were directly connected to his scheme to defraud the Visions International investors. Mr. Haber used the investors’ money to misrepresent to Equitable Life that he owned a large window and door business in Israel from which he earned an annual income of $120,000. He could not have obtained the policy, or" }, { "docid": "2991554", "title": "", "text": "evidence was insufficient for the jury to find beyond a reasonable doubt that he misstated his name and SSN with an “intent to deceive.” According to Manning, no credible evidence was presented sufficient to allow a jury to find beyond a reasonable doubt that he actually knew his SSN. Indeed, he contends that his ignorance of his SSN was demonstrated when he misstated the number upon filing for a replacement card with the Social Security Administration. It is inconceivable, Manning says, that he would have intentionally misstated his SSN on such a document. He contends that this fact alone should, as a matter of law, give rise to a reasonable doubt as to whether he knew his SSN. Moreover, Manning argues that a jury finding based on the conclusion that he used a false name with an “intent to deceive” was tainted by the district court’s failure to instruct that a person has a common law right to change his name without recourse to legal proceeding. We find no merit in these arguments. In reviewing a challenge to the sufficiency of the evidence, this court views the evidence as a whole in the light most favorable to the government to determine whether a rational jury could have found the defendant guilty beyond a reasonable doubt. United States v. Arango-Echeberry, 927 F.2d 35, 37 (1st Cir.1991); United States v. Batista-Polanco, 927 F.2d 14, 17 (1st Cir.1991). To establish that Manning had violated 18 U.S.C. § 1001, the government needed to prove that Manning (a) made a false statement (b) about a material fact (c) within the jurisdiction of any department or agency of the United States (d) with fraudulent intent. 18 U.S.C. § 1001; see also United States v. Corsino, 812 F.2d 26, 29 (1st Cir.1987). To establish that Manning violated 42 U.S.C. § 408(g)(2), the government needed to prove that Manning used a false social security number or one which was not assigned to him, for any purpose, with the intent to deceive. 42 U.S.C. § 408(g)(2); see also United States v. Doe, 878 F.2d 1546, 1553 (1st Cir.1989). Manning" }, { "docid": "4313391", "title": "", "text": "not necessarily the same as the cost of the repairs that the insureds may decide to undertake to remedy the problem. Nalon not only explained how he arrived at his estimate but also explained some of the difference between his estimate and those of Sikora and Nordic. While Nalon’s estimate exceeded those of Sikora, Nordic and Ramsey, Nalon sufficiently justified his calculations so that we cannot say he fraudulently misrepresented the true value of Mrs. Trzcinski’s loss as a matter of law. Nalon’s conduct differs substantially from that of the insured in Lykos, for example, who claimed losses for property left intact after the fire and also failed to consult his records or the wholesalers and suppliers from whom he purchased merchandise to determine the value of the property that the fire did destroy. Lykos, 609 F.2d at 316. Furthermore, unlike the insured in Lykos, Nalon and Mrs. Trzcinski have not admitted that they overvalued property and then attempted to justify their exaggerations as mere estimates for purposes of negotiation. After our de novo review of the evidence on the record, we cannot conclude as a matter of law that Mrs. Trzcinski intentionally concealed or misrepresented any material fact or circumstance, made false statements or engaged in fraudulent conduct relating to her insurance. We acknowledge that there is ample evidence from which the fact finder could infer fraudulent intent, but that is not the issue that we must decide before directing the district court to enter judgment notwithstanding the verdict. The evidence does not foreclose a reasonable jury from finding that Mrs. Trzcinski acted with an innocent intent, and we are therefore bound to treat the question of fraudulent intent as a question of fact and accept the jury’s determination. American argues that even if Mrs. Trzcinski did not engage in fraud as a matter of law, the jury’s finding that there was no fraud was contrary to the manifest weight of the evidence. In effect, American is arguing that the district court erred in not granting its motion for a new trial. Even in a diversity case, our review" }, { "docid": "22453863", "title": "", "text": "fraud, it must prove the materiality of the fraudulent statement as an element of the offense”). Because Creech did not raise this challenge below, we review it for plain error. United States v. Partida, 385 F.3d 546, 554 (5th Cir.2004) (applying plain error review where, at trial, defendant failed to raise argument that indictment was insufficient in failing to allege all elements of a crime). Contrary to Creech’s assertions, the indictment’s omission of the word “material” in the mail fraud counts does not, by itself, warrant a finding of error. See id. Rather, “an allegation of fraud in an indictment will be sufficient so long as ‘the facts alleged in the indictment warrant an inference that the false statement is material.’ ” Id. (quoting United States v. McGough, 510 F.2d 598, 602 (5th Cir.1975)). Here, each count complained of incorporated and specifically referred to the allegations made in Count 1, which included allegations that Creech paid someone to burn down Rick’s Place and that Creech submitted a claim to his insurance company for losses sustained during the fire. These facts certainly give rise to the inference that a material false representation was made. Bee United States v. Richards, 204 F.3d-177, 191-93 (5th Cir.2000)(finding that wire fraud counts that incorporated allegations from conspiracy count involving misrepresentations about the profitability of an investment program sufficiently warranted inference of materiality of misrepresentation) overruled on other grounds by United States v. Longoria, 298 F.3d 367, 371 (5th Cir.2002). We find no plain error in the indictment. VI. Sufficiency of the Evidence Creech next argues that the evidence presented at trial was insufficient to support his mail fraud convictions. Specifically, he claims that the government failed to introduce any evidence to prove that he made a materially false representation, an element of mail fraud. In evaluating the sufficiency of the evidence, we review the record in the light most favorable to the government and ascertain whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. United States v. Reyes, 239 F.3d 722, 735 (5th Cir.2001). “We" }, { "docid": "12706539", "title": "", "text": "will henceforth share responsibility with state officials to investigate and prosecute arson crimes. See 128 Cong.Rec. 4957 (1982) (remarks of Rep. Hughes); 4958 (remarks of Rep. McClory). Congress could have accomplished this objective twelve years earlier when enacting the Explosive Control Act, but chose instead to focus on the more imminent problem of terrorist bombings. We defer to the lawmaking wisdom of the national legislature. The convictions obtained under the Explosive Control Act, specifically counts one and five in the indictment, are hereby reversed. B. Sufficiency of the Evidence The appellant claims that the evidence presented at trial was insufficient as a mattér of law to sustain his convictions. Gelb specifically asserts that the' government failed to prove that he in fact set the Franklin Place fire. In view of our disposition of the preceding issue, we need not decide this question. Gelb’s claim, even if we were to consider it favorably, is relevant only insofar as it challenges the evidence relating to the “explosives” counts. The mail fraud convictions were sustained by evidence wholly independent from those facts proving the arson. C. Mail Fraud Counts To prove mail fraud under 18 U.S.C. §§ 1341,1342 (1976), the prosecution must show that the defendant (1) participated in a scheme to defraud; and (2) knowingly used the mails to further the scheme. See United States v. Corey, 566 F.2d 429, 430 n.2 (2d Cir.1977); United States v. Cyphers, 556 F.2d 630, 632 (2d Cir.), cert. denied, 431 U.S. 972, 97 S.Ct. 2937, 53 L.Ed.2d 1070 (1977). Proof of a fraudulent scheme requires evidence showing a specific intent to defraud. See United States v. Widgery, 636 F.2d 200, 202 (8th Cir.1980); United States v. Beecroft, 608 F.2d 753, 756-57 (9th Cir.1979). The appellant claims that his mail fraud convictions should be reversed because the government failed to prove an intent to defraud. Gelb’s argument appears to be that even if he were to concede intentional misrepresentations in his insurance claim, no intent to defraud is shown unless the government specifically proves that his actual losses were less than the amounts to which he" }, { "docid": "10834917", "title": "", "text": "purchases were made to promote further fraud, or to conceal the proceeds of unlawful activity, and therefore that there is insufficient evidence to support his conviction on those counts. He contends that the purchases were merely acts of money spending, in which funds generated by fraud were used to buy computers for personal use. He also avers that the court erred in denying his motions for continuance based on his inability to locate a prospective defense witness and to investigate an alleged underrepresentation of minorities on the jury venire. II. We first consider the claim of insufficient evidence. “In evaluating a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the verdict and uphold the verdict if, but only if, a rational juror could have found each element of the offense beyond a reasonable doubt.” United States v. Brown, 186 F.3d 661, 664 (5th Cir.1999). This review is de novo, and “[i]f the evidence viewed in the light most favorable to the prosecution gives equal or nearly equal circumstantial support to a theory of guilt and a theory of innocence, a defendant is entitled to a judgment of acquittal.” Id. (internal quotation marks omitted). Both counts charge money laundering in violation of 18 U.S.C. § 1956(a)(1). The statute requires the government to prove that the defendant conducted or attempted to conduct a financial transaction that he knew involved the proceeds of unlawful activity. See United States v. Burns, 162 F.3d 840, 847 (5th Cir.1998), cert. denied, 119 S.Ct. 1477 (1999). Olaniyi-Oke does not contend that the government failed to provide sufficient evidence of these elements. The statute further requires the government to prove either (1) that the defendant so acted with the intent to promote or further specified unlawful activity (the “promotion prong”) or (2) that he knew the transaction was designed to conceal or disguise the nature, location, source, ownership, or control of the proceeds of the unlawful activity (the “concealment prong”). See 18 U.S.C. §§ 1956(a)(1)(A)®, 1956(a)(1)(B)®; Brown, 186 F.3d at 667-68; Burns, 162 F.3d at 847. Olaniyi-Oke avers that" }, { "docid": "12706540", "title": "", "text": "independent from those facts proving the arson. C. Mail Fraud Counts To prove mail fraud under 18 U.S.C. §§ 1341,1342 (1976), the prosecution must show that the defendant (1) participated in a scheme to defraud; and (2) knowingly used the mails to further the scheme. See United States v. Corey, 566 F.2d 429, 430 n.2 (2d Cir.1977); United States v. Cyphers, 556 F.2d 630, 632 (2d Cir.), cert. denied, 431 U.S. 972, 97 S.Ct. 2937, 53 L.Ed.2d 1070 (1977). Proof of a fraudulent scheme requires evidence showing a specific intent to defraud. See United States v. Widgery, 636 F.2d 200, 202 (8th Cir.1980); United States v. Beecroft, 608 F.2d 753, 756-57 (9th Cir.1979). The appellant claims that his mail fraud convictions should be reversed because the government failed to prove an intent to defraud. Gelb’s argument appears to be that even if he were to concede intentional misrepresentations in his insurance claim, no intent to defraud is shown unless the government specifically proves that his actual losses were less than the amounts to which he was lawfully entitled under the terms of his insurance policies. Gelb points out that his proof of loss claim detailed $684,000 in damages due to the fire, which was $184,000 more than his $500,000 insurance coverage. He would have us rule that unless the government proves more than $184,000 in falsely-stated losses, no conviction may be obtained under the mail fraud statute. There is no requirement under 18 U.S.C. §§ 1341,1342 (1976) that the government prove a specific amount defrauded— the proof need only be sufficient to establish a specific intent. Moreover, specific intent need not necessarily be proved by direct evidence, but may also be inferred from the defendant’s actions and other circumstantial evidence. See United States v. Widgery, 636 F.2d at 202; United States v. Beecroft, 608 F.2d at 757. We must view the evidence in the light most favorable to the government. See Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Candeda, 487 F.2d 1223, 1228 (2d Cir.1973), cert. denied, 415" }, { "docid": "6531255", "title": "", "text": "was reinvested and used to purchase auto parts to resupply distributors, Parker contends that the money was used to pay vendors-for an antecedent unlawful activity- As noted above, we review Parker’s challenge to the sufficiency of the evidence de novo, viewing the evidence in the light most favorable to the government. E.g., United States v. Washington, 318 F.3d 845, 852 (8th Cir.2003). We accept as established all. reasonable inferences that support the verdict. See United States v. Hawkey, 148 F.3d 920, 923 (8th Cir.1998). The transactions the indictment charged as money laundering consisted of expenditures, paid by cheeks written by FCI, that allegedly promoted the fraudulent distributorship scheme. These checks were signed by Ralph Stover, who was FCI’s secretary and treasurer. His duties required him, among other responsibilities, to negotiate checks on behalf of FCI to pay automotive parts manufacturers and vendors. For reversal, Parker relies primarily on our decision in Jolivet. In that case, a jury convicted the defendant of mail fraud, money laundering, and conspiracy. Jolivet, 224 F.3d at 905. The defendant and her husband perpetrated four insurance schemes wherein they obtained insurance and then claimed to have caused an accident, submitting false accident claims and false expenses and medical records to their insurance company. Id. On appeal, the defendant challenged the sufficiency of the evidence to support her money laundering convictions on .the ground that depositing the proceeds of her insurance scams and making the funds available for use was not enough to prove the “intent to promote the carrying on” element of money laundering under 18 U.S.C. § 1956(a)(l)(A)(i). Id. at 909. The Jolivet court agreed, explaining: In order to be found guilty of money laundering under § 1956(a)(l)(A)(i), the government must prove that the defendant “engaged in financial transactions with the knowing use of the proceeds of illegal activities” and with the “intent to promote the carrying on” of unlawful activity. Hildebrand, 152 F.3d at 762 (quoting § 1956(a)(l)(A)(i)). Thus, although the prohibited conduct is characterized as money laundering, it is different from traditional money laundering because the criminalized act is the reinvestment of illegal" }, { "docid": "23291963", "title": "", "text": "at 27.) In addition, the court ordered Weldon to pay restitution in the amount of $29,444 to John Hancock, the amount of loss to John Hancock proven by the government at trial. II. Weldon appeals, challenging (1) the sufficiency of the evidence supporting his mail fraud convictions, (2) his sentence, and (3) the district court’s refusal to award a portion of the restitution amount to Ms. Bryant’s estate. A. “We review the sufficiency of the evidence de novo, viewing the evidence in the light most favorable to the government, resolving evidentiary conflicts in the government’s favor, and drawing all reasonable inferences in favor of the jury’s verdict.” United States v. Stymiest, 581 F.3d 759, 764 (8th Cir.2009), cert. denied, - U.S. --, 130 S.Ct. 2364, 176 L.Ed.2d 573 (2010). To establish mail fraud, the government must prove: “(1) a scheme to defraud by means of material false representations or promises, (2) intent to defraud, (3) reasonable foreseeability that the mail would be used, and (4) [that] the mail was used in furtherance of some essential step in the scheme.” United States v. Parker, 364 F.3d 934, 943 (8th Cir.2004) (citing 18 U.S.C. § 1341); see also United States v. Frost, 321 F.3d 738, 740-41 (8th Cir.2003) (affirming a mail fraud conviction where defendant mailed documents requesting payment with forged signatures in order to maintain the appearance that other parties had approved the payments). Weldon disputes only the first element, arguing that the reimbursed insurance funds he received from John Hancock “were legitimately obtained for the purposes sought,” including payment for his own care of Ms. Bryant. (Appellant’s Br. 14.) He claims that his false representations about White’s care of Ms. Bryant were not materially false representations under Ms. Bryant’s policy because “for purposes of a criminal fraud under the mail fraud statute, the government must prove more than a deceit perpetrated on the insurance company with respect to the identity of the caregiver.” (Id. at 11.) Weldon further argues that material terms of the policy — that Ms. Bryant was ill, qualified for benefits under the policy, and was provided" }, { "docid": "17265481", "title": "", "text": "Scott each to 121 months’ imprisonment and defendant Fry to 46 months’ imprisonment. Defendants bring this timely appeal. DISCUSSION I. THE WIRE-FRAUD COUNTS Defendants first claim that there was insufficient evidence to support their convictions for wire fraud and conspiracy to commit wire fraud. In advancing that argument, Defendants also assert that the district court committed several legal errors in interpreting the substantive law relating to proof of wire fraud. “We review the sufficiency of the evidence by viewing it in the light most favorable to the prosecution and asking whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Blitz, 151 F.3d 1002, 1006 (9th Cir.), cert. denied sub nom., Marie v. United States, — U.S. -, 119 S.Ct. 567, 142 L.Ed.2d 473 (1998) (internal quotation marks and citation omitted) (emphasis in original). We review de novo the district court’s interpretation of criminal statutes. See United States v. Marbella, 73 F.3d 1508, 1515 (9th Cir.1996) (reviewing de novo whether a money-laundering statute requires “tracing” to prove a violation). A. Requirements to Prove Wire Fraud First, each Defendant (except Fry) asserts that his convictions cannot stand as a matter of law, because he personally did not make any fraudulent statements to any customer over the wires. Defendants further contend that they cannot be held vicariously liable for the fraudulent statements of the company’s telemarketers. Defendants’ arguments are foreclosed by the well-established law of this circuit. This court has made clear that, in cases involving mail and wire fraud, “[t]he defendant need not personally have mailed the letter or made the telephone call; the offense may be established where one acts with the knowledge that the prohibited actions will follow in the ordinary course of business or where the prohibited acts can reasonably be foreseen.” Lothian, 976 F.2d at 1262. We have explained further that co-schemers in a scheme to defraud may be held vicariously liable for the acts of their co-schemers. See id. “Because an essential element of [mail and wire fraud] is a fraudulent scheme, [those offenses]" }, { "docid": "12396854", "title": "", "text": "connection with a federally funded program or proceeds in connection with mail fraud. The government has proved neither. First, we have held in the preceding section of this opinion that no funds in this case involve proceeds in connection with a federally funded program. Second, there is no evidence before us that the checks alleged in counts 5 through 14 were ever transmitted in the mail. To the extent that the record indicates the method of delivery of these checks, it was hand-delivery. And, finally, the government makes no argument that the proceeds involved in the transactions alleged in counts 5 through 14 had any connection with mail fraud. Therefore, each of the convictions under counts 5 through 14 are reversed for failure to prove an essential element of those alleged money laundering offenses, to wit, that the transactions involved funds from a “specified unlawful activity.” V We next turn to consider count three of the indictment, which charges both Newman and Phillips with engaging in an illegal monetary transaction under 18 U.S.C. § 1957 with respect to the negotiation of the $15,000 life insurance check received by Newman upon the death of his first wife, Jean. Here, the indictment charges that specified unlawful activity from this check was derived was the mail fraud charged in count two, a count on which we uphold the convictions. Phillips argues that the evidence at trial was insufficient to support his conviction. This count relates to the 1992 scheme. We find no merit here. Although Phillips personally may not have cashed Newman’s $15,000 life insurance check, he underwrote each step necessary to Newman’s ability to obtain that check. Phillips provided and certified the documentation necessary to obtaining this benefit. Moreover, Phillips placed Jean on the payroll and thus made Newman eligible for this benefit. Thus, he aided and abetted the fraudulent payment of this money. See United States v. Anderson, 174 F.3d 515, 523 (5th Cir.1999). Under our case law, Phillips has more than sufficient connection to the illegal transaction. See United States v. Hemmingson, 157 F.3d 347, 355 (5th Cir.1998) (citing United" }, { "docid": "12706541", "title": "", "text": "was lawfully entitled under the terms of his insurance policies. Gelb points out that his proof of loss claim detailed $684,000 in damages due to the fire, which was $184,000 more than his $500,000 insurance coverage. He would have us rule that unless the government proves more than $184,000 in falsely-stated losses, no conviction may be obtained under the mail fraud statute. There is no requirement under 18 U.S.C. §§ 1341,1342 (1976) that the government prove a specific amount defrauded— the proof need only be sufficient to establish a specific intent. Moreover, specific intent need not necessarily be proved by direct evidence, but may also be inferred from the defendant’s actions and other circumstantial evidence. See United States v. Widgery, 636 F.2d at 202; United States v. Beecroft, 608 F.2d at 757. We must view the evidence in the light most favorable to the government. See Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Candeda, 487 F.2d 1223, 1228 (2d Cir.1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1563, 39 L.Ed.2d 872 (1974). On this record the jury could find that the appellant intended to defraud his insurer. The trial testimony revealed that Gelb grossly inflated losses and asked his employees to verify proof of loss forms which were wholly inaccurate. The evidence is sufficient to sustain a conviction under the mail fraud statute. D. Rule 33 Motion Gelb finally contends that the district court committed reversible error under Fed. R.Crim.P. 33 when it denied his motion for a new .trial. He contends that evidence discovered after trial would have substantially contributed to his defense if presented to the jury and cites four examples of this “newly discovered” evidence: 1. That Fire Investigator Robert Doran committed perjury when he testified at trial that he did not retrieve sam- ples of debris from the fire site. The claim of perjury is that the next morning on April 27, Doran obtained such samples which “it must be presumed, upon analysis revealed no presence of gasoline.” (Aff. H 15(b)). 2. The first" }, { "docid": "3996212", "title": "", "text": "evidence for the jury to find beyond a reasonable doubt that he had the requisite intent on any of the four counts at issue here. We will focus our discussion here on the mail and wire fraud counts. We held in Sawyer that the intent required for a Travel Act violation is the same as that for mail and wire fraud. 85 F.3d at 741. Woodward argues that the conspiracy count must fall because there is insufficient evidence to support the substantive counts that served as its objects. Because theft of honest services constitutes a “scheme or artifice to defraud” within the meaning of the mail and wire fraud statutes, see Sawyer, 85 F.3d at 723-24, the question becomes whether the jury could reasonably have found that Woodward intended to steal his honest services from the public. As Woodward phrased it in .his brief, “[t]he central question is whether by accepting his friend’s largesse Woodward intended to be influenced to support Hancock’s legislative interests.” A Standard of Review In determining the evidentiary sufficiency of a guilty verdict, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). “The scope of review is over the totality of the evidence, both direct and circumstantial.” United States v. Czubinski, 106 F.3d 1069, 1073 (1st Cir.1997). Woodward focuses most of his sufficiency challenge on an alleged lack of intent to be influenced. He argues that the evidence was insufficient to show that Woodward accepted Sawyer’s gratuities with the intent to deprive the public of his honest services by performing official acts on behalf of Hancock (or the life insurance industry). Woodward “bear[s] a heavy burden” in arguing insufficiency of the evidence, even with respect to this intent element. United States v. Biaggi 853 F.2d 89, 99 (2d Cir.1988). “An appellate court plays a very circumscribed role in gauging the sufficiency of the evidentiary foundation upon" } ]

[ { "docid": "22613371", "title": "", "text": "that taxpayer’s returns are correct and may not arbitrarily be set at naught. He also cites Rule 30 adopted by the board: “ The burden of proof shall be upon the petitioner, except as otherwise provided by statute and except that in respect of any new matter pleaded in his answer, it shall be upon the respondent.” But there is nothing in it to suggest intention to require the taxpayer to prove not only that a deficiency assessment laid upon him was arbitrary and wrong but also to show the correct amount. Moreover, the board held the evidence not sufficient to show the apportionment erroneous and on that ground alone sustained' the assessment. Necessarily the board did not come to the question that is here presented as to burden of proof. The fact that the commissioner’s determination of a deficiency was arbitrarily made may reasonably be deemed sufficient to require the board to set it aside. Cf. Bruce & Human Drug Co., 1 B. T. A. 342. Acorn Refining Co., 2 B. T. A. 253. Index Notion Co., 3 B. T. A. 90. The commissioner cites United States v. Rindskopf, 105 U. S. 418; United, States v. Anderson, 269 U. S. 422, 443; Reinecke v. Spalding, 280 U. S. 227, 232-233. The first of these may be put aside without discussion as having no bearing upon the point here in controversy.. The other two were adequately distinguished by the Circuit Court of Appeals. Each was an action to recover taxes paid. Obviously the burden was on the plaintiff, in order to establish a basis for judgment in his favor, specifically to show not merely that the assessment was erroneous but also the amount to which he was entitled. For like reason the burden is upon the taxpayer to establish the amount of a deduction claimed. Burnet v. Houston, 283 U. S. 223, 227. Helvering v. Independent Life Ins. Co., 292 U. S. 371, 381. New Colonial Co. v. Helvering, 292 U. S. 435, 440. We find nothing in the statutes, the rules of the board or our decisions that gives" } ]

[ { "docid": "13562558", "title": "", "text": "we think that the finding of the Commissioner was wrong, it does not follow that any allocation of the original consideration was “impracticable.” True, the shares had just been issued and had therefore never paid a dividend; but the subsidiaries may have had a substantial history and their incomes been reasonably predictable; indeed the evidence was that while the taxpayer owned them, they had a joint income at the yearly rate of $9’,000 or $10,000; though whether this was gross or net, did not appear. At any rate we cannot say that‘it was impossible to ascertain the income of the holding company, or with that as datum to estimate the values of the preferred and common shares in October, 1927. The taxpayer made no effort to prove that apportionment was “impracticable,” excusing himself by exceedingly vague and unsatisfactory affidavits of the existence of an oral stipulation which the Commissioner does not admit to. have been made, and which we may not consider. If the burden of proof goes so far as to demand not only that the taxpayer show that the deficiency assessed against him is wrong, but what is the proper deficiency, or that there should be none at all, the decision was right, even though we know that the tax is too high. In an action to recover taxes unlawfully collected the burden does go so far. United States v. Anderson, 269 U. S. 422, 443, 46 S. Ct. 131, 70 L. Ed. 347; Reinecke v. Spalding, 280 U. S. 227, 233, 50 S. Ct. 96, 74 L. Ed. 385. But the reason for this is obvious; a plaintiff, seeking an affirmative judgment measured in dollars, must prove how much is due. His claim is for money paid and he must show that every dollar he recovers is unjustly withheld. So it is not enough merely to prove that the tax as a whole was unlawful; some of the dollars he paid may nevertheless have been due. But this reasoning does not apply when the proceeding is to review an assessment. Although that does indeed partake of the" }, { "docid": "7346617", "title": "", "text": "* * * Snell Isle, Inc. v. Commissioner, 5 Cir., 1937, 90 F.2d 481, 482; Bryan v. Commissioner, 5 Cir., 1954, 209 F.2d 822, 825. “The Commissioner in the present case points out, however, that the taxpayers have virtually conceded both in the Tax Court and upon this review that their evidence was insufficient to overcome the presumed correctness of the Commissioner’s determinations. We fail to perceive how this rather forthright concession by counsel for the taxpayers relieves the Commissioner of any part of his statutory burden of proof of their fraud.” . “The action, brought to recover a tax erroneously paid, although an action at law, is equitable in its function. It is the lineal successor of the common count in indebitatus assumpsit for money had and received. * * *. “Its use to recover upon rights equitable in nature to avoid unjust enrichment by the defendant at the expense of the plaintiff, and its control in every ease by equitable principles * * * have long been recognized in this Court. * * * It is an appropriate remedy for the recovery of taxes erroneously collected * *. The statutes authorizing tax refunds and suits for their recovery are predicated upon the same equitable principles that underlie an action in assumpsit for money had and received. * * * Since, in this type of action, the plaintiff must recover by virtue of a right measured by equitable standards, it follows that it is open to the defendant to show any state of facts which, according to those standards, would deny the right, * * Stone v. White, 1937, 301 U.S. 532, 534-535, 57 S.Ct. 851, 852, 81 L.Ed. 1265, 1269-1270. . See S.Rep. No. 115, H.R.Rep. No. 659, Conf.Rep. No. 2276, 83d Cong., 2d Sess., 1954, U.S.Code Cong. & Adm.News, pp. 2716-2721. S. 252 was enacted into 28 U.S.C.A. § 1346(a) permitting suits in the District Court against the United! States without regard to the previous 810,000 limitation. Discussed also in these reports was that portion subsequently enacted into 28 U.S.C.A. § 2402 over the opposition of the" }, { "docid": "13562559", "title": "", "text": "that the taxpayer show that the deficiency assessed against him is wrong, but what is the proper deficiency, or that there should be none at all, the decision was right, even though we know that the tax is too high. In an action to recover taxes unlawfully collected the burden does go so far. United States v. Anderson, 269 U. S. 422, 443, 46 S. Ct. 131, 70 L. Ed. 347; Reinecke v. Spalding, 280 U. S. 227, 233, 50 S. Ct. 96, 74 L. Ed. 385. But the reason for this is obvious; a plaintiff, seeking an affirmative judgment measured in dollars, must prove how much is due. His claim is for money paid and he must show that every dollar he recovers is unjustly withheld. So it is not enough merely to prove that the tax as a whole was unlawful; some of the dollars he paid may nevertheless have been due. But this reasoning does not apply when the proceeding is to review an assessment. Although that does indeed partake of the nature of a judgment, and the taxpayer has the burden of proving that it was wrong, after he has done so, he need not, at least under ordinary principles of procedure, prove that he owed no tax, or what was the tax that he did owe. The original assessment rested upon a finding, presumptively correct, but the presumption of its correctness does not extend to other findings which the Commissioner has never made. Any other result would invert the ordinary rules of procedure by imposing a burden of establishing a negative upon the obligor; indeed of disproving the existence of all possible obligations. It must be owned however that the cases are not all in accord, though we do not think that Burnet v. Houston, 283 U. S. 223, 227, 51 S. Ct. 413, 75 L. Ed. 991, should be counted among those which impose such a burden; the facts were quite otherwise. Usually it has been a deduction, not an item of gross income, that has been in question. Saxman C. & C. Co." }, { "docid": "17038470", "title": "", "text": "for refund of taxes paid is in the nature of an action for money had and received, and is governed by equitable principles. Stone v. White, 1937, 301 U.S. 532, 57 S.Ct. 851, 81 L.Ed. 1265; Lewis v. Reynolds, 1932, 284 U.S. 281, 52 S.Ct. 145, 76 L.Ed. 293; Reinecke v. Spalding, 1930, 280 U.S. 227, 233, 50 S.Ct. 96, 74 L.Ed. 385.' In such an action, the plaintiff must recover by virtue of a right measured by equitable standards, and if under all the facts the taxpayer has failed to show that the government has an excess of taxes for the year in question which equitably belongs to the taxpayer, he cannot recover. Ryan v. Alexander, 10 Cir., 118 F.2d 744. It is true, as contended by plaintiff, that “the taxpayer is entitled to know the basis of law and facts on which the Commissioner asserts deficiencies and until this is done, there is no burden of proof resting on the taxpayer.” Cornett-Lewis Coal Co. v. Commissioner, 6 Cir., 141 F.2d 1000,1005. But in many suits for refund, the courts have held that a taxpayer may not capitalize upon a mistaken determination of the Commissioner where the evidence fails to show that the taxpayer has overpaid his taxes. It is not necessary that the Commissioner make an official redetermination before the' suit for refund is filed, provided the taxpayer is not taken by surprise and the Government has informed him of its position. In the instant case the Government informed plaintiff of its contentions well before trial. United States v. Pfister, 8 Cir.,205 F.2d 538; Alexander Sprunt & Son, Inc., v. Commissioner, 4 Cir., 64 F.2d 424; Tait v. Safe Deposit & Trust Co., 4 Cir., 70 F.2d 79; American Security & Trust Co. v. Tait, D.C.D.Md., 5 F.Supp. 337; Lewis v. Reynolds, 1932, 284 U.S. 281, 52 S.Ct. 145, 76 L.Ed. 293; Pacific Mills v. Nichols, D.C.D.Mass., 31 F.Supp. 43; Routzahn v. Brown, 6 Cir., 95 F.2d 766; Hartford Nat. Bank & Trust Co. v. Smith, D.C.D.Conn., 54 F.Supp. 579. The Fair Market Value of the Preferred Stock" }, { "docid": "8982927", "title": "", "text": "of proof, it then puts it up to the plaintiff in this case to come forth with competent and relevant evidence to show that that was wrong. But the burden of proof itself never does shift from the Government. They just get the advantage of that presumption. Then when they go forward with relevant and competent evidence that takes away that presumption and then we are back to where' we started from. The Government objected to the new instruction contending that the taxpayer should bear the same burden of proof on the counterclaim as on the refund claim. The jury returned a verdict for the Government of $48,388.92. The Government says that the court should have told the jury that the taxpayer must prove that the Government’s assessment was wrong and must show the amount that he actually owed. Although such an instruction is proper in a refund suit where the plaintiff must show what he actually owes in order to prove that he deserves a refund, Compton v. United States, 334 F.2d 212,216 (4th Cir. 1964), it is not appropriate regarding a Government counterclaim to collect taxes which have been assessed but not paid. We agree with the Second Circuit that in response to a counterclaim, a taxpayer need only prove by a preponderance of the evidence that the Government’s assessment is erroneous, and, once that burden is met, the Government, not the taxpayer, must prove how much the taxpayer actually owes. Lesser v. United States, 368 F.2d 306, 310 (2d Cir. 1968); United States v. Lease, 346 F.2d 696, 701 (2d Cir. 1965). But see, DeLorenzo v. United States, 555 F.2d 27 (2d Cir. 1977). The Government bears the same burden of proof on a counterclaim to collect taxes as it does when it initiates a collection suit. It is well established that, in a deficiency suit by the Government to collect taxes, a taxpayer need not show how much he actually owes once he has shown the Government's claim to be erroneous. Helvering v. Taylor, 293 U.S. 507, 515, 55 S.Ct. 287, 79 L.Ed. 623 (1935). The" }, { "docid": "21337093", "title": "", "text": "had and received and the plaintiff’s right to recover must be measured by equitable standards. Here, taxpayer’s entire liability is at issue and if, under any state of facts, the Government is entitled to the money claimed, she cannot prevail. Consequently, it is not enough merely to show that the assessment was invalid or that the Commissioner erred; the plaintiff must go further and produce evidence from which another and proper determination can be made. The extent of the taxpayer’s burden in a refund action was aptly stated by Judge Learned Hand in Taylor v. Commissioner, 70 F.2d 619, 620 (2 Cir. 1934), aff’d sub. nom. 293 U.S. 507, 55 S.Ct. 287, 79 L.Ed. 623 (1935): “ * * * if fhe burden of proof goes so far as to demand not only that the taxpayer show that the deficiency assessed against him is wrong, but what is the proper deficiency, or that there should be none at all, the decision was right, even though we know that the tax is too high. In an action to recover taxes unlawfully collected the burden does go so far. * * * But the reason for this is obvious; a plaintiff, seeking an affirmative judgment measured in dollars, must prove how much is due. His claim is for money paid and he must show that every dollar he recovers is unjustly withheld. So it is not enough merely to prove that the tax as a whole was unlawful; some of the dollars he paid may nevertheless have been due. * * *» To put it another way, the ultimate question in a suit for refund is not whether the Government was wrong, but whether the plaintiff can establish that taxes were in fact overpaid. The plaintiff, to prevail, must establish the exact amount which she is entitled to recover. With the foregoing principles in mind, we turn our attention to the circumstances of the ease at hand. Here, plaintiff endeavored to prove that no tax was due by testifying that she had not engaged in the numbers business during the period in" }, { "docid": "21337094", "title": "", "text": "action to recover taxes unlawfully collected the burden does go so far. * * * But the reason for this is obvious; a plaintiff, seeking an affirmative judgment measured in dollars, must prove how much is due. His claim is for money paid and he must show that every dollar he recovers is unjustly withheld. So it is not enough merely to prove that the tax as a whole was unlawful; some of the dollars he paid may nevertheless have been due. * * *» To put it another way, the ultimate question in a suit for refund is not whether the Government was wrong, but whether the plaintiff can establish that taxes were in fact overpaid. The plaintiff, to prevail, must establish the exact amount which she is entitled to recover. With the foregoing principles in mind, we turn our attention to the circumstances of the ease at hand. Here, plaintiff endeavored to prove that no tax was due by testifying that she had not engaged in the numbers business during the period in question, or at any time. In response to a question by the Government on cross-examination as to whether she had pleaded guilty to charges of maintaining a lottery, she testified: “I did not plead guilty. My attorney pleaded me guilty.” The Government then sought to impeach her testimony by introducing in evidence a certified copy of the record of the County Court of Arlington County showing that plaintiff had pleaded guilty to charges of operating a lottery and possessing lottery slips. Also for the sole purpose of impeachment, the Government directed questions to the plaintiff concerning her knowledge of the property taken from her home; plaintiff denied any knowledge thereof. The District Court refused to credit plaintiff’s testimony and held that she had not sustained her burden of proof. Without directly contesting this determination, plaintiff simply argues abstractly, as we have shown before, that unconstitutionally seized evidence is inadmissible in a federal tax proceeding. The Supreme Court has never directly passed upon this question and we do not think it necessary for this court to" }, { "docid": "23314249", "title": "", "text": "time that case was argued the parties did not adequately present this issue to the court. Moreover, the court did not cite any authority for the position it adopted. See Mississippi River Fuel Corp. v. United States, Ct.Cl., 314 F.2d 953, 958, deeided April 5, 1963 (concurring opinion by Judge Davis in which Judge Laramore concurred). . The court stated that “while the statutes authorizing refunds do not specifically empower the Commissioner to reaudit a return whenever repayment is claimed, authority therefore is necessarily implied. An overpayment must appear before refund is authorized. Although the statute of limitations may have barred the assessment and collection of any additional sum, it does not obliterate the right of the United States to retain payments already received when they do not exceed the amount which might have been properly assessed and demanded.” [284 U.S. at 283, 52 S.Ct. at 146] . Stone v. White, 301 U.S. 532, 534, 57 S.Ct. 851, 81 L.Ed. 1265 (1937); Helvering v. Taylor, 293 U.S. 507, 55 S.Ct. 287, 79 L.Ed. 623 (1935). . Taylor v. Commissioner of Internal Revenue, 70 F.2d 619 (2d Cir. 1934). . E.g., United States v. Pfister, 205 F.2d 538, 542 (8th Cir. 1953), where the court by way of dicta stated that “the burden is on the taxpayer to establish the exact amount to which he is entitled. To sustain the burden upon him, taxpayer must prove the legality and amount of any deduction claimed.” . If you follow the strict common law principles that underlie an action in assumpsit for money had and received, “it is incumbent upon the claimant to show that the United States has money which belongs to him.” (Lewis v. Reynolds, supra, 284 U.S. at 283, 52 S.Ct. at 146). When the government challenges an item in taxpayer’s return by way of a defense in the nature of a setoff, it does not make a counter-demand on the taxpayer but merely makes a denial of his equitable right to recover. Routzahn v. Brown, 95 F.2d 766, 769 (6th Cir. 1938). Thus, “if under all the facts the" }, { "docid": "2835003", "title": "", "text": "redetermination of a deficiency the taxpayer has met his burden and is entitled to prevail after establishing that the determination is arbitrary, but that in a suit for refund in the District Court the taxpayer must show, in addition to the arbitrariness of the Commissioner’s determination, exactly how much the Government has unjustly withheld from him before he can prevail. E.g., Helvering v. Taylor, supra; Bicknell v. United States, 5 Cir. 1970, 422 F.2d 1055 [February 16, 1970]. In the instant case, however, the taxpayer did not file a petition in the Tax Court for redetermination of the deficiency nor did taxpayer pay the deficiency and sue for refund in the District Court. Instead, as to the amount in controversy on this appeal, the taxpayer sat back and waited for the Government to institute (by way of counterclaim) a suit for collection. It was not until that point that taxpayer challenged the correctness of the Commissioner’s determination. We have found only one Court of Appeals case, United States v. Lease, 2 Cir. 1965, 346 F.2d 696, which discusses the burden of proof on a taxpayer who challenges the correctness of a tax assessment as a defense in a collection suit. The Second Circuit concluded there that the taxpayer has the easier burden of proof to show only that the Government computations are arbitrary. The Court said the burden is then upon the Government to show whether any deficiency exists, and, if so, in what amount; it is not incumbent upon the taxpayer to prove the correct amount of the tax which he did owe or the correctness of the item concerned. Accord, Spivak v. United States, S.D.N.Y.1966, 254 F.Supp. 517, 525, aff'd, 370 F.2d 612, cert. denied, 387 U.S. 908, 87 S.Ct. 1690, 18 L.Ed.2d 625 (which, like the instant case, involved a counterclaim by the Government). Requiring taxpayers in collection suits to meet the more rigorous burden of proof demanded in refund eases would not be warranted by the rationale of those cases: “Since the action for refund of taxes is in the nature of a common law action" }, { "docid": "15231559", "title": "", "text": "Helvering v. Taylor, 293 U.S. 507, 55 S.Ct. 287, 79 L.Ed. 623 (1935), where the Supreme Court said: The fact that the Commissioner’s determination of a deficiency was arbitrarily made may reasonably be deemed sufficient to require the board to set it aside. * * * Unquestionably the burden of proof is on the taxpayer to show that the Commissioner’s determination is invalid. 293 U.S. 507, 514, 515, 55 S.Ct. 287, 290, 291. In the same breath, however, the Court stated that in a refund suit, the taxpayer must show “ * * * not merely that the assessment was erroneous but also the amount to which he was entitled.” 293 U.S. 507, 514, 55 S.Ct. 287, 290. This does not resolve the issue with which we are confronted: is the presumption of correctness involved in a refund suit? Is the destruction of that procedural device a material element in the plaintiff’s case? It is certain that Helvering v. Taylor is of no avail in answering these questions because that case involved an appeal from the Tax Court. There is a well-recognized distinction between the taxpayer’s burden of proof in a refund suit and his responsibility before the Tax Court or on appeal from the Tax Court. As stated by the Second Circuit in Taylor v. Commissioner, 70 F.2d 619, 621 (1935): * * * [T]he reason for this is obvious; a plaintiff, seeking an affirmative judgment measured in dollars, must prove how much is due. His claim is for money paid and he must show that every dollar he recovers is unjustly withheld. So it is not enough merely to prove that the tax as a whole was unlawful * * # In reference to refund suits, Courts have used language which suggests a double burden of proof for the taxpayer. In Graham v. United States, 63-2 U.S.T.C. ¶9607 (S.D.N.Y.1963), the Government prevailed because the plaintiff had not met “the burden of proof re* quired to overcome the presumptive correctness of the Commissioner’s determination.” The Court cited approvingly this language from Dairy Home Company v. United States, 180 F.Supp." }, { "docid": "15231560", "title": "", "text": "the Tax Court. There is a well-recognized distinction between the taxpayer’s burden of proof in a refund suit and his responsibility before the Tax Court or on appeal from the Tax Court. As stated by the Second Circuit in Taylor v. Commissioner, 70 F.2d 619, 621 (1935): * * * [T]he reason for this is obvious; a plaintiff, seeking an affirmative judgment measured in dollars, must prove how much is due. His claim is for money paid and he must show that every dollar he recovers is unjustly withheld. So it is not enough merely to prove that the tax as a whole was unlawful * * # In reference to refund suits, Courts have used language which suggests a double burden of proof for the taxpayer. In Graham v. United States, 63-2 U.S.T.C. ¶9607 (S.D.N.Y.1963), the Government prevailed because the plaintiff had not met “the burden of proof re* quired to overcome the presumptive correctness of the Commissioner’s determination.” The Court cited approvingly this language from Dairy Home Company v. United States, 180 F.Supp. 92, 95 . (D.C.Minn.1960): The burden of proof is upon the plaintiff to establish Dairy’s action by a fair preponderance of the evidence. This burden is added to by the presumption that in a tax case such as this one, the finding of the Commissioner is correct. (Emphasis added.) In Renstrom v. United States, 220 F.Supp. 688, 691 (D.C.Neb.1963), the Court cited as an elementary principle that “a taxpayer suing for a refund has the burden to show that the revenue service determination is erroneous and that the taxpayer is entitled to a refund.” Cf. also Hodoh v. United States, 153 F.Supp. 822, 825 (N.D.Ohio, Weick, J., 1957). In only one case, however, is this issue thoroughly analyzed, and a contrary view is expressed. In Kentucky Trust Company v. Glenn, 217 F.2d 462 (Sixth Cir. 1954), objection was made on appeal to an instruction in a refund suit to the effect that the law presumes that the Commissioner’s determination is correct. Although the precise point of error urged was the limitation on argument by which" }, { "docid": "23314250", "title": "", "text": ". Taylor v. Commissioner of Internal Revenue, 70 F.2d 619 (2d Cir. 1934). . E.g., United States v. Pfister, 205 F.2d 538, 542 (8th Cir. 1953), where the court by way of dicta stated that “the burden is on the taxpayer to establish the exact amount to which he is entitled. To sustain the burden upon him, taxpayer must prove the legality and amount of any deduction claimed.” . If you follow the strict common law principles that underlie an action in assumpsit for money had and received, “it is incumbent upon the claimant to show that the United States has money which belongs to him.” (Lewis v. Reynolds, supra, 284 U.S. at 283, 52 S.Ct. at 146). When the government challenges an item in taxpayer’s return by way of a defense in the nature of a setoff, it does not make a counter-demand on the taxpayer but merely makes a denial of his equitable right to recover. Routzahn v. Brown, 95 F.2d 766, 769 (6th Cir. 1938). Thus, “if under all the facts the taxpayer has failed to show that the government has an excess of taxes for the year in question which equitably belongs to the taxpayer, he cannot recover.” Western Maryland Railway Co. v. United States, 131 F.Supp. 873 (D.Md.1955). . This is to be contrasted to the situation present in the Tax Court where the taxpayer merely has the burden of proving that the Commissioner’s assessment is wrong since the proceedings before that court are in the nature of a review of the Commissioner’s assessment. See Taylor v. Commissioner of Internal Revenue, 70 F.2d 619 (2d Cir. 1934). The government has the burden of proof as to “new matter” pleaded in the answer to taxpayer’s petition. (Tax Court Rule 32.) . This concept follows the conventional view of other subject matter upon which civil actions are based; viz., contracts. See Atchison, Topeka & Santa Fe Ry. Co. v. United States, 94 F.Supp. 677, 118 Ct.Cl. 194 (1951). . We recognize that the right of the government to challenge items found in unrelated tax returns (situations (3)" }, { "docid": "21337092", "title": "", "text": "Tax Court to contest a deficiency assessment or in a District Court in a suit for refund, the assessment of the Commissioner is presumed to be correct. To be sure, this presumption is not evidence in itself and may be rebutted by competent evidence. It operates merely to place upon the opposing party the burden of going forward with the evidence. However, to prevail in an action for refund, the taxpayer must not only overcome this presumption but must assume and discharge the added burden of demonstrating the correct amount of the tax due or that he owes no tax at all. See Helvering v. Taylor, 293 U.S. 507, 55 S.Ct. 287, 79 L.Ed. 623 (1935); Commissioner of Int. Rev. v. R. J. Reynolds Tobacco Co., 260 F.2d 9, 14 (4 Cir. 1958); Clinton Cotton Mills v. Commissioner of Internal Revenue, 78 F.2d 292 (4 Cir. 1935); 9 Mertens, Federal Income Taxation, § 50.65 (Zimmet Rev. 1958). An action for refund of taxes paid is in the nature of an action of assumpsit for money had and received and the plaintiff’s right to recover must be measured by equitable standards. Here, taxpayer’s entire liability is at issue and if, under any state of facts, the Government is entitled to the money claimed, she cannot prevail. Consequently, it is not enough merely to show that the assessment was invalid or that the Commissioner erred; the plaintiff must go further and produce evidence from which another and proper determination can be made. The extent of the taxpayer’s burden in a refund action was aptly stated by Judge Learned Hand in Taylor v. Commissioner, 70 F.2d 619, 620 (2 Cir. 1934), aff’d sub. nom. 293 U.S. 507, 55 S.Ct. 287, 79 L.Ed. 623 (1935): “ * * * if fhe burden of proof goes so far as to demand not only that the taxpayer show that the deficiency assessed against him is wrong, but what is the proper deficiency, or that there should be none at all, the decision was right, even though we know that the tax is too high. In an" }, { "docid": "17038469", "title": "", "text": "common stock was broken down into four categories, to correspond with the four categories shown on page 5 of the Reorganization Plan. However, even if the separate items on Exhibit A be treated as separate determinations, it does not follow that the findings of the Commissioner are binding on the Government and cannot be put in issue in this suit. Plaintiff’s contention misconstrues the nature of this action and the burden on plaintiff. The ultimate question in an action for refund of taxes is not whether the Commissioner erred, but whether the taxpayer can establish that his táxes for the year in question have been overpaid; in other words, whether the Government has money which is rightfully his. Whatever may have been the determinations of the Commissioner, they cannot change the true facts or preclude the court from drawing proper inferences from those facts. What was paid in for the new common and preferred stock in connection with the 1909-1910 reorganization is a question to be determined by this court in this suit. An action for refund of taxes paid is in the nature of an action for money had and received, and is governed by equitable principles. Stone v. White, 1937, 301 U.S. 532, 57 S.Ct. 851, 81 L.Ed. 1265; Lewis v. Reynolds, 1932, 284 U.S. 281, 52 S.Ct. 145, 76 L.Ed. 293; Reinecke v. Spalding, 1930, 280 U.S. 227, 233, 50 S.Ct. 96, 74 L.Ed. 385.' In such an action, the plaintiff must recover by virtue of a right measured by equitable standards, and if under all the facts the taxpayer has failed to show that the government has an excess of taxes for the year in question which equitably belongs to the taxpayer, he cannot recover. Ryan v. Alexander, 10 Cir., 118 F.2d 744. It is true, as contended by plaintiff, that “the taxpayer is entitled to know the basis of law and facts on which the Commissioner asserts deficiencies and until this is done, there is no burden of proof resting on the taxpayer.” Cornett-Lewis Coal Co. v. Commissioner, 6 Cir., 141 F.2d 1000,1005. But in" }, { "docid": "21337091", "title": "", "text": "unlawful search was offered for the purpose of impeachment only and, for reasons hereinafter stated, we think the evidence was properly admitted for that purpose. Obviously the thrust of plaintiff’s argument here, as in the court below, is that the assessment itself is invalid because it was based on illegally obtained evidence. Apparently she seeks to press that issue by broadly insisting that illegally obtained evidence is inadmissible in a civil proceeding. At trial, plaintiff introduced the testimony of three agents of the Internal Revenue Department to show the manner in which the assessment was made. From their testimony, it is clear that the assessment was based almost entirely upon the fruits of the illegal search but that fact is not decisive of the issues here. The difficulty with plaintiff’s position is that she apparently misconceives the burden of proof imposed upon her and which she must sustain in order to establish her claim of entitlement to a refund. It is a well established principle that in every case, whether in a proceeding in the Tax Court to contest a deficiency assessment or in a District Court in a suit for refund, the assessment of the Commissioner is presumed to be correct. To be sure, this presumption is not evidence in itself and may be rebutted by competent evidence. It operates merely to place upon the opposing party the burden of going forward with the evidence. However, to prevail in an action for refund, the taxpayer must not only overcome this presumption but must assume and discharge the added burden of demonstrating the correct amount of the tax due or that he owes no tax at all. See Helvering v. Taylor, 293 U.S. 507, 55 S.Ct. 287, 79 L.Ed. 623 (1935); Commissioner of Int. Rev. v. R. J. Reynolds Tobacco Co., 260 F.2d 9, 14 (4 Cir. 1958); Clinton Cotton Mills v. Commissioner of Internal Revenue, 78 F.2d 292 (4 Cir. 1935); 9 Mertens, Federal Income Taxation, § 50.65 (Zimmet Rev. 1958). An action for refund of taxes paid is in the nature of an action of assumpsit for money" }, { "docid": "23486142", "title": "", "text": "Pfister, 205 F. 2d 538, 542 (8th Cir. 1953), -where the court by way of dicta stated that “the burden is on. the taxpayer to establish the exact amount to which he is entitled. To sustain the burden upon him, taxpayer must prove the legality and amount of any deduction claimed.” If you follow the strict common law principles that underlie an action in assumpsit for money had and received, “it is incumbent upon the claimant to show that the united States has money which belongs to him.” (Lewis v. Reynolds, supra at 283) When the government challenges an item in taxpayer’s return by way of a defense in the nature of a setoff, it does not mahe a counter-demand on the taxpayer but merely makes a denial of his equitable right to recover. Routzahn v. Brown, 95 F. 2d 766, 769 (6th Cir. 1938). Thus, “if under all the facts the taxpayer has failed to show that the government has an excess of taxes for the year in question which equitably belongs to the taxpayer, he cannot recover.” Western Maryland Railway Co. v. United States, 131 F. Supp. 873 (D. Md. 1955). This is to be contrasted to the situation present in the Tax Court where the taxpayer merely has the burden of proving that the Commissioner’s assessment is wrong since the proceedings before that court are in the nature of a review of the Commissioner’s assessment. See Taylor v. Helvering, 70 F. 2d 619 (2d Cir. 1934). The government has the burden of proof as to “new matter” pleaded in the answer to taxpayer’s petition. (Tax Court Rule 32.) This concept follows the conventional view of other subject matter upon which civil actions are based; vis., contracts. See Atchison, Topeka & Santa Fe Ry. Co. v. United States, 118 Ct. Cl. 194, 94 F. Supp. 677 (1951). We recognize that the right of the government to challenge items found in unrelated tax returns (situations (3) and (4)) is not present in every case. See Rothensies v. Electric Storage Battery Co., 329 U.S. 296, 301 (1946). We are concerned" }, { "docid": "7097586", "title": "", "text": "of goods sold as reported by appellants to obtain a sales figure more nearly in line with actual sales. Collector Smith did compute and make some allowance for repairs. Otherwise he made no allowance for shrinkage losses. It is obvious that his method was erroneous to the extent that it did not allow something for shrinkage. Shrinkage includes freight and handling cost. It also includes items of merchandise which have been stolen, used in advertising, or which have become broken or lost. It also includes values which have been eliminated from the inventory by “mark-downs.” We think we may take judicial knowledge that shrinkage does occur in all merchandising businesses. While it may be conceded that there was a margin of error in the Collector’s method, it does not follow that a reversal must follow therefrom. These were suits to recover money paid under protest. In such an action the taxpayer must not only show that the Commissioner was wrong but he must further show the amount he is entitled to recover. In other words, he must establish the facts from which a correct determination of his tax liability can be made. This principie is well stated in Taylor v. Commissioner, 2 Cir., 70 F.2d 619, 621, as follows, “But the reason for this is obvious; a plaintiff, seeking an affirmative judgment measured in dollars, must prove how much is due. His claim is for money paid and he must show that every dollar he recovers is unjustly withheld. So it is not enough merely to prove that the tax as a whole was unlawful; some of the dollars he paid may nevertheless have been due.” Appellants completely failed to establish by competent evidence the amount of shrinkage incurred in these businesses. They had no records or factual testimony showing shrinkage losses for the years in question. Their statement that shrinkage amounted to 20% was not based upon facts. It was not taken from sales or any records which they kept. It merely constituted their opinion and conclusions as to what the percentage of shrinkage should be. Such •statements are" }, { "docid": "23486141", "title": "", "text": "at the time that case was argued the parties did not adequately present this issue to the court. Moreover, the court did not cite any authority for the position it adopted. See Mississippi River Fuel Corp. v. United States, 161 Ct. Cl. 237 (1963), 314 F. 2d 953, 958 (concurring opinion by Judge Davis in which Judge Laramore concurred). Tie court stated that “while the statutes authorizing refunds do not specifically empower the Commissioner to reaudit a return whenever repayment is claimed, authority therefore is necessarily implied. An overpayment must appear before refund is authorized. Although the statute of limitations may have barred the assessment and collection of any additional sum, it does not obliterate the right of the United States to retain payments already received when they do not exceed the amount which might have been properly assessed and demanded.\" [284 U.S. at 283] Stone v. White, 301 U.S. 532, 534 (1937) ; Helvering v. Taylor, 293 U.S. 507 (1935). Taylor v. Helvering, 70 F. 2d 619 (2d Cir. 1934). E.g., United States v. Pfister, 205 F. 2d 538, 542 (8th Cir. 1953), -where the court by way of dicta stated that “the burden is on. the taxpayer to establish the exact amount to which he is entitled. To sustain the burden upon him, taxpayer must prove the legality and amount of any deduction claimed.” If you follow the strict common law principles that underlie an action in assumpsit for money had and received, “it is incumbent upon the claimant to show that the united States has money which belongs to him.” (Lewis v. Reynolds, supra at 283) When the government challenges an item in taxpayer’s return by way of a defense in the nature of a setoff, it does not mahe a counter-demand on the taxpayer but merely makes a denial of his equitable right to recover. Routzahn v. Brown, 95 F. 2d 766, 769 (6th Cir. 1938). Thus, “if under all the facts the taxpayer has failed to show that the government has an excess of taxes for the year in question which equitably belongs to the" }, { "docid": "3354420", "title": "", "text": "property states enjoyed before its enactment, that was accomplished without changing their private ownership rights. New York is not a community property state. However, since the government has not appealed from Judge Levet’s determination that the loss of appellant’s investment in Haupt was an ordinary rather than a capital loss, and that it was realized in 1963, 275 F.Supp. at 260, it will be available to her as a credit against any taxable income she may have received in the five years following 1963. Int.Rev.Code of 1954 § 172(b) (1) (B). The Government’s Counterclaim It was the well-established rule when the appellant began this suit that the burden of showing her right to carryback her loss and to demonstrate that she and her husband had fully paid the taxes otherwise due would be on her. This follows from the principle that when a taxpayer sues for refund of taxes erroneously paid, Larchfield Corp. v. United States, 373 F.2d 159 (2d Cir. 1966), or for refund of taxes paid in a prior year by carrying back to it a loss sustained in a later year, Commissioner v. Van Bergh, 209 F.2d 23 (2d Cir. 1954), the action is one for restitution and a plaintiff must show that good conscience requires the refund. Cf. Taylor v. Commissioner, 70 F.2d 619, 620 (2d Cir. 1934), aff’d sub nom. Hel-vering v. Taylor, 293 U.S. 507, 55 S.Ct. 287, 79 L.Ed. 623 (1935). “This of necessity [put] in issue every credit or deduction found in the particular tax return for which refund is sought or in a related tax return,” Missouri Pac. R.R. v. United States, 338 F.2d 668, 671, 168 Ct.Cl. 86 (1964), as well as the adequacy of the amount of income reported. It was immaterial that the government had not asserted a deficiency. E. g. Compton v. United States, 334 F.2d 212 (4th Cir. 1964). Cf. Lewis v. Reynolds, 284 U.S. 281, 283, 52 S.Ct. 145, 76 L.Ed. 293 (1932). During the trial, the government came forward with evidence of bank deposits by the taxpayers substantially in excess of the income reported," }, { "docid": "23627349", "title": "", "text": "decision, upon a claim for refund, is whether the taxpayer has overpaid his tax. This involves a redetermination o-f the entire tax liability. While no new assessment can be made, after the bar of the statute has fallen, the taxpayer, nevertheless, is not entitled to a refund unless he has overpaid his fax, Tlie action to recover on a claim for refund is in the nature of an action for money had and received and it is incumbent upon the claimant to show that the United States has money which belongs to him.” Lewis v. Reynolds, 284 U.S. 281, 283, 52 S.Ct. 145, 146, 76 L.Ed. 293. “Not only must the plaintiff show that the Commissioner was wrong, but he must go further and establish the essential facts from which a correct determination of his tax liability can be made.” Roybark v. United States, D.C.S.D.Cal., 104 F.Supp. 759, 762, and cases cited. The burden is on the taxpayer to establish the exact amount to which he is entitled. To sustain the burden upon him, taxpayer must prove the legality and amount of any deduction claimed. Helvering v. Taylor, 293 U.S. 507, 514, 55 S.Ct. 287, 79 L.Ed. 623. And where under the evidence either the 'legality •or the amount of the claimed deduction is brought in question in an action to recover an overpayment of taxes, an issue is raised .available for defense without regard to its availability as a basis for affirmative relief. Champ Spring Co. v. United States, 8 Cir., 47 F.2d 1, 3; Rothensies v. Electric Storage Battery Co., 329 U.S. 296, 299, 67 S.Ct. 271, 91 L.Ed. 296. Taxpayer in this case maintained two herds, one for breeding and one for sale in the ordinary course of business. On occasion he made sales from and purchases for both herds. He did not keep separate books of account for the separate 'herds. The evidence shows that he deducted as an ordinary business expense the cost •of all purchases without distinction as to the herd for which the purchases were :made. When cross examined upon the purchases for" } ]

[ { "docid": "19302040", "title": "", "text": "the unstayed judgments held by the Petitioning Creditors were not subject to bona fide dispute. 7. Whether the bankruptcy court erred when it entered the Order for Relief. 8. Whether the bankruptcy court abused its discretion when it denied a stay of the Chapter 11 proceedings while the Order for Relief was on appeal. IV.STANDARDS OF REVIEW A. General Standards of Review. De novo means review is independent, with no deference given to the trial court’s conclusion. See First Ave. West Bldg., LLC v. James (In re Onecast Media, Inc.), 439 F.3d 558, 561 (9th Cir.2006). We apply a two-part test to determine whether the bankruptcy court abused its discretion. United States v. Hinkson, 585 F.3d 1247, 1261-62 (9th Cir.2009). First, we consider de novo whether the bankruptcy court applied the correct legal standard to the relief requested. Id. Then, we review the bankruptcy court’s fact findings for clear error. Id. at 1262 & n. 20. We must affirm the bankruptcy court’s fact findings unless we conclude that they are “(1) ‘illogical,’ (2) ‘implausible,’ or (3) without ‘support in inferences that may be drawn from the facts in the record.’ ” Id. We may affirm the bankruptcy court’s ruling on any basis supported by the record. See, e.g., Heilman v. Heilman (In re Heilman), 430 B.R. 213, 216 (9th Cir. BAP 2010); FDIC v. Kipperman (In re Commercial Money Center, Inc.), 392 B.R. 814, 826-27 (9th Cir. BAP 2008); see also McSherry v. City of Long Beach, 584 F.3d 1129,1135 (9th Cir.2009). B. Standards of Review Relating to the First Dismissal Motion. The existence of the bankruptcy court’s jurisdiction is a question of law subject to de novo review. See Reebok Int’l, Ltd. v. Marnatech Enters., 970 F.2d 552, 554 (9th Cir.1992). “We review de novo the determination that service of process was sufficient.” Rubin v. Pringle (In re Focus Media, Inc.), 387 F.3d 1077, 1081 (9th Cir.2004). Ripeness is a question of law reviewed de novo. See Chang v. United States, 327 F.3d 911, 921 (9th Cir.2003); Nat’l Audubon Soc’y, Inc. v. Davis, 307 F.3d 835, 849 (9th Cir.)," } ]

[ { "docid": "15943927", "title": "", "text": "401 (k) funds, which included a 2008 Nissan SUV, a new I-phone, and comic books and related expenses, the State Court found that John did not spend the 401(k) funds to support the marital community or to pay child support. The State Court’s Oral Findings and written Opinion express implicit disapproval of John’s actions in spending the 401 (k) funds for his personal use. However, the State Court did not make any specific findings as to John’s mental state in dissipating the 401(k) funds. In the Memorandum Decision, the bankruptcy court concluded, consistent with the State Court determinations, that John had inappropriately withdrawn the 401(k) funds from the community and spent them. The bankruptcy court further concluded that John’s “bad acts” were the “most significant component” in the State Court’s decision to impose the Property Settlement Judgment. The bankruptcy court’s ultimate conclusion was that John had committed a defalcation for purposes of § 523(a)(4) that supported the decision to except a portion of the Property Settlement Judgment from his chapter 13 discharge. However, it expressly relied on the In re Lewis defalcation standards in reaching that conclusion. The bankruptcy court did not have the opportunity to address the enhanced intent standard adopted by the Supreme Court in Bullock in concluding that John had committed a defalcation, resulting in an exception to his discharge under § 523(a)(4) for a portion of the Property Settlement Judgment. Accordingly, at the very least, we are required to vacate the Order and remand this matter for further proceedings to address the Bullock intent standard. 4. Washington Law and the “Express” or “Technical” Trust Requirement However, we ultimately determine that there is a more fundamental problem with the bankruptcy court’s analysis in the Memorandum Decision supporting the Order that requires reversal. We conclude that Washington common law does not make marriage an “express” or “technical” trust relationship that necessarily makes married spouses fiduciaries of the marital community for purposes of the exception to discharge provisions of § 523(a)(4). In determining whether the requisite trust relationship exists for an exception to discharge under § 523(a)(4), we look" }, { "docid": "257629", "title": "", "text": "before filing his notice of appeal, to file a written notice of his election to forego any further amendments to his Complaint so that the court could enter a final judgment of dismissal of the adversary proceeding, WMX Techs., 104 F.3d at 1135-36, we have no trouble concluding here, under the particular circumstances of this matter, that the interests of everyone involved—Barnes, Belice and the bankruptcy court—will be best served by our hearing and deciding this appeal now. We thus grant leave to appeal. STANDARDS OF REVIEW AND CIVIL RULE 12(b)(6) LEGAL STANDARDS We review a dismissal under Civil Rule 12(b)(6) de novo. See Aloha-Care v. Hawaii Dept. of Human Services, 572 F.3d 740, 744 n. 2 (9th Cir.2009). We also review the bankruptcy court’s interpretation of the Bankruptcy Code de novo. See W. States Glass Corp. of N. Cal. (In re Bay Area Glass, Inc.), 454 B.R. 86, 88 (9th Cir. BAP 2011). When we conduct a de novo review, “we look at the matter anew, the same as if it had not been heard before, and as if no decision previously had been rendered, giving no deference to the bankruptcy court’s determinations.” Charlie Y., Inc. v. Carey (In re Carey), 446 B.R. 384, 389 (9th Cir. BAP 2011); see also B-Real, LLC v. Chaussee (In re Chaussee), 399 B.R. 225, 229 (9th Cir. BAP 2008). As a result, in order to decide this appeal, we apply the same legal standards governing motions to dismiss under Civil Rule 12(b)(6) that apply in all federal courts. “A Rule 12(b)(6) dismissal may be based on either a ‘lack of a cognizable legal theory’ or ‘the absence of sufficient facts alleged under a cognizable legal theory.’ ” Johnson, 534 F.3d at 1121 (quoting Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir.1988)). Under Civil Rule 12(b)(6), a court must also construe the complaint in the light most favorable to the plaintiff, and must accept all well-pleaded factual allegations as true. Johnson, 534 F.3d at 1122; Knox v. Davis, 260 F.3d 1009, 1012 (9th Cir.2001). In both instances, the key is" }, { "docid": "17536387", "title": "", "text": "for clear error; (2) its selection of the applicable legal rules under § 727 de novo; and (3) its application of the facts to those rules requiring the exercise of judgments about values animating the rules de novo. Searles v. Riley (In re Searles), 317 B.R. 368, 373 (9th Cir.BAP2004), aff'd, 212 Fed.Appx. 589 (9th Cir.2006). The bankruptcy court’s interpretation of § 727(a)(2)(A) is a legal conclusion we review de novo. See B-Real, LLC v. Chaussee (In re Chaussee), 399 B.R. 225, 229 (9th Cir. BAP 2008). We review an order granting summary judgment de novo and are bound by the same principles as the bankruptcy court. Marciano v. Fahs (In re Marciano), 459 B.R. 27, 35 (9th Cir. BAP 2011), aff'd, 708 F.3d 1123 (9th Cir.2013). Summary judgment is proper when the plead ings, discovery and affidavits show that there is “no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Civil Rule 56(a), incorporated by Rule 7056. The party moving for summary judgment bears the burden of identifying those portions of the pleadings, discovery and affidavits that demonstrate the absence of a genuine issue of a material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). V. DISCUSSION A. Governing law Section 727(a)(2)(A) provides, in relevant part, that the bankruptcy court must deny discharge if, “the debtor, with intent to hinder, delay, or defraud a creditor ... has transferred, removed, destroyed, mutilated, or concealed ... (A) property of the debtor, within one year before the date of the filing of the petition.” The burden of proof is on the objector to show by a preponderance of the evidence that (1) the debtor transferred or concealed property, (2) the property belonged to the debtor, (3) the transfer occurred within one year of the bankruptcy filing, and (4) the debtor executed the transfer with the intent to hinder, delay or defraud a creditor. Aubrey v. Thomas (In re Aubrey), 111 B.R. 268, 273 (9th Cir. BAP 1990). “[A]cts and intentions occurring prior" }, { "docid": "17536386", "title": "", "text": "subject to equitable tolling. The bankruptcy court found Tidewater ’s analysis more convincing and reasoned that the one-year period in § 727(a)(2)(A) was more akin to the period in § 727(a)(8) than the three-year lookback period in § 523(a)(1)(A) and § 507(a)(8)(A), the statutes at issue in Young. Consequently, the bankruptcy court held that § 727(a)(2)(A) represents a statute of repose that is not subject to equitable tolling. DeNoce’s remaining claims for relief on his 727 Complaint were later dismissed without prejudice to his right to appeal the PSJ Order. II. JURISDICTION The bankruptcy court had jurisdiction under 28 U.S.C. §§ 1334 and 157(b)(2)(J). We have jurisdiction under 28 U.S.C. § 158. III. ISSUE Did the bankruptcy court err in granting the PSJ Motion and denying the PSJ Cross-Motion? Specifically, did it err in ruling that the one-year “lookback” period in § 727(a)(2)(A) is a statute of repose not subject to equitable tolling? IV. STANDARDS OF REVIEW In an action for denial of discharge, we review: (1) the bankruptcy court’s determinations of the historical facts for clear error; (2) its selection of the applicable legal rules under § 727 de novo; and (3) its application of the facts to those rules requiring the exercise of judgments about values animating the rules de novo. Searles v. Riley (In re Searles), 317 B.R. 368, 373 (9th Cir.BAP2004), aff'd, 212 Fed.Appx. 589 (9th Cir.2006). The bankruptcy court’s interpretation of § 727(a)(2)(A) is a legal conclusion we review de novo. See B-Real, LLC v. Chaussee (In re Chaussee), 399 B.R. 225, 229 (9th Cir. BAP 2008). We review an order granting summary judgment de novo and are bound by the same principles as the bankruptcy court. Marciano v. Fahs (In re Marciano), 459 B.R. 27, 35 (9th Cir. BAP 2011), aff'd, 708 F.3d 1123 (9th Cir.2013). Summary judgment is proper when the plead ings, discovery and affidavits show that there is “no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Civil Rule 56(a), incorporated by Rule 7056. The party moving for summary" }, { "docid": "17543940", "title": "", "text": "the bankruptcy court focused on the fact that there was no familial relationship between Patricia and Jeanette. According to the court, the purpose, intent, and plain meaning of § 523(a)(5) and § 523(a)(15) all required the specified type of familial relationship as a prerequisite to nondischargeability. Without the requisite familial relationship, the court reasoned, the provisions simply did not apply. On February 15, 2013, the bankruptcy court entered both an order granting summary judgment and a separate judgment in Patricia’s favor disposing of the adversary proceeding. Jeanette and Karton timely filed their notice of appeal on February 27, 2013. JURISDICTION The bankruptcy court had jurisdiction pursuant to 28 U.S.C. §§ 1334 and 157(b)(2)(I). We have jurisdiction under 28 U.S.C. § 158. ISSUE In the process of granting summary judgment, did the bankruptcy court incor rectly hold that § 523(a)(5) and § 523(a)(15) did not apply because the subject debt was not connected to a spouse, former spouse or child of the debtor? STANDARDS OF REVIEW We review summary judgment rulings de novo. Bendon v. Reynolds (In re Reynolds), 479 B.R. 67, 71 (9th Cir. BAP 2012). The bankruptcy court’s decision that a claim is dischargeable also is subject to de novo review. See Miller v. United States, 363 F.3d 999, 1004 (9th Cir.2004). So is the bankruptcy court’s interpretation of the Bankruptcy Code. See Danielson v. Flores (In re Flores), 735 F.3d 855, 856 n. 4 (9th Cir.2013) (en banc). DISCUSSION This appeal hinges on a single question of law regarding the meaning and effect of the phrase “spouse, former spouse or child of the debtor” as applicable to both § 523(a)(5) and § 523(a)(15). Given the plain meaning of the language and the context in which it is used, the phrase appears to limit the scope of debt nondis-chargeable under both provisions. Generally speaking, § 523(a)(5) covers claims in the nature of alimony, maintenance, or support, while § 523(a)(15) covers other, non-support obligations arising from domestic relations proceedings. As to each provision, the phrase “spouse, former spouse or child of the debtor” on its face appears to specify to" }, { "docid": "15943920", "title": "", "text": "that John’s “bad acts” in dealing with the 401(k) funds constituted a defalcation for purposes of § 523(a)(4) in that he breached the marital trust relationship with Kimberly and breached his fiduciary duty to the marital community. Memorandum Decision, at p. 9. However, since the $274,607 401(k) funds represented only 82.18% of the net community assets initially ascribed by the State Court to John in the Decree, the bankruptcy court found that only 82.18% of the net community assets ascribed to John were “tainted” by his defalcation. Memorandum Decision, at p. 10. Accordingly, the bankruptcy court excepted only 82.18% of the Property Settlement Judgment amount, or $82,579.39, plus interest, from John’s chapter 13 discharge under § 523(a)(4). Memorandum Decision at p. 11.The bankruptcy court entered an agreed form of order (“Order”) granting in part and denying in part the parties’ respective cross-motions for summary judgment on March 26, 2013. John filed a timely Notice of Appeal of the Order on April 9, 2013. Kimberly did not file a cross-appeal. II. JURISDICTION The bankruptcy court had jurisdiction under 28 U.S.C. §§ 1334 and 157(b)(1) and (b)(2)(I). We have jurisdiction under 28 U.S.C. § 158. III.ISSUES 1. Did the bankruptcy court apply the appropriate intent standard in concluding that John had committed a “defalcation” to except a portion of John’s debt to Kimberly from discharge under § 523(a)(4)? 2. Did the bankruptcy court err in concluding that under Washington common law, the marital relationship is in the nature of an “express” or “technical” trust, making spouses fiduciaries with respect to one another so long as the marital relationship continues for purposes of exception to discharge claims under § 523(a)(4)? IV.STANDARDS OF REVIEW We review a bankruptcy court’s legal conclusions, including its interpretation of provisions of the Bankruptcy Code and state law, de novo. Roberts v. Erhard (In re Roberts), 331 B.R. 876, 880 (9th Cir. BAP 2005), aff'd, 241 Fed.Appx. 420 (9th Cir.2007). Likewise, we review de novo a bankruptcy court’s decision to grant in whole or in part summary judgment. Marciano v. Fahs (In re Marciano), 459 B.R. 27, 35 (9th" }, { "docid": "9895241", "title": "", "text": "reversed. New Falls v. Boyajian (In re Boyajian), 367 B.R. 138 (9th Cir. BAP 2007). In a careful opinion, the BAP held that, barring any limitations in the assignment itself, § 523(a)(2)(B)(iii) permits an assignee to stand in the shoes of its assignor and to pursue an exception to discharge based on the assignor’s reliance on materially false financial statements. In the view of the BAP, the bankruptcy court erred by failing to take account of “the legal implications of an assignment.” Id. at 145. On April 26, 2007, the Boyajians appealed to this court. We affirm the judgment of the BAP and remand to the bankruptcy court for proceedings consistent with this opinion. II. Standard of Review We review decisions of the BAP de novo and apply the same standard of review that the BAP applied to the bankruptcy court’s ruling. Wood v. Stratos Prod. Dev. (In re Ahaza Sys., Inc.), 482 F.3d 1118, 1123 (9th Cir.2007). We review de novo the bankruptcy court’s decision to grant or deny summary judgment. Sun-crest Healthcare Ctr. LLC v. Omega Healthcare Investors, Inc. (In re Raintree Healthcare Corp.), 431 F.3d 685, 687 (9th Cir.2005). We also review de novo the bankruptcy court’s and the BAP’s interpretations of the bankruptcy statute. Salazar v. McDonald (In re Salazar), 430 F.3d 992, 994 (9th Cir.2005); Debbie Reynolds Hotel & Casino, Inc. v. Calstar Corp. (In re Debbie Reynolds Hotel & Casino, Inc.), 255 F.3d 1061, 1065 (9th Cir.2001). III. Discussion This case turns on § 523(a)(2)(B)(iii) of the Bankruptcy Code and its intersection with the law of assignment. Section 523(a)(2)(B)(iii) provides an exception to discharge of a debt under 11 U.S.C. § 727 where the debt was obtained by means of a materially false written financial statement. Section 523(a)(2)(B)(iii) requires that the materially false statement be one “on which the creditor to whom the debtor is liable for such money, property, services, or credit reasonably relied.” The question before us is whether the assignee of a debt must itself have relied on the materially false statement, or whether it is enough that the original creditor" }, { "docid": "19767924", "title": "", "text": "and held that the Code neither preempted Debtor’s state law CPA claim, nor precluded Debtor’s FDCPA claim against B-Real. An order denying B-Real’s motion was entered on April 11, 2008. B-Real timely filed a notice of appeal and a request for leave to appeal the bankruptcy court’s interlocutory order, which the Panel granted on July 6, 2008. III.JURISDICTION The bankruptcy court had jurisdiction over this action pursuant to 28 U.S.C. § 1334(b) and § 157(b)(2)(A) and (B). We have appellate jurisdiction under 28 U.S.C. § 158(a)(3) and (b). IV.ISSUES A. Whether the Code preempts Debt- or’s state law CPA claim. B. Whether the Code precludes Debt- or’s federal FDCPA claim. V.STANDARDS OF REVIEW “A dismissal for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) is reviewed de novo. All allegations of material fact in the complaint are taken as true and construed in the light most favorable to the plaintiff.” Williams v. Gerber Prods. Co., 523 F.3d 934, 937 (9th Cir.2008) (quoting Stoner v. Santa Clara County Office of Educ., 502 F.3d 1116, 1120 (9th Cir.2007)); Naert v. Daff (In re Wash. Trust Deed Serv. Corp.), 224 B.R. 109, 112 (9th Cir. BAP 1998). Whether state law is preempted by the Code is a question of law we also review de novo. MSR Exploration, 74 F.3d at 912. We review issues of statutory construction and conclusions of law de novo. Ransom v. MBNA Am. Bank, N.A. (In re Ransom), 380 B.R. 799, 802 (9th Cir. BAP 2007). De novo review requires that we consider a matter anew, as if it had not been heard before, and as if no decision had been previously rendered. United States v. Silverman, 861 F.2d 571, 576 (9th Cir.1988). VI.DISCUSSION A. The CPA Claim While it was the second claim for relief against B-Real in Debtor’s complaint, we first dispose of Debtor’s state law claim against B-Real under the CPA because the outcome is so clearly compelled. The CPA prohibits “[ujnfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce” in" }, { "docid": "15943922", "title": "", "text": "Cir. BAP 2011), aff'd, 708 F.3d 1123 (9th Cir.2013). De novo review requires that we consider a matter anew, as if no decision had been rendered previously. United States v. Silverman, 861 F.2d 571, 576 (9th Cir.1988); B-Real, LLC v. Chaussee (In re Chaussee), 399 B.R. 225, 229 (9th Cir. BAP 2008). V.DISCUSSION The record reflects that John’s conduct in liquidating and spending the 401 (k) funds entirely for himself without any benefit to the marital community was both irresponsible and reprehensible. The question in this appeal is whether that conduct supports an exception to his chapter 13 discharge consistent with the specific provisions of § 523(a)(4). 1. Generally Applicable Standards in Exception to Discharge Litigation One of the major policy objectives of the Bankruptcy Code is to provide the “honest but unfortunate” debtor with a fresh start. Bugna v. McArthur (In re Bugna), 33 F.3d 1054, 1059 (9th Cir.1994), citing Grogan v. Garner, 498 U.S. 279, 286-87, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). Accordingly, the discharge provisions of the Bankruptcy Code are interpreted liberally in favor of debtors. In re Bugna, 33 F.3d at 1059. “[E]xeeptions to discharge ‘should be confined to those plainly expressed.’ ” Kawaauhau v. Geiger, 523 U.S. 57, 62, 118 S.Ct. 974, 140 L.Ed.2d 90 (1998), quoting Gleason v. Thaw, 236 U.S. 558, 562, 35 S.Ct. 287, 59 L.Ed. 717 (1915). “In determining whether a particular debt falls within one of the exceptions of section 523, the statute should be strictly construed against the objecting creditor and liberally in favor of the debtor.” 4 Collier on Bankruptcy ¶ 523.05 (Alan N. Resnick & Henry J. Sommer eds., 16th ed. 2013). Generally, a creditor seeking to except a debt from the debtor’s discharge bears the burden of proof to establish by a preponderance of the evidence all of the elements of the statutory exception to discharge upon which the creditor relies. See Grogan v. Garner, 498 U.S. 279, 111 S.Ct. 654, 112 L.Edüd 755 (1991). 2. Section 528(a)(1) Elements and Standards Section 523(a)(4) provides that: (a) A discharge under section 727 ... or 1328(b) of" }, { "docid": "15943921", "title": "", "text": "jurisdiction under 28 U.S.C. §§ 1334 and 157(b)(1) and (b)(2)(I). We have jurisdiction under 28 U.S.C. § 158. III.ISSUES 1. Did the bankruptcy court apply the appropriate intent standard in concluding that John had committed a “defalcation” to except a portion of John’s debt to Kimberly from discharge under § 523(a)(4)? 2. Did the bankruptcy court err in concluding that under Washington common law, the marital relationship is in the nature of an “express” or “technical” trust, making spouses fiduciaries with respect to one another so long as the marital relationship continues for purposes of exception to discharge claims under § 523(a)(4)? IV.STANDARDS OF REVIEW We review a bankruptcy court’s legal conclusions, including its interpretation of provisions of the Bankruptcy Code and state law, de novo. Roberts v. Erhard (In re Roberts), 331 B.R. 876, 880 (9th Cir. BAP 2005), aff'd, 241 Fed.Appx. 420 (9th Cir.2007). Likewise, we review de novo a bankruptcy court’s decision to grant in whole or in part summary judgment. Marciano v. Fahs (In re Marciano), 459 B.R. 27, 35 (9th Cir. BAP 2011), aff'd, 708 F.3d 1123 (9th Cir.2013). De novo review requires that we consider a matter anew, as if no decision had been rendered previously. United States v. Silverman, 861 F.2d 571, 576 (9th Cir.1988); B-Real, LLC v. Chaussee (In re Chaussee), 399 B.R. 225, 229 (9th Cir. BAP 2008). V.DISCUSSION The record reflects that John’s conduct in liquidating and spending the 401 (k) funds entirely for himself without any benefit to the marital community was both irresponsible and reprehensible. The question in this appeal is whether that conduct supports an exception to his chapter 13 discharge consistent with the specific provisions of § 523(a)(4). 1. Generally Applicable Standards in Exception to Discharge Litigation One of the major policy objectives of the Bankruptcy Code is to provide the “honest but unfortunate” debtor with a fresh start. Bugna v. McArthur (In re Bugna), 33 F.3d 1054, 1059 (9th Cir.1994), citing Grogan v. Garner, 498 U.S. 279, 286-87, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). Accordingly, the discharge provisions of the Bankruptcy Code are interpreted" }, { "docid": "6924221", "title": "", "text": "2, 2005, Benjamin Huh was not aware of [the Market] (and so Huh did not know if [the Market] was generating profits or not). 25. Huh was not aware of the Sa-chan/Orion Sachan Corporation purchase of [the Market] until after the sale closed on March 2, 2005. Findings and Conclusions at 8-9. A dismissal judgment was entered in favor of Huh in the Adversary Proceeding on November 26, 2012. Sachan filed a timely Notice of Appeal. II.JURISDICTION The bankruptcy court had jurisdiction under 28 U.S.C. §§ 1334 and 157(b)(2)(I). We have jurisdiction under 28 U.S.C. § 158. III.ISSUE Did the bankruptcy court err in declining to impute the fraud of Huh’s agent, Kim, to Huh for purposes of excepting Huh’s debt to Sachan from discharge under § 523(a)(2)(A)? IV.STANDARDS OF REVIEW We review a bankruptcy court’s legal conclusions, including its interpretation of provisions of the Bankruptcy Code, de novo. Roberts v. Erhard (In re Roberts), 331 B.R. 876, 880 (9th Cir. BAP 2005), aff'd, 241 Fed.Appx. 420 (9th Cir.2007). De novo review requires that we consider a matter anew, as if no decision had been rendered previously. United States v. Silverman, 861 F.2d 571, 576 (9th Cir.1988); B-Real, LLC v. Chaussee (In re Chaussee), 399 B.R. 225, 229 (9th Cir. BAP 2008). We may affirm on any basis supported by the record. Shanks v. Dressel, 540 F.3d 1082, 1086 (9th Cir.2008). V.DISCUSSION Section 523(a)(2)(A) excepts from a debtor’s discharge debts resulting from “false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s or an insider’s financial condition.” A creditor seeking to except a debt from discharge based on fraud bears the burden of proof by a preponderance of the evidence to establish each of five elements: (1) misrepresentation, fraudulent omission or deceptive conduct; (2) knowledge of the falsity or deceptiveness of such representation(s) or omission(s); (3) an intent to deceive; (4) justifiable reliance by the creditor on the subject representation(s) or conduct; and (5) damage to the creditor proximately caused by its reliance on such representation(s) or conduct. Ghomeshi v. Sabban (In re Sabban), 600" }, { "docid": "6924222", "title": "", "text": "consider a matter anew, as if no decision had been rendered previously. United States v. Silverman, 861 F.2d 571, 576 (9th Cir.1988); B-Real, LLC v. Chaussee (In re Chaussee), 399 B.R. 225, 229 (9th Cir. BAP 2008). We may affirm on any basis supported by the record. Shanks v. Dressel, 540 F.3d 1082, 1086 (9th Cir.2008). V.DISCUSSION Section 523(a)(2)(A) excepts from a debtor’s discharge debts resulting from “false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s or an insider’s financial condition.” A creditor seeking to except a debt from discharge based on fraud bears the burden of proof by a preponderance of the evidence to establish each of five elements: (1) misrepresentation, fraudulent omission or deceptive conduct; (2) knowledge of the falsity or deceptiveness of such representation(s) or omission(s); (3) an intent to deceive; (4) justifiable reliance by the creditor on the subject representation(s) or conduct; and (5) damage to the creditor proximately caused by its reliance on such representation(s) or conduct. Ghomeshi v. Sabban (In re Sabban), 600 F.3d 1219, 1222 (9th Cir.2010); Oney v. Weinberg (In re Weinberg), 410 B.R. 19, 35 (9th Cir. BAP 2009). It is axiomatic that one of the major policy objectives of the Bankruptcy Code is to provide the “honest but unfortunate” debtor with a fresh start. Bugna v. McArthur (In re Bugna), 33 F.3d 1054, 1059 (9th Cir.1994), citing Grogan v. Garner, 498 U.S. 279, 286-87, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). Consequently, the exception to discharge provisions of the Bankruptcy Code are interpreted strictly in favor of debtors. In re Bugna, 33 F.3d at 1059. A. Imputed Fraud and § 528(a)(2)(A) 1. The Impact of Two Early Supreme Court Decisions Interpretation of § 523(a)(2)(A) has been impacted by two late nineteenth century Supreme Court opinions interpreting a predecessor provision of the Bankruptcy Act of 1867 (the “1867 Act”). The subject statute provided that “no debt created by the fraud or embezzlement of the bankrupt, or by defalcation as a public officer, or while acting in a fiduciary capacity, shall be discharged under this act.”" }, { "docid": "15943928", "title": "", "text": "relied on the In re Lewis defalcation standards in reaching that conclusion. The bankruptcy court did not have the opportunity to address the enhanced intent standard adopted by the Supreme Court in Bullock in concluding that John had committed a defalcation, resulting in an exception to his discharge under § 523(a)(4) for a portion of the Property Settlement Judgment. Accordingly, at the very least, we are required to vacate the Order and remand this matter for further proceedings to address the Bullock intent standard. 4. Washington Law and the “Express” or “Technical” Trust Requirement However, we ultimately determine that there is a more fundamental problem with the bankruptcy court’s analysis in the Memorandum Decision supporting the Order that requires reversal. We conclude that Washington common law does not make marriage an “express” or “technical” trust relationship that necessarily makes married spouses fiduciaries of the marital community for purposes of the exception to discharge provisions of § 523(a)(4). In determining whether the requisite trust relationship exists for an exception to discharge under § 523(a)(4), we look to state law. Honkanen v. Hopper (In re Honkanen), 446 B.R. 373, 379 (9th Cir. BAP 2011). The bankruptcy court determined that married spouses stand in a trust relationship to one another without specifying the nature of their relationship as an “express” or “technical” trust. Under Washington law, the requirements for creating a trust are established by statute. Revised Code of Washington (“RCW”) § 11.98.008, entitled “Trust creation — Methods,” states: A trust may be created by: (1) Transfer of property to another person as trustee during the trustor’s lifetime or by will or other disposition taking effect upon the trustor’s death; (2) Declaration by the owner of property that the owner holds identifiable property as trustee; or (3) Exercise of a power of appointment in favor of a trustee. (Emphasis added.) RCW § 11.98.011, entitled “Trust creation — Requirements,” states among other provisions that, “A trust is created only if: ... (b) the trustor indicates an intention to create the trust.” (Emphasis added.) Finally, RCW § 11.98.014, entitled “Trust creation — Oral trusts,” provides" }, { "docid": "13180126", "title": "", "text": "re Mendez), 367 B.R. 109, 113 (9th Cir.BAP 2007)(§ 109(h)); see also Soderlund v. Cohen (In re Soderlund), 236 B.R. 271, 272-73 (9th Cir.BAP 1999)(whether a debt is liquidated or contingent is a question of statutory interpretation under § 109(e) which is reviewed de novo). De novo review requires that we consider a matter anew, as if it had not been heard before, and as if no decision had been rendered previously. United States v. Silverman, 861 F.2d 571, 576 (9th Cir.1988); B-Real, LLC v. Chaussee (In re Chaussee), 399 B.R. 225, 229 (9th Cir.BAP 2008). y. DISCUSSION A. The Problem These appeals have arisen during the current difficult economic time which is being referred to as “The Great Recession.” The collapse of the “Housing Bubble” has been identified as a significant cause of a severely depressed housing market. The Central District of California, where these appeals originate, is one region that has been particularly hard hit by the downturn in the prices of homes. In some areas, home values are a mere 50% of what they were when the home values peaked a few years ago. During the accelerated growth of home values as the bubble was building, homeowners gained substantial equity very quickly. Many homeowners accessed that equity through credit lines or other loans secured by second and sometimes third deeds of trust on their homes. As with the Smiths and Hamburgs, many individuals find themselves owing significantly more for their homes than the homes are now worth, and are struggling to meet the substantial payment obligations incurred both to purchase their homes and for their equity borrowings. As mortgage defaults have increased, so have bankruptcy filings. While many homeowners have walked or will walk away from their homes, others are trying to save their homes by using the provisions of chapter 13. These appeals address one major challenge faced by homeowners attempting to save their homes in chapter 13: debt limits for chapter 13 eligibility. As relevant to these appeals involving joint debtors, section 109(e) provides: Only ... an individual with regular income and such individual’s spouse," }, { "docid": "13180125", "title": "", "text": "Hamburgs requested that we transfer the appeal directly to the Ninth Circuit. Our motions panel denied the request that we certify the matter to the court of appeals, stating: “The bankruptcy court already made the predicate certification; Appellants did not file a timely petition for leave to appeal; it is up to the court of appeals, and not this panel, to decide whether to entertain a late petition for leave to appeal.” The Ninth Circuit has not granted permission for either appeal to be heard as a direct appeal; we therefore retain jurisdiction to decide these appeals pursuant to 28 U.S.C. § 158. III. ISSUE Whether a debt secured by a consensual lien that is wholly unsecured under § 506(a) should be counted as unsecured debt for purposes of determining the eligibility of debtors for chapter 13 relief under § 109(e). IV. STANDARDS OF REVIEW Eligibility determinations under § 109 involve issues of statutory construction and conclusions of law, including interpretation of Bankruptcy Code provisions, which we review de novo. See Mendez v. Salven (In re Mendez), 367 B.R. 109, 113 (9th Cir.BAP 2007)(§ 109(h)); see also Soderlund v. Cohen (In re Soderlund), 236 B.R. 271, 272-73 (9th Cir.BAP 1999)(whether a debt is liquidated or contingent is a question of statutory interpretation under § 109(e) which is reviewed de novo). De novo review requires that we consider a matter anew, as if it had not been heard before, and as if no decision had been rendered previously. United States v. Silverman, 861 F.2d 571, 576 (9th Cir.1988); B-Real, LLC v. Chaussee (In re Chaussee), 399 B.R. 225, 229 (9th Cir.BAP 2008). y. DISCUSSION A. The Problem These appeals have arisen during the current difficult economic time which is being referred to as “The Great Recession.” The collapse of the “Housing Bubble” has been identified as a significant cause of a severely depressed housing market. The Central District of California, where these appeals originate, is one region that has been particularly hard hit by the downturn in the prices of homes. In some areas, home values are a mere 50% of" }, { "docid": "17571967", "title": "", "text": "the SJ Motion on May 24, 2013 and took the matter under submission. It entered its Memorandum on Motion for Summary Judgment (“Memorandum”) granting Wallace’s SJ Motion on May 30, 2013. The summary judgment order and a judgment in favor of Wallace in the adversary proceeding were entered on June 12, 2013. Francis filed a timely notice of appeal. II.JURISDICTION The bankruptcy court had jurisdiction under 28 U.S.C. §§ 1334 and 157(b)(1) and (b)(2)(I). We have jurisdiction under 28 U.S.C. § 158. III.ISSUE As stated by Francis, the sole issue in this appeal is, “Did the Bankruptcy Court err by failing to apply California law in granting the Appellee’s Motion for Summary Judgment?” IV.STANDARDS OF REVIEW We review a bankruptcy court’s legal conclusions, including its interpretation of provisions of the Bankruptcy Code, de novo. Roberts v. Erhard (In re Roberts), 331 B.R. 876, 880 (9th Cir. BAP 2005), aff'd, 241 Fed.Appx. 420 (9th Cir.2007). We also review de novo a bank ruptcy court’s decision to grant a motion for summary judgment. Marciano v. Fahs (In re Marciano), 459 B.R. 27, 35 (9th Cir. BAP 2011), aff'd, 708 F.3d 1123 (9th Cir.2013). De novo review requires that we consider a matter anew, as if no decision had been made previously. United States v. Silverman, 861 F.2d 571, 576 (9th Cir.1988); B-Real, LLC v. Chaussee (In re Chaussee), 399 B.R. 225, 229 (9th Cir. BAP 2008). We may affirm the decision of the bankruptcy court on any basis supported by the record. Shanks v. Dressel, 540 F.3d 1082, 1086 (9th Cir.2008). Y. SUMMARY JUDGMENT STANDARDS Summary judgment is appropriately granted where review of the relevant record establishes that there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Civil Rule 56(a), applicable in adversary proceedings in bankruptcy under Rule 7056; Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Ilko v. Cal. State Bd. of Equalization (In re Ilko), 651 F.3d 1049, 1052 (9th Cir.2011). VI. DISCUSSION 1. Section 523(a)(15) — Its Interpretation" }, { "docid": "9831357", "title": "", "text": "bankruptcy court granted summary judgment to Scott, and the Bankruptcy Appellate Panel (“BAP”) for the Ninth Circuit affirmed. The Lewises timely appealed. II. DISCUSSION We review decisions of the BAP de novo, applying the same standard of review as did the BAP to the underlying judgment of the bankruptcy court. In re Johnston, 21 F.3d 323, 326 (9th Cir.1994). Thus, we review the grant of summary judgment de novo, making all reasonable inferences in favor of the Lewises to determine whether there exists any genuine issue of material fact precluding judgment in Scott’s favor as a matter of law. Id.; In re Yarbrow, 150 B.R. 233, 236 (9th Cir. BAP 1993). A. The Lewises Were Fiduciaries Under Section 523 1. The Section 523 Standard. With certain enumerated exceptions, “[t]he effect of a discharge in bankruptcy is to release a bankrupt from all of his provable debts.” Davis v. Aetna Acceptance Co., 293 U.S. 328, 331, 55 S.Ct. 151, 153, 79 L.Ed. 393 (1934) (internal quotations omitted). The exceptions to dischargeability are listed in 11 U.S.C. § 523, and include “any debt ... for fraud or defalcation while acting in a fiduciary capacity.” 11 U.S.C. § 523(a)(4); In re Short, 818 F.2d 693, 694 (9th Cir.1987). Whether a relationship is a “fiduciary” one within the meaning of section 523(a)(4) is a question of federal law. Ragsdale v. Haller, 780 F.2d 794, 795 (9th Cir.1986). The broad, general definition of “fiduciary” is inapplicable in the dischargeability context. Id. at 796. Instead, the fiduciary relationship must be one arising from an express or technical trust that was imposed before and without reference to the wrongdoing that caused the debt. Id. In other words, It is not enough that by the very act of wrongdoing out of which the contested debt arose, the bankrupt has become chargeable as a trustee ex maleficio. He must have been a trustee before the wrong and without reference thereto. Davis, 293 U.S. at 333, 55 S.Ct. at 154. Whether a fiduciary is a “trustee in that strict and narrow sense,” id., is determined in part by reference to" }, { "docid": "17571968", "title": "", "text": "re Marciano), 459 B.R. 27, 35 (9th Cir. BAP 2011), aff'd, 708 F.3d 1123 (9th Cir.2013). De novo review requires that we consider a matter anew, as if no decision had been made previously. United States v. Silverman, 861 F.2d 571, 576 (9th Cir.1988); B-Real, LLC v. Chaussee (In re Chaussee), 399 B.R. 225, 229 (9th Cir. BAP 2008). We may affirm the decision of the bankruptcy court on any basis supported by the record. Shanks v. Dressel, 540 F.3d 1082, 1086 (9th Cir.2008). Y. SUMMARY JUDGMENT STANDARDS Summary judgment is appropriately granted where review of the relevant record establishes that there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Civil Rule 56(a), applicable in adversary proceedings in bankruptcy under Rule 7056; Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Ilko v. Cal. State Bd. of Equalization (In re Ilko), 651 F.3d 1049, 1052 (9th Cir.2011). VI. DISCUSSION 1. Section 523(a)(15) — Its Interpretation and Application While our consideration of issues with respect to exceptions to discharge under § 523(a), and particularly § 523(a)(15), is informed by state law, our interpretation of § 523(a)(15) is fundamentally a question of federal law. See, e.g., Taylor v. Taylor (In re Taylor), 737 F.3d 670, 676-77 (10th Cir.2013): The nature of the obligation is not restricted to the parties’ label in the settlement agreement and is a question of federal law. Sylvester [v. Sylvester], 865 F.2d [1164] at 1166 [(10th Cir.1989) ]; see Young v. Young (In re Young), 35 F.3d 499, 500 (10th Cir.1994) (finding that shared intent “is not limited to the words of the settlement agreement, even if unambiguous” and stating that “the bankruptcy court is required to look behind the words and labels of the agreement in resolving this issue.”). That said, state law may inform the nature of the interest. Jodoin v. Samayoa (In re Jodoin), 209 B.R. 132, 137-38 (9th Cir. BAP 1997); Gionis v. Wayne (In re Gionis), 170 B.R. 675, 681 (9th Cir. BAP" }, { "docid": "6924220", "title": "", "text": "Although it reiterated its finding that Kim was Huh’s agent, the bankruptcy court declined to impute Kim’s fraud to Huh. Accordingly, the bankruptcy court found in favor of Huh on Sachan’s claim and directed counsel for Huh to prepare findings of fact and conclusions of law and a judgment in favor of Huh consistent with its rulings. In the Findings and Conclusions, the bankruptcy court found the following facts, among others: 20. Benjamin Huh never communicated directly or indirectly with Anil Sa-chan or any representative of Orion Sachan Corporation regarding the purchase of [the Market]. 21. Huh made no misrepresentations to Anil Sachan or any representative of Orion Sachan Corporation regarding the purchase of [the Market]. 22. Neither Jay Kim, nor anyone else, made any misrepresentations to Sachan on Huh’s behalf regarding the sale of [the Market]. 23. Prior to the sale of [the Market] on March 2, 2005, Benjamin Huh was not aware of [the Market] (and so Huh knew of no defects therein). 24. Prior to the sale of [the Market] on March 2, 2005, Benjamin Huh was not aware of [the Market] (and so Huh did not know if [the Market] was generating profits or not). 25. Huh was not aware of the Sa-chan/Orion Sachan Corporation purchase of [the Market] until after the sale closed on March 2, 2005. Findings and Conclusions at 8-9. A dismissal judgment was entered in favor of Huh in the Adversary Proceeding on November 26, 2012. Sachan filed a timely Notice of Appeal. II.JURISDICTION The bankruptcy court had jurisdiction under 28 U.S.C. §§ 1334 and 157(b)(2)(I). We have jurisdiction under 28 U.S.C. § 158. III.ISSUE Did the bankruptcy court err in declining to impute the fraud of Huh’s agent, Kim, to Huh for purposes of excepting Huh’s debt to Sachan from discharge under § 523(a)(2)(A)? IV.STANDARDS OF REVIEW We review a bankruptcy court’s legal conclusions, including its interpretation of provisions of the Bankruptcy Code, de novo. Roberts v. Erhard (In re Roberts), 331 B.R. 876, 880 (9th Cir. BAP 2005), aff'd, 241 Fed.Appx. 420 (9th Cir.2007). De novo review requires that we" }, { "docid": "17571966", "title": "", "text": "in California state court to enforce the Judgment. Francis’ chapter 7 filing followed closely thereafter. Francis filed an adversary proceeding against Wallace, seeking a determination that any obligation to pay the Credit Card Debts under the Judgment was not excepted from his discharge under § 523(a)(15). Wallace answered the adversary proceeding complaint, requesting that Francis’ obligations under the Judgment “be deemed non-dischargeable and that [Wallace] be awarded the costs of defending this action, attorney’s fees and such other relief as this Court determines is just and proper.” Wallace subsequently filed a motion for summary judgment (“SJ Motion”), arguing that Francis’ obligation to pay the Credit Card Debts under the Judgment, along with any attorneys fees and costs incurred to enforce the Judgment, was excepted from his discharge under § 523(a)(15). Francis opposed the SJ Motion, arguing that the “hold harmless” language of the Judgment did not support a nondischargeable debt to Wallace under § 523(a)(15) because there was no explicit obligation to “indemnify” her for purposes of California law. The bankruptcy court heard argument on the SJ Motion on May 24, 2013 and took the matter under submission. It entered its Memorandum on Motion for Summary Judgment (“Memorandum”) granting Wallace’s SJ Motion on May 30, 2013. The summary judgment order and a judgment in favor of Wallace in the adversary proceeding were entered on June 12, 2013. Francis filed a timely notice of appeal. II.JURISDICTION The bankruptcy court had jurisdiction under 28 U.S.C. §§ 1334 and 157(b)(1) and (b)(2)(I). We have jurisdiction under 28 U.S.C. § 158. III.ISSUE As stated by Francis, the sole issue in this appeal is, “Did the Bankruptcy Court err by failing to apply California law in granting the Appellee’s Motion for Summary Judgment?” IV.STANDARDS OF REVIEW We review a bankruptcy court’s legal conclusions, including its interpretation of provisions of the Bankruptcy Code, de novo. Roberts v. Erhard (In re Roberts), 331 B.R. 876, 880 (9th Cir. BAP 2005), aff'd, 241 Fed.Appx. 420 (9th Cir.2007). We also review de novo a bank ruptcy court’s decision to grant a motion for summary judgment. Marciano v. Fahs (In" } ]

[ { "docid": "18100359", "title": "", "text": "years began to run at the latest on March 31, 1951, when the last services were rendered. The petition in this case was filed June 27,1957, more than six years thereafter and is time barred. The fact that during the period between January 1, 1950, when plaintiff started to render services, and June 27, 1957, when the petition was filed, plaintiff sought administrative determination before the Veterans’ Education Appeals Board did not toll the statute of limitations. The appeal was not mandatory, but permissive only. Art Center School v. United States, 136 C. Cls. 218. Unless pursuance of administrative remedies is a prerequisite to suit, the statute of limitations is not suspended or tolled by the pursuance of administrative remedies. Girault v. United States, 133 C. Cls. 135; Mistretta v. United States, 128 C. Cls. 41; Nassif v. United States, 125 C. Cls. 379; Thomas v. United States, 125 C. Cls. 76; Gray v. United States, supra; Flaviana Tan, et al. v. United States, 122 C. Cls. 662; John P. Moriarity, Inc. v. United States, 97 C. Cls. 338; Levine v. United States, supra. Plaintiff in opposition contends that the statute of limitations did not begin to run on its claim until April 16,1956, because the Veterans Administration on said date renegotiated the tuition rate of Contract V3056V-330. It is evident that any facts relating to a renegotiation of the contract rate are completely irrelevant to this suit. The services in question were not rendered pursuant to such written contract, and the determination as to the contract rate would have nothing to do with the fair and reasonable basis. Plaintiff then says in the alternative that if the statute of limitations became operative on April 1,1951, as contended by the Government, then the period of seven months during which its books and records were in the custody of a Federal grand jury should be deducted from the 6-year period. These are not facts alleged in the petition and therefore not properly before the court. In any event, the fact that plaintiff’s books and records were in the custody of a" } ]

[ { "docid": "1586082", "title": "", "text": "on the date when all the events have occurred which fix the liability of the Government and entitle the claimant to institute an action. * * * [Citations omitted.] Therefore, where a claim is based upon a contractual obligation of the Government to pay money, the claim first accrues on the date when the payment becomes due and is wrongfully withheld in breach of the contract. [Citations omitted.] * * * The same rule applies when the right to payment depends upon a statute rather- than upon a contract. A prerequisite for plaintiff’s claim was his separation from Government employment. Prior to his separation, “all the events” fixing liability had not occurred. Cf. Oceanic Steamship Co. v. United States, supra, at 218 and 230. Thus, the fact that certain of the events had taken place many years before cannot be determinative. It was not until his retirement that plaintiff could seek a money judgment for the lump-sum payment. Our decision that plaintiff’s claim is timely is not inconsistent with the holding of Nagle v. United States, 133 Ct. Cl. 254, 135 F. Supp. 424 (1955), another case involving an employee who transferred from the Department of Justice to the Court of Claims. The plaintiff in Nagle (the widow of the employee) relied not upon section 1 of the Act of December 21, 1944, but upon sections 2 and 3 of that act and upon a contract theory. This court found each of plaintiff Nagle’s alternatives to be barred by the statute of limitations. 133 Ct. Cl. 254, 256-57. Accordingly, the Government’s motion to dismiss the petition was granted. However, it is important to note that, on February 13, 1956, the order was amended sq as to make the dismissal without prejudice. One reason for the amendment was the determination of the court that: * * * it is not possible to treat the petition as amended to include the allegation that plaintiff’s accumulated leave at the Department of Justice should have been transferred to the U.S. Court of Claims and credited to his account. In other words, the court wished" }, { "docid": "18155501", "title": "", "text": "contract provided when the amount to which plaintiff was entitled under the contract should become due. The word “due” in Art. 16 (d) of the contract in suit is used in the sense of being payable. No item of a claim under the contract with respect to which no payment had been made became payable, in view of Art. 16 (d), until the time contemplated by that section. And this is true, notwithstanding some part of the claim reserved for suit relates to unliqui-dated matters. Plaintiff was not required to institute suit prior to the date when the claim became payable, and the statute of limitation did not begin to run until the time when payment became due under the contract. Under the facts in the case at bar and Art. 16 (d) of the contract, this was July 9,1930. In Penn Bridge Co. v. United States, 71 C. Cls. 273, the contract provided that the amount due the contractor under the contract should be determined by the Bureau of Yards and Docks whose decision should be final and conclusive, and that determination of such amount should be deferred until completion of the contract, and this court said at pp. 278, 279: The defendant contends that plaintiff’s claim is barred by the statute of limitations, and this plea is based on the further contention that plaintiff’s cause of action accrued when the machinery was delivered. We do not agree but think that the cause of action did not accrue, under the terms of the contract, until the claim had been determined and approved by the Bureau of Yards and Docks. Therefore the claim was not barred. See also, to the same effect, Smith Courtney Co. v. United States, 46 C. Cls. 262; Utah Power & Light Co. v. United States, 67 C. Cls. 602, 606; Manufacturers Aircraft Association, Inc., v. United States, 77 C. Cls. 481, 522, 523; Electric Boat Co. v. United States, 81 C. 361, 367. If it be said that certain items of plaintiff’s claim set forth in its petition relating to extra costs and expenses alleged" }, { "docid": "22804819", "title": "", "text": "the Government’s insistence on its new position and in the light of recent decisions by other courts (States Marine Corp. v. United States, 283 F. 2d 716 (C.A. 2, 1960) ; Northern Metal Co. v. United States, 350 F. 2d 833 (C.A. 3, 1965); Crown Coat Front Co. v. United States, 363 F. 2d 407 (C.A. 2, 1966), we have reexamined the long chain of our limitations rulings in the contract field to determine the standards to be applied in this and the companion cases. I 1. Section 2501 of Title 28 of the United States Code bars claims in this court “unless the petition thereon is filed within six years after such claim first accrues.” “First accrual” has usually been put, in broad formulation, as the time when all events have occurred to fix the Government’s alleged liability, entitling the claimant to demand payment and sue here for his money. The prerequisite that the plaintiff must be able lawfully to demand payment goes back to the early days of this court. For contract cases, in the era before use of “disputes” clauses (or like devices for administrative determination) , the general principle was refined to the more specific rule that normally the cause of action first accrues, and the statute begins to run, when the work is completed or the items delivered (and accepted), or the services rendered, or (if the contract was never completed) when the breach became total. That was considered to be the time when the contractor could ordinarily demand his money and bring his suit if payment was not made. Voluntary efforts thereafter to obtain compensation through executive channels or by negotiation would not defer or toll limitations. But we have always recognized that this is not a rigid rule — that, in the contract field as in others, a particular agreement, or a special statute, can establish some other precondition for liability or an unusual time for demanding payment. See Friedman v. United States, 159 Ct. Cl. 1, 8-13, 310 F. 2d 381, 385-88 (1962), cert. denied, 373 U.S. 932 (1963). For instance, where" }, { "docid": "11595622", "title": "", "text": "services. This meaning is reinforced, given that the $53 per hour figure is an average cost, as discussed earlier. Since we hold that the overtime usage of Computer Room One is covered by the lease, it follows that the rate to be applied is $53 per hour. Ill With respect to whether appellant may recover for the entirety of its claim, we further conclude that no part is barred by the statute of limitations as having “accrued” more than six years before this suit was filed. As a general rule, a claim accrues when all events necessary to fix the Government’s liability have occurred, e.g., the services have been rendered, thus entitling the contractor to demand payment. Nager Electric Co. v. United States, 368 F.2d 847, 851, 177 Ct.Cl. 234 (1966). However, “a particular agreement ... can establish some other pre-condition for liability or an unusual time for demanding payment.” Id. at 852. The lessor correctly contends that the reporting and billing practices for overtime use adopted with S.A. 10 are controlling and that the Government’s liability was not fixed until the overtime use had first been reported to the lessor. The reporting and billing practice adopted here was precisely that followed in Manufacturer’s Aircraft Association v. United States, 77 Ct.Cl. 481, 17 USPQ 439, cert. denied, 291 U.S. 667, 54 S.Ct. 442, 78 L.Ed. 1057 (1934). There it was held that the timeliness of plaintiff’s .suit for the recovery of unpaid royalties was to be measured from the date that the Government first formally reported its use of plaintiff’s patents and not from the date that the use had occurred or from the date that the report was otherwise due. The Government argues that the reporting was irrelevant because the claim must be taken as having accrued when the services were performed unless the Government’s use of the overtime services was “inherently unknowable” to the lessor citing Japanese War Notes Claimants Association v. United States, 373 F.2d 356, 178 Ct.Cl. 630, cert. denied, 389 U.S. 971, 88 S.Ct. 466, 19 L.Ed.2d 461 (1967). The Government fails to recognize that" }, { "docid": "11093869", "title": "", "text": "Ass’n v. United States, 77 Ct. Cl. 481, 522-523 (1933), cert. denied, 291 U.S. 667 (1934) for the proposition that its cause of action did not arise until the claim had been denied by the Government. That case is inapposite to the situation here. It held that as a result of implication of practice, the parties to an implied contract agreed to a time when payment under the contract became due. Plaintiff there had no cause of action until the payments became due. In the case at bar, there is no prior practice of the parties upon which this court could find that the parties intended payment to become due at a time subsequent to the delivery of the inventory. Plaintiff’s argument must, therefore, fail. Plaintiff’s Fifth Amendment taking theory would likewise be barred by the statute of limitations. It is axiomatic that a cause of action for an unconstitutional taking accrues at the time the taking occurs. Stafford Ordnance Corp. v. United States, 123 Ct. Cl. 787, 108 F. Supp. 378 (1952); Chan Lai v. United States, 125 Ct. Cl. 142 (1953). Assuming that the Government unconstitutionally took possession of plaintiff’s property, such taking was accomplished when the goods were shipped to defendant in October 1954 — more than sis years prior to the filing of the petition in this case on December 29,1962. Plaintiff’s final contention is likewise non-meritorious. In essence, plaintiff contends that its case was submitted to the Comptroller General within the six-year period of limitations, [admittedly true] and should be deemed to have been referred to the Court of Claims for adjudication under 28 U.S.C. §2510 (1964 ed.). This statute states: § 2510. Eeferral of cases by Comptroller General. The Comptroller General may transmit to the Court of Claims for trial and adjudication any claim or matter of which the Court of Claims might take jurisdiction on the voluntary action of the claimant, together with all vouchers, papers, documents, and proofs pertaining thereto. The Court of Claims shall proceed with the claims or matters so referred as in other cases pending in such court and" }, { "docid": "22804828", "title": "", "text": "Ct. Cl. 331, 338, 334 F. 2d 250, 254 (1964); Kutz v. United States, 168 Ct. Cl. 68, 73-74 (1964). On the basis of these considerations, the court dealt with the limitations status of a “breach of contract claim” which is combined with “disputes-type” claims under the same contract in Austin Eng'r Co. and Holton, Seelye & Co., supra. In the former, the contract provided in Article 16(d) for payment of the final amount after determination 'by the contracting officer of questions arising under the contract and the amount properly “due”; one holding of the decision was that limitations did not run until that official had made his “determination and decision.” With respect to items which did not have to be submitted for decision by the contracting officer, the court first said (88 Ct. Q. at 563): No item of a claim under the contract with respect to which no payment had been made became payable, in view of Art. 16(d), until the time contemplated by that section. And this is true, notwithstanding some part of the claim reserved for suit relates to unliquidated matters. Plaintiff was not required to institute suit prior to the date when the claim became payable, and the statute of limitation did not begin to run until the time when payment became due under the contract. In explanation, the opinion later added (88 Ct. Cl. at 563-64): If it be said that certain items of plaintiff’s claim set forth in its petition relating to extra costs and expenses alleged to have resulted from extra work not contemplated by the contract are in the nature of un-liquidated damages which a contractor is not, for the purpose of suit, compelled, first, to submit to the contracting officer, it is sufficient here to say that, as a general rule, a cause of action or a claim under a contract does not accrue piecemeal and that where the contract contains a provision, such as Art. 16 (d), with reference to the time when the contract shall be regarded as finally concluded the statute of limitation with reference to bringing" }, { "docid": "847813", "title": "", "text": "strain to find an exception to a consistent statutory pattern. In sum, the mere labeling of an action as one in the nature of quasi contract is not enough to avoid the impact of the statute of limitations. The quasi contract was developed by the law courts as a device for creating a “contract” to remedy the absence of mutual promises under circumstances where it is necessary to preclude the unjust retention of an advantage or benefit. For determining when the limitations period starts to run, however, the quasi contract can be treated as a standard contract because the cause of action accrues when the “contract” is breached. Although it is possible that, if the parties had entered into a contract, payment would not have been due until the program was actually implemented, plaintiff had a right to sue under this theory as soon as defendants began using his idea for their benefit. If the defendants appropriated his idea, they used the idea during the pre-implementation development program of the summer and fall of 1969, and, thus, the plaintiff could have brought an action prior to December 19, 1969, the barrier date of three years before the initiation of this suit. Therefore, unless the statute of limitations was tolled, this cause of action is also time barred. 4. Conversion. In this count plaintiff alleges that defendants took his confidential idea, made it public, and thereby destroyed its value. The three year statute of limitations applies to this cause of action because it is an “action to recover damages caused by an injury unaccompanied with force.” 10 Del.C. § 8106. The idea was disclosed to the public by an advertisement in The Atlanta Constitution on November 13, 1969, and, as with all torts, the plaintiff’s cause of action accrued on that date. Because this “conversion” occurred more than three years before the suit was filed, the statute of limitations bars this cause of action unless the running of the limitations period was suspended. 5. Conspiracy. Plaintiff alleges that defendants conspired to obtain and to use plaintiff’s idea for their own benefit" }, { "docid": "18155502", "title": "", "text": "should be final and conclusive, and that determination of such amount should be deferred until completion of the contract, and this court said at pp. 278, 279: The defendant contends that plaintiff’s claim is barred by the statute of limitations, and this plea is based on the further contention that plaintiff’s cause of action accrued when the machinery was delivered. We do not agree but think that the cause of action did not accrue, under the terms of the contract, until the claim had been determined and approved by the Bureau of Yards and Docks. Therefore the claim was not barred. See also, to the same effect, Smith Courtney Co. v. United States, 46 C. Cls. 262; Utah Power & Light Co. v. United States, 67 C. Cls. 602, 606; Manufacturers Aircraft Association, Inc., v. United States, 77 C. Cls. 481, 522, 523; Electric Boat Co. v. United States, 81 C. 361, 367. If it be said that certain items of plaintiff’s claim set forth in its petition relating to extra costs and expenses alleged to have resulted from extra work not contemplated by the contract are in the nature of unliquidated damages which a contractor is not, for the purpose of suit, compelled, first, to submit to the contracting officer, it is sufficient here to say that, as a general rule, a cause of action or a claim under a contract does not accrue piecemeal and that where the contract contains a provision, such as Art. 16 (d), with reference to the time when the contract shall be regarded as finally concluded the statute of limitation with reference to bringing suit does not begin to run until that date. We think that article contemplated that whatever claim plaintiff had in connection with the contract should become due in the sense of payable at the time mentioned, which, in the case at bar, was July 9, 1930. The plea to the jurisdiction is accordingly overruled. It is so ordered. Whaley, Judge; LittletoN, Judge; GREEN, Judge; and Booth, Chief Justice, concur." }, { "docid": "11093867", "title": "", "text": "has been fulfilled by the contractor,” is too well established to now attempt to controvert. L. E. Myers Co. v. United States, 105 Ct. Cl. 459, 478, 64 F. Supp. 148, 149 (1946). See also International Potato Corp. v. United States, 142 Ct. Cl. 604, 606, 161 F. Supp. 602, 604 (1958); Battelle v. United States, 7 Ct. Cl. 297 (1871); State Tent and Canvas Company v. United States, 131 Ct. Cl. 215, 130 F. Supp. 384 (1955). In the instant case plaintiff contends that an express contract was created when defendant directed plaintiff to ship the termination inventory. If an express contract had been created, then plaintiff completely performed its obligations under the contract at the time of the shipment (October 6, 1954). Since this suit was not filed until more than six years after October 6, 1954, plaintiff’s claim is time barred. The same logic and rationale holds for an implied contract. If any contract could be implied, as plaintiff contends, by the totality of the actions of the parties, then again, plaintiff had completely performed its part of the implied bargain on the date of shipment of the materials (October 6,1954). It was at that time that any cause of action plaintiff might have had on an implied contract accrued. Plaintiff is, therefore, also barred by the statute of limitations on its implied contract theory. Plaintiff has argued that the statute of limitations did not begin to run until a decision was made on its claim by the Government. However, as we have shown, all events had occurred fixing liability under either of plaintiff’s contract theories on the date that plaintiff shipped the materials. Immediately thereafter, plaintiff could have brought suit. Recourse to an agency was not a prerequisite of suit. It is only when pursuance of administrative remedies is a prerequisite to suit that the statute of limitations is suspended or tolled by such pursuance. See Empire Institute of Tailoring, Inc. v. United States, 142 Ct. Cl. 165, 168, 161 F. Supp. 409, 411 (1958), and cases cited therein. Plaintiff has relied heavily on Manufacturers Aircraft" }, { "docid": "22804829", "title": "", "text": "of the claim reserved for suit relates to unliquidated matters. Plaintiff was not required to institute suit prior to the date when the claim became payable, and the statute of limitation did not begin to run until the time when payment became due under the contract. In explanation, the opinion later added (88 Ct. Cl. at 563-64): If it be said that certain items of plaintiff’s claim set forth in its petition relating to extra costs and expenses alleged to have resulted from extra work not contemplated by the contract are in the nature of un-liquidated damages which a contractor is not, for the purpose of suit, compelled, first, to submit to the contracting officer, it is sufficient here to say that, as a general rule, a cause of action or a claim under a contract does not accrue piecemeal and that where the contract contains a provision, such as Art. 16 (d), with reference to the time when the contract shall be regarded as finally concluded the statute of limitation with reference to bringing suit does not begin to run until that date. We think that article contemplated that whatever claim plaintiff had in connection with the contract should become due in the sense of payable at the time mentioned, which, in the case at bar, was July 9,1930 [the date when the contracting officer made his determination]. This was a square ruling that for limitations purposes dll judicial claims with respect to the contract — both those required to be submitted for administrative decision, and the others which did not have to go through administrative channels — accrued at the time of the administrative decision, so that the time period did not start until that date for any item or sub-claim. In Holton, Seelye & Co., the court referred, in dictum (106 Ct. Cl. at 500-01, 65 F. Supp. at 907), to “a case where, by reason of certain stipulations in the contract, the right of the contractor to sue and the jurisdiction of the court are conditioned upon compliance with a specified administrative procedure requiring a decision" }, { "docid": "7912778", "title": "", "text": "1174 is dismissed as barred by an accord and satisfaction. We hold, however, that plaintiff’s omission to pursue contractual remedies with respect to Contract No. 1222 is excused by failure of the Contracting Officer to issue a proper “final decision” apprising plaintiff of its appeal rights. The remaining portion of plaintiff’s Oownt II (Contract No. 1222) is remanded to the trial division along with plaintiff’s Oownt I. Plaintiff’s Oownt III is redundant and is, accordingly, dismissed. (A) Statute of Limitations This suit was brought September 21, 1973. In its motion for summary judgment, defendant argues that plaintiff’s action is barred by the statute of limitations, 28 U.S.C. § 2501, because all of the events fixing the alleged liability of the defendant and entitling plaintiff to institute an action occurred more than six years before the date plaintiff filed its petition. Defendant contends the statute of limitations began to run either on September 8,1967, when plaintiff was notified by certified mail of the final amount of the government claim, or on September 15, 1967, when the first $12,382.02 was allegedly withheld from the first partial payment due plaintiff under Contract No. 1174. Defendant asserts the statute of limitations began to run from September 8,1967, when defendant made an “authoritative demand” for reimbursement by a letter of the Contracting Officer setting the final dollar amount of the government claim for lost GFP. We disagree. Scott v. United States, 18 Ct. Cl. 1 (1882), and Wood v. United States, 25 Ct. Cl. 98 (1889), cited by defendant as support for the proposition that the statute of limitations begins to run at the time “authoritative demand” is made, are not applicable to the case we are now considering. Those cases dealt with a special statute enabling federal paymasters to sue in the Court of Claims for relief of their responsibility for loss of public money stolen from them in the line of duty. In such cases, the statute of limitations has been held not to run until authoritative demand for repayment of the lost funds has been made by the government. In sharp contrast" }, { "docid": "11093868", "title": "", "text": "had completely performed its part of the implied bargain on the date of shipment of the materials (October 6,1954). It was at that time that any cause of action plaintiff might have had on an implied contract accrued. Plaintiff is, therefore, also barred by the statute of limitations on its implied contract theory. Plaintiff has argued that the statute of limitations did not begin to run until a decision was made on its claim by the Government. However, as we have shown, all events had occurred fixing liability under either of plaintiff’s contract theories on the date that plaintiff shipped the materials. Immediately thereafter, plaintiff could have brought suit. Recourse to an agency was not a prerequisite of suit. It is only when pursuance of administrative remedies is a prerequisite to suit that the statute of limitations is suspended or tolled by such pursuance. See Empire Institute of Tailoring, Inc. v. United States, 142 Ct. Cl. 165, 168, 161 F. Supp. 409, 411 (1958), and cases cited therein. Plaintiff has relied heavily on Manufacturers Aircraft Ass’n v. United States, 77 Ct. Cl. 481, 522-523 (1933), cert. denied, 291 U.S. 667 (1934) for the proposition that its cause of action did not arise until the claim had been denied by the Government. That case is inapposite to the situation here. It held that as a result of implication of practice, the parties to an implied contract agreed to a time when payment under the contract became due. Plaintiff there had no cause of action until the payments became due. In the case at bar, there is no prior practice of the parties upon which this court could find that the parties intended payment to become due at a time subsequent to the delivery of the inventory. Plaintiff’s argument must, therefore, fail. Plaintiff’s Fifth Amendment taking theory would likewise be barred by the statute of limitations. It is axiomatic that a cause of action for an unconstitutional taking accrues at the time the taking occurs. Stafford Ordnance Corp. v. United States, 123 Ct. Cl. 787, 108 F. Supp. 378 (1952); Chan Lai" }, { "docid": "12932992", "title": "", "text": "cert. denied, 291 U.S. 667, 54 S.Ct. 442, 78 L.Ed. 1057 (1934) for the proposition that its cause of action did not arise until the claim had been denied by the Government. That case is inapposite to the situation here. It held that as a result of implication of practice, the parties to an implied contract agreed to a time when payment under the contract became due. Plaintiff there had no cause of action until the payments became due. In the case at bar, there is no prior practice of the parties upon which this court could find that the parties intended payment to become due at a time subsequent to the delivery of the inventory. Plaintiff’s argument must, therefore, fail. Plaintiff’s Fifth Amendment taking theory would likewise be barred by the statute of limitations. It is axiomatic that a cause of action for an unconstitutional taking accrues at the time the taking occurs. Stafford Ordnance Corp. v. United States, 108 F.Supp. 378, 123 Ct.Cl. 787 (1952); Chan Lai v. United States, 125 Ct.Cl. 142 (1953). Assuming that the Government unconstitutionally took possession of plaintiff’s property, such taking was accomplished when the goods were shipped to defendant in October 1954- — more than six years prior to the filing of the petition in this case on December 29, 1962. Plaintiff’s final contention is likewise non-meritorious. In essence, plaintiff contends that its case was submitted to the Comptroller General within the six-year period of limitations, [admittedly true] and should be deemed to have been referred to the Court of Claims for adjudication under 28 U.S.C. § 2510 (1964 ed.). This statute states: § 2510. Referral of cases by Comptroller General. The Comptroller General may transmit to the Court of Claims for trial and adjudication any claim or matter of which the Court of Claims might take jurisdiction on the voluntary action of the claimant, together with all vouchers, papers, documents and proofs pertaining thereto. The Court of Claims shall proceed with the claims or matters so referred as in other cases pending in such court and shall render judgment thereon. Plaintiff" }, { "docid": "16292434", "title": "", "text": "and the statute of limitations could not begin to run until that time as to any of the payments. Since suit was brought within four years of the expiration of the lease, plaintiff should be entitled to recover all defaulted payments. The Court of Appeals concluded that the language of thé lease governed when the lessor’s cause of action accrued and when suit could first be instituted. “ ‘When the parties by their contract provide for the consequences of a breach, lay down a rule to admeasure the damages, and agree when they are to be paid, the remedy thus provided must be exclusively followed.’ ” 71 P.2d at 289. Relying on language in the lease stating that the tenant was to pay any deficiency as the result of reletting “on the several rent days above specified”, the Court of Appeals found that the cause of action as to each rent payment accrued at the time the rent payment became due; the statute of limitations on each rent payment began to run at the time the cause of action accrued, and, therefore, payments due more than four years prior to the institution of the suit were barred by the statute of limitations. In Bank of America National Trust & Savings Association, supra, the bank brought suit to recover payments due under a promissory note. As to whether the statute of limitations began to run at the time of the first default in payments or whether the statute permitted the recovery of payments due within the limitations period, the court held as follows: “The statute of limitations does not begin to run until the cause of action accrues, and it generally accrues when there is a remedy available. [Citation] This action accrued on [the date the first payment was due] . . . as to [that payment] .' . . Obviously the statute of limitations is a good defense [as to that payment], as more than the statutory period had elapsed. However, when a contract fixes a time for performance, the statute of limitations does not begin to run until the" }, { "docid": "8873022", "title": "", "text": "to him until the Government had supplied certain determinations, formulae, or computations. In this case no more than in any other would the mere fact that the Government could conceivably refuse to pay the sum due under the supplemental agreement delay the running of limitations once the plaintiff was in a position to ask for its money. With respect to the beginning of the time-bar period, the critical fact was the signing of the supplemental agreement (which fixed the remaining sum due, according to the Government), not the actual payment of the money. The day the agreement became operative was “the time when all events [had] occurred to fix the Government’s alleged liability, entitling the claimant to demand payment and sue here for his money.” Nager Electric Co. v. United States, supra In sum, all the significant events occurred more than six years prior to the filing of the petition on August 17, 1966. Plaintiff waited too long to bring its suit. The defendant’s motion to dismiss is therefore granted and the petition is dismissed as barred by the statute of limitations. Although plaintiff insists that the facts relating to its settlement regulations should he explored at a trial, we are satisfied, on the basis of the assertions and allegations made, and the material set forth, in plaintiff’s pleadings and brief, that plaintiff has no case eren if its factual assertions are taken at full face value. A trial is therefore unnecessary. The opinions in which this court has indicated that payment or presentation of the final payment voucher can be important for limitations purposes (see Austin Eng’r Co. v. Unites States, 88 Ct. Cl. 559 (1939); B-W Constr. Co. v. United States, 100 Ct. Cl. 227, 235 (1943); Sese v. United States, 125 Ct. Cl. 526, 530, 113 F. Supp. 658, 661-62 (1953) McWilliams v. United States, 134 Ct. Cl. 330, 138 F. Supp. 863 (1956); Acorn Decorating Corp. v. United States, 146 Ct. Cl. 394, 398, 174 F. Supp. 949, 951-52 (1959)) have all reflected situations in which, under the provisions of the contract, the fact of payment" }, { "docid": "12932990", "title": "", "text": "fulfilled by the contractor,” is too well established to now attempt to controvert. L. E. Myers Co. v. United States, 64 F.Supp. 148, 149, 105 Ct.Cl. 459, 478 (1946). See also International Potato Corp. v. United States, 161 F.Supp. 602, 604, 142 Ct.Cl. 604, 606 (1958); Battelle v. United States, 7 Ct.Cl. 297 (1871); State Tent and Canvas Company v. United States, 130 F.Supp. 384, 131 Ct.Cl. 215 (1955). In the instant case plaintiff contends that an express contract was created when defendant directed plaintiff to ship the termination inventory. If an express contract had been created, then plaintiff completely performed its obligations under the contract at the time of the shipment (October 6, 1954). Since this suit was not filed until more than six years after October 6, 1954, plaintiff’s claim is time barred. The same logic and rationale holds for an implied contract. If any contract could be implied, as plaintiff contends, by the totality of the actions of the parties, then again, plaintiff had completely performed its part of the implied bargain on the date of shipment of the materials (October 6, 1954). It was at that time that any cause of action plaintiff might have had on an implied contract accrued. Plaintiff is, therefore, also barred by the statute of limitations on its implied contract theory. Plaintiff has argued that the statute of limitations did not begin to run until a decision was made on its claim by the Government. However, as we have shown, all events had occurred fixing liability under either of plaintiff’s contract theories on the date that plaintiff shipped the materials. Immediately thereafter, plaintiff could have brought suit. Recourse to an agency was not a prerequisite of suit. It is only when pursuance of administrative remedies is a prerequisite to suit that the statute of limitations is suspended or tolled by such pursuance. See Empire Institute of Tailoring, Inc. v. United States, 161 F. Supp. 409, 411, 142 Ct.Cl. 165, 168 (1958), and cases cited therein. Plaintiff has relied heavily on Manufacturers Aircraft Ass’n v. United States, 77 Ct.Cl. 481, 522-523 (1933)," }, { "docid": "18155500", "title": "", "text": "certain events, it cannot be said that for the purpose of bringing suit the claim of plaintiff under the contract accrues until the date of the contemplated event, action, or decision. This rule is well established. In United States v. Wurts, 303 U. S. 414, 416, the court held that a statute of limitation does not begin to run until the right of action “has accrued in a shape to be effectually enforced.” See also Borer v. Chapman, 119 U. S. 587. In Silverman v. United States, 69 C. Cls. 588, this court said: “It seems quite clear to us that the plaintiffs’ cause of action on the refund allowed to it by the Secretary of War accrued on May 24, 1922. That is the date upon which plaintiffs accepted the terms of adjustment agreed upon by the Local Board of Sales Control at Boston on May 19, 1922, and signed and returned to the said board with their acceptance the voucher for $10,001.00, the amount of such refund.” In the case at bar, the contract provided when the amount to which plaintiff was entitled under the contract should become due. The word “due” in Art. 16 (d) of the contract in suit is used in the sense of being payable. No item of a claim under the contract with respect to which no payment had been made became payable, in view of Art. 16 (d), until the time contemplated by that section. And this is true, notwithstanding some part of the claim reserved for suit relates to unliqui-dated matters. Plaintiff was not required to institute suit prior to the date when the claim became payable, and the statute of limitation did not begin to run until the time when payment became due under the contract. Under the facts in the case at bar and Art. 16 (d) of the contract, this was July 9,1930. In Penn Bridge Co. v. United States, 71 C. Cls. 273, the contract provided that the amount due the contractor under the contract should be determined by the Bureau of Yards and Docks whose decision" }, { "docid": "12932991", "title": "", "text": "on the date of shipment of the materials (October 6, 1954). It was at that time that any cause of action plaintiff might have had on an implied contract accrued. Plaintiff is, therefore, also barred by the statute of limitations on its implied contract theory. Plaintiff has argued that the statute of limitations did not begin to run until a decision was made on its claim by the Government. However, as we have shown, all events had occurred fixing liability under either of plaintiff’s contract theories on the date that plaintiff shipped the materials. Immediately thereafter, plaintiff could have brought suit. Recourse to an agency was not a prerequisite of suit. It is only when pursuance of administrative remedies is a prerequisite to suit that the statute of limitations is suspended or tolled by such pursuance. See Empire Institute of Tailoring, Inc. v. United States, 161 F. Supp. 409, 411, 142 Ct.Cl. 165, 168 (1958), and cases cited therein. Plaintiff has relied heavily on Manufacturers Aircraft Ass’n v. United States, 77 Ct.Cl. 481, 522-523 (1933), cert. denied, 291 U.S. 667, 54 S.Ct. 442, 78 L.Ed. 1057 (1934) for the proposition that its cause of action did not arise until the claim had been denied by the Government. That case is inapposite to the situation here. It held that as a result of implication of practice, the parties to an implied contract agreed to a time when payment under the contract became due. Plaintiff there had no cause of action until the payments became due. In the case at bar, there is no prior practice of the parties upon which this court could find that the parties intended payment to become due at a time subsequent to the delivery of the inventory. Plaintiff’s argument must, therefore, fail. Plaintiff’s Fifth Amendment taking theory would likewise be barred by the statute of limitations. It is axiomatic that a cause of action for an unconstitutional taking accrues at the time the taking occurs. Stafford Ordnance Corp. v. United States, 108 F.Supp. 378, 123 Ct.Cl. 787 (1952); Chan Lai v. United States, 125 Ct.Cl. 142" }, { "docid": "4006264", "title": "", "text": "gave plaintiff six years within which to sue, and the six years began to run at the latest on March 31, 1951, when the last services were rendered. The petition in this case was filed June 27,1957, more than six years thereafter and is time barred. The fact that during the period between January 1, 1950, when plaintiff started to render services, and June 27, 1957, when the petition was filed, plaintiff sought administrative determination before the Veterans’ Education Appeals Board did not toll the statute of limitations. The appeal was not mandatory, but permissive only. Art Center School v. United States, 142 F. Supp. 916, 136 Ct.Cl. 218. Unless pursuance of administrative remedies is a prerequisite to suit, the statue of limitations is not suspended or tolled by the pursuance of administrative remedies. Girault v. United States, 135 F.Supp. 521, 133 Ct.Cl. 135; Mistretta v. United States, 120 F.Supp. 264, 128 Ct.Cl. 41; Nassif v. United States, 125 Ct.Cl. 379; Thomas v. United States, 125 Ct. Cl. 76; Gray v. United States, supra; Tan v. United States, 102 F.Supp. 552, 122 Ct.Cl. 662; John P. Moriarity, Inc. v. United States, 97 Ct.Cl. 338; Levine v. United States, supra. Plaintiff in opposition contends that the statute of limitations did not begin to run on its claim until April 16, 1956, because the Veterans Administration on said date renegotiated the tuition rate of Contract V3056V-330. It is evident that any facts relating to a renegotiation of the contract rate are completely irrelevant to this suit. The services in question were not rendered pursuant to such written contract, and the determination as to the contract rate would have nothing to do with the fair and reasonable basis. Plaintiff then says in the alternative that if the statute of limitations became operative on April 1, 1951, as contended by the Government, then the period of seven months during which its books and records were in the custody of a Federal grand jury should be deducted from the 6-year period. These are not facts alleged in the petition and therefore not properly before the" }, { "docid": "11093866", "title": "", "text": "termination inventory was created when the Bureau of Ships directed plaintiff to ship the material to a Government depot, and accepted delivery of the material. Alternatively, plaintiff seeks to recover on the theory that the instructions by defendant to ship the inventory material, together with the refusal to pay plaintiff, constituted a Fifth Amendment taking. Defendant has raised various defenses including a lack of privity, the statute of limitations, and equitable estoppel. A discussion of all the defenses raised by defendant is not necessary, as this court believes that plaintiff’s claim is barred by the statute of limitations, 28 U.S.C. § 2501 (1964 ed.) This statute provides that claims in this court shall be barred unless the petition is filed “* * * within six years after such claim first accrues.” The rule that a claim based on a contract with the Government first accrues, and the statute of limitations begins to run “when it can be definitely ascertained and set up, when all that is required of him by the terms of the contract has been fulfilled by the contractor,” is too well established to now attempt to controvert. L. E. Myers Co. v. United States, 105 Ct. Cl. 459, 478, 64 F. Supp. 148, 149 (1946). See also International Potato Corp. v. United States, 142 Ct. Cl. 604, 606, 161 F. Supp. 602, 604 (1958); Battelle v. United States, 7 Ct. Cl. 297 (1871); State Tent and Canvas Company v. United States, 131 Ct. Cl. 215, 130 F. Supp. 384 (1955). In the instant case plaintiff contends that an express contract was created when defendant directed plaintiff to ship the termination inventory. If an express contract had been created, then plaintiff completely performed its obligations under the contract at the time of the shipment (October 6, 1954). Since this suit was not filed until more than six years after October 6, 1954, plaintiff’s claim is time barred. The same logic and rationale holds for an implied contract. If any contract could be implied, as plaintiff contends, by the totality of the actions of the parties, then again, plaintiff" } ]

[ { "docid": "17273630", "title": "", "text": "2-5.2 of the city code provides for a code compliance inspector to investigate possible code violations, to notify suspected violators and urge their compliance, and to bring an action in county court to compel compliance if necessary. Alternatively, § 2-89 et seq. permits a code compliance inspector to bring an action before the Code Enforcement Board. The first option leaves no discretion in the hands of city officials to find city code violations or to penalize violators. The § 2-89 alternative vests an administrative body with the authority to enforce the code, and by the terms of the ordinance lays out an elaborate procedure governing the time and manner in which the Code Enforcement Board proceedings are to be conducted, and of particular importance, affords aggrieved parties prompt judicial review of Board determinations (see discussion of procedural requirements, infra). Procedural Due Process Requirements A content neutral licensing regulation that exerts an indirect impact upon the freedom of speech and which extends to city officials the discretion to deny permits constitutes a prior restraint that “avoids constitutional infirmity only if it takes place under procedural safeguards designed to obviate the dangers of a censorship system.” Freedman v. Maryland, 380 U.S. 51, 58, 85 S.Ct. 734, 739, 13 L.Ed.2d 649, 654 (1965); Fernandes v. Limmer, 663 F.2d 619, 628 (5th Cir. Unit A 1981); Rubin v. City of Berwyn, 553 F.Supp. 476, 480 (N.D.Ill.1982). Two such procedural safeguards are that the licensor be required to act upon a license application within a specified, brief period and that license applicants be guaranteed prompt judicial review of licensing decisions. Freedman, 380 U.S. at 58-59, 85 S.Ct. at 739, 13 L.Ed.2d at 654-655; Fernandes, 663 F.2d at 628. Section 16-4.1 fails to provide either of these safeguards. No time limits are prescribed within which the city commission is to decide whether a given applicant must be denied a license for failure to comply with applicable provisions of the city code; during the indeterminate period that such a matter is pending, a newsrack operator is without a license to vend newspapers, and by the terms of" } ]

[ { "docid": "3886763", "title": "", "text": "demonstrating that his rejection was motivated by which publications he sells as a disappointed newspaper would in showing it lost its newsrack because of what it writes. The Ordinance sets out what is basically a discretionary system of licensing, the sort of system in which such risks can lurk, and appellants have alleged that under it city officials “enjoy unfettered discretion to deny ... permits altogether.” Ward v. Rock Against Racism, 491 U.S. 781, 794, 109 S.Ct. 2746, 2755, 105 L.Ed.2d 661 (1989). “Thus, waiting for an alleged abuse before considering ... a challenge would achieve nothing except ... to risk censorship of free expression during the interim.” Id. 486 U.S. at 770 n. 11,108 S.Ct. at 2161 n. 11. Therefore, I feel it is appropriate to examine under the lens of a facial challenge whether the Ordinance is characterized by standards and other features adequate to rein in the exercise of discretion and minimize the risk of content discrimination. See Freedman, 380 U.S. at 56-57, 85 S.Ct. at 738 (“Although we have no occasion to decide whether the vice of overbroadness infects the ... statute, we think that appellant’s assertion of a similar danger in the ... apparatus of censorship — one always fraught with danger and viewed with suspicion — gives him standing to make that challenge.”). II. Turning to the details of the Ordinance, none of the six factors upon which the Commissioner of Public Works’ permit decisions are based facially vest him with unbridled discretion in accepting and rejecting applicants. Thus, the Ordinance does not grant to city officials the sort of standardless carte blanche that the Supreme Court has unfailingly condemned. See, e.g., Shuttlesworth v. Birmingham, 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969), Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965), Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940). I do recognize that some of the enumerated factors, as well as having a scheme where six are weighed in combination, allow a measure of flex. We must remember, however, that “perfect clarity" }, { "docid": "11728458", "title": "", "text": "That section provides: It is unlawful and a civil violation for any person to erect, construct, alter or relocate any sign without first obtaining a permit pursuant to the provisions of this chapter unless a provision of this chapter specifically exempts a sign from the permit requirement. LOC § 47.10.400(1). The City acknowledges that the review authorized by the permitting scheme authorizes “some discretion,” but asserts that City officials are not reviewing signs based on content. Plaintiffs attack the City’s permitting scheme on two grounds: first, it does not contain .adequate procedural protections for speakers and, second, it gives unbri- died discretion to local law enforcement officials. A. Procedures Generally, prior restraints are constitutionally suspect and may stand only if they are imposed for a short period of time and provide a process for adequate and swift appeal to a judicial body. See Freedman v. Maryland, 380 U.S. 51, 57-59, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965). In Freedman, the Court evaluated a film review procedure whereby a state law required a film exhibitor to submit his film to a censor prior to having it displayed at a local theater. The Court held that such a review process survives constitutional scrutiny only if the system incorporates “procedural safeguards designed to obviate the dangers of a censorship system.” Id. at 58, 85 S.Ct. 734. Plaintiffs argue that the Sign Code does not satisfy the Freedman dictate because the Code’s permitting scheme fails to contain necessary procedural safeguards such as a process for swift appeal to a judicial body. However, in Thomas v. Chicago Park District, the Court evaluated a content-neutral licensing scheme that was challenged under the Freedman prior restraint doctrine and concluded, “Freedman is inapposite because the licensing scheme at issue here is not subject-matter censorship but content-neutral time, place, and manner regulation of the use of a public forum.” 534 U.S. 316, 322, 122 S.Ct. 775, 151 L.Ed.2d 783 (2002); accord S. Or. Barter Fair v. Jackson County, 372 F.3d 1128, 1138 (9th Cir.2004) (a permitting scheme requiring permits even for private gatherings did not violate Freedman “because it" }, { "docid": "22839368", "title": "", "text": "Commissioner must act upon a permit application and of an avenue for prompt judicial review of a permit denial. They rely on a line of Supreme Court cases holding that prior restraint schemes that fail to place specific and reasonable time limits on official decisionmaking and to provide for prompt judicial review of adverse decisions are impermissible. See FW/PBS, 493 U.S. at 228, 110 S.Ct. 596 (opinion of O’Connor, J.) (citing Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965)). In FW/PBS, Justice O’Connor explained that “[w]here the licensor has unlimited time within which to issue a license, the risk of arbitrary suppression is as great as the provision of unbridled discretion.” Id. at 227, 110 S.Ct. 596 (opinion of O’Connor, J.). The district court, because it concluded that the challenged regulations did not amount to a prior restraint, held that the so-called Freedman factors were not applicable. For reasons stated above, the regulations do constitute a prior restraint. Thus, the district court should have considered whether they pass muster under Freedman analysis. In Freedman, the Court invalidated a statute requiring exhibitors of motion pictures to submit films to the State Board of Censors for examination in advance of screening. In order to challenge the statute, Freedman had exhibited a film without prior submission to the Board. Although the state conceded that the exhibited film did not violate statutory standards, Freedman was nevertheless convicted of a statutory violation. See 380 U.S. at 52-53, 85 S.Ct. 734. The issue on appeal was not whether the Board could exercise censorship authority, but whether the lack of temporal limits rendered the censorship scheme an invalid prior restraint. The Court concluded that it did, noting that the lack of time restraints contains the same dangers as does a lack of objective standards' — it gives a deci-sionmaker essentially unreviewable authority to suppress speech. See id. at 58-59, 85 S.Ct. 734. Accordingly, the Court held that in addition to objective limits on discretion, content-based prior restraints must contain three procedural safeguards. First, the licensor must be required to decide whether to" }, { "docid": "10736624", "title": "", "text": "to distribute literature. At the same time it would be wise for the Board to consider the areas of school property where it would be appropriate to distribute approved material. Refinements of the sort we mention would lessen the possibility that the policy statement under attack here because of its tendency to over-generalization, will be administered arbitrarily, erratically, or unfairly, see Interstate Circuit, Inc. v. Dallas, 390 U.S. 676, 685, 88 S.Ct. 1298, 20 L.Ed.2d 225 (1968). By grappling with some of the difficult issues suggested, the Board might also succeed in demonstrating its conscientious intent to formulate policy not only within the outer limits of constitutional permissibility, but also with a sensitivity to some of the teaching reflected in relevant constitutional doctrine and to the dangers lurking in improper and unconstitutional administration of a broad and general standard. Finally, greater specificity might reduce the likelihood of future litigation and thus forestall the possibility that federal courts will be called upon again to intervene in the operation of Stamford’s public schools. It is to everyone’s advantage that decisions with respect to the operation of local schools be made by local officials. The greater the generosity of the Board in fostering — not merely tolerating- — students’ free exercise of their constitutional rights, the less likely it will be that local officials will find their rulings subjected to unwieldy constitutional litigation. V. Although the Board’s regulation passes muster as authorizing prior restraints, we believe it is constitutionally defective in its lack of procedure for prior submission by students for school administration approval, of written material before “distribution.” In Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965), the Court instructed that strict procedural formalities must be observed whenever a state attempts to enforce a requirement that motion picture exhibitors submit a film to a state board of censors for clearance before the film is shown to the public. In order “to obviate the dangers of a censorship system” the state must: (1) assume the burden of proving that a film is obscene in the constitutional sense and" }, { "docid": "16215738", "title": "", "text": "teach that governmental authorities may not, except in demanding circumstances, deny access to a public forum in anticipation of consequences that may flow from the contemplated activity. Punishment for criminal behavior must be government’s response to an abuse of the privilege to use a public forum; prospective restraints are unconstitutional. 1. Procedural safeguards Ms. Fernandes charges that the permit system contained in §§ 4A(b) and (c) is unconstitutional because it lacks the procedural safeguards required by the Supreme Court in Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965). The ordinance’s lack of procedural safeguards assuring prompt judicial review of permit refusals presents a prior restraint problem. In Freedman v. Maryland, the Supreme Court prescribed standards for expedited judicial review governing a state motion picture licensing board’s content-sensitive regulation of films. See n.5, supra. Although D/FW’s regulatory ordinance purports to be content-neutral, the consequences flowing from a permit denial here are essentially the same as those addressed in Freedman: to an unsuccessful permit applicant, the unavoidable delay posed by judicial review is tantamount to an effective denial of First Amendment rights. Therefore, “[t]he Freedman principle is applicable here.” Shuttlesworth v. Birmingham, 394 U.S. at 162, 89 S.Ct. at 944 (Harlan, J., concurring) (Freedman procedural safeguards apply to content-neutral municipal parade permit ordinance). Accord, Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975). The lack of these procedural protections in this licensing system means that the opportunity to exercise free speech and other assoeiational rights can be postponed for substantial periods of time before adequate review. These deficiencies can be eliminated in an effective and functioning ordinance as the Atlanta case shows. ISKCON v. Eaves, supra. One may construe §§ 4A(b) and (c) of the D/FW ordinance to mean that the Board will act upon permit applications within three days. The district court, however, correctly found that these provisions imposed no time limits on the Board’s consideration of a permit application. 465 F.Supp. at 502. It is clear from the terms of the ordinancé that a decision within three days is" }, { "docid": "8389609", "title": "", "text": "prior restraint on speech. We agree that the absence of any time limits renders the sign code’s permitting requirement unconstitutional. Whether a licensing ordinance— which constitutes a prior restraint on speech — must contain a time limit within which to make licensing decisions depends on whether the ordinance is content based or content neutral. As we have previously explained, see Granite State Outdoor Adver., Inc. v. City of St. Petersburg, 348 F.3d 1278, 1281 (11th Cir.2003), two Supreme Court cases establish the relevant framework. First, in Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965), the Court invalidated a state law requiring motion pictures to be licensed prior to their release. The licensing board had discretion to deny licenses for films that were “obscene” or that “tend[ed], in the judgment of the Board, to debase or corrupt morals or incite to crimes.” Id. at 52 n. 2, 85 S.Ct. 734. In response to the danger of censorship posed by this ordinance, the Court held that the licensing process was valid only if it' contained certain procedural safeguards, which the plurality opinion in FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990), described in these terms: (1) any restraint prior to judicial review can be imposed only for a specified brief period .during which the status quo must be maintained; (2) expeditious judicial review of that decision must be available; and (3) the censor must bear the burden of going to court to suppress the speech and must bear the burden of proof once in court. Id. at 227, 110 S.Ct. 596. Although the Court was fragmented as to the precise extent of Freedman’s applicability in FW/ PBS, a majority of Justices reaffirmed the continuing validity of the first requirement — strict time limits for licensing decisions. See id. at 227-28, 110 S.Ct. 596 (plurality opinion); id. at 238, 110 S.Ct. 596 (Brennan, J., concurring in the judgment). Subsequently, in Thomas v. Chicago Park District, 534 U.S. 316, 122 S.Ct. 775, 151 L.Ed.2d 783 (2002), the Court upheld an ordinance" }, { "docid": "16215737", "title": "", "text": "concourses, we agree with the conclusion of the district court that the D/FW terminal buildings must be treated as public forums. IV. THE FACIAL CHALLENGE TO THE ORDINANCE A. THE PERMIT SYSTEM D/FW’s content-neutral permit system has little in common with the classic prior restraint thought to be the inspiration for the First Amendment. See Near v. Minnesota, 283 U.S. 697, 713, 51 S.Ct. 625, 630, 75 L.Ed. 1357 (1931) (discussing the reaction to the English licensing system restricting the publication of literature pending governmental review of its content). See also Emerson, The Doctrine of Prior Restraint, 20 J. LAW & CONTEMP. PROB. 648 (1955). Nevertheless, prior restraint doctrine has been invoked to strike down content-neutral permit systems that regulate protected First Amendment activities. E. g., Shuttlesworth v. City of Birmingham, supra; Staub v. City of Baxley, 355 U.S. 313, 78 S.Ct. 277, 2 L.Ed.2d 302 (1958); Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940); Lovell v. Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949 (1938). These cases teach that governmental authorities may not, except in demanding circumstances, deny access to a public forum in anticipation of consequences that may flow from the contemplated activity. Punishment for criminal behavior must be government’s response to an abuse of the privilege to use a public forum; prospective restraints are unconstitutional. 1. Procedural safeguards Ms. Fernandes charges that the permit system contained in §§ 4A(b) and (c) is unconstitutional because it lacks the procedural safeguards required by the Supreme Court in Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965). The ordinance’s lack of procedural safeguards assuring prompt judicial review of permit refusals presents a prior restraint problem. In Freedman v. Maryland, the Supreme Court prescribed standards for expedited judicial review governing a state motion picture licensing board’s content-sensitive regulation of films. See n.5, supra. Although D/FW’s regulatory ordinance purports to be content-neutral, the consequences flowing from a permit denial here are essentially the same as those addressed in Freedman: to an unsuccessful permit applicant, the unavoidable delay posed by judicial review" }, { "docid": "13557112", "title": "", "text": "this court dismissed Lauder’s claim that the ordinance was unconstitutional because it gave City officials too much discretion. The claim that the City had insufficient procedures for judicial review remained. If a provision for judicial review was required, the ordinance would be unconstitutional. It provides an administrative appeal, but makes that appeal process final. After further consideration, this court concludes that the ordinance, as a content-neutral time, place, and manner restriction that does not vest the City with excessive or unbridled discretion, does not require an explicit procedure for judicial review of newsrack application denials. In Freedman v. Maryland, the Supreme Court held that a Maryland law requiring government censors to approve films before their release was constitutional. 380 U.S. 51, 58, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965). The Court stated that judicial review of official decisions censoring speech under this content-based prior restraint was essential to its constitutionality. “First, any restraint before judicial review occurs can be imposed only for a specified brief period during which the status quo must be maintained; second, prompt judicial review of that decision must be available; and third, the censor must bear the burden of going to court to suppress the speech and must bear the burden of proof in court.” N.W. Enters. Inc. v. City of Houston, 352 F.3d 162, 193-94 (5th Cir. 2003) (citing Freedman, 380 U.S. at 58-59, 85 S.Ct. 734). “Until [2002], it was unclear whether the Freedman formulation applied to content-neutral permit schemes designed to ensure public safety in a traditional public forum.” Utah Animal Rights Coalition v. Salt Lake City Corp., 371 F.3d 1248, 1260 (10th Cir.2004) (quoting New England Reg'l Council of Carpenters v. Kinton, 284 F.3d 9, 21 (1st Cir.2002)). With its decision in Thomas v. Chicago Park District, 534 U.S. 316, 122 S.Ct. 775, 151 L.Ed.2d 783 (2002), “the Supreme Court erased that uncertainty.” Kinton, 284 F.3d at 21. In Thomas, the Court considered a Chicago ordinance that required a permit for certain activities in the city’s parks. 534 U.S. at 318-19, 122 S.Ct. 775. Concluding that the factors permitting the parks department" }, { "docid": "1321437", "title": "", "text": "any federal system of censorship which contemplates restraint prior to distribution is violative of the First Amendment must be rejected. In Times Film Corp. v. City of Chicago, 365 U.S. 43, 81 S.Ct. 391, 5 L. Ed.2d 403 (1961), the Supreme Court held that a requirement of submission of motion pictures in advance of distribution to a system of censorship was not per se unconstitutional. See Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 n. 10, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963). While the Times Film case dealt with a state censorship system, there is no doubt that Congress can “constitutionally authorize a noncriminal process [for censorship] in the nature of a judicial proceeding under closely defined procedural standards,” Manual Enterprises, Inc. v. Day, 370 U.S. 478, 519, 82 S.Ct. 1432, 1453, 8 L.Ed.2d 639 (1962) (Brennan, J., concurring); see 18 U.S.C. § 1461 (bars use of mails to ship obscene materials), whether or not stricter standards should be applied to federal censorship systems than are applied to state censorship systems. See Memoirs, supra, 383 U.S. at 456-458, 86 S.Ct. 975 (Harlan, J., dissenting); Roth v. United States, 354 U.S. 476, 505-506, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957) (Harlan, J., concurring). Section 305 constitutes a valid exercise of congressional power to regulate foreign commerce and the flow of materials into this country from foreign sources. Janus also challenges Section 305 on the ground that the section contains no safeguards against unreasonable delay in obtaining a final determination of the question of obscenity. Principal reliance is placed on Freedman v. State of Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965), wherein the Supreme Court stated that a noncriminal process which requires the prior submission of a film to a censor is valid only if it contains the following procedural safeguards: “First, the burden of proving that the film is unprotected expression must rest on the censor. * * * (Second) the requirement cannot be administered in a manner which would lend an effect of finality to the censor’s determination whether a film constitutes protected expression." }, { "docid": "23134912", "title": "", "text": "court fails to rule within forty days of the filing of an appeal. See M.C.L. 6.54.040(E)(3) and (4); see also M.C.L. 6.54.070(D)(3) and (4) (applying same rules to permit applicants). Merely preserving the status quo, however, is not sufficient to satisfy Freedman. The decision whether or not to grant a license must still be made within a specified, brief period, and the licensing scheme “must assure a prompt judicial decision.” See Freedman, 380 U.S. at 59, 85 S.Ct. 734 (emphasis added). The Ordinance's dis cretionary appeals procedure fails to satisfy these separate requirements. WELLFORD, Circuit Judge, concurring in part and dissenting in part. I concur in the Chief Judge’s opinion in this difficult case in most respects. I write separately to set out my views with respect to part II.F dealing with standing and prompt judicial review. The majority found that prompt judicial review is “re quired by Freedman [v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965)].” Supra at 398. Freedman, however, involves a very different set of circumstances from the present controversy, because that case presented a First Amendment challenge to the “Maryland motion picture censorship statute.” Id. at 52, 85 S.Ct. 734. The Supreme Court pointed out that under the Maryland law in question “there is no statutory provision for judicial participation in the procedure which bars a film, nor even assurance of prompt judicial review.” Id. at 55, 85 S.Ct. 734 (emphasis added). Furthermore, the Court recognized the unique nature of the film industry, stating that “a censorship system for motion pictures presents peculiar dangers to constitutionally protected speech.” Id. at 57, 85 S.Ct. 734 (emphasis added). Our present case, of course, does not involve freedom of speech in a film, but freedom of expression in a sexually-oriented place of business. I. STANDING I would not hold Freedman controlling on the issue of standing because of the circumstances in that case are entirely different from those in the instant controversy. This court has interpreted Freedman broadly to apply to similar types of cases brought by adult “entertainment” operators and performers, such as plaintiffs." }, { "docid": "9713781", "title": "", "text": "example, the Supreme Court invalidated a Maryland law that required prior state approval before an exhibitor could show a motion picture at its theaters. According to the Court, it was immaterial for constitutional purposes whether the plaintiff in this case had actually been deprived of a first amendment right: In the area of freedom of expression it is well established that one has standing to challenge a statute on the ground that it delegates overly broad licensing discretion to an administrative office, whether or not his conduct could be proscribed by a properly drawn statute, and whether or not he applied for a license. Freedman v. Maryland, 380 U.S. 51, 56, 85 S.Ct. 734, 737, 13 L.Ed.2d 649 (1965); see also Thornhill v. Alabama, 310 U.S. 88, 97, 60 S.Ct. 736, 741, 84 L.Ed. 1093 (1940). In a long and celebrated line of cases, the Court has deployed this principle repeatedly to strike down statutes that, on their face, vested officials with a dangerously wide and unfettered degree of discretion to regulate speech. See Shuttlesworth v. City of Birmingham, 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969) (invalidating ordinance requiring marchers to seek permission from town mayor); Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965) (striking down standard-less breach-of-the-peace statute); Kunz v. New York, 340 U.S. 290, 71 S.Ct. 312, 95 L.Ed. 280 (1951) (invalidating ordinance prohibiting public worship without a permit from city police commissioner); Saia v. New York, 334 U.S. 558, 68 S.Ct. 1148, 92 L.Ed. 1574 ’ (1948) (invalidating ordinance requiring sound trucks to obtain permission from police chief). These cases establish the principle that, for overbroad statutes affecting speech, the first amendment precludes the application of ordinary rules of severability. In order to ensure an optimal level of constitutional enforcement, it is necessary to allow facial challenges to overbroad statutes irrespective of the plaintiff’s particular injury. This is so because piece-meal litigation is an inadequate method of enforcing the Constitution when a governmental official is given unrestricted authority to regulate speech on a case-by-case basis. The particular evil associated" }, { "docid": "2213672", "title": "", "text": "designated public fora; for purposes of that classification, the Supreme Court has required evidence that the State intentionally has opened the area for expressive purposes. See id. at 680, 112 5.Ct. 2701. In addition to this taxonomy, the case at hand also requires an understanding of the doctrine of prior restraints. This venerable doctrine guards against the threat of government censorship by requiring that public licensing and permit schemes contain adequate substantive and procedural safeguards against arbitrary (or content-based) State action. See, e.g., FW/PBS, Inc. v. Dallas, 493 U.S. 215, 225-26, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990). Two lines of cases have sprouted in this soil: one focused on the substantive criteria that restrain official discretion and the other on procedural safeguards. See id. The substantive strand reflects the hoary principle that the First Amendment demands that such regulations contain “narrow, objective, and definite standards to guide the licensing authority.” Forsyth County, 505 U.S. at 131, 112 S.Ct. 2395 (quoting Shuttlesworth v. City of Birmingham, 394 U.S. 147, 150-51, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969)). The procedural strand is elaborated in Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965), in which the Court ruled, in the motion picture licensing context, that prior restraints may be imposed only temporarily; that they must allow for prompt judicial review; and that the licensor must bear the burden of asking a court to suppress the speech. Id. at 58-60, 85 S.Ct. 734. Until very recently, it was unclear whether the Freedman formulation applied to content-neutral permit schemes designed to ensure public safety in a traditional public forum. Compare, e.g., Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 560, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975) (stating that Freedman applies in a public forum), with Poulos v. New Hampshire, 345 U.S. 395, 403, 73 S.Ct. 760, 97 L.Ed. 1105 (1953) (suggesting that a different standard applies if the license requirement reflects “a ministerial police routine”). The Supreme Court erased this uncertainty within the past few months. In Thomas v. Chicago Park Dist., 534 U.S. 316, 122 S.Ct. 775," }, { "docid": "11337035", "title": "", "text": "... makes the peaceful enjoyment of freedoms which the Constitution guarantees contingent upon the uncontrolled will of an official-as by requiring a permit or license which may be granted or withheld in the discretion of such official-is an unconstitutional censorship or prior restraint upon the enjoyment of those freedoms.’ ” [Shuttlesworth v. City of Birmingham, 394 U.S. 147, 151, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969) (quoting Staub v. City of Baxley, 355 U.S. 313, 322, 78 S.Ct. 277, 2 L.Ed.2d 302 (1958)) ]. Id. at 226, 110 S.Ct. 596. The failure to provide minimum time requirements within which decisions must be made by municipal officials regarding applications for operation of an expressive activity vests in those officials the power to exercise prior restraint. In FW/PBS, the Supreme Court evaluated whether the Dallas licensing scheme had procedural safeguards akin to those found necessary by the Court in Freedman v. Maryland, 380 U.S. 51, 56-57, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965), in which a Maryland motion picture censorship statute was held unconstitutional. The applicable safeguards were held to be: (1) the licensor must make the decision whether to issue the license within a specified brief period during which the status quo is maintained; and (2) prompt judicial review must be available. The Court stated: The failure to confine the time within which the licensor must make a decision “contains the same vice as a statute delegating excessive administrative discretion,” Freedman [at 56-57, 85 S.Ct. 734]. Where the licensor has unlimited time within which to issue a license, the risk of arbitrary suppression is as great as the provision of unbridled discretion. A scheme that fails to set reasonable time limits on the decisionmaker creates the risk of indefinitely suppressing permissible speech. FW/PBS, 493 U.S. at 227, 110 S.Ct. 596. Failing to find that Freedman procedural safeguards existed, the FW/PBS Court found Dallas’s ordinance regulating SOBs to be unconstitutional. The Eleventh Circuit has also repeatedly held that municipal procedures for obtaining approval to operate strip clubs must contain more than scanty procedural safeguards. Ordinances that have failed to provide specified, brief" }, { "docid": "9711149", "title": "", "text": "reasons. First, they argue that insisting on a license for sexually oriented businesses regulates the content of expression protected by the first amendment without the procedural protections of Freedman v. Maryland, and Fernandes v. Limmer. The Ordinance is said to suffer three procedural deficiencies: it places the burden of proof upon the licensee to prove that a license was wrongfully denied; it fails to provide for prompt determination of the appeal; and it fails to provide assurance of a “prompt final judicial determination.” We are not persuaded that this ordinance requires such procedural safeguards for its validity. The argument assumes that the Ordinance licensing scheme regulates protected activity in a way that triggers the procedural requirements of Freedman. The ultimate issue in Freedman was the constitutionality of Maryland’s motion picture statute. Maryland made it unlawful to distribute or exhibit films unapproved by a Board of Censors. Maryland did not provide for judicial participation or otherwise assure prompt review in its procedure although its board could bar the showing of a film. The court held that this prior restraint can avoid constitutional infirmity only if hedged by procedural safeguards designed to obviate the dangers of a censorship system. The court concluded that these safeguards include the state’s shouldering of the burden of persuasion, a “procedure requiring a judicial determination ...,” and restriction of prior restraint to the shortest fixed period compatible with sound judicial resolution. We applied Freedman in Fernandes to strike down a regulation of the Dallas-Fort Worth Airport Authority denying followers of the Krishna religion a license to solicit at the airport. We rejected the suggestion that the regulation was sufficiently content-neutral to escape the procedural requirements of Freedman: “Although D/FW’s regulatory ordinance purports to be content-neutral, the consequences flowing from a permit denial here are essentially the same as those addressed in Freedman: to an unsuccessful permit applicant, the unavoidable delay posed by judicial review is tantamount to an effective denial of First Amendment rights.” A license from the airport authority was necessary in order to solicit for religious purposes in a public forum. There was no finding" }, { "docid": "15914508", "title": "", "text": "be enforced in such a way as to deter or impede the exercise of this most celebrated of constitutional rights. We do not find this a helpful formula. The historical referent of “prior restraints” is censorship, see 4 William Blackstone, Commentaries on the Latos of England 151-53 (1769), which the administration of a park system does not much resemble. The statement in the plaintiffs’ brief that “denial of a permit to hold a rally is the ultimate censorship” is hollow rhetoric. It is a censor’s business to make a judgment about the propriety of the content or message of the proposed expressive activity. Because he is in the business of suppressing such activity (friends of free speech are not drawn to a career in censorship), the danger of abuse is very great, especially when assessed in light of the dismal history of censorship. The regulation challenged here does not authorize any judgment about the content of any speeches or other expressive activity — their dangerousness, offensiveness, immorality, and so forth. It is not even clear that the regulation reduces the amount of speech. A park is a limited space, and to allow unregulated access to all comers could easily reduce rather than enlarge the park’s utility as a forum for speech. See Cox v. New Hampshire, 312 U.S. 569, 574-76, 61 S.Ct. 762, 85 L.Ed. 1049 (1941); cf. Beal v. Stern, 184 F.3d 117, 128-29 (2d Cir.1999). Just imagine two rallies held at the same time in the same park area using public-address systems that drowned out each other’s speakers. Cf. Ward v. Rock Against Racism, 491 U.S. 781, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). The heterogeneity of the practices that the “prior restraints” formula covers (with the present case compare Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965), involving a movie censorship board) is reason to doubt that it can provide much assistance to judges who have to decide a novel case. The problem is general. General language, the language in which legal principles are couched, tends not to help much in the" }, { "docid": "9713780", "title": "", "text": "394 (1985) (quoting United States v. Raines, 362 U.S. 17, 21, 80 S.Ct. 519, 522, 4 L.Ed.2d 524 (1960)). In a sense, this principle echoes the familiar doctrine of standing, which requires a litigant to set forth a concrete personal interest in the outcome of her suit in order to establish a “case” or “controversy” for purposes of Article III of the Constitution. See Allen v. Wright, 468 U.S. 737, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984); Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). Gannett points out, however, that first amendment doctrine relaxes this general requirement of a personal injury when the statute under review vests in governmental officials standardless discretion to regulate speech, such that it gives rise to an imminent threat of unconstitutional censorship. Thus, a litigant may challenge a law that vests governmental officials with standard-less discretion even if the application of that regulation in the litigant’s case is constitutionally permissible. In Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965), for example, the Supreme Court invalidated a Maryland law that required prior state approval before an exhibitor could show a motion picture at its theaters. According to the Court, it was immaterial for constitutional purposes whether the plaintiff in this case had actually been deprived of a first amendment right: In the area of freedom of expression it is well established that one has standing to challenge a statute on the ground that it delegates overly broad licensing discretion to an administrative office, whether or not his conduct could be proscribed by a properly drawn statute, and whether or not he applied for a license. Freedman v. Maryland, 380 U.S. 51, 56, 85 S.Ct. 734, 737, 13 L.Ed.2d 649 (1965); see also Thornhill v. Alabama, 310 U.S. 88, 97, 60 S.Ct. 736, 741, 84 L.Ed. 1093 (1940). In a long and celebrated line of cases, the Court has deployed this principle repeatedly to strike down statutes that, on their face, vested officials with a dangerously wide and unfettered degree of discretion to regulate speech. See Shuttlesworth" }, { "docid": "1778864", "title": "", "text": "protections were developed in the context of sexually explicit material, they apply with the same or even greater force in the context of prior restraints of political speech. As Justice Harlan wrote: The right to assemble peaceably to voice political protest is at least as basic as the right to exhibit a motion picture which may have some aesthetic value. Moreover, slow-moving procedures have a much more severe impact [on political speech] than they had in Freedman ... [as] timing is of the essence in politics. Shuttlesworth v. Birmingham, 394 U.S. 147, 162-63, 89 S.Ct. 935, 944-45, 22 L.Ed.2d 162 (1969) (overturning convictions of marchers who demonstrated in violation of an unconstitutional permit ordinance) (Harlan, J. concurring). . In subsequent decisions, the Supreme Court has not required all three safeguards in every situation. For example, in FW/PBS, a plurality of the Court concluded that the first of the Freedman procedural safeguards is not necessary in a licensing scheme which regulates an entire business, as opposed to a scheme like Freedman itself which involved the direct censorship of particular expressive material. The Court did require the second and third safeguards to be present. See FW/PBS, 493 U.S. at 229-30, 110 S.Ct. at 606-07. .Despite a contrary implication by the Supreme Court in Cox v. New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049 (1941), a regulation is not exempt from the Freedman safeguards merely because it meets the requirements for a valid time, place, or manner restriction. In Cox, the defendants challenged their convictions for taking part in a parade on public streets without a license. See id. at 573, 61 S.Ct. at 764. The New Hampshire Supreme Court had construed the scheme to require the licensing board to issue a permit if an investigation revealed that the convenience of the public in using the streets would not be disturbed, and to permit the licensing board to provide for conditions or changes in time, place, and manner so as to avoid disturbance.. See id. at 576, 61 S.Ct. at 766. The Supreme Court affirmed the defendants' convictions, stating that" }, { "docid": "13557111", "title": "", "text": "the costs of enforcing the ordinance exceed the permit and application revenues. In response to a question from the City’s lawyer about whether the fees “covered your administrative cost for enforcement of the program,” Maria Irshad, an employee in the City’s Parking Management Division, responded, “No.” She explained that she and another Parking Management Division employee, Carlos Medel, patrol the CBD and send out notices to violators. Medel also testified and elaborated on the costs. He testified that the City purchased a truck with a lift on the back, which it uses to seize noncompliant newsracks as well as for other purposes. He testified that three to five City employees survey newsracks on public rights-of-way to determine compliance. This work, and the seizure of noncompliant racks, often takes place on Saturdays, requiring the City to pay overtime. The employees’ testimony was credible. Lauder has offered no evidence in response. The court finds that the revenue collected through application and permit fees does not exceed the City’s implementation and enforcement costs. D. Judicial Review Before trial, this court dismissed Lauder’s claim that the ordinance was unconstitutional because it gave City officials too much discretion. The claim that the City had insufficient procedures for judicial review remained. If a provision for judicial review was required, the ordinance would be unconstitutional. It provides an administrative appeal, but makes that appeal process final. After further consideration, this court concludes that the ordinance, as a content-neutral time, place, and manner restriction that does not vest the City with excessive or unbridled discretion, does not require an explicit procedure for judicial review of newsrack application denials. In Freedman v. Maryland, the Supreme Court held that a Maryland law requiring government censors to approve films before their release was constitutional. 380 U.S. 51, 58, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965). The Court stated that judicial review of official decisions censoring speech under this content-based prior restraint was essential to its constitutionality. “First, any restraint before judicial review occurs can be imposed only for a specified brief period during which the status quo must be maintained; second," }, { "docid": "16423941", "title": "", "text": "bear the burden of proof in court. In Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965), the Supreme Court set forth three procedural safeguards to protect against unlimited suppression of constitutionally protected speech by a motion picture censorship board. First, any restraint before judicial review occurs can be imposed only for a specified brief period during which the status quo must be maintained; second, prompt judicial review of that decision must be available; and third, the censor must bear the burden of going to court to suppress the speech and must bear the burden of proof in court. Freedman, 380 U.S. at 58-59, 85 S.Ct. at 739, 13 L.Ed.2d at 654-55. In FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990), Justice O’Connor, joined by two other Justices on the issue, dispensed with the third Freedman requirement when analyzing the validity of an SOB licensing scheme. FW/PBS, 493 U.S. at 229-30, 110 S.Ct. at 607, 107 L.Ed.2d at 621. This circuit has followed Justice O’Connor in applying only the first two Freedman procedural safeguards when dealing with a licensing scheme that does not present the grave dangers of a censorship system. See, e.g., Encore Videos, Inc. v. City of San Antonio, 310 F.3d 812, 823 (5th Cir.2002); TK’s Video, 24 F.3d at 707-08. Other circuits have also concluded that the third Freedman procedural safeguard does not apply to licensing schemes that do not directly regulate content. See, e.g., MacDonald v. City of Chicago, 243 F.3d 1021, 1035-36 (7th Cir.2001); Ward v. County of Orange, 217 F.3d 1350, 1355 (11th Cir.2000); Steakhouse, Inc. v. City of Raleigh, 166 F.3d 634, 640-41 (4th Cir.1999) (in the context of an administrative process). FTU urges this court to apply the third Freedman procedural safeguard to the Ordinance’s entertainer and manager permit requirements, contending that individual managers and dancers have less motivation and significantly less economic wherewithal than the SOB plaintiffs in FW/PBS to seek judicial review of permit denials. In FW/PBS, Justice O’Connor considers the degree of motivation that an unsuccessful applicant" }, { "docid": "11019496", "title": "", "text": "of the Supreme Court’s definition of “obscenity”). Thus, where a censor reviews films for their obscene content and makes the decision to censor based on the imprecise constitutional criteria for obscene speech, see Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), it is impossible to eradicate the licensor’s discretion from that decision, and judicial supervision of the licensor’s inherently discretionary decision is necessary. See Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965). However, when the criteria for administrative decisionmaking are themselves substantively consistent with the First Amendment and do not inherently or as formulated allow for unbridled discretion on the part of the decisionmaker, the “prior restraint” on speech effected by a licensing scheme does not embody any of the dangers which would necessitate heightened procedural safeguards. For example, if a county were to enact a permit system requiring anyone wishing to partake in a parade to fill out an application stating his name, address, the estimated number of marchers, and whether any of the marchers had been arrested for disorderly conduct in public within the past month, and if the parade permit would be automatically granted within 30 days of application if there were no such arrests and automatically denied within 30 days if there were any such arrests, such a regulatory scheme would not embody either the evil of unbridled discretion in the duration or in the scope of the licensor’s decisionmaking. Assuming that the disorderly conduct criterion were a constitutionally valid one, this permit system would not embody an unconstitutional prior restraint and the predicate calling for expeditious judicial review of the licensor’s decision would not be present. Cf. Cox v. New Hampshire, 312 U.S. 569, 576, 61 S.Ct. 762, 765, 85 L.Ed. 1049 (1941) (upholding against First Amendment attack convictions for violating state statute prohibiting parade upon public street without a license, where New Hampshire Supreme Court had narrowly construed the statute to limit the discretion of the licensing authority to considerations of time, place, and manner exclusively); Shuttlesworth v. Birmingham, 394 U.S. at 154-55, 89" } ]

[ { "docid": "23082267", "title": "", "text": "the extent of the downward departure, we AFFIRM on the imperfect entrapment defense, and we REMAND to the district court for a clarification of its ruling on the question of aberrant behavior. . See, e.g., United States v. Pozzy, 902 F.2d 133, 137-38 (1st Cir.), cert. denied,-U.S.-, 111 S.Ct. 353, 112 L.Ed.2d 316 (1990); United States v. Sheffer, 896 F.2d 842, 846 (4th Cir.), cert. denied sub nom. Rains v. United States, — U.S.-, 111 S.Ct. 112, 112 L.Ed.2d 82 (1990); United States v. Carey, 895 F.2d at 324-25; United States v. Russell, 870 F.2d at 19-20. REINHARDT, Circuit Judge, concurring in part and dissenting in part: I join in Parts I, II, and III of the court’s opinion. However, because in my view the defense of imperfect entrapment is a “mitigating circumstance of a kind ... not adequately taken into consideration by the Sentencing Commission in formulating the guidelines,” 18 U.S.C. § 3553(b); U.S.S.G. § 5K2.0, I cannot agree with my colleagues’ conclusion that such a defense, as a matter of law, can never serve as the basis for a downward departure. Accordingly, I dissent from Part IV of the opinion. The majority holds that a defense of imperfect entrapment can never serve as a basis for a downward departure from the Guidelines sentencing range. My colleagues’ conclusion cannot be based on the fact that no provision of the Guidelines expressly authorizes a downward departure for an imperfect entrapment defense. After all, the whole point of a departure is to deal with circumstances which the Guidelines do not take into account or inadequately take into account. I take it then that the majority believes that as a matter of law the defense of imperfect entrapment is simply not the type of mitigating factor that could ever justify a downward departure. I disagree. Contrary to the reasoning of the Eighth Circuit, see United States v. Streeter, 907 F.2d 781, 787 (8th Cir.1990), the fact that a defendant has not made out an entrapment defense sufficient to mitigate guilt does not dispose of the question whether his reluctant participation in a" } ]

[ { "docid": "23395994", "title": "", "text": "See United States v. Richardson, 923 F.2d 13 (2d Cir.1991); United States v. Prescott, 920 F.2d 139 (2d Cir.1990); United States v. Soliman, 889 F.2d 441 (2d Cir.1989); United States v. Colon, 884 F.2d 1550 (2d Cir.), cert. denied, 493 U.S. 998, 110 S.Ct. 553, 107 L.Ed.2d 550 (1989). An exception to this rule exists when a sentencing court mistakenly concludes as a matter of law that it lacks the legal authority to grant a downward departure. United States v. Sharpsteen, 913 F.2d 59, 63 (2d Cir.1990); United States v. Adeniyi, 912 F.2d 615, 619 (2d Cir.1990). In the instant case the district court had the legal authority to depart downward. See, e.g., Sharpsteen, 913 F.2d at 63 (court may take into account extraordinary family ties and relationships for departure downward); United States v. Jagmohan, 909 F.2d 61, 65 (2d Cir.1990) (lack of sophistication in completing crime may be proper ground for departure); United States v. Lara, 905 F.2d 599, 603 (2d Cir.1990) (extreme vulnerability of a defendant and potential for victimization may be proper ground for departure); United States v. Dickey, 924 F.2d 836, 838 (9th Cir.), cert. denied, — U.S. -, 112 S.Ct. 383, 116 L.Ed.2d 334 (1991) (single act of aberrant behavior may justify downward departure). We are unable to determine from the record whether the district court’s refusal to depart downward was based on an exercise of discretion or a mistaken conception of its authority under the guidelines. The trial judge stated: I have the authority, but I really don’t think that if I did so — I believe I would be violating the law. I know that sounds like it is in opposite of one another, but that’s not the case at all. The Court’s got the authority to depart from the guidelines whenever it feels it can do so justifiably and within the meaning of the interpretation of the guidelines through the courts and the statutes itself. I don’t think I have a case where I can. This statement strikes us as ambiguous in that although it may be read as a declination to" }, { "docid": "6616780", "title": "", "text": "violation of law or as a result of an incorrect application of the Guidelines (considered in light of the relevant policy statements) that govern departure decisions. If so, a remand is required. If, however, we conclude that departure is proper, we must then look to whether the extent of the departure is unreasonable. Williams v. United States, — U.S. -, 112 S.Ct. 1112, 1120, 117 L.Ed.2d 341 (1992); see 18 U.S.C. § 3742(f)(1), (2). Here, we find that the district court incorrectly applied the Guidelines in departing. A district court may depart from the Guidelines’ presumptive sentencing range only when it finds “that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines.” See 18 U.S.C. § 3553(b). The Guidelines state specifically that the Commission “has not dealt with the single acts of aberrant behavior that still may justify probation at higher offense levels through departures,” Ch. 1, Pt. A, Intro. ¶ 4(d), and, accordingly, permit a sentencing court to depart from the applicable range where it finds such behavior. In United States v. Carey, 895 F.2d 318 (7th Cir.1990), we held that a defendant’s behavior, to be considered “aberrant” within the meaning of the Guidelines, “must be more than merely something ‘out of character’ or the defendant’s first offense.” Id. at 325. “A single act of aberrant behavior,” we observed in Carey, “generally contemplates a spontaneous and seemingly thoughtless act rather than one which was the result of substantial planning because an act which occurs suddenly and is not the result of a continued reflective process is one for which the defendant may be arguably less accountable.” Id. Since our opinion in Carey, the Ninth Circuit has taken a broader view of the type of behavior that might be considered “aberrant” under the Guidelines, recognizing what it terms the “aberrant behavior spectrum.” See United States v. Dickey, 924 F.2d 836, 839 (9th Cir.), cert. denied, — U.S. -, 112 S.Ct. 383, 116 L.Ed.2d 334 (1991); United States v. Takai, 941 F.2d 738," }, { "docid": "17831325", "title": "", "text": "just deserts, from a utilitarian perspective, the more effective strategy for reducing crime.” Paul H. Robinson & John M. Darley, The Utility of Desert, 91 Nw.U.L.Rev. 453, 454 (1997). ‘White collar” “victimless” offenses, such as the ones committed by these defendants, are harmful to all society, particularly since drugs are involved. It is important, therefore, that the imposition of a penalty in this case capture, to some rational degree, the “worth” of defendants’ volitional criminal acts. 5.Sufficient But Not Greater Than Necessary Mercy is seldom included on the list of “traditional” rationales for sentencing. It is, however, evinced by the federal sentencing statute, 18 U.S.C. § 3553(a), which provides, as noted above, that the lowest possible penalty consistent with the goals of sentencing be imposed. See also United States v. Johnson, 964 F.2d 124, 125 (2d Cir.1992) (“the United States Sentencing Guidelines do not require a judge to leave compassion and common sense at the door to the courtroom”). The notion that undue harshness should be avoided by those sitting in judgment has long been a part of the human fabric and spirit. Lenity is often the desirable route. C. Departures To impose the harsh sentence suggested by Probation and the government under the Guidelines without appropriate downward departures would amount to an act of needless cruelty given the nature of the crimes committed and the personal circumstances of these defendants. Reasoned application of both sets of philosophical considerations— just desert and utilitarian — lead to amelioration. 1. Not a Heartland Case This case is outside of the heartland of racketeering and money laundering conspiracy cases contemplated by the Guidelines. See Koon v. United States, 518 U.S. at 92-93, 116 S.Ct. 2035; see also United States v. Gamez, 1 F.Supp.2d at 183 (E.D.N.Y.1998). Under such circumstances the law requires the exercise of a large degree of discretion as bridled and channeled by the sentencing statutes and Guidelines. Unlike those in most prosecutions in drug money laundering cases, the acts of these defendants were not ones of pure personal greed or avarice. While their manner of living did greatly improve with" }, { "docid": "23395995", "title": "", "text": "ground for departure); United States v. Dickey, 924 F.2d 836, 838 (9th Cir.), cert. denied, — U.S. -, 112 S.Ct. 383, 116 L.Ed.2d 334 (1991) (single act of aberrant behavior may justify downward departure). We are unable to determine from the record whether the district court’s refusal to depart downward was based on an exercise of discretion or a mistaken conception of its authority under the guidelines. The trial judge stated: I have the authority, but I really don’t think that if I did so — I believe I would be violating the law. I know that sounds like it is in opposite of one another, but that’s not the case at all. The Court’s got the authority to depart from the guidelines whenever it feels it can do so justifiably and within the meaning of the interpretation of the guidelines through the courts and the statutes itself. I don’t think I have a case where I can. This statement strikes us as ambiguous in that although it may be read as a declination to exercise discretion in appellant’s favor, it may also indicate that the court felt constrained under the law to deny the request for a downward departure. Under the circumstances, it seems advisable to remand for sentence reconsideration, not because the sentence was in error, but simply to make certain that the sentencing court understood it had the discretion to depart downward in this case, were it so advised. The only question to be resolved on remand is whether the sentencing court knew it had authority to downwardly depart in this case; if it did, then the sentence imposed should stand. If the district court was not aware it had such authority, however, then appellant should be resentenced in light of the proper recognition of its authority. See Sharpsteen, 913 F.2d at 64. The matter is remanded to the district court for further proceedings in accordance with this per curiam." }, { "docid": "1723498", "title": "", "text": "the factual distinctions between the two cases to determine whether this case, too, is outside the heartland. At sentencing, the parties and the district court focused primarily on whether Kalb’s conduct fit the definition of a “single act of aberrant behavior” adopted in prior Eighth Circuit eases. This is only the beginning of the departure analysis Koon now requires, an analysis which, when properly conducted, is entitled to deferential review on appeal. Accordingly, the judgment of the district court is reversed and the case is remanded for resentencing in accordance with this opinion. . The contrary conclusion expressed in United States v. Withraw, 85 F.3d 527, 530 (11th Cir.1996), was not essential to the court's deáision to affirm. More importantly, Withrow was decided the same day as Koon and did not employ the analysis mandated by Koon. . These cases narrowly construed that phrase as meaning \"spontaneous and seemingly thoughtless\" criminal conduct. United States v. Garlich, 951 F.2d 161, 164 (8th Cir.1991). The question after Koon is whether ahy other kind of \"aberrant behavior\" may ever warrant a departure. BRIGHT, Circuit Judge, dissenting. I. INTRODUCTION I respectfully dissent. Federal judges, especially district court judges, are dismayed at the impact of mandatory and guideline sentencing. See United States v. Hiveley, 61 F.3d 1358, 1365 (8th Cir.1995) (Bright, J., concurring) (discussing, federal judges’ dissatisfaction with sentencing guidelines and citing Federal Judicial Center, Planning for the Future: Results of a 1992 Federal Judicial Center Survey of United States Judges (1994)). These sentencing schemes essentially take the discretionary power to determine the length of a defendant’s sentence away from Article III judges and place it in the hands of prosecutors who control the charges brought against a defendant. The Supreme Court in Koon v. United States, — U.S. -, -, 116 S.Ct. 2035, 2046-47, 135 L.Ed.2d 392 (1996), however, recognized that judicial discretion plays a role in sentencing and that sentences resulting from guideline departures are appropriate in certain circumstances. Koon sends a signal to appellate courts to extend a greater measure of deference to district courts’ discretion in sentencing. In this case, Judge" }, { "docid": "22633355", "title": "", "text": "Recognizing that this argument would render moot Lambey’s motion to withdraw his guilty plea because the motion is based on former counsel’s erroneous estimate, appellate counsel for Lambey advanced this argument as an alternative position if Lambey is not allowed to withdraw his guilty plea. Even though Lambey did not appeal the Sentencing Guideline calculation, we might be inclined to consider the Sentencing Guidelines issue if the district court committed plain error. See United States v. Maxton, 940 F.2d 103, 105 (4th Cir.), cert. denied, — U.S. -, 112 S.Ct. 398, 116 L.Ed.2d 347 (1991). However, because this same argument was rejected in connection with the sentence of Lambey’s co-conspirator, see United States v. DePew, 932 F.2d. 324, 328-29 (4th Cir.1991), and Lambey’s plea agreement contains clauses expressly waiving his right to appeal the sentence, we will not review the issue. See United States v. Wiggins, 905 F.2d 51, 54 (4th Cir.1990). MURNAGHAN, Circuit Judge, dissenting: While I concur in the majority’s opinion insofar as it holds that the district court did not err in denying Lambey’s motion to withdraw his plea, I write separately to dissent from the majority’s resolution of the Sentencing Guidelines issue raised sua sponte by the court. Because I believe that the rule of lenity prevents us from interpreting the Guidelines so as to apply the guideline for fully executed first de gree murder and circumvent the specific guideline for a conspiracy to murder (which was planned but not effectuated), I would remand for resentencing. I. Although Lambey did not appeal the district court’s calculation of his sentence, the issue had been raised on appeal by members of the bench who were concerned that the district court may have erred in using the guideline for first degree murder when a separate guideline for conspiracy to murder exists. Lambey’s failure to raise the issue on appeal does not prevent us from considering an issue that involves a fundamental or plain error. Fed.R.Crim. Proc. 52(b) (plain error “affecting substantial rights may be noticed although not brought to the attention of the court”); Silber v. United States, 370" }, { "docid": "5248994", "title": "", "text": "for such contingencies by the inclusion of specific offense characteristics. Therefore, it would have been appropriate, on the facts of this case, for the district court to depart upwardly within the framework of the guidelines. Using this method ology, the district court could have taken into consideration not the stereotypes suggested by the majority but the real harm to the real human beings touched by this situation. It would have been appropriate to consider the great deal of planning that went into this particular blackmail, the harm to persons other than the primary victim, and the particularly severe psychological damage suffered by the primary victim. Had the district court followed this approach, or had the majority of this court adopted it, we would have a vulnerability enhancement still capable of principled application. The district courts of this circuit would also realize that the present blackmail guideline is inadequate to meet the needs of law enforcement and that, until the Sentencing Commission amends the provision to reflect the realities of criminal practice, upward departures will often be required. I cannot join what I believe to be an erroneous and short-sighted approach to this aggravated blackmail situation. In most situations, the erroneous application of the guidelines requires that we remand the ease for resentencing. However, because, under the approach I believe to be correct, the district court would have imposed at least the sentence it did, I also would affirm the judgment of the district court. See Williams v. United States, — U.S.-,-, 112 S.Ct. 1112, 1120-21, 117 L.Ed.2d 341 (1992) (“[Ojnce the court of appeals has decided that the district court misapplied the Guidelines, a remand is appropriate unless the reviewing court concludes, on the record as a whole, that the error was harmless[.]”). . \"[A] factor may be listed as a specific offense characteristic under one guideline but not under all guidelines. Simply because it is not listed does not mean that there may not be circumstances when that factor would be relevant to sentencing.” § 5K2.0 Grounds for Departure (Policy Statement)." }, { "docid": "23068148", "title": "", "text": "overwhelming importance of Hechavarria’s testimony to the government’s case against Varona, I find the majority’s invocation of the “sandbagging” threat to be unpersuasive. Varona’s counsel had nothing whatsoever to gain by failing to object to Hechavarria’s testimony at trial, but if he had objected and the objection had been sustained, the government’s case against Va-rona almost certainly would have failed. This case, therefore, hardly is one in which a defense lawyer “intentionally decline[d] to object to a potentially unconstitutional trial procedure in order to inject reversible error into the proceeding.” United States v. Joshi 896 F.2d 1303, 1307 n. 3 (11th Cir.), cert. denied, 498 U.S. 986, 111 S.Ct. 523, 112 L.Ed.2d 534 (1990). In my view, the record unequivocally indicates that Hechavarria’s testimony was obtained in violation of Varona’s proffer agreement. The record also indicates that the government had no legitimate and wholly independent source for Heehavama’s testimony and that no reasonable jury could have convicted Varona absent his testimony. I therefore would reverse Varona’s conviction and remand her case for a new trial. Accordingly, although I CONCUR with Parts IV.A and IV.C of the majority opinion, I respectfully DISSENT as to Part IV.B. . Vacating Pielago's sentence of 140 months is appropriate even though that sentence lies within the 121- to 151-month sentencing range that we prescribe upon remand. The district court imposed the 140-month sentence under the assumption that the sentencing range was 135 to 168 months. Because the district court did not clearly state that it would have imposed the 140-month sentence even if the sentencing range were 121 to 151 months, we must remand the case for resentencing. Cf. United States v. De La Torre, 949 F.2d 1121, 1122 (11th Cir.1992) (declining to resolve a dispute as to which guideline range was applicable when the trial court made clear that the same sentence would have been imposed irrespective of the outcome of the dispute). . In her statement, Varona admitted that on November 6, 1993, after her husband’s arrest, she gave Hechavarria a scale for weighing cocaine and sold him the kilogram of cocaine that" }, { "docid": "23403537", "title": "", "text": "See United States v. Cage, 458 F.3d 537, 544 (6th Cir.2006) (affirming a Guidelines-range sentence despite the defendant’s argument that she deserved a downward departure because of her young children and other family circumstances). Brown’s concession that most or all of her mitigating arguments are not supported by the Sentencing Guidelines further bolsters our conclusion that she has not rebutted the presumption of reasonableness. This presumption exists precisely because a sentence that both the Sentencing Commission and the sentencing judge agree on “ ‘significantly increases the likelihood that the sentence is a reasonable one.’ ” United States v. Liou, 491 F.3d 334, 339 (6th Cir.2007) (quoting Rita, 127 S.Ct. at 2463). Not only did the district court in the present case impose a within-Guidelines sentence, but it adopted a three-level reduction for acceptance of responsibility despite the fact that Brown had been a fugitive for a year between the time that she pled guilty and was sentenced. We simply cannot say that the district court’s sentence was substantively unreasonable under these circumstances. III. CONCLUSION For all of the reasons set forth above, we AFFIRM the district court’s judgment in both eases. KAREN NELSON MOORE, Circuit Judge, concurring in 05-4304 and dissenting in 06-3736. I agree with the majority that the district court had jurisdiction under 18 U.S.C. § 3583® to sanction Tyrone Madden for his admitted supervised-release violation. However, because the district court did not adequately explain why it rejected Diana Blaine Brown’s (“Brown”) arguments seeking a lower sentence, I cannot find Brown’s sentence reasonable. Accordingly, I respectfully dissent and would remand Brown’s case for resentencing. The district court committed procedural error in this case because the court failed to mention or address one of Brown’s central arguments for a lower sentence, namely, that her offense represented “aberrant behavior” and “truly was a marked deviation from an otherwise law-abiding life.” J.A. at 116-17 (Sent. Mem. at 7-8). Even when Brown’s counsel specifically requested that the court rule on Brown’s motion, the court’s curt response ignored every argument raised in the motion. Instead, the court denied the motion because the court" }, { "docid": "16569145", "title": "", "text": "sentencing. 401 F.3d at 545 n. 4; see generally Johnson v. United States, 520 U.S. 461, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (stating that an error is “plain” if \"the law at the time of trial was settled and clearly contrary to the law at the time of appeal”). . Although the Guidelines are no longer mandatory, Booker makes clear that a sentencing court must still \"consult [the] Guidelines and take them into account when sentencing.” 125 S.Ct. at 767. On remand, the district court should first determine the appropriate sentencing range under the Guidelines, making all factual findings appropriate for that determination. Hughes, 401 F.3d at 546. The court should consider this sentencing range along with the other factors described in 18 U.S.C. § 3553(a), and then impose a sentence. Id. If that sentence falls outside the Guidelines range, the court should explain its reasons for the departure, as required by 18 U.S.C. § 3553(c)(2). Id. The sentence must be \"within the statutorily prescribed range and ... reasonable.” Hughes, 401 F.3d at 547. GREGORY, Circuit Judge, concurring in part and dissenting in part: It is axiomatic that not all fraud is federal fraud. Rather, the federal mail fraud statute reaches only “those limited instances in which the use of the mails is a part of the execution of the fraud, leaving all other cases to be dealt with by appropriate state law.” Kann v. United States, 323 U.S. 88, 95, 65 S.Ct. 148, 89 L.Ed. 88 (1944) (emphasis added). Because I believe that this is such a case that should be left to state law, I respectfully dissent as to the sufficiency of the evidence on Pierce’s conviction. The majority’s attempt to fit the facts of this case into the federal mail fraud statute goes beyond existing precedent and demonstrates the dangers inherent in extending federal jurisdiction further than Congress intended to go. I. The majority affirms Pierce’s mail fraud conviction under 18 U.S.C. § 1341. A jury found that Pierce had defrauded Bristol by selling “off-the-books” instant bingo games during sessions in which they would also" }, { "docid": "22393668", "title": "", "text": "to Reno does not take very long. . The absence of a criminal record does not, standing alone, suggest that behavior was aberrant. See United States v. Pierson, 121 F.3d 560, 564 (9th Cir.1997) (noting that criminal history is already taken into account by the Guidelines). This court has, however, held that the fact that an offense is the defendant's first may be a relevant factor in considering whether the offense was \"a single act of truly aberrant behavior justifying a downward departure.” United States v. Dickey, 924 F.2d 836, 838 (9th Cir.1991); see also Morales, 972 F.2d at 1011. . After argument, Rojas-Millan, appearing pro se rather than through counsel, asserted that under the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), his conviction and sentence were invalid. Any question regarding the applicability of Apprendi should be raised, through counsel, before the district court on remand. GRABER, Circuit Judge, concurring in part and dissenting in part: I concur in the majority’s opinion except with respect to Part III(C), from which I respectfully dissent. In my view the district court clearly exercised its discretion to refuse to depart downward on the basis of “aberrant behavior.” That being so, we lack jurisdiction to review the court’s decision. United States v. Morales, 972 F.2d 1007, 1011 (9th Cir.1992). The distinct judge was saying, in effect, “I hate these guidelines, especially this part, because they are confusing and I want more discretion”— But, nevertheless, there we are. Now, I would — I reject the aberrant behavior request for a downward departure. ... The wording of rejecting a request means that the court entertained the request, but said “no.” In those circumstances we lack jurisdiction to entertain the appellant’s challenge. Nothing about the sentence “I reject the aberrant behavior request for a downward departure” is ambiguous; nothing about it hints that the court thought that it was unable to entertain the request. The court had asked the parties for arguments about whether it should depart downward for “aberrant behavior.” The parties presented arguments pro" }, { "docid": "12217629", "title": "", "text": "the ground that Bush’s embezzlement constituted “aberrant behavior.” “A district court by definition abuses its discretion when it makes an error of law.” Koon v. United States, — U.S.-,-, 116 S.Ct. 2035, 2047, 135 L.Ed.2d 392 (1996). We therefore hold that the district court’s decision to depart downward on the ground that “society ... has [no] interest in seeing [Bush] incarcerated” was an abuse of discretion. The record is sufficiently well developed for us to determine that Bush’s conduct was not in fact “aberrant” under the With-row standard. Bush is a first offender and therefore satisfies the first part of Withrow’s “aberrant behavior” test. Her conduct, however, was clearly not a single, “spontaneous and thoughtless act[,] rather than one which was the result of substantial planning.” Bush embezzled money from the credit union on several different occasions and with substantial planning. We therefore conclude that the district court must resentence Bush on remand without granting an “aberrant behavior” departure from the applicable guideline sentencing range. HI For the foregoing reasons, we hold that the district court erred in refusing to apply a sentence enhancement for “more than minimal planning” under § 2B1.1(b)(4)(A) of the guidelines, and that the court erred in departing from the applicable guideline sentencing range on the ground that the defendant’s offense constituted “aberrant behavior” on her part. We therefore VACATE the defendant’s sentence and REMAND for resentencing in accordance with this holding. . Bush argues that the three separate instances of embezzlement should be deemed to be a single act for purposes of the “more than minimal planning\" guideline, because the separate instances of embezzlement constitute one “offense.” A series of acts that together constitute a single offense under a particular criminal statute does not thereby cease to be a series of acts under the “more than minimal planning” guideline, however; such repeated acts indicate greater culpability and are in fact the target of the “more than minimal planning” enhancement. Bush admits that the embezzlement involved “a lot of separate acts.” The district court therefore could not correctly have concluded that Bush's several acts of embezzlement" }, { "docid": "23204571", "title": "", "text": "the Guidelines or otherwise. The three-judge panel in Sabían I had it right. Koon did not overrule LiraBarraza on review of the extent of departures. We do not, however, read Koon as freeing the district court from the general framework of the Guidelines in determining the extent of a departure. Indeed, Koon stated that the decision whether departure is justified by a factor not adequately considered by the Commission, or by the presence of a discouraged factor in an unusual or exceptional way, “are matters determined in large part by comparison with the facts of other Guideline cases.” Koon, — U.S. at-, 116 S.Ct. at 2047. Similarly, we conclude that the extent of an upward departure must still be governed by analogy to other Guidelines categories, as we held in [ ] Lira-Barraza, 941 F.2d at 748-51[ ]. As we said there, “[t]he reasonableness of sentences determined without reference to identified standards would not be susceptible to rational review.” Id. at 749. The district court retains discretion, but it is not free to divest itself entirely of the structure of the Guidelines. Id. at 748. Sablan I, 90 F.3d at 365. Because, like the three-judge panel, I would vacate the sentence and remand for resentencing in accordance with Lira-Barraza, I respectfully dissent. . Although this holding is announced in Part I of the majority opinion, which discusses the standard of review, with which we do not quarrel, the discussion in Part III clearly indicates that the holding applies as well to how we review the extent of a departure. . Even on the question of whether to depart at all, Koon recognizes the appropriateness of analogizing to the Guidelines. If a factor is unmentioned in the Guidelines, the court must, after considering the \"structure and theory of both relevant individual guidelines and the Guidelines taken as a whole,” id., at 949, decide whether it is sufficient to take the case out of the Guideline’s heartland. - U.S. at -, 116 S.Ct. at 2045 (quoting United States v. Rivera, 994 F.2d 942, 949 (1st Cir.1993)). . The district court also relied," }, { "docid": "11170226", "title": "", "text": "profitable. The court, crediting the unrebutted testimony on behalf of Milikowsky, was able to conclude that the companies’ continuing livelihood depends entirely on Milikowsky’s personal involvement, and that, in his absence, TradeARBED might well withdraw its credit, leading to both companies’ immediate bankruptcy and the loss of employment for Jordan’s employees and Prospect’s 150 to 200 employees. On the basis of this record, we cannot find clear error in the court’s conclusion that imprisoning Milikowsky would have extraordinary effects on his employees to a degree not adequately taken into consideration by the Sentencing Commission. While we agree with our sister circuits that business ownership alone, or even ownership of a vulnerable small business, does not make downward departure appropriate, see cases cited supra, departure may be warranted where, as here, imprisonment would impose extraordinary hardship on employees. As we have noted in similar circumstances, the Sentencing Guidelines “do not require a judge to leave compassion and common sense at the door to the courtroom.” Johnson, 964 F.2d at 125. CONCLUSION We have considered all of Milikowsky’s contentions as to why his conviction should be reversed, and the government’s contentions as to why the sentence should be vacated, and have found no basis for either reversal or vacatur. The judgment of conviction and the sentence are affirmed. . The parties agree that Milikowsky’s sentence is governed by the November 1989 Guidelines, and all subsequent references refer to that version of the Guidelines." }, { "docid": "23403538", "title": "", "text": "all of the reasons set forth above, we AFFIRM the district court’s judgment in both eases. KAREN NELSON MOORE, Circuit Judge, concurring in 05-4304 and dissenting in 06-3736. I agree with the majority that the district court had jurisdiction under 18 U.S.C. § 3583® to sanction Tyrone Madden for his admitted supervised-release violation. However, because the district court did not adequately explain why it rejected Diana Blaine Brown’s (“Brown”) arguments seeking a lower sentence, I cannot find Brown’s sentence reasonable. Accordingly, I respectfully dissent and would remand Brown’s case for resentencing. The district court committed procedural error in this case because the court failed to mention or address one of Brown’s central arguments for a lower sentence, namely, that her offense represented “aberrant behavior” and “truly was a marked deviation from an otherwise law-abiding life.” J.A. at 116-17 (Sent. Mem. at 7-8). Even when Brown’s counsel specifically requested that the court rule on Brown’s motion, the court’s curt response ignored every argument raised in the motion. Instead, the court denied the motion because the court had already given Brown a separate Guidelines-based downward adjustment for acceptance of responsibility, an issue that Brown’s motion did not even mention. Even the majority recognizes that the district court’s failure to mention Brown’s aberrant-behavior argument during the hearing is “troubling],” Maj. Op. at 611, and that the court’s ruling on Brown’s motion was “imperfect.” Maj. Op. at 612. Applying a downward adjustment in calculating a defendant’s Guidelines range does not excuse a sentencing judge from addressing the defendant’s other arguments for a lower sentence. Indeed, such an irrelevant and non-responsive answer fails to “set forth enough to satisfy the appellate court that [the district court] has considered the parties’ arguments and has a reasoned basis for exercising [its] own legal decisionmaking authority.” Rita v. United States, — U.S. —, 127 S.Ct. 2456, 2468, 168 L.Ed.2d 203 (2007). Accordingly, I would remand so that the district court can consider Brown’s arguments and explain the rationale for whatever sentence the district court selects. I respectfully dissent." }, { "docid": "15690859", "title": "", "text": "to possessing fifteen items. The applicable Guideline provides for a two-level enhancement if the offense involves possession of ten or more items of child pornography. See U.S.S.G. § 2G2.4(b)(2). Thus, the amount of child pornography possessed by Wind cannot be deemed less than typical for cases to which section 2G2.4 applies. The district court relied least on Wind’s lack of a criminal record and otherwise exemplary lifestyle as placing his case outside of the heartland of typical child pornography cases. The. court noted Wind had never been convicted of a crime, has a solid family, educational, and employment background, and “is inherently an honest, thoughtful, and compassionate person.” Given these circumstances, the district court believed Wind’s criminal conduct was aberrant behavior in general. See United States v. Kalb, 105 F.3d 426, 429 (8th Cir.1997). We reject' the district court’s reasons for concluding Wind’s criminal behavior was aberrant justifying a departure. Because the Guidelines adequately account for the absence of a criminal record, the defendant’s lack of a criminal history cannot remove a ease from the heartland, see United States v. Polanco, 53 F.3d 893, 898 (8th Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 2555, 135 L.Ed.2d 1073 (1996), or serve as grounds for departure below the applicable Guidelines range, see United States v. Franklin, 926 F.2d 734, 737 (8th Cir.1991). Education, employment, and family ties are discouraged factors that warrant departure only in extraordinary cases, see Koon, — U.S. at -, 116 S.Ct. at 2045, and the district court did not specify anything extraordinary about Wind’s case. Last, although the district court can consider the defendant’s character in making a departure decision, see U.S.S.G. § 1B1.4, we doubt the unmentioned factors of honesty, thoughtfulness, and compassion are enough in themselves to take Wind’s ease outside the heartland. See Koon, — U.S. at -, 116 S.Ct. at 2045. We vacate Wind’s eight-month sentence and remand for resentencing consistent with this opinion." }, { "docid": "22968757", "title": "", "text": "range ... [is] the extent to which judicially initiated departures are outside the applicable range. There is a sizable difference between a 10 or 20 percent variance from a Guideline minimum or maximum and a variance of 50, 60, or 80 percent.”). No doubt, the district court retains ample discretion to grant Davis a variance on this record. And it will have an opportunity to do so on remand. But, for the reasons given, even the most animated application of the parsimony requirement — that the district court impose “a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in” § 3553(a)(2) — cannot justify a one-day sentence in this case. To rule otherwise, we respectfully submit, would intimate that reasonableness review is a theory, not a practice, and would fairly leave litigants wondering what downward (or upward) variances exceed a district court’s discretion if a 99.89% downward variance on less-than-extraordinary facts lies within that discretion. Modest though reasonableness review may be, it is not non-existent. III. For these reasons, we reverse and remand the case for resentencing. DAMON J. KEITH, Circuit Judge, dissenting. I am saddened and distressed by the majority’s opinion, which totally disregards the district court’s authority to impose a fair and reasonable sentence that is “sufficient but not greater than necessary” to effectuate the purposes of sentencing. Reversing the district court’s sentence is a complete miscarriage of justice. Therefore, I respectfully dissent. For years, district court judges have grappled with mandatory sentencing guidelines that constrained their power to impose just sentences. In United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the Supreme Court granted district courts the power to evaluate the circumstances of each case and make an individualized sentencing determination. Regrettably, the majority’s holding, finding Davis’s sentence substantively unreasonable, strips the district courts of its power to issue a reasonable sentence in accordance with the now advisory sentencing guidelines. Here, in accordance with Booker, the district court complied with the Supreme Court’s mandate. Therefore, I cannot agree with the majority’s holding. Booker drastically changed" }, { "docid": "9382648", "title": "", "text": "in this ease. See, e.g., United States v. Collar, 904 F.2d 441, 442 (8th Cir.1990) (defendant’s wife drove the getaway vehicle after six bank robberies); United States v. Sheffer, 896 F.2d 842, 846 (4th Cir.) (defendant was leader and organizer of the family drug business, instrumental in helping family members enter the business), cert. denied, 498 U.S. 968, 111 S.Ct. 432, 112 L.Ed.2d 416 (1990). The animating purpose of the role enhancement, as stated in the Background to the Commentary of section 3B1.1, is to increase punishment for those within a criminal organization who have a greater “relative responsibility.” One isolated instance of a drug dealer husband asking his wife to assist him in a drug transaction is not the type of situation that section 3B1.1 was designed to reach. We do not find the lower court’s findings of fact clearly erroneous; on the contrary, we accept them. Rather, we merely hold that these facts, taken as true, do not legally support enhancement under section 3B1.1. Accordingly, we affirm the conviction, vacate the sentence, and remand for resentenc-ing in accordance with this opinion. MAHONEY, Circuit Judge, concurring in part and dissenting in part: I am otherwise in agreement with my colleagues, but respectfully dissent as to the majority’s reversal of the two-level enhancement of McGregor’s sentence pursuant to USSG § 3Bl.l(c). In my view, this ease cannot be meaningfully distinguished from United States v. Jacobo, 934 F.2d 411 (2d Cir.1991). In Jacobo, we ruled that because a defendant “had obtained the cocaine and had hired [another defendant] to carry it for him, the court’s finding that [the hiring defendant] played a managerial role in the enterprise was not clearly erroneous.” Id. at 418; see also id. at 414 (hiring occurred just before drug transaction was consummated). Jacobo leaves little room to preclude application of the § 3Bl.l(e) enhancement because the “supervised” or “managed” participant was only utilized in a single transaction; nor should the existence of 'other similar transactions in which that participant was not involved affect the analysis. I would accordingly affirm the judgment and sentence of the district" }, { "docid": "5815545", "title": "", "text": "sentencing judge is thus required to articulate the specific factors justifying the extent of his departure and to adjust the defendant’s sentence by utilizing an incremental process that quantifies the impact of the factors considered by the court on the defendant’s sentence. United States v. Thomas, 930 F.2d 526, 530 (7th Cir.), cert. denied, 502 U.S. 857, 112 S.Ct. 171, 116 L.Ed.2d 134 (1991). “ ‘Significant departures — those of more than two levels — must be explained with a care commensurate with their exceptional quality.’” United States v. Seacott, 15 F.3d 1380, 1389 (7th Cir.1994). The method of departure must be made with reference to the rationale or methodology of the Guidelines. Id. Should the district court wish to downwardly depart, it will have to do so with reference to the Guidelines and its provisions. In United States v. Schmude, we suggested that departures be made with an eye to the “structure of the Sentencing Table found in the Guidelines” because it is a “useful tool in determining how much of a departure is ‘reasonable.’ ” 901 F.2d 555, 560 (7th Cir.1990). We note that at the original sentencing hearing, the court discussed another defendant who was going to be sentenced for fraudulently obtaining thousands of dollars of loans from various financial institutions. The other defendant was also supposed to be sentenced to 18 to 24 months in prison and the judge commented: When I compared the two offenses, at least in my mind there was, there was no comparison. I mean his was truly a white collar crime. [The defendant’s crime] is considered in terms of sentencing, and I guess in terms of societal perception a violent crime in the sense it involves a gun, but the facts of this situation as, of this particular case resulted in a lot less harm than the facts of the [other] case. And I found that a little disturbing in -terms of the restrictions that this Court has to abide by with regard to the sentencing guidelines. We have previously held that “[j]udges are not free to reject the Guidelines out" }, { "docid": "21617381", "title": "", "text": "an exceptional degree or in some other way make[] the case different from the ordinary case where [family circumstances are] present”); 18 U.S.C. § 3553(b) (departure warranted in presence of circumstances \"of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the [Guidelines”); U.S.S.G. § 5K2.0 (stating that a circumstance \"not ordinarily relevant” in determining departure may be relevant if it \"is present to an unusual degree and distinguishes the case from the 'heartland' of cases covered by the [Gjuide-lines”). . See also Koon, 518 U.S. at 98, 116 S.Ct. 2035 (observing that in determining whether departure is permitted, the District Court \"must make a refined assessment of the many facts bearing on the outcome, informed by its vantage point and day-to-day experience in criminal sentencing” and concluding that \"District [C]ourts have an institutional advantage over appellate courts in making these sorts of determinations”); Sweeting, 213 F.3d at 100 (same); Iannone, 184 F.3d at 227 (\"We note the substantial deference that we owe the decision to depart from the Guidelines.”). . We also concur with other Court of Appeals in affirming that the Guidelines \"do not require a judge to leave compassion and common sense at the door to the courtroom.” United States v. Johnson, 964 F.2d 124, 125 (2d Cir.1992). . We observed that “the court was motivated primarily by the circumstance that Sweeting's incarceration would break up the family unit” and quoted the District Court's expression of its desire to avoid the \"all too common” break up of the family; id. at 102 (noting that “the circumstance that Sweeting's incarceration will disrupt the family unit cannot be considered atypical\"); id. at 108 (\"At bottom, the unfortunate fact is that [Sweeting's] children will suffer the same type and degree of injury felt by any family where a parent is incarcerated.”). . But see United States v. Johnson, 964 F.2d 124, 129 (2d Cir.1992) (downward departure warranted because defendant who was solely responsible for three young children faced extraordinary parental responsibilities). . See Sweeting, 213 F.3d at 104 (noting that the trial" } ]

[ { "docid": "11626418", "title": "", "text": "of defense instruction beyond what was given. The court correctly advised the jury of the effect of the defendant’s plea of not guilty and the government’s burden of proof on the essential elements. See United States v. Fuel, 583 F.2d 978, 989 (8th Cir.1978). No further instruction was required. (3) The trial court also refused to give an instruction requested by the defendant relating to bias and hostility of witnesses. The rejected instruction read as follows: You may also consider any demonstrated bias, prejudice or hostility of a witness toward the Defendant in determining the weight to be accorded to his testimony. The court did read an instruction that read: The testimony of an informer who provides evidence against a defendant for personal advantage or vindication, must be examined and weighed by the jury with greater care than the testimony of an ordinary witness. The jury must determine whether the informer’s testimony has been affected by interest, or by prejudice against defendant. The trial court also instructed the jury on the general credibility of witnesses and burden of proof. There was no testimony or evidence of any bias or prejudice that was not covered by the instruction given. The defendant’s instruction was properly refused. (4) Finally, appellant asserts as error the fact that the judge, at the request of the jury, permitted the jury to hear a second playing of government’s Exhibit 2. Appellant contends that this action impermissibly highlighted that exhibit over other evidence. It is within the trial court’s discretion to replay a tape at the jury’s request. United States v. Koessel, 706 F.2d 271, 275 (8th Cir.1983). Furthermore, prior to replaying the recording, the judge repeated his previous instruction pertaining to the jury’s duty to determine the facts from all the evidence and the reasonable inferences arising from such evidence. The record shows that the court did not abuse its discretion by replaying the tape. Affirmed. . The record indicates that defense counsel failed to state his specific objection as required by Fed.R.Evid. 103(a)(1). We assume, without deciding, that the ground of the objection was apparent from" } ]

[ { "docid": "21612695", "title": "", "text": "United States v. Brugman, 655 F.2d 540, 542 (4th Cir.1981). Joinder is highly favored in conspiracy trials. See United States v. Tedder, 801 F.2d 1437, 1450 (4th Cir.1986). The district court’s decision to grant or deny a motion for severance will be overturned only for a clear abuse of discretion. Person v. Miller, 854 F.2d 656, 665 (4th Cir.1988). “Such an abuse of discretion will be found only where the trial court’s decision to deny a severance ‘deprives the defendant^ of a fair trial and results in a miscarriage of justice.’ ” Id. (quoting United States v. Becker, 585 F.2d 703, 706 (4th Cir.1978)). The district court did not abuse its discretion in refusing to sever Erdman from the case. The relative strength of the government’s case against individual defendants is no basis for severance in the absence of a strong showing of prejudice. See United States v. Brugman, 655 F.2d at 543. The prejudice Erdman claims to have suffered allegedly arose principally from the admission of Joel Denson’s testimony. The court, however, exercising its discretion to the benefit of appellants, limited Denson’s testimony to acts occurring in or after 1983. We can assume that this evidence was admissible only against Chorman, so that a limiting instruction would have been proper, but Erdman did not move the court for such an instruction. See Fed.R.Evid. 105 (court “upon request” shall restrict evidence to its proper scope and instruct jury accordingly); see also United States v. Gilmore, 730 F.2d 550, 555 (8th Cir.1984); United States v. Regner, 677 F.2d 754, 757 (9th Cir.1982). More importantly, it is apparent from the verdicts that the jury was independently weighing the evidence against each defendant. See United States v. Porter, 821 F.2d 968, 972 (4th Cir.1987). Erdman’s showing of prejudice is inadequate; the court did not abuse its discretion in denying his motion to sever. IV Finally, appellants assign as error the district court’s failure to make factual findings on the record in connection with the fines it imposed. Section 3572(a) of title 18 provides that “[i]n determining whether to impose a fine, and the" }, { "docid": "23097429", "title": "", "text": "Cir.1981). That was clearly the case here. All those indicted were alleged to have participated in a drug importation and distribution scheme run by Porter. Because the indictment charged Porter with engaging in a continuing enterprise based on a series of crimes, including those involving the other appellants, joinder was proper under Rule 8(b). Nor did the trial court abuse its discretion under Fed.R.Crim.P. 14 in denying a severance. A defendant must show prejudice in order for the court’s ruling to constitute an abuse of discretion. United States v. Phillips, 664 F.2d 971, 1016-17 (5th Cir.1981). No prejudice exists if the jury could make individual guilt determinations by following the court’s cautionary instructions, appraising the independent evidence against each defendant. Convictions should be sustained if it may be inferred from the verdicts that the jury meticulously sifted the evidence. Phillips, 664 F.2d at 1017. Hand, Barrentine, Jolly, and Bell have shown no prejudice. The judge repeatedly instructed the jury that the testimony was to be considered against a particular defendant or defendants. The verdict reflects that the jury carefully considered the evidence against each defendant. It acquitted Peterson of the only charge against him and acquitted Terry Porter of one of three charges against her. II The appellants argue that the district court also erred in its instruction defining reasonable doubt. They contend that the court should not have attempted any definition, that the specific definition given was confusing, and that it shifted the burden of proof, depriving them of due process of law. This court has urged trial courts to avoid defining reasonable doubt unless requested to do so by the jury, because of the risk that the definition will create confusion and impermissibly lessen the required burden of proof. See United States v. Love, 767 F.2d 1052, 1060 (4th Cir.1985). Attempts at defining reasonable doubt in a charge do not constitute reversible error per se, however. United States v. Moss, 756 F.2d 329, 333 (4th Cir.1985). To determine whether an instruction on reasonable doubt is sufficiently prejudicial to require reversal, we must look to the entire charge and" }, { "docid": "21612679", "title": "", "text": "the jury’s convictions on the substantive offenses can be traced to erroneous instructions. Specifically, they charge that the court erred by failing to define “possession” in the context of the interstate transportation of stolen vehicles charges, and compounded that error by immediately following the possession instruction given with willful blindness and aiding and abetting instructions they claim misled the jury. Chorman argues that the government’s rebuttal closing impermissibly alluded to his prior criminal record and therefore prejudiced his right to a fair trial. Erdman also claims prejudice from the government’s closing through guilt by association. He extends that argument in asserting that the district court committed reversible error by denying his severance motion. Finally, both appellants argue that the district court erred by failing to set forth the factual basis for the fines it imposed. A We address first the sufficiency of the evidence challenge to the conspiracy convictions, assessing the evidence in the light most favorable to the government, Jackson v. Virginia, 443 U.S. at 319, 99 S.Ct. at 2789, and of course considering both direct and circumstantial evidence. See Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942). Appellants were charged under 18 U.S.C. § 371 with conspiring to commit federal crimes, specifically the interstate transportation of motor vehicles known to have been stolen. In order to prove the existence of a conspiracy in violation of § 371, the government must prove an agreement between two or more persons to act together in committing an offense and an overt act in furtherance of the conspiracy. See, e.g., United States v. Reifsteck, 841 F.2d 701, 704 (6th Cir.1988). There must be some showing .that the defendant knew the conspiracy’s purpose and .took some action indicating his participation. United States v. Laughman, 618 F.2d 1067, 1075 (4th Cir.1980). “A tacit or mutual understanding between or among the alleged conspirators is sufficient to show a conspiratorial agreement.” United States v. Reifsteck, 841 F.2d at 704. A conspiracy may be inferred from circumstantial evidence that can reasonably be interpreted as participation in the common plan." }, { "docid": "21270517", "title": "", "text": "prevent the jury from making a reliable judgment about guilt or innocence.” Zafiro v. United States, 506 U.S. 534, 538, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993). Absent special circumstances, defendants indicted together should be tried together, see United States v. Brugman, 655 F.2d 540, 542 (4th Cir.1981), and this presumption is especially strong in conspiracy cases, see United States v. Chorman, 910 F.2d 102, 114 (4th Cir.1990). We review a district court’s decision to deny a motion to sever for abuse of discretion, see United States v. Jones, 356 F.3d 529, 535 (4th Cir.2004), which we will find “only where the trial court’s decision to deny a severance deprives the defendants of a fair trial and results in a miscarriage of justice,” Person v. Miller, 854 F.2d 656, 665 (4th Cir.1988) (alteration & internal quotation marks omitted). Here, the segment showing Smith speaking about “snitching” and drug dealing was admitted against Smith only. The district court admitted the second segment to show “general relationships” between the gang members. J.A. 257. In order to minimize any unfair prejudice, the court instructed the jury regarding the limited purpose of the DVD’s admissibility and added that “there’s absolutely no evidence that either Mr. Harris or Mr. Royal appears in any of the scenes ... of the DVD.” J.A. 257. Although Appellants maintain that “allowing the jury to consider any part of the video as evidence against them was improper,” Brief of Appellants at 47, they offer no reason why the behavior captured on tape would be particularly prejudicial to them, especially since the jury was specifically instructed that there was no evidence that they appeared in the video. Moreover, we know of no reason why any prejudice to them from the video would have affected their opportunity to receive a fair trial. We therefore hold that the district court acted within its discretion in denying their motion. IV. Appellants next contend that the district court committed plain error in allowing improper rebuttal argument from the government. We disagree. Royal’s defense counsel argued in closing that the prosecutor had essentially blamed Appellants for" }, { "docid": "22108858", "title": "", "text": "the City, it was inadmissible character evidence as against Neal intended to show that he was a “bad person” who acted in conformity with his prior bad acts. Rule 42(b) of the Federal Rules of Civil Procedure affords a district court discretion to order separate trials where such order would further convenience, avoid prejudice, or promote efficiency. In this case, we cannot say that the district court abused its discretion in concluding that bifurcation would “not significantly increase judicial efficiency” or in its conclusion that bifurcation would “result in the Court essentially trying the same case twice.” See Omnibus Order, March 8, 2000. There is clearly substantial overlap in the issues, facts, evidence, and witnesses required for Griffin’s claims against both Neal and the City. Moreover, although Neal argues at length that his rights were prejudiced by the introduction of his prior bad acts, he neither objected to the introduction of such evidence at trial; nor did he ask the district court for a limiting instruction. We do not believe that the district court committed plain error in failing to provide a limiting instruction sua sponte. United States v. Cross, 928 F.2d 1030, 1051, n. 69 (11th Cir.1991)(reviewing for plain error district court’s failure to sua sponte caution jury that testimony could not be considered as evidence of defendant’s bad character or disposition to commit the crime); United States v. Waldrip, 981 F.2d 799 (5th Cir.l993)(court’s failure to sua sponte provide a limiting instruction is plain error only when the court’s charge as a whole is so erroneous as to result in a likelihood of a grave miscarriage of justice); United States v. Tracy, 12 F.3d 1186, 1195 (2d Cir.1993)(when defendant fails to request instruction, trial court’s failure to instruct is a ground for reversal only when it constitutes an error that is “egregious and obvious” and reversal is “necessary to redress a miscarriage of justice”); Fed.R.Evid. 105 (when evidence is admissible for one purpose but not another, “the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly”). In light of our determination" }, { "docid": "13472797", "title": "", "text": "his suitcase. Its admission, therefore, did not impeach the defendant. We find that the actual marijuana should not have been allowed into evidence. The next question is whether such admission was harmless error. In determining whether or not error was harmless, a reviewing court must assess the record as a whole to determine the probable impact of the improper evidence upon the jury. United States v. Currier, 821 F.2d 52, 56 (1st Cir.1987). “The prejudicial effect of the improper evidence must be weighed against the impact of the properly admitted evidence to determine whether or not the evidence complained of might have contributed to the conviction.” Id. at 56-57. The defendant acknowledged his possession of the marijuana. The packet of marijuana, marked as an exhibit, graphically emphasized the cross-examination admission of defendant, but did not open new evidentiary territory. Nor, unlike a gun or a blood-stained knife, was it likely to arouse the passion or prejudice of the jury to any greater extent than testimony about its presence in the suitcase did. Although the packet of marijuana was improperly admitted, looking at the record as a whole, we find that its admission was harmless error beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). The district court did not give any cautionary instructions limiting the jury’s consideration of the marijuana to the issue of credibility. But none were requested, either at the time of the ruling or prior to the final charge. And when the trial judge specifically asked defendant’s counsel if he had any objection to the jury instructions as given, the reply was “none.” Appellant claims that the failure of the trial judge to give a cautionary instruction to the jury constituted prejudicial error. Fed.R.Evid. 105 states: When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly. (Emphasis added.) We have held that an appellant" }, { "docid": "21612699", "title": "", "text": "trunk lid, and may be concealed by assembly workers under the carpet, behind interior panels, or other places. Partial VINs are also stamped on the engine, transmission, and frame of the vehicle. . Government investigators testified that they do use heat and acid in the attempt to reveal auto VINs that have been covered or ground down. The investigators were noticeably more successful in their efforts to reveal the underlying VINs than was McLaurin. . Chorman’s future mother-in-law, for example, second-endorsed and negotiated oyer $159,000 in checks made out to Thomas Bosco. . The indictment charged that pit was further a part of the Conspiracy that CHARLES DONALD CHORMAN, in order to conceal his central role in the Conspiracy, would and did seek to keep his name from appearing on corporation documents, bills of sale, invoices, bank accounts, checks, licenses, registrations, and other documents relating to the purchase, rebuilding or sale of motor vehicles. .Though the basis of the district court’s ruling is not entirely clear, the court did indicate that it would limit the evidence to acts occurring in or after 1983 in furtherance of the conspiracy to transport stolen vehicles in interstate commerce. Alternatively, the court at least impliedly ruled that the evidence could be admitted against Chorman as proof of a common plan or scheme under Fed.R.Evid. 404(b). . Following Denson's testimony, in which he stated that he had met Erdman but never done business with him, Erdman renewed his motion for severance, claiming undue prejudice by association. The motion was denied. . Joel Denson had earlier testified that he sold cars for Charles Kemler, the principal in the erstwhile Erdman Motors. Erdman elaborated on the relationship between Denson and Kemler and also revealed that Kemler and Thomas Bos-co had been friends since childhood. Erdman also testified that Kemler purchased from Island Auto the vehicle identified in overt act 15 of the indictment. . Chorman's counsel stated: Regarding possession of property recently stolen. It seems to the defendant Chorman, there’s no evidence of his actual possession of stolen property in this case; not like there was in" }, { "docid": "21612691", "title": "", "text": "stolen autos by members of the conspiracy, from which the jury could infer knowledge that the autos were stolen, could have been considered by the jury as evidence against Chorman arid Erd-man. Appellants concede that the evidence of Thomas Bosco’s actual possession of stolen vehicles was at least “relatively strong,” to say nothing of the evidence of possession by Island Auto, Silk Hope, and McLaurin. There was no need for the government to prove actual or constructive possession by Chorman or Erdman when the evidence clearly showed actual possession of recently stolen property by other members of the conspiracy. See United States v. Alvarado, 898 F.2d at 993; United States v. Moreno, 588 F.2d 490, 493 (5th Cir.1979). The court did not err in instructing the jury as it did. Cf. United States v. Ashley, 587 F.2d at 843-45 (no conspiracy alleged; insufficient evidence of actual possession by one defendant). D Chorman alleges that the prosecutor committed prejudicial error by alluding to his past criminal record in his rebuttal argument. We have stated that “[t]he test for reversible prosecutorial misconduct generally has two components: that ‘(1) the prosecutor’s remarks or conduct must in fact have been improper, and (2) such remarks or conduct must have prejudicially affected the defendant’s substantial rights so as to deprive the defendant of a fair trial.’ ” United States v. Brockington, 849 F.2d 872, 875 (4th Cir.1988) (quoting United States v. Hernandez, 779 F.2d 456, 458 (8th Cir.1985)). Several factors are relevant to the determination of possible prejudice to the defendant: “(1) the degree to which the prosecutor’s remarks have a tendency to mislead the jury and to prejudice the accused; (2) whether the remarks were isolated or extensive; (3) absent the remarks, the strength of competent proof introduced to establish the guilt of the accused; and (4) whether the comments were deliberately placed before the jury to divert attention to extraneous matters.” United States v. Harrison, 716 F.2d 1050, 1052 (4th Cir.1983). Chorman claims that the prosecutor contrasted Erdman’s “clean background” and his ability to obtain licenses necessary to run the salvage operation with" }, { "docid": "3949225", "title": "", "text": "a second argument regarding the evidence of prior crimes. They claim that the court erred by not severing the trial to prevent the evidence of prior crimes admitted against particular defendants from prejudicing the other defendants. “The grant or denial of severance is clearly within the sound discretion of the trial court and its action on such a motion will be overturned only when there has been a clear abuse of such discretion.” United States v. Davis, 623 F.2d 188, 194 (1st Cir.1980). For us to disturb the court’s decision, appellants must make a strong showing of prejudice that amounts to a denial of their right to a fair trial. United States v. Lochan, 674 F.2d 960, 967 (1st Cir.1982); United States v. Davis, 623 F.2d at 194. They have not done so. In considering whether a trial should be severed, “[t]he inconvenience and expense to the Government and witnesses of separate trials must be weighed by the trial court against the prejudice to the defendants inherent in a joint trial.” United States v. Davis, 623 F.2d at 194. The risk of prejudice posed by other wrongful acts evidence, which is admissible against only particular defendants, can be alleviated with a limiting instruction. See United States v. Porter, 764 F.2d 1, 14-15 (1st Cir.1985). A special agent with the Drug Enforcement Administration testified about Lozada’s arrest. Immediately after he gave his testimony, the court told the jury: Now, you are expressly admonished that the testimonial evidence ..., as to Mr. Alfredo Lozada, has been admitted for this limited purpose that I have informed you, as tending to show intent or knowledge on his part. You are further admonished that you are not to consider this evidence, testimonial evidence, ... as to any other defendants in this case, other than Mr. Lozada. Is that clear? It is not to be considered as to any of the other eight defendants in any way. The court gave a similar instruction after admitting records of the prior convictions of Pimienta Redondo and Pupo, telling the jury “not to consider these three exhibits as to" }, { "docid": "23393679", "title": "", "text": "be relevant to Bowers’ potential bias, other evidence regarding her credibility was introduced. There was evidence that the government was paying Bowers and that she hoped to help her husband by her cooperation. While we reaffirm the Sixth Amendment principle that cross-examination, regarding bias should be given the greatest possible scope, the aggressive attacks on Bowers’ credibility by defense counsel put the jury in possession of sufficient information by which to appraise Bowers’ credibility, and, accordingly, the district court’s limitation was not an abuse of discretion. Further, even if such an abuse could be found on this record, the attacks on Bowers’ credibility and other evidence in the case, convince us that such error is harmless beyond a reasonable doubt. VI. Appellants contend that the court erred in failing to give the jury a limiting instruction regarding the use of Edmondson’s testimony with respect to his guilty pleas. Fed.R.Evid. 105 provides that “the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.” Any objection to lack of instruction was waived by defendant’s failure to make timely request for a limiting instruction. United States v. Regner, 677 F.2d 754, 757 (9th Cir.), cert. denied, 459 U.S. 911, 103 S.Ct. 220, 74 L.Ed.2d 175 (1982). “Moreover, an improper jury instruction will rarely justify reversal of a criminal conviction when no objection has been made at trial, ... and an omitted or incomplete instruction is even less likely to justify reversal, since such an instruction is not as prejudicial as a misstatement of the law.” United States v. Hook, 781 F.2d 1166, 1173 (6th Cir., 1986). Accordingly, we can reverse only for plain error affecting substantial rights. Fed.R.Crim.P. 52(b). It is clear that a guilty plea of a codefendant may not be received as substantive evidence of a codefendant’s guilt, but may properly be considered as evidence of a witness’ credibility. United States v. Halbert, 640 F.2d 1000, 1004 (9th Cir.1981). “[Ujnder proper instruction, evidence of a guilty plea may be elicited by the prosecutor on direct examination so that the jury may assess the credibility" }, { "docid": "21612694", "title": "", "text": "consequently, the remarks challenged here fail the first prong of the Brockington test. United States v. Freeman is inapposite when there is no reference to the defendant’s “background.” Erdman was the focus of the argument at that point, which was consistent with the government’s theory that he acted as a “front” for the illegal operations. Erdman admitted that one of his principal functions at Erdman Motors and at Island Auto was to obtain necessary licenses. The prosecutor fairly paraphrased Agent Egan’s testimony in support of this theory. Chorman’s attempt to find allusion to his past criminal record by juxtaposing Erdman’s “clean background” and the reference that Chorman could not get a license is not persuasive. E Erdman’s contention that the district court erred in failing to grant his motion to sever is similarly without merit. Under Fed.R.Crim.P. 14, the court may grant a severance if it appears that a defendant is “prejudiced” by a joinder of offenses or of defendants. Barring “special circumstances,” the general rule is that defendants indicted together should be tried together. United States v. Brugman, 655 F.2d 540, 542 (4th Cir.1981). Joinder is highly favored in conspiracy trials. See United States v. Tedder, 801 F.2d 1437, 1450 (4th Cir.1986). The district court’s decision to grant or deny a motion for severance will be overturned only for a clear abuse of discretion. Person v. Miller, 854 F.2d 656, 665 (4th Cir.1988). “Such an abuse of discretion will be found only where the trial court’s decision to deny a severance ‘deprives the defendant^ of a fair trial and results in a miscarriage of justice.’ ” Id. (quoting United States v. Becker, 585 F.2d 703, 706 (4th Cir.1978)). The district court did not abuse its discretion in refusing to sever Erdman from the case. The relative strength of the government’s case against individual defendants is no basis for severance in the absence of a strong showing of prejudice. See United States v. Brugman, 655 F.2d at 543. The prejudice Erdman claims to have suffered allegedly arose principally from the admission of Joel Denson’s testimony. The court, however, exercising its" }, { "docid": "21612696", "title": "", "text": "discretion to the benefit of appellants, limited Denson’s testimony to acts occurring in or after 1983. We can assume that this evidence was admissible only against Chorman, so that a limiting instruction would have been proper, but Erdman did not move the court for such an instruction. See Fed.R.Evid. 105 (court “upon request” shall restrict evidence to its proper scope and instruct jury accordingly); see also United States v. Gilmore, 730 F.2d 550, 555 (8th Cir.1984); United States v. Regner, 677 F.2d 754, 757 (9th Cir.1982). More importantly, it is apparent from the verdicts that the jury was independently weighing the evidence against each defendant. See United States v. Porter, 821 F.2d 968, 972 (4th Cir.1987). Erdman’s showing of prejudice is inadequate; the court did not abuse its discretion in denying his motion to sever. IV Finally, appellants assign as error the district court’s failure to make factual findings on the record in connection with the fines it imposed. Section 3572(a) of title 18 provides that “[i]n determining whether to impose a fine, and the amount, time for payment, and method of payment of a fine, the court shall consider, in addition to the factors set forth in section 3553(a)” seven enumerated factors. 18 U.S.C. § 3572(a) (emphasis added). This court has now held in United States v. Harvey, 885 F.2d 181 (4th Cir.1989), that the district court must make specific fact findings on these factors in order to permit effective appellate review of the court’s action. We vacated the district court’s denial of a motion for reduction in fine under former Fed.R.Crim.P. 35 in that case and remanded for the district court to make findings on the record respecting the challenged fine. 885 F.2d at 182-83. The district court in this case failed to make the requisite factual findings under § 3572(a). The government concedes the court’s failure to make factual findings as required by Harvey, but argues that appellants prevented the court from making such findings by failing to present adequate financial information. Chorman apparently did not submit a financial questionnaire to the court, but he argued to" }, { "docid": "23142722", "title": "", "text": "examples” of benefits to the court that justify joinder). Nor can any of the appellants successfully argue that the law required the district court to sever his trial from that of the others, under Rule 14. Rule 14 says a judge “may ... grant a severance” if “it appears that a defendant ... is prejudiced by joinder of offenses or of defendants” (emphasis added). The Rule uses the word “may,” not “must,” and thereby commits the determination primarily to the district court’s discretion. We cannot find so strong a showing of prejudice here as to bring this case outside the broad power the Rule grants to the district court. See United States v. Porter, 764 F.2d 1, 12 (1st Cir.1985) (denial of severance reversible only for abuse of discretion); United States v. Drougas, 748 F.2d 8, 18 (1st Cir.1984) (Rule 14 motion is addressed to discretion of trial judge, and its denial should not be reversed without a “strong showing of prejudice”). The district court went to considerable lengths to separate the evidence related to the different conspiracies. It required the government to present its evidence on the general conspiracy count first, and then to present evidence relating to each subsidiary conspiracy in turn. See Doherty, 675 F.Supp. at 738. The judge repeatedly instructed the jury about what evidence it should consider in respect to each count. Consequently, the record shows little potential for prejudice through the “spill-over effect” of evidence onto other counts or defendants, or through jury confusion. See Porter, 764 F.2d at 13 (limiting instructions are adequate safeguard against evidentiary spill-over); Drougas, 748 F.2d at 19 (rejecting spill-over claim because of judge’s careful segregation of evidence and instructions on limited admissibility); United States v. Smolar, 557 F.2d 13, 21 (1st Cir.1977) (potential for prejudice in complicated conspiracy trial minimized where judge took “great pains” to give limiting instructions and explain the jury’s duty to consider each defendant’s guilt separately). We also agree with the trial court, U.S. v. Doherty, 675 F.Supp. 714, 718-19 (D.Mass. 1987), that evidence of CLEMENTE’S sales of examinations to other persons did not" }, { "docid": "21612663", "title": "", "text": "PHILLIPS, Circuit Judge: Charles D. Chorman and John L. Erdman appeal from their convictions on multiple felony counts following their joint jury trial. Chorman and Erdman were indicted along with three other individuals and two corporations for conspiracy and substantive offenses arising from their involvement in an automobile “salvage/switch” operation. The jury convicted both Chorman and Erd-man of conspiracy; Chorman was also convicted on thirteen substantive counts and Erdman was convicted on eight substantive counts. On appeal, each raises several issues, principal among them sufficiency of the evidence, improper jury instructions, improper rebuttal argument by the prosecutor, and failure of the district court to set forth the factual basis for fines imposed. We find no merit in the appellants’ challenge to their convictions and therefore affirm those convictions. We vacate the district court’s imposition of fines, however, and remand for that court to make the requisite factual findings under 18 U.S.C. § 3572. I Chorman and Erdman were charged along with Thomas Bosco, his brother John, and Howard Clinton McLaurin, Jr. in a 36-count indictment alleging involvement in an automobile “salvage/switch” operation. In a salvage/switch operation, the public vehicle identification number (VIN) from a salvage auto, usually purchased at an insurance company auction, is removed from the dashboard of the auto. Each automobile’s VIN is unique, consisting of seventeen letters and numerals which identify, inter alia, the manufacturer, the make and model, and the year and plant of assembly. New title is obtained for the salvage vehicle, ostensibly after repairs have made it roadworthy. A car closely resembling the salvage auto is then stolen (or a stolen car resembling the salvage auto is already available), that car’s public VIN is replaced with the salvage auto’s public VIN, and the VINs located elsewhere on the stolen vehicle are obliterated or stamped over with the salvage auto’s VIN. The stolen car is finally sold as a legitimate used car with the new title. The indictment charged in count one that the five named individuals, other unnamed co-conspirators, Island Auto Wreckers, Inc. (“Island Auto”), a New York corporation that employed the appellants, and" }, { "docid": "21612678", "title": "", "text": "the term of imprisonment, to be served consecutively, for a total sentence of four years. The court did not set forth a factual basis for imposing the fines. This appeal followed. Ill Chorman and Erdman each raise numerous issues, though several of their arguments are related to a basic sufficiency of the evidence challenge. Both contend that the government presented insufficient evidence to prove “guilty knowledge” on any count charged in the indictment. They do not directly challenge the evidence of the existence of a conspiracy; rather, they contend that there was insufficient proof of their knowledge of and participation in the conspiracy. They further argue that the government presented no evidence that either appellant stole, possessed, or transported any stolen vehicle identified in the indictment, or tampered with the VIN of any vehicle identified in the indictment. Anticipating the government’s reply that convictions on the substantive counts can be sustained under the Pinkerton doctrine, they claim that the court did not give a proper Pinkerton charge. They also challenge other jury instructions, arguing that the jury’s convictions on the substantive offenses can be traced to erroneous instructions. Specifically, they charge that the court erred by failing to define “possession” in the context of the interstate transportation of stolen vehicles charges, and compounded that error by immediately following the possession instruction given with willful blindness and aiding and abetting instructions they claim misled the jury. Chorman argues that the government’s rebuttal closing impermissibly alluded to his prior criminal record and therefore prejudiced his right to a fair trial. Erdman also claims prejudice from the government’s closing through guilt by association. He extends that argument in asserting that the district court committed reversible error by denying his severance motion. Finally, both appellants argue that the district court erred by failing to set forth the factual basis for the fines it imposed. A We address first the sufficiency of the evidence challenge to the conspiracy convictions, assessing the evidence in the light most favorable to the government, Jackson v. Virginia, 443 U.S. at 319, 99 S.Ct. at 2789, and of course considering" }, { "docid": "8592772", "title": "", "text": "against both Trinh and his co-defendants, whether they were tried jointly or independently; this weighs against a finding of prejudice in the denial of a severance motion. See United States v. DeCologero, 530 F.3d 36, 54 (1st Cir.2008) (finding severance not warranted on grounds of evidentiary spillover effects because “even if the defendants had received separate trials, [the] evidence [at issue] would have been independently admissible against each”); United States v. Richard son, 515 F.3d 74, 82 (1st Cir.2008) (noting that when evidentiary “spillover serves as the ground for a defendant’s severance motion, this Court has repeatedly refused to overrule a denial of severance if substantially the same evidence would have been admitted in separate trials”); United States v. DeLuca, 137 F.3d 24, 36 (1st Cir.1998) (stating that “any evidentiary spillover is vitiated where the evidence in all events would have been admissible against the movant”). Second, the record shows that the district court judge repeatedly advised the jury of its obligation to consider the evidence against each defendant individually and not to allow any familial connections amongst the defendants to affect its determination of whether the defendants were co-conspirators. See Boylan, 898 F.2d at 246 (finding no abuse of the district court’s Rule 14 discretion where the judge issued “limiting instructions as to the admissibility of evidence against particular defendants and as to the need to determine guilt on an individual basis”); see also United States v. Soto-Beníquez, 356 F.3d 1, 30 (1st Cir.2004) (upholding district court’s denial of motion to sever where, among other factors, the court instructed the jury of its obligation to judge each defendant separately, considering only the evidence admissible against each respective defendant); United States v. Capelton, 350 F.3d 231, 239 (1st Cir.2003) (same). Further, an examination of the jury’s verdict shows that the jury heeded the court’s instructions, effectively considering the evidence and weighing it against each defendant separately. Boylan, 898 F.2d at 246 (upholding the district court’s denial of defendants’ Rule 14 motion because “[t]he discriminating verdict ... evidenced that the jurors were able to, and did, follow the court’s [limiting] instructions,”" }, { "docid": "22914193", "title": "", "text": "cites West’s outburst as an additional cause for prejudice. The grant or denial of a motion for severance or mistrial is within the trial court’s discretion and will not be over turned absent a clear abuse of that discretion. Person v. Miller, 854 F.2d 656, 665 (4th Cir.1988), cert. denied, — U.S. -, 109 S.Ct. 1119, 103 L.Ed.2d 182 (1989) (severance); United States v. Thompson, 744 F.2d 1065, 1068 (4th Cir.1984) (mistrial). A defendant must show prejudice in order for the court’s ruling to constitute an abuse of discretion, and no prejudice exists if the jury could make individual guilt determinations by following the court’s cautionary instructions. United States v. Porter, 821 F.2d 968, 972 (4th Cir.1987), cert. denied, — U.S. -, 108 S.Ct. 1108, 99 L.Ed.2d 269 (1988). West and Williamson fail to show any prejudice from the trial’s disruptions. The district court gave cautionary instructions to the jury following Mills’ opening statement and each of the three outbursts. The jury’s verdict indicates that it conscientiously followed these instructions and disregarded the improper statements and conduct of Mills and West. Mills and West were both found not guilty of the most serious charge of engaging in a continuing criminal enterprise. In addition, the jury acquitted Mills on eight counts, West on seven counts, and Thomas on four counts. It can be inferred that the jury carefully considered the evidence against each defendant and based its verdict solely upon that evidence. See Porter, 821 F.2d at 972. For this reason we also find no merit in Williamson’s claim of “extreme prejudice” from what he describes as the “overwhelming evidence” against his co-defendants. In concluding that the district court acted properly in denying the motions for severance and mistrial, we cannot avoid noting that Mills and West had both filed pre-trial motions for severance which were denied. Allowing their outbursts to result in a severance would therefore have enabled them to subvert the legal process by obtaining through their misconduct what they were unable to obtain through their motions. Whether or not this was their intention, it would certainly have been" }, { "docid": "5654929", "title": "", "text": "imposing life sentences for appellants’ convictions on Count Two, which charged them with conspiracy in violation of 18 U.S.C. § 371. The United States concedes that 18 U.S.C. § 371 provides for imprisonment of “not more than five years.” The district court clearly erred in imposing life sentences on Count Two, and we vacate the sentences of Meléndez-García, Báez-Jurado, and Ló-pez-Morales on Count Two and remand for resentencing. 5. Unfair Prejudice from Evidence Against Other Defendants Finally, appellants jointly argue that the substantial evidence admitted against other defendants, particularly Rosario-Diaz and Montalvo-Ortiz, unfairly prejudiced them by allowing the jury to convict them on the basis of evidence relating to other defendants’ conduct. In essence, appellants challenge the district court’s denial of their requests for severance. We conclude that there was no reversible error. At trial, the United States offered a great deal of testimony detailing the drug trafficking activities of defendants Rosario-Diaz and, to a lesser extent, Montalvo-Ortiz. The government did not allege nor prove that the other defendants were involved in those illegal activities. Appellants now argue that the evidence against Rosario-Diaz and Montalvo-Ortiz improperly affected the jury’s verdicts, and they request that we reverse their convictions. We have recognized this kind of “spillover” claim before. See, e.g., United States v. Drougas, 748 F.2d 8, 18-19 (1st Cir.1984). In Drougas we stated that, “[i]n a case involving several defendants, the court must take care that evidence against one defendant is not misinterpreted by the jury and used as a basis for convicting another defendant not connected to that evidence.” Id. (citing United States v. Flaherty, 668 F.2d 566, 582 (1st Cir.1981)). After stating that the district court’s severance determinations should be overturned only upon a showing of strong prejudice, see id., we nevertheless concluded that the trial court’s careful instructions to the jury and the ample evidence against the defendant eliminated any possibility of unfair prejudice. We likewise conclude that the admission of the drug-related evidence in this case was not an abuse of discretion. The evidence of Rosario-Diaz’s drug trafficking was clearly relevant in that it connected Rosario-Diaz" }, { "docid": "21612700", "title": "", "text": "evidence to acts occurring in or after 1983 in furtherance of the conspiracy to transport stolen vehicles in interstate commerce. Alternatively, the court at least impliedly ruled that the evidence could be admitted against Chorman as proof of a common plan or scheme under Fed.R.Evid. 404(b). . Following Denson's testimony, in which he stated that he had met Erdman but never done business with him, Erdman renewed his motion for severance, claiming undue prejudice by association. The motion was denied. . Joel Denson had earlier testified that he sold cars for Charles Kemler, the principal in the erstwhile Erdman Motors. Erdman elaborated on the relationship between Denson and Kemler and also revealed that Kemler and Thomas Bos-co had been friends since childhood. Erdman also testified that Kemler purchased from Island Auto the vehicle identified in overt act 15 of the indictment. . Chorman's counsel stated: Regarding possession of property recently stolen. It seems to the defendant Chorman, there’s no evidence of his actual possession of stolen property in this case; not like there was in the case of the companion matter, Mr. McLaurin.... If you’re inclined to give the charge that the government asks for regarding possession of property recently stolen, we would then ask for an instruction that mar-shalling the evidence, or in this particular instance the lack of evidence, and state to this jury that there is no evidence that at any time Mr. Chorman possessed a vehicle alleged to have been stolen which is charged in the indictment. J.A. at 763-64. . The court charged: The element of knowledge may be satisfied by inferences drawn from proof that a defendant deliberately closed his eyes to what would otherwise have been obvious to him. A finding beyond a reasonable doubt of a conscious purpose to avoid enlightenment would permit an inference of knowledge. Stated another way, a defendant’s knowledge of a fact may be inferred from willful blindness to the existence of the fact. It is entirely up to you as to whether you find any deliberate closing of the eys [sic], and the inference to be drawn" }, { "docid": "21612697", "title": "", "text": "amount, time for payment, and method of payment of a fine, the court shall consider, in addition to the factors set forth in section 3553(a)” seven enumerated factors. 18 U.S.C. § 3572(a) (emphasis added). This court has now held in United States v. Harvey, 885 F.2d 181 (4th Cir.1989), that the district court must make specific fact findings on these factors in order to permit effective appellate review of the court’s action. We vacated the district court’s denial of a motion for reduction in fine under former Fed.R.Crim.P. 35 in that case and remanded for the district court to make findings on the record respecting the challenged fine. 885 F.2d at 182-83. The district court in this case failed to make the requisite factual findings under § 3572(a). The government concedes the court’s failure to make factual findings as required by Harvey, but argues that appellants prevented the court from making such findings by failing to present adequate financial information. Chorman apparently did not submit a financial questionnaire to the court, but he argued to the district court that all requested financial information had been submitted. The pro bation report for Chorarían also states that he was “cooperative” in providing requested financial information. In any event, though the district court alluded to the meagerness of the information before it, nothing in the record indicates that the court justified its failure to discuss the factors in § 3572(a) on that basis. We believe that remand is required to enable the district court to make findings on the record that would in turn enable this court to effectively review any fine ultimately imposed. V For the foregoing reasons, we affirm appellants’ convictions. We vacate the district court’s imposition of fines and remand that portion of the case to the district court with instructions to make factual findings on the record as required by 18 U.S.C. § 3572(a) and United States v. Harvey. AFFIRMED IN PART; VACATED AND REMANDED IN PART. . An auto's full VIN is printed on the EPA sticker on the driver's side door, appears on the inside of the" } ]

[ { "docid": "425186", "title": "", "text": "1162, 1166, 14 L.Ed.2d 75 (1965). A literal interpretation of Rules 6(a) and 6(f) indicates that an otherwise valid indictment will not be dismissed if (1) the grand jury returning the indictment consisted of between 16 and 23 jurors, (2) every grand jury session was attended by at least 16 jurors, and (3) at least 12 jurors vote to indict. Nothing more is required unless the Fifth Amendment requires more. Leverage Funding contends that the district court’s ruling is correct. Otherwise, a juror who did not attend every session might have been absent during the presentation of exculpatory evidence. Leverage Funding apparently reasons that a grand juror can only fulfill his or her constitutional role if he or she hears all the evidence, both inculpatory and exculpatory, which is presented by the prosecution. We disagree. We understand Leverage Funding’s concern, but the purpose of the grand jury indicates that a juror’s absence during the presentation of exculpatory evidence is not a proper ground to invalidate that jur- or’s vote for indictment. It is the function of the grand jury to determine whether the evidence presented in a specific case is sufficient to establish probable cause to believe that a crime was committed and that a specific individual committed the crime. Bracy v. United States, 435 U.S. 1301, 1302, 98 S.Ct. 1171, 1172, 55 L.Ed.2d 489 (1978); Costello v. United States, 350 U.S. 359, 362, 76 S.Ct. 406, 408, 100 L.Ed. 397 (1956). The grand jury is not to weigh evidence to determine guilt or innocence. United States v. Salsedo, 607 F.2d 318, 319 (9th Cir. 1979). See United States v. Calandra, 414 U.S. 338, 343-44, 94 S.Ct. 613, 617-18, 38 L.Ed.2d 561 (1974). A grand juror can therefore fulfill his or her constitutional role of determining whether the prosecution has presented a prima facie case even if he or she was absent during the presentation of exculpatory evidence. In any event, exculpatory evidence will rarely be presented to a grand jury. Because the grand jury’s function is limited, the prosecutor has no duty to present evidence in his possession which" } ]

[ { "docid": "17919408", "title": "", "text": "v. Ciambrone, 601 F.2d 616, 623 (2d Cir.1979). The evidence that Defendants allege is exculpatory consists of a telex from the NY-DETF to the DEA in Canada. This telex reflects a communication allegedly made by Ralph Abcasis to the NYDETF to the effect that there would be an importation of narcotics from Thailand to Canada on March 28,1991. It is not clear to the Court that this telex is exculpatory, nor is it clear that the government did not present it to the grand jury. However, even assuming this to be true, the Court concludes that Defendants have not met their burden of establishing that grounds may exist upon which to dismiss the indictment. As to Defendants’ argument that inspection of the grand jury minutes is necessitated by the alleged use of a single hearsay witness, the Second Circuit has instructed that an indictment valid on its face may not be challenged merely by an assertion that hearsay evidence was the basis for the indictment. United States v. Schlesinger, 598 F.2d 722, 726 (2d Cir.), cert. denied, 444 U.S. 880, 100 S.Ct. 168, 62 L.Ed.2d 109 (1979); United States v. Blitz, 533 F.2d 1329, 1344 (2d Cir.), cert. denied, 429 U.S. 819, 97 S.Ct. 65, 50 L.Ed.2d 79 (1976). See United States v. Calandra, 414 U.S. 338, 345, 94 S.Ct. 613, 618, 38 L.Ed.2d 561 (1974) (“an indictment valid on its face is not subject to challenge on the ground that the grand jury acted on the basis of inadequate or incompetent evidence.”); Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 408, 100 L.Ed. 397 (1956). Defendants merely assert that the indictment was “likely obtained” through the use of a single witness and that such indictments involve hearsay. The only support Defendants offer for this assertion is that this practice is common in the Southern and Eastern Districts of New York. Such speculation is insufficient to warrant intrusion into the secrecy of the grand jury process and cannot overcome the presumption of regularity. “Speculation and surmise as to what occurred [during the grand jury proceeding] ... is" }, { "docid": "18438702", "title": "", "text": "States v. Napolitano, 552 F.Supp. 465, 474-77 (S.D.N.Y.1982), aff’d, United States v. Ruggiero, 726 F.2d 913 (2d Cir.1984). B. Sufficiency of the Indictment 1. Inspection of Grand Jury Minutes Massino and Vitale have moved, relying on United States v. Estepa, 471 F.2d 1132 (2d Cir.1972) for an in camera inspection of the grand jury minutes to determine whether the third superseding indictment was based on hearsay or other “shoddy merchandise.” Defendants accept as a premise that the government at the trial in United States v. Napolitano, and in the subsequent appeal of that case, presented all the legitimate evidence it possessed relevant to the current indictment and that this evidence would be insufficient to support the third superseding indictment. Therefore, they conclude that this indictment can be supported only by “shoddy merchandise.” They do not allege, however, that the grand jury relied only on hearsay evidence or that there were specific identifiable instances of prosecutorial misconduct. Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956) place a heavy burden on a defendant attempting to acquire access to grand jury minutes or to force an in camera inspection of those minutes. “An indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for trial on the merits.” Id. at 363, 76 S.Ct. at 408. See also United States v. Calandra, 414 U.S. 338, 345, 94 S.Ct. 613, 618, 38 L.Ed.2d 561 (1974)(“Thus an indictment valid on its face is not subject to challenge on the ground that the grand jury acted on the basis of inadequate or incompetent evidence.”) Decisions in this Circuit since Estepa, supra, have held squarely that an indictment valid on its face may not be challenged merely by an assertion that hearsay evidence was the basis for the indictment. United States v. Schlesinger, 598 F.2d 722, 726 (2d Cir.), cert. denied, 444 U.S. 880, 100 S.Ct. 168, 62 L.Ed.2d 109 (1979); United States v. Blitz, 533 F.2d 1329, 1344 (2d Cir.), cert. denied, 429 U.S. 819," }, { "docid": "13590021", "title": "", "text": "in conjunc tion with the fact that the jury was presented with a presigned indictment, denied him a fair hearing before the grand jury and thus denied him his right to due process. Apparently Walter Kyle, Isaac Kyle’s brother, initially informed the police of the scheme carried out by Boykin and Isaac Kyle. Nevertheless, the Government chose not to present Walter Kyle to the grand jury. Instead, it presented law enforcement officers who related what Walter Kyle had told them. The court did not err in denying the motion to dismiss the indictment against Boykin. It is well settled that there is a strong presumption of regularity accorded to grand jury findings. United States v. West, 549 F.2d 545, 554 (8th Cir. 1977). A heavy burden is placed on one who seeks to overturn the presumption that an indictment returned by a legally constituted body is founded on competent evidence. Id. Boykin has not met that burden here. An indictment may be valid even if it is based entirely on hearsay. United States v. Neff, 525 F.2d 361, 363 (8th Cir. 1975). As noted in Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 408, 100 L.Ed. 397 (1956), “[a]n indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for trial of the charge on the merits. The Fifth Amendment requires nothing more.” A defendant may not challenge an indictment on the ground that information which he considered favorable to his defense was not presented to the grand jury. E.g., United States v. Cederquist, 641 F.2d 1347, 1353 n.3 (9th Cir. 1981). See United States v. Gunter, 631 F.2d 583, 586 (8th Cir.1980). And, the presigning of an indictment does not warrant reversal. Though this court has expressed its disapproval of presigned indictments, and continues to so disapprove, the indictment in this case was returned prior to the court’s admonition concerning the matter, and furthermore, such conduct alone would not warrant reversal of the conviction. United States v. Singer, 660 F.2d" }, { "docid": "1603041", "title": "", "text": "correct in refusing to dismiss the indictment on the ground of selective prosecution. B. Hintzman’s second claim is that the grand jury that indicted him was misled by the prosecutor and the government witness. He suggests that because the sole witness was a government agent with an alleged career interest in the prosecution, and because the evidence in part consisted of hearsay testimony which allegedly was presented as if it were firsthand knowledge, the grand jury was misled by the government. As Hintzman concedes, the Constitution does not prohibit the use of hearsay testimony in grand jury proceedings, United States v. Bednar, 728 F.2d 1043, 1049 (8th Cir.), cert. denied, 469 U.S. 827, 105 S.Ct. 110, 83 L.Ed.2d 54 (1984), and even an indictment based exclusively on hearsay may be valid. Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 408, 100 L.Ed. 397 (1956). Hintzman apparently contends that the nature and quality of the hearsay evidence, rather than its mere existence, misled the grand jury. He also asserts that the prosecutor failed adequately to inform the jury of its right to subpoena witnesses for firsthand evidence, thereby misleading it as to the value of the hearsay evidence before it. These unsupported allegations are insufficient. As the District Court recognized, grand jury proceedings are afforded a strong presumption of regularity, and a defendant seeking to overcome that presumption faces a heavy burden. United States v. Boykin, 679 F.2d 1240, 1246 (8th Cir.1982). Hintzman failed to meet that burden in this case. The District Court explicitly found that there was no evidence in the record to indicate that the grand jury was misled, and we see no error in that finding. Moreover, a petit jury found Hintzman guilty beyond a reasonable doubt. Except in cases involving racial discrimination in the composition of the grand jury, a guilty verdict by the petit jury generally excuses errors at the grand jury level that are “connected with the charging decision....” United States v. Mechanik, — U.S. -, 106 S.Ct. 938, 942, 942 n. 1, 89 L.Ed.2d 50 (1986). The petit jury verdict" }, { "docid": "12592348", "title": "", "text": "of construction in interpreting an indictment; that is, an indictment must be read as a whole and interpreted in a common-sense manner. Employing this canon, we are convinced that the indictment sufficiently charged the requisite mental element on the part of the Bank. . We have pointed out that dismissal has been based on the Fifth Amendment Due Process Clause or on the court’s supervisory power. Pino, 708 F.2d at 530, and cases there cited. The Ninth Circuit has cited the Grand Jury Clause as a constitutional ground for dismissal. See United. States v. Sears, Roebuck and Co., 719 F.2d 1386, 1391 n. 7 (9th Cir.1983), cert. denied, 465 U.S. 1079, 104 S.Ct. 1441, 79 L.Ed.2d 762 (1984). . The first consideration is necessitated by the Supreme Court’s opinions in Mechanik, 475 U.S. 66, 106 S.Ct. 938, 89 L.Ed.2d 50 (1986) and United States v. Hasting, 461 U.S. 499, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983). The second and third factors are proper because of the concerns highlighted in Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956), where the Court held that ”[a]n indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for trial of the charge on the merits. The Fifth Amendment requires nothing more.” Id. at 363, 76 S.Ct. at 409 (footnote omitted). . The record further shows that one or possibly two of the agents were not placed under oath before reading the transcripts. (XIX R. 486-90; XX R. 709-11). Nevertheless, we do not believe the clarification of this issue is necessary to the resolution of this case. . The defendants point out in their supplemental briefs that the Court in Mechanik expressed \"no opinion as to what remedy may be appropriate for a violation of Rule 6(d) that has affected the grand jury's charging decision and is brought to the attention of the trial court before the commencement of trial.” Mechanik, 475 U.S. at-, 106 S.Ct. at 943 (emphasis added) (footnote omitted). We" }, { "docid": "23048001", "title": "", "text": "arguments before the district court. He has therefore waived most of his claims. Moreover, an indictment regular on its face and returned by a legally constituted and unbiased grand jury is presumed to be valid; the party challenging this presumption faces a heavy burden. Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 408, 100 L.Ed. 397 (1956); Martin v. United States, 335 F.2d 945, 949 (9th Cir.1964). Cook does not meet this burden. The failure of a prosecutor to present exculpatory evidence to a grand jury does not invalidate an indictment. United States v. Leverage Funding Systems, Inc., 637 F.2d 645, 648 (9th Cir.1980), cert. denied, 452 U.S. 961, 101 S.Ct. 3110, 69 L.Ed.2d 972 (1981). Hearsay evidence is admissible and its admission does not invalidate an indictment. Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956); United States v. Hartlerode, 467 F.2d 1280, 1281-82 (9th Cir.1972). There has been no showing that the government flagrantly manipulated, overreached, or deceived the grand jury such that dismissal of the indictment is warranted. United States v. Sears, Roebuck & Co., 719 F.2d 1386, 1391-92 (9th Cir.1983), cert. denied, 465 U.S. 1079, 104 S.Ct. 1441, 79 L.Ed.2d 762 (1984). Cook presents no evidence that knowing perjury related to a material matter was presented to the grand jury. United States v. Kennedy, 564 F.2d 1329, 1338 (9th Cir.1977), cert, denied, 435 U.S. 944, 98 S.Ct. 1526, 55 L.Ed.2d 541 (1978). See also, United States v. Samango, 607 F.2d 877, 883 (9th Cir.1979) (dismissal of indictment proper where among other errors prosecutor submitted prejudicial, unnecessary transcripts to the grand jury). Since Cook’s arguments lack any clear basis in fact and law, we reject his claims of impropriety. B. Ineffective Assistance of Counsel Cook argues that his trial counsel should have filed a bill of particulars demanding disclosure of the informant’s identity and of his information. He asserts failure to do so constituted ineffective assistance. This argument is without merit. The demand for disclosure was vigorously pressed by the defense, but was denied by the trial court. There" }, { "docid": "23048000", "title": "", "text": "The conviction of the offense in 18 U.S.C. § 924 falls of its own weight. III. Other Issues A. Objections to Grand Jury Proceedings and the Indictment Cook argues that there was insufficient evidence of conspiracy before the grand jury to support his indictment, and that the prosecutor committed misconduct before the grand jury by mischaracterizing the events of December 22, 1983 in order to secure the indictment, thus deceiving the grand jury. He also argues that while hearsay evidence was presented to the grand jury, exculpatory materials were not. Finally, he complains that the indictment was signed by a United States Attorney, but there was no evidence that that person was present at the grand jury hearing. As a general rule, claims of defects in an indictment must be raised prior to trial. Fed.R.Crim.P. 12(b); United States v. Pollock, 726 F.2d 1456, 1464 (9th Cir.1984); United States v. Gunter, 631 F.2d 583, 586 (8th Cir.1980). Cook filed a pretrial motion to dismiss the indictment for insufficient evidence, but did not raise many of these arguments before the district court. He has therefore waived most of his claims. Moreover, an indictment regular on its face and returned by a legally constituted and unbiased grand jury is presumed to be valid; the party challenging this presumption faces a heavy burden. Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 408, 100 L.Ed. 397 (1956); Martin v. United States, 335 F.2d 945, 949 (9th Cir.1964). Cook does not meet this burden. The failure of a prosecutor to present exculpatory evidence to a grand jury does not invalidate an indictment. United States v. Leverage Funding Systems, Inc., 637 F.2d 645, 648 (9th Cir.1980), cert. denied, 452 U.S. 961, 101 S.Ct. 3110, 69 L.Ed.2d 972 (1981). Hearsay evidence is admissible and its admission does not invalidate an indictment. Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956); United States v. Hartlerode, 467 F.2d 1280, 1281-82 (9th Cir.1972). There has been no showing that the government flagrantly manipulated, overreached, or deceived the grand jury such that dismissal of" }, { "docid": "23048002", "title": "", "text": "the indictment is warranted. United States v. Sears, Roebuck & Co., 719 F.2d 1386, 1391-92 (9th Cir.1983), cert. denied, 465 U.S. 1079, 104 S.Ct. 1441, 79 L.Ed.2d 762 (1984). Cook presents no evidence that knowing perjury related to a material matter was presented to the grand jury. United States v. Kennedy, 564 F.2d 1329, 1338 (9th Cir.1977), cert, denied, 435 U.S. 944, 98 S.Ct. 1526, 55 L.Ed.2d 541 (1978). See also, United States v. Samango, 607 F.2d 877, 883 (9th Cir.1979) (dismissal of indictment proper where among other errors prosecutor submitted prejudicial, unnecessary transcripts to the grand jury). Since Cook’s arguments lack any clear basis in fact and law, we reject his claims of impropriety. B. Ineffective Assistance of Counsel Cook argues that his trial counsel should have filed a bill of particulars demanding disclosure of the informant’s identity and of his information. He asserts failure to do so constituted ineffective assistance. This argument is without merit. The demand for disclosure was vigorously pressed by the defense, but was denied by the trial court. There is no showing that counsel’s efforts were not those of a reasonably competent practitioner or that failure to seek a bill of particulars deprived Cook of the opportunity to litigate the issue. He points to no deficient performance by trial counsel which prejudiced his defense and deprived him of a fair trial. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). IV. Selective Prosecution Cook contends that he was selected for prosecution solely because he is Black and had been previously tried and acquitted of murdering a Sacramento police officer. He did not raise this issue before the district court. We could view that failure as a waiver under Fed.R.Crim.P. 12(f). United States v. Oaks, 508 F.2d 1403, 1404 (9th Cir.1974). See also United States v. Jarrett, 705 F.2d 198 (7th Cir.1983), cert. denied, 465 U.S. 1004, 104 S.Ct. 995, 79 L.Ed.2d 228 (1984). Even if we address the merits of his claim, it is clear that Cook has not stated the elements of selective prosecution, which are (1)" }, { "docid": "3840333", "title": "", "text": "was discharged on June 12,1975, without “handing down” an indictment; that a second grand jury was impaneled on August 5,1975; and that on August 8,1975, it returned the indictment which is the subject of appellants’ attack. The allegations in the affidavit focused upon the fact that the second grand jury did not hear the testimony of witnesses who had personal knowledge of the events alleged to be constituent elements of the scheme or artifice to defraud. Appellants’ position may be summarized as follows: (1) since the first grand jury failed to indict after hearing numerous witnesses over a span of nearly two months, the subject indictment is invalid because the second grand jury deliberated only three days before returning the indictment and appellants were thus denied their right to a full investigation by the grand jury of each of the separate charges of the indictment; and (2) the indictment was improperly based on excessive use of hearsay. Appellants assert that the indictment deprived them of their constitutional right to be tried on a lawful indictment and likewise denied them due process of law. After an in camera hearing, the court determined that the indictment was valid and, accordingly, denied the motions to quash. We hold that appellants have not sustained their burden of showing the indictment was invalid. Initially we point out that there is a strong presumption of regularity accorded to the findings of grand juries. See Beatrice Foods Co. v. United States, 312 F.2d 29, 39 (8th Cir. 1963). An indictment regular on its face, returned by a legally constituted grand jury, is presumed to be founded on competent evidence and a heavy burden is placed on one who seeks to overcome the presumption. Martin v. United States, 335 F.2d 945, 949 (9th Cir. 1964); Cochran v. United States, 310 F.2d 585, 590 (8th Cir. 1962); Blumenfieid v. United States, 284 F.2d 46, 50 (8th Cir. 1960). Moreover, an indictment based solely on hearsay evidence does not violate the provisions of the fifth amendment. See Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397" }, { "docid": "22963050", "title": "", "text": "there is probable cause to believe them true, so as to require him to stand trial. Because of this limited function, we have held that an indictment is not invalidated by the grand jury's consideration of hearsay, Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956), or by the introduction of evidence obtained in violation of the Fourth Amendment, United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974). While the presentation of inadmissible evidence at trial may pose a substantial threat to the integrity of that factfinding process, its introduction before the grand jury poses no such threat. I have no reason to believe this Court will not continue to abide by the language of Mr. Justice Black in Costello, supra, 350 U.S. at 363, 76 S.Ct. at 409: 'An indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for trial of the charge on the merits. The Fifth Amendment requires nothing more.’ Bracy v. United States, 435 U.S. 1301, 1302-03, 98 S.Ct. 1171, 1172, 55 L.Ed.2d 489 (Opinion in Chambers 1978). As predicted, the petition for certiorari was denied, 439 U.S. 818, 99 S.Ct. 79, 58 L.Ed.2d 109 (1978). . The majority in Basurto held that the prosecutor has a duty of good faith with respect to the Court, the grand jury, and the defendant, 497 F.2d at 786. Judge Hufstedler, in a special concurrence, stated that ”[e]ven though breach of that prosecutorial duty [to seek dismissal of a tainted indictment] may not constitute a violation of defendant’s constitutional rights, the prosecutor is nevertheless responsible to the court for conduct that is potentially detrimental to the integrity of the judicial system,” 497 F.2d at 794. . E.g., United States v. Eden, 659 F.2d 1376 (9th Cir.1981), cert. denied, 455 U.S. 949, 102 S.Ct. 1450, 71 L.Ed.2d 663 (1982); United States v. Thompson, 576 F.2d 784 (9th Cir.1978); United States v. Kennedy, 564 F.2d 1329 (9th Cir.1977), cert. denied, sub nom., Myers v." }, { "docid": "7609895", "title": "", "text": "the grand jury was entitled to be advised of this information in order to make an independent judgment and protect against unfounded criminal prosecutions. In Kennedy, supra, the Ninth Circuit discussed DeMarco and its binding precedent and stated: We believe that the rule to be distilled from the authorities discussed must be that only in a flagrant case, and perhaps only where knowing perjury, relating to a material matter, has been presented to the grand jury should the trial judge dismiss an otherwise valid indictment returned by an apparently unbiased grand jury. To hold otherwise would allow a minitrial as to each presented indictment contrary to the teaching by Mr. Justice Black in Costello, supra. We find ourselves in agreement with the Sixth Circuit holding in Ruyle, supra, 564 F.2d at 1338. Although this Court has not previously addressed the issue whether exculpatory information, or information of the kind presented in this case, must be revealed to the prand jury, our cases follow the same application of the governing principles as that in Kennedy and Ruyle: [W]e refuse to adopt the proposition that, absent perjury or government misconduct, an indictment is flawed simply because it is based on testimony that later may prove to be questionable. “Such a rule of law would necessitate independent judicial review of the credibility of grand jury witnesses, an exercise that would seriously infringe upon the traditional independence of the grand jury.” United States v. Guillette, 2 Cir., 1976, 547 F.2d 743, 753, cert. denied, 1977, 434 U.S. 839, 98 S.Ct. 132, 54 L.Ed.2d 102. Moreover, “an indictment valid on its face is not subject to challenge on the ground that the grand jury acted on the basis of inadequate or incompetent evidence.” United States v. Calandra, 1974, 414 U.S. 338, 345, 94 S.Ct. 613, 618, 38 L.Ed.2d 561, 569. Thus, we affirm the denial of the motion to dismiss. See also Costillo v. United States, 1956, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (indictment based exclusively on hearsay is not constitutionally invalid). United States v. Sullivan, 578 F.2d 121, 124 (5th Cir.1978)" }, { "docid": "22817653", "title": "", "text": "the Appellant Kenny without some instruction as to the applicable law.” This novel argument, based loosely on the fifth and sixth amendments, seeks to introduce into grand jury proceedings an analogue to petit jury instructions given at the end of trial. Kenny has not elaborated on what he means by “applicable law,” however, nor does he seem to argue that the evidence before the grand jury was insufficient to support the allegations in the indictment. We find no authority, and Kenny has cited none, that would support this argument. To the contrary, as the Supreme Court has stated, “[a]n indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for trial of the charge on its merits.” Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 409, 100 L.Ed. 397 (1956); see United States v. Kennedy, 564 F.2d 1329, 1338 (9th Cir. 1977), cert. denied sub nom. Myers v. United States, 435 U.S. 944, 98 S.Ct. 1526, 55 L.Ed.2d 541 (1978). That indictment is normally prepared by the prosecutor, who is presumably acquainted with the “applicable law.” See United States v. Chanen, 549 F.2d 1306, 1312 (9th Cir.), cert. denied, 434 U.S. 825, 98 S.Ct. 72, 54 L.Ed.2d 83 (1977). We are not persuaded that the Constitution imposes the additional requirement that grand jurors receive legal instructions. Furthermore, the giving of such instructions portends protracted review of their adequacy and correctness by the trial court during motions to dismiss, not to mention later appellate review. This is not an auspicious case from which to launch courts on the journey through such a toilsome mire, and we decline to do so. It was not error for the District Court to deny Kenny’s motion. Oelberg, on the other hand, argues that his indictment should have been dismissed on the ground that the Government had destroyed certain records that might have been exculpatory. The prosecution’s case against Oelberg included allegations that no “deliverable” was ever produced under certain of the fraudulent contracts. Oelberg claims that" }, { "docid": "3293531", "title": "", "text": "his ability to conduct his defense. The District Court recognized the appellants had suffered financially during the state and federal proceedings, but found that “there is no basis upon which to conclude that defendants have been denied a fair trial.” We agree. III. Grand Jury Proceedings. Romero and Forster lastly argue that the grand jury process was abused. They contend that the evidence submitted before the grand jury was insufficient to establish probable cause. Addressing a similar contention in United States v. Basurto, 497 F.2d 781, 785 (9th Cir. 1974), we held that: “It is clear, however, that when a duly constituted grand jury returns an indictment valid on its face, no independent inquiry may be made to determine the kind of evidence considered by the grand jury in making its decision. Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 . . . (1956). To do so would further invade the independence of the grand jury.” See also United States v. Fried, 576 F.2d 787, at 791-792 (9th Cir. 1978). We agree with the District Court’s statement that “[ajlthough a complete absence of evidence might serve to invalidate an indictment, see Costello v. United States, supra at 364, 76 S.Ct. 406 (Burton, J. concurring) and United States v. Tane, 329 F.2d 848, 853-54 (2d Cir. 1964), we do not find a complete absence of competent evidence here.” Further, it is well established that a grand jury may return an indictment based solely upon hearsay evidence. Costello. Secondly, Romero and Forster complain of the prosecution’s failure to provide the grand jury with a letter from Forster’s counsel allegedly containing exculpatory evidence. Contrary to the obligation imposed upon the prosecution at trial, the Government is not required to present all evidence that might be exculpatory to a grand jury. See Loraine v. United States, 396 F.2d 335, 339 (9th Cir.), cert. denied, 393 U.S. 933, 89 S.Ct. 292, 21 L.Ed.2d 270 (1968); United States v. Chanen, 549 F.2d 1306 (9th Cir. 1977). Regarding the content of the letter, the District Court ruled that “[t]he evidence sought to" }, { "docid": "13590022", "title": "", "text": "525 F.2d 361, 363 (8th Cir. 1975). As noted in Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 408, 100 L.Ed. 397 (1956), “[a]n indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for trial of the charge on the merits. The Fifth Amendment requires nothing more.” A defendant may not challenge an indictment on the ground that information which he considered favorable to his defense was not presented to the grand jury. E.g., United States v. Cederquist, 641 F.2d 1347, 1353 n.3 (9th Cir. 1981). See United States v. Gunter, 631 F.2d 583, 586 (8th Cir.1980). And, the presigning of an indictment does not warrant reversal. Though this court has expressed its disapproval of presigned indictments, and continues to so disapprove, the indictment in this case was returned prior to the court’s admonition concerning the matter, and furthermore, such conduct alone would not warrant reversal of the conviction. United States v. Singer, 660 F.2d 1295, 1302 (8th Cir. 1981), cert. denied,-U.S.-, 102 S.Ct. 1030, 71 L.Ed.2d 314 (1982); United States v. Frantze, 655 F.2d 128, 130-31 (8th Cir. 1981), reh’g and reh’g en banc denied. The judgment is affirmed. . Rule 403 provides: Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. . Rule 404(b) provides: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, . See note 3 on page 1244. 3. Rule 608(b) provides: Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of a crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in" }, { "docid": "20788923", "title": "", "text": "the mistake was discovered immediately and all but one copy of the indictment were recovered shortly thereafter and prior to publication. Finally, the 113-page affidavit is a matter of public record, and, as such, its release is allowed under the guidelines of “Free Press-Fair Trial” referred to above. Concerning the alleged prejudice of the grand jurors, the mere fact that there has been pre-indictment publicity does not entitle the defendants to relief. The burden is on the defendants to allege and prove facts that show actual bias of the grand jurors, and, since the record is completely devoid of such a factual foundation, the defense motions must be denied. Beck v. Washington, 369 U.S. 541, 82 S.Ct. 955, 8 L.Ed.2d 98 (1962); Martin v. Beto, 397 F.2d 741 (5th Cir. 1968); United States v. Osborn, 350 F. 2d 497 (6th Cir. 1965), aff’d, 385 U.S. 323, 87 S.Ct. 429, 17 L.Ed.2d 394 (1966); United States v. Hoffa, supra. The final attack on the grand jury and its deliberations is raised primarily by defendants Lagarde and Pierce, who allege that there was insufficient direct evidence presented to the grand jury to support the charges against them. That there is no basis in law for this baseless claim is illustrated by the Supreme Court’s language in Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 409, 100 L.Ed. 397 (1956): “An indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for trial of the charge on the merits. The Fifth Amendment requires nothing more.” See also Lawn v. United States, 355 U.S. 339, 349-350, 78 S.Ct. 311, 2 L.Ed.2d 321 (1958). This court has already rejected, as without merit, the defendants’ claims that the grand jury was biased and that the indictment is invalid on its face, and this claim must also fall. In summary, all defense motions for dismissal of the indictment on alleged grand jury defects are denied, as well as all related requests for examinations of the jurors and of" }, { "docid": "21857159", "title": "", "text": "months before the prosecutor requested indictments.. Reynolds points to no subsequent remarks that reinforced the incident in the jurors’ minds. Indeed, the grand jury heard witnesses testify that Reynolds ultimately was acquitted on the obstruction charge. Further, Reynolds has never claimed that the evidence presented to the grand jury was insufficient to support the indictment. Although no inflammatory remarks were made about Griffith and McKay, they were indicted on much the same evidence that resulted in the indictment of Reynolds. Based on this record, we are unable to conclude that remarks made eleven months prior to the request for indictments resulted in an indictment that was based on bias against Reynolds rather than the overwhelming evidence amassed in an eighteen-month grand jury investigation. To establish a fifth amendment violation based on prosecutorial misconduct before the grand jury, a defendant must show actual prejudice. In Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956), the Court held that “An indictment returned by a legally constituted and unbiased grand jury ... is enough to call for trial of the charge on the mer its.” Id. at 363, 76 S.Ct. at 409. Dismissal of the indictment based on the prosecutor’s misconduct before the grand jury is warranted only where the misconduct “undermined the grand jury’s ability to make an informed and objective evaluation of the evidence presented to it.” United States v. Sears, Roebuck & Co., 719 F.2d 1386, 1391 (9th Cir.1983), cert. denied, — U.S.-, 104 S.Ct. 1441, 79 L.Ed.2d 762 (1984). In other words, dismissal is inappropriate unless the misconduct resulted in prejudice to the accused. Id. at 1392. Actual prejudice also must be shown before an indictment will be dismissed on the basis of a violation of an accused’s sixth amendment right to counsel. In Nembhard, supra, we noted, “The Supreme Court recently concluded that because of the strong public interest in prosecuting serious crimes, prejudice to the defendant must be shown before dismissal of an indictment would be warranted when the government has interfered with a defendant’s Sixth Amendment right to counsel. United States" }, { "docid": "7609891", "title": "", "text": "561 (1974), quoting Branzburg v. Hayes, 408 U.S. 665, 701, 92 S.Ct. 2646, 2666, 33 L.Ed.2d 626 (1972). In support of this function, the Supreme Court has recognized that: The grand jury’s sources of information are widely drawn, and the validity of an indictment is not affected by the character of the evidence considered. Thus, an indictment valid on its face is not subject to challenge on the ground that the grand jury acted on the basis of inade quate or incompetent evidence ... Calandra, 414 U.S. at 344-45, 94 S.Ct. at 618 (emphasis added). Further, the grand jury proceedings are not adversary in nature, but rather consist of inquiries conducted by laymen unfettered by technical rules of trial procedure. Costello v. United States, 350 U.S. 359, 364, 76 S.Ct. 406, 409, 100 L.Ed. 397 (1956). In rejecting a challenge to an indictment on the ground it was based on hearsay evidence, Justice Black wrote for the Court: If indictments are to be held open to challenge on the ground that there was inadequate or incompetent evidence before the grand jury, the resulting delay would be great indeed. The result of such a rule would be that before trial on the merits a defendant could always insist on a kind of preliminary trial to determine the competency and adequacy of the evidence before the grand jury. This is not required by the Fifth Amendment. An indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for trial of the charge on the merits. The Fifth Amendment requires nothing more. Costello, 350 U.S. at 363, 76 S.Ct. at 408-409. Based on these principles, the Sixth Circuit has held that when an indictment is valid on its face “the defendant [is] not entitled to challenge it on the ground that information which he considered favorable to his defense was not presented to the grand jury.” United States v. Ruyle, 524 F.2d 1133, 1136 (6th Cir.1975). In United States v. Kennedy, 564 F.2d 1329, 1337-38 (9th Cir.1977)," }, { "docid": "23196735", "title": "", "text": "ground that evidence before the grand jury was incompetent or inadequate. Costello v. United States, (1956) 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397; Lawn v. United States, (1958) 355 U.S. 339, 78 S.Ct. 311, 2 L.Ed.2d 321; Huerta v. United States, (9 Cir. 1963) 322 F.2d 1; Johnson v. United States, (9 Cir. 1968) 404 F.2d 1069; Wood v. United States, (9 Cir. 1968) 405 F.2d 423.” Reyes v. United States, 417 F.2d 916, 919 (9th Cir. 1969). An indictment based solely on hearsay evidence does not violate the Fifth Amendment; nothing more is constitutionally required of an indictment than that it be “returned by a legally constituted and unbiased grand jury.” Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 409, 100 L.Ed. 397 (1956). The Ninth Circuit in United States v. Chanen, 549 F.2d 1306, 1311 (9th Cir.), cert. denied, 434 U.S. 825, 98 S.Ct. 72, 54 L.Ed.2d 83 (1977), expressly rejected the Second Circuit’s rule authorizing dismissals of indictments if hearsay alone was deliberately used when better evidence was available. United States v. Estepa, 471 F.2d 1132 (2d Cir. 1972); United States v. Arcuri, 405 F.2d 691, 693 (2d Cir. 1968), cert. denied, 395 U.S. 913, 89 S.Ct. 1760, 23 L.Ed.2d 227 (1969); United States v. Umans, 368 F.2d 725, 730 (2d Cir. 1966), cert. dismissed as improvidently granted, 389 U.S. 80, 88 S.Ct. 253, 19 L.Ed.2d 255 (1967). Despite some broad language in United States v. Fox, 425 F.2d 996, 1001 (9th Cir. 1970), the District Court does not seem to have the discretion to dismiss an indictment merely because some incompetent evidence was admitted. “[Ojnly in a flagrant case, and perhaps only where knowing perjury, relating to a material matter, has been presented to the grand jury should the trial judge dismiss an otherwise valid indictment returned by an apparently unbiased grand jury.” United States v. Kennedy, 564 F.2d 1329, 1338 (9th Cir. 1977), cert. denied, 435 U.S. 944, 98 S.Ct. 1526, 55 L.Ed.2d 541 (1978). . “At a minimum, the government attorney was obligated to provide some guidance as to" }, { "docid": "3840334", "title": "", "text": "and likewise denied them due process of law. After an in camera hearing, the court determined that the indictment was valid and, accordingly, denied the motions to quash. We hold that appellants have not sustained their burden of showing the indictment was invalid. Initially we point out that there is a strong presumption of regularity accorded to the findings of grand juries. See Beatrice Foods Co. v. United States, 312 F.2d 29, 39 (8th Cir. 1963). An indictment regular on its face, returned by a legally constituted grand jury, is presumed to be founded on competent evidence and a heavy burden is placed on one who seeks to overcome the presumption. Martin v. United States, 335 F.2d 945, 949 (9th Cir. 1964); Cochran v. United States, 310 F.2d 585, 590 (8th Cir. 1962); Blumenfieid v. United States, 284 F.2d 46, 50 (8th Cir. 1960). Moreover, an indictment based solely on hearsay evidence does not violate the provisions of the fifth amendment. See Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956); United States v. Akin, 464 F.2d 7, 8 (8th Cir.), cert. denied, 409 U.S. 981, 93 S.Ct. 315, 34 L.Ed.2d 244 (1972). Finally, we note that the fact that the first grand jury failed to indict appellants is not in and of itself legally significant. United States v. Gross, 416 F.2d 1205, 1210 (8th Cir. 1969), cert. denied, 397 U.S. 1013, 90 S.Ct. 1245, 25 L.Ed.2d 427 (1970) (failure by two previous grand juries to indict did not bar later indictment by third grand jury). In our view the evidence submitted in support of the motions to quash was not adequate to bring this case within the narrow and limited situations in which a defendant may successfully attack the indictment. The affidavit accompanying the motions to quash did not contain allegations that the jury was illegally constituted; that the indictment was invalid on its face; that the indictment was obtained as a result of prosecutorial misconduct, see United States v. Gallo, 394 F.Supp. 310 (D.Conn.1975); or that the trial court amended the original indictment" }, { "docid": "22817652", "title": "", "text": "testified in detail, and was cross-examined in detail, regarding the OMC-NELC contracts and the SCS/Gray Gryphon activities. When the defendant elects to testify, he runs the risk that if disbelieved, the trier of fact may conclude that the opposite of his testimony is the truth. See, e. g., United States v. Martinez, 514 F.2d 334, 341 (9th Cir. 1975); United States v. Chase, 503 F.2d 571, 573 (9th Cir. 1974). Coupled with the independent evidence presented, Oelberg’s testimony forms an adequate basis for the jury’s verdicts. VI. OTHER ARGUMENTS Challenges to the Indictment. Both Kenny and Oelberg have attacked the indictment underlying this prosecution. Kenny argues that the indictment should have been dismissed by the District Court because the “grand jury did not receive any instructions as to the applicable law in this case.” Oelberg argues that the indictment should have been dismissed because the Government deliberately destroyed exculpatory evidence. We find neither argument persuasive. Kenny suggests that “in a case such as this no Federal Grand Juror could knowlingly [sic] return an indictment against the Appellant Kenny without some instruction as to the applicable law.” This novel argument, based loosely on the fifth and sixth amendments, seeks to introduce into grand jury proceedings an analogue to petit jury instructions given at the end of trial. Kenny has not elaborated on what he means by “applicable law,” however, nor does he seem to argue that the evidence before the grand jury was insufficient to support the allegations in the indictment. We find no authority, and Kenny has cited none, that would support this argument. To the contrary, as the Supreme Court has stated, “[a]n indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for trial of the charge on its merits.” Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 409, 100 L.Ed. 397 (1956); see United States v. Kennedy, 564 F.2d 1329, 1338 (9th Cir. 1977), cert. denied sub nom. Myers v. United States, 435 U.S. 944, 98 S.Ct. 1526," } ]

[ { "docid": "22750309", "title": "", "text": "summary adjudication. Accordingly, as we said in Cafeteria & Restaurant Workers Union v. McElroy, 367 U. S. 886, 895 (1961), “consideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as of the private interest that has been affected by governmental action.” See also Hannah v. Larche, 363 U. S. 420, 440, 442 (1960). It is true, of course, that some governmental benefits may be administratively terminated without affording the recipient a pre-termination evidentiary hearing. But we agree with the District Court that when welfare is discontinued, only a pre-termination evidentiary hearing provides the recipient with procedural due process. Cf. Sniadach v. Family Finance Corp., 395 U. S. 337 (1969). For qualified recipients, welfare provides the means to obtain essential food, clothing, housing, and medical care. Cf. Nash v. Florida Industrial Commission, 389 U. S. 235, 239 (1967). Thus the crucial factor in this context — a factor not present in the case of the blacklisted government contractor, the discharged government employee, the taxpayer denied a tax exemption, or virtually anyone else' whose governmental entitlements are ended — is that termination of aid pending resolution of a controversy over eligibility may deprive an eligible recipient of the very means by which to live while he waits. Since he lacks independent resources, his situation becomes immediately desperate. His need to concentrate upon finding the means for daily subsistence, in turn, adversely affects his ability to seek redress from the welfare bureaucracy. Moreover, important governmental interests are promoted by affording recipients a pre-termination evi-dentiary hearing. From its founding the Nation's basic commitment has been to foster the dignity and well-being of all persons within its borders. We have come to recognize that forces not within the control of the poor contribute to their poverty. This perception, against the background of our traditions, has significantly influenced the development of the contemporary public assistance system. Welfare, by meeting the basic demands of subsistence, can help bring within the reach of the poor the same" } ]

[ { "docid": "4263006", "title": "", "text": "be afforded the recipient is influenced by the extent to which he may be “condemned to suffer grievous loss,” Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 168, 71 S.Ct. 624, 647, 95 L.Ed. 817 [852] (1951) (Frankfurter, J., concurring), and depends upon whether the recipient’s interest in avoiding that loss outweighs the governmental interest in summary adjudication. Accordingly, as we said in Cafeteria & Restaurant Workers Union etc. v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1748-1749, 6 L.Ed.2d 1230 [1236] (1961), “consideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as of the private interest that has been affected by governmental action.” See also Hannah v. Larche, 363 U.S. 420, 440, 442, 80 S.Ct. 1502, 1513, 1514, 4 L.Ed.2d 1307 [1320, 1321] (1960). It is true, of course, that some governmental benefits may be administratively terminated without affording the recipient a pre-termination evidentiary hearing. But we agree with the District Court that when welfare is discontinued, only a pretermination evidentiary hearing provides the recipient with procedural due process. Cf. Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969). For qualified recipients, welfare provides the means to obtain essential food, clothing, housing, and medical care. Cf. Nash v. Florida Industrial Commission, 389 U.S. 235, 239, 88 S.Ct. 362, 366, 19 L.Ed.2d 438 [442] (1967). Thus the crucial factor in this context —a factor not present in the case of the blacklisted government contractor, the discharged government employee, the taxpayer denied a tax exemption, or virtually anyone else whose governmental entitlements are ended — is that termination of aid pending resolution of a controversy over eligibility may deprive an eligible recipient of the very means by which to live while he waits. Since he lacks independent resources, his situation becomes immediately desperate. His need to concentrate upon finding the means for daily subsistence, in turn, adversely affects his ability to seek redress from the welfare bureaucracy. Id., 397 U.S. at 262-264," }, { "docid": "22750313", "title": "", "text": "concern to prevent any increase in its fiscal and administrative burdens. As the District Court correctly concluded, “[t]he stakes are simply too high for the welfare recipient, and the possibility for honest error or irritable misjudgment too great, to allow termination of aid without giving the recipient a chance, if he so desires, to be fully informed of the case against him so that he may contest its basis and produce evidence in rebuttal.” 294 F. Supp., at 904-905. II We also agree with the District Court, however, that the pre-termination hearing need not take the form of a judicial or quasi-judicial trial. We bear in mind that the statutory “fair hearing” will provide the recipient with a full administrative review. Accordingly, the pre-termination hearing has one function, only: to produce an initial determination of the validity of the welfare department’s grounds for discontinuance of payments in order to protect a recipient against an erroneous termination of his benefits. Cf. Sniadach v. Family Finance Corp., 395 U. S. 337, 343 (1969) (Harlan, J., concurring). Thus, a complete record and a comprehensive opinion, which would serve primarily to facilitate judicial review and to guide future decisions, need not be provided at the pre-termination stage. We recognize, too., that both welfare authorities and recipients have an interest in relatively speedy resolution of questions of eligibility, that they are used to dealing with one another informally, and that some welfare departments have very burdensome caseloads. These considerations justify the limitation of the pre-termination hearing to minimum procedural safeguards, adapted to the particular characteristics of welfare recipients, and to the limited nature of the controversies to be resolved. We wish to add that we, no less than the dissenters, recognize the importance of not imposing upon the States or the Federal Government in this developing field of law any procedural requirements beyond those demanded by rudimentary due process. “The fundamental requisite of due process of law is the opportunity to be heard.” Grannis v. Ordean, 234 U. S. 385, 394 (1914). The hearing must be “at a meaningful time and in a meaningful manner.”" }, { "docid": "17186971", "title": "", "text": "concern with the government's use of forfeiture statutes to impose prior restraints on First Amendment rights. Such a distinction is of doubtful validity, for although it is true that the Supreme Court has expressed a particular aversion to the prior restraint of First Amendment rights, it has in recent years been equally solicitous in ensuring that persons not be deprived of property without due process of law. See Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972); Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971); Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970); Wheeler v. Montgomery, 397 U.S. 280, 90 S.Ct. 1026, 25 L.Ed.2d 307 (1970); Sniadach v. Family Finance Corporation, 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969). See also, Lynch v. Household Finance Corporation, 405 U.S. 538, 92 S.Ct. 113, 31 L.Ed.2d 424. (1972) in which the court stated: “Property does not have rights. People have rights. The right to enjoy property without unlawful deprivation, no less than the right to speak or the right to travel, is in truth a ‘personal’ right, whether the ‘property’ in question be a welfare check, a home or a savings account. In fact, a fundamental interdependence exists between the personal right to liberty and the personal right in property. Neither could have meaning without the other. That rights in property are basic civil Tights has long been recognized.” 405 U.S. at 552. When this court considers that the Supreme Court has interpreted the due process clause of the Fourteenth Amendment to require an evidentiary hearing by a State prior to the suspension of a driver’s license, Bell v. Burson, supra; or the termination of welfare benefits, Goldberg v. Kelly, supra; or garnishment of wages, Sniadach v. Family Finance Corporation, supra; or the repossession of goods sold under a constitutional sales contract, Fuentes v. Shevin, supra, it would be incongruous indeed if the federal government were left completely unrestrained under the identical wording of the Fifth Amendment following the seizure of goods by customs officers. Plaintiff" }, { "docid": "19786457", "title": "", "text": "the three-judge statute.” In Heaney v. Allen, 425 F.2d 869 (2d Cir. 1970), the Court of Appeals for this Circuit stressed that the District Court must “conscientiously” pass upon the substantiality of the constitutional claims; the court also emphasized the undesirability of wasting already overworked judicial resources by too readily convening three-judge panels. Plaintiff’s constitutional claims are premised upon the holdings in several recent decisions in this Circuit and the Supreme Court. The most important of these cases is Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), affirming Kelly v. Wyman, 294 F.Supp. 895 (S.D.N.Y.1968). In Goldberg, the Supreme Court held that welfare payments cannot be terminated without first affording the recipients an evidentiary hearing accompanied by notice, the opportunity to present witnesses and confront other witnesses, the opportunity to retain an attorney, and the opportunity to appear before an impartial decision-maker who must state in writing the reasons for his determination. The holding in Goldberg has been extended recently to encompass termination of benefits involving public housing, Escalera v. New York City Housing Authority, 425 F.2d 853 (2d Cir. 1970), and — most importantly — -unemployment compensation, Java v. California Department of Human Resources Development, 317 F.Supp. 875, (N.D.Cal.1970). In the Java case, the plaintiff challenged an explicit California statutory provision (Calif.Unempl.Ins.Code § 1335) which cut off payments upon the filing by the employer of an appeal from the initial determination of eligibility. There the constitutional challenge to the pre-hearing termination was found to warrant the appointment of a three-judge court pursuant to 28 U.S.C. §§ 2281, 2284, and the three-judge court, finding the case “indistinguishable” from Goldberg v. Kelly, held the statute to be “defective” on constitutional grounds. In support of his challenge to the compensation scheme, plaintiff also relies upon Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969), in which the Supreme Court held that the Wisconsin procedure for garnishing a debtor’s wages violated due process because the machinery whereby the wages were frozen was set in motion before notice and an opportunity to be" }, { "docid": "1041816", "title": "", "text": "(6th Cir.1976). We begin, then, with the constitutional due process analysis set forth in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976). The first step in that analysis need not detain us long here. There can be no doubt that the plaintiff’s interest in his salary and expense reimbursement is a property interest protected by the Constitution. See, e.g., Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969); Orloff v. Cleland, 708 F.2d 372, 378 (9th Cir.1983). We then proceed to consider what procedures were required before the county could deprive Mr. Eguia of his salary and expenses. In Mathews the Supreme Court outlined a three-factor analysis for determining what process is due: [Identification of the specific dictates of due process generally requires consideration of ...: first, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. 424 U.S. at 335, 96 S.Ct. at 903. After consideration of these factors, we hold that the constitutional guarantee of due process of law did not require the formal predeprivation hearing before the County Commissioners’ Court that the Texas statute mandates and the plaintiff demands. The plaintiff’s interest in the receipt of a single paycheck for his last pay period and expense reimbursement for the month of December is substantial, but we cannot adjudge it to be of the same magnitude as the interest of a person “on the very margin of subsistence” in the receipt of governmental benefits. The Supreme Court’s concern for the privation such persons might suffer from a loss of benefits weighed heavily in the Court’s decision in Goldberg v. Kelly, which established a right to an evidentiary hearing before welfare benefits could be terminated. 397 U.S. 254, 264, 90 S.Ct. 1011, 1018, 25 L.Ed.2d" }, { "docid": "23264230", "title": "", "text": "heightens the seriousness of the consequences of disciplinary action against a detainee. Furthermore, some infractions of discipline involve criminal charges, and in such cases the elements of due process are of critical importance. In recent years, the Supreme Court has notably extended the parameters of due process in cases involving deprivations which may result in serious loss. While the Court has written no opinion as to the requirements of due process in cases of prisoner discipline, its opinions in related areas chart the course which guides us. All of the Court’s decisions have been governed by two earlier fundamental precepts: that due process is not a fixed concept, but varies according to “the precise nature of the government function involved as well as of the private interest . . . affected . . . . ” Cafeteria Workers v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230 (1961) and that the right to due process arises when one is “condemned to suffer [a] grievous loss” Joint AntiFascist Committee v. McGrath, 341 U.S. 123, 168, 71 S.Ct. 624, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring). The significant determinations on the subject include Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970) (welfare recipient cannot be deprived of benefits without evidentiary hearing subject to specified procedures) ; Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969) (debtor’s property cannot be garnished without notice and prior hearing); Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971) (statute providing for public posting of names of “excessive drinkers” of liquor may not be posted, to prevent purchase, without notice or hearing); Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971) (license of uninsured motorist involved in an accident may not be suspended without hearing on issue of fault); Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972) (property may not be replevined in ex parte proceedings), and Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33" }, { "docid": "850820", "title": "", "text": "MERITS Goldberg v. Kelly is the fountainhead for the application of procedural due process rights to public assistance beneficiaries. 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). Before deciding the central issue presented in that case of whether the due process clause required an oral evidentiary hearing before welfare benefits may be terminated, the Court made it clear that the due process clause does apply to welfare benefits. 397 U.S. at 261-62 & n. 8, 90 S.Ct. 1011. The extent to which due process applies, which is the issue presented by plaintiffs’ complaint in this case, is influenced, the Court said, by the extent to which the recipient may be “condemned to suffer [a] grievous loss.” 397 U.S. at 263, 90 S.Ct. at 1018. The Court then decided that a pre-termination evidentiary hearing was necessary after considering the following factors: (1) The recipients’ interest in avoiding loss of benefits; and (2) the governmental interest in summary adjudication. The Court, while noting that the termination of governmental benefits without a hearing has been allowed in emergency situations, stated that the crucial factor here “is that termination of aid pending resolution of a controversy over eligibility may deprive an eligible recipient of the very means by which to live while he waits.” 397 U.S. at 264, 90 S.Ct. at 1018. Moreover, the Court found that since the theory underlying public assistance is that it promotes the General Welfare, the government has an interest in seeing that eligible recipients are not erroneously terminated. Against these findings the Court weighed the government’s interest in conserving fiscal and administrative resources. While admitting that pre-termination hearings would be a drain on these resources, the Court concluded, quoting the District Court’s opinion, that [t]he stakes are simply too high for the welfare recipient, and the possibility for honest error or irritable misjudgment too great, to allow termination of aid without giving the recipient a chance, if he so desires, to be fully informed of the case against him so that he may contest its basis and produce evidence in rebuttal. Kelly v. Wyman, D.C., 294" }, { "docid": "19786458", "title": "", "text": "New York City Housing Authority, 425 F.2d 853 (2d Cir. 1970), and — most importantly — -unemployment compensation, Java v. California Department of Human Resources Development, 317 F.Supp. 875, (N.D.Cal.1970). In the Java case, the plaintiff challenged an explicit California statutory provision (Calif.Unempl.Ins.Code § 1335) which cut off payments upon the filing by the employer of an appeal from the initial determination of eligibility. There the constitutional challenge to the pre-hearing termination was found to warrant the appointment of a three-judge court pursuant to 28 U.S.C. §§ 2281, 2284, and the three-judge court, finding the case “indistinguishable” from Goldberg v. Kelly, held the statute to be “defective” on constitutional grounds. In support of his challenge to the compensation scheme, plaintiff also relies upon Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969), in which the Supreme Court held that the Wisconsin procedure for garnishing a debtor’s wages violated due process because the machinery whereby the wages were frozen was set in motion before notice and an opportunity to be heard were afforded to the debtor. The defendants contend that the above cited cases are inapplicable here for several reasons. They maintain that Goldberg v. Kelly, supra, involved a different and more cumbersome bureaucracy, and that the factors governing eligibility and redeterminations of eligibility are easier to apply in unemployment insurance cases than in welfare cases. Because the factors are more objective (at least in defendants’ view) and are obtained almost exclusively from the employer and the employee (who must report periodically), the defendants claim that the Department’s investigations and determinations are prompt and that there is a “general correctness of decisions * * ” Defendants also point out that unlike the situation involved in welfare payments, which are entirely paid for by the government, there is a third party here, viz., the employers, and that they too have a right to due process. If employees cannot have payments suspended or terminated without first being given a hearing, then no payments should be instituted in the first place until and unless the employer is heard." }, { "docid": "15248098", "title": "", "text": "Court’s recent expression concerning due process expounded in Snia-dach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct.1820, 23 L.Ed.2d 349 (1969) renders the Pennsylvania foreign attachment procedures unconstitutional. In Sniadach the Court held that Wisconsin’s prejudgment wage garnishment law contravened the due process clause of the Constitution to the extent that it permitted prejudgment garnishment of a small debtor’s wages without notice or a hearing. Noting the difference in factual settings between Sniadach and this appeal the preliminary inquiry therefore, is whether the due process principles expounded in Sniadach and its ap parent progeny render the Pennsylvania’s foreign attachment procedures unconstitutional. In Boddie v. Connecticut, 401 U. S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971), Justice Harlan noted that due process principles are the guarantors of an efficient system for resolving disputes. We believe that the issue here should be examined in light of this observation. In this case both parties are private persons. Thus, our principal concern is whether the attachment procedures being challenged critically impair the resolution of disputes without serving to preserve any compensating governmental interest. The Court in Sniadach faced such a situation. There the seizure of Mrs. Sniadach’s wages prior to any hearing on the merits of the plaintiff’s claim tended to reverse the usual litigating postures of the parties. Ordinarily the plaintiff bears the burden of bringing suit and proving his claim. But Sniadach involved a situation where the defendant, as a result of the wage seizure, found herself deprived of her only means of support and, in effect, unable to avoid settlement and await the opportunity to present her defense in an adversary proceeding. Plaintiff’s first contention is that Pennsylvania’s foreign attachment procedures violate due process because they permit deprivation of property without notice, a hearing or an affidavit of meritorious action, and without requiring the posting of a bond or the intervention of any judicial officer. In view of plaintiff’s particular circumstances, the question before us, therefore, is whether the due process clause precludes a Pennsylvania plaintiff from invoking that state’s foreign attachment procedures against a foreign corporate defendant not" }, { "docid": "15621036", "title": "", "text": "who has civil service rights his job without a hearing, in the absence of a national emergency or government security problem, is to deny him his constitutional rights of due process. I can see no meaningful difference between this situation and that which existed in Goldberg v. Kelly, 397 U.S. 254 (1970). There the state officials of New York were attempting to cut off welfare payments to plaintiffs without a hearing. There was no requirement for a preliminary hearing just as there is none in the case before us. The Supreme Court said in an opinion by Mr. Justice Brennan: * * * But we agree with the District Court that When welfare is discontinued, only a pre-termination eviden-tiary hearing provides the recipient with procedural due process. Cf. Sniadach v. Family Finance Corporation, 395 U.S. 337 (1969). * * * [Slip op. at 9.] \"While the Court in that case did indicate there might be a difference between a welfare recipient whose aid has been cut off without a hearing and a discharged government employee who has been fired without a hearing, it was speaking from an economic standpoint rather than a legal one. The Court said: * * * For qualified recipients, welfare provides the means to obtain essential food, clothing, housing, and medical care. * * * [Termination of aid pending resolution of a controversy over eligibility may deprive an eligible recipient of the very means by which to live while he waits. Since he lacks independent resources, his situation becomes immediately desperate. His need to concentrate upon finding the means for daily subsistence, in turn, adversely affects his ability to seek redress from the welfare bureaucracy. [Slip op. at 9-10.] All of the foregoing could be, and probably should be, applied to most discharged government employees. Few of them earn more than enough to pay.their living expenses from month to month, and when their salaries are cut off they may be in the same destitute circumstances as a welfare re cipient whose aid has been discontinued. In any event, if there is any difference, it is only" }, { "docid": "8861085", "title": "", "text": "was not informed of his right to appeal or provided with information as to how he might appeal. Plaintiff Walker was provided assistance in the form of a food order for $14 on August 23, 1974. Defendant Rough-ton also paid $65 for Walker’s rent from October 1 to November 1, 1974. Subse quent to that payment, Walker’s assistance was terminated without written notice and without informing him of his right to appeal. (T28, 88). Plaintiff Silagy applied for township general assistance on at least three occasions in 1974. She was denied assistance but was never informed of the reasons supporting the rejection of her application nor informed of her right to appeal (T57-80). II. In Goldberg v. Kelly, 397 U.S. 254, 90 5. Ct. 1011, 25 L.Ed.2d 287 (1970), the Supreme Court held that procedural due process requires that welfare recipients must be provided with adequate notice and an evidentiary hearing before benefits may be discontinued. 397 U.S. at 260-68, 90 S.Ct. at 1016, 25 L.Ed.2d at 295. In Goldberg, the plaintiffs alleged that certain New York State and New York City officials, who administered federal and state welfare programs, had terminated or were about to terminate assistance without prior notice and a hearing. 397 U.S. at 255-56, 90 S.Ct. at 1012, 25 L.Ed.2d at 289. In discussing the constitutional rights of welfare recipients, the Court noted: “. . termination of aid pending resolution of a controversy over eligibility may deprive an eligible recipient of the very means by which to live while he waits. Since he lacks independent resources, his situation becomes immediately desperate. His need to concentrate upon finding the means for daily subsistence, in turn, adversely affects his ability to seek redress from the welfare bureaucracy.” 397 U.S. at 264, 90 S.Ct. at 1018, 25 L.Ed.2d at 297. The Court further reasoned that: “ ‘The fundamental requisite of due process of law is the opportunity to be heard.’ . . . The hearing must be ‘at a meaningful time and in a meaningful manner.’ ... In the present context these principles require that a recipient have timely" }, { "docid": "405783", "title": "", "text": "meet it.” ... In assessing what process is due in this case, substantial weight must be given to the good faith judgment of the individuals charged by Congress with the administration of social welfare programs that the procedures they have provided assure fair consideration of the entitlement claims of individuals____ This is especially so where, as here, the prescribed procedures not only provide the claimant with an effective process for asserting his claim prior to any administrative action, but also assures a right to an evidentiary review, before the denial of his claim becomes final. 424 U.S. at 348-49, 96 S.Ct. at 909. Finally, the Court in Mathews, in distinguishing Goldberg, declared that “[t]he crucial factor in this context — [the requirement of a full hearing] a factor not present in the case of ... virtually anyone else whose governmental entitlements are ended — is that termination of aid pending resolution of a controversy over eligibility [might] deprive an eligible recipient of the very means by which to live while he waits” quoting Goldberg, 397 U.S. at 264, 90 S.Ct. at 1018 (Italics in original). It found no such showing in that case. In Parratt v. Taylor, 451 U.S. 527, 539-40, 101 S.Ct. 1908, 1914-15, 68 L.Ed.2d 420 (1981), the Supreme Court, after reviewing the authorities on the requirement of a pre-deprivation hearing under due process, said: These eases recognize that either the necessity of quick action by the State or the impracticality of providing any meaningful predeprivation process, when coupled with the availability of some meaningful means by which to assess the propriety of the State’s action at some time after the initial taking can satisfy the requirements of procedural due process. As we stated in Mitchell v. W.T. Grant Co., 416 U.S. 600 [94 S.Ct. 1895, 40 L.Ed.2d 406] (1974): “Petitioner asserts that his right to a hearing before his possession is in any way disturbed is nonetheless mandated by a long line of cases in this Court, culminating in Sniadach v. Family Finance Corp., 395 U.S. 337 [89 S.Ct. 1820, 23 L.Ed.2d 349] (1969), and Fuentes v." }, { "docid": "23335025", "title": "", "text": "loss of their homes without due process must be dismissed. IV Nor do we find HUD’s policy of automatically suspending 235 mortgage assistance payments upon the filing of foreclosure proceedings to be violative of the Fifth Amendment. The plaintiffs, relying upon the Supreme Court’s rulings in Goldberg v. Kelly, supra, and its progeny, have urged that they should be afforded notice and a hearing before these benefits are arbitrarily cut off. In upholding, the need for such due process protections in Goldberg v. Kelly, the Court found that public assistance recipients had a statutory entitlement to welfare benefits grounded in the statute defining eligibility. From this entitlement, which was within the sphere of property interests meriting constitutional protection, it was determined that, on balance, the consequences to the recipient of wrongful termination outweighed the governmental interest in conserving fiscal resources through summary action. The Court concluded that, under the circumstances, the Fifth and Fourteenth Amendments required that welfare recipients be afforded an evidentiary hearing before suspension of their benefits. Similarly,- the Supreme Court has also held that a hearing is required before wages can be garnisheed. Sniadach v. Family Finance Corporation, 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969); a driver’s license revoked, Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971) ; consumer goods repossessed, Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972); or a tenured college professor fired by a public educational institution. Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). The plaintiffs have likened their experience to those found to exist in these cases, contending that the mortgage assistance payments were specifically designed to make homes available for low income families and, therefore, under the provisions of the National Housing Act, these payments qualify as statutory entitlements. The plaintiffs thus reason that the mortgage assistance payments represent property interests which cannot be suspended without adequate notice and a fair hearing. Since the government’s present practice is" }, { "docid": "4263007", "title": "", "text": "Court that when welfare is discontinued, only a pretermination evidentiary hearing provides the recipient with procedural due process. Cf. Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969). For qualified recipients, welfare provides the means to obtain essential food, clothing, housing, and medical care. Cf. Nash v. Florida Industrial Commission, 389 U.S. 235, 239, 88 S.Ct. 362, 366, 19 L.Ed.2d 438 [442] (1967). Thus the crucial factor in this context —a factor not present in the case of the blacklisted government contractor, the discharged government employee, the taxpayer denied a tax exemption, or virtually anyone else whose governmental entitlements are ended — is that termination of aid pending resolution of a controversy over eligibility may deprive an eligible recipient of the very means by which to live while he waits. Since he lacks independent resources, his situation becomes immediately desperate. His need to concentrate upon finding the means for daily subsistence, in turn, adversely affects his ability to seek redress from the welfare bureaucracy. Id., 397 U.S. at 262-264, 90 S.Ct. at 1017 (footnotes omitted). Not every interest, however, is protected by the due process clauses of the Fifth or the Fourteenth Amendments. In Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), and its companion case Perry v. Sinderman, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), the Supreme Court further pinpointed those interests which are within the zone of such constitutional protection: * * * to determine whether due process requirements apply in the first place, we must look not to the “weight” but to the nature of the interest at stake. See Morissey v. Brewer, 408 U.S. 471, at 481, 92 S.Ct. 2593, at 2600, 33 L.Ed.2d, p. 484, at 494. We must look to see if the interest is within the Fourteenth Amendment’s protection of liberty and property. ****** The Fourteenth Amendment’s procedural protection of property is a safeguard of the security of interests that a person has already acquired in specific benefits. These interests— property interests — may take many forms." }, { "docid": "10643723", "title": "", "text": "water bill and declare that the manager is not required again to supply the premises with water until the arrears are fully paid. It is also provided that the manager is required to give three days notice to the owner or tenant before termination. In the instant case, it appears that the ordinance and charter provisions were followed to the letter. The landlord had not paid the water bill. Notice was sent to the landlord (% Chapman Realty Company) that the water service would be terminated unless the bill was paid. No notice was given to the plaintiff (tenant) by the Department of Water Works. The bill was not paid and the service was terminated. It has never been contended by defendants in this case that the plaintiff, as tenant, is liable for the bill. Plaintiff argues, in support of his motion for preliminary injunction, that the summary termination of his water service without affording him notice and an opportunity to contest his liability for the bill is in violation of his rights under the due process clause of the Fourteenth Amendment. Plaintiff relies upon recent United States Supreme Court decisions which require prior notice and a hearing as a matter of due process of law before certain administrative action can be taken. Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (prior hearing required on probable liability before suspension of uninsured motorist’s drivers license following accident); Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970) (prior notice and hearing required before termination of welfare benefits); Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969) (hearing required prior to garnishment of wages). The underlying principles applied in these cases may well be said to be merely a restatement of what Mr. Justice Frankfurter, some years ago, deemed essential to due process of law: “ * * * the right to be heard before being condemned to suffer grievous loss of any kind, even though it may not involve the stigma and hardships of a criminal conviction.” Though," }, { "docid": "15621035", "title": "", "text": "and capricious exercise of delegated power, and that the legality of plaintiff’s dismissal is infected accordingly. Defendant’s motion for summary judgment is denied. Plaintiff’s motion is allowed. Plaintiff is entitled to recover and judgment is entered to that effect. The amount of recovery will be determined under Rule 131. SkeltoN, Judge, concurring: I concur with the reasoning and the result reached by the court in this case. However, there are a number of other issues in the case that I feel should have been discussed because of their importance. Accordingly, I would add the following: I The Discharge of the Plaintiff Without a Hearing Denied Him Due Process The agency followed the usual practice of government departments by serving notice of charges on the plaintiff, allowing him to make on oral reply, and then summarily discharging him from his job without a hearing (notwithstanding his 24 years of government service). The government says this procedure was authorized by the regulations. This may be true, but in my opinion to deny an employee of the government who has civil service rights his job without a hearing, in the absence of a national emergency or government security problem, is to deny him his constitutional rights of due process. I can see no meaningful difference between this situation and that which existed in Goldberg v. Kelly, 397 U.S. 254 (1970). There the state officials of New York were attempting to cut off welfare payments to plaintiffs without a hearing. There was no requirement for a preliminary hearing just as there is none in the case before us. The Supreme Court said in an opinion by Mr. Justice Brennan: * * * But we agree with the District Court that When welfare is discontinued, only a pre-termination eviden-tiary hearing provides the recipient with procedural due process. Cf. Sniadach v. Family Finance Corporation, 395 U.S. 337 (1969). * * * [Slip op. at 9.] \"While the Court in that case did indicate there might be a difference between a welfare recipient whose aid has been cut off without a hearing and a discharged government employee" }, { "docid": "15621037", "title": "", "text": "who has been fired without a hearing, it was speaking from an economic standpoint rather than a legal one. The Court said: * * * For qualified recipients, welfare provides the means to obtain essential food, clothing, housing, and medical care. * * * [Termination of aid pending resolution of a controversy over eligibility may deprive an eligible recipient of the very means by which to live while he waits. Since he lacks independent resources, his situation becomes immediately desperate. His need to concentrate upon finding the means for daily subsistence, in turn, adversely affects his ability to seek redress from the welfare bureaucracy. [Slip op. at 9-10.] All of the foregoing could be, and probably should be, applied to most discharged government employees. Few of them earn more than enough to pay.their living expenses from month to month, and when their salaries are cut off they may be in the same destitute circumstances as a welfare re cipient whose aid has been discontinued. In any event, if there is any difference, it is only a matter of degree. Consequently, I think that when the plaintiff was discharged without a hearing in our case, his property (his job) was taken from him without due process of law, notwithstanding any regulation or lack of one to the contrary. A hearing for an employee who has already been 'discharged could hardly be a meaningful one because it is a proceeding after the fact. II The Burden of Proof was Erroneously Placed on the Plaintiff At the hearing in this case (if we can dignify it by calling it a hearing), the examiner required the plaintiff to put on his evidence first. The defendant says this was authorized by the regulations. This is not too clear, as the Internal Revenue Manual, Section 19(14)3.83(1) of December 31,1964, merely refers to what is known as the Treasury Department Guide For Suggested Procedures on Conducting Hearings on Employee Appeals. This latter document states the employee will present his evidence first. I do not believe the Treasury Department Guide had the status of a regulation. Furthermore, its" }, { "docid": "23701869", "title": "", "text": "evidentiary hearing prior to the deprivation of some type of property interest even if such a hearing is provided thereafter. Mathews, supra, 424 U.S. at 338, 96 S.Ct. at 901. In Mathews, the Supreme Court set forth a more clearly delineated tri-par-tite test for determining whether the fifth amendment has been satisfied when the government is alleged to have denied due process. The inquiry considers three distinct factors: (1) the private interest that will be affected by the official action; (2) the risk of erroneous deprivation of such interest through additional procedural safeguards, and (3) the government’s interest in additional adjudicative process. Id. at 335, 96 S.Ct. at 903. Our reading of Mathews and other recent Supreme Court decisions in which additional process has been found to be necessary indicates that a showing of a likelihood of irreparable harm resulting from the lack of a pre-deprivation hearing is a private interest which countervails any public interest in streamlined administration. This showing has proven sufficient to compel further process when the government or private parties act to deprive and when the harm has threatened individuals or legal entities. See North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 608, 95 S.Ct. 719, 723, 42 L.Ed.2d 751 (1975) (“probability of irreparable injury” sufficient to warrant pre-seizure hearing); Goldberg v. Kelly, 397 U.S. 254, 264, 90 S.Ct. 1011, 1018, 25 L.Ed.2d 287 (1970) (temporary deprivation of welfare payments may deprive recipient of “very means by which to live”); Sniadach v. Family Finance Corporation, 395 U.S. 337, 341-42, 89 S.Ct. 1820, 1822-23, 23 L.Ed.2d 349 (1969) (temporary deprivation of wages may “drive a wage-earning family to the wall”). Nor is this inquiry confined to the context of the disability-benefits-entitlement genre of decisions. Shortly after Mathews, the Court, in Commissioner v. Shapiro, 424 U.S. 614, 629, 96 S.Ct. 1062, 1071, 47 L.Ed.2d 278 (1976), by way of dictum, suggested that summary seizure of assets in tax proceedings when such seizure will result in irreparable injury, is a denial of due process. The Court’s precise phraseology is as follows: This Court has recently and repeatedly" }, { "docid": "15621034", "title": "", "text": "was one of the deciding officer's circle of staff and line aides and advisers whom he regularly consults in such matters, unless the deciding officer has gone outside that circle for help for the employee’s own better protection. In that case the record would show how the outsider’s expertise was relied on. There is nothing in the instant record to show that the choice of an outsider was meant for plaintiff’s protection. The apparent motive, none other appearing, would have appeared to be to prevent him from learning anything he could use in his case, and it was to refute this that defendant’s counsel offered the rotation explanation, which meets the standards of the Regulation and Manual hardly better. We hold that the selection of a tax fraud investigator to hear the plaintiff’s “oral reply” was an abuse of discretion when no better reason is adduced for it than here and where substantially all the investigator did was to take down by tape recorder the plaintiff’s statements with some clarification, that it was an arbitrary and capricious exercise of delegated power, and that the legality of plaintiff’s dismissal is infected accordingly. Defendant’s motion for summary judgment is denied. Plaintiff’s motion is allowed. Plaintiff is entitled to recover and judgment is entered to that effect. The amount of recovery will be determined under Rule 131. SkeltoN, Judge, concurring: I concur with the reasoning and the result reached by the court in this case. However, there are a number of other issues in the case that I feel should have been discussed because of their importance. Accordingly, I would add the following: I The Discharge of the Plaintiff Without a Hearing Denied Him Due Process The agency followed the usual practice of government departments by serving notice of charges on the plaintiff, allowing him to make on oral reply, and then summarily discharging him from his job without a hearing (notwithstanding his 24 years of government service). The government says this procedure was authorized by the regulations. This may be true, but in my opinion to deny an employee of the government" }, { "docid": "18895765", "title": "", "text": "operation of the Arizona Mechanics Lien Law claiming as do the plaintiffs in these cases a violation of the due process of law guaranteed by the Fourteenth Amendment. The Spielman three judge court evaluated the Arizona Mechanics Lien Law in the light of four recent Supreme Court decisions which dealt with the requirements of notice and hearing under the Fourteenth Amendment. Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972) held that pre-judgment replevin statutes in Florida and Pennsylvania were unconstitutional in that chattels could be seized from the owner without any opportunity for a fair hearing. Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971) held that the imposition of court fees and costs in divorce proceedings was unconstitutional in light of the state’s monopoly on divorce. Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970) held that welfare benefits may not constitutionally be terminated without a prior notice and hearing. Sniadach v. Family Finance Corp. of Bay View, 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969) held that wages may not be garnished without a notice and a hearing. The court held that the imposition of a mechanics lien did not involve a significant taking of property and therefore found that the due process standards of the above four cases did not apply to the Arizona Mechanics Lien Law. “In Sniadach there was an actual taking of wages from the party. The effect of the Wisconsin garnishment statute was to freeze the wager in the employer. Thus, funds to which the employee was entitled were kept from him. He was deprived of the actual possession and use of his wages. In Goldberg the termination of welfare benefits denied possession and use of the funds to the recipient. In Fuentes the chattels seized were physically taken from the parties. The instant case, by contrast, presents no actual taking of possession of any kind from plaintiffs. Indeed, the stipulated facts demonstrate that plaintiffs remain in continued possession of their land and continue to rent mobile home" } ]

[ { "docid": "21320000", "title": "", "text": "same story. Reese stated that he had been working for a few days as a cement finisher for H. L. Snyder Construction Company in Pueblo, Colorado. He said that during the afternoon of January 13, 1964 he entered a Pueblo bar and for the first time became acquainted with Roberts. The two did considerable drinking together and decided to go to Nevada to look for work. That about 10:00 P.M. a third person joined them in the bar, whom Reese identified as Carl Herringer, who told Reese that he had an automobile he was willing to sell if they desired to drive to Nevada. After examining the automobile, Reese said that he agreed to purchase it for $50.00 cash and an additional $25.00 to be mailed later to Carl, General Delivery, Pueblo, Colorado. Reese obtained no evidence of title or receipt for the $50.00. Reese said that immediately thereafter he and Roberts left Pueblo in the automobile. The route took them through northern Colorado into Wyoming. Roberts corroborated this statement, and each testified at the trial to the same effect. It is well established that a jury may infer from the possession of a recently stolen automobile in another state that the possessor of the vehicle knew that it was stolen and that he transported it in interstate commerce. Grandsinger v. United States, 10 Cir., 332 F.2d 80; Fitts v. United States, 10 Cir., 328 F.2d 844; Fitts v. United States, 10 Cir., 284 F.2d 108 ; Seefeldt v. United “States, 10 Cir., 183 F.2d 713. Cf. Real v. United States, 10 Cir., 326 F.2d 441. The evidence is adequate to-sustain the verdict of the jury as to both Reese and Roberts. It is quite apparent, from the record that Roberts was not a. “hitchhiker” as he now contends. According to their own testimony, they were together prior to and at the time-possession of the car was obtained, and continued to travel together for their-joint benefit until taken into custody. The jury was not required to believe the rather fantastic story of the automobile purchase related by the appellants. At" } ]

[ { "docid": "2192119", "title": "", "text": "in lawful possession of the car, to show whether or not he consented to Matthews’ use of the car, an essential element of the crime is lacking and the motion for acquittal should have been granted. The law is well established that proof of possession of a recently stolen automobile in a state other than the one where it was stolen, unless such possession is satisfactorily explained, will sustain an inference that the one in possession transported it interstate knowing it to have been stolen. Rogers v. United States, 416 F.2d 926 (10th Cir. 1969); Wheeler v. United States, 382 F.2d 998 (10th Cir. 1967); Fish v. United States, 371 F.2d 438 (10th Cir. 1967); Williams v. United States, 371 F.2d 141 (10th Cir. 1967); Gregory v. United States, 364 F.2d 210 (10th Cir. 1966), cert. denied, 385 U.S. 962, 87 S.Ct. 405, 17 L.Ed.2d 307; Maguire v. United States, 358 F.2d 442 (10th Cir. 1966), cert. denied, Giles v. United States, 385 U.S. 870, 87 S.Ct. 138, 17 L.Ed.2d 97; Allison v. United States, 348 F.2d 152 (10th Cir. 1965). It is equally well established that the term “stolen” as used in 18 U.S.C. § 2312 includes the felonious taking of a motor vehicle by one in lawful possession thereof with intent to deprive another of his rights of ownership. United States v. Turley, 352 U.S. 407, 77 S.Ct. 397, 1 L.Ed.2d 430 (1957); McCarthy v. United States, 403 F.2d 935 (10th Cir. 1968); Stone v. United States, 385 F.2d 713 (10th Cir. 1967), cert. denied, 391 U.S. 966, 88 S.Ct. 2038, 20 L.Ed.2d 880; Lake v. United States, 338 F.2d 787 (10th Cir. 1964). The proof of Matthews’ guilt is overwhelming. Cox’s testimony could add little to the case. The record discloses that Cox was in Bozeman after the car disappeared. Two days later Matthews and the car were in Santa Fe. Matthews registered at a motel there in Cox’s name. Except for Matthews’ statement that Cox drove him to Santa Fe, there is no evidence of his presence there. Throughout his stay in New Mexico, Matthews represented" }, { "docid": "14218595", "title": "", "text": "case, making this motion in open court was error, but if it was, we are convinced it was not prejudicial. Appellant’s remaining contention (as briefed and argued by counsel) is that the trial court committed error in denying his motion for directed verdict (judgment of acquittal) because of the insufficiency of the evidence to support a jury’s finding that he knew the car was stolen. The applicable general rules here involved are well established. Maguire v. United States, 358 F.2d 442, at page 444 states: “In considering the motion for acquittal, the trial court must view the evidence in the light most favorable to the government, together with inferences which may fairly be drawn therefrom, and then determine whether there is substantial evidence from which a jury might properly find the accused guilty beyond a reasonable doubt. This standard is applicable to each of the several elements of the offense. Cartwright v. United States, 10 Cir., 335 F.2d 919. To convict under 18 U.S.C. § 2312, the government must prove (1) that the vehicle was stolen, (2) that it was transported in interstate commerce, and (3) that such transportation was with knowledge that the vehicle was stolen. Allison v. United States, 10 Cir., 348 F.2d 152.” Maguire v. United States, 358 F.2d 442, (10 Cir. 1966), cert. den. Giles v. U. S., 385 U.S. 870, 87 S.Ct. 138, 17 L.Ed.2d 97. No question is raised as to the sufficiency of the evidence concerning the first two elements of the offense. Conclusive evidence that the motor vehicle here involved was stolen during the night of August 28, 1966, in Grove, Oklahoma, was in effect stipulated into the record. Sufficient evidence that the defendant transported this vehicle in interstate commerce (from Oklahoma to Missouri) is in the record. Brief reference will be made to some of the evidence relevant to the remaining element. In August, 1966, Tanner was living in an apartment in Kansas City, Missouri, with a roommate and friend, one Manis. Tanner owned and was using a 1953 Plymouth automobile bearing license plate WY 75271, a Kansas (Wyandotte County) license" }, { "docid": "7679401", "title": "", "text": "that “Possession of property recently stolen, if not satisfactorily explained, is a circumstance from which the jury may reasonably draw the inference and find in the light of surrounding circumstances that the person in possession participated in some way in the theft of the property”; (2) the federal District Court lacked jurisdiction; and (3) the Assistant United States Attorney made “improper, prejudicial and inflammatory” remarks during his closing argument. Little comment is necessary to dispose of Hall’s first contention. We have held that unexplained possession of recently stolen property is sufficient to allow the jury to infer that “the possessor stole the property”. Jenkins v. United States, 361 F.2d 615 (10th Cir. 1966) and United States v. Bennett, 356 F.2d 500 (7th Cir. 1966). Cf. Garrison v. United States, 353 F.2d 94 (10th Cir. 1965) and Gregory v. United States, 364 F.2d 210 (10th Cir. 1966). See also annotation in 56 A.L.R.2d, 1360-1363, and cf. Wilson v. United States, 162 U.S. 613, 16 S.Ct. 895, 40 L.Ed. 1090 (1896); Dunlop v. United States, 165 U.S. 486, 502, 17 S.Ct. 375, 41 L.Ed. 799, and Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825, 11 L.Ed.2d 887 (1963). The second contention apparently is that the evidence failed to show that the crime was committed within the “special maritime and territorial jurisdiction of the United States”. 18 U.S.C. § 661. We think the evidence is clear that the crime was committed at Fort Sill, Oklahoma which without question is within the Western Judicial District of Oklahoma and United States’ territorial jurisdiction. 80 Okla. Statutes 1961, § 4; 18 U.S.C. § 7; 28 U.S.C. § 116; and Johnson v. Yellow Cab Transit Co., 321 U.S. 383, 64 S.Ct. 622, 88 L.Ed. 814 (1944). We find no merit in Hall’s third contention that the Assistant United States Attorney’s remarks were improper. We have reviewed the entire argument and can find no prejudice in the allegedly prejudicial statements. In any event, no objection was made during argument or to the trial court, and therefore, the issue cannot be raised for the first time here." }, { "docid": "11231519", "title": "", "text": "wheel and Anaya lying down in the back seat. This evidence together with the offer by Garrison to sell the tire certainly shows some control by Garrison over the recently stolen car and was sufficient for the jury to infer that Garrison was at least an aider and abettor in the transportation of the car and, as such, had possession of it as his codefendant did. As in many Dyer Act cases the only evidence showing knowledge on the part of Garrison that the car transported was stolen was circumstantial. It is well settled that from the proof of the possession of a recently stolen motor vehicle, unless such possession is satisfactorily explained, the jury may properly infer that the possessor knew the car was stolen when he transported it in interstate commerce. Grandsinger v. United States, 10 Cir., 332 F.2d 80; Fitts v. United States, 10 Cir., 328 F.2d 844, cert. denied, 379 U.S. 851, 85 S.Ct. 96, 13 L.Ed.2d 55; Seefeldt v. United States, 10 Cir., 183 F.2d 713; Fitts v. United States, 10 Cir., 284 F.2d 108. Possession of a motor vehicle is evidenced by control over it and may be in one or more persons. The direct evidence set out above shows that Garrison did exercise some control over the vehicle and it was sufficient to prove possession in him as well as in his codefendant. The court carefully instructed the jury on “possession” and also on “aiding and abetting.” From all of the evidence the jury may very well have found that Garrison was either a principal or an aider and abettor and as either one had possession of the car and the jury then could have properly inferred from such possession, knowledge on his part that, at the time the car passed in interstate commerce, it was stolen. After the government completed its case in chief the defendant took the witness stand, first admitted numerous felony convictions and further testified: That he met his codefendant in Denver and rode with him in the car to Utah but denied knowledge that the car was stolen" }, { "docid": "13943774", "title": "", "text": "JAMES M. CARTER, Circuit Judge. Appellant, John V. Wolosyn, was convicted after a jury trial of four counts of interstate transportation of stolen motor vehicles in violation of the Dyer Act (18 U.S.C. § 2312), and sentenced to three years on each count, the sentences to run concurrently. He now appeals. We affirm. Appellant claims four grounds for reversal of his conviction. First, he claims the evidence presented by the government was insufficient to sustain his conviction under Rodgers v. United States, 402 F.2d 830 (9 Cir. 1968). In Rodgers the only evidence introduced by the government was the defendant’s recent possession of a stolen car and an apparently valid title presented when he sold the car. The court there held the evidence was insufficient to justify reliance on the inferences which may be drawn from unexplained possession of a recently stolen ear in another state. The instant case is clearly distinguishable from the situation involved in Rodgers. Here there was evidence that appellant, a used car dealer in Ohio who usually dealt in “junk” ears, possessed and sold, on four separate occasions, four late model Cadillacs in Tucson, Arizona; all four had been recently stolen from the area around Youngstown, Ohio, close to where appellant operated. Appellant also possessed stolen and fraudulent “titles” for the cars; each car had a false number on the doorpost which matched the number on the “title.” In light of this and the other evidence in the ease, we believe the trial court properly instructed the jury that it could infer from the evidence of unexplained possession in one state, of a recently stolen motor vehicle from another state, that appellant transported the vehicle in interstate commerce and knew it was stolen at the time of transportation. Jones v. United States, 378 F.2d 340 (9 Cir. 1967). We hold the evidence was sufficient to support the conviction; appellant’s contention is without merit. Second, appellant contends the trial court erred in not excluding the evidence from a police report as hearsay. The police report was a regular business record and was used for the limited" }, { "docid": "11231520", "title": "", "text": "10 Cir., 284 F.2d 108. Possession of a motor vehicle is evidenced by control over it and may be in one or more persons. The direct evidence set out above shows that Garrison did exercise some control over the vehicle and it was sufficient to prove possession in him as well as in his codefendant. The court carefully instructed the jury on “possession” and also on “aiding and abetting.” From all of the evidence the jury may very well have found that Garrison was either a principal or an aider and abettor and as either one had possession of the car and the jury then could have properly inferred from such possession, knowledge on his part that, at the time the car passed in interstate commerce, it was stolen. After the government completed its case in chief the defendant took the witness stand, first admitted numerous felony convictions and further testified: That he met his codefendant in Denver and rode with him in the car to Utah but denied knowledge that the car was stolen until after they arrived in Utah. He admitted buying gasoline on the trip but testified that he did not drive the car at any time. He also denied attempting to sell any parts off the car during the trip. As rebuttal, the government put the codefendant, Anaya, on the stand. He told about meeting Garrison in Denver; that Garrison told him about his desire to go to Reno, Nevada, and he told Garrison he could get a car and Garrison said, “Well, I’ll buy the gas, if you drive;” Garrison bought all of the gasoline on the trip; and he didn’t tell Garrison that the car was stolen until they got to Utah. An F.B.I. agent then took the stand and testified to a statement made to him by Anaya to the effect that both Garrison and Anaya had stolen the car in Denver, which was admitted only for impeachment of a conflicting part of Anaya’s testimony. Again, at the close of all the evidence, Garrison moved for a judgment of acquittal on the grounds" }, { "docid": "1301225", "title": "", "text": "bearing upon the matter, did not constitute plain error. Appellant also argues that the trial court erred in instructing the jury concerning the inferences which could be drawn from certain facts. The court instructed that possession of property recently stolen, if not satisfactorily explained, is ordinarily a circumstance from which the jury may reasonably draw the inference and find, in the light of surrounding circumstances shown by the evidence in the case, that the person in possession knew the property had been stolen. The court also instructed that possession in one state of property recently stolen in another state, if not satisfactorily explained, is ordinarily a circumstance from which the jury may reasonably draw the inference and find, in the light of surrounding circumstances shown by the evidence in the case, that the person in possession not only knew it to be stolen property, but also transported it, or caused it to be transported, in interstate commerce. Appellant likens this instruction to the instruction which was disapproved in Bollenbach v. United States, 326 U.S. 607, 609, 66 S.Ct. 402, 90 L.Ed. 350. The trial court there 'charged the jury that possession of stolen property in another state than that in which it was stolen shortly after the theft raises a “presumption” that the possessor was the thief and transported stolen property in interstate commerce, but that such “presumption” is subject to explanation and must be considered with all the testimony in the case. Again no objection was made to the giving of this instruction, nor was the giving of the instruction plain error. In any event, the instruction was correct. See Corey v. United States, 9 Cir., 305 F.2d 232, 238, n. 13; Morandy v. United States, 9 Cir., 170 F.2d 5, 6. Affirmed. I. Section 2312 reads as follows: “Whoever transports in interstate or foreign commerce a motor vehicle or aircraft, knowing the same to have been stolen, shall be fined not more than $5,000 or imprisoned not more than five years, or both.” . There was testimony that Jones had admitted that he had driven across the country" }, { "docid": "7679400", "title": "", "text": "MURRAH, Chief Judge. Earl Robert Hall was convicted by a jury of taking an automobile, with intent to steal, from Fort Sill, Oklahoma in violation of Section 661, Title 18, United States Code. The evidence showed that the car in question belonged to Michael Rokovena who was a member of the United States Army stationed at Fort Sill at the time of the theft. The car in question was last seen by the owner at Fort Sill where it had been parked. Three witnesses saw Hall driving a car identical with the one stolen shortly after its disappearance from Ft. Sill. An FBI agent testified Hall was driving the car, later identified by Ro-kovena as the stolen car, when he arrested Hall in connection with another investigation. See Hall v. United States, 10 Cir., 404 F.2d 1365. At this time the car was impounded. The conviction resulted in a two year sentence to run consecutively with another sentence now being served. Hall appeals alleging three errors: (1) the trial court erronsously instruct ed the jury that “Possession of property recently stolen, if not satisfactorily explained, is a circumstance from which the jury may reasonably draw the inference and find in the light of surrounding circumstances that the person in possession participated in some way in the theft of the property”; (2) the federal District Court lacked jurisdiction; and (3) the Assistant United States Attorney made “improper, prejudicial and inflammatory” remarks during his closing argument. Little comment is necessary to dispose of Hall’s first contention. We have held that unexplained possession of recently stolen property is sufficient to allow the jury to infer that “the possessor stole the property”. Jenkins v. United States, 361 F.2d 615 (10th Cir. 1966) and United States v. Bennett, 356 F.2d 500 (7th Cir. 1966). Cf. Garrison v. United States, 353 F.2d 94 (10th Cir. 1965) and Gregory v. United States, 364 F.2d 210 (10th Cir. 1966). See also annotation in 56 A.L.R.2d, 1360-1363, and cf. Wilson v. United States, 162 U.S. 613, 16 S.Ct. 895, 40 L.Ed. 1090 (1896); Dunlop v. United States, 165 U.S." }, { "docid": "12486233", "title": "", "text": "was not stolen because there was permission and consent granted in exchange for appellants’ forebearanee from exposing Hester as a homosexual. Appellants assert that the trial court erred in denying their motions for acquittal made at the conclusion of the government’s case-in-chief, and timely renewed thereafter, on the ground that the government had failed to establish by competent evidence each essential element of the offense charged. In considering the motion for acquittal, the trial court must view the evidence in the light most favorable to the government, together with inferences which may fairly be drawn therefrom, and then determine whether there is substantial evidence from which a jury might properly find the accused guilty beyond a reasonable doubt. This standard is applicable to each of the several elements of the offense. Cartwright v. United States, 10 Cir., 335 F.2d 919. To convict under 18 U.S.C. § 2312, the government must prove (1) that the vehicle was stolen, (2) that it was transported in interstate commerce, and (3) that such transportation was with knowledge that the vehicle was stolen. Allison v. United States, 10 Cir., 348 F.2d 152. From an examination of the record, it is apparent that there was sufficient evidence going to each essential ingredient of the offense charged. The testimony of Hester provides an adequate basis for the inference that the vehicle was in fact stolen by the appellants. Their possession of the automobile in Albuquerque and the prior interstate transportation are not disputed. The recent disappearance of the automobile in Charleston, and its subsequent identification in the possession of the appellants in Albuquerque permits an inference that appellants knew it was stolen and that they had transported it in interstate commerce. Garrison v. United States, 10 Cir., 353 F.2d 94; Reese v. United States, 10 Cir., 341 F.2d 90; Grandsinger v. United States, 10 Cir., 332 F.2d 80. The case was therefore properly presented to the jury for ultimate factual determination, and although there was a sharp conflict presented in the testimony, it is apparent that the jury, as is its prerogative, elected to disbelieve the appellants’" }, { "docid": "3338263", "title": "", "text": "at the corner of a parking lot as his friend entered the lot and stole a car in New Orleans. The two then drove to Birmingham, Alabama, where a service station operator testified that appellant was still a passenger in the car when the occupants thereof had the gasoline tank filled and drove off without paying. The crucial distinction in that case is that there appellant actually participated in the stealing of the car, possibly by acting as a lookout for his companion, or that the appellant there had formed a conspiracy with his companion to steal the ear. Moreover, the appellant was still with his companion in the car the next day and remained in the car even after his companion had left a filling station without paying for the car’s service. Thus Lambert involved not only association, but also evidence of participation in the illegal act. Here there is no evidence of participation. Neither does the government’s reliance on Garrison v. United States, 10 Cir, 1965, 353 F.2d 94, impress us because much more circumstantial evidence suggesting possession was presented in that case than is present here. In Garrison, defendant attempted to sell a tire from the car, defendant bought gasoline for the car, defendant directed his partner to drive the car when they left a motel, and defendant was later found in the front seat of the car while his partner was in the back seat. As the court there noted, this evidence “certainly shows some control by Garrison over the recently stolen car and was sufficient for the jury to infer that Garrison was at least an aider and abettor in the transportation of the car and, as such, had possession of it as his codefendant did.” No such circumstantial evidence of control is present in the instant case. A recent case in which the facts most closely parallel the facts here is Allison v. United States, 10 Cir, 1965, 348 F.2d 152. In Allison, a car was stolen in Springfield, Missouri, the night of July 11th. The morning of July 13th Allison was identified as" }, { "docid": "12486234", "title": "", "text": "vehicle was stolen. Allison v. United States, 10 Cir., 348 F.2d 152. From an examination of the record, it is apparent that there was sufficient evidence going to each essential ingredient of the offense charged. The testimony of Hester provides an adequate basis for the inference that the vehicle was in fact stolen by the appellants. Their possession of the automobile in Albuquerque and the prior interstate transportation are not disputed. The recent disappearance of the automobile in Charleston, and its subsequent identification in the possession of the appellants in Albuquerque permits an inference that appellants knew it was stolen and that they had transported it in interstate commerce. Garrison v. United States, 10 Cir., 353 F.2d 94; Reese v. United States, 10 Cir., 341 F.2d 90; Grandsinger v. United States, 10 Cir., 332 F.2d 80. The case was therefore properly presented to the jury for ultimate factual determination, and although there was a sharp conflict presented in the testimony, it is apparent that the jury, as is its prerogative, elected to disbelieve the appellants’ story and found that appellants stole the automobile. Cf. Reese v. United States, supra; Manning v. United States, 10 Cir., 215 F.2d 945. Our examination of the record reveals that there was sufficient evidence to sustain the verdict. Appellants urge that the trial court erred in refusing to inquire of the prospective jurors whether they would be prejudiced against the accused should they assert an act of homosexuality by Hester. An accused in a criminal case is entitled to be tried by an impartial jury and should be permitted suitable inquiry designed to ascertain any possible prejudice on the part of prospective jurors. The extent of the inquiry to be made in determining whether any such prejudice exists must of necessity be left to the sound discretion of the trial court. Connors v. United States, 158 U.S. 408, 15 S.Ct. 951, 39 L.Ed. 1033; Speak v. United States, 10 Cir., 161 F.2d 562; Rule 24, F.R.Cr.P. Here, the proposed voir dire question related to a possible attribution of homosexuality to the owner of the automobile" }, { "docid": "1952236", "title": "", "text": "renewed at the conclusion of the evidence and was again denied. The defendant lost the benefit of appellate review of the initial denial of his motion for judgment of acquittal by presenting evidence which supplied deficiencies in the government’s case. United States v. Wallace, 417 F.2d 522 (5 Cir. 1969). The appellant launches a full-scale attack on this rule. 8 Moore, Federal Practice, j[ 29.05, presents the arguments pro and con. We are not prepared to overturn the established rule of this circuit on this issue. When the motion was renewed it was properly denied. It has been held regularly and repetitively that unexplained possession of a vehicle recently stolen in another state permits, although it does not require, inferences that the possessor knew the vehicle was stolen and that he transported it in interstate commerce, e. g., Beufve v. United States, 374 F.2d 123 (5th Cir. 1967). Appellant urges that allowing the inferences to be drawn from unexplained possession is contrary to the rule that in a circumstantial evidence case the evidence must be such that the jury might reasonably find that it excluded every reasonable hypothesis except that of guilt, e. g., Riggs v. United States, 280 F.2d 949 (5th Cir. 1960). Whatever effect, if any, this argument might have in another case, in this case it overlooks that there was direct evidence in the form of Munnerlyn’s testimony, and the jury was entitled to choose between the differing versions he gave. Affirmed. . The jury can infer possession from the act of operating the vehicle. Some of Munnerlyn’s testimony tended to characterize appellant as the “mere hitchhiker” who troubled Judge Brown in Barfield v. United States, 229 F.2d 936 (5th Cir. 1956). But as discussed supra, there was other evidence tending to show appellant was much more deeply involved. . Of course, it is for the jury to decide whether, when explanations are offered by a defendant for his possession, they are to be accepted as credible. Beufve, supra; Broom v. United States, 342 F.2d 419 (5th Cir. 1965). ON PETITION FOR REHEARING PER CURIAM: It is" }, { "docid": "11231518", "title": "", "text": "offer to sell the tire, * * We believe the trial court was correct in its ruling. In addition to this particular bit of evidence pointed out by the trial court in its ruling, we find additional evidence to support the denial of the motion. At the time Garrison and Anaya were ordered to leave the Beehive Lodge, Brown testified that Garrison directed Anaya to go get the car, Anaya got the car and both then drove off in it with Anaya driving. Brown also described the car as a dark colored Plymouth station wagon. Beebe’s testimony reflects that a black station wagon bearing Colorado license plates parked in front of his motel about 2:00 o’clock a. m. and Garrison came to the motel front door and when he left the motel he got into this same described station wagon which was identified as the stolen car in question. The deputy sheriff later found this same car parked in front of the Beebe Motel with Garrison sitting in the front seat slumped over the steering wheel and Anaya lying down in the back seat. This evidence together with the offer by Garrison to sell the tire certainly shows some control by Garrison over the recently stolen car and was sufficient for the jury to infer that Garrison was at least an aider and abettor in the transportation of the car and, as such, had possession of it as his codefendant did. As in many Dyer Act cases the only evidence showing knowledge on the part of Garrison that the car transported was stolen was circumstantial. It is well settled that from the proof of the possession of a recently stolen motor vehicle, unless such possession is satisfactorily explained, the jury may properly infer that the possessor knew the car was stolen when he transported it in interstate commerce. Grandsinger v. United States, 10 Cir., 332 F.2d 80; Fitts v. United States, 10 Cir., 328 F.2d 844, cert. denied, 379 U.S. 851, 85 S.Ct. 96, 13 L.Ed.2d 55; Seefeldt v. United States, 10 Cir., 183 F.2d 713; Fitts v. United States," }, { "docid": "7134995", "title": "", "text": "MERRILL, Circuit Judge: Appellant stands convicted of interstate transportation of a stolen motor vehicle, 18 U.S.C. § 2312, and appeals from judgment. Appellant attacks the sufficiency of the proof. We find it sufficient. The evidence establishes that the owner of a 1960 Oldsmobile had it delivered to Morris Motors Company of Flagstaff, Arizona; that no one other than Morris Motors had any authorization to use the vehicle; that on the day following delivery it was placed on the company’s lot; that within two weeks the vehicle was discovered to be missing from the lot; that the manager of the company had not given anyone permission to take the vehicle. Appellant was in Flagstaff, Arizona, during the time that the vehicle was apparently taken. Within two weeks of the delivery of the car to Morris Motors the appellant was arrested while operating the vehicle in Las Vegas, Nevada. The foregoing evidence was sufficient to permit the trial jury to find that the automobile in question was a stolen vehicle. This being so the jury was entitled to draw the inference and find in the light of all the circumstances in the case that appellant, possessing the vehicle in the State of Nevada, not only knew it to be stolen property but also transported it or caused its transportation in interstate commerce from Arizona. Jones v. United States, 378 F.2d 340 (9th Cir. 1967); Morandy v. United States, 170 F.2d 5 (9th Cir. 1948), cert. denied, 336 U.S. 938, 69 S.Ct. 741, 93 L.Ed. 1097 (1949). Appellant objects, however, to the court’s instruction that “the proof need not show who may have stolen the motor vehicle.” He notes that in Morandy, supra, we justified the inference of knowing transportation as a corollary of the inference of theft permitted in larceny cases from unexplained possession of recently stolen goods. In Trav-ers v. United States, 118 U.S.App.D.C. 276, 335 F.2d 698 (1964), this was read to mean that the former inference must in all cases rest upon the latter. We disagree. The inference of knowing transportation in interstate commerce from unexplained possession of an" }, { "docid": "23513778", "title": "", "text": "recovered three days later at Goddard, Kansas. The Government introduced unrebutted evidence that Wanda Harris and Wheeler were together with Green in Pacoima early in the evening on May 26 and that Wanda Harris and Wheeler decided to go to Kansas City to get married. At about 9:00 p. m. Wheeler and Green left Miss Harris indicating that they were going to obtain an automobile from one Charles Jackson in Los Angeles. About an hour and a half later, they returned with the 1959 Ford, later identified as the stolen vehicle. Wheeler was driving. Shortly thereafter the three departed on their planned trip to Kansas City and “took turns” driving. When the vehicle was stopped in Kansas, Miss Harris was driving, Wheeler was beside her in the front seat and Green was sitting in the rear seat. Green’s undisputed testimony in his own behalf was to the effect that he and Wheeler met Charles Jackson at a “taco stand” in Pacoima where Wheeler, in Green’s presence, paid Jackson $30 to rent the Ford for fifteen days and the car was surrendered to him. Attacking the sufficiency of the evidence appellants contend that the Government failed to prove the necessary elements of the crime, i. e. that appellants knew the car was stolen and that they transported it in interstate commerce, i. e. see Allison v. United States, 10 Cir., 348 F.2d 152. In argument on the motions for acquittal at the close of the Government’s evidence and at the close of all the evidence appellants conceded the evidentiary rule that proof of possession of an automobile recently stolen in another state, unless satisfactorily explained, will support an inference that the possessor knew the vehicle was stolen and that he transported it in interstate commerce. See Garrison v. United States, 10 Cir., 353 F.2d 94; Fish v. United States, 10 Cir., 371 F.2d 438, 439; Allison v. United States, supra.; Reese v. United States, 10 Cir., 341 F.2d 90. But, they strenuously argued that the evidence was wholly insufficient to show that at the time the vehicle was stopped and they" }, { "docid": "18023965", "title": "", "text": "guns had been stolen. From the earliest days of our jurisprudence, proof that a person possessed recently stolen goods has been held relevant to prove that the possessor was the thief. Other explanations for his possession are possible; “nevertheless, the hypothesis that he was the taker is a sufficiently natural one to allow the fact of his possession to be considered evidentiary. There has never been any question of this.” (1 J. Wigmore, Evidence (3d ed. 1940) § 152, at 598.) From the fact that the possessor is the thief, the conclusion follows inescapably that he knew the goods were stolen and participated in their transportation from the site of the theft. (Corey v. United States, supra, 305 F.2d at 238.) The inferences appellant challenges meet the Leary-Turner due process test. Appellant’s final attack is really on the sufficiency of the evidence, claiming that, even if the inferences of knowledge and of transportation are reasonable, they are not so compelling as to support a jury verdict that requires a finding beyond a reasonable doubt. Appellant does not, however, have a good ease upon which to base such an attack, for the Government did not rely solely upon the inferences to establish this part of its case. The fact that appellant had been employed at the ranch of the robbery victim supports the inference that he was the thief or that he recognized the rifles and knew that they were stolen. Ample evidence was introduced to show that defendant carried the weapons over any number of state lines. Moreover, the inferences involved here are no less compelling than the inference approved in Turner, that possessors of heroin knew of its illegal importation because no heroin is produced domestically. We cannot say that the jury could not have found all the elements of the crimes charged beyond a reasonable doubt. The judgment is affirmed. . The actual text of the instruction was much more fully developed; the instructions were drawn from § 10.10, Matties & Devitt, Fed.Jury Pract. and Xnstr. [now substantially embodied in § 13.11, Devitt & Blackmer, Fed.Jury Pract. and" }, { "docid": "23513779", "title": "", "text": "days and the car was surrendered to him. Attacking the sufficiency of the evidence appellants contend that the Government failed to prove the necessary elements of the crime, i. e. that appellants knew the car was stolen and that they transported it in interstate commerce, i. e. see Allison v. United States, 10 Cir., 348 F.2d 152. In argument on the motions for acquittal at the close of the Government’s evidence and at the close of all the evidence appellants conceded the evidentiary rule that proof of possession of an automobile recently stolen in another state, unless satisfactorily explained, will support an inference that the possessor knew the vehicle was stolen and that he transported it in interstate commerce. See Garrison v. United States, 10 Cir., 353 F.2d 94; Fish v. United States, 10 Cir., 371 F.2d 438, 439; Allison v. United States, supra.; Reese v. United States, 10 Cir., 341 F.2d 90. But, they strenuously argued that the evidence was wholly insufficient to show that at the time the vehicle was stopped and they were apprehended they were exercising “control, dominion or authority” over the vehicle as required to effect the necessary “possession”. They correctly contend that being a mere passenger in a stolen automobile moving in interstate commerce does not prove requisite possession so as to give rise to the presumption of guilty knowledge. And, of course, if the premise of possession fails, the presumptions must necessarily fall with it. We think, however, that unlike Allison v. United States, supra, and like Garrison v. United States, supra, the evidence substantially supports an inference either that the appellants were jointly exercising control, dominion and authority over the stolen car or that at least Wheeler was in control and Green was an “aider and abettor” within the meaning of the statute. Moreover, appellants’ contention that they rented the car from Jackson and were in possession without guilty knowledge is inconsistent with their denial of requisite possession. The jury was entitled to resolve the inconsistency. On the motion for new trial appellants complained of the correctness of the court’s instructions on" }, { "docid": "2192118", "title": "", "text": "he had been working in Bozeman, Montana for a traveling carnival under the name of Arthur Jerome Nutter and had traveled from Bozeman to Santa Fe, where he had been for approximately a week. Matthews’ version of the trip was that while in Bozeman, Cox had represented to him that the management of the carnival had directed them to proceed to Santa Fe, New Mexico, but automobile for the purpose of obtaining some needed parts for various carnival rides; that Cox, with Matthews as a passenger, had driven the Ford from Bozeman to Santa Fe in approximately two days and then disappeared, apparently abandoning the automobile; that he, Matthews, finally decided the safest thing for him was to return the car to Bozeman, and that upon leaving Santa Fe his intent was to drive directly to Bozeman, even though he was traveling in the opposite direction when he went to Tueumcari. Cox was not available as a witness at the trial. The argument here seems to be that without the testimony of Cox, who was in lawful possession of the car, to show whether or not he consented to Matthews’ use of the car, an essential element of the crime is lacking and the motion for acquittal should have been granted. The law is well established that proof of possession of a recently stolen automobile in a state other than the one where it was stolen, unless such possession is satisfactorily explained, will sustain an inference that the one in possession transported it interstate knowing it to have been stolen. Rogers v. United States, 416 F.2d 926 (10th Cir. 1969); Wheeler v. United States, 382 F.2d 998 (10th Cir. 1967); Fish v. United States, 371 F.2d 438 (10th Cir. 1967); Williams v. United States, 371 F.2d 141 (10th Cir. 1967); Gregory v. United States, 364 F.2d 210 (10th Cir. 1966), cert. denied, 385 U.S. 962, 87 S.Ct. 405, 17 L.Ed.2d 307; Maguire v. United States, 358 F.2d 442 (10th Cir. 1966), cert. denied, Giles v. United States, 385 U.S. 870, 87 S.Ct. 138, 17 L.Ed.2d 97; Allison v. United States," }, { "docid": "11547573", "title": "", "text": "no competent evidence from which the jury could infer that he had possession of the vehicle, knowing either that it was stolen or that it had been transported in interstate commerce. Finally, the defendant argues that there was no showing that the car rented in Florida was the same car that Hanson was driving at the time he was arrested. For the Government to prevail on the count charging a violation of 18 U.S.C. § 2312, there must be proof that the automobile in question was stolen, that the defendant knew the automobile was stolen, and that the stolen automobile was transported in interstate commerce. We believe that there was sufficient evidence, both direct and circumstantial, to satisfy these elements of the offense. Settled precedent has established that a rented automobile which has not been returned to its owner, but has been converted to the lessee’s own use, is a stolen vehicle within the meaning of 18 U.S.C. § 2312. United States v. Turley, 352 U.S. 407, 77 S.Ct. 397, 1 L.Ed.2d 430 (1957). Moreover, from the evidence of possession of a recently stolen motor vehicle, unless such possession is satisfactorily explained, an inference may properly be drawn that the possessor knew the car was stolen. United States v. Bennett, 356 F.2d 500 (7th Cir. 1965), cert, denied, 384 U.S. 975, 86 S.Ct. 1868, 16 L.Ed.2d 685 (1966). Although there was no direct evidence adduced to show either that the defendant rented the automobile in question from the agency in Tampa, Florida, or that he drove it to East St. Louis, Illinois, the circumstantial evidence was sufficient for the jury to draw such inferences. The owner of the Triple A lot testified that the defendant brought a white Mustang to his place of business at the end of March, 1966. Hanson testified that the defendant took him to a Mustang parked on the Triple A lot. He further testified that the defendant had keys to the car, that he started the engine, and that he gave possession of the car to Hanson. The car that Hanson was driving when he" }, { "docid": "22050615", "title": "", "text": "the car was “hid away”, and Meisenzahl testified that the car, without license tags, was in a remote place. The contradictory stories given as to the method of purchase and the small price to be paid for the vehicle are further indicia that the car was stolen and had retained its stolen character. Finally we consider the complaint that the government failed to prove Odom’s guilty knowledge and conclude that there was ample evidence on which the jury could base its finding. Odom’s unwillingness to identify witnesses to his manner of obtaining the car, his false explanations as to when and how he obtained possession, the small price he said he was to pay for the vehicle, and his conduct when ordered to pull over by police officers are substantial facts which can yield a reasonable conclusion by the jury that Odom knew the car was stolen. Knowledge, it must be remembered, can be established by circumstantial as well as direct evidence. The necessary and applicable scienter of Odom is spelled out in Pilgrim, supra, 266 F.2d at 488, where the Court quoted as follows from Loftus v. United States, 7 Cir. 1931, 46 F.2d 841, 845. “ ‘Possession of the fruits of crime recently after its commission justifies the inference that the possession is guilty possession, and, though only prima facie evidence of guilt, may be of controlling weight unless explained by the circumstances or accounted for in some way consistent with innocence. It is a question for the jury whether the inference of appellant’s guilty reception of the automobile was overcome by the explanation.’ ” See Schwachter, supra, 237 F.2d at 643. In Pilgrim, supra, a defendant prosecuted under the Dyer Act for receiving a stolen vehicle not only argued that the automobile had ceased to be a part of interstate before he made his purchase, but also contended that there was no evidence that he knew it had ever been in interstate commerce. The Court held that such awareness is not vital to one charged under the Dyer Act, for “[t]he Dyer Act is violated when one" } ]

[ { "docid": "3550022", "title": "", "text": "RONEY, Senior Circuit Judge: This case questions the proper venue of an age discrimination claim against a Government agency. Since there is no venue provision in the Age Discrimination in Employment Act itself, we hold that the general venue statute applies and that venue of this case was in the Middle District of Florida where the plaintiff lives. In so doing, we reject the Government’s argument and the district court’s decision that the venue provision of Title VII of the Civil Rights Act should be read into the age discrimination statute. Thus, we reverse the judgment of dismissal for lack of venue and remand to the district court for further proceedings. Eugene M. Rebar was a civilian employee of the United States Army in Germany. He asserts a cause of action under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 633a and 5 U.S.C. §§ 7702 and 7703, alleging age discrimination when he was terminated from that employment. The merits of his cause of action are not before this Court, only the issue of proper venue. Representing himself, Rebar initially filed a complaint in the United States District Court for the District of Columbia. That court dismissed the case on the Government’s motion, holding that the general venue statute, 28 U.S.C. § 1391(e), applied in federal ADEA actions and consequently venue did not lie in the District of Columbia. Rebar v. Huston, No. 88-0134 at 2-3 (D.D.C. Aug. 18, 1988). Thereafter, Rebar filed this case in the Middle District of Florida asserting jurisdiction under that provision of the general venue statute which permits an action against an employee, officer or agency of the United States to be brought in the judicial district where “the plaintiff resides if no real property is involved in the action.” The Secretary of the Army and other Government employees are defendants in this action, there is no real property involved, and the plaintiff resides in the Middle District of Florida. The defendants admit that this is the proper venue of this case if the general venue statute applies. The district court held, however," } ]

[ { "docid": "15035238", "title": "", "text": "1079 (1991) (codified at 29 U.S.C. § 626(e) (Supp.1995)) (“1991 Act”), eliminated the ADEA’s prior two/three-year limitations period and instead provided that an ADEA action must be filed within ninety days of the EEOC’s final determination. Accordingly, the court granted the motion and dismissed the case, finding that appellant had exceeded the 90-day period for filing his case after termination of his EEOC claim. On appeal, appellant concedes that the amended version of the ADEA applies to his suit. He argues, however, that the amended statute did not eliminate the former statute’s two/three-year limitations period, but merely added the 90-day provision to expand the rights of plaintiffs who failed to comply with the two/three year requirements. Prior to the passage of the Civil Rights Act of 1991, the ADEA statute of limitations required plaintiffs to file suit within two years of the alleged discriminatory act, or within three years if the claim involved a willful violation, regardless of whether the EEOC had ruled on their administrative charges. See 29 U.S.C. § 626(e) (1988) (su perseded 1991); 29 U.S.C. § 255 (1982). Section 626(e) of the former statute expressly incorporated the two/three-year statute of limitations period applicable to claims under the Fair Labor Standards Act (FLSA), as set forth in section 6 of the Portal-to-Portal Act, 29 U.S.C. § 255. Subsequently, on November 21, 1991, Congress amended the statute of limitations through the Civil Rights Act of 1991, by deleting the reference to § 255 and thereby eliminating the two/three-year statute of limitations period. The amended provision provides that a complaint may be filed within 90 days after the complainant received a “right-to-sue” letter from the EEOC, regardless of how long after the alleged violation the letter was received. 29 U.S.C. § 626(e) (Supp. 1995). Section 626(b), however, remains unaltered, and according to appellant, still imports into the ADEA the two/three-year limitations period created by 29 U.S.C. § 255. Section 626(b) adopts the “procedures” set forth in 29 U.S.C. § 216 of the FLSA. Section 216(c), in turn, incorporates “the statutes of limitations provided in section 255(a) of [the FLSA],” which" }, { "docid": "17791734", "title": "", "text": "‘actually designed to accommodate a balance of interests very similar to that at stake’ here and ‘is in fact, an analogy’ to [ADEA] section 633a.” Id. at 925 (quoting DelCostello v. International Bhd. of Teamsters, 462 U.S. 151, 169, 103 S.Ct. 2281, 2293, 76 L.Ed.2d 476 (1983)). Mr. Jones does not appeal the dismissal of his non-age based discrimination claims. His appeal of the age discrimination claim contends his complaint was timely if considered under the six-year statute of limitations of 28 U.S.C. § 2401(a). DISCUSSION Statutory limitations on suits against the government involve the government’s waiver of sovereign immunity. See Irwin v. Department of Veterans Affairs, 498 U.S. 89, 94, 111 S.Ct. 453, 456-57, 112 L.Ed.2d 435 (1990); United States v. Mottaz, 476 U.S. 834, 841, 106 S.Ct. 2224, 2229, 90 L.Ed.2d 841 (1986). As such, a rule more favorable to litigants against the government than to litigants against private employers seems unlikely. See Irwin, 498 U.S. at 96, 111 S.Ct. at 457-58 (refusing to extend the doctrine of equitable tolling in a federal sector Title VII action beyond general principles applicable to private employer actions). Because of congressional silence as to the appropriate limitations period for ADEA claims against the federal government, we are asked to choose between two statutory limitations periods. We choose the one most likely to reflect Congress’s balancing of the unique interests of a federal employer with the concerns of discrimination in government employment. The ADEA provides a federal employee two alternative routes for pursuing an age discrimination claim. An employee may bring the action directly to federal district court in the first instance, so long as the employee gives the EEOC notice of intent to sue within 180 days of the alleged discriminatory act and then waits thirty days before filing the action. 29 U.S.C. § 633a(d); Stevens v. Department of Treasury, 500 U.S. 1, 7, 111 S.Ct. 1562, 1566-67, 114 L.Ed.2d 1 (1991). Conversely, an employee may invoke the EEOC’s administrative process and then file a civil action in federal district court if unsatisfied with administrative remedies. 29 U.S.C. §§ 633a(b)-(c). Mr." }, { "docid": "1412582", "title": "", "text": "added an entirely new section, 29 U.S.C. § 633a, to prohibit age discrimination in federal employment. The ADEA contains a two or three year statute of limitations (two years generally and three years for willful violations) for claims against private employers. See 29 U.S.C. § 626(e)(1). However, the ADEA contains no statute of limitations for federal employees who pursue administrative relief before proceeding to U.S. District Court. Thus, this Court must determine the proper statute of limitations for such actions. The Supreme Court has made clear that where Congress has created a cause of action, but has not specified a period-of limitation, courts should “not ordinarily assume that Congress intended-there to be no time limit on actions at all.” DelCostello v. International Broth, of Teamsters, 462 U.S. 161, 158, 103 S.Ct. 2281, 2287, 76 L.Ed.2d 476 (1983). Instead, courts should “ ‘borrow the most suitable statute or other rule of timeliness from some other source.” Id. Generally, courts should borrow “the local time limitation most analogous to the case at hand.” Lamp/, Pleva, Lipkind, et al. v. Gilbertson, — U.S. -, 111 S.Ct. 2773, 2778, 115 L.Ed.2d 321 (1991). However, when the operation of a state limitations period would frustrate the policies embraced by the federal enactment, courts should look to federal law for a suitable period. Lampf — U.S. at -, 111 S.Ct. at 2778; DelCostello, 462 U.S. at 162, 103 S.Ct. at 2289. Moreover, borrowing from another federal source is particularly appropriate when the borrowed statute was “designed to accommodate a balance of interests very similar to that at stake.” Reed v. United Transp. Union, 488 U.S. 319, 324, 109 S.Ct. 621, 625, 102 L.Ed.2d 665 (1989). Neither the Supreme Court nor the Eleventh Circuit have addressed the issue of what limitations period should apply to ADEA claims by federal employees. The courts that have addressed the issue have basically reached three conclusions. First, some courts have applied the limitations period for analogous claims of employment discrimination filed by federal employees under Title VII of the 1964 Civil Rights Act (“Title VIP), as amended, 42 U.S.C. § 2000e," }, { "docid": "8869840", "title": "", "text": "that the congressional purpose in so structuring federal ADEA actions was to allow federal employees either a longer or a shorter statute of limitations period than the two-year and three-year periods applicable to nonfederal employees under 29 U.S.C. § 626(e). This Court is of the opinion that despite the literal wording of § 633a(f), the two-year and three-year statutes of limitations under § 626(e) apply to ADEA actions by federal employees. The instant suit was filed on November 29, 1985, more or less six years after plaintiff’s cause of action accrued on November 28, 1979. The action was not timely filed under 29 U.S.C. § 626. Alternatively, the Court notes that 29 U.S.C. § 633a is patterned after federal civil rights actions under Title VII. “When Congress has not established a time limitation for a federal cause of action, the settled practice has been to adopt a local time limitation as federal law if it is not inconsistent with federal law or policy to do so.” Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 1942, 85 L.Ed.2d 254 (1985). The most closely analogous state statute would be the Tennessee one-year statute for civil rights violations. Tenn.Code Ann. § 28-3-104(a). Alternatively, plaintiff's action for a failure of TVA to consider her for an advanced position, might be construed as some sort of property interest to which the three-year Tennessee statute of limitations would apply. Tenn.Code Ann. § 28-3-105. If it is inconsistent with federal policy to have different statutes of limitations for federal employees in different states, this Court would apply the most clearly analogous federal limitation, i.e., the ADEA limita tions period for nonfederal employees expressed in 29 U.S.C. § 626(e). Plaintiff filed an action with the EEOC. The final decision of the EEOC stated, “If judicial review is desired, proceedings must be instituted in U.S. District Court within six years after the right of action first accrued.” [Doc. 14, Exh. 3 at 3]. Defendant TVA maintains that it cannot be bound by an erroneous statement of the EEOC concerning the applicable statute of limitations. However, there appears to" }, { "docid": "1412589", "title": "", "text": "(quoting Soriano v. United States, 352 U.S. 270, 276, 77 S.Ct. 269, 273, 1 L.Ed.2d 306 (1957), but must be “ ‘unequivocally expressed.’” United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 1351, 63 L.Ed.2d 607 (1980). Thus, “Without a clear manifestation from Congress that it intended for age discrimination claims to have a radically longer limitation period than for claims of race, sex, color and national origin discrimination in the federal workplace,” the Court will not imply such an intent. Lavery, 918 F.2d at 1027. Finally, the Court finds that the specific language of 29 U.S.C. § 633a prevents the application of the two and three year limitations periods for claims of employment discrimination filed by private employees under 29 U.S.C. § 626(e). Section 633a(f) clearly states that “[a]ny personnel action of any department, agency, other entity referred to in subsection (a) of this section shall not be subject to, or affected by any provision of [the ADEA],” other than an exception not relevant here. . 29 U.S.C. § 633a(f). Moreover, the Supreme Court stated in Nakshian that section 633a is “self-contained and unaffected by other sections, including those governing procedures applicable in actions against private employers.” Nakshian, 453 U.S. at 168, 101 S.Ct. at 2705 (1981). Thus, the Court finds that it should .apply the Title VII statute of limitations to age discrimination claims brought by federal employees under 29 U.S.C. § 633a. However, a question exists as to what the actual statute of limitations is under Title VII. Pri- or to the passage of the 1991 Civil Rights Act, Pub.L. 102-166, signed by President Bush on November 21, 1991, a federal employee had to file a Title VII action in U.S. District Court within thirty (30) days of receipt of an adverse administrative determination by the EEOC. See Irwin v. Veterans Admin., 498 U.S. 89, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990). Subsequent to the effective date of the 1991 Civil Rights Act, a federal employee must now file a Title VII action within ninety (90) days of a notice of final action by the" }, { "docid": "16447397", "title": "", "text": "distinct statutory section — one that contained its own enforcement mechanisms. See Fair Labor Standards Amendments of 1974, Pub.L. No. 93-259, § 28(b), 88 Stat. 74, codified at 29 U.S.C. § 633a; see also Nakshian, 453 U.S. at 166, 101 S.Ct. 2698. This dichotomy persists. The general provisions of the ADEA (applicable to private employers and to state and local governments) originally embodied an enforcement scheme that resembled the FLSA’s. See Lavery v. Marsh, 918 F.2d 1022, 1024 (1st Cir.1990). This included incorporation of the FLSA’s statute of limitations. 29 U.S.C. § 626(e) (amended 1991) (incorporating by reference 29 U.S.C. § 255). The FLSA model set a limitations period of two years after the date of injury for general violations and three years for willful violations. See id. § 255(a). In 1991, Congress removed the FLSA’s incorporated statute of limitations from this portion of the ADEA and inserted a limitations scheme akin to that- governing Title VII actions. See Civil Rights Act of 1991, Pub.L. No. 102-166, § 115, 105 Stat. 1071, 1079, codified as amended at 29 U.S.C. § 626(e). Under this reconstructed framework, there is no external requirement that a federal civil action predicated on an ADEA violation be filed within a specified time following the date of the discriminatory act or practice; rather, the applicable timing requirements relate to, and derive from, the administrative process. An employee must file an administrative complaint within 180 days of the alleged discrimination in order to preserve his or her claim. 29 U.S.C. § 626(d)(1). This filing vivifies the administrative process, and the date of injury has no further bearing on the question of timeliness. The applicable limitations period begins to run at the end of the administrative process: from that point, the employee has 90 days within which to bring suit. Id. § 626(e). The legislative scheme for ADEA claims brought by federal employees is materially different. Congress provided dual means of enforcement for federal workers and left the choice between them to the claimant. On the one hand, a federal employee may invoke the EEOC’s administrative process and thereafter" }, { "docid": "12579569", "title": "", "text": "untimely, and rejected their alternative argument that the defendants had waived the right to assert the statute of limitations defense. The plaintiffs appeal. II. The plaintiffs argue that the district court should have applied the statute of limitations in effect under the ADEA prior to the enactment of the Civil Rights Act of 1991. Under the rules in place prior to the Civil Rights Act of 1991, a plaintiff in an age discrimination case generally had two years after the action accrued to file a claim, and three years if the claim alleged a “willful violation.” 29 U.S.C.A. § 626(e) (incorporating limitation periods from the Portal-to-Por tal Pay Act, 29 U.S.C. § 255(a)) (superseded 1991). The plaintiffs argue that they alleged a “willful violation” of the ADEA and that the three-year limitation period applied. Thus, they contend that the refiling of their actions in July 1993 was well within the three-year period given that their claims accrued when they were terminated in April and August of 1991. The defendants argue that the district court properly applied the 90-day limitation period found in section 115 of the Civil Rights Act of 1991. Pub.L. 102-166, 105 Stat. 1079 (codified at 29 U.S.C.A. § 626(e) (Supp.1995)). This “new” statute of limitations requires the plaintiff to bring a suit under the ADEA within 90 days after receiving notice that the administrative proceeding has terminated. Id. The plaintiffs contend that the 90-day limitation period cannot be applied “retroactively” to cases that accrued before the Civil Rights Act of 1991 took effect. While the plaintiffs acknowledge that “[c]hanges in procedural rules may often be applied in suits arising before their enactment without raising concerns about retroac-tivity,” Landgraf v. USI Film Prod., Inc., - U.S. -, -, 114 S.Ct. 1483, 1502, 128 L.Ed.2d 229 (1994), the plaintiffs contend that we should treat the statute of limitations in this ease as a substantive limit on their case instead of a mere procedural limit on the remedy. We very recently rejected the substance of plaintiffs’ argument when we noted that the limitation period from the Civil Rights Act of" }, { "docid": "8376398", "title": "", "text": "the same thirty-day period of limitations as applies to federal employee claims of discrimination based on race, color, religion, sex or national origin. See 42 U.S.C. § 2000e-16(c) (“Title VII”). Lavery countered that, as there is no express period of limitations in section 633a, the catchall six-year statute of limitations for actions against the United States applies, and his suit was timely. See 28 U.S.C. § 2401(a). In the alternative, Lav-ery argued he was entitled to equitable tolling if the court determined the limitations period to be thirty days. The district court did determine that a section 633a action is subject to a thirty-day limitations period but allowed Lavery the further opportunity to show cause why he was entitled to equitable relief from the period of limitations. Lavery’s subsequent motion for equitable relief was denied, and the defendant’s motion to dismiss was granted. II. THE STATUTE OF LIMITATIONS The ADEA, as enacted in 1967, prohibited discrimination in private employment on the basis of age, 29 U.S.C. §§ 621 et seq., incorporating the enforcement scheme of the Fair Labor Standards Act (“FLSA”). In 1974, Congress extended the Act’s coverage to state and local government employees by amending the definition of “employer”; it “added an entirely new section, § 15 [29 U.S.C. § 633a], to address the problems of age discrimination in federal employment. Here Congress deliberately prescribed a distinct statutory scheme applicable only to the federal sector, and one based not on the FLSA but ... on Title VII” of the Civil Rights Act of 1964. Lehman v. Nakshian, 453 U.S. 156, 166-167, 101 S.Ct. 2698, 2704-2705, 69 L.Ed.2d 548 (1981). Although the ADEA contains a statute of limitations for claims against private employers, 29 U.S.C. § 626(e)(1) (two years or, for willful violations, three years), there is no express limitations provision in section 633a. This silence results in the precise question we must decide, i.e., within what length of time after a final agency decision must a complaint alleging age discrimination in federal employment be filed in district court. We are compelled to note at the outset that there are" }, { "docid": "17791733", "title": "", "text": "se complaint in the United States District Court for the District of Colorado on September 28,1990, but that complaint was later dismissed without prejudice for failure to properly serve the Postmaster General and the United States under Fed.R.Civ.P. 4(d)(4) and (5). Jones v. Frank, No. 90-B-1743 (D.Colo. Aug. 16, 1991) (bench ruling), aff'd, 973 F.2d 872 (10th Cir.1992). On September 16, 1991, almost five years after the alleged discriminatory act and over one year after the final decision of the EEOC, Mr. Jones refiled his discrimination complaint in district court. The Postmaster General moved to dismiss the action as time-barred. The district court granted this motion, holding the thirty-day limitation period then applicable to federal employees filing suit under Title VII, 42 U.S.C. § 2000e-16(e), applied to bar all of Mr. Jones’s claims. Jones v. Frank, 819 F.Supp. 923 (D.Colo.1993). As to the age discrimination claim, the district court adopted the same limitations period as found in Title VII’s federal employment provisions. “[B]orrow-ing [Title VII] section 2000e-16’s limitation period is appropriate because section 2000e-16 was ‘actually designed to accommodate a balance of interests very similar to that at stake’ here and ‘is in fact, an analogy’ to [ADEA] section 633a.” Id. at 925 (quoting DelCostello v. International Bhd. of Teamsters, 462 U.S. 151, 169, 103 S.Ct. 2281, 2293, 76 L.Ed.2d 476 (1983)). Mr. Jones does not appeal the dismissal of his non-age based discrimination claims. His appeal of the age discrimination claim contends his complaint was timely if considered under the six-year statute of limitations of 28 U.S.C. § 2401(a). DISCUSSION Statutory limitations on suits against the government involve the government’s waiver of sovereign immunity. See Irwin v. Department of Veterans Affairs, 498 U.S. 89, 94, 111 S.Ct. 453, 456-57, 112 L.Ed.2d 435 (1990); United States v. Mottaz, 476 U.S. 834, 841, 106 S.Ct. 2224, 2229, 90 L.Ed.2d 841 (1986). As such, a rule more favorable to litigants against the government than to litigants against private employers seems unlikely. See Irwin, 498 U.S. at 96, 111 S.Ct. at 457-58 (refusing to extend the doctrine of equitable tolling in a federal" }, { "docid": "11412690", "title": "", "text": "the statute of limitations. Id. at 967. On reargument, the court reconsidered its statute of limitations holding and ruled that Long’s ADEA claims were barred in their entirety by the limitations period applicable to Title VII actions by federal employees, 42 U.S.C. § 2000e-16(c), which the court found appropriate to borrow for claims under ADEA. Long II, 813 F.Supp. at 972. DISCUSSION I. Statute of Limitations A federal employee claiming age discrimination has the option of bringing suit in federal court in the first instance, or of pursuing administrative remedies before the EEOC and then suing in federal court if not satisfied with the administrative results. See 29 U.S.C. § 633a(b) and (c). With respect to civil actions brought directly to federal court, the federal employee must give the EEOC notice of intent to sue within 180 days of the alleged discriminatory conduct, and then must wait 30 days before filing the suit. Id. § 633a(d). The ADEA provisions applicable to federal employees who pursue administrative remedies before initiating a private suit do not, however, contain an express statute of limitations to govern how long after final agency action the employee has to file a civil action. We must therefore “borrow” an appropriate limitations period from an analogous state or federal provision. Stevens v. Department of Treasury, 500 U.S. 1, 7, 111 S.Ct. 1562, 1567, 114 L.Ed.2d 1 (1991). Federal courts are divided on the issue of the appropriate statute of limitations to apply to ADEA civil actions brought by federal employees after administrative remedies are complete. Compare Lavery v. Marsh, 918 F.2d 1022, 1025-27 (1st Cir.1990); Strazdas v. Baker, 689 F.Supp. 310, 312 (S.D.N.Y.1988); Healy v. United States Postal Serv., 677 F.Supp. 1284, 1289-90 (E.D.N.Y.1987) (all borrowing thirty day limitations period applicable to Title VII actions) with Lubniewski v. Lehman, 891 F.2d 216, 221 (9th Cir.1989) (applying six year catch-all period of 28 U.S.C. § 2401(a)) and with Coleman v. Nolan, 693 F.Supp. 1544, 1548 (S.D.N.Y.1988) (applying two and three year period applicable to ADEA actions brought by private employees). This court previously has discussed the issue, and intimated" }, { "docid": "14574521", "title": "", "text": "is whether equitable tolling applies to this limitations period based on language from the EEOC decision advising plaintiff that he may have six years within which to bring suit. Recently, the Supreme Court held that equitable tolling principles apply in actions against the United States just as they apply in suits between private parties. Irwin v. Veterans Administration, 498 U.S. 89, 94-95, 111 S.Ct: 453, 457, 112 L.Ed.2d 435 (1990). However, the Irwin Court went on to explain the traditional limits on the doctrine of equitable tolling: Federal courts have typically extended equitable relief only sparingly. We have allowed equitable tolling in situations where the claimant has actively pursued his judicial remedies by filing a defective pleading during the statutory period, or where the complainant has been induced or tricked by his adversary’s misconduct into allowing the filing deadline to pass. We have generally been much less for giving in receiving late filings where the claimant failed to exercise due diligence in preserving his legal rights. Baldwin County Welcome Center v. Brown, 466 U.S. 147, 151, 104 S.Ct. 1723, 1725, 80 L.Ed.2d 196 (1984). Because the time limits imposed by Congress in a suit against the Government involve a waiver of sovereign immunity, it is evident that no more favorable tolling doctrine may be employed against the Government than is employed in suits between private litigants. Irwin, 498 U.S. at 96, 111 S.Ct. at 457-58; see also Cerbone v. International Ladies’ Garment Workers’ Union, 768 F.2d 45, 48-49 (2d Cir.1985) (discussing “extraordinary circumstances” where court may equitably toll time constraints of ADEA). When the EEOC issued its decision denying plaintiff Long’s age discrimination claims, the agency advised him as follows: If any of your claims were based on the Age Discrimination In Employment Act of 1967 (29 U.S.C. § 633a), AS TO THOSE CLAIMS ONLY, you MAY have up to six years after the right of action first accrued in which to file a civil action. (See Declaration of Charles Dudek, Appeals Review Coordinator, Exh. I) (emphasis in original). The First Circuit has found that identical language in an EEOC" }, { "docid": "1412595", "title": "", "text": "days. 29 U.S.C. § 626(e). . As discussed in note one, with the passage of the 1991 Civil Rights Act, private employees who seek administrative review must now file their ADEA claim within the same limitations period that applies to Title VII claims, which is 90 days. See 29 U.S.C.' § 626(e). . The Court also distinguishes the Eleventh Circuit’s recent decision in Rebar v. Marsh, 959 F.2d 216 (11th Cir.1992), applying the general venue provision under 28 U.S.C. § 1391(e) to actions under 29 U.S.C. § 633a. That decision merely addresses the venue in which a federal employee may litigate an ADEA claim. It does not expand the scope of actions which a plaintiff may file against the United States, as does applying the general catch-all statute of limitations. Thus, applying the general catch-all venue provision does not constitute a waiver of sovereign immunity, and therefore need not be strictly construed. On the other hand, applying the general catch-all statute of limitations does constitute a waiver of sovereign immunity, see Irwin v. Veterans Administration, 498 U.S. 89, 94, 111 S.Ct. 453, 456, 112 L.Ed.2d 435 (1990), and therefore, must be strictly construed. See Nakshian, 453 U.S. at 161, 101 S.Ct. at 2702; Mitchell, 445 U.S. at 538, 100. S.Ct. at 1351-52; Lavery, 918 F.2d at 1027. . Again, as discussed in note one, with the passage of the 1991 Civil Rights Act, private employees who seek administrative review must now file their ADEA claim within the same limitations period that applies to Title VII claims, which is 90 days. See 29 U.S.C. § 626(e). . See Plaintiff's complaint, captioned Betty Trew Taylor v. Wendell L. Payne and J.L. Bailey, Jr. attached as Exhibit E to Defendant’s Motion to Dismiss or in the alternative for Summary Judgment and to Strike Jury Demand." }, { "docid": "11010224", "title": "", "text": "is no just reason for delay. Fed. R.Civ.P. 54(b). Because an entry under Rule 54(b) constitutes a final judgment, the judgment is immediately appealable. Here Edwards immediately appealed the district court's judgment that one of his claims involving events from 1986 was time barred. . There are two routes a person may take when they choose to pursue an age discrimination claim against the government. First, the person may seek resolution through the EEOC administrative process and file an action in federal court only if unsatisfied with the results obtained from the EEOC. 29 U.S.C. § 633a(b). In the alternative, the claimant may bypass the EEOC and directly institute suit in federal court. 29 U.S.C. § 633a(c). The latter is the course of action Edwards chose to pursue in bringing his age discrimination claim against HHS. . Section 633a in pertinent part states: All personnel actions affecting employees or applicants for employment who are at least 40 years of age ... shall be made free from any discrimination based on age. . The parties have subsequently settled the appellant's other claim based on the 1990 events. . Section 626(e) incorporates by reference the statute of limitations under § 255, which is to be applied in ADEA actions against private employers when the employee initiates the action in federal court. The statute provides for a two year statute of limitations for general violations and a three year limitations period for willful violations. 29 U.S.C. § 626(e). . Section 2401(a) states that \"every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues.” 28 U.S.C. § 2401(a). . It appears that the continuing vitality of this position is questionable. The Ninth Circuit in its Lubniewski decision relied almost exclusively on the Second Circuit's decision in Bomholdt when the court held that the general six year statute of limitations under § 2401(a) should apply in these matters. Bomholdt’s validity, however, was expressly rejected, as dicta, in Long v. Frank, 22 F.3d 54, 56-57 (2d Cir.1994). See Jones v." }, { "docid": "8869839", "title": "", "text": "41 (W.D.Mo.1983). However, in extending the ADEA coverage to federal employees, Congress intended that the scope of protection against discriminatory employment practices be as broad in the area of federal employment as such protection is in the private sector. Valaris v. Army & Air Force Exchange Service, 577 F.Supp. 282, 287-88 (N.D.Ga.1983) (ADEA covers age-based retirement plans in federal employment). Under the ADEA, complainant may resort to a civil suit 30 days after filing notice of an intent to sue with the Civil Service Commission. While the Title VII alternative seeks to afford the administrative procedure the first chance to resolve the dispute and the ADEA alternative merely affords the administrative procedure an opportunity at informal conciliation, it is significant that both alternatives blend judicial review into an administrative framework and both re-quire prior notification of an administrative agency before resorting to court. Christie v. Marston, 451 F.Supp. 1142, 1146 (N.D.Ill.1978) (Congressional intent was to create an exclusive remedy for age discrimination in federal employment.). There is no legislative history or case law to suggest that the congressional purpose in so structuring federal ADEA actions was to allow federal employees either a longer or a shorter statute of limitations period than the two-year and three-year periods applicable to nonfederal employees under 29 U.S.C. § 626(e). This Court is of the opinion that despite the literal wording of § 633a(f), the two-year and three-year statutes of limitations under § 626(e) apply to ADEA actions by federal employees. The instant suit was filed on November 29, 1985, more or less six years after plaintiff’s cause of action accrued on November 28, 1979. The action was not timely filed under 29 U.S.C. § 626. Alternatively, the Court notes that 29 U.S.C. § 633a is patterned after federal civil rights actions under Title VII. “When Congress has not established a time limitation for a federal cause of action, the settled practice has been to adopt a local time limitation as federal law if it is not inconsistent with federal law or policy to do so.” Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938," }, { "docid": "1412588", "title": "", "text": "of limitations for non-tort civil actions filed against the United States under 28 U.S.C. § 2401(a) is not sufficiently analogous to section 633a to apply its limitations period. This Court agrees with the First Circuit in Lavery, that “[i]t would indeed be anomalous to hold ... that a federal catch-all provision governs with respect to ADEA claims when there are available other relevant statutory provisions more specifically geared to the claim brought.” Lavery, 918 F.2d at 1026-27 (quoting Coleman v. Nolan, 693 F.Supp. 1544, 1548 (S.D.N.Y.1988). Moreover, the Court notes that a statute of limitations applicable to actions against the federal government represents a limited waiver of sovereign immunity. Irwin v. Veterans Administration, 498 U.S. 89, 94, 111 S.Ct. 453, 456, 112 L.Ed.2d 435 (1990); United States v. Mottaz, 476 U.S. 834, 841, 106 S.Ct. 2224, 2229, 90 L.Ed.2d 841 (1986). As such, statute of limitations must be “ ‘strictly observed and exceptions thereto are not to be implied.’ ” Lehman v. Nakshian, 453 U.S. 156, 161, 101 S.Ct. 2698, 2702, 69 L.Ed.2d 548 (1981) (quoting Soriano v. United States, 352 U.S. 270, 276, 77 S.Ct. 269, 273, 1 L.Ed.2d 306 (1957), but must be “ ‘unequivocally expressed.’” United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 1351, 63 L.Ed.2d 607 (1980). Thus, “Without a clear manifestation from Congress that it intended for age discrimination claims to have a radically longer limitation period than for claims of race, sex, color and national origin discrimination in the federal workplace,” the Court will not imply such an intent. Lavery, 918 F.2d at 1027. Finally, the Court finds that the specific language of 29 U.S.C. § 633a prevents the application of the two and three year limitations periods for claims of employment discrimination filed by private employees under 29 U.S.C. § 626(e). Section 633a(f) clearly states that “[a]ny personnel action of any department, agency, other entity referred to in subsection (a) of this section shall not be subject to, or affected by any provision of [the ADEA],” other than an exception not relevant here. . 29 U.S.C. § 633a(f). Moreover, the" }, { "docid": "1412587", "title": "", "text": "now borrow the Title VII limitations period. Id. The Court disagrees. The legislative history of section 633a is silent as to why Congress left out the limitations period parallel to Title VII. Without an explanation, this Court will not find a simple deletion as proof of Congress’s intent. See Lavery, 918 F.2d 1022, 1026. “Absent evidence one way or the other, , human error is as likely the cause for the omission as deliberation.” Id. Cf. Pacific Gas & Elec. Co. v. State Energy Resources Conservation & Development Comm’n, 461 U.S. 190, 220, 103 S.Ct. 1713, 1730, 75 L.Ed.2d 752 (1983) (Where Congressmen made statements that they specifically considered and deleted certain language in a bill, the Court will not read that language into the bill). “In resolving ambiguity, we must allow ourselves some recognition of the existence of sheer inadvertence in the legislative process.” Id. (quoting Cass v. United States, 417 U.S. 72, 83, 94 S.Ct. 2167, 2173, 40 L.Ed.2d 668 (1974) (citations omitted)). The Court also finds that the six year catch-all statute of limitations for non-tort civil actions filed against the United States under 28 U.S.C. § 2401(a) is not sufficiently analogous to section 633a to apply its limitations period. This Court agrees with the First Circuit in Lavery, that “[i]t would indeed be anomalous to hold ... that a federal catch-all provision governs with respect to ADEA claims when there are available other relevant statutory provisions more specifically geared to the claim brought.” Lavery, 918 F.2d at 1026-27 (quoting Coleman v. Nolan, 693 F.Supp. 1544, 1548 (S.D.N.Y.1988). Moreover, the Court notes that a statute of limitations applicable to actions against the federal government represents a limited waiver of sovereign immunity. Irwin v. Veterans Administration, 498 U.S. 89, 94, 111 S.Ct. 453, 456, 112 L.Ed.2d 435 (1990); United States v. Mottaz, 476 U.S. 834, 841, 106 S.Ct. 2224, 2229, 90 L.Ed.2d 841 (1986). As such, statute of limitations must be “ ‘strictly observed and exceptions thereto are not to be implied.’ ” Lehman v. Nakshian, 453 U.S. 156, 161, 101 S.Ct. 2698, 2702, 69 L.Ed.2d 548 (1981)" }, { "docid": "1412590", "title": "", "text": "Supreme Court stated in Nakshian that section 633a is “self-contained and unaffected by other sections, including those governing procedures applicable in actions against private employers.” Nakshian, 453 U.S. at 168, 101 S.Ct. at 2705 (1981). Thus, the Court finds that it should .apply the Title VII statute of limitations to age discrimination claims brought by federal employees under 29 U.S.C. § 633a. However, a question exists as to what the actual statute of limitations is under Title VII. Pri- or to the passage of the 1991 Civil Rights Act, Pub.L. 102-166, signed by President Bush on November 21, 1991, a federal employee had to file a Title VII action in U.S. District Court within thirty (30) days of receipt of an adverse administrative determination by the EEOC. See Irwin v. Veterans Admin., 498 U.S. 89, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990). Subsequent to the effective date of the 1991 Civil Rights Act, a federal employee must now file a Title VII action within ninety (90) days of a notice of final action by the plaintiffs employing agency or the EEOC. 42 U.S.C. § 2000e-16(c). Thus, this Court must apply either a 30 day or 90 day statute of limitations depending upon whether the Court applies the terms of the 1991 Civil Rights Act retroactively or prospectively. Previously, this Court held that the terms of the 1991 Civil Rights Act should be applied retroactively. Glanton v. Henkel Chemical Corp., No. 91-cv-0119-HLM (N.D.Ga. April 2, 1992). Defendant, however, urges the Court to revisit that decision in light of the Eleventh Circuit’s recent opinions in Vance v. Southern Bell, 983 F.2d 1573 (11th Cir.1993) and Baynes v. AT & T Technologies, Inc., 976 F.2d 1370 (11th Cir.1992). In Vance and Baynes the Eleventh Circuit held that the 1991 Civil Rights Act should not be applied retroactively in cases where the entry of a judgment predates the effective date of the Act. The Court, however, need not decide the issue here, and therefore will not do so. It is undisputed that Plaintiffs former attorney received the EEOC’s denial of Plaintiffs claim in August" }, { "docid": "1412593", "title": "", "text": "a timely manner after he received the EEOC’s denial of his client’s claim is no such situation. As Plaintiff acknowledges, the Supreme Court also held in Irwin that “[u]nder our system of representative litigation, each party is bound by the acts of his lawyer-agent and is considered to have ‘notice of all facts, notice of which can be charged upon the attorney.” Irwin, 498 U.S. at 92, 111 S.Ct. at 456 (punctuation and citations omitted). Thus, the Court finds that the doctrine of equitable tolling does not save Plaintiffs claim. While the Court does not in any way condone the misconduct of Plaintiffs former attorney, Plaintiffs proper remedy is to pursue proper action against her former attorney in state court, as she has done. Finally, because the Court finds that the statute of limitations bars Plaintiffs claim, and that the equitable tolling doctrine does not save her claim, the Court need not address Defendant’s remaining arguments. IV. CONCLUSION Accordingly, based on the above, the Court GRANTS IN PART AND DENIES IN PART Defendant’s Motion to Dismiss or in the alternative for Summary Judgment and to Strike Jury Demand. The Court GRANTS Defendant’s Motion to Dismiss or in the alternative for Summary Judgment and DENIES as moot Defendant’s Motion to Strike Jury Demand. Having granted Defendant’s Motion to Dismiss or in the alternative for Summary Judgment, the Court DISMISSES Plaintiffs Case. IT IS SO ORDERED. . Prior to the passage of the 1991 Civil Rights Act, under the previous terms of 29 U.S.C. § 626(e)(1), private employees had to file ADEA actions in U.S. District Court within the time frames established for actions under FLSA. Under FLSA, actions for general violations must be filed within two years of when the cause of action accrues, and actions for willful violations must be filed within three years of when the cause of action accrues. 29 U.S.C. § 255(a). With the passage of the 1991 Civil Rights Act, private employees, who seek administrative review, must now file their ADEA claim within the same limitations period that applies to Title VII claims, which is 90" }, { "docid": "11412691", "title": "", "text": "contain an express statute of limitations to govern how long after final agency action the employee has to file a civil action. We must therefore “borrow” an appropriate limitations period from an analogous state or federal provision. Stevens v. Department of Treasury, 500 U.S. 1, 7, 111 S.Ct. 1562, 1567, 114 L.Ed.2d 1 (1991). Federal courts are divided on the issue of the appropriate statute of limitations to apply to ADEA civil actions brought by federal employees after administrative remedies are complete. Compare Lavery v. Marsh, 918 F.2d 1022, 1025-27 (1st Cir.1990); Strazdas v. Baker, 689 F.Supp. 310, 312 (S.D.N.Y.1988); Healy v. United States Postal Serv., 677 F.Supp. 1284, 1289-90 (E.D.N.Y.1987) (all borrowing thirty day limitations period applicable to Title VII actions) with Lubniewski v. Lehman, 891 F.2d 216, 221 (9th Cir.1989) (applying six year catch-all period of 28 U.S.C. § 2401(a)) and with Coleman v. Nolan, 693 F.Supp. 1544, 1548 (S.D.N.Y.1988) (applying two and three year period applicable to ADEA actions brought by private employees). This court previously has discussed the issue, and intimated in dicta that it would be inappropriate to borrow the thirty day limitations period from Title VII. See Bornholdt v. Brady, 869 F.2d 57, 66 (2d Cir.1989). Developments since our decision in Bomholdt, however, convince us that the Bomholdt dicta should not become law, and that the analogous Title VII limitations period, 42 U.S.C. § 2000e-16(c), is the only one appropriate to borrow for ADEA claims. A major factor motivating our discussion in Bomholdt was the perception that while “borrowing” ordinarily is the appropriate mode of statutory construction with respect to unexpressed statutes of limitations, it might not be the proper method in suits against the federal government. Bomholdt, 869 F.2d at 64. We reasoned that with respect to federal causes of action against private entities, borrowing was necessary because there is no general statute of limita tions to cover such actions. With respect to suits against the federal government, on the other hand, the six year catch-all provision exists, 28 U.S.C. § 2401(a), undermining what we perceived to be a fundamental rationale behind the" }, { "docid": "1412594", "title": "", "text": "Dismiss or in the alternative for Summary Judgment and to Strike Jury Demand. The Court GRANTS Defendant’s Motion to Dismiss or in the alternative for Summary Judgment and DENIES as moot Defendant’s Motion to Strike Jury Demand. Having granted Defendant’s Motion to Dismiss or in the alternative for Summary Judgment, the Court DISMISSES Plaintiffs Case. IT IS SO ORDERED. . Prior to the passage of the 1991 Civil Rights Act, under the previous terms of 29 U.S.C. § 626(e)(1), private employees had to file ADEA actions in U.S. District Court within the time frames established for actions under FLSA. Under FLSA, actions for general violations must be filed within two years of when the cause of action accrues, and actions for willful violations must be filed within three years of when the cause of action accrues. 29 U.S.C. § 255(a). With the passage of the 1991 Civil Rights Act, private employees, who seek administrative review, must now file their ADEA claim within the same limitations period that applies to Title VII claims, which is 90 days. 29 U.S.C. § 626(e). . As discussed in note one, with the passage of the 1991 Civil Rights Act, private employees who seek administrative review must now file their ADEA claim within the same limitations period that applies to Title VII claims, which is 90 days. See 29 U.S.C.' § 626(e). . The Court also distinguishes the Eleventh Circuit’s recent decision in Rebar v. Marsh, 959 F.2d 216 (11th Cir.1992), applying the general venue provision under 28 U.S.C. § 1391(e) to actions under 29 U.S.C. § 633a. That decision merely addresses the venue in which a federal employee may litigate an ADEA claim. It does not expand the scope of actions which a plaintiff may file against the United States, as does applying the general catch-all statute of limitations. Thus, applying the general catch-all venue provision does not constitute a waiver of sovereign immunity, and therefore need not be strictly construed. On the other hand, applying the general catch-all statute of limitations does constitute a waiver of sovereign immunity, see Irwin v. Veterans Administration," } ]

[ { "docid": "23490453", "title": "", "text": "v. Skelly Oil Co., 599 F.2d 196, 204 (7th Cir. 1979), cert. denied, 444 U.S. 916, 100 S.Ct. 231, 62 L.Ed.2d 171; Stifel, Nicolaus & Co. v. Dain, Kalman & Quail, Inc., 578 F.2d 1256, 1259 (8th Cir. 1978); Northwest Power Products, Inc. v. Omark Industries, Inc., 576 F.2d 83 (5th Cir. 1978), cert. denied, 439 U.S. 1116, 99 S.Ct. 1021, 59 L.Ed.2d 75 (1979); George R. Whitten, Jr., Inc. v. Paddock Pool Builders, Inc., 508 F.2d 547 (1st Cir. 1974), cert. denied, 421 U.S. 1004, 95 S.Ct. 2407, 44 L.Ed.2d 673 (1975); Kinnear-Weed Corp. v. Humble Oil & Refining Co., 214 F.2d 891, 893-94 (5th Cir. 1954), cert. denied, 348 U.S. 912, 75 S.Ct. 292, 99 L.Ed. 715 (1955). The only exception to the requirement of an allegation of anticompetitive effects in a Section 1 Sherman Act complaint occurs in the narrow category of per se cases. This follows not from the fact that anticompetitive effects need not exist to establish the elements of a per se offense, but rather from the fact that the type of conduct complained of in a per se action is so destructive of free competition that deleterious effects will be conclusively presumed. Examples of such per se offenses include price fixing agreements, see United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 60 S.Ct. 811, 84 L.Ed. 1129 (1940), group boycotts, see Klor’s, Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207, 79 S.Ct. 705, 3 L.Ed.2d 741 (1959), market allocation, see United States v. Topco Associates, Inc., 405 U.S. 596, 92 S.Ct. 1126, 31 L.Ed.2d 515 (1972), and certain types of tying arrangements, see International Salt Co. v. United States, 332 U.S. 392, 68 S.Ct. 12, 92 L.Ed. 20 (1947). Havoco, confusingly, first concedes that acts of unfair competition which are alleged to be violative of the Sherman Act must be evaluated under the Rule of Reason and not the per se doctrine. It nevertheless contends that courts are still “wrestling” with the question of whether harmful effects on competition are an essential element of the offense. This, as noted above, is simply" } ]

[ { "docid": "811162", "title": "", "text": "suppliers or customers); Phil Tolkan Datsun, Inc. v. Greater Milwaukee Datsun Dealers’ Advertising Association,. 672 F.2d 1280 (7th Cir.1982) (membership arrangements in trade associations an exception to per se group boycott rule; no showing that plaintiff’s exclusion harmed plaintiff), United States Trotting Association v. Chicago Downs Association, Inc., 665 F.2d 781 (7th Cir.1981) (en banc) (trotting horse association organized to ensure honest harness racing and not to restrain trade), compare, Spray-Rite Serv. Corp. v. Monsanto Co., supra (boycott accompanying price-fixing given per se treatment). Here plaintiffs have alleged that the defendants worked together to exclude them from the railroad supply market or to at least minimize their share of the market. They have incorporated into their complaint the MBRC report which indicates that some majority-owned or -controlled contractors manipulated their corporate structure so that they would qualify as MBEs. This same report indicates that the percentage of railroad procurement business obtained by black and hispanic MBEs was a small fraction of the 15 per cent affirmative action goal. MBRC Report, Exh. 6. At this early stage in the case dismissal of plaintiffs' antitrust claim would be inappropriate. “In antitrust eases, dismissals prior to giving the plaintiff an opportunity for discovery shall be granted very sparingly.” Bunker Ramo Corp. v. United Business Forms, Inc., 713 F.2d 1272, 1282 (7th Cir.1983). We think they have sue cessfully alleged the existence of a group boycott per se violative of the Sherman Act. In light of the care with which the Seventh Circuit limits the application of the per se rule to group boycotts it is prudent, however, to examine the alleged group boycott under the rule of reason. Here too the complaint survives defendants’ motions to dismiss. The rule-of-reason test is “geared simply, clearly, and exclusively to the question whether the challenged conduct promoted or suppressed competition ____” Wilk v. American Medical Association, 719 F.2d 207, 225 (7th Cir.1983). See also Lektro-Vend Corp. v. Vendo Co., 660 F.2d 255, 268 (7th Cir.1981), cert. denied, 455 U.S. 921, 102 S.Ct. 1277, 71 L.Ed.2d 461 (1982). Once a plaintiff shows the anti-competitive effect of a" }, { "docid": "4608438", "title": "", "text": "Union City Body Corporation, Inc., 791 F.2d 532, 541 (7th Cir.1986). 66. If litigation is used as an integral part of a scheme attempting to monopolize and exclude competition from the marketplace, that litigation can lose its first amendment protection and constitute forbidden anticompetitive conduct. See Walker Process Equipment v. Food Machinery & Chemical Corporation, 382 U.S. 172, 174, 86 S.Ct. 347, 348-49, 15 L.Ed.2d 247 (1965). DANGEROUS PROBABILITY OF SUCCESS: 67. The plaintiffs must prove that there was a dangerous probability that the defendant would sooner or later succeed in achieving its intended monopoly if it continued to engage in anticompetitive conduct that is the same or similar to that charged. See American Tobacco Company v. United States, 328 U.S. 781, 785, 66 S.Ct. 1125, 1127, 90 L.Ed. 1575 (1946). “[T]he Sherman Act’s prohibition against attempted monopolization does not require that the attempt in fact ripen into an actual monopoly. It is the attempt which is the offense.” Lektro-Vend Corporation v. Vendo Company, 660 F.2d 255, 270 (7th Cir.1981), cert. denied, 455 U.S. 921, 102 S.Ct. 1277, 71 L.Ed.2d 461 (1982). 68. The dangerous probability should be evaluated as of the time the alleged anticompetitive events occurred. See General Industries Corporation v. Hartz Mountain Corporation, 810 F.2d 795, 807 (8th Cir.1987). 69. In evaluating whether it was possible for the defendant to achieve its goal of monopoly power at the time the alleged anticompetitive events occurred, the court can consider: the defendant's market power, including sales and profits; the defendant’s subsequent market performance; the size and number of competitors in the market; increasing or decreasing concentration within the relevant market; and the defendant’s capacity to control prices and exclude competitors. See Lektro-Vend Corporation v. Vendo Company, 660 F.2d 255, 270-71 (7th Cir.1981), cert. denied, 455 U.S. 921, 102 S.Ct. 1277, 71 L.Ed.2d 461 (1982). RELEVANT MARKET: 70. In proving whether the defendant possessed sufficient power to come dangerously close to achieving monopoly power, the plaintiffs must prove the relevant geographic and product markets within which that dangerous probability occurred. See Photovest Corporation v. Fotomat Corporation, 606 F.2d 704, 711-13" }, { "docid": "5923311", "title": "", "text": "change [the NCAA rules at issue]_\" Amended Complaint ¶ 22(b). Nowhere in Banks’ complaint does he tie his alleged antitrust injury with the no-draft or no-agent rules’ allegedly anti-competitive impact, rather he broadly concludes \"the Rules operate as a restraint on all members of the NCAA_” Amended Complaint ¶ 22(b). FLAUM, Circuit Judge, concurring in part and dissenting in part. This is a “rule of reason” case brought under § 1 of the Sherman Antitrust Act, National Collegiate Athletic Ass’n v. Board of Regents, 468 U.S. 85, 104 S.Ct. 2948, 82 L.Ed.2d 70 (1984), and as such the panel correctly states that Braxton Banks must allege that the NCAA rules at issue harm competition in some relevant market to get his foot in the door. Great Escape, Inc. v. Union City Body Co., Inc., 791 F.2d 532, 539 (7th Cir.1986); Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106-07 (7th Cir.1984), cert. denied, 470 U.S. 1054, 105 S.Ct. 1758, 84 L.Ed.2d 821 (1985). After quoting liberally from Banks’ complaint, the panel concludes that he failed to meet his burden. Granted, the complaint was drafted somewhat inelegantly, but I nonetheless believe that it defines a market and describes how the NCAA rules harm competition in that market. Accordingly, I respectfully dissent from the panel’s affir-mance of the district court’s dismissal of Banks’ second cause of action. The parties agree that Banks, to survive the NCAA’s motion to dismiss, must define a relevant market and allege how the challenged rules adversely affect competition in that market. Lektro-Vend Corp. v. Vendo Co., 660 F.2d 255, 268 (7th Cir.1981), cert. denied, 455 U.S. 921, 102 S.Ct. 1277, 71 L.Ed.2d 461 (1982). As the NCAA concedes, Banks defined two markets in his complaint, only one of which it is necessary to address here: the nationwide labor market for college football players. See Amended Complaint ¶ 22(a)-(b). NCAA member colleges are the purchasers of labor in this market, and the players are the suppliers. The players agree to compete in football games sponsored by the colleges, games that typically garner the colleges a profit," }, { "docid": "811154", "title": "", "text": "to shoulder the burdens of the non-discrimination and affirmative action provisions imposed by the funding agreements. 5. Count V: The Antitrust Claim In count V the plaintiffs allege that the railroad and contractor defendants engaged in a boycott of the plaintiff companies in violation of the Sherman Act. In essence, the plaintiffs charge that the defendants worked together to exclude the plaintiffs from the railroad supply market. The railroad defendants allegedly refused to buy from plaintiff firms. The contractor defendants, according to the plaintiffs, changed their corporate structures in order to qualify as MBE’s. In this way plaintiff firms were excluded from both the contracts given to MBEs under the affirmative action plans and those contracts given out by the railroads in their regular procurement programs. For over seventy years, the rule of reason has been the principal test of the legality of practices which allegedly operate to restrain trade. Standard Oil Co. v. United States, 221 U.S. 1, 31 S.Ct. 502, 55 L.Ed. 619 (1911), U.S. Trotting Association v. Chicago Downs Association, Inc., 665 F.2d 781, 787 (7th Cir.1981) (en banc). The focus of the rule of reason analysis is on “the challenged restraint's impact on competitive conditions,” National Society of Professional Engineers v. United States, 435 U.S. 679, 98 S.Ct. 1355, 55 L.Ed.2d 637 (1978), see also Lektro-Vend Corp. v. Vendo Co., 660 F.2d 255, 268 (7th Cir.1981), cert. denied, 455 U.S. 921, 102 S.Ct. 1277, 71 L.Ed.2d 461 (1982). Typically, the rule of reason analysis requires a lengthy and detailed examination of a large number of relevant factors. As Justice Brandéis described the rule of reason approach: The true test of legality is whether the restraint imposed is such as merely regulates and perhaps thereby promotes competition or whether it is such as may suppress or even destroy competition. To determine that question the court must ordinarily consider the facts peculiar to the business to which the restraint is applied; its condition before and after the restraint was imposed; the nature of the restraint and its effect, actual or probable. The history of the restraint, the evil" }, { "docid": "11040339", "title": "", "text": "Richfield Co. v. USA Petroleum Co., 495 U.S. 328, 110 S.Ct. 1884, 109 L.Ed.2d 333 (1990), a case in which the Court required a showing of antitrust injury even in cases involving per se violations of the antitrust laws. 110 S.Ct. at 1893-5. “Conduct in violation of the antitrust laws may have three effects, often interwoven: in some respects the conduct may reduce competition, in other respects it may increase competition, and in still other respects effects may be neutral as to competition. The antitrust injury requirement ensures that a plaintiff can recover only if the loss stems from an [sic] competition-reducing aspect or effect of the defendant’s behavior. The need for this showing is at least as great under the per se rule as under the rule of reason.” Id. at 1894. In this case, the injury of which Mylan complains basically resulted from the uncompetitive aspects of the regulatory system mandated by Congress rather than any uncompetitive actions by defendants. Although defendants are alleged to have abused this system, their taking advantage does not necessarily lead to the conclusion that Mylan suffered an antitrust injury. Obviously, the analysis under this head is somewhat duplicative of the analysis on the restraint of competition issue. Supra note 8. Having held that Mylan has not sufficiently alleged an anticompetitive effect, this Court cannot now hold that Mylan has suffered an antitrust injury. \"Tortious activities in the form, for example, of unfair competition, do not contravene the antitrust laws unless accompanied by the requisite anticompetitive effect. Losing business to a competitor is an inevitable consequence of the economic system that the Sherman Act was designed to protect; some enterprises will prevail and others will not, but it is the function of section 1 to compensate the unfortunate only when their demise is accompanied by a generalized injury to the market.” Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1109 (7th Cir.1984), cert. den. 470 U.S. 1054, 105 S.Ct. 1758, 84 L.Ed.2d 821 (1985). . See infra Part V(C), re Noerr-Pennington Immunity. . Noerr-Pennington immunity does apply to attempts to influence" }, { "docid": "464532", "title": "", "text": "of the challenged practice \"are to threaten the proper operation of our predominantly free market economy\", or where the \"practice facially appears to be one that would always or almost always tend to restrict competition and decrease output”; Continental T.V., Inc. v. GTE Sylvania, Inc. [“GTE Sylvania\"], 433 U.S. 36, 49-50, 97 S.Ct. 2549, 2557, 53 L.Ed.2d 568 (1977), stating that “per se rules of illegality are appropriate only when they relate to conduct that is manifestly anticompetitive”; United States v. Topco Associates, Inc., 405 U.S. 596, 607-08, 92 S.Ct. 1126, 1133, 31 L.Ed.2d 515 (1972), stating that “[i]t is only after considerable experience with certain business relationships that courts classify them as per se violations of the Sherman Act.”. . Mackey v. National Football League, 543 F.2d 606, 619 (8th Cir.1976), cert. dismissed, 434 U.S. 801, 98 S.Ct. 28, 54 L.Ed.2d 59 (1977), quoting Worthen Bank & Trust Co. v. National Bank-Americard, Inc., 485 F.2d 119, 125 (8th Cir.1973), cert. denied, 415 U.S. 918, 94 S.Ct. 1417, 39 L.Ed.2d 473 (1974). Accord United States v. Realty Multi-List, Inc., 629 F.2d 1351, 1365-69 (5th Cir.1980); E.A. McQuade Tours, Inc. v. Consolidated Air Manual Committee, 467 F.2d 178, 186-87 (5th Cir.1972), cert. denied, 409 U.S. 1109, 93 S.Ct. 912, 34 L.Ed.2d 690 (1973). See also Phil Tolkan Datsun, Inc. v. Greater Milwaukee Datsun Dealers’ Advertising Ass'n, 672 F.2d 1280, 1284-85 (7th Cir.1982); United States Trotting Ass'n, Inc. v. Chicago Downs Ass'n, Inc., 665 F.2d 781, 788 (7th Cir.1981) (en banc). . 476 U.S. 447, 458-59, 106 S.Ct. 2009, 2017-18, 90 L.Ed.2d 445 (1986). Moreover, in the course of deciding whether a business practice challenged under Section 1 fits within the “boycott pigeonhole”, many courts find themselves in a detailed inquiry into the economic effects of the practice — precisely the sort of \"rule of reason” analysis the per se approach is supposed to eliminate for \"obviously” anticompetitive practices. See Sullivan, Antitrust Law at 239, 241-45; Bauer, 79 Colum.L.Rev. at 694-95, 703-04 & n. 82. . 472 U.S. at 298, 105 S.Ct. at 2017-18. As one commentator notes, however, it is often" }, { "docid": "21907056", "title": "", "text": "comments on this issue because it may assist the district court on remand and because we have some doubt whether plaintiff successfully carried her burden of persuasion on this question. The district court properly treated this case as one involving a vertical combination. Such a combination, as the parties concede, must be analyzed under the Rule of Reason. Tampa Electric Co. v. Nashville Coal Co., 365 U.S. 320, 81 S.Ct. 623, 5 L.Ed.2d 580 (1961); Twin City Sportservice, Inc. v. Charles O. Finley & Co., 676 F.2d 1291 (9th Cir. 1982). As its name suggests, the Rule of Reason requires the trier of fact to decide whether under all of the circumstances of the case the restrictive practice imposes an unreasonable restraint on competition. Arizona v. Maricopa County Medical Society,-U.S. -,-, 102 S.Ct. 2466, 2471, 73 L.Ed.2d 48 (1982); Continental T. V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 49, 97 S.Ct. 2549, 2557, 53 L.Ed.2d 568 (1977). “The true test of legality is whether the restraint imposed is such as merely regulates and perhaps thereby promotes competition or whether it is such as may suppress or even destroy competition.” National Society of Professional Engineers v. U. S., 435 U.S. 679, 691, 98 S.Ct. 1355, 1365, 55 L.Ed.2d 637 (1978) (quoting Board of Trade v. U. S., 246 U.S. 231, 238, 38 S.Ct. 242, 243, 62 L.Ed. 683 (1918)). This court has consistently held that in all section 1 Rule of Reason cases the plaintiff must show that the challenged restraint has an adverse impact on competition in a relevant market. United States Trotting Association v. Chicago Downs Association, Inc., 665 F.2d 781, 790 (7th Cir. 1981) (en banc); Lektro-Vend Corp. v. Vendo Co., 660 F.2d 255, 268 (7th Cir. 1981), cert. denied, - U.S. -, 102 S.Ct. 1277, 71 L.Ed.2d 461 (1982). In the context of exclusive dealing arrangements, this means that the plaintiff can prevail only by showing that the agreement in question results in a substantial foreclosure of competition in an area of effective competition, that is, in a relevant market. Tampa Electric, supra, 365 U.S." }, { "docid": "13259910", "title": "", "text": "to be per se illegal, a boycott must have two essential elements: (1) at least some of the boycotters were competitors of each other and the target, and (2) the boycott was designed to protect the boycotters from competition with the target. United States Trotting Ass’n v. Chicago Downs Ass’n, Inc., 665 F.2d 781, 788 (7th Cir.1981). The complaint does not allege either prong, and when the defendants argue that the plaintiffs are, as pleaded on the face of the complaint, consumers and not competitors, the plaintiffs agree, saying that they are “consumers, the very persons that are to be protected under the antitrust laws.” The plaintiffs cite St. Paul Fire for the proposition that “it is an offense for businessmen to agree among themselves to stop selling to particular customers.” Id. at 544, 98 S.Ct. 2923. However, as the Seventh Circuit noted in United States Trotting Association, while the Supreme Court in St. Paul Fire held that consumers might maintain an action for anticompetitive boycott against competitors (insurers who conspired to force physicians to accept a particular kind of insurance), “ ‘the issue before us is whether the conduct in question involves a boycott, not whether it is per se unreasonable.’” 665 F.2d at 788 n. 11 (citing 438 U.S. at 542, 98 S.Ct. 2923). There is no per se violation here. The plaintiffs request that I also analyze the case under a rule of rea son approach. However, the plaintiffs have not met the threshold requirements for such analysis. There is no allegation that the defendants have any market power, and “[substantial market power is an essential ingredient of every antitrust case under the Rule of Reason.” Sanjuan v. American Bd. of Psych. & Neurology, Inc., 40 F.3d 247, 251 (7th Cir.1994). Neither, as I shall explain, is there any “showing of anticompetitive market effect” that the rule of reason requires. Lektro-Vend Corp. v. Vendo Co. 660 F.2d 255, 268 (7th Cir.1981). The plaintiffs cannot prevail under the rule of reason. Second, there is no antitrust injury, i.e., “injury of the type the antitrust laws were intended to" }, { "docid": "9406566", "title": "", "text": "Electrical Contractors Association, Inc., 814 F.2d 358, 368 (7th Cir.1987); Fishman v. Estate of Wirtz, 807 F.2d 520, 536 (7th Cir.1986); Morrison v. Murray Biscuit Co., 797 F.2d 1430, 1437 (7th Cir.1986). This court must interpret and apply the Sherman and Clayton Acts with this fundamental principle in mind. 1. Sherman Act Section 1 Violations Section 1 of the Sherman Act provides that \"every contract, combination in the form of trust or otherwise, or conspiracy in restraint of trade or commerce among several States, or with foreign nations ... shall be illegal.” 15 U.S.C. § 1. In the landmark case of Standard Oil Co. of New Jersey v. United States, 221 U.S. 1, 31 S.Ct. 502, 55 L.Ed. 619 (1911), the Supreme Court clarified that Section 1 prohibits only unreasonable contracts, combinations and conspiracies in restraint of trade. Section 1 prohibits only unreasonable cooperative efforts because a certain type and amount of cooperation may be necessary for efficient production of goods and provision of services. Premier Electrical, at 370; Polk Bros., Inc. v. Forest City Enterprises, Inc., 776 F.2d 185, 188 (7th Cir.1985). Over the years, courts have found certain types of contractual arrangements unreasonable as a matter of law, because they pose an unacceptable risk of stifling competition. Jefferson Parish Hospital District No. 2 v. Hyde, 466 U.S. 2, 9, 104 S.Ct. 1551, 1556, 80 L.Ed.2d 2 (1984). Courts presume that these “per se” illegal arrangements are unreasonable without inquiring as to whether the arrangement has had an anticompetitive effect in the relevant market. Jefferson Parish, 466 U.S. at 15-16, 104 S.Ct. at 1560; Brillhart v. Mutual Medical Insurance Co., 768 F.2d 196, 199 n. 2 (7th Cir.1985); Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1108 (7th Cir.1984), cert. denied, 470 U.S. 1054, 105 S.Ct. 1758, 84 L.Ed.2d 821 (1985). Anti-competitive effect is still a requirement in these cases; however, courts conclusively presume anticompetitive effect because the type of conduct complained of is obviously destructive of free competition. LektroVend Corp. v. Vendo Co., 660 F.2d 255, 265 n. 11 (7th Cir.1981), cert. denied, 455 U.S. 921," }, { "docid": "23691312", "title": "", "text": "se rules of illegality are appropriate only when they relate to conduct that is manifestly anticompetitive.”). Employee covenants not to compete or interfere with the employer’s business after the end of the employment relationship should not be tested under the per se rule. Such covenants often serve legitimate business concerns such as preserving trade secrets and protecting investments in personnel. Newburger, Loeb & Co. v. Gross, 563 F.2d 1057, 1082 (2d Cir.1977), cert. denied, 434 U.S. 1035, 98 S.Ct. 769, 54 L.Ed.2d 782 (1978). In addition, the courts have had inadequate experience with non-competition and noninterference covenants to warrant a per se categorization. See Bradford v. New York Times Co., 501 F.2d 51, 59-60 (2d Cir.1974); Business Foods Service, Inc. v. Food Concepts Corp., 533 F.Supp. 992, 995 (E.D.N.Y.1982). Other circuits have likewise declined to apply a per se rule to noncompetition agreements. See, e.g., Lektro-Vend Corp. v. Vendo Co., 660 F.2d 255, 264-65 (7th Cir. 1981), cert. denied, 455 U.S. 921, 102 S.Ct. 1277, 71 L.Ed.2d 461 (1982) (noncompetition covenants ancillary to sale of business); Bradford v. New York Times Co., 501 F.2d at 59-60 (post-employment noncompetition agreement). Without citing any authority, Aydin asserts that because most covenants ancillary to a valid agreement are tested by the rule of reason, all non-ancillary restraints must be tested under a per se standard. Even assuming that the restraints in this case may be deemed “non-ancillary,” Aydin’s analysis is confused. The proper function of ancillarity in antitrust analysis “is to remove [in some instances] the per se label from restraints otherwise falling within the category.” Bork, Ancillary Restraints and the Sherman Act, 15 A.B.A. Antitrust Section Proceedings 211, 212 (1959). Whether a restraint that does not fall within a per se category is ancillary to a valid agreement is relevant only in the sense that ancillarity increases the probability that the restraint will be found reasonable. See, e.g., LektroVend Corp. v. Vendo Co., 660 F.2d at 264-65; Sound Ship Building Corp. v. Bethlehem Steel Corp., 387 F.Supp. 252, 255 (D.N. J.1975), aff’d, 533 F.2d 96 (3d Cir.), cert. denied, 429 U.S. 860," }, { "docid": "9406567", "title": "", "text": "Enterprises, Inc., 776 F.2d 185, 188 (7th Cir.1985). Over the years, courts have found certain types of contractual arrangements unreasonable as a matter of law, because they pose an unacceptable risk of stifling competition. Jefferson Parish Hospital District No. 2 v. Hyde, 466 U.S. 2, 9, 104 S.Ct. 1551, 1556, 80 L.Ed.2d 2 (1984). Courts presume that these “per se” illegal arrangements are unreasonable without inquiring as to whether the arrangement has had an anticompetitive effect in the relevant market. Jefferson Parish, 466 U.S. at 15-16, 104 S.Ct. at 1560; Brillhart v. Mutual Medical Insurance Co., 768 F.2d 196, 199 n. 2 (7th Cir.1985); Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1108 (7th Cir.1984), cert. denied, 470 U.S. 1054, 105 S.Ct. 1758, 84 L.Ed.2d 821 (1985). Anti-competitive effect is still a requirement in these cases; however, courts conclusively presume anticompetitive effect because the type of conduct complained of is obviously destructive of free competition. LektroVend Corp. v. Vendo Co., 660 F.2d 255, 265 n. 11 (7th Cir.1981), cert. denied, 455 U.S. 921, 102 S.Ct. 1277, 71 L.Ed.2d 461 (1982); Havoco of America, Ltd. v. Shell Oil Co., 626 F.2d 549, 555 (7th Cir.1980). Where the conduct complained of is of a type with which courts have had little experience, or a type which is not manifestly anticompetitive, courts analyzing the conduct under Section 1 apply the rule of reason standard. United States Trotting Association v. Chicago Downs Association, Inc., 665 F.2d 781, 787-90 (7th Cir.1981). The rule of reason standard requires the plaintiff to show that the defendant’s conduct caused an anticompetitive effect in the relevant market. LektroVend, 660 F.2d at 268. Courts have traditionally applied the rule of reason standard in the majority of Section 1 challenges to allegedly anticompetitive contracts, combinations and conspiracies. U.S. Trotting, 665 F.2d at 787. 2. Sherman Act Section 2 Violations Under Section 2 of the Sherman Act, no person may “monopolize, or attempt to monopolize, of combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with" }, { "docid": "2424689", "title": "", "text": "the Court holds that the doctrine of state action immunity under the antitrust laws applies here to the local government’s alleged violative conduct. Since the state action doctrine under Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943) applies, the jury’s verdict and award for the federal antitrust action must be vacated and the action dismissed. B. ANTITRUST LIABILITY Even if the state action doctrine does not apply in this case, the Court finds that the jury verdict and award was not supported by the evidence produced at trial. The plaintiff alleged and the jury found that defendants had violated § 1 of the Sherman Act, 15 U.S.C. § 1, through their participation in a contractual agreement which restrained trade within a specific relevant market. Unity Ventures v. County of Lake, No. 81 C 2745 (N.D.Ill. January 12, 1984). The Court must now analyze the jury’s findings in light of the elements necessary to support the antitrust verdict. The Sherman Act was designed to protect competition within specific markets. See M.C. Mfg. Co., Inc. v. Texas Foundries, Inc., 517 F.2d 1059, 1064 (5th Cir.1975), cert. denied, 424 U.S. 968, 96 S.Ct. 1466, 47 L.Ed.2d 736 (1976). Section 1 states: “Every contract, combination ... or conspiracy, in restraint of trade or commerce among the several States ... is declared illegal____” 15 U.S.C. § 1. A violation of the Sherman Act is proven by a “showing that the agreement in question results in a substantial foreclosure of competition in ... a relevant market.” Dos Santos v. Columbus-Cuneo-Cabrini Medical Center, 684 F.2d 1346, 1350 (7th Cir.1982); U.S. Trotting Association v. Chicago Downs Association, Inc., 665 F.2d 781, 790 (7th Cir.1981) (en banc). Furthermore, the burden of proof for the elements of a violation is on the plaintiff. Dos Santos, 684 F.2d at 1350. 1. Contract, Combination or Conspiracy The plaintiff alleges that defendants participated in a contract, combination or conspiracy which resulted in anticompetitive effects. To prove this allegation, plaintiff entered into evidence a written contract executed by Grayslake and Lake County. (Pl.Ex. 30). The contract, which was reviewed" }, { "docid": "23650649", "title": "", "text": "has emphasized, however, that summary judgment may be especially appropriate in an antitrust case because of the chill antitrust litigation can have on legitimate price competition. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 594-95, 106 S.Ct. 1348, 1360, 89 L.Ed.2d 538 (1986). For this reason, an antitrust plaintiff opposing a motion for summary judgment must present evidence that tends to exclude the possibility that the defendant’s conduct was as consistent with competition as with illegal conduct. Id. at 588, 106 S.Ct. at 1357. A. Indiana Grocery, then, must first establish that a genuine issue of material fact exists that Kroger attempted to monopolize the Indianapolis retail grocery market. According to Indiana Grocery, Kroger used entry of Super Valu’s Cub stores into Indianapolis as a “cover” for its attempt to monopolize the area market through a predatory pricing scheme. To prove attempted monopolization under section 2 of the Sherman Act, a plaintiff must show (1) specific intent to achieve monopoly power, (2) predatory or anticompetitive conduct directed to accomplishing this unlawful purpose, and most important for purposes of this case, (3) a dangerous probability that the attempt to monopolize will be successful. Lektro-Vend Corp. v. The Vendo Co., 660 F.2d 255, 270 (7th Cir.1981), cert. denied, 455 U.S. 921, 102 S.Ct. 1277, 71 L.Ed.2d 461 (1982); Chillicothe Sand & Gravel Co. v. Martin Marietta Corp., 615 F.2d 427, 430 (7th Cir.1980). The “dangerous probability” element of the attempted monopolization offense reflects the well-established notion that section 2 of the Sherman Act governs single-firm conduct only when it threatens actual monopolization. Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 767, 104 S.Ct. 2731, 2739, 81 L.Ed.2d 628 (1984). The Sherman Act protects competition, not competitors, and does not reach conduct that is only unfair, impolite, or unethical. United States v. American Airlines, Inc., 743 F.2d 1114, 1119 (5th Cir.1984), cert. dismissed, 474 U.S. 1001, 106 S.Ct. 420, 88 L.Ed.2d 370 (1985). As we recently emphasized in Ball Memorial Hospital, Inc. v. Mutual Hospital Insurance, Inc., 784 F.2d 1325 (7th Cir.1986), [c]ompetition is a ruthless process. A firm" }, { "docid": "9406568", "title": "", "text": "102 S.Ct. 1277, 71 L.Ed.2d 461 (1982); Havoco of America, Ltd. v. Shell Oil Co., 626 F.2d 549, 555 (7th Cir.1980). Where the conduct complained of is of a type with which courts have had little experience, or a type which is not manifestly anticompetitive, courts analyzing the conduct under Section 1 apply the rule of reason standard. United States Trotting Association v. Chicago Downs Association, Inc., 665 F.2d 781, 787-90 (7th Cir.1981). The rule of reason standard requires the plaintiff to show that the defendant’s conduct caused an anticompetitive effect in the relevant market. LektroVend, 660 F.2d at 268. Courts have traditionally applied the rule of reason standard in the majority of Section 1 challenges to allegedly anticompetitive contracts, combinations and conspiracies. U.S. Trotting, 665 F.2d at 787. 2. Sherman Act Section 2 Violations Under Section 2 of the Sherman Act, no person may “monopolize, or attempt to monopolize, of combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations.” 15 U.S.C. § 2. In order to prove monopolization, a plaintiff must show, first, that the defendant possesses monopoly power, the power to control output and prices, in the relevant market. Olympia Equipment Leasing Co. v. Western Union Telegraph Co., 797 F.2d 370, 373 (7th Cir.1986), cert. denied, — U.S. -, 107 S.Ct. 1574, 94 L.Ed.2d 765 (1987); Ball Memorial Hospital, Inc. v. Mutual Hospital Insurance, Inc., 784 F.2d 1325, 1334-36 (7th Cir.1986); Chillicothe Sand & Gravel Co. v. Martin Marietta Corp., 615 F.2d 427, 430 (7th Cir.1980). Second, the plaintiff must demonstrate that the defendant engaged in conduct designed to. acquire, maintain or enhance its monopoly power improperly. Olympia Equipment, 797 F.2d at 373; Chillicothe, 615 F.2d at 430. A company attempts to monopolize in violation of Section 2 when it engages in a course of conduct which would, if successful, accomplish monopolization, and which, though falling short, so closely approaches monopolization as to create a dangerous probability of it. Lektro-Vend, 660 F.2d at 269-70. In order to prove attempt to monopolize," }, { "docid": "283125", "title": "", "text": "summary judgment, arguing inter alia, that its temporary refusal to admit Tolkan as a member did not constitute a per se antitrust violation, that Tolkan Datsun was not entitled to participate in the special 210 promotion and that, absent such an entitlement, Tolkan had suffered no competitive injury as a result of the Association’s actions or the operation of its by-laws. On February 12, 1981, the district court granted the Association’s motion for summary judgment and dismissed Tolkan’s complaint. The district court held that the Association’s conduct was not per se illegal, and that under the rule of reason, Tolkan had failed to allege sufficient anti-competitive injury to establish a violation of § 1 of the Sherman Act. On appeal, Tolkan challenges both of these conclusions. II. As this court recently re-emphasized, the rule of reason is the standard traditionally applied to most anticompetitive practices challenged under § 1 of the Sherman Act. United States Trotting Association v. Chicago Downs Association, 665 F.2d 781, 787 (7th Cir. 1981) (en banc). There are, however, a limited number of practices “which, because of their pernicious effect on competition and lack of any redeeming virtue are conclusively presumed to be unreasonable and therefore illegal” without the often elaborate inquiry into anticompetitive effect which is characteristic of rule of reason analysis. Northern Pac. Ry. Co. v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 518, 2 L.Ed.2d 545 (1958). Only after courts have had considerable experience with a particular type of conduct, and application of the rule of reason has inevitably resulted in a finding of anticompetitive effect, will the practice in question generally be deemed a per se violation. Havoco of America, Ltd. v. Shell Oil Co., 626 F.2d 549, 555 (7th Cir. 1980); see Continental T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 97 S.Ct. 2549, 53 L.Ed.2d 568 (1977). The Supreme Court has long characterized certain types of group boycotts as per se antitrust violations. For example, in Fashion Originators’ Guild of America, Inc. v. Federal Trade Comm’n., 312 U.S. 457, 61 S.Ct. 703, 85 L.Ed. 949 (1941), the" }, { "docid": "13171322", "title": "", "text": "not have to show that in fact the practice has had or will have an adverse effect on competition. But if a practice is not within the per se category — if it is governed, in other words, by the Rule of Reason (the dichotomy is not perfect, as there are some practices, mergers for example, that are governed by another standard altogether, but this refinement is irrelevant to this case) — then the plaintiff must, to prevail, show not only that the defendant engaged in the practice but also that by doing so the defendant was injuring competition. “[A]ny rule of reason analysis requires a showing of anticompetitive market effect.” Lektro-Vend Corp. v. Vendo Co., 660 F.2d 255, 268 (7th Cir.1981); see Dos Santos v. Columbus-Cuneo-Cabrini Medical Center, 684 F.2d 1346, 1352 (7th Cir.1982); Havoco of America, Ltd. v. Shell Oil Co., 626 F.2d 549, 558 (7th Cir.1980). The denial of the plaintiffs’ applications for membership in the Academy, a collective refusal by the Academy’s members to deal with the plaintiffs on the identical terms on which they deal with each other, was a form of boycott. It used to be said often that boycotts were illegal per se. But that was never entirely true. The best known statement of the Rule of Reason is found in a boycott case, Board of Trade of City of Chicago v. United States, 246 U.S. 231, 38 S.Ct. 242, 62 L.Ed. 683 (1918). The case involved the legality of an internal rule of a commodities exchange designed to limit competition from some of its members, and a violation of the rule would have been punishable by expulsion. A more accurate generalization today would be that boycotts are illegal per se only if they are used to enforce agreements that are themselves illegal per se — for example, price-fixing agreements. See United States Trotting Ass’n v. Chicago Downs Ass’n, 665 F.2d 781, 787-90 (7th Cir.1981) (en banc), for the general principle, and Spray-Bite Serv. Corp. v. Monsanto Co., 684 F.2d 1226, 1234-36 (7th Cir.1982), for the price-fixing exception. .At least that is the" }, { "docid": "2424690", "title": "", "text": "Mfg. Co., Inc. v. Texas Foundries, Inc., 517 F.2d 1059, 1064 (5th Cir.1975), cert. denied, 424 U.S. 968, 96 S.Ct. 1466, 47 L.Ed.2d 736 (1976). Section 1 states: “Every contract, combination ... or conspiracy, in restraint of trade or commerce among the several States ... is declared illegal____” 15 U.S.C. § 1. A violation of the Sherman Act is proven by a “showing that the agreement in question results in a substantial foreclosure of competition in ... a relevant market.” Dos Santos v. Columbus-Cuneo-Cabrini Medical Center, 684 F.2d 1346, 1350 (7th Cir.1982); U.S. Trotting Association v. Chicago Downs Association, Inc., 665 F.2d 781, 790 (7th Cir.1981) (en banc). Furthermore, the burden of proof for the elements of a violation is on the plaintiff. Dos Santos, 684 F.2d at 1350. 1. Contract, Combination or Conspiracy The plaintiff alleges that defendants participated in a contract, combination or conspiracy which resulted in anticompetitive effects. To prove this allegation, plaintiff entered into evidence a written contract executed by Grayslake and Lake County. (Pl.Ex. 30). The contract, which was reviewed by the jury, conferred upon Grays-lake the exclusive right to provide or withhold sewage disposal services within a specified geographic area. This area included the plaintiffs property. The existence of the contract establishes beyond dispute that defendants intended to, and in fact did, participate in a contractual agreement which gave Grays-lake the right to restrain plaintiffs access to sewage disposal services. The Sherman Act, however, does not in and of itself forbid or restrain the power of parties to enter into contracts. U.S. v. Reading Co., 226 U.S. 324, 33 S.Ct. 90, 57 L.Ed. 243 (1912). It is only when the contract results in injury to competition in a relevant market that a violation occurs. Tampa Electric Co. v. Nashville Coal Co., 365 U.S. 320, 81 S.Ct. 623, 5 L.Ed.2d 580 (1961); U.S. Trotting Association, 665 F.2d at 790. 2. Relevant Market The determination of a relevant market establishes the scope of competition within which the effect of an alleged restraint is to be evaluated. The importance of accurately establishing a relevant market is important" }, { "docid": "4608433", "title": "", "text": "in trademark infringement or unfair competition, the court concludes that the Miller Brewing Company is not liable to Anheuser-Busch Incorporated for trademark dilution under the Illinois Anti-Dilution Act, Ill.Rev.Stat. ch. 140, § 22. D. ATTEMPT TO MONOPOLIZE 56. Under Section 2 of the Sherman Act, no person may “monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations ...” 15 U.S.C. § 2. 57. A company attempts to monopolize in violation of Section 2 when it engages in a course of conduct which would, if successful, accomplish monopolization, and which, though falling short, so closely approaches monopolization as to create a dangerous probability of it. See Lektro-Vend Corporation v. Vendo Company, 660 F.2d 255, 269-70 (7th Cir.1981), cert. denied, 455 U.S. 921, 102 S.Ct. 1277, 71 L.Ed.2d 461 (1982). (1) Elements of Claims 58. In order to prove an attempt to monopolize, a plaintiff must prove by a preponderance of the evidence: (1) a specific intent to achieve a monopoly in a relevant market; (2) predatory or anticompetitive conduct in furtherance of the purpose to monopolize; and (3) a dangerous probability of success in the relevant market. See Lektro-Vend Corporation v. Vendo Company, 660 F.2d 255, 270 (7th Cir.1981), cert. denied, 455 U.S. 921, 102 S.Ct. 1277, 71 L.Ed.2d 461 (1982); Chillicothe Sand & Gravel Company v. Martin Marietta Corporation, 615 F.2d 427, 430 (7th Cir.1980). These elements are conjunctive. See Conoco, Inc. v. Inman Oil Company, Inc., 774 F.2d 895, 906 (8th Cir.1985). 59. The test to be applied in determining whether a trademark is being unlawfully used to confer a monopoly in a certain product is the same as in any other case wherein an unlawful monopoly, or attempt to monopolize, is alleged under Section 2 of the Sherman Act. There is a violation of that provision only if the defendant’s actions have led to or resulted in a dangerous probability that it will gain a monopoly over the relevant market. See Car-Freshner Corporation v. Auto" }, { "docid": "21907057", "title": "", "text": "perhaps thereby promotes competition or whether it is such as may suppress or even destroy competition.” National Society of Professional Engineers v. U. S., 435 U.S. 679, 691, 98 S.Ct. 1355, 1365, 55 L.Ed.2d 637 (1978) (quoting Board of Trade v. U. S., 246 U.S. 231, 238, 38 S.Ct. 242, 243, 62 L.Ed. 683 (1918)). This court has consistently held that in all section 1 Rule of Reason cases the plaintiff must show that the challenged restraint has an adverse impact on competition in a relevant market. United States Trotting Association v. Chicago Downs Association, Inc., 665 F.2d 781, 790 (7th Cir. 1981) (en banc); Lektro-Vend Corp. v. Vendo Co., 660 F.2d 255, 268 (7th Cir. 1981), cert. denied, - U.S. -, 102 S.Ct. 1277, 71 L.Ed.2d 461 (1982). In the context of exclusive dealing arrangements, this means that the plaintiff can prevail only by showing that the agreement in question results in a substantial foreclosure of competition in an area of effective competition, that is, in a relevant market. Tampa Electric, supra, 365 U.S. at 327-28, 81 S.Ct. at 627-628; Twin City Sportservice, supra, 676 F.2d at 1301-02. In the instant case, the district court on the basis of a limited evidentiary record ruled that the plaintiff had met her burden of proof under the Rule of Reason. The court held that the exclusive contract was an unreasonable restraint on competition among “competing providers of anesthesia services at Columbus Hospital.” Although it made no express finding, the district court apparently believed that the relevant geographical market was limited to Columbus Hospital. In the district court’s view, the exclusive arrangement conferred on Associates a virtual monopoly in this market, leaving Associates free to set prices and determine the quality of services without competitive pressures. In addition, the district court rejected the notion that competition among hospitals could serve as an effective check on the quality and price of anesthesia services rendered by Associates under the contract. We have serious question whether plaintiff has demonstrated a reasonable likelihood of success on the merits and, in particular, we have reason to doubt" }, { "docid": "6046392", "title": "", "text": "foreign nations, is declared to be illegal.” The elements of a claim alleging conspiracy or combination under § 1 of the Sherman Act are well established in this circuit and others. In order to establish such a claim, the plaintiff must demonstrate: “(1) that the Defendants contracted, combined or conspired among each other, (2) that the combination or conspiracy produced adverse, anticompetitive effects within relevant product and geographic markets, (3) that the objects of and conduct pursuant to that contract or conspiracy were illegal, and (4) that the Plaintiff was injured as a proximate result of the conspiracy.” Terry’s Floor Fashions v. Burlington Industries, 568 F.Supp. 205, 210 (E.D.N.C.1983), aff'd, 763 F.2d 604 (4th Cir.1985); Davis-Watkins Co. v. Service Merchandise, 686 F.2d 1190, 1195-96 (6th Cir.1982); Fleer Corp. v. Topps Chewing Gum, Inc., 658 F.2d 139, 147 (3d Cir.1981), cert. denied, 455 U.S. 1019, 102 S.Ct. 1715, 72 L.Ed.2d 137 (1982). In this regard, a plaintiff must allege specific facts which show a lessening of competition in interstate commerce as a result of the conspiracy. Absent specific allegations showing what anti-competitive effects in the particular market were caused by the alleged conspiracy, the plaintiffs case will be dismissed for failure to state a claim. Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1107 (7th Cir.1984); Havoco of America, Ltd. v. Shell Oil Co., 626 F.2d 549, 554 (7th Cir.1980); Larry R. George Sales Co. v. Cool Attic Corp., 587 F.2d 266, 274-75 (5th Cir.1979); Armco Steel Corp. v. United Mine Workers, 505 F.2d 1129, 1134 (4th Cir.1974), Hsing Chow v. Union Central Life Ins. Co., 457 F.Supp. 1303, 1306-08 (E.D.N.Y.1978). Assuming, arguendo, the truth of plaintiffs’ conspiracy allegations, the question remaining is whether the restraint resulting from that conspiracy is the type of restraint prohibited by the Sherman Act. Plaintiffs contend that they were deprived of regular employment as a result of a conspiracy among defendants to limit the number of regular employees. In other words, plaintiffs allege a restraint upon their own labor. For purposes of the antitrust laws, however, “the labor of a human being is" } ]

[ { "docid": "22714136", "title": "", "text": "de minimis intrusion that may be disregarded. We are quite sure, however, that the arresting officers are permitted in such circumstances to take reasonable steps to ensure their safety after, and while making, the arrest. That interest is sufficient to outweigh the intrusion such procedures may entail. We agree with the State, as did the court below, that a warrant was not required. We also hold that as an incident to the arrest the officers could, as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched. Beyond that, however, we hold that there must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene. This is no more and no less than was required in Terry and Long, and as in those cases, we think this balance is the proper one. We should emphasize that such a protective sweep, aimed at protecting the arresting officers, if justified by the circumstances, is nevertheless not a full search of the premises, but may extend only to a cursory inspection of those spaces where a person may be found. The sweep lasts no longer than is necessary to dispel the reasonable suspicion of danger and in any event no longer than it takes to complete the arrest and depart the premises. IV Affirmance is not required by Chimel v. California, 395 U. S. 752 (1969), where it was held that in the absence of a search warrant, the justifiable search incident to an in-home arrest could not extend beyond the arrestee’s person and the area from within which the arrestee might have obtained a weapon. First, Chimel was concerned with a full-blown search of the entire house for evidence of the crime for which the arrest was made, see id.,- at 754, 763, not the more limited intrusion contemplated by a protective sweep." } ]

[ { "docid": "21869580", "title": "", "text": "the protective sweep doctrine only to circumstances involving arrests would jeopardize the safety of officers in contravention of the pragmatic concept of reasonableness embodied in the Fourth Amendment. Although, an “arrest may be highly relevant” to the determination of whether officers possess reasonable suspicion of danger, Gould, 364 F.3d at 584, the effectuation of an arrest, regardless of whether pursuant to a warrant, is not the sine qua non of a permissible protective sweep. See id. Accordingly, we hold that specific, articulable facts giving rise to a reasonable inference of danger may justify a protective sweep in circumstances other than during the in-home execution of an arrest warrant. C. Reasonable Suspicion We now turn to whether Officer Vidal conducted a lawful protective sweep when he followed Miller into the second bedroom. We review de novo the District Court’s legal conclusion that the Fourth Amendment was not violated. See Ornelas v. United States, 517 U.S. 690, 697, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); Gandia, 424 F.3d at 261. As set forth in Buie and as discussed above, a protective sweep may only be conducted when officers possess “articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the ... scene.” Buie, 494 U.S. at 334, 110 S.Ct. 1093. In addition, the sweep must be limited to “a cursory inspection of those spaces where a person may be found.” Id. at 335, 110 S.Ct. 1093. Furthermore, the sweep must not last longer than necessary to allay the reasonable suspicion of danger and, in any event, not longer than it takes for the officers to finish the work for which they are lawfully on the premises. See id. at 335-36, 110 S.Ct. 1093. D. Officer Vidal’s Sweep of the Second Bedroom In entering the second bedroom, Vidal was aware of significant facts that justified his belief that he needed to follow Miller “[f]or safety.” Tr. at 24. Vidal knew that (1) Miller had made a specific threat" }, { "docid": "20007758", "title": "", "text": "of a person’s home is a search incident to arrest, an exception first recognized in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). Under this exception, police officers may, incident to arrest, conduct a plenary search of the arrestee’s person and the area within his immediate control, that is, “the area from within which he might gain possession of a weapon or destructible evidence.” Id. at 763, 89 S.Ct. 2034. Another such exception is the protective sweep, first described in Maryland v. Buie, 494 U.S. 325, 331, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990). Under the protective sweep exception, officers may, incident to arrest and “as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched.” Id. at 334, 110 S.Ct. 1093. A search beyond those parameters is justified when there are “articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.” Id.; Leaf v. Shelnutt, 400 F.3d 1070, 1086 (7th Cir.2005). It is important to note that a protective sweep is “not a full search of the premises, but may extend only to a cursory inspection of those spaces where a person may be found.” Buie, 494 U.S. at 335, 110 S.Ct. 1093; Leaf, 400 F.3d at 1086. The justification for a protective sweep is to protect “the safety of police officers, who have an interest in ensuring their safety when they lawfully enter a house. That interest justifies their ensuring that the dwelling does not harbor another person who is dangerous and who unexpectedly could launch an attack.” Leaf, 400 F.3d at 1087 (alteration omitted) (internal quotation marks omitted). Mr. Peals contends that the district court improperly granted summary judgment on his claim that the defendants’ search of his garage and home was unreasonable. He submits that the warrantless search of his garage and home" }, { "docid": "5969907", "title": "", "text": "not attempt to wake Mr. Leaf immediately after finding him, but instead searched the rest of the apartment before waking him. However, Deputy Shelnutt does contend that he is entitled to qualified immunity for the search on the ground that it was justified under the protective sweep doctrine described in Maryland v. Buie, 494 U.S. 325, 327, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990). A “protective sweep” has been defined as “a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others ... [and] narrowly confined to a cursory visual inspection of those places in which a person might be hiding.” Id. Although a protective sweep invades a home-owner’s privacy, such a search tactic may be “reasonable when weighed against ‘the need for law enforcement officers to protect themselves and other prospective victims of violence.’ ” Id. at 332, 110 S.Ct. 1093 (quoting Terry v. Ohio, 392 U.S. 1, 24, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). A protective sweep, limited to “looking] in closets and other spaces immediately adjoining the place of arrest,” is justified “incident to [an] arrest ... as a precautionary matter and without probable cause or reasonable suspicion.” Id. at 334, 110 S.Ct. 1093. A search beyond those parameters is justified when there are “articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.” Id. “[A] protective sweep ... is ... not a full search of the premises, but may extend only to a cursory inspection of those spaces where a person may be found. The sweep lasts no longer than is necessary to dispel the reasonable suspicion of danger .... ” Id. at 335-36, 110 S.Ct. 1093. We have recognized generally that while entry into a dwelling typically requires a search warrant founded on probable cause, a “quick inspection[ ] may be justified by lower degrees of suspicion.” United States v. Brown, 64 F.3d 1083, 1086" }, { "docid": "9610309", "title": "", "text": "that the search of the room was unreasonable, and the government bears the burden of demonstrating that it fits within an exception to the warrant requirement. Id. Citing the officers’ concern over the possible presence of an injured person in the room, the government contends that the warrantless entry and search was justified by the protective sweep doctrine. The district court agreed, relying on Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990). In Buie, the Supreme Court recognized an exception to the warrant requirement for a protective sweep accompanying an in-home arrest. The Court held that when the police arrest an individual at his home, they may conduct a limited search of the premises without a warrant and without probable cause if there are “articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.” Id. at 334, 110 S.Ct. at 1098. This protective sweep doctrine derives from Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), which authorized a limited, pat-down search of an individual’s outer clothing during a street encounter where specific, articulable facts would lead a reasonable law enforcement officer to believe that the individual might be armed and dangerous. Buie, 494 U.S. at 331-34, 110 S.Ct. at 1096-98. Buie permits a similarly narrow search at the scene of an in-home arrest: [A] protective sweep, aimed at protecting the arresting officers, if justified by the circumstances, is nevertheless not a full search of the premises, but may extend only to a cursory inspection of those spaces where a person may be found. The sweep lasts no longer than is necessary to dispel the reasonable suspicion of danger and in any event no longer than it takes to complete the arrest and depart the premises. Id. at 335-36, 110 S.Ct. at 1099 (footnote omitted); see also id. at 327, 110 S.Ct. at 1094. At the same time, the investigating officer need not" }, { "docid": "2737711", "title": "", "text": "immediately adjoining the place of arrest from which an attack could be immediately launched. Beyond that, however, we hold that there must be articulable facts which, taken together with rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene. Id. at 334, 1Í0 S.Ct. 1093 (emphasis added); see also United States v. Noushfar, 78 F.3d 1442, 1448 (9th Cir.1996) (quoting Buie and noting that “[a] protective sweep may last ‘no longer than it takes to complete the arrest and depart the premises’ ”). In the present case, Deputy Kitts testified that when the officers detained Grant in the back of the apartment, Grant was not under arrest. Additionally, the government did not point to any facts that demonstrated that a reasonably prudent officer would have believed that the apartment “harbor[ed] an individual posing a danger to those on the arrest scene.” See Buie, 494 U.S. at 334, 110 S.Ct. 1093. Therefore,, the officers were not entitled to conduct a, protective sweep under Buie. Moreover, it is clear that no exigent circumstances existed to justify the officers’ warrantless entry and search of apartment 101. “Exigent circumstances are those in which a substantial risk of harm to the persons involved or to the law enforcement process would arise if the police were to delay a search [ ] until a warrant' could be obtained.” United States v. Gooch, 6 F.3d 673, 679 (9th Cir.1993) (citation omitted) see also United States v. Delgadillo-Velasquez, 856 F.2d 1292, 1298 (9th Cir.1988). Mere speculation is not sufficient to show exigent circumstances. See United States v. Tarazon, 989 F.2d 1045, 1049 (9th Cir.1993). Rather, “[t]he government bears the burden of showing the existence of exigent circumstances by particularized evidence.” Id. This is a heavy burden and can be satisfied “only by demonstrating specific and articulable facts to justify the finding of exigent circumstances.” LaLonde v. County of Riverside, 204 F.3d 947, 954 (9th Cir.2000) (internal quotation marks omitted). Furthermore, “the presence of exigent circumstances necessarily implies" }, { "docid": "7407277", "title": "", "text": "the shotgun because the warrantless search of his residence was unlawful. The government, however, insists that the district court correctly found that the search was justified pursuant to both the protective sweep and emergency doctrines. Because we believe that the search was a lawful protective sweep, we need not, and do not, consider the applicability of the emergency doctrine. For a search to be lawful, it must be reasonable. See U.S. Const. amend. IV. And, “[a] warrantless search of a private residence is presumptively unreasonable.” United States v. Tibolt, 72 F.3d 965, 968 (1st Cir.1995). There are, however, exceptions to this general rule. One exception, announced by the Supreme Court in Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990), is that following an in-home arrest, police officers may conduct a protective sweep of the premises if “articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.” Id. at 334, 110 S.Ct. 1093. Such a search is limited to “a cursory inspection of those spaces where a person may be found.” Id. at 335, 110 S.Ct. 1093. Buie did not address whether a protective sweep can follow an arrest made just outside of the home (the situation we have here), and we have not previously spoken on the issue. Nevertheless, a number of our sister circuits allow protective sweeps in this situation. See, e.g., United States v. Cavely, 318 F.3d 987, 995-96 (10th Cir.2003); United States v. Wilson, 306 F.3d 231, 238 (5th Cir.2002); United States v. Colbert, 76 F.3d 773, 776-77 (6th Cir.1996); United States v. Henry, 48 F.3d 1282, 1284 (D.C.Cir.1995); United States v. Oguns, 921 F.2d 442, 446 (2d Cir.1990). In announcing the protective sweep doctrine in Buie, the Supreme Court found significant the “risk of danger in the context of an arrest in the home” due primarily to the reality that there may be “unseen third parties in the house.” 494 U.S. at 333," }, { "docid": "3729985", "title": "", "text": "proving that the search was valid.” United States v. Waldrop, 404 F.3d 365, 368 (5th Cir.2005). A ■ Rodriguez contends that the police were not authorized to perform a protective sweep and that the elements of the “plain view” doctrine which would permit them to seize the shotgun, were not satisfied. Accordingly, he argues that the gun seized during the search should have been suppressed. “The protective sweep doctrine allows government agents, without a warrant, to conduct a quick and limited search of premises for the safety of the agents and others present at the scene.” United States v. Mendez, 431 F.3d 420, 428 (5th Cir.2005). To be constitutionally valid, (1) “the police must not have entered (or remained in) the home illegally and their presence within it must be for a legitimate law enforcement purpose;” (2) “the protective sweep must be supported by a reasonable, articulable suspicion ... that the area to be swept harbors an individual posing a danger to those on the scene;” (3) “the legitimate protective sweep may not be a full search but may be no more than a cursory inspection of those spaces where a person may be found;” and (4) the protective sweep “may last[ ] ... no longer than is necessary to dispel the reasonable suspicion of danger, and ... no longer than the police are justified in remaining on the premises.” United States v. Gould, 364 F.3d-578, 587 (5th Cir.2004) (en banc) (alterations in original) (citations and internal quotation marks omitted). We consider the “totality of the circumstances surrounding the officers’ actions” in determining whether an officer had a reasonable, articulable suspicion sufficient to justify a protective sweep. United States v. Maldonado, 472 F.3d 388, 395 (5th Cir.2006). Rodriguez disputes the second prong of the protective sweep doctrine— namely, that the officers had a reasonable, articulable suspicion that a person posing a danger to those on the scene was present in the trailer. Based on the circumstances, the district court found that it was reasonable for the officers to conduct a protective sweep beyond the living room area of the trailer" }, { "docid": "20635768", "title": "", "text": "Webster, 750 F.2d 307, 328 (5th Cir.1984). “A ‘protective sweep’ is a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others. It is narrowly confined to a cursory visual inspection of those places in which a person might be hiding.” Maryland v. Buie, 494 U.S. 325, 327, 110 S.Ct. 1093, 1094, 108 L.Ed.2d 276 (1990). The protective sweep doctrine may apply even if the arrest occurs outside the home. See Watson, 273 F.3d 599; see also United States v. Merritt, 882 F.2d 916, 921 (5th Cir.1989); Kirkpatrick v. Butler, 870 F.2d 276 (5th Cir.1989). Maldonado does not assert that the agents exceeded the acceptable scope of a protective sweep. Maldonado argues that the agents’ entry into the trailer was invalid because they lacked a search warrant, no exigent circumstances were present and even if exigent circumstances were present, the agents created any exigency. A. The government has the burden of proving the existence of exigent circumstances. Rico, 51 F.3d at 501. To justify a protective sweep, the government must show “articulable facts which, taken together with rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.” Buie, 494 U.S. at 334, 110 S.Ct. at 1098. Exigent circumstances include hot pursuit of a suspected felon, the possibility that evidence may be removed or destroyed, and danger to the lives of officers or others. Richard, 994 F.2d at 247-48. There is no set formula for determining when exigent circumstances justify a warrantless entry. United States v. Blount, 123 F.3d 831, 837 (5th Cir.1997). In evaluating exigency, we “consider the appearance of the scene of the search in the circumstances presented as it would appear to reasonable and prudent men standing in the shoes of the officers.” United States v. Rodea, 102 F.3d 1401, 1405 (5th Cir.1996) (internal quotations and citation omitted). If reasonable minds could differ, we do “not second-guess the judgment of experienced law enforcement officers concerning the" }, { "docid": "11591375", "title": "", "text": "Lundin’s Fourth Amendment right to be free from unlawful searches when they stood on his porch and knocked on his front door. And since this unconstitutional conduct caused the allegedly exigent circumstance — the crashing noises in the backyard — that circumstance cannot justify the search resulting in the seizure of the two handguns. We note that our decision in United States v. Vaneaton, 49 F.3d 1423 (9th Cir.1995), may be on infirm ground after Jar-dines. In Vaneaton, officers had probable cause to arrest the defendant for receiving stolen property and for violating his parole, and they had reason to believe that he was staying at the Rainbow Motel. Id. at 1425. The officers approached the defendant’s motel room, knocked on the door, and arrested him when he opened the door. Id. Our opinion did not expressly note the officers’ purpose in knocking on the defendant’s door, but it is fairly clear from our description of the facts that they intended to arrest him. Although the defendant was standing inside the doorway of his room, we held that the officers lawfully arrested him because he “ ‘voluntarily exposed himself to warrantless arrest’ by freely opening the door of his motel room to the police.” Id. at 1426 (quoting United States v. Johnson, 626 F.2d 753, 757 (9th Cir.1980)). Unlike the officers in Jardines and in this case, the officers in Vaneaton were standing in the common space of a motel when they knocked, rather than in the curtilage of a home. We therefore have no need to overrule Vaneaton. See Miller v. Gammie, 335 F.3d 889, 899-900 (9th Cir.2003) (en banc) (holding that “a three- judge panel is free to reexamine the holding of a prior panel” when the Supreme Court has “undercut the theory or reasoning underlying the prior circuit precedent in such a way that the cases are clearly irreconcilable”). Whether Vaneaton remains good law after Jardines is therefore a question for another case and another day. B. Protective Sweep The protective sweep doctrine authorizes “quick and limited” warrantless inspections “of those spaces where a person may be" }, { "docid": "5969908", "title": "", "text": "closets and other spaces immediately adjoining the place of arrest,” is justified “incident to [an] arrest ... as a precautionary matter and without probable cause or reasonable suspicion.” Id. at 334, 110 S.Ct. 1093. A search beyond those parameters is justified when there are “articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.” Id. “[A] protective sweep ... is ... not a full search of the premises, but may extend only to a cursory inspection of those spaces where a person may be found. The sweep lasts no longer than is necessary to dispel the reasonable suspicion of danger .... ” Id. at 335-36, 110 S.Ct. 1093. We have recognized generally that while entry into a dwelling typically requires a search warrant founded on probable cause, a “quick inspection[ ] may be justified by lower degrees of suspicion.” United States v. Brown, 64 F.3d 1083, 1086 (7th Cir.1995); see also United States v. Concepcion, 942 F.2d 1170, 1173 (7th Cir.1991) (“How much cause agents need to do something depends on how deeply they invade the zone of privacy.”). We have noted on previous occasions that the inquiry whether a protective sweep was reasonable is “necessarily a very fact-specific one.” United States v. Burrows, 48 F.3d 1011, 1016 (7th Cir.), cert. denied, 515 U.S. 1168, 115 S.Ct. 2632, 132 L.Ed.2d 872 (1995). Furthermore, “the circumstances of the particular encounter [must] be assessed carefully in light of the overarching policy concerns articulated in Buie and in its first cousins, Terry and Long.” Id.; see also Terry, 392 U.S. 1, 88 S.Ct. 1868; Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983). Those policy concerns include a proper regard for the safety of police officers, who “have an interest in ensuring their safety when they lawfully enter a house .... That interest justifies their ensuring that the dwelling does not harbor another person who is dangerous and who unexpectedly could" }, { "docid": "18287479", "title": "", "text": "325, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990). A protective sweep is “a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others,” that “is narrowly confined to a .cursory visual inspection of those places in which a person might be hiding.” Id at 327, 110 S.Ct. 1093. Many protective sweeps take place following an arrest within a home, We .have also allowed protective sweeps, however, when an arrest “occurs just outside the home,” because such an arrest “can pose an equally serious threat to arresting officers as one that occurs in the home.” United States v. Lawlor, 406 F.3d 37, 41 (1st Cir. 2005). Buie instructs that a protective sweep is permissible only where there .are “articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.” Buie, 494 U.S. at 334, 110 S.Ct. 1093. In applying this standard, we evaluate protective sweeps using the same standard set out in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968): “would the facts available to the officer at the moment of the ... search warrant a man of reasonable caution in the belief that the action taken was appropriate?” Id at 21-22, 88 S.Ct. 1868 (quotation marks omitted); see also Buie, 494 U.S. at 334, 110 S.Ct. 1093; United States v. Daoust, 916 F.2d 757, 759 (1st Cir. 1990). “The reasonable suspicion standard is considerably less demanding than the level of proof required to support a finding of probable cause, but must be based on more than an unfounded speculation.” Winston, 444 F.3d at 118 (citation omitted). The government relies on three of our prior cases—Winston, Lawlor, and Martins—in which we have upheld protective sweeps in contending that the sweep at issue here was lawful. But, in each of those cases, the officers undertook the sweep with knowledge of facts—not present here—that provided them with an articula-ble reason" }, { "docid": "2737710", "title": "", "text": "had the right not to consent to the search. Under the totality of the circumstances we conclude that the government did not sustain its burden of proving that the consent was voluntarily given. Consequently, the district court’s determination that Grant voluntarily consented was ■ clearly erroneous. B. The Warrantless Search Was neither a Protective Sweep nor Justified by Exigent Circumstances In attempting to salvage the unconstitutional search of apartment 101, the government argues that the warrantless search of apartment 101 was valid as a protective sweep and that it was justified by exigent circumstances. In Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990) the Supreme Court defined “protective sweep” as “a quick and limited search of premises, incident to an arrest and conducted ■ to protect the safety of police officers or others.” 494 U.S. at 327,110 S.Ct. 1093. The Court further explained that: as an incident to the■ arrest the officers could, as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched. Beyond that, however, we hold that there must be articulable facts which, taken together with rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene. Id. at 334, 1Í0 S.Ct. 1093 (emphasis added); see also United States v. Noushfar, 78 F.3d 1442, 1448 (9th Cir.1996) (quoting Buie and noting that “[a] protective sweep may last ‘no longer than it takes to complete the arrest and depart the premises’ ”). In the present case, Deputy Kitts testified that when the officers detained Grant in the back of the apartment, Grant was not under arrest. Additionally, the government did not point to any facts that demonstrated that a reasonably prudent officer would have believed that the apartment “harbor[ed] an individual posing a danger to those on the arrest scene.” See Buie, 494 U.S. at 334, 110 S.Ct. 1093. Therefore,, the officers were" }, { "docid": "11591377", "title": "", "text": "found” when “there are articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbor[ed] an individual posing a danger to those on the arrest scene.” United States v. Lemus, 582 F.3d 958, 962 (9th Cir.2009) (citation omitted) (alteration in original). In this case, the officers had no “reasonable, articulable suspicion” that anyone other than Lundin was present at his residence. Maryland v. Buie, 494 U.S. 325, 336, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990). Thus, the only plausible threat to the safety of those on the scene was Lundin himself. By the time the officers conducted the sweep of Lundin’s home, however, he had already been handcuffed and placed in a police vehicle. Thus, the officers lacked a reasonable ground for believing that there was a danger that would have justified the sweep of Lundin’s home. C. Inevitable Discovery The inevitable discovery exception does not apply when officers have probable cause to apply for a warrant but simply fail to do so. See United States v. Mejia, 69 F.3d 309, 320 (9th Cir.1995); United States v. Echegoyen, 799 F.2d 1271, 1280 n. 7 (9th Cir.1986). The government erroneously suggests our decision in United States v. Merriweather, 777 F.2d 503 (9th Cir.1985), holds to the contrary. In Merriweather, federal agents performed a lawful protective sweep of a motel room incident to an arrest. During the sweep, an agent unlawfully searched the inside of a toilet tank and found money hidden there. Id. at 505. The police then obtained a search warrant for the motel room without relying on the discovery of the money, and officers who were unaware of the money executed the search warrant and found it. Id. We held that the money was admissible. In our opinion, we inaccurately characterized our decision as an application of the “inevitable discovery doctrine.” Id. at 506. Our decision in Merriweather is, instead, properly characterized as an application of the independent source doctrine. Unlike the inevitable discovery doctrine, which asks whether evidence “would have ” been" }, { "docid": "18239406", "title": "", "text": "— to the context of an in-home arrest where the danger to law enforcement “is as great ... if not greater.” See Buie, 494 U.S. at 333, 110 S.Ct. 1093. As the Court explained, “unlike an encounter on the street or along a highway, an in-home arrest puts the officer at the disadvantage of being on his adversary’s ‘turf [where] [a]n ambush in a confined setting of unknown configuration is more to be feared than it is in open, more familiar surroundings.” Id. Thus, the Court identified two constitutionally permissible types of warrantless searches of a residence “after, and while making, [an] arrest.” Id. at 334,110 S.Ct. 1093. First, the authorities are entitled to search “incident to the arrest ... as a precautionary matter and without probable cause or reasonable suspicion, ... closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched.” Buie, 494 U.S. at 334, 110 S.Ct. 1093. Second, the officers are entitled to perform a further “protective sweep,” beyond the immediately adjoining areas, when they have “articulable facts which, taken together with the rational inferences from which those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.” Id. Such a protective sweep is circumscribed, however, extending “only to a cursory inspection of those spaces where a person may be found,” and lasting “no longer than it takes to complete the arrest and depart the premises.” Id. at 335-36, 110 S.Ct. 1093. 2. The government does not assert that the warrantless sweep of the Jones residence, conducted contemporaneously with the arrest of Kipling Jones, constituted a search incident to arrest. As a result, we constrain our analysis to whether the steps taken by the officers conform to a constitutionally permissible protective sweep. The Joneses contend that there were insufficient articulable facts for a reasonably prudent officer to believe that dangerous individuals were being harbored in their residence. They also stress that there was nothing amiss during their first encounter with the police" }, { "docid": "12998699", "title": "", "text": "the barn sweep. Davis also contends that the officers’ inspections of the locked closet and toolbox each exceeded the permissible scope of the house sweep. We review the District Court’s factual findings for clear error and its legal conclusions de novo when examining the motion to suppress. United States v. Clayton, 210 F.3d 841, 845 (8th Cir.2000). A. Davis first argues that the protective sweep of his barn was invalid under the standard announced in Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990). In Buie, the Supreme Court held that incident to an arrest, officers may, as a precaution and without any requisite level of suspicion, “look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched” without first securing a search warrant. Id. at 334, 110 S.Ct. 1093. The Court also held that officers may sweep additional areas if “articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene” exist. Id. A “protective sweep” must be “a quick and limited search of premises ... conducted to protect the safety of police officers or others.” Id. at 327, 110 S.Ct. 1093. It may only extend to a cursory inspection of those spaces where a person may be found and may last no longer than is necessary to dispel the reasonable suspicion of danger, and in any event, may last no longer than it takes to complete the arrest and depart the premises. Id. at 335-36, 110 S.Ct. 1093. A protective sweep is justified by the threat of accomplices launching a surprise attack during an arrest and is particularly important during an in-home arrest, due to the heightened potential for an ambush in unfamiliar surroundings. Id. at 333, 110 S.Ct. 1093. A protective sweep may be executed after an arrest if there is a reasonable possibility that other persons may be present on the premises who pose a danger" }, { "docid": "1335136", "title": "", "text": "sweep, aimed at protecting the arresting officers, if justified by the circumstances, is nevertheless not a full search of the premises, but may extend only to a cursory inspection of those spaces where a person may be found. The sweep lasts no longer than is necessary to dispel the reasonable suspicion of danger and in any event no longer than it takes to complete the arrest and depart the premises. Buie, 494 U.S. at 335-36, 110 S.Ct. at 1099. To justify a protective sweep, “there must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer’s belief in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.” Id. at 334, 110 S.Ct. at 1098. We agree that the deputies conducted a valid protective sweep of the Stuart residence. First, the arrest warrant, standing alone, would have given deputies the authority to enter the home. See Payton, 445 U.S. at 603, 100 S.Ct. at 1388 (“[A]n arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within.”); United States v. Bennett, 555 F.3d 962, 965 (11th Cir.2009). Of course, the deputies did not enter the home to make the arrest; Yeary cooperated, left the home and was arrested — but only after the deputies saw a firearm in plain view. The deputies then learned of the presence of two unknown individuals in the residence. Based on these two facts, the deputies could have reasonably suspected that they were in danger. See Hromada, 49 F.3d at 690 n. 9 (“[T]he dangers presented by in-home arrests are often greater than those conducted on the street due to the ‘home turf advantage the suspect has over the police.”). Therefore, the deputies were justified in engaging in a protective sweep. Moreover, the sweep was limited in scope; it was only coincidental that one of the deputies discovered contraband in plain view while conducting the sweep." }, { "docid": "1769858", "title": "", "text": "privacy right. Id. One such exception is a protective sweep conducted in conjunction with the arrest of an individual in his home. Id. at 327. “A ‘protective sweep’ is a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others.” Id. To prevent law enforcement from abusing the protective sweep by using it as a pretext for searching an individual’s home, the Supreme Court has limited its use. First, law enforcement officers conducting the sweep must have a reasonable suspicion of danger: “there must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.” Id. at 334, 110 S.Ct. 1093 & n. 2. The reasonable suspicion standard is “considerably less demanding than the level of proof required to support a finding of probable cause,” United States v. Martins, 413 F.3d 139, 149 (1st Cir.2005), but must be based on more than an unfounded speculation, United States v. Cook, 277 F.3d 82, 85 (1st Cir.2002). Second, the scope of a protective sweep must be limited to its purpose. The sweep “may extend only to a cursory inspection of those spaces where a person may be found.” Buie, 494 U.S. at 335, 110 S.Ct. 1093. Additionally, the duration of the sweep must be “no longer than is necessary to dispel the reasonable suspicion of danger and in any event no longer than it takes to complete the arrest and depart the premises.” Id. at 335-36, 110 S.Ct. 1093. The district court in this case held that the protective sweep violated the Fourth Amendment. We review the district court’s factual findings for clear error. United States v. Palmer, 203 F.3d 55, 60 (1st. Cir.2000). We review de novo the constitutional question of whether the protective sweep violated the Fourth Amendment. Id. A. Reasonable Suspicion The district court found that the agents did not have a reasonable suspicion to believe that a dangerous person" }, { "docid": "14166094", "title": "", "text": "the district court’s findings of fact for clear error and its conclusions of law de novo. United States v. Johnson, 9 F.3d 506, 508 (6th Cir.1993), cert. denied, — U.S.-, 114 S.Ct. 2690, 129 L.Ed.2d 821 (1994). Neither party takes issue with the district court’s findings of fact. In Maryland v. Buie, the Supreme Court recognized an exception to the traditional warrant requirement for officers making an arrest inside an arrestee’s home, allowing them to conduct a “protective sweep” of the premises to ensure the officers’ safety. The Buie case had two holdings. First, during a search incident to an arrest occurring inside a home, officers may, “as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched.” Id. at 334, 110 S.Ct. at 1098. Second, officers may conduct a search more pervasive in scope when they have “articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.” Id. This sweep may “extend only to a cursory inspection of those spaces where a person may be found,” and may last no longer than “is necessary to dispel the reasonable suspicion of danger. ...” Id. at 335, 110 S.Ct. at 1099. This case involves the second, more pervasive type of Buie search. Specifically, we must decide whether Hawes had articulable facts which warranted his intrusion into the home after Colbert was arrested and placed in handcuffs outside that home. Colbert first argues that a protective search is never justified when a defendant is arrested outside a home, and this Court has never squarely addressed the issue. However, in United States v. Calhoun, we mentioned in dicta that, where a defendant is arrested outside a home, “a warrantless search of the apartment could be justified only if the officers had a specific, reasonable basis for believing ... that they were in danger from persons" }, { "docid": "18287478", "title": "", "text": "protects “[t]he right of the people to be secure in their persons, houses, papers, and .effects, against unreasonable searches :and seizures.” U.S. Const. amend. IV. The Supreme Court has long held that “physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.” Payton v. New York, 445 U.S. 573, 585, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) (quotation marks and citation omitted). “Because the prophylaxis of the Fourth Amendment is at its zenith with respect to an individual’s home, a warrantless search of a private residence is presumptively unreasonable unless one of a few well-delineated exceptions applies.” United States v. Infante, 701 F.3d 386, 392 (1st Cir. 2012) (quotation marks and citation omitted); see also Payton, 445 U.S. at 586, 100 S.Ct. 1371. One of those exceptions, and the one at issue with respect to the initial and indisputably non-consensual search of Delgado’s residence, is the exception for protective sweeps. The Supreme Court set out the rules governing protective sweeps in Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990). A protective sweep is “a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others,” that “is narrowly confined to a .cursory visual inspection of those places in which a person might be hiding.” Id at 327, 110 S.Ct. 1093. Many protective sweeps take place following an arrest within a home, We .have also allowed protective sweeps, however, when an arrest “occurs just outside the home,” because such an arrest “can pose an equally serious threat to arresting officers as one that occurs in the home.” United States v. Lawlor, 406 F.3d 37, 41 (1st Cir. 2005). Buie instructs that a protective sweep is permissible only where there .are “articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.” Buie, 494 U.S. at 334, 110 S.Ct. 1093. In" }, { "docid": "11591376", "title": "", "text": "we held that the officers lawfully arrested him because he “ ‘voluntarily exposed himself to warrantless arrest’ by freely opening the door of his motel room to the police.” Id. at 1426 (quoting United States v. Johnson, 626 F.2d 753, 757 (9th Cir.1980)). Unlike the officers in Jardines and in this case, the officers in Vaneaton were standing in the common space of a motel when they knocked, rather than in the curtilage of a home. We therefore have no need to overrule Vaneaton. See Miller v. Gammie, 335 F.3d 889, 899-900 (9th Cir.2003) (en banc) (holding that “a three- judge panel is free to reexamine the holding of a prior panel” when the Supreme Court has “undercut the theory or reasoning underlying the prior circuit precedent in such a way that the cases are clearly irreconcilable”). Whether Vaneaton remains good law after Jardines is therefore a question for another case and another day. B. Protective Sweep The protective sweep doctrine authorizes “quick and limited” warrantless inspections “of those spaces where a person may be found” when “there are articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbor[ed] an individual posing a danger to those on the arrest scene.” United States v. Lemus, 582 F.3d 958, 962 (9th Cir.2009) (citation omitted) (alteration in original). In this case, the officers had no “reasonable, articulable suspicion” that anyone other than Lundin was present at his residence. Maryland v. Buie, 494 U.S. 325, 336, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990). Thus, the only plausible threat to the safety of those on the scene was Lundin himself. By the time the officers conducted the sweep of Lundin’s home, however, he had already been handcuffed and placed in a police vehicle. Thus, the officers lacked a reasonable ground for believing that there was a danger that would have justified the sweep of Lundin’s home. C. Inevitable Discovery The inevitable discovery exception does not apply when officers have probable cause to apply for a warrant but simply" } ]

[ { "docid": "22679737", "title": "", "text": "in their judicial capacities. Pierson v. Ray, 386 U. S. 547 (1967); Stump v. Sparkman, 435 U. S. 349 (1978).” Supreme Court of Virginia v. Consumers Union, 446 U. S. 719, 734-735 (1980). The courts below concluded that the judicial immunity doctrine required dismissal of the § 1983 action against the judge who issued the challenged injunction, and as the case comes to us, the judge has been properly dismissed from the suit on immunity grounds. It does not follow, however, that the action against the private parties accused of conspiring with the judge must also be dismissed. As the Court of Appeals correctly understood our cases to hold, to act “under color of” state law for § 1983 purposes does not require that the defendant be an officer of the State. It is enough that he is a willful participant in joint action with the State or its agents. Private persons, jointly engaged with state officials in the challenged action, are acting “under color” of law for purposes of § 1983 actions. Adickes v. S. H. Kress & Co., 398 U. S. 144, 152 (1970); United States v. Price, 383 U. S. 787, 794 (1966). Of course, merely resorting to the courts and being on the winning side of a lawsuit does not make a party a co-conspirator or a joint actor with the judge. But here the allegations were that an official act of the defendant judge was the product of a corrupt conspiracy involving bribery of the judge. Under these allegations, the private parties conspiring with the judge were acting under color of state law; and it is of no consequence in this respect that the judge himself is immune from damages liability. Immunity does not change the character of the, judge’s action or that of his co-conspirators. Indeed, his immunity is dependent on the challenged conduct being an official judicial act within his statutory jurisdiction, broadly construed. Stump v. Sparkman, 435 U. S. 349, 356 (1978); Bradley v. Fisher, supra, at 352, 357. Private parties who corruptly conspire with a judge in connection with such conduct" } ]

[ { "docid": "14378888", "title": "", "text": "or prejudice may well have affected its decision on the issue of liability as well. Id. For similar reasons, absent unusual circumstances, a remittitur is not appropriate when there is a finding of passion or prejudice. Id.; Everett v. S.H. Parks & Assocs., Inc., 697 F.2d 250, 253 n. 5 (8th Cir.1983). Finding no unusual circumstances here, we hold that the district court did not abuse, its discretion in granting a new trial with respect to damages and liability and refusing to offer a remittitur. IV. In the second trial, the claim tried to the jury was Dossett’s allegation that the Bank and the School District conspired to have her terminated for exercising her First Amendment rights at the R-6 school board meeting, and that the Bank was liable for that conspiracy under 42 U.S.C. § 1983. This claim was premised on the Supreme Court’s recognition that a private actor may be liable under § 1983 when the private actor “ ‘is a willful participant in joint activity with the State or its agents’ ” in denying a plaintiffs constitutional rights. Adickes v. S.H. Kress & Co., 398 U.S. 144, 152, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) (quoting United States v. Price, 383 U.S. 787, 794, 86 S.Ct. 1152, 16 L.Ed.2d 267 (1966)); see also Tower v. Glover, 467 U.S. 914, 920, 104 S.Ct. 2820, 81 L.Ed.2d 758 (1984) (“[A]n otherwise private person acts ‘under color of state law when engaged in a conspiracy with state officials to deprive another of federal rights.”); Dennis v. Sparks, 449 U.S. 24, 27-28, 101 S.Ct. 183, 66 L.Ed.2d 185 (1980). The jury ultimately returned a verdict in favor of the Bank. Dossett’s principal claim on appeal relates'to the district court’s jury instruction concerning the elements of her § 1983 claim. Section 1983 imposes liability for certain actions taken “under color of’ law that deprive a person “of a right secured by ihe Constitution and laws of the United States.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 931, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982) (internal quotation omitted). A deprivation of rights" }, { "docid": "23088485", "title": "", "text": "The private restaurant refused her service. See id. As the plaintiff and her students were leaving, the plaintiff was arrested for vagrancy. See id. The plaintiff sued the restaurant, alleging that it had engaged in a conspiracy with the police to violate her rights. See id. at 150-52, 90 S.Ct. 1598. The Court allowed her conspiracy claim against the restaurant to go forward, holding that, “[ajlthough this is a lawsuit against a private party, not the State or one of its officials, our cases make clear that petitioner will have made out a violation of her Fourteenth Amendment rights and will be entitled to relief under § 1983 if she can prove that a Kress employee, in the course of employment, and a Hatties-burg policeman somehow reached an understanding to deny Miss Adickes service in the Kress store, or to cause her subsequent arrest.” Id. at 152, 90 S.Ct. 1598. By allowing the plaintiff to pursue this claim, the Court merely applied the well-accepted principle that a private party’s joint participation in a conspiracy with the state provides a sufficient nexus to hold the private party responsible as a governmental actor. See Lugar, 457 U.S. at 941, 102 S.Ct. 2744 (“[W]e have consistently held that a private party’s joint participation with state officials in the seizure of disputed property is sufficient to characterize that party as a ‘state actor.’ ”); see also Dennis v. Sparks, 449 U.S. 24, 27-28, 101 S.Ct. 183, 66 L.Ed.2d 185 (1980) (“Private persons, jointly engaged with state officials in the challenged action, are acting ... ‘under color’ of law for purposes of § 1983 actions.”); United States v. Price, 383 U.S. 787, 794, 86 S.Ct. 1152, 16 L.Ed.2d 267 (19663) (“Private persons, jointly engaged with state officials in the prohibited action, are acting ‘under color’ of law for purposes of the statute. To act ‘under color’ of law does not require that the accused be an officer of the State. It is enough that he is a willful participant in joint activity with the State or its agents.”); Fonda v. Gray, 707 F.2d 435, 437" }, { "docid": "2997129", "title": "", "text": "rights and will be entitled to relief under § 1983 if she can prove that a [lunchroom] employee, in the course of employment, and a Hattiesburg policeman somehow reached an understanding to deny Miss Adiekes service in the [lunchroom], or to cause her subsequent arrest because she was a white person in the company of Negroes_ “Private persons, jointly engaged with state officials in the prohibited action, are acting ‘under color’ of law for purposes of the statute. To act ‘under color’ of law does not require that the accused be an officer of the State. It is enough that he is a willful participant in joint activity with the State or its agents.” Id. at 152, 90 S.Ct at 1605-06 (citing United States v. Price, 383 U.S. 787, 794, 86 S.Ct. 1152, 1156-1157, 16 L.Ed.2d 267) (emphasis added); see also Dennis v. Sparks, 449 U.S. 24, 27-28, 101 S.Ct. 183, 186-187, 66 L.Ed.2d 185; Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 941-942, 102 S.Ct. 2744, 2755-2756, 73 L.Ed.2d 482. The plaintiff claims that this is what he has alleged regarding the Party Defendants’ behavior. The district court in Adiekes had held that there was no evidence from which to infer a conspiracy, relying on the defendants’ denial of a conspiracy and their statements that no communications were made between the two parties regarding the arrest of Ms. Adiekes. Nevertheless, the Supreme Court held that it was error to grant summary judgment on the facts because a policeman had been in the lunchroom while Ms. Adiekes was waiting for service and the defendants had not disproven the possibility that this policeman had reached an understanding with a lunchroom employee regarding the refusal to serve; thus a genuine issue of material fact did indeed exist as to the existence of a conspiracy. The plaintiff also argues in the alternative that the Party Defendants may be held liable under 42 U.S.C. § 1983 because they were performing a function usually performed by a public entity, but they cite no case law to support this proposition. In response to the district" }, { "docid": "1893911", "title": "", "text": "Inc. v. City of Pontiac, 585 F.Supp. 1159, 1163 (E.D.Mich. 1984). The amended complaint alleges a comprehensive effort by state officials and private parties to prevent the construction of this hospital, and therefore involves sufficient state action for a Section 1983 claim. II. HOSPITAL DEFENDANTS A. 12 U.S.C. § 1983 Claim These defendants argue that plaintiff has no property interest protectible in a Section 1983 action and, therefore, they should be dismissed. For the same reasons stated, supra, with reference to the state defendants, this argument is without merit. The hospital defendants additionally argue that any state action for the purpose of a Section 1983 claim cannot extend to them, since they are private actors not clothed with the authority of state law. It is clear, however, that plaintiff’s allegations of actions by these defendants involving both state and private actors are sufficient to invoke Section 1983 against these defendants. In Adickes v. S.H. Kress & Company, 398 U.S. 144, 152, 90 S.Ct. 1598, 1605, 26 L.Ed.2d 142 (1970) the Supreme Court held, quoting United States v. Price, 383 U.S. 787, 794, 86 S.Ct. 1152, 1156, 16 L.Ed.2d 267 (1966), that: “[pjrivate persons, jointly engaged with state officials in the prohibited action, are acting ‘under color’ of state law for purposes of the statute____ It is enough that [the accused] is a willful participant in joint activity with the State or its agents.” In 1980, in Dennis v. Sparks, 449 U.S. 24, 101 S.Ct. 183, 66 L.Ed.2d 185 (1980), the Court held that allegations of a conspiracy with a judge are sufficient to defeat a motion to dismiss for failure to allege state action on the part of private parties, even where the judge is dismissed from the action as entirely immune. See also Macko v. Bryon, 641 F.2d 447 (6th Cir.1981), reversing a grant of summary judgment where a conspiracy was alleged between two prosecutors and several private parties, although the prosecutors were dismissed as immune. See also Tarleton v. Meharry Medical College, 717 F.2d 1523, 1533-34 (6th Cir.1983), in which the court reversed the grant of summary judgment" }, { "docid": "19054981", "title": "", "text": "on the issue; plaintiffs must show sufficient state involvement with the precise action alleged to be unconstitutional. Id. The conspiracy claim in the first cause of action does not allege that defendant Borglum, in interfering with plaintiffs’ constitutional rights, conspired with defendant Hogan or any other state official to deny plaintiffs their constitutional rights. (See para. 8 of the Amended Complaint). The Court in Adickes, supra, said: The involvement of a state official in such a conspiracy plainly provides the state action essential to show a direct violation of * * * Four teenth Amendment equal protection rights, whether or not the actions of the [state officials] were officially-authorized, or lawful; * * *. Moreover a private party involved in such a conspiracy, even though not an official of the State, can be liable under § 1983. “Private persons, jointly engaged with state officials in the prohibited action, are acting ‘under color’ of law for purposes of the statute. To act ‘under color’ of law does not require that the accused be ajn officer of the State. It is enough that he is a willful participant in joint activity with the state or its agents,”. United States v. Price, 383 U.S., at 789 [86 S.Ct. 1152, 16 L.Ed.2d 267]. (398 U.S. at 152, 90 S.Ct. at 1605, Majority Opinion). Clearly, it is not alleged nor can it be proved that Mrs. Borglum acted under compulsion of State law. The next question, therefore, is whether there is alleged in the complaint sufficient State involvement in defendant Borglum’s alleged unlawful acts as to meet the state action requirement. The Adickes Court left open the question of how much less involvement on the part of a state, other than state compulsion, might satisfy the state action requirement. (398 U.S. at 171, 90 S.Ct. 1598, Majority Opinion). And, as the Court pointed out it “is far from clear” under its prior decisions when and to what extent a state’s involvement with the wrongful action of a private person is sufficient for Fourteenth Amendment purposes. Id. at 170, 90 S.Ct. 1598. Plaintiffs claim in their" }, { "docid": "5407424", "title": "", "text": "164, 98 S.Ct. 1729, 1737, 56 L.Ed.2d 185 (1978); United States v. Price, 383 U.S. 787, 794, 86 S.Ct. 1152, 1157, 16 L.Ed.2d 267 (1966). One way the “joint action” test is satisfied is if a “conspiracy” is shown. Adickes v. S.H. Kress & Co., 398 U.S. 144, 152, 90 S.Ct. 1598, 1605, 26 L.Ed.2d 142 (1970) (quoting Price, 383 U.S. at 794, 86 S.Ct. at 1157). See also Dennis v. Sparks, 449 U.S. 24, 27-28, 101 S.Ct. 183, 186-87, 66 L.Ed.2d 185 (1980). In Adickes and Price, the Court explained that this last test is met where “[pjrivate persons, jointly engaged with the state officials in the prohibited action, are acting ‘under color’ of law for purposes of [42 U.S.C. § 1983]____ It is enough that [the private party] is a willful participant in joint activity with the State or its agents.” Adickes, 398 U.S. at 152, 90 S.Ct. at 1606; Price, 383 U.S. at 794, 86 S.Ct. at 1157. . Because of the active involvement of deputy sheriff Esquivel, state action is shown. The inquiry, therefore, focuses on whether the private individuals, defendants Rios and Mendoza, willfully participated in a joint activity with deputy sheriff Esquivel, thereby assuming the character of state action. The only fact alleged in Count I concerning defendant Mendoza is that he owned the rental dwelling. The facts in Count I pertaining to defendant Rios is that she managed the rental dwelling and appeared at the dwelling with deputy sheriff Esquivel. It is well established that bare conclusory allegations of “conspiracy” or “concerted action” will not suffice to withstand a motion to dismiss. Sooner Products Co. v. McBride, 708 F.2d 510, 512 (10th Cir.1983) (per curiam); Benavidez v. Gunnell, 722 F.2d 615, 618 (10th Cir.1983); Slotnick v. Staviskey, 560 F.2d 31, 33 (1st Cir.1977); Harley v. Oliver, 539 F.2d 1143, 1146 (8th Cir.1976); Tarkowski v. Bartlett Realty Co., 644 F.2d 1204, 1206 (7th Cir.1980); Weiss v. Willow Tree Civic Ass’n, 467 F.Supp. 803, 811 (S.D.N.Y.1979). The factual basis supporting the existence of a conspiracy must be pled in some detail in civil rights actions." }, { "docid": "3848014", "title": "", "text": "Through showing that a private defendant conspired with public officials, the requisite state action may be demonstrated. See Turner v. Upton County, 915 F.2d 133, 137 n. 6 (5th Cir.1990), cert. denied, 498 U.S. 1069, 111 S.Ct. 788, 112 L.Ed.2d 850 (1991); Villanueva v. McInnis, 723 F.2d 414, 418 (5th Cir.1984). The United States Supreme Court has explained: a private party involved in such a conspiracy, even though not an official of the State, can be liable under § 1983. “Private persons, jointly engaged with state officials in the prohibited action, are acting ‘under color’ of law for purposes of the statute. To act ‘under col- or’ of law does not require that the accused be an officer of the State. It is enough that he is a willful participant in joint activity with the State or its agents.... ” Adickes, 398 U.S. at 152, 90 S.Ct. 1598 (quoting United States v. Price, 383 U.S. 787, 794, 86 S.Ct. 1152, 16 L.Ed.2d 267 (1966)); see Cinel v. Connick, 15 F.3d 1338, 1343 (5th Cir.), cert. denied, 513 U.S. 868, 115 S.Ct. 189, 130 L.Ed.2d 122 (1994); McCartney v. First City Bank, 970 F.2d 45, 47 (5th Cir.1992); Sims v. Jefferson Downs Racing Ass’n, Inc., 778 F.2d 1068, 1076 (5th Cir.1985). Liability may be imposed even if the private defendant is alleged to have conspired with an official who has absolute immunity. See Brummett, 946 F.2d at 1185 (citing Dennis, 449 U.S. at 27, 101 S.Ct. 183; Turner, 915 F.2d at 137). A private person who conspires with a person acting under color of state law, even though the latter party may be immune from liability, may be held liable in damages for his participation in the conspiracy. See Dennis, 449 U.S. at 27, 101 S.Ct. 183. Thus, “[u]nder § 1983 conspiracy can furnish the conceptual spring for imputing liability from one to another.” Farrar v. Cain, 756 F.2d 1148, 1151 (5th Cir.1985); see Villanueva, 723 F.2d at 418. In response to Weingarten’s motion for summary judgment, Albertson’s asserts that “Weingarten, through its various personnel ... combined with TxDOT ... to" }, { "docid": "17518375", "title": "", "text": "by the government or by a person to whom the government is responsible. Id. “Second, the party charged with the deprivation must be a person who may fairly be said to be a state actor.” Id. The Supreme Court has also consistently held that a party's joint participation with state officials in an unlawful action was enough to constitute \"state action” under § 1983. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). In Adickes, the Court noted the following: 'Private persons, jointly engaged with state officials in the prohibited action, are acting \"under color” of law for purposes of the statute. To act \"under color” of law does not require that the accused be an officer of the State. It is enough that he is a willful participant in joint activity with the State or its agents.’ 398 U.S. at 152, 90 S.Ct. 1598 (quoting United States v. Price, 383 U.S. 787, 794, 86 S.Ct. 1152, 16 L.Ed.2d 267 (1966)). Cf. West v. Atkins, 487 U.S. 42, 50, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988) (finding that a \"public employee acts under color of state law while acting in his official capacity or while exercising his responsibilities pursuant to state law”); Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 164-66, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978) (holding that private parties’ use of New York statute without more was not state action absent allegation of the participation of any public officials). . For purposes of remand, we emphasize that we pass no judgment as to whether federal action is involved in the instant case. . It should also be noted that the concern the Court had regarding qualified immunity and its effect on deterring individual officers is not a concern in the context of private corporations inasmuch as private corporations are not public officials; and thus, not entitled to qualified immunity. See Vector Research, Inc. v. Howard & Howard Attorneys, P.C., 76 F.3d 692, 698 (6th Cir.1996) (holding that \"a party not a public official may be liable under Bivens, but" }, { "docid": "23373627", "title": "", "text": "understanding to deny [her] service in the Kress store, or to cause her subsequent arrest because she was a white person in the company of Negroes.” 398 U.S. at 152,90 S.Ct. at 1605. The Court was plainly untroubled by the fact that “[t]he involvement of a state official in such a conspiracy plainly provid[ed] the state action essential . . .’’ Id. But in addition, the Court, discussing the elements of a section 1983 conspiracy between public officials and private persons, made clear that a party who was not an official of the state could be liable for damages under section 1983 by virtue of the fact that the private person himself acts under color of state law and fulfills the state action requirement of section 1983 actions so long as he is involved in a conspiracy with a state official. The Court declared that a private party involved in such a conspiracy, even though not an official of the State, can be liable under § 1983. “Private persons, jointly engaged with state officials in the prohibited action, are acting ‘under color’ of law for purposes of the statute. To act ‘under color’ of law does not require that the accused be an officer of the State. It is enough that he is a willful participant in joint activity with the State or its agents . . . 398 U.S. at 152, 90 S.Ct. at 1605-1606, quoting United States v. Price, 383 U.S. 787, 794, 86 S.Ct. 1152, 16 L.Ed.2d 267 (1966) (citation omitted). By the same reasoning, coconspirators act under color of law and can be sued for damages in a section 1983 action when they involve a judge in their plot, regardless of whether the judge can be brought to justice for his part in the scheme. It follows that the unavailability of damages as a remedy against either Judge Carrillo or our hypothetical judge has no effect on whether the judges’ actions were those of the state such that their coconspirators, too, acted under color of state law when they involved the judge in their conspiracy. The" }, { "docid": "5407423", "title": "", "text": "without their belongings. The plaintiffs were not given notice of eviction or an opportunity to be heard prior to the deprivation of their property. Defendant Esquivel arrested plaintiffs, without a warrant, and transported them to the Dona Ana County Jail, where they were charged with criminal offenses and incarcerated. All charges were dismissed subsequently. In order to state a claim under 42 U.S.C. § 1983, the plaintiffs must show two essential elements: (1) that the defendants acted under color of state law, and (2) that the defendants caused them to be deprived of a right secured by the constitution and laws of the United States. Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982). Action taken by private individuals may be “under color of state law” where there is “significant” state involvement in the action. Id. at 931, 102 S.Ct. at 2750. One of the tests or factors to determine when state action is “significant” is the joint action test. Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 164, 98 S.Ct. 1729, 1737, 56 L.Ed.2d 185 (1978); United States v. Price, 383 U.S. 787, 794, 86 S.Ct. 1152, 1157, 16 L.Ed.2d 267 (1966). One way the “joint action” test is satisfied is if a “conspiracy” is shown. Adickes v. S.H. Kress & Co., 398 U.S. 144, 152, 90 S.Ct. 1598, 1605, 26 L.Ed.2d 142 (1970) (quoting Price, 383 U.S. at 794, 86 S.Ct. at 1157). See also Dennis v. Sparks, 449 U.S. 24, 27-28, 101 S.Ct. 183, 186-87, 66 L.Ed.2d 185 (1980). In Adickes and Price, the Court explained that this last test is met where “[pjrivate persons, jointly engaged with the state officials in the prohibited action, are acting ‘under color’ of law for purposes of [42 U.S.C. § 1983]____ It is enough that [the private party] is a willful participant in joint activity with the State or its agents.” Adickes, 398 U.S. at 152, 90 S.Ct. at 1606; Price, 383 U.S. at 794, 86 S.Ct. at 1157. . Because of the active involvement of deputy sheriff Esquivel, state action is shown." }, { "docid": "2997128", "title": "", "text": "the Supreme Court did not directly address the plaintiffs’ claims against the Republican Party; it only affirmed this Court’s judgment reversing the district court’s dismissal of the plaintiffs’ claims and remanded them for further proceedings. Plaintiff classes’ reliance on their complaint being similar to the Rutan complaint is simply not dispositive. The plaintiff also contends that Adickes v. S.H. Kress and Company, 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142, governs. In Adickes, the plaintiff was a white school teacher who was refused service in a lunchroom when she was accompanied by six afri-ean-ameriean students, and was then arrested for vagrancy when she left the lunchroom premises. She filed a complaint under § 1983 against both the owner of the lunchroom and the policeman who arrested her, claiming that a conspiracy existed between those two parties. The Supreme Court held that: Although this is a lawsuit against a private party, not the State or one of its officials, our cases make clear that petitioner will have made out a violation of her Fourteenth Amendment rights and will be entitled to relief under § 1983 if she can prove that a [lunchroom] employee, in the course of employment, and a Hattiesburg policeman somehow reached an understanding to deny Miss Adiekes service in the [lunchroom], or to cause her subsequent arrest because she was a white person in the company of Negroes_ “Private persons, jointly engaged with state officials in the prohibited action, are acting ‘under color’ of law for purposes of the statute. To act ‘under color’ of law does not require that the accused be an officer of the State. It is enough that he is a willful participant in joint activity with the State or its agents.” Id. at 152, 90 S.Ct at 1605-06 (citing United States v. Price, 383 U.S. 787, 794, 86 S.Ct. 1152, 1156-1157, 16 L.Ed.2d 267) (emphasis added); see also Dennis v. Sparks, 449 U.S. 24, 27-28, 101 S.Ct. 183, 186-187, 66 L.Ed.2d 185; Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 941-942, 102 S.Ct. 2744, 2755-2756, 73 L.Ed.2d 482. The plaintiff claims" }, { "docid": "23645250", "title": "", "text": "was clarified in Sparks v. Duval County Ranch Company Inc., 604 F.2d 976 (5th Cir. 1979) (en banc), aff’d sub nom., Dennis v. Sparks, 449 U.S. 24, 101 S.Ct. 183, 66 L.Ed.2d 185 (1980), in which this Court expressly overruled the doctrine of derivative immunity in § 1983 actions and held that a private person who conspires with a person acting under color of state law, even though the latter party may be immune from liability for his participation in the conspiracy, may be held liable for damages for his participation in the conspiracy. In reaching its holding, the Court quoted from Adickes v. S. H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) wherein the Supreme Court declared that: a private party involved in such a conspiracy, even though not an official of the State, can be liable under § 1983, “Private persons, jointly engaged with state officials in the prohibited action, are acting ‘under color’ of law for purposes of the statute. To act ‘under color’ of law does not require that the accused be an officer of the State. It is enough that he is a willful participant in joint activity with the State or its agents...” 398 U.S. at 152, 90 S.Ct. at 1605-1606, 26 L.Ed.2d at 151, quoting United States v. Price, 383 U.S. 787, 86 S.Ct. 1152, 16 L.Ed.2d 267 (1966). Since the Sparks decision this Court has directly held that private attorneys alleged to have conspired with immune State officials may be held liable under § 1983. Hen-zel v. Gerstein, 608 F.2d 654 (5th Cir. 1979). See Williams v. Rhoden, 629 F.2d 1099 (5th Cir. 1980). Accord Cook v. Houston Post, 616 F.2d 791 (5th Cir. 1980). It is now clear that the doctrine of derivative immunity will no longer operate to defeat the state action requirement necessary to hold Appellee Fleming liable for his alleged participation in a conspiracy to deny Richardson of his rights. We, therefore, hold the District Court erred in dismissing the case against Fleming on this ground. Although the basis underlying the District" }, { "docid": "3848013", "title": "", "text": "be said to be a state actor. This may be because he is a state official, because he has acted together with or has obtained significant aid from state officials, or because his conduct is otherwise chargeable to the State. Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982). Due to the lack of state action, private persons generally may not be held liable under § 1983. See Richardson v. Fleming, 651 F.2d 366, 371 (5th Cir.1981). Under certain circumstances, however, a conspiracy theory may be utilized to establish that a private defendant acted under color of state law within the meaning of § 1983. See Brummett v. Camble, 946 F.2d 1178, 1185 (5th Cir.1991), cert. denied, 504 U.S. 965, 112 S.Ct. 2323, 119 L.Ed.2d 241 (1992) (citing Dennis v. Sparks, 449 U.S. 24, 27, 101 S.Ct. 183, 66 L.Ed.2d 185 (1980); Adickes v. S.H. Kress & Co., 398 U.S. 144, 150-52, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Smith v. Winter, 782 F.2d 508, 512 (5th Cir.1986)). Through showing that a private defendant conspired with public officials, the requisite state action may be demonstrated. See Turner v. Upton County, 915 F.2d 133, 137 n. 6 (5th Cir.1990), cert. denied, 498 U.S. 1069, 111 S.Ct. 788, 112 L.Ed.2d 850 (1991); Villanueva v. McInnis, 723 F.2d 414, 418 (5th Cir.1984). The United States Supreme Court has explained: a private party involved in such a conspiracy, even though not an official of the State, can be liable under § 1983. “Private persons, jointly engaged with state officials in the prohibited action, are acting ‘under color’ of law for purposes of the statute. To act ‘under col- or’ of law does not require that the accused be an officer of the State. It is enough that he is a willful participant in joint activity with the State or its agents.... ” Adickes, 398 U.S. at 152, 90 S.Ct. 1598 (quoting United States v. Price, 383 U.S. 787, 794, 86 S.Ct. 1152, 16 L.Ed.2d 267 (1966)); see Cinel v. Connick, 15 F.3d 1338, 1343 (5th Cir.), cert." }, { "docid": "428268", "title": "", "text": "city policeman) collaborated or conspired with a private person (there a lunch-counter waitress) to deprive the plaintiff of a constitutional right (in that case the right to receive equal treatment and service in a place of public accommodation), stating: “The involvement of a state official in such a conspiracy plainly provides the state action essential to show a direct violation of petitioner’s Fourteenth Amendment equal protection rights, whether or not the actions of the police were officially authorized, or lawful; Monroe v. Pape, 365 U.S. 167 [81 S.Ct. 473, 5 L.Ed.2d 492] (1961); see United States v. Classic, 313 U.S. 299, 326 [61 S.Ct. 1031, 85 L.Ed. 1368] (1941); Screws v. United States, 325 U.S. 91, 107-111 [65 S.Ct. 1031, 89 L.Ed. 1495] (1945); Williams v. United States, 341 U.S. 97, 99-100 [71 S.Ct. 576, 95 L.Ed. 774] (1951). Moreover, a private party involved in such a conspiracy, even though not an official of the State, can be liable under § 1983. ‘Private persons, jointly engaged with state officials in the prohibited action, are acting “under color” of law for purposes of the statute. To act “under color” of law does not require that the accused be an officer of the State. It is enough that he is a willful participant in joint activity with the State or its agents,’ United States v. Price, 383 U.S. 787, 794 [86 S.Ct. 1152, 16 L.Ed.2d 267] (1966).” [Footnote omitted] Id. at 152, 90 S.Ct. at 1605. The police officer or government agent may not escape responsibility by claiming that the violation of the plaintiff’s rights was committed by the private person involved in such a collaborative undertaking. As the court stated in United States v. Mekjian, 505 F.2d 1320, 1327 (5th Cir. 1975): “Accordingly, where federal officials actively participate in a search being conducted by private parties or else stand by watching with approval as the search continues, federal authorities are clearly implicated in the search and it must comport with fourth amendment requirements.” Applying these principles here, the complaint was sufficient to withstand a dismissal on its face. The allegation that" }, { "docid": "23088486", "title": "", "text": "the state provides a sufficient nexus to hold the private party responsible as a governmental actor. See Lugar, 457 U.S. at 941, 102 S.Ct. 2744 (“[W]e have consistently held that a private party’s joint participation with state officials in the seizure of disputed property is sufficient to characterize that party as a ‘state actor.’ ”); see also Dennis v. Sparks, 449 U.S. 24, 27-28, 101 S.Ct. 183, 66 L.Ed.2d 185 (1980) (“Private persons, jointly engaged with state officials in the challenged action, are acting ... ‘under color’ of law for purposes of § 1983 actions.”); United States v. Price, 383 U.S. 787, 794, 86 S.Ct. 1152, 16 L.Ed.2d 267 (19663) (“Private persons, jointly engaged with state officials in the prohibited action, are acting ‘under color’ of law for purposes of the statute. To act ‘under color’ of law does not require that the accused be an officer of the State. It is enough that he is a willful participant in joint activity with the State or its agents.”); Fonda v. Gray, 707 F.2d 435, 437 (9th Cir.1983) (“A private party may be considered to have acted under color of state law when it engages in a conspiracy or acts in concert with state agents to deprive one’s constitutional rights.”). The existence of a conspiracy between the private entity and state officials to pursue a joint and unconstitutional end distinguishes Adickes from this case; recall, here, that Defendant offered Plaintiff a position and would have hired him but for the government’s social-security-number requirement. There was no joint effort to deprive Plaintiff of his constitutional rights. The plaintiff in Adickes further alleged that the restaurant had refused her service pursuant to a state custom or policy. See 398 U.S. at 161, 90 S.Ct. 1598. The Court held that the plaintiff could prove an equal protection violation “if she proves that Kress refused her service because of a state-enforced custom of segregating the races in public restaurants.” Id. at 171, 90 S.Ct. 1598. Plaintiff argues that this analysis demonstrates that governmental com pulsion, without more, is sufficient to hold a private defendant liable." }, { "docid": "23485331", "title": "", "text": "amount of money we could.’ ” See Springdale Water and Sewer Department v. Harrison, No. CA 84-156, slip op. at 2 (Ark.Ct.App. Feb. 6, 1985). . Section 1983 provides, in pertinent part, as follows: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law____ 42 U.S.C. § 1983. . The allegations in the complaint of a conspiracy are sufficient to implicate defendant McGo-odwin, Williams and Yates, Inc. (the consulting engineers), even though it is considered a “private person.\" The Supreme Court has held that the involvement of state officials in a conspiracy with private persons \"plainly provides the state action essential to show a direct violation” of a person’s federal constitutional rights. Adickes v. S.H. Kress & Co., 398 U.S. 144, 152, 90 S.Ct. 1598, 1605, 26 L.Ed.2d 142 (1970). Moreover, a private party involved in such a conspiracy, even though not an official of the State, can be liable under § 1983. \"Private persons, jointly engaged with state officials in the prohibited action, are acting ‘under color’ of law for purposes of the statute. To act 'under color’ of law does not require that the accused be an officer of the State. It is enough that he is a willful participant in joint activity with the State or its agents.\" Id. (quoting United States v. Price, 383 U.S. 787, 794, 86 S.Ct. 1152, 1156, 16 L.Ed.2d 267 (1966)). See also note 14, infra at 1430. . See Ark.Stat.Ann. § 35-101, reprinted in Collier, 733 F.2d at 1316 n. 10. . In Collier this Court, while recognizing that Parrattv. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981) involved a procedural due process claim, noted that the Parratt analysis was equally applicable to claims alleging a taking without just compensation. See Collier, 733 F.2d at 1313-14 n. 4. The United States" }, { "docid": "5721305", "title": "", "text": "state law.’ ” Monroe v. Pape, 365 U.S. 167, 184, 81 S.Ct. 473, 482, 5 L.Ed.2d 492 (1961) (quoting United States v. Classic, supra, 313 U.S. at 326, 61 S.Ct. at 1043). To act under “color of” state law for § 1983 purposes does not require that the defendant be an officer of the state. Private parties may incur liability for their conduct when the individual actor is “a willful participant in joint activity with the State or its agents.” Adickes v. S.H. Kress & Co., supra, 398 U.S. at 152, 90 S.Ct. at 1606 (quoting United States v. Price, supra, 383 U.S. at 794, 86 S.Ct. at 1157). In Adickes a white teacher sued for the refusal of the defendant Kress to serve her lunch in its restaurant while she was in the company of six of her black students, and for her subsequent arrest by the Hattiesburg Police Department on a vagrancy charge. The plaintiff alleged that the defendant and the police had conspired to deprive her of her constitutional rights. The district court entered summary judgment for the defendant on the conspiracy count and this court affirmed. Adickes v. S.H. Kress & Co., 252 F.Supp. 140 (S.D.N.Y.1966), aff'd, 409 F.2d 121 (2d Cir.1968). In reversing, the Supreme Court noted that the plaintiff would be entitled to relief “if she can prove that a Kress employee, in the course of employment and a Hattiesburg policeman somehow reached an understanding to deny Miss Adickes service” in the restaurant or to cause her subsequent arrest. Adickes v. S.H. Kress & Co., supra, 398 U.S. at 152, 90 S.Ct. at 1605. Involvement of a state official provided the requisite state action to show a direct violation of the plaintiff’s constitutional rights. See id. As to the private party — Kress— the Court found that such a person could be liable under § 1983 even though not an official of the State when that person was jointly engaged as a willful participant in the prohibited action. In concluding that it was error to grant summary judgment for Kress on the conspiracy count," }, { "docid": "22893828", "title": "", "text": "its entitlement beyond a reasonable doubt. Madison v. Deseret Livestock Co., 574 F.2d 1027 (10th Cir. 1978). Thus, drawing the inferences in the light most favorable to the Nortons, we hold that there are sufficient allegations of entanglement between Assistant District Attorney Pace and Liddel which, if proven, clothe Liddel’s actions with color of state law in conspiring with Pace to maliciously prosecute the Nortons. The involvement of a state official in such a conspiracy plainly provides the state action essential to show a direct violation of petitioner’s Fourteenth Amendment equal protection rights, whether or not the actions of the police were officially authorized, or lawful; . Moreover, a private party involved in such a conspiracy, even though not an official of the State, can be held liable under § 1983. “Private persons, jointly engaged with state officials in the prohibited action, are acting ‘under color’ of law for purposes of the statute. To act ‘under color’ of law does not require that the accused be an officer of the State. It is enough that he is a willful participant in joint activity with the State or its agents,” United States v. Price, 383 U.S. 787, 794, [86 S.Ct. 1152, 1157, 16 L.Ed.2d 267] (1966). Adickes v. S. H. Kress & Company, supra, 398 U.S. at page 152, 90 S.Ct. at page 1605. The ultimate destiny of the private party can in no way be said to depend upon the status of the official with whom he conspired or upon the defenses available to that official. The concerted action which permits a finding of state action cannot simply be erased by the absence of the state actor as a defendant or by the fact that the state actor might later raise a successful defense to the plaintiff’s claim. Downs v. Sawtelle, 574 F.2d 1,15 (1st Cir. 1978), cert. denied, 439 U.S. 910, 99 S.Ct. 278, 58 L.Ed.2d 255 (1978). Accord: Sparks v. Duval County Ranch Co., Inc., 604 F.2d 976 (5th Cir. 1979) (en banc), cert. granted sub. nom. Dennis v. Sparks,-U.S.-, 100 S.Ct. 1336, 63 L.Ed.2d 775 (1980). C" }, { "docid": "11620602", "title": "", "text": "least in the present stage of this appeal; indeed it is not clear that the matter was appropriately presented in the district court. Rather, having employed the diversity jurisdiction of the district court, Mrs. Boileau raised these allegations to forestall any res judicata/collateral estoppel effects of the prior adjudication. Since we hold that the district court erred on other independent grounds in its res judicata/collateral estoppel ruling, we do not reach the question whether this third point could, if substantiated, serve as an independent bar to the preclusion doctrines. B. Mrs. Boileau sought to amend her complaint upon resumption of the federal suit based on intervening changes in decisional law applicable to § 1983 actions. When Mrs. Boileau’s suit was originally filed in federal court the liability of private persons under § 1983 was governed by Adickes v. S.H. Kress & Co., 398 U.S. 144, 152, 90 S.Ct. 1598, 1605, 26 L.Ed.2d 142 (1970): Private persons, jointly engaged with state officials in the prohibited action, are acting “under color” of law for purposes of the statute. To act “under col- or” of law does not require that the accused be an officer of the State. It is enough that he is a willful participant in joint activity with the State or its agents, [quoting United States v. Price, 383 U.S. 787, at 794, 86 S.Ct. 1152, 1157, 16 L.Ed.2d 267 (1966).] Subsequently, Meyer v. Curran, 397 F.Supp. 512 (E.D.Pa.1975) held that a private individual who was deemed to have acted under color of state law together with a state official enjoyed the full immunities of that state official. Meyer thus limited liability under Adickes when the state official enjoyed immunity. Since the state action in the present case involved a state court judge enjoying absolute immunity, see Supreme Court of Virginia v. Consumers Union, 446 U.S. 719, 734-35, 100 S.Ct. 1967, 1975-76, 64 L.Ed.2d 641 (1980) (and cases cited therein), Meyer could be read as precluding a § 1983 action. In November 1980, during the stay of the federal proceedings, the Supreme Court by implication rejected the reasoning of Meyer." }, { "docid": "23345127", "title": "", "text": "individual to act under color of law, there must be evidence of a concerted effort between a state actor and that individual. Id. at 152, 90 S.Ct. 1598; Moore v. Marketplace Restaurant, Inc., 754 F.2d 1336, 1352 (7th Cir.1985) (emphasis added). To establish § 1983 liability through a conspiracy theory, a plaintiff must demonstrate that: (1) a state official and private individual(s) reached an understanding to deprive the plaintiff of his constitutional rights, Starnes, 39 F.3d at 1397; and (2) those individual(s) were “ “willful participants] in joint activity with the State or its agents.’ ” Adickes, 398 U.S. at 152, 90 S.Ct. 1598 (quoting United States v. Price, 383 U.S. 787, 794, 86 S.Ct. 1152, 16 L.Ed.2d 267 (1966)). In this appeal, Fries argues that the defendants conspired with Judge Kinney and acted under color of state law to deprive him of his property without due process of law. Fries cites the Supreme Court’s decision in Dennis v. Sparks, 449 U.S. 24, 101 S.Ct. 183, 66 L.Ed.2d 185 (1980), to support his conspiracy theory and explains that “[p]rivate persons, jointly engaged with state officials in the challenged action, are acting under color of law for purposes of § 1983.” 449 U.S. at 27-28, 101 S.Ct. 183. Fries claims that Judge Kinney conspired with the defendants to either conceal or destroy certain court documents to deprive him of his royalty payments, and asserts that Judge Kinney’s failure to rule on some of the motions plaintiff had filed also resulted from the defendants’ influence. In light of the alleged conspiracy and “joint action,” Fries argues that the complaint sufficiently states a claim for relief under § 1983. Although Fries correctly _ restated the Court’s conclusion that, generally, private individuals act under color of law when jointly acting with a state official to deprive some person of his constitutional right, see Dennis, 449 U.S. at 27-28, 101 S.Ct. 183, he faded to mention the Supreme Court’s remark immediately following: “[o]f course, merely ... being on the winning side of a lawsuit does not make a party a co-conspirator or a joint actor" } ]

[ { "docid": "23626666", "title": "", "text": "elements of felony escape from custody in North Carolina are: “(1) lawful custody, (2) while serving a sentence imposed upon a plea of guilty, a plea of nolo contendere, or a conviction for a felony, and (3) escape from such custody.”). Furthermore, felony escape from custody in North Carolina does not constitute one of the specifically named crimes in § 924(e)(2)(B)(ii). Therefore, the question becomes whether it satisfies the “otherwise clause” of § 924(e)(2)(B)(ii). Whether a conviction satisfies this clause “is determined by a categorical approach, whereby the court looks only at the fact of conviction and the statutory definition of the offense, and not to the underlying facts of a specific conviction.” United States v. Thomas, 2 F.3d 79, 80 (4th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 1194, 127 L.Ed.2d 543 (1994) (citing Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 2160, 109 L.Ed.2d 607 (1990)). Under this approach, we must make “common-sense judgments about whether a given offense proscribes generic conduct with the potential for serious physical injury to another.” United States v. Custis, 988 F.2d 1355, 1363 (4th Cir.), cert. granted on other grounds, — U.S. -, 114 S.Ct. 299, 126 L.Ed.2d 248 (1993), and aff'd, — U.S. -, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994). Applying the prescribed categorical approach to a conviction for felony escape from custody in North Carolina, see N.C.Gen. Stat. § 148-45(b)(l), we conclude that it “involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C.A. § 924(e)(2)(B)(ii) (West Supp.1995). In North Carolina, “[a] prisoner serving a sentence imposed upon conviction of a felony,” N.C.Gen.Stat. § 148-45(b)(l), “who shall escape or attempt to escape from the [North Carolina] State prison system, shall ... be punished as a Class J felon,” N.C.Gen.Stat. § 148-45(b). No one could credibly dispute the contention that an overt escape, especially an overt escape from a maximum security prison, inherently presents a serious potential risk of physical injury to another. Hair-ston, however, centers his argument that felony escape from custody in North Carolina does not present a serious" } ]

[ { "docid": "16542543", "title": "", "text": "the scope of Guideline § 4B1.2(a), we must utilize a categorical approach. See Hill, 131 F.3d at 1062; U.S.S.G. § 4B1.2, cmt. n.l (stating that the relevant inquiry under § 4B1.2(a)(2) is whether the conduct “expressly charged ... by its nature” presents a serious potential risk of physical injury); see also Taylor v. United States, 495 U.S. 575, 600-02, 110 S.Ct. 2143, 2159-60, 109 L.Ed.2d 607 (1990); Mathis, 963 F.2d at 408. Utilizing this approach, we must confine our review to the conduct prohibited by the statutes at issue or set forth in the charging papers, and “ ‘should not examine the actual conduct underlying the offense.’” Hill, 131 F.3d at 1062 (quoting Mathis, 963 F.2d at 408). In this case, because Smith’s and Cook’s escape indictments are devoid of detail, and Thomas’ indictments were never proffered to the court, the parties agree that we should look no further than the statutory language. See Taylor, 495 U.S. at 600, 110 S.Ct. at 2159; United States v. Luster, 305 F.3d 199, 202 (3d Cir.2002); United States v. Pierce, 278 F.3d 282, 287 (4th Cir.2002). The parties also agree that neither the D.C.Code provisions, nor the federal escape statute, fall within the first subsection of § 4B1.2(a). That is, the offenses defined by those statutes do not have “as an element the use, attempted use, or threatened use of physical force against the person of another.” U.S.S.G. § 4B1.2(a)(l) (emphasis added). Nor is escape one of the four crimes of violence specifically enumerated in § 4B1.2(a)(2): burglary, arson, extortion, or the use of explosives. Thus, the only remaining question is whether escape falls within the “otherwise” clause of § 4B1.2(a)(2): a crime that “otherwise involves conduct that presents a serious potential risk of physical injury to another.” Id. § 4B1.2(a)(2). The defendants contend that the offenses for which they were convicted do not fall within the “otherwise” clause because they can be committed without force or violence. As they correctly point out, the statutes at issue have been construed expansively. Knowingly absenting oneself from custody without permission is sufficient to constitute a" }, { "docid": "15379102", "title": "", "text": "physical force or “presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B). See also United States v. Rainey, 362 F.3d 733, 734 (11th Cir.2004). We have recognized that “[i]n determining whether a particular offense falls within this definition, the Supreme Court has directed trial courts to pursue a categorical approach, ‘looking only to the statutory definitions of the prior offenses, and not to the particular facts underlying those convictions.’” United States v. Wilkerson, 286 F.3d 1324, 1325 (11th Cir.2002) (quoting Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)). See also James v. United States, — U.S. -, 127 S.Ct. 1586, 1594, 167 L.Ed.2d 532 (2007) (we “do not generally consider the ‘particular facts disclosed by the record of conviction’ ”) (internal citations omitted). We may look beyond the “fact of conviction and the statutory definition of the prior offense” to the “particular facts underlying those convictions” only in “a narrow range of cases” where it is impossible to determine from the face of the judgment or the violated statute whether the prior conviction was for a violent felony. Taylor, 495 U.S. at 600, 602, 110 S.Ct. 2143. See also Shepard v. United States, 544 U.S. 13, 17, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). We have previously held that escape is a crime of violence for the purpose of determining career offender status under § 4B1.2 of the Sentencing Guidelines. United States v. Gay, 251 F.3d 950, 952 (11th Cir.2001). We have also held that our cases interpreting “crime of violence” under § 4B1.2 provide important guidance in determining what is a “violent felony” under the ACCA “because the definitions for both terms are virtually identical.” Rainey, 362 F.3d at 735. Therefore, we hold that, just as under the Guidelines, escape is a violent felony for purposes of determining armed career criminal status under the ACCA. II. Taylor pled guilty to escape in a Florida court. There is no ambiguity in the fact of his conviction for escape. Therefore, the district court was bound by Taylor and Wilkerson" }, { "docid": "6831764", "title": "", "text": "Tenth Circuit noted, an escapee “is likely to possess a variety of supercharged emotions, and in evading those trying to recapture him, may feel threatened by police officers, ordinary citizens, or even fellow escapees. Consequently violence could erupt at any time.” United States v. Gosling, 39 F.3d 1140, 1142 (10th Cir. 1994). Thus, “every escape scenario is a powder keg, which may or may not explode into violence and result in physical injury to someone at any given time, but which always has the serious potential to do so.” Id. Every circuit to consider this issue has reached the same conclusion. See United States v. Hairston, 71 F.3d 115, 118 (4th Cir.1995); United States v. Ruiz, 180 F.3d 675, 676 (5th Cir.1999); United States v. Harris, 165 F.3d 1062, 1068 (6th Cir.1999); United States v. Nation, 243 F.3d 467, 472 (8th Cir.2001); Gosling, 39 F.3d at 1142; United States v. Gay, 251 F.3d 950, 954 (11th Cir.2001). We hold that the conduct set forth in Luster’s count of conviction by its nature presents a serious potential risk of physical injury to another. Accordingly, we find no error in the District Court’s determination that Luster had two prior felony convictions of a crime of violence and its judgment will be affirmed. . Luster was convicted under 18 Pa. Cons. Stat. § 5121 for escape in the third degree. In Pennsylvania, one commits the crime of escape if \"he unlawfully removes himself from official detention or fails to return to official detention following temporary leave granted for a specific purpose or limited period.” 18 Pa. Cons.Stat. § 5121(a). It is a third degree felony when: (i) the actor was under arrest for or detained on a charge of felony or following conviction of crime; (ii) the actor employs force, threat, deadly weapon or other dangerous instrumentality to effect the escape; or (iii) a public servant concerned in detention of persons convicted of crime intentionally facilitates or permits an escape from a detention facility. Id. at § 5121(d)(1). All other escapes are felonies in the second degree. See id. at § 5121(d)(2)." }, { "docid": "7242987", "title": "", "text": "confinement who escapes or attempts to escape from such confinement commits a felony of the second degree.... Fla. Stat. § 944.40. The question presented is therefore whether escape, regardless of the particular circumstances, amounts to a violent felony under § 924(e); that is, whether every escape constitutes “conduct that presents a serious potential risk of physical injury to another.” Every circuit court that has considered the issue has held that an escape, from whatever location by whatever means, constitutes “conduct that presents a serious potential risk of physical injury to another.” See, e.g., United States v. Hairston, 71 F.3d 115, 117-18 (4th Cir.1995); United States v. Houston, 187 F.3d 593, 594-95 (6th Cir.1999); United States v. Moudy, 132 F.3d 618, 620 (10th Cir.1998). We also look to cases construing U.S.S.G. § 4B1.2 (career offender), which defines a “crime of violence” in wording substantially identical to the definition of “violent felony” under §' 924(e). Several courts have considered whether escape constitutes a “crime of violence” under that provision, and they agree that any escape, however effected, constitutes “conduct that presents a serious potential risk of physical injury to another.” See, e.g., United States v. Dickerson, 77 F.3d 774, 777 (4th Cir.1996); United States v. Ruiz, 180 F.3d 675, 676-77 (5th Cir.1999) (rejecting walkaway escape argument); United States v. Harris, 165 F.3d 1062, 1068 (6th Cir.1999); United States v. Nation, 243 F.3d 467, 472 (8th Cir.2001) (“We believe that every escape, even a so-called ‘walkaway’ escape, involves a potential risk of injury to others.... Even the most peaceful escape cannot eliminate the potential for violent conflict when the authorities attempt to recapture the escapee.”); United States v. Mitchell, 113 F.3d 1528, 1532-33 & n. 2 (10th Cir.1997) (rejecting walkaway escape argument); United States v. Gay, 251 F.3d 950, 954-55 (11th Cir.2001) (same). The reasoning of the Tenth Circuit is highly persuasive: [Ejvery escape scenario is a powder keg, which may or may not explode into violence and result in physical injury to someone at any given time, but which always has the serious potential to do so. A defendant who escapes from" }, { "docid": "2019929", "title": "", "text": "“a classic canon of statutory construction that courts must ‘give effect to every provision and word in a statute and avoid any interpretation that may render statutory terms meaningless or superfluous.’ ” Discover Bank v. Vaden, 396 F.3d 366, 369 (4th Cir.2005) (quoting United States v. Ryan-Webster, 353 F.3d 353, 366 (4th Cir.2003)); see also Duncan v. Walker, 533 U.S. 167, 174, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001) (same). III. For the foregoing reasons, we conclude that Mathias’ felony escape conviction under Virginia Code § 18.2-479(B) is a “violent felony” as defined by the ACCA. Mathias’ sentence is affirmed. AFFIRMED. . Codefendant Cooper pled guilty to possession of a firearm by a convicted felon and aiding and abetting the same conduct. He was sentenced to 120 months’ imprisonment. Cooper appealed. This court affirmed, finding Cooper’s sentence to be reasonable. United States v. Cooper, 211 Fed.Appx. 193, 194 (4th Cir.2006). Codefendant Deberry also pled guilty to possession of a firearm by a convicted felon and aiding and abetting; he was sentenced to 120 months’ imprisonment. On appeal, this court affirmed Deberry's conviction and sentence. United States v. Deberry, 173 Fed.Appx. 306, 307 (4th Cir.2006). . In addition, the vast majority of our sister circuits (and this court) have concluded that, because escape “involves conduct that presents a serious potential risk of physical injury to another,” it is a \"crime of violence” as defined by the career offender sentencing guideline, USSG § 4B1.2(a). Compare USSG § 4B 1.2(a) to 18 U.S.C. § 924(e)(2)(B)(ii). See United States v. Winn, 364 F.3d 7, 12 (1st Cir.2004) (failure to return to a halfway house is a crime of violence under USSG § 4B1.2); United States v. Bryant, 310 F.3d 550, 554 (7th Cir.2002) (same); United States v. Turner, 285 F.3d 909, 915-16 (10th Cir.2002) (same); United States v. Luster, 305 F.3d 199, 202 (3d Cir.2002) (walkaway escape is a crime of violence under USSG § 4B1.2); United States v. Gay, 251 F.3d 950, 954-55 (11th Cir.2001) (per curiam) (same); United States v. Nation, 243 F.3d 467, 472 (8th Cir.2001) (same); United States v. Ruiz," }, { "docid": "16542560", "title": "", "text": "The three editions were identical in all respects relevant here. . Guideline § 4B 1.1(b) mandates a criminal history category of VI for all career offenders. U.S.S.G. § 4Bl.l(b). It also mandates an offense level of (at least) 32 when the instant offense of conviction carries a statutory maximum of between 20 and 25 years' imprisonment. Id. . Cook also moved for a downward departure under Guideline § 4A1.3, but unlike defendants Thomas and Smith, he does not appeal the district court’s denial of that motion. . See United States v. Jackson, 301 F.3d 59, 62 (2d Cir.2002) (\"Every circuit court that has considered the issue has held that an escape, from whatever location by whatever means, constitutes ‘conduct that presents a serious potential risk of injury to another.’ \"); United States v. Luster, 305 F.3d 199, 199-202 (3d Cir.2002) (concluding that a conviction under a state escape statute that \"extends to a 'walk away' from custody” is a conviction for a crime of violence under the Guidelines); United States v. Dickerson, 77 F.3d 774, 777 (4th Cir.1996) (concluding that escape in violation of 18 U.S.C. § 751(a) is a crime of violence under § 4B1.2); United States v. Ruiz, 180 F.3d 675, 677 (5th Cir.1999) (holding that “a knowing escape from lawful federal custody ... constitutes a crime of violence under § 4B1.2,” notwithstanding that the defendant merely walks away from a prison camp); United States v. Harris, 165 F.3d 1062, 1068 (6th Cir.1999) (finding that a defendant’s escape from a workhouse falls within the scope of § 4B1.2); United States v. Bryant, 310 F.3d 550, 553-54 (7th Cir.2002) (concluding that a defendant's conviction for escape, resulting from his failure to return to his halfway house, constitutes a crime of violence); United States v. Nation, 243 F.3d 467, 472 (8th Cir.2001) (declaring that \"every escape, even a so-called 'walkaway' escape, involves a potential risk of injury to others”); United States v. Turner, 285 F.3d 909, 915 (10th Cir.2002) (holding that an escape always constitutes a crime of violence, even when the defendant merely \"fail[s] to return to a halfway" }, { "docid": "16542550", "title": "", "text": "true of the arsonist, who, with care, can avoid serious risk of physical injury to another by limiting his fires to isolated, abandoned buildings. See Vigil, 334 F.3d at 1223 (noting that § 4B1.2 “expressly includes arson and burglary of a dwelling as crimes of violence,” notwithstanding that “a sizable percentage of burglaries and arsons occur in ‘safely\" unoccupied homes”). And injury can likewise be avoided by the extortionist — who can commit his crime by threatening to damage only the reputation of his victim, and who can target only the meek and the weak. See, e.g., 18 U.S.C. § 875(d) (making it a crime to extort money by transmitting “any threat to injure the property or reputation of the addressee”); United States v. DeLuca, 17 F.3d 6, 8 (1st Cir.1994) (holding that a state extortion statute that encompassed, “in addition to threats against the person, threats against the reputation, property or financial condition of another,” was a crime of violence under § 4B1.2) (internal quotation marks omitted). The issue, then, is whether the offense of escape — as a category — carries appreciably less risk of injury to another than do the listed crimes. Cf DeLuca, 17 F.3d at 8 (holding that “the wording of the guideline tells us unequivocally that the Sentencing Commission believed that extortion, by its nature, should be classified as a crime of violence”). And in making that evaluation, we must keep in mind that escape is a “continuing offense,” which does not end until the defendant is returned to custody. United States v. Bailey, 444 U.S. 394, 413, 100 S.Ct. 624, 635, 62 L.Ed.2d 575 (1980) (referring to 18 U.S.C. § 751); see Craig v. United States, 551 A.2d 440, 440-41 (D.C.1988) (referring to D.C.Code § 22-2601 (1973)). Hence, the risk of injury must be evaluated not only at the time of the defendant’s escape from imprisonment, but at the time of his reapprehension as well. Evaluated from that perspective, we have no basis for concluding that the risk of physical injury during an escape is any less than during a burglary, arson, or" }, { "docid": "3493607", "title": "", "text": "crime of violence because “every escape involves a serious potential risk of physical injury to another”) (internal quotations omitted); United States v. Luster, 305 F.3d 199, 202 (3d Cir.2002) (holding that escape qualifies as a crime of violence); United States v. Gay, 251 F.3d 950, 954-55 (11th Cir.2001) (per curiam) (same); United States v. Nation, 243 F.3d 467, 472 (8th Cir.2001) (same); United States v. Ruiz, 180 F.3d 675, 676-77 (5th Cir.1999) (same); United States v. Harris, 165 F.3d 1062, 1068 (6th Cir.1999) (same); United States v. Mitchell, 113 F.3d 1528, 1533 (10th Cir.1997) (same); United States v. Dickerson, 77 F.3d 774, 777 (4th Cir.1996) (same). Courts have similarly applied Taylor in analogous circumstances to rule that an escape conviction qualifies as a “violent felony” under the Armed Career Criminal Act. United States v. Wardrick, 350 F.3d 446, 455 (4th Cir.2003); United States v. Franklin, 302 F.3d 722, 724 (7th Cir.2002); United States v. Jackson, 301 F.3d 59, 62 (2d Cir.2002); United States v. Hairston, 71 F.3d 115, 117-18 (4th Cir.1995). The majority of these circuits liken an escape to a “powder keg, which may or may not explode into violence and result in physical injury to someone at any given time, but which always has the serious potential to do so.” United States v. Gosling, 39 F.3d 1140, 1142 (10th Cir.1994); see also Winn, 364 F.3d at 11; Nation, 243 F.3d at 472. That theory apparently renders all escapes, including those that take place without incident, crimes of violence under the Sentencing Guidelines. In our view, the powder-keg rationale adopted by other circuits proves too much. While an escapee who flees a secured facility or the custody of an armed guard presents a serious risk of injury to himself and others, the same cannot be said for ■ an escapee who leaves a halfway house with permission and fails to return. See United States v. Adkins, 196 F.3d 1112, 1119 (10th Cir.1999) (McKay, J., concurring) (“There is a quantum difference between the assumptions about the intrinsic danger of unauthorized departure from actual custody ... and of failure to return" }, { "docid": "17009759", "title": "", "text": "escape statute at the joint, as it were, but held instead that any violation of the statute is a crime of violence for purposes of the Act. The other courts of appeals, except the D.C. and Ninth Circuits, are in accord. United States v. Winn, 364 F.3d 7 (1st Cir.2004); United States v. Luster, 305 F.3d 199, 202 (3d Cir.2002); United States v. Jackson, 301 F.3d 59, 63 (2d Cir.2002); United States v. Turner, 285 F.3d 909, 915-16 (10th Cir.2002); United States v. Gay, 251 F.3d 950 (11th Cir.2001) (per curiam); United States v. Nation, 243 F.3d 467, 472 (8th Cir.2001); United States v. Ruiz, 180 F.3d 675 (5th Cir.1999); United States v. Harris, 165 F.3d 1062, 1068 (6th Cir.1999); United States v. Mitchell, 113 F.3d 1528, 1533 (10th Cir.1997). The D.C. Circuit reserved the issue in United States v. Thomas, 333 F.3d 280, 282-83 (D.C.Cir.2003). See also United States v. Adkins, 196 F.3d 1112, 1119 (10th Cir.1999) (McKay, J., concurring), and Judge Rovner’s concurring opinion in our Golden case. The Ninth Circuit ruled that a peaceful failure to return, followed by the defendant’s turning himself in rather than being recaptured, is not a crime of violence. United States v. Piccolo, 441 F.3d 1084 (9th Cir.2006). All these cases involved either a failure to return to a halfway house — a type of failing to return that seems even less violence-prone than failing to show up at prison, because a violent prisoner would be less likely to be serving a part of his sentence in a halfway house — or a “walkaway” escape, which does not involve breaking out of a building or wrestling free of guards. There would be no impropriety in dividing escapes, for purposes of “crime of violence” classification, into jail or prison breaks on the one hand and walkaways, failures to report, and failures to return, on the other. The sentencing judge would not have to dig beneath the charging document or the other, limited evidence on which a judge is permitted by Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205" }, { "docid": "7242988", "title": "", "text": "constitutes “conduct that presents a serious potential risk of physical injury to another.” See, e.g., United States v. Dickerson, 77 F.3d 774, 777 (4th Cir.1996); United States v. Ruiz, 180 F.3d 675, 676-77 (5th Cir.1999) (rejecting walkaway escape argument); United States v. Harris, 165 F.3d 1062, 1068 (6th Cir.1999); United States v. Nation, 243 F.3d 467, 472 (8th Cir.2001) (“We believe that every escape, even a so-called ‘walkaway’ escape, involves a potential risk of injury to others.... Even the most peaceful escape cannot eliminate the potential for violent conflict when the authorities attempt to recapture the escapee.”); United States v. Mitchell, 113 F.3d 1528, 1532-33 & n. 2 (10th Cir.1997) (rejecting walkaway escape argument); United States v. Gay, 251 F.3d 950, 954-55 (11th Cir.2001) (same). The reasoning of the Tenth Circuit is highly persuasive: [Ejvery escape scenario is a powder keg, which may or may not explode into violence and result in physical injury to someone at any given time, but which always has the serious potential to do so. A defendant who escapes from a jail is likely to possess a variety of supercharged emotions, and in evading those trying to recapture him, may feel threatened by police officers, ordinary citizens, or even fellow escapees. Consequently, violence could erupt at any time. Indeed, even in a ease where a defendant escapes from a jail by.stealth and injures no one in the process, there is still a serious potential risk that injury will result when officers find the defendant and attempt to place him in custody. United States v. Gosling, 39 F.3d 1140, 1142 (10th Cir.1994) (emphasis in original) (internal citation omitted). The Fourth Circuit employed similar reasoning: Critical to our conclusion is the chance that in the case of an escape by stealth, the escapee will be intentionally or unintentionally interrupted by another, for example a prison guard, police officer or ordinary citizen. This encounter inherently presents the serious potential risk of physical injury to another, because the escapee, intent on his goal of escaping, faces the decision of whether to dispel the interference or yield to it. To" }, { "docid": "16542562", "title": "", "text": "house from work release”) (internal quotation marks omitted); United States v. Gay, 251 F.3d 950, 954-55 (11th Cir.2001) (concluding that even a walkaway escape from an unsecured facility constitutes a crime of violence). . Subsection (a)(2) of the same statute bars escape from \"(2) The lawful custody of an officer or employee of the District of Columbia or of the United States.” D.C.Code § 22-2601(a)(2). . See also, e.g., United States v. Pierce, 278 F.3d 282, 286 (4th Cir.2002); Bryant, 310 F.3d at 553-54; Nation, 243 F.3d at 472; Harris, 165 F.3d at 1068; United States v. Hairston, 71 F.3d 115, 117 (4th Cir.1995); United States v. DeLuca, 17 F.3d 6, 8 (1st Cir.1994). .In some circumstances, a court may also examine jury instructions. See Hill, 131 F.3d at 1062 (citing Taylor, 495 U.S. at 602, 110 S.Ct. at 2160). In addition, if a defendant has pled guilty to a lesser included offense of a charge in an indictment, a sentencing court may examine certain other indices — such as a judgment of conviction, plea agreement, or statement by the defendant on the record. See id. at 1064-65; see also United States v. Williams, 358 F.3d 956, 965 (D.C.Cir.2004). None of those circumstances are relevant here. . See United States v. Bailey, 444 U.S. 394, 408, 100 S.Ct. 624, 633, 62 L.Ed.2d 575 (1980) (concluding that \"the prosecution fulfills its burden\" under 18 U.S.C. § 751 by demonstrating \"that an escapee knew his actions would result in his leaving physical confinement without permission,” and need not also show \"an intent to avoid confinement”); Thurston v. United States, 779 A.2d 260, 263 (D.C.2001) (same under D.C.Code § 22-2601(a)). . See United States v. Vaughn, 446 F.2d 1317, 1318 (D.C.Cir.1971); Thurston, 779 A.2d at 262 n. 4; Gonzalez v. United States, 498 A.2d 1172, 1174 (D.C.1985); see also Bailey, 444 U.S. at 413, 100 S.Ct. at 635 (holding that \"escape from federal custody as defined in § 751(a) is a continuing offense and ... an escapee can be held liable for failure to return to custody as well as for his initial" }, { "docid": "16542551", "title": "", "text": "of escape — as a category — carries appreciably less risk of injury to another than do the listed crimes. Cf DeLuca, 17 F.3d at 8 (holding that “the wording of the guideline tells us unequivocally that the Sentencing Commission believed that extortion, by its nature, should be classified as a crime of violence”). And in making that evaluation, we must keep in mind that escape is a “continuing offense,” which does not end until the defendant is returned to custody. United States v. Bailey, 444 U.S. 394, 413, 100 S.Ct. 624, 635, 62 L.Ed.2d 575 (1980) (referring to 18 U.S.C. § 751); see Craig v. United States, 551 A.2d 440, 440-41 (D.C.1988) (referring to D.C.Code § 22-2601 (1973)). Hence, the risk of injury must be evaluated not only at the time of the defendant’s escape from imprisonment, but at the time of his reapprehension as well. Evaluated from that perspective, we have no basis for concluding that the risk of physical injury during an escape is any less than during a burglary, arson, or extortion. Like bui'glary of a dwelling or arson, a defendant may accomplish an escape in the safest possible way. But just as the cautious burglar may be startled by the unexpected return of the homeowner, or the careful arsonist surprised by a fire that spreads out of control, the stealthy escapee may suddenly be confronted by police officers sent to apprehend him, leading to injury to the officers or bystanders. As the Second Circuit has observed: An inmate who escapes by peacefully walking away ... will (if he can) be inconspicuous and discreet, and will (if he can) avoid confrontation and force. But escape invites pursuit; and the pursuit, confrontation, and recapture of the escapee entail serious risks of physical injury to law enforcement officers and the public. United States v. Jackson, 301 F.3d 59, 63 (2d Cir.2002); see United States v. Turner, 285 F.3d 909, 916 (10th Cir.2002) (“Even though initial circumstances of an escape may be nonviolent, there is no way to predict what an escapee will do when encountered by the authorities.”);" }, { "docid": "16542561", "title": "", "text": "777 (4th Cir.1996) (concluding that escape in violation of 18 U.S.C. § 751(a) is a crime of violence under § 4B1.2); United States v. Ruiz, 180 F.3d 675, 677 (5th Cir.1999) (holding that “a knowing escape from lawful federal custody ... constitutes a crime of violence under § 4B1.2,” notwithstanding that the defendant merely walks away from a prison camp); United States v. Harris, 165 F.3d 1062, 1068 (6th Cir.1999) (finding that a defendant’s escape from a workhouse falls within the scope of § 4B1.2); United States v. Bryant, 310 F.3d 550, 553-54 (7th Cir.2002) (concluding that a defendant's conviction for escape, resulting from his failure to return to his halfway house, constitutes a crime of violence); United States v. Nation, 243 F.3d 467, 472 (8th Cir.2001) (declaring that \"every escape, even a so-called 'walkaway' escape, involves a potential risk of injury to others”); United States v. Turner, 285 F.3d 909, 915 (10th Cir.2002) (holding that an escape always constitutes a crime of violence, even when the defendant merely \"fail[s] to return to a halfway house from work release”) (internal quotation marks omitted); United States v. Gay, 251 F.3d 950, 954-55 (11th Cir.2001) (concluding that even a walkaway escape from an unsecured facility constitutes a crime of violence). . Subsection (a)(2) of the same statute bars escape from \"(2) The lawful custody of an officer or employee of the District of Columbia or of the United States.” D.C.Code § 22-2601(a)(2). . See also, e.g., United States v. Pierce, 278 F.3d 282, 286 (4th Cir.2002); Bryant, 310 F.3d at 553-54; Nation, 243 F.3d at 472; Harris, 165 F.3d at 1068; United States v. Hairston, 71 F.3d 115, 117 (4th Cir.1995); United States v. DeLuca, 17 F.3d 6, 8 (1st Cir.1994). .In some circumstances, a court may also examine jury instructions. See Hill, 131 F.3d at 1062 (citing Taylor, 495 U.S. at 602, 110 S.Ct. at 2160). In addition, if a defendant has pled guilty to a lesser included offense of a charge in an indictment, a sentencing court may examine certain other indices — such as a judgment of conviction, plea" }, { "docid": "3493606", "title": "", "text": "would explicitly exclude this particular crime from the “catchall” clause of U.S.S.G. § 4B1.2(a)(2), yet implicitly include a non-violent walkaway escape of the sort at issue in this case, seems unlikely. A number of our sister circuits, relying on Taylor, have held that any escape, however effected, categorically constitutes a crime of violence under the Sentencing Guidelines. See, e.g., United States v. Winn, 364 F.3d 7, 12 (1st Cir.2004) (the “categorical approach forecloses the conclusion” that failure to return to a halfway house would not “present a serious risk of injury to another”); United States v. Thomas, 361 F.3d 653, 657-60 (D.C. Cir.2004) (concluding under a categorical approach that “the offense of escape is a crime of violence within the meaning of ... § 4131.2(a)”), vacated and remanded, 543 U.S. 1111, 125 S.Ct. 1056, 160 L.Ed.2d 1045 (2005) (remanding in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005)); United States v. Bryant, 310 F.3d 550, 554 (7th Cir.2002) (failure to report back to halfway house constitutes a crime of violence because “every escape involves a serious potential risk of physical injury to another”) (internal quotations omitted); United States v. Luster, 305 F.3d 199, 202 (3d Cir.2002) (holding that escape qualifies as a crime of violence); United States v. Gay, 251 F.3d 950, 954-55 (11th Cir.2001) (per curiam) (same); United States v. Nation, 243 F.3d 467, 472 (8th Cir.2001) (same); United States v. Ruiz, 180 F.3d 675, 676-77 (5th Cir.1999) (same); United States v. Harris, 165 F.3d 1062, 1068 (6th Cir.1999) (same); United States v. Mitchell, 113 F.3d 1528, 1533 (10th Cir.1997) (same); United States v. Dickerson, 77 F.3d 774, 777 (4th Cir.1996) (same). Courts have similarly applied Taylor in analogous circumstances to rule that an escape conviction qualifies as a “violent felony” under the Armed Career Criminal Act. United States v. Wardrick, 350 F.3d 446, 455 (4th Cir.2003); United States v. Franklin, 302 F.3d 722, 724 (7th Cir.2002); United States v. Jackson, 301 F.3d 59, 62 (2d Cir.2002); United States v. Hairston, 71 F.3d 115, 117-18 (4th Cir.1995). The majority of these" }, { "docid": "12681890", "title": "", "text": "and Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 1263, 161 L.Ed.2d 205 (2005)). According to the charging document introduced with the government’s sentencing memorandum in the case at bar, Adams “knowingly and without the consent of the owner unlawfully operated an automobile.” Because Adams’s conduct involved tampering by operation, we hold the district court did not err in concluding Adams’s conviction qualified as a violent felony predicate offense under the ACCA. See Johnson, 417 F.3d at 997-99. B. Failure to Return to Confinement In Missouri, a person commits the crime of failure to return to confinement if, “while serving [a] sentence for any crime wherein he is temporarily permitted to go at large without guard, he purposely fails to return to confinement when he is required to do so.” Mo.Rev.Stat. § 575.220.1. In United States v. Abernathy, 277 F.3d 1048 (8th Cir.2002), we held “walkaway” escape constitutes a violent felony under the ACCA. Id. at 1051 (relying on United States v. Nation, 243 F.3d 467, 472 (8th Cir.2001), which held a “walkaway” escape is a crime of violence under U.S.S.G. § 4B1.2(a)). We see no material distinction between “walkaway” escape and failure to return to confinement. See United States v. Maddox, 388 F.3d 1356, 1368-69 (10th Cir.2004) (relying on precedent holding escape is a violent felony for purposes of the ACCA and rejecting defendant’s argument that “failure to return [to prison] from the work-release program does not constitute a violent felony”), cert. denied, 544 U.S. 935, 125 S.Ct. 1689, 161 L.Ed.2d 504 (2005); cf. United States v. Winn, 364 F.3d 7, 12 (1st Cir.2004) (holding “failure to return from a break at a halfway house” constitutes a “crime of violence” under U.S.S.G. § 4B1.2(a)(2)); United States v. Bryant, 310 F.3d 550, 553-54 (7th Cir.2002) (holding same with regard to “failure to return to a halfway house after being absent with permission”). We therefore hold the district court did not err in concluding Adams’s conviction for failure to return to confinement qualified as a violent felony predicate offense under the ACCA. II. CONCLUSION For the reasons stated, we" }, { "docid": "16542542", "title": "", "text": "the District of Columbia who escapes or attempts to escape therefrom, or from the custody of an officer thereof ..., shall be guilty of an offense.... ” Defendant Smith had a prior conviction for violating the District of Columbia’s current “escape from an institution” provision, which states: “No person shall escape or attempt to escape from: (1) Any penal institution or facility in which that person is confined pursuant to an order issued by a court, judge, or commissioner of the District of Columbia.” D.C.Code § 22-2601(a)(l) (2001). Finally, in addition to his D.C.Code violation, Thomas had also been convicted of violating the federal escape statute, which makes it a crime to “escape[ ] or attempt[ ] to escape from the custody of the Attorney General or his authorized representative, or from any institution or facility in which he is confined by direction of the Attorney General.... ” 18 U.S.C. § 751(a). We begin with common ground. First, both the defendants and the government agree that, in determining whether the crime of escape comes within the scope of Guideline § 4B1.2(a), we must utilize a categorical approach. See Hill, 131 F.3d at 1062; U.S.S.G. § 4B1.2, cmt. n.l (stating that the relevant inquiry under § 4B1.2(a)(2) is whether the conduct “expressly charged ... by its nature” presents a serious potential risk of physical injury); see also Taylor v. United States, 495 U.S. 575, 600-02, 110 S.Ct. 2143, 2159-60, 109 L.Ed.2d 607 (1990); Mathis, 963 F.2d at 408. Utilizing this approach, we must confine our review to the conduct prohibited by the statutes at issue or set forth in the charging papers, and “ ‘should not examine the actual conduct underlying the offense.’” Hill, 131 F.3d at 1062 (quoting Mathis, 963 F.2d at 408). In this case, because Smith’s and Cook’s escape indictments are devoid of detail, and Thomas’ indictments were never proffered to the court, the parties agree that we should look no further than the statutory language. See Taylor, 495 U.S. at 600, 110 S.Ct. at 2159; United States v. Luster, 305 F.3d 199, 202 (3d Cir.2002); United States" }, { "docid": "7573474", "title": "", "text": "state conviction. See United States v. Aguilar-Ortiz, 450 F.3d 1271, 1273 (11th Cir.2006). \"In examining the facts underlying a prior conviction to determine whether it qualifies for a sentencing enhancement, ... sentencing courts may rely only on ... the charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.” Id. at 1273-74 (quotation marks, citation, and footnote omitted). . See, e.g., United States v. Winn, 364 F.3d 7, 12 (1st Cir.2004); United States v. Thomas, 361 F.3d 653, 660 (D.C.Cir.2004); United States v. Luster, 305 F.3d 199, 202 (3d Cir.2002); United States v. Jackson, 301 F.3d 59, 62-63 (2d Cir.2002); United States v. Frank-tin, 302 F.3d 722, 724 (7th Cir.2002); United States v. Nation, 243 F.3d 467, 472 (8th Cir.2001); United States v. Springfield, 196 F.3d 1180, 1185 (10th Cir.1999); United States v. Ruiz, 180 F.3d 675, 676-77 (5th Cir.1999); United States v. Harris, 165 F.3d 1062, 1068 (6th Cir.1999); United States v. Hairston, 71 F.3d 115, 117-18 (4th Cir.1995). Declining to join the majority of circuits, the Ninth Circuit rejected this \"powder keg” rationale and held that the defendant, who left an unsecured facility with permission to attend a drug treatment program, had not been convicted of a \"crime of violence” for purposes of § 4B 1.2(a). See United States v. Piccolo, 441 F.3d 1084 (9th Cir.2006). The court reasoned that not every escape is a crime of violence because \"[wjhile an escapee who flees a secured facility or the custody of an armed guard presents a serious risk of injury to himself and others, the same cannot be said for an escapee who leaves a halfway house with permission and fails to return.” Id. at 1089. . The Illinois statute grouped together in a single numbered statutory section, but separately described, several different kinds of behavior: \"(1) escape from a penal institution, (2) escape from the custody of an employee of a penal institution, (3) failing to report to a penal institution, (4) failing to report for periodic imprisonment, (5) failing to return from furlough," }, { "docid": "17009758", "title": "", "text": "challenged by the defendant it states that on four occasions he failed to report on schedule to a penal institution after being convicted for drug possession, robbery, and aggravated battery. As an original matter, one might have doubted whether failing to report to prison, as distinct from escaping from a jail, prison, or other form of custody, was a crime that typically or often “involves conduct that presents a serious potential risk of physical injury to another.” United States v. Golden, 466 F.3d 612, 616-17 (7th Cir.2006) (Williams, J., dissenting). You could show up an hour late (without an excuse) and be guilty of a felony that could result in your receiving a 15-year mandatory minimum sentence under the Armed Career Criminal Act. Had the defendant been sentenced without the enhancement, his guidelines sentencing range would have been 130 to 162 months. See U.S.S.G. §§ 2K2.1(a)(2), (b)(5), 3C1.2, 3El.l(a), (b). But the majority opinion in Golden, tracking our earlier opinion in United States v. Bryant, 310 F.3d 550 (7th Cir.2002), refused to carve the Illinois escape statute at the joint, as it were, but held instead that any violation of the statute is a crime of violence for purposes of the Act. The other courts of appeals, except the D.C. and Ninth Circuits, are in accord. United States v. Winn, 364 F.3d 7 (1st Cir.2004); United States v. Luster, 305 F.3d 199, 202 (3d Cir.2002); United States v. Jackson, 301 F.3d 59, 63 (2d Cir.2002); United States v. Turner, 285 F.3d 909, 915-16 (10th Cir.2002); United States v. Gay, 251 F.3d 950 (11th Cir.2001) (per curiam); United States v. Nation, 243 F.3d 467, 472 (8th Cir.2001); United States v. Ruiz, 180 F.3d 675 (5th Cir.1999); United States v. Harris, 165 F.3d 1062, 1068 (6th Cir.1999); United States v. Mitchell, 113 F.3d 1528, 1533 (10th Cir.1997). The D.C. Circuit reserved the issue in United States v. Thomas, 333 F.3d 280, 282-83 (D.C.Cir.2003). See also United States v. Adkins, 196 F.3d 1112, 1119 (10th Cir.1999) (McKay, J., concurring), and Judge Rovner’s concurring opinion in our Golden case. The Ninth Circuit ruled that" }, { "docid": "2019930", "title": "", "text": "On appeal, this court affirmed Deberry's conviction and sentence. United States v. Deberry, 173 Fed.Appx. 306, 307 (4th Cir.2006). . In addition, the vast majority of our sister circuits (and this court) have concluded that, because escape “involves conduct that presents a serious potential risk of physical injury to another,” it is a \"crime of violence” as defined by the career offender sentencing guideline, USSG § 4B1.2(a). Compare USSG § 4B 1.2(a) to 18 U.S.C. § 924(e)(2)(B)(ii). See United States v. Winn, 364 F.3d 7, 12 (1st Cir.2004) (failure to return to a halfway house is a crime of violence under USSG § 4B1.2); United States v. Bryant, 310 F.3d 550, 554 (7th Cir.2002) (same); United States v. Turner, 285 F.3d 909, 915-16 (10th Cir.2002) (same); United States v. Luster, 305 F.3d 199, 202 (3d Cir.2002) (walkaway escape is a crime of violence under USSG § 4B1.2); United States v. Gay, 251 F.3d 950, 954-55 (11th Cir.2001) (per curiam) (same); United States v. Nation, 243 F.3d 467, 472 (8th Cir.2001) (same); United States v. Ruiz, 180 F.3d 675, 676-77 (5th Cir.1999) (same); United States v. Harris, 165 F.3d 1062, 1068 (6th Cir.1999) (escape, by its nature, qualifies as a crime of violence under USSG § 4B1.2); United States v. Dickerson, 77 F.3d 774, 777 (4th Cir.1996) (same). But see United States v. Piccolo, 441 F.3d 1084, 1089-90 (9th Cir.2006) (walkaway escape is not a crime of violence under USSG § 4B1.2)." }, { "docid": "16542563", "title": "", "text": "agreement, or statement by the defendant on the record. See id. at 1064-65; see also United States v. Williams, 358 F.3d 956, 965 (D.C.Cir.2004). None of those circumstances are relevant here. . See United States v. Bailey, 444 U.S. 394, 408, 100 S.Ct. 624, 633, 62 L.Ed.2d 575 (1980) (concluding that \"the prosecution fulfills its burden\" under 18 U.S.C. § 751 by demonstrating \"that an escapee knew his actions would result in his leaving physical confinement without permission,” and need not also show \"an intent to avoid confinement”); Thurston v. United States, 779 A.2d 260, 263 (D.C.2001) (same under D.C.Code § 22-2601(a)). . See United States v. Vaughn, 446 F.2d 1317, 1318 (D.C.Cir.1971); Thurston, 779 A.2d at 262 n. 4; Gonzalez v. United States, 498 A.2d 1172, 1174 (D.C.1985); see also Bailey, 444 U.S. at 413, 100 S.Ct. at 635 (holding that \"escape from federal custody as defined in § 751(a) is a continuing offense and ... an escapee can be held liable for failure to return to custody as well as for his initial departure\"). . See Guideline § 4B1.2, cmt. n.l (stating that the term \" '[c]rime of violence' includes murder,” as well as \"attempting to commit” such an offense). . For the same reason, we cannot accept the defendants' contention that \"an offense is not categorically a crime of violence unless every such offense is.” Reply Br. at 6. . See Merriam Webster's at 912 (defining “potential” as \"existing in possibility,” or as “something that can develop or become actual” — as in “a [potential] for violence”). . Cf. Davis v. Michigan Dep’t of Treasury, 489 U.S. 803, 809, 109 S.Ct. 1500, 1504, 103 L.Ed.2d 891 (1989) (“It is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.”). . In 2000, the text of § 4A1.3 permitted a departure if \"reliable information,” including \"prior similar adult criminal conduct not resulting in a criminal conviction,” indicated \"that the criminal history category [did] not adequately reflect the seriousness" } ]

[ { "docid": "9856875", "title": "", "text": "1981) (both opining that Paul has been at least partially overruled by the Supreme Court’s decisions in Whalen and Nixon), this circuit does not recognize a constitutional privacy interest in avoiding disclosure of, e.g., one’s criminal record. See DeSanti, 653 F.2d at 1090 (regarding disclosure of juvenile delinquents’ “social histories”); see also Doe v. Wigginton, 21 F.3d 733 (6th Cir.1994) (disclosure of inmate’s HIV infection did not violate constitutional right of privacy). Because there is no privacy interest in one’s criminal record that is protected by the United States Constitution, Cline could prove no set of facts that would entitle him to relief; therefore, the district court correctly dismissed this claim. B. State Constitutional Claim The plaintiff can state no claim of a state constitutional violation in this case because Tennessee does not recognize a private cause of action for violations of the Tennessee Constitution. See Lee v. Ladd, 834 S.W.2d 323 (Tenn.Ct.App.), appeal denied, (Tenn.1992). There, the Tennessee Court of Appeals, searching for authority to support or refute the plaintiffs claim of an implied cause of action for violations by a local police officer of her civil rights under the Tennessee Constitution, stated: We have held ... that we know of no authority for the recovery of damages for a violation of the Tennessee Constitution by a state officer. See Bennett v. Horne, 1989 WL 86555 (No. 89-31-11, Tenn.Ct.App. ... August 2, 1989). So far as we are able to determine, the Tennessee courts have not extended the rationale of Bivens [v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971)] to give a state cause of action against a police officer for violating a person’s civil rights. Lee, 834 S.W.2d at 325. Therefore, the district court properly dismissed this claim. C. Direct Claim for Violation of 42 U.S.C. § 3789g 1. The plaintiff claims that the defendants violated enforceable privacy rights created in him by Congress under the Justice System Improvement Act of 1979, 42 U.S.C. §§ 3701-3797 (“the Act”). Specifically, Cline claims that the defendants violated 42" } ]

[ { "docid": "11780843", "title": "", "text": "by Alvey. We will now examine each of these contentions in turn. 1. Akers’s transfer to the Hardin County office Even assuming that Akers was involuntarily transferred to the Hardin County office, as she alleges, she failed to demonstrate how this transfer was materially adverse to her. She did not suffer a decrease in pay, her job duties were not significantly changed, and the transfer actually reduced Akers’s roundtrip commute from her home by 60 miles per day. We thus agree with the district court that Akers’s transfer was not a materially adverse employment action. See Kocsis v. Multi-Care Mgmt., Inc., 97 F.3d 876, 885 (6th Cir.1996) (holding that a plaintiff failed to establish that her transfer and change in job title was a materially adverse employment action, reiterating “that reassignments without salary or work hour changes do not ordinarily constitute adverse employment decisions in employment discrimination claims”). 2. Retaliatory harassment by Alvey Although the district court failed to consider whether Alvey’s post-complaint harassment was retaliatory, this court has previously held that “severe or pervasive supervisor harassment” following a sexual-harassment complaint can constitute retaliation for the purposes of a Title VII action. Morris, 201 F.3d at 792. Because the court’s decision in Morris was an extrapolation of Supreme Court precedent allowing a Title VII action to be based upon severe or pervasive supervisory harassment in the sexual-harassment context, the standard for “severe or pervasive” harassment is “the same in the retaliation context as in the sexual and racial discrimination contexts.” Broska v. Henderson, 2003 WL 21518733, at *4 (June 30, 2003). Under this standard, the harassment must be “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) (citation omitted). As this court noted in Broska, “this test has both an objective and a subjective component: the conduct must be severe or pervasive enough to create an environment that a reasonable person would find hostile or abusive, and the victim must subjectively regard that environment as" }, { "docid": "22877891", "title": "", "text": "there are triable issues of fact as to whether “a reasonable person in [her] position would have felt that [she] was forced to quit because of intolerable and discriminatory working conditions.” Thomas v. Douglas, 877 F.2d 1428, 1434 (9th Cir.1989); Jordan, 847 F.2d at 1377; see generally Note, “Constructive Discharge under Title VII and the ADEA,” 53 U.Chi.L.Rev. 561 (1986). Several facts militate against Steiner’s claim. First, Trenkle was fired two and one-half months prior to her resignation. Cf. Brady v. Elixir Industries, 196 Cal.App.3d 1299, 242 Cal.Rptr. 324, 328 (Cal.App. 4 Dist. 1987) (in order to constitute constructive discharge, harassment must be intolerable “at the time of the employee’s resignation”) (emphasis added). Second, for several months prior to her resignation she had been restored at her request to her favored shift: the swing shift. Third, she has failed to establish any retaliatory conduct by Show boat’s management or employees. Taken together, these facts suggest that Steiner had effectively petitioned Showboat management and the NERC for relief from Trenkle’s harassment, in the sense that his sexual harassment had been halted some time before she quit. Steiner claims that the low marks on her employee evaluation, and the alleged roulette wheel incident with Flurry, indicate that Showboat was laying the groundwork for her termination, or was attempting to force her to quit. But Steiner has established neither that her evaluation was discriminatory or retaliatory, nor that it constitutes the kind of “intolerable” act that would force an employee to resign. See Thomas, 877 F.2d at 1434; compare with Sanchez v. City of Santa Ana, 915 F.2d 424, 431 (9th Cir.1990) (constructive discharge occurred where unfounded negative evaluations led to denial of merit pay on two separate occasions, and where employee’s attempts to challenge loss of pay were rebuffed). Indeed, the evaluation as a whole characterized her as an “acceptable” employee. Similarly, Steiner has not established an issue of fact as to whether Flurry’s alleged actions were discriminatory or retaliatory in nature; at worst, they would constitute a harsh way of driving home his criticism of her job skills. While we dismiss" }, { "docid": "7319987", "title": "", "text": "amended complaint ... seeking injunctive relief under Title I and monetary relief under Title II.”). Accordingly, we hold that Whitfield’s complaint contains an Ex parte Young action for reinstatement pursuant to Title I of the ADA. B Title II of the ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the ben efits of the services, programs, or activities of a public entity, or be subjected to discrimination by such entity.” 42 U.S.C. § 12132. Significantly, whereas Title I specifically addresses employment, Title II address “public services,” and this court has never decided whether Title II applies to employment cases. See Dean v. City of Bay City, Mich., 239 Fed.Appx. 107, 112 (6th Cir.2007) (“[T]his Court declines to reach the novel issue of whether Title II of the ADA applies to employment cases.”). Although we read Whitfield’s complaint to contain a purported Title II claim for damages, Whitfield has waived any such claim. In her Amended Complaint, Whitfield alleges discrimination under 42 U.S.C. § 12131(A)(2), which provides definitions, and § 12132, which prohibits the denial of public services because of an individual’s disability. See generally Tucker v. Tennessee, 539 F.3d 526, 532 (6th Cir.2008) (stating the standard as “solely because of [an individual’s] disability”). The complaint did not tie any particular allegations to those provisions, and, in her appellate brief, Whitfield makes no mention of either these provisions or Title II in general, let alone the issue of whether Title II could apply to her claims of employment discrimination. Rather, Whitfield argues that she was discriminated against only in the context of Title I. See Appellant’s Br. at 15-21. Thus, to the extent Whitfield may have made out any claims of Title II violations in her Amended Complaint, we hold that she has waived them here. Accordingly, we need not decide whether Title II applies to employment discrimination or whether Title II abrogates the states’ Eleventh Amendment immunity in the employment-discrimination context. See generally Popovich v. Cuyahoga Cnty. Ct. of Common Pleas, 276 F.3d 808, 811" }, { "docid": "22277823", "title": "", "text": "or unpleasant that a reasonable person in the employee’s shoes would have felt compelled to resign.’ ” Id. at 515 (quoting Yates v. Avco Corp., 819 F.2d 630, 636-37 (6th Cir.1987) and Held v. Gulf Oil Co., 684 F.2d 427, 432 (6th Cir.1982)). That standard has been followed consistently in this circuit. See, e.g., Kocsis, 97 F.3d at 887. In Moore v. KUKA Welding Systems, 171 F.3d 1073, 1080 (6th Cir.1999), we explained: To constitute a discharge, the employer must deliberately create intolerable working conditions, as perceived by a reasonable person, with the intention of forcing the employee to quit and the employee must actually quit. To determine if there is a constructive discharge, both the employer’s intent and the employee’s objective feelings must be examined. And in Scott v. Goodyear Tire & Rubber Company, 160 F.3d 1121, 1127 (6th Cir.1998), we made it clear that “[i]n the typical discriminatory constructive discharge case, the employer does not overtly seek a discontinuation in the employment relationship but the employee claims to be subjected to intolerable working conditions due to discriminatory behavior.” I see no reason to look to the law of the Fifth Circuit, as the majority does, to determine what constitutes a constructive discharge. The majority opinion concludes — in part by taking judicial notice of the “fact” that the busboy position would necessarily be a demotion and by holding inadmissible all of the affidavit testimony of Denny’s witnesses — that Logan has demonstrated that Denny’s “conditioning Plaintiffs continued employment on her becoming a busboy created an intolerable work condition such that a reasonable person standing in Plaintiffs shoes would have felt compelled to resign.” The claim of constructive discharge is bolstered, the opinion concludes, because the claimed constructive discharge occurred after Logan was subjected to “disparaging comments and alleged incidents of unfair treatment.” But unless the intolerable work condition was shown to have been created because of Logan’s race, the constructive discharge is not one for which Logan has any remedy under Title VII. It is therefore important to examine the comments and incidents which Logan claims, and the" }, { "docid": "5656824", "title": "", "text": "a retaliatory motive could be reasonably inferred against the Department. At this stage, the Court finds that plaintiff has pleaded sufficient facts to state a prima facie case of retaliation. Plaintiff engaged in a protected activity by filing the EEOC charge and the 1996 case and has pleaded sufficient facts, “either direct or inferential,” to establish a causal link between her dismissal and the filing of the complaints with the EEOC and this Court. Gooley, 851 F.2d at 515. Additionally, the facts presented raise issues of motive and intent as to the grounds for Arocho’s dismissal the day after the settlement. Therefore, the Court denies the Department’s motion on this score, and allows Arocho to proceed with her Title VII retaliation claim against the Department. C. b2 U.S.C. § 1983 Claims Against Gonzalez in her Personal Capacity Arocho also seeks relief against González under § 1983. González claims that § 1983 is not available as a remedy because the ADA provides a scheme of comprehensive remedial devices. In Vicenty Martell v. Estado Libre Asociado de P.R., 48 F.Supp.2d 81, 90-91 (D.P.R.1999), the Court held that the ADEA and the ADA respectively provide comprehensive exclusive remedies for disability discrimination, and that, therefore, a state government employee may not bring suit under § 1983. With respect to Title VII claims, a sexual harassment plaintiff may present his or her claim under Title VII or § 1983. Id.; Lipsett v. University of P.R., 864 F.2d 881, 895-96 (1st Cir.1988) (allowing concurrent causes of action for employment discrimination under Title VII and § 1983). Arocho may therefore bring suit under § 1983, notwithstanding her Title VII claim. To prevail under § 1983, Arocho must establish (1) that the defendant acted under color of state law; (2) that she was deprived of federally protected rights, privileges, or immunities; and (3) that the defendant’s alleged conduct was causally connected to her deprivation. Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 558 (1st Cir.1989). Additionally, section 1983 does not recognize the theory of respondeat superior liability. See Sánchez v. Alvarado, 101 F.3d 223, 227 (1st Cir.1996). Supervisors can only" }, { "docid": "12535701", "title": "", "text": "should be awarded in a Title VII claim, the trier of fact must reasonably find that the employer \"acted with malice or reckless indifference to [an employee’s] Title VII rights.\" Id. Fleet argues that it should not be liable for punitive damages because it was \"not apprised of the alleged sexual harassment until almost two years after its alleged inception in March 1995.” Fleet Memo, at 23, n. 14. However, if the jury concludes that Fleet has not met the reasonableness prong of the Far-agher/Ellerth affirmative defense because it failed to exercise reasonable care in preventing and promptly correcting Title VII violations, the jury could also find that Fleet acted with \"reckless indifference” to plaintiff's Title VII rights. Therefore, the Court cannot rule as a matter of law that plaintiff is precluded from seeking punitive damages. . The plaintiff in O’Dell had claimed that she was constructively discharged when she quit because she believed her employer would not take her complaints of harassment seriously based on the employer’s past failure to keep her complaint confidential as promised, the employer’s initial refusal to communicate with plaintiff's counsel and the employer's statement to plaintiff that her doctor's note was insufficient to support her claim for medical leave. Id. Although slating that refusal to take seriously a sexual harassment complaint could not constitute a constructive discharge, the court went on to analyze plaintiff's claims and concluded that in the absence of any evidence that the employer deliberately acted to force plaintiff to resign, the ineffectiveness of the investigation without more did not amount to a constructive discharge. Id. . Deposition of Mary Long taken October 26, 2000 (hereinafter \"Long Dep. II\") at 128. . Although constructive discharge is not a \"tangible employment action” for hostile work environment purposes, it may be an \"adverse employment action” giving rise to a Title VII retaliation claim. See Fitzgerald v. Henderson, 251 F.3d 345, 357 (2d Cir.2001); Chertkova v. Connecticut General Life Ins. Co., 92 F.3d 81, 89 (2d Cir.1996). .Plaintiff does not argue that the threatening encounter with Coville itself constituted retaliatory constructive discharge. . Plaintiff's" }, { "docid": "15366185", "title": "", "text": "rendered their working conditions intolerable, neither employee was constructively discharged, for purposes of their Title VII claims, as they failed to give employer notice of manager’s behavior by utilizing employer’s internal grievance procedure, or to otherwise notify employer, thus depriving employer of a reasonable opportunity to remedy the situation). Matthews v. City of Gulfport, 72 F.Supp.2d 1328, 1338 (M.D.Fla.1999) (citing Landgraf v. USI Film Products., 968 F.2d 427, 430 (5th Cir.1992)); see also Chambers v. American Trans Air, Inc., 17 F.3d 998, 1005 (7th Cir.1994) (“to be actionable under Title VII the work conditions need to be more than merely intolerable — they need to be intolerable in a discriminatory way.”). And see Hipp v. Liberty Nat Life Ins. Co., 252 F.3d 1208, 1231 (11th Cir.2001) (stating that “[t]he standard for proving constructive discharge is higher than the standard for proving a hostile work environment.”). Further, contrary to Plaintiffs allegations regarding the intolerability of her working conditions, just days before she left and, and more importantly, following the bulk of Dr. Akstein’s activities of which she complains, she solicited both Bunch and Akstein for a raise, implying that she had, until that time, no intention of leaving the Eye Center. Background Facts supra at 16-17. Finally, even if Plaintiffs internal complaint of sexual harassment would have been fruitless had she stayed employed with the Eye Center, given that she had unsuccessfully protested some of Akstein’s advances, see Discussion supra, to establish that she was constructively discharged Plaintiff must show that it was the management’s purpose to make her resign. Cross, 17 F.Supp.2d at 1376. Plaintiff has put forth no evidence that Dr. Akstein or the Eye Center (acting through Dr. Akstein or any other management employees) wanted her to quit. Instead, Plaintiffs constructive discharge claim is based only on her subjective perception of an abusive environment and, while the Court finds that this may be sufficient to create a prima facie ease of a sexually hostile work environment, it is not sufficient alone to create a fact question as to whether she was constructively discharged. Because the uncontested evidence in" }, { "docid": "7171127", "title": "", "text": "credibility determination. The trial judge may have erred in looking only to the actions of the plaintiff’s immediate supervisor, Mr. Fogg, rather than those of all TVA supervisors; however, any such error was harmless. The proffered evidence of leniency by other supervisors contained no element of proof that Fogg’s more severe treatment of the plaintiff resulted from intentional discrimination on the basis of sex. As the court pointed out, James Fogg may have disliked the plaintiff for reasons totally unrelated to the fact that she is a woman, and the evidence of difference in treatment was far from conclusive. The plaintiff makes a separate claim of disparate treatment under the rubric “constructive discharge.” This court has recognized the doctrine of constructive discharge, both in labor relations and civil rights cases. See Easter v. Jeep Corp., 750 F.2d 520, 522 (6th Cir.1984); Held v. Gulf Oil Co., 684 F.2d 427, 432 (6th Cir.1982); Jacobs v. Martin Sweets Co., 550 F.2d 364 (6th Cir.), cert. denied, 431 U.S. 917, 97 S.Ct. 2180, 53 L.Ed.2d 227 (1977), (all Title VII cases); NLRB v. Tennessee Packers, Inc., 339 F.2d 203 (6th Cir.1964), (labor case). The plaintiff contends that the district court committed reversible error in testing her constructive discharge claim by the standard stated in Muller v. United States Steel Corp., 509 F.2d 923 (10th Cir.), cert. denied, 423 U.S. 825, 96 S.Ct. 39, 46 L.Ed.2d 41 (1975), rather than that set out in the Sixth Circuit cases. Muller required a showing that the employer deliberately rendered the employee’s working conditions intolerable. The Sixth Circuit cases permit a finding of constructive discharge where an employer engages in conduct that has the reasonably foreseeable effect of causing the employee to feel compelled to quit. The district court’s reference to Muller did not constitute reversible error. Under either the Muller test or the Sixth Circuit test, a determination of constructive discharge necessarily rests on a finding of discriminatory intent. The district court found no such intent and this finding is not clearly erroneous. Moreover, the plaintiff’s constructive discharge argument suffers from a more serious defect. The" }, { "docid": "20428698", "title": "", "text": "Macharia v. United States, 334 F.3d 61, 64, 67 (D.C.Cir.2003). Even so, the facts alleged “must be enough to raise a right to relief above the speculative level,” Twombly, 127 S.Ct. at 1965, and the court need not accept as true inferences unsupported by facts set out in the complaint or legal conclusions cast as factual allegations. Browning v. Clinton, 292 F.3d 235, 242 (D.C.Cir.2002). “[A] complaint needs some information about the circumstances giving rise to the claims.” Aktieselskabet AF 21. Nov. 2001 v. Fame Jeans, Inc., 525 F.3d 8, 16 n. 4 (D.C.Cir.2008) (emphasis in original). II. ANALYSIS Ms. Rogler alleges that the individual Defendants violated her First, Fourth and Fifth Amendment rights by conspiring to retaliate against her for agreeing to testify as a witness in an administrative proceeding before the EEOC concerning a different employee. Title VII provides a remedy for federal employees who are retaliated against for participating in EEOC proceedings. See 42 U.S.C. §§ 2000e-3(a); 2000e-16; Porter v. Adams, 639 F.2d 273, 277-78 (5th Cir.1981) (§ 2000e-16 prohibits retaliation against federal employees for invoking Title VII rights). Indeed, Ms. Rogler has a Title VII lawsuit pending in the United States District Court for the District of Maryland. See supra note 1. That remedy is Ms. Rogler’s exclusive remedy. Brown v. GSA, 425 U.S. 820, 835, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976). She cannot recast her Title VII retaliation claims as constitutional claims. Ethnic Employees of the Library of Cong. v. Boorstin, 751 F.2d 1405, 1414-15, n. 12 & 13 (D.C.Cir.1985). Because that is precisely what she has done here, the Court will dismiss her constitutional claims with prejudice. See id. at 1415 (“the district court properly dismissed those constitutional claims that simply restated claims of racial, ethnic or other discrimination cognizable under Title VII, or claims of retaliation for the invocation of Title VII rights”); cf. Morris v. Wash. Metro. Area Transit Auth., 702 F.2d 1037, 1039-40 (D.C.Cir.1983) (federal employee’s first amendment claim for retaliatory discharge prohibited by Title VII would be barred). Nor can Ms. Rogler recast her Title VII retaliation claims as" }, { "docid": "9453532", "title": "", "text": "perception of the work environment as hostile. If accepted, that proposition would insulate Greenpeace against liability for a known miscreant’s first attack on each recently hired nubile young woman. This Court rejects that offensive notion, holding instead that Al-Dabbagh’s reaction to the actual experience — her natural reaction to being personally exposed to the offending employee’s violent sexual misconduct — establishes the requisite subjective prong even though she had not previously known of Mitchell’s proclivities. Al-Dabbagh also complains of Greenpeace’s conduct after the rape, claiming that the way in which she was treated between December 28, 1992 and January 20, 1993 constituted further discrimination against her. In essence she alleges that Greenpeace forced her to quit for no other reason than that she had herself been a victim of the hostile environment — that she had been raped. Al-Dabbagh couches those allegations in terms of “constructive discharge,” but that is really unnecessary to the statement of a viable claim. After all, the precondition for Title VII liability is a sex-based adverse employment action by the employer — and where as here the employee’s injury flows directly from a specific manifestation of a hostile work environment previously known to the employer (or constructively known — the “should have known” alternative), it is the employer’s failure to have taken earlier remedial action that itself constitutes the “adverse employment action.” Thus Townsend v. Indiana Univ., 995 F.2d 691, 693 (7th Cir.1993) has made clear that “involuntary termination, whether in the form of outright discharge or of constructive discharge (where the employer makes life so unbearable for the employee that the latter quits)” is not “a sine qua non to prevailing under Title VII” and that “[t]he only question is whether the discrimination inflicted the kind of harm for which Title VII offers redress.” Here Al-Dabbagh (much like the Townsend plaintiff) alleges that she suffered severe emotional and physical distress as the result of Greenpeace’s treatment during the three weeks following the rape (Greenpeace encouraged her to seek other employment, questioned her intentions regarding a possible lawsuit and otherwise made her life at work" }, { "docid": "10051055", "title": "", "text": "environment sexual harassment claim are accepted as true, the court finds that the alleged conduct was not sufficiently severe or pervasive to alter the conditions of plaintiffs employment. C. Constructive Discharge Plaintiff contends that the hostile environment to which she was subjected forced her to leave Hall-Mark and led to her constructive discharge. An employee who is not formally discharged from employment may still be constructively discharged if the employee was forced to quit due to gender-based intolerable working conditions. Derr v. Gulf Oil Corp., 796 F.2d 340 (10th Cir.1986). In order to establish a claim of constructive discharge under Title VII, plaintiff must show that the defendant’s conduct produced working conditions that a reasonable person would view as intolerable. Daemi, 931 F.2d at 1386. The intolerable conditions must be the result of the employer’s illegal discriminatory acts, Derr, 796 F.2d at 344, and plaintiff must show a causal connection between her leaving and the employer’s Title VII violation. Wolf v. Burum, No. 88-1233-C, 1990 WL 81219, at *9 (D.Kan. May 16, 1990). Based on the conclusion that plaintiff has not established her hostile environment claim, she cannot recover on her claim of constructive discharge. See Bolden v. PRC Inc., 43 F.3d 545, 552 (10th Cir.1994). Plaintiff has shown that she was unhappy at work and resigned because she did not want to deal with Mr. Lasswell any longer. “However, not every employee has an actionable claim of constructive discharge pursuant to Title VII. [Plaintiff] has failed to show how her resignation was the result of illegal discriminatory conduct.” Id. (citing Acrey v. American Sheep Indus. Ass’n, 981 F.2d 1569, 1573-74 (10th Cir.1992). Defendants’ motion for summary judgment on this claim is, therefore, granted. D. Negligent Infliction of Emotional Distress Defendants also seek summary judgment on plaintiffs claim for negligent infliction of emotional distress, arguing that plaintiff cannot show that her alleged injuries do not rise to the level of physical injury necessary to sustain an action for negligent infliction of emotional distress under Kansas law; that as to Mr. Lasswell, no negligent conduct has been alleged; and that Kansas" }, { "docid": "23450691", "title": "", "text": "case would require the District Court to compare the relative severity of violations of religious doctrine. Congress has not manifested an affirmative intention to apply the statute to a religious employer in the face of such constitutional difficulties. Curay-Cramer, thus, does not present in Count Three a viable claim under Title VII. V. Conclusion We conclude that Curay-Cramer has failed to state a claim upon which relief can be granted with respect to the first two counts of her Complaint because signing the pro-choice advertisement was not protected conduct under Title VII’s opposition clause. Curay-Cramer’s third count fails because Congress has not clearly expressed an affirmative intention to apply Title VII to a claim, as asserted here, against a religious employer in the present context. Therefore, we will affirm the judgment of the District Court dismissing the first three counts of Curay-Cramer’s Complaint under Fed.R.Civ.P. 12(b)(6) and dismissing without prejudice her state law claims. . Curay-Cramer alleges that Ursuline has such a policy and practice; for purposes of reviewing this motion to dismiss, we accept that assertion. . It is axiomatic that an employer is free to terminate an employee provided that the employee is not engaged in protected conduct. . We note that the Sixth Circuit Court of Appeals has held that “an employer may not discriminate against a woman employee because 'she has exercised her right to have an abortion. ” Turic v. Holland Hospitality, Inc., 85 F.3d 1211, 1214 (6th Cir.1996) (quoting H.R. REP. NO. 95-1786 (1978) (Conf.Rep.), reprinted in 1978 U.S.C.C.A.N. 4749, 4765-66). Extending that principle, the Sixth Circuit further held that an employer “cannot take adverse employment action against a female employee for merely thinking about what she has a right to do.” Id. Likewise, the Equal Employment Opportunity Commission (EEOC) has taken the position that it is an unlawful employment practice to fire a woman \"because she is pregnant or has had an abortion.” 29 C.F.R. pt. 1604, App. (1986). . We have previously recognized that Title VII and the Age Discrimination in Employment Act (\"ADEA”), 29 U.S.C. § 621 et seq. (2000), are" }, { "docid": "23668367", "title": "", "text": "type awarded here are not authorized under Section 706(g) of Title VII. II. It was not until March 24, 1972, that Title VII of the Civil Rights Act of 1964 was amended to apply to the federal government, state and local governments and educational institutions. For this reason appellant claims that the district court was without jurisdiction to permit an award of damages for acts of discrimination occurring prior to the effective date of the amendment. This claim, if correct, would limit the damages, in any event, to such as might have been found to have been suffered between March 24, 1972 and June, 1972 when Mrs. Harrington took her retirement. Because this issue appears to have been raised for the first time on appeal, we do not choose to address it. Hutton v. United States, 501 F.2d 1055, 1062 (6th Cir. 1974). III. Because plaintiff has not prevailed, we conclude that the district court’s award of attorneys’ fees made under Section 706(k) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(k) (1976), must likewise fail. It is true, of course, that the plaintiff succeeded in obtaining a judicial determination that the defendant Board discriminated against her in the conditions of her employment. This determination, standing alone, does not in our judgment suffice to constitute her as a prevailing party within the meaning of the Act. In order to be a “prevailing party,” a plaintiff must have been entitled to some form of relief at the time suit was brought. Here, Mrs. Harrington failed to establish her claim that she was constructively discharged or that she was discriminated against in the salary she received. Thus neither backpay, reinstatement nor injunc-tive relief was awardable. She has not shown herself entitled to any relief under the Act and it is apparent that she was not so entitled at the time she commenced the district court action. This case is distinguished from our decision in Seals v. Quarterly County Court of Madison County, Tennessee, 562 F.2d 390 (6th Cir. 1977). There we allowed an award of attorneys’ fees" }, { "docid": "16708702", "title": "", "text": "or to work different hours was an adverse employment action. Faurecia’s denial of Regan’s request to have a modified work schedule and work through the lunch hour is not “a significant change in employment status.” Id. “A ‘mere inconvenience or an alteration of job responsibilities’ ... is not enough to constitute an adverse employment action.” White v. Burlington N. & Santa Fe Ry. Co., 364 F.3d 789, 797 (6th Cir.2004) (en banc) (quoting Kocsis v. Multi-Care Mgmt., Inc., 97 F.3d 876, 886 (6th Cir.1996)). Therefore, the denial of her request does not constitute an adverse employment action. Alternatively, Regan argues that her resignation following Faurecia’s denial of her request to shift her work schedule an hour earlier was constructive discharge and, thus, constituted an adverse employment action. “To demonstrate constructive discharge, a plaintiff must adduce evidence to show that (1) the employer deliberately created intolerable working conditions, as perceived by a reasonable person, (2) the employer did so with the intention of forcing the employee to quit, and (3) the employee actually quit.” Savage v. Gee, 665 F.3d 732, 739 (6th Cir.2012) (alterations and internal quotation marks omitted). “[B]oth the employer’s intent and the employee’s objective feelings must be examined.” Id. In evaluating the first prong of this test, Saroli v. Automation & Modular Components, Inc., 405 F.3d 446, 451 (6th Cir.2005), we ask: Whether a reasonable person would have [felt] compelled to resign depends on the facts of each case, but we consider the following factors relevant, singly or in combination: (1) demotion; (2) reduction in salary; (3) reduction in job responsibilities; (4) reassignment to menial or degrading work; (5) reassignment to work under a [male] supervisor; (6) badgering, harassment, or humiliation by the employer calculated to encourage the employee’s resignation; or (7) offers of early retirement or continued employment on terms less favorable than the employee’s former status. (8) Regan has not put forth evidence showing that Faurecia “deliberately created intolerable working conditions, or that there was any intention that the [new work schedule] was designed to force [Regan] to quit.” Tepper v. Potter, 505 F.3d 508, 515" }, { "docid": "1747948", "title": "", "text": "at 886 (quoting Crady v. Liberty Nat’l Bank and Trust Co., 993 F.2d 132, 136 (7th Cir.1993)). Even if Plaintiff was transferred involuntarily, as she avers, she has not offered evidence that the action was materially adverse. Plaintiffs job responsibilities at the Elizabethtown office were not “significantly different,” she actually received an increase in pay, and her daily round-trip commute was about 60 miles shorter. Plaintiff argues that the absence of a timely evaluation creates an adverse action, but cannot demonstrate that the absence of an evaluation limited her advancement. Plaintiff has offered no evidence that the transfer was materially adverse to her career. That she ended up disliking her new job does not change the analysis. The facts indicate that the transfer was not an adverse employment action. III. In Count 1 Plaintiff asserts a claim against Alvey individually under 42 U.S.C. § 1983. As this Court pointed out in its previous Memorandum, a plaintiff may bring both Title VII and § 1983 claims. However, for all practical purposes, the two claims are the same. The Sixth Circuit has held that where there is liability under Title VII, there should be liability under § 1983, and if there is no liability under Title VII there can be no liability under § 1983. Grano v. Dept. of Dev., 637 F.2d 1073, 1082 (6th Cir.1980). Since the Sixth Circuit’s decision in Wathen v. General Electric Co., 115 F.3d 400 (1997), it seems undisputed that in circumstances such as these an employee like Alvey is not individually hable under Title VII. In fact, the Wathen court specifically considered this question in light of hostile work environment claims. The retaliation claim is not an issue now because the Court has concluded that Plaintiff has no claim under Title VII. The only question remaining is whether Plaintiffs § 1983 claim against Alvey in his individual capacity must be dismissed because Plaintiff cannot assert such a claim under Title VII. No court seems to have directly addressed this issue. However, § 1983 liability as alleged in Count 1 is premised upon liability under Title VII." }, { "docid": "9742959", "title": "", "text": "liable under § 1983 only where there is significant state involvement in the actions taken. See Wagner v. Metropolitan Nashville Airport Auth., 772 F.2d 227,229 (6th Cir.1985). In this case, Plaintiffs have alleged no state action or state involvement that could support a § 1983 claim. The conduct complained of was solely that of private individuals or corporations, and was in no way taken under “color of law.” Therefore, all of the Plaintiffs claims under § 1983 must be dismissed. State Law Tort Claims In addition to the Title VII claims, Plaintiffs assert various state law claims against the Defendants, including outrageous conduet/intentional infliction of emotional distress, negligent infliction of emotional distress, assault and battery, invasion of privacy, and negligence per se. The Defendants contend that these allegations fail to state a claim upon which relief may be granted. Defendant Brown Group, Inc. Defendant Brown contends that the Plaintiffs’ state law claims against it are barred by the exclusivity provision of the Tennessee Workers’ Compensation Law. Tenn.Code Ann. § 50-6-108. Generally, common law tort claims against an employer arising out of work-related injuries are barred unless the worker can show that the employer actually intended to injure the employee. Coffey v. Foamex L.P., 2 F.3d 157, 160 (6th Cir.1993); Blair v. Allied Maintenance Corp., 756 S.W.2d 267, 270 (Tenn.Ct.App.1988). Plaintiffs allege that the Defendants’ conduct was willful, wanton, deliberately indifferent, and amounted to gross negligence. However, under Tennessee law, “[t]here is a distinct difference in fact and law between gross or criminal negligence and actual intent to injure.” King v. Ross Coal Co., 684 S.W.2d 617, 619 (Tenn.Ct.App.1984) (quoting Cooper v. Queen, 586 S.W.2d 830, 833 (Tenn.Ct.App.1979). [T]he common-law liability of the employer cannot be stretched to include accidental injuries caused by the gross, wanton, wilful, deliberate, intentional, reckless, culpable, or malicious negligence, breach of statute, or other misconduct of the employer short of general intentional injury.... Even if the alleged conduct goes beyond aggravated negligence, and includes such elements as knowingly permitting a hazardous work condition to exist, ... this still falls short of the kind of actual intention" }, { "docid": "1747949", "title": "", "text": "same. The Sixth Circuit has held that where there is liability under Title VII, there should be liability under § 1983, and if there is no liability under Title VII there can be no liability under § 1983. Grano v. Dept. of Dev., 637 F.2d 1073, 1082 (6th Cir.1980). Since the Sixth Circuit’s decision in Wathen v. General Electric Co., 115 F.3d 400 (1997), it seems undisputed that in circumstances such as these an employee like Alvey is not individually hable under Title VII. In fact, the Wathen court specifically considered this question in light of hostile work environment claims. The retaliation claim is not an issue now because the Court has concluded that Plaintiff has no claim under Title VII. The only question remaining is whether Plaintiffs § 1983 claim against Alvey in his individual capacity must be dismissed because Plaintiff cannot assert such a claim under Title VII. No court seems to have directly addressed this issue. However, § 1983 liability as alleged in Count 1 is premised upon liability under Title VII. Consequently, Plaintiff must be able to make out a Title VII case generally as well as against the specific Defendant against whom she asserts the § 1983 claim. In this instance, while Plaintiff may be able to make out a Title VII claim generally, Wathen prevents her from asserting one against Alvey individually. Consequently, Plaintiffs § 1983 claims against Alvey in his individual capacity must be dismissed. IV. Plaintiffs next claim against the Cabinet is that Alvey’s actions created a hostile work environment. Defendant responds that Plaintiffs initial complaint to it assert ed only six allegations: (1) that Alvey humiliated her in front of a male friend on July 7, 1998; (2) that Alvey refused her permission to take an extended lunch break on July 7, 1998; (3) that on July 30, 1998, Alvey told several other employees that he and Plaintiff were seeing each other; (4) that Alvey created situations putting him alone with Plaintiff; (5) that Alvey made explicit sexual remarks and gestures; and (6) that Alvey questioned her personal relationships and sex" }, { "docid": "7319986", "title": "", "text": "a claim-by-claim basis. Ernst v. Rising, 427 F.3d 351, 368 (6th Cir.2005) (en bane) (“We consider Eleventh Amendment immunity, as well as any exceptions to it, on a claim-by-claim basis.”). Whitfield’s Amended Complaint names three entities as defendants: the state of Tennessee, DMHDD, and Virginia Trotter Betts, the commissioner of DMHDD. As relief, Whitfield requests: $50,000 in general and specific damages, including back wages; reinstatement with the state in a like position; $450,000 in punitive and compensatory damages; and attorneys’ fees, costs, and interest. Significantly, Whitfield requests reinstatement, which constitutes prospective injunctive relief. Carten, 282 F.3d at 395. Further, Whitfield identifies a state official, Virginia Trotter Betts, as a defendant. Although it is not clear that she is suing Betts in her official capacity, Whitfield’s amended complaint can be read generously to bring both a distinct Title I claim for injunctive relief against Betts, in her official capacity, and a separate Title II claim for damages against all parties. Defendants also read Whitfield’s complaint in this manner. Appellees’ Br. at 3 (“Plaintiff then filed an amended complaint ... seeking injunctive relief under Title I and monetary relief under Title II.”). Accordingly, we hold that Whitfield’s complaint contains an Ex parte Young action for reinstatement pursuant to Title I of the ADA. B Title II of the ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the ben efits of the services, programs, or activities of a public entity, or be subjected to discrimination by such entity.” 42 U.S.C. § 12132. Significantly, whereas Title I specifically addresses employment, Title II address “public services,” and this court has never decided whether Title II applies to employment cases. See Dean v. City of Bay City, Mich., 239 Fed.Appx. 107, 112 (6th Cir.2007) (“[T]his Court declines to reach the novel issue of whether Title II of the ADA applies to employment cases.”). Although we read Whitfield’s complaint to contain a purported Title II claim for damages, Whitfield has waived any such claim. In her Amended Complaint, Whitfield alleges discrimination under" }, { "docid": "9453533", "title": "", "text": "employer — and where as here the employee’s injury flows directly from a specific manifestation of a hostile work environment previously known to the employer (or constructively known — the “should have known” alternative), it is the employer’s failure to have taken earlier remedial action that itself constitutes the “adverse employment action.” Thus Townsend v. Indiana Univ., 995 F.2d 691, 693 (7th Cir.1993) has made clear that “involuntary termination, whether in the form of outright discharge or of constructive discharge (where the employer makes life so unbearable for the employee that the latter quits)” is not “a sine qua non to prevailing under Title VII” and that “[t]he only question is whether the discrimination inflicted the kind of harm for which Title VII offers redress.” Here Al-Dabbagh (much like the Townsend plaintiff) alleges that she suffered severe emotional and physical distress as the result of Greenpeace’s treatment during the three weeks following the rape (Greenpeace encouraged her to seek other employment, questioned her intentions regarding a possible lawsuit and otherwise made her life at work unbearable) — all as a result of the lone fact that she had recently been the victim of a brutal sex crime. Those things are not things that Al-Dabbagh must prove to state a claim. Instead they simply provide her with the potential for additional recovery— compensatory or punitive damages or both, and perhaps reinstatement or back pay — for a Title VII violation that was already complete when she suffered the rape itself. State Law Claims Greenpeace has moved to dismiss all six Illinois-law-based counts (Counts II through VII) in Al-Dabbagh’s Complaint on two independent grounds. One of those grounds is that all six theories of recovery are barred by the exclusivity provisions of the Illinois Workers’ Compensation Act (“Act”), particularly 820 ILCS 305/5: No common law or statutory right to recover damages from the employer ... for injury or death sustained by any employee while engaged in the line of his duty as such employee, other than the compensation herein provided, is available to any employee who is covered by the provisions of" }, { "docid": "22277822", "title": "", "text": "to resign.” The majority opinion leaves nothing for the finder of fact to do on remand. Turning to the substance of Logan’s complaint, I agree with the majority opinion that Logan presented sufficient evidence as to the first and second prongs of the prima facie case. I disagree with the majority opinion’s reasoning and conclusions with regard to the third and fourth elements of Logan’s prima facie case: that she suffered an adverse employment action and that she was treated less favorably than a similarly situated individual outside her protected class. See Kocsis v. Multi-Care Mgmt., Inc., 97 F.3d 876, 882 (6th Cir.1996). To begin with, this circuit has well-established precedent governing the determination of whether a Title VII plaintiff has satisfied the third prong when the plaintiff claims constructive discharge as the adverse employment action. In Wil son v. Firestone Tire & Rubber Company, 932 F.2d 510 (6th Cir.1991), we held that “[a] demotion within a company does not amount to a constructive discharge unless the proffered employment options would have been ‘so difficult or unpleasant that a reasonable person in the employee’s shoes would have felt compelled to resign.’ ” Id. at 515 (quoting Yates v. Avco Corp., 819 F.2d 630, 636-37 (6th Cir.1987) and Held v. Gulf Oil Co., 684 F.2d 427, 432 (6th Cir.1982)). That standard has been followed consistently in this circuit. See, e.g., Kocsis, 97 F.3d at 887. In Moore v. KUKA Welding Systems, 171 F.3d 1073, 1080 (6th Cir.1999), we explained: To constitute a discharge, the employer must deliberately create intolerable working conditions, as perceived by a reasonable person, with the intention of forcing the employee to quit and the employee must actually quit. To determine if there is a constructive discharge, both the employer’s intent and the employee’s objective feelings must be examined. And in Scott v. Goodyear Tire & Rubber Company, 160 F.3d 1121, 1127 (6th Cir.1998), we made it clear that “[i]n the typical discriminatory constructive discharge case, the employer does not overtly seek a discontinuation in the employment relationship but the employee claims to be subjected to intolerable working" } ]

[ { "docid": "16065048", "title": "", "text": "years of supervised release. Initially, Jones appealed the admission of his prior convictions, the admission of the plea and cooperation agreements between the government and Cole and Lovelace (respectively), and a statement made by the prosecutor during closing. At oral argument, Jones abandoned his arguments on the latter two points and chose instead to focus on the allegedly erroneous admission of his prior convictions. II Jones objects to the admission of his two prior convictions on the ground that they were not relevant to any permissible issue. That is to say, he argues, the government failed to meet the test for admissibility established by Fed.R.Evid. Rule 404(b), under which it had to demonstrate that the convictions demonstrated “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” We review a district court’s decision to admit evidence under Rule 404(b) for abuse of discretion. United States v. Whitlow, 381 F.3d 679, 686 (7th Cir.2004). Evidence of prior convictions is not admissible to show a defendant’s propensity to commit a crime, nor to show that he or she acted in conformity with that propensity on the occasion in question. See United States v. Wash, 231 F.3d 366, 370 (7th Cir.2000) (citation omitted). Propensity and intent are two different things, however, even if only a fine line sometimes distinguishes them. The government is entitled to introduce evidence of other acts to show intent if the defendant has been charged with a specific intent crime. United States v. Macedo, 371 F.3d 957, 967 (7th Cir.2004); United States v. Best, 250 F.3d 1084, 1091 (7th Cir.2001); United States v. Long, 86 F.3d 81, 84 (7th Cir.1996). The prior convictions cannot substitute for direct evidence of guilt, but they may be used by the jury as one piece of the government’s case. In order to ensure that evidence is admitted for a purpose recognized as proper by Rule 404(b), and not for the impermissible purpose of suggesting propensity to commit the crime, the government must prove that: (1) the evidence is directed toward establishing a matter in issue other than the" } ]

[ { "docid": "3336048", "title": "", "text": "interest in applying for a Supply Chain Planning Manager position, posted on May 19, 2015, she was told by another employee that management does not hire women for any meaningful positions. 43. Further, after meeting with an insurance sales agent who was potentially going to provide insurance to Polysci-ences, Mr. Ott refused to do business with her after discovering that she was a supporter óf then-President Barack Obama. 44. Mike Ott' routinely gives business to Chick-fil-A due to its anti-gay stand. Compl. ¶¶ 34-37, 39(f), 41-44. Defendant now contends none of these averments are plausibly relevant to plaintiff’s age discrimination claim as they allege discrimination based on gender or political affiliation. This argument invokes Federal Rule of Evidence 404(b), which states, in relevant part: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. This evidence may be admissible for another purpose such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. Fed. R. Evid. 404(b). “Rule 404(b) thus prohibits the admission of other acts evidence for the purpose of showing that an individual has a propensity or disposition to act in a particular manner.” Ansell v. Green Acres Contracting Co., Inc., 347 F.3d 515, 520 (3d Cir. 2003). “Such evidence may, however, be admitted if offered for a proper purpose apart from showing that the individual is a person of a certain character.” Id. To be admissible under Rule 404(b), other acts evidence must meet the following, four part test: (1) the evidence must have a proper purpose under Rule 404(b); (2) it must be relevant under Rule 402; (3) its probative value must -outweigh its prejudicial effect under Rule 403; and (4) the district court must charge the jury to consider the evidence only for the limited purpose for which it was admitted. Becker v. ARCO Chem. Co., 207 F.3d 176, 189 (3d Cir. 2000) (quotations omitted). .“Evidence of an employer’s conduct towards other employees has long been held relevant and admissible to show that an" }, { "docid": "20537045", "title": "", "text": "(“When one looks beyond the purposes for which the evidence is being offered and considers what inferences the jury is being asked to draw from that evidence, and by what chain of logic, it will sometimes become clear ... that despite the label, the jury is essentially being asked to rely on the evidence as proof of the defendant’s propensity to commit the charged offense.”); Miller, 673 F.3d at 697-99; United States v. Jones, 389 F.3d 753, 757 (7th Cir.2004), vacated on other grounds by Jones v. United States, 545 U.S. 1125, 125 S.Ct. 2948, 162 L.Ed.2d 864 (2005). This is not to say that other-act evidence must be excluded whenever a propensity inference can be drawn; rather, Rule 404(b) excludes the evidence if its relevance to “another purpose” is established only through the forbidden propensity inference. Spotting a hidden propensity inference is not always easy. See Jones, 389 F.3d at 757. For this reason, although we have long required the record to reflect a “principled exercise of discretion” by the district court, Beasley, 809 F.2d at 1279, we have more recently emphasized the importance of identifying the non-propensity theory that makes the other-act evidence relevant and specifically asking how the evidence tends to make a particular fact of consequence more or less probable. For example, in United States v. Ciesiolka, 614 F.3d 347, 355 (7th Cir.2010), we noted that it was critical to “delineate precisely the legitimate ends to which the evidence could be applied.” In Miller we explained that the court should ask “more specifically how” the other-act evidence is relevant to a permitted purpose in order to help expose impermissible uses of other-act evidence for pure propensity purposes. 673 F.3d at 699. In United States v. Richards, 719 F.3d 746 (7th Cir.2013), we said that the “district court[ ] must consider specifically how the prior conviction tends to serve the non-propensity exception.” Id. at 759 (internal quotation marks and alterations omitted). And in Lee we explained that the court must “consider the chain of logic by which the jury is being asked to glean the defendant’s knowledge," }, { "docid": "22970431", "title": "", "text": "prior acts in order to establish Quattrone’s innocent intent. Specifically, Quattrone contends that his prior acts were relevant to establish that when he sent the Endorsement Email roughly twenty-four hours after beginning to draft his response, he did not act with deliberate, corrupt intent. Instead, he merely reinforced the message of a fellow employee: follow the document retention policy. The district court excluded the evidence on the ground that the emails were insufficient to establish within the meaning of Federal Rule of Evidence 406 a habit of reflexively responding to subordinates’ email suggestions. Rule 404(b) “deals with a specialized but important application of the general rule excluding circumstantial use of character evidence. Consistently with that rule, [ie. Rule 404(a),] evidence of other crimes, wrongs, or acts is not admissible to prove character as a basis for suggesting the inference that conduct on a particular occasion was in conformity with it [in essence propensity reasoning]. However, the evidence may be offered for another purpose, such as proof of motive, [intent,] opportunity, and so on, which does not fall within the prohibition.” Fed. R. Evid 404, Adv. Cmte Notes, 1972 Proposed Rules, Note to Subd. (b). While prosecutors generally employ prior bad acts evidence, sometimes defense counsel seize upon the standard to admit useful prior act evidence. See, e.g., id., Adv. Cmte. Notes, 1991 Amendments. To be admissible under Rule 404(b) the evidence must serve a non-propensity purpose. See, e.g., United States v. Aboumoussallem, 726 F.2d 906, 911-12 (2d Cir.1984) (evidence that co-conspirators had duped other couriers into carrying drugs admissible to prove defendant was duped where charge was knowingly importing drugs, subject to Rule 403 balancing). We conclude that because the similar reinforcing emails were not competent Rule 404(b) evidence, the trial court did not err in excluding them. Quattrone seeks to justify the emails on the basis that they establish his intent and disavows that the evidence is relevant only for propensity purposes. But propensity would be the only basis for justifying the evidence. The emails relate to Quattrone’s intent only if one could infer that Quattrone acted in conformity" }, { "docid": "8693432", "title": "", "text": "admitted prior bad acts evidence in drug cases. United States v. Miller, 673 F.3d 688, 696 (7th Cir.2012) (“[Ajdmission of prior drug crimes to prove intent to commit present drug crimes has become too routine.”); see also United States v. Jones, 389 F.3d 753, 756-58 (7th Cir.2004), vacated. on other grounds by 545 U.S. 1125, 125 S.Ct. 2948, 162 L.Ed.2d 864 (2005). Rule 404, however, does not present an insurmountable barrier to admission of prior bad acts evidence. To begin, “[identification of an at-issue, non-propensity Rule 404(b) exception is a necessary condition for admitting the evidence[.]” Miller, 673 F.3d at 697. Thus, district courts must consider “specifically how the prior conviction tendfs] to” serve the non-propensity exception. Id. at 699 (emphasis added). Additionally, not only must the evidence be relevant to a valid non-propensity issue, the defendant must also “meaningfully dispute” that non-propensity issue. Miller, 673 F.3d at 697. We find both requirements satisfied in Richards’s case and thus see no error in the district court finding the California calls probative of a non-propensity purpose. First, knowledge is a valid non-propensity purpose, and Richards placed his knowledge of the bag’s contents directly at issue when he took the stand and testified that he believed the bag contained money, not drugs. Second, a “specific” link exists between the calls and Richards’s testimony, making the calls relevant to his knowledge of the bag’s contents. a. Richards’s Defense Put His Knowledge of the Bag’s Contents Directly in Issue A defendant must “meaningfully dispute”- the non-propensity issue justifying admission of the Rule 404(b) evidence. Miller, 673 F.3d at 697. Thus, if the defendant simply asserts his innocence in a more general way or argues .his conduct failed to satisfy some other element of the crime besides intent or knowledge, prior bad acts evidence is inadmissible. Id. Miller illustrates the more general defense assertions that would not meaningfully dispute a Rule 404(b) exception. In that case, the defendant — on trial for possession with intent to distribute — did not dispute intent. (That police found the large quantity of drugs at issue packaged into smaller" }, { "docid": "6286874", "title": "", "text": "to 210 months in prison. II. Analysis A. Rule 404(b) Evidence Hum’s first argument concerns the district court’s admission of his 1995 conviction. Though the district court ruled that the conviction was relevant to prove intent, Hurn claims that the conviction only demonstrated his propensity to deal drugs, a prohibited purpose under Rule 404(b). We review the district court’s admission of evidence under Rule 404(b) for an abuse of discretion. See United States v. Senffner, 280 F.3d 755, 762 (7th Cir. 2002). We give the district court great deference in such matters, and we will not substitute our judgment for that of the district court. Id. Rule 404(b) prohibits the government from using prior bad acts “to prove the character of a person in order to show action in conformity therewith,” but allows the admission of such evidence to establish “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” This Court evaluates the admissibility of prior bad acts under a four part test. The evidence must be relevant to an issue other than the defendant’s propensity to commit the crime charged, the other act must be similar enough and close enough in time to be relevant, there must be sufficient evidence that the defendant committed the similar act, and the probative value of the evidence must not be substantially outweighed by the danger of unfair prejudice. See United States v. Puckett, 405 F.3d 589, 596 (7th Cir.2005). This Court has recognized several situations in which a prior drug conviction is relevant to prove the defendant’s intent in a subsequent prosecution for possession of drugs with intent to distribute. The most obvious situation is the one “in which the defendant, while admitting possession of the substance, denies the intent to distribute it.” United States v. Jones, 455 F.3d 800, 808 (7th Cir.2006). A prior conviction is also relevant when the defendant concedes being in the vicinity of drug activity but argues that he was a “clueless bystander.” See United States v. Chavis, 429 F.3d 662, 668 (7th Cir.2005); United States v. Macedo, 406 F.3d 778, 793 (7th" }, { "docid": "13340286", "title": "", "text": "propensity, United States v. Ismail, 756 F.2d 1253, 1258-1259 (6th Cir.1985), “Rules 401 and 402 establish the broad principle that relevant evidence^ — evidence that makes the existence of any fact at issue more or less probable — is admissible unless the Rules provide otherwise.” Huddleston v. United States, 485 U.S. at 686, 108 S.Ct. 1496. See United States v. Feinman, 930 F.2d 495, 499 (6th Cir.1991) (“To determine whether the proffered evidence is admissible for a proper purpose, the trial court must de cide, ‘whether the evidence is probative of a material issue other than character.’ ” (quoting Huddleston, 485 U.S. at 686, 108 S.Ct. 1496)). The government’s proffer of the 404(b) evidence argued that the evidence was necessary to prove Lattner’s specific intent to distribute, his guilty knowledge of the crime, his plan or consistent method of operation, and identity, as well as to rebut Lattner’s possible defenses of lack of knowledge, general and specific intent, mere presence, accidental presence, or mistaken identity. This Court has held that when a defendant is charged with a specific intent crime, such as possession with intent to distribute, 404(b) evidence is admissible to prove intent, subject to the probative/prejudicial balancing. United States v. Johnson, 27 F.3d 1186, 1192-93 (6th Cir.1994). Lattner argues that the 404(b) evidence should not have been admitted for this purpose because he did not raise any issue of intent at trial. However, it seems logical that when Lattner pled not guilty to the offense of possession with intent to distribute, he put his general intent and specific intent at issue, thereby giving the government the burden to establish both beyond a reasonable doubt. This Court has held that Rule 404(b) evidence of prior involvement in uncharged drug offenses is indeed relevant and admissible on the issue of intent. See United States v. Clemis, 11 F.3d 597, 600 (6th Cir.1993), cert. denied, 511 U.S. 1094, 114 S.Ct. 1858, 128 L.Ed.2d 481 (1994). Furthermore, claims of innocent presence or association, such as that made by Lattner’s defense, routinely open the door to 404(b) evidence of other drug acts. For" }, { "docid": "20518816", "title": "", "text": "F.3d 484, 490 (7th Cir.2013) (quotations omitted). Schmitt argued that his alleged drug use, possession, and dealing were not relevant to the firearm possession charges. He also argued that “even if the court deems said evidence to be relevant, the prejudicial effect ... would greatly outweigh any probative value under Rule 403 of the Federal Rules of Evidence,” and “would tend to confuse [and] inflame the jury.” The district court disagreed, finding the evidence relevant. The court also concluded that the probative value of the evidence that Schmitt was a drug dealer, that he used drugs to purchase a firearm, and that marijuana, methamphetamine, and pills were found in plain view in his residence when he was arrested, outweighed any prejudice Schmitt would suffer from its admission. Schmitt renews his arguments on appeal. We begin our inquiry by focusing on whether the drug evidence was relevant to an issue at trial and otherwise admissible. Of course, evidence must be relevant to be admissible, but not all relevant evidence is admissible. See Fed. R.Evid. 402; United States v. Gomez, 763 F.3d 845, 853 (7th Cir.2014) (en banc). Evidence of a defendant’s other bad acts, which is introduced only to show his propensity to commit crimes, is inadmissible under Rule 404(b). Fed.R.Evid. 404(b); Harris, 587 F.3d at 864. But if that evidence is relevant because it serves another purpose, “such as proving motive,” Fed. R.Evid. 402, 404(b), then it may be admitted so long as the district court satisfies that the other purpose is relevant through a “propensity-free chain of reasoning” at issue in the case, that the evidence is relevant to that issue, and that the probative value of the evidence is not substantially outweighed by the evidence’s prejudicial effect. Gomez, 763 F.3d at 852, 856; see also United States v. Chapman, 765 F.3d 720, 722 (7th Cir.2014) (stating that other-act evidence “may be admitted for another purpose provided that the evidence is relevant under a theory that does not rely on an inference about the actor’s propensity” (emphasis in original)); United States v. Miller, 673 F.3d 688, 692 (7th Cir.2012)." }, { "docid": "1391056", "title": "", "text": "admissible to prove- á person’s character in order to show that on a particular occasion the person acted in accordance with the character,’ i.e., as propensity evidence.” United States v. Appolon, 715 F.3d 362, 372 (1st Cir. 2013) (quoting Fed. R. Evid. 404(b)(1)). “Evidence of other acts may be admissible, however, if it has ‘special relevance,’ such as proving ‘motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident,’ Fed. R. Evid. 404(b)(2).” Id. at 372-73 (internal citation omitted). We utilize a two-part test in evaluating admissibility under Rule 404(b). First, we ask whether the evidence has “special relevance”; then, we apply Rule 403 and consider whether its probative value is substantially outweighed by -,the danger of unfair prejudice. Pelletier, 666 E.3d at 5. Even assuming Bruce’s testimony was specially relevant for one or more non-propensity purposes, its admissibility under Rule 403 is questionable. To be sure, even though James did not contest the allegation that he intentionally grew the marijuana in Maine, the government still retained the burden to prove each element of the charges beyond a reasonable doubt and, as a general matter, was “entitled to prove its case by evidence of its own choice.” Old Chief v. United States, 519 U.S. 172, 186, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997); see United States v. Varoudakis, 233 F.3d 113, 121 (1st Cir. 2000) (“[W]e have held that evidence of prior bad acts may be probative even when it is relevant to an issue that the defendant does not contest,” because “the fact that the defendant does not contest the issue for which the prior bad act evidence is offered does not, ‘by itself, remove those issues from the case.’ ” (quoting United States v. Ferrer-Cruz, 899 F.2d 135, 138 (1st Cir. 1990)). But the fact that James did not dispute (and explicitly conceded) this ■ central allegation renders the probative value of Bruce’s testimony significantly reduced. See Varoudakis, 233 F.3d at 121-24. Given the other evidence presented and defense counsel’s concession during opening statements that James grew the marijuana, the government arguably did not" }, { "docid": "17140169", "title": "", "text": "should consider the evidence concerning such a statement with caution and great care and should give such weight to the statement as you believe it deserves under all the circumstances. IV R. 253 (emphasis added). Inherent in defendant’s assertion that the district court erroneously failed to instruct the jury to disregard the drug dealer testimony, or that its instruction confused the jury, is a claim that the “drug dealer” comment was character evidence not properly admitted under Fed.R.Evid. 404(a) and (b). Under Fed.R.Evid. 404(b), evidence of prior bad acts may not be admitted “to show bad character or propensity to commit a crime, but may be admitted to prove, among other things, intent or knowledge.” United States v. Arias-Montoya, 967 F.2d 708, 709 (1st Cir.1992). We note defense counsel did not object to the instruction. Indeed, we cannot determine from the appellate record whether this was an instruction submitted by the prosecution or the defense. The court noted that the only dispute over both parties’ proffered jury instructions was over the use of Gallegos’ “other name.” IV R. 244-45. Thus, we review the instruction only for plain error. The district court was correct in ruling that such a statement is not considered hearsay, because it was made by defendant himself. See Fed.R.Evid. 801(d)(2)(A). But it should have been considered for its admissibility under Rule 404(b). Some courts have expressed “doubt whether evidence of an occupation or status like ‘drug dealer’ falls within the realm of ‘other crimes, wrongs, or acts’ admissible to show knowledge or intent under Rule 404(b).” United States v. Brewer, 1 F.3d 1430, 1435 (4th Cir.1993) (citing United States v. Reed, 647 F.2d 678, 686 (6th Cir.) (testimony that defendants charged with receiving stolen goods were known burglars or fences not admissible under Fed.R.Evid. 404(b))), cert. denied, 454 U.S. 837, 1037, 102 S.Ct. 142, 580, 70 L.Ed.2d 118, 483 (1981). But evidence of prior drug transactions can be admissible to prove intent in drug prosecutions. See United States v. Elkins, 732 F.2d 1280, 1286 (6th Cir.1984) (prior cocaine deals observed by witness admissible to prove intent in" }, { "docid": "14958312", "title": "", "text": "three hours each. J.A. 3171-72. The government accordingly introduced at trial evidence that defendants Pierre and De Four participated in three of the uncharged hostage takings, and that defendant Clarke participated in two of them. The evidence came in through the testimony of the four cooperating co-conspirators and six additional witnesses, including the victim of one hostage taking and Trinidadian law enforcement officials involved in investigating the other hostage takings. The district court gave limiting instructions to the jury periodically during the trial, informing it that the evidence of other hostage takings was admissible only against the specific defendants the jury found were involved in them and explaining the purposes for which the evidence could, and could not, be considered. See Clarke, 767 F.Supp.2d at 27-28. B. On appeal, defendants argue that the district court’s admission of evidence of the three uncharged hostage takings violated Rule 404(b) because it was not admitted for any of the valid purposes enumerated in that Rule, but impermissibly to show their bad characters and propensity to commit the charged crimes. The evidence’s probative value was substantially outweighed by its unfair prejudicial effect, they assert, and was presented in a confusing and prejudicial manner, so should have been excluded under Rule 403. The evidentiary limitation in Rule 404(b) implements the fundamental tenet of our criminal justice system that defendants may be convicted only for violating the law, not for being bad people. United States v. Sutton, 801 F.2d 1346, 1360 (D.C.Cir.1986). The Rule prohibits the admission of evidence of a crime, wrong, or other bad act “when offered for the purpose of proving that a defendant acted in conformity with his character, but allows admission so long as the evidence is offered for any other relevant purpose.” United States v. Lawson, 410 F.3d 735, 741 (D.C.Cir.2005); United States v. Bowie, 232 F.3d 923, 930 (D.C.Cir.2000); see also Fed.R.Evid. 404(b)(1). Relevant, non-propensity purposes include “proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Fed.R.Evid. 404(b)(2). Even if a court determines that the prosecution’s other-crimes evidence is relevant to an issue" }, { "docid": "3851673", "title": "", "text": "under Rule 404(b). We conclude no such error occurred. As stated, evidence of other crimes or wrongs is not admissible under Rule 404(b) to show that the defendant acted in conformity therewith on a particular occasion. Fed.R.Evid. 404(b). Rule 404(b) contains a proviso, however, that permits evidence of other crimes, wrongs, or acts to be introduced for other non-propensity purposes such as “proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.” Id. This Court has established a four-prong test to determine the appropriateness of admitting evidence under Rule 404(b). Under this test, evidence may be admitted pursuant to Rule 404(b) if: (1) the evidence is directed toward establishing a matter in issue other than the defendant’s propensity to commit the crime charged; (2) the evidence shows that the other act is similar enough and close enough in time to be relevant to the matter in issue; (3) the evidence is sufficient to support a jury finding that the defendant committed the similar act; and (4) the evidence has probative value that is not substantially outweighed by the danger of unfair prejudice. See, e.g., United States v. Lampkins, 47 F.3d 175, 179 (7th Cir.1995); United States v. Hubbard, 22 F.3d 1410, 1418 (7th Cir.1994). Gibson challenges the district court’s decision to admit this evidence on three of the four prongs; he concedes that his admission of prior drug dealing is sufficient to support a jury finding that he committed those acts. With respect to the first prong of the test, Gibson argues that the admission of the statements he made to the FBI can serve no purpose other than to show his propensity to deal drugs. The government counters that the FBI statements were directed toward establishing a matter in issue other than Gibson’s propensity—the statements were relevant to the issue of identity. We agree with the government’s assessment of the evidence. See Fed.R.Evid. 404(b); United States v. Bursey, 85 F.3d 293, 297 (7th Cir.1996) (reasoning that “prior bad acts” are admissible under Rule 404(b) to show identity). Gibson’s identity was the material issue in" }, { "docid": "17897858", "title": "", "text": "question is proof of the charged crime. Id. Rule 404(b) provides: (1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character. (2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.... Fed.R.Evid. 404(b). The Supreme Court has stated, “Extrinsic acts evidence may be critical to the establishment of the truth as to a disputed issue, especially when that issue involves the actor’s state of mind and the only means of ascertaining that mental state is by drawing inferences from conduct.” Huddleston v. United States, 485 U.S. 681, 686, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988). The Second Circuit evaluates 404(b) evidence under an inclusionary approach that allows evidence for any purpose other than to show a defendant’s criminal propensity. United States v. McCallum, 584 F.3d 471, 475-76 (2d Cir.2009) (finding that the district court’s admission of the defendant’s prior drug convictions, offered to show his intent to deal drugs and his knowledge of drug dealing, was error because the district court had failed to conduct a Rule 403 analysis; the Second Circuit stated, “evidence of prior convictions merits particularly searching, conscientious scrutiny,” because such evidence can lead to “generalized reasoning about a defendant’s criminal propensity”); United States v. Paulino, 445 F.3d 211, 221-23 (2d Cir.2006); United States v. Garcia, 291 F.3d 127, 136, 138-39 (2d Cir.2002) (finding the district court abused its discretion in admitting evidence of a 12-year-old prior drug conviction whose only proffered similarity was that it involved cocaine). Courts may therefore admit evidence of other acts by the defendant if the evidence is relevant to an issue at trial other than the defendant’s character and if the risk of unfair prejudice does not substantially outweigh the probative value of the evidence. United States v. Morrison, 153 F.3d 34, 57 (2d Cir.1998); see also Garcia, 291 F.3d at 136." }, { "docid": "20537044", "title": "", "text": "virtually meaningless. We have made this point before. See, e.g., United States v. McMillan, 744 F.3d 1033, 1038 (7th Cir.2014); Miller, 673 F.3d at 696 (explaining that “if applied mechanically,” the permitted purposes listed in the rule “would overwhelm the central principle” of the rule against propensity evidence (quoting Beasley, 809 F.2d at 1279)). To resolve this inherent tension in the rule, we have cautioned that it’s not enough for the proponent of the other-act evidence simply to point to a purpose in the “permitted” 'list and assert that the other-act evidence, is relevant to it. Rule 404(b) is not just concerned with the ultimate conclusion, but also with the chain of reasoning that supports the non-propensity purpose for admitting the evidence. United States v. Reed, 744 F.3d 519, 524-25 (7th Cir.2014); United States v. Lee, 724 F.3d 968, 976-77 (7th Cir.2013); Miller, 673 F.3d at 697-98. In other words, the rule allows the use of other-act evidence only when its admission is supported by some propensity-free chain of reasoning. Lee, 724 F.3d at 978 (“When one looks beyond the purposes for which the evidence is being offered and considers what inferences the jury is being asked to draw from that evidence, and by what chain of logic, it will sometimes become clear ... that despite the label, the jury is essentially being asked to rely on the evidence as proof of the defendant’s propensity to commit the charged offense.”); Miller, 673 F.3d at 697-99; United States v. Jones, 389 F.3d 753, 757 (7th Cir.2004), vacated on other grounds by Jones v. United States, 545 U.S. 1125, 125 S.Ct. 2948, 162 L.Ed.2d 864 (2005). This is not to say that other-act evidence must be excluded whenever a propensity inference can be drawn; rather, Rule 404(b) excludes the evidence if its relevance to “another purpose” is established only through the forbidden propensity inference. Spotting a hidden propensity inference is not always easy. See Jones, 389 F.3d at 757. For this reason, although we have long required the record to reflect a “principled exercise of discretion” by the district court, Beasley, 809" }, { "docid": "8693431", "title": "", "text": "to have had upon the jury’s decision.” Hicks, 635 F.3d at 1069 (citing United States v. Zapata, 871 F.2d 616, 622 (7th Cir.1989)). Importantly, nothing “suggest[s] that after-the-fact remarks during closing argument have any bearing on the district court’s original Rule 404(b) determination.” United States v. Kieffer, 68 Fed.Appx. 726, 730 (7th Cir.2003) (non-precedential). Thus, the prosecutor’s use of Rule 404(b) evidence during closing presents a question separate from whether the court properly admitted the evidence in the first place. Richards wages three attacks on the district court’s admission of the California calls. First, he argues that the tapes are not relevant to knowledge, the non-propensity issue proffered to justify their admission. Second, he argues that the cocaine transactions discussed on the tapes are not similar enough or temporally proximate enough to be relevant. And third, Richards argues that the potential for unfair prejudice outweighs the probative value of the evidence. 1. The California Calls Are Relevant to Richards’s Knowledge That the Bag Contained Cocaine We have recently cautioned that district courts have too readily admitted prior bad acts evidence in drug cases. United States v. Miller, 673 F.3d 688, 696 (7th Cir.2012) (“[Ajdmission of prior drug crimes to prove intent to commit present drug crimes has become too routine.”); see also United States v. Jones, 389 F.3d 753, 756-58 (7th Cir.2004), vacated. on other grounds by 545 U.S. 1125, 125 S.Ct. 2948, 162 L.Ed.2d 864 (2005). Rule 404, however, does not present an insurmountable barrier to admission of prior bad acts evidence. To begin, “[identification of an at-issue, non-propensity Rule 404(b) exception is a necessary condition for admitting the evidence[.]” Miller, 673 F.3d at 697. Thus, district courts must consider “specifically how the prior conviction tendfs] to” serve the non-propensity exception. Id. at 699 (emphasis added). Additionally, not only must the evidence be relevant to a valid non-propensity issue, the defendant must also “meaningfully dispute” that non-propensity issue. Miller, 673 F.3d at 697. We find both requirements satisfied in Richards’s case and thus see no error in the district court finding the California calls probative of a non-propensity purpose." }, { "docid": "20518817", "title": "", "text": "States v. Gomez, 763 F.3d 845, 853 (7th Cir.2014) (en banc). Evidence of a defendant’s other bad acts, which is introduced only to show his propensity to commit crimes, is inadmissible under Rule 404(b). Fed.R.Evid. 404(b); Harris, 587 F.3d at 864. But if that evidence is relevant because it serves another purpose, “such as proving motive,” Fed. R.Evid. 402, 404(b), then it may be admitted so long as the district court satisfies that the other purpose is relevant through a “propensity-free chain of reasoning” at issue in the case, that the evidence is relevant to that issue, and that the probative value of the evidence is not substantially outweighed by the evidence’s prejudicial effect. Gomez, 763 F.3d at 852, 856; see also United States v. Chapman, 765 F.3d 720, 722 (7th Cir.2014) (stating that other-act evidence “may be admitted for another purpose provided that the evidence is relevant under a theory that does not rely on an inference about the actor’s propensity” (emphasis in original)); United States v. Miller, 673 F.3d 688, 692 (7th Cir.2012). So this evidence may not be admitted as a matter of course, but the court should instead consider “the ‘legitimacy of the purpose for which the evidence is to be used and the need for it.’ ” Gomez, 763 F.3d at 853 (quoting Miller, 673 F.3d at 692). This determination is case-specific, and involves considering whether the proffered reason for the evidence is at issue in the trial and whether the proffered evidence is relevant to that permissible purpose. See Miller, 673 F.3d at 696 (recognizing that “Rule 404(b) does not provide a rule of automatic admission whenever bad acts evidence can be plausibly linked to ‘another purpose’ ... listed in the rule”). It is also helpful for the trial court to “look[ ] beyond the purposes for which the evidence is being offered and consider[ ] what inferences the jury is being asked to draw” to determine whether “the jury is essentially being asked to rely on the evidence as proof of the defendant’s propensity to commit the charged offense” or on some other" }, { "docid": "23424299", "title": "", "text": "considered to be the logical relevance of the Seaver evidence to the issue of ARCO’s intent occurred during the court’s colloquy with counsel on this point, but that the counsel’s proffered justification for admitting the evidence amounted to little more than a “mantra-like recitation of the provisions of Rule 404(b).” Morley, 199 F.3d at 137; see app. at 3227 (“[Actually we were under 404(b), ‘It may however be admissible for other purposes such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.’ ”) (quoting Fed.R.Evid. 404(b)). Merely citing the relevant Rule of Evidence, however, is of little assistance to either the trial or appellate court in determining the difficult issue presented when confronted with a proffer of Rule 404(b) evidence, and it falls woefully short of the proponent’s obligation when offering such evidence purportedly for a non-character purpose. See Morley, 199 F.3d at 137. We also find it significant that in this appeal Becker has failed to present an alternative chain of inferences by which the Seaver evidence logically could be connected to the issue of ARCO’s intent, with no link predicated on an inference concerning ARCO’s propensity to act in a certain way. Of course, this is not surprising given the record presented here and Becker’s theory of the case. Compare United States v. Dise, 763 F.2d 586, 592-93 (3d Cir.1985) (defendant’s prior similar incidents of misconduct were relevant to establish his intent to injure inmates where defendant contended that he acted only to maintain safety or to prevent harm). Indeed, our review of the record confirms that Becker grounded his case against ARCO largely on Ms assertion that the customer complaints and alleged performance problems were pretextual. Yet only if the jury were to draw the inference that in terminating Becker, ARCO must have fabricated his alleged performance deficiencies, would the Seaver evidence have established circumstantially ARCO’s intent to discriminate against Becker. As we observed in Morley, this sort of character-based inference “is the very evil that Rule 404(b) seeks to prevent.” Morley, 199 F.3d at 134. Therefore, we hold that the district" }, { "docid": "21330993", "title": "", "text": "relevant under Rule 404(b) to show knowledge and intent in a prosecution for possession of a controlled substance with intent to distribute. As the concurring opinion explains, this across-the-board position seems to overlook that, in' many cases, impermissible propensity reasoning lurks as one of the links in the logical chain of relevance. Although we discern no abuse of discretion in this case given our precedent, we encourage district court judges to carefully consider the proponent’s assertion of why a prior conviction has special relevance and examine whether, in the particular case-specific circumstances, the proponent is simply attempting to disguise propensity evidence by artificially affixing it with the label of a permitted Rule 404(b)(2) purpose. Unlike Rule 404(b), which focuses exclusively on whether prior bad act evidence has “special relevance,” Rule 403 requires a balancing of probative value and prejudicial effect. When assessing the probative value of evidence under Rule 403, a court must consider both whether the evidence has been offered to prove an issue that is in genuine dispute, and whether the evidentiary point can be made with other evidence that does not present a risk of unfair prejudice. See United States v. Ford, 839 F.3d 94, 109-10 (1st Cir. 2016); United States v. Varoudakis, 233 F.3d 113, 122-24 (1st Cir. 2000). On the other side of the scale, similarity between the defendant’s prior criminal conduct and the charged offense, which may support a finding of “special relevance” under Rule 404(b), increases the risk that the jury will draw an improper inference of propensity that unfairly prejudices the defendant’s case. Varoudakis, 233 F.3d at 123. In cases such as Henry’s, where a prior drug conviction is offered to prove an intent to distribute drugs on a different occasion, the risk that the jury will use the conviction to infer criminal propensity is especially strong. Courts thus must be alert to this danger when they weigh the prejudicial effect of evidence against its probative value. In the present case, although Henry did not make the absence of an intent to distribute the centerpiece of his defense, he did raise the" }, { "docid": "23399388", "title": "", "text": "as criminal, cases. Fed.R.Evid. 404 advisory committee’s note. For other acts evidence to be admissible under the exceptions listed in Rule 404(b), (1) the evidence must have a proper purpose; (2) it must be relevant under Rule 401 and 402; (3) its probative value must outweigh its prejudicial effect under Rule 403; and (4) the court must charge the jury to consider the evidence only for the limited purpose for which it was admitted. United States v. Sampson, 980 F.2d 883, 886 (3d Cir.1992) (citing Huddleston v. United States, 485 U.S. 681, 691-92, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988)). Ansell argues that the Bedding-field testimony fails the first three elements of this test, i.e., that the evidence was admitted for an improper purpose, that it is irrelevant, and that any probative value is outweighed by unfair prejudice. We address each of these arguments in turn. A. To be admissible under. Rule 404(b), other acts evidence must be offered for a proper purpose, i e., a purpose other than showing that an individual has a propensity or disposition for certain activity. Pinney, 967 F.2d at 914. We have held that “a court must be able to articulate a way in which the tendered evidence logically tends to establish or refute a material fact in issue, and that chain of logic must include no link involving an inference that a bad person is disposed to do bad acts.” Id. at 915; accord Becker v. ARCO Chem. Co., 207 F.3d 176, 191 (3d Cir.2000). The District Court ruled that Bedding-field’s testimony was offered to establish that Schiff did not have a discriminatory intent when he discharged Ansell, intent being an enumerated proper purpose under Rule 404(b). Ansell contends that Beddingfield’s testimony was not evidence of intent, but rather was evidence of Schiff s good character or propensity not to discriminate against older workers, introduced to show that he acted “in conformity therewith” when he fired Ansell. As such, Ansell argues that Beddingfield’s testimony is classic propensity evidence that is inadmissible under Rule 404(b). The nature of the underlying case illustrates the true" }, { "docid": "12232647", "title": "", "text": "United States v. Smith, 725 F.3d 340, 344-45 (3d Cir.2013) (quoting Green, 617 F.3d at 239). We have repeatedly emphasized that Rule 404(b) must be applied with careful precision, and that evidence of a defendant’s prior bad acts is not to be admitted unless both the proponent and the District Court plainly identify a proper, non-propensity purpose for its admission. See United States v. Davis, 726 F.3d 434, 442 (3d Cir.2013) (citing United States v. Sampson, 980 F.2d 883, 887 (3d Cir.1992)). For the reasons discussed below, we conclude the evidence of Caldwell’s prior convictions was not admitted for a proper purpose. A. It is indisputable that evidence of Caldwell’s prior convictions satisfies Rule 401’s definition of relevant evidence, at least to the extent a criminal defendant’s prior offenses make it more likely he would commit the same crime again. As our Supreme Court long ago explained, “logically speaking, it is quite clear that an antecedent bad character would form quite as reasonable a ground for the presumption and probability of guilt as a previous good character lays the foundation of innocence.” Michelson v. United States, 335 U.S. 469, 476 n. 9, 69 S.Ct. 213, 93 L.Ed. 168 (1948) (citation omitted); see also 1 Wigmore on Evidence § 55 (3d ed. 1940) (“A defendant’s character, then, as indicating the probability of his doing or not doing the act charged, is essentially relevant.”). Yet notwithstanding the logical relevance of this evidence, Rule 404(b) provides that “[e]vidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.” Fed. R.Evid. 404(b)(1). This rule reflects the longstanding concern that evidence of pri- or bad acts, when offered only to show the defendant’s propensity to commit the charged crime, “is said to weigh too much with the jury and to so overpersuade them as to prejudice one with a bad general record and deny him a fair opportunity to defend against a particular charge.” Sampson, 980 F.2d at 886 (quoting Michelson, 335 U.S." }, { "docid": "23399389", "title": "", "text": "propensity or disposition for certain activity. Pinney, 967 F.2d at 914. We have held that “a court must be able to articulate a way in which the tendered evidence logically tends to establish or refute a material fact in issue, and that chain of logic must include no link involving an inference that a bad person is disposed to do bad acts.” Id. at 915; accord Becker v. ARCO Chem. Co., 207 F.3d 176, 191 (3d Cir.2000). The District Court ruled that Bedding-field’s testimony was offered to establish that Schiff did not have a discriminatory intent when he discharged Ansell, intent being an enumerated proper purpose under Rule 404(b). Ansell contends that Beddingfield’s testimony was not evidence of intent, but rather was evidence of Schiff s good character or propensity not to discriminate against older workers, introduced to show that he acted “in conformity therewith” when he fired Ansell. As such, Ansell argues that Beddingfield’s testimony is classic propensity evidence that is inadmissible under Rule 404(b). The nature of the underlying case illustrates the true purpose of Beddingfield’s testimony. At trial, the parties did not dispute that Ansell made out a prima facie case of age discrimination under the ADEA. Likewise, there was no dispute that Green Acres advanced a legitimate, nondiseriminatory reason for its decision to fire Ansell. Accordingly, the sole question for the jury was whether the legitimate reason advanced by Green Acres was the true reason for the termination, or whether that reason was simply a pretext for unlawful discrimination. See generally Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1108 (3d Cir.1997) (en banc) (discussing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). Evidence of an employer’s conduct towards other employees has long been held relevant and admissible to show that an employer’s proffered justification is pretext. See, e.g., McDonnell Douglas Corp., 411 U.S. at 804, 93 S.Ct. 1817 (stating that evidence that employees of another race were treated differently from the plaintiff under comparable circumstances is “[especially relevant” to whether employer’s proffered explanation is pretextual); Becker v." } ]

[ { "docid": "6345850", "title": "", "text": "any offers to purchase its interest following its proposed foreclosure or that the debtor’s other secured creditors have not sought relief from the automatic stay, are immaterial in considering the issue of adequate protection. Franklin’s third mortgage on another diner that was given by the debtor’s principal as additional security cannot be evaluated in determining whether or not Franklin is adequately protected because there was no evidence as to the value of this interest other than the testimony of Franklin’s officer, who ascribed little or no value to the third mortgage on property that has been on the market for sale for over a year. Since the undisputed report submitted by Franklin’s appraiser reflects that the total value of the collateral, including the assigned lease containing the option to purchase the real estate, amounts to $650,000, it cannot be said that Franklin is adequately protected to the extent of its claim for $704,438.45. Moreover, the interest on the indebtedness will continue to mount as long as the debtor-in-possession fails to pay less than $8,000 per month. Furthermore, taxes, rent and insurance will continue to accrue. Franklin should not be called on to continue to pay these items when the value of its collateral is currently less than its claim. In these circumstances, it must be concluded that Franklin is not now adequately protected. 18. The debtor-in-possession has not offered Franklin any periodic payments for current interest and amortization, any replacement lien, additional collateral or other items of value in satisfaction of its burden with respect to the issue of adequate protection, other than the property already subject to Franklin’s security interest. DISCUSSION The president of the debtor-in-possession in this Chapter 11 case testified that if the secured creditor, The Franklin Corporation, were permitted to foreclose upon its mortgage covering the debtor’s diner, he could not then come up with a plan of reorganization because he could not be expected to feed his customers in the parking lot. Obviously the debtor-in-possession cannot conduct its restaurant business without the modular diner which is the subject to the secured creditor’s collateral. However, it" } ]

[ { "docid": "5676952", "title": "", "text": "protection for plaintiff’s interest in the property. An equity “cushion” in and of itself may constitute adequate protection within the meaning of Section 362(d)(1). 2 Collier on Bankruptcy, 361.02(3) at p. 361-9, (15th Ed. 1979). In re Pitts, 5 B.C.D. 1129, 2 B.R. 476 (Bkrtcy., 1979). In seeking relief from automatic stay, the creditor has the burden of proof on the issue of debtor’s equity in the collateral, but the debtor has the burden on all other issues including adequate protection of the creditor. 11 U.S.C. § 362(g); In re San Clemente Estates, 5 B.R. 605 (Bkrtcy., Cal.1980). In the instant case the total claim of the Bank as of April 27, 1981, amounted to $606,246.48. (See plaintiff’s Exhibit P-1 and N.T. 8). Additionally, the debtor listed liens of other secured creditors in the amount of $24,156.46 in its schedules and statement of affairs dated January 16,1981. The Bank’s expert witness determined the fair market value of the property to be $350,000.00 as of January 31, 1981, based upon a free and clear title and assuming that a developer could begin to sell and market the property immediately. The property was considered as a package consisting of three components: the approved subdivided lands; the unsubdivided portion of the property; and the buildings located on the property. (N.T. 33-5) On the other hand, the debtor’s expert valued the property at $1,160,000.00. (N.T. 144). His opinion also considered the value per acre of both the subdivided and the undivided portions, added to a figure for the improvements. It has been held that “adequate protection” for a lender as opposed to a seller, for land, even raw land partially developed by roads, sewer and water, is a leverage of 40-50% of market value. Matter of Lake Tahoe Land Co., Inc., 5 B.R. 34 (Bkrtcy., Nev.1980). In contrast, 17.4% of the fair market value of commercial real property was held to be adequate protection for a secured creditor in In re Rogers Development Corp., 2 B.R. 679, 5 B.C.D. 1392 (Bkrtcy., E.D.Va.1980). The court in In re Pitts, supra, found an equity cushion of" }, { "docid": "19249109", "title": "", "text": "when it is to be determined. These matters are left to case-by-case interpretation and development. It is expected that the courts will apply the concept in light of facts of each case and general equitable principles. H.R.Rep. No. 595 at 339, 1978 U.S.Code Cong. & Ad.News at 6295. 734 F.2d at 431. The existence of an “equity cushion” has been accepted by courts as an acceptable form of adequate protection. See e.g. In re Carson, 34 B.R. 502 (D.Kan.1983); In re Hawaiian Pac. Industries, 17 B.R. 670 (Bkrtcy.D.Hai.1982); In re Wolford Enterprises, 11 B.R. 571 (Bkrtcy.S.D.W.Va.1981). In determining whether the debtor or the estate has an equity in property for purposes of § 362(d)(2), junior liens are relevant whether or not the lien creditors have been joined in the motion seeking relief from the stay. Stewart v. Gurley, 745 F.2d 1194, 1195 (9th Cir.1984). With respect to the question of an “equity cushion” arising under § 362(d)(1) for purposes of determining adequate protection, the junior liens are irrelevant. See In re Mellor, 734 F.2d 1396, 1401 (9th Cir.1984); In re LaJolla Mortg. Fund v. Rancho El Cajon Associates, 18 B.R. 283 (Bkrtcy.S.D.Cal.1982). As explained by the La Jolla court: “Equity” is the value, above all secured claims against the property, that can be realized from the sale of the property for the benefit of the unsecured creditors .... However, in considering whether the debtor has provided adequate protection for a creditor’s secured claim, we are not concerned with the availability of equity for unsecured creditors. Instead, we are concerned with whether there is sufficient value in the collateral to protect the secured claim from diminution. A more apt and descriptive phrase would be “value cushion.” 18 B.R. at 287-288. It is undisputed in this case that NAT-CO’s and NATCO Finance Co.’s indebted1 ness to Barclays on account of principal and interest alone approximates $5,842,-000.00. Barclays has incurred through February 1987 attorneys fees in connection with its collection efforts on the Investor Notes in the amount of at least $381,-000.00. Section 506(a) of the Bankruptcy Code provides that the value of" }, { "docid": "18832182", "title": "", "text": "did not use the subdivision approach because it was too speculative, Mr. Yim, a consulting engineer -who testified on behalf of Pacific, stated that although he was never requested to, and consequently did not determine whether or not the Cluster Development was feasible, he would have been able to determine the same under the subdivision approach and that such a determination would not have been speculative. 23. Although over six (6) months have elapsed since Development initiated its Chapter 11 case, Development has not filed a plan of reorganization. Further, no evidence was presented at the final hearing by either Pacific or Development regarding any reorganization of Development or the development or sale of the Property. No feasibility study of the Property has been made by Pacific or Development. 24. To the extent that the foregoing Findings of Fact constitute Conclusions of Law, they shall be so considered. CONCLUSIONS OF LAW 1. 11 U.S.C. § 362(d) provides that a party in interest, on request and after notice and a hearing, may obtain relief from the automatic stay, such as a termination, annullment, modification, or conditioning of the automatic stay: (1) for cause, including the lack of adequate protection of an interest in property of such party in interest; or (2) with respect to a stay of an act against property, if— (A) the debtor does not have an equity in such property; and (B) such property is not necessary to an effective reorganization. 2. Since the above-quoted language of 11 U.S.C. § 362(d) is phrased in the disjunctive, in order to obtain relief from the automatic stay, Commercial need prevail on only one (1) of the two (2) alternative tests set forth therein. La Jolla Mortgage Fund vs. Rancho El Cajon Associates, 18 B.R. 283 (Bkrtcy.S.D.Cal.1982). 3. Pursuant to 11 U.S.C. § 362(g), Commercial has the burden of proof only with respect to the issue of Development’s equity in the Property, while Pacific and Development have the burden of proof on all other issues. In re Hutton-Johnson Co., Inc., 6 B.R. 855 (Bkrtey.S.D.N.Y.1980), In re Monroe Park, 17 B.R. 934" }, { "docid": "18832195", "title": "", "text": "Approval. If this were so, Commercial could look only to the Property without the Cluster Approval for adequate protection. Because Commercial’s lien exceeds the market value of the Property either with or without the Cluster Approval, the Property itself cannot provide adequate protection to Commercial. And neither Development nor Pacific has offered any additional security to Commercial to provide adequate protection under the code. 33. Even if the Court held that the value of the Property with the Cluster Approval was 66%% higher than without, thus evaluating the Property at $1,666,-000.00 and finding debtor to have some equity beyond Commercial’s lien, said equity would not be sufficient to provide adequate protection to Commercial. 34. The interest on Commercial’s loan continues to increase at the rate of $16,-500.00 a month. If a minimum of six (6) months are necessary to sell the Property with the Cluster Approval, the interest on Commercial’s claim would be increased by $99,000.00 during such period, increasing Commercial’s claim to $1,599,000.00. Sales commission and other costs, estimated at 6% of $1,666,000.00 or $99,960.00 must also be paid from the proceeds, leaving $1,566,-400.00, which is less than Commercial’s claim. The Court thus finds that even if $1,660,000.00 were realizable within 6 months hence Commercial would not be adequately protected. 35. Courts have held that, even where there is some equity in the property, when the equity cushion is being eroded by the continuous increase in the daily interest costs of the mortgage, there is no adequate protection to the mortgagee. In re H & F Investment Company, Ltd., 9 B.R. 548 (Bkrtcy.N.D.Ohio 1981); In re Stuart Motel, Inc., 8 B.R. 50 (Bkrtcy.S.D.Fla.1980). 36.Many courts have recognized that the concept of adequate protection involves more than the existence of an “equity cushion”. As stated by the court in In re Antilles Yachting, Inc., 4 B.R. 470 (Bkrtcy.Virgin Islands 1980): In a proceeding like this where Debtor must use the security to reorganize, adequate protection involves more than the existence of an equity cushion .... The creditor’s entire bundle of rights must be considered. Id. at 472. 37. Therefore, in" }, { "docid": "5676951", "title": "", "text": "75 F.2d 941 (2d Cir. 1935), where it is said at page 942: “It is plain that ‘adequate protection’ must be completely compensatory; ... a creditor . . . wishes to get his money or at least the property. We see no reason to suppose that the statute was intended to deprive him of that in the interest of junior holders unless by a substitute of the most indubitable equivalence.” In re Lake Tahoe Land Co., Inc., supra, at 36. Although the term is not precisely defined, § 361 of the Code sets forth three (3) nonexclusive examples of what may constitute “adequate protection” of an interest in property: (1) periodic cash payments to the extent that the stay results in a decrease in the value of such interest, (2) an additional or replacement lien to the same extent, or, (3) other relief as will result in the realization of the indubitable equivalent of such interest. None of these has been offered. Instead defendant contends that there is a substantial equity cushion which provides adequate protection for plaintiff’s interest in the property. An equity “cushion” in and of itself may constitute adequate protection within the meaning of Section 362(d)(1). 2 Collier on Bankruptcy, 361.02(3) at p. 361-9, (15th Ed. 1979). In re Pitts, 5 B.C.D. 1129, 2 B.R. 476 (Bkrtcy., 1979). In seeking relief from automatic stay, the creditor has the burden of proof on the issue of debtor’s equity in the collateral, but the debtor has the burden on all other issues including adequate protection of the creditor. 11 U.S.C. § 362(g); In re San Clemente Estates, 5 B.R. 605 (Bkrtcy., Cal.1980). In the instant case the total claim of the Bank as of April 27, 1981, amounted to $606,246.48. (See plaintiff’s Exhibit P-1 and N.T. 8). Additionally, the debtor listed liens of other secured creditors in the amount of $24,156.46 in its schedules and statement of affairs dated January 16,1981. The Bank’s expert witness determined the fair market value of the property to be $350,000.00 as of January 31, 1981, based upon a free and clear title and" }, { "docid": "18832183", "title": "", "text": "automatic stay, such as a termination, annullment, modification, or conditioning of the automatic stay: (1) for cause, including the lack of adequate protection of an interest in property of such party in interest; or (2) with respect to a stay of an act against property, if— (A) the debtor does not have an equity in such property; and (B) such property is not necessary to an effective reorganization. 2. Since the above-quoted language of 11 U.S.C. § 362(d) is phrased in the disjunctive, in order to obtain relief from the automatic stay, Commercial need prevail on only one (1) of the two (2) alternative tests set forth therein. La Jolla Mortgage Fund vs. Rancho El Cajon Associates, 18 B.R. 283 (Bkrtcy.S.D.Cal.1982). 3. Pursuant to 11 U.S.C. § 362(g), Commercial has the burden of proof only with respect to the issue of Development’s equity in the Property, while Pacific and Development have the burden of proof on all other issues. In re Hutton-Johnson Co., Inc., 6 B.R. 855 (Bkrtey.S.D.N.Y.1980), In re Monroe Park, 17 B.R. 934 (D.C.Del.1982). A. Is there Equity in the Property? 4. In determining whether Development has any equity in the Property, all liens encumbering the Property must be considered, regardless of whether or not all lienholders have requested relief from the automatic stay. In re Mikole Developers, 14 B.R. 524 (Bkrtcy.E.D.Pa.1981); La Jolla Mortgage Fund vs. Rancho El Cajon Associates, supra. Therefore, if the aggregate amount of the liens of Commercial, the Finemans, and Pacific exceed the value of the Property, then Development has no equity in the Property. 5. The aggregate amount of the liens encumbering the Property totals approximately $4,000,000.00. In comparison, the highest evaluation of the Property did not exceed $2,400,000.00. Consequently, it is patently clear that Development has no equity in the Property. 6. Even if only Commercial’s lien is considered, there is no equity in the Property based on the Court’s analysis of the market value of the Property. 7. Two appraisers have testified and submitted appraisal reports concerning the value of the Property. However, the Court cannot completely rely on either" }, { "docid": "18832179", "title": "", "text": "the aforementioned Agreement of Sale, the same securing the repayment of an indebtedness due and owing to Pacific by Development, which lien and Agreement of Sale are junior to the liens of Commercial and the Fine-mans. As of December 27, 1983, the total amount of principal and interest of said indebtedness was $2,100,968.00, with interest accruing from and after December 28, 1983 at the rate of $525.34 per diem. 18. The undisputed evidence further shows that the subject Property is unique in that it is a narrow, elongated hillside property, bounded on the upper side by a conservation area and on the lower side by Manoa Stream. The conservation area produces a large water run-off, protection against which must be considered in the cost of development. In addition, the poor soil condition will require unusual on-site improvement costs. The Property is therefore a difficult property to develop. 19. The testimony of Turner and Grau-mann presented great variance as to the value of the Property. In his appraisal, Mr. Turner first employed the subdivision approach to test the feasibility of developing the Property with the Cluster Approval. In employing the subdivision approach, Mr. Turner relied upon estimates of site improvement costs and building construction costs provided to him by Belt, Collins & Associates, licensed civil engineers, and Maurice H. Yamasato & Associates, licensed architects. Based on the subdivision approach, Mr. Turner testified that the Cluster Development was not feasible and that the Cluster Approval therefore had no value. 20. After concluding that the Cluster Development was not feasible, Mr. Turner applied the market comparison approach to estimate the market value of the Property. In doing so, Mr. Turner relied on five (5) comparables. Based on the comparison approach, Mr. Turner testified that the market value of- the Property, either with or without the Cluster Approval, was $1,375,-000.00. Further, Mr. Turner testified that the value of the Property under “distress sale” conditions, either with or without the Cluster Approval, was $1,000,000.00. 21. In his appraisal of the Property, Mr. Graumann utilized only the market comparison approach. Mr. Graumann testified that he did" }, { "docid": "1936894", "title": "", "text": "that the debtor has not provided it with adequate protection of its interest in the commercial property. The Court must note initially that if it considers the commercial property by itself, UJB does not have an interest worthy of protection. This is so because UJB is undersecured with regard to the commercial property since the superior lien of Security Pacific exceeds the fair market value of the property. However, since the court has considered the debtors’ property as a whole for the purposes of determining whether the debtor had equity, it shall also consider the debtors’ property as a whole in determining whether UJB is adequately protected. Under § 362(d)(1), it is clear that once the petition is filed, the burden is on the debtors to show that the secured creditor’s collateral is adequately protected. See In re Philadelphia Discount Co., 37 B.R. 946, 949 (E.D.Pa.1984). The concept of adequate protection is not precisely defined in the Bankruptcy Code. The determination of whether a secured creditor’s interest is adequately protected must be considered in light of all the facts surrounding the case and the equitable considerations to which these facts give rise. In re Southerton Corp., 46 B.R. 391, 398 (M.D.Pa.1982). Many courts have focused on the presence or absence of an equity cushion in determining whether a secured creditor has adequate protection of his collateral. See In re Pitts, 2 B.R. 476 (C.D. Cal.1979). An equity cushion has been defined as “the surplus of value remaining after the amount of indebtedness is subtracted from the fair market value of the collateral”. Commonwealth of Pennsylvania State Employees Retirement Fund v. Roane, 14 B.R. 542, 545 (E.D.Pa.1981). If properly applied, the concept of an equity cushion supplies just one of several factors to be used in determining whether a creditors interest is adequately protected. See In re Southerton Corp., supra, at 398. The adequate protection determination involves a conflict between necessarily competing interests. They are, the secured creditors property interest and the values promoted by the automatic stay, i.e., the public policy of preventing the piecemeal dismantling of a business through" }, { "docid": "18832180", "title": "", "text": "test the feasibility of developing the Property with the Cluster Approval. In employing the subdivision approach, Mr. Turner relied upon estimates of site improvement costs and building construction costs provided to him by Belt, Collins & Associates, licensed civil engineers, and Maurice H. Yamasato & Associates, licensed architects. Based on the subdivision approach, Mr. Turner testified that the Cluster Development was not feasible and that the Cluster Approval therefore had no value. 20. After concluding that the Cluster Development was not feasible, Mr. Turner applied the market comparison approach to estimate the market value of the Property. In doing so, Mr. Turner relied on five (5) comparables. Based on the comparison approach, Mr. Turner testified that the market value of- the Property, either with or without the Cluster Approval, was $1,375,-000.00. Further, Mr. Turner testified that the value of the Property under “distress sale” conditions, either with or without the Cluster Approval, was $1,000,000.00. 21. In his appraisal of the Property, Mr. Graumann utilized only the market comparison approach. Mr. Graumann testified that he did not utilize the subdivision approach because he considered it to be speculative and that he therefore did not determine whether or not the Cluster Development was feasible. Based solely on the market comparison approach, Mr. Grau-mann testified that the market value of the Property was $2,400,000.00 with the Cluster Approval and $1,000,000.00 without the Cluster Approval, while the value of the Property under “forced sale” conditions was $1,560,000.00 with Cluster Approval and $550,000.00 without Cluster Approval. However, Mr. Graumann’s testimony as to the value of the Property with the Cluster Approval was strictly based on the assumption that the Cluster Development was feasible and that the Cluster Approval therefore had value. To this latter effect, Mr. Graumann testified that if the Cluster Development was not feasible and the Cluster Approval therefore had no value, then the market value of the Property and the value of the Property under “forced sale” conditions would be approximately $1,000,000.00 and $550,000.00, respectively, namely, the value of the Property without the Cluster Approval. 22. Although Mr. Graumann testified that he" }, { "docid": "18801106", "title": "", "text": "the stay. The opposite view, that only the senior encumbrances should be considered, seems to confuse the question of an “equity cushion” or value over and above the senior encumbrances’s claim as “adequate protection” under § 362(d)(1) with whether there is any “equity” in the property or value above all secured claims against the property that can be realized from the sale of the property for unsecured creditors under § 362(d)(2)(A). As Judge Meyers ably explained in La Jolla Mortgage Fund v. Rancho El Cajon Associates, however, there is a significant difference: Shortly after the Code became effective, this Court in In re San Clemente Estates, 5 B.R. 605, 6 B.C.D. 838 (Bkrtcy.S.D.CA.1980), recognized that in appropriate cases the value of the collateral itself could provide adequate protection. Both this Court, and others, referred to this as the ‘equity cushion’ approach.... It has been defined as value in the property above the amount owed to the creditor with a secured claim, that will shield that interest from loss due to any decrease in the value of the property during the time the automatic stay remains in effect. In re Roane, 8 B.R. 997, 1000 (Bkrtcy.EDPA.1981), aff’d, 14 B.R. 542 (D.Ct.E.D.PA.1981). While this approach is valid, the instant case demonstrates that the phrase ‘equity cushion’ is a misnomer. By including the word ‘equity,’ we have created some confusion. ‘Equity’ is the value, above all secured claims against the property, that can be realized from the sale of the property for the benefit of the unsecured creditors. See Comment, supra, 17 San Diego L.Rev. at 1123. Under the requirements of Section 362(d)(2)(A), equity in the debtor’s property, or lack thereof, can be relevant and under Section 362(g)(1) the creditor, as the party requesting relief, has the burden of proof on the issue of the existence of equity. However, in considering whether the debtor has provided adequate protection for a creditor’s secured claim, we are not concerned with the availability of equity for unsecured creditors. Instead, we are concerned with whether there is sufficient value in the collateral to protect the secured claim" }, { "docid": "18832193", "title": "", "text": "Inc., supra; In re Monroe Park, supra; La Jolla Mortgage Fund vs. Rancho El Cajon Associates, supra. 27. 11 U.S.C. § 361 sets forth three (3) non-exclusive methods by which adequate protection of Commercial’s interest in the Property may be provided. The first two (2) methods of providing such adequate protection, to wit: (a) periodic cash payments from the debtor or the party opposing relief from the automatic stay to the secured creditor, and (b) additional or replacement liens on other property of the debtor, were not and have never been proposed by either Pacific or Development. As a result, unless such adequate protection is provided pursuant to the third method, Commercial is entitled to relief from the automatic stay. 28. The third method of providing such adequate protection is the “catch all” provision permitting such other means of adequate protection as will result in the realization by the secured creditor of the “indubitable equivalent” of its interest in the Property of the debtor. 29. To this latter effect, Pacific and Development have apparently relied solely upon the Property itself to provide such adequate protection as will result in the realization by Commercial of the “indubitable equivalent” of its interest in the Property- 30. Although some courts have found that the collateral for a secured creditor’s lien may itself provide adequate protection thereof under certain circumstances, it has been repeatedly and consistently held that such collateral does not itself provide the requisite adequate protection where the amount of the secured creditor’s claim exceeds the value of the collateral. In re Riviera Inn of Wallingford, Inc., 7 B.R. 725 (Bkrtcy.D.Conn.1980), In re Gaim Development Corp., 9 B.R. 17 (Bkrtcy.S.D.Fla.1981); La Jolla Mortgage Fund vs. Rancho El Cajon Associates, supra. 81. In the instant case, as above shown, the Court has found the market value of the Property at a normal sale to be $1,000,-000.00 without the Cluster Approval and $1,500,000.00 with the Cluster Approval and $750,000.00 and $1,000,000.00 respectively at a distress sale. 32. Development has contended that Commercial has a lien only on the Property and not on the Cluster" }, { "docid": "18801105", "title": "", "text": "Jolla Mortgage Fund v. Rancho El Cajon Associates, supra. The issue arises, in determining the question of the debtor’s equity in the property under § 362(d)(2)(A), whether all the encumbrances on the subject property are to be considered or whether the interest of non-joining junior lien creditors should be ignored. Compare Harleysville National Bank and Trust Co. v. Kaufman (In re Kaufman), 24 B.R. 498 (Bkrtcy.E.D.Pa.1982); La Jolla Mortgage Fund v. Rancho El Cajon Associates, supra; and North East Federal Savings and Loan Association v. Mikole Developers (In re Mikole Developers, Inc.), 14 B.R. 524 (Bkrtcy.E.D.Pa.1981) (all encumbrances considered) with Central Florida Production Credit Association v. Spring Garden Foiliage, Inc. (In re Spring Garden Foliage, Inc.) 15 B.R. 140 (Bkrtcy.M.D.Fla.1981) (junior encumbrances unimportant if debtor has equity cushion over senior encumbrances). This Court agrees with the former authorities and holds that all encumbrances on the subject property are to be considered in determining if the debtor has equity in the property under § 362(d)(2)(A), whether or not all the secured claimholders have requested relief from the stay. The opposite view, that only the senior encumbrances should be considered, seems to confuse the question of an “equity cushion” or value over and above the senior encumbrances’s claim as “adequate protection” under § 362(d)(1) with whether there is any “equity” in the property or value above all secured claims against the property that can be realized from the sale of the property for unsecured creditors under § 362(d)(2)(A). As Judge Meyers ably explained in La Jolla Mortgage Fund v. Rancho El Cajon Associates, however, there is a significant difference: Shortly after the Code became effective, this Court in In re San Clemente Estates, 5 B.R. 605, 6 B.C.D. 838 (Bkrtcy.S.D.CA.1980), recognized that in appropriate cases the value of the collateral itself could provide adequate protection. Both this Court, and others, referred to this as the ‘equity cushion’ approach.... It has been defined as value in the property above the amount owed to the creditor with a secured claim, that will shield that interest from loss due to any decrease in the value" }, { "docid": "18832188", "title": "", "text": "No. 5 is located on gradual sloping ground and thus does not present the development problems of a narrow elongated Property with poor soil, bounded by a conservation area and a stream. Thus, the Court gave a 50% increase in value for the Cluster Approval for the subject Property, rather than a 66%% increase as indicated by the data on Mr. Graumann’s comparable No. 5. 17. Since the market value of the Property with the Cluster Approval is $1,500,000.00 and since Commercial’s lien on the Property exceeds $1,500,000.00, the Court finds that, even if we consider only Commercial’s lien, there is no equity in the Property. B. Is the Property necessary for an effective reorganization? 18. In meeting their burden of showing that the Property is necessary for an effective reorganization, Pacific and Development must do more than merely so assert. The fact that the Property may be indispensable to Development’s survival is insufficient, without more, to maintain the automatic stay and deny Commercial relief therefrom. In re Mikole Developers, supra; In re Terra Mar Associates, 3 B.R. 462 (Bkrtcy.D.Conn.1980). As explained by the court in In Be dark Technical Associates, Ltd., 9 B.R. 738 (Bkrtcy.D.Conn.1981): It is not enough for a debtor to argue that the automatic stay should continue because it needs the secured property in order to propose a reorganization. If this were the test all property held by debtors could be regarded as necessary for the debtor’s reorganization. The keyword under 11 U.S.C. § 362(d)(2)(B) is “effective”; ... If all the debtor can offer at this time is high hopes without any financial prospects on the horizon to warrant a conclusion that reorganization in the near future is likely, it cannot be said that the property is necessary to an “effective” reorganization. (Citations omitted). Id. at 740. 19. Therefore, in order to discharge their burden of establishing that the Property is necessary for an effective reorganization; Pacific and Development are required to demonstrate that there exists a reasonable likelihood of a successful reorganization within a reasonable period of time. In the Matter of Sundale Associates, Ltd.," }, { "docid": "18832192", "title": "", "text": "has no equity in the Property and the Property is not necessary for an effective reorganization, Commercial is entitled to obtain relief from the automatic stay. C. Adequate Protection. 25. Since Commercial has sought relief from the automatic stay under both subsections (1) and (2) of 11 U.S.C. § 362(d), in order to successfully retain the automatic stay in effect, the burden is upon Pacific and Development to establish that Commercial’s interest in the Property is adequately protected. Otherwise, under 11 U.S.C. § 362(d)(1), Commercial would be entitled to obtain relief from the automatic stay. In re Hawaii Pacific Package Store, Inc., 1 C.B.C.2d 764 (Bankr.Haw.1980); In re Virginia Foundry Company, Inc., 9 B.R. 493 (D.C.W.D.V a.1981). 26. This concept of adequate protection, which is derived from the Fifth Amendment’s protection of Property interests, was designed to ensure that a creditor with a secured claim receive essentially what such creditor bargained for. Therefore, such adequate protection must be completely compensatory. In re Murel Holding Corporation, 75 F.2d 941 (2d Cir.1935); In re Virginia Foundry Company, Inc., supra; In re Monroe Park, supra; La Jolla Mortgage Fund vs. Rancho El Cajon Associates, supra. 27. 11 U.S.C. § 361 sets forth three (3) non-exclusive methods by which adequate protection of Commercial’s interest in the Property may be provided. The first two (2) methods of providing such adequate protection, to wit: (a) periodic cash payments from the debtor or the party opposing relief from the automatic stay to the secured creditor, and (b) additional or replacement liens on other property of the debtor, were not and have never been proposed by either Pacific or Development. As a result, unless such adequate protection is provided pursuant to the third method, Commercial is entitled to relief from the automatic stay. 28. The third method of providing such adequate protection is the “catch all” provision permitting such other means of adequate protection as will result in the realization by the secured creditor of the “indubitable equivalent” of its interest in the Property of the debtor. 29. To this latter effect, Pacific and Development have apparently relied" }, { "docid": "18832187", "title": "", "text": "testified that Mr. Koike, a real estate broker, tried unsuccessfully to market the Property with the Cluster Approval in the $4-$5 million range and then, also unsuccessfully, in the $2-$3 million range. 14. Because of Mr. Koike’s unsuccessful effort to sell the Property for over seven (7) months even at $2,000,000.00, and based upon the appraisal reports of Mr. Turner and Mr. Graumann, the Court concludes that the market value of the Property without the Cluster Approval is $1,000,000.00 and with the Cluster Approval is $1,500,-000.00 on a “normal sale” and $750,000.00 and $1,000,000.00 respectively, at a “forced sale”. The Court concludes that the Cluster Approval increases the value of the Property by 50%. 15. The foregoing analysis is supported by one of the comparables presented by Mr. Graumann. Mr. Graumann’s comparable No. 5 covers a parcel of land at Kaneohe, Oahu, which was purchased in June 1979 without a Cluster Approval for $450,000.00 and sold in May 1982 with a Cluster Approval at $750,000.00. This shows a 66%% increase in value. 16. However, comparable No. 5 is located on gradual sloping ground and thus does not present the development problems of a narrow elongated Property with poor soil, bounded by a conservation area and a stream. Thus, the Court gave a 50% increase in value for the Cluster Approval for the subject Property, rather than a 66%% increase as indicated by the data on Mr. Graumann’s comparable No. 5. 17. Since the market value of the Property with the Cluster Approval is $1,500,000.00 and since Commercial’s lien on the Property exceeds $1,500,000.00, the Court finds that, even if we consider only Commercial’s lien, there is no equity in the Property. B. Is the Property necessary for an effective reorganization? 18. In meeting their burden of showing that the Property is necessary for an effective reorganization, Pacific and Development must do more than merely so assert. The fact that the Property may be indispensable to Development’s survival is insufficient, without more, to maintain the automatic stay and deny Commercial relief therefrom. In re Mikole Developers, supra; In re Terra Mar" }, { "docid": "19249720", "title": "", "text": "the form of cash payment, and has not provided additional liens as protection. No other evidence was presented by the debtor to show that the indubitable equivalent of Citicorp’s interest is being adequately protected by other means, other than expert testimony from a debtor’s witness which offered the appraised value of the vessels to be in excess of the debt owed to the creditor here. Citicorp offered substantial expert appraisal testimony to contradict that of the debtor. The Court concludes that, on the basis of the weight and credibility of the evidence, as shown below, the expert appraisal testimony of Citicorp witness proved that the value of the secured asset, on today’s market was substantially less than the debt owed. Where it is shown that a creditor is well secured, the “equity cushion” may constitute adequate protection in satisfaction of statutory requirements, and this cushion is considered the classic form of protection for a secured debt. In re San Clemente Estates, 5 B.R. 605 (Bankr.S.D.Cal.1980); In re Mellor, 734 F.2d 1396 (9th Cir.1984); In re Moor, 51 B.R. 640 (Bankr.N.D.Miss.1985). The ratio of the debt owed to the value assigned to the collateral must be reviewed to determine whether adequate protection exists. “Equity cushion\" has been defined as the value in the property, above the amount owed to the creditor with a secured claim, that will shield that interest from loss due to any decrease in the value of the property during time the automatic stay remains in effect. In re Roane, 8 B.R. 997, 1000 (B.Ct.E.D.Pa.1981), aff'd, 14 B.R. 542 (E.D.Pa.1981). “Equity,” as opposed to “equity cushion,” is the value, above all secured claims against the property, that can be realized from the sale of the property for the benefit of the unsecured creditors. La Jolla Mortgage Fund [v. Rancho El Cajon Assoc.], 18 B.R. [283] at 287 [S.D.Cal.1982]. In re Mellor, at 1400 n. 2. This issue is the primary focus of this lawsuit, in order to reach the above conclusions. An analysis of the testimony presented at the valuation stage of the hearing is therefore necessary to" }, { "docid": "22430321", "title": "", "text": "in the value of such entity’s interest in such property; (2) providing to such entity an additional or replacement lien to the extent that such stay, use, sale, lease, or grant results in a decrease in the value of such entity’s interest in such property; or (3) granting such other relief, other than entitling such entity to compensation allowable under section 503(b)(1) of this title as an administrative expense, as will result in the realization by such entity of the indubitable equivalent of such entity’s interest in such property. 11 U.S.C. § 361. See Matter of Stanley Hotel, Inc., 15 B.R. 660, 663, 8 B.C.D. 559, 561 (Dist.Ct.Colo.1981). Here, the debtor has simply proposed that the collateral itself has sufficient value to constitute adequate protection of the Fund’s interest. Shortly after the Code became effective, this Court in In re San Clemente Estates, 5 B.R. 605, 6 B.C.D. 838 (Bkrtcy.S.Cal.1980), recognized that in appropriate cases the value of the collateral itself could provide adequate protection. Both this Court, and others, referred to this as the “equity-cushion” approach. See, i.e., In re Shockley Forest Industries, Inc., 5 B.R. 160, 163, 6 B.C.D. 642, 644 (Bkrtcy.N.Ga.1980); In re 5 Leaf Clover Corp., 6 B.R. 463, 466 (S.W.Va.1980); In re Lee, 11 B.R. 84, 85 (Bkrtcy.E.Pa.1981); In re Penn York, Mfg., Inc., 14 B.R. 51, 53 (Bkrtcy.M.Pa.1981); Matter of Stanley Hotel, Inc., supra, 15 B.R. at 664, 8 B.C.D. at 562. It has been defined as value in the property above the amount owed to the creditor with a secured claim, that will shield that interest from loss due to any decrease in the value of the property during the time the automatic stay remains in effect. In re Roane, 8 B.R. 997, 1000 (Bkrtcy.E.Pa.1981), aff’d, 14 B.R. 542 (Dist.Ct.E.Pa.1981). While this approach is valid, the instant case demonstrates that the phrase “equity cushion” is a misnomer. By including the word “equity,” we have created some confusion. “Equity” is the value, above all secured claims against the property, that can be realized from the sale of the property for the benefit of the" }, { "docid": "18832184", "title": "", "text": "(D.C.Del.1982). A. Is there Equity in the Property? 4. In determining whether Development has any equity in the Property, all liens encumbering the Property must be considered, regardless of whether or not all lienholders have requested relief from the automatic stay. In re Mikole Developers, 14 B.R. 524 (Bkrtcy.E.D.Pa.1981); La Jolla Mortgage Fund vs. Rancho El Cajon Associates, supra. Therefore, if the aggregate amount of the liens of Commercial, the Finemans, and Pacific exceed the value of the Property, then Development has no equity in the Property. 5. The aggregate amount of the liens encumbering the Property totals approximately $4,000,000.00. In comparison, the highest evaluation of the Property did not exceed $2,400,000.00. Consequently, it is patently clear that Development has no equity in the Property. 6. Even if only Commercial’s lien is considered, there is no equity in the Property based on the Court’s analysis of the market value of the Property. 7. Two appraisers have testified and submitted appraisal reports concerning the value of the Property. However, the Court cannot completely rely on either appraisal report, for the Court finds flaws in both reports. 8. Mr. Turner relied on the subdivision approach to test the feasibility of the Cluster Development and found a negative land value. In using the subdivision approach, Mr. Turner relied on estimates presented to him by an engineer, an architect and a real estate brokerage firm without checking the estimates. These figures were challenged by Mr. Yim, an engineer called as a witness by Pacific. In addition, Mr. Turner added contingencies as separate items in addition to the contingencies already provided for by the engineers and architects in their estimates. 9. Further, although acknowledging that the site improvements would be more expensive for a regular subdivision than for a cluster subdivision, Mr. Turner stated that, the Cluster Approval does not add value to the subject Property and that the market value was $1,375,000.00 with or without the Cluster Approval on a normal sale. At a “distress sale”, Mr. Turner estimated the market value, with or without the Cluster Approval, to be $1,000,000.00. 10. Mr. Graumann," }, { "docid": "1936893", "title": "", "text": "which was foreclosed; a first lien on the accounts receivable of Cardell & Associates as security for guarantee of Associates; and the guarantees of Old Coach Leasing, Old Coach Realty and the Cardells. UJB can look to all of the above collateral to satisfy the amount due. The court has found as a matter of fact that the value of collateral is at least $873,000 after deducting the first mortgage from the value of the residential property. That amount exceeds the amount of UJB’s judgment as reduced by $93,250 by approximately $480,000. Since there was no evidence of other liens , the debtors clearly have equity in the collateral. As the moving party has not sustained its burden of proof with respect to the debtors lack of equity in the collateral, relief from the stay should not be granted under § 362(d)(2) and there is no reason for the court to make a determination as to whether the residence is necessary for an effective reorganization. B. LACK OF ADEQUATE PROTECTION. The moving party also maintains that the debtor has not provided it with adequate protection of its interest in the commercial property. The Court must note initially that if it considers the commercial property by itself, UJB does not have an interest worthy of protection. This is so because UJB is undersecured with regard to the commercial property since the superior lien of Security Pacific exceeds the fair market value of the property. However, since the court has considered the debtors’ property as a whole for the purposes of determining whether the debtor had equity, it shall also consider the debtors’ property as a whole in determining whether UJB is adequately protected. Under § 362(d)(1), it is clear that once the petition is filed, the burden is on the debtors to show that the secured creditor’s collateral is adequately protected. See In re Philadelphia Discount Co., 37 B.R. 946, 949 (E.D.Pa.1984). The concept of adequate protection is not precisely defined in the Bankruptcy Code. The determination of whether a secured creditor’s interest is adequately protected must be considered in light" }, { "docid": "18832194", "title": "", "text": "solely upon the Property itself to provide such adequate protection as will result in the realization by Commercial of the “indubitable equivalent” of its interest in the Property- 30. Although some courts have found that the collateral for a secured creditor’s lien may itself provide adequate protection thereof under certain circumstances, it has been repeatedly and consistently held that such collateral does not itself provide the requisite adequate protection where the amount of the secured creditor’s claim exceeds the value of the collateral. In re Riviera Inn of Wallingford, Inc., 7 B.R. 725 (Bkrtcy.D.Conn.1980), In re Gaim Development Corp., 9 B.R. 17 (Bkrtcy.S.D.Fla.1981); La Jolla Mortgage Fund vs. Rancho El Cajon Associates, supra. 81. In the instant case, as above shown, the Court has found the market value of the Property at a normal sale to be $1,000,-000.00 without the Cluster Approval and $1,500,000.00 with the Cluster Approval and $750,000.00 and $1,000,000.00 respectively at a distress sale. 32. Development has contended that Commercial has a lien only on the Property and not on the Cluster Approval. If this were so, Commercial could look only to the Property without the Cluster Approval for adequate protection. Because Commercial’s lien exceeds the market value of the Property either with or without the Cluster Approval, the Property itself cannot provide adequate protection to Commercial. And neither Development nor Pacific has offered any additional security to Commercial to provide adequate protection under the code. 33. Even if the Court held that the value of the Property with the Cluster Approval was 66%% higher than without, thus evaluating the Property at $1,666,-000.00 and finding debtor to have some equity beyond Commercial’s lien, said equity would not be sufficient to provide adequate protection to Commercial. 34. The interest on Commercial’s loan continues to increase at the rate of $16,-500.00 a month. If a minimum of six (6) months are necessary to sell the Property with the Cluster Approval, the interest on Commercial’s claim would be increased by $99,000.00 during such period, increasing Commercial’s claim to $1,599,000.00. Sales commission and other costs, estimated at 6% of $1,666,000.00 or" } ]

[ { "docid": "22393263", "title": "", "text": "Justice Scalia delivered the opinion of the Court. We have held that in capital cases, “‘the sentenced” may not refuse to consider or “ ‘be precluded from considering’ ” any relevant mitigating evidence. Skipper v. South Carolina, 476 U. S. 1, 4 (1986) (quoting Eddings v. Oklahoma, 455 U. S. 104, 114 (1982)). See also Lockett v. Ohio, 438 U. S. 586, 604 (1978) (plurality opinion). Certiorari was granted in the present case to consider petitioner’s contention that he was sentenced to death under a Florida statute that operated in a manner inconsistent with this requirement. 476 U. S. 1168 (1986). H On July 31, 1976, 13-year-old Cynthia Driggers was strangled to death. At the time of the murder, both Cynthia and petitioner resided with Richard Hitchcock, who was Cynthia’s stepfather and petitioner’s brother. Petitioner initially confessed to the murder, stating that he had killed Cynthia after she threatened to tell her parents that she and petitioner had engaged in consensual sexual intercourse. At his trial for first-degree murder, however, petitioner recanted and testified that it was his brother Richard who murdered Cynthia, after finding out about the intercourse. The State contended that petitioner had sexually assaulted Cynthia and then murdered her to avoid discovery. Petitioner was convicted of first-degree murder and sentenced to death. After unsuccessful appeals and state and federal collateral proceedings, he filed an application for a writ of habeas corpus in the United States District Court for the Middle District of Florida. He argued, among other things, that the advisory jury and sentencing judge had been precluded by law from considering certain evidence of mitigating circumstances that had been introduced, and that additional evidence of mitigating circumstances had been withheld by his counsel in the reasonable belief that it could not be considered under the Florida death penalty statute. The District Court denied petitioner’s application, without granting an evidentiary hearing. A panel of the Eleventh Circuit affirmed, 745 F. 2d 1332 (1984), and the Eleventh Circuit affirmed en banc, 770 F. 2d 1514 (1985). This petition followed. II Petitioner claims that the advisory jury and the" } ]

[ { "docid": "1391963", "title": "", "text": "until she loses consciousness as culpable morally as one who chokes her after she is unconscious, just to make sure she is dead? What if he chokes the murder victim, but lets go when he thinks she is just unconscious? What if he restrains the victim while another chokes her to death? The law tells us who is legally responsible for the murder in each ease. The law does not tell us whether the death penalty should be imposed in each case. It tells us only that the jury must have all the facts before making the sentencing decision. A capital defendant is given broad latitude to offer mitigating evidence because “ ‘the penalty of death is qualitatively different’ ” than any- other sentence. See Lockett, 438 U.S. at 604, 98 S.Ct. at 2964 (quoting Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976)). The death penalty’s irrevocable end has prompted the Supreme Court to require the sentencer in capital eases to consider a defendant’s violent and troubled youth, see Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982); good behavior in prison, see Skipper v. South Carolina, 476 U.S. at 1, 4-5, 106 S.Ct. at 1669, 1670-71 (1986); history of child abuse and emotional problems, see Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989); ineligibility for parole, see Simmons v. South Carolina, 512 U.S. 154, 162, 114 S.Ct. 2187, 2193, 129 L.Ed.2d 133 (1994); poverty-ridden childhood, see Hitchcock, 481 U.S. at 397, 107 S.Ct. at 1823-24; good deeds as an affection ate uncle, see id.; and childhood habit of inhaling gas fumes, see id. Thus, virtually no limits are placed on a capital defendant’s ability to introduce mitigating evidence concerning his personal circumstances and the circumstances of his crime. See Eddings, 455 U.S. at 112, 102 S.Ct. at 875-76. The majority makes this court the first to hold that when two or more are guilty of the same murder, evidence about the identity of the actual killer is not relevant in mitigation at" }, { "docid": "18605152", "title": "", "text": "to the states through the Fourteenth Amendment, requires that a sentencer in a capital case not be prevented from considering any aspect of a defendant’s character or record as a mitigating circumstance. Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986); Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982); Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) (plurality opinion). Hence, while a state may list mitigating factors to be considered in its death penalty statute, as Florida does, it may not restrict the defendant to arguing only those statutory circumstances. In Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987), the Court held that, under the Florida procedure for trying capital cases, an advisory jury may not be prohibited from considering relevant nonstat-utory mitigating circumstances in making its sentencing recommendation, and that the judge must consider such mitigating evidence in determining an appropriate sentence. Accordingly, a Hitchcock violation is based upon a Lockett violation, and “Hitchcock has breathed new vitality into claims based on the exclusion of non-statutory mitigating factors” from the sentencing process in Florida capital cases. Hargrave v. Dugger, 832 F.2d 1528, 1533 (11th Cir.1987), cert. denied, 489 U.S. 1071, 109 S.Ct. 1353, 103 L.Ed.2d 821 (1989). In light of these cases, Bolender alleges two errors relating to the deficient considération of nonstatutory mitigating evidence during the penalty phase of his trial. First, Bolender claims that his counsel felt constrained in developing and presenting such nonstatutory mitigating evidence at the sentencing hearing. Second, he contends that the sentencing judge and the Supreme Court of Florida both failed meaningfully to consider nonstatutory mitigation. These distinct, albeit related, claims were often confused during the argument of this case. We consider each in turn. A. Bolender contends that his counsel at trial was constrained in presenting nonstatutory mitigating evidence in violation of Lockett and Hitchcock for two reasons. First, he argues, trial counsel was confused about the state of the law at the time of trial. And second, Bolender urges, the restrictive" }, { "docid": "1391964", "title": "", "text": "youth, see Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982); good behavior in prison, see Skipper v. South Carolina, 476 U.S. at 1, 4-5, 106 S.Ct. at 1669, 1670-71 (1986); history of child abuse and emotional problems, see Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989); ineligibility for parole, see Simmons v. South Carolina, 512 U.S. 154, 162, 114 S.Ct. 2187, 2193, 129 L.Ed.2d 133 (1994); poverty-ridden childhood, see Hitchcock, 481 U.S. at 397, 107 S.Ct. at 1823-24; good deeds as an affection ate uncle, see id.; and childhood habit of inhaling gas fumes, see id. Thus, virtually no limits are placed on a capital defendant’s ability to introduce mitigating evidence concerning his personal circumstances and the circumstances of his crime. See Eddings, 455 U.S. at 112, 102 S.Ct. at 875-76. The majority makes this court the first to hold that when two or more are guilty of the same murder, evidence about the identity of the actual killer is not relevant in mitigation at the sentencing phase. This position is particularly questionable in light of the Supreme Court’s holding in Green v. Georgia, 442 U.S. 95, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979) (per curiam). In that case the trial court refused to admit a statement by a third party that Green’s partner in an abduction had murdered the victim outside of Green’s presence. The Supreme Court reversed Green’s capital sentence because “the excluded testimony was highly relevant to a critical issue in the punishment phase of a trial,” namely whether Green participated directly in the murder. Id. at 97, 99 S.Ct. at 2151 (citing Lockett); see also Chaney v. Brown, 730 F.2d 1334, 1357 (10th Cir.1984) (upholding conviction but vacating death sentence because “[t]he withheld reports contained important mitigating evidence supporting the inference that another person or persons were involved in the kidnappings and murders, and that [the defendant] may not have personally killed the victims”). One theme underlies the Lockett and Ed-dings line of cases: the sentencing jury alone, armed with the complete story, must decide the" }, { "docid": "5836253", "title": "", "text": "Williams argues that the post-conviction court’s decision denied him due process by precluding the court from considering additional mitigating evidence, as mandated by Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987), Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), and Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). In Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986), the Supreme Court held that excluding mitigating evidence as cumulative may be implausible under the facts of a case if the court cannot conclude that the excluded evidence would have had no impact on the jury’s deliberations. 476 U.S. at 8, 106 S.Ct. 1669. Thus, Williams argues that the Indiana Supreme Court’s determination that the evidence was cumulative impeded the court’s ability to consider all relevant facets of his character in determining his sentence, and thus violated Skipper. This court first notes that the evidence was excluded during post-conviction proceedings, and not during the actual trial. Thus, it is unclear whether the protection of Hitchcock, Eddings, Lockett, and Skipper apply at all. Additionally, Williams did not raise this claim as a Constitutional issue in his appeal to the Indiana Supreme Court. Finally, Williams has failed to show how the Indiana Supreme Court decision was contrary to or an unreasonable application of clearly established Federal law, as required by 28 U.S.C. § 2254(d)(1). Thus, this court will not grant relief on this claim. B. Ex Parte Conversation with Jury Williams alleges that he was denied due process and equal protection when the trial judge had an ex parte conversation with the jury after they returned their recommendation of death and before he imposed the death penalty. At the sentencing hearing, Judge Letsinger stated on the record as follows: I probably ought to put that on the record. They did ask to talk to me. I do go into the Jury room. Three of them were sobbing rather openly, crying rather openly and I think Mr. Augustine, said, we just wanted you to know" }, { "docid": "1480012", "title": "", "text": "also in effect at the time of Armstrong’s trial, precluded the sentencing authorities “from considering ‘any relevant mitigating evidence.’ ” Id. at —, 107 S.Ct. at 1822 (quoting Skipper v. South Carolina, 476 U.S. 1, —, 106 S.Ct. 1669, 1671, 90 L.Ed.2d 1 (1986)); see Eddings, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982); Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). The Supreme Court in Hitchcock concluded that the sentencing proceedings did not meet the Skipper requirements because neither the advisory jury nor the judge considered any of the nonstatutory mitigating circumstances introduced by the petitioner. In this case the jury instructions were clearly unconstitutional under Hitchcock and Lockett. As in Hitchcock, both the advisory jury and the judge believed that they were limited by statutory mitigating factors. The trial court’s instructions to the jury included a statement that the “[mjitigating circumstances by Statute are ...,” followed by the list of statutory mitigating circumstances. After receiving the jury’s recommendation of death, the trial judge stated that the aggravating circumstances “are not set off by mitigating circumstances, in particular, the age of the defendant [a statutory mitigating circumstance].” Following the language of the statute the judge also found that petitioner acted neither under duress nor under the domination of another person. See Morgan v. Florida, 515 So.2d 975 (Fla.1987). Although some nonstatutory evidence was introduced it was not mentioned by the judge. See McCrae v. State, 510 So.2d 874, 880 (Fla.1987). The state argues that Armstrong’s Lockett claim is subject to the procedural default doctrine of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), because the claim was not presented on direct appeal. Recognizing that the Hitchcock decision represents a substantial change in the law, the Florida Supreme Court has held recently that the procedural default doctrine does not bar a claim for a Lockett violation. See Downs v. Dugger, 514 So.2d 1069, 1072, (Fla.1987); Thompson v. Dugger, 515 So.2d 173, 175 (Fla.1987); Riley v. Wainwright, No. 69,563, slip op. at 2 (Fla. Sept. 3, 1987). In the" }, { "docid": "2139169", "title": "", "text": "from considering any mitigating factor, neither may the sentencer refuse to consider, as a matter of law, any relevant mitigating evidence. In this instance, it was as if the trial judge had instructed a jury to disregard the mitigating evidence Eddings proffered on his behalf. The sentencer, and the Court of Criminal Appeals on review, may determine the weight to be given relevant mitigating evidence. But they may not give it no weight by excluding such evidence from their consideration. Id. at 113-15, 102 S.Ct. at 876-77 (footnotes omitted). After Eddings, the Court has made clear that the range of mitigating factors that must be considered is very wide. For example, in Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986), the Court reversed a death sentence because the trial court refused to allow evidence of Skipper’s good adjustment to prison. Since that relevant mitigating evidence was excluded the Court reversed on Eddings grounds. Skipper, 476 U.S. at -, 106 S.Ct. at 1673. The- most recent Supreme Court case to look at mitigating evidence was Hitchcock v. Dugger, — U.S. -, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987). In that case, the defendant Hitchcock introduced evidence of consequences of his childhood habit of inhaling gas fumes, together with other misfortunes of his youth. Hitchcock, 107 S.Ct. at 1823-24. The court of appeals affirmed the denial of habeas relief holding that the presentation of the evidence and Hitchcock’s attorney’s argument to “consider the whole picture, the whole ball of wax,” was sufficient to show that he had “an individualized sentencing hearing.” Hitchcock v. Wainwright, 770 F.2d 1514, 1518 (11th Cir.1985) (en banc), rev’d sub nom., Hitchcock v. Dugger, — U.S. -, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987). A unanimous Supreme Court reversed. Hitchcock, 107 S.Ct. at 1821. Instead of looking to what evidence was presented to the jury and the argument of defense counsel, the Court focused on the jury instructions and the prosecutor’s argument. Id. at 1823-24. The Florida statute at the time of trial provided for consideration of certain enumerated aggravating circumstances and" }, { "docid": "18605151", "title": "", "text": "the proffered changes in strategy would not have altered trial court’s judgment). The Florida Supreme Court upheld the trial court’s findings on all but two of the aggravating circumstances. Given the details of this case, including among other things the fact that Bolender was twenty-seven years old at the time of the murders, “evidence of a deprived and abusive childhood is entitled to little, if any mitigating weight” when compared to the aggravating factors. Francis, 908 F.2d at 703. Indeed, “we find that any mitigating effect does not begin to tip the balance of aggravating and mitigating factors in favor of [a] petitioner” who has “simply failed to show that counsel’s performance was so deficient during the sentencing phase that this court cannot rely on the result as being just.” Lightbourne, 829 F.2d at 1026. We now turn to Bolender’s related claims concerning the presentation and consideration of nonstatutory mitigating circumstances during the penalty phase of his trial. III. In a series of cases, the Supreme Court has held that the Eighth Amendment, as applied to the states through the Fourteenth Amendment, requires that a sentencer in a capital case not be prevented from considering any aspect of a defendant’s character or record as a mitigating circumstance. Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986); Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982); Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) (plurality opinion). Hence, while a state may list mitigating factors to be considered in its death penalty statute, as Florida does, it may not restrict the defendant to arguing only those statutory circumstances. In Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987), the Court held that, under the Florida procedure for trying capital cases, an advisory jury may not be prohibited from considering relevant nonstat-utory mitigating circumstances in making its sentencing recommendation, and that the judge must consider such mitigating evidence in determining an appropriate sentence. Accordingly, a Hitchcock violation is based upon a Lockett violation, and “Hitchcock" }, { "docid": "2139168", "title": "", "text": "Ohio, 438 U.S. 586, 593-94, 98 S.Ct. 2954, 2959, 57 L.Ed.2d 973 (1978). The Court found the statute unconstitutional, holding that the Eighth and Fourteenth Amendments require that the sentencer ... not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death. Id. at 604, 98 S.Ct. at 2964-65 (emphasis in original). In Eddings v. Oklahoma, 455 U.S. 104, 115, 102 S.Ct. 869, 877, 71 L.Ed.2d 1 (1982), the defendant, 16 years old at the time of the murder, offered evidence of his trou bling family background and his emotional disturbance. In sentencing Eddings to death, the trial judge stated that “ ‘in following the law,’ he could not ‘consider the fact of this young man’s violent background.’ ” Id. at 112-13, 102 S.Ct. at 876. The Court found that the sentencing violated the rule in Lockett: Just as the State may not by statute preclude the sentencer from considering any mitigating factor, neither may the sentencer refuse to consider, as a matter of law, any relevant mitigating evidence. In this instance, it was as if the trial judge had instructed a jury to disregard the mitigating evidence Eddings proffered on his behalf. The sentencer, and the Court of Criminal Appeals on review, may determine the weight to be given relevant mitigating evidence. But they may not give it no weight by excluding such evidence from their consideration. Id. at 113-15, 102 S.Ct. at 876-77 (footnotes omitted). After Eddings, the Court has made clear that the range of mitigating factors that must be considered is very wide. For example, in Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986), the Court reversed a death sentence because the trial court refused to allow evidence of Skipper’s good adjustment to prison. Since that relevant mitigating evidence was excluded the Court reversed on Eddings grounds. Skipper, 476 U.S. at -, 106 S.Ct. at 1673. The- most recent Supreme Court case to" }, { "docid": "5480679", "title": "", "text": "to establish the existence of either of these statutory mitigating circumstances. This finding was affirmed by the Florida Supreme Court. Card, 453 So.2d at 24. Card argues that in light of the mental health expert’s testimony, the trial court’s finding that there were no statutory mitigating circumstances was without basis. We do not reach the question of whether the state court’s finding of no mitigating circumstances was fairly supported by the record, because the trial judge also made clear that even if he found mitigation under section 921.141(b) and section 921.141(f), “that would not outweigh the overwhelming evidence of aggravating circumstances prevalent in the testimony.” “[A] federal habeas corpus court will not re-evaluate the weight accorded to particular aggravating and mitigating factors. This determination is left to state courts, providing the death penalty statute and sentencing hearings meet relevant constitutional requirements.” Magwood v. Smith, 791 F.2d 1438, 1449 (11th Cir.1986) (emphasis in original). See Ford v. Strickland, 696 F.2d 804, 818 (11th Cir.) (en banc), cert. denied, 464 U.S. 865, 104 S.Ct. 201, 78 L.Ed.2d 176 (1983) (process of weighing circumstances is a matter for judge and jury and is not susceptible to proof by either party). As we find that Card’s sentencing hearing suffered from no constitutional infirmity, we will not reweigh the aggravating and mitigating factors found by the state court. Card next contends that the trial judge failed to consider evidence of nonstatutory mitigating circumstances in violation of Hitchcock v. Dugger. In Hitchcock, the Supreme Court invalidated a Florida death sentence where the advisory jury was instructed not to consider and the sentencing judge refused to consider evidence of non-statutory mitigating circumstances, finding that the sentencing did not comport with the requirements of Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986); Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982); and Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). 481 U.S. at 397, 107 S.Ct. at 1824. Card argues that post-Hitchcock sentencing proceedings will violate the eighth amendment not only if they" }, { "docid": "1480011", "title": "", "text": "to Armstrong’s advantage to proceed at that time. There is also no due process requirement concerning the length of a defense presentation. Due process focuses on the requirement that the defendant have the opportunity to present evidence. In a given case a properly prepared attorney may make a wise strategic decision to make a very brief presentation at the sentencing phase. Armstrong’s trial counsel had an opportunity to present evidence on his client’s behalf. The district court improperly focused on the length of proceeding and the time the proceeding began. We reverse the district court’s grant of habeas relief on the grounds that the sentencing proceeding denied Armstrong’s right to due process. IV. THE CROSS-APPEAL On cross-appeal Armstrong asserts that the trial court’s instructions prohibited the jury from considering nonstatutory mitigating circumstances. The trial court’s jury instructions were virtually identical to the instructions recently reviewed by the Supreme Court in Hitchcock v. Dugger, — U.S. —, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987). The Hitchcock Court considered whether the Florida death penalty statute, which was also in effect at the time of Armstrong’s trial, precluded the sentencing authorities “from considering ‘any relevant mitigating evidence.’ ” Id. at —, 107 S.Ct. at 1822 (quoting Skipper v. South Carolina, 476 U.S. 1, —, 106 S.Ct. 1669, 1671, 90 L.Ed.2d 1 (1986)); see Eddings, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982); Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). The Supreme Court in Hitchcock concluded that the sentencing proceedings did not meet the Skipper requirements because neither the advisory jury nor the judge considered any of the nonstatutory mitigating circumstances introduced by the petitioner. In this case the jury instructions were clearly unconstitutional under Hitchcock and Lockett. As in Hitchcock, both the advisory jury and the judge believed that they were limited by statutory mitigating factors. The trial court’s instructions to the jury included a statement that the “[mjitigating circumstances by Statute are ...,” followed by the list of statutory mitigating circumstances. After receiving the jury’s recommendation of death, the trial judge stated that the" }, { "docid": "12102176", "title": "", "text": "reliable. Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. at 2064. . Under Fla.R.Crim.P. 3.250, a defendant who offers no testimony in his own behalf, except his own, may close the final arguments to the jury. . At the time of Clark’s sentencing Fla.Stat. § 921.141(6) provided that the mitigating circumstances “shall be the following:\" (a) The defendant has no significant history of prior criminal activity. (b) The capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance. (c) The victim was a participant in the defendant’s conduct or consented to the act. (d) The defendant was an accomplice in the capital felony committed by another person and his participation was relatively minor. (e) The defendant acted under extreme duress or under the substantial domination of another person. (f) The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired. (g) The age of the defendant at the time of the crime. . The State also agreed that it would present no other evidence during the penalty phase. . The confusion in Florida law concerning the consideration of mitigating circumstances outside the statutory list has been well documented, and need not be discussed here. See, e.g., Hitchcock v. Wainwright, 770 F.2d 1514, 1516 (11th Cir.1985) (en banc), rev’d sub nom. — U.S. —, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987). . Clark does not contend that the court prevented him from introducing any such evidence. .It appears that the only evidence Clark introduced during the penalty phase was the stipulation to the effect that Dr. Henninger believed Clark was insane at the time of an earlier murder Clark had committed in California. This evidence simply served to rebut an aggravating factor being asserted by the State. See Skipper v. South Carolina, 476 U.S. 1, 9, 106 S.Ct. 1669, 1673, 90 L.Ed.2d 1 (1986) (Powell, J., concurring)." }, { "docid": "7111315", "title": "", "text": "constitutional error, it was, nonetheless, harmless. See Bryson, 876 P.2d at 256-57. Respondent does not dispute that the trial court erred in refusing to admit the videotape. Clearly established Supreme Court precedent provides that a capital sentencer may not refuse to consider, nor be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any circumstance of the offense which the defendant proffers as a basis for the imposition of a sentence less than death. See, e.g., Skipper v. South Carolina, 476 U.S. 1, 4, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986) (citing Eddings v. Oklahoma, 455 U.S. 104, 110, 114, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), and Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) (plurality)). The Court, however, has never specifically addressed whether the erroneous exclusion of mitigating evidence can ever be harmless. Cf. Hitchcock v. Dugger, 481 U.S. 393, 398-99, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987) (granting habeas relief, after noting government made no attempt to argue that sentencer’s improper refusal to consider nonstatutory mitigating factors was harmless error); Skipper, 476 U.S. at 7-8, 106 S.Ct. 1669 (refusing to deem erroneously excluded mitigating evidence as only cumulative and its exclusion harmless). The Oklahoma Court of Criminal Appeals’ application of a harmless error analysis to the improper exclusion of this mitigating evidence, therefore, was not “contrary to ... clearly established” Supreme Court precedent. 28 U.S.C. § 2254(d)(1). Nor was the state court’s application of a harmless error analysis an unreasonable application of general Supreme Court principles. This court has previously applied a harmless error analysis to the exclusion of mitigating evidence. See Dutton v. Brown, 812 F.2d 593, 601 & n. 8 (10th Cir.1987) (reh’g en banc) (determining exclusion of mitigating evidence was not harmless). And, although not controlling here, several other circuits have also applied a harmless error analysis in similar circumstances. See, e.g., Boyd v. French, 147 F.3d 319, 322, 327-28 (4th Cir.1998), cert. denied, - U.S. -, 119 S.Ct. 1050, 143 L.Ed.2d 56 (1999); Sweet v. Delo, 125 F.3d 1144, 1158-59" }, { "docid": "13394851", "title": "", "text": "her husband had enjoyed with Sweet, and she remarked that Sweet was a good photographer who liked to take pictures. After the witness stepped down, Sweet offered into evidence albums of photographs taken by him. The trial court refused the evidence as irrelevant. Lockett stands for the proposition that “the State cannot bar relevant mitigating evidence from being presented and considered during the penalty phase of a capital trial.” Parks, 494 U.S. at 490, 110 S.Ct. at 1261. This principle has been held to require that the sentencing judge or jury be permitted to consider various types of mitigating evidence. See Penny, 492 U.S. at 328, 109 S.Ct. at 2951-52 (mental retardation and background of abuse); Hitchcock v. Dugger, 481 U.S. 393, 398-99, 107 S.Ct. 1821, 1824-25, 95 L.Ed.2d 347 (1987) (family background and potential for rehabilitation); Skipper v. South Carolina, 476 U.S. 1, 5, 106 S.Ct. 1669, 1671, 90 L.Ed.2d 1 (1986) (evidence that defendant would not pose a danger if sentenced to life in prison); Eddings v. Oklahoma, 455 U.S. 104, 113-15, 102 S.Ct. 869, 876-77, 71 L.Ed.2d 1 (1982) (youth and difficult family background). We have little guidance on what constitutes relevance for Lockett purposes, but we know that “the mere declaration that evidence is ‘legally irrelevant’ to mitigation cannot bar the consideration of that evidence if the sentencer could reasonably find that it warrants a sentence less than death.” McKoy v. North Carolina, 494 U.S. 433, 441, 110 S.Ct. 1227, 1232, 108 L.Ed.2d 369 (1990). We agree with the Missouri Supreme Court that the jury could not reasonably have found that Sweet’s photographs warranted or helped to warrant a sentence less than death. See Sweet, 796 S.W.2d at 614 (“[I]t is difficult to see how the photographs are even tangentially relevant to defendant’s character.”); see also Schneider v. Delo, 85 F.3d 335, 342 (8th Cir.) (holding that evidence that accomplice had agreed to plea bargain was not relevant mitigating evidence), cert. denied, — U.S. -, 117 S.Ct. 530, 136 L.Ed.2d 416 (1996). Assuming arguendo that the Eighth Amendment required the trial judge to admit the photographs," }, { "docid": "88684", "title": "", "text": "then concluded, “As we are required by Section 2929.04(B), Ohio Revised Code, to consider the nature and circumstances of the offense, the history, character and background of the offender, and all of the factors in mitigation of the sentence of death presented herein, we find the aggravating circumstance, the Defendant’s previous conviction of the prior purposeful killing of his wife in 1970, outweighs the mitigating circumstances beyond a reasonable doubt.” On appeal from the new sentencing order, the Ohio Court of Appeals ratified the action of the trial court, observing that “[i]t is basic law that a reversal and remand to the trial court for further proceedings has the effect of reinstating the cause in the trial court in status quo ante. ” Davis III, 1990 WL 165137, at *2. Because the error in Davis’s original sentence “occurred at the deliberative state of the proceedings, after the evidence had been submitted to the court,” the appellate court held that, upon remand, “it was not necessary for the panel to consider additional evidence.” Id. Although it, too, affirmed Davis’s death sentence, the Ohio Supreme Court avoided explicit endorsement of this interpretation of its prior remand order, ruling instead that cases such as Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986), were factually distinguishable and, therefore, did not require that the petitioner be given the opportunity to present new evidence at the resentencing hearing. See Davis IV, 584 N.E.2d at 1194-95. Thus, the court held, because Davis had not been denied the opportunity to present all relevant mitigating evidence at his first sentencing trial, and because the trial court on remand again considered all the same evidence, “[Davis] was not denied the type of individualized consideration of relevant mitigating factors required in capital cases.” Id. at 1195 (distinguishing Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978); Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982); and Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987)). One justice dissented, concluding that in remanding the" }, { "docid": "1391904", "title": "", "text": "Amendment right not to testify, a different issue arises when we consider whether the exclusion of the redacted statements during the sentencing phase violated Howard’s Eighth Amendment rights. A defendant may present all relevant mitigating circumstances to the sentencer for its consideration of whether to impose the death penalty. See Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964-65, 57 L.Ed.2d 973 (1978). In Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986), the Supreme Court held that the Eighth and Fourteenth Amendments require admission of relevant mitigating evidence in the penalty phase of a defendant’s capital trial. Skipper, 476 U.S. at 4, 106 S.Ct. at 1670-71. The Court stated that “in capital cases the ‘ “sentencer ... [may] not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” ’ ” Id. (quoting Eddings v. Oklahoma, 455 U.S. 104, 110, 102 S.Ct. 869, 874, 71 L.Ed.2d 1 (1982) (quoting Lockett, 438 U.S. at 604, 98 S.Ct. at 2964)). In other words, “the sentencer may not refuse to consider or be precluded from considering ‘any relevant mitigating evidence.’ ” Id. (quoting Eddings, 455 U.S. at 114, 102 S.Ct. at 877); see also Hitchcock v. Dugger, 481 U.S. 393, 399, 107 S.Ct. 1821, 1824-25, 95 L.Ed.2d 347 (1987) (a jury in a capital case must consider not only statutory mitigating evidence, but also nonstatutory factors as well). Howard argues that the omitted portions of his confessions implicate Weldon as Le’s actual murderer, and therefore, although these omitted portions may not be exculpatory under South Carolina law, they nonetheless constitute mitigating evidence that Howard should have been allowed to present to the jury during his cross-examination of Agent Battle and Lieutenant Hitchins in the penalty phase of his trial. Whether the trial court’s rulings limited the jury’s consideration of mitigating evidence is a mixed question of law and fact. See Kennedy v. Herring, 54 F.3d 678, 682 (11th" }, { "docid": "23538770", "title": "", "text": "nonstatutory mitigating circumstances-confusion that lasted from 1972 to 1978-has been discussed at length by this court. Hitchcock v. Wainwright, 770 F.2d 1514, 1516 (11th Cir.1985) (en banc), rev'd sub nom. Hitchcock v. Dugger, - U.S. -, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987). The period of confusion, which was exacerbated by the decision in Cooper v. State, 336 So.2d 1133 (Fla.1976), cert. denied, 431 U.S. 925, 97 S.Ct. 2200, 53 L.Ed.2d 239 (1977), finally was put to rest in Songer v. State, 365 So.2d 696 (Fla.1978), cert. denied, 441 U.S. 956, 99 S.Ct. 2185, 60 L.Ed.2d 1060 (1979), after the United States Supreme Court decided in Lockett that the eighth and fourteenth amendments require the sentencer to consider all mitigating evidence. Hitchcock, 770 F.2d at 1516. Elledge, who was sentenced after Cooper and before Songer, concedes that the trial court allowed him to introduce non-statutory mitigating evidence; he also acknowledges that his attorney did not feel precluded from presenting such evidence. Elledge maintains, however, that the trial judge did not consider the nonstatutory evidence that was adduced and that the jury was improperly instructed to consider only the statutorily enumerated factors. Recently, in Hitchcock v. Dugger, - U.S. -, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987), the Supreme Court overturned a Florida-imposed death penalty, basing its decision on a somewhat similar Lockett claim. The sentencing proceedings in Hitchcock -including the judge's instruction to the jury, the arguments to the jury, and the trial court's admission of evidence of nonstatutory mitigation-resemble El-ledge's proceedings. We nevertheless find Hitchcock inapplicable to these facts. Hitchcock did not create a per se rule of reversal when the tria1 judge gives a particular jury instruction. Instead, the Court focused on the specific facts of the sentencing proceeding and emphasized that both the judge and the jury believed themselves to be limited to statutory mitigating factors. See id,., 107 S.Ct. at 1823. Although parts of the jury instructions in Elledge’s case were virtually identical to those in Hitchcock, the trial judge in Hitchcock, when sentencing the defendant, indicated he considered solely the statutory factors: “there were insufficient" }, { "docid": "88685", "title": "", "text": "too, affirmed Davis’s death sentence, the Ohio Supreme Court avoided explicit endorsement of this interpretation of its prior remand order, ruling instead that cases such as Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986), were factually distinguishable and, therefore, did not require that the petitioner be given the opportunity to present new evidence at the resentencing hearing. See Davis IV, 584 N.E.2d at 1194-95. Thus, the court held, because Davis had not been denied the opportunity to present all relevant mitigating evidence at his first sentencing trial, and because the trial court on remand again considered all the same evidence, “[Davis] was not denied the type of individualized consideration of relevant mitigating factors required in capital cases.” Id. at 1195 (distinguishing Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978); Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982); and Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987)). One justice dissented, concluding that in remanding the case for “a new sentencing trial,” the Ohio Supreme Court had “intended the trial court to sentence the appellant after a full hearing, including the reintroduction of mitigating evidence from the first sentencing as well as any post-trial mitigating evidence.” Id. at 1198-99 (Wright, J., dissenting). 1. Introduction of Additional Evidence Davis now submits that the decision of the three-judge panel to exclude testimony concerning his exemplary behavior on death row in the time between the two sentencing hearings violated his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments, and that the state courts’ decisions affirming the panel’s ruling were contrary to the those of the Supreme Court of the United States in Lockett, Eddings, and Skipper. Based upon a careful examination of these opinions, we agree. In Lockett, the Supreme Court considered the constitutionality of a former pro vision in the Ohio death penalty statute that did not permit a sentencing judge to consider, as mitigating evidence, factors such as the defendant’s character, prior record, and age. . See 438 U.S. at 597," }, { "docid": "21069756", "title": "", "text": "L.Ed.2d 1 (1982), where the Supreme Court ruled that a sentencing judge improperly decided, as a matter of law, that he could not consider evidence of a defendant’s troubled family history and emotional disturbance as mitigating evidence. He next references Skipper v. South Carolina, 476 U.S. 1, 4, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986), holding that the trial judge improperly ruled that the jury could not consider a defendant’s good conduct in prison as mitigating evidence, California v. Brown, 479 U.S. 538, 541, 107 S.Ct. 837, 93 L.Ed.2d 934 (1987), upholding the sentence of death by interpreting the jury instruction to be consistent with the Eddings line of cases, and the opinion in Hitchcock v. Dugger, 481 U.S. 393, 398-99, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987), decided shortly thereafter, where the Supreme Court held that a new sentencing hearing was required because the advisory jury and judge should have considered evidence of nonstatutory mitigating circumstances. Banks argues that this line of cases, embodying the rule that a jury in a capital case must be permitted to consider all mitigating factors, compelled the holding in Mills that “prohibited a state from requiring a jury to be unanimous before they could find the existence of a particular mitigating circumstance.” Appellant’s Supp. Br. at 9. He continues, “The Woodson-Lockett-Eddings-Dugger lines of cases dictate such a result.” Id. He relies on the following language in Mills: Under our decisions, it is not relevant whether the barrier to the sentencer’s consideration of all mitigating evidence is interposed by statute, Lockett v. Ohio, supra; [citation omitted]; by the sentencing court, Eddings v. Oklahoma, supra, or by an evidentiary ruling, Skipper v. South Carolina, supra. The same must be true with respect to a single juror’s holdout vote against finding the presence of a mitigating circumstance. Whatever the cause ... the conclusion would necessarily be the same: ‘Because the [sentencer’s] failure to consider all of the mitigating evidence risks erroneous imposition of the death sentence, in plain violation of Lockett, it is our duty to remand this case for resentencing.’ Eddings v. Oklahoma, 455 U.S.," }, { "docid": "2139170", "title": "", "text": "look at mitigating evidence was Hitchcock v. Dugger, — U.S. -, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987). In that case, the defendant Hitchcock introduced evidence of consequences of his childhood habit of inhaling gas fumes, together with other misfortunes of his youth. Hitchcock, 107 S.Ct. at 1823-24. The court of appeals affirmed the denial of habeas relief holding that the presentation of the evidence and Hitchcock’s attorney’s argument to “consider the whole picture, the whole ball of wax,” was sufficient to show that he had “an individualized sentencing hearing.” Hitchcock v. Wainwright, 770 F.2d 1514, 1518 (11th Cir.1985) (en banc), rev’d sub nom., Hitchcock v. Dugger, — U.S. -, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987). A unanimous Supreme Court reversed. Hitchcock, 107 S.Ct. at 1821. Instead of looking to what evidence was presented to the jury and the argument of defense counsel, the Court focused on the jury instructions and the prosecutor’s argument. Id. at 1823-24. The Florida statute at the time of trial provided for consideration of certain enumerated aggravating circumstances and certain enumerated mitigating circumstances. Id. at 1822-23. Although there was some doubt whether the Florida statute prohibited the use of nonstatutory mitigating circumstances, the court did not address the issue “[b]ecause our examination of the sentencing proceedings actually conducted in this case convinces us that the sentencing judge assumed such a prohibition and instructed the jury accordingly_” Id. at 1823. The Court focused on both the prosecutor’s argument and the jury instructions. The prosecutor told the jury “to consider the mitigating circumstances and consider those by number,” and he went down the list item by item. Id. at 1824. The trial judge instructed the jury that “[t]he mitigating circumstances which you may consider shall be the following” and then listed the statutory mitigating circumstances. Id. at 1824. The Court concluded: “[w]e think it could not be clearer that the advisory jury was instructed not to consider, and the sentencing judge refused to consider, evidence of non-statutory mitigating circumstances, and that the proceedings therefore did not comport with the requirements of Skipper v. South Carolina, Eddings" }, { "docid": "1480018", "title": "", "text": "to consider, and the sentencing judge refused to consider, evidence of nonstatutory mitigating circumstances, and that the proceedings therefore did not comport with the requirements of [Skipper and Lockett ]. Hitchcock, — U.S. at —, 107 S.Ct. at 1824 (citations omitted). . There may be some question in this circuit whether both the jury and the trial judge must believe they are limited to considering statutory mitigating factors before a Hitchcock violation has occurred. Compare Magill v. Dugger, 824 F.2d 879, 893 (11th Cir.1987) (\"whether or not the trial court believed it could consider non-statutory mitigating circumstances, [petitioner’s] sentence must be vacated because the jury was so limited”) (emphasis in original) with Elledge v. Dugger, 823 F.2d 1439, 1448-49 (11th Cir.1987) (Hitchcock error does not require reversal when the state trial judge indicates he did not feel he was limited to statutory mitigating factors). Because in this case both the trial judge and the jury believed that they were limited to considering statutory mitigating factors, we do not need to resolve this issue. The Florida Supreme Court, however, recently has clarified Florida law by holding that “the standards imposed by Lockett bind both the judge and the jury under our law_ If the jury’s recommendation, upon which the judge must rely, results from an unconstitutional procedure, then the entire sentencing process necessarily is tainted by that procedure.” Riley v. Wainwright, No. 69,563 (Fla. Sept. 3, 1987). . Prior to the Hitchcock opinion, the Florida Supreme Court had held that the mere opportunity to present nonstatutory mitigating evidence was sufficient to meet the standards of Lockett. See, e.g., Echols v. State, 484 So.2d 568, 575-76 (Fla.1985), cert. denied, — U.S. —, 107 S.Ct. 241, 93 L.Ed.2d 166 (1986); Hitchcock v. State, 432 So.2d 42, 43 (Fla.1983), rev’d, — U.S. —, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987). . The state’s brief points out that the Florida Supreme Court \"expressly recognized” that non-statutory mitigating evidence was presented at the sentencing proceeding. See Armstrong v. State, 429 So.2d 287, 290 (Fla.1983). . Skipper attempted to introduce testimony by two jailers about his good" } ]

[ { "docid": "22615182", "title": "", "text": "unaccredited law schools.” Ibid. That charge, the Court held, could not be pursued, for it was “inextricably intertwined with the District of Columbia Court of Appeals’ decisions, in judicial proceedings, to deny [plaintiffs’] petitions.” Id., at 486-487. On the other hand, the Court said, plaintiffs could maintain “claims that the [bar admission] rule is unconstitutional because it creates an irrebuttable presumption that only graduates of accredited law schools are fit to practice law, discriminates against those who have obtained equivalent legal training by other means, and impermissibly delegates the District of Columbia Court of Appeals’ power to regulate the bar to the American Bar Association,” for those claims “dp not require review of a judicial decision in a particular case.” Id., at 487. The Court left open the question whether the doctrine of res judicata foreclosed litigation of the elements of the complaints spared from dismissal for want of subject-matter jurisdiction. Id., at 487-488. Since Feldman, this Court has never applied Rooker-Feldman to dismiss an action for want of jurisdiction. The few decisions that have mentioned Rooker and Feldman have done so only in passing or to explain why those cases did not dictate dismissal. See Verizon Md. Inc. v. Public Serv. Comm’n of Md., 535 U. S. 635, 644, n. 3 (2002) (Rooker-Feldman does not apply to a suit seeking review of state agency action); Johnson v. De Grandy, 512 U. S. 997, 1005-1006 (1994) (Rooker-Feldman bars a losing party in state court “from seeking what in substance would be appellate review of the state judgment in a United States district court, based on the losing party’s claim that the state judgment itself violates the loser’s federal rights,” but the doctrine has no application to a federal suit brought by a non-party to the state suit.); Howlett v. Rose, 496 U. S. 356, 369-370, n. 16 (1990) (citing Rooker and Feldman for “the rule that a federal district court cannot entertain an original action alleging that a state court violated the Constitution by giving effect to an unconstitutional state statute”); ASARCO Inc. v. Kadish, 490 U. S. 605, 622-623" } ]

[ { "docid": "21805785", "title": "", "text": "to amend her counterclaim to assert that the Assignment was invalid on the grounds that: (1) New Century had been dissolved prior to the execution of the Assignment and was not in business on the date of the alleged assignment; and (2) the Trust into which the ‘Mortgage was allegedly assigned had closed years before the Assignment was made. The court held 'a hearing but did not hear argument on the former ground for relief (as New Century was no longer in business); the court denied the motion to amend... The Plaintiff appealed the judgment of-possession, but her appeal was dismissed for her failure to post an appeal, bond. The Plaintiff is no longer in possession of the Property. Discussion Whether This Action Barred By The Rooker-Feldman Doctrine The Rooker-Feldman doctrine' , which gives the' United States Supreme Court exclusive “jurisdiction over appeals from final state-court judgments,” implicates this Court’s subject-matter jurisdiction. See Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 291-92, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005); see also 28 U.S.C. § 1257. “The Rooker-Feldman doctrine prevents the lower federal courts from exercising jurisdiction over cases brought by ‘state-court losers’ challenging state-court judgments rendered before the district court proceedings commenced.” Lance v. Dennis, 546 U.S. 459, 460, 126 S.Ct 1198, 163 L.Ed.2d 1059 (2006) (per curiam) 460, 126 S.Ct. 1198 (quoting Exxon Mobil, 544 U.S. at 284, 125 S.Ct. 1517). This is so because the Supreme Court has held that lower federal courts do not have subject matter jurisdiction to act as appellate courts reviewing state court judgments; such review may only be had in the Supreme Court. DuLaurence, 94 F.Supp.3d at 79. More specifically, “the doctrine applies only to (1) a party who lost in a state-court judgment that (2) was rendered before the federal action commenced, where (3) the party complains of injuries caused by the state-court judgment and (4) invites district court review and rejection of those judgments.” Id. However, a “[federal courts’ application of the Rooker-Feldman doctrine ‘does not depend on what issues were actually litigated in the state court.’ ”" }, { "docid": "1316295", "title": "", "text": "state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.” Id. at 284, 125 S.Ct. 1517. Applied to the complaint in Exxon, the Court held that Rooker-Feldman does not bar jurisdiction over an action brought by a state-court defendant against the state-court plaintiff before the state court entered judgment. Id. at 294, 125 S.Ct. 1517. If the state court were to decide the case while the federal lawsuit is pending, the Court explained, then preclusion law — not Rooker-Feldman — would govern the disposition of the federal action. Id. at 293, 125 S.Ct. 1517. Subject matter jurisdiction is proper even if “a party attempts to litigate in federal court a matter previously litigated in state court.” Id. Eleven months later, in Lance v. Dennis, 546 U.S. 459, 126 S.Ct. 1198, 163 L.Ed.2d 1059 (2006) (per curiam), the Court held that jurisdiction is not barred merely because the plaintiffs were in privity with a party to a prior state-court case. The Court rejected the privity theory because it “erroneously conflate[s] preclusion law with Rooker-Feldman.” Id. at 466, 126 S.Ct. 1198. “Rooker-Feldman is not simply preclusion by another name.” Id. Instead, Rooker-Feldman as a “narrow doctrine” that “applies only ... where a party in effect seeks to take an appeal of an unfavorable state-court decision to a lower federal court.” Id. at 464, 466, 126 S.Ct. 1198. “A more expansive Rooker-Feldman rule,” which would incorporate preclusion principles, “risks turning that limited doctrine into a uniform federal rule governing the preclusive effect of state-court judgments, contrary to the Full Faith and Credit Act.” Id. at 466, 126 S.Ct. 1198. We have generally applied a narrower version of Rooker-Feldman since Exxon and Lance. For example, in Skit International Ltd. v. DAC Technologies of Arkansas, Inc., 487 F.3d 1154 (8th Cir.2007), we explained, albeit as dictum, “Rooker-Feldman is implicated in that subset of cases where the losing party in a state court action subsequently complains about that judgment and seeks review and rejection of it.” Id. at 1157. In Riehm v. Engelking, 538 F.3d 952 (8th" }, { "docid": "3032782", "title": "", "text": "appeal). I. Subject Matter Jurisdiction A. Mootness Defendants argue that Plaintiffs’ first declaratory judgment claim — that the SREA applies to protect them from all contribution lawsuits, including the state court lawsuit brought by Defendants — is not justiciable insofar as it requests a specific declaration as to the non-suited state court lawsuit. In other words, they argue that mootness divested the district court of jurisdiction over that particular portion of the claim. The party asserting mootness bears the “heavy burden of persuading the court that the challenged conduct cannot reasonably be expected to start up again.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 189, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (citation and internal quotation marks omitted). The non-suit order entered by the state court dismissed all parties’ claims without prejudice. Without any information in the record or the briefs as to the reasons for the non-suit, or as to their future intent, Defendants have not carried their burden to show that the alleged harm will not recur, i.e., that they will not re-file their state law action. The claim thus withstands Defendants’ challenge for mootness. B. The Rooker-Feldman Doctrine Defendants next argue that the Rooker-Feldman doctrine bars Plaintiffs from “relitigating their defenses in federal court.” The Rooker-Feldman doctrine bars “cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005) . Thus, a losing party may not seek what amounts to appellate review of a final state court judgment in a federal district court. See Lance v. Dennis, 546 U.S. 459, 463, 126 S.Ct. 1198, 163 L.Ed.2d 1059 (2006). We have previously held that “the Rook-er-Feldman bar generally should not extend to state decisions that would not be given preclusive effect under doctrines of res judicata and collateral estoppel.” Ingalls v. Erlewine (In re Erlewine), 349 F.3d 205, 210 (5th Cir.2003); see also Union Planters" }, { "docid": "21805786", "title": "", "text": "U.S.C. § 1257. “The Rooker-Feldman doctrine prevents the lower federal courts from exercising jurisdiction over cases brought by ‘state-court losers’ challenging state-court judgments rendered before the district court proceedings commenced.” Lance v. Dennis, 546 U.S. 459, 460, 126 S.Ct 1198, 163 L.Ed.2d 1059 (2006) (per curiam) 460, 126 S.Ct. 1198 (quoting Exxon Mobil, 544 U.S. at 284, 125 S.Ct. 1517). This is so because the Supreme Court has held that lower federal courts do not have subject matter jurisdiction to act as appellate courts reviewing state court judgments; such review may only be had in the Supreme Court. DuLaurence, 94 F.Supp.3d at 79. More specifically, “the doctrine applies only to (1) a party who lost in a state-court judgment that (2) was rendered before the federal action commenced, where (3) the party complains of injuries caused by the state-court judgment and (4) invites district court review and rejection of those judgments.” Id. However, a “[federal courts’ application of the Rooker-Feldman doctrine ‘does not depend on what issues were actually litigated in the state court.’ ” Miller v. Nichols, 586 F.3d 53, 59 (1st Cir. 2009)(internal citations and citation to quoted cases omitted). On the contrary, “[tjhe Rooker-Feldman doctrine is properly applied where regardless of how the claim is phrased, the only real injury to [the plaintiff] is ultimately still caused by a state-court judgment”. DuLaurence, 94 F.Supp.3d at 80 (internal quotations and citation to quoted cáse omitted). However, “if the plaintiff alleges a constitutional violation by an adverse party independent of the injury caused by the state court judgment, the [Rooker-Feldman] doctrine does not bar jurisdiction.” Davison v. Gov’t of P.R.-P.R. Firefighters Corps., 471 F.3d 220, 222 (1st Cir. 2006). Plaintiff asserts claims for wrongful foreclosure, violation of the Massachusetts Consumer Protection Act, Mass. Gen.L. ch. 93A, breách of the covenant of good faith and fair dealing and negligent infliction of emotional distress based on the premise that “Deutsche Bank wrongfully acquired title to the mortgage of the subject property through a pattern of intentional fraudulent conduct ...” Complaint, at ¶42. Plaintiff can prevail on these claims only if the" }, { "docid": "22254591", "title": "", "text": "belief that the state court’s ruling was wrong, and it essentially asked the district court to “review and reverse the Georgia court.” Citing our decision in Powell v. Powell, 80 F.3d 464 (11th Cir.1996), the district court emphasized that Casale should have raised his preemption arguments during the Georgia proceedings because a state court’s “interpretation of federal law is no less authoritative than that of the [corresponding] federal court of appeals.” Id. at 467 (internal quotation marks omitted). That principle of federalism is well settled. Id.; see also Lockhart v. Fretwell, 506 U.S. 364, 376, 113 S.Ct. 838, 846, 122 L.Ed.2d 180 (1993) (Thomas, J., concurring); Anders v. Hometown Mortgage Servs., Inc., 346 F.3d 1024, 1033 (11th Cir.2003) (“State and federal courts are free to decide federal law issues for themselves (unless and until the United States Supreme Court settles the matter).”). We review de novo a district court’s finding that it lacks subject matter jurisdiction. Dale v. Moore, 121 F.3d 624, 626 (11th Cir.1997). The Rooker-Feldman doctrine makes clear that federal district courts cannot review state court final judgments because that task is reserved for state appellate courts or, as a last resort, the United States Supreme Court. See Feldman, 460 U.S. at 482, 103 S.Ct. at 1315. The doctrine applies both to federal claims raised in the state court and to those “inextricably intertwined” with the state court’s judgment. Id. at 482 n. 16, 103 S.Ct. at 1315 n. 16. It does not apply, however, where a party did not have a “reasonable opportunity to raise his federal claim in state proceedings.” Powell, 80 F.3d at 467 (internal quotation marks omitted). A claim is inextricably intertwined if it would “effectively nullify” the state court judgment, id. (internal quotation marks omitted), or it “succeeds only to the extent that the state court wrongly decided the issues.” Goodman ex rel. Goodman v. Sipos, 259 F.3d 1327, 1332 (11th Cir.2001). While the Supreme Court’s recent Rooker-Feldman decisions have noted the “narrowness” of the rule, see Lance v. Dennis, 546 U.S. 459, 464, 126 S.Ct. 1198, 1201, 163 L.Ed.2d 1059 (2006), they" }, { "docid": "3032783", "title": "", "text": "i.e., that they will not re-file their state law action. The claim thus withstands Defendants’ challenge for mootness. B. The Rooker-Feldman Doctrine Defendants next argue that the Rooker-Feldman doctrine bars Plaintiffs from “relitigating their defenses in federal court.” The Rooker-Feldman doctrine bars “cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005) . Thus, a losing party may not seek what amounts to appellate review of a final state court judgment in a federal district court. See Lance v. Dennis, 546 U.S. 459, 463, 126 S.Ct. 1198, 163 L.Ed.2d 1059 (2006). We have previously held that “the Rook-er-Feldman bar generally should not extend to state decisions that would not be given preclusive effect under doctrines of res judicata and collateral estoppel.” Ingalls v. Erlewine (In re Erlewine), 349 F.3d 205, 210 (5th Cir.2003); see also Union Planters Bank Nat’l Ass’n v. Salih, 369 F.3d 457, 460-61 (5th Cir.2004). The federal full faith and credit statute requires federal courts to give state court judgments the same preclusive effect that they would enjoy in the courts of the rendering state. See 28 U.S.C. § 1738 (2006); Marrese v. Am. Acad. of Orthopaedic Surgeons, 470 U.S. 373, 380, 105 S.Ct. 1327, 84 L.Ed.2d 274 (1985). We therefore look to Texas law to determine whether the Texas judgments in this case would be accorded res judicata effect. A party seeking to assert res judicata in Texas courts must prove, inter alia, “a prior final determination on the merits by a court of competent jurisdiction.” Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex.2010) (emphasis added). The partial summary judgment orders in this case were not final judgments. They establish each of the elements necessary to state a claim under the SWDA, but stop short of concluding that Plaintiffs are liable for any contribution costs. They do not award any damages to Defendants, who had sued" }, { "docid": "459377", "title": "", "text": "issues raised in the instant complaint and those previously litigated in the Supreme Court of the State of New York and the Justice Court of the Village of Spring Valley requires this Court to examine not only the availability of certain claims in light of New York principles of preclusion, but the extent of our jurisdiction under the federal Rooker-Feldman doctrine. Under Rooker-Feldman, this Court lacks subject matter jurisdiction over an action if the exercise of jurisdiction would result in the reversal or modification of a state court judgment. See Rooker v. Fidelity Trust Co., 263'U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923) (only the Supreme Court can entertain a direct appeal from a state court judgment); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983) (federal courts do not have jurisdiction over claims which are “inextricably intertwined” with, prior state court determinations); see also Hachamovitch v. DeBuono, 159 F.3d 687, 693-94 (2d Cir.1998). The Second Circuit has held that Rooker-Feldman is, at a minimum, co-extensive with common law principles of res judicata (claim preclusion) and collateral estoppel (issue preclusion). Therefore, to the extent that “the precise claims raised in a state court proceeding are raised in the subsequent federal proceeding, Rooker-Feldman will plainly bar the action.” Moccio, 95 F.3d at 199. However, if “the claims were never presented in the state court proceedings and the plaintiff did not have an opportunity to present the claims in those proceedings, the claims ... are not barred.” Id. Under New York law,'a final judgment on the merits must be afforded both res judicata and collateral estoppel effect. The doctrine of res judicata prevents a party from asserting claims that have been, or could have been, litigated in a prior action based upon the same facts. See Ruff, 961 F.2d at 1065 (citing Reilly v. Reid, 45 N.Y.2d 24, 379 N.E.2d 172, 407 N.Y.S.2d 645 (1978) and Smith v. Russell Sage College, 54 N.Y.2d 185, 192-93, 429 N.E.2d 746, 749, 445 N.Y.S.2d 68, 71 (1981)). The doctrine of collateral estoppel prevents a party" }, { "docid": "6254687", "title": "", "text": "713, 116 S.Ct. 1712. We conclude, therefore, that a Rooker-Feldman dismissal qualifies as a collateral order to the same extent as a Burford abstention order. The Rooker-Feldman dismissal also meets the two requirements of Cohen, 337 U.S. at 546, 69 S.Ct. 1221. In the present case, the district court conclusively determined the applicability of the Rooker-Feldman doctrine, thereby satisfying the first of the Cohen elements. The second Cohen requirement is whether the issue brought to the district court was separate from the merits of the action. It is obvious that the district court refused to adjudicate the merits of the dispute and barred the claims under the Rooker-Feldman doctrine. Bee Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). Along with fulfillment of these- two requirements, the district court’s ruling effectively becomes unreviewable on appeal from its final judgment because the district court would be required to give res judicata effect to the state court’s determination. On the basis of our analysis, we find the requirements of Cohen have been satisfied and that the appeal under the collateral order rule is properly before this court. ANALYSIS I. Rooker-Feldman Doctrine The Rooker-Feldman doctrine recognizes that federal district courts generally lack subject matter jurisdiction to review state court judgments. Disk of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983); Rooker v. Fid. Trust Co., 263 U.S. 413, 415, 44 S.Ct. 149, 68 L.Ed. 362 (1923); see also Branson v. Nott, 62 F.3d 287, 291 (9th Cir.1995) (“As courts of original jurisdiction, federal district courts have no authority to review the final determinations of a state court in judicial proceedings.”). The doctrine also precludes a federal district court from exercising jurisdiction over general constitutional challenges that are “inextricably intertwined” with claims asserted in state court. Feldman, 460 U.S. at 483 n. 16, 103 S.Ct. 1303; see also Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 25, 107 S.Ct. 1519, 95 L.Ed.2d 1 (1987) (Marshall, J., concurring); Doe & Assocs. Law Offices v. Napolitano, 252 F.3d 1026," }, { "docid": "6935078", "title": "", "text": "to fully brief the question of judicial immunity. Their claim for declaratory relief (to the extent it exists at all) was properly dismissed, as was the rest of their complaint. AFFIRMED. This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R.App. P. 32.1 and 10th Cir. R. 32.1. . The record does not contain any pleadings or other documents from the state court action. Thus, we rely on the parties' description of the relevant events. . Because Lawrence and Greenstreet filed their complaint while proceeding pro se, we review their pleadings liberally. See Beedle v. Wilson, 422 F.3d 1059, 1063 (10th Cir.2005). We note that Lawrence and Greenstreet’s position has been substantially refined by their appellate counsel, though they still have not explained what effect the default judgment had on their rights or on the rights of the Red River Trust. . The Rooker-Feldman doctrine is based on Dist. of Columbia Ct. of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983) and Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923). It \"prohibits federal suits that amount to appeals of state-court judgments.” Bolden v. City of Topeka, Kan., 441 F.3d 1129, 1139 (10th Cir.2006). . In Lance, the Supreme Court reiterated Rooker-Feldman \"is a narrow doctrine” that has been applied by the lower courts \"far beyond the contours of the Rooker and Feld-man cases.” 546 U.S. at 464, 126 S.Ct. 1198 (quotations omitted). The Court explained it had previously \"held Rooker-Feldman inapplicable where the party against whom the doctrine is invoked was not a party to the underlying state-court proceeding.\" Id. (citing Johnson v. De Grandy, 512 U.S. 997, 1006, 114 S.Ct. 2647, 129 L.Ed.2d 775 (1994)). The Court clarified: \"The Rooker-Feldman doctrine does not bar actions by nonparties to the earlier state-court judgment simply because, for purposes of preclusion law, they could be considered in privity with a party to the judgment.” Id." }, { "docid": "22964177", "title": "", "text": "those facts were essential to the judgment in the first action, and the parties were east as adversaries in the first action.” Texacadian Energy, Inc. v. Lone Star Energy Storage, Inc., 829 S.W.2d 369, 373 (Tex.App.-Corpus Christi 1992). But “[interlocutory orders on matters that are simply collateral or incidental to the main suit do not operate as res judicata or collateral estoppel.” Id. “The trial court ... retains continuing control over interlocutory orders and has the power to set those orders aside any time before a final judgment is entered.” Fruehauf Corp. v. Carrillo, 848 S.W.2d 83, 84 (Tex.1993). The Texas order was “collateral or incidental to the main suit.” “An order or judgment that is merely a ruling on a technical or procedural aspect of a case is not res judicata.” Starnes v. Holloway, 779 S.W.2d 86, 93 (Tex.App.-Dallas 1989). The Texas court’s order was a procedural one that had no direct effect on the substance of the Gonzalez action. Cf. Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352 (Tex.2001) (order affecting likelihood of opt outs interlocutory and therefore not appealable). Accordingly, it was not entitled to preclusive effect under the Full Faith and Credit Act. c. The Rooker-Feldman Doctrine. Appellants claim PTO 1227 exceeded the District Court’s authority under the related Rooker-Feldman doctrine, which prohibits review of state court decisions by federal courts other than the United States Supreme Court. D.C. Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923). According to the Gonzalez plaintiffs, the District Court did so in declaring the Texas order “null and void and without effect.” Under the Rooker-Feldman doctrine, inferior federal courts lack subject matter jurisdiction to review, directly or indirectly, state court adjudications. Rooker, 263 U.S. at 416, 44 S.Ct. 149. Review of such adjudications must be pursued in the state appellate system, and, if necessary, by way of review of the state’s highest court in the United States Supreme Court. In most cases, where consideration of an issue" }, { "docid": "7465811", "title": "", "text": "this claim under the Rooker-Feldman doctrine. The Rooker-Feldman doctrine derives from Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923), and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983). The doctrine is a jurisdictional rule that precludes the lower federal courts from reviewing state court judgments. Nicholson v. Chafe, 558 F.3d 1266, 1270 (11th Cir.2009). This is because “[28 U.S.C.] § 1257, as long interpreted, vests authority to review a state court judgment solely in th[e Supreme] Court.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 292, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005). The Supreme Court recently has cautioned that “[t]he Rooker-Feldman doctrine ... is confined to cases of the kind from which the doctrine acquired its name: cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.” Id. at 284, 125 S.Ct. 1517; see also Lance v. Dennis, 546 U.S. 459, 464, 126 S.Ct. 1198, 163 L.Ed.2d 1059 (2006) (per curiam) (noting the “narrowness” of the Rooker-Feldman rule). We have since explained that the Rooker-Feldman doctrine operates as a bar to federal court jurisdiction where the issue before the federal court was “inextricably intertwined” with the state court judgment so that (1) the success of the federal claim would “effectively nullify” the state court judgment, or that (2) the federal claim would succeed “only to the extent that the state court wrongly decided the issues.” Casale v. Tillman, 558 F.3d 1258, 1260 (11th Cir.2009) (per curiam) (internal quotation marks omitted). Fully aware that Rooker-Feldman is a narrow jurisdictional doctrine, we nonetheless hold that Alvarez’s challenge to the Florida courts’ resolution of his petition is squarely within its orbit. Although this Circuit has yet to consider the applicability of the Rooker-Feldman doctrine in the context of a § 1983 suit challenging a state’s failure to produce evidence for DNA testing, the district court relied upon decisions from two of our sister" }, { "docid": "20613211", "title": "", "text": "appellate jurisdiction over final state-court judgments. See Lance v. Dennis, — U.S.-, 126 S.Ct. 1198, 163 L.Ed.2d 1059 (2006); Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923). However, the Supreme Court has explained that Rooker-Feldman is a narrow doctrine, confined to “cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.” Exxon Mobil, 544 U.S. at 284, 125 S.Ct. 1517. The rationale for the restricted scope of Rooker-Feldman was elaborated by the Supreme Court as follows: A more expansive Rooker-Feldman rule would tend to supplant Congress’ mandate, under the Full Faith and Credit Act, 28 U.S.C. § 1738, that federal courts “ ‘give the same preclusive effect to state court judgments that those judgments would be given in the courts of the State from which the judgments emerged.’ ” Congress has directed federal courts to look principally to state law in deciding what effect to give state-court judgments. Incorporation of preclusion principles into Rooker-Feldman risks turning that limited doctrine into a uniform federal rule governing the pre-clusive effect of state-court judgments, contrary to the Full Faith and Credit Act. Lance, 126 S.Ct. at 1202-03 (citation omitted). The Holdover Proceeding was a summary proceeding under state law to determine the right to immediate possession of property and not the adjudication of title. Hopkins did have a right to raise the issue of title by way of answer or counterclaim (See RPAPL § 713), but she failed to do so. Hopkins also could have commenced a separate action in New York State Supreme Court within sixty days after entry of the Judgment of Possession to obtain an adjudication of title (See RPAPL § 747(2)), but she failed to do so. In seeking a determination that she is owner of the" }, { "docid": "21735968", "title": "", "text": "for Rooker-Feldman purposes if a party has timely appealed a final judgment and the appeal is pending when the federal court action is brought: In conclusion, we agree with our sister circuits (the First, Eighth and Tenth Circuits) and hold the state proceedings have not ended for purposes of Rooker-Feldman when an appeal from the state court judgment remains pending at the time the plaintiff commences the federal court action that complains of injuries caused by the state court judgment and invites review and rejection of that judgment. Because there is no dispute TD Bank’s appeal of the state court final judgment was pending when this bankruptcy case was filed, Rooker-Feldman does not preclude the Court from reviewing the state court final judgment here. The principal amount of TD Bank’s claim is not limited to the amount of the state court final judgment. While Rooker-Feldman does not divest this Court of jurisdiction over TD Bank’s claim, the Court may nonetheless be bound by the state court final judg-mént. In light of the pending appeal, the state court action has not ended, which means this Court is essentially confronted with parallel litigation. As the Supreme Court explained in Exxon Mobil, “[i]n parallel litigation, a federal court may be bound to recognize the claim-and issue-preclusive effects of a state court judgment.” When deciding the preclusive effect of a Florida state court judgment, this Court must give that judgment the same preclusive effect that another Florida court would give it. Under the Full Faith and Credit Act, this Court is required to “give state judicial proceedings ‘the same full faith and credit ... as they have by law or usage in the courts of such State ... from which they are taken.’ ” This Court, then, must consider whether a Florida court would give preclusive effect to the state court judgment here. There is no need for the Court to recite the elements of res judicata or collateral estoppel be cause even if they were met, a Florida court would decline to apply res judicata or collateral estoppel under the facts of this" }, { "docid": "8017020", "title": "", "text": "any further collection of the Child Support Debt. 4. Costs may be taxed upon appropriate motion. . 11 U.S.C. § 362(b)(2)(B) provides an exception to the automatic stay for \"the collection of alimony, maintenance or support from property that is not property of the estate.” However, to come within the purview of this exception, there must be a determination that the monies subject of the collection efforts constitute a debt that would be excepted from discharge as a debt in the nature of alimony, maintenance or support under 11 U.S.C. § 523(a)(5). In re Sutton, 250 B.R. 771, 775 (Bankr.S.D.Fla.2000). . The so-called Rooker-Feldman doctrine is shorthand for the jurisdictional decisions of the United States Supreme Court in District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983) and Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923). . This Court did refer to the Rooker-Feldman doctrine in a dischargeability adversary proceeding. Lasky v. Itzler (In re Itzler), 247 B.R. 546 (Bankr.S.D.Fla.2000). That reference, however, was solely addressing the debtor's challenge to the sufficiency of service of process in the earlier state court case. Granting relief from the state court finding that service was sufficient would have constituted improper review of the state court’s decision to enter a default judgment. Simply stated, overturning a state court judgment is barred by Rook-er-Feldman; determining the dischargeability of a judgment debt is not. .Interestingly, the DOR utilized the same laboratory which conducted the first test in 2000, even though it had challenged the authenticity of the first test. . The Eleventh Circuit has not ruled on this issue. In Bush, the Eleventh Circuit specifically stated that it was not reaching the issue of whether a Florida default judgment should be accorded preclusive effect in a bankruptcy dischargeability proceeding. 62 F.3d at 1323 n. 6. Ultimately, the question of whether default judgments satisfy the actually litigated element under Florida collateral estoppel law may be an appropriate question for the Eleventh Circuit to certify to the Florida Supreme Court. If a" }, { "docid": "21273688", "title": "", "text": "the Rooker-Feldman doctrine in a wide variety of circumstances, often in confusing and inconsistent fashion. In 2005, the United States Supreme Court addressed this doctrine that it had spawned in two cases dating from 1923 and 1983, and very severely limited and narrowed the scope of its appropriate application. Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005). . Courts sometimes refer to their own lack of jurisdiction to deal with a claim or issue when they in fact have jurisdiction, but may be precluded from exercising it because an other court, with concurrent jurisdiction, has already dealt with the claim or issue. As noted above, the case law confuses the Rooker-Feldman doctrine with law precluding one trial court from collaterally attacking another trial court’s determination. Rooker-Feldman concerns the absence of appellate jurisdiction of federal trial courts to review rulings of state courts. Preclusion law, on the other hand, deals with the applications of the doctrines of res judicata and collateral estoppel. Some courts deal with claim and issue preclusion as if they were identical matters. They are not, and frequently they are governed by different rules. Claim preclusion or res judicata concerns not re-litigating the same cause of action. Issue preclusion, also referred to as collateral estoppel, concerns not re-litigating a particular issue that is not itself an independent claim or cause of action. Rules for application of res judicata and collateral estoppel vary from jurisdiction to jurisdiction, sometimes with dispositive consequences. Frequently, properly applying the law of claim or issue preclusion involves an initial step of deciding which jurisdiction’s rules for preclusion apply, a step sometimes ignored in reported cases. The nomenclature of preclusion law also varies from jurisdiction to jurisdiction. For example, Florida case law refers to issue preclusion as either collateral estoppel or \"estop-pel by judgment.” See e.g. Masciarelli v. Maco Supply Corp., 224 So.2d 329 (Fla.1969); Avant v. Hammond Jones, Inc., 79 So.2d 423, 424 (Fla.1955); In re Itzler, 247 B.R. 546, 552 (Bankr.S.D.Fla.2000). . Cromwell v. County of Sac, 94 U.S. 351, 352-53, 24 L.Ed." }, { "docid": "7465812", "title": "", "text": "Lance v. Dennis, 546 U.S. 459, 464, 126 S.Ct. 1198, 163 L.Ed.2d 1059 (2006) (per curiam) (noting the “narrowness” of the Rooker-Feldman rule). We have since explained that the Rooker-Feldman doctrine operates as a bar to federal court jurisdiction where the issue before the federal court was “inextricably intertwined” with the state court judgment so that (1) the success of the federal claim would “effectively nullify” the state court judgment, or that (2) the federal claim would succeed “only to the extent that the state court wrongly decided the issues.” Casale v. Tillman, 558 F.3d 1258, 1260 (11th Cir.2009) (per curiam) (internal quotation marks omitted). Fully aware that Rooker-Feldman is a narrow jurisdictional doctrine, we nonetheless hold that Alvarez’s challenge to the Florida courts’ resolution of his petition is squarely within its orbit. Although this Circuit has yet to consider the applicability of the Rooker-Feldman doctrine in the context of a § 1983 suit challenging a state’s failure to produce evidence for DNA testing, the district court relied upon decisions from two of our sister circuits, which have held that the Rooker-Feldman doctrine bars challenges nearly identical to the one raised here. See McKithen v. Brown, 626 F.3d 143, 154-55 (2d Cir.2010) (holding that the Rooker-Feldman doctrine barred the claim that “the state court incorrectly and unconstitutionally interpreted the [New York DNA] statute by not assuming exculpatory results,” and noting that “[t]he proper vehicle for McKithen to challenge the state court’s interpretation of [the statute] was an appeal to the New York Appellate Division”); In re Smith, 349 Fed.Appx. 12, 15 (6th Cir.2009) (“[B]y complaining that the [Michigan] state trial court wrongfully denied him the DNA evidence because rejection of his petition was improper — but not complaining that the statute itself is flawed — Smith is ‘complaining of an injury caused by the state-court judgment and seeking review and rejection of that judgment,’ which is clearly barred by Rooker-Feldman.” (quoting Exxon Mobil, 544 U.S. at 291, 125 S.Ct. 1517)). Alvarez similarly seeks review and rejection of the state court judgment in this case. See Exxon Mobil, 544 U.S. at" }, { "docid": "13790057", "title": "", "text": "Rooker-Feldman would not apply in this context. See Cruz v. Melecio, 204 F.3d 14, 21 n. 5 (1st Cir.2000) (stating, in dictum, that “denying jurisdiction based on a state court judgment that is not eligible for review by the United States Supreme Court simply would not follow from the jurisdictional statute that invigorated the Rooker-Feldman doctrine in the first place”); Hill v. Town of Conway, 193 F.3d 33, 40 (1st Cir.1999) (because “Rooker-Feldman is keyed to § 1257,” it therefore requires a judgment renewable by the Supreme Court). Under this logic, the scope of Rooker-Feldman would be limited to state court judgments susceptible to Supreme Court review — in particular, final judgments, not interlocutory orders. See 28 U.S.C. §§ 1257 (providing for review of “[f]inal judgments or decrees” rendered by highest state courts), 1258 (same for Puerto Rico Supreme Court). Arguably, then, under Cruz and Hill, Rooker-Feldman would not apply to interlocutory orders. That is the argument that the Federación makes here. 2. Relevance of Preclusive Effect Under State Law Our pre-Exxon Mobil case law also recognized, albeit not uniformly, .an alternative conception of “final judgment.” The law of claim and issue preclusion (also known as res judicata and collateral estoppel) provides a notion of “final judgment” that is related to, but distinct from, finality for purposes of Supreme Court review. We have suggested, in some of our cases, that “[o]nly a state court adjudication that itself has preclusive effect can bring the Rooker-Feldman doctrine into play.” Cruz, 204 F.3d at 21 n. 5; see also Badillo-Santiago v. Naveira-Merly, 378 F.3d 1, 6 (1st Cir.2004) (“Rooker-Feldman applies to state or territorial court judgments to which the federal courts would accord pre-clusive effect, and the federal courts ‘can ascribe no greater preclusive force to a state court judgment than would the courts of that state.’ ”) (quoting Cruz, 204 F.3d at 21; internal citation omitted); Pérez-Guzmán v. Gracia, 346 F.3d 229, 238 n. 5 (1st Cir.2003) (same), cert. denied, 541 U.S. 960, 124 S.Ct. 1724, 158 L.Ed.2d 401 (2004). Yet we have also stated, in apparent contradiction to the above cases," }, { "docid": "8017019", "title": "", "text": "Fortunately, the law provides discretion to prevent the gross injustice which would occur in this proceeding by mechanical application of collateral estoppel and this Court exercises that discretion here. Therefore, it is— ORDERED as follows: 1. Plaintiffs Motion for Summary Judgment is granted. 2. The DOR’s Motion for Summary Judgment is denied. 3. The Court will enter a separate Judgment discharging the Child Support Debt and permanently enjoining the DOR and Defendant from enforcement of the debt. FINAL JUDGMENT In accordance with this Court’s September 9, 2005 Memorandum Opinion and Order Granting Plaintiffs Motion for Summary Judgment, it is— ORDERED AND ADJUDGED as follows: 1. Final Judgment is entered in favor of the Plaintiff, Timothy Patrick Hartnett, and against the Defendants, Sara Mustelier and the Florida Department of Revenue. 2. The Child Support Debt (as defined in the Memorandum Opinion) subject of this adversary proceeding is not within the exception to discharge in 11 U.S.C. § 523(a)(5) and therefore is discharged. 3. Pursuant to 11 U.S.C. § 524(a) the Defendants are permanently enjoined from pursuing any further collection of the Child Support Debt. 4. Costs may be taxed upon appropriate motion. . 11 U.S.C. § 362(b)(2)(B) provides an exception to the automatic stay for \"the collection of alimony, maintenance or support from property that is not property of the estate.” However, to come within the purview of this exception, there must be a determination that the monies subject of the collection efforts constitute a debt that would be excepted from discharge as a debt in the nature of alimony, maintenance or support under 11 U.S.C. § 523(a)(5). In re Sutton, 250 B.R. 771, 775 (Bankr.S.D.Fla.2000). . The so-called Rooker-Feldman doctrine is shorthand for the jurisdictional decisions of the United States Supreme Court in District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983) and Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923). . This Court did refer to the Rooker-Feldman doctrine in a dischargeability adversary proceeding. Lasky v. Itzler (In re Itzler), 247 B.R. 546" }, { "docid": "20613210", "title": "", "text": "therefore, an exercise of jurisdiction.” Magee v. Nassau County Med. Ctr., 27 F.Supp.2d 154, 158 (E.D.N.Y.1998) (citing Rhulen Agency, Inc. v. Alabama Ins. Guar. Ass’n., 896 F.2d 674, 678 (2d Cir.1990)). We therefore begin our analysis by considering Defendants’ contention that the adversary proceeding should be dismissed pursuant to Rule 12(b)(1). A. Rule 12(b)(1) Defendants maintain that the Court lacks subject matter jurisdiction in this lawsuit based upon the Rooker-Feld-man doctrine. Rooker-Feldman precludes lower federal courts from acting as appellate courts and reviewing state-court judgments. Defendants argue that the purpose of this adversary proceeding and its desired result is to declare Hopkins the owner of the Property, thereby negating the Judgment of Possession entered by the Civil Court in the Holdover Proceeding. As such, Defendants contend, the adversary proceeding seeks a determination that the Civil Court’s decision was in error, and therefore runs afoul of Rooker-Feld-man. Defendants are mistaken in their understanding of the Rooker-Feldman doctrine. Rooker-Feldman is not applicable to this adversary proceeding. It is true that Rooker-Feldman precludes lower federal courts from exercising appellate jurisdiction over final state-court judgments. See Lance v. Dennis, — U.S.-, 126 S.Ct. 1198, 163 L.Ed.2d 1059 (2006); Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923). However, the Supreme Court has explained that Rooker-Feldman is a narrow doctrine, confined to “cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.” Exxon Mobil, 544 U.S. at 284, 125 S.Ct. 1517. The rationale for the restricted scope of Rooker-Feldman was elaborated by the Supreme Court as follows: A more expansive Rooker-Feldman rule would tend to supplant Congress’ mandate, under the Full Faith and Credit Act, 28 U.S.C. § 1738, that federal courts “ ‘give the same preclusive effect to state court judgments that those" }, { "docid": "22254592", "title": "", "text": "review state court final judgments because that task is reserved for state appellate courts or, as a last resort, the United States Supreme Court. See Feldman, 460 U.S. at 482, 103 S.Ct. at 1315. The doctrine applies both to federal claims raised in the state court and to those “inextricably intertwined” with the state court’s judgment. Id. at 482 n. 16, 103 S.Ct. at 1315 n. 16. It does not apply, however, where a party did not have a “reasonable opportunity to raise his federal claim in state proceedings.” Powell, 80 F.3d at 467 (internal quotation marks omitted). A claim is inextricably intertwined if it would “effectively nullify” the state court judgment, id. (internal quotation marks omitted), or it “succeeds only to the extent that the state court wrongly decided the issues.” Goodman ex rel. Goodman v. Sipos, 259 F.3d 1327, 1332 (11th Cir.2001). While the Supreme Court’s recent Rooker-Feldman decisions have noted the “narrowness” of the rule, see Lance v. Dennis, 546 U.S. 459, 464, 126 S.Ct. 1198, 1201, 163 L.Ed.2d 1059 (2006), they have also confirmed that it continues to apply with full force to “cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284, 125 S.Ct. 1517, 1521-22, 161 L.Ed.2d 454 (2005). Other circuits have recognized an exception to the doctrine where the state court judgment is “void ab initio due to the state court’s lack of jurisdiction,” see, e.g., 4901 Corp. v. Town of Cicero, 220 F.3d 522, 528 (7th Cir.2000); In re James, 940 F.2d 46, 52 (3d Cir.1991), but our circuit has never adopted that exception. Casale now contends that Exxon and Lance have narrowed the Rooker-Feldman doctrine to the point where it is inapplicable to his case. He argues that his FSPA claim is not inextricably intertwined with the state court judgment because it challenges only the state court’s jurisdictional authority and not the merits of that decision. Because the FSPA preempts" } ]

[ { "docid": "5753039", "title": "", "text": "(2nd Cir.1987). Save Brach’s stresses that it does not sell candy and therefore, (1) there is no likelihood of consumer confusion, and (2) the Lanham Act does not apply. As to the former, we note that the Lanham Act is concerned not only with confusion over the source of goods but also with deceptive appearances of approval. See 15 U.S.C. § 1125; Dallas Cowboys Cheerleaders, Inc. v. Pussycat Cinema, Ltd., 604 F.2d 200, 204 (2d Cir.1979); MGM-Pathe Comm. Co. v. Pink Panther Patrol, 774 F.Supp. 869, 874-75 (S.D.N.Y.1991). In MGM-Pathe, the court acknowledged that the use of “Pink Panther” by a gay rights organization could cause the public to think that the trademark owner sponsored the group’s activities and was somehow affiliated with the group. Id. at 873. The court observed that, “[t]his is the kind of confusion that the trademark laws are designed to avoid.” Id. We agree with the reasoning of the court in MGMPathe. Likewise, the court in Dallas Cowboys Cheerleaders rejected a narrow reading of the confusion requirement and stated that, “[i]n order to be confused, a consumer need not believe that the owner of the mark actually produced the item and placed it on the market.” 604 F.2d at 204. Save Brach’s contends that the Lanham Act does not apply to its activities because Save Brach’s does not sell, distribute, or advertise goods or services. See 15 U.S.C. §§ 1114, 1125. We are not persuaded to apply Save Brach’s narrow interpretation of these Lanham Act provisions. Save Brach’s is engaged in soliciting donations, preparing press releases, holding public meetings and press conferences, propounding proposals for the reorganization of Brach’s ownership and/or management, and other activities designed to bring about change in the Brach’s organization and enhance the stability of workers’ jobs. We believe that such work on behalf of its members’ interests constitutes a “service” within the meaning of the Lanham Act. See American Diabetes Ass’n v. Nat’l Diabetes Ass’n, 533 F.Supp. 16 (E.D.Pa.1981) (enjoining defendant’s use of a confusingly similar name where defendant’s activity in commerce was the solicitation of donations), aff'd without op.," } ]

[ { "docid": "19766777", "title": "", "text": "and products or services marketed by others. See L.L. Bean, Inc. v. Drake Publishers, Inc., 811 F.2d 26, 31 (1st Cir.1987). But any injury to UCS ultimately arises from its being criticized on the Raging Bull site. To premise liability on such criticism would raise serious First Amendment concerns. See id. at 33. In L.L. Bean, this court held that the “application of the Maine anti-dilution statute to [defendant’s] noncommercial parody cannot withstand constitutional scrutiny” under the First Amendment, recognizing the role of parody “as a form of social and literary criticism.” Id. (quoting Berlin v. E.C. Publ’ns, Inc., 329 F.2d 541, 545 (2d Cir.1964)) (internal quotation marks omitted). In that case, as in this one, “[i]f the anti-dilution statute were construed as permitting a trademark owner to enjoin the use of his mark in a noncommercial context found to be negative or offensive, then a corporation could shield itself from criticism by forbidding the use of its name in commentaries critical of its conduct.” Id. To be sure, UCS does allege that in this case the criticism is false and misleading. But while such an allegation might be relevant to a defamation claim, it is not determinative of whether UCS’s allegations can support a trademark claim. If the injury-alleged is one of critical commentary, it falls outside trademark law, whether the criticism is warranted or unwarranted. UCS itself makes no distinction between lawful and unlawful criticism in its proposed remedy under trademark law: it requests an injunction that would require Lycos to “permanently and irrevocably delete the UCSY message board” and refrain “from creating] and maintaining ... a UCSY message board ... in the future.” UCS tries to avoid the thrust of cases like L.L. Bean by characterizing Lycos’s use of the UCSY trade name as “commercial.” It certainly appears from the complaint that Lycos derives advertising revenues from the use of its web sites, including Raging Bull, and that Lycos is a commercial venture. This does not imply, however, that Lycos’s use of the UCSY trade name is “commercial” in the relevant sense under trademark law. In L.L." }, { "docid": "6519239", "title": "", "text": "Sales, Inc., 875 F.2d 1026 (2d Cir.1989). There is no evidence of blurring in this case because the alleged infringing materials are plaintiffs own goods. Tarnishment results from unauthorized use which tarnishes, degrades or dilutes the mark’s distinctive quality. Successful tarnishment claims generally involve uses of the.trademark in an “unwholesome or degrading context.” 3 McCarthy on Trademarks and Unfair Competition, § 24.16[1]. “The threat of tarnishment arises when the goodwill and reputation of a plaintiffs trademark is linked to products which are of shoddy quality or which conjure associations that clash with the associations generated by the owner’s lawful use of the mark.” L.L. Bean, Inc. v. Drake Publishers, Inc., 811 F.2d 26 (1st Cir.), cert. denied and appeal dismissed, 483 U.S. 1013, 107 S.Ct. 3254, 97 L.Ed.2d 753 (1987). Plaintiff has not cited any eases where a court has found trademark dilution from use of the trademark holder’s own products. The only evidence plaintiff cites in support of its dilution claim is the fact that a 3M employee was “horrified” because customers had “lost confidence in 3M, or at a minimum, expressed doubt in 3M.” The fact that one of plaintiffs employees had such a concern does not demonstrate a likelihood of success on a trademark dilution claim. 4. Deceptive Trade Practices Claims (Counts Six and Eight) Plaintiff also bases its request for preliminary relief on the Minnesota Deceptive Trade Practices Act and the Lanham Act. Under § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a)(1): Any person who, on or in connection with any goods ... uses in commerce any false or misleading description of fact, or false or misleading representation of fact, which— (A) is likely to cause confusion, or to cause mistake, or to deceive as to ... the origin, sponsorship or approval of his or her goods ..., or (B) in commercial advertising or promotion, misrepresents the nature, characteristics, [or] qualities ... of his or her or another person’s goods ..., shall be hable in a civil action by any person who believes that he or she is or is likely to be damaged" }, { "docid": "6519238", "title": "", "text": "use of these materials when it sold them to defendants together with scraps of first-quality genuine 3M materials. 3. Trademark Dilution Claim (Count Two) Section 43(c) of the Lanham Act provides a remedy for dilution of famous trademarks. Under the statute, the owner of a famous mark is entitled to an injunction against another person’s commercial use of a mark if it causes dilution of the distinctive quality of the mark. 15 U.S.C. § 1125(c). Trademark dilution is “a weakening or reduction in the ability of a mark to clearly and unmistakably distinguish one source.” 3 McCarthy, Trademarks and Unfair Competition § 24.13[l][a]. Trademark dilution may be found even where there is no likelihood of consumer confusion. Id. at § 24.13[l][b]. Trademark dilution may involve either “blurring” or “tarnishment” of the mark. Blurring occurs when, although consumers are not confused as to the source of a mark, the mark’s appearance on other, unrelated goods weakens the distinctive link between the mark and the trademark holder’s goods. See, e.g., Mead Data Cent., Inc. v. Toyota Motor Sales, Inc., 875 F.2d 1026 (2d Cir.1989). There is no evidence of blurring in this case because the alleged infringing materials are plaintiffs own goods. Tarnishment results from unauthorized use which tarnishes, degrades or dilutes the mark’s distinctive quality. Successful tarnishment claims generally involve uses of the.trademark in an “unwholesome or degrading context.” 3 McCarthy on Trademarks and Unfair Competition, § 24.16[1]. “The threat of tarnishment arises when the goodwill and reputation of a plaintiffs trademark is linked to products which are of shoddy quality or which conjure associations that clash with the associations generated by the owner’s lawful use of the mark.” L.L. Bean, Inc. v. Drake Publishers, Inc., 811 F.2d 26 (1st Cir.), cert. denied and appeal dismissed, 483 U.S. 1013, 107 S.Ct. 3254, 97 L.Ed.2d 753 (1987). Plaintiff has not cited any eases where a court has found trademark dilution from use of the trademark holder’s own products. The only evidence plaintiff cites in support of its dilution claim is the fact that a 3M employee was “horrified” because customers had “lost" }, { "docid": "9752862", "title": "", "text": "to make a point of social commentary, see, e.g., Stop the Olympic Prison v. United States Olympic Committee, 489 F.Supp. 1112, 1123 (S.D.N.Y.1980) (poster used defendant’s trademark to criticize trademark owner’s involvement with proposed prison; injunction denied), to entertain, see, e.g., L.L. Bean v. Drake Publishers, Inc., 811 F.2d 26 (1st Cir.) (satiric magazine parodying L.L. Bean catalogue; injunction denied), cert. denied, 483 U.S. 1013, 107 S.Ct. 3254, 97 L.Ed.2d 753 (1987), or perhaps both to comment and entertain, see, e.g., Girl Scouts of USA v. Personality Posters Manufacturing Co., 304 F.Supp. 1228, 1233 (S.D.N.Y.1969) (poster depicting pregnant Girl Scout to suggest humorously that trademark owner’s traditional image of chastity and wholesomeness was somewhat illusory; injunction denied). Such uses risk some dilution of the identifying or selling power of the mark, but that risk is generally tolerated in the interest of maintaining broad opportunities for expression. Cf. Rogers v. Grimaldi, 875 F.2d 994, 1000 (2d Cir.1989) (risk that film title might mislead and violate Lanham Act outweighed by danger of restricting artistic expression). Sellers of commercial products who wish to attract attention to their commercials or products and thereby increase sales by poking fun at widely recognized marks of noncompeting products, see, e.g., Eveready Battery Co., Inc. v. Adolph Coors Co., 765 F.Supp. 440 (N.D.Ill.1991) (beer manufacturer spoofed Energizer Bunny trademark; preliminary injunction under Lanham Act and state dilution statute denied), risk diluting the selling power of the mark that is made fun of. When this occurs, not for worthy purposes of expression, but simply to sell products, that purpose can easily be achieved in other ways. The potentially diluting effect is even less deserving of protection when the object of the joke is the mark of a directly competing product. See, e.g., Wendy’s International, Inc. v. Big Bite, Inc., 576 F.Supp. 816 (S.D.Ohio 1983) (“fast-food” chain made fun of “fast-food” competitors’ trademarks; preliminary injunction granted under Lan-ham Act). The line-drawing in this area becomes especially difficult when a mark is parodied for the dual purposes of making a satiric comment and selling a somewhat competing product. See, e.g., Yankee" }, { "docid": "18873454", "title": "", "text": "second form of dilution—commonly referred to as “tarnishment.” Courts have frequently enjoined the “tarnishment” of a mark through association with unsavory goods, persons or services. See, e.g., Chemical Corp. of America v. Anheuser-Busch, Inc., 306 F.2d 433, 436-38 (5th Cir.1962) (enjoining use of ‘Where there’s life ... there’s bugs!” slogan), cert. denied, 372 U.S. 965, 83 S.Ct. 1089, 10 L.Ed.2d 129 (1963); Original Appalachian Artworks, Inc. v. Topps Chewing Gum, Inc., 642 F.Supp. 1031, 1039 (N.D.Ga.1986) (tarnishment “occurs when a defendant uses the same or similar marks in a way that creates an undesirable, unwholesome, or unsavory mental association with the plaintiffs mark”); . Pillsbury, 215 U.S.P.Q. at 135 (enjoining cartoon portrayal of trade characters engaged in sexual intercourse and fellatio published in adult magazine); American Express Co. v. Vibra Approved Laboratories Corp., 10 U.S.P.Q.2d 2006, 2013, 1989 WL 39679 (S.D.N.Y.1989) (enjoining defendant’s use of plaintiffs trademark in distribution of condom credit card); Coca-Cola Co. v. Gemini Rising, Inc., 346 F.Supp. 1183, 1190-91 (E.D.N.Y.1972) (enjoining “Enjoy Cocaine” posters because customers might be “turned off’ by so-called “spoof’). In this case, the majority of those surveyed construed the ad parody as suggesting that Miehelob beer contains oil. This relationship obviously tarnishes the marks’ carefully-developed images. Moreover, the tar-nishment results from a negative, although vague, statement about the quality of the product represented by the trademark. The plain language of the Missouri anti-dilution statute reaches this situation. Balducci argues that the application of the anti-dilution statute to enjoin the ad parody’s publication would violate the First Amendment. Balducci contends that the First Amendment prevents any construction of an anti-dilution statute that would enjoin perceived tarnishment in a non-commercial context. The only case we discovered which supports such a sweeping statement is L.L. Bean, Inc. v. Drake Publishers, Inc., 811 F.2d 26 (1st Cir.), cert. denied and appeal dismissed, 483 U.S. 1013, 107 S.Ct. 3254, 97 L.Ed.2d 753 (1987). In Bean, the First Circuit considered a parody of the plaintiffs mail-order catalog. The parody, contained in an adult erotic magazine, consisted of a two-page article entitled' “L.L. Beam’s Back-to-School-Sex-Catalog.” (Emphasis added.) The article" }, { "docid": "15669300", "title": "", "text": "to restrict.” Id. The court went on to observe that “[defendants’ only activity is trying to communicate tHeir ideas. Purveying points of view is not a service.” Id. Defendant also relies on L.L. Bean, Inc. v. Drake Publishers, Inc., 811 F.2d 26 (1st Cir.), cert. denied, 483 U.S. 1013, 107 S.Ct. 3254, 97 L.Ed.2d 753 (1987), which followed the Lucasfilm analysis. L.L. Bean involved an effort by the famous catalogue seller of Maine woods outdoor gear to enjoin distribution of a magazine’s parody of the L.L. Bean catalogue which, under an intentionally similar mark and trade dress, pretended to offer “Back-to-School-Sex” products by illustrations showing nude models using the products in provocative poses. Noting that the defendant’s publication was intended solely as humorous parody of the plaintiff and in fact offered nothing for sale, the court found defendant used plaintiffs mark “solely for noncommercial purposes” and that its “parody constitutes an editorial or artistic, rather than a commercial, use of plaintiffs mark.” 811 F.2d at 32. As for Lucasfilm, we respectfully suggest that the court reached the right result but did not correctly describe the reason. If the court were right that communicating ideas and purveying points of view is not a service subject to the controls established by trademark law, then one who established a learning center would be free to call it Harvard or Yale University. We do not think the Lucas-film court intended such a rule. In our view, the justification for denial of relief in that case lay in the fact that the defendants were using plaintiffs mark not in a manner that would create confusion as to source, but rather as part of a message whose meaning depended on reference to plaintiffs product. In describing the SDI as “Star Wars,” the defendants intended to communicate the message that the Pentagon planners of SDI were spending the nation’s money and risking its security in a fantasy-driven quest comparable to plaintiffs films. Thus the point was not so much that the defendants were broadly engaged in disseminating ideas, which would not take them outside the scope of" }, { "docid": "21085373", "title": "", "text": "Stores, Inc., 737 F.Supp. 983 (S.D.Tex.1990) (applying Texas dilution statute court finds that existence of 226 registered service marks beginning with “service” and fact that 37 jewelers nationwide use \"service\" in their trade name does not render mark \"Service Merchandise” weak). Nor do we have cause to discuss the district court’s finding that Oxxford failed to make a \"threshold showing of some mental association between the protected mark and the alleged diluter.\" Fruit of the Loom, Inc. v. Girouard, 994 F.2d 1359, 1363 (9th Cir. 1993). See also 3 McCarthy, § 24:70; L.L. Bean, Inc. v. Drake Publishers, Inc., 811 F.2d 26, 31 (1st Cir.) (association between L.L.Bean catalogue and \"L.L. Beam's Back-to-School Sex Catalogue” tarnished former’s business reputation), cert. denied, 483 U.S. 1013, 107 S.Ct. 3254, 97 L.Ed.2d 753 (1987); Dallas Cowboys Cheerleaders, Inc. v. Pussycat Cinema, Ltd., 604 F.2d 200, 205 (2d Cir.1979) (movie \"Debbie Does Dallas” found to tarnish business reputation of Dallas Cowboy Cheerleaders). Both L.L. Bean and Dallas Cowboys Cheerleaders, Inc. involved a situation in which the complaining party’s “trademark is used without authorization in a context which diminishes the positive association of the mark.” L.L. Bean, 811 F.2d at 31. There is no claim here that Exxon makes any use of Oxxford's trademark. Moreover, in these cases the offending party was attempting to benefit-albeit by way of parody-from the plaintiff’s mark and its public recognition. Nothing of the kind is asserted here. . Some courts have found a third manner in which \"likelihood of dilution” may be proven under certain state statutes, namely an injury to the value of the mark caused by actual or potential consumer confusion. See Jordache Enterprises, Inc. v. Hogg Wyld, Ltd., 828 F.2d 1482, 1489 (10th Cir.1987); L.L. Bean, Inc. v. Drake Publishers, Inc., 811 F.2d 26, 30 (1st Cir.), cert. denied, 483 U.S. 1013, 107 S.Ct. 3254, 97 L.Ed.2d 753 (1987). See also Deere & Co., 41 F.3d at 44 (”[b]ut the blurring/tamishment dichotomy does not necessarily represent the full range of uses that can dilute a mark under New York law\") (citations omitted). The Texas statute we" }, { "docid": "23493019", "title": "", "text": "Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 455-56, 98 S.Ct. 1912, 1918-19, 56 L.Ed.2d 444 (1978)). “The legitimate aim of the anti-dilution statute is to prohibit the unauthorized use of another’s trademark in order to market incompatible products or services”, and this constitutes a “legitimate regulation of commercial speech.” L.L. Bean, Inc. v. Drake Publishers, Inc., 811 F.2d 26, 32-33 (1st Cir.), cert. denied, 483 U.S. 1013, 107 S.Ct. 3254, 97 L.Ed.2d 753 (1987). “Advertising is the primary means by which the connection between a name and a company is established ... ”, Beneficial Corp. v. Beneficial Capital Corp., 529 F.Supp. 445, 448 (S.D.N.Y.1982), and oral advertising is done primarily on radio and television. When Mead’s speech expert was asked whether there were instances in which LEXUS and LEXIS would be pronounced differently, he replied “Yes, although a deliberate attempt must be made to do so.... They can be pronounced distinctly but they are not when they are used in common parlance, in everyday language or speech.” We take it as a given that television and radio announcers usually are more careful and precise in their diction than is the man on the street. Moreover, it is the rare television commercial that does not contain a visual reference to the mark and product, which in the instant case would be the LEXUS automobile. We conclude that in the field of commercial advertising, which is the field subject to regulation, there is no substantial similarity between Mead’s mark and Toyota’s. There are additional factors that militate against a finding of dilution in the instant case. Such a finding must be based on two elements. First, plaintiff’s mark must possess a distinctive quality capable of dilution. Allied Maintenance Corp. v. Allied Mechanical Trades, Inc., 42 N.Y.2d 538, 545, 399 N.Y.S.2d 628, 369 N.E.2d 1162 (1977). Second, plaintiff must show a likelihood of dilution, Sally Gee, Inc. v. Myra Hogan, Inc., supra, 699 F.2d at 625. As section 368-d expressly states, a plaintiff need not show either competition between its product or service and that of the defendant or a likelihood" }, { "docid": "10483777", "title": "", "text": "of a trademark in a noncommercial setting such as an editorial or artistic context.”), cert. denied, 483 U.S. 1013, 107 S.Ct. 3254, 97 L.Ed.2d 753 (1987). When the purpose of the use of the trademark is to comment upon the mark itself, there is no alternative to use, compare Dallas Cowboys, 604 F.2d at 206, and no intent to market incompatible goods or services, compare L.L. Bean, 811 F.2d at 33. Thus a pure parody should be protected under either the first or third regime. The two approaches diverge when, as in this case, the purpose of the use of the mark is to comment upon another issue. Even if the use would also increase the sales of the commentary, the use remains noncommercial. See Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 762, 96 S.Ct. 1817, 1825-26, 48 L.Ed.2d 346 (1976) (defining commercial speech as “speech which does no more than propose a commercial transaction”); Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 66-67, 103 S.Ct. 2875, 2879-80, 77 L.Ed.2d 469 (1983) (analyzing commercial and noncommercial elements of speech to determine which predominated). The first approach would deny the use of the mark First Amendment pro tection, while the third would deny the Lanham Act coverage over the use. The Court feels that the weight of Supreme Court authority indicates that it would favor adoption of the first approach as adequately accommodating the narrow instances when trademark protection cannot be viewed as a reasonable time, place, or manner restriction. See SFAA, 483 U.S. at 536, 541, 107 S.Ct. at 2981, 2983 (implying trademark protection can be viewed as a reasonable time, place, or manner restriction); cf. Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 575, 97 S.Ct. 2849, 2857, 53 L.Ed.2d 965 (1977) (“[W]e are quite sure that the First and Fourteenth Amendments do not immunize the media when they broadcast a performer’s entire act without his consent. The Constitution no more prevents a State from requiring respondent to compensate petitioner for broadcasting his act on television that it would privilege respondent to film" }, { "docid": "23550447", "title": "", "text": "and not selling any goods or services, violated the Lanham Act because it “prevented users from obtaining or using PETA’s goods or services.” Id. at 365. However, in PETA, the defendant’s website “provide[d] links to more than 30 commercial operations offering goods and services.” Id. at 366. To the extent that the PETA court held that the Lanham Act’s commercial use requirement is satisfied because the defendant’s use of the plaintiffs mark as the domain name may deter customers from reaching the plaintiffs site itself, we respectfully disagree with that rationale. While it is true that www.BosleyMedical.com is not sponsored by Bosley Medical, it is just as true that it is about Bosley Medical. The PETA approach would place most critical, otherwise protected consumer commentary under the restrictions of the Lanham Act. Other courts have also rejected this theory as over-expansive. See L.L. Bean, Inc. v. Drake Publishers, Inc., 811 F.2d 26, 33 (1st Cir.1987); see also Ford Motor Co. v. 2600 Enters., 177 F.Supp.2d 661, 664 (E.D.Mich.2001). The PETA court’s reading of the Lan-ham Act would encompass almost all uses of a registered trademark, even when the mark is merely being used to identify the object of consumer criticism. This broad view of the Lanham Act is supported by neither the text of the statute nor the history of trademark laws in this country. “[Trademark laws are intended to protect” consumers from purchasing the products of an infringer “under the mistaken assumption that they are buying a product produced or sponsored by [the trademark holder].” Beneficial Corp. v. Beneficial Capital Corp., 529 F.Supp. 445, 450 (S.D.N.Y.1982). Limiting the Lanham Act to cases where a defendant is trying to profit from a plaintiffs trademark is consistent with the Supreme Court’s view that “[a trademark’s] function is simply to designate the goods as the product of a particular trader and to protect his good will against the sale of another’s product as his.” United Drug Co. v. Theodore Rectanus Co., 248 U.S. 90, 97, 39 S.Ct. 48, 63 L.Ed. 141 (1918); see also 1 McCarthy on Trademarks and Unfair Competition §" }, { "docid": "21085374", "title": "", "text": "is used without authorization in a context which diminishes the positive association of the mark.” L.L. Bean, 811 F.2d at 31. There is no claim here that Exxon makes any use of Oxxford's trademark. Moreover, in these cases the offending party was attempting to benefit-albeit by way of parody-from the plaintiff’s mark and its public recognition. Nothing of the kind is asserted here. . Some courts have found a third manner in which \"likelihood of dilution” may be proven under certain state statutes, namely an injury to the value of the mark caused by actual or potential consumer confusion. See Jordache Enterprises, Inc. v. Hogg Wyld, Ltd., 828 F.2d 1482, 1489 (10th Cir.1987); L.L. Bean, Inc. v. Drake Publishers, Inc., 811 F.2d 26, 30 (1st Cir.), cert. denied, 483 U.S. 1013, 107 S.Ct. 3254, 97 L.Ed.2d 753 (1987). See also Deere & Co., 41 F.3d at 44 (”[b]ut the blurring/tamishment dichotomy does not necessarily represent the full range of uses that can dilute a mark under New York law\") (citations omitted). The Texas statute we consider, while it expressly declares that consumer confusion is not a prerequisite to the cause of action it creates, does not clearly indicate whether a cause of action premised upon actual or potential consumer confusion alone falls under its aegis. See 3 McCarthy, § 24:70 (discussing differences between dilution and likelihood of confusion standard). Our resolution of this case does not require us to answer this question, and thus we merely note it in passing. . Exxon claims that the material facts relevant to laches are undisputed and therefore review is more properly conducted under an abuse of discretion standard. National Ass’n of Gov't Employees v. City Pub. Serv. Bd., 40 F.3d 698, 707 (5th Cir.1994). Given the summary judgment context below, we review the record de novo to determine what facts material to the laches issue are not subject to genuine dispute; based on those facts, we review the district court's lache's ruling under an abuse of discretion standard. Id. . Some Texas courts have also noted, albeit usually in the context of laches" }, { "docid": "18873455", "title": "", "text": "so-called “spoof’). In this case, the majority of those surveyed construed the ad parody as suggesting that Miehelob beer contains oil. This relationship obviously tarnishes the marks’ carefully-developed images. Moreover, the tar-nishment results from a negative, although vague, statement about the quality of the product represented by the trademark. The plain language of the Missouri anti-dilution statute reaches this situation. Balducci argues that the application of the anti-dilution statute to enjoin the ad parody’s publication would violate the First Amendment. Balducci contends that the First Amendment prevents any construction of an anti-dilution statute that would enjoin perceived tarnishment in a non-commercial context. The only case we discovered which supports such a sweeping statement is L.L. Bean, Inc. v. Drake Publishers, Inc., 811 F.2d 26 (1st Cir.), cert. denied and appeal dismissed, 483 U.S. 1013, 107 S.Ct. 3254, 97 L.Ed.2d 753 (1987). In Bean, the First Circuit considered a parody of the plaintiffs mail-order catalog. The parody, contained in an adult erotic magazine, consisted of a two-page article entitled' “L.L. Beam’s Back-to-School-Sex-Catalog.” (Emphasis added.) The article portrayed nude models using fictitious products in sexually explicit manners and contained facsimiles of Bean’s trademarks. The court concluded that applying the Maine anti-dilution statute would be unconstitutional because the First Amendment protects the “use of a trademark in a noncommercial setting such as an editorial or artistic context.” Id. at 33. We reject Balducci’s First Amendment argument. We begin by observing that Bal-ducci’s analysis conflicts with the holding of several cases. See, e.g., Pillsbury, 215 U.S.P.Q. at 135; Coca-Cola Co., 346 F.Supp. at 1191-93. Moreover, the facts in Bean differ significantly from the facts in this appeal. First, the catalog parody made no derogatory comment about Bean’s products’ quality. Balducci’s parody, as demonstrated by the survey, suggested that Anheuser-Busch products were contaminated with oil. This unsupported attack was not even remotely necessary to Balducei’s goals of commenting on the Gasconade oil spill and water pollution generally. Nor does Balducei’s asserted purpose of commenting on Anheuser-Busch’s brand proliferation give it carte blanche to attack Anheuser-Busch products. Second, and more importantly, the catalog parody was located" }, { "docid": "9752861", "title": "", "text": "Drecq, 71 Misc.2d 733, 734, 336 N.Y.S.2d 801, 802 (N.Y.Sup.Ct.1972) (stating that section 368-d “protects ... against any use of the symbol that may drain off any of the potency of the mark”). In giving content to dilution beyond the categories of blurring or tarnishment, however, we must be careful not to broaden section 368-d to prohibit all uses of a distinctive mark that the owner prefers not be made. Several different contexts may conveniently be identified. Sellers of commercial products may wish to use a competitor’s mark to identify the competitor’s product in comparative advertisements. See, e.g., R.G. Smith v. Chanel, Inc., 402 F.2d 562, 567 (9th Cir.1968) (perfume manufacturer used competitor’s mark in comparative advertisements; injunction denied). As long as the mark is not altered, such use serves the beneficial purpose of imparting factual information about the relative merits of competing products and poses no risk of diluting the selling power of the competitor’s mark. Satirists, selling no product other than the publication that contains their expression, may wish to parody a mark to make a point of social commentary, see, e.g., Stop the Olympic Prison v. United States Olympic Committee, 489 F.Supp. 1112, 1123 (S.D.N.Y.1980) (poster used defendant’s trademark to criticize trademark owner’s involvement with proposed prison; injunction denied), to entertain, see, e.g., L.L. Bean v. Drake Publishers, Inc., 811 F.2d 26 (1st Cir.) (satiric magazine parodying L.L. Bean catalogue; injunction denied), cert. denied, 483 U.S. 1013, 107 S.Ct. 3254, 97 L.Ed.2d 753 (1987), or perhaps both to comment and entertain, see, e.g., Girl Scouts of USA v. Personality Posters Manufacturing Co., 304 F.Supp. 1228, 1233 (S.D.N.Y.1969) (poster depicting pregnant Girl Scout to suggest humorously that trademark owner’s traditional image of chastity and wholesomeness was somewhat illusory; injunction denied). Such uses risk some dilution of the identifying or selling power of the mark, but that risk is generally tolerated in the interest of maintaining broad opportunities for expression. Cf. Rogers v. Grimaldi, 875 F.2d 994, 1000 (2d Cir.1989) (risk that film title might mislead and violate Lanham Act outweighed by danger of restricting artistic expression). Sellers of" }, { "docid": "21085372", "title": "", "text": "Trademark Law 200 (2d ed.1991); Minnesota Pet Breeders, Inc. v. Schell & Kampeter, Inc., 41 F.3d 1242, 1244 (8th Cir. 1994); Home Shopping Network, Inc. v. Happy Mind, Inc., 931 F.2d 886, 1991 WL 68834 (4th Cir. 1991) (unpublished disposition); Oreck Corp. v. U.S. Floor Systems, Inc., 803 F.2d 166, 168 (5th Cir. 1986), cert. denied, 481 U.S. 1069, 107 S.Ct. 2462, 95 L.Ed.2d 871 (1987). . \"It is clear that anti-dilution statutes ... are designed to protect only strong, well-recognized marks.” Accuride International, Inc. v. Accuride Corp., 871 F.2d 1531, 1539 (9th Cir.1989) (citations omitted). See also Deere & Co. v. MTD Products, Inc., 41 F.3d 39, 42 (2d Cir.1994) (to prevail on dilution claim under New York law “a plaintiff must prove, first, that its trademark either is of truly distinctive quality or has acquired secondary meaning”) (citation omitted). Our disposition of this case renders unnecessary a consideration of Oxxford’s contention that the district court erred in finding that \"Oxxford\" was not a distinctive mark. See, however, Service Merchandise Co. v. Service Jewelry Stores, Inc., 737 F.Supp. 983 (S.D.Tex.1990) (applying Texas dilution statute court finds that existence of 226 registered service marks beginning with “service” and fact that 37 jewelers nationwide use \"service\" in their trade name does not render mark \"Service Merchandise” weak). Nor do we have cause to discuss the district court’s finding that Oxxford failed to make a \"threshold showing of some mental association between the protected mark and the alleged diluter.\" Fruit of the Loom, Inc. v. Girouard, 994 F.2d 1359, 1363 (9th Cir. 1993). See also 3 McCarthy, § 24:70; L.L. Bean, Inc. v. Drake Publishers, Inc., 811 F.2d 26, 31 (1st Cir.) (association between L.L.Bean catalogue and \"L.L. Beam's Back-to-School Sex Catalogue” tarnished former’s business reputation), cert. denied, 483 U.S. 1013, 107 S.Ct. 3254, 97 L.Ed.2d 753 (1987); Dallas Cowboys Cheerleaders, Inc. v. Pussycat Cinema, Ltd., 604 F.2d 200, 205 (2d Cir.1979) (movie \"Debbie Does Dallas” found to tarnish business reputation of Dallas Cowboy Cheerleaders). Both L.L. Bean and Dallas Cowboys Cheerleaders, Inc. involved a situation in which the complaining party’s “trademark" }, { "docid": "5302176", "title": "", "text": "T-shirts. His designs fit a conventional definition of trademark parody. They embody “a simple form of entertainment conveyed by juxtaposing the irreverent representation of the trademark with the idealized image created by the mark’s owner.” L.L. Bean, Inc. v. Drake Publishers, Inc., 811 F.2d 26, 34 (1st Cir.), cert. denied, 483 U.S. 1013, 107 S.Ct. 3254, 97 L.Ed.2d 753 (1987). When confronted with trademark parody, some courts have adopted a balancing test, weighing the public interest in avoiding consumer confusion against the public interest in free expression. See, e.g., Cliffs Notes, Inc. v. Bantam Doubleday Dell Publishing Group, Inc., 886 F.2d 490 (2d Cir.1989) (considering the multifactor likelihood of confusion analysis “at best awkward in the context of parody”). Absent contrary guidance from the Court of Appeals for the First Circuit, this court sees no reason to abandon the present likelihood of confusion analysis, “provided that it is applied with special sensitivity to the purposes of trademark law and the First Amendment rights of [defendant].” Anheuser-Busch, Inc. v. Balducci Publications, 814 F.Supp. 791, 795-96 (E.D.Mo.1993). “[W]here a party chooses a mark as a parody of an existing mark, the intent is not necessarily to confuse the public but rather to amuse.” Jordache, 828 F.2d at 1486. Of course, the mere fact that a party intends to create a parody does not preclude the possibility of confusion. Indeed, “[a] parody which causes confusion in the marketplace implicates the legitimate commercial and consumer protection objectives of trademark law.” L.L. Bean, 811 F.2d at 32 n. 3. As the Court of Appeals for the Second Circuit has observed: A parody must convey two simultaneous— and contradictory — messages: that it is the original, but also that it is not the original and is instead a parody. To the extent that it does only the former but not the latter, it is not only a poor parody but also vulnerable under trademark law, since the customer will be confused. Cliffs Notes, 886 F.2d at 494 (emphasis in original). See also Jordache, 828 F.2d at 1486 (“A parody relies upon a difference from the original" }, { "docid": "23550446", "title": "", "text": "not make any such objections. Bosley failed to request further discovery under Federal Rule of Civil Procedure 56(f), but instead moved for summary judgment itself. Although Bosley’s reply brief supporting its own motion for summary judgment complained about limited discovery in a footnote, Bosley did not move for leave to take discovery. The district court did not abuse its discretion in granting the summary judgment without permitting further discovery. Bosley’s third and final argument that it satisfied the commercial use requirement of the Lanham Act is that Kremer’s use of Bosley’s trademark was in connection with Bosley’s goods and services. In other words, Kremer used the mark “in connection with goods and services” because he prevented users from obtaining the plaintiffs goods and services. See People for the Ethical Treatment of Animals v. Doughney, 263 F.3d 359 (4th Cir.2001) (“PETA”). In PETA, defendants created a site that promoted ideas antithetical to those of the PETA group. Id. at 362-63. The Fourth Circuit held that the defen dant’s parody site, though not having a commercial purpose and not selling any goods or services, violated the Lanham Act because it “prevented users from obtaining or using PETA’s goods or services.” Id. at 365. However, in PETA, the defendant’s website “provide[d] links to more than 30 commercial operations offering goods and services.” Id. at 366. To the extent that the PETA court held that the Lanham Act’s commercial use requirement is satisfied because the defendant’s use of the plaintiffs mark as the domain name may deter customers from reaching the plaintiffs site itself, we respectfully disagree with that rationale. While it is true that www.BosleyMedical.com is not sponsored by Bosley Medical, it is just as true that it is about Bosley Medical. The PETA approach would place most critical, otherwise protected consumer commentary under the restrictions of the Lanham Act. Other courts have also rejected this theory as over-expansive. See L.L. Bean, Inc. v. Drake Publishers, Inc., 811 F.2d 26, 33 (1st Cir.1987); see also Ford Motor Co. v. 2600 Enters., 177 F.Supp.2d 661, 664 (E.D.Mich.2001). The PETA court’s reading of the Lan-ham" }, { "docid": "18873448", "title": "", "text": "and other products containing words such as “Mutants of Omaha” and bearing symbols with a likeness to plaintiffs Indian head logo. Id. at 398. In dicta, the court stated that the injunction “in no way infringes upon the constitutional protection the First Amendment would provide were Novak to present an editorial parody in a book, magazine, or film.” Id. at 402. This language does not support absolute protection for editorial parody, but merely reflects the fact that a parody contained in an obvious editorial context is less likely to confuse, and thus more deserving of protection than those displayed on a product. See Nike, 6 F.3d at 1228; Jordache Enters., Inc. v. Hogg Wyld, Ltd., 625 F.Supp. 48, 55 (D.N.M.1985), aff'd 828 F.2d 1482 (10th Cir.1987); 3 J.T. McCarthy § 31:38 at 31-213. A parody creating a likelihood of confusion may be subject to a trademark infringement action. Cliffs Notes, 886 F.2d at 494 (confusing parodies are “vulnerable under trademark law”); L.L. Bean, Inc. v. Drake Publishers, Inc., 811 F.2d 26, 32 n. 3 (1st Cir.) (confusing parodies “implicate!] the legitimate commercial and consumer protection objectives of trademark law”), cert. denied and appeal dismissed 483 U.S. 1013, 107 S.Ct. 3254, 97 L.Ed.2d 753 (1987). There is no simple, mechanical rule by which courts can determine when a potentially confusing parody falls within the First Amendment’s protective reach. Thus, “in deciding the reach of the Lanham Act in any case where an expressive work is alleged to infringe a trademark, it is appropriate to weigh the public interest in free expression against the public interest in avoiding consumer confusion.” Cliffs Notes, 886 F.2d at 494. “This approach takes into account the ultimate test in trademark law, namely, the likelihood of confusion as to the source of the goods in question.” Id. at 495 (internal quotations omitted). In applying this balancing test, we begin with the recognition that parody serves as a “humorous form of social commentary and literary criticism that dates back as far as Greek antiquity.” Bean, 811 F.2d at 28. Balducci purports to comment on several matters, including environmental" }, { "docid": "10483776", "title": "", "text": "lower standard of protection accorded commercial speech; it did not state any general proposition as to governmental authority to ban misleading noncommercial speech. Id. at 562-63, 100 S.Ct. at 2349-50. Vidal Sassoon dealt with an advertisement, also a clear form of commercial speech. 661 F.2d at 276 n. 8. Thus the Second Circuit’s generation of this balancing test for noncommercial speech must be viewed as entirely sui generis. The Eighth Circuit’s unquestioning adoption of it is not very persuasive; both its decision to apply the test and its determination that a likelihood of confusion existed are rather questionable. See Anheuser-Busch, 28 F.3d at 774-77. The third approach calls for a straightforward refusal to apply the Lanham Act to noncommercial speech. See L.L. Bean, Inc. v. Drake Publishers, Inc., 811 F.2d 26, 33 (1st Cir.1987) (“The legitimate aim of the anti-dilution statute is to prohibit the unauthorized use of another’s trademark in order to market incompatible products or services. The Constitution does not, however, permit the range of the anti-dilution statute to encompass the unauthorized use of a trademark in a noncommercial setting such as an editorial or artistic context.”), cert. denied, 483 U.S. 1013, 107 S.Ct. 3254, 97 L.Ed.2d 753 (1987). When the purpose of the use of the trademark is to comment upon the mark itself, there is no alternative to use, compare Dallas Cowboys, 604 F.2d at 206, and no intent to market incompatible goods or services, compare L.L. Bean, 811 F.2d at 33. Thus a pure parody should be protected under either the first or third regime. The two approaches diverge when, as in this case, the purpose of the use of the mark is to comment upon another issue. Even if the use would also increase the sales of the commentary, the use remains noncommercial. See Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 762, 96 S.Ct. 1817, 1825-26, 48 L.Ed.2d 346 (1976) (defining commercial speech as “speech which does no more than propose a commercial transaction”); Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 66-67, 103 S.Ct. 2875, 2879-80, 77" }, { "docid": "23493018", "title": "", "text": "were to substitute the letter “u” for the letter “i” in “axis”, we would not pronounce it as we now do. In short, we agree with the testimony of Toyota’s speech expert, who testified: Of course, anyone can pronounce “lexis” and “lexus” the same, either both with an unstressed I or both with an unstressed U, or schwa — or with some other sound in between. But, properly, the distinction between unstressed I and unstressed U, or schwa, is a standard one in English; the distinction is there to be made in ordinary, reasonably careful speech. In addition, we do not believe that “everyday spoken English” is the proper test to use in deciding the issue of similarity in the instant case. Under the Constitution, there is a “ ‘commonsense’ distinction between speech proposing a commercial transaction, which occurs in an area traditionally subject to government regulation, and other varieties of speech.” Central Hudson Gas & Electric Corp. v. Public Service Comm’n, 447 U.S. 557, 562, 100 S.Ct. 2343, 2349, 65 L.Ed.2d 341 (1980) (quoting Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 455-56, 98 S.Ct. 1912, 1918-19, 56 L.Ed.2d 444 (1978)). “The legitimate aim of the anti-dilution statute is to prohibit the unauthorized use of another’s trademark in order to market incompatible products or services”, and this constitutes a “legitimate regulation of commercial speech.” L.L. Bean, Inc. v. Drake Publishers, Inc., 811 F.2d 26, 32-33 (1st Cir.), cert. denied, 483 U.S. 1013, 107 S.Ct. 3254, 97 L.Ed.2d 753 (1987). “Advertising is the primary means by which the connection between a name and a company is established ... ”, Beneficial Corp. v. Beneficial Capital Corp., 529 F.Supp. 445, 448 (S.D.N.Y.1982), and oral advertising is done primarily on radio and television. When Mead’s speech expert was asked whether there were instances in which LEXUS and LEXIS would be pronounced differently, he replied “Yes, although a deliberate attempt must be made to do so.... They can be pronounced distinctly but they are not when they are used in common parlance, in everyday language or speech.” We take it as a given" }, { "docid": "15669299", "title": "", "text": "relies heavily on Lucasfilm Ltd. v. High Frontier, 622 F.Supp. 931 (D.D.C. 1985), where the court suggested that “[purveying points of view is not a service” contemplated by the Lanham Act. Id. at 934. We disagree with this portion of the court’s discussion in Lucasfilm. That suit was brought by the creator of the Star Wars film trilogy and owner of the Star Wars mark. Claiming harmful dilution of its mark, the plaintiff sought to prevent public interest groups from using the term Star Wars to identify the Reagan Administration’s Strategic Defense Initiative. The court dismissed the complaint. Observing that relief depended on a showing that the defendants were using plaintiffs mark in connection with the, sale of goods or services in commerce, the court found that defendants were “not engaged in selling anything but ideas,” that their use of plaintiffs mark was part of an “attempt to persuade the public of their ... viewpoints,” and that this was “not the type of use that the laws against trademark infringement and unfair competition are designed to restrict.” Id. The court went on to observe that “[defendants’ only activity is trying to communicate tHeir ideas. Purveying points of view is not a service.” Id. Defendant also relies on L.L. Bean, Inc. v. Drake Publishers, Inc., 811 F.2d 26 (1st Cir.), cert. denied, 483 U.S. 1013, 107 S.Ct. 3254, 97 L.Ed.2d 753 (1987), which followed the Lucasfilm analysis. L.L. Bean involved an effort by the famous catalogue seller of Maine woods outdoor gear to enjoin distribution of a magazine’s parody of the L.L. Bean catalogue which, under an intentionally similar mark and trade dress, pretended to offer “Back-to-School-Sex” products by illustrations showing nude models using the products in provocative poses. Noting that the defendant’s publication was intended solely as humorous parody of the plaintiff and in fact offered nothing for sale, the court found defendant used plaintiffs mark “solely for noncommercial purposes” and that its “parody constitutes an editorial or artistic, rather than a commercial, use of plaintiffs mark.” 811 F.2d at 32. As for Lucasfilm, we respectfully suggest that the court" } ]

[ { "docid": "4200513", "title": "", "text": "shop. There was conflict in the evidence. Plaintiff had the burden of proving that she met the requirements for eligibility under § 416 (i): that she had a medically determinable physical or mental impairment which could be expected to result in death or be of long continued and indefinite duration, that she has an inability to engage in any substantial gainful activity, which exist ed by reason of the impairment, on March 51, 1953, the last day she met the earnings requirements for coverage, and which continued through May 9, 1957, when she filed her application. Pollak v. Ribicoff, 2 Cir., 1962, 300 F.2d 674, 677. The District Judge was not at liberty to make his own appraisal of the evidence; nor is this Court. We may review the record only to determine whether it contained substantial evidence to support the Secretary’s decision. Rosewall v. Folsom, 7 Cir., 1957, 239 F.2d 724, 728. Even if we credited plaintiff’s versions of the testimony and documentary evidence, we would still have to conclude that there was substantial evidence in the record to support the Secretary’s findings and the inferences which he drew therefrom. The decision of the District Court must be affirmed. Affirmed." } ]

[ { "docid": "1519719", "title": "", "text": "a dispatch-type job, particularly that of taxi dispatcher, night clerk in a hotel or telephone solicitor. The Administrative Law Judge made, inter alia, the following specific findings: 1. Claimant suffers from pulmonary fibrosis in both lower lung fields, left axis deviation on electrocardiogram, chronic bronchitis by history, possible element of angina pectoris, chronic anxiety reaction, history of cirrhosis of the liver and shortness of breath and nervousness. 2. Claimant’s combined physical and mental impairments were not so severe as to have prevented sedentary work on or prior to March 16, 1973, and through the date of this decision. 3. Claimant was capable and is capable of performing substantial gainful activity on or prior to March 16, 1973, and through the date of this decision. The Appeals Council declined to review the decision, and it therefore stands as the final decision of the Secretary. This action for judicial review of the Secretary’s decision was brought pursuant to 42 U.S.C. § 405(g), and claimant now appeals from summary judgment granted in favor of defendant. The issue presented for our consideration is whether substantial evidence on the record as a whole supports the determination that claimant is not disabled. This court has articulated a three-fold requirement for the determination of disability, which flows from the statutory definition of disability: 1. a medically determined physical or mental impairment which has or will last at least 12 months, 2. inability to engage in any substantial gainful activity, and 3. the inability must be by reason of the impairment. Adams v. Weinberger, 548 F.2d 239, 243 (8th Cir. 1977); Yawitz v. Weinberger, 498 F.2d 956, 960 (8th Cir. 1974). Since the Administrative Law Judge found substantial mental and physical impairments, the first part of the test is met. The evidence does not suggest any reason other than these impairments for the claimant’s alleged inability to perform substantial gainful activity, so that the third part of the test is also met. We are concerned, therefore, with the second component of the test, inability to engage in any substantial gainful activity. Once a claimant has demonstrated that his" }, { "docid": "22323057", "title": "", "text": "Beers, Smith’s personal physician and an associate of Dr. Herberg, wrote to the Social Security Administration on October 30,1974 and reported that Smith had a history of chronic duodenal ulcer disease of at least 18 years’ duration, chronic anxiety and a currently acute ulcer condition which was difficult to control medically. Dr. Beers concluded that in his opinion Smith was permanently and totally disabled. This view of the severity of Smith’s illness was repeated in Dr. Beers’ April 1976 report. III. Under 42 U.S.C. §§ 416(i), 423(d)(1)(A), an applicant for disability insurance benefits must establish “an inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment.” An administrative decision to deny benefits will be upheld on review if supported by “substantial evidence.” 42 U.S.C. § 405(g). “Substantial evidence” has been defined as “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). Despite the deference to administrative decisions implied by this standard, appellate courts retain a responsibility to scrutinize the entire record and to reverse or remand if the Secretary’s decision is not supported by substantial evidence. Baerga v. Richardson, 500 F.2d 309 (3d Cir. 1974), cert. den. 420 U.S. 931, 95 S.Ct. 1133, 43 L.Ed.2d 403 (1975); Williams v. Finch, 440 F.2d 613 (5th Cir. 1971); Thomas v. Celebrezze, 331 F.2d 541 (4th Cir. 1964). After reviewing the record below, we find at least two instances where the Secretary’s decision was not supported by substantial evidence. First, the Secretary failed to give appropriate consideration to unrebutted medical evidence that Smith’s ulcer condition rendered him disabled. Second, the Secretary failed to give appropriate consideration to Smith’s testimony of severe pain. On the record of this case, the ALJ, upon whose decision the Secretary relied, drew an impermissible inference of no disability. A. In finding Smith not disabled, the ALJ relied on the responses of Dr. Herberg to two Pennsylvania Bureau of Vocational Rehabilitation questionnaires, dated November 1973" }, { "docid": "14503352", "title": "", "text": "PER CURIAM: Catherine Carter is a woman in her late 50’s who suffers from pulmonary emphysema and pulmonary fibrosis, secondary to chronic bronchitis. After working most of her life in accounting-related jobs, Carter discontinued her employment in 1970. In 1976, she applied to HEW for the establishment of a period of disability under § 216 of the Social Security Act, 42 U.S.C.A. § 416(i), and disability insurance benefits under § 223 of the Act, 42 U.S.C.A. § 423. When her application was denied, Carter requested and was granted a hearing before an Administrative Law Judge. After hearing testimony from several of Carter’s relatives and friends, and considering the medical records of her physician, the ALJ determined that Carter was not disabled, as of September 30, 1973, the last date on which a disability would have entitled her to benefits. The decision was upheld by the Social Security Appeals Council. Carter then timely commenced this suit in district court. The Secretary’s motion for summary judgment was granted. Our review is limited to determining whether the record, as a whole, contains substantial evidence to support the Secretary’s decision. 42 U.S.C.A. § 405(g); Goodley v. Harris, 608 F.2d 234, 236 (5th Cir. 1979); White v. Harris, 605 F.2d 867, 869 (5th Cir. 1979). In making this determination, we must keep in mind that when appellant applied for benefits the burden was on her to establish an “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment . .” 42 U.S.C.A. § 423. Appellant testified that since the 1960’s she has experienced severe shortness of breath, lack of energy, and nervousness. She further testified that during the early 1970’s her condition had gotten so bad that she would become tired just sitting at her desk at work, was unable to perform her household duties, and had trouble sleeping. Feeling that she could no longer work, appellant left her job in 1970. While appellant’s testimony certainly was relevant, we note that the Act requires that the disability be demonstrated by medically acceptable clinical and laboratory diagnostic techniques." }, { "docid": "2262770", "title": "", "text": "and not earlier, and (2) the Secretary’s decision to disallow appellant’s claim for surviving divorced mother benefits because, prior to her former husband’s death, he was not contributing over one-half of the amount required for ber support. IV. An individual claiming disability insurance benefit payments pursuant to 42 U.S.C. § 423(a)(1) is required to be “under a disability (as defined in subsection (d) of this section).” The term “disability” is defined in subsection (d)(1)(A) as meaning “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” Under subsection (d)(3) such impairment is defined as one “that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” Finally, under subsection (d)(5) it is further provided that an “individual shall not be considered to be under a disability unless he furnishes such medical and other evidence of the existence thereof as the Secretary may require.” Appellant asserts that there is not sufficient evidence in the record as a whole to support the Secretary’s modified finding that the Appeals Council did not err in limiting her disability entitlements to a period beginning March 9, 1971, and not earlier. She asserts that, because of her medically established history of chronic emphysema and whiplash injuries, her physical impairments came within the statutory status of “disability” in April 1966. Review of agency decisions under 42 U.S.C. §§ 402 and 423 is limited to a determination of whether substantial evidence is contained in the record as a whole to support the Secretary’s decision. We may not make our own appraisal of the evidence. Lahr v. Richardson, 7 Cir., 476 F.2d 1088, 1090 (1973); Chandler v. Celebrezze, S.D.Ill., 225 F.Supp. 1001, 1002 (1964). If there is a conflict on the evidence, as in the case at bar, the burden is on the applicant to prove that she meets the requirements of eligibility. Degner v." }, { "docid": "2262772", "title": "", "text": "Celebrezze, 7 Cir., 317 F.2d 819, 820-821 (1963). This is particularly so since the 1968 amendments to the Act. We have carefully reviewed appellant’s medical history prior to March 9, 1971, which showed a spontaneous pneumothorax of the right lung with lung collapse. We have reviewed the findings of the Appeals Council, the Secretary, the report and recommendations of Magistrate Jurco and the memorandum opinion of Judge Bauer. Under the limited scope of our review and upon consideration of the record as a whole, we cannot say that the district court erred in finding and holding that the Secretary did not abuse his discretion in deciding that appellant was not so severely disabled as to be precluded from engaging in any substantial gainful occupation prior to March 9, 1971. In any event, we find and hold that there is substantial evidence in the record as a whole to support the Secretary’s decision. See Jeralds v. Richardson, 7 Cir., 445 F.2d 36, 38-39 (1971). As set out in his memorandum opinion, Judge Bauer considered the proper elements of proof to determine whether or not appellant qualified for statutory disability status under 42 U.S.C. § 423(d). The following were the guidelines the court considered: “1. clinical findings of treating and examining physicians on the existence of medically determinable physical or mental impairment; “2. opinions of treating or examining physicians on subsidiary questions of fact relating to the severity of the medically determinable impairment; “3. testimony of the claimant, corroborated by his family and neighbors concerning the effect of the medically determinable impairment; “4. evidence of the claimant’s educational background, work history and present age.” 388 F.Supp. at 780-81. After considering each element of appellant’s proof, the Secretary concluded, and the district court agreed, that prior to March 9, 1971, appellant had not demonstrated by the objective medical and clinical evidence required by the Act that her various ailments were medically determinable impairments of sufficient disabling severity to entitle her to disability benefits under the Act. Compare e. g., Stark v. Weinberger, 7 Cir., 497 F.2d 1092 (1974), with Bledsoe v. Richardson, 7" }, { "docid": "3168570", "title": "", "text": "but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.” It is the finding of this Court that the Secretary did not abuse administrative discretion in deciding that petitioner was not severely disabled prohibiting any substantial gainful occupation prior to March 9, 1971. Petitioner was fifty-nine years old when the instant petition was filed. She had finished the sixth grade and had attended night school. She was employed, between 1961 and 1967, as a domestic or housekeeper in various households performing tasks of dusting, washing dishes, making beds, etc. She admits that she currently performs such household tasks at home and in addition, often drives her car and goes fishing and boating. Prior to March 9, 1971, petitioner has a medical history of spontaneous pneumothorax of the right lung and spontaneous lung collapse. However, this Court does not disagree with respondent that this medical condition disabled the petitioner to such a severe degree as to prohibit her from substantial gainful occupational activity prior to March 9, 1971. See Jeralds v. Richardson, 445 F.2d 36 (7th Cir. 1971); Henry v. Gardner, 381 F.2d 191 (6th Cir. 1967); Adams v. Flemming, 267 F.2d 901 (2nd Cir. 1960); Gotshaw v. Ribicoff, 307 F.2d 840 (4th Cir. 1962). Therefore, petitioner did not come within the statutory definition of a disabled wage earner or as a disabled widow under 42 U.S.C. § 423 prior to March 9, 1971. Second, petitioner claims that respondent erred in considering her November 5, 1965 application as an application for surviving mother’s benefits instead of surviving divorced wife’s benefits. Assuming that respondent did err in considering petitioner’s application for divorced mother’s benefits under 42 U.S. C. § 402, petitioner’s application for surviving divorced wife’s benefits is also without merit. A surviving divorced wife is defined by 42 U.S.C. § 416(d)(2) as a" }, { "docid": "3168569", "title": "", "text": "in the record. Degner v. Celebrezze, 317 F.2d 819 (7th Cir. 1963); Chandler v. Celebrezze, supra. To determine a claimant’s qualifications or lack of qualifications for statutory “disability” status under 42 U.S.C. § 423(d), the Court considers: 1. clinical findings of treating and examining physicians on the existence of a medically determinable physical or mental impairment; 2. opinions of treating or examining physicians on subsidiary questions of facts relating to the severity of the medically determinable impairment ; 3. testimony of the claimant, corroborated by his family and neighbors concerning the effect of the medically determinable impairment; 4. evidence of the claimant’s educational background, work history and present age. See Hope v. Secretary of Health, Education and Welfare, 347 F.Supp. 1048 (E.D.Tex.1972); Rolenaitis v. Richardson, 336 F.Supp. 1235 (E.D.Pa.1972) aff’d 475 F.2d 1396. According to 42 U.S.C. § 423(d)(2) (A), (B), the Secretary was to determine whether the physical condition of petitioner prior to March 9, 1971 was: “. . . of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.” It is the finding of this Court that the Secretary did not abuse administrative discretion in deciding that petitioner was not severely disabled prohibiting any substantial gainful occupation prior to March 9, 1971. Petitioner was fifty-nine years old when the instant petition was filed. She had finished the sixth grade and had attended night school. She was employed, between 1961 and 1967, as a domestic or housekeeper in various households performing tasks of dusting, washing dishes, making beds, etc. She admits that she currently performs such household tasks at home and in addition, often drives her car and goes fishing and boating. Prior to March 9, 1971, petitioner has a medical history of spontaneous pneumothorax of the" }, { "docid": "2262767", "title": "", "text": "deceased worker, or had been receiving substantial contri-. butions from him pursuant to a written agreement or that there have been a court order in effect for substantial contributions from him at the time of his death. Appellant was informed of the decision on August 18, 1967. A hearing was held at her request. The hearing examiner denied the claim, and the Appeals Council affirmed his decision on May 7, 1968. Appellant took no further action at that time. On October 10, 1969, appellant applied for disability benefits on her own record, claiming a disability due to chronic emphysema and whiplash injuries since 1966. On March 12, 1970, she again applied for survivor benefits as a disabled surviving divorced wife. The application was denied initially and on reconsideration; the two claims were then consolidated for hearing by the examiner and denied in toto. Appellant appealed and on April 28, 1972, filed with the Appeals Council a request to reopen the 1968 decision denying her surviving divorced mother benefits. The Appeals Council refused to reopen the denial of surviving divorced mother benefits because the request to reopen was not filed within four years after the administration’s initial determination of the claim, as required by administration regulations. On the disability claim, the Appeals Council modified the examiner’s adverse decision, finding that the evidence sufficiently established claimant’s disability and entitlement to benefits beginning as of March 9, 1971, and not earlier. Other wise, the examiner was affirmed. This was the Secretary’s final decision. In summary, appellant received surviving child benefits for her two children and disability . benefits on her own account beginning March 1971, and not earlier. Her claims for survivor benefits were disallowed. II. On May 21, 1973, pursuant to 42 U.S.C. § 405(g), Mrs. Johnson filed this action for review of the Secretary’s decision in the United States District Court for the Northern District of Illinois, the Honorable William J. Bauer, Judge, presiding. Under the rules of the district court, this cause was assigned to Magistrate Olga Jurco for a report and recommendation. The magistrate considered the pleadings, motions and" }, { "docid": "22848118", "title": "", "text": "determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” According to subsection (d)(3), a physical or mental impairment “is an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” Under subsection (d)(5), an “individual shall not be considered to be under a disability unless he furnishes such medical and other evidence of the existence thereof as the Secretary may require.” 42 U.S.C. § 423(d)(1), (2), (3) & (5) (1978). See Johnson v. Weinberger, 525 F.2d 403 (7th Cir.1975). A claimant under the act has the burden of proving the existence of a disability. Once an impairment of sufficient severity is demonstrated, however, which precludes the type of work previously engaged in, the burden of going forward shifts to the Secretary to prove that there is available some other kind of “substantial gainful employment” the claimant can perform. McNeil v. Califano, 614 F.2d 142 (7th Cir.1980); Smith v. Secretary of Health, Education and Welfare, 587 F.2d 857, 861 (7th Cir.1978). The plaintiff asserts that she has carried her burden in this case. She argues that, because of her established medical history of chronic asthma, arthritis and angina, her physical impairments came within the statutory definition of “disability” in May 1978, and the Secretary erred in finding to the contrary. Review of the Secretary’s findings is limited to a determination of whether those findings are supported by substantial evidence based on the record as a whole. Schmoll v. Harris, 636 F.2d 1146, 1149-50 (7th Cir.1980); Carver v. Harris, 634 F.2d 363, 364 (7th Cir.1980). “Substantial evidence means ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ ” Allen v. Weinberger, 552 F.2d 781, 784 (7th Cir.1977) (quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842, 852 (1971)). The “clearly erroneous” standard specified by Fed.R.Civ.P. 52(a) for review of a trial court’s findings is inapplicable because" }, { "docid": "2262773", "title": "", "text": "elements of proof to determine whether or not appellant qualified for statutory disability status under 42 U.S.C. § 423(d). The following were the guidelines the court considered: “1. clinical findings of treating and examining physicians on the existence of medically determinable physical or mental impairment; “2. opinions of treating or examining physicians on subsidiary questions of fact relating to the severity of the medically determinable impairment; “3. testimony of the claimant, corroborated by his family and neighbors concerning the effect of the medically determinable impairment; “4. evidence of the claimant’s educational background, work history and present age.” 388 F.Supp. at 780-81. After considering each element of appellant’s proof, the Secretary concluded, and the district court agreed, that prior to March 9, 1971, appellant had not demonstrated by the objective medical and clinical evidence required by the Act that her various ailments were medically determinable impairments of sufficient disabling severity to entitle her to disability benefits under the Act. Compare e. g., Stark v. Weinberger, 7 Cir., 497 F.2d 1092 (1974), with Bledsoe v. Richardson, 7 Cir., 469 F.2d 1288 (1972). On this basis, we find that the limitation of appellant’s disability entitlements on her own account, in her application of October 10, 1969, to a period beginning March 9, 1971, and not earlier, is supported by substantial evidence on the record as a whole and should be affirmed. We find no warrant here for interposing any contrary appraisal of the evidence on our own behalf, even were we disposed to do so. V. We may rather summarily dispose of the issue of whether there is substantial evidence on the record as a whole to support the denial of appellant’s claim to receive divorced mother insurance benefits. It runs afoul of the equivalent of a statute of limitations. Appellant’s request to reopen the final decision in this respect is barred by Social Security Administration Regulations governing the reopening of final administration decisions. The regulations provide that an otherwise final administrative decision may be reopened within one year from the date of notice of the initial determination thereof for any reason, within" }, { "docid": "23245271", "title": "", "text": "BROWN, Chief Judge: This action was brought by Charlotte Laffoon pursuant to § 205(g) of the Social Security Act, 42 U.S.C.A. § 405(g), to review a determination of non-disability by the Administrative Law Judge. His finding was approved by the Appeals Council and became the final decision of the Secretary of Health, Education and Welfare. The District Court granted the Secretary’s motion for summary judgment, holding that the decision was supported by substantial evidence. We affirm. The applicable standard of review is that “[t]he findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive . . . .” § 205(g) of the Social Security Act, 42 U.S. C.A. § 405(g). See Richardson v. Perales, 1971, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842; Payne v. Weinberger, 5 Cir., 1973, 480 F.2d 1006. The role of the reviewing court is quite limited. Gaultney v. Weinberger, 5 Cir., 1974, 505 F.2d 943. It may neither reweigh the evidence nor substitute its judgment for that of the Secretary. Williams v. Finch, 5 Cir., 1971, 440 F.2d 613. Conflicts in the evidence, including those arising in medical opinions, are to be resolved not by the courts, but by the Secre tary. See Payne v. Weinberger, supra, at 1007, and cases cited therein. Mrs. Laffoon, now 57 years old, claims the inability to engage in any substantial gainful employment due to several maladies: chronic obstructive lung disease, chronic bronchitis, emphysema, high blood pressure, a heart ailment, chest pains, arthritis, and a nervous condition. The Administrative Law Judge, though recognizing that Mrs. Laffoon’s work record was practically nil, concluded that there was no medical impairment sufficiently severe to preclude her from engaging in some type of substantial gainful activity, including her previous employment as an aide in a nursing home. The appellant’s first attack on this finding is that the Administrative Law Judge gave little weight to her testimony (corroborated by a close friend who appeared at the hearing) concerning subjective complaints of pain. Appellant correctly states that this Court’s decision in De-Paepe v. Richardson, 5 Cir., 1972, 464" }, { "docid": "9603935", "title": "", "text": "then requested and was granted a hearing before an administrative law judge. The ALJ rendered a decision unfavorable to Glass-man, finding that the was not under a disability at any time when she met the earnings requirement. The Appeals Council denied Glassman’s request for review of the ALJ’s ruling. Thus, the AU’s decision stands as the final decision of the Secretary. Upon judicial review, the magistrate found that substantial evidence in the record as a whole supported the AU’s decision that Glassman was not disabled prior to the expiration of her insured status on June 30, 1971. The district court adopted the magistrate's report and recommendation, and this appeal followed. II. DISCUSSION Our standard of review of the Secretary’s decision is well established. The decision must be upheld if there is substantial evidence in the record as a whole to support it. Prince v. Bowen, 894 F.2d 283, 285 (8th Cir.1990). “Substantial evidence” means such relevant evidence as a reasonable person might accept as adequate to support a conclusion. Id. See also Metcalf v. Heckler, 800 F.2d 793, 794 (8th Cir.1986). Substantial evidence is “something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.” Consolo v. Federal Maritime Comm’n., 383 U.S. 607, 620, 86 S.Ct. 1018, 1026, 16 L.Ed.2d 131 (1966) (citations omitted). In order to qualify for disability benefits Glassman has the burden of proving that she was unable to engage in substantial gainful activity due to a medically determinable physical or mental impairment which was expected to last for at least 12 months. 42 U.S.C. § 423(d)(1) (1982). Further, she must prove that her condition was disabling prior to the expiration of her insured status in June 1971. The ALJ concluded that Glassman did not meet this burden. We believe that this conclusion is supported by substantial evidence in the record as a whole. As the ALJ noted, the only evidence of Glassman’s medical treatment before June 1971 was the record of her hospitalization in 1963" }, { "docid": "2262771", "title": "", "text": "and other evidence of the existence thereof as the Secretary may require.” Appellant asserts that there is not sufficient evidence in the record as a whole to support the Secretary’s modified finding that the Appeals Council did not err in limiting her disability entitlements to a period beginning March 9, 1971, and not earlier. She asserts that, because of her medically established history of chronic emphysema and whiplash injuries, her physical impairments came within the statutory status of “disability” in April 1966. Review of agency decisions under 42 U.S.C. §§ 402 and 423 is limited to a determination of whether substantial evidence is contained in the record as a whole to support the Secretary’s decision. We may not make our own appraisal of the evidence. Lahr v. Richardson, 7 Cir., 476 F.2d 1088, 1090 (1973); Chandler v. Celebrezze, S.D.Ill., 225 F.Supp. 1001, 1002 (1964). If there is a conflict on the evidence, as in the case at bar, the burden is on the applicant to prove that she meets the requirements of eligibility. Degner v. Celebrezze, 7 Cir., 317 F.2d 819, 820-821 (1963). This is particularly so since the 1968 amendments to the Act. We have carefully reviewed appellant’s medical history prior to March 9, 1971, which showed a spontaneous pneumothorax of the right lung with lung collapse. We have reviewed the findings of the Appeals Council, the Secretary, the report and recommendations of Magistrate Jurco and the memorandum opinion of Judge Bauer. Under the limited scope of our review and upon consideration of the record as a whole, we cannot say that the district court erred in finding and holding that the Secretary did not abuse his discretion in deciding that appellant was not so severely disabled as to be precluded from engaging in any substantial gainful occupation prior to March 9, 1971. In any event, we find and hold that there is substantial evidence in the record as a whole to support the Secretary’s decision. See Jeralds v. Richardson, 7 Cir., 445 F.2d 36, 38-39 (1971). As set out in his memorandum opinion, Judge Bauer considered the proper" }, { "docid": "22388342", "title": "", "text": "of not less than 12 months.” 42 U.S.C. § 423(d). The claimant bears the burden of proving her disability with “such medical and other evidence of the existence thereof as the Secretary may require.” 42 U.S.C. § 423(d) (5). The standard for eligibility is to be applied in light of the fact that “the Social Security Act is a remedial statute, to be broadly construed and liberally applied.” Haberman v. Finch, 418 F.2d 664, 667 (2d Cir.1969). See Floyd v. Finch, 441 F.2d 73, 76-78, 104-105 (6th Cir.1971) (McAllister, Senior Circuit Judge, dissenting). This court, in reviewing the determination of the Secretary, must sustain that conclusion if it is supported by “substantial evidence” on the record as a whole. Franklin v. Secretary of HEW, 393 F.2d 640 (2d Cir.1968); Kerner v. Flemming, 283 F.2d 916 (2d Cir.1960); 42 U.S.C. § 405(g). There was no doubt, as the examiner stated in his opinion, that appellant was totally disabled at the time of the hearing. The question is whether this condition existed prior to June 30, 1961, the crucial date for coverage under the Act. Unrepresented by counsel at the hearing, Mrs. Gold testified and presented numerous medical reports to support her claim. A January 1963 report by Dr'. Abraham Cohen, who treated appellant for her lung diseases, states that Mrs. Gold suffers from severe pulmonary fibrosis with resultant chronic asthmatic bronchitis and bronchiectesis. All this stems from tuberculosis which she incurred during 1943. As a result of this condition, she suffers severely from cough, expectoration, periodic hemoptysis, wheezing and dyspnea [difficult or labored breathing]. Secondarily, she suffers from malnutrition and anemia. Consequently, I consider her disabled 100%. She not only is unable to pursue a gainful occupation, but cannot carry out her household duties. Thus, eighteen months after the expiration of her insured status, Mrs. Gold was found by her doctor to be totally disabled. “[E]vidence bearing upon an applicant’s condition subsequent to the date upon which the earning requirement was last met is pertinent evidence in that it may disclose the severity and continuity of impairments existing before the earning" }, { "docid": "3168567", "title": "", "text": "physical disability and the State of Illinois determined petitioner to be disabled; 2. petitioner is within the requirements of a surviving divorced mother under 42 U.S.C. § 402 because the deceased wage earner contributed over one-half of her support during a specified period, because he did assume financial responsibility to her sons pursuant to a court order, and because he became obligated to provide support to petitioner through a loan; 3. petitioner deserves disability and surviving divorced mother’s benefits because the respondent’s agencies’ decisions were arbitrary and capricious and an abuse of administrative discretion. Respondent replied to the petition for review by filing a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. U. S. Magistrate Olga Jurco ruled on February 21, 1974, that respondent’s motion for summary judgment was of merit and recommended that petitioner’s petition for review be dismissed. PETITIONER FAILS TO ADEQUATELY DEMONSTRATE THAT RESPONDENT’S FINAL DECISION WAS ARBITRARY, CAPRICIOUS AND AN ABUSE OF ADMINISTRATIVE DISCRETION First, petitioner contends that the Appeals Council erred in limiting wage earner disability payments to the period commencing after March 9, 1971. Petitioner asserts that her physical impairments came within statutory status of “disability” in April, 1966. The instant issue is whether the Secretary’s modified finding is supported by substantial evidence in the record as a whole. The standard for review of agency decisions under the Social Security Act, 42 U.S.C. §§ 402, and 423, is limited to a determination of whether substantial evidence is contained in the record as a whole which would support the Secretary’s decision. Payne v. Weinberger, 480 F.2d 1006, 1007 (5th Cir. 1973); Ingram v. Richardson, 471 F.2d 1268 (6th Cir. 1972); Jackson v. Richardson, 465 F.2d 998 (9th Cir. 1972); Lahr v. Richardson, 328 F.Supp. 996, 997 (N.D.Ill.1971), aff’d 476 F.2d 1088 (7th Cir. 1973); Chandler v. Celebrezze, 225 F.Supp. 1001, 1002 (S.D.Ill.1964). It is also well established that this standard prohibits a court from making its own appraisal of the evidence, but rather, instructs the court to critically analyze the justifiability of the Secretary’s appraisal of the evidence" }, { "docid": "22008928", "title": "", "text": "ruled claimant’s injuries had disabled her from the date of the accident until April 11, 1973, at which point claimant’s disability ceased. On December 21, 1973, claimant appealed this decision to the Appeals Council, which on April 25, 1974, affirmed the Administrative Law Judge’s decision. This decision thus became the final decision of the Secretary, which now comes before us on claimant’s appeal. The task that we or any district court face in a case of this type is carefully delineated under the law. Judge Luongo of this District recently summarized this law when he wrote: “In reviewing the Secretary’s decision, the Court’s role is narrowly circumscribed. The Secretary’s decision must stand if it is supported by ‘substantial evidence’. 42 U.S.C. § 405 (g). ‘Substantial evidence’ has been defined as ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ Consolo v. Federal Maritime Commission, 383 U.S. 607, 620, 86 S.Ct. 1018, 16 L.Ed.2d 131 .. . (1966). In deciding whether the Secretary’s decision is supported by substantial evidence, the Court must look at the record as a whole. Vitek v. Finch, 438 F.2d 1157 (14th Cir. 1971); Blanks v. Richardson, 439 F.2d 1158 (5th Cir. 1971). “The test for disability is two-pronged: (1) a determination of the extent of the physical or mental impairment and (2) a determination whether that impairment results in an inability to engage in substantial gainful activity. Stancavage v. Celebrezze, 323 F.2d 373 (3rd Cir. 1963); Janek v. Celebrezze, 336 F.2d 828 (3rd Cir. 1964). There are four elements of proof to be considered in making a finding as to claimant’s ability or inability to engage in any substantial gainful activity: (1) medical data and findings, (2) expert medical opinions, (3) subjective complaints and (4) claimant’s age, educational background and work history. Dillon v. Celebrezze, 345 F.2d 753, 755 (4th Cir. 1965).” With these standards in mind, we turn to the record before us. The record indicates claimant was born on August 4, 1949 (Tr. 77) graduated high school (Tr. 32), pursued a course in beauty culture for a year" }, { "docid": "3168568", "title": "", "text": "wage earner disability payments to the period commencing after March 9, 1971. Petitioner asserts that her physical impairments came within statutory status of “disability” in April, 1966. The instant issue is whether the Secretary’s modified finding is supported by substantial evidence in the record as a whole. The standard for review of agency decisions under the Social Security Act, 42 U.S.C. §§ 402, and 423, is limited to a determination of whether substantial evidence is contained in the record as a whole which would support the Secretary’s decision. Payne v. Weinberger, 480 F.2d 1006, 1007 (5th Cir. 1973); Ingram v. Richardson, 471 F.2d 1268 (6th Cir. 1972); Jackson v. Richardson, 465 F.2d 998 (9th Cir. 1972); Lahr v. Richardson, 328 F.Supp. 996, 997 (N.D.Ill.1971), aff’d 476 F.2d 1088 (7th Cir. 1973); Chandler v. Celebrezze, 225 F.Supp. 1001, 1002 (S.D.Ill.1964). It is also well established that this standard prohibits a court from making its own appraisal of the evidence, but rather, instructs the court to critically analyze the justifiability of the Secretary’s appraisal of the evidence in the record. Degner v. Celebrezze, 317 F.2d 819 (7th Cir. 1963); Chandler v. Celebrezze, supra. To determine a claimant’s qualifications or lack of qualifications for statutory “disability” status under 42 U.S.C. § 423(d), the Court considers: 1. clinical findings of treating and examining physicians on the existence of a medically determinable physical or mental impairment; 2. opinions of treating or examining physicians on subsidiary questions of facts relating to the severity of the medically determinable impairment ; 3. testimony of the claimant, corroborated by his family and neighbors concerning the effect of the medically determinable impairment; 4. evidence of the claimant’s educational background, work history and present age. See Hope v. Secretary of Health, Education and Welfare, 347 F.Supp. 1048 (E.D.Tex.1972); Rolenaitis v. Richardson, 336 F.Supp. 1235 (E.D.Pa.1972) aff’d 475 F.2d 1396. According to 42 U.S.C. § 423(d)(2) (A), (B), the Secretary was to determine whether the physical condition of petitioner prior to March 9, 1971 was: “. . . of such severity that he is not only unable to do his previous work" }, { "docid": "22769293", "title": "", "text": "the physical limitations claimed by appellant. He testified that appellant might have some pain caused by osteoporosis, but that she should be able to engage in work that did not require lifting or undue bending. Other medical records were submitted to and considered by the Appeals Council after the ALJ had ruled against appellant. One such record documented appellant’s treatment at Montefiore Hospital, after the hearing, for rectal bleeding and low back syndrome. Clinical tests there proved negative. There also was submitted a report of a psychiatric examination of appellant by a Dr. Schaye. His report stated that appellant was depressed and preoccupied with feelings of hopelessness concerning her illness. In the opinion of Dr. Schaye, appellant was suffering from a psychiatric illness which, together with her chronic physical complaints, rendered her “unsuitable for gainful employment.” The Appeals Council approved the decision of the ALJ that appellant was not disabled. The decision of the ALJ thus became the final decision of the Secretary. Appellant then commenced this action in the district court for judicial review. II. In the light of these facts and prior proceedings, we turn directly to the critical question presented, namely, what is the proper standard for evaluating claims under the Social Security Act which involve subjective pain. In providing for judicial review of decisions on disability benefits, 42 U.S.C. § 405(g) requires that factual findings of the Secretary shall be conclusive if supported by substantial evidence. Richardson v. Perales, 402 U.S. 389, 401 (1971); Levine v. Gardner, 360 F.2d 727, 729 (2 Cir. 1966). Where evidence has not been properly evaluated because of an erroneous view of the law, however, the determination of the Secretary will not be upheld. Northcutt v. Califano, 581 F.2d 164, 167 (8 Cir. 1978); see Cutler v. Weinberger, 516 F.2d 1282, 1285-86 (2 Cir. 1975). It has been established, both in this Circuit and elsewhere, that subjective pain may serve as the basis for establishing disability; even if such pain is unaccompanied by positive clinical findings or other “objective” medical evidence, Ber v. Celebrezze, 332 F.2d 293 (2 Cir. 1964); Northcutt" }, { "docid": "2262764", "title": "", "text": "War II. She worked as a practical nurse in the 1930’s. During the period 1961 through July 1967, she was employed as a domestic or housekeeper in private households, performing the usual tasks of that position. She stopped working in 1967 but continued to perform her own cooking and household duties. She did her own shopping, drove her car and her motor boat, and went fishing and boating. Appellant’s medically documented history as shown in the record reveals that she suffered spontaneous pneumothorax and collapse of the right lung in 1958, which was corrected by surgery. She may have had a similar occurrence in 1949. Her attending physician in 1958 stated that in 1959 he had indicated to the Illinois Public Aid Department that she should refrain from any work involving physical strain because of the prior lung collapses. He repeated this information to the state department on March 12, 1970. Another doctor reported to the department on February 12, 1971, that appellant came to see him in September 1970 regarding a foot injury and that on December 14, 1970, he diagnosed her condition as emphysema, angina pectoris and hypertension, and prescribed a low salt diet and medication to reduce her blood pressure. No clinical data was submitted by him in support of his diagnosis of angina pectoris or of emphysema. No medical or clinical data exists in the record on the 1966 whiplash injury. Other medical documentation was based on examination after appellant’s subsequently determined disability date of March 9, 1971. I. Appellant filed an application on October 16, 1958, for surviving child insurance benefits on behalf of her two sons. Subsequently, the application was allowed for both children, and it is no longer an issue in this matter. The administrative proceedings from this point on become a bit confusing and ambiguous because of the interchange of applications filed and the considerations thereof. However, as relevant to the issues on this appeal, the following is a realistic appraisal of the administrative record. On November 5, 1965, appellant filed for survivor benefits on her own account. This claim was treated" }, { "docid": "2262768", "title": "", "text": "denial of surviving divorced mother benefits because the request to reopen was not filed within four years after the administration’s initial determination of the claim, as required by administration regulations. On the disability claim, the Appeals Council modified the examiner’s adverse decision, finding that the evidence sufficiently established claimant’s disability and entitlement to benefits beginning as of March 9, 1971, and not earlier. Other wise, the examiner was affirmed. This was the Secretary’s final decision. In summary, appellant received surviving child benefits for her two children and disability . benefits on her own account beginning March 1971, and not earlier. Her claims for survivor benefits were disallowed. II. On May 21, 1973, pursuant to 42 U.S.C. § 405(g), Mrs. Johnson filed this action for review of the Secretary’s decision in the United States District Court for the Northern District of Illinois, the Honorable William J. Bauer, Judge, presiding. Under the rules of the district court, this cause was assigned to Magistrate Olga Jurco for a report and recommendation. The magistrate considered the pleadings, motions and briefs, together with the administrative record filed in this cause. In a detailed report of some length, Magistrate Jurco recommended that the final decisions of the Secretary be affirmed and that the district court enter an order granting the Secretary’s motion for summary judgment. Exceptions were filed to the magistrate’s report and recommendations, together with briefs. In a well-considered memorandum decision, the district court concluded that the report and recommendations of the magistrate were proper and just. Johnson v. Weinberger, N.D.Ill., 388 F.Supp. 777 (1974). Accordingly, on December 13, 1974, the court ordered that the final decision of the Secretary be affirmed and that the Secretary’s motion for summary judgment be granted. Appellant appealed from the judgment orders and was granted leave to proceed in forma pauperis. III. Appellant presents two issues on this appeal, the crux of which is whether there is substantial evidence on the record as a whole to support (1) the Secretary’s decision to limit appellant’s receipt of disability benefits on her own account to a period beginning March 9, 1971," } ]

[ { "docid": "22627176", "title": "", "text": "proceedings involved in Huffman, supra. In Huffman, the Ohio State court had closed down the federal plaintiff’s movie house for a period of time in the future. Although its decree had become final at the time the federal plaintiff instituted its federal action, the effect of the decree continued. 420 U. S., at 598. That plaintiff accordingly had the requisite standing. O’Shea v. Littleton, supra, at 495-496. Here, however, once the period of incarceration is served or the fine paid, the effect of the orders imposing a fine or commitment has expended itself. And, in the case where the payment of the fine satisfies the entire judgment, not only the orders in the supplemental proceedings but the original judgment as well is rendered functus officio. As the complaint does not allege, and as the District Court did not find, that these appellees were threatened with further or repeated proceedings, only Ward and Rabasco had the necessary standing to seek injunctive relief. See Ellis v. Dyson, 421 U. S. 426 (1975); Steffel v. Thompson, 415 U. S. 452 (1974). Appellees Ward and Rabasco do have standing, since they are subject to pending proceedings in the state courts. Since Ward and Rabasco have standing, and since their standing, unlike that of the plaintiff in Steffel v. Thompson, supra, is predicated on the existence of a pending, and not merely a threatened, proceeding, we deal with appellants’ Younger contentions. The District Court decided that our holdings in Younger and Huffman did not mandate dismissal of the complaint in this case, because the action sought to be enjoined in Younger was a criminal prosecution, and the action sought to be enjoined in Huffman was for the abatement of a civil nuisance and therefore closely akin to a criminal proceeding. This was not an implausible reading of our holdings in those cases, since in Huffman, the most recent of the two, we had reserved the applicability of abstention to civil cases generally in this language: “Informed by the relevant principles of comity and federalism, at least three Courts of Appeals have applied Younger when the" } ]

[ { "docid": "7022003", "title": "", "text": "advanced the proposition that absent extraordinary circumstances, a federal court cannot enjoin a pending criminal trial in a state court. This doctrine is based on considerations of judicial economy and proper state-federal relations. Thus, in the typical Younger situation, a defendant who is being prosecuted in state court under a constitutionally suspect statute cannot go running into federal court seeking an adjudication of his rights and/or an injunction halting the pending criminal prosecution. The defendant must first seek relief within the state system. The Supreme Court has not yet extended Younger to all situations where a civil proceeding is pending in state court. However, the Court has applied Younger in various civil contexts. Thus, in Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975), the Court refused to interfere with a civil nuisance action in state court in which the state sought to close down a movie theatre. Significantly, the state proceeding, although civil, was quasi-criminal in nature and the state was a party to it. In addition, the theatre owners had not appealed the adverse state court result, but had filed a new federal action, effectively trying to collaterally attack the state court judgment. Although factually unique, Huffman did extend Younger restraint principles to civil cases in which important state concerns were present. Thus, in Moore v. Sims, 442 U.S. 415, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979), the Court applied Younger to prevent interference with pending child abuse proceedings where children had been temporarily taken from their parents. The state was a party to the child abuse proceedings and had an obviously important interest in them. The Court also found important state concerns in Trainor v. Hernandez, 431 U.S. 434, 97 S.Ct. 1911, 52 L.Ed.2d 436 (1977), where the state was seeking to use its prejudgment attachment procedures to collect money allegedly owed it. There, the important state interest was the state’s safeguarding the fiscal integrity of its social services programs by moving quickly to collect monies owed. From these cases, it appears that whether the state is a party to pending or" }, { "docid": "15244072", "title": "", "text": "suits challenging state action when the state has already initiated proceedings in the state courts in which the plaintiff is able to raise federal claims.” Levy, supra, 635 F.2d at 964. Although Younger was a criminal matter, the Supreme Court has stated that the reasoning underlying Younger may warrant abstention in civil matters as well. See Moore v. Sims, 442 U.S. 415, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979). In Moore, the Court noted that Younger principles of comity express: ... a strong policy against federal intervention in state judicial processes in the absence of great and immediate irreparable injury to the federal plaintiff. Samuels v. Mackell, 401 U.S. 66, 69 [91 S.Ct. 764, 766, 27 L.Ed.2d 688] (1971). That policy was first articulated with reference to state criminal proceedings, but as we recognized in Huffman v. Pursue, Ltd., 420 U.S. 592 [95 S.Ct. 1200, 43 L.Ed.2d 482] (1975), the basic concern— that threat to our federal system posed by displacement of state courts by those of the National Government—is also fully applicable to civil proceedings in which important state interests are involved. 442 U.S. at 423, 99 S.Ct. at 2377. The Supreme Court has not yet applied Younger abstention to state insurance liquidation proceedings. “[W]hile these proceedings are perhaps more remote from the criminal process than other proceedings in which Younger has been applied, [see Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977) (enforcement of contempt proceedings); and Trainor v. Hernandez, 431 U.S. 434, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977) (fiscal integrity of public assistance programs),] Younger’s concerns with comity and with a state’s enforcement of important state interests in its own courts seem equally applicable.” Levy, supra, 635 F.2d at 965. Defendants contend that this is not a case from which the Court should abstain on the basis of Younger and its progeny. In support of their argument, defendants mischaracterize, once again, this action as a “garden variety contract action through which plaintiff seeks a definite sum of money.” D. Memo. Further Support at 36. Defendants ignore the fact that “[h]ere the" }, { "docid": "22903896", "title": "", "text": "already initiated proceedings in the state courts in which the plaintiff is able to raise federal claims. Most recently, in Moore v. Sims, 442 U.S. 415, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979), the Supreme Court has stated that the principles supporting Younger may justify abstention in civil as well as criminal areas. The Court noted that Younger principles of comity express: ... a strong policy against federal intervention in state judicial processes in the absence of great and immediate irreparable injury to the federal plaintiff. Samu-els v. Mackell, 401 U.S. 66, 69, 91 S.Ct. 764, 766, 27 L.Ed.2d 688 (1971). That policy was first articulated with reference to state criminal proceedings, but as we recognized in Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975), the basic concern-that threat to our federal system posed by displacement of the state courts by those of the National Government-is also fully applicable to civil proceedings in which important state interests are involved. 442 U.S. at 423, 99 S.Ct. at 2377. Thus, in Moore v. Sims, the Court noted that Younger abstention would be extended not only to state proceedings “in aid of and closely related to criminal statutes,” 442 U.S. at 423, 99 S.Ct. at 2377, quoting Huffman v. Pursue, Ltd., 420 U.S. 592, 604, 95 S.Ct. 1200, 1208, 43 L.Ed.2d 482 (1975), but also to other proceedings in which the state seeks to vindicate its “vital concerns” such as enforcement of contempt proceedings as in Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977) and the fiscal integrity of public assistance programs as in Trainor v. Hernandez, 431 U.S. 434, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977). While the Supreme Court has not yet applied Younger to state insurance company liquidation proceedings such as are at issue here and while these proceedings are perhaps more remote from the criminal process than other proceedings in which Younger has been applied, Younger’s concerns with comity and with a state’s enforcement of important state interests in its own courts seem equally applicable. Here the state" }, { "docid": "23292718", "title": "", "text": "37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). Younger held that abstention was required where a plaintiff who was defending criminal charges in state court sought to get the federal court to enjoin the ongoing state criminal proceedings. Id. at 53-54, 91 S.Ct. 746. Younger is grounded in notions of comity: the idea that the state courts should not, in certain circumstances,- be interfered with. See Huffman v. Pursue, Ltd., 420 U.S. 592, 601, 603-04, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975). For at least two reasons, the abstention principle announced in Younger does not apply to this case. First, the ongoing state proceeding involved here is not the proper type of proceeding to require adherence to Younger principles. Younger itself occurred within the context of a criminal state proceeding. It has expanded beyond that context, however. “[C]ertain types of state civil proceedings” are also subject to Younger abstention. Quackenbush, 517 U.S. at 716-17, 116 S.Ct. 1712. The Supreme Court has extended abstention to two types of state civil actions. See NOPSI, 491 U.S. at 367-68, 109 S.Ct. 2506. First and most importantly, Younger has been extended to some quasi-criminal (or at least “coercive”) state civil proceedings — and even administrative proceedings — brought by the state as enforcement actions against an individual. Maymo-Melendez v. Alvarez-Ramirez, 364 F.3d 27, 31-32, 34 (1st Cir.2004) (applying Younger principles to state administrative disciplinary proceeding of horse trainer); see, e.g., Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432, 434-35, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982) (Younger abstention appropriate where plaintiff sought to enjoin ongoing state administrative attorney disciplinary proceedings); Moore v. Sims, 442 U.S. 415,- 423, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979) (Younger abstention appropriate in context of state child removal proceedings due to allegations of child abuse); Trainor v. Hernandez, 431 U.S: 434, 444, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977) (Younger applies to state proceeding to recover fraudulently obtained welfare payments); Huffman, 420 U.S. at 603-05, 95 S.Ct. 1200 (Younger abstention appropriate where plaintiff challenged ongoing state civil nuisance proceedings); Esso Standard Oil Co., 389" }, { "docid": "17859199", "title": "", "text": "U.S. 415, 423, 99 S.Ct. 2371, 2377, 60 L.Ed.2d 994 (1979) (“[t]he basic concern — that threat to our federal system posed by displacement of state courts by those of the National Government — is also fully applicable to civil proceedings in which important state interests are involved.”); Trainor v. Hernandez, 431 U.S. 434, 444, 97 S.Ct. 1911, 1918, 52 L.Ed.2d 486 (1977) (federal court should have abstained in light of pending state court proceedings to collect fraudulently obtained welfare benefits; state’s interest in protecting the fiscal integrity of its public assistance programs is important); Juidice v. Vail, 430 U.S. 327, 334, 97 S.Ct. 1211, 1217, 51 L.Ed.2d 376 (1977) (“The principles of Younger and Huffman are not confined solely to the types of state actions which were sought to be enjoined in those cases ... ‘the more vital consideration’ behind the Younger doctrine ... lay not in the fact that the state criminal process was involved but rather in ‘the notion of comity’ ”) (quoting Huffman v. Pursue, Ltd., 420 U.S. 592, 601, 95 S.Ct. 1200, 1206, 43 L.Ed.2d 482 (1975)). In Dayton, the Supreme Court confirmed that Younger principles also apply to pending state administrative proceedings that involve important state interests. 106 S.Ct. at 2723 & n. 2; see also Middlesex, 457 U.S. at 433-34, 102 S.Ct. at 2522 (abstaining in favor of bar disciplinary proceedings because Court found them to be “judicial in nature”); Williams v. Red Bank Board of Education, 662 F.2d 1008, 1016-17 (3d Cir.1981) (abstaining in favor of administrative proceedings); McDonald v. Metro-North Commuter Railroad Division, 565 F.Supp. 37, 40 (S.D.N.Y.1983) (same). The Supreme Court in Dayton expressly criticized this court’s holding in Martori Brothers Distributors v. James-Massengale, 781 F.2d 1349 (9th Cir.) amended, 791 F.2d 799 (9th Cir.1986), on this point. In Martori, we posited that a district court need not abstain in deference to administrative proceedings before the ALRB, because such proceedings are not “judicial” in nature. Martori, 781 F.2d at 1354. We further concluded that, even assuming that the proceedings were judicial, abstention would be inappropriate because the ALRB could not" }, { "docid": "11097103", "title": "", "text": "for an injunction pursuant to 42 U.S.C. § 1983 fell squarely within the parameters of the Younger decision. However, in 1986, when the district court considered the question of whether the Clubs’ suit should be dismissed pursuant to Younger, the court expressed uncertainty as to whether Younger abstention should be applied to state administrative proceedings initiated by a private plaintiff. At that time, the Supreme Court had extended the Younger doctrine to civil proceedings initiated by the state in a state court in which important state interests were involved. See Moore v. Sims, 442 U.S. 415, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979); Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977); Trainor v. Hernandez, 431 U.S. 434, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977); Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975). The Court had also applied Younger to state administrative proceedings initiated by the state in which important state interests were vindicated. See Middlesex County Ethics Committee v. Garden State Bar Assoc., 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982); Gibson v. Berryhill, 411 U.S. 564, 93 S.Ct. 1689, 36 L.Ed.2d 488 (1973). Only after the district court first considered this case in 1986 did the Supreme Court consider the question of whether Younger abstention applied to administrative proceedings initiated by a private plaintiff In Ohio Civil Rights Commission v. Dayton Christian Schools, Inc., 477 U.S. 619, 106 S.Ct. 2718, 91 L.Ed.2d 512 (1986), a case factually similar to the one at bar, the state administrative proceedings were initiated by a private litigant filing a sex discrimination complaint with the Ohio Civil Rights Commission. Although the administrative proceedings were pending, Dayton (the defendant in the state proceedings), filed suit in federal court seeking an injunction against the state proceedings on the ground that any investigation or imposition of sanctions would violate the first amendment. The Court held that it should abstain under Younger because “the elimination of prohibited sex discrimination is a sufficiently important state interest to bring the present case within [Younger and its progeny]\"" }, { "docid": "18764668", "title": "", "text": "would disregard the comity between the States and the National Government.” Pennzoil Co. v. Texaco, Inc., — U.S. -, -, 107 S.Ct. 1519, 1526, 95 L.Ed.2d 1 (1987). See, e.g., id. 107 S.Ct. at 1527 (state interest in execution of state judgments); Ohio Civil Rights Comm’n v. Dayton Christian Schools, Inc., — U.S. -, -, 106 S.Ct. 2718, 2723, 91 L.Ed.2d 512 (1986) (state civil rights commission action to vindicate state interest in elimination of sex discrimination); Middlesex County Ethics Comm’n v. Garden State Bar Ass’n, 457 U.S. 423, 434, 102 S.Ct. 2515, 2522, 73 L.Ed.2d 116 (1982) (important state interest in maintaining and assuring the professional conduct of attorneys it licenses); Moore v. Sims, 442 U.S. 415, 423, 99 S.Ct. 2371, 2377, 60 L.Ed.2d 994 (1979) (child custody proceedings “in aid of and closely related to criminal statutes”); Juidice v. Vail, 430 U.S. 327, 335-36, 97 S.Ct. 1211, 1217, 51 L.Ed.2d 376 (1977) (vital state concern in enforcement of contempt proceedings); Trainor v. Hernandez, 431 U.S. 434, 444, 97 S.Ct. 1911, 1918, 52 L.Ed.2d 486 (1977) (suit and accompanying writ of attachment brought by state to vindicate important state policies such as safeguarding the fiscal integrity of public assistance programs); Huffman, 420 U.S. at 609, 95 S.Ct. at 1210 (proceeding pursuant to state nuisance statute “in aid of and closely related to criminal statutes”). Thus, it is only civil proceedings “in which important state interests are involved” that warrant abstention under the Younger doctrine. Moore, 442 U.S. at 423 & n. 8, 99 S.Ct. at 2378 & n. 8 (“we do not remotely suggest that every pending proceeding between a State and a federal plaintiff justifies abstention unless one of the exceptions to Younger applies”); accord, Cate v. Oldham, 707 F.2d 1176, 1183 (11th Cir.1983) (“Application of the Younger doctrine to ongoing state civil proceedings has been limited to those civil actions in aid of criminal jurisdiction or involving enforcement-type proceedings in which vital interests of the state qua state are involved.”). Therefore, the initial inquiry in determining whether a federal court should abstain when asked to enjoin an" }, { "docid": "10072830", "title": "", "text": "the National Government, anxious though it may be to vindicate and protect federal rights and federal interests, always endeavors to do so in ways that will not unduly interfere with the legitimate activities of States. Id. at 44, 91 S.Ct. at 750-51. Although Younger dealt with an injunction against a state criminal proceeding, it has since been recognized that the concern for comity and federalism is equally applicable to certain civil proceedings in which important state interests are implicated. Ohio Civil Rights Commission v. Dayton Christian Schools, Inc., 477 U.S. 619, 106 S.Ct. 2718, 91 L.Ed.2d 512 (1986) (administrative civil rights proceeding); Middlesex County Ethics Committee v. Garden State Bar Ass’n., 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982) (state bar disciplinary hearing); Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975) (state nuisance action); Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977) (civil contempt proceeding); Trainor v. Hernandez, 431 U.S. 434, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977) (state welfare proceeding); Moore v. Sims, 442 U.S. 415, 423, 99 S.Ct. 2371, 2377, 60 L.Ed.2d 994 (1979) (child custody proceeding). Thus, the fact that this is a civil proceeding does not necessarily bar the application of the Younger doctrine. The Younger doctrine is properly raised in a motion to dismiss for failure to state a claim upon which relief can be granted, Kitchens v. Bowen, 825 F.2d 1337, 1339 (9th Cir.1987). Where the doctrine is applicable, abstention is required if: (1) there are pending state judicial proceedings; (2) the state proceedings implicate important state interests; and (3) the state proceedings provide an adequate opportunity to raise federal questions. Middlesex County Ethics Committee v. Garden State Bar Association, 457 U.S. 423, 432, 102 S.Ct. 2515, 2521, 73 L.Ed.2d 116 (1982); Fresh International Corp. v. Agricultural Labor Relations Board, 805 F.2d 1353, 1357-8 (9th Cir.1986). When these criteria are met, “a district court must dismiss the federal action ... [and] there is no discretion to grant injunctive relief.” Juidice v. Vail, 430 U.S. 327, 337, 97 S.Ct. 1211, 1218, 51" }, { "docid": "1794352", "title": "", "text": "administrative processes of the District of Columbia.” Dist.Ct.Op. at 8. Federal courts in general have the duty to adjudicate claims brought to them that are within their jurisdiction; there is no general principle that forbids federal courts from “interfering” in the processes of state and local courts when that “interference” is in reality the vindication of federal rights in cases within their jurisdiction. However, based on prin-eiples of equity — and in particular the principle that equity courts will not lightly enjoin criminal prosecutions in other courts, see Douglas v. City of Jeannette, 319 U.S. 157, 162-164, 63 S.Ct. 877, 880-881, 87 L.Ed. 1324 (1943) — the doctrine of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and its progeny restrains federal courts from interfering in ongoing state judicial proceedings. It is presumably this doctrine on which the Dis trict Court was relying in referring to the “principle of comity.” In Younger v. Harris the Supreme Court held that, absent extraordinary circumstances, federal courts may not enjoin an ongoing state criminal proceeding. In subsequent cases this prohibition has been extended to some civil proceedings that are in the nature of enforcement actions. See, e.g., Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975) (civil action to “abate” showing of obscene movies); Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977) (civil contempt proceedings); Trainor v. Hernandez, 431 U.S. 434, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977) (state action to recover welfare payments); Moore v. Sims, 442 U.S. 415, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979) (state action to gain custody of abused children). It has also been extended to cases in which the state proceeding was not pending at the time the federal action commenced, but in which the state action did begin before the federal action reached proceedings on the merits of the case. Hicks v. Miranda, 422 U.S. 332, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975). However, all valid applications of Younger have in common the principle that “federal equitable intervention is not warranted" }, { "docid": "9421434", "title": "", "text": "fashioned an abstention doctrine preventing federal courts from interfering with state criminal proceedings, even if there is an allegation of a federal constitutional violation. Younger abstention has been extended to civil proceedings where important state interests are involved. Huffman v. Pursue, 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975): Middlesex County Ethics Committee v. Garden State Bar Association, 457 U.S. 423, 432, 102 S.Ct. 2515, 2521, 73 L.Ed.2d 116 (1982). In Huffman, state officials instituted a civil nuisance proceeding against an adult theater under an Ohio statute which made the exhibition of obscene films a nuisance. The state prevailed in the trial court and obtained an injunction. Rather than appealing the judgment, the theater owner filed a suit in federal court under 42 U.S.C. § 1983 seeking declaratory and injunctive relief. The Supreme Court held that the lower federal courts were required to abstain under Younger. The court reasoned that the state’s nuisance proceeding was “more akin to a criminal prosecution than are most civil cases.” Id. at 604, 95 S.Ct. at 1208. In Trainor v. Hernandez, 431 U.S. 434, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977), the Supreme Court clarified that Younger abstention applies to all civil cases in which the state is a party. The Supreme Court has further explained that abstention is appropriate when the state is a party or when important state interests are at stake and so long as the state system provides an opportunity to adjudicate federal constitutional claims. Moore v. Sims, 442 U.S. 415, 423-26, 99 S.Ct. 2371, 2377-79, 60 L.Ed.2d 994 (1979). In determining whether a federal court should abstain on Younger grounds, the court must examine: (1) the nature of the state proceedings in order to determine whether the proceedings implicate important state interests, (2) the timing of the request for federal relief in order to determine whether there are ongoing state proceedings, and (3) the ability of the federal plaintiff to litigate its federal constitutional claims in the state proceedings. Kenneally v. Lungren, 967 F.2d 329, 331-32 (9th Cir.1992) (citing Middlesex, 457 U.S. 423, 102 S.Ct. 2515), cert." }, { "docid": "16181890", "title": "", "text": "The doctrine of Younger abstention, which reflects the principle of comity inherent in our federal system of government, provides much stronger support for abstention in this case. In Younger, the Supreme Court held that a district court erred in enjoining a state criminal prosecution when the plaintiffs federal claim could also have been raised as a defense in the state prosecution. Younger, 401 U.S. at 53-54, 91 S.Ct. 746. In so ruling, the Court specifically noted the absence of any evidence of “bad faith, harassment, or any other unusual circumstance that would call for equitable relief.” Id. at 54, 91 S.Ct. 746. It also suggested that abstention might not be appropriate if the statute the state was seeking to enforce was “flagrantly and patently violative of express constitutional prohibitions.” Id. at 53, 91 S.Ct. 746. The Supreme Court has extended Younger to forbid the injunction of certain state civil enforcement actions. In Huffman v. Pursue, Ltd., 420 U.S. 592, 594, 603-5, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975), the Court held that Younger applied to a federal action that sought to interfere with a state civil proceeding to abate the showing of obscene movies. In Trainor v. Hernandez, 431 U.S. 434, 447, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977), the Court ruled that Younger prevented a district court from enjoining an allegedly unconstitutional civil action brought by a state to recover fraudulently obtained welfare payments. As the Court later explained, “[t]he policies underlying Younger are fully applicable to noncriminal judicial proceedings when important state interests are involved.” Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982). We have also applied Younger outside the context of state criminal prosecutions. In Fuller v. Ulland, 76 F.3d 957 (8th Cir.1996), we explained that “Younger directs federal courts to abstain from hearing cases when (1) there is an ongoing state judicial proceeding which (2) implicates important state interests, and when (3) that proceeding affords an adequate opportunity to raise the federal questions presented.” Fuller, 76 F.3d at 959. In this case, the action" }, { "docid": "15664366", "title": "", "text": "progeny. The district court determined that the proceeding herein did not fall within the proscriptions of Younger; we agree. In Younger the Supreme Court held that Federal abstention is appropriate when Federal injunctive or declaratory relief has been sought against a pending State criminal prosecution, except upon a showing of special circumstances that would result in great and immediate irreparable harm to the Federal plaintiff. See 401 U.S. at 48, 53-54, 91 S.Ct. at 752, 754-55. Later cases expanded the reach of Younger abstention to civil cases, see Moore v. Sims, 442 U.S. 415, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979) (protection of children); Trainor v. Hernandez, 431 U.S. 434, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977) (civil attachment proceeding for wrongful payment of public assistance); Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977) (civil contempt proceedings); Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975) (enforcement of nuisance laws), and it has become clear that the vital consideration in Younger was not the distinction between civil and criminal proceedings, but rather the notions of federalism and comity were of paramount importance — abstention is appropriate when the State’s interest in enforcing certain of its laws with a nexus to criminal laws overrides the interests of the Federal government. The Federal courts’ interest in vindicating and protecting Federal rights and Federal interests must be attained without unduly interfering with the legitimate activities of the states. See 431 U.S. at 444, 97 S.Ct. at 1918. Despite the extension of the Younger doctrine to a wide variety of civil actions, the case before us today does not present circumstances justifying abstention of the Federal courts. First, the administrative agency charged with interpreting, enforcing, and applying the registration statute — the Department of Commerce and Consumer Affairs — lacks the power to resolve the constitutional claims of the plaintiffs. Since the Federal action herein challenges the First Amendment validity of the very statute that authorizes the administrative proceeding in the first place, appellees would not be afforded an adequate opportunity to adjudicate their" }, { "docid": "9989804", "title": "", "text": "defects which we find exist in the Michigan Take-Over Offers Act and the Michigan Uniform Securities Act, and we can discern none. See discussion infra. There is no constitutionally acceptable interpretation of the Michigan statute which would permit the state defendants to interfere with the timetable established by Congress under the Williams Act, a timetable which both parties have sought to employ free of state interference in various proceedings. Neither do we consider ourselves barred by the Younger doctrine. In Younger, the Supreme Court held that, absent extraordinary circumstances, a federal court is precluded from enjoining a pending state proceeding. Younger, supra, (pending criminal proceeding). Accord, Moore v. Sims, 442 U.S. 415, 423, 99 S.Ct. 2371, 2377, 60 L.Ed.2d 994 (1979) (pending civil proceeding); Huff man v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975) (pending civil proceeding). The Younger court relied on the notion of federal/state comity, a respect for state functions and a belief that the federal system would benefit if states and their institutions were left to perform their separate functions in separate ways. Id., 401 U.S. at 43-45, 91 S.Ct. at 750-751. They also relied upon traditional principles of equity jurisprudence, among them the principle that an injunction will not be granted where the plaintiff has an adequate remedy at law and will not suffer irreparable injury if denied equitable relief. Id., 401 U.S. at 43-44, 91 S.Ct. at 750. The doctrine of Younger non-interference “naturally presupposes the opportunity to raise and have timely decided by a competent state tribunal the federal issue involved.” Trainor v. Hernandez, 431 U.S. 434, 441, 97 S.Ct. 1911, 1916, 52 L.Ed.2d 486 (1977); Gibson v. Berryhill, 411 U.S. 564, 577, 93 S.Ct. 1689, 1697, 36 L.Ed.2d 488 (1973). In Younger, however, the Court clearly left open the possibility of federal injunctive relief against a pending state court proceeding in certain exceptional circumstances, where irreparable injury is both “great and immediate,” Younger, 401 U.S. at 46, 91 S.Ct. at 751, where the state law is “flagrantly and patently violative of express constitutional prohibitions,” id., 401 U.S. at" }, { "docid": "3969488", "title": "", "text": "Even though 'there is jurisdiction over Pan Am’s claims, New York contends that the court should abstain from exercising that jurisdiction under the principles of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and its progeny. In the Second Circuit, courts applying Younger abstention “ ‘must determine (1) whether there is an ongoing state proceeding; (2) whether an important state interest is involved; and (3) whether the federal plaintiff has an adequate opportunity for judicial review of his constitutional claims during or after the proceeding.’ ” University Club v. City of New York, 842 F.2d 37, 40 (2d Cir.1988) (quoting Christ the King Regional High School v. Culvert, 815 F.2d 219, 224 (2d Cir.), cert. denied, 484 U.S. 830, 108 S.Ct. 102, 98 L.Ed.2d 63 (1987)). Because applying these factors to this case offers no clear guidance to whether abstention is appropriate, this court declines to abstain. First, the state court proceeding against Pan Am is civil, not criminal. Traditionally, Younger abstention has applied to ongoing criminal proceedings, although the Supreme Court has expanded Younger protection to include civil enforcement proceedings, see, e.g., Moore v. Sims, 442 U.S. 415, 423, 99 S.Ct. 2371, 2377, 60 L.Ed.2d 994 (1979) (child custody proceeding); Trainor v. Hernandez, 431 U.S. 434, 444, 97 S.Ct. 1911, 1918, 52 L.Ed.2d 486 (1977) (action to recover public assistance payments allegedly obtained by fraud); Huffman v. Pursue, Ltd., 420 U.S. 592, 604, 95 S.Ct. 1200, 1208, 43 L.Ed.2d 482 (1975) (nuisance action to close down movie theatre that exhibited obscene films), reh’g denied, 421 U.S. 971, 95 S.Ct. 1969, 44 L.Ed.2d 463 (1975), and “civil proceedings involving certain orders that are uniquely in furtherance of the state courts’ ability to perform their judicial functions.” New Orleans Public Serv., Inc. v. Council of New Orleans, — U.S.-, 109 S.Ct. 2506, 2518, 105 L.Ed.2d 298 (1989) (citing Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 13, 107 S.Ct. 1519, 1527, 95 L.Ed.2d 1 (1987) (requirement for the posting of bond pending appeal); Juidice v. Vail, 430 U.S. 327, 336 n. 12, 97 S.Ct. 1211, 1217" }, { "docid": "11097102", "title": "", "text": "progeny, on the other hand, have erected a formidable prudential barrier to obtaining injunctive relief from ongoing state adjudicative proceedings. In Younger, the plaintiff, who was being prosecuted under the California Criminal Syndicalism Act, sought a federal court injunction pursuant to section 1983 against the state criminal prosecution on the grounds that the existence of the Act and the prosecution under it violated the first and fourteenth amendments. The Court refused to grant the injunction, citing concerns of comity and federalism. 401 U.S. at 44-45, 91 S.Ct. at 750-51. The Court held that federal interference with state court proceedings was available only upon a showing of irreparable injury that is “both great and immediate.” Id. at 46, 91 S.Ct. at 751. Thus, although an injunction pursuant to section 1983 is not statutorily prohibited, Younger creates a separate and independent judicially created abstention doctrine. The Younger abstention doctrine is a prudential limitation on the federal courts’ exercise of jurisdiction when a plaintiff requests that a federal court interfere with ongoing state proceedings. Consequently, the Clubs’ request for an injunction pursuant to 42 U.S.C. § 1983 fell squarely within the parameters of the Younger decision. However, in 1986, when the district court considered the question of whether the Clubs’ suit should be dismissed pursuant to Younger, the court expressed uncertainty as to whether Younger abstention should be applied to state administrative proceedings initiated by a private plaintiff. At that time, the Supreme Court had extended the Younger doctrine to civil proceedings initiated by the state in a state court in which important state interests were involved. See Moore v. Sims, 442 U.S. 415, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979); Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977); Trainor v. Hernandez, 431 U.S. 434, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977); Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975). The Court had also applied Younger to state administrative proceedings initiated by the state in which important state interests were vindicated. See Middlesex County Ethics Committee v. Garden State Bar Assoc., 457" }, { "docid": "18722737", "title": "", "text": "Governments, and in which the National Government, anxious though it may be to vindicate and protect federal rights and federal interests, always endeavors to do so in ways that will not unduly interfere with the legitimate activities of the States.” Id. The Court has recognized that the policy concerns addressed in Younger are equally applicable to certain pending state proceedings other than criminal proceedings. In Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975), and in a number of subsequent cases, see Pennzoil Co. v. Texaco, Inc., — U.S.-, 107 S.Ct. 1519, 95 L.Ed.2d 1 (1987); Moore v. Sims, 442 U.S. 415, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979); Trainor v. Hernandez, 431 U.S. 434, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977); Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977), the Court concluded that Younger abstention is applicable to pending civil proceedings. The Court has also found Younger applicable to pending state administrative proceedings. See Ohio Civil Rights Comm’n v. Dayton Christian Schools, Inc., — U.S.-, 106 S.Ct. 2718, 91 L.Ed.2d 512 (1986); Middle-sex County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982); Gibson v. Berryhill, 411 U.S. 564, 93 S.Ct. 1689, 36 L.Ed.2d 488 (1973). The Court’s recent decision in Dayton Christian Schools, 106 S.Ct. at 2718, provides useful guidance in this case. There the Court held that the federal courts should have abstained where a religious school brought a civil rights action against a state civil rights commission to enjoin the commission from proceeding against the school on a sex discrimination complaint brought by one of the school’s teachers. The Court relied on two factors to determine whether abstention was required: the importance of the state interest, and the existence of an adequate opportunity to raise constitutional claims. Id. 106 S.Ct. at 2723. We believe that the Younger doctrine is fully applicable to the pending state administrative proceeding in this case. Both of the factors discussed in Dayton Christian Schools counsel in favor of abstention here. First, the state’s" }, { "docid": "12143881", "title": "", "text": "district court should have abstained from hearing Harris’ claim. The Court stated that considerations of federalism and comity dictated that a federal court should refrain from deciding broad constitutional challenges to the legitimacy of a state criminal proceeding, provided that the state proceeding was undertaken in good faith and the federal plaintiff was given an adequate opportunity to press his constitutional claims in the state forum. Younger v. Harris, 401 U.S. at 43-53, 91 S.Ct. at 751-55. Since Younger, the Supreme Court has invoked the abstention doctrine to overturn federal court challenges to the constitutionality of pending state civil proceedings. Penzoil Co. v. Texaco, Inc., — U.S.-, 107 S.Ct. 1519, 95 L.Ed.2d 1 (1987); Middlesex Ethics Committee v. Garden State Bar Association, 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982); Moore v. Sims, 442 U.S. 415, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979); Trainor v. Hernandez, 431 U.S. 434, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977); Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977); Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975). Those cases featured federal plaintiffs who had lodged broad constitutional attacks on the legitimacy of state civil proceedings instituted against them. In each case, the federal court was asked to enjoin a contemporaneous state civil proceeding pending against the federal plaintiff; the relief sought by the federal plaintiff was directed specifically at the pending state proceeding. Here, Kercado had not requested the federal district court to enjoin any state civil proceeding pending against her. Such a prayer would have been futile because the Secretary had already completed dismissal proceedings against Kercado; by its own terms, the order of dismissal became effective upon its receipt by Kercado. Accordingly, there were no proceedings for the district court to enjoin. The Secretary urges, however, that because Kercado could have appealed the dismissal to the DPI Board of Appeals, the district court should have abstained and thereby forced Kercado to litigate her constitutional claims in a Puerto Rico forum. In effect, the Secretary argues that Kercado should not have" }, { "docid": "3969489", "title": "", "text": "Supreme Court has expanded Younger protection to include civil enforcement proceedings, see, e.g., Moore v. Sims, 442 U.S. 415, 423, 99 S.Ct. 2371, 2377, 60 L.Ed.2d 994 (1979) (child custody proceeding); Trainor v. Hernandez, 431 U.S. 434, 444, 97 S.Ct. 1911, 1918, 52 L.Ed.2d 486 (1977) (action to recover public assistance payments allegedly obtained by fraud); Huffman v. Pursue, Ltd., 420 U.S. 592, 604, 95 S.Ct. 1200, 1208, 43 L.Ed.2d 482 (1975) (nuisance action to close down movie theatre that exhibited obscene films), reh’g denied, 421 U.S. 971, 95 S.Ct. 1969, 44 L.Ed.2d 463 (1975), and “civil proceedings involving certain orders that are uniquely in furtherance of the state courts’ ability to perform their judicial functions.” New Orleans Public Serv., Inc. v. Council of New Orleans, — U.S.-, 109 S.Ct. 2506, 2518, 105 L.Ed.2d 298 (1989) (citing Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 13, 107 S.Ct. 1519, 1527, 95 L.Ed.2d 1 (1987) (requirement for the posting of bond pending appeal); Juidice v. Vail, 430 U.S. 327, 336 n. 12, 97 S.Ct. 1211, 1217 n. 12, 51 L.Ed.2d 376 (1977) (civil contempt order)). Arguably, New York’s lawsuit against Pan Am constitutes a “civil enforcement proceeding” — the State seeks to punish Pan Am’s alleged violation of New York’s false advertising law through civil penalties and an injunction. However, this action differs in significant respects from other civil actions in which courts have abstained. First, New York sued Pan Am in state court after Pan Am had commenced its federal action, and Pan Am promptly removed that suit to federal court. The Supreme Court has recognized that Younger abstention still applies where a state proceeding begins subsequent to a federal action, provided there have been no “proceedings of substance on the merits” in the federal case. Hicks v. Miranda, 422 U.S. 332, 349, 95 S.Ct. 2281, 2291, 45 L.Ed.2d 223 (1975); see also Doran v. Salem Inn, Inc., 422 U.S. 922, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975) (abstaining where state summons issued some days following the federal complaint); Giulini v. Blessing, 654 F.2d 189, 193 (2d Cir.1981) (finding that" }, { "docid": "19384477", "title": "", "text": "nature, we think the salient fact is that federal court interference with the State’s contempt process is ‘an offense to the State’s interest ... likely to be every bit as great as it would be were this a criminal proceeding.’” Id. at 334, 97 S.Ct. 1211 (quoting Huffman, 420 U.S. at 604, 95 S.Ct. 1200). In subsequent cases, the Supreme Court has found that Younger abstention- should apply in other civil proceedings. In Trainor v. Hernandez, 431 U.S. 434, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977), the state of Illinois had brought a civil action to recover welfare payments that allegedly had been obtained through fraud. Simultaneously, the state obtained a writ attaching money in a credit union belonging to the welfare recipients. The recipients brought an action in federal court challenging the Illinois attachment procedures. The Supreme Court held that the lower federal court should have abstained. The Court noted that “the State was a party to the suit in its role of administering its public assistance programs” and concluded that “the principles of Younger and Huffman are broad enough to apply to interference by a federal court with an ongoing civil enforcement action such as this, brought by the State in its sovereign capacity.” Id. at 444, 97 S.Ct. 1911. In Moore v. Sims, 442 U.S. 415, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979), the Supreme Court held that the federal courts should abstain from deciding whether provisions of the Texas Family Code were,, unconstitutional when there was a pending civil court proceeding brought by the State for temporary custody of allegedly abused children. The Court noted that the case: was like Huffman in that “the State here was a party to the state proceedings, and the temporary removal of a child,in a child-abuse context is, like the public nuisance statute involved in Huffman, ‘in aid of and closely related to criminal statutes.’ Moore, 442 U.S. at 423, 99 S.Ct. 2371 (quoting Huffman, 420 U.S. at 604, 95 S.Ct. 1200).” In two cases, the Supreme Court expanded the Younger doctrine to require federal courts to abstain in favor" }, { "docid": "18764667", "title": "", "text": "express constitutional prohibitions. Younger, 401 U.S. at 53-54, 91 S.Ct. at 754-55; accord, Huffman v. Pursue, Ltd., 420 U.S. 592, 611, 95 S.Ct. 1200, 1211, 43 L.Ed.2d 482 (1975). Proceeding on the assumption that an injunction of the state court action in this case would be appropriate only if this case came within one of the narrow exceptions to the Younger doctrine, the district court found that Appellants had engaged in harassment and bad faith sufficient to justify issuance of an injunction. We need not reach the issue of whether the district court was correct in its determination that Appellants’ actions amounted to bad faith and harassment because we find that the Younger doctrine is not applicable on the facts of this case. As discussed above, Younger v. Harris dealt with the propriety of a federal injunction against ongoing state criminal proceedings. In the civil context, the comity principles embodied in the Younger doctrine have been held applicable when “the State’s interests in the proceeding are so important that exercise of the federal judicial power would disregard the comity between the States and the National Government.” Pennzoil Co. v. Texaco, Inc., — U.S. -, -, 107 S.Ct. 1519, 1526, 95 L.Ed.2d 1 (1987). See, e.g., id. 107 S.Ct. at 1527 (state interest in execution of state judgments); Ohio Civil Rights Comm’n v. Dayton Christian Schools, Inc., — U.S. -, -, 106 S.Ct. 2718, 2723, 91 L.Ed.2d 512 (1986) (state civil rights commission action to vindicate state interest in elimination of sex discrimination); Middlesex County Ethics Comm’n v. Garden State Bar Ass’n, 457 U.S. 423, 434, 102 S.Ct. 2515, 2522, 73 L.Ed.2d 116 (1982) (important state interest in maintaining and assuring the professional conduct of attorneys it licenses); Moore v. Sims, 442 U.S. 415, 423, 99 S.Ct. 2371, 2377, 60 L.Ed.2d 994 (1979) (child custody proceedings “in aid of and closely related to criminal statutes”); Juidice v. Vail, 430 U.S. 327, 335-36, 97 S.Ct. 1211, 1217, 51 L.Ed.2d 376 (1977) (vital state concern in enforcement of contempt proceedings); Trainor v. Hernandez, 431 U.S. 434, 444, 97 S.Ct. 1911, 1918, 52 L.Ed.2d" } ]

[ { "docid": "22619196", "title": "", "text": "those leg islative Acts which in his view implicated the core concern of the Ex Post Facto Clause: “1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.” Id., at 390 (emphasis in original). Early opinions of the Court portrayed this as an exclusive definition of ex post facto laws. Fletcher v. Peck, 6 Cranch 87, 138 (1810); Cummings v. Missouri, 4 Wall. 277, 325-326 (1867); id., at 391 (Miller, J., dissenting) (“This exposition of the nature of ex post facto laws has never been denied, nor has any court or any commentator on the Constitution added to the classes of laws here set forth, as coming within that clause”); Gut v. State, 9 Wall. 35, 38 (1870). So well accepted were these principles that the Court in Beazell v. Ohio, 269 U. S. 167 (1925), was able to confidently summarize the meaning of the Clause as follows: “It is settled, by decisions of this Court so well known that their citation may be dispensed with, that any statute which punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed, is prohibited as ex post facto. ” Id., at 169-170. See also Dobbert v. Florida, 432 U. S. 282, 292 (1977). The Beazell formulation is faithful to our best knowledge of the original understanding of the Ex Post Facto Clause: Legislatures may not retroactively alter the" } ]

[ { "docid": "21610588", "title": "", "text": "applicable to persons sentenced for crimes occurring on or after July 1, 1979. It is the retroactive application of this statute that Devine protested in his habeas petition to the New Mexico Supreme Court. In Quintana, 668 P.2d 1101, the court held there was no ex post facto violation and dismissed Devine’s petition. The court based its holding on its conclusion that chapter 216, § 12, rather than the 1980 law, applied to Devine and was in effect at the time of his offense and guilty plea. Id. at 1104. On appeal in this action, Devine reiterates his ex post facto claim and also argues that the Quintana decision is so unforeseeable an interpretation of the various laws at issue as to constitute a violation of the due process clause of the Fourteenth Amendment under the Supreme Court’s decision in Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964). II. “The ex post facto prohibition forbids the Congress and the States to enact any law ‘which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed.’ ” Weaver v. Graham, 450 U.S. 24, 28, 101 S.Ct. 960, 963, 67 L.Ed.2d 17 (1981) (quoting Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 325-26, 18 L.Ed. 356 (1866)) (footnote omitted). For a law to be considered ex post facto “it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it.” Id. at 29,101 S.Ct. at 964 (footnote omitted); see also Miller v. Florida, 482 U.S. 423, 107 S.Ct. 2446, 2451, 96 L.Ed.2d 351 (1987). It is true, as will be discussed more fully below, that “a repealer of parole eligibility previously available to imprisoned offenders would clearly present ... [a] serious question under the ex post facto clause.” Warden v. Marrero, 417 U.S. 653, 663, 94 S.Ct. 2532, 2538, 41 L.Ed.2d 383 (1974). However, it is equally true that “[t]he Ex Post Facto Clause is a limitation upon the" }, { "docid": "23481854", "title": "", "text": "against retroactivity “is-deeply rooted in our jurisprudence and embodies a legal doctrine centuries older than the Republic.” Lynce, — U.S. at -, 117 S.Ct. at 895 (quoting Landgraf, 511 U.S. at 265, 114 S.Ct. at 1497). Lynce proceeded to explain that: in both the civil and the criminal contexts, the Constitution places limits on the sovereign’s ability to use its law-making power to modify- bargains it has made with its subjects. The basic principle is one that protects not just the.rich and the powerful, -but also the indigent defendant engaged in negotiations-that- may lead to. an acknowledgment of guilt and a suitable punishment. Lynce, — U.S. at —, 117 S.Ct. at 895 (emphasis added). -. [39]- The longstanding ease law on what makes- a criminal statute retroactive provides helpful analogies. Any change from a discrétionary system to a system of mandatory penalties for prior crimes is retroactive. That is because the; individual is being-deprived-of the ability to bring equitable .circumstances to bear .on his case. See. War den, Lewisburg Penitentiary v. Marrero, 417 U.S. 653, 663, 94 S.Ct. 2532, 2538, 41 L.Ed.2d 383 (1974) (statute taking away parole eligibility for offenses subject to parole according to the law at the time they were committed could be found to be constitutionally impermissible as an ex post facto law); Lindsey v. Washington, 301 U.S. 397, 57 S.Ct. 797, 81 L.Ed. 1182 (1937) (a statute changing a maximum sentence to a mandatory sentence for an offense committed prior to statute’s enactment is an impermissible ex post facto law). Retroactivity depends on when the crime is committed, and not on any later date. In a system of law people have a right to know the possible consequences of their actions and to know that these consequences will not lightly be changed. Even if retroactivity is measured from conviction rather than from commission of the crime it is suspect. Once the individual is accused of a crime and has to make choices during criminal proceedings, he or she begins actual reliance on expectations of the law. In criminal proceedings the accused faces a number of" }, { "docid": "10775221", "title": "", "text": "to complete the clerical task of filing the Order to Show Cause with the Immigration Court. In the interim, on April 24, 1996, AEDPA had been passed. Then Wallace faced an additional six month delay while the Immigration Court found an opportunity, in its crowded docket, to hold an initial hearing in his case. Although Wallace expressed his intent to apply for § 212(c) relief immediately at his first hearing, it is unclear when his application was formally filed. See 8 C.F.R. § 212.3(e) (not specifying when during the Immigration Court proceedings the 1-191 application form itself had to be filed). Defining retroactivity as only encompassing pending petitions consequently ignores the Supreme Court’s directive that retroac-tivity is a “functional” concept, not an abstract, technical one. Hughes, 117 S.Ct. at 1876; Landgraf, 511 U.S. at 269, 114 S.Ct. 1483. As part of this functional analysis, retroactivity is to be judged partly by assessing the “connection between the operation of the new rule and [the] relevant past event.” Landgraf, 511 U.S. at 270, 114 S.Ct. 1483. There is little connection between a law that bars alien criminal offenders from applying for discretionary relief and random acts of administrative scheduling. Nor would confining Goncalves to pending applications make sense in light of the central theme of the Court’s retroactivity jurisprudence: that a statute is retroactive if it imposes additional burdens for past conduct. See, e.g., Hughes, 520 U.S. -, 117 S.Ct. at 1876-78; Landgraf, 511 U.S. at 269 n. 23, 114 S.Ct. 1483 (citing Miller v. Florida, 482 U.S. 423, 430, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987) (“A law is retrospective if it ‘changes the legal consequences of acts completed before its effective date’”) (quoting Weaver v. Graham, 450 U.S. 24, 31, 101 S.Ct. 960, 67 L.Ed.2d 17(1981)); Union Pacific R. Co. v. Laramie Stock Yards Co., 231 U.S. 190, 199, 34 S.Ct. 101, 58 L.Ed. 179 (1913) (retroactive statute gives “a quality or effect to acts or conduct which they did not have or did not contemplate when they were performed”) (emphases added)). A successful applicant for § 212(c) relief normally" }, { "docid": "17485190", "title": "", "text": "ascertain the statute’s temporal scope.” Id., 511 U.S. 244, 114 S.Ct. 1483; see also Lindh, 521 U.S. 320, 117 S.Ct. at 2063. Finally, if the court cannot ascertain congressional intent, we consider whether the statute has a retroactive effect. See Landgraf, 511 U.S. at 280, 114 S.Ct. 1483; Craig, 164 F.3d at 494. If a retroactive effect exists, “it triggers the traditional judicial presumption against retroactivity and the new law will not be applied.” Craig, 164 F.3d at 494 (citing Landgraf, 511 U.S. at 280, 114 S.Ct. 1483). A provision has a retroactive effect if it, for example, “would impair rights a party possessed when he acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed.” Landgraf, 511 U.S. at 280, 114 S.Ct. 1483; see also Hughes Aircraft Co. v. United States ex. rel. Schumer, 520 U.S. 939, 117 S.Ct. 1871, 1876, 138 L.Ed.2d 135 (1997) (stating that the above list is illustrative but not exhaustive). However, “[a] statute does not operate ‘retrospectively’ merely because it is applied in a case arising from conduct antedating the statute’s enactment or upsets expectations. Rather, the court must ask whether the new provision attaches new legal consequences to events completed before its enactment.” Landgraf, 511 U.S. at 269-70, 114 S.Ct. 1483 (internal citations omitted). The Supreme Court has emphasized that this is a functional test. Any test of retroactivity will leave room for disagreement in hard cases, and is unlikely to classify the, enormous variety of legal changes with perfect philosophical clarity. However, retroactivity is a matter on which judges tend to have “sound ... instinct[s],” see Danforth v. Groton Water Co., 178 Mass. 472, 476, 59 N.E. 1033, 1034 (1901) (Holmes, J.), and familiar considerations of fair notice, reasonable reliance, and settled expectations offer sound guidance. Id. at 270, 114 S.Ct. 1483. The Court in Landgraf further elaborated that the presumption against retroactivity did not apply in certain circumstances. For example, “[w]hen the intervening statute authorizes or affects the propriety of prospective relief, application of the new provision is not retroactive,” id. at 273," }, { "docid": "16153535", "title": "", "text": "v. New Mexico Dep’t of Corrections, 866 F.2d 339, 342, 344 (10th Cir.1989). Nevertheless, “an unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto law,” Bouie v. City of Columbia, 378 U.S. 347, 353, 84 S.Ct. 1697, 1702, 12 L.Ed.2d 894 (1964), so we apply ex post facto principles to decide the due process issue. The critical test, as stated in recent Supreme Court cases, is whether, as applied, the change impairs “substantial personal rights,” or merely changes “modes of procedure which do not affect matters of substance.” Dobbert v. Florida, 432 U.S. 282, 293, 97 S.Ct. 2290, 229, 53 L.Ed.2d 344 (1977) (quoting Beazell v. Ohio, 269 U.S. 167, 171, 46 S.Ct. 68, 69, 70 L.Ed. 216 (1925)); see also Miller v. Florida, 482 U.S. 423, 107 S.Ct. 2446, 2451, 96 L.Ed.2d 351 (1987); United States v. Affleck, 765 F.2d 944, 948 (10th Cir.1985) (en banc) (no ex post facto violation if new law is merely procedural and does not increase punishment for, or change the elements of, an offense, or alter facts necessary to establish guilt). An unforeseeable judicial interpretation that makes a crime greater than when it was committed, Bouie, 378 U.S. at 353, 84 S.Ct. at 1702, or that inflicts a greater punishment than the law permitted when the crime was committed, Miller, 107 S.Ct. at 2450, violates ex post facto principles and a defendant’s due process rights. Does the change at issue before us — the decision that death sentences are no longer automatically vacated when the jury has found an invalid aggravating circumstance —affect Coleman’s substantive rights by making his crime greater or inflicting greater punishment than when the murder was committed? The crime was then and still is first degree murder, and death was and still is the maximum punishment for the crime. Facially, Stouffer does not aggravate Coleman’s crime or increase his punishment. In Weaver v. Graham, 450 U.S. 24, 29-30 & n. 12, 101 S.Ct. 960, 964-65 & n. 12, 67 L.Ed.2d 17 (1981), the Supreme Court stated the ex post facto test in" }, { "docid": "21610589", "title": "", "text": "for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed.’ ” Weaver v. Graham, 450 U.S. 24, 28, 101 S.Ct. 960, 963, 67 L.Ed.2d 17 (1981) (quoting Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 325-26, 18 L.Ed. 356 (1866)) (footnote omitted). For a law to be considered ex post facto “it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it.” Id. at 29,101 S.Ct. at 964 (footnote omitted); see also Miller v. Florida, 482 U.S. 423, 107 S.Ct. 2446, 2451, 96 L.Ed.2d 351 (1987). It is true, as will be discussed more fully below, that “a repealer of parole eligibility previously available to imprisoned offenders would clearly present ... [a] serious question under the ex post facto clause.” Warden v. Marrero, 417 U.S. 653, 663, 94 S.Ct. 2532, 2538, 41 L.Ed.2d 383 (1974). However, it is equally true that “[t]he Ex Post Facto Clause is a limitation upon the powers of the Legislature and does not of its own force apply to the Judicial Branch of government.” Marks v. United States, 430 U.S. 188, 191, 97 S.Ct. 990, 992, 51 L.Ed.2d 260 (1977) (citation omitted). See also Rubino v. Lynaugh, 845 F.2d 1266, 1271 (5th Cir.1988). In this case, the New Mexico Supreme Court specifically decided that the potentially retroactive repeal of parole eligibility passed by the legislature in 1980 did not apply to Devine. Rather, it held that chapter 216, § 12, a statute passed in 1977 well before Devine’s offense, extended his mandatory prison term from ten to thirty years. Since no act passed by the legislature after De-vine’s offense was applied, the ex post fac-to clause is not implicated. III. Although the ex post facto clause does not apply itself to Devine’s dilemma, its principles apply to the actions of the New Mexico Supreme Court, for “[i]f a state legislature is barred by the Ex Post Facto Clause from passing such a law, it must follow that a State Supreme Court" }, { "docid": "17027545", "title": "", "text": "law is prohibited as ex post acto if it “ ‘punishes as a crime an act previously committed, which was innocent when done, ... makes more burdensome the punishment for a crime, after its commission, or ... deprives one charged with a crime of any defense available according to law at the time when the act was committed ...’” Collins v. Youngblood, 497 U.S. 37, 42, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990), quoting Beazell v. Ohio, 269 U.S. 167, 169-70, 46 S.Ct. 68, 70 L.Ed. 216 (1925); see also Miller v. Florida, 482 U.S. 423, 430, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987); California Dept. of Corrections v. Morales, 514 U.S. 499, 504, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995); Hamilton v. U.S., 67 F.3d 761, 764 (9th Cir.1995); United States v. Lozano, 138 F.3d 915, 916 (11th Cir.1998). Thus, a statute or administrative regulation may be barred as retrospective even if it alters punitive conditions outside the sentence. Weaver, 450 U.S. at 32, 101 S.Ct. 960. The Ex Post Facto Clause prohibits prison officials, for example, from imposing new or amended regulations which are themselves “punitive conditions” of confinement. Id. (postulating that statute requiring solitary confinement prior to execution would be barred as ex post facto when applied to capital offender whose offense was committed prior to the statute’s enactment). After CDOC v. Morales, supra, Lynce v. Mathis, 519 U.S. 438, 117 S.Ct. 891, 137 L.Ed.2d 63 (1997), and now Garner v. Jones, — U.S. —, 120 S.Ct. 1362, 146 L.Ed.2d 236 (2000), courts must evaluate (1) whether the state law or regulation produces a sufficient risk of increasing the punishment attached to the covered crimes and (2) whether the measure was carefully tailored to effectuate a legitimate regulatory purpose. To determine whether a new measure is “punitive” or merely regulatory, courts should consider whether the text and structure of the regulation evince an intent to punish or whether any additional “punishment” was merely incidental. Russell v. Gregoire, 124 F.3d 1079 (9th Cir.1997). Occasionally, a regulation may be so punitive in effect as to prevent a court from" }, { "docid": "4179320", "title": "", "text": "3730(e)(4)(A) (2010) (emphasis added). Purdue argues that the amended version of the statute applies, while the Relators argue that the prior version of the statute applies. “[T]he principle that the legal effect of conduct should ordinarily be assessed under the law that existed when the conduct took place has timeless and universal appeal.” Landgraf v. USI Film Prods., 511 U.S. 244, 265, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994) (internal quotation marks omitted). Accordingly, a “presumption against retroactive legislation-is deeply rooted in our jurisprudence,” id., and that “time-honored presumption” must apply “unless Congress has clearly manifested its intent to the contrary,” Hughes Aircraft Co. v. United States ex rel. Schumer, 520 U.S. 939, 946, 117 S.Ct. 1871, 138 L.Ed.2d 135 (1997). The presumption against retroactivity, however, is limited to statutes “that would have genuinely ‘retroactive’ effect.” Landgraf, 511 U.S. at 277, 114 S.Ct. 1483. A statute has retroactive effect if it “takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past.” Id. at 269, 114 S.Ct. 1483 (internal quotation marks omitted). Applying these principles, the Supreme Court has twice held that the 2010 FCA amendments may not be applied to cases arising before the effective date of the amendments. See Graham Cnty. Soil & Water Conservation Dist. v. United States ex rel. Wilson, 559 U.S. 280, 283 n. 1, 130 S.Ct. 1396, 176 L.Ed.2d 225 (2010) (“The legislation makes no mention of retroactivity, which would be necessary for its application to pending cases given that it eliminates petitioners’ claimed defense to a qui tarn suit.”); see also Schindler Elevator Corp. v. United States ex rel. Kirk, — U.S. -, 131 S.Ct. 1885, 1889 n. 1, 179 L.Ed.2d 825 (2011) (citing Graham County and stating that the 2010 amendments “are not applicable to pending .cases”). The circuit courts .considering the issue have likewise applied the pre-2010 version of the statute. See United States ex rel. Zizic v. Q2Administrators, LLC, 728 F.3d 228, 232 n. 3 (3d Cir.2013); United States" }, { "docid": "19884423", "title": "", "text": "At Landgraf s second step, we apply a presumption against the statute’s retroactive application. “The aim of the presumption is to avoid unnecessary post hoc changes to legal rules on which parties relied in shaping their primary conduct.” Austria v. Altmann, 541 U.S. 677, 696, 124 S.Ct. 2240, 159 L.Ed.2d 1 (2004). The presumption protects the “settled expectations” of individuals by giving them “an opportunity to know what the law is and to conform their conduct accordingly.” Landgraf, 511 U.S. at 265, 114 S.Ct. 1483. The Court acknowledged in Landgraf that “deciding when a statute operates ‘retroactively’ is not always a simple or mechanical task.” Id. at 268, 114 S.Ct. 1483. Rather than providing a formula to apply at Landgraf s second step, the Court has repeatedly instructed courts to make “a commonsense, functional judgment about whether the new provision attaches new legal consequences to events completed before its enactment.” St. Cyr, 533 U.S. at 321, 121 S.Ct. 2271 (internal quotation marks omitted) (quoting Martin v. Hadix, 527 U.S. 343, 357-58, 119 S.Ct. 1998, 144 L.Ed.2d 347 (1999) (quoting Landgraf, 511 U.S. at 270, 114 S.Ct. 1483)). This judgment “should be informed and guided by familiar considerations of fair notice, reasonable reliance, and settled expectations.” Id. (internal quotation marks omitted) (quoting Martin, 527 U.S. at 358, 119 S.Ct. 1998 (quoting Landgraf, 511 U.S. at 270, 114 S.Ct. 1483)). Landgraf is frequently cited for the Court’s paraphrase of Justice Story: A provision operates retroactively if it “would impair rights a party possessed when he acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed.” Landgraf, 511 U.S. at 280, 114 S.Ct. 1522; see also id. at 269, 114 S.Ct. 1522. However, this list of retroactive effects “merely deseribe[s] ... sufficient, rather than ... necessary, condition^] for invoking the presumption against retroac-tivity.” Hughes Aircraft Co. v. United States ex rel. Schumer, 520 U.S. 939, 947, 117 S.Ct. 1871, 138 L.Ed.2d 135 (1997) (emphases in original). The Court has twice considered aliens’ claims that IIRIRA’s repeal of relief from deportation was impermissibly retroactive as applied" }, { "docid": "19884424", "title": "", "text": "L.Ed.2d 347 (1999) (quoting Landgraf, 511 U.S. at 270, 114 S.Ct. 1483)). This judgment “should be informed and guided by familiar considerations of fair notice, reasonable reliance, and settled expectations.” Id. (internal quotation marks omitted) (quoting Martin, 527 U.S. at 358, 119 S.Ct. 1998 (quoting Landgraf, 511 U.S. at 270, 114 S.Ct. 1483)). Landgraf is frequently cited for the Court’s paraphrase of Justice Story: A provision operates retroactively if it “would impair rights a party possessed when he acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed.” Landgraf, 511 U.S. at 280, 114 S.Ct. 1522; see also id. at 269, 114 S.Ct. 1522. However, this list of retroactive effects “merely deseribe[s] ... sufficient, rather than ... necessary, condition^] for invoking the presumption against retroac-tivity.” Hughes Aircraft Co. v. United States ex rel. Schumer, 520 U.S. 939, 947, 117 S.Ct. 1871, 138 L.Ed.2d 135 (1997) (emphases in original). The Court has twice considered aliens’ claims that IIRIRA’s repeal of relief from deportation was impermissibly retroactive as applied to them. In St. Cyr, the Court held that IIRIRA’s repeal of waiver of deportation under INA § 212(c) is imper-missibly retroactive as applied to aliens who pled guilty pursuant to plea agreements before the enactment of IIRIRA. 533 U.S. at 325-26, 121 S.Ct. 2271. The Court wrote, “There can be little doubt that, as a general matter, alien defendants considering whether to enter into a plea agreement are acutely aware of the immigration consequences of their convictions.” Id. at 322, 121 S.Ct. 2271. The Court found the “potential for unfairness ... significant and manifest” in the retroactive denial of defendants’ eligibility for § 212(c) relief after the defendants gave up their right to go to trial based on the opportunity to apply for a waiver of deportation. Id. at 323, 121 S.Ct. 2271. The Court wrote that “[t]here is a clear difference, for the purposes of retroactivity analysis, between facing possible deportation and facing certain deportation.” Id. at 325, 121 S.Ct. 2271 (citing Hughes Aircraft, 520 U.S. at 949, 117 S.Ct. 1871; Lindsey v." }, { "docid": "16153534", "title": "", "text": "petitioners convicted before the Stauffer decision. Castro, 749 P.2d at 1150. The Castro court held that Stouffer merely interpreted a statute that was in effect when the crimes were committed, and does not “criminalize conduct which was innocent when done, nor ... make the crime greater than when it was committed.” Id. Soon after Castro, however, the Court of Criminal Appeals held that, as applied to defendants convicted before its enactment, an Oklahoma statute allowing the court to remand for resen-tencing when a defendant’s death sentence was imposed unconstitutionally was an ex post facto law because it permitted reinsti-tution of a death sentence, a result not possible under prior court-made rule. Dutton v. Dixon, 757 P.2d 376, 379 (Okla.Crim.App.1988). The Dutton court distinguished Castro without discussion. Coleman’s constitutional rights here derive from the Due Process Clause because the law change at issue was by judicial construction; the prohibition against ex post facto laws applies only to legislative enactments. Marks v. United States, 430 U.S. 188, 191-92, 97 S.Ct. 990, 992-93, 51 L.Ed.2d 260 (1977); Devine v. New Mexico Dep’t of Corrections, 866 F.2d 339, 342, 344 (10th Cir.1989). Nevertheless, “an unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto law,” Bouie v. City of Columbia, 378 U.S. 347, 353, 84 S.Ct. 1697, 1702, 12 L.Ed.2d 894 (1964), so we apply ex post facto principles to decide the due process issue. The critical test, as stated in recent Supreme Court cases, is whether, as applied, the change impairs “substantial personal rights,” or merely changes “modes of procedure which do not affect matters of substance.” Dobbert v. Florida, 432 U.S. 282, 293, 97 S.Ct. 2290, 229, 53 L.Ed.2d 344 (1977) (quoting Beazell v. Ohio, 269 U.S. 167, 171, 46 S.Ct. 68, 69, 70 L.Ed. 216 (1925)); see also Miller v. Florida, 482 U.S. 423, 107 S.Ct. 2446, 2451, 96 L.Ed.2d 351 (1987); United States v. Affleck, 765 F.2d 944, 948 (10th Cir.1985) (en banc) (no ex post facto violation if new law is merely procedural and does not increase punishment for, or change the elements" }, { "docid": "16032689", "title": "", "text": "459 U.S. 359, 365-69, 103 S.Ct. 673, 677-80, 74 L.Ed.2d 535 (1983) (where multiple punishments imposed in single prosecution, the double jeopardy inquiry is only whether legislature intended such multiple punishment). . United States v. Heath, 970 F.2d 1397 (5th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 1643, 123 L.Ed.2d 265 (1993); Lemons. . See United States v. Vasquez-Rodriguez, 978 F.2d 867 (5th Cir.1992). . 941 F.2d 309 (5th Cir.1991). . Section 3282 provides \"Except as otherwise expressly provided by law, no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within five years next after such offense shall have been committed.” . That clause, regulating the authority of Congress, provides \"No Bill of Attainder or ex post facto Law shall be passed.” . Congress expressly indicated that § 3293, adopted August 9, 1989, would apply to offenses committed before and for which the limitations period had not run as of its enactment. Financial Institutions Reform, Recovery, and Enforcement Act of 1989, Pub.L. 101-73, § 961(0(3), 103 Stat. 501 (1989). . Collins v. Youngblood, 497 U.S. 37, 50, 110 S.Ct. 2715, 2723, 111 L.Ed.2d 30 (1990). . Id. at 41, 110 S.Ct. at 2718 (citing Beazell v. Ohio, 269 U.S. 167, 46 S.Ct. 68, 70 L.Ed. 216 (1925)). Pre-Youngblood jurisprudence suggested that statutes retroactively prejudicing \"substantial rights” of criminal defendants also might violate the ex post facto clause. See, e.g., Miller v. Florida, 482 U.S. 423, 433, 107 S.Ct. 2446, 2452, 96 L.Ed.2d 351 (1987); Weaver v. Graham, 450 U.S. 24, 29 n. 12, 101 S.Ct. 960, 964 n. 12, 67 L.Ed.2d 17 (1981). However, Youngblood makes clear that \"substantial rights\" language in earlier opinions does not expand the bases upon which a criminal defendant may premise an ex post facto challenge. Rather, only retroactive criminal statutes violating the principles set forth in Beazell and Calder v. Bull, 3 U.S. (3 Dall.) 386, 1 L.Ed. 648 (1798), implicate \"substantial rights” for the purpose of ex post facto clause analysis. Youngblood, 497 U.S. at 46, 110 S.Ct." }, { "docid": "2741130", "title": "", "text": "practical consequences of a prison term, has a retroactive impact. See id. at 174-75 (citing Lewisburg Penitentiary v. Marrero, 417 U.S. 653, 94 S.Ct. 2532, 41 L.Ed.2d 383 (1974)). In Landgraf and Hughes Aircraft, the Supreme Court turned to ex post facto jurisprudence to decide which consequences are genuinely retroactive and thus subject to Landgraf & clear statement rule. Although the Court noted that Ex Post Facto Clause prohibitions are limited to punitive legislation, it relied on this case law to answer the preliminary question of what -it means for a law to be retroactive. See, e.g., Hughes Aircraft, 520 U.S. at 948, 117 S.Ct. 1871 (citing Collins v. Youngblood, 497 U.S. 37, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990) and Beazell v. Ohio, 269 U.S. 167, 169-70, 46 S.Ct. 68, 70 L.Ed. 216 (1925)); Landgraf, 511 U.S. at 269 n. 23, 114 S.Ct. 1483 (citing Miller v. Florida, 482 U.S. 423, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987)). In the instant case, retroactive application of AEDPA’s bars to relief from deportation would change a theoretical consequence of pre-enactment conduct (possible deportation) into a necessary consequence (deportation). In functional terms, this is the same as eliminating a defense from a suit. It is also functionally equivalent to changing a maximum sentence — the possibility of deportation — into a mandatory one. Under Hughes Aircraft, Landgraf and the retroactivity analysis of the ex post facto cases, this is a genuinely retroactive effect that cannot be imposed by the courts or administrative agencies absent a clear statement from Congress. Because Congress did not make such a statement, AEDPA section 440(d) may not be applied retroactively. ' - 3. Rule of Lenity Apart from the application of Landgraf principles, the rule of lenity requires the construction of “any lingering ambiguities in deportation statutes in favor of the alien.” INS v. Cardoza-Fonseca, 480 U.S. 421, 449, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987); see also Pottinger, 51 F.Supp.2d at 363; Mojica, 970 F.Supp. at 180. The rule of lenity complements the Landgraf rule by assuring that Congress has given due consideration to the extreme" }, { "docid": "22171668", "title": "", "text": "commission of the offence, in order to convict the offender. 3 U.S. (3 Dallas) at 390; see also Beazell v. Ohio, 269 U.S. 167, 169, 46 S.Ct. 68, 69, 70 L.Ed. 216 (1925)(“any statute ... which makes more burdensome the punishment for a crime, after its commission”). In our view, a forfeiture of pay specifically adjudged by a court-martial or resulting from its sentence falls within the purview of Article I, § 9. An increase in the maximum sentence to confinement authorized for a crime would clearly be ex post facto legislation. Likewise, a statute authorizing greater maximum forfeitures pursuant to a court-martial sentence would seem questionable. Here, however, we are concerned not with a maximum, but with a minimum sentence. Change in a minimum sentence also can raise ex post facto issues. Lindsey v. Washington, 301 U.S. 397, 400-01, 57 S.Ct. 797, 798-99, 81 L.Ed. 1182 (1937) (holding that a statute that makes “mandatory what was before only the maximum sentence” violates the rule against ex post facto laws); see also Miller v. Florida, 482 U.S. 423, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987) (holding that retrospective application of sentencing guidelines that increased the presumptive term for sentencing was ex post facto). Thus, if Congress had required for the first time a mandatory minimum sentence of confinement for certain offenses, application of such a mandatory minimum to an accused who had committed those offenses prior to enactment of the new legislation would violate Article I, § 9. In our view, the same rationale should apply with respect to forfeitures because they are punishment. In that event, persons who, like GorsM, are being subjected to operation of Article 58b have a valid complaint; as a practical matter they are being subjected retroactively to a mandatory minimum punishment of total forfeitures — or, at least, total forfeitures after the earlier of the convening authority’s action or the passage of 14 days after sentence. The Supreme Court has held that “it is the effect, not the form, of the law that” makes it ex post facto and that legislation must “give fair" }, { "docid": "6830130", "title": "", "text": "in Matter of Soriano, 21 I. & N. Dec. 516, 1996 WL 426888 (BIA June 27, 1996). See Authority of the Attorney General to Grant Discretionaiy Relief from Deportation Under Section 212(c) of the Immigration and Nationality Act as Amended by the Antiterrorism and Effective Death Penalty Act of 1996, 1997 WL 33347804, at n. 4 (O.L.C.) (Op. Att’y Gen. Feb. 21, 1997). The BIA noted that, while Henderson v. INS, 157 F.3d 106 (2d Cir.1998), held that the AEDPA's section 440(d) did not apply retroactively to pending deportation proceedings, that decision reserved the question of whether section 440(d) applied to criminal convictions that occurred prior to the AEDPA’s enactment. . Both of these holdings preceded this court’s decisions in St. Cyr v. INS, 229 F.3d 406 (2d Cir.2000), aff'd 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), and Domond v. INS, 244 F.3d 81 (2d Cir.2001), as well as the Supreme Court’s decision in INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001). . St. Cyr I and the other cases discussed here also applied the same retroactivity analysis to the elimination of 212(c) relief effected by the IIRIRA’s section 304. For convenience, we will only discuss these cases as they relate to the AEDPA’s section 440(d), since that is the only provision at issue in the instant case. . We cannot, see Jones v. Coughlin, 45 F.3d 677, 679 (2d Cir.1995) (per curiam), and do not take issue with this statement. We do, however, note that, in the context of criminal sanctions, similar retroactive increases in penalties have been considered to raise serious concerns under the Ex Post Facto Clause, see, e.g., Warden, Lewisburg Penitentiary v. Marrero, 417 U.S. 653, 663, 94 S.Ct. 2532, 41 L.Ed.2d 383 (1974) (concerning retroactive elimination of parole eligibility), presumably because they violate notice rather than reliance interests. See generally Landgraf, 511 U.S. at 270, 114 S.Ct. 1483, on notice and reliance considerations in retroactivity analysis, and note 16, infra, on the punitive aspects of deportation sanctions. Nevertheless, the Ex Post Facto Clause has been held" }, { "docid": "23511571", "title": "", "text": "South Carolina, the Inmates would be entitled to release from incarceration on furlough six months prior to the expiration of their sentences, assuming the other criteria of the provision are satisfied. Under the statute as amended in 1993, however, prisoners who could not satisfy the additional requirements of § 24-13-710 would not be eligible to participate in the program and would be required to serve the final six months of their sentences in prison. As discussed- above, the program established by § 24-13-720 is indistinguishable from parole. . Thus, for all practical purposes the application to the Inmates of the 1993 amendment to § 24-13-720 deprives them of mandatory parole. As desirable as such a result may be — particularly in view of the violent nature of the crimes for which some of these individuals are incarcerated — such a retroactive change in the law is violative of the Ex Post Facto Clause. See Lynce, — U.S. at --, 117 S.Ct. at 898; Weaver, 450 U.S. at 33-36, 101 S.Ct. at 966-68; Warden, Lewisburg Penitentiary v. Marrero,, 417 U.S. 653, 663, 94 S.Ct. 2532, 2538, 41 L.Ed.2d 383 (1974) (noting that “a repealer of parole eligibility, previously available to imprisoned offenders would clearly present [a] serious [ex post facto] question”); Jones v. Murray, 962 F.2d 302, 310 (4th Cir.1992) (holding that a Virginia statute delaying mandatory release on parole for inmates who refuse to provide a blood .sample for DNA testing violates the Ex Post Facto Clause); Fender v. Thompson, 883 F.2d 303, 305-07 (4th Cir.1989) (declaring a statute that retrospectively eliminated parole eligibility for persons sentenced to life imprisonment who escaped from custody unconstitutional as ex post facto and collecting cases holding that changes in parole eligibility that are both retroactive and unfavorable are violative of the Ex Post Facto Clause). Therefore, we are left with no choice but to affirm the decision of the district court. ■ IV. In summary, in 1983 the General Assembly of South Carolina passed a statute that reduced by six months the incarcerative sentence of all inmates serving sentences of less than life" }, { "docid": "2741129", "title": "", "text": "prior government disclosure defense in Hughes Aircraft, does not change the magnitude of the petitioner’s potential liability. It does, however, increase the likelihood that this liability, i.e., deportation, will be imposed. In light of the fact that relief was previously granted in some half of all section 212(c) hearings, see Mojica, 970 F.Supp., at 178, retroactive application of section 440(d) would effect a major change in the consequences of past conduct. The Ex Post Facto Clause prohibits increased penalties based on past offenses, regardless of the date of conviction. The crucial ex post facto date is the one on which an offense is committed. Numerous cases interpreting the Clause have ruled that the change of a possible consequence of past activity into a necessary one is retroactive. See Mojica, 970 F.Supp. at 174-75. Converting a maximum sentence into a mandatory one, for example, has a retroactive effect. See id. at 175 (citing Lindsey v. Washington, 301 U.S. 397, 57 S.Ct. 797, 81 L.Ed. 1182 (1937)). Similarly, the elimination of eligibility for parole, thereby increasing the practical consequences of a prison term, has a retroactive impact. See id. at 174-75 (citing Lewisburg Penitentiary v. Marrero, 417 U.S. 653, 94 S.Ct. 2532, 41 L.Ed.2d 383 (1974)). In Landgraf and Hughes Aircraft, the Supreme Court turned to ex post facto jurisprudence to decide which consequences are genuinely retroactive and thus subject to Landgraf & clear statement rule. Although the Court noted that Ex Post Facto Clause prohibitions are limited to punitive legislation, it relied on this case law to answer the preliminary question of what -it means for a law to be retroactive. See, e.g., Hughes Aircraft, 520 U.S. at 948, 117 S.Ct. 1871 (citing Collins v. Youngblood, 497 U.S. 37, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990) and Beazell v. Ohio, 269 U.S. 167, 169-70, 46 S.Ct. 68, 70 L.Ed. 216 (1925)); Landgraf, 511 U.S. at 269 n. 23, 114 S.Ct. 1483 (citing Miller v. Florida, 482 U.S. 423, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987)). In the instant case, retroactive application of AEDPA’s bars to relief from deportation would change a" }, { "docid": "2741128", "title": "", "text": "no actual harm to the public fisc had occurred. Id. at 949-950, 117 S.Ct. 1871. The Court stated: ‘While we acknowledge that the monetary liability faced by [this] defendant is the same whether the action is brought by the Government or a qui tam relator, the 1986 amendment eliminates a defense to a qui tam suit — prior disclosure to the Government — and therefore changes the substance of the existing cause of action ... by ‘attaching a ,new disability, in respect to transactions or considerations already past.’ ” Id. at 948, 117 S.Ct. 1871 (quoting Landgraf, 511 U.S. at 269, 114 S.Ct. 1483). Given the practical impact of the new law, the Court held that it should not be applied to pre-enactment conduct absent a clear statement to the contrary from Congress. Id. at 952, 117 S.Ct. 1871. The application of AEDPA section 440(d) to the petitioner would have a retroactive effect similar to that in Hughes Aircraft. The elimination of the right to apply for section 212(c) relief, like the elimination of the prior government disclosure defense in Hughes Aircraft, does not change the magnitude of the petitioner’s potential liability. It does, however, increase the likelihood that this liability, i.e., deportation, will be imposed. In light of the fact that relief was previously granted in some half of all section 212(c) hearings, see Mojica, 970 F.Supp., at 178, retroactive application of section 440(d) would effect a major change in the consequences of past conduct. The Ex Post Facto Clause prohibits increased penalties based on past offenses, regardless of the date of conviction. The crucial ex post facto date is the one on which an offense is committed. Numerous cases interpreting the Clause have ruled that the change of a possible consequence of past activity into a necessary one is retroactive. See Mojica, 970 F.Supp. at 174-75. Converting a maximum sentence into a mandatory one, for example, has a retroactive effect. See id. at 175 (citing Lindsey v. Washington, 301 U.S. 397, 57 S.Ct. 797, 81 L.Ed. 1182 (1937)). Similarly, the elimination of eligibility for parole, thereby increasing the" }, { "docid": "6830131", "title": "", "text": "and the other cases discussed here also applied the same retroactivity analysis to the elimination of 212(c) relief effected by the IIRIRA’s section 304. For convenience, we will only discuss these cases as they relate to the AEDPA’s section 440(d), since that is the only provision at issue in the instant case. . We cannot, see Jones v. Coughlin, 45 F.3d 677, 679 (2d Cir.1995) (per curiam), and do not take issue with this statement. We do, however, note that, in the context of criminal sanctions, similar retroactive increases in penalties have been considered to raise serious concerns under the Ex Post Facto Clause, see, e.g., Warden, Lewisburg Penitentiary v. Marrero, 417 U.S. 653, 663, 94 S.Ct. 2532, 41 L.Ed.2d 383 (1974) (concerning retroactive elimination of parole eligibility), presumably because they violate notice rather than reliance interests. See generally Landgraf, 511 U.S. at 270, 114 S.Ct. 1483, on notice and reliance considerations in retroactivity analysis, and note 16, infra, on the punitive aspects of deportation sanctions. Nevertheless, the Ex Post Facto Clause has been held not to apply directly to deportation. See, e.g., Marcello v. Bonds, 349 U.S. 302, 314, 75 S.Ct. 757, 99 L.Ed. 1107 (1955). . In full, section 212.3(b) provides as follows: Filing of application. The application may be filed prior to, at the time of, or at any time after the applicant's departure from or arrival into the United States. All material facts and/or circumstances which the applicant knows or believes apply to the grounds of excludability or deportability must be described. The applicant must also submit all available documentation relating to such grounds. 8 C.F.R. § 212.3(b). . The government points out that this particular reliance argument is new on appeal, although it does not seem to claim that the contention was forfeited. In fact, Petitioner’s decision not to raise this specific argument in his habeas petition is perfectly understandable. Almost none of this circuit’s AEDPA retroactivity cases had been decided when he applied for habeas relief. And, having readily won in the district court on a broad ground that had been expressly left open" }, { "docid": "11491930", "title": "", "text": "Supreme Court’s most recent and extensive pronouncements on the Ex Post Facto Clause are consistent with this conclusion. In California Dep’t of Corrections v. Morales, — U.S. -, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995), the Court em phasized that, “after Collins [v. Youngblood, 497 U.S. 37, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990) ], the focus of the ex post facto inquiry is ... on whether any such change ... increases the penalty by which a crime is punishable.” Morales, — U.S. at - n. 3, 115 S.Ct. at 1602 n. 3. It noted that it disagreed with the contention that any risk of enhanced confinement associated with an original offense was barred, stating “[o]ur cases have never accepted this expansive view of the Ex Post Facto Clause and we will not endorse it here.” Id. at -, 115 S.Ct. at 1602. In Collins, the Court had pointed to the long line of eases, including Beazell v. Ohio, 269 U.S. 167, 46 S.Ct. 68, 70 L.Ed. 216 (1925), as being “faithful to our best knowledge of the original understanding of the Ex Post Facto Clause: legislatures may not retroactively ... increase the punishment for criminal acts.” Collins, 497 U.S. at 43, 110 S.Ct. at 2719-20. As noted previously, Miller v. Florida emphasized that a crucial part of ex post facto jurisprudence was whether a person was being given “fair warning of [the] effect [of legislative enactments]” and could “rely on their meaning until explicitly changed.” Miller, 482 U.S. at 430, 107 S.Ct. at 2451. The Court there noted that “fair warning” was not provided simply by a notice that the law imposing the original sentence, “was subject to revision. The Constitutional provision against ex post facto laws cannot be avoided merely by adding to a law a notice that it might be changed.” Id. at 431, 107 S.Ct. at 2451-52. However, in Weaver, perhaps the Court’s most significant recent ex post facto case, and one that specifically involved a change in “good time” rules after the original sentence, the Court repeatedly emphasized the importance of the connection of the" } ]

[ { "docid": "6474214", "title": "", "text": "SETH, Circuit Judge. The appellant, Carlson, Inc., petitioned to reclaim approximately $37,000 from funds held by the Trustee in Bankruptcy. Appellant asserted that its claim represented moneys held by the bankrupt, Hubbard’s, Inc., in trust for the appellant’s benefit, and that the Trustee in Bankruptcy could not include such moneys in the assets of the bankrupt estate. Appellant’s petition was resisted by the appellees, who are the Trustee in Bankruptcy and by Commercial Discount Corporation, a secured creditor of the bankrupt. The Referee in Bankruptcy denied appellant’s petition, concluding that the relationship between appellant and the bankrupt was that of creditor and debtor. The District Court affirmed the Referee’s order, and the appellant has taken this appeal. The funds in question were derived from the following arrangement: Appellant’s predecessor as lessee entered into a lease agreement with the bankrupt department store, Hubbard’s, Inc., as lessor. The instrument titled “Department Store Lease” provided that appellant as lessee would operate shoe departments in each of the Hubbard’s six New Mexico stores. The lease agreement further provided that the leased shoe departments would be operated under the name of the lessor-bankrupt, and that proceeds from cash sales in the leased departments would be turned over daily to the lessor-bankrupt. Charge sales in the leased departments, it was agreed, would be assumed by the lessor-bankrupt after its approval, and all credit risks including checks tendered for cash sales would also be assumed by it. The lessor-bankrupt agreed in the lease to pay to the lessee-appellant all sums due from cash and charge sales in the leased departments in the second month after the sales were made, less the agreed rental of twelve and one-half per cent of the net sales. Among the typical lease provisions in the instrument appears the following paragraph which is the center of the disagreement : “All moneys and accounts so received by the Lessor on account of sales in said departments, shall be considered to be held by the Lessor in trust for the Lessee and, if mingled with Lessor’s funds, either in the cash drawer or deposited in" } ]

[ { "docid": "1691566", "title": "", "text": "as being more the result of a Morales type debtor-creditor relationship than one of trustee-beneficiary. In any case, we find the characteristics of the sublease before us to be too foreign to that of a trustee-beneficiary relationship to imply a trust. We find instructive the case of Chicago Cutter-Karcher, Inc. v. Malley (In re Lord’s, Inc.), 356 F.2d 456 (7th Cir.1965). This case presents a fact pattern and a lease agreement remarkably similar to that in Carlson, supra. Appellant in Lord’s, contending that the agreement created a trust, asserted that the cases upon which the referee in bankruptcy, and later the district court, relied in finding that no trust had been created were inapposite because the contracts in those cases did not contain express trust provisions. The Court, however, asked rhetorically “[i]f a trust cannot be implied, is the situation materially changed by the mere use of the term ‘trust’ ...?” 356 F.2d at 458. We have found that the mere inclusion of the reference to an accounting and to funds being held in trust are insufficient to produce an express trust from the instant sublease agreement. When we examine the entirety of the sublease agreement, we find no other provisions consistent with a trust arrangement; all the rest are foreign to a trustee-beneficiary relationship but are consistent with a lessor-lessee relationship. With or without the two isolated, trust-like statements, the sublease agreement is no more susceptible of being construed as an implied trust than as an express trust. CONCLUSIONS We hold that the sublease presented to us failed to create an express trust despite “trust language.” Nor did it create an implied trust. We agree with the district and bankruptcy courts that the relationship between Sakowitz and Evans was one of debtor-creditor, not trustee-beneficiary. The judgment of the district court is AFFIRMED. . At oral argument, counsel for Evans stated that, while she did not argue that genuine issues of material fact existed in her answer to the Banks’ motion for summary judgment, she did so contend at the bankruptcy court hearing. The statement to which she apparently refers" }, { "docid": "1691548", "title": "", "text": "to Evans. Nevertheless, under the sublease the Evans fur departments were to be, to all appearances, Sakowitz departments. There was no indication that the furs were being sold by anyone other than Sakowitz. Evans used Sakowitz boxes, wrapping and stationary, and was permitted to advertise only under Sakowitz’s name. The sublease provided that [a]ll monies received from customers through the sale of [Evans’] merchandise or any services offered by [Evans] shall be paid at the time of receipt to the cashier of [Sakowitz], who shall keep a full true and accurate record thereof ... The amount of rent shall be computed at the time of each monthly accounting, and shall then be deducted from the amount in the hands of [Sakowitz] belonging to [Evans]. The balance of such amount, less all deductions contemplated by this Sublease, shall be and remain the property of [Evans] and shall be remitted by [Sakowitz] to [Evans] ... As to funds which shall remain the property of [Evans] under the terms of this Article XV hereof, it is specifically understood and agreed that while the same are in the hands of [Sakowitz] they shall be held by [Sakowitz], in trust, for [Evans] and shall be so identified on [Sakowitz’s] records. According to the sublease, customers were permitted to purchase Evans’ furs on credit extended by Sakowitz so long as the customer first received Sakowitz’s approval for the credit sale. Sakowitz had various credit arrangements that could be used by such customers, including credit card sales, C.O.D. sales, lay-away sales and, particularly significant for this case, “special account” sales. By the twentieth of every month, Sakow-itz was obligated to pay Evans for “all sales made by [Evans] from the demised premises during the preceding calendar month,” less rental payments due Sakowitz for Evans’ use of its premises. Significantly for this case, the sublease reads: Where any such sale may have been made on credit and so approved, the amount of such credit sale shall be included in the monthly settlements between [Sakowitz and Evans] ... and shall be included in the balance to be remitted by" }, { "docid": "1691567", "title": "", "text": "are insufficient to produce an express trust from the instant sublease agreement. When we examine the entirety of the sublease agreement, we find no other provisions consistent with a trust arrangement; all the rest are foreign to a trustee-beneficiary relationship but are consistent with a lessor-lessee relationship. With or without the two isolated, trust-like statements, the sublease agreement is no more susceptible of being construed as an implied trust than as an express trust. CONCLUSIONS We hold that the sublease presented to us failed to create an express trust despite “trust language.” Nor did it create an implied trust. We agree with the district and bankruptcy courts that the relationship between Sakowitz and Evans was one of debtor-creditor, not trustee-beneficiary. The judgment of the district court is AFFIRMED. . At oral argument, counsel for Evans stated that, while she did not argue that genuine issues of material fact existed in her answer to the Banks’ motion for summary judgment, she did so contend at the bankruptcy court hearing. The statement to which she apparently refers is \"I think that it’s clearly relevant and material what the parties’ intentions and understandings were and I think that the affidavits demonstrate what the parties’ intentions and understandings were in this case.\" [Emphasis added]. Even accepting arguendo that Evans’ counsel meant that issues remained unresolved, we feel that this one oral statement, made at the end of the hearing, falls short of what was required to rebut the Banks’ demonstration that no genuine issues of material fact existed. . In his deposition, one of Evans' officers stated that \"it was just additional security because those balances were owed to us, and it’s a comfort provision to have that in there.” We note that Evans also took out insurance on these accounts to protect itself against nonpayment by Sakowitz." }, { "docid": "1691559", "title": "", "text": "that is not facially a trust agreement. Among any number of trust-like provisions that could be but are not present in the instant sublease — and that would tend to support the finding of an express trust — would be a provision prohibiting commingling of trust funds. Sa-kowitz had a duty not to commingle the funds only if it was in fact a trustee, and the contract before us is insufficient to create a trust mechanism. We find that the facts of Morales are sufficiently similar to the facts presented to us to conclude that the sublease failed to create an express trust. Our finding is strengthened by the fact that the Morales court buttressed its conclusion by noting that Morales’ contractual responsibility to a carrier went beyond transmitting the funds actually received, to paying the price of tickets sold whether it received that amount or not. Morales, moreover, was required to transmit the proceeds not upon receipt, nor even upon demand, but at specified regular intervals. Thus for everyday purposes the relationship was the conventional one of debtor-creditor — the “trust” was a draftsman’s concept, designed to rescue Eastern in a situation such as the present but otherwise to be ignored. Id. at 1072. The contract before us contained the same elements foreign to a true trust mechanism. Sakowitz did not have to turn over the proceeds until the 20th of each month, except for specific purposes which, despite Evans’ arguments, we find not to be equivalent to payment on demand. Moreover, Sakowitz bore the credit risk, and had to pay Evans regardless of whether or not customers had in fact paid their bills. Otherwise stated, Sakowitz would have had to pay Evans even in the absence of a trust res. Finally, the trust language presented appears to us to be nothing more than a draftsman’s ineffectual effort to “bootstrap” a bit of additional leverage for Evans as Sakowitz’s sublessee. The Morales Court relied upon Carlson, Inc. v. Commercial Discount Corp., 382 F.2d 903 (10th Cir.1967). In that case, a shoeseller leased space in a department store which later" }, { "docid": "1691561", "title": "", "text": "went bankrupt. The contract was similar to the one before us except that it provided that the proceeds, while in the hands of the department store, would remain in trust for the shoeseller even if mingled with other funds. Id. at 904. Evans attempts to distinguish Carlson, contending that the contract in that case expressly authorized commingling. The Carlson Court’s rationale, however, was that [t]he agreement is essentially a lease agreement, and the provisions relative to the proceeds from sales in the shoe departments also create a debtor-creditor relationship between the parties to the lease. The instrument does not provide for the typical handling of assets or funds on a continuing basis. An express trust is defined by the Restatement (Second), Trusts § (1959), as a “fiduciary relationship with respect to property, subjecting the person by whom the title to the property is held to equitable duties to deal with the property for the benefit of another person, which arises as a result of a manifestation of an intention to create it.” This is the common definition. However the indicia of such a trust relationship are not present in the case at bar. There is no indication that the lessor assumed equitable duties to handle the “trust” funds for the benefit of the lessee, that is to deal with the property for the benefit of the appellant as the authorities define the relationship. The facts and circumstances instead indicate the creation of an obligation to repay a portion of the funds at stated times, ... Id. at 904-05. Another indicia of a debtor-creditor relationship in Carlson was that, as in the case before us, “[cjharge sales in the leased departments, it was agreed, would be assumed by the lessor-bankrupt after its approval, and all credit risks including checks tendered for cash sales would also be assumed by it.” Id. at 904. As the court noted in affirming the summary judgment of the bankruptcy court in a case with a similar agreement, commingling is not the only factor relied upon to establish the creditor-debtor relationship. Other factors of equal significance include" }, { "docid": "1691550", "title": "", "text": "[Sakowitz to Evans] whether such credit sale has been, in fact, collected or not. Where merchandise is sold by [Evans] on the C.O.D. or lay-away plan, if said transaction is handled in conformity with [Sa-kowitz’s] rules pertaining to its own business, Evans shall be given full credit for the entire amount of such sale ... where a sale is made on the special account or lay-away plan and ... in the event any customer payments become delinquent pursuant to the customer’s agreement made with [Sakowitz] at the time of sale, then [Sakowitz] shall remit to [Evans] the amount of such delinquencies. [Emphasis added]. The sublease provided that “to the extent funds of [Evans] may be on hand with Sakowitz, [Sakowitz] shall advance for [Evans’] account the amount of all wages and salaries (less all payroll deductions ...) for [Evans’] department employees and shall pay such amounts, on [Evans’] behalf, to such employees on the regular payroll on which [Sakowitz] makes payroll payments to its own employees ...” Similarly, the sublease provided that Sakowitz would “disburse on written order of [Evans] or its properly appointed representatives, out of the funds of [Evans] on hand with [Sakow-itz] all proper and legitimate expenses necessary for the conduct of the business of [Evans] ...” Evans sold furs to approved customers primarily by way of the aforementioned “special accounts” which allowed these customers to make monthly payments, with the remainder of the purchase price after the initial downpayment amortized interest free over what was usually a twelve month period. With respect to sales on these special accounts, the sublease provided that “it is specifically understood and agreed that such will be collected by [Sakowitz], in trust for [Evans], and shall be so identified on [Sakowitz’s] records ... ”. Nevertheless, Evans would eventually receive full credit for every sale it made, irrespective of whether Sakowitz was able to collect from the buyers. Sakowitz did not segregate proceeds from credit accounts from sales made by Evans. Rather, Sakowitz deposited its collections from Evans sales into its general funds accounts. Sakowitz paid Evans, other lessees and its other" }, { "docid": "1691551", "title": "", "text": "on written order of [Evans] or its properly appointed representatives, out of the funds of [Evans] on hand with [Sakow-itz] all proper and legitimate expenses necessary for the conduct of the business of [Evans] ...” Evans sold furs to approved customers primarily by way of the aforementioned “special accounts” which allowed these customers to make monthly payments, with the remainder of the purchase price after the initial downpayment amortized interest free over what was usually a twelve month period. With respect to sales on these special accounts, the sublease provided that “it is specifically understood and agreed that such will be collected by [Sakowitz], in trust for [Evans], and shall be so identified on [Sakowitz’s] records ... ”. Nevertheless, Evans would eventually receive full credit for every sale it made, irrespective of whether Sakowitz was able to collect from the buyers. Sakowitz did not segregate proceeds from credit accounts from sales made by Evans. Rather, Sakowitz deposited its collections from Evans sales into its general funds accounts. Sakowitz paid Evans, other lessees and its other creditors out of the same general corporate accounts. Sakowitz filed for Chapter 11 relief on the Petition Date. Since September 6, 1985, the money collected by the debtors representing special account sales made by Evans prior to the Petition Date has been placed in an escrow account which exceeded $2 million as of the date of the bankruptcy court’s decision. ANALYSIS Evans calls upon us to determine whether the district court erred in affirming the bankruptcy court’s judgment that the litigants presented no genuine issues of material fact, that the sublease created no express or implied trust and that the relationship between Sakowitz and Evans was therefore one of debtor-creditor, and that the escrowed funds therefore come under the Banks’ perfected security interest. For the reasons outlined below, we affirm. I. Evans Presented No Genuine Issue of Material Fact to the Bankruptcy Court. Evans argues that the bankruptcy court erred in granting the Banks’ motion for summary judgment, claiming that fact issues exist regarding industry practice and the intention of Evans and Sakowitz in drafting" }, { "docid": "10217561", "title": "", "text": "name of the agency. In the absence of any provision requiring Morales to hold the funds in trust by keeping them separate, and otherwise restricting their use, the label “trust” could in these circumstances and for present purposes have no legal effect. See In re Penn. Central Transportation Co., 328 F.Supp. 1278 (E.D.Pa.1971); Scott on Trusts § 12.2 (3d ed.). Our conclusion is buttressed by other terms of the agreement. Morales’ contractual responsibility to a carrier went beyond transmitting the funds actually received, to paying the price of tickets sold whether it received that amount or not. Morales, moreover, was required to transmit the proceeds not upon receipt, nor even upon demand, but at specified regular intervals. Thus for everyday purposes the relationship was the conventional one of debtor-creditor — the “trust” was a draftsman’s concept, designed to rescue Eastern in a situation such as the present but otherwise to be ignored. We find this case to be very similar to the case of Lord’s, Inc. v. Maley, 356 F.2d 456 (7th Cir. 1966), in which the Seventh Circuit affirmed the bankruptcy court’s denial of a reclamation petition by the lessee of space in the bankrupt’s department store who sought to reclaim funds collected by the bankrupt through the sale of the lessee’s goods. Despite express language in the contract purporting to create a trust relationship, the court relied on such factors as the bankrupt’s freedom to use the funds between settlement dates and to commingle them with its own funds, to find a debtor-creditor relationship. The Lord's case was followed by the Tenth Circuit in Carlson, Inc. v. Commercial Discount Corp., 382 F.2d 903 (1967). See also In the Matter of the Yaeger Co., Mendel v. Whitmer, 315 F.2d 864 (6th Cir. 1963); In re Martin’s, 11 F.Supp. 99 (E.D.N.Y.1935). Harvey Brokerage Co. v. Ambassador Hotel Corp., 57 F.2d 727 (S.D.N.Y.1932), which Eastern cites to support its argument for a trust, actually supports our conclusion. In that case involving bankruptcy, the court presumed that a trust relationship existed where the bankrupt collected debts on behalf of another; but the" }, { "docid": "1691560", "title": "", "text": "conventional one of debtor-creditor — the “trust” was a draftsman’s concept, designed to rescue Eastern in a situation such as the present but otherwise to be ignored. Id. at 1072. The contract before us contained the same elements foreign to a true trust mechanism. Sakowitz did not have to turn over the proceeds until the 20th of each month, except for specific purposes which, despite Evans’ arguments, we find not to be equivalent to payment on demand. Moreover, Sakowitz bore the credit risk, and had to pay Evans regardless of whether or not customers had in fact paid their bills. Otherwise stated, Sakowitz would have had to pay Evans even in the absence of a trust res. Finally, the trust language presented appears to us to be nothing more than a draftsman’s ineffectual effort to “bootstrap” a bit of additional leverage for Evans as Sakowitz’s sublessee. The Morales Court relied upon Carlson, Inc. v. Commercial Discount Corp., 382 F.2d 903 (10th Cir.1967). In that case, a shoeseller leased space in a department store which later went bankrupt. The contract was similar to the one before us except that it provided that the proceeds, while in the hands of the department store, would remain in trust for the shoeseller even if mingled with other funds. Id. at 904. Evans attempts to distinguish Carlson, contending that the contract in that case expressly authorized commingling. The Carlson Court’s rationale, however, was that [t]he agreement is essentially a lease agreement, and the provisions relative to the proceeds from sales in the shoe departments also create a debtor-creditor relationship between the parties to the lease. The instrument does not provide for the typical handling of assets or funds on a continuing basis. An express trust is defined by the Restatement (Second), Trusts § (1959), as a “fiduciary relationship with respect to property, subjecting the person by whom the title to the property is held to equitable duties to deal with the property for the benefit of another person, which arises as a result of a manifestation of an intention to create it.” This is the" }, { "docid": "1691556", "title": "", "text": "agency collected would “be the property of the Carrier and [would] be held by the Agent in trust for the Carrier or on behalf of the Carrier, until satisfactorily accounted for to the Carrier and settlement made.” Id. at 1070 (iquoting the agreement). As in this case, however, the contract did not explicitly prohibit commingling of funds, and commingling did in fact occur. After the travel agency was adjudicated bankrupt, Eastern AirLines sued to recover a substantial sum which it claimed was not part of the bankruptcy estate according to 11 U.S.C. § 541, but was rather trust property. In ultimately affirming the decision of the bankruptcy court, the First Circuit stated: The terms of the [contract] were inadequate, in our view, to give rise to a trust upon the proceeds from tickets sold by Morales to its customers. To be sure, [the contract] recited, in general terms, that the agent was to hold whatever monies it collected in trust for the carrier until accounted for, and that these monies were the carrier’s property until settlement occurred. However, talismanic language could not throw a protective mantle over these receipts in the absence of a genuine trust mechanism. Here the relationship remained in practical fact that of debtor-creditor. The contract nowhere required Morales to keep the proceeds of Eastern’s ticket sales separate from any other funds, ... The use of the word “trust” and the designation of the airline as titleholder, in a contract which is not publicly filed, would not save potential creditors from relying on such assets as office equipment, accounts receivable, and a bank account solely in the name of the agency. In the absence of any provision requiring Morales to hold the funds in trust by keeping them separate, and otherwise restricting their use, the label “trust” could in these circumstances and for present purposes have no legal effect. Id. at 1071. Evans contends that the requirement to account for Evans’ property separately from Sakowitz’s property was in fact a segregation requirement, but we cannot read the language of the sublease that way. Moreover, Evans argues that" }, { "docid": "1691565", "title": "", "text": "presumption that an implied trust has been created. Id. at 1013. There is no indication in Goldblatt that Goldblatt bore the credit risk. Even if it did, however, we note that the Goldblatt court distinguished Morales on the basis that in the latter case, the airlines did not deposit proceeds with the travel agency. These proceeds were, rather, collected by the agency. Apparently, the Goldblatt court felt that the case before it differed sufficiently because Firestone handed over both credit receipts and cash. It appears that Goldblatt remitted the full value of the credit sales, less the royalty payment, to Firestone “within 15 working days following each four-week accounting period.” Id. at 1013. The appeal before us, however, deals neither with cash proceeds collected by Evans nor with normal credit card sales, but only with the proceeds collected by Sakowitz from its special account system in which payment was generally amortized over a 12 month period. We believe that the Goldblatt court would have viewed the escrow account, the nature of which we must determine, as being more the result of a Morales type debtor-creditor relationship than one of trustee-beneficiary. In any case, we find the characteristics of the sublease before us to be too foreign to that of a trustee-beneficiary relationship to imply a trust. We find instructive the case of Chicago Cutter-Karcher, Inc. v. Malley (In re Lord’s, Inc.), 356 F.2d 456 (7th Cir.1965). This case presents a fact pattern and a lease agreement remarkably similar to that in Carlson, supra. Appellant in Lord’s, contending that the agreement created a trust, asserted that the cases upon which the referee in bankruptcy, and later the district court, relied in finding that no trust had been created were inapposite because the contracts in those cases did not contain express trust provisions. The Court, however, asked rhetorically “[i]f a trust cannot be implied, is the situation materially changed by the mere use of the term ‘trust’ ...?” 356 F.2d at 458. We have found that the mere inclusion of the reference to an accounting and to funds being held in trust" }, { "docid": "1691554", "title": "", "text": "[lower] court level. Where the moving papers do not reveal the presence of a factual controversy and the opposing party manifests silent assent through inaction, the opposing party will not thereafter on appeal be heard to belatedly assert as grounds for reversal that some factual disputes implicit in the underlying arguments have yet to be resolved. Franz Chemical Corp. v. Philadelphia Quartz Company, 594 F.2d 146, 150 (5th Cir.1979). The Court does note, however, that the intent of the parties to create a trust is immaterial if, in a bankruptcy setting with the rights of creditors at stake, the sublease, negotiated by sophisticated parties, failed to establish a trust mechanism. See In re Morales Travel Agency, 667 F.2d 1069, 1072 (1st Cir.1981). For the reasons stated below, we conclude that the sublease did not create a trust mechanism. II. The Sublease did not Create an Express Trust. Evans seeks to show that Sakowitz held the proceeds of special account sales made by Evans in trust. If Evans could succeed, then the escrowed funds would not be subject to the Banks’ security interest because property held in trust for another is not property of the estate under 11 U.S.C. § 541 in the event of the trustee’s bankruptcy. See Begier v. I.R.S., 496 U.S. 53, 110 S.Ct. 2258, 2263, 110 L.Ed.2d 46 (1990). Evans concedes that the words “held ... in trust” in the sublease do not in and of themselves suffice to establish an express trust. It is well established that “[i]f a ritualistic incantation of trust language were deemed conclusive, it would be a simple matter for one creditor, at the expense of others, to circumvent the rules pertaining to the creation of bona fide security interests.” Morales, 667 F.2d at 1072. In Morales, a bankrupt travel agency had been in the business of selling airline tickets to the public. The contract which governed the agency’s relationship with the airlines provided that said airlines would provide blank tickets to the agency which remained the property of the airlines until sold to the public. Under the contract, whatever money the" }, { "docid": "1691563", "title": "", "text": "[bankrupt’s] continued liability to the carriers whether or not it actually received payment from the customers, as well as payment schedules that required [bankrupt] to pay monies to the airlines before it received payment from the customers. Pan American World Airways, Inc. v. Continental Bank (In re Shulman Transport Enterprises, Inc.), 33 B.R. 383, 386 (D.C.S.D.N.Y.1983), aff'd, 744 F.2d 293 (2d Cir.1984). In sum, we find that the fact that Sakow-itz bore the credit risk, the fact that Evans could not get the proceeds of its sales in total on demand, combined with the lack of any express prohibition against the commingling which did in fact occur, lead to the conclusion that the sublease failed to create an express trust. We agree with the Second Circuit that, for the purposes of 11 U.S.C. § 541, “[w]here the relative rights of a bankrupt’s creditors are at issue, it is particularly important that substance not give way to form.” Shulman, 744 F.2d at 295. III. The Sublease did not Create an Implied Trust. Evans contends that even if the sublease failed to create an express trust, it nevertheless created an implied trust. Evans relies upon Firestone Tire & Rubber Co. v. Goldblatt Bros., Inc. (In re Goldblatt Bros., Inc.), 33 B.R. 1011 (D.C.N.D.Ill.1983), appeal dismissed, 758 F.2d 1248 (7th Cir.1985). That case dealt with a contract under which Firestone marketed tires and other automotive products at Goldblatt stores under Goldblatt’s trade name. Unlike the contracts discussed supra, the word “trust” was not used. However, Firestone turned over cash and credit receipts to Goldblatt at the end of each business day for later return after the deduction of a royalty payment. Goldblatt appears to have been a close case. As in the cases discussed supra, the bankruptcy court held that the contract failed to create a trust. The district court reversed, however, finding that [t]he law presumes, when one turns over to another proceeds to be held and later returned, that the party receiving the proceeds holds them in a fiduciary capacity and may not commingle them; in other words, there is a" }, { "docid": "1691562", "title": "", "text": "common definition. However the indicia of such a trust relationship are not present in the case at bar. There is no indication that the lessor assumed equitable duties to handle the “trust” funds for the benefit of the lessee, that is to deal with the property for the benefit of the appellant as the authorities define the relationship. The facts and circumstances instead indicate the creation of an obligation to repay a portion of the funds at stated times, ... Id. at 904-05. Another indicia of a debtor-creditor relationship in Carlson was that, as in the case before us, “[cjharge sales in the leased departments, it was agreed, would be assumed by the lessor-bankrupt after its approval, and all credit risks including checks tendered for cash sales would also be assumed by it.” Id. at 904. As the court noted in affirming the summary judgment of the bankruptcy court in a case with a similar agreement, commingling is not the only factor relied upon to establish the creditor-debtor relationship. Other factors of equal significance include [bankrupt’s] continued liability to the carriers whether or not it actually received payment from the customers, as well as payment schedules that required [bankrupt] to pay monies to the airlines before it received payment from the customers. Pan American World Airways, Inc. v. Continental Bank (In re Shulman Transport Enterprises, Inc.), 33 B.R. 383, 386 (D.C.S.D.N.Y.1983), aff'd, 744 F.2d 293 (2d Cir.1984). In sum, we find that the fact that Sakow-itz bore the credit risk, the fact that Evans could not get the proceeds of its sales in total on demand, combined with the lack of any express prohibition against the commingling which did in fact occur, lead to the conclusion that the sublease failed to create an express trust. We agree with the Second Circuit that, for the purposes of 11 U.S.C. § 541, “[w]here the relative rights of a bankrupt’s creditors are at issue, it is particularly important that substance not give way to form.” Shulman, 744 F.2d at 295. III. The Sublease did not Create an Implied Trust. Evans contends that even" }, { "docid": "1691564", "title": "", "text": "if the sublease failed to create an express trust, it nevertheless created an implied trust. Evans relies upon Firestone Tire & Rubber Co. v. Goldblatt Bros., Inc. (In re Goldblatt Bros., Inc.), 33 B.R. 1011 (D.C.N.D.Ill.1983), appeal dismissed, 758 F.2d 1248 (7th Cir.1985). That case dealt with a contract under which Firestone marketed tires and other automotive products at Goldblatt stores under Goldblatt’s trade name. Unlike the contracts discussed supra, the word “trust” was not used. However, Firestone turned over cash and credit receipts to Goldblatt at the end of each business day for later return after the deduction of a royalty payment. Goldblatt appears to have been a close case. As in the cases discussed supra, the bankruptcy court held that the contract failed to create a trust. The district court reversed, however, finding that [t]he law presumes, when one turns over to another proceeds to be held and later returned, that the party receiving the proceeds holds them in a fiduciary capacity and may not commingle them; in other words, there is a presumption that an implied trust has been created. Id. at 1013. There is no indication in Goldblatt that Goldblatt bore the credit risk. Even if it did, however, we note that the Goldblatt court distinguished Morales on the basis that in the latter case, the airlines did not deposit proceeds with the travel agency. These proceeds were, rather, collected by the agency. Apparently, the Goldblatt court felt that the case before it differed sufficiently because Firestone handed over both credit receipts and cash. It appears that Goldblatt remitted the full value of the credit sales, less the royalty payment, to Firestone “within 15 working days following each four-week accounting period.” Id. at 1013. The appeal before us, however, deals neither with cash proceeds collected by Evans nor with normal credit card sales, but only with the proceeds collected by Sakowitz from its special account system in which payment was generally amortized over a 12 month period. We believe that the Goldblatt court would have viewed the escrow account, the nature of which we must determine," }, { "docid": "1691546", "title": "", "text": "REYNALDO G. GARZA, Circuit Judge: In this case we determine title to es-crowed funds containing proceeds collected by bankrupt stores for sales on special credit accounts. We hold that the district court correctly affirmed the bankruptcy court’s decision that these funds were not subject to either an express or implied trust in favor of the merchant who owned and sold the merchandise, but rather were subject to the Appellee-Banks’ security interest. PROCEDURAL HISTORY This appeal arises out of an adversary proceeding in the bankruptcy of Sakowitz, Inc., Sakowitz, Inc. of Amarillo, Sakowitz, Inc. of Arizona, Sakowitz-Gulfgate, Inc., and Sakowitz of Oklahoma, Inc. (collectively “Sakowitz”). On November 18, 1985, The Chase Manhattan Bank, N.A., Inter-First Bank Dallas, N.A., First Pennsylvania Bank, N.A., Security Pacific National Bank, and Amarillo National Bank (collectively “the Banks”) filed an adversary proceeding against Sakowitz and Evans Fur Company of Houston, Inc. (“Evans”), claiming title to certain escrowed funds as accounts receivable of Sakowitz. On February 9, 1987, the Banks filed their motion for summary judgment against Sakowitz and Evans. On August 12, 1987, the bankruptcy court entered an order granting the Banks’ motion for summary judgment and awarding the Banks the escrowed funds. Evans timely perfected an appeal to the district court which affirmed the bankruptcy court’s order. Evans timely filed its notice of appeal to this Court on December 5, 1990. This Court has jurisdiction over this appeal under 28 U.S.C. § 158(d) (1988). FACTS Before August 1, 1985, the date upon which Sakowitz petitioned for bankruptcy (“the Petition Date”), Sakowitz owned and operated department stores in the Southwest. Before the Petition Date, the Banks financed Sakowitz’s operations, in consideration of which Sakowitz granted the Banks a valid and perfected security interest in accounts receivable and their proceeds. Evans, a fur merchandiser, sold furs in Sakowitz stores pursuant to a sublease agreement dated July 1, 1980. The fur departments in the various Sakowitz stores were staffed and operated exclusively by Evans employees, who sold furs directly to customers and turned over cash and credit receipts to Sakowitz each day. All of the fur inventory belonged" }, { "docid": "1691547", "title": "", "text": "12, 1987, the bankruptcy court entered an order granting the Banks’ motion for summary judgment and awarding the Banks the escrowed funds. Evans timely perfected an appeal to the district court which affirmed the bankruptcy court’s order. Evans timely filed its notice of appeal to this Court on December 5, 1990. This Court has jurisdiction over this appeal under 28 U.S.C. § 158(d) (1988). FACTS Before August 1, 1985, the date upon which Sakowitz petitioned for bankruptcy (“the Petition Date”), Sakowitz owned and operated department stores in the Southwest. Before the Petition Date, the Banks financed Sakowitz’s operations, in consideration of which Sakowitz granted the Banks a valid and perfected security interest in accounts receivable and their proceeds. Evans, a fur merchandiser, sold furs in Sakowitz stores pursuant to a sublease agreement dated July 1, 1980. The fur departments in the various Sakowitz stores were staffed and operated exclusively by Evans employees, who sold furs directly to customers and turned over cash and credit receipts to Sakowitz each day. All of the fur inventory belonged to Evans. Nevertheless, under the sublease the Evans fur departments were to be, to all appearances, Sakowitz departments. There was no indication that the furs were being sold by anyone other than Sakowitz. Evans used Sakowitz boxes, wrapping and stationary, and was permitted to advertise only under Sakowitz’s name. The sublease provided that [a]ll monies received from customers through the sale of [Evans’] merchandise or any services offered by [Evans] shall be paid at the time of receipt to the cashier of [Sakowitz], who shall keep a full true and accurate record thereof ... The amount of rent shall be computed at the time of each monthly accounting, and shall then be deducted from the amount in the hands of [Sakowitz] belonging to [Evans]. The balance of such amount, less all deductions contemplated by this Sublease, shall be and remain the property of [Evans] and shall be remitted by [Sakowitz] to [Evans] ... As to funds which shall remain the property of [Evans] under the terms of this Article XV hereof, it is specifically understood" }, { "docid": "1691549", "title": "", "text": "and agreed that while the same are in the hands of [Sakowitz] they shall be held by [Sakowitz], in trust, for [Evans] and shall be so identified on [Sakowitz’s] records. According to the sublease, customers were permitted to purchase Evans’ furs on credit extended by Sakowitz so long as the customer first received Sakowitz’s approval for the credit sale. Sakowitz had various credit arrangements that could be used by such customers, including credit card sales, C.O.D. sales, lay-away sales and, particularly significant for this case, “special account” sales. By the twentieth of every month, Sakow-itz was obligated to pay Evans for “all sales made by [Evans] from the demised premises during the preceding calendar month,” less rental payments due Sakowitz for Evans’ use of its premises. Significantly for this case, the sublease reads: Where any such sale may have been made on credit and so approved, the amount of such credit sale shall be included in the monthly settlements between [Sakowitz and Evans] ... and shall be included in the balance to be remitted by [Sakowitz to Evans] whether such credit sale has been, in fact, collected or not. Where merchandise is sold by [Evans] on the C.O.D. or lay-away plan, if said transaction is handled in conformity with [Sa-kowitz’s] rules pertaining to its own business, Evans shall be given full credit for the entire amount of such sale ... where a sale is made on the special account or lay-away plan and ... in the event any customer payments become delinquent pursuant to the customer’s agreement made with [Sakowitz] at the time of sale, then [Sakowitz] shall remit to [Evans] the amount of such delinquencies. [Emphasis added]. The sublease provided that “to the extent funds of [Evans] may be on hand with Sakowitz, [Sakowitz] shall advance for [Evans’] account the amount of all wages and salaries (less all payroll deductions ...) for [Evans’] department employees and shall pay such amounts, on [Evans’] behalf, to such employees on the regular payroll on which [Sakowitz] makes payroll payments to its own employees ...” Similarly, the sublease provided that Sakowitz would “disburse" }, { "docid": "1691558", "title": "", "text": "as trustee, Sakowitz had a duty not to commingle the funds, and that Evans should not be penalized for Sakowitz having failed to fulfill its duties as trustee. This argument is circular. Clearly, if the contract under consideration were facially a trust agreement it would need no provision prohibiting commingling of trust funds with those of the trustee. Commingling is prohibited by the common law and virtually every trust code or trust law, so an express prohibition of commingling would be redundant. But the contract under consideration here is not facially a trust agreement; facially it is a sublease. Evans asks us to make a silk purse out of a sow’s ear by finding that a contract of sublease creates an express trust. To succeed, Evans must point to provisions in the sublease that would be consistent with an express trust. There are any number of provisions that, although they would be redundant in a contract that on its face is a trust agreement, would facilitate an effort to find a trust in a contract that is not facially a trust agreement. Among any number of trust-like provisions that could be but are not present in the instant sublease — and that would tend to support the finding of an express trust — would be a provision prohibiting commingling of trust funds. Sa-kowitz had a duty not to commingle the funds only if it was in fact a trustee, and the contract before us is insufficient to create a trust mechanism. We find that the facts of Morales are sufficiently similar to the facts presented to us to conclude that the sublease failed to create an express trust. Our finding is strengthened by the fact that the Morales court buttressed its conclusion by noting that Morales’ contractual responsibility to a carrier went beyond transmitting the funds actually received, to paying the price of tickets sold whether it received that amount or not. Morales, moreover, was required to transmit the proceeds not upon receipt, nor even upon demand, but at specified regular intervals. Thus for everyday purposes the relationship was the" }, { "docid": "1691557", "title": "", "text": "settlement occurred. However, talismanic language could not throw a protective mantle over these receipts in the absence of a genuine trust mechanism. Here the relationship remained in practical fact that of debtor-creditor. The contract nowhere required Morales to keep the proceeds of Eastern’s ticket sales separate from any other funds, ... The use of the word “trust” and the designation of the airline as titleholder, in a contract which is not publicly filed, would not save potential creditors from relying on such assets as office equipment, accounts receivable, and a bank account solely in the name of the agency. In the absence of any provision requiring Morales to hold the funds in trust by keeping them separate, and otherwise restricting their use, the label “trust” could in these circumstances and for present purposes have no legal effect. Id. at 1071. Evans contends that the requirement to account for Evans’ property separately from Sakowitz’s property was in fact a segregation requirement, but we cannot read the language of the sublease that way. Moreover, Evans argues that as trustee, Sakowitz had a duty not to commingle the funds, and that Evans should not be penalized for Sakowitz having failed to fulfill its duties as trustee. This argument is circular. Clearly, if the contract under consideration were facially a trust agreement it would need no provision prohibiting commingling of trust funds with those of the trustee. Commingling is prohibited by the common law and virtually every trust code or trust law, so an express prohibition of commingling would be redundant. But the contract under consideration here is not facially a trust agreement; facially it is a sublease. Evans asks us to make a silk purse out of a sow’s ear by finding that a contract of sublease creates an express trust. To succeed, Evans must point to provisions in the sublease that would be consistent with an express trust. There are any number of provisions that, although they would be redundant in a contract that on its face is a trust agreement, would facilitate an effort to find a trust in a contract" } ]

[ { "docid": "12025115", "title": "", "text": "the defendants attempt to separate the expenditure aspect of the chaplaincy from the prayers themselves, notwithstanding that defendants elsewhere argue the two elements cannot be treated separately. The defendants also attempt to construe the expenditure aspects as incidental administrative items that one lacks standing to challenge unless one is challenging a more general program of expenditures. We think it is clear that Chambers has standing to assert his claim. The chaplain is selected and compensated for performing ostensibly one function — opening each legislative day with a prayer. Chambers challenges the formal legislative rule and established practice as a whole, not merely incidental elements of it. A taxpayer clearly has standing to challenge the expenditure foundation of such a practice because of the nexus between his taxpayer status and the Establishment Clause claim. See Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968); Murray v. Buchanan, No. 81-1301 (D.C.Cir. Mar. 9,1982) (taxpayer standing to challenge congressional chaplaincy); cf. Stone v. Graham, 449 U.S. 39, 101 S.Ct. 192, 66 L.Ed.2d 199 (1980) (standing not even disputed). Moreover, Chambers properly asserts particularized injury in that, as a member of the legislature, he squarely confronts the prayer program on a daily basis. We thus have no difficulty finding standing to assert the present claim. The defendants also contend that the abstention doctrine precludes federal courts from entertaining the present action. We cannot agree. Abstention ordinarily in volves deferring federal judicial action when ongoing state proceedings might obviate the need for federal relief. See Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). Under quite narrow circumstances, the Supreme Court has extended the comity basis of nonintervention to certain state-level executive branch functions. See Rizzo v. Goode, 423 U.S. 362, 379-380, 96 S.Ct. 598, 608, 46 L.Ed.2d 561 (1976). Federalism principles, however, do not in any manner bar the present action. There have never been any state proceedings relative to the present action, much less are any proceedings presently outstanding. Nor is the challenged prayer practice an isolated incident unrelated to official state policy. The prayer" } ]

[ { "docid": "15871525", "title": "", "text": "daily confrontation with a municipality’s offensive religious logo was sufficient to support standing although the plaintiff resided outside the city); Saladin v. City of Milledgeville, 812 F.2d 687, 692-93 (11th Cir.1987) (finding that the plaintiffs had standing to challenge city seal containing the word “Christianity” where they are “part of the City” and “regularly receive” correspondence bearing the seal). New-dow’s observation of an offensive Senate prayer on one occasion fails to demonstrate the type of extensive interaction with allegedly offensive religious displays in one’s community that have supported standing for Establishment Clause claims. Therefore, the court concludes that New-dow fails to establish standing based on his claim that his right to observe the government is impaired.. 2. Governmental Employment Newdow also maintains that he has standing on the grounds that he suffered an employment injury because he applied for the Senate and House legislative chaplain positions and will not be seriously considered due to his religious beliefs. This alleged injury is insufficient to establish standing because Newdow has not alleged an infringement of a legally protected interest. See Claybrook v. Slater, 111 F.3d 904, 907 (D.C.Cir.1997) (“[I]f the plaintiffs claim has no foundation in law, he has no legally protected interest and thus no standing to sue.”). First, the court notes that Newdow’s attempt to assert standing on the basis of this employment injury inherently contradicts the basis of his suit, in which he seeks a declaration that the Senate and House chaplaincies and the practice of daily opening prayers are unconstitutional, and that the House and Senate should be prohibited from spending taxpayer funds to support such offices. In light of Newdow’s belief that the practice of legislative chaplains violates the Constitution, he cannot also claim that he suffered injury to a legally cognizable interest when he was not selected to be Senate or House chaplain. Second, because Marsh held that a legislative body may employ a chaplain to “invoke Divine guidance,” 463 U.S. at 792, 103 S.Ct. 3330, it follows that Congress may limit the chaplain position to those who are willing to perform that task. Indeed, the" }, { "docid": "21725586", "title": "", "text": "472 (1989), the Supreme Court held unconstitutional the display of a creche in a county courthouse. Justice Kennedy’s dissent for four members of the Court maintained that, if legislative prayer was permissible under Marsh, then surely the creche was also constitutional. Id. at 665 & n. 4, 109 S.Ct. 3086 (Kennedy, J., dissenting). Justice Blackmun’s majority opinion replied: Indeed, in Marsh itself, the Court recognized that not even “the unique history” of legislative prayer can justify contemporary legislative prayers that have the effect of affiliating the government with any one specific faith or belief. The legislative prayers involved in Marsh did not violate this principle because the particular chaplain had “removed all references to Christ.” Thus, Marsh plainly does not stand for.the sweeping proposition Justice Kennedy apparently would ascribe to it, namely, that all accepted practices 200 years old and their equivalents are constitutional today. Id. at 603,109 S.Ct. 3086 (internal citations omitted); see also id. at' 604 n. 53, 109 S.Ct. 3086 (noting that a Governor’s preference for Christianity and discrimination against all non-Christians in his Thanksgiving proclamation is the “very evil” against which the Establishment Clause is meant, in part, to protect). Furthermore, Justice O’Connor, in her separate opinion, emphasized that both the longstanding existence of legislative prayer and its “nonsectarian nature” in Marsh led her to conclude that the practice did not violate the First Amendment. Id. at 630-31, 109 S.Ct. 3086 (O’Connor, J., concurring). The only other Supreme Court case that meaningfully elucidates Marsh is Van Orden v. Perry, — U.S. -, 125 S.Ct. 2854, 162 L.Ed.2d 607 (2005). In that case, which approved a monument of the Ten Commandments at the Texas capítol, the Court discussed cases that recognized the role of God in American heritage. It cited Marsh, and in a footnote suggested that the challenge to Nebraska’s legislative prayer may have been rejected because the prayers were nonsectarian: “In Marsh, the prayers were often explicitly Christian, but the chaplain removed all references to Christ the year after the suit was filed.” Id. at 2862 n. 8. We never have addressed the constitutionality of" }, { "docid": "8610657", "title": "", "text": "suffice under the Supreme Court’s precedents to demonstrate plaintiffs’ concrete and particularized injury. An alleged Establishment Clause injury is sufficiently concrete and particularized when the plaintiff sees or hears a government-sponsored religious display or speech that offends his or her beliefs. See In re Navy Chaplaincy, 534 F.3d 756, 764 (D.C.Cir.2008). The Supreme Court has consistently decided Establishment Clause cases involving objections to government-sponsored religious displays or speech in public settings. See Van Orden v. Perry, 545 U.S. 677, 682, 691, 125 S.Ct. 2854, 162 L.Ed.2d 607 (2005) (plurality opinion) (plaintiff “encountered” Ten Commandments monument during visits to state capítol in which he “walked by the monument”); McCreary County v. ACLU, 545 U.S. 844, 852, 125 S.Ct. 2722, 162 L.Ed.2d 729 (2005) (county citizens saw Ten Commandments display that was “readily visible” to them when they used courthouse to conduct civic business); County of Allegheny v. ACLU, 492 U.S. 573, 587-88, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989) (local residents saw creche in county courthouse and menorah on town property); Lynch v. Donnelly, 465 U.S. 668, 671, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984) (local residents saw creche on town property); Marsh v. Chambers, 463 U.S. 783, 784-86, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983) (member of legislature heard prayer at opening of each legislative session); cf. Salazar v. Buono, — U.S.-, 130 S.Ct. 1803, 1812, 176 L.Ed.2d 634 (2010) (opinion of Kennedy, J.) (recognizing that plaintiffs standing to challenge public display of a cross was accepted in prior lower-court decision). Moreover, the fact that a large number of people might see or hear the religious display or speech does not negate a plaintiffs standing. See FEC v. Akins, 524 U.S. 11, 24, 118 S.Ct. 1777, 141 L.Ed.2d 10 (1998). It is true that the Court did not pause to expressly address standing in those religious display and speech decisions. And “cases in which jurisdiction is assumed sub silentio are not binding authority for the proposition that jurisdiction exists.” In re Navy Chaplaincy, 534 F.3d at 764 (internal quotation marks omitted). But the Supreme Court’s consistent adjudication of religious display" }, { "docid": "19819181", "title": "", "text": "of such ballot title to the Secretary of State, the President Pro Tempore of the Senate and the Speaker of the House of Representatives. The Attorney General may consider any comments made by the President Pro Tempore of the Senate or the Speaker of the House of Representatives and shall file a final ballot title with the Secretary of State no sooner than ten (10) business days and no later than fifteen (15) business days after furnishing the preliminary ballot title; and 2. After receipt of the measure and the official ballot title, as certified by the Attorney General, the Secretary of State shall within five (5) days transmit to the Secretary of the State Election Board an attested copy of the measure, including the official ballot title. 34 Okla. Stat. tit. 34, § 9(C) (2009). . Various spellings have been used for \"Sharia,” \"Koran,” and \"Mohammed.” We use the spellings adopted in the ballot title to avoid confusion. . Appellants have not challenged the causation or redressability elements of Mr. Awad’s standing. . This is consistent with our longstanding view that in Establishment Clause cases, “standing is clearly conferred by non-economic religious values.” Anderson v. Salt Lake City Corp., 475 F.2d 29, 31 (10th Cir.1973) superseded on other grounds by Van Orden v. Perry, 545 U.S. 677, 125 S.Ct. 2854, 162 L.Ed.2d 607 (2005); McCreary Cnty. v. Am. Civil Liberties Union of Kentucky, 545 U.S. 844, 125 S.Ct. 2722, 162 L.Ed.2d 729 (2005). See Soc'y of Separationists v. Pleasant Grove City, 416 F.3d 1239, 1241 n. 1 (10th Cir.2005). . We have some direction, however, from the numerous cases in which the Court has addressed the merits of Establishment Clause claims alleging exposure to unwelcome government-sponsored religious messages. Summarized in recent Seventh Circuit and Ninth Circuit opinions, these cases involved \"a creche in a county courthouse, a creche in a public park, the Ten Commandments displayed on the grounds of a state capital, the Ten Commandments displayed at a courthouse, a cross displayed in a national park, prayer in a football game, school prayer, a moment of silence at" }, { "docid": "20383318", "title": "", "text": "assert that the words ‘under God’ contain no religious significance.”); see also Van Orden v. Perry, 545 U.S. 677, 695-96, 125 S.Ct. 2854, 162 L.Ed.2d 607 (2005) (Thomas, J., concurring) (“[W]ords such as ‘God’ have religious significance.... Telling either nonbelievers or believers that the words ‘under God’ have no meaning contradicts what they know to be true.”). That the phrase “under God” has some religious content, however, is not determinative of the New Hampshire Act’s constitutionality. This is in part because the Constitution does not “require complete separation of church and state.” Lynch, 465 U.S. at 673, 104 S.Ct. 1355. The fact of some religious content is also not dispositive because there are different degrees of religious and non-religious meaning. The Supreme Court has upheld a wide variety of governmental actions that have some religious content. See, e.g., Van Orden, 545 U.S. at 681, 125 S.Ct. 2854 (upholding the display of the Ten Commandments on the Texas State Capitol grounds); County of Allegheny, 492 U.S. at 578-79, 109 S.Ct. 3086 (upholding the display of a Chanukah menorah outside a government building); Lynch, 465 U.S. at 670-72, 104 S.Ct. 1355 (upholding the display of a Nativity scene in a public Christmas display); Marsh v. Chambers, 463 U.S. 783, 784-86, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983) (upholding a state legislature’s practice of opening each day with a prayer led by a chaplain paid with state funds). The Pledge and the phrase “under God” are not themselves prayers, nor are they readings from or recitations of a sacred text of a religion. That fact does not itself dispose of the constitutional question either. There are many religiously infused practices that do not rise to the level of prayer that are clearly prohibited by the Establishment Clause. In the public school context, the Supreme Court has struck down the teaching of creation science, Edwards v. Aguillard, 482 U.S. 578, 107 S.Ct. 2573, 96 L.Ed.2d 510 (1987), and the display of a Ten Commandments poster, Stone v. Graham, 449 U.S. 39, 101 S.Ct. 192, 66 L.Ed.2d 199 (1980). Special considerations are involved when a" }, { "docid": "18471", "title": "", "text": "Jewish War Veterans have no direct contact with the offensive display and allege instead that their use of a public facility has been totally prevented by the presence of religious symbols there. The County urges us to hold that an individual may only have standing to challenge a religious display if he alleges this sort of injury — that is, if he has actually changed his behavior in response to the display. Compare Freedom from Religion Found., Inc. v. Zielke, 845 F.2d 1463, 1468 (7th Cir.1988) (denying standing to challenge Ten Commandments display in a public park to residents who “concede[d] that they did not alter their behavior in any manner as a result of the Ten Commandments monument”), with Gonzales v. North Township, 4 F.3d 1412, 1416 (7th Cir.1993) (granting standing to challenge crucifix in public park to residents who “stated that they avoid the area of the Park near the crucifix”). Únder the County’s view, Suhre lacks standing in this case because he has failed to prove that the religious display has actually caused him to avoid altogether the Haywood County courthouse. We cannot accept the County’s position. We agree instead with the majority of circuits that have addressed this question that neither Supreme Court precedent nor Article III imposes such a change-in-behavior requirement. See, e.g., Foremaster, 882 F.2d at 1490-91 (rejecting Seventh Circuit approach). Such an extraordinary showing of injury, while sufficient, is not necessary to support standing to bring an Establishment Clause claim. In evaluating standing, the Supreme Court has never required that Establishment Clause plaintiffs take affirmative steps to avoid contact with challenged displays or religious exercises. The student plaintiffs in Schempp had the option to leave the classroom during the Bible reading and prayer they protested. They chose not to assume this special burden, yet the Supreme Court readily found that they had standing to challenge the practice. 374 U.S. at 224 n. 9, 83 S.Ct. at 1572-73 n. 9. In Valley Forge itself, the Court interpreted Schempp to premise standing on the fact that plaintiffs “were subjected to unwelcome religious exercises or were" }, { "docid": "15871524", "title": "", "text": "has violated the Establishment Clause “does not provide a [plaintiff] special license to roam the country in search of governmental wrongdoing and to reveal [his] discoveries in federal court.” 454 U.S. at 487, 102 S.Ct. 752. In cases conferring standing solely based on direct exposure to an offensive religious display or activity, there generally has been “a personal connection between the plaintiff and the challenged display in his or her home community....” Suhre v. Haywood County, 131 F.3d 1083, 1087, 1090 (4th Cir.1997) (holding that a county resident had standing to challenge a Ten Commandments display in the county courthouse where he had to “confront the religious symbolism whenever he enters the courtroom on either legal or municipal business”); see also Washegesic v. Bloomingdale Pub. Schs., 33 F.3d 679, 681-83 (6th Cir.1994) (finding that a former student had standing to confront a religious portrait at a school where he still attended events and had “continuing direct contact” with the offensive object); Foremaster v. City of St. George, 882 F.2d 1485, 1491 (10th Cir.1989) (finding that daily confrontation with a municipality’s offensive religious logo was sufficient to support standing although the plaintiff resided outside the city); Saladin v. City of Milledgeville, 812 F.2d 687, 692-93 (11th Cir.1987) (finding that the plaintiffs had standing to challenge city seal containing the word “Christianity” where they are “part of the City” and “regularly receive” correspondence bearing the seal). New-dow’s observation of an offensive Senate prayer on one occasion fails to demonstrate the type of extensive interaction with allegedly offensive religious displays in one’s community that have supported standing for Establishment Clause claims. Therefore, the court concludes that New-dow fails to establish standing based on his claim that his right to observe the government is impaired.. 2. Governmental Employment Newdow also maintains that he has standing on the grounds that he suffered an employment injury because he applied for the Senate and House legislative chaplain positions and will not be seriously considered due to his religious beliefs. This alleged injury is insufficient to establish standing because Newdow has not alleged an infringement of a legally" }, { "docid": "19819183", "title": "", "text": "school, Bible reading at a public school, and a religious invocation at graduation.” Freedom From Religion Found., Inc. v. Obama, 641 F.3d 803, 812 (7th Cir.2011) (Williams, J., concurring); Catholic League for Religious and Civil Rights v. City and Cnty. of San Francisco, 624 F.3d 1043, 1049-50 (9th Cir.2010) (en banc), cert. denied, — U.S. -, 131 S.Ct. 2875, 179 L.Ed.2d 1188 (2011). The Supreme Court recently cautioned that \"[w]hen a potential jurisdictional defect is neither noted nor discussed in a federal decision, the decision does not stand for the proposition that no defect existed.” Arizona Christian Sch. Tuition Org. v. Winn, - U.S. -, 131 S.Ct. 1436, 1448, 179 L.Ed.2d 523 (2011). Nonetheless, the volume and content of Supreme Court merits decisions in Establishment Clause religious display and expression cases involving noneconomic injury is instructive. . One of the American Atheists plaintiffs alleged that he was forced to alter his travel route to avoid contact with the crosses. We said that such an allegation was not necessary for standing but further supported his standing. 637 F.3d at 1113 (quoting O'Connor v. Washburn Univ., 416 F.3d 1216, 1223 (10th Cir.2005)). . In a case that did not involve the Establishment Clause, Allen v. Wright, 468 U.S. 737, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984), plaintiffs, parents of black school children, sued the Internal Revenue Service for failure to enforce a law to deny tax-exempt status to private schools that discriminated on the basis of race. The Court denied that the plaintiffs' claim of a stigmatizing injury suffered by all members of a racial group was sufficient for standing because the injury was too generalized and did not allege personal denial of equal treatment: There can be no doubt that this sort of noneconomic injury is one of the most serious consequences of discriminatory government action and is sufficient in some circumstances to support standing. Our cases make clear, however, that such injury accords a basis for standing only to those persons who are personally denied equal treatment by the challenged discriminatory conduct. Id. at 755, 104 S.Ct. 3315 (quotations and" }, { "docid": "14309273", "title": "", "text": "enough harm on any one person to allow him or her to sue for more particular injuries. The majority’s approach also disregards the special place that legislative chaplaincies have held in the Supreme Court’s Establishment Clause and standing jurisprudence. Marsh v. Chambers was decided in 1983, long after both Doremus and Flast were on the books. In that case, the Court considered a challenge to the practice of the Nebraska legislature of opening each legislative day with a prayer by a chaplain paid by the state. 463 U.S. at 784, 103 S.Ct. 3330. The plaintiff, Ernest Chambers, sued both in his capacity as a member of the Nebraska legislature and in his capacity as a taxpayer of Nebraska. The Supreme Court noted that the court of appeals had considered, among other things, the question of standing, id. at 785, 103 S.Ct. 3330, but it moved directly to the merits — something it could not have done, given the jurisdictional nature of an Article III challenge, had it thought that there was a problem with standing. On the merits, the Court found no problem with the chaplaincy that Nebraska had adopted. It noted in passing that the chaplain had characterized his prayers as “ ‘nonsectarian,’ ‘Judeo Christian,’ and with ‘elements of the American civil religion.’ ” Id. at 793 n. 14, 103 S.Ct. 3330. It also noted that “[ajlthough some of his earlier prayers were often explicitly Christian, [the chaplain] removed all references to Christ after a 1980 complaint from a Jewish legislator.” Id. These, of course, are merits judgments. I do not rule out the possibility that some or all of the prayers offered before the Indiana House might similarly pass muster under Marsh. Unfortunately, however, we are never to find out. Under the majority’s approach, even if the Speaker decides to start working his way through the Anglican Book of Common Prayer day by day, notwithstanding the presence of Jewish, Muslim, Hindu, Buddhist, and other legislators, staff, and constituents, nothing can be done to enforce the command of the Establishment Clause. As long as a majority of the House" }, { "docid": "4273616", "title": "", "text": "read the prayer (and the other defendants, on the theory that they were complicit). Id. at 609. After all, the plaintiffs “were subjected to an unwelcome religious recitation at a school function.” Id. But whether the plaintiffs had standing to challenge the school’s “past policy of allowing prayer at graduation ceremonies[] present[ed] a much closer issue.” Id. The court acknowledged that the school’s announcement to the students at the mandatory rehearsal that, consistent with the school’s tradition, the graduation ceremony would include an invocation and benediction constituted some personal contact with an endorsement of religion. Id. at 609-10. Nevertheless, the court concluded that the plaintiffs lacked standing to pursue this claim, both because the plaintiffs’ contact with endorsement was insufficient and because the plaintiffs did not allege that the past policy caused them any particularized injury. Id. 3. Religious Display Cases In a legion of cases, plaintiffs have challenged religious displays. See, e.g., Lefevre, 598 F.3d at 640 (national motto “In God We Trust” on the nation’s coins and currency); ACLU of Ky. v. Grayson Cnty., 591 F.3d 837, 840-41 (6th Cir.2010) (Ten Commandments in county courthouse); Cooper, 577 F.3d at 484 (religious displays at post office); Green v. Haskell Cnty. Bd. of Comm’rs, 568 F.3d 784, 787-88 (10th Cir.2009) (Ten Commandments on courthouse green), cert. denied, — U.S.-, 130 S.Ct. 1687, 176 L.Ed.2d 180 (2010); Caldwell v. Caldwell, 545 F.3d 1126, 1128 (9th Cir.2008) (religious statements on public university’s website), cert. denied, — U.S. -, 129 S.Ct. 1617, 173 L.Ed.2d 995 (2009); Bames-Wallace v. City of San Diego, 530 F.3d 776, 783 (9th Cir.2008) (order) (Boy Scout symbols in public park), cert, denied, — U.S. -, 130 S.Ct. 2401, 176 L.Ed.2d 922 (2010); Vasquez, 487 F.3d at 1247-48 (removal of cross on county seal); O’Connor v. Wash-bum Univ., 416 F.3d 1216, 1218-19 (10th Cir.2005) (statue of Roman Catholic bishop displayed at public university in outdoor art show); Books v. Elkhart Cnty., 401 F.3d 857, 858 (7th Cir.2005) (Ten Commandments on public property); ACLU of Ohio Found., Inc. v. Ashbrook, 375 F.3d 484, 487 (6th Cir.2004) (Ten Commandments on courtroom" }, { "docid": "17702253", "title": "", "text": "more than present a “creative analogy” with “some surface logic,” Op. at 765, as the court offers no basis for its unsupported conclusion that this case is different from “the distinct context of the religious display and prayer cases,” id. As counsel for the Navy acknowledged, “if a chaplain ... is personally exposed to a [message of religious preference], there would be traditional standing.” Oral Arg. Tr. at 13 (Apr. 24, 2008). That is what appellants allege in charging that the 4109 program establishes an “official preference of one religion over another” that causes them psychological injury due to their personal and direct receipt of the “ ‘message ... that they are outsiders, not full members’ ” of the Navy’s Chaplain Corps. Chaplaincy, 454 F.3d at 302 (quoting Lynch, 465 U.S. at 688, 104 S.Ct. 1355 (O’Connor, J., concurring)). Appellants’ injury is thus as particularized, see Lujan, 504 U.S. at 561 n. 1, 573-74, 112 S.Ct. 2130; Warth v. Seldin, 422 U.S. 490, 502, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975), as that of the children in Schempp, 374 U.S. at 223-24, 83 S.Ct. 1560, to whom school prayers were read, the plaintiffs in Women’s Equity Action League (WEAL) v. Cavazos, 879 F.2d 880, 884-85 (D.C.Cir.1989), who were enrolled or employed in segregated schools, and the state legislator in Marsh v. Chambers, 463 U.S. 783, 786 n. 4, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983), who objected “as a member of the Legislature” to the use of a state-employed chaplain to convene its sessions. As members of a statutorily-defined community within the armed forces, appellants are not mere bystanders, Allen v. Wright, 468 U.S. 737, 756, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984), and they did not “roam the country,” Valley Forge Christian Coll. v. Ams. United for Separation of Church and State, 454 U.S. 464, 487, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982), in search of impermissible government action. The uniqueness of appellants’ injury as chaplains in relation to their service in the Navy Chaplain Corps eliminates the concern expressed in Valley Forge that recognizing their standing would, in" }, { "docid": "8610658", "title": "", "text": "668, 671, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984) (local residents saw creche on town property); Marsh v. Chambers, 463 U.S. 783, 784-86, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983) (member of legislature heard prayer at opening of each legislative session); cf. Salazar v. Buono, — U.S.-, 130 S.Ct. 1803, 1812, 176 L.Ed.2d 634 (2010) (opinion of Kennedy, J.) (recognizing that plaintiffs standing to challenge public display of a cross was accepted in prior lower-court decision). Moreover, the fact that a large number of people might see or hear the religious display or speech does not negate a plaintiffs standing. See FEC v. Akins, 524 U.S. 11, 24, 118 S.Ct. 1777, 141 L.Ed.2d 10 (1998). It is true that the Court did not pause to expressly address standing in those religious display and speech decisions. And “cases in which jurisdiction is assumed sub silentio are not binding authority for the proposition that jurisdiction exists.” In re Navy Chaplaincy, 534 F.3d at 764 (internal quotation marks omitted). But the Supreme Court’s consistent adjudication of religious display and speech cases over a span of decades suggests that the Court has thought it obvious that the plaintiffs in those matters had standing. Indeed, none of the dissenters in those cases ever contended that the plaintiffs lacked standing. To ignore the import of those cases'for the standing analysis, one would have to believe the Supreme Court repeatedly overlooked a major standing problem and decided a plethora of highly controversial and divisive Establishment Clause cases unnecessarily and inappropriately. I find that prospect extremely unlikely. In light of the Supreme Court’s precedents, plaintiffs here have alleged a sufficiently concrete and particularized injury. To satisfy the injury-in-fact requirement when challenging a future event, plaintiffs also must show that the alleged injury is “imminent.” That inquiry mirrors the test for constitutional ripeness. See Nat'l Treasury Employees Union v. United States, 101 F.3d 1423, 1427-28 (D.C.Cir.1996); see, e.g., MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 128 & n. 8, 127 S.Ct. 764, 166 L.Ed.2d 604 (2007). To demonstrate imminence, plaintiffs must allege an injury that is “substantially probable.”" }, { "docid": "19819182", "title": "", "text": "is consistent with our longstanding view that in Establishment Clause cases, “standing is clearly conferred by non-economic religious values.” Anderson v. Salt Lake City Corp., 475 F.2d 29, 31 (10th Cir.1973) superseded on other grounds by Van Orden v. Perry, 545 U.S. 677, 125 S.Ct. 2854, 162 L.Ed.2d 607 (2005); McCreary Cnty. v. Am. Civil Liberties Union of Kentucky, 545 U.S. 844, 125 S.Ct. 2722, 162 L.Ed.2d 729 (2005). See Soc'y of Separationists v. Pleasant Grove City, 416 F.3d 1239, 1241 n. 1 (10th Cir.2005). . We have some direction, however, from the numerous cases in which the Court has addressed the merits of Establishment Clause claims alleging exposure to unwelcome government-sponsored religious messages. Summarized in recent Seventh Circuit and Ninth Circuit opinions, these cases involved \"a creche in a county courthouse, a creche in a public park, the Ten Commandments displayed on the grounds of a state capital, the Ten Commandments displayed at a courthouse, a cross displayed in a national park, prayer in a football game, school prayer, a moment of silence at school, Bible reading at a public school, and a religious invocation at graduation.” Freedom From Religion Found., Inc. v. Obama, 641 F.3d 803, 812 (7th Cir.2011) (Williams, J., concurring); Catholic League for Religious and Civil Rights v. City and Cnty. of San Francisco, 624 F.3d 1043, 1049-50 (9th Cir.2010) (en banc), cert. denied, — U.S. -, 131 S.Ct. 2875, 179 L.Ed.2d 1188 (2011). The Supreme Court recently cautioned that \"[w]hen a potential jurisdictional defect is neither noted nor discussed in a federal decision, the decision does not stand for the proposition that no defect existed.” Arizona Christian Sch. Tuition Org. v. Winn, - U.S. -, 131 S.Ct. 1436, 1448, 179 L.Ed.2d 523 (2011). Nonetheless, the volume and content of Supreme Court merits decisions in Establishment Clause religious display and expression cases involving noneconomic injury is instructive. . One of the American Atheists plaintiffs alleged that he was forced to alter his travel route to avoid contact with the crosses. We said that such an allegation was not necessary for standing but further supported his standing." }, { "docid": "8610656", "title": "", "text": "a single requirement, Allen v. Wright, 468 U.S. 737, 753 n. 19, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984). KAVANAUGH, Circuit Judge, concurring in the judgment: Under the Supreme Court’s precedents, plaintiffs have standing to raise an Establishment Clause challenge to the Inaugural prayers and to the inclusion of the words “so help me God” in the official Presidential oath administered at the public Inauguration ceremonies. I would reject plaintiffs’ claims on the merits because those longstanding practices do not violate the Establishment Clause as it has been interpreted by the Supreme Court. I The Government initially argues that plaintiffs lack standing to challenge the Presidential oath and Inaugural prayers. I disagree. Under the relevant Supreme Court precedents, plaintiffs have demonstrated injury-in-fact, causation, and redressability, the three components of standing. A To show injury-in-fact, plaintiffs must allege an injury that is concrete and particularized. Plaintiffs are atheists. They claim that they will attend the next Presidential Inauguration and witness the Presidential oath and Inaugural prayers — government-sponsored religious expression to which they object. Those allegations suffice under the Supreme Court’s precedents to demonstrate plaintiffs’ concrete and particularized injury. An alleged Establishment Clause injury is sufficiently concrete and particularized when the plaintiff sees or hears a government-sponsored religious display or speech that offends his or her beliefs. See In re Navy Chaplaincy, 534 F.3d 756, 764 (D.C.Cir.2008). The Supreme Court has consistently decided Establishment Clause cases involving objections to government-sponsored religious displays or speech in public settings. See Van Orden v. Perry, 545 U.S. 677, 682, 691, 125 S.Ct. 2854, 162 L.Ed.2d 607 (2005) (plurality opinion) (plaintiff “encountered” Ten Commandments monument during visits to state capítol in which he “walked by the monument”); McCreary County v. ACLU, 545 U.S. 844, 852, 125 S.Ct. 2722, 162 L.Ed.2d 729 (2005) (county citizens saw Ten Commandments display that was “readily visible” to them when they used courthouse to conduct civic business); County of Allegheny v. ACLU, 492 U.S. 573, 587-88, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989) (local residents saw creche in county courthouse and menorah on town property); Lynch v. Donnelly, 465 U.S." }, { "docid": "4273620", "title": "", "text": "S.Ct. 2722, 162 L.Ed.2d 729 (2005) (“large, gold-framed copies” of the Ten Commandments at county courthouses “posted in a very high traffic area of the courthouse” (internal quotation marks omitted)); Van Orden v. Perry, 545 U.S. 677, 681, 125 S.Ct. 2854, 162 L.Ed.2d 607 (2005) (Ten Commandments monolith standing “6-feet high and 3 1/2-feet wide” in public park); Cnty. of Allegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573, 578, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989) (ceéche in county courthouse and menorah outside county building); Lynch v. Donnelly, 465 U.S. 668, 671, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984) (creche containing figures “ranging in height from 5 [inches] to 5 [feet]”). In each case, the plaintiffs alleged that they were deeply offended by the presence of the religious display on public property and sought its removal. The courts consistently have applied the same general legal rules. A plaintiff has standing to challenge a religious display if he or she alleges a change in behavior (for instance, affirmative avoidance of the religious display). Rabun Cnty., 698 F.2d at 1108. But, although an allegation of a change in behavior is sufficient to confer standing, it is not required. Vasquez, 487 F.3d at 1251-52; Suhre, 131 F.3d at 1087-88; Foremaster v. City of St. George, 882 F.2d 1485, 1490-91 (10th Cir.1989); Saladin, 812 F.2d at 692-93. A plaintiff also has standing when he or she has alleged “direct and unwelcome contact” with the religious display. Grayson Cnty., 591 F.3d at 843; Green, 568 F.3d at 794; Books, 401 F.3d at 861; City of Plattsmouth, 358 F.3d at 1030; accord Lefevre, 598 F.3d at 642 (“unwelcome direct contact”); Caldwell, 545 F.3d at 1132 (same); Vasquez, 487 F.3d at 1253 (same); Ashbrook, 375 F.3d at 490 (“direct, unwelcome contact”); Suhre, 131 F.3d at 1088 (“direct unwelcome contact”). In the absence of “direct and unwelcome contact,” however, a plaintiff cannot meet the standing requirements, even if he or she has contact with a religious display and is offended by it: “In certain cases, a plaintiffs contact with an allegedly offensive religious or anti-religious symbol will" }, { "docid": "12018364", "title": "", "text": "will allow a chorus of government prayers to resound from every “deliberative body” of every locality whose duty it is to address the secular affairs of its constituents. If the Establishment Clause prohibits a religious monument from occupying the lobby of a County building, it defies logic to conclude that the Clause nevertheless sanctions state-sponsored prayer at public meetings upstairs. The majority cites to the plurality opinion, Van Orden v. Perry, 545 U.S. 677, 125 S.Ct. 2854, 2865, 162 L.Ed.2d 607 (2005), in which the Supreme Court deviated somewhat from Lemon in allowing a monument with the Ten Commandments to remain on the Texas state capitol grounds. But see Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984) (applying Lemon in allowing the display of a nativity scene). Although Chief Justice Rehnquist, joined by Justice Scalia, Justice Kennedy, and Justice Thomas, wrote that the Lemon test is “not useful in dealing with the sort of passive monument,” he still relied, in part, on the purpose prong of the Lemon test. In delivering his opinion, Justice Rehnquist affirmed that there was a “valid secular purpose” to the monument: “recognizing and commending the [monument’s sponsors] for their efforts to reduce juvenile delinquency.” Van Orden, 545 U.S. at 686, 682, 125 S.Ct. 2854, 2856, 2858, 162 L.Ed.2d 607. In addition, concurring in the judgment, Justice Bryer suggested that an evaluation under Lemon might lead to the same result. 545 U.S. at 700, 125 S.Ct. 2854, 2869, 162 L.Ed.2d 607. Thus, the Supreme Court’s ad hoc approach to the display of religious symbols “has come to ‘requirfe] scrutiny more commonly associated with interior decorators than with the judiciary.’ ” Lee, 505 U.S. at 636, 112 S.Ct. 2649, 2681, 120 L.Ed.2d 467 (Scalia, J. dissenting). This approach might do for the quiescent display of religious monuments and holiday decorations, however; a more rigorous and consistently applied evaluation is required, and has been applied, when the state assumes the active exercise of public prayer. III. I would draw the line at state-sponsored prayer at invocations before the United States Congress and the" }, { "docid": "17702241", "title": "", "text": "of the Texas State Capitol that petitioner frequently encountered); County of Allegheny v. ACLU, 492 U.S. 573, 578, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989) (creche display in county courthouse and menorah display outside city-county building); Suhre v. Haywood County, 131 F.3d 1083, 1086 (4th Cir.1997) (Ten Commandments display in county courtroom; noting that display cases are “particularized subclass of Establishment Clause standing jurisprudence”); see also Lee v. Weisman, 505 U.S. 577, 580, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992) (governmental prayer at school graduation); Marsh v. Chambers, 463 U.S. 783, 784-85, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983) (daily prayer at opening of state legislature); Sch. Dist. of Abington Township v. Schempp, 374 U.S. 203, 205-12, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963) (daily Bible reading in class); Engel v. Vitale, 370 U.S. 421, 422-23, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962) (official state prayer in class). These Supreme Court cases do not all directly discuss the standing issue. It is a well-established rule that “cases in which jurisdiction is assumed sub silentio are not binding authority for the proposition that jurisdiction exists.” John Doe, Inc. v. DEA 484 F.3d 561, 569 n. 5 (D.C.Cir.2007) (internal quotation marks omitted). In any event, accepting those cases as precedents on standing, we nonetheless find significant differences between plaintiffs’ case and the religious display and prayer cases. In the religious display and prayer cases, the Government was actively and directly communicating a religious message through religious words or religious symbols—in other words, it was engaging in religious speech that was observed, read, or heard by the plaintiffs in those cases. Here, by contrast, the Navy is not communicating a religious message through religious words or religious symbols. Plaintiffs’ objection here is more akin to the objection to the property transfer in Valley Forge, where the Court stated that the plaintiffs failed “to identify any personal injury suffered by them as a consequence of the alleged constitutional error, other than the psychological consequence presumably produced by observation of conduct with which one disagrees. That is not an injury sufficient to confer standing under" }, { "docid": "17702239", "title": "", "text": "in the Chaplaincy opinion—would run counter to decades of settled jurisprudence setting forth the requirements for standing in Establishment Clause cases. Jurisdictional requirements are not disposed of so easily, and the Court in Chaplaincy did not purport to make the sweeping change attributed to it by plaintiffs. Apart from citing Chaplaincy, plaintiffs also claim injury-in-fact from their being subjected to the “message” of religious preference conveyed by the Navy’s allegedly preferential retirement program for Catholic chaplains. The program, they say, makes them feel like second-class citizens within the Navy Chaplaincy even if they themselves have not suffered discrimination on account of their religion. As the Supreme Court has often stated, mere personal offense to government action does not give rise to standing to sue. Allen v. Wright, 468 U.S. 737, 752-54, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984); see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 575-76, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). “By the mere bringing of his suit, every plaintiff demonstrates his belief that a favorable judgment will make him happier. But although a suitor may derive great comfort and joy” from knowing that the Government is following constitutional imperatives, “that psychic satisfaction is not an acceptable Article III remedy because it does not redress a cognizable Article III injury.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 107, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). “Recognition of standing in such circumstances would transform the federal courts into no more than a vehicle for the vindication of the value interests of concerned bystanders.” Allen, 468 U.S. at 756, 104 S.Ct. 3315 (internal quotation marks omitted). Plaintiffs respond that their claim is similar to religious display and prayer cases where courts have found (or at least apparently assumed) standing. See, e.g., McCreary County v. ACLU, 545 U.S. 844, 851-52, 125 S.Ct. 2722, 162 L.Ed.2d 729 (2005) (Ten Commandments displays that were “readily visible” to citizens conducting civic business) (internal quotation marks omitted); Van Orden v. Perry, 545 U.S. 677, 681-82, 125 S.Ct. 2854, 162 L.Ed.2d 607 (2005) (Ten Commandments display on the grounds" }, { "docid": "17702240", "title": "", "text": "happier. But although a suitor may derive great comfort and joy” from knowing that the Government is following constitutional imperatives, “that psychic satisfaction is not an acceptable Article III remedy because it does not redress a cognizable Article III injury.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 107, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). “Recognition of standing in such circumstances would transform the federal courts into no more than a vehicle for the vindication of the value interests of concerned bystanders.” Allen, 468 U.S. at 756, 104 S.Ct. 3315 (internal quotation marks omitted). Plaintiffs respond that their claim is similar to religious display and prayer cases where courts have found (or at least apparently assumed) standing. See, e.g., McCreary County v. ACLU, 545 U.S. 844, 851-52, 125 S.Ct. 2722, 162 L.Ed.2d 729 (2005) (Ten Commandments displays that were “readily visible” to citizens conducting civic business) (internal quotation marks omitted); Van Orden v. Perry, 545 U.S. 677, 681-82, 125 S.Ct. 2854, 162 L.Ed.2d 607 (2005) (Ten Commandments display on the grounds of the Texas State Capitol that petitioner frequently encountered); County of Allegheny v. ACLU, 492 U.S. 573, 578, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989) (creche display in county courthouse and menorah display outside city-county building); Suhre v. Haywood County, 131 F.3d 1083, 1086 (4th Cir.1997) (Ten Commandments display in county courtroom; noting that display cases are “particularized subclass of Establishment Clause standing jurisprudence”); see also Lee v. Weisman, 505 U.S. 577, 580, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992) (governmental prayer at school graduation); Marsh v. Chambers, 463 U.S. 783, 784-85, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983) (daily prayer at opening of state legislature); Sch. Dist. of Abington Township v. Schempp, 374 U.S. 203, 205-12, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963) (daily Bible reading in class); Engel v. Vitale, 370 U.S. 421, 422-23, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962) (official state prayer in class). These Supreme Court cases do not all directly discuss the standing issue. It is a well-established rule that “cases in which jurisdiction is assumed sub silentio are" }, { "docid": "17702245", "title": "", "text": "the religious display and prayer cases. To be sure, we recognize that plaintiffs’ creative analogy to the religious display and prayer cases has some surface logic. But the implications of plaintiffs’ theory for standing doctrine are quite radical: Plaintiffs seek to use the religious display and prayer cases to wedge open the courthouse doors to a wide range of plaintiffs alleging Establishment Clause violations who were previously barred by bedrock standing requirements — requirements that are essential to preserving the separation of powers and limited judicial role mandated by the Constitution. We decline the invitation to transform Establishment Clause standing doctrine in this way. What the Supreme Court said last year in Hein applies just as well to plaintiffs’ reliance on the religious display and prayer cases here: “It is a necessary concomitant of the doctrine of stare decisis that a precedent is not always expanded to the limit of its logic.” Hein, 127 S.Ct. at 2571. We affirm the judgment of the District Court. So ordered. . Plaintiffs also include certain organizations of non-liturgical Protestant chaplains. Because the organizations have standing in these circumstances only if one of their individual members has standing, we do not address them separately. See Hunt v. Washington State Apple Adver. Comm'n, 432 U.S. 333, 342-43, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977). . In referring to Hein throughout our opinion, we are referring specifically to Justice Alito’s opinion, which is the binding opinion of the Court in that case. See Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977). . The Flast exception may be further limited to Congress's disbursement of federal funds outside the Government. In both Flast and Bowen v. Kendrick, the only two Supreme Court cases upholding taxpayer standing, the statutes authorized disbursement of federal funds to outside entities, including religious organizations. But we need not address that question in this case given that plaintiffs’ argument for taxpayer standing fails at a more basic level. . See generally Doe v. Tangipahoa Parish Sch. Bd., 494 F.3d 494, 499-502 (5th Cir.2007) (DeMoss, J., concurring); Ira" } ]

[ { "docid": "22784435", "title": "", "text": "Justice Ginsburg delivered the opinion of the Court. This case concerns the authority of federal district courts to assist in the production of evidence for use in a foreign or international tribunal. In the matter before us, respondent Advanced Micro Devices, Inc. (AMD), filed an antitrust complaint against petitioner Intel Corporation (Intel) with the Directorate-General for Competition (DG-Competition) of the Commission of the European Communities (European Commission or Commission). In pursuit of that complaint, AMD applied to the United States District Court for the Northern District of California, invoking 28 U. S. C. § 1782(a), for an order requiring Intel to produce potentially relevant documents. Section 1782(a) provides that a federal district court “may order” a person “residing]” or “found” in the district to give testimony or produce documents “for use in a proceeding in a foreign or international tribunal... upon the application of any interested person.” Concluding that § 1782(a) did not authorize the requested discovery, the District Court denied AMD’s application.. The Court of Appeals for the Ninth Circuit reversed that determination and remanded the case, instructing the District Court to rule on the merits of AMD’s application. In accord with the Court of Appeals, we hold that the District Court had authority finder § 1782(a) to entertain AMD’s discovery request. The statute, we rule, does not categorically bar the assistance AMD seeks: (1) A complainant before the European Commission, such as AMD, qualifies as an “interested person” within §1782(a)’s compass; (2) the Commission is a § 1782(a) “tribunal” when it acts as a first-instance decisionmaker; (3) the “proceeding” for which discovery is sought under § 1782(a) must be in reasonable contemplation, but need not be “pending” or “imminent”; and (4) § 1782(a) contains no threshold requirement that evidence sought from a federal district court would be discoverable under the law governing the foreign proceeding. We caution, however, that § 1782(a) authorizes, but does not require, a federal district court to provide judicial assistance to foreign or international tribunals or to “interested person[s]” in proceedings abroad. Whether such assistance is appropriate in this case is a question yet" } ]

[ { "docid": "5046945", "title": "", "text": "by a foreign or international tribunal or an “interested person.” Here, Petitioner has met the first and third statutory requirements. Respondent does not argue otherwise. Petitioner has also met the second statutory requirement — that the evidence be “for use” in a “foreign tribunal or proceeding” — for two reasons. First, Respondent’s argument that the UNCI-TRAL Arbitration is not a “foreign tribunal” because it is established by a private body and only governed by international rules is a view that has been eschewed by the majority of courts, including those in this district. Rather, international arbitral bodies operating under UNCITRAL rules constitute “foreign tribunals” for purposes of § 1782. Second, the evidence can still be “for use” in the Lago Agrio court, which is clearly a “foreign tribunal,” because the Lago Agrio court has yet to issue an order closing the case to the submission of new evidence. There is, therefore, authorization to conduct discovery “for use” in both the Lago Agrio Litigation and the UNCITRAL Arbitration. b. The Four Intel Factors Even if this court is authorized to grant discovery under § 1782, it is not required to do so. The Court in Intel provided four discretionary factors for district courts to consider in ruling on a § 1782(a) request: (1) whether “the person from whom discovery is sought is a participant in the foreign proceeding”; (2) the receptivity of the foreign tribunal to U.S. court assistance; (3) whether the § 1782 application is an attempt to “circumvent foreign proof-gathering restrictions”; and (4) whether the documents and testimony sought are “unduly intrusive or burdensome.” The discretionary Intel factors, considered together, weigh in favor of granting Petitioner’s discovery request. The first Intel factor — whether “the person from whom discovery is sought is a participant in the foreign proceeding” — weighs heavily in favor of granting discovery and is not in dispute. The Amherst-based Respondent resides outside the jurisdiction of both the Lago Agrio court and the UNCITRAL Arbitration panel. Both tribunals, therefore, cannot order the discovery that Petitioner seeks in this § 1782 action, and the first factor weighs" }, { "docid": "7379706", "title": "", "text": "proceedings before non-governmental tribunals such as private arbitral panels, we would need to decide whether 9 U.S.C. § 7 is exclusive, in which case the two statutes would conflict. Because we conclude instead that § 1782 does not apply to proceedings before private arbitral panels, we need not reach this issue. B. Subsection 1782(a), which contains the disputed term, reads in relevant part as follows: The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal, including criminal investigations conducted before formal accusation. The order may be made pursuant to a letter rogatory issued, or request made, by a foreign or international tribunal or upon the application of any interested person and may direct that the testimony or statement be given, or the document or other thing be produced, before a person appointed by the court. 28 U.S.C. § 1782(a). Our inquiry begins with the language of the statute itself, and particularly the phrase “foreign or international tribunal,” which is not otherwise defined in the statute. Because the term “foreign or international tribunal” is undefined, it is to be given its ordinary or natural meaning. See FDIC v. Meyer, 510 U.S. 471, 476, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994). In support of its position, NBC cites numerous references to private arbitration panels as “tribunals” or “arbitral tribunals” in court cases, international treaties, congressional statements, academic writings, and even the Commentaries of Blackstone and Story. This authority amply demonstrates that the term “foreign or international tribunals” does not unambiguously exclude private arbitration panels. On the other hand, the fact that the term “foreign or international tribunals” is broad enough to include both state-sponsored and private tribunals fails to mandate a conclusion that the term, as used in § 1782, does include both. See Robinson v. Shell Oil Co., 519 U.S. 337, 117 S.Ct. 843, 846-48, 136 L.Ed.2d 808 (1997) (although term “employees” was broad enough to include former employees" }, { "docid": "13100356", "title": "", "text": "if Mees had first tried and failed to obtain the discovery in the Dutch courts. We have rejected such a “quasi-exhaustion” requirement, reasoning that it “finds no support in the plain language of the statute and runs counter to its express purposes.” Metallgesellschaft, 121 F.3d at 79. Relatedly, the district court should not condition discovery on an overt expression from the foreign. court that it wants or needs the information. The text of the statute authorizes the district court to order discovery not only upon “request ... by a foreign tribunal” but also “upon the application of any interested person,” which Mees indisputably is. And determining whether a foreign tribunal has a practice of notifying the parties or a foreign court that additional information is needed — rather than simply dismissing the claim — would require the sort of inquiry into foreign procedure that is best minimized for § 1782 applications. See Eu-romepa, 51 F.3d at 1099-1100. CONCLUSION For the foregoing reasons, we VACATE the order of the district court and REMAND for reconsideration in light of our conclusion that the application satisfies the “for use” requirement of § 1782. . Section 1782(a) reads, in part: The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal, including criminal investigations conducted before formal accusation. The order may be made pursuant to a letter rogatory issued, or request made, by a foreign or international tribunal or upon the application of any interested person.... To the extent that the order does not prescribe otherwise, the testimony or statement shall be taken, and the document or other thing produced, in accordance with the Federal Rules of Civil Procedure. 28 U.S.C. § 1782(a). . At oral argument, the parties informed the Court that Mees has fulfilled these conditions and that the charges have been dismissed. . Buiter is a native of the Netherlands but resides in New York and holds dual citizenship in" }, { "docid": "5046944", "title": "", "text": "Ecuador pursuant to the BIT (“UNCITRAL Arbitration”). Petitioners sought to demonstrate the corruption and improper collusion between GRE and the plaintiffs in the Lago Agrio Litigation. This arbitration between Petitioner and the GRE works under the United Nations Commission on International Trade Law (“UNCITRAL”) rules and procedures. III. Discussion Petitioner seeks to depose and obtain discovery from Respondent under § 1782 for use in both the Lago Agrio Litigation and the UNCITRAL Arbitration. a. Section 1782 Section 1782 authorizes the “district court of the district in which a person resides or is found” to give his testimony or statement or “to produce a document or other thing for use in a proceeding in a foreign or international tribunal. To obtain discovery under § 1782, a petitioner must first meet three statutory requirements: (1) the order must be issued by “[t]he district court ... of the district in which [respondent] resides or is found”; (2) the discovery must be “for use in a proceeding in a foreign or international tribunal”; and (3) the application is made by a foreign or international tribunal or an “interested person.” Here, Petitioner has met the first and third statutory requirements. Respondent does not argue otherwise. Petitioner has also met the second statutory requirement — that the evidence be “for use” in a “foreign tribunal or proceeding” — for two reasons. First, Respondent’s argument that the UNCI-TRAL Arbitration is not a “foreign tribunal” because it is established by a private body and only governed by international rules is a view that has been eschewed by the majority of courts, including those in this district. Rather, international arbitral bodies operating under UNCITRAL rules constitute “foreign tribunals” for purposes of § 1782. Second, the evidence can still be “for use” in the Lago Agrio court, which is clearly a “foreign tribunal,” because the Lago Agrio court has yet to issue an order closing the case to the submission of new evidence. There is, therefore, authorization to conduct discovery “for use” in both the Lago Agrio Litigation and the UNCITRAL Arbitration. b. The Four Intel Factors Even if this" }, { "docid": "7688250", "title": "", "text": "effectively criminal activities.” Letter of Transmittal from Ronald Reagan, President of the United States, to the United States Senate, February 22, 1988, S. Exec. Rep. 100-14, 100th Cong., 2d Sess. (July 1985). Traditionally, evidence sought by a foreign government had to be obtained through a process whereby a written request known as a “letter rogatory” was sent from the court of one country to the court of another asking the receiving court to provide the assistance. A federal statute authorizes federal district courts in this country to entertain such requests and provides that “[t]he district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal, including criminal investigations conducted before formal accusation.” 28 U.S.C. § 1782. Not only can a foreign tribunal bring a request in the form of a “letter rogatory,” but section 1782 has been amended to also allow similar requests for assistance to be brought by “interested persons” including foreign governments in foreign investigations or proceedings and private litigants of a foreign proceeding. See id. (“The order may be made pursuant to a letter rogatory issued, or request made, by a foreign or international tribunal or upon the application of any interested person.”). Requests for assistance initiated directly by an interested person rather than a foreign court are often referred to as “letters of request.” Despite the apparent versatility of 28 U.S.C. § 1782, law enforcement authorities found the statute to be an unattractive option in practice because it provided wide discretion in the district court to refuse the request and did not obligate other nations to return the favor that it grants. MLATs, on the other hand, have the desired quality of compulsion as they contractually obligate the two countries to provide to each other evidence and other forms of assistance needed in criminal cases while streamlining and enhancing the effectiveness of the process for obtaining needed evidence. This MLAT between the United States and Canada" }, { "docid": "8579390", "title": "", "text": "evidence to the Commission in its defense. Respondents oppose Microsoft’s discovery request under § 1782 and recent case law interpreting the statute. 28 U.S.C. § 1782 provides, in relevant part: The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal ... The order may be made pursuant to a letter rogatory issued, or request made, by a foreign or international tribunal or upon the application of any interested person .... -To the extent that the order does not prescribe otherwise, the testimony or statement shall be taken, and the document or other thing produced, in accordance with the Federal Rules of Civil Procedure ... A person may not be compelled to give his testimony or statement or to produce a document or other thing in violation of any legally applicable privilege. 28 U.S.C. § 1782(a). Pursuant to § 1782, a district court is authorized to assist a foreign or international tribunal or a litigant before such a tribunal by ordering discovery where (1) the person from whom discovery is sought resides or is found in the district; (2) the discovery is for use in a proceeding before a foreign tribunal; and (3) the application is made by a foreign or international tribunal or “any interested person.” Schmitz v. Bernstein, Liebhard & Lifshitz, LLP, 376 F.3d 79, 83 (2d Cir.2004) (quoting In re Esses, 101 F.3d 873, 875 (2d Cir.1996) (per curium)). However, a district court is not required to grant a § 1782 discovery application simply because it has the authority to do so. Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 264, 124 S.Ct. 2466, 159 L.Ed.2d 355 (2004). “Once the statutory requirements are met, a district court is free to grant discovery in its discretion.” Id. (quoting In re Metallgesellschaft AG, 121 F.3d 77, 78 (2d Cir.1997). The Supreme Court recently identified the following four factors to assist district courts in determining whether to" }, { "docid": "13347850", "title": "", "text": "court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal, including criminal investigations conducted before formal accusation. The order may be made pursuant to a letter rogatory issued, or request made, by a foreign or international tribunal or upon the application of any interested person and may direct that the testimony or statement be given, or the document or other thing be produced, before a person appointed by the court. By virtue of his appointment, the person appointed has power to administer any necessary oath and take the testimony or statement. The order may prescribe the practice and procedure, which may be in whole or part the practice and procedure of the foreign country or the international tribunal, for taking the testimony or statement or producing the document or other thing. To the extent that the order does not prescribe otherwise, the testimony or statement shall be taken, and the document or other thing produced, in accordance with the Federal Rules of Civil Procedure. A person may not be compelled to give his testimony or statement or to produce a document or other thing in violation of any legally applicable privilege. 28 U.S.C. § 1782(a). To invoke § 1782 and obtain federal-court assistance, the requesting entity presents a written request known as a “letter rogatory” (or, if presented by an “interested person,” known as a “letter of request”) to the applicable federal district court. See generally In re Comm’r’s Subpoenas, 325 F.3d 1287, 1290 (11th Cir. 2003), abrogation in other part recognized by In re Clerici, 481 F.3d 1324, 1333 n. 12 (11th Cir.2007). As it works today, both foreign governments and private parties, including corporations and natural persons, can make requests for use in both underlying civil lawsuits and underlying criminal prosecutions. See, e.g., Intel, 542 U.S. at 246, 124 S.Ct. 2466 (request by private corporation for use in underlying civil lawsuit); In re Letter of Request from Crown" }, { "docid": "4837645", "title": "", "text": "likely to be directly relevant” to the Lago Agrio Litigation, the Arbitration, and the criminal proceedings against Pallares and Vega. Discussion I. Judicial Code Section 1782 Section 1782 of the Judicial Code provides in pertinent part: “The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal, including criminal investigations conducted before formal accusation. The order may be made pursuant to a ... request made by a foreign or international tribunal or upon the application of any interested person.... A person may not be compelled to give his testimony or statement or to produce a document or other thing in violation of any legally applicable privilege.” A district court is authorized to grant a Section 1782 application where (1) the person from whom discovery is sought resides or is found in the district of the district court to which the application is made, (2) the discovery is for use in a proceeding before a foreign tribunal, and (3) the application is made by a foreign or international tribunal or “any interested person.” A district court, however, is not required to grant a Section 1782 application simply because it has the authority to do so. “Once the statutory requirements are met, a district court is free to grant discovery in its discretion.” The Supreme Court has identified four factors to guide the Court’s determination whether to grant a Section 1782 application: (1) whether the material sought is within the foreign tribunal’s jurisdictional reach and thus accessible absent Section 1782 aid; (2) the nature of the foreign tribunal, the character of the proceedings underway abroad, and the receptivity of the foreign government or the court or agency abroad to U.S. federal-court jurisdictional assistance; (3) whether the Section 1782 request conceals an attempt to circumvent foreign proof-gathering restrictions or other policies of a foreign country or the United States; and (4) whether the subpoena contains unduly intrusive or burdensome requests. In addition," }, { "docid": "15910826", "title": "", "text": "Fayed moved to compel compliance and the CIA moved to quash. The district court denied Al Fayed’s motion and granted the CIA’s. Interpreting the use of “person” in § 1782 (as used to define those subject to discovery, not those seeking discovery) to exclude the sovereign, it held that it lacked jurisdiction to issue the subpoena. In re Al Fayed, 91 F.Supp.2d 137, 140-41 (D.D.C.2000). Al Fayed appealed. Because he has not shown any affirmative reason to overcome the presumption that “person” does not include the government, we affirm. Section 1782 provides a mechanism for international or foreign tribunals, or persons interested in proceedings before such tribunals, to enlist the federal courts to acquire testimony, documents, or other items: (a) The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal, including criminal investigations conducted before formal accusation. The order may be made pursuant to a letter rogatory,is-sued, or request made, by a foreign or international tribunal or upon the application of any interested person and may direct that the testimony or statement be given, or the document or other thing be produced, before a person appointed by the court.... To the extent that the order does not prescribe otherwise, the testimony or statement shall be taken, and the document or other thing produced, in accordance with the Federal Rules of Civil Procedure. A person may not be compelled to give his testimony or statement or to produce a document or other thing in violation of any legally applicable privilege. (b) This chapter does not preclude a person within the United States from voluntarily giving his testimony or statement, or producing a document or other thing, for use in a proceeding in a foreign or international tribunal before any person and in any manner acceptable to him. 28 U.S.C. § 1782 (emphasis added). No court has yet resolved whether the “person[s]” subject to subpoena in § 1782 include the" }, { "docid": "19926627", "title": "", "text": "According to Clerici, the Florida state court scheduled a hearing on the matter, but NoName cancelled it, and the hearing has not been rescheduled. . The only significant difference is that the Panamanian Court amended the questions in order to reflect that October 10, 2002, was the date of the claimed obligation and the date from which Clerici could be questioned about his financial dealings. . Section 1782(a) provides: [t]he district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal, including criminal investigations conducted before formal accusation. The order may be made pursuant to a letter rogatory issued, or request made, by a foreign or international tribunal or upon the application of any interested person and may direct that the testimony or statement be given, or the document or other thing be produced, before a person appointed by the court. By virtue of his appointment, the person appointed has power to administer any necessary oath and take the testimony or statement. The order may prescribe the practice and procedure, which may be in whole or part the practice and procedure of the foreign country or the international tribunal, for taking the testimony or statement or producing the document or other thing. To the extent that the order does not prescribe otherwise, the testimony or statement shall be taken, and the document or other thing produced, in accordance with the Federal Rules of Civil Procedure. 28 U.S.C. § 1782(a). As noted earlier, see supra note 2, NoName did initiate a domestication action in Florida but then abandoned that action. The fact that NoName has attempted another means of obtaining evidence from Clerici does not preclude the subsequent request for assistance under § 1782. . It is not clear whether the Panamanian Court’s letter rogatory complied with the terms of the Convention. Nevertheless, we need not reach that question because we conclude that the district court properly treated the government's application" }, { "docid": "7379705", "title": "", "text": "only upon the “district court for the district in which such arbitrators, or a majority of them, are sitting.” Third, the express language of § 7 refers only to testimony before the arbitrators and to material physical evi dence, such as books and documents, brought before them by a witness; open questions remain as to whether § 7 may be invoked as authority for compelling pre-hearing depositions and pre-hearing document discovery, especially where such evidence is sought from non-parties. Compare Integrity Ins. Co. v. American Centennial Ins. Co., 885 F.Supp. 69, 72-73 (S.D.N.Y.1995) (arbitrator may not rely on § 7 to obtain pre-hearing depositions from non-parties), with Stanton v. Paine Webber Jackson & Curtis, Inc., 685 F.Supp. 1241, 1242-43 (S.D.Fla.1988) (§ 7 permits pre-hearing document production from non-parties), and Meadows Indem. Co. v. Nutmeg Ins. Co., 157 F.R.D. 42, 45 (M.D.Tenn.1994) (§ 7 power to compel document production from third parties at hearing encompasses lesser power to compel production prior to hearing). If the broader evidence-gathering mechanisms provided for in § 1782 were applicable to proceedings before non-governmental tribunals such as private arbitral panels, we would need to decide whether 9 U.S.C. § 7 is exclusive, in which case the two statutes would conflict. Because we conclude instead that § 1782 does not apply to proceedings before private arbitral panels, we need not reach this issue. B. Subsection 1782(a), which contains the disputed term, reads in relevant part as follows: The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal, including criminal investigations conducted before formal accusation. The order may be made pursuant to a letter rogatory issued, or request made, by a foreign or international tribunal or upon the application of any interested person and may direct that the testimony or statement be given, or the document or other thing be produced, before a person appointed by the court. 28 U.S.C. § 1782(a). Our inquiry begins with" }, { "docid": "15613938", "title": "", "text": "DANIEL HOLCOMBE THOMAS, Senior District Judge: This case involves an appeal from the district court’s discovery order of May 19, 1987, wherein the district court authorized the issuance of subpoenas duces tecum to residents of the United States who are non-party witnesses in an action pending in Hong Kong. The district court’s order was issued pursuant to 28 U.S.C. § 1782(a) which provides: The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal. The order may be made pursuant to a letter rogatory .issued, or request made, by a foreign or international tribunal or upon the application of 'any interested person and may direct that the testimony or statement be given, or document or other thing produced, before a person appointed by the court ... A person may not be compelled to give his testimony or statement or to produce a document or other thing in violation of any legally applicable privilege. The history of Section 1782 reveals Congress’ wish to strengthen the power of district courts to respond to requests for international assistance. In re Letters Rogatory from the Tokyo District, Tokyo, Japan, 539 F.2d 1216, 1218 (9th Cir.1976). With its action, Congress also attempted to stimulate reciprocity. John Deere Ltd. v. Sperry Corp., 754 F.2d 132, 135 (3rd Cir.1985). However, Congress gave the district court the discretion to decide whether to honor the requests for assistance. Letters Rogatory from Tokyo, Japan, 539 F.2d at 1219. As Congress has given the district courts such broad discretion in granting judicial assistance to foreign countries, this court may overturn the district court’s decision only for abuse of discretion. In re Request for Judicial Assistance from the Seoul District Criminal Court, Seoul, Korea, 555 F.2d 720, 724 (9th Cir.1977). Appellant herein charges that the district court abused its discretion in issuing the discovery order in that the discovery contemplated would “neither be permissible nor admissible or usable” under Hong Kong" }, { "docid": "4837644", "title": "", "text": "another scene, a representative of the plaintiffs informs Donziger that he had left the office of President Correa “after coordinating everything.” Donziger declares, “Congratulations. We’ve achieved something very important in this case.... Now we are friends with the President.” The film then offers a glimpse of a meeting between President Correa and plaintiffs’ counsel that takes place on a helicopter. Later on, President Correa embraces Donziger and says, “Wonderful, keep it up!” Donziger explains also that President Correa had called for criminal prosecutions to proceed against those who engineered the Settlement and Final Release. “Correa just said that anyone in the Ecuador government who approved the so-called remediation is now going to be subject to litigation in Ecuador. Those guys are shittin’ in their pants right now.” IV. The Applications Chevron and its attorneys, Pallares and Veiga, file these applications pursuant to 28 U.S.C. § 1782 to obtain “the production of all ‘Crude’ footage that was shot, acquired, or licensed in connection with the movie ‘Crude.’ ” They assert that the Crude outtakes are “highly likely to be directly relevant” to the Lago Agrio Litigation, the Arbitration, and the criminal proceedings against Pallares and Vega. Discussion I. Judicial Code Section 1782 Section 1782 of the Judicial Code provides in pertinent part: “The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal, including criminal investigations conducted before formal accusation. The order may be made pursuant to a ... request made by a foreign or international tribunal or upon the application of any interested person.... A person may not be compelled to give his testimony or statement or to produce a document or other thing in violation of any legally applicable privilege.” A district court is authorized to grant a Section 1782 application where (1) the person from whom discovery is sought resides or is found in the district of the district court to which the application is made, (2)" }, { "docid": "4936570", "title": "", "text": "factors pertinent to Section 1782 applications were not satisfied, (2) the subpoenas are over-broad and unduly burdensome, (8) discovery from opposing counsel is disfavored, and (4) the information sought is privileged. The Court here sets out more fully its reasons for having denied the motions. I. Judicial Code Section 1782 Section 1782 of the Judicial Code provides in pertinent part: “The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal, including criminal investigations conducted before formal accusation. The order may be made pursuant to a ... request made by a foreign or international tribunal or upon the application of any interested person.... A person may not be compelled to give his testimony or statement or to produce a document or other thing in violation of any legally applicable privilege.” As stated in Chevron I, a district court is authorized to grant a Section 1782 application where (1) the person from whom discovery is sought resides or is found in the district of the district court to which the application is made, (2) the discovery is for use in a proceeding before a foreign tribunal, and (3) the application is made by a foreign or international tribunal or “any interested person.” A district court, however, is not required to grant a Section 1782 application simply because it has the authority to do so. “Once the statutory requirements are met, a district court is free to grant discovery in its discretion.” The Supreme Court has identified four discretionary factors to guide the Court’s determination whether to grant a Section 1782 application: (1) whether the material sought is within the foreign tribunal’s jurisdictional reach and thus accessible absent Section 1782 aid; (2) the nature of the foreign tribunal, the character of the proceedings underway abroad, and the receptivity of the foreign government or the court or agency abroad to U.S. federal-court jurisdictional assistance; (3) whether the Section 1782 request conceals an" }, { "docid": "20825839", "title": "", "text": "Ecuadorian law, pursue a private criminal action against its former employees. Since a party must present its evidence up front along with the pleadings, CONECEL seeks the discovery specified in section 1782 before commencing suit in Ecuador. Not surprisingly, JASE tells a wholly different story. It claims that in 2008 CONECEL failed to pay several invoices. Pursuant to the contractual agreements between the parties, JASE has pursued arbitration in Ecuador before the Center for Arbitration and Conciliation of the Guayaquil Chamber of Commerce. CO-NECEL’s primary defense in the pending arbitration proceeding is that the invoices do not correspond to the parties’ agreed-upon price. II. On July 14, 2010, CONECEL filed an ex parte application for judicial assistance in the Southern District of Florida in order to obtain evidence pursuant to 28 U.S.C. § 1782. Section 1782 provides in relevant part: The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal, including criminal investigations conducted before formal accusation. The order may be made pursuant to a letter rogatory issued, or request made, by a foreign or international tribunal or upon the application of any interested person and may direct that the testimony or statement be given, or the document or other thing be produced, before a person appointed by the court.... To the extent that the order does not prescribe otherwise, the testimony or statement shall be taken, and the document or other thing pro duced, in accordance with the Federal Rules of Civil Procedure. 28 U.S.C. § 1782(a). CONECEL’s detailed application, accompanied by two declarations and a memorandum of law, sought evidence from JAS USA relating primarily to the invoicing and calculation of rates charged to CONE-CEL. The application was also accompanied by a sample air waybill purporting to show that JAS USA’s Miami office was involved in the provision and invoicing of transport services to CONECEL. On July 20, 2010, the district court granted the ex parte" }, { "docid": "4632789", "title": "", "text": "MEMORANDUM OPINION ROSEMARY M. COLLYER, District Judge. In an application for discovery pursuant to 28 U.S.C. § 1782, the petitioner, Emmanuel N. Lazaridis, seeks six categories of documents—some spanning eight years—from the International Centre for Missing and Exploited Children (“IC-MEC”) and the National Center for Missing and Exploited Children (“NCMEC”). See Ex Parte Application for Discovery Pursuant to 28 U.S.C. § 1782 (“App.”) [Dkt. # 1] at 38-39. The Respondents, ICMEC and NCMEC, assert that Mr. Lazaridis has not satisfied the statutory requirements for discovery assistance but, if the Court finds otherwise, that the application should be denied. See generally Mem. in Opp’n to App. for Discovery Under 28 U.S.C. § 1782 (“Opp’n”) [Dkt. # 9], For the following reasons, the Court will deny Mr. Lazaridis’ application. I. BACKGROUND Mr. Lazaridis claims to be an interested party in a criminal prosecution against Ernie Allen and numerous other individuals pending before the Three-Member Magistrates Court of Athens, Greece (“TMMCA”), and in a “penal investigation” of those same individuals by the First Instance Prosecutor of the Hellenic Republic (“FIP”) and the Electronic Crimes Unit of the Hellenic Police' (“ECU”). App. at 2. He seeks “to assist” the TMMCA and the two Greek investigative authorities by obtaining records from ICMEC and NCMEC “concerning cases of children who are or have been falsely advertised as though they were missing.” Id. at 3. Mr. Lazaridis alleges that he is “the complainant before the FIP and the ECU and a civil party to [the] criminal proceedings” before the TMMCA. Id. at 6, ¶ 4. He claims that the “penal proceedings [were] scheduled for December 2010,” id. at 1, and that “[t]he FIP and ECU investigations into the Defendants’ punishable acts or omissions dating from January 1, 2002 to the present are ongoing.” Id. at 3. II. ANALYSIS Section 1782 authorizes the district court, in its discretion, to “order [a person within its reach] to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal, including criminal investigations conducted before formal accusation.” 28" }, { "docid": "20825840", "title": "", "text": "proceeding in a foreign or international tribunal, including criminal investigations conducted before formal accusation. The order may be made pursuant to a letter rogatory issued, or request made, by a foreign or international tribunal or upon the application of any interested person and may direct that the testimony or statement be given, or the document or other thing be produced, before a person appointed by the court.... To the extent that the order does not prescribe otherwise, the testimony or statement shall be taken, and the document or other thing pro duced, in accordance with the Federal Rules of Civil Procedure. 28 U.S.C. § 1782(a). CONECEL’s detailed application, accompanied by two declarations and a memorandum of law, sought evidence from JAS USA relating primarily to the invoicing and calculation of rates charged to CONE-CEL. The application was also accompanied by a sample air waybill purporting to show that JAS USA’s Miami office was involved in the provision and invoicing of transport services to CONECEL. On July 20, 2010, the district court granted the ex parte application and authorized CONECEL to issue and serve a subpoena on JAS USA seeking the discovery outlined in CONECEL’s application. JASE moved to intervene to vacate the order granting the application. After full briefing, the district court permitted the intervention but denied the motion to vacate. The district court began its analysis by addressing the “primary disputed issue” of “whether the subpoenaed documents will be used in a proceeding [in] a foreign or international tribunal.” The court observed that, as interpreted by the Supreme Court, section 1782 does not require that the foreign proceeding be pending or imminent, but rather only that the proceeding “be within reasonable contemplation.” Intel, 542 U.S. at 259, 124 S.Ct. 2466. The district court determined that CONECEL had “established that the civil and criminal actions are within reasonable contemplation.” Having concluded that CONECEL’s civil and criminal suits against its two former employees were within reasonable contemplation, the district court did not have to reach the question of whether the pending arbitration between JASE and CONECEL was a proceeding in a" }, { "docid": "16904411", "title": "", "text": "order and to quash subpoena issued pursuant to 28 U.S.C. § 1782 constitutes final, appeal-able decision). We affirm, holding that section 1782 does not require the district court to make a finding of discoverability under the laws of the foreign jurisdiction. In addition, we hold that the district court’s exercise of discretion was properly guided by the purposes of the statute. I. History and Purposes of 28 U.S.C. § 1782 An understanding of the history and purposes of 28 U.S.C. § 1782 is an important first step in our inquiry. Section 1782, entitled “Assistance to foreign and international tribunals and to litigants before such tribunals,” provides in pertinent part: The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal. The order may be made pursuant to a letter rogatory issued, or request made, by a foreign or international tribunal or upon the application of any interested person.... The order may prescribe the practice and procedure, which may be in whole or part the practice and procedure of the foreign country or the international tribunal, for taking the testimony or statement or producing the document or other thing. 28 U.S.C. § 1782(a). Federal law has provided for some form of judicial assistance to foreign courts since 1855. See Act of March 2, 1855, ch. 140, § 2, 10 Stat. 630 (allowing United States courts to compel testimony in response to letters roga-tory from any court of a foreign country). However, early statutes granting judicial assistance were quite narrow in scope; for example, the statutes in effect from 1863 to 1948 required the foreign government receiving assistance to be a party or have an interest in the suit, and the suit had to be for the recovery of money or property. See In re Letter Rogatory from, the Justice Court, Montreal, Canada, 523 F.2d 562, 564-65 (6th Cir.1975) (reviewing the history of predecessor statutes to section 1782). The evolutionary process" }, { "docid": "13347849", "title": "", "text": "OPINION GRABER, Circuit Judge: The Russian government sought the aid of the United States government, pursuant to a bilateral treaty, in its criminal investigation and prosecution of Appellant Arkadi A. Gontmakher for illegal crabbing. The district court issued a subpoena for certain documents in the possession of Appellant Global Fishing, Inc. Appellants moved for a protective order that effectively would have quashed the subpoena, arguing that the Russian government’s investigation and prosecution of Gontmakher were corrupt and illegal. The district court denied the motion, and we affirm. FACTUAL AND PROCEDURAL HISTORY Congress long ago authorized parties to request legal assistance from the federal courts in the collection of evidence for use in a foreign proceeding. Originally enacted in the mid-19th century, the statute now codified at 28 U.S.C. § 1782 permits federal courts to provide such assistance. See, e.g., Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 247-49, 124 S.Ct. 2466, 159 L.Ed.2d 355 (2004) (discussing the history of the statute at some length). Section 1782, in its current form, states: The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal, including criminal investigations conducted before formal accusation. The order may be made pursuant to a letter rogatory issued, or request made, by a foreign or international tribunal or upon the application of any interested person and may direct that the testimony or statement be given, or the document or other thing be produced, before a person appointed by the court. By virtue of his appointment, the person appointed has power to administer any necessary oath and take the testimony or statement. The order may prescribe the practice and procedure, which may be in whole or part the practice and procedure of the foreign country or the international tribunal, for taking the testimony or statement or producing the document or other thing. To the extent that the order does not prescribe otherwise, the testimony or statement" }, { "docid": "15398568", "title": "", "text": "necessary for us to decide whether to defer to the opinion of the Deputy Legal Advisor of the State Department, expressed in a letter that is part of the record, that the Marcos’ are not entitled to head-of-state immunity. We affirm the district court’s holding that the Philippine government has waived the Marcos’ head-of-state immunity. III. The next question presented is whether 28 U.S.C. § 1782(a) forbids the government to take the Marcos’ grand jury-testimony in violation of the Philippine privilege against self-incrimination. The question arises because the United States and the Philippines have entered into an executive agreement providing for mutual cooperation with respect to criminal investigations ongoing in both countries. By its terms, however, each government is constrained by the “law, practice and procedure” of the United States. The Marcos’ contend that 28 U.S.C. § 1782(a) makes applicable to the United States the Philippine privilege against self-incrimination. Section 1782 regulates the taking of testimony in United States courts pursuant to formal requests, known as letters rogatory, from foreign governments. It states: § 1782. Assistance to foreign and international tribunals and to litigants before such tribunals. a) The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal. The order may be made pursuant to a letter rogatory issued, or request made, by a foreign or international tribunal or upon the application of any interested person____ A person may not be compelled to give his testimony or statement or to produce a document or other thing in violation of any legally applicable privilege. The section forbids the taking of testimony in violation of any privilege, including the Philippine privilege against self-incrimination. The Marcos’ argue that § 1782 applies here because the grand jury subpoenas were “made pursuant to a letter rogatory issued, or request made, by a foreign or international tribunal____” We disagree. The subpoenas were issued as part of a grand jury investigation that began before the" } ]

[ { "docid": "20363676", "title": "", "text": "by others, satisfying a long-felt need, and providing significant unexpected advantages. ABS and Allied-Signal counter that the district court did not err in finding the invention to have been obvious over Dunlop. They contend that Dunlop suggested the claimed invention to one skilled in the art. They further argue that the evidence of secondary considerations presented by BFG only served to reinforce the conclusion of obviousness. Obviousness under 35 U.S.C. § 103 is a legal conclusion involving four factual inquiries. Uniroyal, 837 F.2d at 1050, 5 USPQ2d at 1438. These inquiries consist of: “(1) the scope and content of the prior art; (2) the differences between the claims and the prior art; (3) the level of ordinary skill in the pertinent art; and (4) secondary considerations, if any, of nonobviousness.” Id. Secondary considerations include evidence of factors tending to show nonobviousness, such as commercial success of the invention, satisfying a long-felt need, failure of others to find a solution to the problem at hand, and copying of the invention by others. Id.; Panduit Corp. v. Dennison Mfg. Co., 810 F.2d 1561, 1566, 1 USPQ2d 1593, 1595 (Fed. Cir.), cert. denied, 481 U.S. 1052, 107 S.Ct. 2187, 95 L.Ed.2d 843 (1987). When obviousness is based on a particular prior art reference, there must be a showing of a suggestion or motivation to modify the teachings of that reference. E.g., ACS Hosp. Sys., Inc. v. Montefiore Hosp., 732 F.2d 1572, 1577, 221 USPQ 929, 933 (Fed.Cir.1984). This suggestion or motivation need not be expressly stated. Cable Elec. Prods., Inc. v. Genmark, Inc., 770 F.2d 1015, 1025, 226 USPQ 881, 886 (Fed.Cir.1985). The district court found that the invention was obvious over Dunlop. The level of ordinary skill in the art was not in dispute, nor was the scope of the prior art, which included the Dunlop paper, the steel brake art such as was described in U.S. Patent 3,480,115, and the Concorde manual. The difference between Dunlop and the claimed inventions is relatively minor. The district court found that the only real difference is that the claims are limited to an initial" } ]

[ { "docid": "15898996", "title": "", "text": "carried out and would have a reasonable likelihood of success, viewed in the light of the prior art.” In re Dow Chem., 837 F.2d 469, 473, 5 USPQ2d 1529, 1531 (Fed.Cir.1988). Two requirements are contained in this criterion. The first requirement is that a showing of a suggestion, teaching, or motivation to combine the prior art references is an “essential evidentiary component of an obviousness holding.” C.R. Bard, Inc. v. M3 Sys. Inc., 157 F.3d 1340, 1352, 48 USPQ2d 1225, 1232 (Fed.Cir.1998). This evidence may flow from the prior art references themselves, the knowledge of one of ordinary skill in the art, or, in some cases, from the nature of the problem to be solved. See Pro-Mold & Tool Co. v. Great Lakes Plastics, Inc., 75 F.3d 1568, 1573, 37 USPQ2d 1626, 1630 (Fed.Cir.1996). However, the suggestion more often comes from the teachings of the pertinent references. See In re Rouffet, 149 F.3d 1350, 1359, 47 USPQ2d 1453, 1459 (Fed.Cir.1998). This showing must be clear and particular, and broad conclusory statements about the teaching of multiple references, standing alone, are not “evidence.” See Dembiczak, 175 F.3d at 1000, 50 USPQ2d at 1617. However, the suggestion to combine need not be express and “may come from the prior art, as filtered through the knowledge of one skilled in the art.” Motorola, Inc. v. Interdigital Technology Corp., 121 F.3d 1461, 1472, 43 USPQ2d 1481, 1489 (Fed.Cir.1997). The second requirement is that the ultimate determination of obviousness “does not require absolute predictability of success.... [A]ll that is required is a reasonable expectation of success.” In re O’Farrell, 853 F.2d 894, 903-904, 7 USPQ2d 1673, 1681 (Fed.Cir.1988); see also In re Longi, 759 F.2d 887, 897, 225 USPQ 645, 651-52 (Fed.Cir.1985). 3. Factual Inquiries The district court made findings on all four of the Graham factors. The court described the prior art at length, described the level of ordinary skill in cigarette design at the time when Luke made his invention, explained the differences between the prior art and the claims at issue, and assessed various secondary indicators of nonobviousness. The district court found" }, { "docid": "15945592", "title": "", "text": "essence of hindsight.” Id. “When a rejection depends on a combination of prior art references, there must be some teaching, suggestion, or motivation to combine the references.” In re Rouffet, 149 F.3d 1350, 1355, 47 USPQ2d 1453, 1456 (Fed.Cir.1998) (citing In re Geiger, 815 F.2d 686, 688, 2 USPQ2d 1276, 1278 (Fed.Cir.1987)). The same principle applies to invalidation. “Obviousness cannot be established by combining the teachings of the prior art to produce the claimed invention, absent some teaching or suggestion supporting the combination.” ACS Hosp. Sys., Inc. v. Montefiore Hosp., 732 F.2d 1572, 1577, 221 USPQ 929, 933 (Fed.Cir.1984). Although the suggestion to combine references may flow from the nature of the problem, see Pro-Mold & Tool Co. v. Great Lakes Plastics, Inc., 75 F.3d 1568, 1573, 37 USPQ2d 1626, 1630 (Fed.Cir.1996), “[djefining the problem in terms of its solution reveals improper hindsight in the selection of the prior art relevant to obviousness,” Monarch Knitting Mach. Corp. v. Sulzer Morat Gmbh, 139 F.3d 877, 880, 45 USPQ2d 1977, 1981 (Fed.Cir.1998). Therefore, “[w]hen determining the patentability of a claimed invention which combines two known elements, ‘the question is whether there is something in the prior art as a whole to suggest the desirability, and thus the obviousness, of making the combination.’ ” In re Beattie, 974 F.2d 1309, 1311-12, 24 USPQ2d 1040, 1042 (Fed.Cir.1992) (quoting Lindemann, 730 F.2d at 1462, 221 USPQ at 488). In this case, the district court used the ’411 patent as a blueprint, with the Houghton process as the main structural diagram, and looked to other prior art for the elements present in the patent but missing from the Houghton process. The district court opinion does not discuss any specific evidence of motivation to combine, but only makes conclusory statements. “Broad conclusory statements regarding the teaching of multiple references, standing alone, are not ‘evidence.’ ” Dembiczak, 175 F.3d at 999, 50 USPQ2d at 1617. The district court provides no support for its broad conclusory statement that it was known in the art that a carbon bed, as used in the Houghton process, would produce water with high" }, { "docid": "22759663", "title": "", "text": "that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains.” 35 U.S.C. § 103(a) (1994); see Dembiczak, 175 F.3d at 998, 50 USPQ2d at 1616. “The ultimate determination ... whether an invention is or is not obvious is a legal conclusion based on underlying factual inquiries including: (1) the scope and content of the prior art; (2) the level of ordinary skill in the prior art; (3) the differences between the claimed invention and the prior art; and (4) objective evidence of nonobviousness.” Dembiczak, 175 F.3d at 998, 50 USPQ2d at 1616 (citing Graham, 383 U.S. at 17-18, 86 S.Ct. 684, 15 L.Ed.2d 545, 148 USPQ at 467). We have further indicated “that the best defense against the subtle but powerful attraction of a hindsight-based obviousness analysis is rigorous application of the requirement for a showing of the teaching or motivation to combine prior art references.” Id. at 999, 50 USPQ2d at 1617. That suggestion may come from, inter alia, the teachings of the references themselves and, in some cases, from the nature of the problem to be solved. See Pro-Mold & Tool Co. v. Great Lakes Plastics, Inc., 75 F.3d 1568, 1573, 37 USPQ2d 1626, 1630 (Fed.Cir.1996); Rouffet, 149 F.3d at 1355, 47 USPQ2d at 1456. We agree with the Commissioner that substantial evidence supports the Board’s factfinding and that the Board correctly concluded that the claims were unpatentable under § 103. As an initial matter, we agree with the Commissioner that substantial evidence supports the Board’s finding that Gartside’s ’645 and ’235 patents contain all the limitations set forth in claim 47. See Gartside, Paper No. 72 at 12-13. The Board found that all the limitations of claim 47 are found in the ’645 patent, except that the ’645 patent accomplishes cracking by a thermal rather than a catalytic mechanism. See Gartside, Paper No. 72 at 13. This finding is clearly supported by the following disclosure in the ’645 patent: [T]he reaction proceeds at 1500" }, { "docid": "22975648", "title": "", "text": "684, 15 L.Ed.2d 545, 148 USPQ 459, 467 (1966). Issued patents have a strong presumption of validity in infringement proceedings. See 35 U.S.C. § 282 (1994). Hence, an accused infringer who defends on grounds of patent invalidity bears the burden of showing patent invalidity by clear and convincing evidence. See Monarch Knitting Mach. v. Sulzer Moral Gmbh, 139 F.3d 877, 881, 45 USPQ2d 1977, 1981 (Fed.Cir.1998). In a challenge based on obviousness under 35 U.S.C. § 103, the person alleging invalidity must show prior art references which alone or combined with other references would have rendered the invention obvious to one of ordinary skill in the art at the time of invention. See Dennison Mfg. Co. v. Panduit Corp., 475 U.S. 809, 810, 106 S.Ct. 1578, 89 L.Ed.2d 817, 229 USPQ 478, 479 (1986); Rockwell Int’l Corp. v. United States, 147 F.3d 1358, 1364, 47 USPQ2d 1027, 1032 (Fed.Cir.1998). The “presumption of validity under 35 U.S.C. § 282 carries with it a presumption that the Examiner did his duty and knew what claims he was allowing.” Intervet Am., Inc. v. Kee—Vet Labs., Inc., 887 F.2d 1050, 1054, 12 USPQ2d 1474, 1477 (Fed.Cir.1989). Therefore, the challenger’s “burden is especially difficult when the prior art was before the PTO examiner during prosecution of the application.” Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1467, 15 USPQ2d 1525, 1527 (Fed.Cir.1990). The party seeking patent invalidity based on obviousness must also show some motivation or suggestion to combine the prior art teachings. See In re Rouffet, 149 F.3d 1350, 1355, 47 USPQ2d 1453, 1457 (Fed.Cir.1998); Motorola, 121 F.3d at 1472. A suggestion or motivation to combine generally arises in the references themselves, but may also be inferred from the nature of the problem or occasionally from the knowledge of those of ordinary skill in the art. See Rouffet, 149 F.3d at 1355. In this case, the United States Patent and Trademark Office (the PTO) considered nearly all the prior art that VSI asserts renders Magnivision’s patents obvious. The PTO considered the Seaver patent during its prosecution of the applications for each of" }, { "docid": "9641578", "title": "", "text": "can proceed to the question of obviousness accepting the district court’s construction of claim 1. A patent claim is invalid “if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art.” 35 U.S.C. § 103(a) (1994). While the ultimate conclusion of obviousness is for the court to decide as a matter of law, several factual inquiries underlie this determination. See Graham v. John Deere Co., 383 U.S. 1, 17-18, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966). These inquiries include the scope and content of the prior art, the level of ordinary skill in the field of the invention, the differences between the claimed invention and the prior art, and any objective evidence of non-obviousness such as long-felt need, and commercial success. See id. Because an issued patent is presumed valid, there must be clear and convincing evidence supporting the obviousness determination. See Kahn v. General Motors Corp., 135 F.3d 1472, 1480, 45 USPQ2d 1608, 1614 (Fed.Cir.1998). While the presentation at trial of a reference that was not before the examiner does not change the presumption of validity, the alleged infringer’s burden may be more easily carried because of this additional reference. See Applied Materials, Inc. v. Advanced Semiconductor Materials Am., Inc., 98 F.3d 1563, 1569, 40 USPQ2d 1481, 1485 (Fed.Cir.1996). On appeal, Cadus argues that the Stumpo reference alone, which was not before the PTO examiner, is sufficient to invalidate the patent under § 103, given the level of skill in the art at the time of the invention. In appropriate circumstances, a single prior art reference can render a claim obvious. See, e.g., B.F. Goodrich Co. v. Aircraft Braking Sys. Corp., 72 F.3d 1577, 1582, 37 USPQ2d 1314, 1318 (Fed.Cir.1996); In re O’Farrell, 853 F.2d 894, 902, 7 USPQ2d 1673, 1680 (Fed.Cir.1988). However, there must be a showing of a suggestion or motivation to modify the teachings of that reference to the claimed invention in order" }, { "docid": "21664426", "title": "", "text": "the role of the jury to find facts (with these findings binding on this court, as well as the trial court, so long as they are supported by at least substantial evidence) from the role of trial judges in reaching, or for us freely reviewing, the ultimate legal conclusion of obviousness, vel non. In this case, the verdict form tells us only that the jury found the claimed invention nonobvious in light of Pratt and/or Morgan, with no identification of the jury’s resolution of genuine disputes over material factual issues. We must therefore imply such factual findings, under the legal presumption that the jury found all facts necessary to support its verdict in favor of McGinley. Railroad Dynamics, 727 F.2d at 1516, 220 USPQ at 937 (“[Wjhen a jury returns a general verdict, the law presumes the existence of fact findings implied from the jury’s having reached that verdict.”). When faced with a general verdict of nonobviousness or obviousness, the categories of facts the court must imply concern the scope and content of prior art; what a prior art reference teaches; the differences between the claimed invention and the prior art; the level of ordinary skill in the prior art; and objective evidence of nonobviousness. Graham v. John Deere Co., 383 U.S. 1, 14, 86 S.Ct. 684, 15 L.Ed.2d 545, 148 USPQ 459, 467 (1966); Tec Air, Inc. v. Denso Mfg. Michigan Inc., 192 F.3d 1353, 1359, 52 USPQ2d 1294, 1298 (Fed.Cir.1999). In cases such as this where a single prior art reference is alleged to render the claimed invention obvious, there must be a sufficient showing of a suggestion or motivation for any modification of the teachings of that reference necessary to reach the claimed invention in order to support the obviousness conclusion. SIBIA Neuroscis., Inc. v. Cadus Pham. Corp., 225 F.3d 1349, 1356, 55 USPQ2d 1927, 1931 (Fed.Cir.2000); B.F. Goodrich Co. v. Aircraft Braking Sys. Corp., 72 F.3d 1577, 1582, 37 USPQ2d 1314, 1318 (Fed.Cir.1996). This suggestion or motivation may be derived from the prior art reference itself, from the knowledge of one of ordinary skill in the" }, { "docid": "22582389", "title": "", "text": "findings from being supported by substantial evidence. See id. Indeed, if a reasonable mind might accept the evidence as adequate to support the factual conclusions drawn by the Board, then we must uphold the Board’s determination. See id. B. Analysis A critical step in analyzing the patentability of claims pursuant to section 103(a) is casting the mind back to the time of invention, to consider the thinking of one of ordinary skill in the art, guided only by the prior art references and the then-accepted wisdom in the field. See Dembiczak, 175 F.3d at 999, 50 USPQ2d at 1617. Close adherence to this methodology is especially important in cases where the very ease with which the invention can be understood may prompt one “to fall victim to the insidious effect of a hindsight syndrome wherein that which only the invention taught is used against its teacher.” Id. (quoting W.L. Gore & Assocs., Inc. v. Garlock, Inc., 721 F.2d 1540, 1553, 220 USPQ 303, 313 (Fed.Cir.1983)). Most if not all inventions arise from a combination of old elements. See In re Rouffet, 149 F.3d 1350, 1357, 47 USPQ2d 1453, 1457 (Fed.Cir.1998). Thus, every element of a claimed invention may often be found in the prior art. See id. However, identification in the prior art of each individual part claimed is insufficient to defeat patentability of the whole claimed invention. See id. Rather, to establish obviousness based on a combination of the elements disclosed in the prior art, there must be some motivation, suggestion or teaching of the desirability of making the specific combination that was made by the applicant. See In re Dance, 160 F.3d 1339, 1343, 48 USPQ2d 1635, 1637 (Fed.Cir. =1998); In re Gordon, 733 F.2d 900, 902, 221 USPQ 1125, 1127 (Fed.Cir.1984). Even when obviousness is based on a single prior art reference, there must be a showing of a suggestion or motivation to modify the teachings of that reference. See B.F. Goodrich Co. v. Aircraft Braking Sys. Corp., 72 F.3d 1577, 1582, 37 USPQ2d 1314, 1318 (Fed.Cir.1996). The motivation, suggestion or teaching may come explicitly from statements" }, { "docid": "21664427", "title": "", "text": "what a prior art reference teaches; the differences between the claimed invention and the prior art; the level of ordinary skill in the prior art; and objective evidence of nonobviousness. Graham v. John Deere Co., 383 U.S. 1, 14, 86 S.Ct. 684, 15 L.Ed.2d 545, 148 USPQ 459, 467 (1966); Tec Air, Inc. v. Denso Mfg. Michigan Inc., 192 F.3d 1353, 1359, 52 USPQ2d 1294, 1298 (Fed.Cir.1999). In cases such as this where a single prior art reference is alleged to render the claimed invention obvious, there must be a sufficient showing of a suggestion or motivation for any modification of the teachings of that reference necessary to reach the claimed invention in order to support the obviousness conclusion. SIBIA Neuroscis., Inc. v. Cadus Pham. Corp., 225 F.3d 1349, 1356, 55 USPQ2d 1927, 1931 (Fed.Cir.2000); B.F. Goodrich Co. v. Aircraft Braking Sys. Corp., 72 F.3d 1577, 1582, 37 USPQ2d 1314, 1318 (Fed.Cir.1996). This suggestion or motivation may be derived from the prior art reference itself, from the knowledge of one of ordinary skill in the art, or from the nature of the problem to be solved. SIBIA, 225 F.3d at 1356, 55 USPQ2d at 1931. While the trial court must defer to the jury’s factual findings, actual or implied, the court nonetheless has the duty, when presented with a motion for JMOL following a general verdict on obviousness, to review the factual findings for substantial evidentiary support, and the ultimate conclusion on obviousness for legal correctness. Railroad Dynamics, 727 F.2d at 1513, 220 USPQ at 936 (“The moving party is entitled to JNOV when the court is convinced: (1) that reasonable persons could not in light of that evidence have found the facts necessary to support the jury’s verdict; or (2) that the facts properly found cannot in law support that verdict.”). In the present case, the trial court dutifully performed this analysis, citing our precedent, and concluded that no reasonable jury could find that Pratt did not render McGinley’s claimed baseball obvious. I agree. The only arguable difference between Pratt’s and McGinley’s claimed marked baseballs for student pitchers is" }, { "docid": "22986829", "title": "", "text": "law under the statute, § 103.” Panduit Corp. v. Dennison Mfg. Co., 810 F.2d 1561, 1575, 1 USPQ2d 1593, 1603 (Fed.Cir.1987); Arkie Lures, Inc. v. Gene Larexo Tackle, Inc., 119 F.3d 953, 957, 43 USPQ2d 1294, 1297 (Fed.Cir.1997) (“It is insufficient to establish obviousness that the separate elements of the invention existed in the prior art, absent some teaching or suggestion, in the prior art, to combine the elements.”). The test is not whether one device can be an appropriate substitute for another. See Hybritech Inc. v. Monoclonal Antibodies, Inc., 802 F.2d 1367, 1383, 231 USPQ 81, 93 (Fed.Cir.1986) (“Focusing on the obviousness of substitutions and differences instead of on the invention as a whole, as the district court did in frequently describing the claimed invention as the mere substitution of monoclonal for polyclonal antibodies in a sandwich assay, was a legally improper way to simplify the difficult determination of obviousness.”). The district court must make specific findings establishing why it was “apparent” to use the screw anchor of the Fuller and Rupiper method in combination with the metal bracket as used in the Gregory patents. Our court has provided a great deal of guidance on what kind of factual findings the district court may make in determining a reason, suggestion, or motivation to combine. The reason, suggestion, or motivation to combine may be found explicitly or implicitly: 1) in the prior art references themselves; 2) in the knowledge of those of ordinary skill in the art that certain references, or disclosures in those references, are of special interest or importance in the field; or 3) from the nature of the problem to be solved, “leading inventors to look to references relating to possible solutions to that problem.” Pro-Mold & Tool Co. v. Great Lakes Plastics, Inc., 75 F.3d 1568, 1572, 37 USPQ2d 1626, 1630 (Fed.Cir.1996) (internal citations omitted); In re Rouffet, 149 F.3d at 1357, 47 USPQ2d at 1458. While the references need not expressly teach that the disclosure contained therein should be combined with another, see Motorola, Inc. v. Interdigital Tech. Corp., 121 F.3d 1461, 1472, 43 USPQ2d" }, { "docid": "15898995", "title": "", "text": "525, 92 L.Ed. 746 (1948). In deciding the legal question of obviousness, we bear in mind that the party asserting invalidity of a patent must prove the disputed facts by clear and convincing evidence. See Georgia-Pacific Corp. v. United States Gypsum Co., 195 F.3d 1322, 1330, 52 USPQ2d 1590, 1597 (Fed.Cir.2000); Newell Cos., Inc. v. Kenney Mfg. Co., 864 F.2d 757, 767, 9 USPQ2d 1417, 1425 (Fed.Cir.1988). The statutory standard for the ultimate determination of obviousness provides that a claimed invention is unpatentable if the differences between it and the prior art “are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art.” 35 U.S.C. § 103 (1994); see also Graham, 383 U.S. at 13, 86 S.Ct. 684. In line with this statutory standard, our case law provides that “[t]he consistent criterion for determination of obviousness is whether the prior art would have suggested to one of ordinary skill in the art that this process should be carried out and would have a reasonable likelihood of success, viewed in the light of the prior art.” In re Dow Chem., 837 F.2d 469, 473, 5 USPQ2d 1529, 1531 (Fed.Cir.1988). Two requirements are contained in this criterion. The first requirement is that a showing of a suggestion, teaching, or motivation to combine the prior art references is an “essential evidentiary component of an obviousness holding.” C.R. Bard, Inc. v. M3 Sys. Inc., 157 F.3d 1340, 1352, 48 USPQ2d 1225, 1232 (Fed.Cir.1998). This evidence may flow from the prior art references themselves, the knowledge of one of ordinary skill in the art, or, in some cases, from the nature of the problem to be solved. See Pro-Mold & Tool Co. v. Great Lakes Plastics, Inc., 75 F.3d 1568, 1573, 37 USPQ2d 1626, 1630 (Fed.Cir.1996). However, the suggestion more often comes from the teachings of the pertinent references. See In re Rouffet, 149 F.3d 1350, 1359, 47 USPQ2d 1453, 1459 (Fed.Cir.1998). This showing must be clear and particular, and broad conclusory statements about the teaching of" }, { "docid": "22582390", "title": "", "text": "old elements. See In re Rouffet, 149 F.3d 1350, 1357, 47 USPQ2d 1453, 1457 (Fed.Cir.1998). Thus, every element of a claimed invention may often be found in the prior art. See id. However, identification in the prior art of each individual part claimed is insufficient to defeat patentability of the whole claimed invention. See id. Rather, to establish obviousness based on a combination of the elements disclosed in the prior art, there must be some motivation, suggestion or teaching of the desirability of making the specific combination that was made by the applicant. See In re Dance, 160 F.3d 1339, 1343, 48 USPQ2d 1635, 1637 (Fed.Cir. =1998); In re Gordon, 733 F.2d 900, 902, 221 USPQ 1125, 1127 (Fed.Cir.1984). Even when obviousness is based on a single prior art reference, there must be a showing of a suggestion or motivation to modify the teachings of that reference. See B.F. Goodrich Co. v. Aircraft Braking Sys. Corp., 72 F.3d 1577, 1582, 37 USPQ2d 1314, 1318 (Fed.Cir.1996). The motivation, suggestion or teaching may come explicitly from statements in the prior art, the knowledge of one of ordinary skill in the art, or, in some cases the nature of the problem to be solved. See Dembiczak, 175 F.3d at 999, 50 USPQ2d at 1617. In addition, the teaching, motivation or suggestion may be implicit from the prior art as a whole, rather than expressly stated in the references. See WMS Gaming, Inc. v. Internar tional Game Tech, 184 F.3d 1339,1355, 51 USPQ2d 1385, 1397 (Fed.Cir.1999). The test for an implicit showing is what the combined teachings, knowledge of one of ordinary skill in the art, and the nature of the problem to be solved as a whole would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 425, 208 USPQ 871, 881 (1981) (and cases cited therein). Whether the Board relies on an express or an implicit showing, it must provide particular findings related thereto. See Dembiczak, 175 F.3d at 999, 50 USPQ2d at 1617. Broad conclusory statements standing alone are not “evidence.” Id. Kotzab’s" }, { "docid": "22856344", "title": "", "text": "prior art. A claimed invention is unpatentable if the differences between it and the prior art “are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art.” 35 U.S.C. § 103(a) (1994); see Graham v. John Deere Co., 383 U.S. 1, 13-14, 86 S.Ct. 684, 15 L.Ed.2d 545, 148 USPQ 459, 465 (1966). The ultimate determination of whether an invention is or is not obvious is a legal conclusion based on underlying factual inquiries including: (1) the scope and content of the prior art; (2) the level of ordinary skill in the art; (3) the differences between the claimed invention and the prior art; and (4) objective evidence of nonobviousness. See Graham, 383 U.S. at 17-18, 86 S.Ct. 684, 15 L.Ed.2d 545, 148 USPQ at 467; Miles Labs., Inc. v. Shandon Inc., 997 F.2d 870, 877, 27 USPQ2d 1123, 1128 (Fed.Cir.1993). The underlying factual determinations on which the legal conclusion of obviousness is based are reviewed for clear error. See Kolmes v. World Fibers Corp., 107 F.3d 1534, 1541, 41 USPQ2d 1829, 1833 (Fed.Cir.1997). Because a patent is presumed to be valid, see 35 U.S.C. § 282 (1994), the party asserting invalidity has the burden of showing invalidity by clear and convincing evidence. See Monarch Knitting Mach. Corp. v. Sulzer Moral GmbH, 139 F.3d 877, 881, 45 USPQ2d 1977, 1981 (Fed.Cir.1998). The burden on the party asserting obviousness is more easily carried when the references on which the assertion is based were not directly considered by the examiner during prosecution. See Applied Materials, Inc. v. Advanced Semiconductor Materials Am., Inc., 98 F.3d 1563, 1569, 40 USPQ2d 1481, 1485 (Fed.Cir.1996). When an obviousness determination relies on the combination of two or more references, there must be some suggestion or motivation to combine the references. See In re Rouffet, 149 F.3d 1350, 1355, 47 USPQ2d 1453, 1456 (Fed.Cir.1998). The suggestion to combine may be found in explicit or implicit teachings within the references themselves, from the ordinary knowledge of those skilled in the art," }, { "docid": "17846256", "title": "", "text": "(citations omitted and footnote added). As noted, the district court will have the opportunity to reassess obviousness in fight of a complete claim construction. In addition to the meaning of “sloping drain groove” already explicated by this court with the assistance of the trial court’s record, the claim language does not require a completely open drain channel but, rather, a sloping “drain groove being open at the top for a substantial portion of its length.” col. 7, 11. 24-25. As noted above, obviousness does not require the prior art to reach expressly each limitation exactly. Rather, obviousness may render a claimed invention invalid where the record contains a suggestion or motivation to modify the prior art teaching to obtain the claimed invention. B.F. Goodrich Co. v. Aircraft Braking Sys. Corp., 72 F.3d 1577, 1582, 37 USPQ2d 1314, 1318 (Fed.Cir.1996); Hartness Int’l, Inc. v. Simplimatic Eng’g Co., 819 F.2d 1100, 1108, 2 USPQ2d 1826, 1832 (Fed.Cir.1987) (“[T]he inquiry is not whether each element existed in the prior art, but whether the prior art made obvious the invention as a whole .... ”); In re Durden, 763 F.2d 1406, 1410, 226 USPQ 359, 367 (Fed.Cir.1985). This court has explained the purpose of the motivation to combine requirement: To prevent the use of hindsight based on the invention to defeat patentability of the invention, this court requires the [challenger] to show a motivation to combine the references that create the case of obviousness. In other words, the [challenger] must show reasons that the skilled artisan, confronted with the same problems as the inventor and with no knowledge of the claimed invention, would select the elements from the cited prior art references for combination in the manner claimed. This court has identified three possible sources for a motivation to combine references: the nature of the problem to be solved, the teachings of the prior art, and the knowledge of persons of ordinary skill in the art. In re Rouffet, 149 F.3d 1350, 1357 (Fed. Cir.1998). “This suggestion or motivation need not be expressly stated,” B.F. Goodrich, 72 F.3d at 1582, but may be shown" }, { "docid": "22856345", "title": "", "text": "clear error. See Kolmes v. World Fibers Corp., 107 F.3d 1534, 1541, 41 USPQ2d 1829, 1833 (Fed.Cir.1997). Because a patent is presumed to be valid, see 35 U.S.C. § 282 (1994), the party asserting invalidity has the burden of showing invalidity by clear and convincing evidence. See Monarch Knitting Mach. Corp. v. Sulzer Moral GmbH, 139 F.3d 877, 881, 45 USPQ2d 1977, 1981 (Fed.Cir.1998). The burden on the party asserting obviousness is more easily carried when the references on which the assertion is based were not directly considered by the examiner during prosecution. See Applied Materials, Inc. v. Advanced Semiconductor Materials Am., Inc., 98 F.3d 1563, 1569, 40 USPQ2d 1481, 1485 (Fed.Cir.1996). When an obviousness determination relies on the combination of two or more references, there must be some suggestion or motivation to combine the references. See In re Rouffet, 149 F.3d 1350, 1355, 47 USPQ2d 1453, 1456 (Fed.Cir.1998). The suggestion to combine may be found in explicit or implicit teachings within the references themselves, from the ordinary knowledge of those skilled in the art, or from the nature of the problem to be solved. See id. at 1357, 149 F.3d 1350, 47 USPQ2d at 1458. “When determining the patentability of a claimed invention which' combines two known elements, ‘the question is whether there is something in the prior art as a whole to suggest the desirability, and thus the obviousness, of making the combination.’ ” In re Beattie, 974 F.2d 1309, 1311-12, 24 USPQ2d 1040, 1042 (Fed.Cir.1992) (quoting Lindemann Maschinenfabrik GMBH v. American Hoist & Derrick Co., 730 F.2d 1452, 1462, 221 USPQ 481, 488 (Fed.Cir.1984)). At trial, WMS presented three prior art patents to support its contention of obviousness: United States Patent No. 4,095,795, entitled “Amusement Apparatus and Method,” issued to James Saxton et al. on June 20, 1978 (the Saxton patent); United States Patent No. 3,918,716, entitled “Game Apparatus for Trying Coincidence between Randomly Selected Characters,” issued to Hiroshi Nonaka et al. on November 11, 1975 (the Nonaka patent); and Australian Patent No. 280649, entitled “An Improved Electrically Operated Gaming Machine,” issued to Albert Cohen et al." }, { "docid": "23608952", "title": "", "text": "suggestions or incentives from this prior art that showed the propriety of combination”). See also Graham, 383 U.S. at 18, 86 S.Ct. 684, 15 L.Ed.2d 545, 148 USPQ at 467 (“strict observance” of factual predicates to obviousness conclusion required). Combining prior art references without evidence of such a suggestion, teaching, or motivation simply takes the inventor’s disclosure as a blueprint for piecing together the prior art to defeat patentability — the essence of hindsight. See, e.g., Interconnect Planning Corp. v. Feil, 774 F.2d 1132, 1138, 227 USPQ 543, 547 (Fed.Cir.1985) (“The invention must be viewed not with the blueprint drawn by the inventor, but in the state of the art that existed at the time.”). In this case, the Board fell into the hindsight trap. We have noted that evidence of a suggestion, teaching, or motivation to combine may flow from the prior art references themselves, the knowledge of one of ordinary skill in the art, or, in some cases, from the nature of the problem to be solved, see Pro-Mold & Tool Co. v. Great Lakes Plastics, Inc., 75 F.3d 1568, 1573, 37 USPQ2d 1626, 1630 (Fed.Cir.1996), Para-Ordnance Mfg. v. SGS Importers Intern., Inc., 73 F.3d 1085, 1088, 37 USPQ2d 1237, 1240 (Fed.Cir.1995), although “the suggestion more often comes from the teachings of the pertinent references,” Rouffet, 149 F.3d at 1355, 47 USPQ2d at 1456. The range of sources available, however, does not diminish the requirement for actual evidence. That is, the showing must be clear and particular. See, e.g., C.R. Bard, 157 F.3d at 1352, 48 USPQ2d at 1232. Broad conclusory statements regarding the teaching of multiple references, standing alone, are not “evidence.” E.g., McElmurry v. Arkansas Power & Light Co., 995 F.2d 1576, 1578, 27 USPQ2d 1129, 1131 (Fed.Cir.1993) (“Mere denials and conclusory statements, however, are not sufficient to establish a genuine issue of material fact.”); In re Sichert, 566 F.2d 1154, 1164, 196 USPQ 209, 217 (CCPA 1977) (“The examiner’s conclusory statement that the specification does not teach the best mode of using the invention is unaccompanied by evidence or reasoning and is entirely inadequate to" }, { "docid": "15945591", "title": "", "text": "that: Measuring a claimed invention against the standard established by section 103 requires the oft-difficult but critical step of casting the mind back to the time of invention, to consider the thinking of one of ordinary skill in the art, guided only by the prior art references and the then-accepted wisdom in the field. In re Dembiczak, 175 F.3d 994, 999, 50 USPQ2d 1614, 1617 (Fed.Cir.1999). We “cannot use hindsight reconstruction to pick and choose among isolated disclosures in the prior art to deprecate the claimed invention.” In re Fine, 837 F.2d 1071, 1075, 5 USPQ2d 1596 (Fed.Cir.1988). Our ease law makes clear that the best defense against hindsight-based obviousness analysis is the rigorous application of the requirement for a showing of a teaching or motivation to combine the prior art references. See Dembiczak, 175 F.3d at 999, 50 USPQ2d at 1617. “Combining pri- or art references without evidence of such a suggestion, teaching, or motivation simply takes the inventor’s disclosure as a blueprint for piecing together the prior art to defeat patentability — the essence of hindsight.” Id. “When a rejection depends on a combination of prior art references, there must be some teaching, suggestion, or motivation to combine the references.” In re Rouffet, 149 F.3d 1350, 1355, 47 USPQ2d 1453, 1456 (Fed.Cir.1998) (citing In re Geiger, 815 F.2d 686, 688, 2 USPQ2d 1276, 1278 (Fed.Cir.1987)). The same principle applies to invalidation. “Obviousness cannot be established by combining the teachings of the prior art to produce the claimed invention, absent some teaching or suggestion supporting the combination.” ACS Hosp. Sys., Inc. v. Montefiore Hosp., 732 F.2d 1572, 1577, 221 USPQ 929, 933 (Fed.Cir.1984). Although the suggestion to combine references may flow from the nature of the problem, see Pro-Mold & Tool Co. v. Great Lakes Plastics, Inc., 75 F.3d 1568, 1573, 37 USPQ2d 1626, 1630 (Fed.Cir.1996), “[djefining the problem in terms of its solution reveals improper hindsight in the selection of the prior art relevant to obviousness,” Monarch Knitting Mach. Corp. v. Sulzer Morat Gmbh, 139 F.3d 877, 880, 45 USPQ2d 1977, 1981 (Fed.Cir.1998). Therefore, “[w]hen determining the patentability" }, { "docid": "9641580", "title": "", "text": "to support the obviousness conclusion. See B.F. Goodrich, 72 F.3d at 1582, 37 USPQ2d at 1318. This suggestion or motivation may be derived from the prior art reference itself, see O’Farrell, 853 F.2d at 902, 7 USPQ2d at 1680, from the knowledge of one of ordinary skill in the art, or from the nature of the problem to be solved. See Pro-Mold & Tool Co. v. Great Lakes Plastics, Inc., 75 F.3d 1568, 1573, 37 USPQ2d 1626, 1630 (Fed.Cir.1996); see also Motorola, Inc. v. Interdigital Tech. Corp., 121 F.3d 1461, 1472, 43 USPQ2d 1481, 1489 (Fed.Cir.1997) (“[T]he suggestion to combine may come from the prior art, as filtered through the knowledge of one skilled in the art.”). Determining whether there is a suggestion or motivation to modify a prior art reference is one aspect of determining the scope and content of the prior art, a fact question subsidiary to the ultimate conclusion of obviousness. See Tec Air, Inc., 192 F.3d at 1359, 52 USPQ2d at 1298 (stating that the factual underpinnings of obviousness include whether a reference provides a motivation to combine its teachings with another). Because the jury returned a verdict in favor of SIBIA, we must presume that all factual disputes, such as the motivation to modify, were resolved in its favor. See Jurgens, 927 F.2d at 1557, 18 USPQ2d at 1035. The parties are in general agreement regarding the teachings of the Stumpo paper itself. Stumpo describes recombinant cells engineered to have both a heterolo-gous cell surface receptor and a responsive reporter gene construct. These cells are identical to the recombinant cells used in the claimed methods. Stumpo describes using these cells in a transcription-based assay in order to detect cell surface receptor activation. According to the unrebut-ted testimony of Dr. Struhl, the Stumpo paper described a “straightforward functional assay” for analyzing the response of a particular cell surface protein in the presence of a compound. However, these transcription-based assays use the compound insulin, which was known to interact with the surface receptors of Stumpo’s recombinant cells. The purpose of these assays was not drug screening, but" }, { "docid": "6418123", "title": "", "text": "the envelope using the envelope signal itself. C.Discussion Under 35 U.S.C. § 103, “[a] patent may not be obtained ... if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains.” The determination under § 103 is whether the claimed invention as a whole would have been obvious to a person of ordinary skill in the art at the time the invention was made. See In re O’Farrell, 853 F.2d 894, 902, 7 USPQ2d 1673, 1680 (Fed.Cir.1988). Obviousness may not be established using hindsight. See W.L. Gore & Assocs., Inc. v. Garlock, Inc., 721 F.2d 1540, 1551, 220 USPQ 303, 312-13 (Fed.Cir.1983). In determining obviousness, the invention must be consid ered as a whole and the claims must be considered in their entirety. See Medtronic, Inc. v. Cardiac Pacemakers, Inc., 721 F.2d 1563, 1567, 220 USPQ 97, 101 (Fed.Cir.1983). An issued patent is presumed to be valid and, hence, nonobvious. See 35 U.S.C. § 282 (1994). Thus, in this case, it is GM’s burden to prove by clear and convincing evidence that the claimed invention would have been obvious in view of the prior art. See Glaverbel Societe Anonyme v. Northlake Mktg. & Supply, Inc., 45 F.3d 1550, 1555, 33 USPQ2d 1496, 1499 (Fed.Cir.1995); see also Polaroid Corp. v. Eastman Kodak Co., 789 F.2d 1556, 1558, 229 USPQ 561, 562-63 (Fed.Cir.1986). The presentation of evidence that was not before the examiner does not change the presumption of validity, although the burden may be more or less easily carried because of the additional evidence. See Applied Materials, Inc. v. Advanced Semiconductor Materials Am., Inc., 98 F.3d 1563, 1569, 40 USPQ2d 1481, 1485 (Fed.Cir.1996). Kahn agreed in his deposition that the Avins patent teaches every limitation of Claim 53 except the limitation that requires “means for deriving a distortion cancellation component from the stereo sum signal component.” As we noted above, Claim 53" }, { "docid": "9641579", "title": "", "text": "Kahn v. General Motors Corp., 135 F.3d 1472, 1480, 45 USPQ2d 1608, 1614 (Fed.Cir.1998). While the presentation at trial of a reference that was not before the examiner does not change the presumption of validity, the alleged infringer’s burden may be more easily carried because of this additional reference. See Applied Materials, Inc. v. Advanced Semiconductor Materials Am., Inc., 98 F.3d 1563, 1569, 40 USPQ2d 1481, 1485 (Fed.Cir.1996). On appeal, Cadus argues that the Stumpo reference alone, which was not before the PTO examiner, is sufficient to invalidate the patent under § 103, given the level of skill in the art at the time of the invention. In appropriate circumstances, a single prior art reference can render a claim obvious. See, e.g., B.F. Goodrich Co. v. Aircraft Braking Sys. Corp., 72 F.3d 1577, 1582, 37 USPQ2d 1314, 1318 (Fed.Cir.1996); In re O’Farrell, 853 F.2d 894, 902, 7 USPQ2d 1673, 1680 (Fed.Cir.1988). However, there must be a showing of a suggestion or motivation to modify the teachings of that reference to the claimed invention in order to support the obviousness conclusion. See B.F. Goodrich, 72 F.3d at 1582, 37 USPQ2d at 1318. This suggestion or motivation may be derived from the prior art reference itself, see O’Farrell, 853 F.2d at 902, 7 USPQ2d at 1680, from the knowledge of one of ordinary skill in the art, or from the nature of the problem to be solved. See Pro-Mold & Tool Co. v. Great Lakes Plastics, Inc., 75 F.3d 1568, 1573, 37 USPQ2d 1626, 1630 (Fed.Cir.1996); see also Motorola, Inc. v. Interdigital Tech. Corp., 121 F.3d 1461, 1472, 43 USPQ2d 1481, 1489 (Fed.Cir.1997) (“[T]he suggestion to combine may come from the prior art, as filtered through the knowledge of one skilled in the art.”). Determining whether there is a suggestion or motivation to modify a prior art reference is one aspect of determining the scope and content of the prior art, a fact question subsidiary to the ultimate conclusion of obviousness. See Tec Air, Inc., 192 F.3d at 1359, 52 USPQ2d at 1298 (stating that the factual underpinnings of obviousness include whether" }, { "docid": "22986830", "title": "", "text": "combination with the metal bracket as used in the Gregory patents. Our court has provided a great deal of guidance on what kind of factual findings the district court may make in determining a reason, suggestion, or motivation to combine. The reason, suggestion, or motivation to combine may be found explicitly or implicitly: 1) in the prior art references themselves; 2) in the knowledge of those of ordinary skill in the art that certain references, or disclosures in those references, are of special interest or importance in the field; or 3) from the nature of the problem to be solved, “leading inventors to look to references relating to possible solutions to that problem.” Pro-Mold & Tool Co. v. Great Lakes Plastics, Inc., 75 F.3d 1568, 1572, 37 USPQ2d 1626, 1630 (Fed.Cir.1996) (internal citations omitted); In re Rouffet, 149 F.3d at 1357, 47 USPQ2d at 1458. While the references need not expressly teach that the disclosure contained therein should be combined with another, see Motorola, Inc. v. Interdigital Tech. Corp., 121 F.3d 1461, 1472, 43 USPQ2d 1481, 1489 (Fed.Cir.1997), the showing of combinability must be “clear and particular.” In re Dembiczak, 175 F.3d at 999, 50 USPQ2d at 1617. There was a great deal of evidence presented to the district court that the Chance method represented an improvement over the prior art. According to the '368 patent, the Chance method is an improvement over the prior art because the Chance method is “easy to install,” “low cost,” and “readily installable from the outside of a house or other structure.” '368 patent, col. 2, 11. 3-9. Chance also offered testimony that in its method, there is immediate verification of successful stabilization, because the appropriate resistance is mathematically calculated. In the Fuller and Rupiper and Gregory methods, the user cannot always determine whether installation occurred successfully. There was also evidence before the district court that the Fuller and Rupiper and Gregory methods may solve different problems. The Fuller and Rupiper method is found to be useful in California, because the use of concrete is especially important in underpinning foundations in settings with a" } ]

[ { "docid": "6636829", "title": "", "text": "leaving others to complete the more physically demanding tasks. In fact, in his Brief Plaintiff refers to his post-injury position as his “modified position of electrician.” (Pl.’s Br. at 6.) Whatever label Plaintiff wisheá (or 'does not wish) to place on the type of duties he completed, the tasks accurately can be considered “light duty.” Again, Plaintiffs ability to perform' these “light duty” tasks does not indicate that Plaintiff can perform all the essential functions of the position of electrician. Indeed, the fact that Plaintiff had to be placed on “light duty” status shows that Plaintiff was unable to perform all the essential functions of the position electrician at Plant Bowen. In sum, the Court finds that Defendant has shown by affirmative evidence that Plaintiff cannot perform the essential functions of his position of electrician without accommodation and Plaintiff fails to present sufficient evidence to create a jury question whether he is able to perform the essential functions of the position of electrician without accommodation. C. Plaintiff Has Not Shown There Is■ A Reasonable Accommodation For His Disability Or That Defendant Discriminated Against Plaintiff Based On His Disability 1. Plaintiff Has Not Shown that There is a Reasonable Accommodation for His Disability Because Plaintiff cannot show that he can perform essential functions of his position without accommodation, Plaintiff must show that he can perform the essential functions of his position with a reasonable accommodation. Willis v. Conopco, Inc., 108 F.3d 282, 285 (11th Cir.1997) (“[Ejstablishing that a reasonable accommodation exists is a part of an ADA plaintiff’s case ----”) (per curiam); Moses v. American Nonwovens, Inc., 97 F.3d 446, 448 (líth Cir.1996) (per curiam); Lewis, 908 F.Supp. at 946; Whillock, 926 F.Supp.. at 1563. Inasmuch as no reasonable accommodation has been provided here (because Defendant contends there is not one), Plaintiff’s showing the .existence of a reasonable accommodation . would in effect show that Defendant failed to reasonably accommodate Plaintiffs disability—a violation of the ADA. However, if Plaintiff cannot show the existence, of a reasonable accommodation, Plaintiff will be unable to show that he is a qualified individual with a" } ]

[ { "docid": "19138017", "title": "", "text": "up for work on a predictable basis?” Samper v. Providence Saint Vincent Med. Ctr., 675 F.3d 1233, 1235 (9th Cir.2012). This circuit has already addressed that question, and held that “excessive absenteeism” renders an individual unqualified under the ADA as a matter of law, Brenneman v. MedCentral Health Sys., 366 F.3d 412, 419 (6th Cir.2004), except in the “unusual case where an employee can effectively perform all work-related duties at home” without a substantial reduction in the quality of performance, Smith v. Ameritech, 129 F.3d 857, 867 (6th Cir.1997) (emphasis added). The majority cannot contend that Harris’s circumstances constitute such an “unusual case,” and so the majority instead asserts that regular, predictable attendance is not an essential function of all jobs, states that Harris’s position does not actually require showing up for work — despite the undisputed evidence in the record that many resale buyer duties could not be done at home — and notes that technology has advanced. I would instead follow this court’s well-established precedent and affirm the district court’s grant of summary judgment to Ford. This court’s precedent clearly states that an employee who cannot satisfy an employer’s basic attendance requirements is unqualified under the ADA as a matter of law. Brenneman, 366 F.3d at 418-19. We based our conclusion on evidence that the employee’s being absent from the workplace created strain on his coworkers, and on testimony from the employee’s supervisor that attendance was an essential function of the position. Id. at 420. Of course, Ford has presented such evidence here: Ford’s managers, as well as the other resale buyers, are in universal agreement that the resale buyer position requires face-to-face communications, and Harris’s chronic, unpredictable absences — as well as the repeated errors she made while working from home — created considerable strain on the rest of the team. Yet the majority fails to credit this evidence, dismissing the commonsense conclusion that regular, predictable attendance is an essential function of almost every job, a move at odds with not only this circuit’s precedent but also the case law of our sister circuits. See, e.g., Colón-Fontánez" }, { "docid": "14153125", "title": "", "text": "1999 WL 292554 (S.D.N.Y May 7, 1999) (plaintiff who failed to show that he was performing his duties satisfactorily failed to establish a prima facie case of age and national origin discrimination); Richardson v. Westchester County, No. 96 Civ. 9674(DLC), 1998 WL 373422, at *4 (S.D.N.Y July 6, 1998) (granting summary judgment against plaintiff because he failed to present sufficient evidence of his ability to perform essential functions of the job with or without reasonable accommodation). Courts have defined “essential functions” to mean the affirmative duties or inherent parts of a job. “To be qualified, an individual must satisfy the requisite skill, experience, education and other job-related requirements of the employment position.... ” Misek-Falkoff v. I.B.M. Corp., 854 F.Supp. 215, 226 (S.D.N.Y. 1994), aff'd, 60 F.3d 811 (2d Cir.1995). It is well established that the ADA does not protect plaintiffs who are unable to meet these requirements. See Altman v. Neiv York City Health and Hosp. Corp., 100 F.3d 1054, 1061 (2d Cir.1996) (affirming summary judgment for employer where “Altman’s disability would prevent, him from performing in a reasonable manner the activities involved in the position of Chief of Internal Medicine”); Serrano, 1997 WL 167042, at *5 (granting summary judgment to employer where “[pjlaintiff admitted during his deposition that he was unable to perform the essential functions” of his job); Quintana v. Sound Distribution Corp., No. 95 Civ. 0309(LAP), 1997 WL 40866, at * 5 (S.D.N.Y. Feb.3, 1997) (granting summary judgment to employer where defendants demonstrated that plaintiff was unable to perform essential functions of his job); see also EEOC v. Amego, Inc., 110 F.3d 135, 144 (1st Cir.1997) (granting summary judgment to employer where plaintiff could not be trusted to safely dispense medication, an essential function of her job); Martinson v. Kinney Shoe Corp., 104 F.3d 683, 687 (4th Cir. 1997) (granting summary judgment to employer where maintaining store security was an essential function of a salesperson’s job and the evidence was uncontroverted that plaintiff was not qualified to perform this function). In addition, a disabled plaintiff ceases to be otherwise qualified for a position when she or he" }, { "docid": "4517680", "title": "", "text": "Valja-to’s assessment that his involvement in these events was minimal. However, viewing the evidence in the light most favorable to the government, and drawing all permissible inferences in the government’s favor, the Court cannot say that no rational trier of fact could have found the essential elements of the crimes charged beyond a reasonable doubt. See Jackson, 443 U.S. at 318-19, 99 S.Ct. 2781. Due deference must be given to the jury’s de- . termination, even if the Court itself “concludes that either of the two results, a reasonable doubt or no reasonable doubt, is fairly possible.” Guadagna, 183 F.3d at 129 (internal quotation omitted). With this standard in mind, the evidence was sufficient to show that Valjato, at the very least, aided and abetted an attempt to cause Vincent to engage in a sexual act by using force or by placing her in fear. See 18 U.S.C. §§ 2241(1) and 2242(1). The evidence shows that Crowley attempted to get in bed with Vincent while kissing,Vincent’s neck and rubbing her breasts. T. 106. Vincent told him to stop, but Crowley persisted and used even more forcé as she resisted. T. 107. This struggle continued for five to ten minutes, with Crowley begging to go down on Vincent while she tried to fight him off. T. 292-93, 305. The bed creaked noisily during this period. T. 399. Toward the end of this time frame, Crowley moved his hand down Vincent’s shorts, gripped and groped her vagina, and attempted to insert his finger. T. 108-09. After Vincent called to her roommate for help, Crowley called to Valjato. T. 108-09, 348. Valjato responded within seconds. T. 110. When Valjato entered, Crowley still had his hand down Vincent’s shorts, was still touching her vagina, and had his arm across Vincent’s chest. T. 110, 112. Valjato attempted to climb up onto the desk and then into Vincent’s bed while asking Vincent to let the two perform oral sex on her. T. 111-22. Vincent was intimidated. T. 114. The two remained at Vincent’s bedside for an unknown period of time, continuing to beg Vincent to allow" }, { "docid": "21100848", "title": "", "text": "case, if, after a full opportunity for discovery, the summary judgment record is insufficient to establish the existence of an appropriate position into which the plaintiff could have been transferred, summary judgment must be granted in favor of the defendant — even if it also appears that the defendant failed to engage in good faith in the interactive process. Other courts of appeals have endorsed this approach. See, e.g., Jachan v. New York State Dept. of Labor, 205 F.3d 562, 567 (2d Cir.2000) (granting summary judgment to a defendant in an ADA suit where the plaintiff pleaded that his employer had failed to engage in the interactive process because it was the plaintiff who had the burden “to persuade a jury that an accommodation exists that permits her to perform the job’s essential functions.”) See also id. at 567 n. 4 (“Jackan suggests that placing the burden on the plaintiff to prove the existence of a vacancy is unfair, given the employer’s greater access to this information. This concern is over-stated. Once the litigation has begun, the plaintiff can utilize the liberal discovery procedures of the Federal Rules of Civil Procedure, including interrogatories, depositions, and document demands, to identify vacancies that existed at the pertinent time.”); Smith v. Midland Brake Inc., 180 F.3d 1154, 1174 (10th Cir.1999) (en banc) (“Even if Midland Brake failed to fulfill its interactive obligations to help secure a reassignment position, Smith will not be entitled to recovery unless he can also show that a reasonable accommodation was possible and would have led to a reassignment position.”); Willis v. Conopco, Inc., 108 F.3d 282, 285 (11th Cir.1997) (holding that the employer’s failure to interact with the employee does not preclude the employee from losing on summary judgment because the employee must still prove that a reasonable accommodation could have been made); Moses v. American Nonwovens, Inc., 97 F.3d 446, 448 (11th Cir.1996) (same); cf. Broussard v. University of California, 192 F.3d 1252, 1259 (9th Cir.1999) (“Any failure by the University to engage in an interactive process with Broussard is negated by the fact that she is" }, { "docid": "11604858", "title": "", "text": "assigned to certain aspects of a multi-task job does not necessarily mean that those tasks to which [he] was not assighed are not essential.” Phelps, 251 F.3d at 26. Cf. Miller v. Illinois Dept. of Corrections, 107 F.3d 483, 485 (7th Cir.1997) (“if an employer has a legitimate reason for specifying multiple duties for a particular job classification, duties the occupant of the position is expected to rotate through, a disabled employee will not be qualified for the position unless he can perform enough of these duties to enable a judgment that he can perform its essential duties.” (Emphasis in original.)) It seems obvious to us that as a municipal policeman, even while on light-duty assignment, at the very least Maldonado could have been summoned to assist in emergencies in which he would have been required to patrol, guard municipal and private dependencies, and/or perform arrests, among other duties. Given the limitations to Maldonado’s physical capacity established in the final medical evaluation submitted by his doctor to the Municipality (Exh. 19 to the MSJ),' e.g. that he could walk and stand up only for 30 consecutive minutes, had to be allowed to take 4-5 minutes periods of rest every hour, and could not lift objects heavier than 10 pounds, we are unable to conclude that he was able to perform said .essential duties of a municipal police officer. We note that Maldonado also requested accommodation in a position outside the municipal police force. He failed to show that such a vacant position existed, howev er. Phelps, 251 F.3d at 27. The evidence on record shows, instead, that there were no vacant employment positions for which he qualified at the time that his request for reasonable accommodation was pending. The ADA did not require defendant to create a new job. Id. Thus, as plaintiff Maldonado could not perform the essential functions of his job with or without reasonable accommodation, he is not a qualified individual under the ADA, and cannot invoke its protection. Accordingly, defendant’s motion for summary judgment (docket entry 28) is GRANTED. Judgment will be entered by separate order" }, { "docid": "22262096", "title": "", "text": "plaintiff must prove that (1) he has a disability; (2) he is a qualified individual; and (3) he was subjected to unlawful discrimination because of his disability. Id. A “qualified individual with a disability” is an “individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8). The plaintiff retains at all times the burden of persuading the jury that reasonable accommodations were available. Moses v. American Nonwovens, Inc., 97 F.3d 446, 447 (11th Cir. 1996). The employer, on the other hand, has the burden of persuasion on whether an accommodation would impose an undue hardship. Monette v. Electronic Data Sys. Corp., 90 F.3d 1173, 1183 (6th Cir.1996). Holbrook contends that the City of Alpharetta Police Department discriminated against him on the basis of his disability by continually refusing to assign him the full duties of a police detective and accommodate him as required by the statute. Holbrook further avers that these actions constituted constructive discharge and forced him effectively to terminate his employment with the police department. The City of Alpharetta responds that Holbrook was not a “qualified individual” within the meaning of the ADA because he was unable to perform essential functions of his job with or without reasonable accommodations. The ADA provides that in determining what functions of a given job are deemed to be essential, “consideration shall be given to the employer’s judgment ... and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job.” 42 U.S.C. § 12111(8). Regulations promulgated under the ADA further identify three factors that can be considered pursuant to an inquiry regarding whether a particular task is an essential part of a job: (1) the reason the position exists is to perform the function; (2) there are a limited number of employees available among whom the performance of the job function can be distributed; and (3) the function is highly specialized so that the" }, { "docid": "4128944", "title": "", "text": "violation of the ADA. In April 2012, Henschel filed suit against CCRC under the ADA. The district court ruled for CCRC on summary judgment, finding that transporting the excavator to the work site was an essential function of the excavator operator position, that Henschel was unable to haul the excavator, and that reassigning him to a year-round truck driver position was not a reasonable accommodation. II. Standard of Review We review the district court’s grant of summary judgment de novo. Saroli v. Automation & Modular Components, Inc., 405 F.3d 446, 450 (6th Cir.2005). In doing so, we draw all reasonable inferences and view the evidence in the light most favorable to the appellant in order to determine if there is a genuine issue of material fact. E.E.O.C. v. United Parcel Serv., Inc., 249 F.3d 557, 561 (6th Cir.2001). Where there is a genuine issue of material fact, summary judgment is not appropriate. Id. A genuine issue for trial exists where reasonable minds could differ on a material fact. See Keith v. Cnty. of Oakland, 703 F.3d 918, 926-27 (6th Cir.2013). III. Analysis In an employment discrimination case under the ADA, a plaintiff must show that 1) he is an individual with a disability within the meaning of the ADA; 2) he is qualified to perform the essential functions of the job, with or without reasonable accommodation; and 3) he suffered an adverse employment decision because of his disability. Gilday v. Mecosta Cnty., 124 F.3d 760, 762 (6th Cir.1997); 42 U.S.C. § 12111(8). CCRC contends that Henschel’s claim fails at the second prong because Henschel is not qualified for employment with CCRC, with or without reasonable accommodations. A. Essential Function The determination of what responsibilities are essential functions is “typically a question of fact and thus not suitable for resolution through a motion for judgment as matter of law....” Brickers v. Cleveland Bd. of Educ., 145 F.3d 846, 849 (6th Cir.1998); Hoskins v. Oakland Cnty. Sheriffs Dep’t, 227 F.3d 719, 726 (6th Cir.2000) (“The inquiry into whether a function is essential is highly fact specific.”). “A job function is essential if" }, { "docid": "17366159", "title": "", "text": "of August 2, 2004. To determine whether or not Vincent was disabled as defined by the Social Security Act, the ALJ engaged in the five-step sequential analysis prescribed by regulations. See 20 C.F.R. §§ 404.1520, 416.920. In finding her not to be disabled, the ALJ put significant weight on his negative assessment of Vincent’s credibility. While acknowledging that Vincent’s “medically determinable impairment could reasonably be expected to produce the alleged symptoms,” the ALJ found that her “statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible.” Vincent’s disability report listed ten years of full-time factory employment from 1994 to 2004, but her earnings records reflected less than three years of work in that period. Vincent’s statements to the Social Security Administration therefore suggested, according to the ALJ, “that she tends to exaggerate.” The ALJ’s review of Vincent’s medical records, including a doctor’s recommendation, unheeded by Vincent, that she attend physical therapy or a “back school” program, further “call[ed] into question [Vincent’s] credibility.” The ALJ also observed that Vincent’s assertion of having been enrolled in special education through tenth grade was not “corroborated by the records” of the school district, which was unable to locate any special education records in Vincent’s name. Having discounted Vincent’s own account of her impairment based on these credibility concerns, the ALJ concluded that she had the residual functional capacity to perform light work and was not disabled. The Appeals Council denied review. On March 30, 2010, the district court reversed and remanded because the ALJ failed to develop the record as to several issues. First, the ALJ could not rely on Vincent’s alleged noncompliance with prescribed treatment as a basis for denying benefits, or even for an adverse credibility finding, without allowing her to explain why she did not follow any such treatment. The ALJ also erred by relying, without further inquiry, on the apparent exaggeration in Vincent’s work history (which could have resulted from a data entry error) and on the absence of corroboration for Vincent’s special education history (which may have been attributable to the use of Vincent’s" }, { "docid": "20764935", "title": "", "text": "the essential functions with reasonable accommodation. A reasonable accommodation is one which enables a individual with a disability to perform the essential functions of the position. 29 C.F.R. § 1630.2(o)(l)(i). From the outset, the Court notes that an employee seeking a reasonable accommodation must request such an accommodation. Mole v. Buckhorn Rubber Products, Inc., 165 F.3d 1212, 1217 (8th Cir.1999). Hatchett alleges that at the time she returned, she requested a part-time schedule or intermittent FMLA leave. A part-time schedule may be reasonable in the appropriate circumstances. 42 U.S.C. § 12111(9). However, an employer is not required to reallocate essential functions that an individual must perform. Moritz, 147 F.3d at 788. Furthermore, an employer is not required to hire additional employees or assign those tasks that the employee could not perform to other employees. Id. The accommodation requested by Hatchett does not enable her to perform the essential functions of the job. Even if allowing Hatchett to work only four hours a day were reasonable, she still is not able to perform the essential functions while at work. There is also some question as to whether the Business Manager’s duties could be completed on a part-time schedule, which would make Hatchett’s part-time request unreasonable. See e.g. Burnett v. Western Resources, Inc., 929 F.Supp. 1349 (D.Kan.1996) (holding that plaintiff was not qualified because he was unable to perform the duties of the eight-hour job within his four-hour work restriction). However, because the Court finds that Hatchett is not able to otherwise perform the essential functions while on the job for the proposed four hours, she is not qualified. In addition, Hatchett has not rebutted this evidence with a showing of her individual capabilities. See Benson v. Northwest Airlines, Inc., 62 F.3d 1108, 1112 (8th Cir.1995) (holding that if the employer demonstrates that an employee cannot perform the essential functions of the job with or without accommodation, the burden shifts to the employee to present evidence of individual capabilities). Hatchett claims her individual capabilities are demonstrated by her expected return to work full-time, if the College would have allowed her to work-harden." }, { "docid": "16851260", "title": "", "text": "permanent or was expected to persist on a long-term basis because its anticipated duration was indefinite, unknowable, or was expected to be at least several months. See EEOC Compliance Manual § 902.4(d), at 902-30; cf. Katz v. City Metal Co., 87 F.3d 26, 32 (1st Cir.1996) (discussing plaintiffs ability to show disability in light of EEOC interpretive guidelines). The district court thus erred in concluding as a matter of law that plaintiff could not have been disabled under the ADA until his permanent disability rating was issued in April 1993. B In order to defeat summary judgment, Aldrich must show not only that he is disabled, but also that he is a “qualified individual.” To determine whether an individual is qualified under the ADA: First, we must determine whether the individual could perform the essential functions of the job.... Second, if (but only if) we conclude that the individual is not able to perform the essential functions of the job, we must determine whether any reasonable accommodation by the employer would enable him to perform those functions. White, 45 F.3d at 361-62 (quoting Chandler v. City of Dallas, 2 F.3d 1385, 1393-94 (5th Cir.1993)). Although Aldrich concedes that he was unable to perform the essential functions of his job, he insists he would have been able to do so with reasonable accommodation. Aid-rich brings in support a report prepared by a certified professional ergonomist which concludes that modifications to his work environment and/or ergonomic training would have allowed him to perform the essential functions of his original job. The report also states that Boeing could have accommodated Aldrich by transferring him to one of several positions within his skill and grade level. Viewing the factual record in the light most favorable to the plaintiff, we see a genuine issue of material fact concerning whether work modifications and/or ergonomic training were reasonable accommodations that would have permitted plaintiff to return to his original job as an assembly worker. We also find evidentiary support for plaintiffs argument that there existed two other positions to which he could have been reassigned as a" }, { "docid": "17039228", "title": "", "text": "whether USAir failed to accommodate reasonably her disability. Plaintiff challenges both of these conclusions on appeal. II. We review the district court’s grant of summary judgment de novo, viewing the facts in the light most favorable to Plaintiff. Parks v. City of Warner Robins, Ga., 43 F.3d 609, 612-13 (11th Cir.1995). Discrimination under the ADA includes “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a,disability.” 42 U.S.C. § 12112(b)(6)(A). To state a prima' facie case of disability discrimination, a plaintiff must show (1) that she has a disability; (2) that, with or without reasonable accommodations, she can perform the essential functions of the position she holds; and (3) that she was discriminated against because of her disability. See Stewart v. Happy Herman’s Cheshire Bridge, Inc., 117 F.3d 1278 (11th Cir.1997); 42 U.S.C. § 12111(8) (defining “qualified individual” the same as factor (2) above). “[T]he burden of identifying an accommodation that would allow a qualified individual to perform the job rests with that individual, as does the ultimate burden of persuasion with respect to demonstrating that such an accommodation is reasonable.” Stewart, 117 F.3d at 1286; see also Willis v. Conopco, Inc., 108 F.3d 282, 284-86 (11th Cir.1997). Once the plaintiff has met her burden of proving that reasonable accommodations exist, the defendant-employer may present evidence that the plaintiff’s requested accommodation imposes an undue hardship on the employer. Willis, 108 F.3d at 286. For the purpose of this appeal, we assume that Plaintiff has made a prima facie showing of disability. About reasonable accommodations, Plaintiff argues that, when she was placed on medical leave in 1993, she could perform the essential functions of her job as a reservations agent — including continuous typing on the keyboard — with the following accommodations: (1) a part-time position; (2) a drop keyboard; and (3) five-minute breaks every hour. She argues USAir did not reasonably accommodate her as requested. A. Part-Time Position Plaintiff argues that USAir failed to accommodate her reasonably by refusing to place her in a part-time (four hours per day) position in May" }, { "docid": "22424579", "title": "", "text": "provide any evidence that Clairson treated him differently from non-disabled employees. Holly timely appealed. II. Discussion As the district court correctly observed, disability-discrimination claims under the FCRA are analyzed using the same framework as ADA claims. See D’Angelo v. ConAgra Foods, Inc., 422 F.3d 1220, 1224 n. 2 (11th Cir.2005). We therefore consider both claims together. See id. We review de novo a grant of summary judgment on ADA claims, construing the facts in the light most favorable to the non-moving party. Lowe v. Ala. Power Co., 244 F.3d 1305, 1307 (11th Cir.2001). “Summary judgment is proper if the pleadings, depositions, and affidavits show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Id. Under the controlling law in this Circuit, “[t]he burden-shifting analysis of Title VII employment discrimination claims is applicable to ADA claims.” Earl, 207 F.3d at 1365. To establish a prima facie case of discrimination under the ADA, a plaintiff must show: (1) he is disabled; (2) he is a qualified individual; and (3) he was subjected to unlawful discrimination because of his disability. Id. It is, undisputed that Holly is disabled within the meaning of the ADA. The other two prongs, however, are contested in this appeal. A. Prong Two: “Qualified Individual’’ In order to make out the second prong of his prima facie case, Holly must prove that he is a “qualified individual”— that is, someone with a disability who, “with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8); see also Earl, 207 F.3d at 1365. “Accordingly, an ADA plaintiff must show either that he can perform the essential functions of his job without accommodation, or, failing that, ... that he can perform the essential functions of his job with a reasonable accommodation.” D’Angelo, 422 F.3d at 1229 (quotation marks omitted). ' An accommodation is “reasonable” and necessary under the ADA, in turn, only if it enables the employee to perform the essential functions of the" }, { "docid": "23310565", "title": "", "text": "the ADA, an aggrieved employee must show that he or she (1) is disabled within the meaning of the ADA, (2) is qualified (with or without reasonable accommodation) to perform the essential functions of the job at issue, and (3) has suffered an adverse employment decision because of the disability. See Treanor v. MCI Telecommunications Corp., 200 F.3d 570, 574 (8th Cir.2000). The determination of qualification involves a two-fold inquiry: (1) whether the individual meets the necessary prerequisites for the job, such as education, experience, training, and the like; and (2) whether the individual can perform the essential job functions, with or without reasonable accommodation. See Benson v. Northwest Airlines, Inc., 62 F.3d 1108, 1111-12 (8th Cir.1995) (Benson). Although the employee at all times retains the burden of persuading the trier of fact that he or she has been the victim of illegal disability discrimination, “once the plaintiff makes ‘a facial showing that reasonable accommodation is possible,’ the burden of production shifts to the employer to show that it is unable to accommodate the employee.” Id. at 1112 (quoting Mason v. Frank, 32 F.3d 315, 318-19 (8th Cir.1994)). Qualified Individual with a Disability / Reassignment as Reasonable Accommodation: We have carefully reviewed the record in the present case and the parties’ arguments on appeal. It is undisputed that Cravens is disabled within the meaning of the ADA and that, absent reasonable accommodation, she was unable to perform the essential functions of her position as Senior Operations Specialist. It is also undisputed that BCBS could not have rea sonably accommodated her within that position so as to enable her to do her job despite her blanket “no keying” restriction. Instead, the only reasonable accommodation that would have allowed Cravens to continue working for BCBS was reassignment to another position within the company. As stated supra, 42 U.S.C. § 12111(8) defines a “qualified individual with a disability” as “an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” BCBS initially argues that Cravens does not fall" }, { "docid": "18991030", "title": "", "text": "lifting requirement is an essential function of the job and plaintiff cannot perform it without reasonable accommodation, the next step the Court must address is whether plaintiff could perform this function with a reasonable accommodation. Plaintiff must produce evidence sufficient to make a facial showing that accommodation is possible, then the burden shifts to the employer to present evidence of its inability to accommodate. If the employer presents such evidence, the plaintiff must come forward with evidence showing his capabilities and suggestions for possible accommodation. White, 45 F.3d at 360. Plaintiff has failed to make even a facial showing that accommodation is possible in this case. Plaintiffs argument seems to be that because of the line bidding procedure, Delta could reasonably accommodate him by assigning him to a line where heavy lifting is not required. There are two problems with this argument. First, plaintiff overlooks Delta’s need to have all SCSAs capable of performing all job duties in ease they are needed to assist in another area. Second, reasonable accommodation does not require the employer to reassign or eliminate an essential job function. Milton v. Scrivner, Inc., 53 F.3d 1118, 1124 (10th Cir.1995) (“An employer is not required by the ADA to reallocate job duties in order to change the essential function of a job.”); see also Larkins v. CIBA Vision Corp., 858 F.Supp. 1572, 1583 (N.D.Ga.1994) (holding that elimination of essential job function not required by ADA) and 29 C.F.R. Pt. 1630, App. § 1630.2(o). Therefore, no reasonable accommodation exists that would allow plaintiff to perform the essential functions of an SCSA. Plaintiff argues that Delta’s offers of a clerical position in Atlanta is not a reasonable accommodation. However, plaintiff does not argue that he should be allowed to perform another job with Delta but only that he can perform the SCSA job if Delta makes a reasonable accommodation. Because the Court has found that there is no reasonable accommodation that can be made that would allow plaintiff to perform his former job, his argument that the offered jobs were unreasonable is irrelevant. Even if plaintiff had clearly argued" }, { "docid": "19138016", "title": "", "text": "essential functions of a job. Keith v. Cnty. of Oakland, 703 F.3d 918, 925 (6th Cir.2013). Moreover, this court has flatly held that “[a]n employee who cannot meet the attendance requirements of the job at issue cannot be considered a qualified individual protected by the ADA.” See Gantt v. Wilson Sporting Goods Co., 143 F.3d 1042, 1047 (6th Cir.1998) (internal quotation marks omitted); see also Keith, 703 F.3d at 923 (“The ADA defines ‘discriminate’ to include the failure to provide reasonable accommodation to an otherwise qualified individual with a disability, unless doing so would impose an undue hardship on the employer’s business.”). The majority states that Harris was a qualified individual based on two theories: either by eliminating the requirement of regular, predictable job attendance, or by permitting an unpredictable telecommuting arrangement that served as a workaround to regular job attendance. These “alternatives” are two sides of the same coin. Really, the EEOC’s ADA discrimination claim turns on one question, summed up by one of our sister circuits as follows: “Just how essential is showing up for work on a predictable basis?” Samper v. Providence Saint Vincent Med. Ctr., 675 F.3d 1233, 1235 (9th Cir.2012). This circuit has already addressed that question, and held that “excessive absenteeism” renders an individual unqualified under the ADA as a matter of law, Brenneman v. MedCentral Health Sys., 366 F.3d 412, 419 (6th Cir.2004), except in the “unusual case where an employee can effectively perform all work-related duties at home” without a substantial reduction in the quality of performance, Smith v. Ameritech, 129 F.3d 857, 867 (6th Cir.1997) (emphasis added). The majority cannot contend that Harris’s circumstances constitute such an “unusual case,” and so the majority instead asserts that regular, predictable attendance is not an essential function of all jobs, states that Harris’s position does not actually require showing up for work — despite the undisputed evidence in the record that many resale buyer duties could not be done at home — and notes that technology has advanced. I would instead follow this court’s well-established precedent and affirm the district court’s grant of summary" }, { "docid": "22424578", "title": "", "text": "Rights Act of 1992, Fla. Stat. § 760.01 (“FCRA”). Clairson removed the case to the United States District Court for the Middle District of Florida, and responded that Holly’s failure-to-accommodate claims must fail because he is not a “qualified individual” within the meaning of the ADA and the FCRA—that is, one who, with or without a reasonable accommodation, can perform the essential functions of his position. Clairson argued that strict punctuality, pursuant to its new attendance policy, is an “essential function” of Holly’s job that he cannot perform with or without an accommodation, and that, in any case, Holly never requested an accommodation, and therefore Clairson’s obligation to provide one was never triggered. The district court granted final summary judgment to Clairson on both of Holly’s claims. The court determined that strict punctuality, as defined by Clairson’s policy, was an essential function of Holly’s position, and that no reasonable accommodation would enable him to perform that function. The district court also sua sponte held, in the alternative, that Holly’s claims failed because he did not provide any evidence that Clairson treated him differently from non-disabled employees. Holly timely appealed. II. Discussion As the district court correctly observed, disability-discrimination claims under the FCRA are analyzed using the same framework as ADA claims. See D’Angelo v. ConAgra Foods, Inc., 422 F.3d 1220, 1224 n. 2 (11th Cir.2005). We therefore consider both claims together. See id. We review de novo a grant of summary judgment on ADA claims, construing the facts in the light most favorable to the non-moving party. Lowe v. Ala. Power Co., 244 F.3d 1305, 1307 (11th Cir.2001). “Summary judgment is proper if the pleadings, depositions, and affidavits show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Id. Under the controlling law in this Circuit, “[t]he burden-shifting analysis of Title VII employment discrimination claims is applicable to ADA claims.” Earl, 207 F.3d at 1365. To establish a prima facie case of discrimination under the ADA, a plaintiff must show: (1) he is disabled; (2) he" }, { "docid": "22376999", "title": "", "text": "job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). In order to establish a prima facie case of discrimination under the ADA, the plaintiff must show that: (1) he is disabled; (2) he was a “qualified individual” at the relevant time, meaning he could perform the essential functions of the job in question with or without reasonable accommodations; and (3) he was discriminated against because of his disability. See Reed v. Heil Co., 206 F.3d 1055, 1061 (11th Cir.2000). An employer unlawfully discriminates against a qualified individual with a disability when the employer fails to provide “reasonable accommodations” for the disability — unless doing so would impose undue hardship on the employer. 42 U.S.C. § 12112(b)(5)(A); 29 C.F.R. § 1630.9(a). An accommodation can qualify as “reasonable,” and thus be required by the ADA, only if it enables the employee to perform the essential functions of the job. See LaChance v. Duffy’s Draft House, Inc., 146 F.3d 832, 835 (11th Cir.1998). The plaintiff bears the burden of identifying an accommodation, and of dem onstrating that the accommodation allows him to perform the job’s essential functions. See Stewart v. Happy Herman’s Cheshire Bridge, Inc., 117 F.3d 1278, 1286 (11th Cir.1997); Willis v. Conopco, Inc., 108 F.3d 282, 283 (11th Cir.1997). The ADA lists as examples of reasonable accommodations “job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, ... and other similar accommodations for individuals with disabilities.” 42 U.S.C. § 12111(9)(B); see 29 C.F.R. § 1630.2(o)(2)(ii). As the list indicates, the ADA may require the employer to “reassign,” i.e., transfer, the disabled employee to a vacant position as a reasonable accommodation. The reassignment duty, however, does not require the employer to bump another employee from a position in order to accommodate a disabled employee. See Willis, 108 F.3d at 284. Nor does it require the employer to promote a disabled employee. See EEOC v. Humiston-Keeling, Inc., 227 F.3d 1024, 1029 (7th Cir.2000); Cravens v. Blue Cross & Blue Shield, 214 F.3d 1011, 1019 (8th Cir.2000); Cassidy v. Detroit" }, { "docid": "3887408", "title": "", "text": "functions of her job. Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1255-56 (11th Cir.2001); Stewart v. Happy Herman’s Cheshire Bridge, Inc., 117 F.3d 1278, 1286 (11th Cir.1997). Darwin v. Principi, No., 2006 WL 5079473, at *13 (M.D.Fla. June 15, 2006) (emphasis added). “[T]he use of the word ‘reasonable’ as an adjective for the word ‘accommodate’ connotes that an employer is not required to accommodate an employee in any manner in which that employee desires.” Stewart, supra, 117 F.3d at 1285. “[PJlaintiff does not satisfy her initial burden by simply naming a preferred accommodation — even one mentioned in the statute or regulations; she must show that the accommodation is ‘reasonable’ given her situation.” Terrell v. USAir, 132 F.3d 621, 626 (11th Cir.1998) (emphasis added) (citing Stewart, 117 F.3d at 1286). A plaintiff must prove that the accommodation is reasonable to establish a prima facie case. Willis v. Conopco, Inc., 108 F.3d 282, 283 (11th Cir.1997). In this instance, Richardson’s failure to accommodate claim does not survive summary judgment because he has not met his “burden of identifying a reasonable accommodation that would allow [him] to perform the essential functions of [his] job.” This is true because, even taking into consideration the testimony of McDaniel that is favorable to Richardson, he cannot maintain his reasonable accommodation claim. More specifically, McDaniel has testified that the sit-down tugger position involved standing for less than three hours per shift and only very limited bending. Based upon this evidence, Richardson maintains that working as a sit-down tugger would be consistent with his job-related restrictions and thus a reasonable accommodation for him. However, regardless of whether Richardson could perform the essential functions of the sit-down tugger position as characterized by McDaniel, HMA is correct that, factually, the record does not substantiate the existence of an open sit-down tugger position. As the Eleventh Circuit held in Lucas, “[b]ecause there was no vacancy at the Marietta Boulevard facility for Customer Service Representative, reassigning Lucas to that position would have required Grainger to bump another employee from it, and that is not required by the ADA.” Id. at" }, { "docid": "22862286", "title": "", "text": "He rejected LIRR’s suggestion that he bid for an alternate position and sued LIRR under FELA seeking $1,000,000 in damages for the aggravation of his asthmatic condition. At the FELA trial, Butler’s treating physician testified that Butler’s bronchial asthma had been aggravated by his work environment and was so severe that he was permanently disabled from performing his job in the Paint Shop, even if he wore a mask. The jury awarded Butler $164,000 in damages, including a specific award of $30,000 for future lost wages. Two months after the verdict, LIRR administratively terminated Butler because he was physically disqualified from performing his job. Through the BRCA, Butler grieved his termination, but his grievance appeal was denied by LIRR. Nevertheless, the BRCA continued to press Butler’s grievance until LIRR made a settlement offer to Butler to end the dispute. The BRCA failed to respond to LIRR’s settlement offer. Butler then filed the instant action on the ground that LIRR had violated the Rehabilitation Act by failing to accommodate him by placing him in an alternate position within his craft. In support of his claim, Butler filed an affidavit of his treating physician which stated that Butler could have performed the essential functions of a CAM at the time he was discharged. He also filed an affidavit of the BRCA Chairman stating that Butler could have bid for a position in an open yard at the time of his discharge. After reviewing all the evidence, the district court found that these affidavits did not create a genuine issue of fact regarding Butler’s permanently disabled condition and granted summary judgment in favor of LIRR. Vincent Gonzalez Vincent Gonzalez, a member of the International Brotherhood of Electrical Workers AFL-CIO Local 589 (“IBEW”), was employed by LIRR as an electrician for 26 years. He retired in 1982 and is collecting two pensions which together almost equal the salary he was earning in his last year of employment. In 1979, Gonzalez was injured on the job and, subsequently, filed three separate FELA actions against LIRR on the ground that he was permanently disabled from working" }, { "docid": "21100849", "title": "", "text": "begun, the plaintiff can utilize the liberal discovery procedures of the Federal Rules of Civil Procedure, including interrogatories, depositions, and document demands, to identify vacancies that existed at the pertinent time.”); Smith v. Midland Brake Inc., 180 F.3d 1154, 1174 (10th Cir.1999) (en banc) (“Even if Midland Brake failed to fulfill its interactive obligations to help secure a reassignment position, Smith will not be entitled to recovery unless he can also show that a reasonable accommodation was possible and would have led to a reassignment position.”); Willis v. Conopco, Inc., 108 F.3d 282, 285 (11th Cir.1997) (holding that the employer’s failure to interact with the employee does not preclude the employee from losing on summary judgment because the employee must still prove that a reasonable accommodation could have been made); Moses v. American Nonwovens, Inc., 97 F.3d 446, 448 (11th Cir.1996) (same); cf. Broussard v. University of California, 192 F.3d 1252, 1259 (9th Cir.1999) (“Any failure by the University to engage in an interactive process with Broussard is negated by the fact that she is not disabled under the terms of the ADA.”). Relying on certain statements in our opinion in Taylor, 184 F.3d at 296, Donahue argues that Conrail’s failure to engage in good faith in the interactive process was alone sufficient to defeat summary judgment and might even give rise to an independent cause of action. Donahue misinterprets Taylor. The Taylor panel was bound by and followed Mengine. Like Mengine, Taylor made it clear that the plaintiff in a disability discrimination case who claims that the defendant engaged in discrimination by failing to make a reasonable accommodation cannot recover without showing that a reasonable accommodation was possible. Taylor unequivocally stated that “because employers have a duty to help the disabled employee devise accommodations, an employer who acts in bad faith in the interactive process will be liable if the jury can reasonably conclude that the employee would have been able to perform the job with accommodations.” 184 F.3d at 317. Taylor added: [A]s we explained in Mengine, “The ADA, as far as we are aware, is not intended" } ]

[ { "docid": "22804050", "title": "", "text": "with intent to do grievous bodily harm. “ 10. Crimes and offenses against the laws of both countries for the suppression of slavery and slave-trading. “Extradition is also to take place for participation in any of the crimes mentioned in .this Convention or in the aforesaid Tenth Article, provided such participation be punishable by the laws of both' countries.” The Act of Congress, August 12, 1848, c. 167, § 1, 9 Stat. 302, prescribed the procedure before a commissioner or federal judicial officer to secure the apprehension and detention of fugitives whose extradition is demanded under any treaty or convention with any foreign government. This enactment was the source of § 5270, R.S., now § 651, Tit. 18, U.S.C.A.,- which provides: “If, on such hearing, he deems, the evidence sufficient to sustain the charge under the pror visions of the proper treaty or convention, he shall certify the same, together with a copy of all the testimony taken before him to the Secretary of State, that a warrant may issue upon the requisition . ..” It does not require that the act charged as a treaty offense be found to be one made criminal by the laws of the place of asylum. By Act of August 3, 1882, c. 378, § 5, 22 Stat. 216, § 655, Tit. 18, U.S.C.A., provision was made for receiving in evidence in such proceedings, depositions, warrants and other papers, such as may be received for similar purposes by' the tribunals of the foreign country from which the fugitive shall have escaped. This legislation has not been thought to dispense with the necessity o the proviso contained in the Treaty of 1842, which has generally been included in later treaties, see footnote 4, infra, but it has been deemed to have relaxed the procedure exacted by the proviso in favor, ?f the demanding country. Elias v. Ramirez, 215 U.S. 398, 409; Bingham, v. Bradley, 241 U.S. 511, 517; In re Dubroca y Paniagua, 33 F. (2d) 181; compare Collins v. Loisel, 259 U.S. 309, 315, 316. '‘The Supplementary Extradition Treaty with Great Britain of December" } ]

[ { "docid": "21021589", "title": "", "text": "that Wiebe was charged with an extraditable crime. In any event, to the extent that Wiebe may be read as supporting the government’s argument, we decline to follow it. The government also advances a practical reason for permitting “provisional arrest” warrants to be issued without probable cause. To require it to make a full showing of probable cause for a “provisional arrest,” says the government, would be to require “the complete extradition showing” at the provisional arrest stage, which would make the later extradition hearing redundant. There is no merit to this argument. We agree with the Second Circuit that “though the provisional arrest and extradition proceedings must differ in some way, the difference does not he in the requirement of probable cause.” Caltagirone, 629 F.2d at 747. The difference lies in the fact that before extraditability may be certified, the fugitive is entitled to a hearing, 18 U.S.C. § 3184, at which he may introduce evidence and raise certain affirmative defenses, for instance that the crime charged is a non-extraditable “political offense.” See Charlton v. Kelly, 229 U.S. 447, 461-62, 33 S.Ct. 945, 949-50, 57 L.Ed. 1274 (1913); M. Cherif Bassiouni, International Extradition: United States Law and Practice 545 (2d rev. ed. 1987) (listing judicial determinations to be made at extradition hearing). The government also argues that to require a showing of probable cause for the issuance of a “provisional arrest” warrant would create a “practical impossibility” be cause in many cases “the arrest must be arranged with haste to avoid further flight.” Appellee’s Br. at 36 n. 10. The result, the government argues, would “ensure[ ] that in some instances fugitives discovered in the United States will be able to flee before the foreign country can prepare that evidentiary showing [of probable cause].” Pet. for Reh’g at 11. The government claims that such a requirement would be “logically inconsistent with the limited purpose of provisional arrest, which is simply to hold an individual charged with extraditable foreign crimes for the limited time (here 40 days) granted the foreign government under the applicable treaty to gather and transmit the" }, { "docid": "23094533", "title": "", "text": "Mexico, is not a party to this proceeding. . As we said in Gusikoff: Hearings held pursuant to Section 3184 are in the nature of a preliminary hearing. (Citation omitted.) The foreign country does not have to show actual guilt, only probable cause that the fugitive is guilty. (Citations omitted.) The magistrate does not inquire into the guilt or innocence of the accused; he looks only to see if there is evidence sufficient to show reasonable ground to believe the accused guilty. (Citation omitted.) The magistrate also determines whether the offense charged is extraditable and whether the person brought before him is the one accused of crime. 620 F.2d at 462, quoting from Sayne v. Shipley, 418 F.2d 679, 685 (5th Cir. 1969), cert. denied, 398 U.S. 903, 90 S.Ct. 1688, 26 L.Ed.2d 61 (1970). . An English translation of these documents was also introduced. . English Translation of Mexican Extradition Documents [hereinafter referred to as Extradition Documents or Documents] at 35-36; 55-60. . Id. at 71-73. . Id. at 28-30. . Castillo contends that this report cannot be used to establish probable cause because it constitutes compound hearsay and is untrustworthy. Hearsay, however, is permitted in extradition proceedings. See, e. g., Bingham v. Bradley, 241 U.S. 511, 517, 36 S.Ct. 634, 637, 60 L.Ed. 1136 (1916); Shapiro v. Ferrandina, 478 F.2d 894, 902 (2d Cir.), cert. dismissed, 414 U.S. 884, 94 S.Ct. 204, 38 L.Ed.2d 133 (1973); Sayne v. Shipley, 418 F.2d 679, 685 (5th Cir. 1969), cert. denied, 398 U.S. 903, 90 S.Ct. 1688, 26 L.Ed.2d 61 (1970). Further, the credibility of the reported identification is a matter committed to the magistrate and is not reviewable on habeas corpus. See Garcia-Guillern v. United States, 450 F.2d at 191-92; Merino v. United States Marshal, 326 F.2d 5, 12 (9th Cir. 1963), cert. denied, 377 U.S. 997, 84 S.Ct. 1922, 12 L.Ed.2d 1046 (1964). . Extradition Documents at 9. . Id. at 56. . The Extradition Documents include confessions made to Mexican authorities by Escobedo and Orestes Ruiz Hernandez. Petitioners contend that these confessions cannot be used for the purpose" }, { "docid": "5899152", "title": "", "text": "or magistrate, to the end that the evidence of criminality may be heard and considered. If, on such hearing, he deems the evidence sufficient to sustain the charge under the provisions of the proper treaty or convention, he shall certify the same, together with a copy of all the testimony taken before him, to the Secretary of State, that a warrant may issue upon the requisition of the proper authorities of such foreign government, for the surrender of such person, according to the stipulations of the treaty or convention; and he shall issue his warrant for the commitment of the person so charged to the proper jail, there to remain until such surrender shall be made.” Thus, almost all international extraditions by the United States including those from the Canal Zone to any country other than Panama, are preceded by a hearing before a judicial officer. Only in the unique fact situation involved here — an extradition from the Canal Zone to Panama — is a hearing not furnished by statute. Before passing on the merits of appellant’s claim of a right to be provided a judicial hearing before extradition, it would be salutary to study the workings of Section 3184. Hearings held pursuant to Section 3184 are in the nature of a preliminary hearing. Merino v. United States Marshal, 326 F.2d 5, 12 (9 Cir. 1963). The foreign country does not have to show actual guilt, only probable cause that the fugitive is guilty. Factor v. Laubenheimer, 290 U.S. 276, 291, 54 S.Ct. 191, 78 L.Ed. 315 (1933); Charlton v. Kelly, 229 U.S. 447, 459-461, 33 S.Ct. 945, 57 L.Ed. 1274 (1913). The magistrate does not inquire into the guilt or innocence of the accused; he looks only to see if there is evidence sufficient to show reasonable ground to believe the accused guilty. Wacker v. Bisson, 370 F.2d 552, 553 (5 Cir. 1967), hereinafter 1967 Wacker. The magistrate also determines whether the offense charged is extraditable and whether the person brought before him is the one accused of crime. Ex parte Charlton, 185 F. 880, 888 (C.C. D.N.J.1911)," }, { "docid": "13401531", "title": "", "text": "told customs officials that they were traveling to Winnipeg to attend a surprise anniversary party for Anthony’s wife. They did not mention the court order or their plan to remove Tammy from the country. The Province of Manitoba commenced a criminal proceeding, alleging that the two DeSilvas, Kulekowskis, and LoBue violated Canadian national laws against kidnapping and forcible seizure. The Government of Canada asked the United States to surrender them for trial. The State Department initiated the necessary proceedings. 18 U.S.C. § 3184. Magistrate Judge Bobriek concluded that the evidence, viewed in Canada’s favor, requires extradition. In re Extradition of Kulekowskis, 881 F.Supp. 1126 (N.D.Ill.1995). Petitioners then sought writs of habeas corpus. District Judge Lindberg issued writs with respect to three of the petitioners, holding that Anthony’s status as Tammy’s custodian would have permitted Anthony to do what he did, if Tammy had been in the United States, and that the “dual criminality” requirement of the treaty with Canada therefore precludes extradition. 941 F.Supp. 741 (N.D.Ill.1996). District Judge Shadur then issued a writ in favor of the group’s fourth member, noting in a short opinion that he agrees with Judge Lindberg’s legal conclusions. We have consolidated the appeals from these decisions. Extradition depends on probable cause to believe that petitioners committed an offense covered by the extradition treaty. Bovio v. United States, 989 F.2d 255, 258 (7th Cir.1993); Eain v. Wilkes, 641 F.2d 504, 507-08 (7th Cir.1981). We cannot resolve factual disputes; for that matter, we cannot address most legal issues pertinent to the charges. Affirmative defenses not specified in the treaty may not be considered. Charlton v. Kelly, 229 U.S. 447, 33 S.Ct. 945, 57 L.Ed. 1274 (1913); Collins v. Loisel, 259 U.S. 309, 42 S.Ct. 469, 66 L.Ed. 956 (1922). “The alleged fugitive from justice has had his hearing and habeas corpus is available only to inquire whether the magistrate had jurisdiction, whether the offence charged is within the treaty and, by a somewhat liberal extension, whether there was any evidence warranting the finding that there was reasonable ground to believe the accused guilty.” Fernandez v. Phillips, 268" }, { "docid": "620893", "title": "", "text": "F.2d 5, 12 (C.D.Cal.1963); the government need only establish that competent and adequate evidence shows that the accused has committed the offenses charged pursuant to Treaty, 18 U.S.C. § 3184. It is not the purpose of an extradition hearing to determine the accused’s guilt. Collins v. Loisel, 259 U.S. 309, 316, 42 S.Ct. 469, 472, 66 L.Ed. 956 (1922). Rather, after the alleged felon has a hearing, where he is given the opportunity to establish why he is nonextraditable in the requested country, he still can have his day in court, when he can prove his innocence in a trial in the courts of the requesting country. Habeas corpus proceedings cannot take the place of a direct appeal, Fernandez, 268 U.S. at 312, 45 S.Ct. at 542, and are not a means for rehearing what the § 3184 judge has already decided, id. Thus, the scope of review of an extradition decision through habeas corpus proceedings is very limited. Habeas corpus is available only to inquire whether the magistrate had jurisdiction, whether the offence charged is within the treaty and, by a somewhat liberal extension, whether there was any evidence warranting the finding that there was reasonable ground to believe the accused guilty. Fernandez, 268 U.S. at 312, 45 S.Ct. at 542; Accord, Charlton v. Kelly, 229 U.S. 447, 33 S.Ct. 945, 57 L.Ed. 1274 (1913); Grin v. Shine, 187 U.S. 181, 23 S.Ct. 98, 47 L.Ed. 130 (1902); Prushinowski v. Samples, 734 F.2d 1016, 1018 (4th Cir.1984); Shapiro, 478 F.2d at 901; Jimenez v. Aristeguieta, 311 F.2d 547, 555 (5th Cir.1962). IV. NO ORDER TO SHOW CAUSE NECESSARY Title 28 U.S.C. § 2243 provides that a court entertaining an application for a writ of habeas corpus shall forthwith award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto. Under this provision, a district court has a duty to screen out a habeas petition which should be dismissed for lack of merit on its" }, { "docid": "9912102", "title": "", "text": "a “speedy and public trial” a right to a “speedy adjudication,” argues that it applies to extradition proceedings. This turns, obviously, on characterizing such proceedings as “criminal prosecutions” within the meaning of the sixth amendment — a characterization that goes against the weight of authority and ignores the modest function of an extradition hearing. It is not conducted under the Federal Rules of Criminal Procedure, Fed.R.Crim.P. 54(b)(5), and generally is not considered a criminal proceeding, see Charlton v. Kelly, 229 U.S. 447, 461, 33 S.Ct. 945, 57 L.Ed. 1274 (1913); Neeley v. Henkel, 180 U.S. 109, 122-23, 21 S.Ct. 302, 45 L.Ed. 448 (1901); Benson v. McMahon, 127 U.S. 457, 463, 8 S.Ct. 1240, 32 L.Ed. 234 (1880); Jhirad, 536 F.2d at 482. This reflects the nature of a certification of extraditability: whether an alleged fugitive can be extradited for an offense committed outside the United States depends on our diplomatic agreements with the requesting country. The hearing is merely to ascertain whether a treaty applies and whether the evidence of criminal conduct is sufficient to justify his extradition and trial by that country. Since the executive branch is charged with the conduct of our foreign relations, tin role of the judge or magistrate is only to ensure that this minimal showing has been made. Fernandez, 268 U.S. at 312, 45 S.Ct. 541, 69 L.Ed. 970; Shapiro v. Secretary of State, 162 U.S.App.D.C. 391, 499 F.2d 527, 531 (1974), aff’d on other grounds, 424 U.S. 614, 96 S.Ct. 1062, 47 L.Ed.2d 278 (1976). The question of guilt or innocence is left to determination in a different proceeding in another country. Nothing in the present circumstances leads us to view the sixth amendment right to a speedy trial as germane. Accord, Jhirad, 536 F.2d at 485 n. 9. There is no merit to Sabatier’s challenge to the extradition certification based on the gap in the transcript of the proceedings before the magistrate. Assuming without deciding that the Court Reporter Act, 28 U.S.C. § 753, applies to an extradition hearing, failure to comply with the Act is not prejudicial per se and" }, { "docid": "15555886", "title": "", "text": "for the commitment of the accused until the fugitive is surrendered to the foreign government or extradition denied. See 18 U.S.C. § 3184 (1970). The extraditing court also has the duty to determine whether the party brought before it is the one named in the complaint. See Fernandez v. Phillips, 268 U.S. 311, 45 S.Ct. 541, 69 L.Ed. 970 (1925); Charlton v. Kelly, 229 U.S. 447, 33 S.Ct. 945, 57 L.Ed. 1274 (1913). A finding of extradition signals the start, rather than the conclusion, of litigation of the fugitive’s guilt or innocence. As opposed to a final judgment, it is truly an interlocutory order, more akin to a preliminary hearing on criminal charges. And in that area of the law, it is well settled that a finding of lack of probable cause does not bar the state from rearresting the suspect on the same charges. Because the extra diting court does not render judgment on the guilt or innocence of the fugitive, it cannot be said that an order of extraditability constitutes a final judgment for purposes of res judicata. Not only must a judgment be final before it will have res judicata effect, but also it must have been “on the merits.” See Lawlor v. National Screen Service Corp., 349 U.S. 322, 75 S.Ct. 865, 99 L.Ed. 1122 (1955). The nature of an extradition proceeding is such that the merits of the fugitive’s guilt or innocence are not explored. As noted above, the duty of the extraditing court is to determine only whether there exists competent evidence which justifies the apprehension and commitment of the fugitive. Participation by the fugitive at the extradition proceeding is limited; he is not permitted to introduce evidence on the issue of guilt or innocence but can only offer evidence that tends to explain the government’s case of probable cause. See Charlton v. Kelly, 229 U.S. 447, 33 S.Ct. 945, 57 L.Ed. 1274 (1913). Thus, the extraditing court properly may exclude evidence of alibi, of facts contradicting the government’s proof, or of a defense such as insanity. Charlton, id. at 456, 33 S.Ct. 945;" }, { "docid": "15555885", "title": "", "text": "0.405[1]. Before the doctrine may apply, there must be (1) a valid, final judgment, (2) rendered on the merits, (3) a subsequent action involving the same parties or those in privity with them, (4) that is based on the same cause of action or claim. Unlike the usual case in which a proceeding may be analyzed according to established principles to determine whether the disposition is a final judgment, an order of extraditability defies easy classification. The function of an extraditing court is not to decide the guilt or innocence of the fugitive at law, but rather to determine whether there is “competent legal evidence which . . . would justify his apprehension and commitment for trial if the crime had been committed in [the forum] state.” Collins v. Loisel [Loisel I], 259 U.S. 309, 315, 42 S.Ct. 469, 471, 66 L.Ed. 956 (1922). If the extraditing court finds that the fugitive is extraditable on the charges alleged in the warrant, it must certify that fact to the Secretary of State and issue a warrant for the commitment of the accused until the fugitive is surrendered to the foreign government or extradition denied. See 18 U.S.C. § 3184 (1970). The extraditing court also has the duty to determine whether the party brought before it is the one named in the complaint. See Fernandez v. Phillips, 268 U.S. 311, 45 S.Ct. 541, 69 L.Ed. 970 (1925); Charlton v. Kelly, 229 U.S. 447, 33 S.Ct. 945, 57 L.Ed. 1274 (1913). A finding of extradition signals the start, rather than the conclusion, of litigation of the fugitive’s guilt or innocence. As opposed to a final judgment, it is truly an interlocutory order, more akin to a preliminary hearing on criminal charges. And in that area of the law, it is well settled that a finding of lack of probable cause does not bar the state from rearresting the suspect on the same charges. Because the extra diting court does not render judgment on the guilt or innocence of the fugitive, it cannot be said that an order of extraditability constitutes a final judgment" }, { "docid": "17625933", "title": "", "text": "need is made. Nor is the policy favoring and facilitating extradition (see Factor v. Laubenheimer, 1933, 290 U.S. 276, 54 S.Ct. 191, 78 L.Ed. 315; 1 Hyde, International Law § 310 (1922); 48 Yale L.J. 701 (1939)) frustrated by so limiting whatever deposition-subpoena privilege that may exist. An examination of the extradition treaties, statutes, and decisions reveals that the procedural framework of international extradition gives to the demanding country advantages most uncommon to ordinary civil and criminal litigation. First, 18 U.S.C. § 3190, permits the demanding country to introduce properly authenticated and certified ex parte depositions, etc., gathered at home. Second, the ex parte advantages of § 3190 are not available to the defendant, In re Luis Oteiza y Cortes, 1890, 136 U.S. 330, 10 S.Ct. 1031, 34 L.Ed. 464. Third, the defenses available to the fugitive are extremely limited: he cannot, for example, introduce evidence which contradicts the demanding country’s proof (Collins v. Loisel, 1922, 259 U.S. 309, 42 S.Ct. 469, 66 L.Ed. 956; Charlton v. Kelly, 1913, 229 U.S. 447, 33 S.Ct. 945, 57 L.Ed. 1274); evidence to establish alibi (Desmond v. Eggers, 9 Cir., 1927, 18 F.2d 503, motion to stay execution denied, 274 U.S. 722, 47 S.Ct. 657, 71 L.Ed. 1341; In re Wadge, D.C.1883, 15 F. 864); evidence of insanity (Charlton v. Kelly, 1913, 229 U.S. 447, 33 S.Ct. 945, 57 L.Ed. 1274); and evidence that the statute of limitation has run (Hatfield v. Guay, 1 Cir., 1937, 87 F.2d 358, certiorari denied 300 U.S. 678, 57 S.Ct. 669, 81 L.Ed. 883). Fourth, the actual guilt of the fugitive does not have to be established, but instead the demanding country need show only probable cause that he is guilty. Benson v. McMahon, supra. Thus, while liberal deposition procedures in civil litigation may be favored by the courts, it is obvious that because of these procedural advantages the demanding country’s need to invoke the judicial process of the United States to gather evidence of culpability would arise only in the extraordinary case. It would be a perverse doctrine indeed which would hold that where the peculiarities" }, { "docid": "22272175", "title": "", "text": "within the Pettit rule. II. Competence and Weight of the Evidence. In attacking the weight and competence of the- evidence before the extraditing magistrate, Shapiro labors under two sets of difficulties. First, the function of the extraditing magistrate is not to decide guilt or innocence but merely to determine whether there is “competent legal evidence which . would justify his apprehension and commitment for trial if the crime had been committed in that state.” Collins v. Loisel, 259 U.S. 309, 315, 42 S.Ct. 469, 471, 66 L.Ed. 956 (1922). See also Benson v. MacMahon, 127 U.S. 457, 463, 8 S.Ct. 1240, 32 L.Ed. 234 (1888); 4 Hackworth, Digest of International Law 115-18 (1942). Thus, evidence of alibi or of facts contradicting the demanding country’s proof or of a defense such as insanity may properly be excluded from the Magistrate’s hearing. Charlton v. Kelly, 229 U.S. 447, 456, 33 S.Ct. 945, 57 L.Ed. 1274 (1913). Second, the magistrate’s decision is not itself appealable. Collins v. Miller, 252 U.S. 364, 369, 40 S.Ct. 347, 64 L.Ed. 616 (1920); Jimenez v. Aristeguieta, 290 F.2d 106 (5 Cir. 1961), and review of his decision generally must be pursued by writ of habeas corpus, 4 Hackworth supra, at 174-75 (1942), which, at least in theory, is more restricted than review on appeal. The habeas judge can only “inquire whether the magistrate had jurisdiction, whether the offense charged is within the treaty and, by a somewhat liberal extension, whether there was any [competent] evidence warranting the finding that there was reasonable ground to believe the accused guilty.” Fernandez v. Phillips, 268 U.S. 311, 312, 45 S.Ct. 541, 542, 69 L.Ed. 970 (1925); see also Charlton v. Kelly, supra, 229 U.S. at 456, 33 S.Ct. 945; Gallina v. Fraser, 177 F.Supp. 856, 867 (D.Conn.1959); aff’d, 2 Cir., 278 F.2d 77 (1960), cert. denied, 364 U.S. 851, 81 S.Ct. 97, 5 L.Ed.2d 74 (1960); Jimenez v. Aristeguieta, 311 F.2d 547, 555 (5 Cir. 1962). The guiding principle is furnished by Article V of the present Treaty which provides that “Extradition shall be granted only if the evidence be" }, { "docid": "6596275", "title": "", "text": "made “only upon such evidence of guilt as, according to the laws of the country in which the fugitive or accused shall be found, would justify his detention and commitment for trial if the crime or offense had been committed there.” 43 Stat. 1698, 1699. Article XI of the Treaty provides that the evidence submitted at the hearing may include the depositions upon which the warrant of arrest issued and other competent evidence, and that the “judicial functionaries shall prescribe the method of com plying with the legal formalities of the country of which the extradition is requested.” 43 Stat. 1698, 1704. The functions and duties of the District Judge before whom the complaint is pending and will be heard are somewhat comparable to thqse of a committing magistrate; he will not, of course, adjudge the guilt or innocence of the alleged fugitive of the crimes charged by the requesting country, but he, after hearing, shall act if “he deems the evidence sufficient to sustain the charge under the provisions of the proper treaty or convention.” (Section 3184) Charlton v. Kelly, 229 U.S. 447, 33 S.Ct. 945, 57 L.Ed. 1274; Oteiza v. Jacobus, 136 U.S. 330, 334-335, 10 S.Ct. 1031, 34 L.Ed. 464. The District Court here functions in a judicial capacity; he is charged with the making of a judicial determination. In accordance with our fundamental concepts of justice and of due process, he must hold public hearings ; the accused must be given due notice of the hearings and be afforded full opportunity to be heard, with limitation only as to the issues presented for determination. Neither the District Judge, nor this Court which acts only in an ancillary capacity, is bound by either the federal criminal or civil rules when they are found to be in conflict with the terms of the treaty or of Section 3184. There is no limitation or requirement in the statute or the Treaty that the other competent proof or evidence referred to in Article XI be in possession of respondent, Consul General, at the time of the filing of the complaint," }, { "docid": "9171354", "title": "", "text": "is not entitled to a full trial at the magistrate's probable cause hearing.\" Eain , 641 F.2d at 508. The foreign government making the request is not required to try its case in a United States court. Santos , 830 F.3d at 991. And in the habeas corpus proceeding for review, \"Our scope of review on this issue is limited to determining whether there is 'any evidence' to support the magistrate's finding of probable cause.\" Eain , 641 F.2d at 509. Because an extradition hearing \"is not a trial,\" the rights of the accused are more limited. Charlton v. Kelly , 229 U.S. 447, 461, 33 S.Ct. 945, 57 L.Ed. 1274 (1913). Extradition hearings \"embody no judgment on the guilt or innocence of the accused but serve only to insure that his culpability will be determined in another and, in this instance, a foreign forum.\" Jhirad v. Ferrandina , 536 F.2d 478, 482 (2d Cir. 1976). \"[W]hat is at issue in the proceeding...is not punishability but prosecutability .\" Skaftouros , 667 F.3d at 155, quoting In re McMullen , 989 F.2d 603, 611 (2d Cir. 1993) (alterations in original). Neither the Federal Rules of Evidence nor the Federal Rules of Criminal Procedure apply to the extradition proceeding. See Fed. R. Evid. 1101(d)(3) ; Fed. R. Crim. P. 1(a)(5)(A). An accused person facing extradition does enjoy due process rights, but the process due is confined by additional evidentiary rules that restrict the defense. In re Burt , 737 F.2d at 1484 ; see also Martinez v. United States , 793 F.3d 533, 556 (6th Cir. 2015) (\"Courts have unanimously held that the government is bound by principles of due process in its conduct of extradition proceedings.\"), rev'd on other grounds , 828 F.3d 451 (6th Cir. 2016) (en banc). In particular, \"An accused in an extradition hearing has no right to contradict the demanding country's proof or to pose questions of credibility as in an ordinary trial, but only to offer evidence which explains or clarifies that proof.\" Eain , 641 F.2d at 511 ; see Charlton , 229 U.S. at" }, { "docid": "17625918", "title": "", "text": "* * he shall certify the same, together with a copy of all the testimony taken before him, to the Secretary of State * * Neither statutes nor decided cases furnish satisfactory guides as to procedures for obtaining proof upon extradition proceedings. However, the courts have compared these proceedings with “preliminary examinations which take place every day in this country before an examining or committing magistrate for the purpose of determining whether a case is made out which will justify the holding of the accused, either by imprisonment or under bail, to ultimately answer to an indictment, or other proceeding, in which he shall be finally tried upon the charge made against him.” Benson v. McMahon, 1888, 127 U.S. 457, 463, 8 S.Ct. 1240, 1243, 32 L.Ed. 234. Adhering to this analogy, the question, thus, is whether probable cause has been established to suppose the fugitive guilty, Glucksman v. Henkel, 1911, 221 U.S. 508, 512, 31 S.Ct. 704, 55 L.Ed. 830; cf. Rule 5(c) of the Federal Rules of Criminal Procedure, 18 U.S.C., i. e., a prima facie case, Charlton v. Kelly, 1913, 229 U.S. 447, 33 S.Ct. 945, 57 L.Ed. 1274. It was early recognized that upon an extradition hearing the evidence necessary to make out a prima facie case would be located in the country where the crime was committed and that the object of extradition would be defeated if the demanding country were put to the onerous task of transporting witnesses in person to the United States (Bingham v. Bradley, 1916, 241 U.S. 511, 517, 36 S.Ct. 634, 60 L.Ed. 1136). Hence, 18 U.S.C. § 3190 permits “depositions, warrants, or other papers or copies thereof” offered by the demanding government to be admitted in evidence if properly authenticated and certified that such evidence would be admissible in a like proceeding in the demanding country. The ex parte advantages of Section 3190 are not open to a defendant (In re Luis Oteiza y Cortes, 1890, 136 U.S. 330, 10 S.Ct. 1031, 34 L.Ed. 464), but he may offer limited evidence, admissible under recognized standards, to explain elements in" }, { "docid": "9171353", "title": "", "text": "not only procedural defects in the extradition procedures that are of constitutional dimension, but also the substantive conduct of the United States in undertaking its decision to extradite if such conduct violates constitutional rights.\" In re Burt , 737 F.2d 1477, 1484 (7th Cir. 1984). \"The probable cause standard applicable to an extradition hearing is the same as the standard used in federal preliminary hearings,\" which means that \"the magistrate's role is 'to determine whether there is competent evidence to justify holding the accused to await trial, and not to determine whether the evidence is sufficient to justify a conviction.' \" Hoxha v. Levi , 465 F.3d 554, 561 (3d Cir. 2006), quoting Sidali v. I.N.S. , 107 F.3d 191, 199 (3d Cir. 1997), quoting in turn Peters v. Egnor , 888 F.2d 713, 717 (10th Cir. 1989). A United States court dealing with an extradition request for an accused is obliged to resist any temptation to judge the guilt or innocence of the accused. \"It is fundamental that the person whose extradition is sought is not entitled to a full trial at the magistrate's probable cause hearing.\" Eain , 641 F.2d at 508. The foreign government making the request is not required to try its case in a United States court. Santos , 830 F.3d at 991. And in the habeas corpus proceeding for review, \"Our scope of review on this issue is limited to determining whether there is 'any evidence' to support the magistrate's finding of probable cause.\" Eain , 641 F.2d at 509. Because an extradition hearing \"is not a trial,\" the rights of the accused are more limited. Charlton v. Kelly , 229 U.S. 447, 461, 33 S.Ct. 945, 57 L.Ed. 1274 (1913). Extradition hearings \"embody no judgment on the guilt or innocence of the accused but serve only to insure that his culpability will be determined in another and, in this instance, a foreign forum.\" Jhirad v. Ferrandina , 536 F.2d 478, 482 (2d Cir. 1976). \"[W]hat is at issue in the proceeding...is not punishability but prosecutability .\" Skaftouros , 667 F.3d at 155, quoting" }, { "docid": "5899154", "title": "", "text": "affirmed 229 U.S. 447, 33 S.Ct. 945, 57 L.Ed. 1274 (1913). “[T]he procedural framework of international extradition gives to the demanding country advantages most uncommon to ordinary civil and criminal litigation.” First National City Bank of New York v. Aristeguieta, 287 F.2d 219, 226 (2 Cir. 1960). Unique rules of “wide latitude,” In re First National City Bank of New York, 183 F.Supp. 865, 871 (S.D.N.Y.1960), govern reception of evidence in Section 3184 hearings. Papers offered by the foreign county must be accepted. 18 U.S.C.A. § 3190. Deposition evidence inadmissible in a domestic preliminary hearing is admissible. 1967 Wacker 370 F.2d at 553. Hearsay evidence is admissible, United States ex rel. Karadzole v. Artukovic, 170 F.Supp. 383, 390 (S.D.Cal.1959). On the other hand, the accused cannot “introduce any evidence which would be admissible upon a trial under an issue of not guilty.” Charlton v. Kelly, supra, 229 U.S. 447, 458, 33 S.Ct. 945, 948. This is because it “would defeat the whole object” of extradition if a complete trial were necessary prior to extradition. Glueksman v. Henkel, 221 U.S. 508, 512, 31 S.Ct. 704, 55 L.Ed. 830 (1911). Accordingly, an accused cannot introduce evidence in the nature of a defense, such as insanity, Charlton v. Kelly, supra, 229 U.S. 447, 462, 33 S.Ct. 945, or alibi, Desmond v. Eggers, 18 F.2d 503, 505-506 (9 Cir. 1927). Properly he may only introduce evidence rebutting probable cause. Collins v. Loisel, 259 U.S. 309, 316, 42 S.Ct. 469, 66 L.Ed. 956 (1922). A section 3184 hearing is not directly reviewable. Wacker v. Bisson, 348 F.2d 602, 607 (5 Cir. 1965), hereinafter 1965 Wacker. It is collaterally reviewable by habeas corpus. The scope of the remedy “is narrowly circumscribed.” United States ex rel. Petrushansky v. Marasco, 215 F.Supp. 953, 956 (S.D.N.Y.1963). “The alleged fugitive * * * (on) Habeas corpus is * * * only to inquire whether the magistrate had jurisdiction, whether the offense charged is within the treaty and, * * * whether there was any evidence warranting' the finding that there was reasonable ground to believe the accused guilty.” Fernandez v." }, { "docid": "4020756", "title": "", "text": "as to entitle them to be received for similar purposes by the tribunals of the foreign country from which the accused party shall have escaped____ 18 U.S.C. § 3190. Proof of such authentication is the certificate of the principal diplomatic or consular officer of the United States resident in such foreign country. IcL Additionally, article VII(5) of the Treaty provides that any evidence given upon oath or affirmation “shall be received in evidence in any proceedings for extradition” if it is duly authenticated. Treaty, art. VII(5). Both the Haddon-Cave testimony and the Chui statement meet this authenticity requirement and were thus admissible at the extradition hearing by the terms of the relevant statute and treaties. Lui argues nonetheless that the two statements were improperly admitted because they would be inadmissible at trial under Hong Kong law. Lui argues that it is inherently unfair to certify that he is extraditable on the basis of evidence that would be inadmissible in the court where he would face trial. He also argues that failure to consider the Hong Kong High Court’s declaratory judgment (later reversed) that the Chui statement would be inadmissible would evince great disrespect for the judicial system of Hong Kong. Both of these arguments are misplaced. In probable cause hearings under American law, the evidence taken need not meet the standards for admissibility at trial. Indeed, at a preliminary hearing in federal court a “finding of probable cause may be based upon hearsay in whole or in part.” Fed.R.Crim.P. 5.1(a). This is because a “preliminary hearing is not a minitrial of the issue of guilt,” Coleman v. Burnett, 477 F.2d 1187, 1201 (D.C.Cir.1973); rather, “its function is the more limited one of determining whether probable cause exists to hold the accused for trial.” Barber v. Page, 390 U.S. 719, 725, 88 S.Ct. 1318, 1322, 20 L.Ed.2d 255 (1968). An extradition hearing similarly involves a preliminary examination of the evidence and is not a trial. Charlton v. Kelly, 229 U.S. 447, 461, 33 S.Ct. 945, 949-50, 57 L.Ed. 1274 (1913); Romeo v. Roache, 820 F.2d 540, 544 (1st Cir.1987). An extradition" }, { "docid": "15326415", "title": "", "text": "United States, 267 U.S. 132, 160, 45 S.Ct. 280, 69 L.Ed. 543 (1925). An extradition hearing is not a criminal proceeding, and the person whose return is sought is not entitled to the rights available in a criminal trial. For example, the rules of evidence and civil procedure that govern federal court proceedings heard under the authority of Article III of the United States Constitution do not apply in extradition hearings. FED. R. EVID. 1101(d)(3); In the Matter of the Extradition of Smyth, 61 F.3d 711, 720-21 (9th Cir.1995). Additionally, the right of the fugitive to present evidence on his own behalf is limited: “he is not permitted to introduce evidence on the issue of guilt or innocence, but can only offer evidence that tends to explain the government’s case of probable cause.” Hooker v. Klein, 573 F.2d 1360, 1368 (9th Cir.1978). “[Ejvidence of alibi or of facts contradicting the demanding country’s proof or of a defense such as insanity may properly be excluded from the Magistrate’s hearing.” Shapiro v. Ferrandina, 478 F.2d 894, 901 (2d Cir.1973), citing Charlton v. Kelly, 229 U.S. 447, 456, 33 S.Ct. 945, 57 L.Ed. 1274 (1913); but see In re Extradition of Gonzalez, 52 F.Supp.2d 725, 739 (W.D.La.1999) (“Evidence of an alibi defense is ... admissible if it negates or obliterates probable cause, but not if it merely controverts the evidence of the requesting country”). The distinction between evidence that “explains” and evidence that “contradicts” is a murky one. One court notes that, although the difference is difficult to articulate, the purpose is reasonably clear: “to afford an accused person the opportunity to present reasonably clear-cut proof which would be of limited scope and have some reasonable chance of negating a showing of probable cause.... [T]he ex-traditee cannot be allowed to turn the extradition hearing into a full trial on the merits.” In the Matter of the Extradition of Sindona, 450 F.Supp. 672, 685 (S.D.N.Y.1978). That court found defendant’s testimony that fraudulent wire transfers in Italy were in fact legal loans was contradictory rather than explanatory and thus not admissible at the extradition hearing." }, { "docid": "13401532", "title": "", "text": "of the group’s fourth member, noting in a short opinion that he agrees with Judge Lindberg’s legal conclusions. We have consolidated the appeals from these decisions. Extradition depends on probable cause to believe that petitioners committed an offense covered by the extradition treaty. Bovio v. United States, 989 F.2d 255, 258 (7th Cir.1993); Eain v. Wilkes, 641 F.2d 504, 507-08 (7th Cir.1981). We cannot resolve factual disputes; for that matter, we cannot address most legal issues pertinent to the charges. Affirmative defenses not specified in the treaty may not be considered. Charlton v. Kelly, 229 U.S. 447, 33 S.Ct. 945, 57 L.Ed. 1274 (1913); Collins v. Loisel, 259 U.S. 309, 42 S.Ct. 469, 66 L.Ed. 956 (1922). “The alleged fugitive from justice has had his hearing and habeas corpus is available only to inquire whether the magistrate had jurisdiction, whether the offence charged is within the treaty and, by a somewhat liberal extension, whether there was any evidence warranting the finding that there was reasonable ground to believe the accused guilty.” Fernandez v. Phillips, 268 U.S. 311, 312, 45 S.Ct. 541, 542, 69 L.Ed. 970 (1925) (Holmes, J.); see also Eain, 641 F.2d at 508. Following the chain of inquiries established by Fernandez, we first examine the magistrate judge’s jurisdiction. The hearing was held in this case in response to the State Department’s decision to respect Canada’s request that petitioners be surrendered for trial. Section 3184, which has existed in roughly the same form since 1878, provides that any justice or judge of the United States, or any magistrate authorized so to do by a court of the United States, or any judge of a court of record of general jurisdiction of any State ... shall certify the [charge], together with a copy of all testimony taken before him, to the Secretary of State, that a warrant may issue upon the requisition of the proper authorities of such foreign government, for the surrender of such person, according to the stipulations of the treaty or convention^] The magistrate judge certified the charges under § 3184 and left to the Secretary of" }, { "docid": "5899153", "title": "", "text": "merits of appellant’s claim of a right to be provided a judicial hearing before extradition, it would be salutary to study the workings of Section 3184. Hearings held pursuant to Section 3184 are in the nature of a preliminary hearing. Merino v. United States Marshal, 326 F.2d 5, 12 (9 Cir. 1963). The foreign country does not have to show actual guilt, only probable cause that the fugitive is guilty. Factor v. Laubenheimer, 290 U.S. 276, 291, 54 S.Ct. 191, 78 L.Ed. 315 (1933); Charlton v. Kelly, 229 U.S. 447, 459-461, 33 S.Ct. 945, 57 L.Ed. 1274 (1913). The magistrate does not inquire into the guilt or innocence of the accused; he looks only to see if there is evidence sufficient to show reasonable ground to believe the accused guilty. Wacker v. Bisson, 370 F.2d 552, 553 (5 Cir. 1967), hereinafter 1967 Wacker. The magistrate also determines whether the offense charged is extraditable and whether the person brought before him is the one accused of crime. Ex parte Charlton, 185 F. 880, 888 (C.C. D.N.J.1911), affirmed 229 U.S. 447, 33 S.Ct. 945, 57 L.Ed. 1274 (1913). “[T]he procedural framework of international extradition gives to the demanding country advantages most uncommon to ordinary civil and criminal litigation.” First National City Bank of New York v. Aristeguieta, 287 F.2d 219, 226 (2 Cir. 1960). Unique rules of “wide latitude,” In re First National City Bank of New York, 183 F.Supp. 865, 871 (S.D.N.Y.1960), govern reception of evidence in Section 3184 hearings. Papers offered by the foreign county must be accepted. 18 U.S.C.A. § 3190. Deposition evidence inadmissible in a domestic preliminary hearing is admissible. 1967 Wacker 370 F.2d at 553. Hearsay evidence is admissible, United States ex rel. Karadzole v. Artukovic, 170 F.Supp. 383, 390 (S.D.Cal.1959). On the other hand, the accused cannot “introduce any evidence which would be admissible upon a trial under an issue of not guilty.” Charlton v. Kelly, supra, 229 U.S. 447, 458, 33 S.Ct. 945, 948. This is because it “would defeat the whole object” of extradition if a complete trial were necessary prior to extradition. Glueksman" }, { "docid": "5899155", "title": "", "text": "v. Henkel, 221 U.S. 508, 512, 31 S.Ct. 704, 55 L.Ed. 830 (1911). Accordingly, an accused cannot introduce evidence in the nature of a defense, such as insanity, Charlton v. Kelly, supra, 229 U.S. 447, 462, 33 S.Ct. 945, or alibi, Desmond v. Eggers, 18 F.2d 503, 505-506 (9 Cir. 1927). Properly he may only introduce evidence rebutting probable cause. Collins v. Loisel, 259 U.S. 309, 316, 42 S.Ct. 469, 66 L.Ed. 956 (1922). A section 3184 hearing is not directly reviewable. Wacker v. Bisson, 348 F.2d 602, 607 (5 Cir. 1965), hereinafter 1965 Wacker. It is collaterally reviewable by habeas corpus. The scope of the remedy “is narrowly circumscribed.” United States ex rel. Petrushansky v. Marasco, 215 F.Supp. 953, 956 (S.D.N.Y.1963). “The alleged fugitive * * * (on) Habeas corpus is * * * only to inquire whether the magistrate had jurisdiction, whether the offense charged is within the treaty and, * * * whether there was any evidence warranting' the finding that there was reasonable ground to believe the accused guilty.” Fernandez v. Phillips, 268 U.S. 311, 312, 45 S.Ct. 541, 542, 69 L.Ed. 970 (1925). Basically appellant wants what he would be entitled to if 18 U.S.C.A. § 3184 were applicable — a judicial hearing which is automatic, and which inquires into the same things a Section 3184 hearing does. In addition, appellant wants the court to require a finding not presently required in Section 3184 hearings: whether the accused tyas in the demanding country at the time the alleged crime was committed. We hold that Sections 5081 through 5092 of Title 6 of the Canal Zone Code do not violate the due process clause. In the framework of the special relationship between the Republic of Panama and the Canal Zone we think the long established procedure applicable to this case under the treaty and statutory provisions cannot be deemed invalid under the Constitution. They provide for the determination by the Chief Executive of the Canal Zone that the crime charged was committed and that the person to be extradited committed it. This determination is subject to" } ]

[ { "docid": "13925580", "title": "", "text": "not to vary or contradict the terms of the contract, but to aid in interpreting it and to ascertain with greater certainty what was intended. When an agreement is silent or obscure as to a particular subject, the law and usage become a portion of it and constitute a supplement to it and interpret it. “It follows from what is said above that if the language of a contract is ambiguous, uncertain, incomplete or inconsistent, evidence of usage or custom is admissible to show the meaning intended by the parties.” 42 Tex.Jur. 843-844, Usages and Customs, §§ 14, 15. The foregoing rule has been recognized by this court. Eustis Packing Co. v. Martin, 5 Cir., 1941,122 F.2d 648; Black v. Interstate Commerce Commission, 5 Cir., 1948, 167 F.2d 825. Neither the letter proposal nor the letter acceptance specifically provides that the quantity of crushed stone should be determined by measurement in place by the United States Engineers, as contended by the prime contractors, or by loose truck measurement, as claimed by the subcontractor. The evidence of custom and usage is admissible to supply that which the writings omit. The prime contractors, in asserting that the subcontract provision, “this work to be performed in accordance with specifications and to meet the screen analysis of the specifications”, incorporates into the subcontract the prime contract provisions for measurement of the crushed rock, would give to the words a meaning that we cannot find in them. We regard the quoted language as relating to the manner of the performance of the work, not the manner of measuring the quantity of rock delivered by the subcontractor nor the basis for computing the amount to be paid to the subcontractor. If these matters are to be governed by the prime contract provisions it must be by reason of something other than a requirement for the manner of performance of the work. It is apparent that the undertakings of prime contractors to the United States with respect to the crushed rock is not at all the same as the obligation assumed by the subcontractor to the prime" } ]

[ { "docid": "11015590", "title": "", "text": "transaction construed as one instrument); Hardeman v. Parish, 730 S.W.2d 813, 814 (Tex.Ct.App.1987) (same). Therefore, the plaintiff has not stated a claim upon which relief can be granted under the controlling state law. 5. Restraint of Trade Mr. Booth seeks injunctive and monetary relief by claiming that the non-competition agreement he entered into as a part of his employment agreement is an unlawful restraint of trade under K.S.A. § 50-101 et seq. He argues that he is entitled to relief even though the defendant did not attempt to enforce this agreement. According to the plaintiff, he did not seek employment in his chosen occupation after he was terminated because of the noncom-petition clause. Even assuming for the purposes of this motion that Mr. Booth is entitled to pursue this claim despite the fact that EDS never sought to enforce the noncompetition clause against him, Kansas does not recognize an independent private cause of action for violations of K.S.A. § 50-101. See Barton v. Hackney, 167 Kan. 754, 759-60, 208 P.2d 590 (1949) (noncompetition contract entered upon sale of restaurant not void on account of being in violation of statute against restraint of trade). Although such a claim may be viable as a matter of common law, the pretrial order, which is now binding on the parties, mentions only the statutory basis for the plaintiff’s claim, without alleging any common law justification. Mr. Booth’s attempt to support this claim with citations to Texas statutes and case law is not persuasive. EDS is entitled to summary judgment on this claim as it has been pled by the plaintiff. 6. Duress and Extortion Claim The plaintiff contends that EDS should be held liable to him because it threatened to disclose, and in fact did disclose, that plaintiff was indebted to the defendant on the promissory note. Additionally, Mr. Booth alleges that EDS improperly withheld a release of the noncom-petition agreement until he would agree to acknowledge liability for the promissory note. Plaintiff concedes, however, that it is not duress or extortion merely to enforce or threaten to enforce one’s legal rights, such as" }, { "docid": "14977968", "title": "", "text": "argue, and did argue, that it was not satisfied that Aerotronies was entitled to the extraterritorial commissions. Likewise, the jury was free to accept or - reject this argument. By returning a verdict in favor of Aerotronies, the jury implicitly determined that Pneumo was, or should have been, satisfied. - 2. Procuring Cause Pneumo argues the district court erred in refusing its proposed instruction B which required the jury to find that Aerotronies’ efforts with McDonnell Douglas were the “procuring cause” of any extraterritorial orders before it was' entitled to commissions on those orders. Pneumo argues that in both Ohio and Michigan, an agent is not entitled to a commission on a sale unless he was the procuring cause of that sale. We disagree. In both Michigan and Ohio, the procuring cause doctrine is limited by the terms of a contract; it cannot be used to supplant or contradict the terms of a contract entered into between parties. Davis & Tatera, Inc. v. Gray-Syracuse, Inc., 796 F.Supp. 1078, 1084 (S.D.Ohio 1992). The contract language governs a sales agent’s entitlement to commissions. Ditzik v. Schaffer Lumber Co., 139 Mich.App. 81, 360 N.W.2d 876, 881 (1984) (per curiam); Davis & Tatera, Inc., 796 F.Supp. at 1083. Accordingly, if the terms of the agreement entitle the sales agent to a commission regardless of whether it was a procuring cause, the procuring cause doctrine does not apply. Ditzik, 360 N.W.2d at 881. Thus, determining whether the procuring cause doctrine applies requires an examination of the contract language, in this case paragraph 7B. The NWL and the CPC agreements simply state that Aerotronies is entitled to a commission with respect to extraterritorial sales if its efforts with a prime contractor within its territory in fact resulted in the purchase order. As the district court noted in its summary judgment ruling, neither agreement requires Aerotronies’ efforts with the prime contractor to be new efforts. Addendum at Ad-8. Therefore, neither agreement requires Aerotronies to be the procuring cause of the secondary sales and the procuring cause doctrine is inapplicable. Furthermore, the purpose of the procuring cause doctrine" }, { "docid": "4183039", "title": "", "text": "allocate territory vertically, in fact, resulted in a horizontal territorial allocation between Hobart and its own distributors. Such an arrangement must be treated as it operated in practice rather than “as arranged by skillful drafting”. Cf. Simpson v. Union Oil Company of California, 377 U.S. 13, 84 S.Ct. 1051, 12 L.Ed.2d 98 (1964). Hobart argues vigorously that this distribution agreement, signed in 1964, containing a primary responsibility clause, is not a contractual restraint in violation of § 1 of the Sherman Act. Hobart asserts that a contract explicitly restricting Gilliland to sell in certain areas must be shown. Furthermore, Hobart argues that there could be no contract preventing Gilliland from selling in any area, since Gilliland sold Hobart products outside the assigned territory. Hobart contends that the only way Gilliland can prove the existence of a contract is for Gilliland to show that by not selling outside the assigned territory he thereby gave its assent to the terms of the Hobart distribution agreement. For three reasons Hobart’s views as to whether an illegal agreement exists are erroneous. First, a primary responsibility clause in a distribution agreement, when the manufacturer has parted with title, dominion, and risk over the product, can be enlarged by a silent understanding to restrain trade in violation of § 1 of the Sherman Act, United States v. Arnold, Schwinn and Company, 388 U.S. 365, 382, 87 S.Ct. 1856, 18 L.Ed.2d 1249 (1967). A silent understanding can be shown by the course of conduct of the parties, United States v. Schrader’s Son, Inc., 252 U.S. 85, 99, 100, 40 S.Ct. 251, 253, 64 L.Ed. 471 (1920). Hobart’s intra-office correspondence, which was introduced into evidence, shows clearly that Hobart considered the distribution agreement containing the primary responsibility clause to have the same effect as the prior distribution agreement which contained outright territorial restrictions. Second, in United States v. Parke, Davis and Company, 362 U.S. 29, 80 S.Ct. 503, 4 L.Ed.2d 505 (1960), a case involving a manufacturer’s refusal to deal with his distributors, the Supreme Court held that the “essential agreement, combination, or conspiracy” necessary for a violation" }, { "docid": "22982404", "title": "", "text": "“beyond its own right of way”. Luton Mining Co. v. Louisville & N. R. Co., 276 Ky. 321, 123 S.W.2d 1055, 1060. Nor do we find basis in the contract for Booth-Kelly’s argument that the 1941 contract gave it nothing new, and added nothing to Southern Pacific’s obligations under the old contract. The 1941 contract gave Booth-Kelly the new right to move cars in certain cases. It also contained express waivers of certain earlier breaches by Booth-Kelly of some of the clearance provisions under the old agreement. Another contention of Booth-Kelly is that there should be read into the portion of paragraph 7 which we have quoted herein the qualification that the indemnity could be claimed only for accidents occurring while Southern Pacific was serving Booth-Kelly. The train on which Powers was injured was actually delivering logs to another shipper. This argument is based upon the fact that in another portion of paragraph 7, providing for responsibility for risk of fire, the indemnity there called for related to damage “arising from fire caused by locomotives operated by Railroad on said Track * * * for the purpose of serving said Industry”. It is argued that this reference to “serving said Industry’-’ should be carried into the other portion of paragraph 7. We do not think so. The very fact this limitation is mentioned in the special case of fire, but omitted in the general paragraph, suggests an intentional variation. Certainly the reasons for securing adequate clearances for the protection of employees were of equal importance for movements to others as for movements to Booth-Kelly. It does not seem reasonable that the parties would intend that such a limitation should be inserted. The portion of the contract which we have had occasion here to construe is clear, and we think, unambiguous. We think the construction thus urged by Booth-Kelly is not warranted. Other contentions of Booth-Kelly, such as that there was a modifying custom or practice between the parties, that Southern Pacific had waived Booth-Kelly’s default, and that Southern Pacific was guilty of other acts of negligence, were determined adversely by" }, { "docid": "710555", "title": "", "text": "the Agreement. The plaintiff has failed to identify any authority for the proposition that, absent a contractual obligation, a party choosing to exercise its right to terminate a contract must notify the other party of its reasons for doing so. In any event, Gyp-Crete’s letter to McKeown of August 5, 1981 does refer to paragraph 14, see Findings of Fact 1132, supra, and McKeown clearly was aware that the termination was prompted by the death of the founder, operator, and 99% owner of McKeown. McKeown also contends that the court should ignore paragraph 14 in its entirety, because the prohibition in paragraph 14 on the transfer of a majority of McKeown’s stock conflicts with paragraph 15, which permits Mr. McKeown to assign the Shares to his sons Gerald and John Jr. Applying the proposition that, where two conflicting provisions in a contract apply to the same conduct, the more specific provision controls, see 3 Corbin, Contracts, § 547, at 172-178 (rev. ed. 1971), McKeown argues that paragraph 15 is the more specific provision and, consequently, paragraph 14 should be ignored. The law requires that, whenever reasonably possible, courts should interpret contract language so as to reconcile arguably contradictory clauses. See State Farm Mutual Automobile Insurance Co. v. Hedberg, 236 F.Supp. 797, 801 (D.Minn. 1964) (applying Minnesota law), aff'd, 350 F.2d 924 (8th Cir.1965); Corbin, supra, at 173 n. 17. Contracts should be read to minimize conflicts, and one clause should yield to another only where the two are unmistakably inconsistent. Id. Applying this rule to the Agreement, it is apparent that a conflict between paragraphs 14 and 15 exists only when triggered by one event — the transfer of the Shares or control of McKeown to Gerald McKeown or John McKeown, Jr. Since that event did not occur, the court can and must give full effect to both paragraphs, and paragraph 14 must be read to mean exactly what it says — that any substantial change in the control of McKeown, such as that which occurred upon Mr. McKeown’s death, triggers Gyp-Crete’s right to terminate the distributorship. See Medtronic, Inc." }, { "docid": "22839656", "title": "", "text": "trade practice and custom to create an ambiguity where a contract was not reasonably susceptible of differing interpretations at the time of contracting. Trade practice evidence is not an avenue for a party to avoid its contractual obligations by later invoking a conflicting trade practice. R.B. Wright and similarly decided cases stand for this important proposition of contract interpretation law. Instead, a court should accept evidence of trade practice only where a party makes a showing that it relied reasonably on a competing interpretation of the words when it entered into the contract. Without such a showing, evidence that some practitioners customarily accomplish tasks differently from the manner called for by the contract will not overcome the clear language of the contract. This requirement helps ensure that the evidence of trade practice and custom truly reflects the intent of the contracting party, and avoids according undue weight to that party’s purely post hoc explanations of its conduct. The Gholson rule and these principles of contract interpretation find general support in authoritative legal commentaries. The commentaries agree that courts should use evidence of trade practice and eustom not only to determine the meaning of an ambiguous provision, but to determine whether a contract provision is ambiguous in the first instance. See, e.g., Restatement (Second) of Contracts § 220 emt. d (1981) (“[UJsage relevant to interpretation is treated as part of the context of an agreement in determining whether there is ambiguity or contra-diction____”); 3 Arthur L. Corbin, Corbin on Contracts § 555 at 232-39 (1960) (“Seldom should the court hold that the written words exclude evidence of the custom, since even what are often called ‘plain’ meanings are shown to be incorrect when all the circumstances of the transaction are known; and usages and customs are a part of those circumstances by which the meaning of words is to be judged.”); 5 Samuel Williston, Williston on Contracts § 648 at 6-7 (3d ed. 1961) (“Usage is an ordinary means of proving the local or technical meaning of language, and even language which is normally clear and unambiguous may be shown by" }, { "docid": "710556", "title": "", "text": "paragraph 14 should be ignored. The law requires that, whenever reasonably possible, courts should interpret contract language so as to reconcile arguably contradictory clauses. See State Farm Mutual Automobile Insurance Co. v. Hedberg, 236 F.Supp. 797, 801 (D.Minn. 1964) (applying Minnesota law), aff'd, 350 F.2d 924 (8th Cir.1965); Corbin, supra, at 173 n. 17. Contracts should be read to minimize conflicts, and one clause should yield to another only where the two are unmistakably inconsistent. Id. Applying this rule to the Agreement, it is apparent that a conflict between paragraphs 14 and 15 exists only when triggered by one event — the transfer of the Shares or control of McKeown to Gerald McKeown or John McKeown, Jr. Since that event did not occur, the court can and must give full effect to both paragraphs, and paragraph 14 must be read to mean exactly what it says — that any substantial change in the control of McKeown, such as that which occurred upon Mr. McKeown’s death, triggers Gyp-Crete’s right to terminate the distributorship. See Medtronic, Inc. v. Catalyst Research Corp., 518 F.Supp. 946, 951 (D.Minn.) (applying Minnesota law) (“In construing the contract, the words must be given their plain and ordinary meaning ... and each word of the contract should be given effect whenever possible” [emphasis in original]), aff'd, 664 F.2d 660 (8th Cir.1981). The plaintiff has identified no authority in the law of Minnesota or any other arguably relevant jurisdiction that would permit the court to read out of the contract paragraph 14 in its entirety, merely because in one circumstance — the transfer of shares to Gerald and John Jr. — paragraph 15 would create an exception to the general rule of paragraph 14. This interpretation of paragraphs 14 and 15 is based upon the language of the Agreement alone. However, it amply is supported by evidence presented at trial concerning the intent of the parties in drafting the clauses at issue. The defendant presented uncontroverted testimony that the parties intended and understood that Gyp-Crete’s continued performance under the Agreement was conditioned upon Mr. McKeown’s continued involvement in, and" }, { "docid": "15597545", "title": "", "text": "contrast, despite the plain language, interpreted the provision as only requiring the replacement of defective, broken, or burned out lamps, and urged that the term “relamping” would have been used if the parties had intended to require the replacement of all lamps, as was the industry practice. Id. at 749-50. The court concluded that the contractor had introduced sufficient evidence of trade practice and custom, and reasonable reliance on that practice and custom, to show that the pertinent contract specifications were “susceptible to two different reasonable interpretations.” Id. at 753. The court based this determination on the absence of the term “relamping” from the contract. Id. This case is quite unlike Metric. Here there is no term in the contract that has an accepted industry meaning different from its ordinary meaning. Nor is there, as in Metric itself, a term with an accepted industry meaning that was omitted from the contract. In short, Jowett has not established that there is an ambiguity in the contract language by reference to trade practice and custom. See Gholson, Byars & Holmes Constr. Co. v. United States, 173 Ct.Cl. 374, 351 F.2d 987, 999 (1965) (“[T]rade usage or custom may show that language ... has, in fact, a meaning different from its ordinary meaning”); see also 5 Samuel Williston, Williston on Contracts § 648, at 6-7 (3d ed. 1961) (“Usage is an ordinary means of proving the local or technical meaning of language, and even language which is normally clear and unambiguous may be shown by usage to bear, under the circumstances of the case, a meaning different from its normal sense.”); 3 Arthur L. Corbin, Corbin on Contracts § 555, at 233-34 (1960) (noting that trade “evidence often establishes a special and unusual meaning definitely in conflict with the more common and ordinary usages”). As we understand it, Jowett nonetheless makes three distinct trade practice arguments based on its affidavits. First, Jowett urges that there was an industry practice of not insulating air supply ducts located in ceilings. This argument relies on nearly identical paragraphs in two affidavits which affirm that it is" }, { "docid": "4270247", "title": "", "text": "that the survival of such right would in effect deprive the subsequent statute of its efficacy; in other words, render its provisions nugatory.” See Shaw v. Railroad Co., 1879, 101 U.S. 557, 565, 25 L.Ed. 892; American District Telegraph Co. v. Kittleson, 8 Cir„ 1950, 179 F.2d 946, 953; 3 Sutherland, Statutes and Statutory Construction (3rd ed. 1943) 164-182. Nor is a rate contract automatically nullified merely because the return is low. In this instance there seems no doubt but that the Ideal Cement account represented important new business to Mobile and to United and that the long range price concession was made in order to obtain it. Cf. Arkansas Natural Gas Co. v. Arkansas Railroad Commission, 1923, 261 U.S. 379, 43 S.Ct. 387, 67 L.Ed. 705; Wichita Railroad & Light Co. v. Court of Industrial Relations, 1923, 113 Kan. 217, 214 P. 797. And the fact that the Commission can change the contract does not render it void for lack of mutuality. Southern Utilities Co. v. City of Palatka, 1925, 268 U.S. 232, 45 S.Ct. 488, 69 L.Ed. 930; Hinkel Dry Goods Co. v. Wichison Industrial Gas Co., 10 Cir., 1933, 64 F.2d 881. With reference to the pertinent legislative history regarding such contract as before us, all three of the parties quote the colloquy between Congressman Halleck and Mr. Booth, appearing for the Illinois Public Service Commission on the bill which immediately preceded the Natural Gas Act. The accurate report of this reads: “Mr. Halleck. Of course, it is your idea that if this bill should pass and the Commission be given the authority contemplated in this bill, that the contract could be superseded or invalidated insofar as attempt to fix the rates of charges is concerned ? “Mr. Booth. That certainly would be my position and we certainly would ask the Federal Power Commission promptly to consider the question as to whether or not the Natural Gas Pipeline Co. of America is earning an unfair return upon the fair value of its property.” (Emphasis supplied.) Hearings, House Committee on Interstate and Foreign Commerce, 75th Cong. 1st Sess.," }, { "docid": "15597546", "title": "", "text": "Byars & Holmes Constr. Co. v. United States, 173 Ct.Cl. 374, 351 F.2d 987, 999 (1965) (“[T]rade usage or custom may show that language ... has, in fact, a meaning different from its ordinary meaning”); see also 5 Samuel Williston, Williston on Contracts § 648, at 6-7 (3d ed. 1961) (“Usage is an ordinary means of proving the local or technical meaning of language, and even language which is normally clear and unambiguous may be shown by usage to bear, under the circumstances of the case, a meaning different from its normal sense.”); 3 Arthur L. Corbin, Corbin on Contracts § 555, at 233-34 (1960) (noting that trade “evidence often establishes a special and unusual meaning definitely in conflict with the more common and ordinary usages”). As we understand it, Jowett nonetheless makes three distinct trade practice arguments based on its affidavits. First, Jowett urges that there was an industry practice of not insulating air supply ducts located in ceilings. This argument relies on nearly identical paragraphs in two affidavits which affirm that it is not “standard practice in the greater Baltimore/Washington area” to insulate air supply ducts in ceilings. However, affidavits describing a supposed common industry practice of not insulating air supply ducts in ceilings are simply irrelevant where the language of the contract is unambiguous on its face. It is well-established that the government can vary from the norm in the trade when contracting for goods and services. R.B. Wright Constr. Co. v. United States, 919 F.2d 1569, 1572-73 (Fed.Cir.1990). Second, again relying on the affidavits, Jowett urges, in somewhat convoluted fashion, that there was a well-established practice of not applying duct insulation to ceilings which form plenums, and that the contract exclusion in paragraph 3.3j for “duct insulation on ... ceilings which form plenums” was unnecessary as applied to the ceilings themselves. Therefore, says Jowett, paragraph 3.3j should be read to refer to the ducts within the ceding spaces. However, there is nothing unusual in writing established trade practice into the contract as a specific exception. Indeed, including such specific language is highly desirable. In any event," }, { "docid": "23036448", "title": "", "text": "of public necessity. Thus, just as our mightiest corporations and industries — entities which greatly affect the public interest — are bound by arbitration clauses in labor and commercial matters, here the parties and the FPC are bound to the arbitration clause under the dictates of both federal policy and the contract language. The Commission’s apparent position that it possesses specialized knowledge gained from experience in the regulation of industry, e. g., Texas Gas Corp. v. Shell Oil Co., 363 U.S. 263, 80 S.Ct. 1122, 4 L.Ed.2d 1208 (1960); Michigan Consolidated Gas Co. v. Panhandle Eastern Pipeline Co., 226 F.2d 60 (6th Cir. 1955), cert. denied, 350 U.S. 987, 76 S.Ct. 473, 100 L.Ed. 853 (1956), which knowledge entitles its interpretation of contract provisions dealing with natural gas to greater weight than that of a court or a board of arbitrators, is of no avail. It misses what I consider to be the controlling issue at bar: it is not whose interpretation of the contract provisions ultimately prevails; rather, it is whether the parties and the Commission should be bound by their agreement as to the procedure for the initial resolution of interpretation conflicts. The Commission’s reliance on Sunray Mid-Continent Oil Co. v. F. P. C., 364 U.S. 137, 80 S.Ct. 1392, 4 L.Ed.2d 1623 (1970), and Sun Oil Co. v. F. P. C., 364 U.S. 170, 80 S.Ct. 1388, 4 L.Ed. 1639 (1960), is, in my view, irrelevant because these cases deal with the interpretation, not the procedure for initial interpretation. Only after the arbitrators’ decision is reached should the Commission, and ultimately the courts, be permitted to decide any possible conflict between the legal precept that “[i]t is the arbitrator’s construction which was bargained for,” United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 599, 80 S.Ct. 1358, 1362, 4 L.Ed.2d 1424 (1960), and the FPC contention that because the three matters submitted to arbitration are matters requiring special expert knowledge, the arbitrators’ interpretation will not be honored. If the Commission wishes to commit its expert knowledge to the interpretation of all contractual provisions" }, { "docid": "22982405", "title": "", "text": "operated by Railroad on said Track * * * for the purpose of serving said Industry”. It is argued that this reference to “serving said Industry’-’ should be carried into the other portion of paragraph 7. We do not think so. The very fact this limitation is mentioned in the special case of fire, but omitted in the general paragraph, suggests an intentional variation. Certainly the reasons for securing adequate clearances for the protection of employees were of equal importance for movements to others as for movements to Booth-Kelly. It does not seem reasonable that the parties would intend that such a limitation should be inserted. The portion of the contract which we have had occasion here to construe is clear, and we think, unambiguous. We think the construction thus urged by Booth-Kelly is not warranted. Other contentions of Booth-Kelly, such as that there was a modifying custom or practice between the parties, that Southern Pacific had waived Booth-Kelly’s default, and that Southern Pacific was guilty of other acts of negligence, were determined adversely by the district court, and its findings in that regard are sustained by ample evidence. Since our view of the contract requires a holding that Southern Pacific is entitled to recover the full amount of its loss, or $46,-568.99, as stated in part “B” of the pretrial order, and as demanded in the second paragraph of the prayer of its complaint, the cause is remanded with directions to modify the judgment accordingly. Southern Pacific shall recover its costs in this court. . Prior to paying this sum to Powers, Southern Pacific obtained from Booth-Kelly an agreement that such settlement with Powers should be without prejudice to the rights of the parties herb as-against each other. . This part of the paragraph reads: “Industry also agrees to indemnify and hold harmless Railroad for loss, damage, injury or death from any act or omission of Industry, its employes or agents, to the person or property of the parties hereto and their employes, and to the person or property of any other person or corporation, while on or about" }, { "docid": "19051487", "title": "", "text": "Cir. 1962), affirmed per curiam 371 U.S. 37, 83 S.Ct. 145, 9 L.Ed.2d 112 (1962). See also Turner v. Fouche, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567 (Jan. 19, 1970); United States v. Plumbing & Pipefitting Industry, Local 73 (S.D.Ind. Aug. 15, 1969) 61 L.C. Par. 9329, at 6863. But cf. Lewis v. City of Grand Rapids, 356 F.2d 276, 289-290 (6th Cir. 1966), cert. den. 385 U.S. 838, 87 S.Ct. 84, 17 L.Ed.2d 71 (1966); United States v. Sheet Metal Wkrs. Int. Ass’n., L. U. No. 36, 280 F.Supp. 719, 728-729 (E.D.Mo.1968). . Cf. Wieman v. Updegraff, 344 U.S. 183, 192, 73 S.Ct. 215, 97 L.Ed. 216 (1952); Norwalk CORE, supra, at 927. . See Bradford Audio Corporation v. Pious, 392 F.2d 67, 72 (2d Cir. 1968); Bussie v. Long, 383 F.2d 766, 769 (5tli Cir. 1967); McManigal v. Simon, 382 F.2d 408, 410 (7th Cir. 1967), cert. den. 390 U.S. 980, 88 S.Ct. 1099, 19 L.Ed.2d 1276 (1968), reh. den. 390 U.S. 1036, 88 S.Ct. 1405, 20 L.Ed.2d 297 (1968); Howard v. Higgins, 379 F.2d 227, 228 (10th Cir. 1967); Ream v. Handley, 359 F.2d 728, 731 (7th Cir. 1966); Martin v. King, 298 F.Supp. 420, 421 (D.Colo.1969); Booth v. General Dynamics Corporation, 264 F.Supp. 465, 470 (N.D.Ill.1967); Abernathy v. Carpenter, 208 F.Supp. 793, 795 (W.D.Mo.1962), affirmed per curiam 373 U.S. 241, 83 S.Ct. 1295, 10 L.Ed.2d 409 (1963). . See Willis v. Reddin, 418 F.2d 702, (9th Cir. Nov. 10, 1969); Mansell v. Saunders, 372 F.2d 573 (5th Cir. 1967); McGuire v. Sadler, 337 F.2d 902, 906 (5th Cir. 1964); Hornsby v. Allen, 326 F.2d 605, 608, 610-612 (5th Cir.1964); Cobb v. City of Malden, 202 F.2d 701, 705 (1st Cir. 1953); Glicker v. Michigan Liquor Control Commission, 160 F.2d 96, 98, 100-101 (6th Cir. 1947); Burt v. City of New York, 156 F.2d 791, 792 (2d Cir. 1946); Joe Louis Milk Company v. Hershey, 243 F.Supp. 351, 354, 357 (N.D.Ill.1965); Schlosser v. Walsh, 5 F.Supp. 993, 997 (D.S.D.1934). .The origin of the “property-personal liberty” distinction appears to be based on an analogy drawn from" }, { "docid": "7001844", "title": "", "text": "such a usage is embodied in a written trade code or similar writing the interpretation of the writing is for the court.” The comments of the drafters as well as those of independent commentators make it clear that “usage of the trade” refers to evidence of generalized industry practice or similar recognized custom, as distinguished from particular conversations or correspondence between the parties with respect to the terms of the agreement. UCC § 1-205, Official Comment 5; Levie, Trade Usage and Custom Under the Common Law and the Uniform Commercial Code, 40 N.Y.U.L.Rev. 1101, 1106-09 (1965). The same general conclusions must be reached with respect to proof of a “course of performance.” As previously noted, the admissibility of parol evidence in this case is governed by the law of New York as it existed prior to the effective date of § 2-202, and therefore this Court must first determine what New York law is on this question before embarking upon any ex pedition into unchartered territory which might permit consideration of advanced schools of semantic thought that have been espoused by Judge Frank and Professor Corbin, see, generally, Farnsworth, “Meaning” in the Law of Contracts, 76 Yale L.J. 939 (1967), but which have not obtained widespread judicial acceptance. As a learned member of the Second Circuit Court of Appeals, Judge Kaufman, has said: “[T]he proper function of this Court is to ascertain what New York law is, and not to speculate about what it will be, or in Learned Hand’s felicitous phrase, ‘to embrace the exhilarating opportunity of anticipating a doctrine which may be in the womb of time, but whose birth is distant.’ Spector Motor Service v. Walsh, 139 F.2d 809, 823 (2nd Cir. 1943) (dissent), vacated, 323 U.S. 101, 65 S.Ct. 152, 89 L.Ed. 101 (1944). It is certainly not our function to apply the rule we think better or wiser.” (Hausman v. Buckley, 299 F.2d 696, 704, 93 A.L.R.2d 1340 (2d Cir.), cert. denied, 369 U.S. 885, 82 S.Ct. 1157, 8 L.Ed.2d 286 (1962)) In this instance, ascertainment of New York law on the issue does not" }, { "docid": "15641369", "title": "", "text": "those who promote the merger * * *, evidence indicating the purpose of the merging parties, where available, is an aid in predicting the probable future conduct of the parties and thus the probable effects of the merger.” See also United States v. Aluminum Co. of America, 233 F.Supp. 718, 727-729 (E.D.Mo. 1964). In this regard consider Nicholson’s motto: “If you think, you can.” This motto succinctly states the expected positive correlation between the intent to use reciprocity and the results of the Special Sales Program. Considering now the pre-merger anti-competitive conduct of Liquid Carbonic, the Supreme Court has indicated in United States v. Aluminum Company of America, 377 U.S. 271, 277, 84 S.Ct. 1283, 12 L.Ed.2d 314 (1964), and Brown Shoe Co. v. United States, supra, 370 U.S. at 332, 82 S.Ct. 1502 that such practices are probative of the likelihood of similar conduct occurring in the future. Liquid Carbonic has a long history of anti-trust violations. In 1948, the Federal Trade Commission issued a cease and desist order against that corporation and its principal competitors prohibiting them, inter aMa, from price fixing, predatory pricing to eliminate competitors and allocating territories with competitors. Also in 1948, the Department of Justice instituted suit against Liquid Carbonic, charging them with a conspiracy to restrain trade in the carbon dioxide market. This action was concluded by a consent decree on March 7, 1952. On December 22, 1960, following a grand jury investigation in the Southern District of New York, the government ' instituted a criminal contempt action in which General Dynamics (which had by then acquired Liquid Carbonic) and its three principal competitors were charged with violating the 1952 consent decree by conspiring to fix the price of carbon dioxide and by interfering with the business of smaller competitors. General Dynamics pled guilty to this charge and was fined $75,- 00 0. Two Liquid Carbonic officials, Nicholson and Mathey, pled nolo contendere and were fined. The relevance of past violations was well stated by Mr. Justice Cardozo in United States v. Swift & Co., 286 U.S. 106, 116, 52 S.Ct. 460, 463," }, { "docid": "23516520", "title": "", "text": "presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). B. The district court did not err in determining that no commissions were due after the contract expired Aerel first argues, as it did before the district court, that ¶ 2-G of the contract clearly entitles Aerel to all of the post-termination commissions that it seeks. This argument fails for two reasons. The first is that Aerel itself recognizes that the operative phrase in ¶ 2-G — “sales originating from the Territory” — “is susceptible to two or more reasonable interpretations.” See Schachner v. Blue Cross & Blue Shield of Ohio, 11 F.3d 889, 893 (6th Cir.1996) (“Contract language is ambiguous if it is subject to two reasonable interpretations.”). Those varied interpretations center on the word “originating,” which could mean simply “ordered,” or, alternatively, could include the entire transactional process, from placement of the order through manufacturing, shipping, and receipt of payment. In other words, ¶ 2-G, standing alone, does not answer the question of whether the contract required PCC to pay Aerel commissions for products ordered, but not yet shipped, accepted, or paid for, during the term of the contract. The second reason that Aerel’s argument fails is that ¶ 5-B specifically covers the topic of post-termination commissions and therefore supersedes the more general terms of ¶ 2-G. Under Ohio law, “[a] specific provision controls over a general one.” Monsler v. Cincinnati Cas. Co., 74 Ohio App.3d 321, 598 N.E.2d 1203, 1209 (Ohio Ct.App.1991); see also BP Chemicals, Inc. v. First State Ins. Co., 226 F.3d 420, 426-27 (6th Cir.2000) (explaining the principle that “more specific provisions control over general ones”). Unlike ¶ 2-G, which governs commission rates generally for “all sales” during the contract period, ¶ 5-B focuses on the precise time when PCC’s duty to pay commissions ended. The latter paragraph fixes the cessation of that duty at the termination of the contract, and does" }, { "docid": "4904787", "title": "", "text": "read in connection with the Airplane Purchase Agreement “in order to ascertain the entire intent of the parties.” 17 Am.Jur.2d Contracts § 470 (1964). The Cover Letter does not include essential terms of the contract, rather it only speaks to special conditions regarding trade-in arrangements, additional pilot training and costs, designation of persons authorized to sign commitments, and limitation on liability in event of buyer’s cancellation. Price, description, and quantity of the subject of the contract are not included. In accordance with the above, plaintiff’s contention that the Cover Letter was a new contract' is rejected by this court. Both instruments should be considered together as was intended by the parties at the time of execution of the agreements. III. Plaintiff also contends that the motion to dismiss or transfer should be denied because the forum selection clause is invalid and, therefore, is unenforceable. The trend toward enforcing forum selection clauses is relatively recent, reflecting a distinct change from the previous negative attitude courts had toward “jurisdiction-ousting” clauses. See Annot., 56 A.L.R.2d 300 (1957); 20 Am.Jur.2d Courts § 141 (1965). In 1972, the Supreme Court indicated its approval of forum selection clauses in The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972). The Court held therein that, at least in admiralty suits, forum selection clauses “are prima facie valid,” id. at 10, 92 S.Ct. 1907, and should be enforced unless the party resisting application of the clause can “clearly show that enforcement would be unreasonable and unjust, or that the clause was invalid for such reasons as fraud or overreaching.” Id. at 15, 92 S.Ct. at 1916. Although Bremen was an admiralty suit, there is language in the case to support the proposition that its test should be applicable to diversity suits because the same principles on which it is based apply to interstate commercial activity: The barrier of distance that once tended to confine a business concern to a modest territory no longer does so. . The expansion of American business and industry will hardly be encouraged if, notwithstanding solemn contracts, we" }, { "docid": "11015587", "title": "", "text": "850, 854 (D.Kan.1977), aff'd, 700 F.2d 1304 (10th Cir.1983). The qualified privilege that precludes the plaintiff’s defamation claim as to statements made to prospective employers also precludes his invasion of privacy claim. See Munsell v. Ideal Food Stores, 208 Kan. 909, 923, 494 P.2d 1063 (1972). Similarly, the fact that the statements made to the credit reporting agency were true precludes Mr. Booth’s invasion of privacy claim as to those statements. Rinsley, 700 F.2d at 1307 (truth is an absolute defense to invasion of privacy claims). EDS is entitled to summary judgment on these claims. See Dawson v. Associates Financial Servs. Co., 215 Kan. 814, 820-21, 529 P.2d 104 (1974) (in creditor-debtor situation, the right of debtor to privacy is subject to the right of creditor to take reasonable steps to collect the debt). 3. Tortious Interference With a Business Advantage The plaintiff claims that EDS’ actions interfered with his ability to find other work. The defendant notes that the plaintiff is required to show intentional misconduct to support this claim. Turner v. Halliburton Co., 240 Kan. 1, 12, 722 P.2d 1106 (1986). EDS correctly argues that the qualified privilege that applies to the defendant as to the defamation claim also applies to the tortious interference claim. Id. at 13, 722 P.2d 1106. Because the plaintiff cannot establish actual malice, this claim must be dismissed as well. Moreover, there is no evidence that, by attempting to enforce its legal rights to collect under the promissory note, EDS can be liable to Mr. Booth for tortiously interfering with his future employment. Finally, Mr. Booth has provided no evidence to indicate that he was actually harmed by any of the defendant’s actions. He has not shown that any potential employer asked for a credit report or denied him a job because of any action taken by EDS. 4. Breach of the Duty of Good Faith and Fair Dealing Outside the Employment Context Mr. Booth alleges that three contracts other than the employee agreement — a noncompetition agreement (which is not a separate agreement but is a clause in the employee agreement), a" }, { "docid": "22839657", "title": "", "text": "agree that courts should use evidence of trade practice and eustom not only to determine the meaning of an ambiguous provision, but to determine whether a contract provision is ambiguous in the first instance. See, e.g., Restatement (Second) of Contracts § 220 emt. d (1981) (“[UJsage relevant to interpretation is treated as part of the context of an agreement in determining whether there is ambiguity or contra-diction____”); 3 Arthur L. Corbin, Corbin on Contracts § 555 at 232-39 (1960) (“Seldom should the court hold that the written words exclude evidence of the custom, since even what are often called ‘plain’ meanings are shown to be incorrect when all the circumstances of the transaction are known; and usages and customs are a part of those circumstances by which the meaning of words is to be judged.”); 5 Samuel Williston, Williston on Contracts § 648 at 6-7 (3d ed. 1961) (“Usage is an ordinary means of proving the local or technical meaning of language, and even language which is normally clear and unambiguous may be shown by usage to bear, under the circumstances of the case, a meaning different from its normal sense.”). Of course, even when accepted, evidence of trade practice and eustom does not trump other canons of contract interpretation, but rather cooperates with them. Courts prefer, for example, an interpretation of a contract that gives effect to all its terms and leaves no provision meaningless. See United States v. Johnson Controls, Inc., 713 F.2d 1541, 1555 (Fed.Cir.1983). Thus, a court should consider whether adopting the interpretation advanced by the party relying on trade practice and custom would deprive the specification at issue of all meaning, or if there is a more limited sense in which the requirement still applies. Where canons of contract interpretation point to different interpretations, resolution of the conflict is necessarily left to the facts of the particular case. Armed with these principles, this court examines anew whether the contract specifications at issue here are ambiguous, and finds that they are. Metric introduced sufficient evidence of trade practice and custom, and reasonable reliance on that trade" }, { "docid": "23636659", "title": "", "text": "accompanied by supporting affidavits, however, in most eases should be sufficient to require a jury determination on whether there had in fact been a ‘meeting of the minds.’ ” Id. at 55 (quoting Interocean Shipping Co. v. National Shipping & Trading Corp., 462 F.2d 673 (2d Cir.1972)). The court stated that the jury would determine whether the production manager was authorized to enter into a contract on behalf of the company and that the form of each confirmation was such that its execution constituted an agreement. Id. In Baghdady v. Sadler, No. 92-1214, 1992 WL 217410, (1st Cir. Sept.9, 1992) (unpublished), however, where the defaulting party, Baghdady, signed an options contract with Merrill Lynch that contained an arbitration clause and then asserted that he had not read the document’s text and did not intend to enter into an arbitration agreement, the First Circuit stated: “Although these may be disputed matters, they are not material.” Id. at 1992 WL 217410 *2. The Court distinguished Par-Knit: the material fact there was whether the production manager had authority to sign. Noting that there was no suggestion that Baghdady was prevented from reading the document before signing, and that there was no dispute that Baghdady had authority to bind himself, since the language was clear on its face, “there is no issue for a trial, jury or non-jury.” Id. In our opinion, Baghdady sets out the correct approach: if the provision is clear, and the defaulting party (with authority) has signed it, there is no jury issue. Therefore, because it is undisputed that Mr. Horton, as President of Horton Farms, had the authority to bind Horton Farms, and because the contract provision clearly states that the parties will submit all contract disputes to arbi tration before the NGFA, Horton Farms was not entitled to a jury trial on this issue. V. Finally, we address the district court’s confirmation of the arbitration award. The FAA expresses a presumption that arbitration awards will be confirmed. Booth v. Hume Pub., Inc., 902 F.2d 925, 932 (11th Cir.1990); see also 9 U.S.C.A. § 9 (if the parties have" } ]

[ { "docid": "22540815", "title": "", "text": "a motion to dismiss for failure to state a claim under Rule 12(b)(6). The district court determined that Goode had failed either to present direct or circumstantial evidence of discrimination or to make out a prima facie case of discrimination under the framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Accordingly, the court stated that “Goode fail[ed] to allege sufficient facts supporting his claim that his termination was the result of unlawful discrimination.” Goode v. Cent. Va. Legal Aid Soc’y, No. 3:14cv281-HEH, 2014 WL 3945870, at *6 (E.D.Va. Aug. 12, 2014). The court granted CVLAS’s motion and dismissed the case without prejudice on August 12, 2014, concluding that “Goode has failed to state a claim for unlawful discrimination under Title VII, 42 U.S.C. § 1981, and the ADEA.” Id. at *7. Goode filed a timely notice of appeal on September 8, 2014. For the reasons stated below, we dismiss this appeal for lack of jurisdiction and remand the ease to the district court with instructions to allow Goode to amend his complaint. Because we conclude that we do not have appellate jurisdiction over this case, we do not reach the merits of the district court’s legal conclusions. II. A. This Court may exercise jurisdiction only over final orders, 28 U.S.C. § 1291, and certain interlocutory and collateral orders, 28 U.S.C. § 1292; Fed. R.Civ.P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545-46, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). An order dismissing a complaint without prejudice is not an appealable final order under § 1291 if “the plaintiff could save his action by merely amending his complaint.” Domino Sugar Corp. v. Sugar Workers Local Union 392, 10 F.3d 1064, 1066-67 (4th Cir.1993). In Domino Sugar, this Court held that if “the grounds of the dismissal make clear that no amendment could cure the defects in the plaintiffs case, the order dismissing the complaint is final in fact” and therefore appealable. Id. at 1066 (quoting Coniston Corp. v. Vill. of Hoffman Estates, 844 F.2d 461, 463 (7th Cir.1988));" } ]

[ { "docid": "117454", "title": "", "text": "OPINION OF THE COURT VANASKIE, Circuit Judge. Appellants Christopher G. Wright, Ra-vinder S. Chawla, and Andrew Teitelman filed this interlocutory appeal from the District Court’s denial of their pretrial joint motion to preclude the Government from relitigating certain issues under the Double Jeopardy Clause and from constructively amending the indictment. Because the District Court’s ruling is not a “collateral” order subject to immediate review under Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), and was not otherwise a “final decision[ ]” under 28 U.S.C. § 1291, we lack jurisdiction to consider their appeal. Accordingly, we will dismiss this appeal and remand for further proceedings. I. We have already had occasion to describe the facts underlying this case in United States v. Wright, 665 F.3d 560 (3d Cir.2012), and that description of the facts is important for understanding the matter before us now: From 2005 through 2007, Wright was Chief of Staff to Philadelphia City Councilman John “Jack” Kelly. Wright was also a realtor. Chawla owned the real estate firm World Acquisition Partners (‘World Acquisition”), and Teitelman, an attorney, did most of the firm’s legal work. Teitelman was not a World Acquisition employee, but his offices were in its office suite, and most of his work came from World Acquisition. Chawla and Teitelman befriended Wright when Wright had an office in the same building. This case concerns a series of gifts that Chawla, Teitelman, or both gave Wright and a simultaneous series of, official acts that Wright took on behalf of World Acquisition. Wright received a free stint in an apartment, free legal services, and was promised commissions on World Acquisition deals. At the same time, Wright shepherded a bill that Chawla favored through Kelly’s office, arranged meetings about a World Acquisition development, and communicated with City of Philadelphia offices for World Acquisition. More specifically, Wright received three main benefits. First, he lived at least part-time in an apartment (with a free parking space) for 14 months without paying rent. World Acquisition had contracted to buy a building at 2000 Delancey Street in" }, { "docid": "17124124", "title": "", "text": "we have jurisdiction to entertain this interlocutory appeal. We have jurisdiction over final orders and certain types of interlocutory orders. See 28 U.S.C. §§ 1291, 1292. In general, a pretrial order dismissing less than all of a plaintiffs claims is interlocutory and cannot be appealed unless it includes the grant or denial of an injunction, see § 1292(a)(1); or the district court has certified a controlling issue of law under 28 U.S.C. § 1292(b); or the court has directed entry of a partial final judgment with the determination required by Rule 54(b) of the Federal Rules of Civil Procedure; or the interlocutory order is appealable under the narrow, judicially created “collateral order” doctrine. Great Rivers Coop. v. Farmland Indus., Inc., 198 F.3d 685, 687-88 (8th Cir.1999). Kassuelke does not appeal from a final order as required for jurisdiction under § 1291. No injunction is at issue to invoke jurisdiction under § 1292(a)(1), and the district court has not certified an issue for appeal pursuant to § 1292(b). Nor has the court entered a partial final judgment pursuant to Rule 54(b). The only remaining potential basis for appellate jurisdiction is the collateral order doctrine. To qualify for immediate appeal under the collateral order doctrine, an order must conclusively decide a disputed question that is important and distinct from the case’s merits, and the decision must be effectively unreviewable on appeal from a final judgment. See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949); Carmichael v. White, 163 F.3d 1044, 1045 (8th Cir.1998) (citing Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978)). Here, the district court granted substitution of the government as a defendant pursuant to the Westfall Act, 28 U.S.C. § 2679(d)(1). The Westfall Act, officially named the Federal Employee Liability Reform and Tort Compensation Act of 1988, amended the Federal Tort Claims Act and was designed “to extend immunity to federal employees from liability for tortious conduct occurring within the scope of employment.” Taboas v. Mlynczak, 149 F.3d 576, 578 n. 1 (7th" }, { "docid": "16136185", "title": "", "text": "that follows, we are constrained to look at it both as a motion to dismiss and as an order similar to those touching upon interim measures or provisional relief. Four possible sources of appellate jurisdiction command our attention: First, the familiar appeal-from-final-judgment provision of 28 U.S.C. § 1291; second, the collateral order doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), which allows appeals under § 1291 from certain collaterally final orders; third, 28 U.S.C. § 1292(a)(3), which expressly allows appeals from certain interlocutory orders of district courts sitting in admiralty; and fourth, 28 U.S.C. § 1292(a)(1), which authorizes interlocutory appeals from orders granting or refusing certain forms of interim or provisional relief. We address each jurisdictional provision in turn. A. 28 U.S.C. § 1291 With the exception of the Cohen collateral order doctrine, see infra Part II.B, an appeal under 28 U.S.C. § 1291 lies only from a “final decision!].” As the Supreme Court has repeatedly emphasized, “a decision is not final, ordinarily, unless it “ ‘ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.’ ” ” Cunningham v. Hamilton County, 527 U.S. 198, 204, 119 S.Ct. 1915, 144 L.Ed.2d 184 (1999) (quoting Van Cauwenberghe v. Biard, 486 U.S. 517, 521-22, 108 S.Ct. 1945, 100 L.Ed.2d 517 (1988) (quoting Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 89 L.Ed. 911 (1945))); see also Gov’t of V.I. v. Rivera, 333 F.3d 143, 150 (3d Cir.2003) (quoting Catlin, 324 U.S. at 233, 65 S.Ct. 631). “The denial of a motion to dismiss does not end the litigation and ordinarily is not a final order for § 1291 purposes.” Bell Atlantic-Pa., Inc. v. Pa. Pub. Util. Comm’n, 273 F.3d 337, 343 (3d Cir.2001) (citing 15A Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3914.6 at 526 (“Orders refusing to dismiss an action almost always are not final.”))- The District Court’s decision denying King David’s motion to dismiss plainly does not meet the Catlin finality" }, { "docid": "23552585", "title": "", "text": "Riepen’s late filing could prejudice the Diet Drugs proceedings. Under all the circumstances, therefore, we will allow Riepen’s appeal. In doing so, however, we hasten to add that the appeal-Hague, et al.-suffers from the same jurisdictional problems as the other six appeals, which we discuss infra. Hence, we cannot review Hague’s arguments on the merits, just as we are foreclosed from reviewing the issues raised in the other appeals. IV. A. Courts of Appeals acquire jurisdiction over appeals through final orders under 28 U.S.C. § 1291; collateral orders under the doctrine of Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949); interlocutory orders concerning injunctions under 28 U.S.C. § 1292(a); questions certified for appeal by the district court and then certified by the appellate court under 28 U.S.C. § 1292(b); or certification by the district court pursuant to Fed.R.Civ.P. 54(b) of a “final” judgment when disposition has been had of less than all parts or issues in a given case. We are not here concerned with the jurisdictional routes provided by § 1292 or Fed.R.Civ.P. 54(b), inasmuch as certification was neither sought nor granted by the District Court and the appeals filed here do not involve the denial, modification or grant of injunctive relief. The Appellants essentially rely on “finality” pursuant to § 1291 (see discussion, infra, at part IV.C.) and the collateral order doctrine (see discussion, infra, at part IV.D.) as sources of appellate jurisdiction. We hold that their reliance is misplaced. B. Before we begin our jurisdictional analysis, it is helpful if we extract from the foregoing history those facts providing the relevant context that gives rise to our holding that appellate jurisdiction to review Appellants’ arguments does not exist at this time. We summarize some of the relevant circumstances: (1) Three different funds are involved: the Fund A Legal Fee Escrow Account, the Fund B Legal Fee Escrow Account, and the MDL 1203 Fee & Cost Account. (2) In making the fee award and allocation, all three funds were intermingled. (3) There are millions of dollars remaining to be" }, { "docid": "22786230", "title": "", "text": "find that plaintiffs, through the exercise of reasonable diligence, should have discovered their alleged injuries at the very latest by the end of March, 2000. Since plaintiffs did not file these actions until [more than two years later], their claims against their prescribing physicians are clearly time barred. Motion App. at 394. As noted, the District Court adopted its analysis in Accadia to reject petitioners’ motions to remand their cases to state court. Petitioners then turned to this court by filing a petition and supplemental petition for a writ of mandamus. II. By invoking our mandamus jurisdiction, petitioners concede, at least implicitly, that we have no appellate jurisdiction at this time to review the denial of their remand motions. In the ordinary course of proceedings, we acquire jurisdiction over a matter by way of an appeal either from final orders under 28 U.S.C. § 1291; collateral orders under the doctrine of Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949); interlocutory orders concerning injunctions under 28 U.S.C. § 1292(a); questions certified for appeal by the district court and then certified by the appellate court under 28 U.S.C. § 1292(b); or certification by the district court pursuant to Fed.R.Civ.P. 54(b) of a “final” judgment when disposition has been had of less than all parts or issues in a given case. In re Diet Drugs, 401 F.3d at 154 (footnote omitted). Petitioners make no claim to the availability of review at this time through any of these avenues of appeal, nor could they reasonably do so. See, e.g., Caterpillar Inc. v. Lewis, 519 U.S. 61, 74, 117 S.Ct. 467, 136 L.Ed.2d 437 (1996) (“An order denying a motion to remand, standing alone, is obviously not final and immediately appealable as of right.”) (citation, quotation marks and punctuation omitted); see also Spring Garden Associates, L.P. v. Resolution Trust Corp., 26 F.3d 412, 414 (3d Cir.1994) (“As for the district court’s denial of a remand, neither 28 U.S.C. § 1291 nor 28 U.S.C. § 1292 expressly confers jurisdiction on this court to review orders denying a" }, { "docid": "20580251", "title": "", "text": "is without jurisdiction because the appealed decisions are not final orders under 28 U.S.C. § 1291. II. Discussion This court has jurisdiction to review “final decisions” of a district court, 28 U.S.C. § 1291, as well as those interlocutory orders specified in 28 U.S.C. § 1292. Because BBVA asserts jurisdiction only under § 1291, and not under § 1292, we here consider only whether the appealed orders enforcing the subpoena and denying reconsideration are “final decisions” within the meaning of § 1291. A final decision is one that “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 467, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978) (internal quotation marks omitted); accord Cox v. United States, 783 F.3d 145, 147 (2d Cir.2015). Under the collateral order doctrine, an interlocutory order can also be deemed final and immediately appealable under § 1291 if it “(1) conclusively determines a disputed question; (2) resolves an important issue completely separate from the merits of the action; and (3) is effectively unreviewable on appeal from final judgment.” EM Ltd. v. Republic of Argentina, 695 F.3d 201, 205-06 (2d Cir.2012); see Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545-47, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The orders here at issue do not qualify as final decisions in either of these respects. As precedent makes clear, “[u]n-der traditional finality principles, a district court’s decision to compel compliance with a subpoena or to deny a motion to quash a subpoena is generally not a ‘final decision’ and therefore is not immediately appeal-able.” In re Air Crash at Belle Harbor, 490 F.3d 99, 104 (2d Cir.2007) (internal quotation marks omitted). To obtain immediate appellate review of such an order absent § 1292(b) certification, the subpoenaed party must typically “defy the district court’s enforcement order, be held in contempt, and then appeal the contempt order, which is regarded as final under § 1291.” .Id. (internal quotation marks omitted). This process, which recognizes only the contempt judgment, not the underlying enforcement order, as" }, { "docid": "5545430", "title": "", "text": "of paragraphs were added to the amended complaint alleging facts not included in the'original complaint. While Wauquiez Boats argues that the additional allegations were discussed with the court at the hearing on the motion to dismiss the original complaint, that argument does not lead to a conclusion that the district court somehow addressed and dismissed the amended complaint before it was even filed or that the court intended to assess the sufficiency, of the new allegations in its ruling. Indeed, at the hearing, Fawzy made no request to amend his complaint and the court never indicated that Fawzy had somehow made such a request. Finally, Wauquiez Boats argues that we have jurisdiction because, by failing to notify the district court timely of its error, Fawzy cannot rely on the amended com plaint, making the district court’s ruling on the original complaint a final decision. But, as we have already noted, the amended complaint was properly filed under Rule 15(a), and Fawzy’s failure to notify the district court of its filing did not change the amended complaint’s status as the operative one. Accordingly, we conclude that the district court erroneously, albeit unwittingly, closed the case without having addressed the amended complaint and therefore that Fawzy’s appeal and Wauquiez Boats’ cross-appeal were taken from an interlocutory order. We thus dismiss their appeals for lack of appellate jurisdiction. IT IS SO ORDERED. . Fawzy also commenced an action in France in 2013, “seeking return of the purchase price of the Vessel and other, related expenses caused by the repetitive but unsuccessful attempts to repair or replace the defective components,” which remains pending. . These exceptions include, for example, appeals from the entry of injunctions, see 28 U.S.C., § 1292(a)(1); from orders variously certified as final, see id. § 1292(b);. Fed. R. Civ, P. 54(b); and from certain collateral orders, see Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100, 103, 130 S.Ct. 599, 175 L.Ed.2d 458 (2009); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), including orders dissolving a maritime attachment, see Swift Co. &" }, { "docid": "22784364", "title": "", "text": "the first amendment,” id. at A29-A30; (c) although the court agreed that confidential information could not be released to the public, its order differed from the magistrate’s in that the court’s order allowed plaintiffs’ counsel to use any and all confidential materials in cases in which he was a participant, id. at A32; and (d) the amended order eliminated entirely the provision requiring counsel to return or destroy all documents produced in discovery; this was done virtually without discussion, because defendants had not opposed plaintiffs’ motion to eliminate the provision. The defendants immediately moved the district court for a stay of its own protective order. The district court granted a stay conditioned on defendants’ instituting proceedings in the court of appeals, which they did promptly. We granted a further stay pending disposition of the appeal, having been informed that appellees had scheduled a press conference for the morning following expiration of the stay and that they would, at that time, release to the public all the documents obtained in discovery. II. COLLATERAL APPEALABILITY Discovery orders, being interlocutory, are not normally appealable. See Borden Co. v. Sylk, 410 F.2d 843, 845 (3d Cir.1969); 8 C. Wright & A. Miller, Federal Practice and Procedure: Civil § 2006 at 29 (1970 & Supp.1985). The first issue before us, therefore, is whether we have appellate jurisdiction. The defendants make two arguments in favor of appellate jurisdiction. First, they assert that the district court’s protective order is a collateral order appealable under the rule of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949). In the alternative, they argue that this court should exercise its statutory power of mandamus, 28 U.S.C. § 1651 (1982), to review the order. We consider collateral appealability here and the mandamus argument in part III infra. Title 28 U.S.C. § 1291 (1982) provides that courts of appeals may review only “final” decisions of the district courts. In Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), however, the Supreme Court established a narrow exception to the rule of finality. Cohen held that" }, { "docid": "12146181", "title": "", "text": "“determin[e] issues relating to plaintiffs’ status as employees or independent contractors.” Swift moved for an order to stay proceedings, including discovery, and for an order setting a briefing schedule to determine the § 1 issue without resort to discovery and trial. The court denied Swift’s motion. It also concluded that the order was not immediately appealable. This interlocutory appeal followed. II Pursuant to 28 U.S.C. § 1291, we only have appellate jurisdiction over “final decisions” of district courts. Id. Thus, with certain exceptions, we lack appellate jurisdiction over interlocutory appeals from orders of the district court issued before final judgment. Johnson v. Jones, 515 U.S. 304, 309, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995). Congress, of course, may by statute invest us with jurisdiction over certain interlocutory orders. District courts may certify a decision for interlocutory appeal pursuant to 28 U.S.C. § 1292(b) or certify a summary judgment order as final under Fed. R. Civ P. 54(b). The Supreme Court has also confirmed our appellate jurisdiction over “a small category of decisions that, although they do not end the litigation, must nonetheless be considered ‘final.’ ” Swint v. Chambers Cty. Comm’n, 514 U.S. 35, 42, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995). This “collateral order doctrine” is a “practical construction” of the concept of finality in 28 U.S.C. § 1291. Digital Equipment Corp. v. Desktop Direct, Inc., 511 U.S. 863, 867, 114 S.Ct. 1992, 128 L.Ed.2d 842 (1994) (quoting Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949)). “That small category includes only decisions that are conclusive, that resolve important questions separate from the merits, and that are effectively unreviewable on appeal from the final judgment in the underlying action.” Swint, 514 U.S. at 42, 115 S.Ct. 1203 (citing Cohen, 337 U.S. at 546, 69 S.Ct. 1221). In turn, we have given the concept of “finality” the following practical construction: “A ruling is final for purposes of § 1291 if it (1) is a full adjudication of the issues, and (2) clearly evidences the judge’s intention that it be the court’s final" }, { "docid": "13397370", "title": "", "text": "For instance, the Court is unclear what injury the Plaintiff is alleging it has suffered under 42 U.S.C. § 1983 in Counts One and Two of the First Amended Complaint. However, a mere defect in the pleading does not warrant 12(b)(6) dismissal. See Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir.1978) (“pleadings should not be scrutinized with such technical nicety that a meritorious claim should be defeated, and even if the claim is insufficient in substance, it may be amended to achieve justice.”), cert. denied, 439 U.S. 970, 99 S.Ct. 464, 58 L.Ed.2d 431 (1978). The Court will revisit the issue at the dispositive motion stage if necessary. Id. at 2 n. 3. The district court subsequently denied a motion to certify its November 16, 1995, order for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). Its order is thus appeal-able, if at all, only if it falls within the collateral order doctrine. We granted a stay of discovery on January 26, 1996, while we determined the matter. II. Before proceeding to the merits of McGraw and Rodd’s appeal, there are a number of jurisdictional issues with which we must contend. A. Ordinarily, appellate jurisdiction is lacking to hear an appeal from an order denying a Rule 12(b)(6) motion to dismiss since such an order is interlocutory in nature. Certain collateral orders are, however, considered “final decisions” within the meaning of 28 U.S.C. § 1291 and are therefore immediately appealable. See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546-47, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949). In Coopers & Lybrand v. Livesay, 437 U.S. 463, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978), the Supreme Court stated that the “small class” of appealable collateral orders comprise those that “conclusively determine the disputed question, resolve an important issue-completely separate from the merits of the action, and [are] effectively unreviewable on appeal from a final judgment.”. Id. at 468, 98 S.Ct. at 2458. In particular, certain denials of absolute and qualified immunity fall within this collateral order doctrine. Recently, we held that an order denying a Rule 12(b)(6) motion" }, { "docid": "23140811", "title": "", "text": "only the third and fourth challenges, pertaining to summary judgment and depositions of defendants. Judge Gagliardi, agreeing that there was at least arguable jurisdiction over the appeal, granted defendants’ motion to stay the deposition order pending this appeal. II. All four rulings that appellants here challenge are nonfinal orders within the meaning of 28 U.S.C. § 1291, and hence as a general rule are not reviewable prior to final judgment. See Pacific Union Conference of Seventh-Day Adventists v. Marshall, 434 U.S. 1305, 1306, 98 S.Ct. 2, 3, 54 L.Ed.2d 17 (1977) (denial of summary judgment); Xerox Corp. v. SCM Corp., 534 F.2d 1031, 1031-32 (2d Cir.1976) (per cu-riam) (discovery orders); see generally 8 C. Wright & A. Miller, Fed.Pract. & Proced. § 2006 (1970); 10 C. Wright, A. Miller & N. Kane, Fed.Pract. & Proced. § 2715 (1976). Therefore, before reaching the merits of appellants’ arguments, we address the threshold question of our jurisdiction to review any of those decisions on interlocutory appeal, under some exception to the finality requirement of § 1291. We conclude that both the denial of summary judgment and the order requiring defendants to be deposed are properly before this court under the “collateral final order” doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949), at least insofar as the district court premised its decisions on a rejection of defendants’ asserted absolute immunity defense. Cohen provides that non-final orders may be appealed when they conclusively resolve important and disputed questions that are completely separable from, and collateral to, the merits of the action, and are effectively unreviewable on appeal from a final judgment. Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978). The Supreme Court has held on several occasions that interlocutory orders denying claims of absolute immunity are appealable under Cohen. See, e.g., Nixon v. Fitzgerald, 457 U.S. 731, 742-43, 102 S.Ct. 2690, 2698, 73 L.Ed.2d 349 (1982) (Presidential immunity); Helstoski v. Meanor, 442 U.S. 500, 506-08, 99 S.Ct. 2445, 2448, 2449, 61 L.Ed.2d 30 (1979)" }, { "docid": "22185883", "title": "", "text": "which can by computation be made certain.” Fed.R.Civ.P. 55(b)(1). When the amount of damages is in dispute, as in the instant case, only the court may enter judgment, and then only after determining the amount of damages. See Fed.R.Civ.P. 55(b)(2). There can be no \"judgment\" without a determination of relief. Thus, the document entitled \"default judgment” in this case is more properly termed simply a \"default.\" . The Chudasamas did not seek this relief in their motion for sanctions, and it was not discussed at any hearing. Moreover, the court's letter requesting counsel for the Chudasamas to draft the sanctions order also made no mention of such relief. We can only presume that counsel for the Chudasamas seized the opportunity to overreach granted by the district court and included this relief either out of spite or for personal gain. Such relief certainly had no beneficial effect on the interests of his clients. . This provision allows a district judge to certify an interlocutory order for immediate appeal if the order \"involves a controlling question of law as to which there is substantial ground for difference of opinion and _,... an immediate appeal from the order may materially advance the ultimate termination of the litigation.” 28 U.S.C. § 1292(b) (1994). . Section 1292(b) grants courts of appeals discretion whether to accept interlocutory jurisdiction over a certain order. . Mazda argues that we also have jurisdiction over this appeal pursuant to 28 U.S.C'. § 1291 (1994), under the collateral order doctrine announced in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). Because our jurisdiction under § 1292(b) is clear, we do not address this argument. . The rules governing discovery were amended on April 22, 1993. The amendments became' effective on December 1, 1993, just over seven months after the Chudasamas' filed their complaint. The Supreme Court has ordered that these amendments apply \"insofar as just and practicable, [to] all proceedings in civil cases ... pending\" on December 1, 1993. Order of April 22, 1993, Orders of the Supreme Court of the United States" }, { "docid": "9642263", "title": "", "text": "a judgment; it does not end the litigation, and plainly lacks the finality that is required to engage the gears of 28 U.S.C. § 1291. See, e.g., JMS Dev. Co. v. Bulk Petrol Corp., 337 F.3d 822, 827 (7th Cir.2003). The fact that the deposit order in this case is a post-judgment order must, of course, be considered. Even so, the deposit order is inherently interlocutory. See Forgay v. Conrad, 47 U.S. (6 How.) 201, 204, 12 L.Ed. 404 (1848) (explaining that “cases where money is directed to be paid into court ... are interlocutory only”). In the usual case, such an order is not immediately appealable. See 15A Wright, Miller & Cooper, supra § 3910 (“It is clear ... that appeal ordinarily cannot be taken from an order that directs delivery to a court officer.”). This case is not unusual in terms of either the lack of finality of the deposit order or the absence of a basis for immediate appealability. Of course, section 1291 is not the sole source of federal appellate jurisdiction. There are a number of paths less traveled that may lead to the immediate appealability of a non-final, interlocutory order. But none of those avenues seems accessible here. We briefly canvass the likely prospects. Orders to deposit money with the court or to post security do not constitute injunctions and, thus, are not immediately appealable under 28 U.S.C. § 1292(a). See, e.g., HMG Prop. Investors, Inc. v. Parque Indus. Río Canas, Inc., 847 F.2d 908, 912 n. 5 (1st Cir.1988); Trs. of Hosp. Mortg. Group v. Compañía Aseguradora Interamericana S.A. Panama, 672 F.2d 250, 251 (1st Cir.1982). The statutory requirements for the certification of an interlocutory appeal have not been fulfilled. See 28 U.S.C. § 1292(b). And, finally, deposit orders are not immediately appeal-able as collateral orders under the doctrine of Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545-47, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949); absent a showing of extraordinary hardship, not present here, “no important right of the defendant is endangered by delaying appellate consideration until after the trial court renders" }, { "docid": "5545431", "title": "", "text": "complaint’s status as the operative one. Accordingly, we conclude that the district court erroneously, albeit unwittingly, closed the case without having addressed the amended complaint and therefore that Fawzy’s appeal and Wauquiez Boats’ cross-appeal were taken from an interlocutory order. We thus dismiss their appeals for lack of appellate jurisdiction. IT IS SO ORDERED. . Fawzy also commenced an action in France in 2013, “seeking return of the purchase price of the Vessel and other, related expenses caused by the repetitive but unsuccessful attempts to repair or replace the defective components,” which remains pending. . These exceptions include, for example, appeals from the entry of injunctions, see 28 U.S.C., § 1292(a)(1); from orders variously certified as final, see id. § 1292(b);. Fed. R. Civ, P. 54(b); and from certain collateral orders, see Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100, 103, 130 S.Ct. 599, 175 L.Ed.2d 458 (2009); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), including orders dissolving a maritime attachment, see Swift Co. & Packers v. Compania Colombiana Del Caribe, S.A., 339 U.S. 684, 688-89, 70 S.Ct 861, 94 L.Ed. 1206 (1950), Neither party argues, however, that any of these exceptions apply, and they expressly declined to invoke the collateral order doctrine With respect to the district court’s order dissolving the maritime attachment, pressing only our review of the district court’s Rule 12(b)(1) dismissal order and its denial of sanctions," }, { "docid": "12686832", "title": "", "text": "remaining counts. REVERSED AND REMANDED. . The county actually moved to dismiss the entire complaint, but the district court order addressed only the federal antitrust claims and ordered the county to answer the remainder of the complaint. On appeal, we address only the decision respecting the federal antitrust claims. We have jurisdiction to hear this appeal under the collateral order doctrine because the immunity asserted here includes immunity from suit. See 28 U.S.C. §§ 1291, 1292 (2006); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949) (establishing three-part test for collateral orders excepted from the final judgment requirement for appealability); Martin v. Mem’l Hosp. At Gulfport, 86 F.3d 1391, 1394-97 (5th Cir.1996) (explaining that orders denying claims of state action immunity are immediately appealable under Cohen); Commuter Transp. Systems, Inc. v. Hillsborough County Aviation Auth., 801 F.2d 1286, 1289-90 (11th Cir.1986) (holding that an order denying summary judgment on state action immunity grounds was immediately appealable). . Neither in the complaint, in brief, nor at oral argument did Danner and Gateway’s counsel clarify whether their challenge to the ordinance was facial or as-applied. Regardless of whether the statute is challenged on its face or in its application, our review of the state action immunity question is the same. IA Phillip E. Areeda & Herbert Hovenkamp, Antitrust Law ¶ 221a (3d ed. 2006) (\"In both [facial and as-applied] cases, once the inconsistency sufficient to warrant prima facie preemption is found, the statute or practice survives the test only if these additional requirements are met .... ’’). To reach the immunity question in this interlocutory appeal, we will assume that the Sherman Act preempts both the statute on its face and the county’s application of the ordinance. . Danner and Gateway also argue that the ordinance conflicts with other provisions of state law not related to the enabling statute. For our purposes, the fact that a local ordinance may conflict with a different state law may present a state law cause of action, but the noncompliance does not rise to the level of" }, { "docid": "22141558", "title": "", "text": "a “final order” under the Domino Sugar test. As in Domino Sugar, the district court here did not identify any defect that could possibly be cured by mere amendment of the petition; rather, the district court held that no such petition could proceed without prior authorization from this court. J.A. 17. Accordingly, we conclude that the dismissal without prejudice of Jones’ petition was a “final order” within the meaning of section 2253(c)(1)(A). Jones contends that the dismissal was not a “final order” but, instead, a “collateral order,” and thus that the certificate of appealability requirement of section 2253(c)(1) should not apply. This characterization is intuitively implausible; dismissing the petition for lack of jurisdiction terminated all proceedings in the district court, so the order was plainly not “collateral” to any pending proceedings. More basically, however, Jones’ argument rests on a fundamental misunderstanding of the “collateral order” doctrine. That doctrine treats certain interlocutory orders as final for purposes of appeal, on the grounds that such “collateral orders” present self-contained issues that are independently ripe for immediate appellate review, despite the pendency of further proceedings in the district court. See, e.g., Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978) (describing a collateral order as one that “must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment”); Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). In other words, “collateral orders” are final orders; they are “final decisions” within the meaning of section 1291. See Cohen, 337 U.S. at 546, 69 S.Ct. 1221 (“We hold this order appealable [under 28 U.S.C. § 1291] because it is a final disposition of a claimed right-” (emphasis added)). To characterize the district court’s order in this case as a “collateral order” — even if such a characterization were plausible— would but confirm our conclusion that it is a “final order” within the meaning of section 2253(c)(1). B. Jones contends that, even if the" }, { "docid": "22185884", "title": "", "text": "law as to which there is substantial ground for difference of opinion and _,... an immediate appeal from the order may materially advance the ultimate termination of the litigation.” 28 U.S.C. § 1292(b) (1994). . Section 1292(b) grants courts of appeals discretion whether to accept interlocutory jurisdiction over a certain order. . Mazda argues that we also have jurisdiction over this appeal pursuant to 28 U.S.C'. § 1291 (1994), under the collateral order doctrine announced in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). Because our jurisdiction under § 1292(b) is clear, we do not address this argument. . The rules governing discovery were amended on April 22, 1993. The amendments became' effective on December 1, 1993, just over seven months after the Chudasamas' filed their complaint. The Supreme Court has ordered that these amendments apply \"insofar as just and practicable, [to] all proceedings in civil cases ... pending\" on December 1, 1993. Order of April 22, 1993, Orders of the Supreme Court of the United States Adopting and Amending Rules, Fed. R.Civ.P. Rules 1-11, 28 U.S.C.A. at 23 (Supp. 1997); see also Reed v. Binder, 165 F.R.D. 424, 428 n. 4 (D.N.J.1996) (noting that courts have generally applied amendments retroactively “to the maximum extent possible\"). We see no reason why the amendments should not have governed the proceedings in this case after December 1, 1993. With few exceptions, the amendments did not materially change the duties of the parties or the court. Although discovery in this case began before the effective date, the vast majority of the discovery-related motions and all the hearings and court orders came well after that date. For these reasons, unless otherwise noted, we quote from and refer to the amended version of the rules. . In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981. . Because we expect litigants to obey all orders, even those they believe were improvidently entered, sanctions" }, { "docid": "16136184", "title": "", "text": "were incorrect. Viewing these matters as immaterial here, Pemex moved this Court to dismiss the appeal for lack of appellate jurisdiction. In response, King David moved for a summary remand to the Dis trict Court with instructions to dismiss the complaint. These motions were referred to the merits panel. See Third Circuit IOP 10.3.5,10.6. II. Appellate Jurisdiction A Rule E(4)(f) motion (“Actions in Rem and Quasi in Rem: General Provisions— Procedure for Release From Arrest or Attachment”) is similar (at least here) to a motion under Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted; in the case of Pemex’s alleged lack of standing, it is similar to a motion under Fed.R.Civ.P. 12(b)(1) to dismiss for lack of subject matter jurisdiction. However, in view of its practical effect here, the Rule E(4)(f) motion belongs to the class of motions touching upon interim measures or provisional relief, such as motions to attach property or release an attachment, or motions for temporary restraining orders or preliminary injunctions. As such, in the discussion that follows, we are constrained to look at it both as a motion to dismiss and as an order similar to those touching upon interim measures or provisional relief. Four possible sources of appellate jurisdiction command our attention: First, the familiar appeal-from-final-judgment provision of 28 U.S.C. § 1291; second, the collateral order doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), which allows appeals under § 1291 from certain collaterally final orders; third, 28 U.S.C. § 1292(a)(3), which expressly allows appeals from certain interlocutory orders of district courts sitting in admiralty; and fourth, 28 U.S.C. § 1292(a)(1), which authorizes interlocutory appeals from orders granting or refusing certain forms of interim or provisional relief. We address each jurisdictional provision in turn. A. 28 U.S.C. § 1291 With the exception of the Cohen collateral order doctrine, see infra Part II.B, an appeal under 28 U.S.C. § 1291 lies only from a “final decision!].” As the Supreme Court has repeatedly emphasized, “a decision is not final, ordinarily, unless it" }, { "docid": "1341676", "title": "", "text": "the doctrine of qualified immunity protects a public official from liability for money damages in her individual capacity only, the doctrine is inapplicable in the Title VII context.”). When the District Court corrected itself in its March 15th Order, the original motion for summary judgment on immunity grounds was still properly before it. The Appellants were entitled to believe that the District Court would eventually address their immunity claims at least until the court had denied all of their outstanding motions and set the case for trial. The District Court set the case for trial on April 29, and denied all of the Appellants’ outstanding motions on May 7. The Appellants clearly filed their May 7th notice of appeal, as well as their May 11th amended notice of appeal, within 30 days of those dates, and thus within Rule 4(a)’s time limit. Accordingly, we reject Wright’s argument that we must dismiss the Appellants’ appeal as untimely. 2. Jurisdiction over an Interlocutory Appeal Wright also raises an alternative challenge to our jurisdiction over this appeal. He argues that the Appellants’ claims to qualified immunity do not fit within the collateral-order doctrine. We find his arguments on this point unpersuasive, however. Moreover, Wright ignores or overlooks the fact that the Appellants have also asserted a claim to, and appeal from the denial of, absolute immunity. As a general rule, the federal appellate courts have no jurisdiction under 28 U.S.C. § 1291 to review interlocutory decisions such as a denial of summary judgment. Nevertheless, the collateral-order doctrine excepts a narrow range of interlocutory decisions from the general rule. See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). To fall within the doctrine, an interlocutory decision must conclusively determine the disputed issue, the issue must be completely separate from the merits of the action, and the decision must be effectively unreviewable on appeal from a final judgment. See Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978). The Supreme Court has repeatedly applied the collateral-order doctrine to hold that" }, { "docid": "1368169", "title": "", "text": "the decision for interlocutory appeal under 28 U.S.C. § 1292(b). Before any briefs had been filed, Martin filed a motion before this court to dismiss the appeal as interlocutory; that motion was carried with the case. The district court ordered further proceedings stayed pending the outcome of this appeal. II. DISCUSSION Before we can proceed to the merits of this appeal, we must examine whether we have jurisdiction to do so. We have jurisdiction to determine our own jurisdiction. Henry v. Lake Charles Am. Press, L.L.C., 566 F.3d 164, 169 (5th Cir.2009) (citing Houston Cmty. Hosp. v. Blue Cross & Blue Shield of Tex., Inc., 481 F.3d 265, 268 (5th Cir.2007)). As the appellants, Defendants bear the burden of establishing our appellate jurisdiction. Acoustic Sys., Inc. v. Wenger Corp., 207 F.3d 287, 289 (5th Cir.2000). Our appellate jurisdiction is ordinarily limited to “final decisions of the district courts of the United States.” 28 U.S.C. § 1291. “For purposes of § 1291, a final judgment is normally deemed not to have occurred until there has been a decision by the District Court that ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Henry, 566 F.3d at 171 (alterations and internal quotation marks omitted) (quoting Midland Asphalt Corp. v. United States, 489 U.S. 794, 798, 109 S.Ct. 1494, 103 L.Ed.2d 879 (1989)). In addition to our jurisdiction over appeals from final decisions, we have statutory jurisdiction over appeals from certain interlocutory orders and decrees under § 1292(a), but neither party urges the application of that provision. Prospective appellants who seek to appeal interlocutory orders that do not qualify under § 1292(a) are ordinarily limited to the certification procedure of § 1292(b); as noted above, that procedure was not followed here. Thus, our jurisdiction must exist, if at all, under § 1291. Defendants urge that the collateral order doctrine recognized in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), supports jurisdiction. “The collateral order doctrine is best understood not as an exception to the ‘final decision’" } ]

[ { "docid": "9559134", "title": "", "text": "trial unless a remittitur is accepted. . It is not clear from the record why the $700 was awarded jointly and severally against Heinz and O’Sullivan, since the jury found only Timmes liable for this sum. . An additional award of $150,000 for pain and suffering was sustained on evidence of physical disabilities and an atypical anxiety disorder that had resulted in a personality change. Gardner, 907 F.2d at 1353. . There was also likely duplication between the awards for false arrest and malicious prosecution. Under New York law, damages for false arrest are to compensate for injuries from the beginning of custody to arraignment, and damages for malicious prosecution are to compensate for injuries after arraignment. See Hygh v. Jacobs, 961 F.2d 359, 366 (2d Cir.1992); Dabbs v. State, 59 N.Y.2d 213, 218, 464 N.Y.S.2d 428, 430, 451 N.E.2d 186, 188 (1983). The jurors in the pending case were not informed of this distinction, and it is unlikely they were aware of it. . At first glance, the loss of liberty injury resulting from the arrest for assault would seem to duplicate entirely the loss of liberty injury resulting from the arrest for disorderly conduct, since the confinement for both arrests resulted in the same time in confinement and under the same conditions. However, Bender’s evidence permitted the jury to find that the disorderly conduct arrest alone would not have resulted in any confinement. . In a recent police misconduct case tried in the District of Connecticut, Judge Chatigny instructed the jury: The plaintiff may not recover twice for the same injury. Accordingly, if you find that the plaintiff is entitled to a verdict on both the excessive force claim and the claim for intentional infliction of emotional distress, you may not compensate her twice for any emotional distress she might have suffered. Gould v. Langston, No. 3:92CV499(RNC) (D.Conn. Nov. 15, 1995) (jury charge). This language is helpful, and, if applicable state law permits recovery for an overlapping tort like emotional distress because some separate component of injury is compensable, beyond the injuries compensated under other claims, a court" } ]

[ { "docid": "3850873", "title": "", "text": "at all, it is apparent that the jury found that the defendants’ actions in reducing Thorsen’s job duties were caused by his political affiliation, but the jury simply did not agree that Thorsen left for those same reasons. Given the testimony at trial, the jury could have concluded that Thorsen also left the department in order to develop his newly formed company Justice Strategies. Because the jury verdict is not inconsistent, a new trial is not warranted. IV. The Jury’s Findings Were Not Against the Weight of the Evidence The defendants next move for judgment as a matter of law because the jury’s verdict was against the weight of the evidence. In particular, the defendants argue that Thorsen failed to prove that: (1) Carway held a position of authority within the Republican Party; and (2) Thorsen did not plead or prove a First Amendment retaliation claim because his complaint referred to the Article 78 proceedings rather than the reduction in job duties. Both arguments are raised for the first time post-trial and are therefore unpreserved. “A post-trial motion for judgment as a matter of law under Rule 50(b) ‘is limited to those grounds that were specifically raised in a prior Rule 50(a) motion; the movant is not permitted to add new grounds after trial.’ ” Hamptons Locations, Inc. v. Rubens, 640 F.Supp.2d 208, 212 (E.D.N.Y.2009) (quoting Galdieri-Ambrosini v. Nat’l Realty & Dev. Corp., 136 F.3d 276, 286 (2d Cir.1998)). Thus, the defendants were required to “specify the law and facts that entitle” them to judgment prior to the jury retiring. Fed. R. Civ. P. 50(a)(1)(B). At no time prior to the jury receiving the case did the defendants move for judgment as a matter of law (“jmol”) on either of the grounds that they argue herein. At the close of the plaintiffs case, the defendants only moved for jmol on their policymaker defense and for a directed verdict on Thorsen’s defamation claim. (See 11/4 Tr. at 775.) The defendants now assert that they did not waive their right to move for jmol and claim that they were prevented from raising" }, { "docid": "3850846", "title": "", "text": "See Branti v. Finkel, 445 U.S. 507, 517, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980); Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976); Vezzetti v. Pellegrini, 22 F.3d 483, 486 (2d Cir.1994). Before the court is the defendants’ motion under Federal Rules of Civil Procedure 50(b) and 59(a) for judgment as a matter of law or, in the alternative, for a new trial. The defendants argue that relief is warranted because: (1) the verdict sheet constituted plain error by permitting the jury to erroneously consider damages; (2) the damages award was excessive; (3) the verdict was inconsistent; and (4) the verdict was against the weight of the evidence. For the foregoing reasons, the defendants’ motions are granted in part and denied in part. BACKGROUND I. Pretrial Proceedings Thorsen commenced this action in February 2003. Thereafter, this matter was stayed pending resolution of related state court proceedings. In August 2006, Thor-sen filed an amended complaint alleging a First Amendment violation resulting from his affiliation with a faction of the Nassau County Republican Party. (See Second Am. Compl. ¶¶ 52-64.) In particular, Thorsen claimed he was passed over for Director of Probation because of his political associations. Thorsen also claimed that he was stripped of all job responsibilities and subjected to a campaign of harassment and retaliation, including having an untrue story about him planted in the New York Times because of his political associa tions. (Id. ¶¶ 68-70.) Thorsen claimed that as a result of the defendants’ actions, he suffered severe emotional distress and was forced to retire from Nassau County in July 2002. (Id. ¶¶ 75-84.) II. Trial In brief summary, the testimony at trial revealed that Thorsen began working for the Nassau County Probation Department in the 1970s. (10/26 Tr. at 51-52.) In 1996, Thorsen was promoted to the position of Assistant to Director. (10/26 Tr. at 55-56, 66; 10/28 Tr. at 357-62, 382.) As part of his duties, Thorsen developed and managed a highly regarded crime-prevention program called Operation Nightwatch. (10/26 Tr. at 59-64; 10/27 Tr. at 134-37.) This program teamed probation officers" }, { "docid": "3850880", "title": "", "text": "in that they are based on more substantial harm or more offensive conduct, are sometimes supported by medical testimony and evidence, evidence of treatment by a healthcare professional and/or medication, and testimony from other, corroborating witnesses. Finally, egregious emotional distress claims generally involve either outrageous or shocking discriminatory conduct or a significant impact on the physical health of the plaintiff. In significant or egregious cases, where there is typically evidence of debilitating and permanent alterations in lifestyle, larger damage awards may be warranted. Olsen v. County of Nassau, 615 F.Supp.2d 35, 46-47 (E.D.N.Y.2009) (internal citations and quotation marks omitted). The defendants thus argue that Thorsen’s emotional distress fall within the garden-variety category and, citing garden-variety cases, suggest that an award no greater than $100,000 is appropriate. Given the evidence produced at trial, the court does not agree that Thor-sen’s emotional distress damages are garden-variety. Both Thorsen and his treating psychologist Dr. Bayer testified at length about Thorsen’s depression and anxiety arising from the reduction in his job duties. The evidence showed that Thorsen saw Dr. Bayer twice a week for approximately six months, and that he continued to receive therapy for around a year-and-a-half until his retirement from Nassau County. The evidence also showed that Thorsen was prescribed both Celexa and Wellbutrin to treat his symptoms. Dr. Bayer testified in detail about Thorsen’s emotional state, describing it as “anxious, agitated, very unhappy, tearful on occasion.” Dr. Bayer also testified that being removed from Operation Nightwatch “hurt [Thorsen] deeply,” “drove him further into depression,” “was devastating,” and was “emotionally painful.” Both Thorsen and Dr. Bayer described Thor-sen’s physical symptoms, which included visible anxiety, tearfulness, nausea, headaches, and difficulty sleeping. The evidence also showed that Thorsen became detached from his family and co-workers. Most significantly, Dr. Bayer testified that Thorsen suffered from what he termed a “major stress attack” in February 2001 that required hospitalization. Although the defendants are correct that the evidence shows that Thorsen was able to continue working throughout his depression, Thorsen testified that he was essentially going through the motions during this time. Further, Carway’s involvement in the" }, { "docid": "3850876", "title": "", "text": "merits. As to whether Carway held a position of authority within the Republican Party, the court must give deference to the jury’s credibility determinations and reasonable inferences. See Kinneary, 601 F.3d at 155. Thorsen presented considerable testimony of a rift within the Republican Party between factions led by Mondello and Gulotta. Thorsen also presented evidence that he was known to be aligned with Mondello, including evidence that his application for the Director of Probation was endorsed by Mondello. In contrast, there was evidence that Carway applied for the position through Gulotta. Although the court dismissed Thorsen’s failure-to-promote claim, this evidence supports the jury’s finding that the subsequent reduction in Thorsen’s job duties was substantially motivated by Thorsen’s political affiliation with the “wrong” faction of the Republican Party. Accordingly, jmol is not warranted. The latter argument that Thorsen did not plead or prove First Amendment retaliation is somewhat baffling given the well-versed requirement that pleadings must merely give notice of underlying claims. See Fed. R. Civ. P. 8(a)(2); Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007). Thorsen’s second amended complaint made specific reference to being removed from his job duties, thus putting the defendants on notice of a separate First Amendment retaliation claim on this basis. (See Second Am. Compl. ¶¶ 68-70.) As discussed throughout the trial, the plaintiff argued and the court construed Thorsen’s allegations to include a claim of retaliation arising from the reduction in his job duties. At no time before or during the trial did the defendants assert that this was an unpled claim. The defendants’ attempt to now limit Thorsen’s claims is not only untimely but is entirely inconsistent with the complaint itself, the defendants’s position at trial, and the evidence presented. Moreover, the defendants’ argument that Thorsen should be limited to a free-speech claim is incoherent in light of well-established law that freedom from retaliation for political affiliation is a protected right under the First Amendment. See Branti, 445 U.S. at 516-17, 100 S.Ct. 1287; Elrod, 427 U.S. at 350, 96 S.Ct. 2673. Accordingly, even if the court were" }, { "docid": "3850872", "title": "", "text": "Id. (“When the verdicts are not capable of reconciliation and resubmission of the determinations for reconsideration or clarification is not possible because the jury has been discharged, a new trial may be — but is not always — required.”) (emphasis added). As the Second Circuit recently warned, the court “should not invalidate a judgment entered on the basis of a facially valid and proper jury verdict and require a costly and wasteful retrial merely because of a speculative possibility that facially consistent jury findings might have represented an inconsistency.” Aczel v. Labonia, 584 F.3d 52, 59 (2d Cir.2009) (citing Akermanis v. Sea-Land, Serv., 688 F.2d 898, 906 (2d Cir.1982)). Further, the court should if at all possible attempt to harmonize a special verdict rather than granting a new trial. Id. at 59-60 (citing Gallick v. Balt. & Ohio R.R. Co., 372 U.S. 108, 119, 83 S.Ct. 659, 9 L.Ed.2d 618 (1963); Turley v. Police Dep’t of City of N.Y., 167 F.3d 757, 760-61 (2d Cir.1999)). To the extent that the jury’s verdict requires any harmonizing at all, it is apparent that the jury found that the defendants’ actions in reducing Thorsen’s job duties were caused by his political affiliation, but the jury simply did not agree that Thorsen left for those same reasons. Given the testimony at trial, the jury could have concluded that Thorsen also left the department in order to develop his newly formed company Justice Strategies. Because the jury verdict is not inconsistent, a new trial is not warranted. IV. The Jury’s Findings Were Not Against the Weight of the Evidence The defendants next move for judgment as a matter of law because the jury’s verdict was against the weight of the evidence. In particular, the defendants argue that Thorsen failed to prove that: (1) Carway held a position of authority within the Republican Party; and (2) Thorsen did not plead or prove a First Amendment retaliation claim because his complaint referred to the Article 78 proceedings rather than the reduction in job duties. Both arguments are raised for the first time post-trial and are therefore unpreserved." }, { "docid": "3850871", "title": "", "text": "distress damages because those damages were inextricably woven between the plaintiffs two causes of action. III. The Jury’s Findings Were Not Inconsistent The defendants next argue that a new trial is warranted because the jury’s findings were inconsistent. The defendants claim that the jury’s finding that Thorsen was not constructively discharged is inconsistent with their finding that Thorsen suffered a reduction in job duties due to his political affiliation. The defendants thus argue that the jury awarding $1,500,000 in emotional distress damages “had much more to do with” Thorsen’s failure to promote claim than the reduction of his job duties. The jury’s findings are not inconsistent and a new trial is not warranted on this basis. Judgment via a special verdict may not be entered where the jury’s findings are inconsistent. See Lavoie, 975 F.2d at 53 (citing Auwood v. Harry Brandt Booking Office, Inc., 850 F.2d 884, 890-91 (2d Cir.1988)). However, as with all Rule 59 motions for a new trial, the granting of a new trial for an inconsistent special verdict is circumscribed. Id. (“When the verdicts are not capable of reconciliation and resubmission of the determinations for reconsideration or clarification is not possible because the jury has been discharged, a new trial may be — but is not always — required.”) (emphasis added). As the Second Circuit recently warned, the court “should not invalidate a judgment entered on the basis of a facially valid and proper jury verdict and require a costly and wasteful retrial merely because of a speculative possibility that facially consistent jury findings might have represented an inconsistency.” Aczel v. Labonia, 584 F.3d 52, 59 (2d Cir.2009) (citing Akermanis v. Sea-Land, Serv., 688 F.2d 898, 906 (2d Cir.1982)). Further, the court should if at all possible attempt to harmonize a special verdict rather than granting a new trial. Id. at 59-60 (citing Gallick v. Balt. & Ohio R.R. Co., 372 U.S. 108, 119, 83 S.Ct. 659, 9 L.Ed.2d 618 (1963); Turley v. Police Dep’t of City of N.Y., 167 F.3d 757, 760-61 (2d Cir.1999)). To the extent that the jury’s verdict requires any harmonizing" }, { "docid": "3850858", "title": "", "text": "separate claim categories. (Id. at 24.) The court denied the plaintiffs application out of concern for a duplicative award given that the plaintiffs claims were so intertwined. (IcL at 27.) At no point during the charging conference or at any point prior to the commencement of jury deliberations did the defendants withdraw their objection to segregating the damages for each claim. IV. The Verdict On November 9, 2009, the jury rendered a verdict. In response to special verdict questions, the jury found that: (1) the plaintiff proved that the defendants knew that the plaintiff affiliated himself with a faction of the Republican Party; (2) the plaintiff proved under Section 1983 that his affiliation with a faction of the Republican Party was a substantial or a motivating factor in the decision of the defendants to deny him the appointment to Director of Probation; (3) the plaintiff proved under Section 1983 that his affiliation with a faction of the Republican Party was a substantial or a motivating factor in the decision of the defendants to reduce his job duties; and (4) the plaintiff did not prove that the defendants constructively discharged him because of his affiliation with a faction of the Republican Party. The jury awarded the plaintiff $1,500,000 in emotional distress damages, and $500,000 in punitive damages against Carway. V. Post-Trial Proceedings On November 10, 2009, the court determined that the Nassau County Director of Probation was a policymaking position under Branti/Elrod and its progeny, and thus granted the defendants’ motion to dismiss this portion of the plaintiffs claim. (11/10 Tr. at 3-9.) As a result, the court set aside the jury’s finding that the defendants’ failure to promote Thorsen to Director of Probation violated the First Amendment. (Id. at 9.) The court determined that Thorsen’s claim arising from the reduction in his job duties survived in light of the defendants’ concession that the position held by Thorsen as Assistant to Director was not a policymaking position. ANALYSIS The defendants now move under Federal Rules of Civil Procedure 50(b) and 59(a) for judgment as a matter of law or, in the" }, { "docid": "3850857", "title": "", "text": "the law. (Id. at 781-82, 790.) The defendants submitted a memorandum of law the following day, on November 5, 2010. (Docket Entry 99.) Thorsen submitted a response memorandum of law on November 9, 2010, the same day that the jury rendered its verdict. (Docket Entry 101.). A decision on this policymaker issue was rendered on November 10 after the jury’s verdict. The court provided the parties with a draft version of the jury charge and verdict sheet which reflected the plaintiffs three viable claims: (1) the failure to promote Thorsen to the Director of Probation due to his political affiliation; (2) the reduction of Thorsen’s job duties due to his political faction affiliation; and (3) constructive discharge. At the charging conference, the plaintiff raised the question of whether emotional distress damages should be presented to the jury as one aggregate sum or should be divided among his three separate claims. (11/5 Tr. at 23-24.) The defendants objected to any breakdown of damages by claim, stating that they “wouldn’t want [the damages charge] broken down” into separate claim categories. (Id. at 24.) The court denied the plaintiffs application out of concern for a duplicative award given that the plaintiffs claims were so intertwined. (IcL at 27.) At no point during the charging conference or at any point prior to the commencement of jury deliberations did the defendants withdraw their objection to segregating the damages for each claim. IV. The Verdict On November 9, 2009, the jury rendered a verdict. In response to special verdict questions, the jury found that: (1) the plaintiff proved that the defendants knew that the plaintiff affiliated himself with a faction of the Republican Party; (2) the plaintiff proved under Section 1983 that his affiliation with a faction of the Republican Party was a substantial or a motivating factor in the decision of the defendants to deny him the appointment to Director of Probation; (3) the plaintiff proved under Section 1983 that his affiliation with a faction of the Republican Party was a substantial or a motivating factor in the decision of the defendants to reduce his" }, { "docid": "3850870", "title": "", "text": "testified at length about the emotional distress he felt working on the peace officer’s manual, which he found was a very mundane task and lacked any guidance or support from Carway. Thorsen testified that he was no longer involved in executive decisions and did not have the same level of prestige within the Probation Department. The evidence also showed that Thorsen withdrew from his colleagues and family out of embarrassment. In sum, the evidence demonstrated that Thorsen’s emotional distress was intertwined amongst being removed and ostracized from management as well as the failure to promote him. There is clear authority that trial courts should avoid providing a plaintiff with duplicative recovery on intertwined causes of action. See Bender v. City of New York, 78 F.3d 787, 793 (2d Cir.1996); Indu Craft, Inc. v. Bank of Baroda, 47 F.3d 490, 497 (2d Cir.1995); Gentile v. County of Suffolk, 926 F.2d 142, 154 (2d Cir.1991). Accordingly, the court did not commit plain error when it required the jury to consider only a single aggregate sum of emotional distress damages because those damages were inextricably woven between the plaintiffs two causes of action. III. The Jury’s Findings Were Not Inconsistent The defendants next argue that a new trial is warranted because the jury’s findings were inconsistent. The defendants claim that the jury’s finding that Thorsen was not constructively discharged is inconsistent with their finding that Thorsen suffered a reduction in job duties due to his political affiliation. The defendants thus argue that the jury awarding $1,500,000 in emotional distress damages “had much more to do with” Thorsen’s failure to promote claim than the reduction of his job duties. The jury’s findings are not inconsistent and a new trial is not warranted on this basis. Judgment via a special verdict may not be entered where the jury’s findings are inconsistent. See Lavoie, 975 F.2d at 53 (citing Auwood v. Harry Brandt Booking Office, Inc., 850 F.2d 884, 890-91 (2d Cir.1988)). However, as with all Rule 59 motions for a new trial, the granting of a new trial for an inconsistent special verdict is circumscribed." }, { "docid": "3850885", "title": "", "text": "claim); Petrovits v. New York City Transit Auth., No. CV 95-9872(DFE), 2003 WL 22349676, at *5 (S.D.N.Y. Oct. 15, 2003) (award of $150,000 not excessive for Title VII discrimination claim). An award of $1,500,000 to Thorsen falls outside of the typical range of emotional distress damages in equivalent cases. In arriving at their verdict, it was proper for the jury to consider the personal humiliation and loss of reputation that Thorsen suffered by being removed from his job duties. See Henry v. Gross, 803 F.2d 757, 768 (2d Cir.1986) (“It is a basic principle of tort law in general, and of civil rights law in particular, that compensable injuries may include not only monetary losses such as out-of-pocket expenses but also injuries such as ‘personal humiliation’ and ‘mental anguish.’ ”) (quoting Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 306-08, 106 S.Ct. 2537, 91 L.Ed.2d 249 (1986)); Stolberg v. Bd. of Trustees, 474 F.2d 485, 488 (2d Cir.1973) (proper for jury to consider harm to the plaintiffs reputation caused in retaliation for lawful exercise of First Amendment rights). This evidence included not only being removed from Operation Nightwatch and being reassigned to the very mundane task of rewriting the peace officer manual, but also being inaccurately blamed for departmental problems as evidenced by the New York Times article. It is clear from the full award that the jury credited Thorsen’s allegations that, not only did the defendants remove him from his job duties, but in doing so they subjected him to personal humiliation and attempted to destroy his professional reputation in retaliation for his political affiliation. On the other hand, the jury found for the defendants on Thorsen’s constructive discharge claim. The jury thus found that Thorsen was not subjected to treatment that was so difficult or intolerable or abusive or unpleasant that a reasonable employee in the plaintiffs place would have felt compelled to resign. (See 11/9 Tr. at 1346-47.) The evidence also indicates that the jury did not wish to compensate Thorsen for an indefinite period of time. Upon his retirement from Nassau County, Thorsen stopped seeing" }, { "docid": "3850868", "title": "", "text": "This argument completely ignores the fact that the delay was caused by the defendants, who had almost six years to raise the policymaking issue and failed multiple times to submit a timely summary judgment motion in accordance with the schedule set by the court. Even after the court invited the defendants to submit a late summary judgment motion, they declined to do so and instead chose to first raise the issue in a motion in limine submitted close to trial. {See Docket Entry 88 at 16.) The court resolved the motion at the earliest opportunity. Accordingly, this record does not provide a basis for relief under Rule 51. Further, the defendants’ assertion that the “late” dismissal of this claim provided the plaintiff a windfall in damages is not only based on sheer conjecture, but is unsupported by the record. Throughout his testimony, Thorsen testified that his emotional distress damages were the byproduct of his feelings of being victimized by Carway because of his party faction affiliation. Although the defendants make much about Thorsen receiving psychotherapy in September 2000, prior to the reduction in job duties, both Thorsen and Dr. Bayer each testified that Thorsen’s emotional distress was inextricably woven into the reduction of his job duties. For instance, Dr. Bayer testified that Thorsen suffered a “major stress attack” in February 2001, after Thorsen’s job duties had been reduced. Dr. Bayer testified that Thorsen being removed from Operation Nightwatch “hurt him deeply,” “drove him further into depression,” “was devastating,” and was “emotionally painful.” Further, Dr. Bayer testified that Thorsen “was devastated” and was “ripped ... apart” by the New York Times article, which referenced Thorsen being removed from Operation Nightwatch, and which was published in March 2001. Similarly, Thorsen testified at length that being removed from Operation Night-watch, which Carway acknowledged was Thorsen’s “baby,” was extremely hurtful and caused him to go deeper into a depression. As part of the alleged campaign to destroy his reputation, Thorsen testified that the New York Times article made him feel branded as “a racist and a sexist” incapable of running Operation Night-watch. Thorsen also" }, { "docid": "3850886", "title": "", "text": "of First Amendment rights). This evidence included not only being removed from Operation Nightwatch and being reassigned to the very mundane task of rewriting the peace officer manual, but also being inaccurately blamed for departmental problems as evidenced by the New York Times article. It is clear from the full award that the jury credited Thorsen’s allegations that, not only did the defendants remove him from his job duties, but in doing so they subjected him to personal humiliation and attempted to destroy his professional reputation in retaliation for his political affiliation. On the other hand, the jury found for the defendants on Thorsen’s constructive discharge claim. The jury thus found that Thorsen was not subjected to treatment that was so difficult or intolerable or abusive or unpleasant that a reasonable employee in the plaintiffs place would have felt compelled to resign. (See 11/9 Tr. at 1346-47.) The evidence also indicates that the jury did not wish to compensate Thorsen for an indefinite period of time. Upon his retirement from Nassau County, Thorsen stopped seeing Dr. Bayer and by that point had ceased taking antidepressants. Thorsen did not produce any evidence to show that he has required any additional treatment since this time period, nor did he show that he has suffered any long-term or lasting effects resulting from the defendants’ retaliation. In light of the limited nature of Thorsen’s emotional distress, an award of $1,500,000 shocks the judicial conscious and is therefore excessive. Given the above, an award at the high end of typical emotional distress damages in equivalent cases would not be excessive. The award for emotional distress should therefore be reduced from $1,500,000 to $500,000. There will be a new trial on damages unless Thorsen agrees to the reduction to the sum of $500,000 for his emotional distress damages. If this remittitur is accepted, Thorsen would be entitled to$500,000 in compensatory damages, as well as the punitive damages awarded against Carway in the amount of $500,000. CONCLUSION For the foregoing reasons, the defendants’ motions pursuant to Federal Rules of Civil Procedure 50(b) and 59(a) are granted in" }, { "docid": "3850887", "title": "", "text": "Dr. Bayer and by that point had ceased taking antidepressants. Thorsen did not produce any evidence to show that he has required any additional treatment since this time period, nor did he show that he has suffered any long-term or lasting effects resulting from the defendants’ retaliation. In light of the limited nature of Thorsen’s emotional distress, an award of $1,500,000 shocks the judicial conscious and is therefore excessive. Given the above, an award at the high end of typical emotional distress damages in equivalent cases would not be excessive. The award for emotional distress should therefore be reduced from $1,500,000 to $500,000. There will be a new trial on damages unless Thorsen agrees to the reduction to the sum of $500,000 for his emotional distress damages. If this remittitur is accepted, Thorsen would be entitled to$500,000 in compensatory damages, as well as the punitive damages awarded against Carway in the amount of $500,000. CONCLUSION For the foregoing reasons, the defendants’ motions pursuant to Federal Rules of Civil Procedure 50(b) and 59(a) are granted in part and denied in part. There will be a new trial on damages unless Thorsen agrees to the reduction to the sum of $500,000 for his emotional distress damages. The defendants’ remaining motions are denied. SO ORDERED. . Although the court noted that the article was hearsay, the court admitted the document into evidence based on the plaintiff’s showing of trustworthiness and reliability. (10/28 Tr. at 237-38.) . The charging conference was transcribed electronically and the page numbers do not follow the same sequential order as other transcripts in this trial. . By stipulation, the court referred to the defendants collectively as \"the defendant” in both the charge and the verdict sheet. (See 11/4 Tr. at 793-95.) The court provided an explanation during the charge that \"the defendant” meant the County of Nassau. (See 11/9 Tr. at 1342-43.) . Rule 51 applies to both the jury charge and the special verdict form. See Jarvis v. Ford Motor Co., 283 F.3d 33, 57 (2d Cir.2002). . The deadline to commence dispositive motion practice was April 10," }, { "docid": "3850881", "title": "", "text": "Bayer twice a week for approximately six months, and that he continued to receive therapy for around a year-and-a-half until his retirement from Nassau County. The evidence also showed that Thorsen was prescribed both Celexa and Wellbutrin to treat his symptoms. Dr. Bayer testified in detail about Thorsen’s emotional state, describing it as “anxious, agitated, very unhappy, tearful on occasion.” Dr. Bayer also testified that being removed from Operation Nightwatch “hurt [Thorsen] deeply,” “drove him further into depression,” “was devastating,” and was “emotionally painful.” Both Thorsen and Dr. Bayer described Thor-sen’s physical symptoms, which included visible anxiety, tearfulness, nausea, headaches, and difficulty sleeping. The evidence also showed that Thorsen became detached from his family and co-workers. Most significantly, Dr. Bayer testified that Thorsen suffered from what he termed a “major stress attack” in February 2001 that required hospitalization. Although the defendants are correct that the evidence shows that Thorsen was able to continue working throughout his depression, Thorsen testified that he was essentially going through the motions during this time. Further, Carway’s involvement in the New York Times article, which Thorsen and Dr. Bayer both testified significantly increased his emotional distress, constitutes an extraordinary circumstance that moves this case beyond mere garden-variety. Accordingly, the court finds that Thorsen’s emotional distress damages are properly categorized as significant rather than merely garden-variety. Nonetheless, even where a court finds that emotional damages are significant, remittitur may still be appropriate. The defendants rely upon Rainone v. Potter, 388 F.Supp.2d 120 (E.D.N.Y.2005), and McGrory v. City of New York, No. CV 99-4062(FM), 2004 WL 2290898 (S.D.N.Y. Oct. 8, 2004), as equivalent cases. In Rainone, the court found $175,000 in compensatory damages was excessive even though the plaintiffs emotional distress was “more than mere ‘garden variety.’ ” 388 F.Supp.2d at 126. The court was persuaded by the fact that “there was no evidence of physical manifestations of emotional distress or debilitating alterations in lifestyle, and no evidence of permanency,” and thus found that an award of $50,000 was appropriate. Id. Similarly, in McGrory, the court found that the jury’s award of $533,390 was motivated by “sympathy”" }, { "docid": "3850869", "title": "", "text": "in September 2000, prior to the reduction in job duties, both Thorsen and Dr. Bayer each testified that Thorsen’s emotional distress was inextricably woven into the reduction of his job duties. For instance, Dr. Bayer testified that Thorsen suffered a “major stress attack” in February 2001, after Thorsen’s job duties had been reduced. Dr. Bayer testified that Thorsen being removed from Operation Nightwatch “hurt him deeply,” “drove him further into depression,” “was devastating,” and was “emotionally painful.” Further, Dr. Bayer testified that Thorsen “was devastated” and was “ripped ... apart” by the New York Times article, which referenced Thorsen being removed from Operation Nightwatch, and which was published in March 2001. Similarly, Thorsen testified at length that being removed from Operation Night-watch, which Carway acknowledged was Thorsen’s “baby,” was extremely hurtful and caused him to go deeper into a depression. As part of the alleged campaign to destroy his reputation, Thorsen testified that the New York Times article made him feel branded as “a racist and a sexist” incapable of running Operation Night-watch. Thorsen also testified at length about the emotional distress he felt working on the peace officer’s manual, which he found was a very mundane task and lacked any guidance or support from Carway. Thorsen testified that he was no longer involved in executive decisions and did not have the same level of prestige within the Probation Department. The evidence also showed that Thorsen withdrew from his colleagues and family out of embarrassment. In sum, the evidence demonstrated that Thorsen’s emotional distress was intertwined amongst being removed and ostracized from management as well as the failure to promote him. There is clear authority that trial courts should avoid providing a plaintiff with duplicative recovery on intertwined causes of action. See Bender v. City of New York, 78 F.3d 787, 793 (2d Cir.1996); Indu Craft, Inc. v. Bank of Baroda, 47 F.3d 490, 497 (2d Cir.1995); Gentile v. County of Suffolk, 926 F.2d 142, 154 (2d Cir.1991). Accordingly, the court did not commit plain error when it required the jury to consider only a single aggregate sum of emotional" }, { "docid": "3850845", "title": "", "text": "MEMORANDUM AND ORDER LINDSAY, United States Magistrate Judge. The plaintiff George Thorsen (“Thor-sen”) brought this action in February 2003 against the County of Nassau, Nassau County Civil Service Commission, and John Carway (“Carway”) alleging: (1) violation of the First Amendment and the New York State Constitution pursuant to 42 U.S.C. § 1983; (2) constructive discharge; and (3) common-law defamation. On July 10, 2009, the parties consented to the undersigned’s jurisdiction. (Docket Entry 51.) A jury trial was held from October 27, 2009, to November 6, 2009, during which the court dismissed Thor-sen’s defamation claim. On November 9, 2009, the jury found in favor of Thorsen on two of his Section 1983 political affiliation claims and awarded him emotional distress damages in the amount of $1,500,000, and awarded punitive damages against the defendant Carway individually in the amount of $500,000. The jury found against Thor-sen on his constructive discharge claim. At a post-trial hearing, the court dismissed one of the plaintiffs two Section 1983 claims under the so-called “policymaker” exception to First Amendment political affiliation law. See Branti v. Finkel, 445 U.S. 507, 517, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980); Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976); Vezzetti v. Pellegrini, 22 F.3d 483, 486 (2d Cir.1994). Before the court is the defendants’ motion under Federal Rules of Civil Procedure 50(b) and 59(a) for judgment as a matter of law or, in the alternative, for a new trial. The defendants argue that relief is warranted because: (1) the verdict sheet constituted plain error by permitting the jury to erroneously consider damages; (2) the damages award was excessive; (3) the verdict was inconsistent; and (4) the verdict was against the weight of the evidence. For the foregoing reasons, the defendants’ motions are granted in part and denied in part. BACKGROUND I. Pretrial Proceedings Thorsen commenced this action in February 2003. Thereafter, this matter was stayed pending resolution of related state court proceedings. In August 2006, Thor-sen filed an amended complaint alleging a First Amendment violation resulting from his affiliation with a faction of the Nassau County" }, { "docid": "3850852", "title": "", "text": "headaches, sleepless nights, a terrible feeling of worthlessness, and of victimization.” {Id. at 205.) Notwithstanding his depressed state of mind, Thorsen formed a committee to rewrite the peace officer’s manual as directed by Carway. {Id. at 207.) Despite Car-way’s assurance that this was an important assignment, Carway never responded to any of Thorsen’s memos on the subject, nor did Carway ask about the project. {Id. at 207-08.) Thorsen had little contact with Carway and was never given another assignment to do. (10/28 Tr. at 409-10.) After Carway’s appointment, Thorsen no longer enjoyed any of the prestige or responsibility previously associated with his position within the department. (10/27 Tr. at 208-09.) As further proof of what Thorsen alleged was an effort by Carway to punish him for his affiliation with the Mondello camp, Thorsen produced a New York Times interview of Carway. (PL’s Ex. 65.) In it, Carway was highly complimentary of the success of Operation Night-watch. However, the article also indicated that Thorsen was removed as head of the program amidst allegations in a lawsuit of racial and sex discrimination as well as political favoritism. In fact, that lawsuit did not name Thorsen, nor did the allegations pertain specifically to Operation Nightwatch. (10/27 Tr. at 220.) Carway was well aware of the specific allegations of that lawsuit when he gave the Times interview, because he was a named defendant and had already been deposed. (11/2 Tr. at 687-88.) Thorsen felt that the article branded him as a racist and a sexist. (10/27 Tr. at 220.) When Thorsen tried to question Carway about the article, Carway offered no explanation for his reported comments. {Id. at 223-25.) By 2002, Thorsen testified that he was in great emotional distress. (See, e.g., 11/2 Tr. at 568.) Thorsen believed he was no longer an active member of the Probation Department. (Id.) As a result, in the summer of 2002, Thorsen retired because he “couldn’t take it anymore” and because he felt his “career as a probation official ... was over.” (10/27 Tr. at 212.) After retiring from the Probation Department, Thor-sen continued to teach as" }, { "docid": "3850859", "title": "", "text": "job duties; and (4) the plaintiff did not prove that the defendants constructively discharged him because of his affiliation with a faction of the Republican Party. The jury awarded the plaintiff $1,500,000 in emotional distress damages, and $500,000 in punitive damages against Carway. V. Post-Trial Proceedings On November 10, 2009, the court determined that the Nassau County Director of Probation was a policymaking position under Branti/Elrod and its progeny, and thus granted the defendants’ motion to dismiss this portion of the plaintiffs claim. (11/10 Tr. at 3-9.) As a result, the court set aside the jury’s finding that the defendants’ failure to promote Thorsen to Director of Probation violated the First Amendment. (Id. at 9.) The court determined that Thorsen’s claim arising from the reduction in his job duties survived in light of the defendants’ concession that the position held by Thorsen as Assistant to Director was not a policymaking position. ANALYSIS The defendants now move under Federal Rules of Civil Procedure 50(b) and 59(a) for judgment as a matter of law or, in the alternative, for a new trial. The defendants argue that relief is warranted because: (1) the verdict sheet constituted plain error by permitting the jury to erroneously consider damages arising from Thorsen’s failure-to-promote claim; (2) the damages award was excessive; (3) the verdict was inconsistent; and (4) the verdict was against the weight of the evidence. I. Standard Federal Rule of Civil Procedure 50 provides for entry of judgment as a matter of law where “a reasonable jury would not have a legally sufficient evidentiary basis” to find in favor of the non-moving party as to the claim at issue. See Fed. R. Civ. P. 50(a)(1). “In reviewing such a motion, [the court] must give deference to all credibility determinations and reasonable inferences of the jury, and may not weigh the credibility of witnesses or otherwise consider the weight of the evidence.” Kinneary v. City of New York, 601 F.3d 151, 155 (2d Cir.2010) (quoting Brady v. Wal-Mart Stores, Inc., 531 F.3d 127, 133 (2d Cir.2008)). Rule 50 permits a party to move for judgment as" }, { "docid": "3850856", "title": "", "text": "been undermined, that he had been betrayed by a system that he loved and cherished and had performed exceptionally well in. He was well respected by his colleagues. He won awards. In essence, he felt the rug had been pulled from out from under him.” (11/4 Tr. at 745.) Dr. Bayer stated that Thorsen’s work environment was “emotionally-toxic” and eventually caused Thor-sen to retire. (Id. at 730.) Dr. Bayer testified that Thorsen began to reduce his treatment sessions after he retired. (Id. at 731-32.) III. Rule 50 Motions and the Charging Conference At the close of the plaintiffs case, the defendants moved for judgment as a matter of law under Federal Rule of Civil Procedure 50. The defendants sought dismissal of the libel and slander claims, which was granted. (11/4 Tr. at 775, 782-90.) Additionally, the defendants raised the argument that the Director of Probation position was exempt from First Amendment protection because it was a policymaking position. (Id. at 775-76.) The court deferred ruling on this issue until the parties fully researched and briefed the law. (Id. at 781-82, 790.) The defendants submitted a memorandum of law the following day, on November 5, 2010. (Docket Entry 99.) Thorsen submitted a response memorandum of law on November 9, 2010, the same day that the jury rendered its verdict. (Docket Entry 101.). A decision on this policymaker issue was rendered on November 10 after the jury’s verdict. The court provided the parties with a draft version of the jury charge and verdict sheet which reflected the plaintiffs three viable claims: (1) the failure to promote Thorsen to the Director of Probation due to his political affiliation; (2) the reduction of Thorsen’s job duties due to his political faction affiliation; and (3) constructive discharge. At the charging conference, the plaintiff raised the question of whether emotional distress damages should be presented to the jury as one aggregate sum or should be divided among his three separate claims. (11/5 Tr. at 23-24.) The defendants objected to any breakdown of damages by claim, stating that they “wouldn’t want [the damages charge] broken down” into" }, { "docid": "3850877", "title": "", "text": "S.Ct. 2197, 167 L.Ed.2d 1081 (2007). Thorsen’s second amended complaint made specific reference to being removed from his job duties, thus putting the defendants on notice of a separate First Amendment retaliation claim on this basis. (See Second Am. Compl. ¶¶ 68-70.) As discussed throughout the trial, the plaintiff argued and the court construed Thorsen’s allegations to include a claim of retaliation arising from the reduction in his job duties. At no time before or during the trial did the defendants assert that this was an unpled claim. The defendants’ attempt to now limit Thorsen’s claims is not only untimely but is entirely inconsistent with the complaint itself, the defendants’s position at trial, and the evidence presented. Moreover, the defendants’ argument that Thorsen should be limited to a free-speech claim is incoherent in light of well-established law that freedom from retaliation for political affiliation is a protected right under the First Amendment. See Branti, 445 U.S. at 516-17, 100 S.Ct. 1287; Elrod, 427 U.S. at 350, 96 S.Ct. 2673. Accordingly, even if the court were to consider the defendants’ arguments for jmol, they would also fail on the merits. Y. The Emotional Distress Award Was Excessive Finally, the defendants argue that the award of $1,500,000 in emotional distress damages was excessive, warrant ing either a new trial on damages or the grant of remittitur in lieu of a new trial. “A remittitur, in effect, is a statement by the court that it is shocked by the jury’s award of damages.” Ismail v. Cohen, 899 F.2d 183, 186 (2d Cir.1990). If a district court finds that a verdict is excessive, it may order a new trial, order a new trial limited to damages, or, under the practice of remittitur, condition denial of a motion for a new trial on the plaintiffs accepting damages in a reduced amount. Cross v. N.Y. City Transit Auth., 417 F.3d 241, 258 (2d Cir.2005). However, it is not among the powers of the trial court, where the jury has awarded excessive damages, simply to reduce the damages without offering the prevailing party the option of a" } ]

[ { "docid": "11051921", "title": "", "text": "of the Act, which has no substantive effect on it; the question is whether the new appeal requirements apply. I think they do because in the absence of expressed contrary provisions, statutes become effective when they are signed into law. See United States v. Ferryman, 897 F.2d 584, 588-89 (1st Cir.) (“no parole” provisions of Comprehensive Crime Control Act of 1984 effective upon signing; absent legislative intent the contrary, general presumption is that statutes become effective at the moment they are signed into law), cert. denied, 498 U.S. 830, 111 S.Ct. 90, 112 L.Ed.2d 62 (1990). Not only is there a lack of clear direction in the Act, the confusion is heightened by the mandates actually articulated. The newly enacted § 2253(e)(1) provides: “Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from — (A) the final order in a habeas coipus proceeding in which the detention complained of arises out of process issued by a State court____” (The situation before me.) Section 103 of the Act amends Rule 22 of the Federal Rules of Appellate Procedure to provide in part: “(b) CERTIFICATE OF APPEALABILITY. — In a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court, an appeal by the applicant for the writ may not proceed unless a district or a circuit judge issues a certificate of appeal-ability pursuant to section 2253(e) of title 28, United States Code.” (Emphasis added). (Again, the situation before me.) Prudence suggests that questions of reasonableness in the present circumstances need not be addressed. I shall apply the Rule of Appellate Procedure because it authorizes me, a district judge, to issue a certificate of appealability. The statute, 28 U.S.C. § 2253 applies by its wording only to circuit justices and judges and authorizes them to issue certificates of appealability. The statute does not say, however, that only circuit justices or judges may issue such certificates. I conclude the statute as amended does not prohibit district judges from exercising the authority vested" } ]

[ { "docid": "15231890", "title": "", "text": "deemed not federal laws for certain purposes, 28 U.S.C. § 1366 (chapter 85 district court jurisdiction), or that the District itself would be deemed a state for certain purposes. 28 U.S.C. §§ 1332 (diversity jurisdiction), 1367 (supplemental jurisdiction). There is no such statutory provision relating to section 2253(c). See generally 28 U.S.C. §§ 2241-2255. We have nevertheless concluded from precedent that a court of the District is a state court for purposes of section 2253(c). The present version of that section originated by amendment in the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, § 102, 110 Stat. 1214, 1217-18 (amending 28 U.S.C. § 2253). Prior to that amendment, the third paragraph of section 2253 had since its enactment in 1948 required a certificate, not of appealability but of probable cause (“CPC” hereafter) by the following language: An appeal may not be taken to the court of appeals from the final order in a habeas corpus proceeding where the detention complained of arises out of process issued by a State court, unless the justice or judge who rendered the order or a circuit justice or judge issues a certificate of probable cause. Act revising, codifying, and reenacting title 28 United States Code, c. 646, 62 Stat. 869, 967 (June 25, 1948) (codified at 28 U.S.C. § 2253). The requirements for that section 2253 CPC were not specified by statute, as are the requirements for the current 2253(c) COA, but the language “the detention complained of arises out of process issued by a State court” came forward unchanged. In the 1986 decision Garris v. Lindsay, we had interpreted the 1948 language in light of the 1970 creation of the current court system of the District as requiring a prisoner convicted by Superior Court of the District to obtain a CPC, and, denying him one, dismissed his appeal. 794 F.2d 722, 724 n. 8, 727 (D.C.Cir.1986). Congress’s 1996 amendment to section 2253 left that interpreted language unchanged and made no effort to disapprove Garris. Cf. Lorillard v. Pons, 434 U.S. 575, 580, 98 S.Ct. 866, 55 L.Ed.2d 40 (1978)" }, { "docid": "5935848", "title": "", "text": "§ 2111 was comparable to a lesser included offense and there was no guidance as to whether Congress intended to prescribe an additional punishment for the same offense or not. Applying the rule of lenity to this ambiguity the court vacated the sentences. Gibson, 820 F.2d at 698-99. However, Gibson is inapplicable here because here there is no ambiguity. Other circuits have followed the clear legislative intent and held that the Double Jeopardy Clause does not prohibit convictions and sentences under both §§ 924(c) and 2113(d). United States v. Harris, 832 F.2d 88, 91 (7th Cir.1987); United States v. Shavers, 820 F.2d 1375, 1377-78 (4th Cir.1987); United States v. Doffin, 791 F.2d 118, 120-121 (8th Cir.), cert. denied, 479 U.S. 861, 107 S.Ct. 210, 93 L.Ed.2d 140 (1986); United States v. Blocker, 802 F.2d 1102, 1103 (9th Cir.1986). We hereby do likewise. Appellant next contends that the consecutive five-year term of imprisonment imposed upon him constituted an ex post facto application of the 1984 amendment of § 924(c) because that amendment did not become effective until 36 months after it was enacted. Appellant erroneously relies on the effective date provision found in § 235(a)(1) of the Comprehensive Crime Control Act of 1984. That section was enacted as Chapter 2 of the Act and contained an amendment to § 924(a). The amendment to § 924(c) was enacted in Chapter 10 of the Act. Pub.L. No. 98-473, 98 Stat. 1837, 2138 (1984). The effective date of the amendment to § 924(c) was October 12, 1984. United States v. Robinson, 865 F.2d 171,172 (8th Cir.1989); United States v. York, 830 F.2d 885, 892 (8th Cir.1987), cert. denied, 484 U.S. 1074, 108 S.Ct. 1047, 98 L.Ed.2d 1010 (1988). The amendment was, therefore, correctly applied to Holloway’s March 1986 offense. AFFIRMED." }, { "docid": "22410206", "title": "", "text": "or final order in a habeas corpus proceeding before a “circuit justice or judge issues a certificate of appeal-ability.” 28 U.S.C. § 2253(c)(1)(A), (B). This language seems to indicate certificates of appealability should be issued, if at all, only by a circuit justice or judge. Id. The language of this amended statute seems to conflict with Fed.R.App.P. 22(b), which provides the district court judge who entered the judgment “shall either issue a certificate of appealability or state the reasons why such a certificate should not issue”; under Rule 22(b), only after the district court has denied the certificate will the circuit court consider whether the certificate should issue. Id. While the specific language of Fed. R.App.P. 22(b) seems to deal only with habe-as corpus proceedings, and not 28 U.S.C. §' 2255 motions, the caption of the rule indicates its application to § 2255 motions. See Fed.R.App.P. 22(b) (rule captioned “Habeas Corpus and Section 2255 Proceedings”). Consequently, the statute and rule created confusion as to the district court’s role in issuing certificates of appealability. In an attempt to resolve the apparent conflict, this court issued an emergency order “direet[ing] the district courts to consider the propriety of issuing certificates of appealability in the first instance.” Emergency General Order, In re Procedures Regarding the Prison Litigation Reform Act and the Anti-terrorist and Effective Death Penalty Act, No. 96-41 (10th Cir. Oct. 1, 1996). Additionally, the order directs if a certificate of ap-pealability is denied by the district court, “petitioner-appellants will be required to brief any request for a certificate of appeala-bility in this court and address the merits of their appeals at the same time. Respondent-appellees shall not file a brief until requested to do so by this court.” Id. (citation omitted). We agree with the government that the circuit court should, in most cases, rule on the certificate of appealability prior to requiring the government’s merit brief. This conclusion is supported not only by the plain language of the Emergency Order, but also by the legislative intent of the Antiterrorism and Effective Death Penalty Act. Congress enacted the certificate of appealability" }, { "docid": "11696506", "title": "", "text": "MEMORANDUM AND ORDER DENYING CERTIFICATE OF APPEALABILITY AS MOOT ALAN B. JOHNSON, Chief Judge Defendant Abel Cota-Loaiza filed a motion for post-conviction relief pursuant to 28 U.S.C. § 2255 on April 8, 1996. This court denied Mr. Cota-Loaiza’s motion on July 16, 1996. United States v. Cota-Loaiza, 936 F.Supp. 751 (D.Colo.1996). Mr. Cota-Loaiza filed a notice of appeal on July 26,1996. The court will construe Mr. Cota-Loaiza’s notice of appeal as a request for a certificate of appealability pursuant to 28 U.S.C. § 2253(c)(1)(B) and Fed.R.App.P. 22(b), as amended by the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 1 (Mr-132, Title I, §§ 102 and 103, 110 Stat. 1214, 1217-18 (1996). Hernandez v. Starbuck, 69 F.3d 1089, 1090 n. 1 (10th Cir.1995) (notice of appeal may be construed as request for certificate of probable cause), cert. denied, — U.S.-, 116 S.Ct. 1855, 134 L.Ed.2d 954 (1996); Fed.R.App.P. 22(b) (same). Having considered all the relevant facts and law and the entire file in this case, the court DENIES Mr. Cota-Loaiza’s request as moot. I Before April 24, 1996, the date Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104r-132, 110 Stat. 1214 (1996), it was not necessary for a § 2255 movant to obtain a certificate of appealability in order to appeal the denial of his motion. However, § 102 of the Act added 28 U.S.C. § 2253(c)(1), which provides: (e)(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from— (A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or (B) the final order in a proceeding under section 2255. 110 Stat. 1217. In addition, § 103 of the Act, 110 Stat. 1218, amended Fed.RApp.P. 22, which now provides: Rule 22. Habeas corpus and section 2255 proceedings (a) APPLICATION FOR THE ORIGINAL WRIT. — An application for a writ of habeas corpus shall be made to the appropriate district court. If application is made" }, { "docid": "23147071", "title": "", "text": "language provides that “a district judge or a circuit judge” may issue the certificate, and imposes on a district judge who denies collateral relief the duty to “either issue a certificate of appealability or state the reasons why such a certificate should not issue.” Congress made its choice, and that choice was to adopt the second option, not the Friendly approach. The legislative history leading up to enactment of the AEDPA §§ 102-103 amendments to 28 U.S.C. § 2253 and to Federal Rule of Appellate Procedure 22(b) does not convince us that Congress intended to divest district judges of the authority to issue certificates of appealability. To the contrary, the legislative history of the amendments indicates otherwise. It certainly does not override the force of the decisional law requiring that we give all the language of both § 2253(c) and Rule 22(b), as amended, effect. See supra p. 1576. IV. CONCLUSION We hold that the 28 U.S.C. § 2253(c) and Federal Rule of Appellate Procedure 22(b) amendments, made by §§ 102-103 of the An-titerrorism and Effective Death Penalty Act of 1996, apply to 28 U.S.C. § 2254 proceedings in which no certificate of probable cause to appeal was obtained before the April 24, 1996 effective date of the Act. We also hold that those amendments apply to 28 U.S.C. § 2255 proceedings in which no notice of appeal was filed before that effective date. We further hold that under 28 U.S.C. § 2253(c), as amended, and Federal Rule of Appellate Procedure 22(b), as amended, district court judges are authorized to issue certificates of appealability. In Hunter v. United States, No. 96-6513, we order that the appeal may proceed. In Bailey v. Nagle, No. 96-6770, we remand the case to the district court for compliance with the requirement of 28 U.S.C. § 2253(c)(3) that the certificate of appealability indicate which specific issue or issues satisfies the § 2253(c)(2) standard. After such compliance, the appeal may proceed. So ORDERED. . The district court granted Hunter a certificate of appealability notwithstanding the fact that this is his at least fourth 28 U.S.C. §" }, { "docid": "21557506", "title": "", "text": "curiam), cert. denied, — U.S. -, 108 S.Ct. 1047, 98 L.Ed.2d 1010 (1988). Section 924(c) was amended by the Comprehensive Crime Control Act of 1984 (the Act), Pub.L. No. 98-473, Tit. II, 98 Stat. 1976 (1984), and Robinson argues that the effective date set forth in section 235(a)(1) of the Act, November 1, 1986, applies to the amendment. See Pub.L. No. 98-473, 98 Stat. 1976, 2031 (1984). Although we rejected this argument on direct appeal, Robinson points to 18 U.S.C.A. § 924 note (West Supp.1988) (effective date of 1984 amendment was November 1, 1987) and a passing reference to section 924 and the November 1, 1986 effective date in United States v. Torres, 809 F.2d 429, 431 n. 3 (7th Cir.1987), as proof that our earlier opinion was erroneous. We disagree. Section 235(a)(1), which provides that “this chapter shall take effect” on November 1, 1986, appears in Chapter II of the Act, the chapter known as the Sentencing Reform Act of 1984. The amendment to section 924(c), however, was enacted as part of Chapter X of the Act, the Miscellaneous Violent Crime Amendments of 1984. See Pub.L. No. 98-473, ch. X, § 1005(a), 98 Stat. 2136, 2138-39 (1984). As we concluded in York, in the absence of an explicit contrary provision, the amendment in Chapter X took effect on the date of enactment, October 12, 1984. See York, 830 F.2d at 892. In any event, “[o]ne panel of this Court is not at liberty to overrule an opinion filed by another panel.” Brown v. First Nat’l Bank, 844 F.2d 580, 582 (8th Cir.), cert. dismissed, — U.S. -, 109 S.Ct. 20, 101 L.Ed.2d 971 (1988). Finally, Robinson’s reliance on the ambiguous note and the obiter dictum in Torres is unavailing. The amendment to section 924 that was to take effect on November 1,1986, was the deletion of a reference to parole in section 924(a). See Pub.L. No. 98-473, ch. II, § 223(a), 98 Stat. 1976, 2028 (1984). Unlike the section 924(c) amendment at issue in this case, the change in section 924(a) was part of Chapter II of the Act," }, { "docid": "13998521", "title": "", "text": "of the petition. See Caballero v. Keane, 42 F.3d 738, 740 (2d Cir.1994); Grey v. Hoke, 933 F.2d 117, 120 (2d Cir.1991). The Antiterrorism and Effective Death Penalty Act of 1996 (the “AEDPA” or the “Act”), however, amended 28 U.S.C. § 2254(b) to permit courts to deny applications for a writ of habeas corpus on the merits, notwithstanding a petitioner’s failure to exhaust state remedies. Pub.L. No. 104-132, § 104, 110 Stat. 1214, 1218 (1996) (codified at 28 U.S.C. § 2254(b)(2)) The AEDPA was signed into law on April 24, 1996, after petitioner had filed this petition. While the portion of the AEDPA that creates new procedures for death penalty litigation explicitly states that the procedures are not to apply retroactively, see AEDPA § 107(c), 110 Stat. 1226, the AEDPA is silent with respect to the retroactivity of provisions relating to non-capital habeas petitions. The Second Circuit has not yet ruled on whether this particular provision of the habeas corpus amendments should apply to cases pending before the enactment of the statute. See Reyes v. Keane, 90 F.3d 676 (2d Cir.1996) (one-year statute of limitations does not apply retroactively but requirement of certificate of appealability does apply retroactively); Boria v. Keane, 90 F.3d 36 (2d Cir.1996) (provision setting forth new substantive standard for granting habeas petitions does not apply retroactively). However, the Second Circuit has held that the language of § 107(c), which provides that the new procedures for capital cases shall apply only to cases pending on or after the date of enactment of the Act, does not carry any negative implication for other habeas cases. Reyes v. Keane, 90 F.3d 676, 679 (2d Cir.1996). In Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), the Supreme Court set out the standard for determining whether to apply a new statute to cases pending before the statute’s effective date. When Congress has not expressly prescribed the statute’s proper reach, a court “must determine whether the new statute would have retroactive effect, i.e., whether it would impair rights a party possessed when he acted, increase" }, { "docid": "3986084", "title": "", "text": "the jury to find beyond a reasonable doubt that Ramsey himself had deliberated, as Missouri law requires, see State v. Ferguson, 887 S.W.2d 585, 587 (Mo.1994), The instruction did not violate due process. See Kilgore v. Bowersox, 124 F.3d 985, 991 (8th Cir.1997); Thompson v. Missouri Bd. of Probation & Parole, 39 F.3d 186, 190 (8th Cir.1994); see also Baker v. Leapley, 965 F.2d 657, 659 (8th Cir.1992) (per curiam) (to warrant federal habeas relief for state prisoner, instructional error must constitute a fundamental defect that results in a complete miscarriage of justice or renders the defendant’s entire trial unfair). Last, Ramsey contends the district court should have given him permission to raise fourteen more issues on appeal. In Ramsey’s view, the district court committed error' in granting him a certificate of appealability limited to eleven issues under 28 U.S.C. § 2253 as amended by the Antiterrorism and Effective Death Penalty Act. Although he initially requested a certificate of appealability and we remanded the question of the certificate’s issuance to the district court, Ramsey now asserts the district court should have given him an unlimited certificate of probable cause under the pre-Aet version of § 2253. Ramsey filed his habeas petition in December 1995 before the Act’s April 1996 effective date, and he asserts the Act does not govern habeas petitions filed before then. See Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Section 2253 requires a state prisoner to obtain authorization from a district or circuit judge before appealing from the denial of a federal habeas petition. Before the Act, § 2253 required a state prisoner to obtain a certificate of probable cause. See 28 U.S.C. § 2253 (1994). The Act amended § 2253 to require a state prisoner to obtain a certificate of appealability. See 28 U.S.C.A. § 2253(c) (West Supp.1998). The same substantive standard governs issuance of the pre-Aet certificate of probable cause and the post-Act certificate of appealability. See Roberts v. Bowersox, 137 F.3d 1062, 1068 (8th Cir.1998); Tiedeman v. Benson, 122 F.3d 518, 521 (8th Cir.1997). Both certificates issue only" }, { "docid": "12964553", "title": "", "text": "purposes of section 924(c). IV. Finally, Luskin argues that 18 U.S.C. § 924(c) and 18 U.S.C. § 1952A were not in effect at the time of the attempts on Marie’s life, and that they did not come into effect until November 1, 1987. These sections were revised as part of the Comprehensive Crime Control Act of 1984 (the “Act”), which was enacted on October 12, 1984. Pub.L. No. 98-473, Tit. II, 98 Stat. 1976 (1984). This was a elephantine bill, encompassing many chapters. Chapter II of the Act contained the Sentencing Guidelines, and section 235(a)(1) of Chapter II stated that “this chapter shall take effect” on November 1, 1986. Enactment of the Sentencing Guidelines was delayed until November 1, 1987. Luskin argues that this effective date applied to all of the chapters of the Act, including the amendments to sections 924(c) and 1952A, which were contained in Chapter X of the Act. Every court that has considered this argument has rejected it. See United States v. Robinson, 865 F.2d 171, 172 (8th Cir.1989) (holding that section 924(c) came into effect on October 12, 1984, the date of enactment); United States v. York, 830 F.2d 885, 892 (8th Cir.1987), cert. denied, 484 U.S. 1074, 108 S.Ct. 1047, 98 L.Ed.2d 1010 (1988) (same holding); United States v. Meyers, 847 F.2d 1408, 1414-16 (9th Cir.1988) (effective date of another chapter was not delayed by effective date of the Sentencing Guidelines). We agree with these other circuits that the revisions to section 924(c) became effective when they were enacted since no other effective date was specified for Chapter X. Accordingly, the sentences imposed upon appellant Luskin are AFFIRMED. . In addition to this appeal, in which Luskin has been represented by counsel, Luskin filed a notice of appeal pro se on September 26, 1990. This appeal is also directed toward Luskin’s sentence, and it was docketed by the Clerk of the Court as case number 90-7387. We do not know why Luskin has filed an independent notice of appeal pro se, and Luskin has not stated any grounds for this separate appeal. Accordingly, we" }, { "docid": "23201326", "title": "", "text": "The financial affidavit Jackson filed in the district court (before the PLRA was signed) does not meet the updated requirements, thus amended section 1915(a) required him to file a new affidavit upon his subsequent appeal to this court. However, Fed.R.App.P. 24(a) provides that, unless the district court decertifies the prisoner’s i.f.p. status, that prisoner may appeal his case i.f.p. without.further application to the court. The statute would require Jaek-son to reapply to this court with a new affidavit; the Rule would carry forward his 1.f.p. certification from the district court. Faced with competing mandates, we must decide whether Congress’s procedural litigation reforms in the PLRA take precedence over the rules of appellate procedure. It has long been settled that Congress has the authority to regulate matters of practice and procedure in the federal courts. Sibbach v. Wilson & Co., 312 U.S. 1, 9-10, 61 S.Ct. 422, 424, 85 L.Ed. 479 (1941); Way man v. Southard, 23 U.S. (10 Wheat) 1, 21, 6 L.Ed. 253 (1825). Congress delegated some of this power in 1934 by passing the Rules Enabling Act, which gave the Supreme Court the power to promulgate rules of practice and procedure for United States courts. 28 U.S.C. §§ 2071-72. Despite this delegation of authority, Congress maintains an integral, albeit passive, role in implementing any rules drafted by the Court. For example, all such rules are subject to review by Congress; they take effect only after the Supreme Court has presented them to Congress and after Congress has had seven months to review proposed rules or changes. Id. § 2074. Congress uses the review period to “make sure that the action under the delegation squares with the Congressional purpose.” Sibbach, 312 U.S. at 15, 61 S.Ct. at 427. Although Congress has authorized the Court to exercise some legislative authority to regulate the courts, Congress at all times maintains the power to repeal, amend, or supersede its delegation of authority, or the rules of procedure themselves. United States v. Mitchell, 397 F.Supp. 166, 170 (D.D.C.1974), aff'd, 559 F.2d 31 (D.C.Cir.1976), cert. denied, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d" }, { "docid": "5764088", "title": "", "text": "of the amended version of 18 U.S.C. § 924(c) (use of a firearm during and in relation to a crime of violence). In 1978, the Supreme Court held that Congress had not intended to authorize consecutive sentences under 18 U.S.C. §§ 924(c) and 2113(d) (armed bank robbery) because the latter section contains its own enhancement provision for use of a firearm. See Simpson v. United States, 435 U.S. 6, 98 S.Ct. 909, 55 L.Ed.2d 70 (1978). However, as Mr. Chapman concedes, Congress authorized such consecutive sentences when it amended section 924(c) in the Comprehensive Crime Control Act of 1984 (CCCA), Pub.L. No. 98-473, § 1005(a), 98 Stat.1976, 2138-39 (codified as further amended at 18 U.S.C. § 924(c) (1988)). Mr. Chapman contends that the effective date of this amendment was November 1, 1987, months after the May and July events that underlie his convictions. In fact, the November 1987 effective date relates only to the Sentencing Guidelines authorized by Chapter II of the CCCA. Chapter X, which contained the relevant amendment of section 924(c), had no express effective date and thus became effective when enacted on October 12, 1984. See United States v. Luskin, 926 F.2d 372, 379-80 (4th Cir.), cert. denied, — U.S. —, 112 S.Ct. 68, 116 L.Ed.2d 43 (1991); United States v. Holloway, 905 F.2d 893, 895 (5th Cir.1990) (per curiam); United States v. Robinson, 865 F.2d 171, 172 (8th Cir.1989) (per curiam); United States v. York, 830 F.2d 885, 892 (8th Cir.1987) (per curiam), cert. denied, 484 U.S. 1074, 108 S.Ct. 1047, 98 L.Ed.2d 1010 (1988); see also United States v. Paiz, 905 F.2d 1014, 1029-31 (7th Cir.1990) (distinguishing between delayed effective date of Sentencing Guidelines and immediate effective date of Chapter V of the CCCA), cert. denied, — U.S. —, 111 S.Ct. 1319, 113 L.Ed.2d 252 (1991). We thus conclude that there was no ex post facto application of section 924(c) in this ease. B. Mr. Wright’s Appeal 1. Search and seizure Mr. Wright sought to suppress the fruits of the search of his quarters that had occurred shortly after his arrest. The district court determined" }, { "docid": "5764089", "title": "", "text": "express effective date and thus became effective when enacted on October 12, 1984. See United States v. Luskin, 926 F.2d 372, 379-80 (4th Cir.), cert. denied, — U.S. —, 112 S.Ct. 68, 116 L.Ed.2d 43 (1991); United States v. Holloway, 905 F.2d 893, 895 (5th Cir.1990) (per curiam); United States v. Robinson, 865 F.2d 171, 172 (8th Cir.1989) (per curiam); United States v. York, 830 F.2d 885, 892 (8th Cir.1987) (per curiam), cert. denied, 484 U.S. 1074, 108 S.Ct. 1047, 98 L.Ed.2d 1010 (1988); see also United States v. Paiz, 905 F.2d 1014, 1029-31 (7th Cir.1990) (distinguishing between delayed effective date of Sentencing Guidelines and immediate effective date of Chapter V of the CCCA), cert. denied, — U.S. —, 111 S.Ct. 1319, 113 L.Ed.2d 252 (1991). We thus conclude that there was no ex post facto application of section 924(c) in this ease. B. Mr. Wright’s Appeal 1. Search and seizure Mr. Wright sought to suppress the fruits of the search of his quarters that had occurred shortly after his arrest. The district court determined that the acting base commander, who had authorized the search, had probable cause to do so. Memorandum and Order of Nov. 8, 1988 (R.28) at 4. Even though some of the information on which permission to search was granted related to the Denver bank robbery, which had occurred over one month prior to the July 6, 1987 search, the court concluded that the information “was not so stale as to defeat probable cause to believe the fruits and instrumentalities of the Denver robbery would be found in Airman Wright’s quarters.” Id. at 5. The court next considered Mr. Wright’s contention that the search was invalid because it had not complied with the Oath or Affirmation Clause of the Fourth Amendment and with the analogous provision of Federal Rule of Criminal Procedure 41(c). Mr. Wright contended that the involvement of civilian federal and state authorities in the search had, in effect, converted the search from a military search to a “federal” one requiring strict compliance with the Fourth Amendment and with Rule 41(c). The district court" }, { "docid": "10144789", "title": "", "text": "amendment to Rule 22(b) referred to section 2253(c) even though prior to the amendment Rule 22(b) did not mention section 2253 which at that time did not even have subsections. We also note that the amendment to Rule 22(b) appears conspicuously in Title I of the AEDPA a short title dealing with habeas corpus reform. In these circumstances, we must conclude that Congress deliberately amended Rule 22(b); we consequently hold that section 2253(c)(1) authorizes a district judge to issue a certificate of appealability in cases under subparagraph A and thus necessarily under subparagraph B as well. Our conclusion harmonizes Rule 22(b) and section 2253(c)(1), and thus we reject any suggestion that these provisions are inconsistent. Moreover, it would be strange to read section 2253(c)(1) to authorize district judges to issue certificates of appealability in state but not in federal cases involving custody of prisoners. If anything, one might expect that Congress, for reasons of comity, would be more restrictive in vesting the power to issue a certificate of appealability in district judges in state rather than federal cases. We have reached our determination through our own analysis. Nevertheless, we find it significant that other courts of appeals have reached the same result, though their reasoning may differ from ours. See Lozada v. United States, 107 F.3d 1011, 1016 (2d Cir.1997) (“We therefore uphold the authority of district judges to issue COAs, at least in section 2254 cases.”); United States v. Asrar, 108 F.3d 217, 218 (9th Cir.1997); Lyons v. Ohio Adult Parole Auth., 105 F.3d 1063, 1066-73 (6th Cir.1997), cert. denied, — U.S. -, 117 S.Ct. 1724, 137 L.Ed.2d 845 (1997); Hunter v. United States, 101 F.3d 1565, 1573-77 (11th Cir.1996) (en banc), cert. denied, — U.S. -, 117 S.Ct. 1695, 137 L.Ed.2d 822 (1997). Although we hold that the district court had the power to grant a certificate of appealability, we face additional procedural obstacles prior to deciding this appeal on the merits. First, the certificate of appealability in this case does not specify the issues that warrant its issuance as required by section 2253(c)(3). In an appropriate case," }, { "docid": "16310809", "title": "", "text": "doubt existed regarding Mackey’s competency was entitled to a presumption of correctness pursuant to 28 U.S.C. § 2254(d), and it concluded that Mackey had failed to provide sufficient evidence to overcome this presumption. In its order denying Mackey’s habeas petition, the district court issued a certificate of probable cause to appeal pursuant to the former 28 U.S.C. § 2253. The issuance of a certificate of probable cause was consistent with this court’s view that the amendments to 28 U.S.C. § 2253 imposed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) were inapplicable to habeas petitions filed prior to the effective date of that Act, even if the appeals were initiated after that date. See, e.g., Caldwell v. Russell, 181 F.3d 731, 735 & n. 3 (6th Cir.1999) (explaining that because the defendant instituted his § 2254 petition before April 24, 1996, the pre-AEDPA version of § 2253 controlled his right to appeal); Arredondo v. United States, 120 F.3d 639, 640 (6th Cir.1997) (“By amendment of 28 U.S.C. § 2253, Chapter 153 of the Antiterrorism and Effective Death Penalty Act of 1996 imposed a requirement that § 2255 petitioners obtain certificates of appealability in order to appeal district court decisions denying relief. In Lindh v. Murphy, however, the Supreme Court held that Chapter 153 cannot be applied retroactively to cases pending on the enactment date of the statute, April 24,1996.” (citation omitted)). This Term, however, the Supreme Court held this view to be incorrect. In Slack v. McDaniel, - U.S.-, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000), the Supreme Court held that “when a habeas corpus petitioner seeks to initiate an appeal of the dismissal of a habeas corpus petition after April 24, 1996 (the effective date of AEDPA), the right to appeal is governed by the certificate of appealability (COA) requirements now found at 28 U.S.C. § 2253(c).” Id. at 1600. Therefore, with respect to appeals initiated after the effective date of AEDPA in habeas proceedings commenced prior to that date, pre-AEDPA law governs the appellate court’s review of the trial court’s ruling while AEDPA’s requirement of" }, { "docid": "1323486", "title": "", "text": "841(b)(1)(A) and (C). Id., 100 Stat. at 3207-3, -4. In other words, the amended section 841(b) created an explicit exception to the general 4205(a) rule allowing parole. The issue on appeal, therefore, is whether the “no parole” provision added to 18 U.S.C. § 841(b) by the 1986 amendments became effective before or after February 1987, when the instant offense was committed. Ordinarily, a statute becomes effective as soon as' it is signed into law in the absence of some provision to the contrary. E.g., United States v. Stillwell, 854 F.2d 1045, 1047 (7th Cir.), cert. denied, — U.S. -, 109 S.Ct. 508, 102 L.Ed.2d 544 (1988); United States v. York, 830 F.2d 885, 892 (8th Cir.1987), cert. denied, 484 U.S. 1010, 108 S.Ct. 1047, 98 L.Ed.2d 1010 (1988). If this general rule applies, then the “no parole” provision became effective on October 27, 1986, when President Reagan signed the Anti-Drug Abuse Act of 1986 into law. In that case, Robles’ claim would fail. Robles, however, contends that the Anti-Drug Abuse Act of 1986 expressly delayed the effective date of section 1002, including the “no parole” provision. He relies on our decision in United States v. Byrd, 837 F.2d 179 (5th Cir.1988), in which we were asked to determine the effective date of the 1986 amendment to section 841(b) requiring courts to impose a term of supervised release for drug offenses under that section. The supervised release requirement was substituted for the prior special parole term requirement as a part of the sweeping changes to 18 U.S.C. § 841(b) made by section 1002 of the Anti-Drug Abuse Act of 1986, the same section of the Act that added the “no parole” provision at issue in Robles’ appeal. A different section of the Anti-Drug Abuse Act of 1986, section 1004(a), replaced the phrase “special parole term” with “term of supervised release” throughout the federal narcotics laws. Section 1002 of the Anti-Drug Abuse Act of 1986 does not expressly provide for its effective date. Section 1004(b) thereof, however, does expressly delay the effective date of the amendments made by section 1004(a) until November" }, { "docid": "11685550", "title": "", "text": "arising under section 2254.” 28 U.S.C. § 2254(i). The language of this statute is clear. It expressly bars relief grounded on claims of incompetent or ineffective counsel in federal post-conviction proceedings. See Duncan v. Walker, 533 U.S. 167, 172-73, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001) (highlighting the term “federal” in 28 U.S.C. § 2254® to illustrate that Congress deliberately included “federal” in several sections of AEDPA to denote the applicability of provisions— such as the rule against ineffective assistance claims — to federal collateral post-conviction proceedings). And it bars “relief,” not simply particular kinds of relief, such as a writ of habeas corpus. We conclude, therefore, that the relief Post seeks is explicitly barred by the provisions of § 2254®. It is well settled that the Federal Rules of Civil Procedure “do not extend or limit federal jurisdiction, but they implement the exercise of existing jurisdiction, which has been conferred by statute.” Edwards v. E.I. Du Pont De Nemours & Co., 183 F.2d 165, 168 (5th Cir.1950); see also Sibbach v. Wilson & Co., 312 U.S. 1, 10, 61 S.Ct. 422, 85 L.Ed. 479 (1941) (noting that the federal jurisdiction created by statute may not be extended or restricted by court-enacted rules). It is equally “well established that federal courts are courts of limited jurisdiction, possessing only that power authorized by the Constitution and statute, which is not to be expanded by judicial decree.” Hudson v. Coleman, 347 F.3d 138, 141 (6th Cir.2003) (internal citations omitted). The jurisdiction of federal courts to entertain Rule 60(b) challenges to judgments entered in habeas proceedings brought under AEDPA, therefore, must be predicated on the very same jurisdiction granted to the federal courts by AEDPA. Gonzalez makes clear that, post-AEDPA, Rule 60(b) continues to have “an unquestionably valid role to play in habeas cases.” Gonzalez, 125 S.Ct. at 2649. But Gonzalez also makes it clear that when the AEDPA-amended habeas statutes conflict with Rule 60(b), AEDPA controls. See id. at 2646; see also Callihan v. Schneider, 178 F.3d 800, 802 (6th Cir.1999) (“[A] statute passed after the effective date of a federal rule" }, { "docid": "23388348", "title": "", "text": "this case. We therefore conclude that the due process issues are properly before us and that it is appropriate to resolve them now. III. The Constitutional Issues. A. Our Authority to Consider the Constitutionality of Supplemental Rule B. Supplemental Rule B was promulgated by the Supreme Court. 383 U.S. 1029, 1071-1085, 86 S.Ct. 200-211 (1966). This was done pursuant to an act of Congress, 28 U.S.C. § 2072, which states “The Supreme Court shall have power to prescribe by general rules, the form of process, writs .. . and the practice and procedure of the district courts . .. in . . . admiralty and maritime cases.. .. ” The rules are to become effective 90 days after they have been reported to the Congress by the Chief Justice. There has been much debate as to whether the Court has inherent power to prescribe such rules, or can do so only when the power is delegated to it by the Congress. See Wigmore, All Legislative Rules for Judiciary Procedure are Void Constitutionally, 23 Ill.L.Rev. 276 (1928); Pound, The Rule-Making Power of the Courts, 12 A.B.A.J. 599 (1926); Clinton, Rule 9 of the Federal Habeas Corpus Rules: A Case Study on the Need for Reform of the Rules Enabling Acts, 63 Iowa L.Rev. 15 n.26 (1977); Separation of Powers and the Federal Rules of Evidence, 26 Hastings L.J. 1059 (1975); Wright, Procedural Reform: Its Limitations and Its Future, 1 Ga.L.Rev. 563 (1967); Levin & Amsterdam, Legislative Control Over Judicial Rulemaking: A Problem in Constitutional Revision, 107 U.Pa.L. Rev. 1 (1958); Clark, Power óf the Supreme Court to Make Rules of Appellate Procedures, 49 Harv.L.Rev. 1303 (1936); Sunder-land, Character and Extent of the Rule-Making Power Granted U. S. Supreme Court and Methods of Effective Exercise, 21 A.B.A.J. 404 (1935); Brown, Federal Rulemaking: Problems and Possibilities, Report by the Federal Judicial Center (June 1981). We need not concern ourselves with this debate. In Sibbach v. Wilson & Co., Inc., 1941, 312 U.S. 1, 9-10, 61 S.Ct. 422, 424, 85 L.Ed. 479, the Court said: “Congress has undoubted power to regulate the practice and" }, { "docid": "23248787", "title": "", "text": "provides more specific procedures than does § 2253(c)(1). To the extent that this canon rests on the notion that greater detail and specificity indicate greater legislative attention to a particular provision, it would suggest favoring Rule 22(b) over § 2253(c)(1). In the end, we find that these canons of statutory construction point toward giving effect to the lengthy and detailed provisions of Rule 22(b), rather than to the easily overlooked language of § 2253(c)(1). 3. Legislative History Because this textual solution is not unassailable, we next .examine the Act’s background and legislative history. Certificates of probable cause have been a prerequisite to appellate review of denials of habeas petitions since 1908. Barefoot v. Estelle, 463 U.S. 880, 892 n. 3, 103 S.Ct. 3383, 3394 n. 3, 77 L.Ed.2d 1090 (1983). Before this year, both district and circuit judges could, and did, issue the certificates. See 28 U.S.C. § 2253 (1995); Barefoot, 463 U.S. at 893, 103 S.Ct. at 3394-95. Since at least as far back as 1982, however, there have been efforts in Congress to strip district courts of this authority and require petitioners to apply to the eourts of appeals for the certificates. See proposed Habeas Corpus Reform Act of 1982, S. 2216, 97th Cong., 128 Cong.Rec. S4836-38, §§ 3, 4 (1982) (proposing amendment of § 2253 and Rule 22(b) to allow only appellate judges to issue certificates of probable cause). Throughout the 1980s and the first years of this decade numerous proposals would have amended habeas corpus procedure; most of these would have divested the district courts of the authority to issue the certificates. Compare, e.g., proposed Habeas Corpus Reform Act of 1989, S. 811, 101st Cong., 135 CongRec. S811-01, §§ 3, 4 (1989) (proposing to amend § 2253 and Rule 22(b) to remove district courts from process) with proposed Omnibus Crime Control Act of 1991, H.R. 7892, 102d Cong., 137 Cong.Reo. H7892-02, § 1107 (proposing to amend § 2253 so that only non-capital appeals require certificates of probable cause, issuable by either a district or a circuit judge); proposed amendment No. 2043 to S. 55, 102d Cong.," }, { "docid": "11051919", "title": "", "text": "MEMORANDUM OPINION AND ORDER AND CERTIFICATE OF APPEALABILITY KANE, Senior District Judge. Before me is the petitioner’s Application for a Certificate of Probable Cause filed on April 26,1996 and signed by his counsel that same day. I denied his Petition for Writ of Habeas Corpus in a Memorandum Decision and Order on March 28,1996. The dates are important because on April 24, 1996 President Clinton signed into law the Antiterrorism and Effective Death Penalty Act of1996. This Act contains, among other significant provisions, amendments to 28 U.S.C. §§ 2244, 2253, 2254, 2255; Rule 22 of the Federal Rules of Appellate Procedure; and 21 U.S..C. § 848(q). The amended 28 U.S.C. § 2253 provides an appeal may not be taken to the court of appeals from a district judge’s ruling on a state prisoner’s habeas corpus petition unless a “circuit justice or judge” issues a “certificate of appealability.” The only effective date provision specified in Title I of the habeas corpus amendments is located in the death penalty litigation procedures section and states that those provisions shall apply to cases pending on or after enactment. The case at bar involves convictions for first degree murder for which the Petitioner was sentenced to two consecutive life terms of imprisonment. The prosecution did not seek the death penalty and the petitioner is not “subject to a capital sentence.” Accordingly, the death penalty litigation procedures do not apply. Because the statute is silent regarding the date of its applicability to pending habeas corpus proceedings in which the death penalty is not involved, courts are left to speculate whether the expression of applicability to capital eases “pending on or after enactment” is meant to exclude applicability to non-capital habeas corpus proceedings “pending on or after enactment.” I don’t think it does, but the Act gives no guidance. Moreover, the legislative history is silent on this as well as other points considered in this opinion. I don’t think a retrospective application analysis is at all helpful since I am concerned with present, not past, application. My decision denying the Petition was given before the effective date" }, { "docid": "16310810", "title": "", "text": "the Antiterrorism and Effective Death Penalty Act of 1996 imposed a requirement that § 2255 petitioners obtain certificates of appealability in order to appeal district court decisions denying relief. In Lindh v. Murphy, however, the Supreme Court held that Chapter 153 cannot be applied retroactively to cases pending on the enactment date of the statute, April 24,1996.” (citation omitted)). This Term, however, the Supreme Court held this view to be incorrect. In Slack v. McDaniel, - U.S.-, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000), the Supreme Court held that “when a habeas corpus petitioner seeks to initiate an appeal of the dismissal of a habeas corpus petition after April 24, 1996 (the effective date of AEDPA), the right to appeal is governed by the certificate of appealability (COA) requirements now found at 28 U.S.C. § 2253(c).” Id. at 1600. Therefore, with respect to appeals initiated after the effective date of AEDPA in habeas proceedings commenced prior to that date, pre-AEDPA law governs the appellate court’s review of the trial court’s ruling while AEDPA’s requirement of a certificate of appealability governs the right to appeal. Although in the instant case the district court granted a certificate of probable cause rather than a certificate of ap-pealability, the issues involved in this appeal each satisfy the standard for issuance of a certificate of appealability, and so we proceed to review the merits of Mackey’s two claims. II. ANALYSIS “We review a district court’s denial of habeas corpus relief de novo, but we review any findings of fact made by the district court for clear error.” Combs v. Coyle, 205 F.3d 269, 277 (6th Cir.2000). A state court’s factual findings are entitled to complete deference if supported by the evidence. See id. Because Mackey’s ha-beas petition was filed prior to the effective date of AEDPA, we apply the pre-AEDPA version of 28 U.S.C. § 2254 in reviewing the district court’s ruling. See Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). A. Right to Present an Insanity Defense Mackey first argues that the trial court’s “restrictive rulings on the" } ]

[ { "docid": "16527750", "title": "", "text": "for, religious devotional purposes. Defendants’ further concern that some currently non-existent inmate group may in the future form and adopt colors, or that existing gangs may change colors, to coincide with the colors of plaintiffs’ Santería beads, and then choose to wear them under them clothing without public display, is nothing less than “pure speculation,” which, as I have already stated, cannot and should not be the basis for burdening plaintiffs’ constitutional rights. I accept that this Court is bound to defer to prison administrators on questions of prison security needs. I also accept DOCS’ assertions that prison gang violence is on the rise and threatens the security of the state’s prisons, and further that gangs use beads as member identifiers and that, to this extent, the beads facilitate gang activity. Accepting all this, I am not required, on a motion for preliminary injunction, to indulge DOCS’ whims and anxieties about prospective hypothetical situations. See Senate Report at 11; House Report. While such claims may later prove sufficient to withstand the plaintiffs’ challenge to a carefully considered directive, speculative and uncertain anxieties are simply insufficient, at this time, to sustain a blanket prohibition on wearing beads under clothes. Thus, I find that there is a likelihood that the directive does not embody the least restrictive means to achieve the purported compelling goals of prison security and reduction of prison gang violence. The motion before me presents an opportunity to address defendants’ approach to their directive and this litigation. Defendants’ responses to the plaintiffs’ claims and to questions at the Hearing suggest that, in fashioning their directive, defendants did not adequately investigate and fully understand the Santería religion. It is significant that the one accommodation of plaintiffs’ religion adopted by the defendants— permission to possess beads — is antithetical to plaintiffs’ beliefs. The defendants have concluded that there is no significant burden in merely permitting Santería adherents to possess, but not wear, beads. This view of Santería, however, completely ignores plaintiffs’ claims that it is their sincere belief that they must wear the beads, and that it is the sincere belief" } ]

[ { "docid": "8702369", "title": "", "text": "relationships between adult males and juvenile males because the materials pose a threat of violence in the prison and impede prisoner rehabilitation). In McCabe, the prison, in order to prevent violence and to prevent the spread of racism, had refused to allow storage of CJCC materials in the prison library. McCabe, 827 F.2d at 638. We held that the prison regulation was too restrictive because it excluded books that merely contained racist views. Only literature that poses a threat of violence within the prison, we held, can be constitutionally banned as rationally related to the prison’s interest in preventing violence. Id. Thus, under McCabe, we must determine whether Christianities Ancient Enemy poses a threat of violence within the prison, either because it advocates violence, or because it is “so racially inflammatory as to be reasonably likely to cause violence at the prison.” Id. Merely “advocating racial purity” is .insufficient to justify confiscation. Id. Anyone familiar with prisons understands the seriousness óf the problems caused by prison gangs that are fueled by actively virulent racism and religious bigotry. Protecting staff from prisoners and prisoners from each other is a constant challenge. The warden, the deputy warden, and the chaplain for the Arizona State Prison Complex, where Stefanow lives, all testified that the inflammatory nature of the content of Mohr’s book poses a threat of violence to prisoners of other races and to the staff of that prison, whom the book generally identifies as agents of the so-called Zionist Occupation Govern ment. The security concerns of prison officials are entitled to respect and deference by the courts. - Harper, 877 F.2d at 733. Judgments regarding prison security “are peculiarly within the province and professional expertise of corrections officials, and, in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations, courts should ordinarily defer to their expert judgment in such matters.” Pell v. Procunier, 417 U.S. 817, 827, 94 S.Ct. 2800, 2806, 41 L.Ed.2d 495 (1974). We find no evidence in the record to suggest that the prison officials’ security concerns are" }, { "docid": "22866712", "title": "", "text": "but deciding whether to apply Turner or strict scrutiny in the first instance must depend on something else, like the majority’s inconsistency-with-proper-prison-administration test. The commonness of California’s housing policy is further irrelevant because strict scrutiny now applies to all claims of racial discrimination in prisons, regardless of whether the policies being challenged are unusual. The majority’s assertion is doubtful, because at least two other States apply similar policies to newly admitted inmates. Both Oklahoma and Texas, like California, assign newly admitted inmates to racially segregated cells in their prison reception centers. The similarity is not surprising: States like California and Texas have historically had the most severe problems with prison gangs. However, even States with less severe problems maintain that policies like California’s are necessary to deal with race-related prison violence. See Brief for States of Utah, Alabama, AJaska, Delaware, Idaho, Nevada, New Hampshire and North Dakota as Amici Curiae 16. Relatedly, 10.3% of all wardens at maximum security facilities in the United States report that their inmates are assigned to racially segregated cells — apr parently on a permanent basis. Henderson, Cullen, Carroll, & Feinberg, Race, Rights, and Order in Prison: A National Survey of Wardens on the Racial Integration of Prison Cells, 80 Prison J. 295, 304 (Sept. 2000). In the same survey, 4.3% of the wardens report that their States have an official policy against racially integrating male inmates in cells. Id., at 302. Presumably, for the remainder of prisons in which inmates are assigned to racially segregated cells, that policy is the result of discretionary decisions by wardens rather than of official state directives. Ibid. In any event, the ongoing debate about the best way to reduce racial violence in prisons should not be resolved by judicial decree: It is the job “of prison administrators ... and not the courts, to make the difficult judgments concerning institutional operations.” Jones, 433 U. S., at 128. The majority also observes that we have already carved out an exception to Turner for Eighth Amendment claims of cruel and unusual punishment in prison. See Hope v. Pelzer, 536 U. S." }, { "docid": "22866659", "title": "", "text": "prove that there would not be a riot[.] [But] [i]t is certainly ‘plausible’ that such a riot could ensue: our society, as well as our prisons, contains enough racists that almost any interracial interaction could potentially lead to conflict.” 336 F. 3d, at 1120 (case below) (Ferguson, J., dissenting from denial of rehearing en banc). Indeed, under Justice Thomas’ view, there is no obvious limit to permissible segregation in prisons. It is sot readily apparent why, if segregation in reception centers is justified, segregation in the dining halls, yards, and general housing areas is not also permissible. Any of these areas could be the potential site of racial violence. If Justice Thomas’ approach were to carry the day, even the blanket segregation policy struck down in Lee might, stand a chance of survival if prison officials simply asserted that it was necessary to prison management. We therefore reject the Turner standard for racial classifications in prisons because it would make rank discrimination too easy to defend. The CDC protests that strict scrutiny will handcuff prison administrators and render them unable to address legitimate problems of race-based violence in prisons. See also post, at 531-532, 546-547 (Thomas, J., dissenting). Not so. Strict scrutiny is not “strict in theory, but fatal in fact.” Adarand, 515 U. S., at 237 (internal quotation marks omitted); Grutter, 539 U. S., at 326-327 (“Although all governmental uses of race are subject to strict scrutiny, not all are invalidated by it”). Strict scrutiny does not preclude the ability of prison officials to address the compelling interest in prison safety. Prison administrators, however, will have to demonstrate that any race-based policies are narrowly tailored to that end. See id., at 327 (“When race-based action is necessary to further a compelling governmental interest, such action does not violate the constitutional guarantee of equal protection so long as the narrow-tailoring requirement is also satisfied”). The fact that strict scrutiny applies “says nothing about the ultimate validity of any particular law; that determination is the job of the court applying strict scrutiny.” Adarand, supra, at 229-230. At this juncture, no such" }, { "docid": "4398897", "title": "", "text": "on inmates receiving publications and other written materials from the CJCC “would probably be” or “could be” unreasonable. The court has conducted a thorough independent review of the denied CJCC publications. The court specifically finds that the CJCC religious literature at issue here is similar to the literature advocating racial purity held constitutionally protected in McCabe v. Arave, 827 F.2d 634, 638 (9th Cir.1987). In that case, the court of appeals noted that: Given the strength of First Amendment protection for freedom of belief prison authorities have no legitimate penological interest in excluding religious books from the prison library merely because they contain racist views. Courts have repeatedly held that prisons may not ban all religious literature that reflects racism. Id. at 638 (citations omitted). The court went on to strike down a prison regulation which prohibited inmates from maintaining non-violent CJCC literature in the prison chapel, holding that literature advocating racial purity, but not advocating violence or illegal activity as a means of achieving this goal, and not so racially inflammatory as to be reasonably likely to cause violence at the prison, cannot be constitutionally banned as rationally related to rehabilitation. Id. at 638. In a similar vein, the Eighth Circuit held in Murphy v. Missouri Dep’t of Corrections, 814 F.2d 1252 (8th Cir. 1987), that A total ban on Aryan Nations materials is more restrictive of prisoner first amendment rights than is necessary to maintain prison security. Restriction of inmate access to Aryan Nations materials through the mail must be limited to those materials which advocate violence or are so racially inflammatory as to be reasonably likely to cause violence at the prison. Id. at 1257; see also Wiggins, 753 F.2d at 668. Here, all three CJCC publications were banned, even though prison officials had not read all three publications. Indeed, ISP maintains a total ban on all CJCC publications. This total ban of all CJCC publications contravenes the holding in Murphy of a total ban on Aryan Nations literature. Murphy, 814 F.2d at 1257. Under Murphy, a ban on publications “must be limited to those materials that" }, { "docid": "8702363", "title": "", "text": "against the correctional officers themselves. The district court entered judgment in favor of the prison officials; The court concluded that, because Stefanow’s religion does not require him to read Christianities Ancient Enemy, confiscation of the book did not violate his free exercise rights under the Religious Freedom Restoration Act. Also, the district court found that the “racially based statements and principles set forth in Christianities Ancient Enemy would be reasonably likely to cause violence if allowed in a prison setting.” Thus, the district court rejected Stefanow’s free speech claim because it concluded that confiscation of the. book was “directly related to the prison’s goal of preventing violence and ensuring the safety of inmates and staff.” Finally, the court ruled that, even if confiscation of the book had violated Stefanow’s constitutional rights, the defendants were entitled to qualified immunity. STANDARD OF REVIEW Whether , the prison violated Stefanow’s First Amendment rights of free speech and free exercise of religion is a mixed question of law and fact. See Friedman v. Arizona, 912 F.2d 328, 331 (9th Cir.1990), cert. denied, 498 U.S. 1100, 111 S.Ct. 996, 112 L.Ed.2d 1079 (1991). We review Stefanow’s First Amendment claims de novo because “the application of law to fact will require the consideration of legal concepts and involve the exercise of judgment about the values underlying legal principles.” Id. (quoting United States v. McConney, 728 F.2d 1195, 1202 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984)). DISCUSSION I. Free Exercise of Religion The Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. §§ 2000bb-2000bb-4, provides that the government shall not substantially burden a person’s exercise of religion unless its action is the least restrictive means of furthering a- compelling government interest. , 42 U.S.C. § .2000bb-l. RFRA’s purpose is “to restore the compelling interests test ... in all cases where free exercise of religion is substantially burdened.” 42 U.S.C. § 2000bb-l(b)(l). Because of this broad purpose, we have held that RFRA governs prisoners’ free exercise claims. Bryant v. Gomez, 46 F.3d 948, 949 (9th Cir.1995). Under RFRA, Stefanow must make" }, { "docid": "22039374", "title": "", "text": "central to his religion.” D. Ct. Opinion of Sept. 27, 2002, at 7. We have stated that a substantial burden to free exercise rights may exist “when a prisoner’s sole opportunity for group worship arises under the guidance of someone whose beliefs are significantly different from his own.” Weir, 114 F.3d at 821. Murphy has asserted numerous beliefs and aspects of his faith that are incompatible with Protestant Christian beliefs. He has also asserted that communal worship is an important part of his religion. Whether Murphy can establish the truth of these allegations and the existence of a substantial burden on the exercise of his religion is a matter to be determined by the district court in the first instance following a trial on the merits on this issue. Assuming that Murphy’s religious practice has been substantially burdened, MDOC can still prevail if it establishes that its choice to give Murphy only solitary practitioner status was the least restrictive means to further a compelling interest. We conclude that although its actions were justified under the Turner reasonableness analysis, there is insufficient evidence to conclude that appellees have satisfied the heavier burden imposed upon them under RLUIPA. We acknowledge that MDOC has a compelling interest in institutional security. Ochs, 90 F.3d at 296. Nevertheless, it must do more than merely assert a security concern. Although we give prison officials “wide latitude within which to make appropriate limitations,” they “must do more than offer conclusory statements and post hoc rationalizations for their conduct.” Hamilton, 74 F.3d at 1554 (citation omitted). The threat of racial violence is of course a valid security concern, but to satisfy RLUIPA’s higher standard of review, prison authorities must provide some basis for their concern that racial violence will result from any accommodation of CSC’s request. See Ochs, 90 F.3d at 296-97 (indicating that the court considered the prior racial violence a relevant part of its decision to defer to prison authorities’ security concerns). We do not require evidence that racial violence has in fact occurred in the form of a riot, but we do require some evidence" }, { "docid": "22791388", "title": "", "text": "Aryan Nation who challenges prison officials’ confiscation of his white supremacist literature as a violation of his free association and expression rights would have his claims evaluated under the deferential rational-relationship standard described in Turner v. Safley, 482 U. S. 78 (1987). A member of the Church of Jesus Christ Christian challenging a similar withholding, the Sixth Circuit assumed, would have a stronger prospect of success because a court would review his claim under RLUIPA’s compelling-interest standard. 349 F. 3d, at 266 (citing Madison v. Riter, 240 F. Supp. 2d 566, 576 (WD Va. 2003)). Courts, however, may be expected to recognize the government’s countervailing compelling interest in not facilitating inflammatory racist activity that could imperil prison security and order. Cf. Reimann v. Murphy, 897 F. Supp. 398, 402-403 (ED Wis. 1995) (concluding, under RFRA, that excluding racist literature advocating violence was the least restrictive means of furthering the compelling state interest in preventing prison violence); George v. Sullivan, 896 F. Supp. 895, 898 (WD Wis. 1995) (same). State prison officials make the first judgment about whether to provide a particular accommodation, for a prisoner may not sue under RLUIPA without first exhausting all available administrative remedies. See 42 U. S. C. §2000cc-2(e) (nothing in RLUIPA “shall be construed to amend or repeal the Prison Litigation Reform Act of 1995”); §1997e(a) (requiring exhaustion of administrative remedies). Respondents argue that prison gangs use religious activity to cloak their illicit and often violent conduct. The instant case was considered below on a motion to dismiss. Thus, the parties’ conflicting assertions on this matter are not before us. It bears repetition, however, that prison security is a compelling state interest, and that deference is due to institutional officials’ expertise in this area. See supra, at 722-723. Further, prison officials may appropriately question whether a prisoner’s religiosity, asserted as the basis for a requested accommodation, is authentic. Although RLUIPA bars inquiry into whether a particular belief or practice is “central” to a prisoner’s religion, see 42 U. S. C. §2000cc-5(7)(A), the Act does not preclude inquiry into the sincerity of a prisoner’s professed religiosity." }, { "docid": "8702368", "title": "", "text": "be a “legitimate and neutral one.” Id. at 90, 107 S.Ct. at 2262. Here, the prison confiscated Christianities Ancient Enemy because of its concern that the book threatened the security of inmates and prison staff. Prison security is undoubtedly a legitimate-even a compelling-interest. However, because the prison confiscated Christianities Ancient Enemy on the basis of its content (advocacy of racism and violence), we must scrutinize the prison’s asserted justification more closely. See id. at 90, 107 S.Ct. at 2262 (“We have found it important to inquire whether prison regulations restricting inmates’ First Amendment rights operated in a neutral fashion, without regard to the content of the expression.”). In McCabe v. Arave, 827 F.2d 634, 638 (9th Cir.1987), we held that some content regulation is permissible in the prison context. Specifically, materials that pose a threat to security in the prison or a threat to another legitimate penological interest can be excluded on the basis of content. Id.; see also Harper v. Wallingford, 877 F.2d 728, 733 (9th Cir.1989) (upholding prison ban on materials promoting sexual relationships between adult males and juvenile males because the materials pose a threat of violence in the prison and impede prisoner rehabilitation). In McCabe, the prison, in order to prevent violence and to prevent the spread of racism, had refused to allow storage of CJCC materials in the prison library. McCabe, 827 F.2d at 638. We held that the prison regulation was too restrictive because it excluded books that merely contained racist views. Only literature that poses a threat of violence within the prison, we held, can be constitutionally banned as rationally related to the prison’s interest in preventing violence. Id. Thus, under McCabe, we must determine whether Christianities Ancient Enemy poses a threat of violence within the prison, either because it advocates violence, or because it is “so racially inflammatory as to be reasonably likely to cause violence at the prison.” Id. Merely “advocating racial purity” is .insufficient to justify confiscation. Id. Anyone familiar with prisons understands the seriousness óf the problems caused by prison gangs that are fueled by actively virulent racism and" }, { "docid": "18265520", "title": "", "text": "Ohio Department of Rehabilitation and Correction, testified at the hearing that inmates living in double cells are segregated by race in cell blocks G, H, I and K, which comprise the reception area of the facility, and in A and B blocks which are the “maximum unassigned” areas housing disciplinary transfers from medium security institutions. McKeen stated that this practice has been in effect at CCF at least since the time he first became familiar with the institution a decade ago. The Court does note that cells in other areas of CCF are not segregated, nor are the dormitory living spaces, the limited duty unit, or common areas such as the dining hall. Superintendent McKeen testified that the practice of segregation at CCF stems from the prison administration’s desire to reduce the possibility of racial tension and potential violence which it fears will result from celling black and white inmates together. George Denton testified that double cells are integrated at all other Ohio institutions and have presented no such problems. Yet McKeen explained that because CCF is the initial reception center for inmates coming into the state corrections system, the administration has insufficient information concerning their background to integrate them in the two-man reception cells where officials fear racial bias might flare into violence. With regard to A and B blocks McKeen stated that inmates housed there have been received as disciplinary transfers, “some” of whom allegedly have been involved in incidents with racial overtones at outlying institutions, and therefore are assigned to cells on the basis of their race in order to reduce possible conflicts. From all of the testimony introduced at the hearing it appears that the defendants have implemented and continued the policy of segregation at CCF out of a belief that such a practice would reduce tension among the inmates. Nevertheless, the defendants were unable at the hearing to make any showing whatsoever that there is substance to their stated fears. Indeed, because integration has not even been attempted at CCF with regard to reception inmates within at least the past ten years, prison officials could" }, { "docid": "3574378", "title": "", "text": "not dispute the facts of this case as reflected in the testimony received from two evidentiary hearings before the magistrate judge. A court order was issued in Williams v. McKeithen, CA 71-98 (M.D.La.1975), enjoining racial discrimination in the operation or administration of the Louisiana State Penitentiary (Angola) and ordering prison officials to immediately correct any effects of past racial discrimination and to maintain Angola as a completely integrated facility. Deputy Warden Richard Peabody testified, however, that even after the court order was issued it remained the policy and general practice at Angola not to mix black and white prisoners together in the same two-man cell. He further stated that the segregation of prisoners in two-man cells was not racially motivated but, instead, motivated by security concerns and the past incidents of violence between black and white prisoners. He was able to testify as to two incidents, one in 1976 and one in 1977, where violence erupted between black and white prisoners who were placed together in administrative lockdown cells. However, he did not testify as to whether either of these incidents were investigated or whether either incident developed from racial tension. Despite his testimony regarding security concerns and past experiences of violence between black and white prisoners, Warden Peabody did admit that the rest of Angola had been completely integrated. Phelps testified that he was familiar with the court order, and that he understood it to mean that segregating prisoners by race alone is unconstitutional. Although he toured the cell blocks in Angola on a regular basis, he could not say that he was or was not aware of the general policy of racial segregation of the two-man cells. He did testify, however, that he did not believe that the past incidents of violence in the cell blocks had racial overtones, but that such incidents usually involved sex or money. Blackburn testified that while he was warden he became aware of the court order, but that he did not recall ever seeing a white and black prisoner housed together in a two-man cell. He stated that it was his belief" }, { "docid": "3574384", "title": "", "text": "the night; (2) the prisoners placed in Angola are the “worst of the worst”; (3) two instances occurred in which black and white prisoners housed together became violent; (4) racial supremacy groups existed within the prison ranks; and (5) interracial conflicts may have triggered more generalized racial violence. In support of the policy, they add that the low number of two-man cell assaults were a direct result of its success. Although this Court has not specifically defined the “particularized circumstances” exception in Lee v. Washington, the general rule is clear: a generalized or vague fear of racial violence is not a sufficient justification for a broad policy of racial segregation. The five factors Phelps and Blackburn argue fail to prove the existence in Angola of an unusual 'situation in which security and discipline would have demanded segregation. If violent disruptions did occur, we would expect the prison officials to take appropriate action against the offending prisoners, black or white. Even the racial segregation of offending individual prisoners would be acceptable if, based on an individualized analysis, the prison officials determined such action would be needed to stifle particular instances of racial violence. Although we respect the need for security at Angola, the argument that integrated two-man cells may lead to more violence between black and white prisoners is not tenable, given that the rest of the prison was integrated pursuant to the court order in Williams v. McKeithen. Therefore, we hold that the general policy of segregating two-man cells in effect at Angola until 1990 was unconstitutional. We further hold that Phelps and Blackburn are not protected under qualified immunity, due to their knowing and intentional participation in a general policy of racial segregation which remained in effect until 1990 and violated a court order mandating full integration of the prison facility. COMPENSATORY DAMAGES Compensatory damages awarded pursuant to § 1983 are governed by common law tort principles. Keyes v. Lauga, 635 F.2d 330, 336 (5th Cir.1981). Absent an error of law, the reviewing court will sustain the amount of damages awarded by the fact finder, unless the amount is" }, { "docid": "3574379", "title": "", "text": "to whether either of these incidents were investigated or whether either incident developed from racial tension. Despite his testimony regarding security concerns and past experiences of violence between black and white prisoners, Warden Peabody did admit that the rest of Angola had been completely integrated. Phelps testified that he was familiar with the court order, and that he understood it to mean that segregating prisoners by race alone is unconstitutional. Although he toured the cell blocks in Angola on a regular basis, he could not say that he was or was not aware of the general policy of racial segregation of the two-man cells. He did testify, however, that he did not believe that the past incidents of violence in the cell blocks had racial overtones, but that such incidents usually involved sex or money. Blackburn testified that while he was warden he became aware of the court order, but that he did not recall ever seeing a white and black prisoner housed together in a two-man cell. He stated that it was his belief that the two-man cells were racially segregated because of the feeling that there was a need for security, although he could not recall any specific incidents that would have justified a need for security. The Prisoners testified that while they were confined at Angola they were never housed in a two-man cell with a white prisoner, nor did they ever see a black and white prisoner housed together in a two-man cell. They also testified that white prisoners in two-man cells received preferential treatment over the cells occupied by black prisoners. For example, white two-man cells were called to showers and to sell plasma first, enjoyed better telephone and store privileges, and had a better view of the televisions. In addition, the Prisoners testified that when a prisoner awaits assignment to a two-man cell, his privileges are suspended. This temporary suspension of privileges, called “administrative lockdown,” was prolonged at Angola due to the general policy of racial segregation. As a result, the Prisoners were damaged because they were deprived of privileges such as work, plasma" }, { "docid": "22039375", "title": "", "text": "Turner reasonableness analysis, there is insufficient evidence to conclude that appellees have satisfied the heavier burden imposed upon them under RLUIPA. We acknowledge that MDOC has a compelling interest in institutional security. Ochs, 90 F.3d at 296. Nevertheless, it must do more than merely assert a security concern. Although we give prison officials “wide latitude within which to make appropriate limitations,” they “must do more than offer conclusory statements and post hoc rationalizations for their conduct.” Hamilton, 74 F.3d at 1554 (citation omitted). The threat of racial violence is of course a valid security concern, but to satisfy RLUIPA’s higher standard of review, prison authorities must provide some basis for their concern that racial violence will result from any accommodation of CSC’s request. See Ochs, 90 F.3d at 296-97 (indicating that the court considered the prior racial violence a relevant part of its decision to defer to prison authorities’ security concerns). We do not require evidence that racial violence has in fact occurred in the form of a riot, but we do require some evidence that MDOC’s decision was the least restrictive means necessary to preserve its security interest. 42 U.S.C. § 2000ce-1(a)(2). There exists a question of fact as to whether there are means available to MDOC less restrictive than the total preclusion of group worship for CSC members. It is not clear that MDOC seriously considered any other alternatives, nor were any explored before the district court. The only evidence MDOC submitted to support its claim of security concern was testimony suggesting that Murphy is a racist and that his religion requires that only Anglo-Saxon individuals may participate. We cannot conclude from this limited evidence that MDOC has met its burden of establishing that its limitation on Murphy’s religious practices constituted the least restrictive means necessary to ensure the prevention of racial violence within the prison. Accordingly, we remand for further fact finding on this issue. The judgment is affirmed in part and reversed in part, and the case is remanded to the district court for further proceedings consistent with the views expressed in this opinion. . Because" }, { "docid": "4398893", "title": "", "text": "likely to be disruptive or produce violence. Indeed, the court in Wiggins v. Sargent, 753 F.2d 663, 667 n. 6 (8th Cir.1985), in discussing the views of the CJCC, noted that other groups such as the Black Muslims express similar racial separatist views and the courts have provided these views First Amendment protection within the prison walls. Also, there are no institutional rules preventing ISP inmates from discussing the very topics that are the subject of the CJCC publications. Also, there is no evidence in the record that inmates discussing the topics of racial separatism or racial supremacy have led to violence, security or other problems at ISP. Indeed, Mr. Sissel testified that there were no institutional rules preventing inmates from discussing the very topics which are the subject of the CJCC publications. Furthermore, the evidence indicates that no effort is made to suppress or censor newspaper articles, television, or other media which address issues relating to racial supremacy or superiority. The record is devoid of any evidence of a security problem in an Iowa correctional facility as a result of media discussions of these issues. The absence of disruption, violence or a security problem, standing alone, while compelling evidence, does not conclusively establish the unreasonableness of the regulations as they were applied. Turner clearly requires the examination of additional factors in evaluating an as applied constitutional challenge. Nonetheless, under the first Abbott-Turner factor, there is no evidence connecting the regulation, as it was applied, to a legitimate security concern. Instead, the prison officials’ actions were an exaggerated response to a perceived security risk. Turning to the second Abbott-Turner factor, it appears Nichols had no alternative means of obtaining the restricted reading material. See Jackson v. Elrod, 881 F.2d 441, 445 (7th Cir.1989) (determinative factor was that the inmate had no alternate source for literature addressing his alcohol problem). The CJCC publications each present a unique interpretation of the Bible. Because the publications have been denied based on the subjective opinions of prison officials, specifically disapproval of the white separatist views of the CJCC, publications presenting similar views are also" }, { "docid": "6488287", "title": "", "text": "an inference that the confiscation of the two issues of the newspaper constituted a substantial burden to the Plaintiffs exercise of his religion, the Defendants have provided irrefutable evidence that the confiscation was the least restrictive means of furthering a compelling governmental interest. The issues of “Racial Loyalty” are so replete with racial hatred and language inciting violence that there is no way they could be redacted and leave anything more than sentence frag ments. The state has a compelling interest in quelling violence in prisons and, as I have stated, the suppression of these periodicals furthers this interest. The periodicals refer frequently to “Rahowa” an acronym for racial holy war. Because the court finds that there is no genuine issue of material fact which would preclude granting the Defendants’ judgment as a matter of law on the RFRA claim, I need not address the issues concerning retroactivity, constitutionality and qualified immunity. I note, however, that courts considering the retroactivity of the RFRA have overwhelming found that it is to be applied retroactively. See 42 U.S.C. § 2000bb-3(a) (“This chapter applies to all federal and state law, and the implementation of that law, whether statutory or otherwise, and whether adopted before or after November 16, 1993.”) Werner v. McCotter, 49 F.3d 1476 (10th Cir.1995), cert. denied, — U.S. , 115 S.Ct. 2625, 132 L.Ed.2d 866 (1995); Brown-El v. Harris. 26 F.3d 68 (8th Cir.1994); Woods v. Evatt, 876 F.Supp. 756 (DSC 1995); Allah v. Menei, 844 F.Supp. 1056 (E.D.Pa.1994); and Lawson v. Dugger, 844 F.Supp. 1538 (S.D.Fla.1994). The court further notes that a district court in the Western District of Wisconsin has recently held that the Act is constitutional. See Sasnett v. Department of Corrections, 891 F.Supp. 1305 (W.D.Wis.1995). But see Canedy v. Boardman, 16 F.3d 183, 186 n. 2 (7th Cir.1994) (suggesting that the constitutionality of the legislation “raises a number of questions involving the extent of Congress’ powers under Section 5 of the Fourteenth Amendment.”) The Retaliation Claim The Plaintiff does not provide a chronology of events which suggests retaliation. In both his original complaint and his amended" }, { "docid": "6488286", "title": "", "text": "unless the burden is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest. Cheffer v. Reno, 55 F.3d 1517, 1522 (11th Cir.1995). The Plaintiff must therefore show that the failure to deliver particular issues of the COTC newspaper poses a substantial burden to the practice of his religion. The Plaintiff has failed to produce any facts from which it might be inferred that the possession of particular issues of the COTC newspaper “Racial Loyalty” is a required or important part of his religion or that he would be -unable to practice his religion without these particular copies of the newspaper. He has produced no evidence to indicate that the practice of his religion is detrimentally affected by the loss of these two editions of the newspaper. Accordingly, there has been no showing that the failure to deliver the newspapers in question constitutes a substantial burden to the practice of the his religion. Even if, however, the evidence proffered by the Plaintiff was sufficient to support an inference that the confiscation of the two issues of the newspaper constituted a substantial burden to the Plaintiffs exercise of his religion, the Defendants have provided irrefutable evidence that the confiscation was the least restrictive means of furthering a compelling governmental interest. The issues of “Racial Loyalty” are so replete with racial hatred and language inciting violence that there is no way they could be redacted and leave anything more than sentence frag ments. The state has a compelling interest in quelling violence in prisons and, as I have stated, the suppression of these periodicals furthers this interest. The periodicals refer frequently to “Rahowa” an acronym for racial holy war. Because the court finds that there is no genuine issue of material fact which would preclude granting the Defendants’ judgment as a matter of law on the RFRA claim, I need not address the issues concerning retroactivity, constitutionality and qualified immunity. I note, however, that courts considering the retroactivity of the RFRA have overwhelming found that it is to be applied retroactively. See 42" }, { "docid": "22791387", "title": "", "text": "facilitates religious services for mainstream faiths. The State provides chaplains, ¿Hows inmates to possess religious items, and permits assembly for worship. See App. 199 (affidavit of David Schwarz, Religious Services Administrator for the South Region of the Ohio Dept, of Rehabilitation and Correction (Oct. 19,2000)) (job duties include “facilitating the delivery of religious services in 14 correctional institutions of various security levels throughout . . . Ohio”); Ohio Dept, of Rehabilitation and Correction, Table of Organization (Apr. 2005), available at http://www.drc.state.oh.us/ web/DRCORGl.pdf (as visited May 27, 2005, and available in Clerk of Court’s case file) (department includes “Religious Services” division); Brief for United States 20, and n. 8 (citing, inter alia, Gawloski v. Dallman, 803 F. Supp. 103, 113 (SD Ohio 1992) (inmate in protective custody allowed to attend a congregational religious service, possess a Bible and other religious materials, and receive chaplain visits); Taylor v. Perini, 413 F. Supp. 189, 238 (ND Ohio 1976) (institutional chaplains had free access to correctional area)). The Sixth Circuit posited that an irreligious prisoner and member of the Aryan Nation who challenges prison officials’ confiscation of his white supremacist literature as a violation of his free association and expression rights would have his claims evaluated under the deferential rational-relationship standard described in Turner v. Safley, 482 U. S. 78 (1987). A member of the Church of Jesus Christ Christian challenging a similar withholding, the Sixth Circuit assumed, would have a stronger prospect of success because a court would review his claim under RLUIPA’s compelling-interest standard. 349 F. 3d, at 266 (citing Madison v. Riter, 240 F. Supp. 2d 566, 576 (WD Va. 2003)). Courts, however, may be expected to recognize the government’s countervailing compelling interest in not facilitating inflammatory racist activity that could imperil prison security and order. Cf. Reimann v. Murphy, 897 F. Supp. 398, 402-403 (ED Wis. 1995) (concluding, under RFRA, that excluding racist literature advocating violence was the least restrictive means of furthering the compelling state interest in preventing prison violence); George v. Sullivan, 896 F. Supp. 895, 898 (WD Wis. 1995) (same). State prison officials make the first judgment" }, { "docid": "8702367", "title": "", "text": "consider: (1) whether the regulation has a logical connection to the legitimate government interests invoked to justify it; (2) whether there are alternative means of exercising the rights that remain open to the inmate; (3) whether accommodation of the asserted constitutional right will have an impact on other inmates, guards, and prison resources; and (4) whether there' are ready alternatives that fully accommodate the prisoner’s rights at de minimis cost to valid penological interests. Id. at 89-90, 107 S.Ct. at 2261-62. Applying these factors, we conclude-that the prison’s action meets the reasonable-relation test of Turner. All four factors support the prison officials’ confiscation of the book. A. Logical Connection to the Prison’s Legitimate Interests First, for a prison action affecting constitutional rights to be upheld, “there must be a ‘valid, rational connection’ between the prison regulation and the legitimate governmental interest put forward to justify it.” Id. at 89, 107 S.Ct. at 2262 (quoting Block v. Rutherford, 468 U.S. 576, 586, 104 S.Ct. 3227, 3232, 82 L.Ed.2d 438 (1984)). Moreover, the prison’s proffered objective must be a “legitimate and neutral one.” Id. at 90, 107 S.Ct. at 2262. Here, the prison confiscated Christianities Ancient Enemy because of its concern that the book threatened the security of inmates and prison staff. Prison security is undoubtedly a legitimate-even a compelling-interest. However, because the prison confiscated Christianities Ancient Enemy on the basis of its content (advocacy of racism and violence), we must scrutinize the prison’s asserted justification more closely. See id. at 90, 107 S.Ct. at 2262 (“We have found it important to inquire whether prison regulations restricting inmates’ First Amendment rights operated in a neutral fashion, without regard to the content of the expression.”). In McCabe v. Arave, 827 F.2d 634, 638 (9th Cir.1987), we held that some content regulation is permissible in the prison context. Specifically, materials that pose a threat to security in the prison or a threat to another legitimate penological interest can be excluded on the basis of content. Id.; see also Harper v. Wallingford, 877 F.2d 728, 733 (9th Cir.1989) (upholding prison ban on materials promoting sexual" }, { "docid": "3574383", "title": "", "text": "in Washington v. Lee, 263 F.Supp. 327 (M.D.Ala.1966), and the Supreme Court’s per curiam affirmance in Lee v. Washington, 390 U.S. 333, 88 S.Ct. 994, 19 L.Ed.2d 1212 (1968). Williams v. Treen, 671 F.2d at 902. The exception for “particularized circumstances,” however, has not been specifically defined by this Court. Phelps and Blackburn argue that prison security, not discriminatory purpose or intent, formed the foundation of Angola’s general policy of racial segregation in its two-man cells, which remained in effect until 1990. They further argue that because racial tensions factor into administrative decisions regarding security, the general policy of segregation in the two-man cells met the “particularized circumstances” exception in Lee v. Washington, and that, absent bad faith, this Court should not substitute its views for those of the prison authorities. To justify the general policy of limited segregation, Phelps and Blackburn cite five factors which contributed to the need for increased security through racial segregation in the two-man cells: (1) prison guards were unable to visually monitor each two-man cell at all hours of the night; (2) the prisoners placed in Angola are the “worst of the worst”; (3) two instances occurred in which black and white prisoners housed together became violent; (4) racial supremacy groups existed within the prison ranks; and (5) interracial conflicts may have triggered more generalized racial violence. In support of the policy, they add that the low number of two-man cell assaults were a direct result of its success. Although this Court has not specifically defined the “particularized circumstances” exception in Lee v. Washington, the general rule is clear: a generalized or vague fear of racial violence is not a sufficient justification for a broad policy of racial segregation. The five factors Phelps and Blackburn argue fail to prove the existence in Angola of an unusual 'situation in which security and discipline would have demanded segregation. If violent disruptions did occur, we would expect the prison officials to take appropriate action against the offending prisoners, black or white. Even the racial segregation of offending individual prisoners would be acceptable if, based on an individualized" }, { "docid": "18265521", "title": "", "text": "CCF is the initial reception center for inmates coming into the state corrections system, the administration has insufficient information concerning their background to integrate them in the two-man reception cells where officials fear racial bias might flare into violence. With regard to A and B blocks McKeen stated that inmates housed there have been received as disciplinary transfers, “some” of whom allegedly have been involved in incidents with racial overtones at outlying institutions, and therefore are assigned to cells on the basis of their race in order to reduce possible conflicts. From all of the testimony introduced at the hearing it appears that the defendants have implemented and continued the policy of segregation at CCF out of a belief that such a practice would reduce tension among the inmates. Nevertheless, the defendants were unable at the hearing to make any showing whatsoever that there is substance to their stated fears. Indeed, because integration has not even been attempted at CCF with regard to reception inmates within at least the past ten years, prison officials could not have had any experience with the effects of integration on which to base their apprehensions. Upon questioning at the hearing, McKeen admitted that he had not relied on any documented support for the theory that racial segregation reduced tension among inmates. In essence, he acknowledged, the practice is based on his “common sense” attitude toward overall relations between the races. In the Court’s view, however, an equally “common sense” attitude, and one supported by expert testimony at trial, would indicate that segregation of inmates rather than their integration tends to create racial misunderstandings and tensions. The Court does recognize, however, that there may be instances where prison discipline and order may genuinely be threatened by a particular prisoner’s racial animus, and in such situations, for example where there is evidence of the prisoner’s prior involvement in race-based violence, his segregation may be warranted. In support of their position on this matter defendants called as a witness E. Peter Perini, superintendent of the Marion, Ohio, Correctional Institution. Perini stated that pursuant to an order of" } ]

[ { "docid": "22143279", "title": "", "text": "we may disregard an affidavit submitted solely for the purpose of opposing a motion for summary judgment when that affidavit is directly contradicted by deposition testimony. \"When a party has given clear answers to unambiguous questions which negate the existence of any genuine issue of material fact [for summary judgment], that party cannot thereafter create such an issue with an affidavit that merely contradicts, without explanation, previously given clear testimony.” Van T. Junkins and Assoc., Inc. v. U.S. Industries, Inc., 736 F.2d 656, 657 (11th Cir.1984)(emphasis added). Such an affidavit would be a sham. But McCormick contends that the contradictions he later submitted in the affidavit are justifiable given his medical condition when he gave the sworn initial statement to the police. McCormick stated in the affidavit that the initial statement was given shortly after he underwent surgery for his gunshot wound, and he was recovering from the effects of anaesthesia and other pain medications. Because McCormick offers some explanation for why his statements directly contradict one another — an explanation that does not appear to us to be itself a complete sham — we will accept and credit McCormick’s affidavit submitted on summary judgment. Although McCormick’s explanations may not credibly withstand cross-examination, weighing the contradictory statements along with the explanations for those contradictions are judgments of credibility. Issues of credibility and the weight afforded to certain evidence are determinations appropriately made by a finder of fact and not a court deciding summary judgment. In further support of his version of events, McCormick generally references his deposition. Defendants presented small excerpts of McCormick’s deposition in their motions for summary judgment. But we have carefully reviewed the entire record before us, and it appears that McCormick never offered his deposition to the district court in opposition to summary judgment. Because the deposition of McCormick is no part of the evidentia-ry record of the case, we give McCormick's passing references to the deposition no consideration. . McCormick later claimed in his affidavit that he was attempting to leave the Laundry because he desperately needed fresh air after receiving a chemical attack. McCormick’s" } ]

[ { "docid": "16470394", "title": "", "text": "its arguments to the district court by citation. Appellant’s Br. at 55. Such a blatant attempt to \"bypass the rules” only \"makes a mockery of our rules governing page limitations and length.” See Four Seasons Hotels & Resorts, B.V. v. Consorcio Barr S.A., 377 F.3d 1164, 1167 n. 4 (11th Cir. 2004). Kernel waived this argument by not properly presenting it for review. Id. . Mosley also contended that Gallefoss failed to obtain permission from Suni to copyright his new version of Acidjazzed Evening, and that all defendants possessed an implied license to use Gallefoss’s version of Acidjazzed Evening. In a separate motion for summary judgment, Interscope, UMG, Universal, WB, and Warner argued that Gallefoss's work failed to be sufficiently distinct from Suni's work to warrant derivative work protection, and that Gallefoss's work was not a sound recording. In a motion to dismiss, Furtado argued Kernel failed to state a claim against her upon which relief could be granted. In granting summary judgment to Defendants, the district court did not address these arguments. In their briefs on appeal, Defendants argue that we should rely on one of these grounds as an alternative rationale to affirm the grant of summary judgment. We decline to exercise our discretion to consider these alternative grounds. See Palmyra Park Hosp., Inc. v. Phoebe Putney Mem’l Hosp., 604 F.3d 1291, 1306 n. 15 (11th Cir.2010). . A district court may disregard an affidavit as a sham when a party to the suit files an affidavit that contradicts, without explanation, prior deposition testimony on a material fact. Van T. Junkins & Assocs., Inc. v'. U.S. Indus., Inc., 736 F.2d 656, 657 (11th Cir. 1984). The sham affidavit rule should be applied sparingly, Latimer v. Roaring Toyz, Inc., 601 F.3d 1224, 1237 (11th Cir.2010), and only when \"[t]he earlier deposition testimony ... consists] of clear answers to unambiguous questions which negate the existence of any genuine issue of material fact,” Lane v. Celotex Corp., 782 F.2d 1526, 1532 (11th Cir. 1986) (quotations omitted). Because we affirm the grant of summary judgment while considering Gallefoss's alleged \"sham” declaration, we" }, { "docid": "5456544", "title": "", "text": "investigate and bring suit based upon any findings of illegal practices reasonably related to the charge of any individual, the requirement for which CP urges would be nothing more than an empty formality that serves no useful purpose. In fact, given the investigation and notice-and-delay provisions imposed by Title VII, EEOC’s ability to sue on behalf of multiple aggrieved individuals would be stymied if each person was required to file his or her own separate charge. If anything, CP’s reading of the statute would give employers an incentive to suppress information and place EEOC in the untenable position of bringing claims on behalf of a suboptimal number of victims or delaying the vindication of every victim’s rights due to an endless series of continuances. Congress plainly did not intend to countenance such mischief by widespread discriminators. Based on the foregoing, CP’s jurisdictional arguments are due to be overruled, except with respect to any ADA claims. Summary judgment shall be entered accordingly. B. Motion To Strike The court now turns to CP’s Motion To Strike, which is contained in its Reply to EEOC’s response in opposition to summary judgment. Specifically, CP seeks to strike an affidavit submitted by Teresa Baxter that CP believes contradicts Baxter’s earlier deposition testimony. CP’s only reasonable objections are those related to Baxter’s statements that: (1) she complained to supervisor Kathy Morrow that she was being harassed by another supervisor, Ferrell Wright; and (2) she told plant manager Butch White that she had been harassed. After careful consideration, the court finds that the Motion is due to be partially granted with respect to the second statement but denied in all other respects. An affidavit should be disregarded when it is a sham. This occurs “only ... “when a party has given clear answers to unambiguous questions which negate the existence of any genuine issue of material fact ... [and that party attempts] thereafter [to] create such an issue with an affidavit that merely contradicts, without explanation, previously given clear testimony.’ ” Tippens v. Celotex Corp., 805 F.2d 949, 954 (11th Cir.1986) (quoting Van T. Junkins & Assoc." }, { "docid": "14222481", "title": "", "text": "the defendants used their weapons in a threatening manner at any time after the house was secured. Consequently, even assuming the \"click” heard by Croom was made by Graham’s weapon, without some further indication of misconduct, that fact does not bolster her excessive force claim. . Croom also appeals the district court's denial of her motion to strike defendant Graham's affidavit that was filed in support of Graham’s motion for summary judgment. Claiming Graham's averments in her affidavit contradict her deposition testimony, Croom argues the district court abused its discretion by failing to strike it from the record. See Van T. Junkins & Assocs. v. U.S. Indus., 736 F.2d 656, 657 (11th Cir.1984) (\"When a party has given clear answers to unambiguous questions which negate the existence of any genuine issue of material fact, that party cannot thereafter create such an issue with an affidavit that merely contradicts, without explanation, previously given clear testimony.”). Having reviewed the district court’s ruling, we conclude it did not abuse its discretion in determining that the inconsistencies between Graham's affidavit and her deposition were more appropriately considered \"variations of testimony” or \"instances of failed memory” going to the weight and credibility of the evidence, as opposed to falsehoods rendering the affidavit a disregardable \"sham.” See Tippens v. Celotex Corp., 805 F.2d 949, 953-55 (11th Cir.1986) (\"A definite distinction must be made between discrepancies which create transparent shams and discrepancies which create an issue of credibility or go to the weight of the evidence.”)." }, { "docid": "20313143", "title": "", "text": "were the bulk of Rollins’ evidence, were insufficient to raise an inference under the McDonnell Douglas standard employed in the context of discrimination cases. This decision was predicated, in part, on the fact that an affidavit later submitted by Rollins could have been interpreted as conflicting with her prior deposition testimony, and in certain limited circumstances, such an affidavit could be disregarded as a sham. Id. at 1530 (citing Van T. Junkins & Assocs., Inc. v. U.S. Indus., Inc., 736 F.2d 656, 658-59 (11th Cir.1984)). On review, we held that Rollins’ testimony was sufficient to demonstrate a genuine issue of material fact. Id. at 1530-31. After considering Rollins’ deposition testimony in conjunction with her subsequent affidavit, we stated that “[w]e do not believe that Rollins’ affidavit so completely contradicts her deposition as to warrant its exclusion.” Id. at 1531. Instead, her affidavit merely elaborated upon an area of inquiry that had not been raised at deposition. Id. In finding otherwise and “evaluating the quality of’ Rollins’ evidence, the district court had “strayed from its proper role and made credibility determinations.” Id. at 1531. Such credibility determinations, based upon the district court’s decision to weigh the competing evidence, should have demanded that the defendant’s motion for summary judgment be denied. Id. Our reasoning in Rollins is no less appropriate here. Without any doubt, Strickland’s deposition testimony may be read to contradict his sworn affidavit, particularly as it pertains to the level of force he used to disengage the wheel of the handbrake in question. If there were no way that Strickland’s statements could be read together, perhaps Norfolk Southern would be correct and Strickland’s affidavit could be disregard as a sham. See Van T. Junkins & Assocs., Inc., 736 F.2d at 657 (noting that, under sham affidavit concept, “[w]hen a party has given clear answers to unambiguous questions which negate the existence of any genuine issue of material fact, that party cannot thereafter create such an issue with an affidavit that merely contradicts, without explanation, previously given clear testimony.”). However, we do not believe that Strickland’s deposition and affidavit are necessarily" }, { "docid": "5456546", "title": "", "text": "v. U.S. Indus., 736 F.2d 656, 657 (11th Cir.1984) (brackets in original)). The decision to strike should not be made lightly. Materials are stricken only if the deponent has made one point “crystal clear” and then attempted to contradict that point in an affidavit. See Van T. Junkins, 736 F.2d at 657. Because deposition transcripts rarely evince a deponent’s sincerity, full memory, or range of perception, an subsequent affidavit is not a sham if it merely expounds on earlier testimony, gives a more complete answer, differs from earlier testimony if the witness was left wiggle room, or even flatly contradicts an earlier statement if the contradiction is sufficiently explained. See Tippens, 805 F.2d at 953-54. More likely than not, a discrepancy between a party’s former and latter testimony goes to the weight, not the admissibility, of the evidence. See id.; Lane v. Celotex Corp., 782 F.2d 1526, 1532 (11th Cir.1986); Brassfield v. Jack McLendon Furniture, Inc., 953 F.Supp. 1424, 1431 (M.D.Ala.1996). With these principles in mind, the court turns to Baxter’s proffered materials. 1. Baxter’s complaint to Morrow CP moves to strike Baxter’s affidavit to the extent that she states that she complained to supervisor Kathy Morrow about the activities of another supervisor, Ferrell Wright. CP argues that Baxter, during her deposition, listed “each person she spoke to about her problems,” and that Morrow was not one of them. (Reply at 9; 2d Reply at 4-5.) The court disagrees, and finds that Baxter’s deposition did not clearly state, in response to unambiguous questions, that she never complained to Morrow. First, the deposition does not establish whether Baxter was agreeing or disagreeing with counsel’s assertion that she never spoke to any other CP employees. Counsel never asked a follow-up to his less than clear questions; instead, he moved to another topic. Thus, Baxter’s affidavit is not necessarily inconsistent with her deposition testimony. Second, counsel may have been inquiring only about statements given by Baxter after Wright came to her home intoxicated — not before. Plaintiffs position is that Baxter may have communicated with Morrow prior to this evening. Plaintiffs position is" }, { "docid": "14293817", "title": "", "text": "only was unable to cite specific instances when he used Celotex’s asbestos containing products while in close proximity to Tippens, he could not state that he ever did so. His deposition testimony is so irreconcilable with his prior affidavit that the affidavit may justifiably be disregarded as a sham. I agree that we must be careful to distinguish “between discrepancies which create transparent shams and discrepancies which create an issue of credibility or go to the weight of the evidence.” Tippens, 805 F.2d at 953. The affidavit in this case, however, satisfies this court’s definition of a sham affidavit. In Van T. Junkins and Associates v. U.S. Industries, 736 F.2d 656 (11th Cir.1984), we recognized that “[w]hen a party has given clear answers to unambiguous questions which negate the existence of any genuine issue of material fact, that party cannot thereafter create such an issue with an affidavit that merely contradicts, without explanation, previously given clear testimony.” Id. at 657; cf. Kennett-Murray Corp. v. Bone, 622 F.2d 887, 894 (5th Cir.1980) (affidavit held not to be a sham where it purported to explain certain aspects of deposition testimony and where affiant stated that he was confused during deposition). This circuit’s precedent, therefore, counsels that an affidavit is properly considered a sham whenever the affiant (1) makes a conclusory, unexplained assertion regarding a material fact which (2) directly contradicts that person’s unequivocal deposition testimony. McIntyre’s affidavit qualifies as a sham under this test. The relevant portion of his affidavit consists merely of the bald assertion that while working in close proximity to the decedent McIntyre used various asbestos containing products, some of which were produced by Philip Carey (Celotex). The entire content of the affidavit is con-clusory; it contains no details or facts sup porting his general declarations. See Barwick v. Celotex Corp., 736 F.2d 946, 960 (4th Cir.1984). Moreover, when confronted with his affidavit statements during his deposition, McIntyre did not attempt to explain the inconsistencies in his testimony, nor does his deposition reflect any confusion that might require explanation. See Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d" }, { "docid": "22424723", "title": "", "text": "this type of situation the employee carries its burden of proving that he or she performed work without proper compensation if he or she produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference. Plaintiffs made statements regarding the amount and extent of their uncompensated work in declarations and in deposition testimony taken by the Board. The Board argues that Plaintiffs’ declarations should be disregarded because they are unnotarized, unsworn, and because they contradict Plaintiffs’ deposition testimony. In Van T. Junkins & Assocs., Inc. v. U.S. Indus., Inc., 736 F.2d 656, 656 (11th Cir.1984), this Court affirmed a district court’s finding that an affidavit that contradicted testimony on deposition was a sham when the party merely contradicted its earlier testimony without giving any valid explanation. There, we said that “[w]hen a party has given clear answers to unambiguous questions which negate the existence of any genuine issue of material fact, that party cannot thereafter create such an issue with an affidavit that merely contradicts, without explanation, previously given clear testimony.” Id. at 657. This rule is applied “sparingly because of the harsh effect [it] may have on a party’s case.” Rollins v. TechSouth, 833 F.2d 1525, 1530 (11th Cir.1987). Furthermore, to allow every failure of memory or variation in a witness’ testimony to be disregarded as a sham would require far too much from lay witnesses and would deprive the trier of fact of the traditional opportunity to determine which point in time and with which words the ... affi-ant ... was stating the truth. Tippens v. Celotex Corp., 805 F.2d 949, 953-54 (11th Cir.1986). As such, “our cases require the court to find some inherent inconsistency between an affidavit and a deposition before disregarding the affidavit.” Id. at 954. We do not believe that the sort of inherent inconsistency exists between the depo sition testimony and declarations that would require us to find Plaintiffs’ declarations a sham. The declarations were made before the deposition testimony, and to the extent an individual plaintiff varied from the statements made in his" }, { "docid": "4816388", "title": "", "text": "in support of her motion for summary judgment, in which she states that, “[pjrior to my employment with defendant, I had over eight years of plant controller experience.” (Doc. 77 at 1). The defendant moved to strike this statement as irreconcilable with the plaintiffs deposition testimony, (Doc. 84 at 8-9), and the plaintiff elected not to oppose the motion. “When a party has given clear answers to unambiguous questions which negate the existence of any genuine issue of material fact, that party cannot thereafter create such an issue with an affidavit that merely contradicts, without explanation, previously given clear testimony.” Van T. Junkins & Associates, Inc. v. U.S. Industries, Inc., 786 F.2d 656, 657 (11th Cir.1984). “This rule is applied sparingly because of the harsh effect [it] may have on a party’s case.” Allen v. Board of Public Education, 495 F.Sd 1306, 1316 (11th Cir.2007) (internal quotes omitted). “[T]o allow every failure of memory or variation in a witness’ testimony to be disregarded as a sham would require far too much from lay witnesses and would deprive the trier of fact of the traditional opportunity to determine which point in time and with which words the ... affiant ... was telling the truth.” Id. (internal quotes omitted). Thus, there must be an “inherent inconsistency” between affidavit and deposition before the former may be disregarded as sham. Id.; accord Latimer v. Roaring Toyz, Inc., 601 F.3d 1224, 1237 (11th Cir.2010). Otherwise, “the general rule allowing an affidavit to create a genuine issue even if it conflicts with earlier testimony in the party’s deposition ... governs.” Rollins v. TechSouth, Inc., 833 F.2d 1525, 1530 (11th Cir.1987) (internal quotes omitted). The plaintiffs declaration offers no explanation for upping her controlling experience to eight years. However, the defendant has not shown that its question and the plaintiffs response were so precise as to render her declaration in hopeless conflict with her deposition testimony. At the plaintiffs deposition, defense counsel noted the defendant’s assessment of her controlling experience as being six years and asked, “Does that sound correct to you?” The plaintiff responded in kind," }, { "docid": "6389195", "title": "", "text": "and the post-deposition affidavits of her co-workers. The Commission argues that these post-deposition affidavits should be excluded because they contradict unambiguous deposition testimony of Mahan. In support of this position, the Commission cites to a line of federal court decisions holding that a contradictory post-deposition affidavit that does not contain “newly discovered” evidence or clarify a contradiction or ambiguity in the deposition cannot be admitted after a lengthy deposition as a basis for establishing a genuine issue of material fact to defeat summary judgment. See, e.g., S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 495-95 (5th Cir. 1996) (“It is well settled that this court does not allow a party to defeat a motion for summary judgment using an affidavit that impeaches without explanation, sworn testimony.”); Russell v. Acme-Evans Co., 51 F.3d 64, 67-68 (7th Cir.1995) (“Where deposition and affidavit are in conflict, the affidavit is to be disregarded unless it is demonstrable that the statement in the deposition was mistaken, perhaps because the question was phrased in a confusing manner or because a lapse of memory is in the circumstances a plausible explanation for the discrepancy.”); Hackman v. Valley Fair, 932 F.2d 239, 241 (3rd Cir.1991) (“When, without a satisfactory explanation, a nonmovant’s affidavit contradicts earlier deposition testimony, the district court may disregard the affidavit in determining whether a genuine issue of material fact exists.”); Kennedy v. Allied Mutual Ins. Co., 952 F.2d 262, 266-67 (9th Cir.1991); Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir.1986); Foster v. Arcata Assoc., 772 F.2d 1453, 1462 (9th Cir.1985), cert. denied, 475 U.S. 1048, 106 S.Ct. 1267, 89 L.Ed.2d 576 (1986); Van T. Junkins & Assoc. v. U.S. Industries, 736 F.2d 656, 657 (11th Cir.1984) (“When a party has given clear answers to unambiguous questions which negate the existence of any genuine issue of material fact, that party cannot thereafter create such an issue with an affidavit that merely contradicts, without explanation, previously given clear testimony.”); Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361, 1366 (8th Cir.1983) (“only ... where the conflicts between the deposition and affidavit raise only" }, { "docid": "22475189", "title": "", "text": "n. 10 (11th Cir.1992) (quoting 28 U.S.C. § 2071(c)(1)). . In denying the motion for summary judgment, the district court in One Piece of Real Property did not scour the entire record to locate a genuine issue of material fact. Rather, the district court found that a genuine issue was indicated by the deposition of the defendant’s girlfriend, which \"was attached to the government's motion for summary judgment.” United States v. One Piece of Real Prop. Located at 5800 SW 74th Ave., Miami, Fla., 363 F.3d 1099, 1102 (11th Cir.2004). On appeal, we likewise \"confine[d] our review of the record in [One Piece of Real Property] to the materials submitted by the United States in support of its summary judgment motion.” Id. at 1102 n. 4. . We note the existence of tension between Rule 56 and Local Rule 56.1(B)(2)(a)(3), which provides that \"[t]he court will deem the movant’s citations supportive of its facts unless the respondent specifically informs the court to the contrary in the response.” To the extent that the local rule permits the district court to grant summary judgment without first reviewing the materials submitted with the motion to ensure that the motion is properly supported, the local rule is void by virtue of conflict with Rule 56. See One Piece of Real Prop., 363 F.3d at 1103 n. 6 (discussing analogous local rule in the Southern District of Florida). . Specifically, the defendants contended that the district court should strike the affidavits of Craig, Higdon, and Carol Reese as sham affidavits under the rule of Van T. Junkins and Associates, Inc. v. U.S. Industries, Inc., 736 F.2d 656, 657 (11th Cir.1984) (\"When a party has given clear answers to unambiguous questions which negate the existence of any genuine issue of material fact, that party cannot thereafter create such an issue with an affidavit that merely contradicts, without explanation, previously given clear testimony.”); see also Lane v. Celotex Corp., 782 F.2d 1526, 1532 (11th Cir.1986) (construing Van T. Jun-kins to require inherent inconsistency in the form of clear and unambiguous deposition testimony and a subsequent affidavit that" }, { "docid": "6453857", "title": "", "text": "to find a buyer for the Waco property. Although Barnes initially had some difficulty in locating a buyer, the State of Georgia ultimately purchased the Waco property for $900,000. Barnes did not give Rice any money from the sale of the Waco property. Plaintiffs commenced this action to recover, under the oral contract between Rice and Barnes, their portion of the sale proceeds of the Waco property and to recover for the alleged fraud relating to the oral contract. In Count One, Plaintiffs seek an accounting of the proceeds from the sale of the Waco property. In Count Two, Plaintiffs allege that Barnes breached his contract with Rice by refusing to pay over the proceeds from the Waco property. In Counts Three and Four, respectively, Plaintiffs assert claims of conversion and “equitable money had and received.” In Count Five, Plaintiffs assert that “Barnes fraudulently induced Plaintiff Harold Rice, Sr., to deed him, free and clear of liens and encumbrances,” the Waco property. Further, Plaintiffs claim that “Barnes never intended to pay Plaintiff Rice one-half of the profits or to reimburse him the $50,000 amount that he paid at the time the. transaction was closed.” Plaintiffs seek $160,000 plus punitive damages. IV. DISCUSSION A. Motion to Strike Barnes seeks to strike part of Rice’s affidavits because the testimony contained therein allegedly contradicts earlier deposition testimony. Specifically, Barnes challenges Rice’s testimony that he “allowed” Barnes to undertake certain activities with regard to the Waco property. The motion is well-taken. An affidavit should be disregarded when it is a sham. This occurs “ ‘when a party has given clear answers to unambiguous questions which negate the existence of any genuine issue of material fact ... [and that party attempts] thereafter [to] create such an issue with an affidavit that merely contradicts, without explanation, the previously given clear testimony.’ ” Tippens v. Celotex Corp., 805 F.2d 949, 954 (11th Cir.1986) (quoting Van T. Junkins & Assoc. v. U.S. Indus., 736 F.2d 656, 657 (11th Cir.1984) (brackets in original)). During his deposition, Rice was asked clearly, explicitly, and repeatedly whether there were any written documents," }, { "docid": "6453858", "title": "", "text": "the profits or to reimburse him the $50,000 amount that he paid at the time the. transaction was closed.” Plaintiffs seek $160,000 plus punitive damages. IV. DISCUSSION A. Motion to Strike Barnes seeks to strike part of Rice’s affidavits because the testimony contained therein allegedly contradicts earlier deposition testimony. Specifically, Barnes challenges Rice’s testimony that he “allowed” Barnes to undertake certain activities with regard to the Waco property. The motion is well-taken. An affidavit should be disregarded when it is a sham. This occurs “ ‘when a party has given clear answers to unambiguous questions which negate the existence of any genuine issue of material fact ... [and that party attempts] thereafter [to] create such an issue with an affidavit that merely contradicts, without explanation, the previously given clear testimony.’ ” Tippens v. Celotex Corp., 805 F.2d 949, 954 (11th Cir.1986) (quoting Van T. Junkins & Assoc. v. U.S. Indus., 736 F.2d 656, 657 (11th Cir.1984) (brackets in original)). During his deposition, Rice was asked clearly, explicitly, and repeatedly whether there were any written documents, notes, or letters, setting out the terms of the agreement between Rice and Barnes. Each time he was asked, Rice indicated that there was “nothing in writing.” In his affidavit, however, Rice contends that he drafted and mailed a letter outlining the terms of the oral agreement to Barnes for Barnes’s signature, but that Barnes never returned the letter. Rice has offered no explanation for the differences between his earlier deposition testimony and his affidavit testimony. The court finds that Rice’s affidavit and deposition testimony is inherently inconsistent, and this portion of Rice’s affidavit is due to be stricken. See Dinkins v. Charoen Pokphand, 133 F.Supp.2d 1237, 1249 (M.D.Ala.2001). B. Motion for Summary Judgment At the outset, the court finds that Rice has abandoned his conversion claim. Barnes filed a sufficient motion for summary judgment, and Rice failed to respond. See Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir.1995) (abandoned claims); Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115-17 (11th Cir.1993) (summary judgment standard). Furthermore, as to all of Rice’s" }, { "docid": "18788671", "title": "", "text": "inconsistent statements made by Radobenko the deponent and Radobenko the affiant.” Id. at 543. The court recognized that “[t]he very object of summary judgment is to separate real and genuine issues from those that are formal or pretended,” id. at 544 (citation omitted), and concluded “that the issues of fact created by Radobenko are not issues which this Court could reasonably characterize as genuine; rather, they are sham issues which should not subject the defendants to the burden of a trial.” Id. The Eleventh Circuit authority is Van T. Junkins & Associates v. U.S. Industries, 736 F.2d 656 (11th Cir.1984). In that case, this court affirmed a grant of summary judgment, holding that a district court may properly find that a party’s contradictory affidavit is a sham. “When a party has given clear answers to unambiguous questions which negate the existence of any genuine issue of material fact, that party cannot thereafter create such an issue with an affidavit that merely contradicts, without explanation, previously given clear testimony.” Id. at 657. See also Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361, 1366 (8th Cir.1983) (“only ... where the conflicts between the deposition and affidavit raise only sham issues should summary judgment be granted”); Price v. Worldvision Enterprises, 455 F.Supp. 252, 260 (S.D.N.Y.1978) (affidavit testimony departed “so markedly from the prior deposition ... as to brand as bogus the factual issues sought to be raised”), aff'd mem., 603 F.2d 214 (2d Cir.1979). The crux of these cases rests with the reviewing court’s determination that an issue raised by an affidavit is a sham because it contradicts or conflicts with earlier deposition testimony. In Kennett-Murray Corp. v. Bone, 622 F.2d 887 (5th Cir.1980), however, the Fifth Circuit cautioned of the dangers inherent in this approach. Certainly, every discrepancy contained in an affidavit does not justify a district court’s refusal to give credence to such evidence. In light of the jury’s role in resolving questions of credibility, a district court should not reject the content of an affidavit even if it is at odds with statements made in an earlier deposition." }, { "docid": "5456545", "title": "", "text": "is contained in its Reply to EEOC’s response in opposition to summary judgment. Specifically, CP seeks to strike an affidavit submitted by Teresa Baxter that CP believes contradicts Baxter’s earlier deposition testimony. CP’s only reasonable objections are those related to Baxter’s statements that: (1) she complained to supervisor Kathy Morrow that she was being harassed by another supervisor, Ferrell Wright; and (2) she told plant manager Butch White that she had been harassed. After careful consideration, the court finds that the Motion is due to be partially granted with respect to the second statement but denied in all other respects. An affidavit should be disregarded when it is a sham. This occurs “only ... “when a party has given clear answers to unambiguous questions which negate the existence of any genuine issue of material fact ... [and that party attempts] thereafter [to] create such an issue with an affidavit that merely contradicts, without explanation, previously given clear testimony.’ ” Tippens v. Celotex Corp., 805 F.2d 949, 954 (11th Cir.1986) (quoting Van T. Junkins & Assoc. v. U.S. Indus., 736 F.2d 656, 657 (11th Cir.1984) (brackets in original)). The decision to strike should not be made lightly. Materials are stricken only if the deponent has made one point “crystal clear” and then attempted to contradict that point in an affidavit. See Van T. Junkins, 736 F.2d at 657. Because deposition transcripts rarely evince a deponent’s sincerity, full memory, or range of perception, an subsequent affidavit is not a sham if it merely expounds on earlier testimony, gives a more complete answer, differs from earlier testimony if the witness was left wiggle room, or even flatly contradicts an earlier statement if the contradiction is sufficiently explained. See Tippens, 805 F.2d at 953-54. More likely than not, a discrepancy between a party’s former and latter testimony goes to the weight, not the admissibility, of the evidence. See id.; Lane v. Celotex Corp., 782 F.2d 1526, 1532 (11th Cir.1986); Brassfield v. Jack McLendon Furniture, Inc., 953 F.Supp. 1424, 1431 (M.D.Ala.1996). With these principles in mind, the court turns to Baxter’s proffered materials. 1. Baxter’s" }, { "docid": "22475190", "title": "", "text": "the district court to grant summary judgment without first reviewing the materials submitted with the motion to ensure that the motion is properly supported, the local rule is void by virtue of conflict with Rule 56. See One Piece of Real Prop., 363 F.3d at 1103 n. 6 (discussing analogous local rule in the Southern District of Florida). . Specifically, the defendants contended that the district court should strike the affidavits of Craig, Higdon, and Carol Reese as sham affidavits under the rule of Van T. Junkins and Associates, Inc. v. U.S. Industries, Inc., 736 F.2d 656, 657 (11th Cir.1984) (\"When a party has given clear answers to unambiguous questions which negate the existence of any genuine issue of material fact, that party cannot thereafter create such an issue with an affidavit that merely contradicts, without explanation, previously given clear testimony.”); see also Lane v. Celotex Corp., 782 F.2d 1526, 1532 (11th Cir.1986) (construing Van T. Jun-kins to require inherent inconsistency in the form of clear and unambiguous deposition testimony and a subsequent affidavit that \"contradicts, without explanation,” such testimony); Tippens v. Celotex Corp., 805 F.2d 949, 955 (11th Cir.1986) (Hill, L, specially concurring) (“The Lane decision drastically limits this court’s holding in [Van T. Jun-kins].”). The district court denied the motion to strike the affidavits as complete shams, and expressly \"examined and used these affidavits.” Reese, 2006 WL 1892026, at *6. We further note that Craig, Higdon, and Carol Reese are not parties to this lawsuit, as we have never squarely addressed whether, and in what circumstances, a district court may disregard the affidavit of a non-party that is inherently inconsistent with deposition testimony given by the non-party previously in the same case. See Lane, 782 F.2d at 1531 (\"[W]e would be unable, absent great trepidation, to affirm a similar finding [that a contradictory affidavit constitutes a sham] with respect to a disinterested witness ’ contradictory affidavit.”). Moreover, we would be reluctant to disregard an affidavit of a witness, whether or not a party in the case, on the ground that it is inconsistent with testimony the witness gave" }, { "docid": "14293816", "title": "", "text": "and directing his attention to the portion quoted above: Q. And to the extent that this says that William Lawrence Tippens was around you when you were using it [Philip Carey asbestos pipe covering], you can’t testify to that? A. No. I couldn’t testify to that either. Id. at 35. These passages show that the difference between McIntyre’s affidavit and his depo sition testimony is not, as the panel opinion states, “merely an ability to recall specific times, places, and situations.” Tippens v. Celotex, 805 F.2d 949, 952 (11th Cir.1986). Much more than that, his testimony on the two occasions is directly contradictory and inherently inconsistent. In his affidavit, McIntyre stated that Tippens worked near him while he was using Philip Carey asbestos pipe covering. In his deposition, however, McIntyre testified that he could not recall Tippens ever being around him while he was using Celotex’s products. When confronted under oath with the bald assertion in his affidavit, McIntyre admitted that he could not testify to the accuracy or truthfulness of that statement. McIntyre not only was unable to cite specific instances when he used Celotex’s asbestos containing products while in close proximity to Tippens, he could not state that he ever did so. His deposition testimony is so irreconcilable with his prior affidavit that the affidavit may justifiably be disregarded as a sham. I agree that we must be careful to distinguish “between discrepancies which create transparent shams and discrepancies which create an issue of credibility or go to the weight of the evidence.” Tippens, 805 F.2d at 953. The affidavit in this case, however, satisfies this court’s definition of a sham affidavit. In Van T. Junkins and Associates v. U.S. Industries, 736 F.2d 656 (11th Cir.1984), we recognized that “[w]hen a party has given clear answers to unambiguous questions which negate the existence of any genuine issue of material fact, that party cannot thereafter create such an issue with an affidavit that merely contradicts, without explanation, previously given clear testimony.” Id. at 657; cf. Kennett-Murray Corp. v. Bone, 622 F.2d 887, 894 (5th Cir.1980) (affidavit held not to" }, { "docid": "16470395", "title": "", "text": "briefs on appeal, Defendants argue that we should rely on one of these grounds as an alternative rationale to affirm the grant of summary judgment. We decline to exercise our discretion to consider these alternative grounds. See Palmyra Park Hosp., Inc. v. Phoebe Putney Mem’l Hosp., 604 F.3d 1291, 1306 n. 15 (11th Cir.2010). . A district court may disregard an affidavit as a sham when a party to the suit files an affidavit that contradicts, without explanation, prior deposition testimony on a material fact. Van T. Junkins & Assocs., Inc. v'. U.S. Indus., Inc., 736 F.2d 656, 657 (11th Cir. 1984). The sham affidavit rule should be applied sparingly, Latimer v. Roaring Toyz, Inc., 601 F.3d 1224, 1237 (11th Cir.2010), and only when \"[t]he earlier deposition testimony ... consists] of clear answers to unambiguous questions which negate the existence of any genuine issue of material fact,” Lane v. Celotex Corp., 782 F.2d 1526, 1532 (11th Cir. 1986) (quotations omitted). Because we affirm the grant of summary judgment while considering Gallefoss's alleged \"sham” declaration, we need not determine whether the district court erred by relying on the sham affidavit doctrine. . In addition to challenging the entry of summary judgment, Kernel claims on appeal that the district court abused its discretion by refusing to allow Kernel to amend its complaint. This claim lacks merit. See Oravec v. Sunny Isles Luxury Ventures, L.C., 527 F.3d 1218, 1231-32 (11th Cir.2008) (affirming district court's denial of plaintiff's motion to amend complaint after belated copyright registration). . We adopted the \"registration” approach in M.G.B. Homes, Inc. v. Ameron Homes, Inc., 903 F.2d 1486, 1488-89 (11th Cir.1990), viewing the failure to register as a jurisdictional defect. In Reed Elsevier, Inc. v. Muchnick, -U.S.-, 130 S.Ct. 1237, 1246-49, 176 L.Ed.2d 18 (2010), the Supreme Court held that the registration requirement is not jurisdictional, but rather a claims-processing rule similar to a statute of limitations or notice provision. We need not revisit M.G.B. Homes, Inc. today. In Reed Elsevier, Inc., the Court reserved the question of whether district courts may or should enforce the registration prerequisite sua" }, { "docid": "22357858", "title": "", "text": "fact exhibited age bias, then a factfinder could reasonably conclude that there was age discrimination. TechSouth urges this court to ignore Rollins’ allegations regarding Hill’s age-biased statements and hold that the comments made by Thrasher and Davis do not raise an issue of fact. We decline to follow this suggestion for two reasons. First, we believe that we should consider the statements in question. Second, even if we excluded those statements, we would be reluctant to find that Rollins raised no issue of material fact without them. The law in this circuit is that a party cannot give “clear answers to unambiguous questions” in a deposition and thereafter raise an issue of material fact in a contradictory affidavit that fails to explain the contradiction. Van T. Junkins and Associates v. U.S. Industries, Inc., 736 F.2d 656, 657 (11th Cir.1984). When this occurs, the court may disregard the affidavit as a sham. Id. at 658-59. We apply this rule sparingly because of the harsh effect this rule may have on a party’s case. In addition, we feel that “[t]o allow every failure of memory or variation in a witness’ testimony to be disregarded as a sham would require far too much from lay witnesses and would deprive the trier of fact of the traditional opportunity to determine which point in time and with which words the ... affiant ... was stating the truth.” Tippens v. Celotex Corp., 805 F.2d 949, 953-54 (11th Cir.1986). Thus, our cases require a court to find some inherent inconsistency between an affidavit and a deposition before disregarding the affidavit. See id. at 954. If no inherent inconsistency exists, the general rule allowing an affidavit to create a genuine issue “even it if conflicts with earlier testimony in the party’s deposition,” Kennett-Murray Corp. v. Bone, 622 F.2d 887, 893 (5th Cir.1980), governs. In these instances, any conflict or discrepancy between the two documents can be brought out at trial and considered by the trier of fact. The alleged conflict between Rollins’ deposition and her affidavit involves the evidence of pretext. The following conversation appears in Rollins’ deposition:" }, { "docid": "13523844", "title": "", "text": "sheet to make substantive changes to his unequivocal testimony until after the thirty days permitted under Rule 30(e) and after Plaintiffs moved for sanctions due to the application of the on-sale bar. Under the circumstances here, Shaw has failed to demonstrate that the district court abused its discretion by excluding his errata sheet. Further, beyond the errata sheet, Shaw argues that the district court clearly erred in failing to consider Mr. Shaw’s 2008 declaration submitted in opposition to summary judgment. Shaw relies primarily on McCormick v. City of Fort Lauderdale, 333 F.3d 1234 (11th Cir.2003), to support its assertion. We disagree. As the Eleventh Circuit has explained, “[w]hen a party has given clear answers to unambiguous questions which negate the existence of any genuine issue of material fact, that party cannot thereafter create such an issue with an affidavit that merely contradicts, without explanation, previously given clear testimony.” McCormick, 333 F.3d at 1240 n. 7 (quoting Van T. Junkins & Assocs. v. U.S. Indus., 736 F.2d 656, 657 (11th Cir.1984)) (emphasis in McCormick and alterations added). Rather, that affidavit would be a sham. Id. In McCormick, the plaintiff on summary judgment submitted an affidavit that contradicted some of the material facts of a previous sworn statement. Id. The plaintiff explained that his testimony was contradictory because the initial statement was given shortly after he underwent surgery for a gunshot wound and he was recovering from the effects of anesthesia and other pain medications. Id. The Eleventh Circuit wrote: [bjecause McCormick offers some explanation for why his statements directly contradict one another — an explanation that does not appear to us to be itself a complete sham — we will accept and credit McCormick’s affidavit submitted on summary judgment. Although McCormick’s explanations may not credibly withstand cross-examination, weighing the contradictory statements along with the explanations for those contradictions are judgments of credibility. Issues of credibility and the weight afforded to certain evidence are determinations appropriately made by a finder of fact and not a court deciding summary judgment. Id. On appeal, Shaw argues that, under McCormick, the explanation that Mr. Shaw" }, { "docid": "7613934", "title": "", "text": "they are inadmissible under Rules 801, 802 and 901 of the Federal Rules of Evidence. . In their brief, defendants accuse Bullock of lying about the threatened reprimand, saying that Sharp’s alleged threat of a reprimand is new information and inconsistent with a previous affidavit. Defs.' Reply Br. at 9-10. The Eleventh Circuit has made it clear that a party cannot avoid summary judgment on the basis of a \"sham” affidavit. See Van T. Junkins and Associates, Inc. v. U.S. Industries, Inc., 736 F.2d 656 (11th Cir.1984). The job of the District Court is to distinguish \"discrepancies [between two affidavits] which create transparent shams and discrepancies which create an issue of credibility or go to the weight of the evidence.” Tip pens v. Celotex Corp., 805 F.2d 949, 953 (11th Cir.1986). The Tippens Court went on to state ‘‘[a]n affidavit may only be disregarded as a sham ‘when a party has given clear answers to unambiguous questions which negate the existence of any genuine issue of material fact ... [and that party attempts] thereafter [to] create such an issue with an affidavit that merely contradicts, without explanation, previously given clear testimony.” Id. at 954 (quoting Van T. Junkins, 736 F.2d at 657). Only those affidavit statements which are \"inherently inconsistent” with earlier deposition testimony should be stricken. See W.C. Lane v. Celotex Corp., 782 F.2d 1526, 1531 (11th Cir.1986); see also, Moore v. Beneficial Nat'l Bank U.S.A., 876 F.Supp. 1247, 1253-54 (M.D.Ala.1995). The court finds that Bullock's previous testimony that Sharp refused to discuss taking Hogan to lunch is not inherently inconsistent with his later testimony that Sharp threatened a reprimand due to Hogan's absence." } ]

[ { "docid": "13415115", "title": "", "text": "although it was raised there. Goodisman’s argument that this issue is not before us because defendants did not cross appeal is without merit. Appellees may assert any matter on the record to support the judgment below, without taking a cross appeal. United States v. 101.80 Acres of Land, 716 F.2d 714, 727 n. 24 (9th Cir.1983). Goodisman’s prayer for reinstatement is not barred. The Eleventh Amendment does not prohibit an award of prospective relief that requires ancillary payment from the state treasury. Milliken v. Bradley, 433 U.S. 267, 288-90, 97 S.Ct. 2749, 2761-62, 53 L.Ed.2d 745 (1977). Defendants’ contention that Cory v. White, 457 U.S. 85, 102 S.Ct. 2325, 72 L.Ed.2d 694 (1982), recognized a jurisdictional bar to equitable relief against state officials under the Eleventh Amendment is without merit. That case held that suit to restrain actions of state officials can be prosecuted only if those actions are without authority of state law or violate federal law. Id. at 89-91, 102 S.Ct. at 2328-2329. Because Goodisman alleges violations of the United States Constitution, Cory does not bar equitable relief. Edelman v. Jordan, 415 U.S. 651, 663, 94 S.Ct. 1347, 1355, 39 L.Ed.2d 662 (1974), held that suits in form or reality seeking retrospective money damages from a state treasury are barred by the Eleventh Amendment. Goodisman is barred from seeking money damages from the state treasury through liability of University officials in their official capacities. Rutledge v. Arizona Board of Regents, 660 F.2d 1345, 1350 (9th Cir.1981), aff'd on other grounds sub nom. Kush v. Rutledge,-U.S.-, 103 S.Ct. 1483, 75 L.Ed.2d 413 (1983). The Eleventh Amendment does not bar his claims against University officials in their individual capacities. Id. Because the Eleventh Amendment does not preclude all relief sought, we shall consider the merits of the claims. II. PROCEDURAL DUE PROCESS Goodisman’s principal argument is that University officials deprived him of procedural due process. U.S. Const, amend. XIV. Those due process requirements apply only to liberty and property interests protected by the Fourteenth Amendment. Board of Regents v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 2705, 33 L.Ed.2d" } ]

[ { "docid": "16987483", "title": "", "text": "its immunity or that Congress has expressly abrogated the state’s immunity under the federal securities laws. B Under the “arm of the state” doctrine, a state agent or agency is immune from suit under the Eleventh Amendment because “the state is the real, substantial party in interest and is entitled to invoke its sovereign immunity from suit even though individual officials [or state entities] are nominal defendants.” Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 464, 65 S.Ct. 347, 350, 89 L.Ed. 389 (1945); see also Ronwin v. Shapiro, 657 F.2d 1071, 1073 (9th Cir.1981). Sovereign immunity cloaks the state agent or agency because, if the plaintiff prevails, “[s]uch a judgment would have the same effect as if it were rendered directly against the State for the amount specified in the complaint.” Smith v. Reeves, 178 U.S. 436, 439, 20 S.Ct. 919, 920, 44 L.Ed. 1140 (1900). We have held that: To determine whether a governmental agency is an arm of the state, the following factors must be examined: [1] whether a money judgment would be satisfied out of state funds, [2] whether the entity performs central governmental functions, [3] whether the entity may sue or be sued, [4] whether the entity has the power to take property in its own name or only the name of the state, and [5] the corporate status of the entity. Jackson v. Hayakawa, 682 F.2d 1344, 1350 (9th Cir.1982). To determine these factors, the court looks to the way state law treats the eñtity. Mount Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280 [97 S.Ct. 568, 572-73, 50 L.Ed.2d 471] ... (1977); Rutledge v. Arizona Bd. of Regents, 660 F.2d 1345, 1349 (9th Cir.1981), aff'd sub nom. Kush v. Rutledge, 460 U.S. 719 [103 S.Ct. 1483, 75 L.Ed.2d 413] ... (1983). Mitchell v. Los Angeles Community College Dist., 861 F.2d 198, 201 (9th Cir.1988), cert. denied, 490 U.S. 1081, 109 S.Ct. 2102, 104 L.Ed.2d 663 (1989). Careful consideration of these five factors demonstrates that the Wyoming Community Development Authority is not an arm of the state" }, { "docid": "22309179", "title": "", "text": "fraudulently induced by his then attorney, Edward Critchlow, to plead guilty to a 1965 information. He also claims that he is owed back wages by Critchlow. The district court treated the complaints as alleging violations of 42 U.S.C. § 1983 and dismissed the actions for, among other reasons, the running of the statute of limitations. The dismissal of the actions against the State of Washington was also based on the Eleventh Amendment. McConnell’s attorney argued on appeal that the statute of limitations did not begin to run as to the City of Richland and the State of Washington until 1978 and that Washington had waived its Eleventh Amendment rights. No arguments were presented as to why the dismissals in favor of the other defendants were improper. Waldner, Critchlow and the Diettrichs requested costs and/or attorneys fees against McConnell and his counsel for bringing a frivolous appeal. I. Eleventh Amendment Under the Eleventh Amendment, states that have not consented to suit are immune from § 1983 suits in federal court. Quern v. Jordan, 440 U.S. 332, 338, 99 S.Ct. 1139, 1143, 59 L.Ed.2d 358 (1979); Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). Washington’s waiver of immunity in its own courts does not waive its immunity in the federal courts. Skokomish Indian Tribe v. France, 269 F.2d 555, 561 (9th Cir. 1959). II. Limitations as to the City of Rich-land We reject McConnell’s argument that his cause of action against the City of Richland was not time barred because it did not accrue until the right to suit was created by the Supreme Court’s 1978 reinterpretation of Section 1983 in Monell, supra. A decision recognizing a cause of action after the period has run does not retroactively interrupt the running of the limitations period. Duchesne v. Sugarman, 459 F.Supp. 313 (S.D.N.Y.1978) (rejecting delayed accrual arising from Monell). See generally, Versluis v. Town of Haskell, Okl., 154 F.2d 935 (10th Cir. 1946) (diversity); Zorgias v. S.S. Hellenic Star, 370 F.Supp. 591 (E.D.La.1972); Stephens v. Stephens, 85 Wash.2d 290, 534 P.2d 571 (1975) (judicial elimination of interspousal tort" }, { "docid": "23395328", "title": "", "text": "Lincoln County v. Luning, 133 U.S. 529, 530, 10 S.Ct. 363, 33 L.Ed. 766 (1890). See also Lake Country Estates v. Tahoe Regional Planning Agency, 440 U.S. 391, 401, 99 S.Ct. 1171, 1177, 59 L.Ed.2d 401 (1979). Therefore, the question here is whether MCO can be considered an “arm” or “alter ego” of the State of Ohio, entitled to the immunity afforded by the Eleventh Amendment, or whether it is merely a political subdivision-which enjoys no such immunity. The great majority of cases addressing the question of Eleventh Amendment immunity for public colleges and universities have found such institutions to be arms of their respective state governments and thus immune from suit. See, United Carolina Bank v. Board of Regents, 665 F.2d 553 (5th Cir.1982) (Stephen F. Austin State University in Texas); Rutledge v. Arizona Board of Regents, 660 F.2d 1345 (9th Cir. 1981) (Arizona State University), aff'd sub nom. Kush v. Rutledge, 460 U.S. 719, 103 S.Ct. 1483, 75 L.Ed.2d 413 (1983); Perez v. Rodriquez Bou, 575 F.2d 21 (1st Cir.1978) (University of Puerto Rico); Jagnandan v. Giles, 538 F.2d 1166 (5th Cir.1976) (Mississippi State University), cert. denied, 432 U.S. 910, 97 S.Ct. 2959, 53 L.Ed.2d 1083 (1977); Prebble v. Brodrick, 535 F.2d 605 (10th Cir.1976) (University of Wyoming); Long v. Richardson, 525 F.2d 74 (6th Cir. 1975) (Memphis State University); Brennan v. University of Kansas, 451 F.2d 1287 (10th Cir.1971); Walstad v. University of Minnesota Hospitals, 442 F.2d 634 (8th Cir.1971); Moxley v. Vernot, 555 F.Supp. 554 (S.D.Ohio 1982) (University of California at Irvine); Vaughn v. Regents of University of California, 504 F.Supp. 1349 (E.D.Cal.1981); Weisbord v. Michigan State University, 495 F.Supp. 1347 (W.D. Mich.1980); An-ti Chai v. Michigan Technological University, 493 F.Supp. 1137 (W.D.Mich.1980); Zentgraf v. Texas A & M University, 492 F.Supp. 265 (S.D.Tex.1980); Bailey v. Ohio State University, 487 F.Supp. 601 (S.D.Ohio 1980); Henry v. Texas Tech University, 466 F.Supp. 141 (N.D. Tex.1979). But see Goss v. San Jacinto Junior College, 588 F.2d 96 (5th Cir.1979); Dyson v. Lavery, 417 F.Supp. 103 (E.D.Va. 1976) (Virginia Polytechnic Institute); Gordenstein v. University of Delaware, 381 F.Supp. 718" }, { "docid": "6957105", "title": "", "text": "courts have ruled on the Eleventh Amendment status of the state’s community college system, several courts have held in analogous situations that they are “alter egos” or “arms” of the state and thus accorded immunity under the Eleventh Amendment. See Jackson at 1350; Vaughn v. Regents of University of California, 504 F.Supp. 1349, 1351-1354 (E.D.\\Cal.1981); Rutledge v. Arizona Board of Regents, 660 F.2d 1345, 1349 (9th Cir.1981). Furthermore, the grounds for this decision are not factual, but legal. In the Stones appeal, 796 F.2d 270 (9th Cir.1986), the court stated: The district court concluded that Dr. Stones’ suit for backpay against the district was barred by the Eleventh Amendment because state law treats the district as an arm of the state [citation deleted] and a money judgment levied against the district would be paid out of state apportioned funds. Id. at 272. Consequently, the court finds that the State Center Community College District as a community college within the California community college system, like the Los Angeles Community College District, is the type of state agency that enjoys Eleventh Amendment immunity against plaintiff's 42 U.S.C. § 1981 action for compensatory and punitive damages. In addition, the individual defendants sued in their official capacity are also immune from claims for monetary relief under the Eleventh Amendment. Eleventh Amendment immunity extends to actions against state officers sued in their official capacity because such actions are, in essence, actions against the governmental entity of which the officer is an agent, [citations] Jackson at 1350. Accordingly, to the extent the individual defendants are sued in their official capacity, damages are unavailable. B. Statute of Limitations. In Goodman v. Lukens Steel Co., 482 U.S. 656, 107 S.Ct. 2617, 96 L.Ed.2d 572 (1987), the Supreme Court held that as with § 1983 the appropriate statute of limitations for § 1981 claims is that governing personal injury actions. Goodman also applied the statute of limitations retroactively based on the rule that a decision specifying the applicable statute of limitations should be applied retroactively unless the decision overrules clear circuit precedent on which the plaintiff is entitled to" }, { "docid": "23276789", "title": "", "text": "are barred if the school district is indeed a state agency for purposes of the Eleventh Amendment. See, e.g., Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979) (state governments and their agencies are not amenable to suit under 42 U.S.C. § 1983). Whether the school district is a state agency for purposes of the Eleventh Amendment turns on the application of the multi-factored balancing test summarized in Mitchell v. Los Angeles Community College Dist., 861 F.2d 198, 201 (9th Cir.1988), cert. denied, 490 U.S. 1081, 109 S.Ct. 2102, 104 L.Ed.2d 663 (1989). To determine whether a governmental agency is an arm of the state, the following factors must be examined: [1] whether a money judgment would be satisfied out of state funds, [2] whether the entity performs central governmental functions, [3] whether the entity may sue or be sued, [4] whether the entity has the power to take property in its own name or only the name of the state, and [5] the corporate status of the entity. Id. (citing Jackson v. Hayakawa, 682 F.2d 1344, 1350 (9th Cir.1982)). We must examine these factors in light of the way California law treats the governmental agency. Id. As indicated by the reasoning and holding in Mitchell, the first factor is predominant: “The most ‘crucial question ... is whether the named defendant has such independent status that a judgment against the defendant would not impact the state treasury.’ ” Jackson, 682 F.2d at 1350 (quoting Ronwin v. Shapiro, 657 F.2d 1071, 1073 (9th Cir.1981)); see also Edelman v. Jordan, 415 U.S. 651, 668, 94 S.Ct. 1347, 1358, 39 L.Ed.2d 662 (1974) (if a “retroactive award of monetary relief” will be paid from state treasury funds, it is barred by the Eleventh Amendment); Rutledge v. Arizona Bd. of Regents, 660 F.2d 1345, 1349 (9th Cir.1981) (“Obviously the source from which the sums sought by the plaintiff must come is the most important single factor in determining whether the Eleventh Amendment bars federal jurisdiction.”), aff'd on other grounds sub nom. Kush v. Rutledge, 460 U.S. 719, 103 S.Ct. 1483," }, { "docid": "23222895", "title": "", "text": "objectively reasonable reliance on existing law. Id. at 166-167 [105 S.Ct. at 3105-3106], Id. 2. Pendent State Claims The district court denied the defendants’ motion to dismiss Pena’s pendent state claims. The defendants also asserted the eleventh amendment as a bar to these claims. A state law claim pendent to a federal claim that survives eleventh amendment analysis must itself be subjected to eleventh amendment scrutiny. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 117-23, 104 S.Ct. 900, 917-20, 79 L.Ed.2d 67 (1984) (Pennhurst II). The defendants, apparently conceding they were sued in their individual capacities, argue that Pennhurst II stands for the proposition that individual capacity claims against officials who are alleged to have violated state law are barred by the eleventh amendment. We disagree. In Penn-hurst II, the Supreme Court held that the eleventh amendment bars suits in federal court, for both retrospective and prospective relief, brought against state officials acting in their official capacities alleging a violation of state law. Id. at 106, 104 S.Ct. at 910. The court distinguished the situation where a plaintiff brings suit against a state official acting in his individual capacity. Id. at 111 n. 21, 104 S.Ct. at 913 n. 21. We have interpreted Pennhurst II to mean that “the eleventh amendment does not bar a suit seeking damages against a state official personally.” Demery v. Kupperman, 735 F.2d 1139, 1149 n. 8 (9th Cir.1984), cert. denied, 469 U.S. 1127, 105 S.Ct. 810, 83 L.Ed.2d 803 (1985). See also Rutledge v. Arizona Bd. of Regents, 660 F.2d 1345, 1350 (9th Cir.1981) (the eleventh amendment “bar is not automatically applicable to a suit brought against a state official in his individual capacity alleging the commission by him of a common law tort in the course of his employment”), aff'd sub nom. Kush v. Rutledge, 460 U.S. 719, 103 S.Ct. 1483, 75 L.Ed.2d 413 (1983); Paul M. Bator et al., Hart and Wechsler’s The Federal Courts and The Federal System 1203 (3d ed. 1988) (Pennhurst II appears to permit a suit under state law against a state official for damages" }, { "docid": "23272534", "title": "", "text": "plaintiff's complaint related to actions by the individual defendants in their official capacities, acting within the course and scope of their employment. Therefore, the court found that they shared the district's eleventh amendment immunity. Alternatively, as employees performing discretionary functions, the court found these defendants to possess a qualified good faith immunity from the appellant's suit based on Harlow v. Fitzgerald, 457 U.S. 800, 817-19, 102 S.Ct. 2727, 2737-39, 73 L.Ed.2d 396 (1982). The court held that all the plaintiff's state claims were time barred under California law. The court awarded no attorney's fees to the defendants. The appellant timely appealed. We have jurisdiction under 28 U.S.C. § 1291. DISCUSSION A grant of summary judgment is reviewed de novo. Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir.1986). I. Eleventh Amendment Immunity. Under the eleventh amendment, agencies of the state are immune from private damage actions or suits for injunc-tive relief brought in federal court. Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 907, 79 L.Ed.2d 67 (1984) (eleventh amendment proscribes suit against state agencies \"regardless of the nature of the relief sought\"); Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978) (per curiam). To determine whether a governmental agency is an arm of the state, the following factors must be examined: whether a money judgment would be satisfied out of state funds, whether the entity performs central governmental functions, whether the entity may sue or be sued, whether the entity has the power to take property in its own name or only the name of the state, and the corporate status of the entity. Jackson v. Hayakawa, 682 F.2d 1344, 1350 (9th Cir.1982). To determine these factors, the court looks to the way state law treats the entity. Mount Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.s. 274, 280, 97 S.Ct. 568, 572, 50 L.Ed.2d 471 (1977); Rutledge v. Arizona Bd. of Regents, 660 F.2d 1345, 1349 (9th Cir.1981), aff'd. sub nom. Kush v. Rutledge, 460 U.S. 719, 103 S.Ct. 1483, 75 L.Ed.2d 413 (1983). California" }, { "docid": "1282908", "title": "", "text": "489 U.S. 1033, 109 S.Ct. 1171, 103 L.Ed.2d 229 (1989); Estate of Ritter by Ritter v. University of Michigan, 851 F.2d 846 (6th Cir.1988); Kashani v. Purdue Univ., 813 F.2d 843 (7th Cir.), cert. denied, 484 U.S. 846, 108 S.Ct. 141, 98 L.Ed.2d 97 (1987); Hall v. Medical College of Ohio at Toledo, 742 F.2d 299 (6th Cir.1984), cert. denied, 469 U.S. 1113, 105 S.Ct. 796, 83 L.Ed.2d 789 (1985); United Carolina Bank v. Board of Regents of Stephen F. Austin State Univ., 665 F.2d 553 (5th Cir. Unit A 1982) (Stephen F. Austin State University in Texas); Rutledge v. Arizona Bd. of Regents, 660 F.2d 1345 (9th Cir. 1981) (Arizona State University), aff'd sub nom. Kush v. Rutledge, 460 U.S. 719, 103 S.Ct. 1483, 75 L.Ed.2d 413 (1983); Jagnandan v. Giles, 538 F.2d 1166 (5th Cir.1976) (Mississippi State University), cert. denied, 432 U.S. 910, 97 S.Ct. 2959, 53 L.Ed.2d 1083 (1977); Prebble v. Brodrick, 535 F.2d 605 (10th Cir.1976) (University of Wyoming); Long v. Richardson, 525 F.2d 74 (6th Cir.1975) (Memphis State University); Brennan v. University of Kansas, 451 F.2d 1287 (10th Cir.1971); Walstad v. University of Minnesota Hosps., 442 F.2d 634 (8th Cir.1971); Contra Goss v. San Jacinto Jr. College, 588 F.2d 96 (5th Cir.), modified, 595 F.2d 1119 (1979). In our review we have found only one appellate court decision holding that a state university does not share in its state’s eleventh amendment immunity. Kovats v. Rutgers, the State Univ., 822 F.2d 1303 (3d Cir.1987) (Rutgers not immune). In addition, one court expressed doubt about the matter. Soni v. Board of Trustees of Univ. of Tennessee, 513 F.2d 347 (6th Cir.1975) (court unclear about University of Tennessee's eligibility for immunity, but concluded that if such immunity existed it had been waived by the state), cert. denied, 426 U.S. 919, 96 S.Ct. 2623, 49 L.Ed.2d 372 (1976). . As stated earlier, Sherman's suggestions in opposition to the Curators' Motion to Dismiss presented numerous factual allegations highlighting the degree of funding autonomy enjoyed by the University. For example, Sherman alleged that the State of Missouri provides only one-third of" }, { "docid": "18386359", "title": "", "text": "mistreated by Roberts. See Baneijee Affidavit ¶ 45. In response, Roberts forwarded to the board several negative evaluations of Banerjee by other neurosurgeons associated with the program. See id. at ¶ 47; Roberts Affidavit MI 44-45. Banerjee contends that he had never seen these evaluations until they were turned over to his counsel in the course of this litigation. See Banerjee Affidavit 1147. Moreover, he notes that the evaluations do not make reference to any specific cases in which he performed inadequately and states that he “do[es] not believe that such cases exist.” See id. at MI 48-49. Baneijee commenced this lawsuit on September 28, 1984, against Roberts, the University of Connecticut, and the members of the university’s Board of Trustees. The amended complaint asserts twelve causes of action against each of the twenty defendants. II. Claims Against the University of Connecticut A federal court is precluded by the Eleventh Amendment to the United States Constitution from considering “any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const., amend. XI. The Eleventh Amendment bar to suit in federal courts extends not only to the state itself but also to any entity that is deemed to be an “arm of the State.” Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 572, 50 L.Ed.2d 471 (1977). As the Court of Appeals observed in Hall v. Medical College of Ohio, 742 F.2d 299, 301 (6th Cir.1984), cert. denied, 469 U.S. 1113, 105 S.Ct. 796, 83 L.Ed.2d 789 (1985), “[t]he great majority of cases addressing the question of Eleventh Amendment immunity for public colleges and universities have found such institutions to be arms of their respective state governments and thus immune from suit.” See, e.g., United Carolina Bank v. Board of Regents, 665 F.2d 553, 556-560 (5th Cir.1982); Rutledge v. Arizona Board of Regents, 660 F.2d 1345, 1349-1350 (9th Cir.1981), aff'd sub nom. Kush v. Rutledge, 460 U.S. 719, 103 S.Ct. 1483, 75 L.Ed.2d" }, { "docid": "23395327", "title": "", "text": "acts or omissions, seeks to impose legal or equitable liability payable from state funds, is barred in a federal court by the Eleventh Amendment. Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). This is so even when only individual state officials are the nominal defendants but the state is the real, substantial party in interest. Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 464, 65 S.Ct. 347, 350, 89 L.Ed. 389 (1945). When an action is brought against a public agency or institution, and/or the officials thereof, the application of the Eleventh Amendment turns on whether said agency or institution can be characterized as an arm or alter ego of the state, or whether it should be treated instead as a political subdivision of the state. Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 572, 50 L.Ed.2d 471 (1977). Municipalities, counties and other political subdivisions (e.g., public school districts) do not partake of the state’s Eleventh Amendment immunity. Id.; Lincoln County v. Luning, 133 U.S. 529, 530, 10 S.Ct. 363, 33 L.Ed. 766 (1890). See also Lake Country Estates v. Tahoe Regional Planning Agency, 440 U.S. 391, 401, 99 S.Ct. 1171, 1177, 59 L.Ed.2d 401 (1979). Therefore, the question here is whether MCO can be considered an “arm” or “alter ego” of the State of Ohio, entitled to the immunity afforded by the Eleventh Amendment, or whether it is merely a political subdivision-which enjoys no such immunity. The great majority of cases addressing the question of Eleventh Amendment immunity for public colleges and universities have found such institutions to be arms of their respective state governments and thus immune from suit. See, United Carolina Bank v. Board of Regents, 665 F.2d 553 (5th Cir.1982) (Stephen F. Austin State University in Texas); Rutledge v. Arizona Board of Regents, 660 F.2d 1345 (9th Cir. 1981) (Arizona State University), aff'd sub nom. Kush v. Rutledge, 460 U.S. 719, 103 S.Ct. 1483, 75 L.Ed.2d 413 (1983); Perez v. Rodriquez Bou, 575 F.2d 21 (1st Cir.1978) (University of Puerto" }, { "docid": "23352118", "title": "", "text": "Carolina Bank v. Board of Regents, 665 F.2d 553, 561 (5th Cir.1982) (Stephen F. Austin State University in Texas); Rutledge v. Arizona Board of Regents, 660 F.2d 1345, 1349-50 (9th Cir.1981) (Arizona State University), aff'd sub nom. Kush v. Rutledge, 460 U.S. 719, 103 S.Ct. 1483, 75 L.Ed.2d 413 (1983); Jagnandan v. Giles, 538 F.2d 1166, 1176 (5th Cir.1976) (Mississippi State University), cert. denied, 432 U.S. 910, 97 S.Ct. 2959, 53 L.Ed.2d 1083 (1977); Prebble v. Brodrick, 535 F.2d 605, 610 (10th Cir.1976) (University of Wyoming); Long v. Richardson, 525 F.2d 74, 79 (6th Cir.1975) (Memphis State University); Brennan v. University of Kansas, 451 F.2d 1287, 1290 (10th Cir.1971); Walstad v. University of Minnesota Hospitals, 442 F.2d 634, 641-42 (8th Cir.1971). Contra Goss v. San Jacinto Junior College, 588 F.2d 96, 98 (5th Cir.), modified, 595 F.2d 1119 (1979); Dyson v. Lavery, 417 F.Supp. 103, 108 (E.D.Va.1976) (Virginia Polytechnic Institute and State University); Gordenstein v. University of Delaware, 381 F.Supp. 718, 725 (D.Del.1974). The parties have not directed us to nor have we found any case which has decided whether the immunity of the eleventh amendment applies to the University of Arkansas. Arkansas v. Texas, relied on by appellees, considered the relationship between the state of Arkansas and the University of Arkansas and concluded that the “University of Arkansas is an official state instrumentality ... and a suit against the University is a suit against the State.” 346 U.S. at 370, 74 S.Ct. at 110. The Supreme Court was not, however, deciding the University’s status in the context of eleventh amendment immunity. Rather, the Court was considering whether a suit by the University of Arkánsas against the state of Texas was a suit between two states so as to come within the original jurisdiction of the Court. Therefore we do not believe that the Court’s holding in Arkansas v. Texas decides the issue in this case. We have found only a few cases (not including cases brought under Title VII) wherein suit against the University of Arkansas has been brought. Importantly, the issue of eleventh amendment immunity was not raised" }, { "docid": "18386360", "title": "", "text": "of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const., amend. XI. The Eleventh Amendment bar to suit in federal courts extends not only to the state itself but also to any entity that is deemed to be an “arm of the State.” Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 572, 50 L.Ed.2d 471 (1977). As the Court of Appeals observed in Hall v. Medical College of Ohio, 742 F.2d 299, 301 (6th Cir.1984), cert. denied, 469 U.S. 1113, 105 S.Ct. 796, 83 L.Ed.2d 789 (1985), “[t]he great majority of cases addressing the question of Eleventh Amendment immunity for public colleges and universities have found such institutions to be arms of their respective state governments and thus immune from suit.” See, e.g., United Carolina Bank v. Board of Regents, 665 F.2d 553, 556-560 (5th Cir.1982); Rutledge v. Arizona Board of Regents, 660 F.2d 1345, 1349-1350 (9th Cir.1981), aff'd sub nom. Kush v. Rutledge, 460 U.S. 719, 103 S.Ct. 1483, 75 L.Ed.2d 413 (1983); Perez v. Rodriguez Bou, 575 F.2d 21, 25 (1st Cir.1978); Brennan v. University of Kansas, 451 F.2d 1287, 1290-1291 (10th Cir.1971); Walstad v. University of Minnesota Hospitals, 442 F.2d 634, 641-642 (8th Cir.1971). The major factors considered by these courts in determining whether a public university is an “arm of the State” for purposes of Eleventh Amendment immunity include the status of the university under state law, the degree of autonomy that the university exercises over its own operations, and whether any judgment against the university would have to be paid out of the state treasury. It is evident from a consideration of these factors that the University of Connecticut is indeed an “arm” of the State of Connecticut. Significantly, the Connecticut Supreme Court has held that the doctrine of sovereign immunity bars suits for damages against the university in state court. See Fetterman v. University of Connecticut, 192 Conn. 539, 552, 473 A.2d 1176 (1984). Moreover, of the nineteen members of the university’s Board of Trustees, three are state officials (the governor," }, { "docid": "11778052", "title": "", "text": "to pursue their fourth amendment claims in a section 1983 action despite the availability of state tort remedies. III. The Sanders’ Fourteenth Amendment Claims The Sanders’ section 1983 complaint alleges that they suffered deprivations of their property and liberty without due process in violation of the fourteenth amendment. The district court dismissed these claims on the basis of the analysis in Par-ratt. We reverse. The availability of a state tort remedy does not bar due process claims brought under section 1983 in cases where a plaintiff is challenging an established state procedure. Logan v. Zimmerman Brush Co., 455 U.S. 422, 435-36, 102 S.Ct. 1148, 1157-58, 71 L.Ed.2d 265 (1982). The Parratt analysis only applies in cases involving random and unauthorized acts. See, e.g., Rutledge v. Arizona Board of Regents, 660 F.2d 1345, 1352 (9th Cir.1981) (Parratt analysis applicable to a claim that a coach assaulted a football player at a state university), aff'd on other grounds sub nom. Kush v. Rutledge, 460 U.S. 719, 103 S.Ct. 1483, 75 L.Ed.2d 413 (1983). We have recently affirmed the above principles, and defined their scope, in a trilogy of cases decided en banc. See Haygood v. Younger, 769 F.2d 1350, 1359 (9th Cir.1985) (en banc) (Logan, not Parratt, applies in a case involving a wrongful deprivation of liberty resulting from affirmatively enacted or de facto policies, practices, or customs), cert. denied sub nom. Cranke v. Haygood, — U.S. —, 106 S.Ct. 3333, 92 L.Ed.2d 739 (1986); Piatt v. MacDougall, 773 F.2d 1032, 1036 (9th Cir.1985) (en banc) (Parratt inapplicable to cases involving deliberate, considered, planned or prescribed conduct by state officials, whether or not such conduct is authorized); Bretz v. Kelman, 773 F.2d 1026, 1031-32 (9th Cir.1985) (en banc) (Parratt is directed at minor infractions of prisoners’ interests, when the alleged conduct is random and unauthorized; the Parratt analysis is inapplicable to a claim of conspiracy which, by definition, cannot be a random act). In the present case, the Sanders have alleged sufficient facts to sustain a section 1983 claim under Logan and the Haygood trilogy. The Sanders’ complaint alleges that the appellees’" }, { "docid": "23269717", "title": "", "text": "Dick. The district court first dismissed the claims against the Clark County defendants and then those against the State of Washington. The district court subsequently granted summary judgment on the claims against the remainder of the defendants. II. THE IMMUNITY OF THE STATE OF WASHINGTON AND THE WASHINGTON STATE TROOPERS UNDER THE ELEVENTH AMENDMENT A. Section 1983 Claims Against the State of Washington The district court dismissed Draper’s 42 U.S.C. § 1983 claims against the State of Washington. Because the eleventh amendment bars the federal courts from considering such claims, we affirm their dismissal. We have emphasized that “[ujnder the Eleventh Amendment, states that have not consented to suit are immune from [42 U.S.C.] § 1983 suits in federal court.” McConnell v. Critchlow, 661 F.2d 116, 117 (9th Cir.1981) (citing Ouern v. Jordan, 440 U.S. 332, 338, 99 S.Ct. 1139, 1143, 59 L.Ed.2d 358 (1979)). Draper alleges that, by enacting Wash.Rev.Code § 4.92.010-4.92.200, the State of Washington waived any immunity that it might enjoy. However, we have previously held that those provisions do not expressly and unequivocally waive Washington’s eleventh amendment immunity. McConnell v. Critchlow, 661 F.2d 116, 117 & n. 1 (9th Cir.1981). Accordingly, we must reject Draper’s argument. B. Section 1983 Claims against the Washington State Troopers Draper’s section 1983 claims allege that, by extraditing him to Washington from Or egon without a hearing, Washington State Trooper Coombs and Sergeant Cook, among others, violated his federal constitutional and statutory rights, as well as his rights under state law. “The Eleventh Amendment bars a suit against state officials when ‘the state is the real, substantial party in interest.’ ” Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 101, 104 S.Ct. 900, 908, 79 L.Ed.2d 67 (1984) (quoting Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 464, 65 S.Ct. 347, 359, 89 L.Ed. 389 (1945)); see Edelman v. Jordan, 415 U.S. 651, 663, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); Demery v. Kupperman, 735 F.2d 1139, 1146 (9th Cir.1984), cert. denied, — U.S.-, 105 S.Ct. 810, 83 L.Ed.2d 803 (1985). Although Cook and Coombs do not" }, { "docid": "23352117", "title": "", "text": "— U.S.-, 105 S. Ct. 796, 83 L.Ed.2d 789 (1985); Miener v. Missouri, 673 F.2d 969, 980 (8th Cir.) (special school district of the county, the board of education of the district, or officials of the district sued in their official capacity not immune), cert. denied, 459 U.S. 909, 103 S.Ct. 215, 74 L.Ed.2d 171 (1982); Gilliam v. City of Omaha, 524 F.2d at 1015 (City of Omaha, a municipal corporation, not immune from suit). “Each state university ... must be considered on the basis of its own particular circumstances” in determining if the university is a state instrumentality that enjoys the protection of the eleventh amendment. Soni v. Board of Trustees, 513 F.2d 347, 352 (6th Cir.1975), cert. denied, 426 U.S. 919, 96 S.Ct. 2623, 49 L.Ed.2d 372 (1976) . The majority of cases addressing the question of eleventh amendment immunity for public colleges and universities have held that these institutions are arms of their respective state governments and thus immune from suit. Hall v. Medical College, 742 F.2d at 301 (Ohio); see United Carolina Bank v. Board of Regents, 665 F.2d 553, 561 (5th Cir.1982) (Stephen F. Austin State University in Texas); Rutledge v. Arizona Board of Regents, 660 F.2d 1345, 1349-50 (9th Cir.1981) (Arizona State University), aff'd sub nom. Kush v. Rutledge, 460 U.S. 719, 103 S.Ct. 1483, 75 L.Ed.2d 413 (1983); Jagnandan v. Giles, 538 F.2d 1166, 1176 (5th Cir.1976) (Mississippi State University), cert. denied, 432 U.S. 910, 97 S.Ct. 2959, 53 L.Ed.2d 1083 (1977); Prebble v. Brodrick, 535 F.2d 605, 610 (10th Cir.1976) (University of Wyoming); Long v. Richardson, 525 F.2d 74, 79 (6th Cir.1975) (Memphis State University); Brennan v. University of Kansas, 451 F.2d 1287, 1290 (10th Cir.1971); Walstad v. University of Minnesota Hospitals, 442 F.2d 634, 641-42 (8th Cir.1971). Contra Goss v. San Jacinto Junior College, 588 F.2d 96, 98 (5th Cir.), modified, 595 F.2d 1119 (1979); Dyson v. Lavery, 417 F.Supp. 103, 108 (E.D.Va.1976) (Virginia Polytechnic Institute and State University); Gordenstein v. University of Delaware, 381 F.Supp. 718, 725 (D.Del.1974). The parties have not directed us to nor have we found any" }, { "docid": "1282907", "title": "", "text": "note that the University's sovereign immunity in state court is not at issue here; both parties agree that Sherman could bring his claims in state court, and that Missouri's sovereign immunity does not apply to contract cases in federal court. Thus, if the University does not share in the state's eleventh amendment immunity, Sherman is entitled to a federal forum under 28 U.S.C. § 1332(a)(1). . Among the many appellate decisions finding state universities or colleges immune from suit under the eleventh amendment are: Lassiter v. Alabama A & M Univ., Bd. of Trustees, 3 F.3d 1482 (11th Cir.1993); Hutsell v. Sayre, 5 F.3d 996 (6th Cir.1993) (University of Kentucky); Kaimowitz v. Board of Trustees of Univ. of Illinois, 951 F.2d 765 (7th Cir.1991); Dube v. State Univ. of New York, 900 F.2d 587 (2d Cir.1990); BV Eng’g v. University of California, Los Angeles, 858 F.2d 1394 (9th Cir.1988), cert. denied, 489 U.S. 1090, 109 S.Ct. 1557, 103 L.Ed.2d 859 (1989); Richard Anderson Photography v. Brown, 852 F.2d 114 (4th Cir.1988) (Radford University), cert. denied, 489 U.S. 1033, 109 S.Ct. 1171, 103 L.Ed.2d 229 (1989); Estate of Ritter by Ritter v. University of Michigan, 851 F.2d 846 (6th Cir.1988); Kashani v. Purdue Univ., 813 F.2d 843 (7th Cir.), cert. denied, 484 U.S. 846, 108 S.Ct. 141, 98 L.Ed.2d 97 (1987); Hall v. Medical College of Ohio at Toledo, 742 F.2d 299 (6th Cir.1984), cert. denied, 469 U.S. 1113, 105 S.Ct. 796, 83 L.Ed.2d 789 (1985); United Carolina Bank v. Board of Regents of Stephen F. Austin State Univ., 665 F.2d 553 (5th Cir. Unit A 1982) (Stephen F. Austin State University in Texas); Rutledge v. Arizona Bd. of Regents, 660 F.2d 1345 (9th Cir. 1981) (Arizona State University), aff'd sub nom. Kush v. Rutledge, 460 U.S. 719, 103 S.Ct. 1483, 75 L.Ed.2d 413 (1983); Jagnandan v. Giles, 538 F.2d 1166 (5th Cir.1976) (Mississippi State University), cert. denied, 432 U.S. 910, 97 S.Ct. 2959, 53 L.Ed.2d 1083 (1977); Prebble v. Brodrick, 535 F.2d 605 (10th Cir.1976) (University of Wyoming); Long v. Richardson, 525 F.2d 74 (6th Cir.1975) (Memphis State University); Brennan" }, { "docid": "23276790", "title": "", "text": "Jackson v. Hayakawa, 682 F.2d 1344, 1350 (9th Cir.1982)). We must examine these factors in light of the way California law treats the governmental agency. Id. As indicated by the reasoning and holding in Mitchell, the first factor is predominant: “The most ‘crucial question ... is whether the named defendant has such independent status that a judgment against the defendant would not impact the state treasury.’ ” Jackson, 682 F.2d at 1350 (quoting Ronwin v. Shapiro, 657 F.2d 1071, 1073 (9th Cir.1981)); see also Edelman v. Jordan, 415 U.S. 651, 668, 94 S.Ct. 1347, 1358, 39 L.Ed.2d 662 (1974) (if a “retroactive award of monetary relief” will be paid from state treasury funds, it is barred by the Eleventh Amendment); Rutledge v. Arizona Bd. of Regents, 660 F.2d 1345, 1349 (9th Cir.1981) (“Obviously the source from which the sums sought by the plaintiff must come is the most important single factor in determining whether the Eleventh Amendment bars federal jurisdiction.”), aff'd on other grounds sub nom. Kush v. Rutledge, 460 U.S. 719, 103 S.Ct. 1483, 75 L.Ed.2d 413 (1983). A. Application of the Mitchell Factors An analysis of the five Mitchell factors demonstrates that the school district in this case is a state agency for purposes of the Eleventh Amendment. Although Belanger’s view of certain factors are not without merit, Belanger cannot prevail on the first and most important factor because a judgment against the school district would be satisfied out of state funds. Moreover, under California law, the school district is a state agency that performs central governmental functions. Thus, the school district is protected by the Eleventh Amendment. 1. A Money Judgment Would Be Satisfied Out of State Funds Unlike most states, California school districts have budgets that are controlled and funded by the state government rather than the local districts. As in Mitchell, the school district’s budget in this case “is made up of funds received from the state’s general fund pursuant to a state calculated formula.” 861 F.2d at 201. California’s centralized control of school funding can be attributed to two key factors—decisions by the California" }, { "docid": "23222896", "title": "", "text": "distinguished the situation where a plaintiff brings suit against a state official acting in his individual capacity. Id. at 111 n. 21, 104 S.Ct. at 913 n. 21. We have interpreted Pennhurst II to mean that “the eleventh amendment does not bar a suit seeking damages against a state official personally.” Demery v. Kupperman, 735 F.2d 1139, 1149 n. 8 (9th Cir.1984), cert. denied, 469 U.S. 1127, 105 S.Ct. 810, 83 L.Ed.2d 803 (1985). See also Rutledge v. Arizona Bd. of Regents, 660 F.2d 1345, 1350 (9th Cir.1981) (the eleventh amendment “bar is not automatically applicable to a suit brought against a state official in his individual capacity alleging the commission by him of a common law tort in the course of his employment”), aff'd sub nom. Kush v. Rutledge, 460 U.S. 719, 103 S.Ct. 1483, 75 L.Ed.2d 413 (1983); Paul M. Bator et al., Hart and Wechsler’s The Federal Courts and The Federal System 1203 (3d ed. 1988) (Pennhurst II appears to permit a suit under state law against a state official for damages to be paid by the officer personally rather than by the state). We conclude that the eleventh amendment will not bar pendent state claims by Pena against state officials acting in their individual capacities. CONCLUSION We vacate the order denying the defendants’ motion to dismiss, and remand to the district court with instructions to dismiss Pena’s complaint with leave to amend. To survive a motion to dismiss, Pena must allege with greater specificity the particular conduct he contends caused a violation of his civil rights under 42 U.S.C. § 1983. When Pena has amended his complaint, the district court can determine whether he has alleged facts sufficient to state a section 1983 claim, whether the defendants are entitled to eleventh amendment immunity or qualified immunity, and how it should treat the pendent state claims. VACATED and REMANDED. . The officials are: Booth Gardner, Governor of the State of Washington; Amos Reed, former Secretary of the Department of Corrections; Lawrence Kincheloe, former Superintendent of the Washington State Penitentiary; John Lambert and Richard Morgan, Captains at the" }, { "docid": "23272535", "title": "", "text": "amendment proscribes suit against state agencies \"regardless of the nature of the relief sought\"); Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978) (per curiam). To determine whether a governmental agency is an arm of the state, the following factors must be examined: whether a money judgment would be satisfied out of state funds, whether the entity performs central governmental functions, whether the entity may sue or be sued, whether the entity has the power to take property in its own name or only the name of the state, and the corporate status of the entity. Jackson v. Hayakawa, 682 F.2d 1344, 1350 (9th Cir.1982). To determine these factors, the court looks to the way state law treats the entity. Mount Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.s. 274, 280, 97 S.Ct. 568, 572, 50 L.Ed.2d 471 (1977); Rutledge v. Arizona Bd. of Regents, 660 F.2d 1345, 1349 (9th Cir.1981), aff'd. sub nom. Kush v. Rutledge, 460 U.S. 719, 103 S.Ct. 1483, 75 L.Ed.2d 413 (1983). California cases demonstrate that California state colleges and universities are \"dependent instrumentalities of the state.\" Hayakawa, 682 F.2d at 1350 (citing Slivkoff v. California State Univ. and Colleges, 69 Cal.App.3d 394, 400, 137 Cal.Rptr. 920, 924 (1977) (\"California state universities and colleges are subject to full legislative control\") and Poschman v. Dumke, 31 Cal.App.3d 932, 942, 107 Cal.Rptr. 596, 603 (1973) (\"The Trustees of California State Colleges are a state agency created by the Legislature\")). As the district court noted, the district's budget is made up of funds received from the state's general fund pursuant to a state calculated formula. In addition, some fees charged by the district's colleges go to the state. We hold that, under California law, the district is a state entity that possesses eleventh amendment immunity from the appellant's section 1981, 1983 and 1985 claims in damages and for injunctive relief. Likewise, the individual defendants share in the district's eleventh amendment immunity because they were sued in their official capacities. Such suits \"are, in essence, actions against the governmental entity of which" }, { "docid": "23269718", "title": "", "text": "and unequivocally waive Washington’s eleventh amendment immunity. McConnell v. Critchlow, 661 F.2d 116, 117 & n. 1 (9th Cir.1981). Accordingly, we must reject Draper’s argument. B. Section 1983 Claims against the Washington State Troopers Draper’s section 1983 claims allege that, by extraditing him to Washington from Or egon without a hearing, Washington State Trooper Coombs and Sergeant Cook, among others, violated his federal constitutional and statutory rights, as well as his rights under state law. “The Eleventh Amendment bars a suit against state officials when ‘the state is the real, substantial party in interest.’ ” Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 101, 104 S.Ct. 900, 908, 79 L.Ed.2d 67 (1984) (quoting Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 464, 65 S.Ct. 347, 359, 89 L.Ed. 389 (1945)); see Edelman v. Jordan, 415 U.S. 651, 663, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); Demery v. Kupperman, 735 F.2d 1139, 1146 (9th Cir.1984), cert. denied, — U.S.-, 105 S.Ct. 810, 83 L.Ed.2d 803 (1985). Although Cook and Coombs do not specifically urge that the eleventh amendment bars the claims against them, the eleventh amendment “is a limitation on federal subject-matter jurisdiction” that we are obligated to consider fully. Demery v. Kupperman, id. at 1149 n. 8. If found to have violated an individual’s federal constitutional or statutory rights, a state official may be held personally liable for damages. See Scheuer v. Rhodes, 416 U.S. 232, 237-38, 94 S.Ct. 1683, 1686-87, 40 L.Ed.2d 90 (1974); Demery v. Kupperman, 735 F.2d at 1146. Here, Draper seeks only to recover damages from Trooper Coombs and Sergeant Cook personally. The State of Washington therefore is in no way “the real substantial party in interest.” Accordingly, Draper is not barred by the eleventh amendment from seeking damages under section 1983 from Cook and Coombs personally. III. DRAPER’S SECTION 1983 CLAIM BASED ON THE EXTRADITION FROM OREGON TO WASHINGTON Draper pleaded 42 U.S.C. § 1983 claims against the Washington State Troopers and the Portland police officers contending that they failed to follow the extradition procedures required by federal and state law." } ]

[ { "docid": "22407127", "title": "", "text": "petition for the writ is granted in part and denied in part. Each party shall bear its own costs. . Even though Congress failed to adopt Supreme Court Standard 503 as part of the Federal Rules of Evidence, it still serves as a useful guide to the law of privileges to be applied in the federal courts. The standard, with a few minor exceptions, is a restatement of the lawyer-client privilege at common law. McLaughlin, The Treatment of Attorney-Client and Re-Iated Privileges in the Proposed Rules of Evidence for the United States District Courts, 26 The Record 31 (1971). “Consequently, despite the failure of Congress to enact a detailed article on privileges, Standard 503 should be referred to by the courts.” 2 Weinstein’s Evidence ¶ 503 [02] at 503-17 (1975). . The control group approach was followed in the first draft of Rule 503, but was deleted in the second draft because of the 4-4 split in the Supreme Court on the issue in Decker v. Harper & Row Publishers, Inc., 400 U.S. 348, 91 S.Ct. 479, 27 L.Ed.2d 433 (1971). WEBSTER, Circuit Judge, took no part in the consideration or decision of this case. . In particular, the September 3, 1975, minutes discuss the contents of the report and the results of the investigation. The February 3, 1976, and March 3, 1976, minutes also discuss the investigation as applied to Mr. Harry Simmons. The remaining minutes only mention the existence of the investigation and do not reveal the contents of the report. . However, the work product rule may apply in such situations. See Fed.R.Civ.P. 26(b)(3). See also Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947). . We have considered the deposition of Joseph B. Woodlief, the President of Diversified. He stated that he did not believe that Wilmer, Cutler & Pickering represented Diversified “in the context of advice of attorney to client.” Woodlief’s employment began two months after the law firm was retained. We cannot tell from his deposition whether he thought of attorney-client advice solely in the context of litigation. In any" } ]

[ { "docid": "8730115", "title": "", "text": "Metals Corp. of America, 91 F.R.D. 84, 90 (E.D.N.Y.1981); see also Chubb Integrated Systems Ltd. v. National Bank, 103 F.R.D. 52, 67 (D.D.C.1984). The fact that Chrysler and the class action plaintiffs may have shared a common interest in settling claims arising out of the Overnight Evaluation Program does not neutralize the act of disclosure because that common interest always exists be tween opposing parties in any attempt at settlement. Nor does the agreement between Chrysler and co-liaison counsel for the class action plaintiffs not to disclose the computer tape to third-parties change the fact that the computer tape has not been kept confidential. “Confidentiality is the dispositive factor in deciding whether [material] is privileged.” Chubb Integrated Systems Ltd. v. National Bank, 103 F.R.D. at 67 (citation omitted). Not only did Chrysler fail to keep the computer tape confidential, Chrysler and the class action plaintiffs even contemplated that the computer tape and the analyses therefrom might be used, and thus disclosed to the public, during the fairness hearing or the settlement hearing. Judge Fagg agrees that the computer tape is ordinary work product but would hold that Chrysler did not waive the protection of the work product privilege under these circumstances. Nor does Judge Fagg believe the government has made the necessary showing of substantial need and undue hardship to overcome the ordinary work product privilege. Judge Fagg would grant the petition for writ of mandamus. Accordingly, the petition for writ of mandamus is denied. . The Honorable John F. Nangle, Chief Judge, United States District Court for the Eastern District of Missouri." }, { "docid": "8730110", "title": "", "text": "action plaintiffs with access to the computer tape for the limited purpose of expediting the due diligence review. Chrysler agreed to provide the computer tape on the condition that co-liaison counsel for the class action plaintiffs agreed that the computer tape was attorney work product and that Chrysler’s making the computer tape available to co-liaison counsel for the class action plaintiffs did not constitute a waiver of the work product privilege. In a letter dated March 9, 1988, co-liaison counsel for the class action plaintiffs acknowledged these conditions and further noted that “Chrysler understands that the [computer tape] and analyses therefrom may be used in the fairness hearing on the settlement.” In June 1988 the district court modified a protective order entered in the consolidated class actions to permit the government to have access to “any and all documents presently under seal in these consolidated actions” in order to prepare 'for the sentencing hearing. Co-liaison counsel for the class action plaintiffs then filed a motion for clarification in order to determine whether the computer tape should be provided to the government. Chrysler filed a response opposing production on the grounds that the computer tape was attorney work product and thus privileged. In August 1988, after a hearing, the district court vacated its modified protection order in the civil litigation and ordered Chrysler and the class action plaintiffs to establish a documentary depository for all discovery materials, except those in which Chrysler claimed a privilege. On September 3, 1988, the district court entered the order at issue in this case requiring co-liaison counsel for the class action to provide the computer tape to the government. The district court held that the computer tape was not attorney work product and, even if the privilege applied, the government had shown sufficient hardship to overcome the claim of privilege and, in the alternative, Chrysler had waived any claim of privilege by voluntarily disclosing the computer tape for the class action plaintiffs. In re Chrysler Motors Corp. Overnight Evaluation Program Litigation, MDL No. 740, slip op. at 4-6 (E.D.Mo. Sept. 23, 1988) (order). As a" }, { "docid": "14638631", "title": "", "text": "is virtually omnipresent. They are inseparable twin issues, and when one is advanced, surely the other will follow. The work product privilege is more broad than the attorney-client privilege. In re Grand Jury Proceedings, 219 F.3d 175, 190 (2d Cir.2000). This privilege exists to protect attorneys’ mental impressions, opinions, and/or legal theories concerning litigation. Horn & Hardart Co. v. Pillsbury Co., 888 F.2d 8, 12 (2d Cir.1989). Indeed, the work product privilege is designed to protect an adversarial system of justice and has been analyzed in that context by the Supreme Court in Hickman v. Taylor, 329 U.S. 495, 510-11, 67 S.Ct. 385, 91 L.Ed. 451 (1947). This doctrine establishes a “zone of privacy” in which a lawyer can prepare and develop theories and strategies with an eye towards litigation free from unnecessary intrusion by his or her adversaries. United States v. Adlman (“Adlman I”), 68 F.3d 1495, 1500-01 (2d Cir.1995) (citing United States v. Nobles, 422 U.S. 225, 238, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975) & Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451); see also In re Minebea Co., Ltd., 143 F.R.D. 494, 499 (S.D.N.Y.1992). Of course the burden, albeit not a heavy one, of establishing that the work product doctrine applies rests with that party’s attorney who is claiming the protection. The work product doctrine, as well as the attorney-client privilege, “does not extend to every document generated by the attorney; it does not shield from disclosure everything a lawyer does.” Rattner v. Netburn, 1989 WL 223059, at *6 (S.D.N.Y. June 20, 1989). The doctrine is generally invoked as soon as the attorney, in responding to a request for production of documents, serves upon the requesting party a privilege log asserting this and any other relevant privilege or provides notification that it will not be disclosed for this reason. Fed.R.Civ.P. 26(b)(5) & 34(b). Failure to timely provide the privilege log, as discussed above, or objection constitutes a waiver of any of the asserted privileges. Even if a party follows these steps, the security of the work product doctrine is not assured. There" }, { "docid": "10094880", "title": "", "text": "reversed and the case remanded to the district court for further consideration of the claim of attorney client privilege. The proper procedure for such consideration is that which the defendants asked for in the first place; in camera inspection by the court. See Kerr v. United States District Court, 426 U.S. 394, 405, 96 S.Ct. 2119, 2125, 48 L.Ed.2d 725 (1976); United States v. Nixon, 418 U.S. 683, 706, 94 S.Ct. 3090, 3106, 41 L.Ed.2d 1039 (1974); Bogosian v. Gulf Oil Corp., 738 F.2d 587, 596 (3d Cir.1984). III. Work Product Privilege Unlike the attorney client privilege, the work product privilege is governed, even in diversity cases, by a uniform federal standard embodied in Fed.R.Civ.P. 26(b)(3), which provides: Trial Preparation: Materials. Subject to the provisions of subdivision (b)(4) of this rule, a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative (including the other parly’s attorney, consultant, surety, indem-nitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party’s case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation. The district court’s ruling that the work product privilege is inapplicable to documents containing mental impressions of anyone other than a lawyer is inconsistent with the plain language of the rule. The rule, applicable to civil cases, is a codification of the federal common law rule announced in Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947), and that rule applies even in criminal cases. United States v. Nobles, 422 U.S. 225, 236, 95 S.Ct. 2160, 2168, 45 L.Ed.2d 141 (1975). In" }, { "docid": "8004845", "title": "", "text": "means without undue hardship” for ordinary work product (such as photographs and raw information), and “only in rare and extraordinary circumstances” for opinion work product (containing mental impressions, conclusions, opinions, or legal theories regarding the litigation). In re Murphy, 560 F.2d 326, 333-36 & n. 20 (8th Cir.1977); see also In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910, 924-25 (8th Cir.), cert. denied, — U.S. —, 117 S.Ct. 2482, 138 L.Ed.2d 991 (1997); Simon v. G.D. Searle & Co., 816 F.2d 397, 400-02 & n. 3 (8th Cir.1987). Although the Pittmans do not discuss the distinction on appeal, we will assume, without deciding, that the material sought to be obtained constitutes ordinary work product. We have stated that disclosure to an adversary waives work product protection as to items actually disclosed. In re Chrysler Motors Corp. Overnight Evaluation Program Litig., 860 F.2d 844, 846 (8th Cir.1988). If documents otherwise protected by the work-product rule have been disclosed to others with an actual intention that an opposing party may see the documents, the party who made the disclosure should not subsequently be able to claim protection for the documents as work product. But disclosure of some documents does not destroy workproduct protection for other documents of the same character. Wright & Miller, § 2024 at 209 (emphasis added); see also Duplan Corp. v. Deering Milliken, Inc., 540 F.2d 1215, 1222 (4th Cir.1976) (“broad concepts of subject matter waiver analogous to those applicable to claims of attorney-client privilege are inappropriate when applied to Rule 26(b)(3)”); In re United Mine Workers of America Employee Benefit Plans Litig., 159 F.R.D. 307, 310-12 (D.D.C.1994) (production of documents protected by attorney work product doctrine resulted in waiver of privilege only as to those documents produced). The work product doctrine is to be applied in a commonsense manner in light of reason and experience as determined on a case-by-case basis. See In re Six Grand Jury Witnesses, 979 F.2d 939, 944 (2d Cir.1992) (citing Fed.R.Evid. 501). Here, Union Pacific merely utilized as trial exhibits photographs of the accident scene that had been previously disclosed to" }, { "docid": "8730114", "title": "", "text": "the gate passes that counsel believed would be relevant for trial preparation. As such, the computer tape is a “compendium of relevant evidence prepared by the attorney.” In re Murphy, 560 F.2d at 337. We also think that the government made the requisite showing of substantial need and inability to secure the substantial equivalent without undue hardship to defeat the ordinary work product privilege. The government showed that it needed the information contained in the computer tape to help it to identify all the vehicles in Chrysler’s Overnight Evaluation Program and that replication of the computer tape would involve duplication of effort and considerable delay and expense. We need not, however, resolve this issue because we agree with the district court that Chrysler waived any work product protection by voluntarily disclosing the computer tape to its adversaries, the class action plaintiffs, during the due diligence phase of the settlement negotiations. “Disclosure to an adversary waives the work product protection as to items actually disclosed, even where disclosure occurs in settlement.” Grumman Aerospace Corp. v. Titanium Metals Corp. of America, 91 F.R.D. 84, 90 (E.D.N.Y.1981); see also Chubb Integrated Systems Ltd. v. National Bank, 103 F.R.D. 52, 67 (D.D.C.1984). The fact that Chrysler and the class action plaintiffs may have shared a common interest in settling claims arising out of the Overnight Evaluation Program does not neutralize the act of disclosure because that common interest always exists be tween opposing parties in any attempt at settlement. Nor does the agreement between Chrysler and co-liaison counsel for the class action plaintiffs not to disclose the computer tape to third-parties change the fact that the computer tape has not been kept confidential. “Confidentiality is the dispositive factor in deciding whether [material] is privileged.” Chubb Integrated Systems Ltd. v. National Bank, 103 F.R.D. at 67 (citation omitted). Not only did Chrysler fail to keep the computer tape confidential, Chrysler and the class action plaintiffs even contemplated that the computer tape and the analyses therefrom might be used, and thus disclosed to the public, during the fairness hearing or the settlement hearing. Judge Fagg agrees" }, { "docid": "8730113", "title": "", "text": "parties and their counsel.’ ” Simon v. G.D. Searle & Co., 816 F.2d at 400, citing Hickman v. Taylor, 329 U.S. at 510-11, 67 S.Ct. at 393-94. We agree with the district court that the computer tape is not opinion work product. Slip op. at 6 & n. 6. The computer tape does not itself contain counsel’s mental impressions, conclusions or legal theories. Unlike ordinary or fact work product, “opinion work product enjoys a very nearly absolute immunity and can be discovered only in very rare and extraordinary circumstances.” In re Murphy, 560 F.2d 326, 336 (8th Cir.1977); see also Upjohn Co. v. United States, 449 U.S. 383, 401, 101 S.Ct. 677, 688, 66 L.Ed.2d 584 (1981); In re Grand Jury Proceedings, 473 F.2d 840, 848-49 (8th Cir.1973) (personal recollections, notes and memoranda or conversations with witnesses). Whether the computer tape is ordinary work product is a close question. We think that it is. The computer tape was prepared by counsel in anticipation of litigation and reflects counsel’s selection of certain categories of information from the gate passes that counsel believed would be relevant for trial preparation. As such, the computer tape is a “compendium of relevant evidence prepared by the attorney.” In re Murphy, 560 F.2d at 337. We also think that the government made the requisite showing of substantial need and inability to secure the substantial equivalent without undue hardship to defeat the ordinary work product privilege. The government showed that it needed the information contained in the computer tape to help it to identify all the vehicles in Chrysler’s Overnight Evaluation Program and that replication of the computer tape would involve duplication of effort and considerable delay and expense. We need not, however, resolve this issue because we agree with the district court that Chrysler waived any work product protection by voluntarily disclosing the computer tape to its adversaries, the class action plaintiffs, during the due diligence phase of the settlement negotiations. “Disclosure to an adversary waives the work product protection as to items actually disclosed, even where disclosure occurs in settlement.” Grumman Aerospace Corp. v. Titanium" }, { "docid": "19213972", "title": "", "text": "not limited to any and all original notes of consultations, memoranda of interviews of Mr. Wallace or witnesses, or any other statements of Mr. Wallace or witness.” Attorney Boeckeler has moved to quash the subpoena on the grounds that it requires him to divulge material protected by the work-product doctrine. John Wallace, through counsel as far as this court is concerned has waived the attorney-client privilege. Sleeper v. Abbott, 60 N.H. 162, USA v. Strahl, 590 F.2d 10 (1st Cir.1978). See exhibit 1. While the court over the government’s objection held an on the record, in camera hearing with Attorneys Gordon and Boeckeler present, nothing earth shattering was revealed or came of it, but the record can speak for itself if the case is appealed. Work Product Doctrine The work product doctrine had its genesis in a civil action. Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947), but it has since been held to apply to criminal cases where it is “even more vital” to ensure the proper functioning of the criminal justice system. United States v. Nobles, 422 U.S. 225, 238, 95 S.Ct. 2160, 2170, 45 L.Ed.2d 141 (1975); In re Special September, 1978 Grand Jury, 640 F.2d 49, 61 (7th Cir.1980). The work product doctrine has been extended to grand jury proceedings. In re Grand Jury Proceedings, 473 F.2d 840, 845 (8th Cir.1973); see also, United States v. Nobles, 422 U.S. 225, 247 n. 6, 95 S.Ct. 2160, 2174 n. 6, 45 L.Ed.2d 141 (1975) (White J. concurring). The work product doctrine is “distinct from and broader than the attorney-client privilege.” United States v. Nobles, supra, 422 U.S. at 238 n. 11, 95 S.Ct. at 2170, 45 L.Ed.2d 141 (1975), citing Hickman v. Taylor, supra. Although only confidential communications between the attorney and client are protected by the attorney-client privilege, the work product doctrine may encompass any document prepared in anticipation of litigation by or for the attorney. Further, the attorney-client privilege belongs to the client alone while the work product doctrine may be asserted by either the client or the attorney. In" }, { "docid": "15833872", "title": "", "text": "attorney-client privilege and Federal Rule of Civil Procedure 26(b)(3) and its governing authority). Although “the attorney-client privilege and work product doctrine spring from the same common law origin,” In re Grand Jury Proceedings, 473 F.2d 840, 844 (8th Cir.1973), the contemporary work product doctrine “is distinct from and broader than the attorney-client privilege.” United States v. Nobles, 422 U.S. 225, 238 n. 11, 95 S.Ct. 2160, 2170 n. 11, 45 L.Ed.2d 141 (1975). As shown by Rule 26(b)(3) and the previous discussion of the attorney-client privilege, the elements are different. Unlike attorney-client privilege, the right to assert the work product barrier to disclo-' sure belongs in large part to the attorney. In re Grand Jury Proceedings (FMC Corp.), 604 F.2d 798, 801 n. 4 (3d Cir.1979). In addition to protecting confidentiality in the attorney-client relationship, the work product doctrine affords some additional protection to the attorney from unfair disclosure. The Supreme court stated that “it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel.” Hickman v. Taylor, 329 U.S. 495, 510-11, 67 S.Ct. 385, 393, 91 L.Ed. 451 (1947). Without this protection, “much of what is now put down in writing would remain unwritten.” Id. at 511, 67 S.Ct. at 393. A. The Showing Of Necessity To Overcome The Protection Of The Work Product Doctrine One of the differences between attorney-client privilege and work product doctrine is that the latter can be discovered by a showing of necessity in certain cases. For the purposes of the present motion, Liberty Mutual has accepted the designation of the documents in Remington’s Revised Privilege Log as protected by the work product doctrine in the underlying actions. See supra note 1. In order to gain factual work product, Liberty Mutual must show a substantial need for the documents and that their equivalent cannot be acquired without undue hardship. See Fed.R.Civ.P. 26(b)(3). The Third Circuit also allows the discovery of opinion work product on a showing of good cause in rare situations, although this standard is evidently more difficult to meet than" }, { "docid": "5553934", "title": "", "text": "product privilege extends beyond the termination of litigation. See In re Murphy, 560 F.2d 326, 334 (8th Cir.1977). Thus, unless the privilege has been waived or the requirements of Federal Rule of Civil Procedure 26(b)(3) satisfied, the work product privilege would protect much of the information Dynasty seeks to gain from Pamida’s counsel. Because we find that Pamida has waived the work product privilege in this case, we need not address whether the Rule 26(b)(3) standard of substantial need an undue hardship has been shown by Dynasty- The work product privilege is not absolute and may be waived. See United States v. Nobles, 422 U.S. 225, 239, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975); see also In re Chrysler Motors Corp. Overnight Evaluation, 860 F.2d 844 (8th Cir.1988). This court has recognized that the privilege should be “applied in a commonsense manner in light of reason and experience as determined on a case-by-case basis.” Pittman v. Frazer, 129 F.3d 983, 988 (8th Cir.1997). The privilege is designed to balance the needs of the adversary system to promote an attorney’s preparation in representing a client against society’s interest in revealing all true and material facts relevant to the resolution of a dispute. See Hickman v. Taylor, 329 U.S. 495, 510-11, 67 S.Ct. 385, 91 L.Ed. 451 (1947). In the instant case, that balance weighs on the side of disclosure, and this Court holds that Pamida impliedly waived the work product privilege by bringing the indemnification action in which the information allegedly protected is crucial and unavailable by other means. With respect to the issue of implied waiver, the Court must not only look at whether Pamida intended to waive the privilege, but also whether the interests fairness and consistency mandate a finding of waiver. See Wigmore, Evidence in Trial at Common Law, § 2327 at 636. (J. McNaughton rev.1961). “When a party seeks a greater advantage from its control over work product than the law must provide to maintain a healthy adversary system, the privilege should give way.” In re Sealed Case, 676 F.2d 793, 818 (D.C.Cir.1982). Here, the privilege must" }, { "docid": "8730111", "title": "", "text": "should be provided to the government. Chrysler filed a response opposing production on the grounds that the computer tape was attorney work product and thus privileged. In August 1988, after a hearing, the district court vacated its modified protection order in the civil litigation and ordered Chrysler and the class action plaintiffs to establish a documentary depository for all discovery materials, except those in which Chrysler claimed a privilege. On September 3, 1988, the district court entered the order at issue in this case requiring co-liaison counsel for the class action to provide the computer tape to the government. The district court held that the computer tape was not attorney work product and, even if the privilege applied, the government had shown sufficient hardship to overcome the claim of privilege and, in the alternative, Chrysler had waived any claim of privilege by voluntarily disclosing the computer tape for the class action plaintiffs. In re Chrysler Motors Corp. Overnight Evaluation Program Litigation, MDL No. 740, slip op. at 4-6 (E.D.Mo. Sept. 23, 1988) (order). As a preliminary matter, we hold that mandamus is the proper means for Chrysler to challenge the production order on the grounds of attorney work product privilege. Cf. Diversified Industries, Inc. v. Meredith, 572 F.2d 596, 607 (8th Cir.1977) (banc); see also United States Department of Energy v. Brimmer, 776 F.2d 1554, 1559 (Temp.Emer.Ct.App.1985), cert. denied, 475 U.S. 1045, 106 S.Ct. 1261, 89 L.Ed.2d 571 (1986). Chrysler argues that the computer tape is protected from disclosure by the attorney work product doctrine. See United States v. Nobles, 422 U.S. 225, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975); Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947); Simon v. G.D. Searle & Co., 816 F.2d 397, 400-02 (8th Cir.), cert. denied, — U.S. -, 108 S.Ct. 268, 98 L.Ed.2d 225 (1987); Fed.R.Civ.P. 26(b)(3). “The work product doctrine was designed to prevent ‘unwarranted inquiries into the files and mental impressions of an attorney’ and recognizes that it is ‘essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing" }, { "docid": "8730107", "title": "", "text": "McMILLIAN, Circuit Judge. Chrysler Motors Corp. (Chrysler) has filed a petition for writ of mandamus to direct the District Court for the Eastern District of Missouri to vacate its order requiring co-liaison counsel for the class action plaintiffs to provide a computer tape to the United States Attorney for the Eastern District of Missouri. The government argued that the probation office needs the computer tape to complete its presentence report. Chrysler argues that the computer tape is attorney work product and therefore protected from disclosure. For the reasons discussed below, we agree that the computer tape is protected by the attorney work product doctrine, but hold that Chrysler waived any claim of privilege by voluntarily disclosing the computer tape to its adversaries. Accordingly, we deny the petition for writ of mandamus. The order at issue was entered in In re Chrysler Motors Corp. Overnight Evaluation Program Litigation, MDL No. 740, twelve consolidated class actions involving claims against Chrysler arising out of Chrysler’s former practice of permitting certain categories of Chrysler employees to drive new vehicles with disconnected odometers. Chrysler defended this practice as a quality-control measure. The class actions had been prompted by a 1986 federal indictment charging Chrysler with sixteen counts of mail fraud and odometer fraud. The government alleged that during 1985 and 1986 as many as 60,000 new vehicles had been driven with disconnected odometers as part of Chrysler’s Overnight Evaluation Program. In late 1987 the class actions were transferred to and consolidated in the Eastern District of Missouri, where the criminal case was pending. In November 1987 Chrysler and the class action plaintiffs agreed to settle the civil litigation. In December 1987 Chrysler entered a nolo contendere plea to all sixteen counts of the indictment. The district court accepted the plea and ordered preparation of a presentence report by the probation office. Section 20 of the settlement agreement provided that co-liaison counsel for the class action plaintiffs could undertake a due diligence review of Chrysler’s documentation of the vehicles involved in the Overnight Evaluation Program. Chrysler could identify those vehicles by referring to the gate pass" }, { "docid": "10995493", "title": "", "text": "for legal advice.” Sneider, supra, 91 F.R.D. at 5 (“Funneling papers past corporate counsel will not shield the communications from disclosure”). See also Simon, supra, 816 F.2d at 403 (“business documents sent to corporate officers and employees, as well as the corporation’s attorneys, do not become privileged automatically”). b. The Work Product Doctrine The underlying principle of modern discovery is that “parties should be allowed to obtain ‘the fullest possible knowledge of the issues and facts before trial.’, ” LeBarron v. Haverhill Coop. Sch. Dist., 127 F.R.D. 38, 40 (D.N.H.1989) (quoting 8 C. Wright & A. Miller, Federal Practice AND Prooedure: Civil § 2001, at 13); see also Hickman v. Taylor, 329 U.S. 495, 507, 67 S.Ct. 385, 391-92, 91 L.Ed. 451 (1947) (“Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation.”). However, “discovery, like all matters of procedure, has ultimate and necessary boundaries.” Hickman, supra, 329 U.S. at 507, 67 S.Ct. at 391. Such limitations come into play when a party’s discovery requests “en-eroaeh[ ] upon the recognized domains of privilege.” Id. at 508, 67 S.Ct. at 392. One such area of privilege is. that encompassed by the work product doctrine. “At its core the work-product doctrine shelters the mental processes of the attorney, providing a privileged area within which he can analyze and prepare his client’s case.” United States v. Nobles, 422 U.S. 225, 238, 95 S.Ct. 2160, 2170, 45 L.Ed.2d 141 (1975); see also In re San Juan Dupont Plaza Hotel Fire Litig., 859 F.2d 1007, 1014 (1st Cir.1988) (the work product doctrine gives attorneys “a zone of privacy within which to prepare the client’s case and plan strategy, without undue interference”). The work product doctrine encompasses both “ ‘opinion’ work product and ‘ordinary’ work product—the former category encompassing materials that contain the mental impressions, conclusions, opinions or legal theories of an attorney, the latter category embracing the residue.” Dupont Plaza Hotel, supra, 859 F.2d at 1014. The privilege afforded both types of work product is not absolute, but is instead a qualified privilege. Nobles, supra, 422 U.S. at 239," }, { "docid": "11070810", "title": "", "text": "it is permeated with his thought process, mental impressions and legal theories to a degree that protects the entirety of the report. Thus, Patterson contends that the entire report is work product and protected from disclosure under the circumstances. The report and the communications utilized by Attorney Shu in formulating it are protected by the work product doctrine. The work-product doctrine is codified in Federal Rule of Civil Procedure 26(b), which provides that “a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative” unless otherwise discoverable and the party shows substantial need for the material and the inability to obtain its substantial equivalent without undue hardship. Fed. R. Civ. Proc. 26(b)(3). In the seminal case of Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947), the Supreme Court first recognized the doctrine pursuant to the principle that permitting attorneys to prepare their eases without fear that their work product would be used against their clients advances the adversarial system. Id. at 510-11, 67 S.Ct. 385. In United States v. Nobles, 422 U.S. 225, 238, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975), the Supreme Court further opined that the doctrine “shelters the mental processes of the attorney, providing a privileged area within which he can analyze and prepare his client’s case.” Included within this category are trial preparation documents that reflect the fruits of the attorney’s endeavors, any compendium of evidence prepared by the attorney and any of the attorney’s mental impressions, opinions or theories. Id. at 236-39, 95 S.Ct. 2160. Also protected are those materials prepared by an attorney’s agent. Id. at 238-39, 95 S.Ct. 2160. However, when “relevant and non-privileged facts remain hidden in an attorney’s file and where production of those facts is essential to the preparation of one’s case, discovery may properly be had.” Hickman v. Taylor, 329 U.S. 495, 511, 67 S.Ct. 385, 91 L.Ed. 451 (1947). The work-product doctrine “is designed to protect material prepared by an attorney acting for his client in anticipation" }, { "docid": "5426035", "title": "", "text": "here. Hickman v. Taylor, 329 U.S. 495, 508-14, 67 S.Ct. 385, 392-95, 91 L.Ed. 451 (1947); see In re Sealed Case, 676 F.2d 793, 808 (D.C.Cir.1982). Differences relevant here include who holds the privilege— the work product privilege belongs to both attorney and client, see In re Sealed Case, 676 F.2d at 812 n. 75, while the attorney-client privilege belongs to the client alone, American Standard, 828 F.2d at 745 — and what type of disclosure constitutes a waiver. The attorney-client privilege evaporates upon any voluntary disclosure of confidential information to a third party; the purpose of the work product privilege is not in all cases frustrated by a similar disclosure. See United States v. American Tel. & Tel. Co., 642 F.2d 1285, 1298 (D.C.Cir.1980). That purpose is to prevent the disclosure of an attorney’s mental impressions and thought processes either to an opponent in the litigation for which the attorney generated and recorded those impressions, see Hickman, 329 U.S. at 510-11, 67 S.Ct. at 393-94, or to a third party with interests not “common” to those of the party asserting the privilege. See American Tel. & Tel. Co., 642 F.2d at 1298. Originally fashioned as a shield protecting an attorney’s “work product” from overreaching civil discovery, the work product doctrine has expanded to the criminal discovery, IRS tax-investigation subpoena, and grand jury subpoena contexts. See generally In re Sealed Case, 676 F.2d at 11 & nn. 64-65. Assuming the motion to strike asserts the work product as well as the attorney-client privilege, we believe the government has waived the former by voluntarily attaching a copy of the offending memorandum to appellants’ copy of the motion for an extension of time. See United States v. Nobles, 422 U.S. 225, 239, 95 S.Ct. 2160, 2170, 45 L.Ed.2d 141 (1975). It is irrelevant whether the attachment was inadvertent, as the government alleges. Voluntary disclosure of attorney work product to an adversary in the litigation for which the attorney produced that information defeats the policy underlying the privilege; in these circumstances, the criteria for waiver of the work product and attorney client privileges" }, { "docid": "14738835", "title": "", "text": "district court’s holding that Capano waived his attorney work product privilege with regard to the seized file based on his delay in seeking a judicial determination, we do not determine whether Capano waived the privilege by disclosing the documents. Nor do we decide whether the United States demonstrated sufficient cause to overcome the work product protection. III. WAIVER OF THE WORK PRODUCT PROTECTION In examining the district court’s holding that Capano waived his work product privilege, we use an abuse of discretion standard of review. Cf. Livingstone v. North Belle Vernon Borough, 91 F.3d 515, 524 (3d Cir.1996), cert. denied, -— U.S. -, 117 S.Ct. 1311, 137 L.Ed.2d 474 (1997) (using an abuse of discretion standard to review a waiver of an attorney-client privilege). The work-product doctrine, first recognized by the Supreme Court in Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947), “shelters the mental processes of the attorney, providing a privileged area within which he can analyze and prepare his client’s case.” United States v. Nobles, 422 U.S. 225, 238, 95 S.Ct. 2160, 2170, 45 L.Ed.2d 141 (1975). The privilege thus promotes the adversarial system by protecting the confidential nature of materials prepared by attorneys in anticipation of litigation and “enabl[es] attorneys to prepare cases without fear that their work product will be used against their clients.” Westinghouse Elec. Corp. v. Republic of the Philippines, 951 F.2d 1414, 1428 (3d Cir.1991). This protection also can extend to materials prepared by an attorney’s agent, if that agent acts at the attorney’s direction in creating such documents. See Nobles, 422 U.S. at 238-39, 95 S.Ct. at 2170. The attorney work product privilege, however, is not absolute, and it may be waived. See id. at 239, 95 S.Ct. at 2170. Thus, we have held that a party may waive the attorney work product privilege by disclosing protected documents in certain circumstances. See Westinghouse, 951 F.2d at 1428-29. It has been held that a disclosure sufficient to waive the work product protection does not have to be intentional; therefore inadvertent or unintentional disclosures of protected materials also might" }, { "docid": "8730112", "title": "", "text": "preliminary matter, we hold that mandamus is the proper means for Chrysler to challenge the production order on the grounds of attorney work product privilege. Cf. Diversified Industries, Inc. v. Meredith, 572 F.2d 596, 607 (8th Cir.1977) (banc); see also United States Department of Energy v. Brimmer, 776 F.2d 1554, 1559 (Temp.Emer.Ct.App.1985), cert. denied, 475 U.S. 1045, 106 S.Ct. 1261, 89 L.Ed.2d 571 (1986). Chrysler argues that the computer tape is protected from disclosure by the attorney work product doctrine. See United States v. Nobles, 422 U.S. 225, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975); Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947); Simon v. G.D. Searle & Co., 816 F.2d 397, 400-02 (8th Cir.), cert. denied, — U.S. -, 108 S.Ct. 268, 98 L.Ed.2d 225 (1987); Fed.R.Civ.P. 26(b)(3). “The work product doctrine was designed to prevent ‘unwarranted inquiries into the files and mental impressions of an attorney’ and recognizes that it is ‘essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel.’ ” Simon v. G.D. Searle & Co., 816 F.2d at 400, citing Hickman v. Taylor, 329 U.S. at 510-11, 67 S.Ct. at 393-94. We agree with the district court that the computer tape is not opinion work product. Slip op. at 6 & n. 6. The computer tape does not itself contain counsel’s mental impressions, conclusions or legal theories. Unlike ordinary or fact work product, “opinion work product enjoys a very nearly absolute immunity and can be discovered only in very rare and extraordinary circumstances.” In re Murphy, 560 F.2d 326, 336 (8th Cir.1977); see also Upjohn Co. v. United States, 449 U.S. 383, 401, 101 S.Ct. 677, 688, 66 L.Ed.2d 584 (1981); In re Grand Jury Proceedings, 473 F.2d 840, 848-49 (8th Cir.1973) (personal recollections, notes and memoranda or conversations with witnesses). Whether the computer tape is ordinary work product is a close question. We think that it is. The computer tape was prepared by counsel in anticipation of litigation and reflects counsel’s selection of certain categories of information from" }, { "docid": "8004844", "title": "", "text": "by voluntarily disclosing some of the protected material gathered by its investigator, Union Pacific waived its work product privilege. See Fed.R.Civ.P. 26(b)(3); Hickman v. Tay lor, 329 U.S. 495, 508-14, 67 S.Ct. 385, 392-95, 91 L.Ed. 451 (1947); 8 C. Wright & A. Miller, Federal Practice and Procedure §§ 2021-28 (1994). In response to discovery requests, Union Pacific produced photographs and measurements of the accident scene that the district court determined to be privileged. By utilizing these photographs at trial, the Pittmans argue, Union Pacific effectively waived the work product privilege for the entire contents of its investigator’s file. The work product privilege is designed to promote the operation of the adversary system by ensuring that a party cannot obtain materials that his opponent has prepared in anticipation of litigation. Westinghouse Elec. Corp. v. Republic of the Philippines, 951 F.2d 1414, 1428 (3d Cir.1991). The doctrine allows for discovery of such documents and tangible things only upon a showing of “substantial need and an inability to secure the substantial equivalent of the items through alternate means without undue hardship” for ordinary work product (such as photographs and raw information), and “only in rare and extraordinary circumstances” for opinion work product (containing mental impressions, conclusions, opinions, or legal theories regarding the litigation). In re Murphy, 560 F.2d 326, 333-36 & n. 20 (8th Cir.1977); see also In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910, 924-25 (8th Cir.), cert. denied, — U.S. —, 117 S.Ct. 2482, 138 L.Ed.2d 991 (1997); Simon v. G.D. Searle & Co., 816 F.2d 397, 400-02 & n. 3 (8th Cir.1987). Although the Pittmans do not discuss the distinction on appeal, we will assume, without deciding, that the material sought to be obtained constitutes ordinary work product. We have stated that disclosure to an adversary waives work product protection as to items actually disclosed. In re Chrysler Motors Corp. Overnight Evaluation Program Litig., 860 F.2d 844, 846 (8th Cir.1988). If documents otherwise protected by the work-product rule have been disclosed to others with an actual intention that an opposing party may see the documents, the party" }, { "docid": "23084117", "title": "", "text": "findings of fact by the district court, we now turn to its holding that voluntary disclosure to the SEC waived the privilege as a matter of law. The logic behind the work product doctrine is that opposing counsel should not enjoy free access to an attorney’s thought processes. Hickman v. Taylor, 329 U.S. 495, 511, 67 S.Ct. 385, 1958, 91 L.Ed. 451 (1947); In the Matter of Grand Jury Subpoenas, 959 F.2d 1158, 1166-67 (2nd Cir.1992). An attorney’s protected thought processes include preparing legal theories, planning litigation strategies and trial tactics, and sifting through information. See Hickman, 329 U.S. at 511, 67 S.Ct. at 1958. “At its core, the work product doctrine shelters the mental processes of the attorney, providing a privileged area within which he can analyze and prepare his client’s case.” United States v. Nobles, 422 U.S. 225, 238, 95 S.Ct. 2160, 2170, 45 L.Ed.2d 141 (1975). “[T]he doctrine grants counsel an opportunity to think or prepare a client’s case \"without fear of intrusion by an adversary.” In re Six Grand Jury Witnesses, 979 F.2d 939, 944 (2d Cir.1992), cert. denied, — U.S. —, 113 S.Ct. 2997, 125 L.Ed.2d 691 (1993). Common sense and the practicalities of litigation define the limits of the work product doctrine. Nobles, 422 U.S. at 238, 95 S.Ct. at 2170. Once a party allows an adversary to share the otherwise privileged thought processes of counsel, the need for the privilege disappears. Courts therefore accept the waiver doctrine as a limitation on work product protection. The waiver doctrine provides that voluntary disclosure of work product to an adversary waives the privilege as to other parties. See Nobles, 422 U.S. at 239, 95 S.Ct. at 2170; In re John Doe Corp., 675 F.2d 482, 489 (2d Cir.1982). Steinhardt relies on the Eighth Circuit’s opinion in Diversified for the proposition that voluntary disclosure of privileged material to an investigatory government agency does not waive the privilege as to subsequent private litigants. The en bane opinion in Diversified addressed this question in the context of the attorney-client privilege, rather than in the context of the work product" }, { "docid": "17954634", "title": "", "text": "whether the parties theoretically share similar interests but rather whether they demonstrate actual cooperation toward a common legal goal.” Id., 1995 WL 5792 at *4. C. Work Product Privilege The work-product privilege is, as the Supreme Court has recognized, more broad than the attorney-client privilege. See, e.g., In re Grand Jury Proceedings, 219 F.3d 175, 190 (2d Cir.2000) (citing Hickman, 329 U.S. at 508, 67 S.Ct. 385, 91 L.Ed. 451, and United States v. Nobles, 422 U.S. 225, 238 n. 11, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975)). This privilege exists to protect “attorneys’ mental impressions, opinions or legal theories concerning specific litigation” from discovery. Horn & Hardart Co. v. Pillsbury Co., 888 F.2d 8, 12 (2d Cir.1989). Federal Rule of Civil Procedure 26(b)(3), which codifies the principles articulated in Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947), grants limited protection against discovery to documents and materials prepared “in anticipation of litigation.” Rule 26(b)(3) provides in relevant part: a party may obtain discovery of documents and tangible things otherwise discoverable ... and prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative ... only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party’s case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation. Fed.R.Civ.P. 26(b)(3). The Second Circuit has interpreted the “in anticipation of litigation” requirement broadly. Documents should therefore be deemed prepared in “anticipation of litigation” if “ ‘in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation.’ ” United States v. Adlman, 134 F.3d 1194, 1202" } ]

[ { "docid": "22977374", "title": "", "text": "the writ, ruling that the California Court of Appeal’s interpretation of § 290(f) — that an affirmative step was required — would not be foreseeable to an average lay person and therefore, petitioner did not have fair notice of what the law required, in violation of his right to due process of law. The state appeals. II. Jurisdiction and Standard of Review We have jurisdiction pursuant to 28 U.S.C. § 2253 and review the district court’s grant or denial of a petition for writ of habeas corpus de novo. Wade v. Ter- hune, 202 F.3d 1190, 1194 (9th Cir.2000). Because Mendez filed his petition after April 23, 1996, the Antiterrorism and Effective Death Penalty Act of 1996 (AED-PA) applies. See Lindh v. Murphy, 521 U.S. 320, 326-27, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Under AEDPA, we cannot grant habeas relief unless the underlying state decision: resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d) (2002). An “unreasonable application of clearly established law” exists if the state court identified the correct governing legal principle from Supreme Court decisions but unreasonably applied that principle to the facts of the case. Bell v. Cone, - U.S. -, -, 122 S.Ct. 1843, 1850, 152 L.Ed.2d 914 (2002); Williams v. Taylor, 529 U.S. 362, 407-08, 120 S.Ct. 1495, 146 .L.Ed.2d 389 (2000). To warrant habeas relief, the state court’s application of Supreme Court authority must be objectively unreasonable, not just an incorrect application of federal law. Id at 409, 120 S.Ct. 1495.' We have held that an unreasonable application of clearly established law exists only if the state court clearly erred: [W]e must reverse a state court’s decision as involving an “unreasonable application” of clearly established federal law when our independent review of the legal question does not merely allow us ultimately to conclude that" } ]

[ { "docid": "18107916", "title": "", "text": "667(e)(2)(A)(i)-(iii), 1170.12(c)(2)(A)(i)-(iii). The Eighth Amendment to the Constitution proscribes the infliction of “cruel and unusual punishments.” U.S. Const. amend. VIII. The district court granted the writ of habeas corpus based largely on our application of this prohibition in An-drade v. Attorney Gen. of California (Andrade I), 270 F.3d 743, 746 (9th Cir.2001), rev’d sub nom. Lockyer v. Andrade (Andrade II), 538 U.S. 63, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). In Andrade I, the defendant was convicted of two counts of petty theft for shoplifting approximately $150 worth of videotapes. 270 F.3d at 746. The defendant had been convicted of several prior non-violent but “serious” offenses, and was sentenced under the Three Strikes law to life in prison with no possibility of parole for fifty years. Id. In Ewing v. California, 538 U.S. 11, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003) (plurality), a companion case to Andrade II, the Supreme Court explained that while the constitutional principle of proportionality between crime and sentence applies to noncapital sentences, “[t]he Eighth Amendment does not require strict proportionality. ... Rather, it forbids only extreme sentences that are ‘grossly disproportionate’ to the crime.” Ewing, 538 U.S. at 23, 123 S.Ct. 1179 (citation omitted). The gross disproportionality principle applies “only in the ‘exceedingly rare’ and ‘extreme’ case.” Andrade II, 538 U.S. at 73, 123 S.Ct. 1166 (citation omitted). In Ewing, the Court rejected the defendant’s claim that a sentence of twenty-five years to life for felony grand theft of golf clubs was “grossly disproportionate” to his crime where the defendant had previously been convicted of three residential burglaries and a robbery. 538 U.S. at 18, 30-31, 123 S.Ct. 1179. The Court acknowledged in Andrade II that its precedents had “not been a model of clarity” and that it had “not established a clear or consistent path for courts to follow.” 538 U.S. at 72, 123 S.Ct. 1166; see, e.g., Solem v. Helm, 463 U.S. 277, 280-81, 303, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983) (holding that the Eighth Amendment prohibited imposing a life sentence without possibility of parole for a seventh nonviolent felony in which" }, { "docid": "18407745", "title": "", "text": "They can have fixed ideas that are incorrect. They can often be suicidal, moody, and have difficulty integrating the big picture.” 3. The psychological impairment which affected Hungerford is “one of the most severe psychological disorders. It’s probably more severe than suffering from schizophrenia.” 4. Hungerford’s “mental state significantly diminishe[d] her capacity to appreciate criminality and conformed conduct.” 5. Hungerford’s belief that she was not guilty is “a product of her mental illness.” 6. At sentencing, Hungerford did not have “a rational and factual understanding of what she’s doing here” in the courtroom. 7. Hungerford is a “follower” whose behavior is marked by “susceptibility to outside direction,” and suggestivity. 8. Hungerford does not presently constitute a danger to society, based on her 52 years in which she was not been hostile to others, and could benefit from treatment. . See United States v. Parker, 241 F.3d 1114, 1117 (9th Cir.2001); United States v. Harris, 154 F.3d 1082, 1084 (9th Cir.1998). . Harris, 154 F.3d at 1085. . Id. . We are foreclosed from holding the sentence to be in violation of the cruel and unusual punishment clause because of its severity by Harmelin and Ewing v. California, 538 U.S. 11, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003). Harmelin, 501 U.S. at 995, 1009, 111 S.Ct. 2680 (rejecting a requirement that the court consider mitigation or individual circumstances, and holding that a defendant's \"sentence of life imprisonment without parole” for his first felony, possession of cocaine, \"does not violate the Eighth Amendment”); Ewing, 538 U.S. at 30-31, 123 S.Ct. 1179 (holding that a defendant's \"sentence of 25 years to life in prison” for a third strike consisting of the theft of three golf clubs \"is not grossly disproportionate and therefore does not violate the Eighth Amendment’s prohibition on cruel and unusual punishments”). . Harris, 154 F.3d at 1085 (\"We feel a just system of punishment demands that some level of discretion be vested in sentencing judges to consider mitigating circumstances.”)." }, { "docid": "22112831", "title": "", "text": "S.Ct. at 2707 (Kennedy, J., concurring). The power of the legislature to specify punishments without giving the courts any sentencing discretion being “beyond question,” illegal drugs being “a most serious contemporary social problem,” and “clear notice of the severe consequences” having been given, the mandatory life without parole penalty was constitutionally permissible. Id. at 1006-08, 111 S.Ct. at 2708. Twelve years after Harmelin the Supreme Court rejected a disproportionality attack on a sentence of 25 years to life imposed, under California’s “Three Strikes and You’re Out” law, on a defendant with a long, serious criminal record who stole three golf clubs. Ewing v. California, 538 U.S. 11, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003) (plurality opinion). The decision is primarily about recidivism laws, but it did recognize and extend to that context the proportionality principles that had been set out in Harmelin. See id. at 23-24, 123 S.Ct. at 1187. On the same day that Eioing was released, the Court issued another decision in a case arising under California’s three strikes law. That case involved a habitual offender who on two occasions two weeks apart stole two videos from a store and was sentenced to two consecutive sentences of twenty-five years to life. Lockyer v. Andrade, 538 U.S. 63, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). Applying the AEDPA deference provisions, the Supreme Court held that the state court decision rejecting a disproportionality attack on that sentence was not an unreasonable application of clearly established federal law. Id. at 76-77, 123 S.Ct. at 1175. B. The thirty-year mandatory minimum sentence imposed on Farley for violating § 2241(c) cannot be constitutionally disproportionate in light of the principles announced in Harmelin or the actual holding of that decision. Harmelin squarely establishes that the mandatory nature of a non-capital penalty is irrelevant for proportionality purposes. Harmelin, 501 U.S. at 994-95, 111 S.Ct. at 2701 (opinion of the Court); id. at 1006, 111 S.Ct. at 2707-08 (Kennedy, J., concurring). As a result, in deciding whether the thirty-year sentence that § 2241(e) requires for Farley is constitutionally disproportionate we treat that sentence no differently from" }, { "docid": "23158769", "title": "", "text": "case and performing the fact-specific analysis of Ramirez’s criminal history as we are required to do under Supreme Court precedent, we hold that this is an “exceedingly rare” case in which the sentence imposed is grossly disproportionate to the crimes committed, in violation of the Eighth Amendment. Lockyer v. Andrade, 538 U.S. 63, 77, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003); Harmelin v. Michigan, 501 U.S. 957, 1001, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (Kennedy, J., concurring in part and concurring in judgment). We further hold that the California Court of Appeal’s decision affirming Ramirez’s sentence was an objectively unreasonable application of clearly established federal law under 28 U.S.C. § 2254(d)(1), and we affirm the judgment of the district court granting Ramirez’s writ of habeas corpus. I Because we and the Supreme Court have summarized in detail all of the relevant particularities of charging and sentencing under California’s Three Strikes scheme, see Ewing v. California, 538 U.S. 11, 15-17, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003); Brown v. Mayle, 283 F.3d 1019, 1021 (9th Cir.2002); Andrade v. Attorney General, 270 F.3d 743, 747-48 (9th Cir.2001) (‘Andrade I ”), we discuss them only briefly and where relevant here. Unless otherwise noted, all statutory citations are to the California Penal Code. A On October 9, 1991, a criminal complaint was filed in Orange County, California charging Ramirez with two counts of second-degree robbery, i.e., willfully and unlawfully taking personal property “by means of force and fear” in violation of Penal Code §§ 211, 212.5(c), and 213(a)(2), a “serious felony” under § 1192.7(c)(19). Each count was punishable by a prison term of two, three, or five years. § 213(a)(2). The first count was. for a January 1991 shoplift of merchandise from a Lucky’s grocery store, for which Ramirez’s older sister was also charged with second-degree commercial burglary. The only “force” related to the offense was that the getaway car, driven by a third person, ran over a security guard’s foot causing a “minor injury.” The second count was for a September 1991 shoplift at a K-Mart department store. The only “force” related" }, { "docid": "19800127", "title": "", "text": "designed to “protect the public from sex offenders and offenders against children”); Applicability of the Sex Offender Registration and Notification Act, 72 Fed.Reg. 8894, 8895 (Feb. 28, 2007) (noting that SORNA was “designed ... for the protection of the public”). We have held that protecting our communities is a legitimate legislative purpose. See Doe v. Tandeske, 361 F.3d 594, 597 (9th Cir.2004) (holding, with regard to Alaska’s sex offender registration laws, that “the statute’s provisions serve a ‘legitimate non-punitive purpose of public safety, which is advanced by alerting the public to the risk of sex offenders in their community’ ”) (internal quotation marks omitted). The Supreme Court has also held that “there is no doubt that preventing danger to the community is a legitimate regulatory goal.” United States v. Salerno, 481 U.S. 739, 747, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). Thus, SORNA’s requirements satisfy rational basis review and do not violate the Equal Protection Clause. B. Cruel and Unusual Punishment Defendants argue that by sanctioning a class of juvenile offenders with registration requirements, SORNA violates the Eighth Amendment’s prohibition on cruel and unusual punishment. The Eighth Amendment mandates that “[ejxcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The amendment prohibits “not only barbaric punishments, but also sentences that are disproportionate to the crime committed.” Solem v. Helm, 463 U.S. 277, 284, 303, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983) (holding that defendant’s Eighth Amendment right was violated where defendant received the “penultimate sentence” for a minor, check writing offense). The bar for cruel and unusual punishment is high. See, e.g., United States v. Nagel, 559 F.3d 756, 763 (7th Cir.2009) (citing Ewing v. California, 538 U.S. 11, 28-30, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003) (affirming sentence of 25 years to life imposed for felony grand theft of three golf clubs under three strikes law); Harmelin v. Michigan, 501 U.S. 957, 961, 966, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (affirming life in prison without the possibility of parole for first-time offender possessing 672 grams of cocaine); Hutto v. Davis, 454" }, { "docid": "23369746", "title": "", "text": "Opinion by Judge PAEZ; Concurring and Dissenting Opinion by Judge SNEED PAEZ, Circuit Judge: Appellant Leandro Andrade was convicted in the Superior Court of California of two counts of petty theft for shoplifting a total of nine videotapes from two K-Mart stores. California generally treats such offenses as misdemeanors, each punishable by up to six months in county jail and up to a $1,000 fíne. However, because An-drade had been convicted of several prior offenses — all non-violent — his petty thefts were first enhanced to felonies under California Penal Code § 666, and then enhanced again to third and fourth strikes under California’s Three Strikes and You’re Out Law, California Penal Code §§ 667 and 1170.12 (“the Three Strikes law”). As a result, Andrade, a non-violent recidivist who twice shoplifted merchandise worth a total of $153.54, received a life sentence in prison with no possibility of parole for 50 years. In this appeal from the denial of his habeas petition under 28 U.S.C. § 2254, Andrade argues that his sentence violates the Eighth Amendment’s prohibition against cruel and unusual punishment. Four justices of the United States Supreme Court have agreed that the “unique quirk” in California’s Three Strikes law that permits misdemeanor conduct to be punished with severe indeterminate sentences raises a substantial Eighth Amendment question. Riggs v. California, 525 U.S. 1114, 119 S.Ct. 890, 142 L.Ed.2d 789 (1999) (memorandum opinion by Justice Stevens, joined by Justices Souter and Ginsburg, respecting the denial of the peti tion for writ of certiorari). We hold that the California Court of Appeal unreasonably applied clearly established United States Supreme Court precedent when it held, on Andrade’s direct appeal, that his sentence did not violate the Eighth Amendment’s prohibition against cruel and unusual punishment. Our decision does not invalidate California’s Three Strikes law generally. Rather, we conclude that it is unconstitutional only as applied to Andrade because it imposes a sentence grossly disproportionate to his crimes. I. BACKGROUND A. California’s Three Strikes Law California’s Three Strikes law consists of a pair of substantively identical statutes both enacted in 1994, one by the California" }, { "docid": "23158782", "title": "", "text": "only six months in jail; and (3) was more severe than the sentence he would have received in any other state with the possible exception of Louisiana. The magistrate judge then found that the California Court of Appeal’s decision rejecting Ramirez’s Eighth Amendment claim was “an unreasonable application of clearly established federal law” because it failed: (1) properly to analyze the claim under Harmelin, Solem, and Rummel; (2) to consider the gross disparity between Ramirez’s “core” misdemeanor of petty theft and the sentence imposed; (3) to consider the “double whammy” of Ramirez’s prior theft convictions and the operation of the Three Strikes law, which elevated the “core” misdemeanor to a “wobbler” felony third strike; and (4) to consider the gross disparity between Ramirez’s sentence for nonviolent petty theft, and sentences for similar crimes in other jurisdictions and more violent crimes in California. In the alternative, the magistrate judge found the state court’s decision was “contrary to established federal law” because it failed to apply some or all of the required analysis from Harmelin, Solem, and Rummel, and erroneously compared Ramirez’s sentence to his entire criminal history rather than his crime for nonviolent petty theft. The magistrate judge therefore recommended that the district court grant Ramirez’s petition under 28 U.S.C. § 2254(d)(1), rejecting all of Ramirez’s other claims. On June 14, 2002, the district court adopted the magistrate’s report and recommendation in its entirety. On June 17, 2002, the district court entered its judgment granting Ramirez a writ of habeas corpus and ordering his release from custody forthwith. On June 27, 2002, after serving nearly five and one-half years of his sentence, Ramirez was released from prison. He has lived in California under parole supervision for nearly two years without incident. The State appealed. The parties completed their briefing on February 24, 2003, with Ramirez filing his answering brief in pro se. The matter was calendared for oral argument on July 18, 2003 in Pasadena, California. On March 5, 2003, the Supreme Court decided Ewing, and Lockyer v. Andrade, 538 U.S. 63, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003) (“Andrade II”)," }, { "docid": "4491606", "title": "", "text": "sentence for the count carrying a higher sentence when multiple counts were based on the same act. The California Supreme Court denied Williams’ petition for review. The San Bernardino County Superior Court subsequently denied Williams’ petition for a writ of habeas corpus. He then filed a habeas petition in the Court of Appeal, which was also denied. The California Supreme Court also denied a subsequent habeas petition. Williams then filed this federal habeas petition, which the district court denied. Williams filed a timely notice of appeal, but the district court denied Williams a certificate of appealability (“COA”). We subsequently issued a COA limited to the question of whether the state trial court’s application of the amended version of California Penal Code § 654, violated Williams’ rights under the Ex Post Facto clause. ANALYSIS We review de novo a district court’s denial of a 28 U.S.C. § 2254 habeas petition. Campbell v. Rice, 408 F.3d 1166, 1169 (9th Cir.2005). Because Williams’ federal petition was filed after the effective date .of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), the AEDPA’s provisions apply. Id. The AED-PA limits a federal habeas court’s review of a state court’s decision to determining whether it was: “(1) contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Id. at 1170(quoting 28 U.S.C. § 2254(d)(l)-(2)) (internal quotation marks omitted); see Lockyer v. Andrade, 538 U.S. 63, 70-73, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003) (explaining this standard). The question in Williams’ case is whether, at the time the state trial court imposed sentence under the amended version of § 654, the holdings of the Supreme Court established governing legal principles dictating that it do otherwise. See Andrade, 538 U.S. at 71-72, 123 S.Ct. 1166. I. Ex Post Facto Violation When the state court resentenced Williams, the Supreme Court had considered the application of the Ex Post Facto Clause to state statutes in" }, { "docid": "21388558", "title": "", "text": "valve provision as well as their inability to provide “substantial assistance” towards prosecutions of other crimes; receivers and possessors like Pol-izzi have no valuable information to give law enforcement since their transactions take place anonymously over the Internet. See 18 U.S.C. § 3553(e) (sentence below statutory minimum permitted “to reflect a defendant’s substantial assistance,”' upon motion by the government). Even where defendants may be sentenced without regard to a statutory minimum, courts seem loath to reduce sentences in the area of sexual abuse prosecutions. Id. at 14-15 (noting that 31 offenders in this category were eligible for a sentence below the statutory minimum in 2006, but 18 (58.1%) received a sentence at or above the statutory minimum). Even though many would characterize some mandatory minimum sentences as “draconian,” the Supreme Court has repeatedly upheld their constitutionality, including: 1) a sentence of 25 years to life, under the California “Three Strikes Law,” for shoplifting three golf clubs, imposed on a defendant with a long minor criminal history and four previous burglary/robbery felony convictions, Ewing v. California, 538 U.S. 11, 17-20, 30-31, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003); 2) two consecutive 25-year-to-life sentences for two counts of petty theft under the same California statute, Lockyer v. Andrade, 538 U.S. 63, 77, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003); 3) life imprisonment without possibility of parole for possessing more than 650 grams of cocaine, Harmelin, 501 U.S. 957, 961, 996, 111 S.Ct. 2680, 115 L.Ed.2d 836; and 4) a life sentence, for a defendant convicted under a recidivist statute of fraudulent use of a credit card in the amount of $80, passing a forged check for $28.36, and obtaining $120.75 by false pretenses, Rummel v. Estelle, 445 U.S. 263, 264-66, 283, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980). The Court also recently denied certiorari where a defendant with no adult criminal history received 55 years for three counts of possessing (but not using or displaying) a handgun in connection with distribution of a relatively small amount of marijuana, United States v. Angelos, 433 F.3d 738 (10th Cir.2006), cert. denied, — U.S. -," }, { "docid": "16990666", "title": "", "text": "from the proceeds of that robbery. Harris, who was also convicted in the robbery, was ordered to pay restitution to Peoples National Bank in the amount of $3,400 as part of his sentence. . In Lockyer, the Supreme Court found that the decision of the California Supreme Court, that a three strikes law sentence of two consecutive terms of 25 years to life imprisonment for a state prisoner who had been convicted of two petty theft offenses did not violate the Eighth Amendment's proportionality principle, was not an unreasonable application of clearly established precedent. Lockyer, 538 U.S. at 69-70, 123 S.Ct. 1166. Lockyer was convicted of two offenses of stealing videotapes from a Kmart store. Id. at 66, 123 S.Ct. 1166. The five videotapes stolen in the first offense had a total value of $84.70, the four videotapes stolen in the second offense had a total value of $68.84. Id. . Hutto had challenged his forty-year state sentence for possession of nine ounces of marijuana and drug paraphernalia and selling marijuana as cruel and unusual. Hutto, 454 U.S. at 370-71, 102 S.Ct. 703. The district court granted Hutto’s petition for writ of ha-beas corpus on the grounds that his sentence was “so grossly out of proportion to the severity of the crimes as to constitute cruel and unusual punishment in violation of the Eighth Amendment of the United States Constitution.” Id. at 371, 102 S.Ct. 703. The United States Court of Appeals for the Fourth Circuit affirmed the decision of the district court. Id. at 372, 102 S.Ct. 703. The Supreme Court reversed because the Fourth Circuit failed to follow Rummel. Id. . The other Courts of Appeals that have considered whether the mandatory consecutive sentencing scheme of Section 924(c)(1) violates the proportionality principle of the Eighth Amendment have concluded that it does not. See United States v. Yousef, 327 F.3d 56, 163 (2d Cir.2003) (rejecting an Eighth Amendment proportionality challenge to a prison term of 240 years plus a consecutive term of life imprisonment for offenses related to the 1993 bombing of the World Trade Center, which included two" }, { "docid": "16379320", "title": "", "text": "did object to the second comment, so the standard of review is whether he had demonstrated that the remarks were “improper and prejudicial to his right to a fair trial.” United States v. Bryant, 349 F.3d 1093, 1096 (8th Cir.2003). Considered in the context of the trial, including Chauncey’s earlier argument that “at most” he was guilty of simple possession, we believe the remark was permissible as part of an argument against a verdict on the lesser included offense. We find no abuse of discretion in the district court’s ruling. F. We reject Chauncey’s contention that his sentence is grossly disproportionate to his crime in violation of the Eighth Amendment’s prohibition on cruel and unusual punishment. As support for his argument, he points to the much lighter sentence received by his companion, Mary Fast Horse, and to the fact that his sentence as a career offender is more than ten times greater than his sentence would have been without the career offender enhancement. But a defendant’s sentence is not disproportionate merely because it exceeds his co-defendant’s sentence, United States v. Granados, 962 F.2d 767, 774 (8th Cir.1992), and the difference in sentences in this case was attributable largely to Fast Horse’s decision to cooperate with authorities, and Chauncey’s serious criminal history. Given that a legislature constitutionally may punish a recidivist with a term of 25 years to life for theft of three golf clubs, Ewing v. California, 538 U.S. 11, 28-30, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003), a term of life imprisonment without parole for possessing more than 650 grams of cocaine, Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991), and a term of life imprisonment with the possibility of parole after 12 years for obtaining $120.75 by false pretenses, Rummel v. Estelle, 445 U.S. 263, 276, 285, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980), we conclude that a term of 100 months’ imprisonment for Chauncey’s felony drug trafficking offense is not “grossly disproportionate.” Ewing, 538 U.S. at 30, 123 S.Ct. 1179. Cf. Solem v. Helm, 463 U.S. 277, 295-303, 103 S.Ct. 3001, 77" }, { "docid": "19800128", "title": "", "text": "violates the Eighth Amendment’s prohibition on cruel and unusual punishment. The Eighth Amendment mandates that “[ejxcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The amendment prohibits “not only barbaric punishments, but also sentences that are disproportionate to the crime committed.” Solem v. Helm, 463 U.S. 277, 284, 303, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983) (holding that defendant’s Eighth Amendment right was violated where defendant received the “penultimate sentence” for a minor, check writing offense). The bar for cruel and unusual punishment is high. See, e.g., United States v. Nagel, 559 F.3d 756, 763 (7th Cir.2009) (citing Ewing v. California, 538 U.S. 11, 28-30, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003) (affirming sentence of 25 years to life imposed for felony grand theft of three golf clubs under three strikes law); Harmelin v. Michigan, 501 U.S. 957, 961, 966, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (affirming life in prison without the possibility of parole for first-time offender possessing 672 grams of cocaine); Hutto v. Davis, 454 U.S. 370, 370-71, 102 S.Ct. 703, 70 L.Ed.2d 556 (1982) (no constitutional error in two consecutive terms of 20 years in prison for possession with intent to distribute and distribution of 9 ounces of marijuana)). Although defendants understandably note that SORNA may have the effect of exposing juvenile defendants and their families to potential shame and humiliation for acts committed while still an adolescent, the statute does not meet the high standard of cruel and unusual punishment. The requirement that juveniles register in a sex offender database for at least 25 years because they committed the equivalent of aggravated sexual abuse is not a disproportionate punishment. These juveniles do not face any risk of incarceration or threat of physical harm. In fact, at least two other circuits have held that SORNA’s registration requirement is not even a punitive measure, let alone cruel and unusual punishment. See United States v. May, 535 F.3d 912, 920 (8th Cir.2008) (“SORNA’s registration requirement demonstrates no congressional intent to punish sex offenders”); see also United States v. Young, 585 F.3d" }, { "docid": "16990649", "title": "", "text": "the offenses that he committed and (2) it is contrary to the evolving standards of decency that are the hallmark of our civilized society. The Supreme Court has long recognized that “[t]he Eighth Amendment, which forbids cruel and unusual punishments, contains a ‘narrow proportionality principle’ that ‘applies to noncapital sentences.’ ” See Eimng v. California, 538 U.S. 11, 20, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003) (rejecting the argument made by Ewing, who was sentenced to a prison term of 25 years to life under California’s three strikes law after he was convicted of stealing three golf clubs, that California’s three strikes law violated the Eighth Amendment) (quoting Harmelin v. Michigan, 501 U.S. 957, 996-997, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (Kennedy, J., concurring in part and concurring in judgment)); see also Solern v. Helm, 463 U.S. 277, 286, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983) (“[T]he constitutional principle of proportionality has been recognized explicitly in this Court for almost a century.”). Although the proportionality principle applies to sentences for terms of years, only an extraordinary case will result in a constitutional violation. Lockyer v. Andrade, 538 U.S. 63, 72, 77, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). In Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980), the Supreme Court held that the mandatory life sentence imposed on Rummel for his third felony, “obtaining $120.75 by false pretenses,” did not violate the Eighth Amendment. Id. at 266, 284-285, 100 S.Ct. 1133. The Rummel Court explained that “the Eighth Amendment prohibits imposition of a sentence that is grossly disproportionate to the severity of the crime.” Id. at 271, 100 S.Ct. 1133 (citations omitted). However, “[o]utside the context of capital punishment, successful challenges to the proportionality of particular sentences have been exceedingly rare.” Id. at 272, 100 S.Ct. 1133. In Hutto v. Davis, 454 U.S. 370, 102 S.Ct. 703, 70 L.Ed.2d 556 (1982) (per cu-riam), the Supreme Court assessed its decision in Rummel and determined that “Rimrnel stands for the proposition that federal courts should be ‘reluctant to review legislatively mandated terms of imprisonment.’ ” Id." }, { "docid": "23158767", "title": "", "text": "WARDLAW, Circuit Judge: The State of California through its Attorney General, Bill Lockyer, appeals from the district court’s judgment granting a writ of habeas corpus to petitioner Isaac Ramirez on the grounds that (1) his 25-years-to-life sentence under California’s “Three Strikes” law, CaLPenal Code §§ 667, 667.5, and 1170.12, violated his Eighth Amendment right to be free from cruel and unusual punishment, and (2) the California Court of Appeal’s decision to the contrary was objectively unreasonable under 28 U.S.C. § 2254(d)(1). We have jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we affirm the district court. In May 1996, Ramirez was caught walking out of a Sears department store in broad daylight carrying a $199 YCR for which he had not paid. He immediately surrendered to authorities and returned the VCR; the encounter was without violence. For this crime, prosecutors could have charged Ramirez with a petty theft misdemeanor, punishable by up to six months in county jail. Instead, prosecutors chose to use two nonviolent shoplifting offenses to which Ramirez pleaded guilty in 1991, for both of which he served one sentence of just over six months in county jail, to charge him with one count of petty theft with a prior theft-related conviction, a “wobbler” offense in California punishable as a felony. That exercise of prosecutorial discretion had grave consequences for Ramirez. After he was convicted of this “wobbler” felony, the jury found that Ramirez’s 1991 “robbery” convictions were “strikes” for purposes of California’s Three Strikes law enacted in 1994. The trial court thereafter denied Ramirez’s motion to strike one or both of his two prior shoplifts, even though it had indicated before trial that it was inclined to do so, and sentenced Ramirez to 25 years to life in prison, with no eligibility for parole until he had served 25 years. The California Court of Appeal affirmed the sentence. The sentence imposed upon Ramirez for his three shoplifting offenses is more severe than the sentence he would have faced had any one of his three crimes been murder, manslaughter, or rape. Considering the objective factors of this" }, { "docid": "23278682", "title": "", "text": "1009, 111 S.Ct. 2680 (Kennedy, J., concurring). Declining to draw a threshold inference of gross dispro-portionality, Justice Kennedy observed that Harmelin’s crime was distinguishable from the “relatively minor, nonviolent crime at issue in Solem,” because the “[possession, use, and distribution of illegal drugs represent one of the greatest problems affecting the health and welfare of our population.” Id. at 1002, 111 S.Ct. 2680 (internal quotation marks omitted) (recognizing range of criminal activity associated with drug possession). In such circumstances, “the Michigan Legislature could with reason conclude that the threat posed to the individual and society by possession of this large an amount of cocaine — in terms of violence, crime, and social displacement — is momentous enough to warrant the deterrence and retribution of a life sentence without parole.” Id. at 1003, 111 S.Ct. 2680. Thereafter, in Ewing v. California, 538 U.S. 11, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003), the Supreme Court rejected a proportionality challenge to a prison sentence of 25 years to life imposed pursuant to California’s Three Strikes Law on a recidivist felon convicted of stealing $1,200 worth of golf clubs, see id. at 16-18, 123 S.Ct. 1179 (plurality) (referencing Cal.Penal Code Ann. § 667(e)(2)(A)). Declining to draw an inference of gross dispropor-tionality, the Court plurality reasoned that defendant’s grand theft felony was not one of the most passive crimes a person could commit, that the California legislature “made a judgment that protecting the public safety requires incapacitating criminals who have already been convicted of at least one serious or violent crime[, and that njothing in the Eighth Amendment prohibits California from making that choice.” Id. at 25, 28, 123 S.Ct. 1179; see Lockyer v. Andrade, 538 U.S. 63, 77, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003) (rejecting prisoner’s Eighth Amendment habeas challenge to sentence of 25 years to life under California’s Three Strikes law for stealing approximately $150 worth of videotapes). As these cases make plain, at the same time that the Eighth Amendment prohibits grossly disproportionate sentences, it is rare that a sentence falling within a legislatively prescribed term of years will be deemed" }, { "docid": "18975117", "title": "", "text": "v. LeFevre, 548 F.2d 1102, 1109 (2d Cir.1977) (citing Townsend v. Burke, 334 U.S. 736, 741, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948)). A challenge to the term of a sentence is not a cognizable constitutional issue if the sentence falls within the statutory range. White v. Keane, 969 F.2d 1381, 1383 (2d Cir.1992). Federal courts have traditionally deferred to state legislature with respect to sentencing matters. See Ewing v. California, 538 U.S. 11, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003) (sentence of 25 years to life in prison for stealing three golf clubs by a recidivist not cruel and unusual); Lockyer v. Andrade, 538 U.S. 63, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003) (sentence of 25 years to life in prison for stealing $150-worth of videotapes not cruel and unusual). Petitioner’s convictions for sodomy and for attempted rape were premised on distinct acts that the trial court determined, as a factual matter, were not a single continuous assault. As such, New York law allows for the sentences to be imposed consecutively. See People v. Rivera, 186 A.D.2d 594, 588 N.Y.S.2d 391, 393 (1992); N.Y. Penal L. § 70.25. The trial court’s factual finding is reasonable and has not been rebutted by clear and convincing evidence. Habeas corpus relief on this claim is not warranted. VII. Conclusion The petition for a writ of habeas corpus is granted based on petitioner’s claim that his Due Process and Confrontation Clause rights were violated by the trial court’s decision to preclude cross-examination of the complainant concerning alleged prior and subsequent false allegations of sexual abuse. The prisoner shall be released unless within sixty days the state commences prosecution or takes other action appropriate in light of this decision. This decision is stayed until all appellate proceedings are completed and a final mandate is received by this court. No certificate of appealability is granted with respect to petitioner’s remaining claims, petitioner having made no substantial showing of the denial of a constitutional right. Petitioner is reminded that he may seek a certificate of appealability on these claims from the Court of Appeals for the" }, { "docid": "18107915", "title": "", "text": "pleads and proves that the defendant has committed one or more pri- or felonies defined as “violent” or “serious,” sentencing proceeds under the Three Strikes law “[n]otwithstanding any other law.” Cal.Penal Code §§ 667(c), 1170.12(a). The most recent conviction need not be “violent” or “serious.” Id. If the defendant has only one qualifying prior felony conviction, the prescribed term of imprisonment (or minimum term if the current felony calls for an indeterminate sentence) is “twice the term otherwise provided as punishment for the current felony conviction.” CaLPenal Code §§ 667(e)(1), 1170.12(c)(1). If the defendant has two or more qualifying prior felony convictions, the prescribed term of imprisonment is “an indeterminate term of life imprisonment.” CaLPenal Code §§ 667(e)(2)(A), 1170.12(c)(2)(A). Those defendants sentenced to life in prison become eligible for parole after serving a minimum term of the greater of (1) three times the term otherwise provided for the current felony conviction; (2) twenty-five years; or (3) the term required by certain specified provisions of the California Penal Code for the underlying conviction. CaLPenal Code §§ 667(e)(2)(A)(i)-(iii), 1170.12(c)(2)(A)(i)-(iii). The Eighth Amendment to the Constitution proscribes the infliction of “cruel and unusual punishments.” U.S. Const. amend. VIII. The district court granted the writ of habeas corpus based largely on our application of this prohibition in An-drade v. Attorney Gen. of California (Andrade I), 270 F.3d 743, 746 (9th Cir.2001), rev’d sub nom. Lockyer v. Andrade (Andrade II), 538 U.S. 63, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). In Andrade I, the defendant was convicted of two counts of petty theft for shoplifting approximately $150 worth of videotapes. 270 F.3d at 746. The defendant had been convicted of several prior non-violent but “serious” offenses, and was sentenced under the Three Strikes law to life in prison with no possibility of parole for fifty years. Id. In Ewing v. California, 538 U.S. 11, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003) (plurality), a companion case to Andrade II, the Supreme Court explained that while the constitutional principle of proportionality between crime and sentence applies to noncapital sentences, “[t]he Eighth Amendment does not require strict proportionality." }, { "docid": "23369754", "title": "", "text": "has reviewable discretion to reduce this charge to a misdemean- or at the time of sentencing. People v. Superior Court (Alvarez), 14 Cal.4th 968, 60 Cal.Rptr.2d 93, 928 P.2d 1171 (1997) (holding that a trial court’s discretion under Cal.Penal Code § 17(b) to reduce a “wobbler” offense is not eliminated by the Three Strikes law but is reviewable). In Andrade’s case, the prosecutor elected to charge his two petty thefts with a prior as felonies, thereby implicating the Three Strikes law. Andrade’s three 1983 burglary convictions were charged as his first two strikes. His petty thefts were charged as his third and fourth strikes. The trial court bifurcated Andrade’s trial. In the first proceeding, the jury found him guilty of two counts of petty theft with a prior under California Penal Code § 666. Before the jury’s verdict, the court denied Andrade’s motions to reduce the charges to misdemeanors and to strike the prior convictions. In the second proceeding, the same jury found that he had been convicted of three counts of first degree residential burglary on April 26, 1983. On April 24, 1996, the court sentenced Andrade to 25 years to life for each petty theft with a prior conviction, to be served consecutively as required by the Three Strikes law. CaLPenal Code §§ 667(c)(6), 1170.12(a)(6). Andrade will not become eligible for parole until 2046, after serving 50 years; he will be 87 years old. Andrade appealed to the California Court of Appeal, which affirmed his conviction and sentence on May 13, 1997. In an unpublished opinion, the court rejected, among other arguments, Andrade’s claim that his sentence was cruel and unusual under the Eighth Amendment. The California Supreme Court denied Andrade’s petition for review without comment. Subsequently, Andrade filed a timely pro se petition for a writ of habeas corpus in federal district court under 28 U.S.C. § 2254. He raised several constitutional issues, including violation of his Eighth Amendment right. The district court denied his petition in a two-sentence order adopting the magistrate judge’s Report and Recommendation which stated that “the state court[’s] conclusions ... were reasonable" }, { "docid": "23158768", "title": "", "text": "for both of which he served one sentence of just over six months in county jail, to charge him with one count of petty theft with a prior theft-related conviction, a “wobbler” offense in California punishable as a felony. That exercise of prosecutorial discretion had grave consequences for Ramirez. After he was convicted of this “wobbler” felony, the jury found that Ramirez’s 1991 “robbery” convictions were “strikes” for purposes of California’s Three Strikes law enacted in 1994. The trial court thereafter denied Ramirez’s motion to strike one or both of his two prior shoplifts, even though it had indicated before trial that it was inclined to do so, and sentenced Ramirez to 25 years to life in prison, with no eligibility for parole until he had served 25 years. The California Court of Appeal affirmed the sentence. The sentence imposed upon Ramirez for his three shoplifting offenses is more severe than the sentence he would have faced had any one of his three crimes been murder, manslaughter, or rape. Considering the objective factors of this case and performing the fact-specific analysis of Ramirez’s criminal history as we are required to do under Supreme Court precedent, we hold that this is an “exceedingly rare” case in which the sentence imposed is grossly disproportionate to the crimes committed, in violation of the Eighth Amendment. Lockyer v. Andrade, 538 U.S. 63, 77, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003); Harmelin v. Michigan, 501 U.S. 957, 1001, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (Kennedy, J., concurring in part and concurring in judgment). We further hold that the California Court of Appeal’s decision affirming Ramirez’s sentence was an objectively unreasonable application of clearly established federal law under 28 U.S.C. § 2254(d)(1), and we affirm the judgment of the district court granting Ramirez’s writ of habeas corpus. I Because we and the Supreme Court have summarized in detail all of the relevant particularities of charging and sentencing under California’s Three Strikes scheme, see Ewing v. California, 538 U.S. 11, 15-17, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003); Brown v. Mayle, 283 F.3d 1019, 1021 (9th" }, { "docid": "18975116", "title": "", "text": "theory of the case. Although the prosecutor’s comments on petitioner’s exercise of his right to a trial were arguably improper, see Trial Tr. at 282, the remarks did not deprive petitioner of a fair trial. The prosecutor may, arguably, have been overzealous in her closing statement, but defense counsel’s failure to object to the comments about which petitioner now complains is indicative of their relative unimportance. Habeas corpus relief on this ground is not warranted. D Petitioner finally claims that he was improperly sentenced to consecutive terms of imprisonment. The Appellate Division rejected this claim on direct appeal, stating that the “defendant committed separate and distinct sexual acts so that the imposition of consecutive sentences was wholly appropriate.” Benn, 623 N.Y.S.2d at 635. Review proceeds under the deferential standards of AEDPA. The claims was also presented to the New York Court of Appeals and is therefore exhausted. The assertion that a sentencing judge abused his or her discretion in sentencing is generally not a federal claim subject to review by a habeas court. See Fielding v. LeFevre, 548 F.2d 1102, 1109 (2d Cir.1977) (citing Townsend v. Burke, 334 U.S. 736, 741, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948)). A challenge to the term of a sentence is not a cognizable constitutional issue if the sentence falls within the statutory range. White v. Keane, 969 F.2d 1381, 1383 (2d Cir.1992). Federal courts have traditionally deferred to state legislature with respect to sentencing matters. See Ewing v. California, 538 U.S. 11, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003) (sentence of 25 years to life in prison for stealing three golf clubs by a recidivist not cruel and unusual); Lockyer v. Andrade, 538 U.S. 63, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003) (sentence of 25 years to life in prison for stealing $150-worth of videotapes not cruel and unusual). Petitioner’s convictions for sodomy and for attempted rape were premised on distinct acts that the trial court determined, as a factual matter, were not a single continuous assault. As such, New York law allows for the sentences to be imposed consecutively. See People v." } ]

[ { "docid": "6107036", "title": "", "text": "re Albrecht, 579 F.2d 92, 93-94, 198 USPQ 208, 209 (CCPA 1978). The board concluded that Eschemann taught a marking system displaying a combination of two different notations, viz., alphabetical and numerical, and then determined that it would have been obvious to substitute the 1 2 3 4 5 6 7 8 9 10 11 12 numerical notation of Guilford for the 1 1 2 2 3 4 4 5 5 6 6 7 numerical notation of Eschemann. DISCUSSION I. This court reviews an obviousness determination by the board de novo, while we review underlying factual findings for clear error. In re Woodruff, 919 F.2d 1575, 1577, 16 USPQ2d 1934, 1935 (Fed.Cir.1990). What a reference teaches is a question of fact. Panduit Corp. v. Dennison Mfg. Co., 810 F.2d 1561, 1579 n. 42, 1 USPQ2d 1593, 1606 n. 42 (Fed.Cir.1987). When determining the patentability of a claimed invention which combines two known elements, “the question is whether there is something in the prior art as a whole to suggest the desirability, and thus the obviousness, of making the combination.” Lindemann Maschinenfabrik GMBH v. American Hoist & Derrick Co., 730 F.2d 1452, 1462, 221 USPQ 481, 488 (Fed.Cir.1984). II. In his specification, Beattie refers to the alphabetical designation CDEFGABas a heptatonic representation of the diatonic scale degrees and the numerical designation 1 2 3 4 5 6 7 8 9 10 11 12 as a dodecatonic representation of the chromatic semitones. These two theories combined on a single marker achieve, in Beattie’s words, a “mutual reinforcement of the advantages inherent in each approach, permitting both types of scales, the diatonic and the chromatic, to appear as smooth progressions, easy for students to visualize and understand.” There is no dispute that Barnes and Es-chemann each disclose the heptatonic theory and that Guilford teaches the dodeeatonic theory such that Guilford’s notation substituted on the upper register of the marking systems of either Barnes or Eschemann describes the claimed invention. The question here is whether the board correctly held that it would have been obvious to one having ordinary skill in the art to" } ]

[ { "docid": "23275995", "title": "", "text": "reiterating that the CMS 08 Manual disclosed that “the machine interface solicits the user for entry of data to control various parameters such as sodium concentration.” Id. Baxter timely appealed, and we have jurisdiction under 28 U.S.C. § 1295(a)(4)(A). Discussion I. The scope of our review in an appeal from a Board decision is limited. We review the Board’s factual findings for substantial evidence and review the Board’s legal conclusions de novo. In re Kotzab, 217 F.3d 1365, 1369 (Fed.Cir.2000). A finding is supported by substantial evidence if a reasonable mind might accept the evidence to support the finding. Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938). Although the ultimate determination of obviousness under 35 U.S.C. § 103 is a question of law, it is based on several underlying factual findings, including the differences between the claimed invention and the prior art. Graham v. John Deere Co., 383 U.S. 1, 17-18, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966). Similarly, the determination of what a reference teaches is a question of fact. Rapoport v. Dement, 254 F.3d 1053, 1060-61 (Fed.Cir.2001); see also In re Gartside, 203 F.3d 1305, 1316 (Fed.Cir.2000). Thus, we review those factual determinations for substantial evidence. Kotzab, 217 F.3d at 1369. In contrast, claim construction is a legal issue that we review de novo. Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1454-55 (Fed.Cir.1998) (en banc). To ascertain the scope and meaning of the asserted claims, we look to the words of the claims themselves, the specification, the prosecution history, and, lastly, any relevant extrinsic evidence. Phillips v. AWH Corp., 415 F.3d 1303, 1315-17 (Fed.Cir.2005) (en banc). II. A. As an initial matter, the PTO argues that Baxter waived its arguments regarding the “means plus function” limitations in claims 26 and 30 because it failed to timely present those arguments to the Board. Baxter responds that it presented those issues to the Board in its opening brief, its reply brief, and at oral argument. Baxter also argues that the Director allowed Baxter to pursue those arguments in its order" }, { "docid": "23275994", "title": "", "text": "based on Lichtenstein. Id. The Board also affirmed the examiner’s findings regarding the “soliciting” limitations in claims 27, 30, and 31. With respect to claim 27, the Board found that the CMS 08 Manual disclosed that a user can adjust or control time-dependent hemodialysis parameters such as the ultrafiltrate rate and the concentration of substances in the dialysate. Board Decision, 2010 WL 1048980, at *14. Regarding claim 30, the Board found that Thompson in combination with the CMS 08 Manual or the Sarns 9000 Manual rendered obvious the “indicium soliciting input from the user corresponding to a rate of anticoagulant delivery” limitation. Id. at *9-10, *15. Finally, the Board found that the Sarns 9000 Manual described the “indicium soliciting, from the user, a programmed setting of an alarm limit about the machine-operating parameter” limitation in claim 31. Id. Following the Board decision, Baxter requested rehearing, which the Board denied. Board Rehearing Decision, 2010 WL 3032865, at *1. In particular, the Board rejected Baxter’s argument that the Board had erroneously equated “soliciting” with “control” or “adjust,” reiterating that the CMS 08 Manual disclosed that “the machine interface solicits the user for entry of data to control various parameters such as sodium concentration.” Id. Baxter timely appealed, and we have jurisdiction under 28 U.S.C. § 1295(a)(4)(A). Discussion I. The scope of our review in an appeal from a Board decision is limited. We review the Board’s factual findings for substantial evidence and review the Board’s legal conclusions de novo. In re Kotzab, 217 F.3d 1365, 1369 (Fed.Cir.2000). A finding is supported by substantial evidence if a reasonable mind might accept the evidence to support the finding. Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938). Although the ultimate determination of obviousness under 35 U.S.C. § 103 is a question of law, it is based on several underlying factual findings, including the differences between the claimed invention and the prior art. Graham v. John Deere Co., 383 U.S. 1, 17-18, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966). Similarly, the determination of what a reference teaches is" }, { "docid": "18225237", "title": "", "text": "of obviousness. In re Mayne, 104 F.3d 1339, 1341 (Fed.Cir.1997). If the PTO carries its burden, the applicant must rebut the PTO’s showing. Id. While this court reviews the Board’s legal conclusion of obviousness without deference, it upholds the Board’s factual findings if supported by substantial evidence. In re Gartside, 203 F.3d at 1313-16. Substantial evidence is something less than the weight of the evidence but more than a mere scintilla of evidence. Id. at 1312 (citing Consol. Edison Co. v. Nat’l Labor Relations Bd., 305 U.S. 197, 229-30, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Consol. Edison, 305 U.S. at 229-30, 59 S.Ct. 206. Thus, “where two different, inconsistent conclusions may reasonably be drawn from the evidence in record, an agency’s decision to favor one conclusion over the other is the epitome of a decision that must be sustained upon review for substantial evidence.” In re Jolley, 308 F.3d 1317, 1329 (Fed.Cir.2002); see also Gartside, 203 F.3d at 1312 (noting that the possibility of drawing inconsistent conclusions from the evidence does not prevent the Board’s findings from being supported by substantial evidence). B. Analysis A claimed invention is unpatentable “if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains.” 35 U.S.C. § 103(a). Where “a patent claims a structure already known in the prior art that is altered by the mere substitution of one element for another known in the field, the combination must do more than yield a predictable result.” See KSR, 550 U.S. at 416, 127 S.Ct. 1727. A reference may be read for all that it teaches, including uses beyond its primary purpose. See id. at 418-21, 127 S.Ct. 1727; see also Beckman Instruments, Inc. v. LKB Produkter AB, 892 F.2d 1547, 1551 (Fed.Cir.1989). The government argues on appeal" }, { "docid": "7644710", "title": "", "text": "col. 12 1.65 — col. 13 1.8. The PTO granted ex parte reexamination, merging five separately filed requests. The examiner rejected claims 1-29 based on the above references and their various combinations, and Antor appealed to the Board. Antor argued that the claims of the '961 patent were not anticipated or obvious in light of the four references and that Ghafoor and MINOS were not enabling, relying on the declaration of Dr. Ray Mercer to support that argument. The PTO did not submit any rebuttal evidence regarding enablement. The Board found that Antor had not shown that Ghafoor and MINOS were not enabling and had not shown that their performance required undue experimentation. Board Opinion, 2010 WL 4149232, at *5-8; Rehearing Opinion, 2011 WL 1100047, at *2-6. With regard to anticipation, the Board found that claims 1-3, 5-7, 9, 11-15, 17-19, 21-24, and 26-29 were anticipated by Ghafoor; that claims 1-3, 5-7, 9, 11-15, 17-19, 21-24, and 26 were anticipated by Huang; and that claims 1-3, 5, and 13-15 were anticipated by MINOS. Board Opinion, 2010 WL 4149232, at *8-10. Claims 1-3, 5-7, 9, 11-15, 17-19, 21-24, and 26-29 were held to be obvious over the combination of Ghafoor and Huang. Id. at *10-11. Claim 25 was held to be obvious over Ghafoor and either Barrett or Huang. Id. at *11-12. Finally, claims 1-29 were held to be obvious in view the combination of Barrett and MINOS. Id. at *12. Antor appealed from the Board’s decision to this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(4)(A). Discussion We review the Board’s legal conclusions de novo. In re Elsner, 381 F.3d 1125, 1127 (Fed.Cir.2004). We review the Board’s factual findings underlying those determinations for substantial evidence. In re Gartside, 203 F.3d 1305, 1316 (Fed.Cir.2000). A finding is supported by substantial evidence if a reasonable mind might accept the evidence to support the finding. Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938). Anticipation is a question of fact reviewed for substantial evidence in an appeal from the Board. In re Gleave, 560" }, { "docid": "20294704", "title": "", "text": "failed to provide evidence that the claimed groove dimensions produced unexpected results. Additionally, the Board found that Weling did not teach away from the invention claimed in Applied’s Patents and that there was insufficient evidence of commercial success to outweigh the evidence of obviousness. In each case, Applied requested rehearing, which the Board denied. Applied appeals all four decisions of the Board. This court has jurisdiction under 28 U.S.C. § 1295(a)(4). II. Discussion A. Standard of Review Obviousness is a question of law with several underlying factual inquiries, including what a reference teaches, whether a reference teaches away, and whether there is commercial success. Graham v. John Deere Co. of Kan. City, 388 U.S. 1, 17-18, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966); Para-Ordnance Mfg., Inc. v. SGS Imps. Int'l Inc., 73 F.3d 1085, 1088 (Fed.Cir.1995). This court reviews the Board’s determination of obviousness de novo and the Board’s factual findings for substantial evidence. In re Gartside, 203 F.3d 1305, 1316 (Fed.Cir.2000). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938). “[T]he possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.” Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 620, 86 S.Ct. 1018, 16 L.Ed.2d 131 (1966). The Board’s judgment must be reviewed on the grounds upon which the Board actually relied. See Sec. & Exch. Comm’n v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947); In re Lee, 277 F.3d 1338, 1345-46 (Fed.Cir.2002). Alternative grounds supporting the Board’s decision generally are not considered. See Lee, 277 F.3d at 1346. “The [Board] must set forth its findings and the grounds thereof, as supported by the agency record, and explain its application of the law to the found facts.” Id. at 1342. However, “[w]hile we may not supply a reasoned basis for the agency’s action that the agency itself has not given, SEC v. Chenery Corp., 332 U.S." }, { "docid": "3664048", "title": "", "text": "claims provided unexpected results because it found that the unexpected results lacked a nexus to the limitations recited in the claims. Id. at *7-8. The Board denied Kennametal’s request for a rehearing, finding that although Grab appeared not to have applied coatings by PVD, it still anticipated this usage. Board Decision on Rehearing, at *3. It also found that Grab’s teachings, especially in view of the art at the time, would have avoided a cobalt capping problem and were therefore enabling. Id. at *4. II. Discussion Kennametal appeals all the Board’s rejections. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(4). A. Standard of Review Anticipation under 35 U.S.C. § 102 is a question of fact, while obviousness under § 103 is a question of law based on underlying findings of fact. Flo Healthcare Solutions, LLC v. Kappos, 697 F.3d 1367, 1375 (Fed.Cir.2012) (citing cases). We review the Board’s factual findings for substantial evidence and its legal conclusions without deference. Id. at 1375-76 (citing cases). “Substantial evidence is ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ ” In re Applied Materials, Inc., 692 F.3d 1289, 1294 (Fed.Cir. 2012) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). B. Anticipation A patent is invalid if “the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of application for patent in the United States.” 35 U.S.C. § 102(b) (2006). A prior art reference can only anticipate a claim if it discloses all the claimed limitations “arranged or combined in the same way as in the claim.” Wm. Wrigley Jr. Co. v. Cadbury Adams USA LLC, 683 F.3d 1356, 1361 (Fed.Cir.2012) (quoting Net MoneyIN, Inc. v. VeriSign, Inc., 545 F.3d 1359, 1370 (Fed.Cir.2008)). However, a reference can anticipate a claim even if it “d[oes] not expressly spell out” all the limitations arranged or combined as in the claim, if a person of skill in" }, { "docid": "7644711", "title": "", "text": "2010 WL 4149232, at *8-10. Claims 1-3, 5-7, 9, 11-15, 17-19, 21-24, and 26-29 were held to be obvious over the combination of Ghafoor and Huang. Id. at *10-11. Claim 25 was held to be obvious over Ghafoor and either Barrett or Huang. Id. at *11-12. Finally, claims 1-29 were held to be obvious in view the combination of Barrett and MINOS. Id. at *12. Antor appealed from the Board’s decision to this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(4)(A). Discussion We review the Board’s legal conclusions de novo. In re Elsner, 381 F.3d 1125, 1127 (Fed.Cir.2004). We review the Board’s factual findings underlying those determinations for substantial evidence. In re Gartside, 203 F.3d 1305, 1316 (Fed.Cir.2000). A finding is supported by substantial evidence if a reasonable mind might accept the evidence to support the finding. Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938). Anticipation is a question of fact reviewed for substantial evidence in an appeal from the Board. In re Gleave, 560 F.3d 1331, 1334-35 (Fed.Cir.2009). Enablement and obviousness, on the other hand, are questions of law, based on underlying factual findings. Graham v. John Deere Co., 383 U.S. 1, 17-18, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966); Elsner, 381 F.3d at 1127; Minn. Mining & Mfg. Co. v. Chemque, Inc., 303 F.3d 1294, 1301 (Fed.Cir.2002) (“Whether a prior art reference is enabling is a question of law based upon underlying factual findings.”). I. We first address Antor’s argument that the Board erred by holding that prior art publications cited by an examiner are presumptively enabling during prosecution. A prior art reference cannot anticipate a claimed invention “if the allegedly anticipatory disclosures cited as prior art are not enabled.” Amgen Inc. v. Hoechst Marion Roussel, Inc., 314 F.3d 1313, 1354 (Fed.Cir.2003). As we stated in Amgen, both claimed and unclaimed materials disclosed in a patent are presumptively enabling: In patent prosecution the examiner is entitled to reject application claims as anticipated by a prior art patent without conducting an inquiry into whether or not that patent is" }, { "docid": "19027675", "title": "", "text": "In re Eisner, 381 F.3d 1125, 1127 (Fed.Cir.2004), and the Board’s factual findings underlying those determi nations for substantial evidence, In re Gartside, 203 F.3d 1305, 1316 (Fed.Cir.2000). A finding is supported by substantial evidence if a reasonable mind might accept the evidence to support the finding. Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938). Obviousness is a question of law, based on underlying factual findings. Graham v. John Deere Co., 383 U.S. 1, 17-18, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966); Eisner, 381 F.3d at 1127. A claim is invalid for obviousness if, to one of ordinary skill in the pertinent art, “the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made.... ” 35 U.S.C. § 103(a) (2006); see also KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 406-07, 127 S.Ct. 1727, 167 L.Ed.2d 705 (2007). Giannelli argues that the Board’s decision sustaining the examiner’s rejection is based on an incorrect assertion that the chest press machine disclosed in the '447 patent could be used as a rowing machine rather than considering how it would be used. Giannelli contends that the Board erred in concluding that the examiner had met the burden of establishing a case of prima facie obviousness over the cited '447 reference because he failed to explain how or why a user could possibly use the prior art chest press machine to perform a rowing motion. The Director responds that claim 1 only requires an exercise machine with handles that can be pulled. The Director contends that the Board correctly found that the chest press machine described in the '447 patent either disclosed or rendered obvious all of the limitations of the '261 application claims. The Director further contends that the Board correctly held that Giannelli did not rebut the finding of capability because he did not provide any persuasive argument or evidence to show that the chest press machine described in the" }, { "docid": "9699104", "title": "", "text": "would have furnished the artisan ■with ample suggestion or motivation to combine Bowerman and Pope in the manner proposed so as to arrive at the subject matter recited in claim 1. Id. at 6-7. After appellants’ request for a rehearing was denied, they appealed to this court, which has jurisdiction under 28 U.S.C. § 1295(a)(4)(A). Discussion I. “A patent may not be obtained ... if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains.” 35 U.S.C. § 103(a). Obviousness is a “question of law based on underlying findings of fact.” In re Gartside, 203 F.3d 1305, 1316 (Fed. Cir.2000). The Board’s factual findings are upheld unless they are unsupported by substantial evidence. Id. Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consol. Edison Co. v. NLRB, 305 U.S. 197, 229-30, 59 S.Ct. 206, 83 L.Ed. 126 (1938). What the prior art teaches, whether it teaches away from the claimed invention, and whether it motivates a combination of teachings from different references are questions of fact. Id.; In re Berg, 320 F.3d 1310, 1312 (Fed.Cir.2003). Other factual findings related to obviousness may include “(1) the scope and content of the prior art; (2) the level of ordinary skill in the prior art; (3) the differences between the claimed invention and the prior art; and (4) objective evidence of nonobviousness.” In re Dembiczak, 175 F.3d 994, 998 (Fed.Cir. 1999), abrogated on other grounds in In re Gartside, 203 F.3d 1305 (Fed.Cir.2000) (abrogating the holding in In re Dembic-zak that the Board’s findings of fact are reviewed for clear error); see also Graham v. John Deere Co., 383 U.S. 1, 17-18, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966). “When a rejection depends on a combination of prior art references, there must be some teaching, suggestion, or motivation to combine the references.” In re" }, { "docid": "13374253", "title": "", "text": "Board to consider. The Board also examined the various alleged differences between Morsa’s claims and the prior art and sustained the examiner’s rejections on claims 181,184, 188-92, 196, 197, 200-03, 206, 210-14, 218, 219, 222-25, 228, 232-36, 240, 241, 244-47, 250, 254-58, 262, 263, and 266-68. The Board allowed claims 193-95, 198, 199, 215-17, 220, 221, 237-39, 242, 243, 259-62, 264, and 265 as patentable over the PMA. On July 14, 2011, Morsa filed a request for rehearing. The Board granted this request to the extent it concluded that its previous decision had used new grounds— that some of the differences between the prior art and the application related to non-functional descriptive material — for rejecting Morsa’s claims. The request for rehearing was denied in all other respects. On February 2, 2012, Morsa filed a second request for rehearing. The Board denied that request. Morsa timely appealed and we have jurisdiction pursuant to 28 U.S.C. § 1295(a)(4)(A). Standard of Review We review the Board’s legal conclusions de novo. In re Elsner, 381 F.3d 1125, 1127 (Fed.Cir.2004). We review the Board’s factual findings for substantial evidence. In re Gartside, 203 F.3d 1305, 1316 (Fed.Cir.2000). Substantial evidence is less than the weight of the evidence but more than a mere scintilla of evidence. Id. at 1312 (citing Consol. Edison Co. v. Nat’l Labor Relations Bd., 305 U.S. 197, 229-30, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). “[W]here two different, inconsistent conclusions may reasonably be drawn from the evidence in record, an agency’s decision to favor one conclusion over the other is the epitome of a decision that must be sustained upon review for substantial evidence.” In re Jolley, 308 F.3d 1317, 1329 (Fed.Cir.2002). Enablement is a question of law based on underlying factual findings. In re Antor Media Corp., 689 F.3d 1282, 1287 (Fed.Cir.2012). “[A] prior art printed publication cited by an examiner is presumptively enabling barring any showing to the contrary by a patent applicant or paten-tee.” Id. at 1288. When the applicant challenges enablement, however, the Board must “thoroughly reviefw]” all evidence and applicant argument to determine if the prior" }, { "docid": "6184479", "title": "", "text": "appeals of Board decisions, these factual findings are reviewed for substantial evidence. In re Gartside, 203 F.3d 1305, 1313 (Fed.Cir.2000); see also In re Cuozzo Speed Techs., LLC, 793 F.3d 1268, 1280 (Fed.Cir.2015). Based on the underlying factual findings, we review the Board’s ultimate conclusion of obviousness de novo. In re Mouttet, 686 F.3d 1322, 1330-31 (Fed.Cir.2012). The Board’s finding of a motivation to combine Serfontein, Marazza, and Ubbink to arrive at the claimed method was supported by substantial evidence. So was the Board’s finding that the proffered evidence of objective indicia of non-obviousness lacked an adequate nexus with the merits of the claimed invention. In light of these factual findings, we agree with the Board’s ultimate conclusion that the asserted claims were obvious under 35 U.S.C. § 103. A The record amply supports the Board’s finding of a motivation to combine Serfontein and Marazza. Serfontein explains that elevated levels of homocysteine are often associated with folate deficiencies. Accordingly, Serfontein discloses a method of treating elevated levels of homo-cysteine using a “suitable active metabolite of folate” and B-vitamins. While Serfontein does not specifically identify which metabolites of folate are “suitable” for ad dressing folate deficiencies, Marazza does. It highlights L-5-MTHF as a “natural metabolite” of folate in which there is an “increasing interest” for the treatment of folate deficiencies. Marazza, col. 1 11. 26-29. Thus, as the Board found, a person of ordinary skill viewing Serfontein and Mar-azza would have been motivated to use L-5-MTHF as the “suitable active metabolite of folate” called for by the method disclosed in Serfontein. Merck argues that the prior art teaches away from this combination by suggesting: (1)' administering 5-MTHF would actually increase levels of homocysteine, (2) 5-MTHF would be too unstable for therapeutic use, and (3) L-5-MTHF is a poor substrate for polyglutamation, a process that facilitates retention and use of L-5MTHF in the cell. Merck cites isolated prior art disclosures for support. Viewing the prior art as a whole, however, the Board’s finding that the prior art does not teach away from combining Serfontein and Marazza is supported by substantial evidence. The" }, { "docid": "14227923", "title": "", "text": "declaration. According to the Board, the expert declaration “expands on the assertions in the Reply by presenting a number of additional new arguments explaining why quantitative deblocking would have been expected, and cites a number of non-patent literature references which were not relied upon to support unpatentability in the Petition.” Id. That expert declaration, the Board found, contains “in-depth explanations and supporting documentary evidence” not contained in the reply itself; Id. In this way, the Board found, IBS ran afoul of § 42.6(a)(3) by improperly incorporating by reference arguments and evidence from the expert declaration into the reply brief. IBS now challenges the Board’s conclusion that IBS failed to demonstrate the challenged claims were obvious by a preponderance of the evidence. IBS also argues the Board abused its discretion to the extent it found IBS’s reply brief improper. We have jurisdiction pursuant ■ to 28 U.S.C. § 1295(a)(4)(A). Discussion Obviousness is a mixed question of fact and law. Although the Board’s ultimate conclusion that the claims are not obvious is a legal determination subject to de novo review, the.subsidiary factual findings are reviewed for substantial evidence. In re Gartside, 203 F.3d 1305, 1312, 1316 (Fed.Cir.2000). “Substantial evidence is more than a mere scintilla.” Consol. Edison Co. v. N.L.R.B., 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938). Substantial evidence review asks “whether a reasonable fact finder could have arrived at the agency’s decision” and requires examination of .the “record as a whole, taking into account evidence that both justifies and detracts from an agency’s decision.” In re Gartside, 203 F.3d at 1312. “The presence or absence of a motivation to combine references in an obviousness determination is a pure question of fact.” Par Pharm., Inc. v. TWI Pharm., Inc., 773 F.3d 1186, 1196 (Fed.Cir.2014) (citations omitted). “The presence or absence of a reasonable expectation of success is also a question of fact.” Id. Accordingly, the substantial evidence standard of review applies to the Board’s resolution of these factual determinations. The Court can review de novo, however, whether the Board “fail[ed] to consider the appropriate scope of the ..." }, { "docid": "9699105", "title": "", "text": "NLRB, 305 U.S. 197, 229-30, 59 S.Ct. 206, 83 L.Ed. 126 (1938). What the prior art teaches, whether it teaches away from the claimed invention, and whether it motivates a combination of teachings from different references are questions of fact. Id.; In re Berg, 320 F.3d 1310, 1312 (Fed.Cir.2003). Other factual findings related to obviousness may include “(1) the scope and content of the prior art; (2) the level of ordinary skill in the prior art; (3) the differences between the claimed invention and the prior art; and (4) objective evidence of nonobviousness.” In re Dembiczak, 175 F.3d 994, 998 (Fed.Cir. 1999), abrogated on other grounds in In re Gartside, 203 F.3d 1305 (Fed.Cir.2000) (abrogating the holding in In re Dembic-zak that the Board’s findings of fact are reviewed for clear error); see also Graham v. John Deere Co., 383 U.S. 1, 17-18, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966). “When a rejection depends on a combination of prior art references, there must be some teaching, suggestion, or motivation to combine the references.” In re Rouffet, 149 F.3d 1350, 1355 (Fed.Cir. 1998). Stated another way, the prior art as a whole must “suggest the desirability” of the combination. In re Beattie, 974 F.2d 1309, 1311 (Fed.Cir.1992) (internal quotation omitted); Winner Int’l Royalty Corp. v. Wang, 202 F.3d 1340 (Fed.Cir. 2000) (“Trade-offs often concern what is feasible, not what is, on balance, desirable. Motivation to combine requires the latter.” (emphasis added)). The source of the teaching, suggestion, or motivation may be “the nature of the problem,” “the teachings of the pertinent references,” or “the ordinary knowledge of those skilled in the art.” In re Rouffet, 149 F.3d at 1355. II. As quoted above, the Board found that the prior art as a whole suggested or motivated a combination of the open perimeter and orientation of Bowerman with the hexagonal surface and orientation of Pope. Appellants raise a number of arguments as to why this finding is not supported by substantial evidence. Appellants first argue that the Board’s finding of a motivation to combine lacks substantial evidence because the Board failed to" }, { "docid": "12797156", "title": "", "text": "Alloy 2) and had not shown that the claimed range of rhenium was critical to improving stress rupture life. Thus, the Board concluded that Peterson’s evidence of nonobviousness did not outweigh the evidence of obviousness and affirmed the examiner’s rejection of claims 1-7. Peterson timely appealed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(4)(A). DISCUSSION The ultimate determination whether an invention would have been obvious under 35 U.S.C. § 103 is a legal conclusion based on underlying findings of fact. In re Kotzab, 217 F.3d 1865, 1369, 55 USPQ2d 1313, 1316 (Fed.Cir.2000). We review the Board’s legal conclusion of obviousness de novo and its underlying factual determinations for substantial evidence. In re Gartside, 203 F.3d 1305, 1316, 53 USPQ2d 1769, 1776 (Fed.Cir.2000). Whether an invention has produced unexpected results and whether a reference teaches away from a claimed invention are questions of fact. In re Mayne, 104 F.3d 1339, 1343, 41 USPQ2d 1451, 1455 (Fed.Cir.1997) (unexpected results); Para-Ordnance Mfg. v. SGS Importers Int’l, 73 F.3d 1085, 1088, 37 USPQ2d 1237, 1239 (Fed.Cir.1995) (teaching away). Under the substantial evidence standard, we affirm the Board’s factual determinations if they are based upon “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” In re Gartside, 203 F.3d at 1312, 53 USPQ2d at 1773 (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 217, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). On appeal, Peterson argues that the cited prior art does not establish a prima facie case of obviousness because it does not suggest the claimed combination of “about 1 to 3 percent rhenium” with “about 14 percent chromium” to create an alloy having improved strength. As to the first ground of rejection, Peterson contends that a skilled artisan would not have assumed from Shah that using the claimed amounts of rhenium and chromium would improve alloy strength because Shah defines very broad ranges for rhenium (0-7%) and chromium (3-18%), mentions rhenium only as an optional ingredient, and discloses a preferred alloy containing no rhenium. With respect to the second ground of rejection, Peterson asserts that the" }, { "docid": "5217956", "title": "", "text": "because Omure states that a different unsaturated propene HFO compound has “relatively superior thermal stability” in PAG. Id. (internal quotation marks omitted). Thus, the Board concluded that, although Honeywell’s evidence persuasively shows the unpredictability of “how various refrigerants would have reacted with various lubricants,” Omure provides evidence that one of skill in the art “would no more have expected failure with respect to the stability of combining [HFOs] with PAG than would have expected success.” Id. at *14 (emphases added). Thus, the Board found that, due to the “overall unpredictability as to stability in the art,” one of ordinary skill would have arrived at the claimed combination by mere routine testing. Id. at *15. Honeywell timely appealed to this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(4)(A). Discussion We review the Board’s legal determinations de novo, In re Elsner, 381 F.3d 1125, 1127 (Fed. Cir. 2004), and the Board’s factual findings underlying those determinations for substantial evidence, In re Gartside, 203 F.3d 1305, 1316 (Fed. Cir. 2000). A finding is supported by substantial evidence if a reasonable mind might accept the evidence to support the finding. Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938). Obviousness is a question of law, based on underlying factual findings, including what a reference teaches, whether a person of ordinary skill in the art would have been motivated to combine references, and any relevant objective indicia of nonobviousness. Apple Inc. v. Samsung Elecs. Co., 839 F.3d 1034, 1047-48, 1051 (Fed. Cir. 2016) (en banc). On appeal, Honeywell argues that the Board erred in (1) finding a motivation to combine the references with a reasonable expectation of success, (2) rejecting Honeywell’s objective evidence, and (3) relying on a new ground of rejection when it relied on Omure, without giving Honeywell notice and opportunity to respond. We discuss each issue in turn. I We first consider whether the Board erred in finding that one of ordinary skill in the art would have been motivated to combine the references with a reasonable expectation of success and in considering" }, { "docid": "19027674", "title": "", "text": "and exert a pulling force on its handles in a rowing motion. Id. The Board noted that the recitation of a new intended use for an old product did not make a claim to that old product patentable, and consequently determined that the '261 application simply recited the new intended use of rowing for the '447 patent chest press apparatus. Id. at 3-4. The Board further found that even though using the '447 patent’s invention as a rowing machine “may not fully achieve the ‘purpose’ of [the '447] apparatus,” Giannelli had not shown that the apparatus could not be used in such a manner. Id. at 4. In the Board’s view, Giannelli thus failed to rebut the Board’s showing of capability of pulling the handles. Id. The Board also found that the '261 application’s claimed “substantially linear path” encompassed the “slightly curvilinear path” disclosed in the '447 patent Abstract. Id. at 5. Giannelli appealed to this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(4)(A). Discussion We review the Board’s legal conclusions de novo, In re Eisner, 381 F.3d 1125, 1127 (Fed.Cir.2004), and the Board’s factual findings underlying those determi nations for substantial evidence, In re Gartside, 203 F.3d 1305, 1316 (Fed.Cir.2000). A finding is supported by substantial evidence if a reasonable mind might accept the evidence to support the finding. Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938). Obviousness is a question of law, based on underlying factual findings. Graham v. John Deere Co., 383 U.S. 1, 17-18, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966); Eisner, 381 F.3d at 1127. A claim is invalid for obviousness if, to one of ordinary skill in the pertinent art, “the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made.... ” 35 U.S.C. § 103(a) (2006); see also KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 406-07, 127 S.Ct. 1727, 167 L.Ed.2d 705 (2007). Giannelli argues that the Board’s" }, { "docid": "22582388", "title": "", "text": "determination of whether an invention would have been obvious under 35 U.S.C. § 103(a) is a legal conclusion based on underlying findings of fact. See Dembiczak, 175 F.3d at 998, 50 USPQ2d at 1616. We review the Board’s ultimate determination of obviousness de novo. See id. However, we review the Board’s underlying factual findings for substantial evidence. See In re Gartside, 203 F.3d 1305, 1316, 53 USPQ2d 1769, 1776 (Fed.Cir.2000). Substantial evidence is something less than the weight of the evidence but more than a mere scintilla of evidence. See id. at 1312, 203 F.3d 1305, 53 USPQ2d at 1773 (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229-30, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). In,reviewing the record, for substantial evidence, we must take into account evidence that both justifies and detracts from the factual determinations. See id. (citing Universal Camera Corp. v. NLRB, 340 U.S. 474, 487-88, 71 S.Ct. 456, 95 L.Ed. 456 (1951)). We note that the possibility of drawing two inconsistent conclusions from the evidence does not prevent the Board’s findings from being supported by substantial evidence. See id. Indeed, if a reasonable mind might accept the evidence as adequate to support the factual conclusions drawn by the Board, then we must uphold the Board’s determination. See id. B. Analysis A critical step in analyzing the patentability of claims pursuant to section 103(a) is casting the mind back to the time of invention, to consider the thinking of one of ordinary skill in the art, guided only by the prior art references and the then-accepted wisdom in the field. See Dembiczak, 175 F.3d at 999, 50 USPQ2d at 1617. Close adherence to this methodology is especially important in cases where the very ease with which the invention can be understood may prompt one “to fall victim to the insidious effect of a hindsight syndrome wherein that which only the invention taught is used against its teacher.” Id. (quoting W.L. Gore & Assocs., Inc. v. Garlock, Inc., 721 F.2d 1540, 1553, 220 USPQ 303, 313 (Fed.Cir.1983)). Most if not all inventions arise from a combination of" }, { "docid": "8555513", "title": "", "text": "the Board properly determined that the claims would have been obvious. We review the Board’s factual findings for substantial evidence and its legal conclusions de novo. Cuozzo, 793 F.3d at 1280 (citing In re Baxter Int'l, Inc., 678 F.3d 1357, 1361 (Fed.Cir.2012)). The ultimate determination of obviousness under § 103 is a question of law based on underlying factual findings. Id. (citing Graham v. John Deere Co., 383 U.S. 1, 17-18, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966)). What a reference teaches and the differences between the claimed invention and prior art are questions of fact which we review for substantial evidence. Id. The Board found that “Apple explains in detail in its Petition[s] how the CompuSonics publications teach every limitation” of the primary claims. J.A. 31, 54, 98. SightSound conceded that the Compu-Sonics publications “describe prior art elements working according to their established functions in a predictable manner,” but argued that a skilled artisan would have had no reason to combine those elements. J.A. 38, 105. The Board rejected this argument, finding that the references “expressly contemplate that it would be commercially desirable to have a system that allowed users to buy” and store music and video electronically. J.A. 39, 55, 106. Finding that the reason to combine was manifested by the references themselves, see Brown & Williamson Tobacco Corp. v. Philip Morris Inc., 229 F.3d 1120, 1125 (Fed.Cir.2000), the Board thus concluded that a person of ordinary skill in the art would have had reason to combine the teachings of the CompuSonics references. As for claims 1, 2, 4, and 5 of the '573 patent and claim 1 of the '440 patent, SightSound argues that the Board erred in rejecting objective indicia of non-obviousness. On appeal, SightSound contends only that the Board lacked substantial evidence to conclude that there was no nexus between the success of the iTunes Music Store (“iTMS”) and the claimed invention. To establish a proper nexus between a claimed invention and the commercial success of a product, a patent owner must offer “proof that the sales were a direct result of the unique characteristics" }, { "docid": "16549685", "title": "", "text": "Harris’s request for reconsideration but made no changes to the original decision. Ex Parte Harris, Appeal No.2003-1930, Paper No. 18 (B.P.A.I. Feb. 4, 2004). Harris now appeals to this court. This court has jurisdiction under 28 U.S.C. § 1295(a)(4)(A). II. The ultimate determination of obviousness under 35 U.S.C. § 103 is a legal conclusion based on underlying findings of fact. In re Kotzab, 217 F.3d 1365, 1369 (Fed.Cir.2000). This court reviews the Board’s legal conclusion of obviousness de novo and its underlying factual determinations for substantial evidence. In re Gartside, 203 F.3d 1305, 1316 (Fed.Cir.2000). Whether an invention has produced unexpected results and whether a reference teaches away from a claimed invention are questions of fact. In re Mayne, 104 F.3d 1339, 1343 (Fed.Cir.1997) (unexpected results); Para-Ordnance Mfg. v. SGS Importers Int’l, 73 F.3d 1085, 1088 (Fed.Cir.1995) (teaching away). Under the substantial evidence standard, this court affirms the Board’s factual determinations if they are based upon “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Gartside, 203 F.3d at 1312 (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 217, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). The PTO has the burden of showing a prima facie case of obviousness. Mayne, 104 F.3d at 1341. In this type of claim, a prima facie case of obviousness arises when the ranges of a claimed composition overlap the ranges disclosed in the prior art. See In re Peterson, 315 F.3d 1325, 1329 (Fed.Cir.2003); In re Geisler, 116 F.3d 1465, 1469 (Fed.Cir.1997); In re Woodruff, 919 F.2d 1575, 1578 (Fed.Cir.1990); In re Malagari, 499 F.2d 1297, 1303 (CCPA 1974). Where the “claimed ranges are completely encompassed by the prior art, the conclusion [that the claims are prima facie obvious] is even more compelling than in cases of mere overlap.” Peterson, 315 F.3d at 1330. Even without complete overlap of the claimed range and the prior art range, a minor difference shows a prima facie case of obviousness. Haynes Int’l v. Jessop Steel Co., 8 F.3d 1573, 1577 n. 3 (Fed.Cir.1993). In this case, the Board found a" }, { "docid": "18225236", "title": "", "text": "642 F.2d 413, 425 (CCPA 1981)). The Board affirmed the examiner rejection of all claims in Mouttet’s application on § 103(a) grounds. Id., 2011 WL 1131338, at *3-4, 2011 PatApp. LEXIS 15036, at *9-10. Mouttet appealed to this court, submitting an Overdue Informal Brief of Appellant on August 5, 2011. We exercise jurisdiction pursuant to 28 U.S.C. § 1295(a)(4)(A). II. Discussion A. Standard of Review Whether an invention would have been obvious to one of ordinary skill in the art is a legal determination based on underlying findings of fact. KSR, 550 U.S. at 427, 127 S.Ct. 1727; In re Gartside, 203 F.3d 1305, 1316, 1319 (Fed.Cir.2000) (citing Graham v. John Deere Co., 383 U.S. 1, 17-18, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966)). The scope and content of the prior art, as well as whether the prior art teaches away from the claimed invention, are determinations of fact. See Para-Ordnance Mfg., Inc. v. SGS Importers Int’l, Inc., 73 F.3d 1085, 1088 (Fed.Cir.1995). The PTO bears the initial burden of showing a prima facie case of obviousness. In re Mayne, 104 F.3d 1339, 1341 (Fed.Cir.1997). If the PTO carries its burden, the applicant must rebut the PTO’s showing. Id. While this court reviews the Board’s legal conclusion of obviousness without deference, it upholds the Board’s factual findings if supported by substantial evidence. In re Gartside, 203 F.3d at 1313-16. Substantial evidence is something less than the weight of the evidence but more than a mere scintilla of evidence. Id. at 1312 (citing Consol. Edison Co. v. Nat’l Labor Relations Bd., 305 U.S. 197, 229-30, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Consol. Edison, 305 U.S. at 229-30, 59 S.Ct. 206. Thus, “where two different, inconsistent conclusions may reasonably be drawn from the evidence in record, an agency’s decision to favor one conclusion over the other is the epitome of a decision that must be sustained upon review for substantial evidence.” In re Jolley, 308 F.3d 1317, 1329 (Fed.Cir.2002); see also Gartside, 203 F.3d" } ]

[ { "docid": "22464781", "title": "", "text": "that the government had the burden of proving beyond a reasonable doubt the element of materiality.” In an opinion filed December 4, 1998, Judge Thompson denied the petition, relying on our decision in Bilzerian v. United States, 127 F.3d 237 (2d Cir.1997), to hold that Gaudin does not apply retroactively on collateral review. This timely appeal followed. II. A writ of error coram nobis is “essentially a remedy of last resort for petitioners who are no longer in custody pursuant to a criminal conviction.” Fleming v. United States, 146 F.3d 88, 89-90 (2d Cir.1998) (per curiam). Coram nobis is “not a substitute for appeal, and relief under the writ is strictly limited to those cases in which errors of the most fundamental character have rendered the proceeding itself irregular and invalid.” Foont v. United States, 93 F.3d 76, 78 (2d Cir.1996) (internal quotation marks and ellipsis omitted); see Nicks v. United States, 955 F.2d 161, 167 (2d Cir.1992) (stating that a writ of error coram nobis should be granted “only where extraordinary circumstances are present”). In reviewing a petition for the writ, a court must presume that the proceedings were correct, and the burden of showing otherwise rests on the petitioner. See Nicks, 955 F.2d at 167. To obtain coram nobis relief, a petitioner “must demonstrate that T) there are circumstances compelling such action to achieve justice, 2) sound reasons exist for failure to seek appropriate earlier relief, and 3) the petitioner continues to suffer legal consequences from his conviction that may be remedied by granting of the writ.’ ” Fleming, 146 F.3d at 90 (quoting Foont, 93 F.3d at 79). On appeal, we review de novo the question of whether a district judge applied the proper legal standard, but review the judge’s ultimate decision to deny the writ for abuse of discretion. See Fleming, 146 F.3d at 90. A. As noted, Judge Thompson denied Man-danici’s present petition on the ground that Gaudin does not apply retroactively on collateral review. In Gaudin, the Supreme Court held that if materiality is an element under § 1001, the Fifth and Sixth Amendments" } ]

[ { "docid": "23222765", "title": "", "text": "Sawyer contends that the Supreme Court’s decision in Sum-Diamond provides grounds for vacating his conviction. In that opinion, the Court interpreted the federal gratuities statute, 18 U.S.C. § 201, to mean that the prosecution must prove a link between an object of value given to a public official and a specific official act for or because of which it was given. See Sun-Diamond, 526 U.S. at 406, 119 S.Ct. 1402. Sawyer argued in his petition for coram nobis that the analogous gratuity statute in Massachusetts, chapter 268A, section three (“section three”), should be construed similarly to require proof of a specific official act for which the gratuity was given. Indeed, since Sawyer filed his petition — and. since the district court decided to grant the writ — the Supreme Judicial Court of Massachusetts has ruled, relying partly on Sum-Diamond, that to establish a violation of section three, “there must be proof of linkage to a particular official act.” Scaccia v. State Ethics Comm’n, 431 Mass. 351, 356, 727 N.E.2d 824 (2000). Sawyer claims that the information to which he pled guilty was based on his violation of section three, requiring the government to have demonstrated a link between his allegedly illegal gratuities and specific, identifiable official acts of Massachusetts legislators. Because the prosecution did not attempt to offer such proof, he believes that Sun-Diamond renders his conviction unjust. We disagree. Sawyer pled guilty to one count of honest services mail fraud in violation of 18 U.S.C. §§ 1341 and 1346. We have recognized previously that “Congress enacted this statute [§ 1341] in 1872, as ‘a general proscription against using the mails to initiate correspondence in furtherance of any scheme or artifice to defraud.’ ” United States v. Grandmaison, 77 F.3d 555, 565 (1st Cir.1996) (quoting McNally v. United States, 483 U.S. 350, 356, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987)). The legislative history of § 1341 suggests that Congress intended to shield people from “schemes to deprive them of their money or property” in passing the statute. McNally, 483 U.S. at 356, 107 S.Ct. 2875. More recently, the Supreme Court" }, { "docid": "9183637", "title": "", "text": "do so. State Bd. of Ret. v. Woodward, 446 Mass. 698, 847 N.E.2d 298, 306 (2006). Woodward brought his first collateral attack on his conviction under 28 U.S.C. § 2255, grounding his petition in two then-recently decided cases interpreting the federal and Massachusetts gratuity statutes. See United States v. Sun-Diamond Growers of Cal., 526 U.S. 398, 119 S.Ct. 1402, 143 L.Ed.2d 576 (1999) ; Scaccia v. State Ethics Comm'n, 431 Mass. 351, 727 N.E.2d 824 (2000). In response, the district court vacated Woodward's conviction on the conspiracy count and on the remaining count of interstate travel to commit bribery. Woodward's second collateral attack took the form of a writ of error coram nobis, arguing that his remaining convictions were invalid in the wake of Skilling v. United States.See 561 U.S. 358, 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010). The district court denied relief. United States v. Woodward (Woodward II ), No. 12-11431, 2012 WL 4856055, at *9 (D. Mass. Oct. 10, 2012). B. This appeal arises from Woodward's third collateral attack-his second writ of error coram nobis. Woodward's petition relied primarily on the Supreme Court's recent decision in McDonnell v. United States, --- U.S. ----, 136 S. Ct. 2355, 195 L.Ed.2d 639 (2016). There, the Supreme Court narrowed the definition of \"official act\" in the honest-services fraud prosecutions before it. Id. at 2371-72. The district court correctly recognized that, to succeed, a coram nobis petitioner must \"explain his failure to seek earlier relief from the judgment, show that he continues to suffer significant collateral consequences from the judgment, and demonstrate that the judgment resulted from an error of the most fundamental character.\" United States v. Woodward (Woodward III ), No. 17-12036, 2017 WL 4684000, at *4 (D. Mass. Oct. 18, 2017) (quoting United States v. George, 676 F.3d 249, 254 (1st Cir. 2012) ). So too did it acknowledge that even if a petitioner meets those three criteria, \"the court retains discretion over the ultimate decision to grant or deny the writ.\" Id. (quoting George, 676 F.3d at 255). The district court then applied these requirements to Woodward's petition. First," }, { "docid": "23222762", "title": "", "text": "Court noted that coram nobis, while still available, is an “extraordinary remedy” allowed “only under circumstances compelling such action to achieve justice.” Id. at 511, 74 S.Ct. 247. More than forty years after Morgan, the Supreme Court questioned the continuing vitality of coram nobis as a remedy for fundamental legal error as well as errors of fact. See Carlisle, 517 U.S. at 428-29, 116 S.Ct. 1460. Although the question was not squarely presented on appeal in Car-lisle — because the trial court had not been asked to issue the writ, and did not purport to do so — the Court noted, “the writ would not have lain here, since it was traditionally available only to bring before the court factual errors ‘material to the validity and regularity of the legal proceeding itself,’ such as the defendant’s be ing under age or having died before the verdict.” Id. at 429, 116 S.Ct. 1460 (emphasis added). The Court stated further: “it is difficult to conceive of a situation in a federal criminal case today where [a writ of coram nobis] would be necessary or appropriate.” Id. (quoting United States v. Smith, 331 U.S. 469, 475 n. 4, 67 S.Ct. 1330, 91 L.Ed. 1610 (1947)). Notwithstanding .these comments in Carlisle, some federal courts have continued to assume that writs of coram nobis may correct errors of law as well as errors of fact. See, e.g., United States v. Tucor Iran, Inc., 189 F.3d 834, 836 n. 1 (9th Cir.1999); Martinez v. United States, 90 F.Supp.2d 1072, 1075 (D.Haw.2000) (stating that coram nobis allows a court to vacate a judgment for “egregious legal errors”) (quotation omitted); United States v. Rankin, 1 F.Supp.2d 445, 453 (E.D.Pa.1998) (noting that coram nobis has been used to correct errors of law in criminal cases). But see Tavares v. Massachusetts, 59 F.Supp.2d 152, 154 (D.Mass.1999) (“The writ is not available in federal courts for errors of law”). Sawyer contends that the writ is proper to redress legal error, while the government contends it may be granted to vacate a conviction based on mistakes of fact only. The district court" }, { "docid": "9183639", "title": "", "text": "the district court, observing that Woodward had brought his petition approximately six months after the Supreme Court decided McDonnell, held that Woodward had adequately explained his failure to seek earlier relief. Id. at *4. Second, the district court observed that \"[i]t remains an open question in the First Circuit whether the loss of pension benefits can qualify as a significant collateral consequence.\" Id. at *5. Nonetheless, it found that \"the loss of a pension could constitute a significant collateral consequence and that vacation of Woodward's conviction would likely eliminate the grounds for that consequence,\" and therefore declined to deny relief on the basis of that prong. Id. at *6. Third, after reviewing the evidence that the government introduced during Woodward's trial and the jury instructions from that trial, the district court found Woodward's conviction to be compatible with McDonnell, and therefore could not amount to an error \"of the most fundamental character.\" Id. at *6-10. Fourth and finally, the district court-highlighting that Woodward had flouted the state-law requirement that he disclose the gratuities he received-added that \"the interests of justice do not justify the issuance of a writ of coram nobis\" to Woodward. Id. at *10. Woodward has appealed this decision to us. II. Woodward argues that, contrary to what the district court concluded, his convictions for honest-services mail and wire fraud now amount to fundamental legal error in light of McDonnell. Both the federal mail and wire fraud statutes require, among other things, that the defendant have executed a \"scheme or artifice to defraud.\" 18 U.S.C. §§ 1341, 1343. 18 U.S.C. § 1346, in turn, provides that \"the term 'scheme or artifice to defraud' includes a scheme or artifice to deprive another of the intangible right of honest services.\" This includes depriving \"the public of its right to the honest services of its legislators.\" Woodward I, 149 F.3d at 55. In McDonnell, the parties \"agreed that they would define honest services fraud with reference to the federal bribery statute, 18 U.S.C. § 201.\" 136 S. Ct. at 2365. It is implicit in the parties' arguments here that we should" }, { "docid": "23222764", "title": "", "text": "agreed with Sawyer on this point, ruling that the writ is available to correct legal error. In deciding whether to grant the writ, courts have used a, three-part test: a petitioner must 1) explain her failure to seek relief from judgment earlier, 2) demonstrate continuing collateral consequences from the conviction, and 3) prove that the error is fundamental to the validity of the judgment. See Hager v. United States, 993 F.2d 4, 5 (1st Cir.1993); see also United States v. Mandanici, 205 F.3d 519, 524 (2d Cir.2000); United States v. Barrett, 178 F.3d 34, 56 n. 20 (1st Cir.1999). We assume, without deciding, that a writ of eoram nobis is available to vacate a criminal conviction premised upon a fundamental error of law. We also express no opinion on whether Sawyer could meet the first and second prongs of the standard for issuance. However, we conclude that Sawyer was not entitled to the writ because there was no fundamental legal error in his conviction. III. A. The Federal Gratuities and Honest Services Mail Fraud Statutes Sawyer contends that the Supreme Court’s decision in Sum-Diamond provides grounds for vacating his conviction. In that opinion, the Court interpreted the federal gratuities statute, 18 U.S.C. § 201, to mean that the prosecution must prove a link between an object of value given to a public official and a specific official act for or because of which it was given. See Sun-Diamond, 526 U.S. at 406, 119 S.Ct. 1402. Sawyer argued in his petition for coram nobis that the analogous gratuity statute in Massachusetts, chapter 268A, section three (“section three”), should be construed similarly to require proof of a specific official act for which the gratuity was given. Indeed, since Sawyer filed his petition — and. since the district court decided to grant the writ — the Supreme Judicial Court of Massachusetts has ruled, relying partly on Sum-Diamond, that to establish a violation of section three, “there must be proof of linkage to a particular official act.” Scaccia v. State Ethics Comm’n, 431 Mass. 351, 356, 727 N.E.2d 824 (2000). Sawyer claims that the" }, { "docid": "23222809", "title": "", "text": "benefits that Sawyer was conferring. United States v. Sawyer, 85 F.3d 713, 729 (1st Cir.1996). However, the decision also rejected Sawyer’s claim to a directed acquittal; we found that the evidence was sufficient to convict him under the mail fraud statute. Id. at 731, 733-34. On remand, Sawyer chose to plead to a single count of mail fraud set forth in an information which did not refer to state law, and he received a sentence that included no time in jail. Thereafter, the Massachusetts Supreme Judicial Court— following the Supreme Court’s construction of the federal gratuity state in United States v. Sun-Diamond Growers of California, 526 U.S. 398, 119 S.Ct. 1402, 143 L.Ed.2d 576 (1999) — construed the state gratuity statute in a way that would have made it harder for the government to prove that the benefits conferred by Sawyer violated the state statute. Scaccia v. State Ethics Comm’n, 431 Mass. 351, 727 N.E.2d 824, 827-28 (2000). In the coram nobis proceeding below, the district court ruled, and Sawyer now argues on appeal, that Sawyer’s extant conviction for mail fraud (based on his guilty plea) rests on a legal error, namely, the premise that his favors to state legislators violated the state gratuity statute as narrowed by Sun-Diamond and Scaccia. But Sawyer’s conviction does not rest on this premise in any meaningful way. Sawyer was convicted on his own plea of guilty to the federal mail fraud statute; there was an adequate basis for the plea without regard to whether he violated the state gratuity statute; and nothing in Sun-Diamond has been shown to undermine a plea of guilty to a statute not even addressed in Sun-Diamond. To justify Sawyer’s guilty plea, it was enough that the government pointed to evidence, or proffered facts, that would furnish a rational basis for the plea. Fed. R.Crim.P. 11; United States v. Gandia-Maysonet, 227 F.3d 1, 6 (1st Cir.2000). The government did so by pointing to the favors Sawyer conferred on state legislators and to their context. This was the same evidence that our earlier decision in Sawyer had already said not" }, { "docid": "12014699", "title": "", "text": "petitioners have failed to make the requisite showing of actual innocence that would support consideration of their untimely § 2255 petitions on the merits. The petitioners claim that they are actually innocent because their conduct did not violate § 1014, as it was written when they were charged, since § 1014 did not criminalize filing false reports with the FSA. The petitioners raise a purely legal argument concerning an issue of statutory interpretation. The petitioners do not present any new evidence to show their “factual innocence.” They have failed, therefore, to present a colorable claim of actual innocence. D. Coram Nobis While this appeal was pending, eight of the petitioners completed their sentences and they argue that they are now entitled to coram nobis relief. This issue was not raised in the district court because the petitioners were in custody for purposes of § 2255 at the time they filed their habeas petitions. In the interest of judicial economy, we will address the coram nobis claim on appeal to avoid the futility of requiring the petitioners to file subsequent writs of error coram nobis in the district court. “Pursuant to the All Writs Act, federal courts have the authority to grant writs that were traditionally available at common law.” United States v. Sawyer, 239 F.3d 31, 37 (1st Cir.2001) (citing 28 U.S.C. § 1651). “A writ of error coram nobis is a common-law writ through which a rendering court, subject to certain conditions, may correct its own judgment on the basis of some patent error affecting the validity or regularity of that judgment.” Trenkler v. United States, 536 F.3d 85, 90, n. 2 (1st Cir.2008). It is “ordinarily available only to a criminal defendant who is no longer in custody.” Id. at 98. To obtain relief under a writ of error coram nobis, the “petitioner must 1) explain her failure to seek relief from judgment earlier, 2) demonstrate continuing collateral consequences from the conviction, and 3) prove that the error is fundamental to the validity of the judgment.” Sawyer, 239 F.3d at 38. As to the first requirement, it has" }, { "docid": "23222753", "title": "", "text": "to prove that Sawyer gave gratuities to public officials for specific official acts. Noting that the government had not even alleged a link between the gratuities and identifiable, specific official acts, the court ruled that Sawyer was prosecuted “for an act that the law does not make criminal,” and that his conviction “was a legal error of fundamental proportion,” to be redressed by the issuance of a writ of coram nobis. We conclude that the information to which Sawyer pled guilty did not require proof that he violated the Massachusetts gratuity statute. Moreover, there was sufficient evidence to prove Sawyer’s guilt of honest services mail fraud apart from proof that he violated any state law. There was no fundamental error in his plea of guilty. The writ should not have issued. We reverse the judgment of the district court. I. This appeal comes to us following a long history. We recount only those facts that are relevant to our analysis here, and refer to our decisions in United States v. Sawyer, 85 F.3d 713, 720-22 (1st Cir.1996), and United States v. Woodward, 149 F.3d 46, 51-54 (1st Cir.1998), for a more detailed recitation of the circumstances giving rise to Sawyer’s prosecution. Sawyer was employed by the John Hancock Mutual Life Insurance Company (“Hancock”) as a lobbyist in its Governmental Relations Department. As part of his responsibilities, he tracked the progress of pending legislation in the Massachusetts legislature. He also lobbied legislators, particularly members of the Legislature’s Joint Insurance Committee, to adopt positions favorable to Hancock’s interests in the insurance industry. In order to cultivate goodwill with these individuals, Sawyer paid for numerous meals, rounds of golf, and other entertainment on their behalf. Sawyer treated these activities as business expenses and submitted monthly expense vouchers to Hancock’s accounting department for reimbursement. Sawyer and a group of legislators trav-elled to Puerto Rico in December 1992 for a legislative conference, and Hancock reimbursed Sawyer approximately $4,000 for entertainment expenses incurred during that trip. In April, 1993, the Boston Globe began an investigation of Sawyer’s expenditures in Puerto Rico, and the Globe’s inquiries to" }, { "docid": "3495041", "title": "", "text": "issue “only under circumstances compelling such action to achieve justice.” 346 U.S. at 511, 74 S.Ct. 247 (emphasis supplied). Consequently, it is not enough for a coram nobis petitioner to show that he can satisfy the elements of the tripartite test: he must also show that justice demands the extraordinary balm of coram nobis relief. See Hager, 993 F.2d at 5 (explaining that courts will use the writ of error coram nobis “to set aside a criminal judgment only under circumstances compelling such action to achieve justice” (internal quotation marks omitted)); see also Barrett, 178 F.3d at 56 n. 20; Foont v. United States, 93 F.3d 76, 79 (2d Cir.1996). B. The Merits. Against this backdrop we turn to the merits. The court below rested its denial of the writ on a finding that the petitioner failed to show sufficient continuing collateral consequences stemming from his conviction. See George, 824 F.Supp.2d at 219-21, 2011 WL 2632321, at *2-3. The petitioner’s most aggressive attack on this finding is that the continuing collateral consequences requirement is not a requirement at all. In his view, the insistence on such a showing results from a misreading of the Supreme Court’s opinion in Morgan. He insists that we should find the stain of a felony conviction itself sufficient to supplant any need for a further showing of continuing collateral consequences. It is settled law in this circuit that the continuing collateral consequences requirement is part of the analytic framework that pertains in coram nobis cases. See, e.g., Sawyer, 239 F.3d at 38; Hager, 993 F.2d at 5. Although we have not explicitly set out what comprises a continuing collateral consequence, we have clearly indicated that a conviction alone is not enough. See Hager, 993 F.2d at 5. The petitioner’s invitation that we scuttle this requirement runs contrary to the well-settled tenet that newly constituted panels in a multi-panel circuit are, with isthmian exceptions not pertinent here, bound by prior on-point circuit precedent. See San Juan Cable LLC v. P.R. Tel. Co., 612 F.3d 25, 33 (1st Cir.2010); United States v. Wogan, 938 F.2d 1446, 1449" }, { "docid": "23222758", "title": "", "text": "agreement where a man is allowed to plea[d] to one count of a criminal information that charges that he mailed one mailing in furtherance of the fraud in the amount of about a $183 [sic]. My question is, does this result justify the long ordeal that this defendant has undergone? I don’t think so. Despite this uneasiness with the government’s decision to prosecute Sawyer, Judge Harrington accepted his plea, sentenced him to one year of probation, and ordered that he pay a fine and a special assessment. In July, 1999, nearly two years after Sawyer completed his probation, and paid the monies assessed against him, he petitioned the district court for a writ of error coram nobis on the basis of the Supreme Court’s Sun-Diamond decision. This petition was brought before Judge Harrington. As noted, Judge Harrington granted the writ, vacated his plea, and ordered the expungement of his record, thereby prompting this appeal by the government. We review de novo the court’s legal conclusions in granting the writ, see United States v. Camacho-Bordes, 94 F.3d 1168, 1173 (8th Cir.1996); we review its findings of fact for clear error, see Blanton v. United States, 94 F.3d 227, 230 (6th Cir.1996). II. In reaching our decision in this case, we do not have to rule on the government’s argument that coram nobis relief is unavailable to correct fundamental errors of law. Nevertheless, we provide some back ground on the writ to provide the context for our fundamental error of law analysis. Pursuant to the All Writs Act, federal courts have the authority to grant writs that were traditionally available at common law. See 28 U.S.C. § 1651. The writ of error coram nobis originated in the sixteenth century as a means to allow a trial court to correct its own mistakes of fact. See LaFave, Israel & King, Criminal Procedure, § 28.1(c) (2d ed.1991). Before coram nobis emerged, trial courts did not have the authority to correct their own errors, and appellate courts could consider only alleged mistakes of law. See id. Accordingly, coram nobis originally was developed to fill this" }, { "docid": "23222797", "title": "", "text": "a violation of state law, there was sufficient evidence to support Sawyer’s conviction for honest services mail fraud. However, in Sawyer, recognizing that “prosecutions on facts like these have not generally been brought,” we expressed our concern about “the close relationship between lobbying activities that are lawful” under federal law, and “slightly more extreme versions of such conduct that can constitute federal violations.” Sawyer, 85 F.3d at 741. We cautioned further that “every transgression of governmental obligations” should not be turned into a federal felony. Id. at 728. Judge Harrington has spoken forcefully to this point. Therefore, we wish to be clear in this ease that we hold only, for the purpose of determining whether there was a fundamental legal error in his conviction, that there was an adequate factual basis for Sawyer’s plea. Accordingly, Sawyer was not entitled to a writ of error coram nobis, assuming its availability for relief from such errors. Judgment vacated. . In March 1994, Hancock entered into a civil settlement with the United States Attorney's Office, pursuant to which it paid a fine of approximately $1,000,000 and agreed to cooperate fully with the investigation. . The Travel Act proscribes travel in interstate commerce “with intent to ... promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on, of any unlawful activity.” 18 U.S.C. § 1952(a). The statute defines “unlawful activity” as, inter alia, \"bribery ... in violation of the laws of the State in which committed or of the United States.” 18 U.S.C. § 1952(b). The government did not renew its prosecution of Sawyer under the Travel Act after we reversed his convictions following his first appeal to this Court. .More specifically, the jury convicted Sawyer of 15 counts of mail fraud, 9 counts of wire fraud, 8 counts of interstate travel to commit bribery, and 1 count of conspiracy. The jury acquitted him of two additional counts of mail fraud. . In Latin, \"coram nobis” means “before us.” Originally, the petition was submitted in the court of the King’s Bench, or \"before us” in the sense of being before" }, { "docid": "3495031", "title": "", "text": "the Board permanently revoked the petitioner’s pension and authorized the institution of proceedings to recoup benefits paid in excess of the petitioner’s aggregate contributions to the retirement system. In 2010, the Supreme Court truncated the reach of the statute proscribing honest-services fraud. See Skilling v. United States, — U.S. -, 130 S.Ct. 2896, 2928-34, 177 L.Ed.2d 619 (2010). The Court held that the “intangible right of honest services,” set out in 18 U.S.C. § 1346, would be unconstitutionally vague unless it was limited to schemes to defraud that involve bribes or kickbacks. Id. at 2933-34. Because the government had failed to show that Skilling had engaged in conduct involving bribery or kickbacks, the Court determined that he “did not commit honest-services fraud.” Id. at 2934. As said, the petitioner had pleaded guilty to an information that charged conspiracy to commit honest-services wire fraud. The information did not contain any mention of bribes or kickbacks. The petitioner seized on the Skilling decision and filed his second petition for a writ of error coram nobis. In this petition, he insisted that, under Skilling, there was a fundamental error in his conviction. The district court denied the petition. United States v. George, 824 F.Supp.2d 217, 221, No. 95-10355, 2011 WL 2632321, at *4 (D.Mass. June 30, 2011). It analyzed the petitioner’s claim through the prism of a tripartite test requiring a petitioner to “1) explain h[is] failure to seek relief from judgment earlier, 2) demonstrate continu ing collateral consequences from the conviction, and 3) prove that the error is fundamental to the validity of the judgment.” United States v. Sawyer, 239 F.3d 31, 38 (1st Cir.2001). The court found the timeliness requirement satisfied and agreed with the petitioner that, in light of Skilling, a fundamental error had occurred. See George, 824 F.Supp.2d at 819-20, 2011 WL 2632321, at *2. Nevertheless, the court determined that the cessation of the petitioner’s retirement benefits did not constitute a continuing collateral consequence sufficient to justify the extraordinary remedy sought. Id. at 220, 2011 WL 2632321 at *3 (citing United States v. Craig, 907 F.2d 653, 660 (7th" }, { "docid": "3495043", "title": "", "text": "(1st Cir.1991). We therefore decline the petitioner’s invitation. The petitioner’s next argument is that the loss of his monthly pension benefits should be considered a continuing collateral consequence. We need not grapple with this argument. Even assuming arguendo that the continuing collateral consequences requirement has been satisfied, he nonetheless has failed to persuade us that the circumstances of his case demand coram nobis relief. We elaborate below. At the outset, we pause to clarify the standard of review. In coram nobis cases, we afford de novo review to the district court’s legal conclusions and dear-error review to its findings of fact. Sawyer, 239 F.3d at 36. The court below did not conduct an evidentiary hearing and denied the writ as a matter of law. Thus, our review here is plenary. In this court, the government does not challenge the district court’s assumption that a fundamental error occurred. This tacit concession poses no barrier to our full consideration of this issue. See United States v. Borrero-Acevedo, 533 F.3d 11, 15 n. 3 (1st Cir.2008) (explaining that “[t]his court is not bound by [the government’s] concessions” in a criminal case). Our inquiry into the fundamental error requirement therefore reduces to whether the petitioner has demonstrated “an error of ‘the most fundamental character.’ ” Hager, 993 F.2d at 5 (quoting Morgan, 346 U.S. at 512, 74 S.Ct. 247). The petitioner’s conviction resulted from a guilty plea. Undeniable advantages, such as limiting exposure to punishment, flowed from this decision. The flip side is that (with limited exceptions not applicable here) the unconditional guilty plea waived virtually all objections and defenses for purposes of direct appeal. See United States v. González-Mercado, 402 F.3d 294, 298 (1st Cir.2005); United States v. González, 311 F.3d 440, 442 (1st Cir.2002). The petitioner could have challenged the legal definition of honest-services fraud then and there but waived that right by opting instead to enter into a plea bargain. This decision alone counts against finding an error of the most fundamental character. Cf. Osser, 864 F.2d at 1060-62 (stating that the appellant could not raise in his coram nobis petition" }, { "docid": "3495042", "title": "", "text": "a requirement at all. In his view, the insistence on such a showing results from a misreading of the Supreme Court’s opinion in Morgan. He insists that we should find the stain of a felony conviction itself sufficient to supplant any need for a further showing of continuing collateral consequences. It is settled law in this circuit that the continuing collateral consequences requirement is part of the analytic framework that pertains in coram nobis cases. See, e.g., Sawyer, 239 F.3d at 38; Hager, 993 F.2d at 5. Although we have not explicitly set out what comprises a continuing collateral consequence, we have clearly indicated that a conviction alone is not enough. See Hager, 993 F.2d at 5. The petitioner’s invitation that we scuttle this requirement runs contrary to the well-settled tenet that newly constituted panels in a multi-panel circuit are, with isthmian exceptions not pertinent here, bound by prior on-point circuit precedent. See San Juan Cable LLC v. P.R. Tel. Co., 612 F.3d 25, 33 (1st Cir.2010); United States v. Wogan, 938 F.2d 1446, 1449 (1st Cir.1991). We therefore decline the petitioner’s invitation. The petitioner’s next argument is that the loss of his monthly pension benefits should be considered a continuing collateral consequence. We need not grapple with this argument. Even assuming arguendo that the continuing collateral consequences requirement has been satisfied, he nonetheless has failed to persuade us that the circumstances of his case demand coram nobis relief. We elaborate below. At the outset, we pause to clarify the standard of review. In coram nobis cases, we afford de novo review to the district court’s legal conclusions and dear-error review to its findings of fact. Sawyer, 239 F.3d at 36. The court below did not conduct an evidentiary hearing and denied the writ as a matter of law. Thus, our review here is plenary. In this court, the government does not challenge the district court’s assumption that a fundamental error occurred. This tacit concession poses no barrier to our full consideration of this issue. See United States v. Borrero-Acevedo, 533 F.3d 11, 15 n. 3 (1st Cir.2008) (explaining that" }, { "docid": "23222752", "title": "", "text": "LIPEZ, Circuit Judge. The United States appeals from a judgment of the district court granting F. William Sawyer a writ of error coram nobis, vacating his guilty plea to a one-count information charging him with honest services mail fraud in violation of 18 U.S.C. §§ 1341 and 1346, and ordering that his record be expunged. The district court based its decision on a recent opinion of the Supreme Court, United States v. Sun-Diamond Growers of California, 526 U.S. 398, 119 S.Ct. 1402, 143 L.Ed.2d 576 (1999), construing the federal gratuities law, 18 U.S.C. § 201, to require that the prosecution prove a link between the act of a public official and the gratuity received by the official for or because of that act. Sawyer contended, and the district court agreed, that the information to which he pled guilty required proof of a violation of the similarly worded Massachusetts gratuity law, chapter 268A, section three. Concluding that this state gratuity law should be interpreted in light of Sun-Diamond, the district court found that the government had to prove that Sawyer gave gratuities to public officials for specific official acts. Noting that the government had not even alleged a link between the gratuities and identifiable, specific official acts, the court ruled that Sawyer was prosecuted “for an act that the law does not make criminal,” and that his conviction “was a legal error of fundamental proportion,” to be redressed by the issuance of a writ of coram nobis. We conclude that the information to which Sawyer pled guilty did not require proof that he violated the Massachusetts gratuity statute. Moreover, there was sufficient evidence to prove Sawyer’s guilt of honest services mail fraud apart from proof that he violated any state law. There was no fundamental error in his plea of guilty. The writ should not have issued. We reverse the judgment of the district court. I. This appeal comes to us following a long history. We recount only those facts that are relevant to our analysis here, and refer to our decisions in United States v. Sawyer, 85 F.3d 713, 720-22" }, { "docid": "3495032", "title": "", "text": "petition, he insisted that, under Skilling, there was a fundamental error in his conviction. The district court denied the petition. United States v. George, 824 F.Supp.2d 217, 221, No. 95-10355, 2011 WL 2632321, at *4 (D.Mass. June 30, 2011). It analyzed the petitioner’s claim through the prism of a tripartite test requiring a petitioner to “1) explain h[is] failure to seek relief from judgment earlier, 2) demonstrate continu ing collateral consequences from the conviction, and 3) prove that the error is fundamental to the validity of the judgment.” United States v. Sawyer, 239 F.3d 31, 38 (1st Cir.2001). The court found the timeliness requirement satisfied and agreed with the petitioner that, in light of Skilling, a fundamental error had occurred. See George, 824 F.Supp.2d at 819-20, 2011 WL 2632321, at *2. Nevertheless, the court determined that the cessation of the petitioner’s retirement benefits did not constitute a continuing collateral consequence sufficient to justify the extraordinary remedy sought. Id. at 220, 2011 WL 2632321 at *3 (citing United States v. Craig, 907 F.2d 653, 660 (7th Cir.1990)). Consequently, it denied coram nobis relief. This timely appeal followed. II. ANALYSIS This appeal requires us to revisit the tripartite test that we have used in the past for coram nobis cases. We start by explicating the applicable law and then proceed to the merits. ■ A. The Legal Landscape. The writ of error coram nobis is of ancient lineage, tracing its roots to sixteenth century English common law. See Sawyer, 239 F.3d at 37. Its original purpose was to promote respect for the judicial process by enabling a court to correct technical errors in a final judgment previously rendered. See United States v. Denedo, 556 U.S. 904, 129 S.Ct. 2213, 2220, 173 L.Ed.2d 1235 (2009). In the United States, the office of the writ has expanded well beyond the reopening of a final judgment to correct technical errors. See id. In federal criminal cases, the writ is now available as a remedy of last resort for the correction of fundamental errors of fact or law. Trenkler v. United States, 536 F.3d 85, 93" }, { "docid": "23222785", "title": "", "text": "even if Judge Harrington relied on his understanding that the government had undertaken to prove a violation of state law when he issued the writ of coram nobis, that reliance could not change the reality of the basis for the government’s prosecution. IV. Because a writ of error coram nobis is an “extraordinary remedy,” appropriately issued “only under circumstances compelling such action to achieve justice,” see Morgan, 346 U.S. at 511, 74 S.Ct. 247, we address again an issue addressed in Sawyer — whether sufficient evidence existed to support Sawyer’s conviction for honest services mail fraud apart from a conclusion that he violated the state gratuities law. If the evidence would have been otherwise sufficient to convict him, Sun-Diamond’s effect on the interpretation of Massachusetts state law does not render his conviction a miscarriage of justice even if the government had assumed the burden of proving a violation of state law. In issuing the writ, the district court found that Sawyer’s prosecution was “for an act that the law does not make criminal” in light of Sun-Diamond. See Sawyer, 74 F.Supp.2d 88, 106 (D.Mass.1999). Because we find that sufficient evidence existed to convict Sawyer absent a showing that he violated state law, this characterization by the district court was in error. Accordingly, we again conclude that his conviction was not based on a fundamental error of law. A. Sawyer’s Objections to the Prep-leading Report We must first address Sawyer’s argument that his objections to the PPR prior to the plea hearing prevented the government from relying on that document to establish the requisite factual basis for the plea. In the addendum to the PPR, Sawyer stated the following objection: Defendant contends that the one count information, and any other conduct specifically related to the underlying offense, provides all of the necessary and appropriate information for determining the “relevant conduct” and requisite base offense level under §' 2F1.1. Specifically, defendant contends that the only “relevant conduct” for purposes of the Pre-sentence Report and the court’s sentencing is an expenditure he made over the 1990, Fourth of July weekend. Sawyer cites Federal" }, { "docid": "23222796", "title": "", "text": "lobbying laws, by pointing to evidence of newspaper articles and binder notebooks he maintained on such legal obligations, we held, “A jury rationally could infer that Sawyer was cognizant of his ethical obligations in lobbying, knew of the public awareness of lobbying activity, and repeatedly gave hidden unlawful gifts and gratuities until he was publicly exposed.” Sawyer, 85 F.3d at 733. Noting that this evidence is “not overwhelming,” we nonetheless concluded that “the combined evidence is sufficient to permit a reasonable jury to find, beyond a reasonable doubt, that Sawyer intended to deceive the public about his unlawful expenditures on legislators.” Id. at 734. See also Woodward, 149 F.3d at 57 (describing, on similar facts, “the suggestions of a cover-up” regarding Sawyer’s expenditures on Woodward and other legislators). V. Because the information to which Sawyer pled guilty did not require proof of a violation of the Massachusetts gratuity statute, Sun-Diamond's interpretation of the analogous federal gratuity statute did not undermine the legality of Sawyer’s conviction for honest services mail fraud. Moreover, independently of proof of a violation of state law, there was sufficient evidence to support Sawyer’s conviction for honest services mail fraud. However, in Sawyer, recognizing that “prosecutions on facts like these have not generally been brought,” we expressed our concern about “the close relationship between lobbying activities that are lawful” under federal law, and “slightly more extreme versions of such conduct that can constitute federal violations.” Sawyer, 85 F.3d at 741. We cautioned further that “every transgression of governmental obligations” should not be turned into a federal felony. Id. at 728. Judge Harrington has spoken forcefully to this point. Therefore, we wish to be clear in this ease that we hold only, for the purpose of determining whether there was a fundamental legal error in his conviction, that there was an adequate factual basis for Sawyer’s plea. Accordingly, Sawyer was not entitled to a writ of error coram nobis, assuming its availability for relief from such errors. Judgment vacated. . In March 1994, Hancock entered into a civil settlement with the United States Attorney's Office, pursuant to which" }, { "docid": "12014700", "title": "", "text": "petitioners to file subsequent writs of error coram nobis in the district court. “Pursuant to the All Writs Act, federal courts have the authority to grant writs that were traditionally available at common law.” United States v. Sawyer, 239 F.3d 31, 37 (1st Cir.2001) (citing 28 U.S.C. § 1651). “A writ of error coram nobis is a common-law writ through which a rendering court, subject to certain conditions, may correct its own judgment on the basis of some patent error affecting the validity or regularity of that judgment.” Trenkler v. United States, 536 F.3d 85, 90, n. 2 (1st Cir.2008). It is “ordinarily available only to a criminal defendant who is no longer in custody.” Id. at 98. To obtain relief under a writ of error coram nobis, the “petitioner must 1) explain her failure to seek relief from judgment earlier, 2) demonstrate continuing collateral consequences from the conviction, and 3) prove that the error is fundamental to the validity of the judgment.” Sawyer, 239 F.3d at 38. As to the first requirement, it has been recognized that “[a] petitioner may not resort to co-ram nobis merely because he has failed to meet the AEDPA’s gatekeeping requirements.” Matus-Leva v. United States, 287 F.3d 758, 761 (9th Cir.2002); see also Trenkler, 536 F.3d at 98-99 (holding that petitioner’s inability to bring § 2255 petition due to “his own tardiness and AED-PA’s gatekeeping provisions” did not entitle him to seek refuge in writ of coram nobis). “To rule otherwise would reduce AEDPA’s gatekeeping provisions to a ‘meaningless gesture.’ ” Trenkler, 536 F.3d at 99 (quoting United States v. Barrett, 178 F.3d 34, 50 (1st Cir.1999)). We hold that the petitioners fail to meet the first requirement of the coram nobis standard, and we therefore express no opinion as to the second and third requirements. As discussed above, the petitioners failed to demonstrate that their § 2255 petitions could not have been brought within the one-year limitations period. They may not now resort to coram nobis relief to avoid § 2255’s deadlines. On a final note, to the extent that the petitioners rely" }, { "docid": "23222763", "title": "", "text": "of coram nobis] would be necessary or appropriate.” Id. (quoting United States v. Smith, 331 U.S. 469, 475 n. 4, 67 S.Ct. 1330, 91 L.Ed. 1610 (1947)). Notwithstanding .these comments in Carlisle, some federal courts have continued to assume that writs of coram nobis may correct errors of law as well as errors of fact. See, e.g., United States v. Tucor Iran, Inc., 189 F.3d 834, 836 n. 1 (9th Cir.1999); Martinez v. United States, 90 F.Supp.2d 1072, 1075 (D.Haw.2000) (stating that coram nobis allows a court to vacate a judgment for “egregious legal errors”) (quotation omitted); United States v. Rankin, 1 F.Supp.2d 445, 453 (E.D.Pa.1998) (noting that coram nobis has been used to correct errors of law in criminal cases). But see Tavares v. Massachusetts, 59 F.Supp.2d 152, 154 (D.Mass.1999) (“The writ is not available in federal courts for errors of law”). Sawyer contends that the writ is proper to redress legal error, while the government contends it may be granted to vacate a conviction based on mistakes of fact only. The district court agreed with Sawyer on this point, ruling that the writ is available to correct legal error. In deciding whether to grant the writ, courts have used a, three-part test: a petitioner must 1) explain her failure to seek relief from judgment earlier, 2) demonstrate continuing collateral consequences from the conviction, and 3) prove that the error is fundamental to the validity of the judgment. See Hager v. United States, 993 F.2d 4, 5 (1st Cir.1993); see also United States v. Mandanici, 205 F.3d 519, 524 (2d Cir.2000); United States v. Barrett, 178 F.3d 34, 56 n. 20 (1st Cir.1999). We assume, without deciding, that a writ of eoram nobis is available to vacate a criminal conviction premised upon a fundamental error of law. We also express no opinion on whether Sawyer could meet the first and second prongs of the standard for issuance. However, we conclude that Sawyer was not entitled to the writ because there was no fundamental legal error in his conviction. III. A. The Federal Gratuities and Honest Services Mail Fraud Statutes" } ]

[ { "docid": "21606977", "title": "", "text": "PER CURIAM: Deon Solomon pled guilty to one count of possession of at least five grams of a substance containing cocaine base with intent to distribute in violation of 21 U.S.C. § 841(a)(1). The district court was required by 21 U.S.C. § 841(b)(1)(B)(iii) to sentence Solomon to imprisonment for not less than five years, followed by a term of supervised release for not less than four years. The district court imposed the minimum sentence permitted by the statute. Solomon argues on appeal that the statutory minimum sentence violates the fifth and eighth amendments. We reject these arguments under the authority of United States v. Holmes, 838 F.2d 1175 (11th Cir.1988). In Holmes, a panel of this court rejected identical constitutional challenges to 21 U.S.C. § 841(b)(1)(B)(ii), which requires a term of imprisonment of not less than five years for the possession with intent to distribute of 500 grams or more of cocaine. As to the eighth amendment claim, the Holmes panel concluded that the sentences authorized by section 841(b)(1)(B)(ii) were not disproportionate to the gravity of the offense. Although this case involves a conviction for possession of cocaine base rather than cocaine, we do not find this case distinguishable from Holmes in any relevant fashion. We therefore hold that a prison term of five years followed by four years of supervised release for the possession with intent to distribute of at least five grams of a substance containing cocaine base does not violate the eighth amendment. Nor does the statutory minimum violate the fifth amendment guarantees of due process and equal protection. Heightened scrutiny is inapplicable because the statute does not discriminate on the basis of a suspect classification or the exercise of a fundamental right. See United States v. Holmes, 838 F.2d at 1177. Congress could rationally have concluded that the possession with intent to distribute of a fairly large quantity of cocaine base, a dangerous controlled substance, posed a particularly great risk to the welfare of society warranting heavy sentences, regardless of the individual offender’s particular position in a drug operation’s hierarchy. Furthermore, as the Holmes panel explained," } ]

[ { "docid": "18872839", "title": "", "text": "2829, 100 L.Ed.2d 930 (1988), reviewing 21 U.S.C. § 841(b)(1), we determined that rational basis requirements were met because these sentencing statutes serve legitimate government interests. Accordingly, Byse’s equal protection claim relating to these two sentencing statutes is meritless. We fur ther hold that 21 U.S.C. § 841(b)(1) and U.S.S.G. § 2Dl.l(c) do not evidence discriminatory purpose in their respective enactments, and that they therefore are not amenable to strict scrutiny. III. CONCLUSION On appeal, Byse has raised a Batson claim and sentencing issues in which he contends that he should have received a downward adjustment for his minimal role in an attempted crack cocaine sale, and that the more severe sentencing penalties for crack cocaine as opposed to powder cocaine are unconstitutional because they evidence racially discriminatory purpose. The district court found all of these claims to be invalid. For the reasons discussed herein, we AFFIRM. . Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). .One of the black jurors struck by the government was a teacher, who had a twenty-three-year-old, student son and a daughter employed in drug counseling. At the time of his trial, Byse was weeks away from his twenty-third birthday, and he claimed to be a student. The court determined that the strike was valid and that there was no racial bias. The government explained that it struck the second black juror because her responses to preliminary questions indicated that she was uneducated, unemployed and very inarticulate. Apparently, the juror was employed. The court, however, stated that it also had determined from the juror's responses that she would not make an effective juror and found that race was not a factor. The third juror in question was struck by the government because she claimed to be a minister of the word of God and responded affirmatively when the panel was asked if any member held beliefs that would prohibit or make it difficult to serve on a jury in a criminal case. Although this juror, whom the government and the court thought to be Indian, later explained that she could" }, { "docid": "18872838", "title": "", "text": "by Congress or the Sentencing Commission in establishing harsher sentencing penalties for base or crack cocaine than for powder cocaine, his claims of disparate impact must be analyzed under rational basis review. See United States v. Easter, 981 F.2d 1549, 1559 (10th Cir.1992) (because defendant-appellant presented no evidence that Congress or the Sentencing Commission adopted more severe cocaine base penalties to further a racially discriminatory purpose, “the cocaine base sentencing scheme is subject only to rational basis review”), cert. denied, - U.S. -, 113 S.Ct. 2448, 124 L.Ed.2d 665 (1993). “The' general rule is that legislation is presumed to be valid and will be sustained if the classification drawn by the. statute is rationally related to a legitimate [government] interest.” City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 440, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313 (1985). In King, analyzing U.S.S.G. § 2D1.1(c), and in United States v. Solomon, 848 F.2d 156 (11th Cir.1988) (per curiam) and United States v. Holmes, 838 F.2d 1175 (11th Cir.), cert. denied, 486 U.S. 1058, 108 S.Ct. 2829, 100 L.Ed.2d 930 (1988), reviewing 21 U.S.C. § 841(b)(1), we determined that rational basis requirements were met because these sentencing statutes serve legitimate government interests. Accordingly, Byse’s equal protection claim relating to these two sentencing statutes is meritless. We fur ther hold that 21 U.S.C. § 841(b)(1) and U.S.S.G. § 2Dl.l(c) do not evidence discriminatory purpose in their respective enactments, and that they therefore are not amenable to strict scrutiny. III. CONCLUSION On appeal, Byse has raised a Batson claim and sentencing issues in which he contends that he should have received a downward adjustment for his minimal role in an attempted crack cocaine sale, and that the more severe sentencing penalties for crack cocaine as opposed to powder cocaine are unconstitutional because they evidence racially discriminatory purpose. The district court found all of these claims to be invalid. For the reasons discussed herein, we AFFIRM. . Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). .One of the black jurors struck by the government was a teacher, who had" }, { "docid": "9551902", "title": "", "text": "as they are more likely to possess crack than other racial groups. Our review of federal constitutional questions is de novo. United States v. Buckner, 894 F.2d 975, 978 (8th Cir.1990). For us to apply a strict scrutiny standard of review, Mr. Angulo-Lopez would have to allege more than a disproportionate impact, he must show a discriminatory purpose. See United States v. Galloway, 951 F.2d 64, 65 (5th Cir.1992). “ ‘[E]ven if a neutral law has a disproportionately adverse effect upon a racial minority, it is unconstitutional under the Equal Protection Clause only if that impact can be traced to a discriminatory purpose.’ ” United States v. Easter, 981 F.2d 1549, 1559 (10th Cir.1992) (quoting Personnel Adm’r v. Feeney, 442 U.S. 256, 272, 99 S.Ct. 2282, 2293, 60 L.Ed.2d 870 (1979)), cert. denied, — U.S. -, 113 S.Ct. 2448, 124 L.Ed.2d 665 (1993). Because the record lacks any evidence indicating Congress possessed discriminatory motives in creating the sentencing distinction between powdered cocaine and crack, and other courts, upon examining the legislative history have discovered no race-based animus, we recognize the discrepancy was created without any racial bias. See United States v. Frazier, 981 F.2d 92, 95 (3d Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 1661, 123 L.Ed.2d 279 (1993); Galloway, 951 F.2d at 65-66. Therefore, the sentencing disparity is subject only to rational basis review. Frazier, 981 F.2d at 95. This Circuit has repeatedly upheld the validity of the statutory distinction in the sentencing levels between powdered cocaine and cocaine base as rational. See Easter, 981 F.2d at 1559; United States v. Robinson, 978 F.2d 1554, 1565 (10th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 1855, 123 L.Ed.2d 478 (1993); United States v. Turner, 928 F.2d 956, 958-60 (10th Cir.), cert. denied, — U.S. -, 112 S.Ct. 230, 116 L.Ed.2d 187 (1991). Mr. Angulo-Lopez asks us to distinguish his claim from the existing Tenth Circuit cases since he substantiated his claim of disparate impact with statistical evidence, whereas the defendants in the other cases did not. “Numerical impact, of course, may not alone support a finding of invidious" }, { "docid": "3194213", "title": "", "text": "at issue is discriminatory. See Watkins v. United States Army, 847 F.2d 1329, 1336 (9th Cir.1988), op’n vacated on other gds., 875 F.2d 699 (9th Cir.1989). Defendants do not dispute that the homosexual exclusion policy discriminates against persons on the basis of their sexual orientation. See id. at 1337 (concluding that the Army’s similar homosexual exclusion policy was discriminatory on its face). 1. Standard of review. Given that defendants’ policy is discriminatory, the court’s next task is to ascertain what standard of equal protection review should apply. See id. at 1345. a. Applicability of strict scrutiny. Plaintiff argues that the homosexual exclusion policy should be subject to strict scrutiny, while defendants contend that the policy is subject only to rational basis review. If strict scrutiny is applied, the policy will be struck down unless the classification drawn by the policy is “suitably tailored to serve a compelling [government] interest.” See City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 440, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313 (1985). If, on the other hand, the rational basis standard is applied, the policy is presumed constitutional and will be upheld so long as the classification drawn is rationally related to a legitimate government interest. See id. Strict scrutiny is applied when a legislative classification rests on an inherently suspect characteristic, such as race, religion or alienage, or “trammels fundamental personal rights.” City of New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 2516, 49 L.Ed.2d 511 (1976). In High Tech Gays v. Defense Indus. Security Clearance Office, 895 F.2d 563 (9th Cir.1990), the Ninth Circuit squarely addressed the question whether laws and policies classifying individuals based on their sexual orientation are subject to strict scrutiny. The High Tech Gays court first analyzed whether homosexuality is an inherently suspect characteristic (i.e. whether homosexuals are a “suspect class”). The court stated that to be considered a suspect class, “homosexuals must 1) have suffered a history of discrimination; 2) exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group; and 3) show that they are a minority or politically" }, { "docid": "18872831", "title": "", "text": "counsel appeared to concede the constitutionality of the implicated sentencing statutes because he could not distinguish Byse’s case from King. Because Byse argued a different constitutional violation in the district court and in his appellate brief than that presented in King, we address his contention that Congress and the Sentencing Commission acted with a racially discriminatory purpose in distinguishing between the sentencing penalties for base or crack cocaine and powder cocaine. See Lopez-Nieves v. United States, 917 F.2d 645, 647 (1st Cir.1990) (although an apparent concession of a contention was made at oral argument, the circuit court of appeals nevertheless addressed the issue). In King, the defendant-appellant argued that the disparity in punishments for crimes involving crack cocaine versus powder cocaine violated equal protection because of the discriminatory impact on black persons. We used the rational basis test to analyze his Guidelines penalty for possession of crack cocaine with intent to distribute. Under that test, we determined that lawmakers had a legitimate purpose in providing harsher penalties for possession of crack cocaine because it “is more addictive, more dangerous, and can be sold in smaller quantities than powder cocaine.” King, 972 F.2d at 1260; see United States v. Catchings, 922 F.2d 777, 780 n. 3 (11th Cir.) (per curiam) (“[T]he difference in penalties between crack and other forms of cocaine demonstrated that Congress considered crack to be a more powerful and dangerous drug.”), cert. denied, 499 U.S. 980, 111 S.Ct. 1633, 113 L.Ed.2d 729 (1991). Significantly, we determined that rational basis was the appropriate test because the appellant had “not alleged a discriminatory intent on the part of Congress.” King, 972 F.2d at 1260; see United States v. Stevens, 19 F.3d 93, 96 (2d Cir.1994) (“[Defendant-appellant] does not contend that either Congress or the Federal Sentencing Commission acted with discriminatory intent; accordingly, we will not subject either § 841(b)(1) or § 2D1.1(c) to heightened scrutiny.”); United States v. Watson, 953 F.2d 895, 898 (5th Cir.) (“Even assuming ... [defendant-appellant] could prove his disparate impact theory of race-based cocaine usage, there is no reason to apply any heightened level of scrutiny" }, { "docid": "18872841", "title": "", "text": "not swear an oath but that she could make an affirmation, the court found no racial motivation in the government’s striking her. . The Sentencing Guidelines treat one gram of base or crack cocaine as the equivalent of one hundred grams of powder cocaine for sentencing purposes. U.S.S.G. § 2Dl.l(c) (Drug Quantity Table); see 21 U.S.C. § 841(b)(1) (providing certain mandatory minimum sentences using the same 100-to-l ratio). . Since we find no evidence of a racially discriminatory motive in the government’s exercise of its subject peremptory strikes, we agree with the district court's ruling on the Batson challenges. Because Byse received a mandatory minimum sentence, his counsel acknowledged at oral argument that the request for downward adjustment was moot or would have no practical effect. Additionally, we agree with the district court’s reasoning as to Byse’s participation in the attempted crack cocaine sale. . In addition to his arguments before the district court, Byse argued to our court that strict scrutiny was appropriate: States with few minorities (and Congress) are more likely to capitalize on the \"crack\" problem by attacking and penalizing the minority population.... The Equal Protection Clause prohibits disparate treatment of blacks under the crack statutes because the classification of crack is not precisely tailored to serve a compelling governmental interest.... Therefore, this Court must examine the legitimacy of the statutory distinction between crack and cocaine powder with the most rigid scrutiny. Appellant’s Brief at 16, 17, 18 (footnote omitted). . In addition to determining that the Guidelines punishment for crack cocaine satisfies the rational basis test in King, we have held that the statute requiring a mandatory minimum for possession of cocaine base, 21 U.S.C. § 841(b)(1), does not violate equal protection or due process. United States v. Solomon, 848 F.2d 156, 157 (11th Cir.1988) (per curiam). \"Heightened scrutiny is inapplicable because the statute does not discriminate on the basis of a suspect classification or the exercise of a fundamental right.” Id.; see United States v. Holmes, 838 F.2d 1175, 1177 (11th Cir.) (analyzing 21 U.S.C. § 841(b)(1) relative to whether it is irrational to mandate" }, { "docid": "1198447", "title": "", "text": "strict or heightened scrutiny; accordingly, we will apply the “general rule ... that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest.” City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439-40, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313 (1985). See Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 313, 96 S.Ct. 2562, 2566-67, 49 L.Ed.2d 520 (1976) (holding rational basis standard appropriate for analyzing claim of unconstitutional deprivation of public employment, where no fundamental right or suspect class is concerned); see also United Bldg. & Constr. Trades Council of Camden v. Mayor of Camden, 465 U.S. 208, 219, 104 S.Ct. 1020, 1028, 79 L.Ed.2d 249 (1984) (stating that “there is no fundamental right to government employment for purposes of the Equal Protection Clause”). The plaintiffs bear the burden of proof on this issue, and so must show that the requirements imposed by law or regulation “so lack rationality that they constitute a constitutionally impermissible denial of equal protection.” Rogin v. Bensalem Township, 616 F.2d 680, 688 (3d Cir.1980), cert. denied 450 U.S. 1029, 101 S.Ct. 1737, 68 L.Ed.2d 223 (1981). In considering this issue, we bear in mind the Court’s statement that a statute or regulation should not be overturned on equal protection grounds “unless the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the legislature’s actions were irrational.” Vance v. Bradley, 440 U.S. 93, 97, 99 S.Ct. 939, 943, 59 L.Ed.2d 171 (1979). The defendants stress, and the plaintiffs acknowledge, that the public has a legitimate and, indeed, compelling interest in hiring applicants who are qualified for employment as public law enforcement officers. It is this interest that the polygraph requirement is said to serve. The key question we confront here, therefore, is whether the requirement that applicants pass a polygraph test can arguably be said to result in a better-qualified group of new employees. The defendant City departments need not show" }, { "docid": "22116765", "title": "", "text": "F.3d at 613. Appellants do not allege that Ordinances 10932 and 110Ó0 contain “suspect classifications” on the basis of race, alienage, nátional origin, gender, or illegitimacy, nor do they allege that the Ordinances burden “fundamental rights” such as privacy and travel. See City of Cleburne, Texas v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439-42, 105 S.Ct. 3249, 3254-55, 87 L.Ed.2d 313 (1985). Absent such allegations, zoning ordinances should be tested under the “rational-basis” standard. See, e.g., Id. at 439-40, 105 S.Ct. at 3254 (applying rational-basis scrutiny to a zoning ordinance); Executive 100, Inc. v. Martin County, 922 F.2d 1536, 1541 (11th Cir.) (same), cert. denied, 502 U.S. 810, 112 S.Ct. 55, 116 L.Ed.2d 32 (1991); Mackenzie v. City of Rockledge, 920 F.2d 1554, 1559 (11th Cir.1991) (same). The rational-basis standard requires that classifications made by the challenged statutes or ordinances be rationally related to the achievement of some legitimate government purpose. F.C.C. v. Beach Communications, Inc., — U.S. -, -, 113 S.Ct. 2096, 2101, 124 L.Ed.2d 211 (1993); Nordlinger v. Hahn, — U.S. -, -, 112 S.Ct. 2326, 2331-32, 120 L.Ed.2d 1 (1992). The first step in determining whether legislation survives rational-basis scrutiny is identifying a legitimate government purpose — a goal — which the enacting government body could have been pursuing. The actual motivations of the enacting governmental body are entirely irrelevant. Beach Communications, — U.S. at -, -, 113 S.Ct. at 2102, 2103; Panama City Medical Diagnostic Ltd. v. Williams, 13 F.3d 1541, 1546 (11th Cir.), cert. denied, — U.S. -, 115 S.Ct. 93, 130 L.Ed.2d 44 (1994). Moreover, the Equal Protection Clause does not require government decisionmakers to articulate any reason for their actions, Beach Communications, — U.S. at -, 113 S.Ct. at 2102; Nordlinger, — U.S. at -, 112 S.Ct. at 2334, nor does it require any record evidence of a legitimate purpose. Panama City, 13 F.3d at 1546. The second step of rational-basis scrutiny asks whether a rational basis exists for the enacting governmental body to believe that the legislation would further the hypothesized purpose. “The proper inquiry is concerned with the existence of" }, { "docid": "14493526", "title": "", "text": "and therefore must be analyzed under strict scrutiny. 1. Strict Scrutiny The termination provision does not deny prisoners “a reasonably adequate opportunity to present claimed violations of fundamental constitutional rights to the courts.” Lewis v. Casey, 518 U.S. 343, 351, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996) (quoting Bounds v. Smith, 430 U.S. 817, 825, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977)). Rather, it merely restricts the relief that prisoners may obtain from the courts. See Plyler v. Moore, 100 F.3d 365, 373 (4th Cir.1996). The provision therefore does not infringe any identified fundamental right, and is subject to only rational basis review. See Romer v. Evans, 517 U.S. 620, 631-32, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996). 2. Rational Basis Scrutiny The Inmates argue that even if § 3626(b)(2) is not subject to strict scrutiny, it still fails under rational basis review. Specifically, they claim that the provision discriminates against prisoners, and is not rationally related to a legitimate governmental interest. We are not persuaded. While § 3626(b)(2) admittedly singles out certain prisoner rights cases for special treatment, it does so only to advance unquestionably legitimate purposes — to minimize prison micro-management by federal courts and to conserve judicial resources. See Lewis, 518 U.S. at 349,116 S.Ct. 2174 (“[I]t is not the role of courts, but that of the political branches, to shape the institutions of government in such fashion as to comply with the laws and the Constitution.”); see also City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 440-41, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) (explaining that a statute subject to rational basis review will survive an equal protection challenge “if the classification drawn by the statute is rationally related to a legitimate state interest.”). The termination provision therefore satisfies the demands of equal protection. C. The District Court’s Denial of the Inmates’ Motion to Stay The Inmates also argue that the District Court abused its discretion by refusing to stay the tennination order until such time as “the courts of Pennsylvania agree to enforce the [consent decree].” Brief for Appellants at 46. In making" }, { "docid": "22218232", "title": "", "text": "the equal protection of the laws.” U.S. Const. amend. XIV § 1. This is not a command that all persons be treated alike but, rather, “a direction that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313 (1985) (emphasis added). The level of scrutiny applied to ensure that classifications comply with this guarantee differs depending on the nature of the classification. Classifications involving suspect or quasi-suspect class, or impacting certain fundamental constitutional rights, are subject to heightened scrutiny. Id. Other classifications, however, need only be rationally related to a legitimate government goal. See Chapman v. United States, 500 U.S. 453, 465, 111 S.Ct. 1919, 1927-28, 114 L.Ed.2d 524 (1991) (applying rational basis test to classification based on nature of offense). Megan’s Law requires persons who have committed their offense and completed all incarceration, probation and parole by the date the Law was enacted to register only if they were found to be “repetitive and compulsive” at sentencing. The challenged category-“repetitive and compulsive sex offenders”-is not a suspect or quasi-suspect class. See Cleburne, 473 U.S. at 439, 105 S.Ct. at 3253-54 (listing classes receiving heightened scrutiny as race, alienage, national origin, and sex). It also does not implicate a fundamental constitutional right.for which the Supreme Court has granted heightened equal protection scrutiny. See Chapman v. United States, 500 U.S. at 465, 111 S.Ct. at 1927-28 (applying rational basis test to classification based on nature of offense). This classification, therefore, “is subject to the general rule that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest.” Cleburne, 473 U.S. at 440, 105 S.Ct. at 3254 (citing cases). Registration easily satisfies this requirement. Protecting vulnerable individuals from sexual offenses is certainly a legitimate state interest. Requiring registration of con victed sex offenders found to be “repetitive and compulsive,” as opposed to other sex offenders or the rest of the population, is rationally related to that goal. See, e.g., State v." }, { "docid": "18872837", "title": "", "text": "or allowed them to remain in effect to further a racially discriminatory purpose); Galloway, 951 F.2d at 65 (finding no indicia of discriminatory intent in the legislative history of the Anti-Drug Abuse Act of 1986). Section 2D1.1 of the Sentencing Guidelines corresponds with 21 U.S.C. § 841(b)(1). Thurmond, 7 F.3d at 951. As in Galloway, Byse has argued vague statistical evidence and academic.commentary concerning the discriminatory impact of the base or crack cocaine sentencing provisions. Galloway, 951 F.2d at 65; see United States v. Lattimore, 974 F.2d 971, 974-76 (8th Cir.1992) (finding no Congressional discriminatory intent violative of equal protection, percentages at most show disparate impact), cert. denied, — U.S. —, 113 S.Ct. 1819, 123 L.Ed.2d 449 (1993). “Purposeful racial discrimination invokes the strictest scrutiny of adverse differential treatment. Absent such purpose, differential impact is subject only to the test of rationality.” Rogers v. Lodge, 458 U.S. 613, 617 n. 5, 102 S.Ct. 3272, 3275 n. 5, 73 L.Ed.2d 1012 (1982) (emphasis added). Because Byse has failed to produce any evidence whatsoever of discriminatory purpose by Congress or the Sentencing Commission in establishing harsher sentencing penalties for base or crack cocaine than for powder cocaine, his claims of disparate impact must be analyzed under rational basis review. See United States v. Easter, 981 F.2d 1549, 1559 (10th Cir.1992) (because defendant-appellant presented no evidence that Congress or the Sentencing Commission adopted more severe cocaine base penalties to further a racially discriminatory purpose, “the cocaine base sentencing scheme is subject only to rational basis review”), cert. denied, - U.S. -, 113 S.Ct. 2448, 124 L.Ed.2d 665 (1993). “The' general rule is that legislation is presumed to be valid and will be sustained if the classification drawn by the. statute is rationally related to a legitimate [government] interest.” City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 440, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313 (1985). In King, analyzing U.S.S.G. § 2D1.1(c), and in United States v. Solomon, 848 F.2d 156 (11th Cir.1988) (per curiam) and United States v. Holmes, 838 F.2d 1175 (11th Cir.), cert. denied, 486 U.S. 1058, 108 S.Ct." }, { "docid": "17480649", "title": "", "text": "subject the PLRA’s attorney’s fee provision to strict scrutiny. B Instead, we simply ask whether there is a rational basis for the classification. Under this minimal standard, the PLRA certainly passes constitutional muster. As the Supreme Court has made clear, “rational-basis review in equal protection analysis ‘is not a license for courts to judge the wisdom, fairness, or logic of legislative choices.’ ” Heller v. Doe, 509 U.S. 312, 319, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993) (quoting FCC v. Beach Communications, Inc., 508 U.S. 307, 313, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993)). Rather, the “legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest.” Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). In this case, the government’s interest was apparently to curtail frivolous prisoners’ suits and to minimize the costs — which are borne by taxpayers- — associated with those suits. See Zehner v. Trigg, 133 F.3d 459, 463 (7th Cir.1997); McGann v. Commissioner of Social Sec. Admin., 96 F.3d 28, 31 (2d Cir.1996). The prisoners do not deny that this interest is legitimate. They contend only that the interest is not rationally related to the distinction drawn between prisoners and all other litigants bringing suits against the state. However, it is certainly conceivable that, because of significant potential gains and low opportunity costs, prisoners generally file a disproportionate number of frivolous suits as compared to the population as a whole. Such speculation is sufficient for a rational-basis examination; there is no need for evidence or empirical data. See Beach Communications, 508 U.S. at 315, 113 S.Ct. 2096. Because the burden is on the prisoners “to negative every conceivable basis which might support” the legislation, Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364, 93 S.Ct. 1001, 35 L.Ed.2d 351 (1973) (internal quotation marks omitted), and because they have not done so, their equal protection claim fails. rv For the foregoing reasons, we affirm in part, reverse in part and remand for further" }, { "docid": "18872830", "title": "", "text": "curiam), in which we found U.S.S.G. § 2D1.1(c) constitutional under the rational basis test. The district court denied his motion to declare the subject statutes unconstitutional. Byse was sentenced to 121 months of incarceration, five years of supervised release, a $5,000 fine, and a $50 special assessment. II. DISCUSSION Byse raises three issues on appeal. He claims that the district court erroneously found that the government had not exercised its peremptory challenges in a racially discriminatory manner, that he was not entitled to a downward adjustment for his role in the attempted cocaine sale, and that the base or crack cocaine sentencing statutes were constitutional. Only the third basis for appeal, the constitutionality of the subject sentencing statutes, warrants analysis. The district court’s finding concerning the constitutionality of a sentencing statute is subject to de novo review. United States v. Osburn, 955 F.2d 1500, 1503 (11th Cir.), cert. denied, — U.S. —, 113 S.Ct. 223, 121 L.Ed.2d 160, and cert. denied, — U.S. —, 113 S.Ct. 290, 121 L.Ed.2d 215 (1992). At oral argument, Byse’s counsel appeared to concede the constitutionality of the implicated sentencing statutes because he could not distinguish Byse’s case from King. Because Byse argued a different constitutional violation in the district court and in his appellate brief than that presented in King, we address his contention that Congress and the Sentencing Commission acted with a racially discriminatory purpose in distinguishing between the sentencing penalties for base or crack cocaine and powder cocaine. See Lopez-Nieves v. United States, 917 F.2d 645, 647 (1st Cir.1990) (although an apparent concession of a contention was made at oral argument, the circuit court of appeals nevertheless addressed the issue). In King, the defendant-appellant argued that the disparity in punishments for crimes involving crack cocaine versus powder cocaine violated equal protection because of the discriminatory impact on black persons. We used the rational basis test to analyze his Guidelines penalty for possession of crack cocaine with intent to distribute. Under that test, we determined that lawmakers had a legitimate purpose in providing harsher penalties for possession of crack cocaine because it “is" }, { "docid": "6248102", "title": "", "text": "step further and demonstrate that the alleged shortcomings in the ... legal assistance program hindered his efforts to pursue a legal claim.” Id. There has been no such showing in this case. Thus, we reject the prisoners’ argument that we must subject the PLRA’s attorney’s fee provision to strict scrutiny. B Instead, we simply ask whether there is a rational basis for the classification. Under this minimal standard, the PLRA certainly passes constitutional muster. As the Supreme Court has made clear, “rational-basis review in equal protection analysis ‘is not a license for courts to judge the wisdom, fairness, or logic of legislative choices.’” Heller v. Doe, 509 U.S. 312, 319, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993) (quoting FCC v. Beach Communications, Inc., 508 U.S. 307, 313, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993)). Rather, the “legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest.” Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). In this case, the government’s interest was apparently to curtail frivolous prisoners’ suits and to minimize the costs — • which are borne by taxpayers — associated with those suits. See Zehner v. Trigg, 133 F.3d 459, 463 (7th Cir.1997); McGann v. Commissioner of Social Sec. Admin., 96 F.3d 28, 31 (2d Cir.1996). The prisoners do not deny that this interest is legitimate. They contend only that the interest is not rationally related to the distinction drawn between prisoners and all other litigants bringing suits against the state. However, it is certainly conceivable that, because of significant potential gains and low opportunity costs, prisoners generally file a disproportionate number of frivolous suits as compared to the population as a whole. Such speculation is sufficient for a rational-basis examination; there is no need for evidence or empirical data. See Beach Communications, 508 U.S. at 315, 113 S.Ct. 2096. Because the burden is on the prisoners “to negative every conceivable basis which might support” the legislation, Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S." }, { "docid": "20338789", "title": "", "text": "Aplt.Add., doc. 4 at 2. The agent’s opinion, based on his experience, is entitled to consideration in determining the existence of probable cause. United States v. Wicks, 995 F.2d 964, 972 (10th Cir.), cert. denied, — U.S. -, 114 S.Ct. 482, 126 L.Ed.2d 433 (1993). Moreover, the DEA agent stated that an informant had seen a large amount of cocaine at Mr. Williams’ residence within the last three months. Aplt.Add., doc. 4 at 13. A substantial basis for probable cause exists. Ms. Hayes also argues that the search warrant was tainted by the invalid wiretap order. This argument fails, however, because we have already determined that the wiretap order was valid. IV. Constitutionality of 21 U.S.C. § 841(b)(l)(A)(iii) and U.S.S.G. § 2D1.1 This circuit has previously upheld the constitutionality of 21 U.S.C. § 841(b)(l)(A)(iii) and U.S.S.G. § 2D1.1 against race-based equal protection challenges. See United States v. Thurmond, 7 F.3d 947, 953 (10th Cir.1993) (“[R]easons exist, other than race, for enhanced penalties for cocaine base offenses_”), cert. denied, — U.S. -, 114 S.Ct. 1311, 127 L.Ed.2d 661 (1994); United States v. Angulo-Lopez, 7 F.3d 1506, 1509 (10th Cir.1993) (“Congress ... had rational justification in creating the sentencing disparity.”), cert. denied, - U.S. -, 114 S.Ct. 1563, 128 L.Ed.2d 209 (1994); United States v. Easter, 981 F.2d 1549, 1558-59 (10th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 2448, 124 L.Ed.2d 665 (1993). Mr. Williams argues that in Thurmond the defendant only presented evidence of disparate impact, whereas Mr. Williams presents evidence of both disproportionate impact and discriminatory intent on the part of Congress. Defendant has failed to prove any such discriminatory intent. While one district court did ñnd a discriminatory purpose, that decision was promptly reversed on appeal. United States v. Clary, 846 F.Supp. 768 (E.D.Mo.), rev’d, 34 F.3d 709 (8th Cir.1994). Moreover, Mr. Williams’ argument that Congress’ “failure to account for a foreseeable disparate impact” violates the Equal Protection Clause is without merit. See Thurmond, 7 F.3d at 952 (“A neutral law that disproportionately impacts a racial minority does not violate equal protection ... unless that impact can be" }, { "docid": "18872842", "title": "", "text": "on the \"crack\" problem by attacking and penalizing the minority population.... The Equal Protection Clause prohibits disparate treatment of blacks under the crack statutes because the classification of crack is not precisely tailored to serve a compelling governmental interest.... Therefore, this Court must examine the legitimacy of the statutory distinction between crack and cocaine powder with the most rigid scrutiny. Appellant’s Brief at 16, 17, 18 (footnote omitted). . In addition to determining that the Guidelines punishment for crack cocaine satisfies the rational basis test in King, we have held that the statute requiring a mandatory minimum for possession of cocaine base, 21 U.S.C. § 841(b)(1), does not violate equal protection or due process. United States v. Solomon, 848 F.2d 156, 157 (11th Cir.1988) (per curiam). \"Heightened scrutiny is inapplicable because the statute does not discriminate on the basis of a suspect classification or the exercise of a fundamental right.” Id.; see United States v. Holmes, 838 F.2d 1175, 1177 (11th Cir.) (analyzing 21 U.S.C. § 841(b)(1) relative to whether it is irrational to mandate punishment on the basis of quantity without regard to quality or purity of the illegal drug, we concluded that \"where a statute does not discriminate on racial grounds or against a suspect class, Congress' judgment will be sustained in the absence of persuasive evidence that Congress had no reasonable basis for drawing the lines that it did”), cert. denied, 486 U.S. 1058, 108 S.Ct. 2829, 100 L.Ed.2d 930 (1988). . The Eighth Circuit recognized that the 100-to-1 ratio used by the Sentencing Commission in delineating the Guidelines sentences for crack and powder cocaine \"was mandated by Congress in 21 U.S.C. § 841(b).” Willis, 967 F.2d at 1225; see United States v. Evans, 333 U.S. 483, 486, 68 S.Ct. 634, 636, 92 L.Ed. 823 (1948) (the authority to define federal crimes and to establish punishments belongs to Congress solely). . Discriminatory impact alone is insufficient to show discriminatory purpose unless \"a clear pattern, unexplainable on grounds other than race, emerges from the effect of the [legislative] action.” Arlington Heights, 429 U.S. at 266, 97 S.Ct. at" }, { "docid": "18872845", "title": "", "text": "contends that \" 'cocaine is cocaine,' ” and that “[t]here is simply no meaningful distinction between crack and cocaine powder\" to warrant the 100-to-l ratio in punishment. Appellant's Brief at 19. We disagree. \"[C]ocaine base is simply a different drug than cocaine powder, with a different chemical composition; as a result, Congress can justifiably provide for different penalties for each.” Thurmond, 7 F.3d at 953 (citation omitted); see United States v. Easter, 981 F.2d 1549, 1558 (10th Cir.1992) (base cocaine and powder cocaine, or cocaine hydrochloride, have different chemical compositions and physical properties, including distinct melting points, solubility levels, and molecular weights), cert. denied, - U.S. -, 113 S.Ct. 2448, 124 L.Ed.2d 665 (1993). .To the extent that Byse merely mentions that ■ the subject statutes also violate due process, we find this constitutional contention also to be unavailing. He claims that the 100-to-l ratio of crack cocaine penalties to powder cocaine violates both equal protection and due process because it was arbitrarily established and has a discriminatory impact. To satisfy due process requirements, the legislation must bear a \"reasonable relation to a proper legislative purpose” and be \"neither arbitrary nor discriminatory.” Nebbia v. New York, 291 U.S. 502, 537, 54 S.Ct. 505, 516, 78 L.Ed. 940 (1934). Byse has mingled his equal protection and due process constitutional challenges, and we have encompassed any due process contentions in the context of our equal protection analysis. Moreover, in Solomon and Holmes, we determined that 21 U.S.C. § 841(b)(1) does not violate due process. Circuits that have addressed constitutional challenges concerning the disparity in sentencing penalties for base and powder cocaine on equal protection and due process grounds have found neither viable. See, e.g., United States v. Simms, 18 F.3d 588, 595 (8th Cir.1994); Thurmond, 7 F.3d at 950-53. Additionally, other circuits specifically have found that the 100-to-l ratio of powder cocaine to crack cocaine has a rational basis and does not violate equal protection. See Stevens, 19 F.3d at 97 (Second Circuit); United States v. Bynum, 3 F.3d 769, 774 (4th Cir.1993), cert. denied, - U.S. -, 114 S.Ct. 1105, 127" }, { "docid": "18872829", "title": "", "text": "acquittal on count one. Byse was convicted on count two. At the sentencing hearing, Byse reiterated his objection to the presentence report in which he contended that he was entitled to a two-level downward adjustment for being a minor participant. He argued that he was merely a middleman between the informant and the source of the crack cocaine. Noting that Byse negotiated and conducted the transaction, the district court determined that the downward adjustment was not warranted. Prior to the sentencing hearing, Byse filed a motion challenging 21 U.S.C. § 841(b)(l)(A)(iii) and U.S.S.G. § 2Dl.l(e) on equal protection grounds. In punishing the possession and distribution of crack cocaine more severely than powder cocaine, Byse contended that these statutes disproportionately impacted on African Americans and Hispanics. Accordingly, he asserted that “a suspect classification is involved and therefore the analysis should be ‘strict scrutiny’ rather than ‘rational basis.’ ” Rl-49-9 n. 3. At the sentencing hearing, however, Byse was unable to distinguish his equal protection arguments from United States v. King, 972 F.2d 1259 (11th Cir.1992) (per curiam), in which we found U.S.S.G. § 2D1.1(c) constitutional under the rational basis test. The district court denied his motion to declare the subject statutes unconstitutional. Byse was sentenced to 121 months of incarceration, five years of supervised release, a $5,000 fine, and a $50 special assessment. II. DISCUSSION Byse raises three issues on appeal. He claims that the district court erroneously found that the government had not exercised its peremptory challenges in a racially discriminatory manner, that he was not entitled to a downward adjustment for his role in the attempted cocaine sale, and that the base or crack cocaine sentencing statutes were constitutional. Only the third basis for appeal, the constitutionality of the subject sentencing statutes, warrants analysis. The district court’s finding concerning the constitutionality of a sentencing statute is subject to de novo review. United States v. Osburn, 955 F.2d 1500, 1503 (11th Cir.), cert. denied, — U.S. —, 113 S.Ct. 223, 121 L.Ed.2d 160, and cert. denied, — U.S. —, 113 S.Ct. 290, 121 L.Ed.2d 215 (1992). At oral argument, Byse’s" }, { "docid": "22447437", "title": "", "text": "possessing 58 grams of cocaine base as to constitute cruel and unusual punishment. II. DISCUSSION Our review of federal constitutional questions is, of course, de novo. Jenkins by Agyei v. Missouri, 807 F.2d 657, 703 (8th Cir.1986), cert. denied, 484 U.S. 816, 108 S.Ct. 70, 98 L.Ed.2d 34 (1987). A. Due Process Challenge In determining the sentencing ranges for drug offenses, the United States Sentencing Commission began with the minimum penalties set forth by Congress in 21 U.S.C. § 841(b) (1982 & Supp. V 1987). The “100 to 1 ratio” of cocaine to cocaine base in the Guidelines is derived directly from Section 841(b), which mandates the same minimum sentence for crimes involving 50 grams or more of a substance containing cocaine base as it does for crimes involving 5,000 grams or more of ordinary cocaine. Compare 21 U.S.C. § 841(b)(1)(A)(iii) (1982 & Supp. V 1987) with § 841(b)(l)(A)(ii)(II) (1982 & Supp. V 1987). Clearly, the United States Sentencing Commission only implemented a congressional directive set forth by statute when applying the “100 to 1 ratio” to its delineation of sentencing ranges. In Mistretta v. United States, 488 U.S. 361, 109 S.Ct. 647, 675, 102 L.Ed.2d 714 (1989), the Supreme Court held constitutional Congress’s delegation to the Commission of the power to implement its directives in this way. Therefore, the sole question before us in deciding Buckner’s substantive due process challenge is whether the decision by Congress to apply a “100 to 1 ratio” is constitutional. We review acts of Congress with considerable deference. Acts do not offend principles of substantive due process if they bear a “reasonable relation to a proper legislative purpose, and are neither arbitrary nor discriminatory.” Nebbia v. New York, 291 U.S. 502, 537, 54 S.Ct. 505, 516, 78 L.Ed. 940 (1934). Appellate courts should not and do not try “to determine whether [the statute] was the correct judgment or whether it best accomplishes Congressional objectives; rather, [courts] determine [only] whether Congress’ judgment was rational.” United States v. Holmes, 838 F.2d 1175, 1178 (11th Cir.1988), cert. denied, 486 U.S. 1058, 108 S.Ct. 2829, 100 L.Ed.2d 930" }, { "docid": "18872828", "title": "", "text": "indictment with conspiracy to possess with intent to distribute base or crack cocaine in violation of 21 U.S.C. § 846, and attempt to distribute base cocaine, in violation of 21 U.S.C. § 841 and 18 U.S.C. § 2. A jury was selected for Byse’s trial on October 27, 1992. After the government had exercised four of its six peremptory strikes, Byse, who is black, raised a Bat-son challenge. Two of the government’s strikes were black jurors. Another was a juror whom the government and the court believed to be Indian; Byse contended that this juror was black. The government imme diately explained its reasons for striking the jurors and advised the court that it did not intend to exercise any of its remaining strikes on black jurors. Following the court’s ruling that there was no racial motivation in the three government strikes in question, jury selection continued with no additional Batson challenges by the defense. Blacks served on the jury. At the conclusion of the government’s case, the court granted Byse’s motion for judgment of acquittal on count one. Byse was convicted on count two. At the sentencing hearing, Byse reiterated his objection to the presentence report in which he contended that he was entitled to a two-level downward adjustment for being a minor participant. He argued that he was merely a middleman between the informant and the source of the crack cocaine. Noting that Byse negotiated and conducted the transaction, the district court determined that the downward adjustment was not warranted. Prior to the sentencing hearing, Byse filed a motion challenging 21 U.S.C. § 841(b)(l)(A)(iii) and U.S.S.G. § 2Dl.l(e) on equal protection grounds. In punishing the possession and distribution of crack cocaine more severely than powder cocaine, Byse contended that these statutes disproportionately impacted on African Americans and Hispanics. Accordingly, he asserted that “a suspect classification is involved and therefore the analysis should be ‘strict scrutiny’ rather than ‘rational basis.’ ” Rl-49-9 n. 3. At the sentencing hearing, however, Byse was unable to distinguish his equal protection arguments from United States v. King, 972 F.2d 1259 (11th Cir.1992) (per" } ]

[ { "docid": "16966718", "title": "", "text": "in the loan scheme to defraud Murray, a finding made part of Murray’s complaint in the bankruptcy court as Exhibit “A”, and a finding entitled to respect in the federal courts. Steven Bammer then filed for bankruptcy in order to shed this substantial debt owed to Murray arising from the judgment. II The Definition of “Malicious” This appeal focuses on Section 523(a)(6) of the Bankruptcy Code, which states: (a) A discharge under section 727 ... of this title does not discharge an individual debtor from any debt— (b) for willful and malicious injury by the debtor to another entity or the property of another entity; ... 11 U.S.C. § 523(a)(6). Because Steven Bammer accepted before the BAP the finding of the bankruptcy court that the fraud was “willful,” the only question remaining is whether it was “malicious.” He says it was not. The bankruptcy court and the BAP agreed with him. We respectfully do not. The law of our circuit defines a “malicious” injury as one involving (1) a wrongful act, (2) “done intentionally, (3) which necessarily causes injury, and (4) is done without just cause or excuse.” In re Cecchini, 780 F.2d 1440, 1443 (9th Cir.1986) (emphasis added). This four-part definition does not require a showing of biblical malice, i.e., personal hatred, spite, or ill-will. Id. at 1442-43. Nor does it require a showing of an intent to injure, but rather it requires only an intentional act which causes injury. Id. Moreover, we held in In re Britton, 950 F.2d 602, 606 (9th Cir.1991) that a court applying this test must take into consideration a policy that favors the victims of fraud over the perpetrators. The bankruptcy court and the BAP concluded as to the first three elements of malice that Steven Bammer’s conspiratorial acts were (1) wrongful, (2) intentional, and (3) necessarily caused harm to Murray, but debtor Bammer escaped on the fourth element because he did all of this “out of compassion for his mother,” and did not himself directly benefit financially from the scheme. Ill Standard Of Review The issue we review is narrow. Steven Bammer’s" } ]

[ { "docid": "19678809", "title": "", "text": "appealed the order and judgment to the BAP. The BAP affirmed the Bankruptcy Court. The BAP implied “maliciousness” from the Bankruptcy Court’s finding of willfulness. The BAP reasoned that “an award of statutory damages based on willful copyright infringement is a debt for an injury to the owner’s property interest.” Accordingly, the BAP reasoned that “[t]he only remaining proof required was that Debtors were aware of Appellee’s copyright at the time they infringed it.” The BAP also found that the September 3, 1999, letter gave Appellants actual knowledge that their infringement was “substantially certain” to cause harm to Appellee. III. ANALYSIS We review decisions of the BAP de novo, applying the same standard of review that the BAP applied to the bankruptcy court’s ruling. Wood v. Stratos Prod. Dev. (In re Ahaza Sys., Inc.), 482 F.3d 1118, 1123 (9th Cir.2007). Whether a claim is nondischargeable presents mixed issues of law and fact and is also reviewed de novo. Murray v. Bammer (In re Bammer), 131 F.3d 788, 791-92 (9th Cir.1997) (en banc). 1. Willful and Malicious Injury Under 11 U.S.C. § 523(a)(6) Section 523(a)(6) of the Bankruptcy Code provides that an individual debtor may not discharge a debt “for willful and malicious injury by the debtor to another entity or to the property of another entity.” (emphasis added). The malicious injury requirement is separate from the willful injury requirement. Carrillo v. Su (In re Su), 290 F.3d 1140, 1146-47 (9th Cir.2002) (conflating the two requirements is grounds for reversal); see also Jett v. Sicroff (In re Sicroff), 401 F.3d 1101, 1105 (9th Cir.2005) (“We analyze the willful and malicious prongs of the dischargeability test separately.”). A “willful” injury is a “deliberate or intentional injury, not merely a deliberate or intentional act that leads to injury.” Kawaauhau v. Geiger, 523 U.S. 57, 61, 118 S.Ct. 974, 140 L.Ed.2d 90 (1998) (emphasis in original). “A ‘malicious’ injury involves’ (1) a wrongful act, (2) done intentionally, (3) which necessarily causes injury, and (4) is done without just cause or excuse.’ ” In re Su, 290 F.3d at 1146-47 (quoting Petralia v. Jercich (In" }, { "docid": "1452646", "title": "", "text": "re Markowitz, 190 F.3d at 465 n. 10. When determining whether the debtor’s conduct was willful, “[i]n addition to what a debtor may admit to knowing, the bankruptcy court may consider circumstantial evidence that tends to establish what the debtor must have actually known when taking the injury-producing action.” In re Sicroff, 401 F.3d 1101, 1106 (9th Cir.2005) (quoting In re Su, 290 F.3d 1140, 1146 n. 6 (9th Cir.2002)); In re Wood, 309 B.R. 745, 753 (Bankr.W.D.Tenn.2004) (“To find that a debtor intended to cause the consequences of his act or believed that the consequences were substantially certain to result from his act, it is necessary to look into the debtor’s mind, subjectively.”). The term malicious is defined as conduct taken in conscious disregard of one’s duties or without just cause or excuse. Wheeler v. Laudani, 783 F.2d 610, 615 (6th Cir.1986) (quoting Tinker v. Colwell, 193 U.S. 473, 486, 24 S.Ct. 505, 48 L.Ed. 754 (1904)). An injury has been defined as malicious under § 523(a)(6), when it is: “(1) a wrongful act, (2) done intentionally, (3) which necessarily causes injury, and (4) is done without just cause or excuse.” In re Sicroff, 401 F.3d at 1106 (citation omitted). “[T]he definition of malice requires a heightened level of culpability transcending mere willfulness.” In re Martin, 321 B.R. at 442. Mere “knowledge that legal rights are being violated is insufficient to establish malice ....” In re Best, 109 Fed.Appx. at 6 (quoting In re Mulder, 306 B.R. 265, 270 (Bankr.N.D.Iowa 2004)). This does not, however, require the debtor’s conduct to be driven by a personal hatred directed at the creditor. In re Jones, 300 B.R. at 140 (citing Printy v. Dean Witter Reynolds, Inc., 110 F.3d 853, 859 (1st Cir.1997)) (“ ‘No special malice toward the creditor need be shown,’ as malice can be present ‘even in the absence of personal hatred, spite or ill-will.’ ”); In re Thiara, 285 B.R. 420, 434 (9th Cir. BAP 2002); In re Fors, 259 B.R. 131, 137 (8th Cir. BAP 2001). The injury sustained must be an invasion of the creditor’s legal" }, { "docid": "20561800", "title": "", "text": "Ohio App.2d 73, 78, 307 N.E.2d 34, 38 (Ohio Ct.App.1973) (internal quotation marks and citation omitted). Willfulness is shown when it is demonstrated that the debtor either had a desire to cause the consequences of his act, or believed that injury was substantially certain to result from his conduct. Markowitz v. Campbell (In re Markowitz), 190 F.3d 455, 464 (6th Cir.1999). See also Petralia v. Jercich (In re Jercich), 238 F.3d 1202, 1208 (9th Cir.2001). The focus is on the debtor’s state of mind. Damages arising from conduct which is reckless or negligent do not fall within the purview of § 523(a)(6). Kawaauhau, 523 U.S. at 59, 118 S.Ct. 974. The Sixth Circuit Bankruptcy Appellate Panel has opined that “the first prong of Ohio’s test for intentional infliction of emotional distress, is nearly identical to the level of intent required by the Sixth Circuit in In re Mcurkowitz.” Gonzalez v. Moffitt (In re Moffitt), 252 B.R. 916, 923 (6th Cir. BAP 2000). The requirement of maliciousness is met when it is demonstrated that (1) the debtor has committed a wrongful act, (2) the debtor undertook the act intentionally, (3) the act necessarily causes injury, and (4) there is no just cause or excuse for the action. Vulcan Coals, Inc. v. Howard, 946 F.2d 1226, 1228 (6th Cir.1991); Jercich, 238 F.3d at 1209. “Under § 523(a)(6), a person is deemed to have acted maliciously when that person acts in conscious disregard of his duties or without just cause or excuse.” Gonzalez, 252 B.R. at 923 (citation omitted). Furthermore, “[u]nder Ohio law, punitive damages are awarded upon a finding of actual malice.” Gonzalez, 252 B.R. at 923 (citing Malone v. Courtyard by Marriott Ltd. P’ship, 74 Ohio St.3d 440, 659 N.E.2d 1242, 1247 (Ohio 1996)). With respect to Ms. Hoewischer’s claim for intentional infliction of emotional distress, the State Court determined that (1) Mr. White intended to cause emotional distress or knew or should have known that his conduct would result in serious emotional distress to Ms. Hoewischer; (2) Mr. White’s conduct was outrageous and extreme beyond all possible bounds of decency" }, { "docid": "3110428", "title": "", "text": "debtor to another entity or to the property of another entity” is excepted from discharge under the Bankruptcy Code. 11 U.S.C. § 523(a)(6). Because the word “willful” in the statute modifies the word “injury,” the United States Supreme Court has concluded that § 523(a)(6) requires a “deliberate or intentional injury, not merely a deliberate or intentional act that leads to injury.” Kawaauhau v. Geiger, 523 U.S. 57, 61, 118 S.Ct. 974, 140 L.Ed.2d 90 (1998). “[T]he actor must intend ‘the consequences of an act,’ not simply ‘the act itself.’” Id. at 61-62, 118 S.Ct. 974 (citation omitted). Willfulness is shown when it is demonstrated that the debtor either had a desire to cause the consequences of his act, or believed that injury was substantially certain to. result from his conduct. Markowitz v. Campbell (In re Markowitz), 190 F.3d 455, 464 (6th Cir. 1999). See also Petralia v. Jercich (In re Jercich), 238 F.3d 1202, 1208 (9th Cir. 2001). The focus is on the debtor’s state of mind. Damages arising from conduct which is reckless or negligent do not fall within the purview of § 523(a)(6). Kawaauhau, 523 U.S. at 59, 118 S.Ct. 974. The requirement of maliciousness is met when it is demonstrated that (1) the debtor has committed a wrongful act, (2) the debtor undertook the act intentionally, (3) the act necessarily causes injury, and (4) there is no just cause or excuse for the action. Vulcan Coals, Inc. v. Howard, 946 F.2d 1226, 1228 (6th Cir. 1991); Jercich, 238 F.3d at 1209. “Under § 523(a)(6), a person is deemed to have acted maliciously when that person acts in conscious disregard-of his duties or without just cause or excuse.” Gonzalez [v. Moffitt (In re Moffitt) ], 252 B.R. [916] at 923 [(6th Cir. B.A.P. 2000)] (citation omitted). Hoewischer v. White (In re White), 551 B.R. 814, 820-21 (Bankr. S.D. Ohio 2016). Plaintiffs argue that “Panos* fraudulent conduct directed at the plaintiffs satisfies the willful and malicious injury standard.” Motion, 17. “Because Panos knowingly made these false statements with the intent of misleading the Plaintiffs into relying on them, Panos" }, { "docid": "15299451", "title": "", "text": "reliance on In re Miller. Carrillo’s argument fails, however, because the holding of In re Jercich, which sets out the scope of § 523(a)(6)’s willful injury requirement, expressly articulates only a subjective dimension. Because the bankruptcy court focused exclusively on the objective substantial certainty of harm stemming from Su’s driving, but did not consider Su’s subjective intent to cause harm or knowledge that harm was substantially certain, we agree with the BAP that the bankruptcy court applied the incorrect legal standard. Thus, this proceeding must be remanded to the bankruptcy court for consideration of Carrillo’s nondischargeability claim under the subjective framework articulated in In re Jercich. We believe, further, that failure to adhere strictly to the limitation expressly laid down by In re Jercich will expand the scope of nondischargeable debt under § 523(a)(6) far beyond what Congress intended. By its very terms, the objective standard disregards the particular debtor’s state of mind and considers whether an objective, reasonable person would have known that the actions in question were substantially certain to injure the creditor. In its application, this standard looks very much like the “reckless disregard” standard used in negligence. That the Bank ruptcy Code’s legislative history makes it clear that Congress did not intend § 523(a)(6)’s willful injury requirement to be applied so as to render nondischargeable any debt incurred by reckless behavior, reinforces application of the subjective standard. The subjective standard correctly focuses on the debtor’s state of mind and precludes application of § 523(a)(6)’s nondischargeability provision short of the debtor’s actual knowledge that harm to the creditor was substantially certain. B. Maliciousness The BAP correctly observed that in In re Jercich, we treated the “malicious” injury requirement of § 523(a)(6) as separate from the “willful” requirement. According to In re Jercich: “A ‘malicious’ injury involves ‘(1) a wrongful act, (2) done intentionally, (3) which necessarily causes injury, and (4) is done without just cause or excuse.’ ” 238 F.3d at 1209 (quoting In re Bammer, 131 F.3d at 791); see also id. at 1209 n. 36 (emphasizing that the “maliciousness standard — and in particular our" }, { "docid": "15299452", "title": "", "text": "In its application, this standard looks very much like the “reckless disregard” standard used in negligence. That the Bank ruptcy Code’s legislative history makes it clear that Congress did not intend § 523(a)(6)’s willful injury requirement to be applied so as to render nondischargeable any debt incurred by reckless behavior, reinforces application of the subjective standard. The subjective standard correctly focuses on the debtor’s state of mind and precludes application of § 523(a)(6)’s nondischargeability provision short of the debtor’s actual knowledge that harm to the creditor was substantially certain. B. Maliciousness The BAP correctly observed that in In re Jercich, we treated the “malicious” injury requirement of § 523(a)(6) as separate from the “willful” requirement. According to In re Jercich: “A ‘malicious’ injury involves ‘(1) a wrongful act, (2) done intentionally, (3) which necessarily causes injury, and (4) is done without just cause or excuse.’ ” 238 F.3d at 1209 (quoting In re Bammer, 131 F.3d at 791); see also id. at 1209 n. 36 (emphasizing that the “maliciousness standard — and in particular our ‘just cause and excuse’ prong' — survived Geiger” and distinguishing In re Miller, where “the ‘just cause or excuse’ standard has been displaced by Geiger and ... [where] the ‘willful’ and ‘malicious’ prongs [have been collapsed] into a single inquiry”). The bankruptcy court, however, made no findings regarding malice. In fact, it conflated the “willful” and “malicious” prongs in its § 523(a)(6) analysis. While Carrillo contends that the four factors can be ascertained by examining the record, we decline to make the independent malice inquiry required by In re Jercich in the first instance. Therefore, on remand, the bankruptcy court should also make appropriate findings on the issue of malice. IV. CONCLUSION For the foregoing reasons, we hold that the BAP correctly concluded that § 523(a)(6)’s willful injury requirement is governed by a subjective standard. Accordingly, we affirm the order of the BAP reversing the bankruptcy court and remanding the adversary proceeding for further proceedings. AFFIRMED. . While the Geiger Court did not focus on this section of the Restatement (dealing with situations in which" }, { "docid": "19678810", "title": "", "text": "Malicious Injury Under 11 U.S.C. § 523(a)(6) Section 523(a)(6) of the Bankruptcy Code provides that an individual debtor may not discharge a debt “for willful and malicious injury by the debtor to another entity or to the property of another entity.” (emphasis added). The malicious injury requirement is separate from the willful injury requirement. Carrillo v. Su (In re Su), 290 F.3d 1140, 1146-47 (9th Cir.2002) (conflating the two requirements is grounds for reversal); see also Jett v. Sicroff (In re Sicroff), 401 F.3d 1101, 1105 (9th Cir.2005) (“We analyze the willful and malicious prongs of the dischargeability test separately.”). A “willful” injury is a “deliberate or intentional injury, not merely a deliberate or intentional act that leads to injury.” Kawaauhau v. Geiger, 523 U.S. 57, 61, 118 S.Ct. 974, 140 L.Ed.2d 90 (1998) (emphasis in original). “A ‘malicious’ injury involves’ (1) a wrongful act, (2) done intentionally, (3) which necessarily causes injury, and (4) is done without just cause or excuse.’ ” In re Su, 290 F.3d at 1146-47 (quoting Petralia v. Jercich (In re Jercich), 238 F.3d 1202, 1209 (9th Cir. 2001)). A. Willfulness This case comes on appeal as a result of a summary judgment entered by the Bankruptcy Court. We review a grant of summary judgment de novo. Margolis v. Ryan, 140 F.3d 850, 852 (9th Cir.1998). i. Summary Judgment Standard In adversary proceedings before the bankruptcy court, the familiar summary judgment standard established in Federal Rule of Civil Procedure 56 applies. See Fed. R. Bankr.P. 7056; North Slope Borough v. Rogstad (In re Rogstad), 126 F.3d 1224, 1227 (9th Cir.1997). Summary judgment is proper when “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). An issue is “genuine” only if there is a sufficient evidentiary basis on which a reasonable fact finder could find for the nonmoving party, and a dispute is “material” only if it could affect the outcome of the suit under the" }, { "docid": "16018689", "title": "", "text": "it is shown either that the debtor had a subjective motive to inflict the injury or that the debtor believed that injury was substantially certain to occur as a result of his conduct.” There is no evidence whatsoever that any of the damage which Sparks complains of was caused with the intention of injuring Sparks. Kawaauhau, 523 U.S. at 61-62, 118 S.Ct. 974; In re Banks, 225 B.R. 738, 747 (Bankr.C.D.Cal.1998), aff’d 246 B.R. 452 (9th Cir. BAP 1999). The only quarrels or heated disputes in the record were between King and his wife, not between Kings and Sparks. Sparks own evidence suggests that the holes in the walls occurred during a quarrel between the Kings. This is not evidence that the Debtor had a subjective motive to injure Sparks or that King believed that injury to Sparks was substantially certain to occur as a result of his conduct. In re Banks, 225 B.R. at 747; Compare In re Branam, 226 B.R. at 47, 53 (battery committed upon the plaintiff during an altercation satisfied the willful and malicious elements components of § 523(a)(6)); Baldwin, 245 B.R. at 133, 137. Sparks has not shown that King, rather than Jennifer, caused the additional holes in the wall. If he did, the only evidence is they took place during a quarrel by the Kings, and Ex. 1 shows Kings put down a $350 security deposit. The Court concludes Sparks failed to satisfy the willful component of § 523(a)(6). Next, a “malicious” injury involves “(1) a wrongful act, (2) done intentionally, (3) which necessarily causes injury, and (4) is done without just cause or excuse.” Jercich, 2000 WL 33122833 at *5; In re Bailey, 197 F.3d at 1000. Sparks failed her burden of showing by a-preponderance of the evidence any intentional, wrongful acts against her or her property by King. King admits he failed to pay Sparks as he promised, and failed to clean the premises, and that $1,300 worth of damage was done to the property as a result of his negligence, but that does not establish a § 523(a)(6) claim. Kidd, 16" }, { "docid": "15299441", "title": "", "text": "and punitive damages, alleging that “[h]is conduct ... was wanton, willful and malicious, and such acts were intentionally done with reckless disregard of the consequences, necessarily producing permanent injury and harm to plaintiff, without just cause or excuse.” The jury found that Su was negligent, that his negligence resulted in Carrillo’s injuries, and that he was guilty of malice by clear and convincing evidence. “Malice” was defined by the state court either as conduct intended to cause injury to the plaintiff or as despicable conduct carried on with a willful and conscious disregard for the safety and rights of others. The jury awarded Carrillo $130,000 in economic damages and $400,000 in non-economic damages; no punitive damages were awarded. After this judgment was entered against him, Su filed a Chapter 7 bankruptcy petition. In her adversary proceeding, Carrillo alleged that her judgment against Su was not dischargeable because 11 U.S.C. § 523(a)(6) (“§ 523(a)(6)”) excepts from discharge a debt “for willful and malicious injury by the debtor to another entity or to the property of another entity.” Relying on Miller v. J.D. Abrams Inc. (In re Miller), 156 F.3d 598, 606 (5th Cir.1998), which held that injuries are considered willful and malicious under § 523(a)(6) when the debtor possesses “either an objective substantial certainty of harm or a subjective motive to cause harm,” the bankruptcy court held that Su’s debt to Carrillo was nondischargeable because there was “by [an] objective standard, a substantial certainty” of harm when Su drove his van through a red light at an intersection known to be heavily congested with traffic. After the bankruptcy court’s decision, and while the case was pending before the BAP, this court decided Petralia v. Jercich (In re Jercich), 238 F.3d 1202 (9th Cir.), cert. denied, 533 U.S. 930, 121 S.Ct. 2552, 150 L.Ed.2d 718 (2001). In re Jercich held that § 523(a)(6)’s willful injury requirement is met “when it is shown either that the debtor had a subjective motive to inflict the injury or that the debtor believed that injury was substantially certain to occur as a result of his conduct.”" }, { "docid": "4539009", "title": "", "text": "debtor from any debt ... for willful and malicious injury by the debtor to another entity or to the property of another entity .... ” 11 U.S.C. § 523(a)(6). In this Circuit, this language has been interpreted to require that the court apply a two-pronged test in determining the dischargeability of a debt. The first prong requires a creditor to prove that a debtor’s conduct in causing the claimant’s injuries was willful. The second prong requires a creditor to prove the debtor’s conduct was malicious. Carrillo v. Su (In re Su), 290 F.3d 1140, 1146-47 (9th Cir.2002). To satisfy the willfulness prong, the creditor must prove that the debtor deliberately or intentionally injured the creditor, and that in doing so, the debtor intended the consequences of his act, not just the act itself. See Kawaauhau v. Geiger, 523 U.S. 57, 61-62, 118 S.Ct. 974, 140 L.Ed.2d 90 (1998). Elaborating on the debtor’s state of mind required by the statute, the Ninth Circuit has explained that a debtor must possess a subjective motive to inflict injury, or believe that injury is substantially certain to result from his conduct. In re Su, 290 F.3d at 1143. Thus, a creditor cannot prevail in an action brought under § 523(a)(6) unless it is shown that the debtor had actual knowledge that harm to the creditor was substantially certain to occur from the debt- or’s acts. Id. at 1145-46. However, actual knowledge may be shown through circumstantial evidence of “what the debtor must have actually known when taking the injury-producing action ....” Id. at 1146 n. 6. To satisfy the malicious prong, the creditor must prove that the debtor’s conduct involved: (1) a wrongful act; (2) done intentionally; (3) which necessarily causes injury; and (4) is done without just cause or excuse. Id. at 1146-47. B. Issue preclusion in general. Plaintiff originally argued in his brief, Docket No. 8, that both claim preclusion and issue preclusion support the entry of summary judgment in Plaintiffs favor. Then, at the hearing on the motion, Plaintiffs counsel explained that, upon further reflection, only issue preclusion was applicable in" }, { "docid": "16086870", "title": "", "text": "ability to pay Petralia his wages, yet chose not to pay and instead used the money for his own personal benefit. He therefore inflicted willful injury on Petr aha. 2. Maliciousness A “malicious” injury involves “(1) a wrongful act, (2) done intentionally, (3) which necessarily causes injury, and (4) is done without just cause or excuse.” In the present case, the state court found Jercich knew he owed Petralia the wages and that injury to Petralia was substantially certain to occur if the wages were not paid; that Jercich had the clear ability to pay Petralia the wages; and that despite his knowledge, Jercich chose not to pay and instead used the money for his own personal benefit. Jercich has pointed to no “just cause or excuse” for his behavior. Moreover, Jercich’s deliberate and willful failure to pay was found by the state trial court to constitute substantial oppression under California Civil Code § 3294, which by definition is “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” We hold that these state court findings are sufficient to show that the injury inflicted by Jercich was malicious under § 523(a)(6). V. The debt in this case arose from willful and malicious injury caused by the debt- or’s tortious conduct. It is therefore excepted from discharge under 11 U.S.C. § 523(a)(6). REVERSED. . California Civil Code § 3294 allows imposition of exemplary (punitive) damages \"[i]n an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice.” . Section 523(a)(6) provides: \"A discharge under ... this title does not discharge an individual debtor from any debt ... for willful and malicious injury by the debtor to another entity or to the property of another entity.” . 523 U.S. 57, 118 S.Ct. 974, 140 L.Ed.2d 90 (1998). . In re Jercich, 243 B.R. 747, 751 (9th Cir. BAP 2000). .Id. . In re Kadjevich, 220 F.3d 1016, 1019 (9th Cir.2000) (citation omitted). ." }, { "docid": "11852369", "title": "", "text": "must have the subjective intent to cause harm, or have the subjective belief, i.e., actual knowledge, that harm is substantially certain to result. In re Su, 290 F.3d at 1145-46 (“The subjective standard correctly focuses on the debtor’s state of mind and precludes application of § 523(a)(6)’s nondischargeability provision short of the debtor’s actual knowledge that harm to the creditor was substantially certain.”). Subjective intent or substantial certainty may be inferred from all of the facts and circumstances established. Nahman v. Jacks (In re Jacks), 266 B.R. 728, 742 (9th Cir.BAP2001); see also In re Su, 290 F.3d at 1146 n. 6 (“[T]he bankruptcy court may consider circumstantial evidence that tends to establish what the debtor must have actually known when taking the injury-producing action.”). The malicious prong of § 523(a)(6) is separate and distinct from the willful prong. In re Su, 290 F.3d at 1146. The “maliciousness” prong requires proof of “(1) a wrongful act, (2) done intentionally, (3) which necessarily causes injury, and (4) is done without just cause or excuse.” Petralia v. Jercich (In re Jercich), 238 F.3d 1202, 1209 (9th Cir.2001). “[I]t is the wrongful act that must be committed intentionally rather than the injury itself.” In re Sicroff, 401 F.3d at 1106. In the present case, the bankruptcy court found that the state court judgment awarding attorney’s fees is non-dischargeable debt under § 523(a)(6). In so finding, the bankruptcy court concluded that Appellant’s conduct in initiating and prosecuting her sexual harassment claim against Appellees was willful and malicious insofar as her conduct was unreasonable, frivolous, vexatious and in bad faith. In reaching this conclusion, the bankruptcy court relied upon the state court’s finding that Appellant brought her sexual harassment claim “in bad faith and with the [Debtor’s] declared objective ‘to bring Clay [Arnold] down,’ ” and that she knew from the outset that “there was no reasonable basis” for this claim. The bankruptcy court further relied upon the state court’s finding that Appellant’s “claim was so patently groundless from the outset that it has been obvious throughout the litigation that her motivation was a malicious" }, { "docid": "8209258", "title": "", "text": "sense, it turns out he was. Although, as noted above, there was surely the potential that Plaintiffs ongoing breeding and sales business could suffer economically with the loss of a horse he testified he intended to use as a sire. The relevant inquiry here is whether Defendant appreciated and intended that economic injury to Plaintiffs business was substantially certain to result from her actions. The evidence on that point is ambiguous. Plaintiff testified that Defendant knew from the time FSW was born that Plaintiff intended to use him as a sire. Plaintiff also testified that he usually sold horses as stallions, so as not to limit the buyer’s options, although Plaintiff did not indicate that Defendant was aware of this philosophy. On the other hand, Defendant testified that, on the advice of Mr. Zollinger, one of the other horses in her possession was left a stallion because, in his opinion, that particular horse was of stallion quality. In other words, the evidence is contradictory as to Defendant’s subjective intent to harm Plaintiff or his business. When all the evidence is measured against the preponderance standard, the Court cannot find that Defendant subjectively believed that an economic injury to Plaintiff was substantially certain to result from her having FSW gelded. No doubt, Defendant’s actions were reckless under the circumstances, in that gelding can be done at any time; it would have been more prudent for Defendant to wait until the parties’ property settlement was finalized. However, on this record, Plaintiff has simply not proven that Defendant intended to injury him, or his business, by what she did. The element of willfulness required for an exception to discharge under § 523(a)(6) has not been met. C. Maliciousness “A ‘malicious’ injury involves ‘(1) a wrongful act, (2) done intentionally, (3) which necessarily causes injury, and (4) is done without just cause or excuse.’ ” In re Su, 290 F.3d at 1146-47 (quoting Petralia v. Jercich (In re Jercich), 238 F.3d 1202, 1209 (9th Cir.2001) cert. denied, 533 U.S. 930, 121 S.Ct. 2552, 150 L.Ed.2d 718 (2001)); Elias, 03.4 I.B.C.R. at 246, 302 B.R." }, { "docid": "11852368", "title": "", "text": "belief that injury was substantially certain to occur.” Ditto v. McCurdy, 510 F.3d 1070, 1078 (9th Cir.2007). The “willfulness” and “maliciousness” prongs of § 523(a)(6) are analyzed separately. In re Su, 290 F.3d at 1146. A creditor must demonstrate non-dischargeability by a preponderance of the evidence. Jett v. Sicroff (In re Sicroff), 401 F.3d 1101, 1106 (9th Cir.2005). An injury is “willful” under § 523(a)(6) if the debtor intends the consequences of his action. Kawaauhau v. Geiger, 523 U.S. 57, 61, 118 S.Ct. 974, 140 L.Ed.2d 90 (1998). The word “willful” indicates “a deliberate or intentional injury, not merely a deliberate or intentional act that leads to injury.” Id. (emphasis in original). The willful injury requirement under § 523(a)(6) is met “only when the debtor has a subjective motive to inflict injury or when the debtor believes that injury is substantially certain to result from his own conduct.” In re Su, 290 F.3d at 1142. The focus is on the debtor’s state of mind at the time the injurious action is taken: either the debtor must have the subjective intent to cause harm, or have the subjective belief, i.e., actual knowledge, that harm is substantially certain to result. In re Su, 290 F.3d at 1145-46 (“The subjective standard correctly focuses on the debtor’s state of mind and precludes application of § 523(a)(6)’s nondischargeability provision short of the debtor’s actual knowledge that harm to the creditor was substantially certain.”). Subjective intent or substantial certainty may be inferred from all of the facts and circumstances established. Nahman v. Jacks (In re Jacks), 266 B.R. 728, 742 (9th Cir.BAP2001); see also In re Su, 290 F.3d at 1146 n. 6 (“[T]he bankruptcy court may consider circumstantial evidence that tends to establish what the debtor must have actually known when taking the injury-producing action.”). The malicious prong of § 523(a)(6) is separate and distinct from the willful prong. In re Su, 290 F.3d at 1146. The “maliciousness” prong requires proof of “(1) a wrongful act, (2) done intentionally, (3) which necessarily causes injury, and (4) is done without just cause or excuse.” Petralia v." }, { "docid": "8800484", "title": "", "text": "two-pronged test to apply to the conduct giving rise to the injury. The creditor must prove that the debtor’s conduct in causing the injuries was both willful and malicious. Carrillo v. Su (In re Su), 290 F.3d 1140, 1146-47 (9th Cir.2002); and see Barboza v. New Form, Inc. (In re Barboza), 545 F.3d 702, 711 (9th Cir.2008)(recent case reinforcing Su and the requirement of courts to apply a separate analysis in each prong of “willful” and “malicious”). Willfulness requires proof that the debtor deliberately or intentionally injured the creditor, and that in doing so, the debtor intended the consequences of his act, not just the act itself. Su, 290 F.3d at 1143 (citing Kawaauhau v. Geiger, 523 U.S. 57, 118 S.Ct. 974, 140 L.Ed.2d 90 (1998) for support). The debtor must act with a subjective motive to inflict injury, or with a belief that injury is substantially certain to result from the conduct. Id. at 1146. For conduct to be malicious, the creditor must prove that the debtor: (1) committed a wrongful act; (2) done intentionally; (3) which necessarily causes injury; and (4) was done without just cause or excuse. Id. at 1146-47. As neither of these elements has been challenged by Suarez on appeal, we accept that her conduct was both wilful and malicious. B. Conduct Leading To A Judgment For Contempt Of A Court Order May Be Determined To Be Willful And Malicious Under Section 523(a)(6). Section 523(a)(6) does not make “contempt” sanctions nondischargeable per se, and neither does any other subpart of section 523(a). Whether contempt sanctions are nondischargeable accordingly depends not on whether they are labeled as “contempt,” but on whether the conduct leading to them was “willful and malicious.” Although the Ninth Circuit has not weighed in on the nondischargeability of a “contempt” judgment, at least one other circuit has held that a contempt judgment against a debtor in bankruptcy can be immune from discharge under section 523(a)(6). The Eighth Circuit addressed this issue in Siemer v. Nangle (In re Nangle), 274 F.3d 481 (8th Cir.2001), cited by the bankruptcy court in its Memorandum Decision." }, { "docid": "15333045", "title": "", "text": "The creditor asserting that its debt is excepted from discharge under § 523(a)(6) bears the burden of proving its case by a preponderance of the evidence. Grogan v. Garner, 498 U.S. 279, 291, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). Therefore, AgChoice must demonstrate that as a matter of law Debtors’ conversion of its property was committed willfully and with malice. Conversion of a secured party’s collateral can be both a breach of contract and an intentional tort. Every act of conversion, however, does not produce a willful and malicious injury. See Davis v. Aetna Acceptance Co., 293 U.S. 328, 55 S.Ct. 151, 79 L.Ed. 393 (1934), cited in GMAC Inc. v. Coley (In re Coley), 433 B.R. 476, 500 (Bankr.E.D.Pa.2010). Actions are “willful” if they either have the purpose of producing injury or have a substantial certainty of producing injury. In re Conte, 33 F.3d 303, 307-09 (3d Cir. 1994). “Willful injury may ... be established indirectly by evidence of both the debtor’s knowledge of the creditor’s ... rights and the debtor’s knowledge that the conduct will cause particularized harm.” In re Paul, 266 B.R. 686, 696 (Bankr.N.D.Ill.2001) (citing In re Longley, 235 B.R. 651, 656 (10th Cir. BAP 1999)). An injury is “malicious” if it was caused by a wrongful act done intentionally and without just cause. In re Coley, 433 B.R. at 498 (citations omitted); In re Paul, 266 B.R. at 696. “Maliciousness” under § 523(a)(6) does not require a showing of “personal hatred, spite or ill-will.” In re Harris, 2011 WL 2787722, *3 (Adv. No. 1-10-ap-00405-RNO, Bankr.M.D.Pa. July 14, 2011). Rather, the focus of the inquiry is on the debtor’s intentional commission of a wrongful act that is substantially certain to cause damage to the plaintiff or its interests. When assessing the debtor’s intent, a subjective standard is used. “The debt will only be excepted from the discharge ... if the debtor had ‘actual knowledge that harm to the creditor was substantially certain’ ” to occur. In re Mirner, 2010 WL 2653296, *4 (Bankr. N.D.Cal.) (quoting In re Su, 290 F.3d 1140, 1145-46 (9th Cir.2002)). In" }, { "docid": "16086869", "title": "", "text": "excepted from discharge under § 523(a)(6). Finally, at least one Ninth Circuit BAP panel has held that either substantial certainty that injury will result or subjective motive to inflict injury meets the post-Geiger requirement of “willful injury” under § 523(a)(6). We hold, consistent with the approaches taken by the Fifth and Sixth Circuits, that under Geiger, the willful injury requirement of § 523(a)(6) is met when it is shown either that the debtor had a subjective motive to inflict the injury or that the debtor believed that injury was substantially certain to occur as a result of his conduct. We believe that this holding comports with the purpose bankruptcy law’s fundamental policy of granting discharges only to the honest but unfortunate debtor. Application of this standard to the state court’s factual findings demonstrates that the injury to Petralia was willful. As the state court found, Jercich knew he owed the wages to Petralia and that injury to Petralia was substantially certain to oc cur if the wages were not paid; and Jer-cich had the clear ability to pay Petralia his wages, yet chose not to pay and instead used the money for his own personal benefit. He therefore inflicted willful injury on Petr aha. 2. Maliciousness A “malicious” injury involves “(1) a wrongful act, (2) done intentionally, (3) which necessarily causes injury, and (4) is done without just cause or excuse.” In the present case, the state court found Jercich knew he owed Petralia the wages and that injury to Petralia was substantially certain to occur if the wages were not paid; that Jercich had the clear ability to pay Petralia the wages; and that despite his knowledge, Jercich chose not to pay and instead used the money for his own personal benefit. Jercich has pointed to no “just cause or excuse” for his behavior. Moreover, Jercich’s deliberate and willful failure to pay was found by the state trial court to constitute substantial oppression under California Civil Code § 3294, which by definition is “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that" }, { "docid": "8209259", "title": "", "text": "When all the evidence is measured against the preponderance standard, the Court cannot find that Defendant subjectively believed that an economic injury to Plaintiff was substantially certain to result from her having FSW gelded. No doubt, Defendant’s actions were reckless under the circumstances, in that gelding can be done at any time; it would have been more prudent for Defendant to wait until the parties’ property settlement was finalized. However, on this record, Plaintiff has simply not proven that Defendant intended to injury him, or his business, by what she did. The element of willfulness required for an exception to discharge under § 523(a)(6) has not been met. C. Maliciousness “A ‘malicious’ injury involves ‘(1) a wrongful act, (2) done intentionally, (3) which necessarily causes injury, and (4) is done without just cause or excuse.’ ” In re Su, 290 F.3d at 1146-47 (quoting Petralia v. Jercich (In re Jercich), 238 F.3d 1202, 1209 (9th Cir.2001) cert. denied, 533 U.S. 930, 121 S.Ct. 2552, 150 L.Ed.2d 718 (2001)); Elias, 03.4 I.B.C.R. at 246, 302 B.R. 900. Plaintiff has also not proven, by a preponderance of the evidence, that Defendant acted maliciously. Plaintiff cannot demonstrate that gelding FSW was “a wrongful act.” Defendant testified that gelding is routinely done in the care and maintenance of horses. There was no court order, or other legal restriction prohibiting Defendant from taking the action she did. Furthermore, as determined by the state court, FSW was community property at the time the horse was gelded. Again, while it may have been the prudent course for Defendant to obtain Plaintiffs consent before committing to such an irreversible path, under Idaho law, she had an equal right to manage and care for FSW in her own way, as did Plaintiff. Idaho Code § 32-912. Under these circumstances, the gelding was not a wrongful act. Next, the Court must consider whether the act was done intentionally, and the evidence clearly supports a finding that it was. The third element required to prove maliciousness is that the act must necessarily cause injury. As noted above, the evidence indicates that" }, { "docid": "15931906", "title": "", "text": "fails to address the fair market value of the vehicle on the date of the conversion — October 21, 2000. There was no evidence as to the value of the motor that was with the Joker when it was traded by Leonard to Guillory nor whether that motor was ultimately returned to Leonard. There was also no evidence concerning the time and monies, if any, expended in pursuit of the property. Based on the record, the Court finds that Leonard sustained actual damages as a proximate result of Guillory’s conversion in the amount of $9,000. 3. Willfulness & Maliciousness Section 523(a)(6) requires separate findings on the issues of “willful” and “malicious.” The “willful” injury requirement of § 523(a)(6) is met “when it is shown either that the debtor had a subjective motive to inflict injury or that the debtor believed that injury was substantially certain to occur as a result of his conduct.” Carrillo v. Su (In re Su), 290 F.3d 1140, 1146-47 (9th Cir.2002); Jercich, 238 F.3d at 1208. A “malicious injury” involves “(1) a wrongful act, (2) done intentionally, (3) which necessarily causes injury, and (4) is done without just cause or excuse.” Jercich, 238 F.3d at 1209. In this case, Guillory’ conversion of Leonard’s property was both willful and malicious. The record reveals that Guillory was disenchanted with automobile racing within four months after trading his Ford pickup for the Joker. He had lost his job with Jim Williams and wanted his truck back. Guillory testified at his déposition that he told his friend and co-worker, Roberto Clemente, that he intended to get his truck back. Guillory knew that Leonard relied on the Ford pickup in his business. Guillory testified at trial that he knew Leonard had invested up to $5,000 improving the Ford pickup since April 18, 2000, but took no action to prevent Leonard from investing money into the vehicle. Guillory also testified that he knew Leonard wanted the Ford pickup’s certificate of title to transfer title to his name, but he never discussed the matter with Leonard nor took any action to either correct" }, { "docid": "1450055", "title": "", "text": "Court found that definition to be too attenuated. It held that § 523(a)(6) requires a “deliberate or intentional injury, not merely a deliberate or intentional act that leads to injury.” Id. at 977 (emphasis in original). Unfortunately, since Kawaauhau was decided, there seems to be some confusion among the circuits as to how to interpret Kawaauhau’s stated standard. One school of thought interprets intentional injury to include either an objective certainty that injury will result from the debtor’s intentional act or a subjective intent that the act will cause injury. See, e.g., Miller v. J.D. Abrams, Inc., 156 F.3d 598, 603 (5th Cir.1998) (“[Ejither objective substantial certainty or subjective motive meets the Supreme Court’s definition.”). The other view rejects any objective criteria. According to those cases, “the willful injury requirement of § 523(a)(6) is met when it is shown either that the debtor had a subjective motive to inflict the injury or that the debtor believed that injury was substantially certain to occur as a result of his conduct.” See, e.g., Carrillo v. Su (In re Su), 290 F.3d 1140, 1144 (9th Cir.2002) (quoting Petralia v. Jercich (In re Jercich), 238 F.3d 1202, 1208 (9th Cir.2001)). The Tenth Circuit has not spoken to that distinction in any published opinion. It did, however, directly address it in an unpublished opinion. There the Tenth Circuit soundly rejected the notion that a finding of objective substantial certainty that an act will cause injury is the equivalent of the debtor’s intent to cause injury. In Via Christi Regional Medical Ctr. v. Englehart (In re Englehart), 229 F.3d 1163, 2000 WL 1275614 (10th Cir.2000) (unpublished disposition), the court observed that “the ‘willful and malicious injury’ exception to dischargeability in § 523(a)(6) turns on the state of mind of the debtor, who must have wished to cause injury or at least believed it was substantially certain to occur.” Id. at *3 (empha sis added). The same standard was used by the Tenth Circuit Bankruptcy Appellate Panel in Mitsubishi Motors Credit of America, Inc. v. Longley (In re Longley), 235 B.R. 651 (10th Cir. BAP 1999), where" } ]

[ { "docid": "7615606", "title": "", "text": "absent immunity, an individual may assert the privilege against self-incrimination at any proceeding, be it civil or criminal, “wherever the answer might tend to subject to criminal responsibility him who gives it.” McCarthy v. Arndstein, 266 U.S. 34, 40, 45 S.Ct. 16, 69 L.Ed. 158 (1924). Moreover, an individual may not be held in contempt for refusing to answer on Fifth Amendment grounds, where there is a basis for asserting the privilege, unless the individual is afforded immunity that is eo-extensive with the protection afforded by the Fifth Amendment. See Kastigar, 406 U.S. at 462, 92 S.Ct. 1653. Finally, the Fifth Amendment operates to preclude the government’s use of compelled testimony at trial in its case in chief. See Oregon v. Elstad, 470 U.S. 298, 306-7, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985). While the manner in which the Fifth Amendment operates to protect an individual from self-incrimination is clear, what is not clear is when the Fifth Amendment is actually violated for purposes of allowing the imposition of liability for damages pursuant to 42 U.S.C. § 1983. Until recently, the law in the Ninth Circuit was that the Fifth Amendment is violated at the moment police coerce or compel a statement from a suspect, and therefore the Ninth Circuit recognized a § 1983 claim based on mere coercion. See Cooper v. Dupnik, 963 F.2d 1220, 1243 (9th Cir.1992) (en banc), overruled by Chavez v. Martinez, 538 U.S. 760, 123 S.Ct. 1994, 155 L.Ed.2d 984 (2003). However, a majority of the Justices in Chavez rejected Cooper’s holding and concluded that the act of coercing a statement from a suspect, in and of itself, is not an act in violation of the Fifth Amendment self-incrimination clause upon which a § 1983 claim may be predicated. Justice Thomas, joined by the Chief Justice and two other Justices, concluded that in order for the Fifth Amendment to be implicated, the suspect must be compelled, in a criminal case, to be a witness against himself. These four Justices concluded that there is no criminal case for Fifth Amendment purposes until, at the earliest, “legal" } ]

[ { "docid": "23565709", "title": "", "text": "Chavez, 538 U.S. at 773-74, 123 S.Ct. 1994; Rex v. Teeples, 753 F.2d 840, 843 (10th Cir.l985)(\"Extracting an involuntary confession by coercion is a due process violation.”)(citing Haynes v. Washington, 373 U.S. 503, 513-15, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963) and Spano v. New York, 360 U.S. 315, 320-23, 79 S.Ct. 1202, 3 L.Ed.2d 1265 (1959)); Duncan v. Nelson, 466 F.2d 939, 944-45 (7th Cir.), cert. denied, 409 U.S. 894, 93 S.Ct. 175, 34 L.Ed.2d 152 (1972). . The defendants argue that the presiding judge or prosecutor is responsible and therefore liable for the constitutional violation; but, of course, judges and prosecutors enjoy absolute immunity for their judicial decisions and prosecutorial functions, respectively. Stump v. Sparkman, 435 U.S. 349, 356-57, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978); Imbler v. Pachtman, 424 U.S. 409, 420, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). Whether an objectively reasonable officer could be aware, as he was improperly obtaining a suspect's statement, that he could be violating that individual's Fourteenth Amendment substantive due process rights is a separate question that we do not address, as LaCresha did not allege a violation of her Fourteenth Amendment rights. See Chavez, 538 U.S. at 773, 123 S.Ct. 1994 (2003)(\"Our views on the proper scope of the Fifth Amendment’s Self-Incrimination Clause do not mean that police torture or other abuse that results in a confession is constitutionally permissible so long as the statements are not used at trial; it simply means that the Fourteenth Amendment’s Due Process Clause, rather than the Fifth Amendment's Self-Incrimination Clause, would govern the inquiry in those cases and provide relief in appropriate circumstances.”)(emphasis in original). . Sims v. Adams, 537 F.2d 829, 831 (5th Cir.1976). . Monroe v. Pape, 365 U.S. 167, 187, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), over-ruled on other grounds, Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)(holding that plaintiffs may sue municipalities for civil rights violations using § 1983). . Restatement 2d of Torts § 440-41 (1965). . 475 U.S. 335, 345 n. 7, 106" }, { "docid": "164422", "title": "", "text": "he is entitled to qualified immunity on the Stoots’ Fourth Amendment claim. II. Fifth Amendment Claims The Stoots also allege that Jensen violated Paul’s Fifth Amendment right against self-incrimination by coercing a confession during the interrogation at Paul’s school. Defendants argue — and the district court held — that the Stoots cannot state a claim under the Fifth Amendment because Paul’s statements were never used against him at trial. For the reasons set forth below we disagree. A. “Use” Of A Statement In A “Criminal Case” Our consideration of this coerced confession issue begins with a fairly recent Supreme Court case, Chavez v. Martinez, 538 U.S. 760, 123 S.Ct. 1994, 155 L.Ed.2d 984 (2003), which establishes the parameters of the problem we face but does not solve it. Chavez addressed whether a former criminal suspect could sue a police officer under § 1983 for coercing a confession in violation of his Fifth Amendment rights. Specifically, the police failed to give the suspect, Oliverio Martinez, any Miranda warnings, and interrogated him under circumstances alleged to be extremely coercive. Martinez made several incriminating statements but was never charged with any crime. Id. at 764, 123 S.Ct. 1994. He subsequently brought suit under § 1983 for violation of his Fifth Amendment right “not to be compelled in any criminal case to be a witness against himself’ and his Fourteenth Amendment substantive due process right to be free from coercive questioning. Id. at 765, 123 S.Ct. 1994 (internal quotation marks omitted). In a set of opinions, none of which commanded a majority on the Fifth Amendment issue, the Court held that coercive police questioning does not violate the Fifth Amendment, absent use of the statements in a criminal case. See id. at 766, 123 S.Ct. 1994 (“We fail to see how, based on the text of the Fifth Amendment, Martinez can allege a violation of this right, since Martinez was never prosecuted for a crime, let alone compelled to be a witness against himself in a criminal case.”) (Thomas, J., joined by Rehnquist, C.J., O’Connor, J., and Scalia, J.); id. at 777-78, 123 S.Ct." }, { "docid": "23375810", "title": "", "text": "See Oregon v. Elstad, 470 U.S. 298, 304-05, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985). Specifically, Marrero claims that police questioned him when he was “unable to fully and knowingly participate in any conversation” due to the fact that he had been stunned with a taser multiple times during his struggle with police officers. While a statement is involuntary, and thus inadmissible, when “obtained by ‘techniques and methods offensive to due process’ or under circumstances in which the suspect clearly had no opportunity to exercise ‘a free and unconstrained will,’” id. at 304, 105 S.Ct. 1285 (quoting Haynes v. Washington, 373 U.S. 503, 515, 514, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963)), the officers in this case did not question Marrero under coercive circumstances. Officer Kenny’s testimony at the evidentiary hearing reflects that, prior to questioning, Marrero was given water and the opportunity to rest. Furthermore, Marrero was examined by medical personnel, and he declined to go to the hospital. Based on the evidence presented, the district court found “no evidence whatsoever of coercion or threats or other force being used by the police officers to adduce a statement from the defendant.” Thus, the district court did not err by refusing to suppress Marrero’s statements to police as an involuntary confession. Marrero also challenges the admissibility of his confession under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). After Miranda, “[statements made by a defendant in response to interrogation while in police custody are not admissible unless the defendant has first been apprized [sic] of the constitutional right against self-incrimination and has validly waived this right.” United States v. Cole, 315 F.3d 633, 636 (6th Cir.2003). Marrero alleges that he was questioned by police before being given the Miranda warnings. However, at the suppression hearing, Officer Kenny testified that he administered the Miranda warnings to Marrero before questioning began. As a result, the district court determined that “the defendant was given his Miranda warnings by the officer [and] he waived his rights to speak to the officer without the benefit of [a] lawyer.” This factual" }, { "docid": "23565707", "title": "", "text": "questioning by trickery or deceit) with Haley v. Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224 (1948) (holding that a 15-year-old who had been arrested at midnight, taken to a police station and subjected to continuous interrogation by a rotation of several police officers, without counsel or friend, until he confessed to participating in a robbery and shooting, had not voluntarily confessed). . See E.A.W. v. State, 547 S.W.2d 63, 64 (Tex.Civ.App. — Waco 1977, no writ)(holding that an eleven-year-old child cannot knowingly, intelligently, and voluntarily waive her constitutional privilege against self-incrimination after spending nine hours, from midnight to nine a.m., in a detention facility, and without the guidance of a parent, guardian or attorney). . Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). . Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002). . See Chavez v. Martinez, 538 U.S. 760, 770, 123 S.Ct. 1994, 155 L.Ed.2d 984 (2003). . See Oregon v. Elstad, 470 U.S. 298, 307, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985)(ruling that failure to Mirandize a witness before his confession automatically results in exclusion of the statement's use in the prosecution’s case in chief); United States v. Blue, 384 U.S. 251, 255, 86 S.Ct. 1416, 16 L.Ed.2d 510 (1966) (''Even if we assume that the Government did acquire incriminating evidence in violation of the Fifth Amendment, Blue would at most be entitled to suppress the evidence and its fruits if they were sought to be used against him at trial”). . See Crowe v. County of San Diego, 303 F.Supp.2d 1050, 1091-92 (S.D.Cal.2004). The Crowe court also observed that it would be unfair to subject to civil liability under § 1983 only those police officers whose improper questioning produced statements admitted at trial but exonerate those officers whose questioning violated defendants’ civil rights more egregiously, resulting in statements excluded by the trial court. 303 F.Supp.2d at 1092. We find this logic unpersuasive, as defendants abused by the police during their interrogations may bring suit for violation of their Fourteenth Amendment rights. See" }, { "docid": "21879393", "title": "", "text": "20 at 3 n. 4.) Second, Defendant argues that Plaintiff has not alleged a Sixth Amendment violation in connection with his allegedly coercive interrogation. As explained, the first of these arguments is rejected and the second is credited, such that Count IV is dismissed in part, a. Fifth Amendment Claim Concerning Coercive Interrogation and Confession and Prosecution Without Due Process of Law The Fifth Amendment, made applicable to the States by the Fourteenth Amendment, provides that “[n]o person ... shall be compelled in any criminal case to be a witness against himself.” U.S. Const., amend. V. Defendant asserts that Chavez v. Martinez, 538 U.S. 760, 123 S.Ct. 1994, 155 L.Ed.2d 984 (2003), held that the Fifth Amendment protection against self-incrimination does not provide any basis for civil liability. The Court respectfully rejects Defendant’s argument, as the Court believes it overreads the holding in Chavez, which ruled that the plaintiff in that case was not entitled to a Section 1983 claim for a violation of his Fifth Amendment right because, unlike the instant case, his coerced statements were never used against him in a criminal prosecution. See Chavez, 538 U.S. 760, 123 S.Ct. 1994 (“We fail to see how ... [plaintiff] can allege a violation of the [Fifth Amendment] right, since ... [plaintiff] was never prosecuted for a crime, let alone compelled to be a witness against himself.”) (plurality opinion); id. at 769, 123 S.Ct. 1994 (instructing that “mere coercion does not violate the test of the Self-Incrimination clause absent use of the compelled statements in a criminal case against the witness”) (plurality opinion) (emphasis added); id. at 777, 123 S.Ct. 1994 (Souter, J., concurring in part and delivering the judgment of the Court in part) (finding, where statements were not used against the declarant at any criminal trial, that allowing a Fifth Amendment/Section 1983 suit would be improper). Nothing in Chavez, however, suggests that the Supreme Court rejected the idea of civil recovery under Section 1983 for the use of coerced confessions in actual criminal prosecutions. The Supreme Court was dealing with what was, at least in a majority of" }, { "docid": "23565708", "title": "", "text": "84 L.Ed.2d 222 (1985)(ruling that failure to Mirandize a witness before his confession automatically results in exclusion of the statement's use in the prosecution’s case in chief); United States v. Blue, 384 U.S. 251, 255, 86 S.Ct. 1416, 16 L.Ed.2d 510 (1966) (''Even if we assume that the Government did acquire incriminating evidence in violation of the Fifth Amendment, Blue would at most be entitled to suppress the evidence and its fruits if they were sought to be used against him at trial”). . See Crowe v. County of San Diego, 303 F.Supp.2d 1050, 1091-92 (S.D.Cal.2004). The Crowe court also observed that it would be unfair to subject to civil liability under § 1983 only those police officers whose improper questioning produced statements admitted at trial but exonerate those officers whose questioning violated defendants’ civil rights more egregiously, resulting in statements excluded by the trial court. 303 F.Supp.2d at 1092. We find this logic unpersuasive, as defendants abused by the police during their interrogations may bring suit for violation of their Fourteenth Amendment rights. See Chavez, 538 U.S. at 773-74, 123 S.Ct. 1994; Rex v. Teeples, 753 F.2d 840, 843 (10th Cir.l985)(\"Extracting an involuntary confession by coercion is a due process violation.”)(citing Haynes v. Washington, 373 U.S. 503, 513-15, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963) and Spano v. New York, 360 U.S. 315, 320-23, 79 S.Ct. 1202, 3 L.Ed.2d 1265 (1959)); Duncan v. Nelson, 466 F.2d 939, 944-45 (7th Cir.), cert. denied, 409 U.S. 894, 93 S.Ct. 175, 34 L.Ed.2d 152 (1972). . The defendants argue that the presiding judge or prosecutor is responsible and therefore liable for the constitutional violation; but, of course, judges and prosecutors enjoy absolute immunity for their judicial decisions and prosecutorial functions, respectively. Stump v. Sparkman, 435 U.S. 349, 356-57, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978); Imbler v. Pachtman, 424 U.S. 409, 420, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). Whether an objectively reasonable officer could be aware, as he was improperly obtaining a suspect's statement, that he could be violating that individual's Fourteenth Amendment substantive due process rights is a separate question" }, { "docid": "23565702", "title": "", "text": "U.S. 730, 736, 739, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002). Defendants Emmons and Blazey are each prosecuting attorneys in Travis County, however, they are entitled to claim only qualified immunity rather than the absolute immunity normally enjoyed by prosecutors. LaCresha is suing them for the legal advice which they provided the police investigators, for which they are not entitled to absolute immunity. See Burns v. Reed, 500 U.S. 478, 496, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991)(holding that absolute immunity does not protect the prosecutorial function of giving advice to the police). . LaCresha spent three years in juvenile detention as a result of her conviction. . Miranda v. Arizona, 384 U.S. 436, 465 n. 33, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The Supreme Court has held that § 1983 plaintiffs do not have a Fifth Amendment claim against law-enforcement officials who have elicited unlawful confessions if those confessions are not then introduced against the plaintiffs in criminal proceedings. This case is distinguishable, as LaCresha's statement was admitted at trial and did result in her conviction. See Chavez v. Martinez, 538 U.S. 760, 123 S.Ct. 1994, 155 L.Ed.2d 984 (2003). . Chavez, 538 U.S. at 767, 123 S.Ct. 1994; United States v. Verdugo-Urquidez, 494 U.S. 259, 264, 110 S.Ct. 1056, 108 L.Ed.2d 222 (1990)(internal citations omitted). . In re Gault, 387 U.S. 1, 30-31, 55, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). . Id. at 55, 87 S.Ct. 1428. \"[A]uthoritative opinion has cast formidable doubt upon the reliability and trustworthiness of 'confessions' by children.” Id. at 52, 87 S.Ct. 1428. . See Illinois v. Perkins, 496 U.S. 292, 296, 110 S.Ct. 2394, 110 L.Ed.2d 243 (1990)(citing Miranda, 384 U.S. at 444, 86 S.Ct. 1602); United States v. Gonzales, 121 F.3d 928, 939 (5th Cir.1997)(\"It is axiomatic that 'the Fifth Amendment privilege against self-incrimination prohibits admitting statements given by a suspect during \"custodial interrogation” without a prior warning.'\")(quoting Perkins, 496 U.S. at 296, 110 S.Ct. 2394). . Gonzales, 121 F.3d at 939 (5th Cir.1997)(citing Perkins, 496 U.S. at 296, 110 S.Ct. 2394)(internal quotations omitted). . Gonzales, 121 F.3d at" }, { "docid": "21723121", "title": "", "text": "We con-' elude that there is also, a genuine issue of material fact as to whether Defendants compelled McKinley to make statements that would incriminate him as to the crimes of falsification and obstruction. If McKinley was in fact a target of such an investigation, and if Fortney and Goldsmith in fact forced him to make the incriminating statements latér used against him in his trial for falsification and obstruction, he was “compelled in [a] criminal case to be a witness against himself.” u.S. Const, amend V. This core protection against forced self-incrimination, binding on the federal government by virtue of the Fifth Amendment itself, is applicable to the states by virtue of .the Fourteenth Amendment. Malloy v. Hogan, 378 U.S. 1, 8, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). While the Supreme Court has devised procedural safeguards to guard against forced self-incrimination before judicial proceedings begin, see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and while until recently courts interpreted the Fifth Amendment to prohibit coercive questioning ipso facto, see Cooper v. Dupnik, 963 F.2d 1220, 1242-14 (9th Cir.) (en banc), cert. denied, 506 U.S. 953, 113 S.Ct. 407, 121 L.Ed.2d 332 (1992) (sustaining a § 1983 action against police officers even though the plaintiffs coerced statements were not used at any proceeding), it is now clear that “mere coercion does not violate the •... Self-Incrimination Clause absent use of the compelled statements in a criminal case.” Chavez v. Martinez, 538 U.S. 760, 769, 123 S.Ct. 1994, 155 L.Ed.2d 984 (2003) (plurality opinion). It is only once compelled incriminating statements are used in a criminal proceeding, as a plurality of six justices held in Chavez v. Martinez, that an accused has suffered the requisite constitutional injury for purposes of a § 1983 action. Id. at 769, 772-73, 123 S.Ct. 1994. See also Lingler v. Fechko, 312 F.3d 237, 238-40 (6th Cir.2002) (finding no Fifth Amendment violation sufficient -to sustain a § 1983 action where police officer-employees who had made incriminating statements in compulsory interviews with superiors were never prosecuted). In this case, it" }, { "docid": "22472088", "title": "", "text": "manner]; or that the questions are adequate to deserve encouragement to proceed further.” Id. at 893 n. 4, 103 S.Ct. at 3394-95 n. 4 (internal quotation marks and citation omitted, emphasis added, and alteration in original); accord Nelson v. Walker, 121 F.3d 828, 832 (2d Cir.1997). Tankleffs claims clearly satisfy this standard: we have determined that Tankleffs Batson claim has substantial merit; the Appellate Division split three-to-two on both the Miranda question and the propriety of the prosecution’s summation; and the district court thought that the Brady issue was a “close call.” It follows that Tankleffs claims are all properly before this court. B. Tankleffs Confession Tankleff argues that his confession should have been suppressed because it was involuntary and because it was obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). These two claims are interrelated, but analytically distinct. If a defendant’s confession was obtained by “‘techniques and methods offensive to due process’ or under circumstances in which the suspect clearly had no opportunity to exercise ‘a free and unconstrained will,’ ” the statements are inadmissible under the Fifth Amendment. Oregon v. Elstad, 470 U.S. 298, 304, 105 S.Ct. 1285, 1290, 84 L.Ed.2d 222 (1985) (quoting Haynes v. Washington, 373 U.S. 503, 515, 514, 83 S.Ct. 1336, 1344, 1343-44, 10 L.Ed.2d 513 (1963)) (citations omitted). The prophylactic rule of Miranda sweeps more broadly than the Fifth Amendment itself, however, and requires the suppression of some confessions that, while perhaps not actually involuntary, were obtained in the presumptively coercive environment of police custody. See, e.g., id. at 306-07,105 S.Ct. at 1291-92; New York v. Quarles, 467 U.S. 649, 654, 104 S.Ct. 2626, 2630-31, 81 L.Ed.2d 550 (1984) (“The Miranda Court ... presumed that interrogation in certain custodial circumstances is inherently coercive and held that statements made under those circumstances are inadmissible unless the suspect is specifically informed of his Miranda rights and freely decides to forgo those rights.”) (footnote omitted). A suspect is entitled to Miranda warnings only if he or she is interrogated while “in custody.” See, e.g., Thompson v. Keohane," }, { "docid": "3919499", "title": "", "text": "Nor do we perceive any material distinction between Hannon’s claim and those analyzed in Warren and Brock based on the fact that evidence allegedly obtained in violation of Miranda was admitted against Hannon at trial (before the first conviction was reversed on appeal), while the disputed statements in Warren and Brock were never used against the suspects in a criminal case. The text of the Fifth Amendment is focused on the use in a criminal case of a defendant’s compelled, self-incriminating testimony. See Chavez v. Martinez, 538 U.S. 760, 777, 123 S.Ct. 1994, 155 L.Ed.2d 984 (2003) (Souter, J., concurring in the judgment). Statements obtained in violation of the Miranda rule are not “compelled,” and the use of such statements in a criminal case does not amount to compelled self-incrimination. The admission at trial of statements obtained in violation of Miranda thus does not implicate the core of the Fifth Amendment, and it does not result in the deprivation of a “right[ ] ... secured by the Constitution” within the meaning of § 1983, any more than does the eliciting of the statements in the first place. See Bennett v. Passic, 545 F.2d 1260, 1263 (10th Cir.1976) (“Even assuming that Bennett’s confession should have been excluded from the evidence at his trial, the court cannot find that any rational argument can be made in support of this civil rights claim for damages.”). We are fortified in this view by the post-Dickerson opinions in Chavez v. Martinez. A four-justice plurality in Chavez concluded that a police officer’s “failure to read Miranda warnings to Martinez did not violate Martinez’s constitutional rights and cannot be grounds for a § 1983 action,” id. at 772, 123 S.Ct. 1994, and a fifth Justice explained that “[t]he exclusion of unwarned statements, when not within an exception [to the Miranda rule], is a complete and sufficient remedy.” Id. at 790, 123 S.Ct. 1994 (Kennedy, J., concurring in part and dissenting in part). This led Justice Scalia to summarize that “[s]ection 1983 does not provide remedies for violations of judicially created prophylactic rules, such as the rule of" }, { "docid": "13798347", "title": "", "text": "as intervening time, removal of the prisoner to a different place, and change in identity of interrogators can render statements admissible. Oregon v. Elstad, 470 U.S. 298, 310, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985); United States v. Daniel, 932 F.2d 517, 519 (6th Cir.1991). In other circumstances, if certain coercive statements by police are made, coupled with some voluntary statements by the accused, the court must decide under the totality of the circumstances whether the alleged coercion in question was sufficient to overbear the will of the accused. See United States v. Murphy, 107 F.3d 1199, 1205-06 (6th Cir.1997) (low intelligence, lack of warning, and placement in police cruiser for short time are insufficient to establish coercion in this case, absent any other evidence that defendant’s will was overborne). It is important to remember that the “mere failure to give Miranda warnings does not, by itself, violate a suspect’s constitutional rights or even the Miranda rule.” United States v. Patane, 542 U.S. 630, 124 S.Ct. 2620, 2628, 159 L.Ed.2d 667 (2004); see also Chavez v. Martinez, 538 U.S. 760, 772-73, 123 S.Ct. 1994, 155 L.Ed.2d 984 (2003) (plurality opinion). “Potential violations occur, if at all, only upon the admission of unwarned statements into evidence at trial.” Patane, 124 S.Ct. at 2629. In this case, Montgomery argues that the police interrogated him on the way to jail about the murders without first giving him his Miranda rights. Testimony given by officers at the hearing on the motion to suppress Montgomery’s statements in the police car suggests otherwise. Montgomery was transported from his uncle’s home to the Safety Building by Detective Marx and Sergeant Przeslawski. (9/17/86 Tr. 8) Det. Marx denied questioning Montgomery about the murders either at his uncle’s home or anytime before Montgomery read his rights. (9/17/86 Tr. 9-10, 21) Sgt. Przeslawski testified as follows: Q. And you served a forgery warrant on Mr. Montgomery when you met him at his uncle’s house? A. He was informed and shown the warrants, yes. As far as physically handing them to him in the house, no; but the warrants were in" }, { "docid": "23565706", "title": "", "text": "voluntariness of a confession depends on public officials’ compliance with constitutional norms, not on any rule of state law.”). . Fare v. Michael C., 442 U.S. 707, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979); Gachot v. Stadler, 298 F.3d 414, 418 (5th Cir.2002). . Fare, 442 U.S. at 725, 99 S.Ct. 2560; Gachot, 298 F.3d at 418-19 (quoting Fare, 442 U.S. at 725, 99 S.Ct. 2560). . In re Gault, 387 U.S. 1, 55, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). . 298 F.3d at 416, 421. . Id. (noting that the defendant was accompanied by his brother during the interrogation, voluntarily went to the police station for questioning, and was there for approximately four hours). Compare Fare, 442 U.S. at 726-27, 99 S.Ct. 2560 (holding 16 1/2 year-old juvenile voluntarily and knowingly waived his Fifth Amendment rights during an interrogation as he had considerable experience with the police, having a record of several arrests, sufficient intelligence to understand the rights he was waiving, and was not worn down by improper interrogation tactics or lengthy questioning by trickery or deceit) with Haley v. Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224 (1948) (holding that a 15-year-old who had been arrested at midnight, taken to a police station and subjected to continuous interrogation by a rotation of several police officers, without counsel or friend, until he confessed to participating in a robbery and shooting, had not voluntarily confessed). . See E.A.W. v. State, 547 S.W.2d 63, 64 (Tex.Civ.App. — Waco 1977, no writ)(holding that an eleven-year-old child cannot knowingly, intelligently, and voluntarily waive her constitutional privilege against self-incrimination after spending nine hours, from midnight to nine a.m., in a detention facility, and without the guidance of a parent, guardian or attorney). . Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). . Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002). . See Chavez v. Martinez, 538 U.S. 760, 770, 123 S.Ct. 1994, 155 L.Ed.2d 984 (2003). . See Oregon v. Elstad, 470 U.S. 298, 307, 105 S.Ct. 1285," }, { "docid": "9648175", "title": "", "text": "use of the resulting compelled testimony at trial in its case in chief. See Oregon v. Elstad, 470 U.S. 298, 306-7, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985). What is not entirely clear is when a § 1983 action may be predicated upon a violation of the Fifth Amendment. The Supreme Court in Chavez v. Martinez, 538 U.S. 760, 123 S.Ct. 1994, 155 L.Ed.2d 984 (2003) was confronted with the issue of whether the § 1983 plaintiff, Martinez, had made out a Fifth Amendment claim where the police had compelled statements from Martinez during interrogation but where those statements were never used by the police or prosecutors because Martinez was never charged with a crime. Justice Thomas, joined by the Chief Justice and two other Justices, concluded: Here, Martinez was never made to be a “witness” against himself in violation of the Fifth Amendment’s Self-Incrimination Clause because his statements were never admitted as testimony against him in a criminal case. Nor was he ever placed under oath and exposed to “ ‘the cruel trilemma of self-accusation, perjury or contempt.’’ ” Michigan v. Tucker, 417 U.S. 433, 445, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974) (quoting Murphy v. Waterfront Comm’n of N.Y. Harbor, 378 U.S. 52, 55, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964)). Chavez, 538 U.S. at 767, 123 S.Ct. 1994 (emphasis added) (Thomas, J.). This same plurality also explained that although the Supreme Court has “permitted the Fifth Amendment’s self-incrimination privilege to be asserted in noncriminal cases, that does not alter our conclusion that a violation of the constitutional right against self-incrimination occurs only if one has been compelled to be a witness against himself in a criminal case.” Id. at 770, 123 S.Ct. 1994 (internal citations and quotations omitted) (first and third emphasis added). Although declining to define the term “criminal case,” this plurality concluded that a “criminal case” does not include an interrogation. See id. at 766-7, 123 S.Ct. 1994 (“We need not decide today the precise moment when a ‘criminal case’ commences; it is enough to say that police questioning does not constitute a ‘case’ any" }, { "docid": "22289798", "title": "", "text": "and Anderson violated their Fifth Amendment privilege against compelled self-incrimination. The district court granted summary judgment in favor of defendants, relying primarily on its interpretation of Chavez v. Martinez, 538 U.S. 760, 123 S.Ct. 1994, 155 L.Ed.2d 984 (2003). Crowe I, 303 F.Supp.2d at 1091-93; Crowe II, 359 F.Supp.2d at 1030. Prior to Chavez, the rule in our Circuit was that a § 1983 cause of action for a violation of the Fifth Amendment’s Self-Incrimination Clause arose as soon as police employed coercive means to compel a statement. See Cooper v. Dupnik, 963 F.2d 1220, 1242 (9th Cir.1992). In Chavez, the Supreme Court held that mere coercion does not create a cause of action under § 1983 for a violation of the Self-Incrimination Clause, absent use of the compelled statement in a criminal case. As we have recently held, however, Chavez does not preclude § 1983 claims for Fifth Amendment violations when the coerced confession is used in certain pretrial proceedings. See Stoot v. City of Everett, 582 F.3d 910, 925-26 (9th Cir.2009). Because statements obtained during Michael’s and Aaron’s interrogations were used in pre-trial proceedings of the type discussed in Stoot, namely the “Dennis H.” hearing, the grand jury proceedings, and the 707 hearing, we must reverse the district court’s grant of summary judgment. A We begin with Chavez, which provides the underpinnings of our analysis. Chavez involved a § 1983 case arising out of the coerced confession of Oliverio Martinez. Two police officers became involved in an altercation with Martinez and one of the officers ultimately shot Martinez several times, causing severe injuries including blindness and paralysis. Chavez, 538 U.S. at 764, 123 S.Ct. 1994. The officers then arrested Martinez and sent him to a hospital with paramedics. Id. At the hospital, another officer, Chavez, questioned Martinez while he was receiving medical treatment. Id. During the questioning, Mar tinez was in severe pain and stated several times that he was dying. Id. at 784-86, 123 S.Ct. 1994 (Stevens, J., concurring in part and dissenting in part). Martinez was never Mirandized and was never ultimately charged with a crime." }, { "docid": "23672125", "title": "", "text": "the district court’s Miranda ruling because of Chavez v. Martinez, 538 U.S. 760, 123 S.Ct. 1994, 155 L.Ed.2d 984 (2003), in which the Supreme Court narrowed the availability of the Fifth Amendment as a basis for civil liability. In Chavez, the § 1983 plaintiff Mar tinez had made incriminating statements while in police custody without receiving Miranda warnings. He never was prosecuted, but filed a § 1983 action against Chavez, the officer who had questioned him. In that action, Martinez alleged that Chavez violated his Fifth Amendment right to be free from self-incrimination as well as his Fourteenth Amendment substantive due process right to be free from coercive questioning. The Supreme Court, in a plurality opinion, held that the police officer’s questioning of Martinez without Miranda warnings did not violate his rights under the Self-Incrimination Clause of the Fifth Amendment because his compelled statements had not been used against him in a criminal case. The plurality reasoned that Miranda “created prophylactic rules designed to safeguard the core constitutional right protected by the Self-Incrimination Clause,” id. at 770, 123 S.Ct. 1994, namely that “[n]o person ... shall be compelled in any criminal case to be a witness against himself,” id. at 766, 123 S.Ct. 1994 (citing, with added emphasis, U.S. Const, amend. V). The phrase “criminal case,” as it is employed in the Self-Incrimination Clause, requires, at the very least, the initiation of a legal proceeding, rather than mere police questioning, before a suspect’s self-incrimination rights are implicated. Id. at 767, 123 S.Ct. 1994 (“Statements compelled by police interrogations of course may not be used against a defendant at trial, ... but it is not until their use in a criminal case that a violation of the Self-Incrimination Clause occurs.”). Martinez never was prosecuted. Consequently, the absence of a criminal case “in which Martinez was compelled to be a ‘witness’ against himself’ defeated his claim for damages based on the Self-Incrimination Clause. Id. at 773, 123 S.Ct. 1994. After Chavez, therefore, violation of the Miranda safeguards cannot provide the basis for § 1983 liability without use of a suspect’s statements against" }, { "docid": "9648174", "title": "", "text": "1086-93. A review of Michael’s opposition to the current motion does not change this court’s previous conclusion regarding the scope of § 1983 liability for violation of the Fifth Amendment. The Fifth Amendment, which applies to the States via the Fourteenth Amendment, Malloy v. Hogan, 378 U.S. 1, 6, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964), provides that no person “shall be compelled in any criminal case to be a witness against himself....” U.S. CONST. amend. V. As the court explained in its previous order, the operation of the Fifth Amendment is clear in some respects. For example, the Fifth Amendment clearly affords one the right to assert the privilege of silence when being questioned in criminal or civil proceeding “wherever the answer might tend to subject to criminal responsibility him who gives it.” McCarthy v. Arndstein, 266 U.S. 34, 40, 45 S.Ct. 16, 69 L.Ed. 158 (1924). Moreover, if the assertion of that privilege is ignored or the privilege is involuntarily waived, it is clear that the Fifth Amendment operates to preclude the government’s use of the resulting compelled testimony at trial in its case in chief. See Oregon v. Elstad, 470 U.S. 298, 306-7, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985). What is not entirely clear is when a § 1983 action may be predicated upon a violation of the Fifth Amendment. The Supreme Court in Chavez v. Martinez, 538 U.S. 760, 123 S.Ct. 1994, 155 L.Ed.2d 984 (2003) was confronted with the issue of whether the § 1983 plaintiff, Martinez, had made out a Fifth Amendment claim where the police had compelled statements from Martinez during interrogation but where those statements were never used by the police or prosecutors because Martinez was never charged with a crime. Justice Thomas, joined by the Chief Justice and two other Justices, concluded: Here, Martinez was never made to be a “witness” against himself in violation of the Fifth Amendment’s Self-Incrimination Clause because his statements were never admitted as testimony against him in a criminal case. Nor was he ever placed under oath and exposed to “ ‘the cruel trilemma of" }, { "docid": "19006550", "title": "", "text": "Colon-Andino his rights (as safeguarded by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)) and denying him counsel upon his request while he was in custody at the police station following his arrest. The Fifth Amendment, which applies to the states through the Fourteenth Amendment, Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964), protects individuals from being compelled to be witnesses against themselves in any criminal case. U.S. Const. Amend. V. All that the Fifth Amendment forbids, however, is the introduction of coerced statements into trial. See United States v. Verdugo-Urquidez, 494 U.S. 259, 264, 110 S.Ct. 1056, 108 L.Ed.2d 222 (1990) (“The privilege against self-incrimination is a fundamental trial right of criminal defendants. Although conduct by law enforcement officials prior to trial may ultimately impair that right, a constitutional violation occurs only at trial”) (internal citations omitted). See also, New York v. Quarles, 467 U.S. 649, 686, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984) (Marshall, J., dissenting). The Supreme Court has explained that it has “created prophylactic rules designed to safeguard the core constitutional right protected by the Self-Incrimination Clause.” Chavez v. Martinez, 538 U.S. 760, 770, 123 S.Ct. 1994, 155 L.Ed.2d 984 (2003) (internal quotations and citations omitted). “Rules designed to safeguard a constitutional right” — “do not extend the scope of the constitutional right itself, just as violations of judicially crafted prophylactic rules do not violate the constitutional rights of any person.” 538 U.S. 760, 771, 123 S.Ct. 1994, 155 L.Ed.2d 984 (2003). The plaintiffs here have failed to satisfy the basic requirements showing a Fifth Amendment violation because ColonAndino was never compelled to be a witness against himself; the complaint alleges no facts showing that any statements made by Colon-Andino during his custodial interrogation were admitted as testimony against him in a criminal case. All that the complaint alleges is that Colon-Andino was charged for possession of a controlled substance and that during the preliminary hearing, the charge against him was dropped. Though two prophylactic safeguards against self-incrimination (Miranda warnings and counsel) were not provided to" }, { "docid": "23672124", "title": "", "text": "a suspect’s family or children, even if implicit, certainly may render confessions involuntary for purposes of due process. See, e.g., Lynumn v. Illinois, 372 U.S. 528, 533, 83 S.Ct. 917, 9 L.Ed.2d 922 (1963) (confession coerced when police told a female suspect that she was in jeopardy of losing welfare benefits and custody of her children); Rogers v. Richmond, 365 U.S. 534, 543, 81 S.Ct. 735, 5 L.Ed.2d 760 (1961) (confession coerced when police threatened to take suspect’s wife into custody if he did not confess); Spano v. New York, 360 U.S. 315, 323, 79 S.Ct. 1202, 3 L.Ed.2d 1265 (1959) (confession coerced when officer, a close friend of defendant, told defendant that officer would get in trouble if defendant did not confess). Moreover, the parties vehemently dispute which threats Officers Sheppard and Riley actually made to Teresa and when the officers made those threats. These issues of fact preclude summary judgment. There are similar issues of fact regarding whether Teresa received Miranda warnings before she confessed. The defendants contend, nevertheless, that we must affirm the district court’s Miranda ruling because of Chavez v. Martinez, 538 U.S. 760, 123 S.Ct. 1994, 155 L.Ed.2d 984 (2003), in which the Supreme Court narrowed the availability of the Fifth Amendment as a basis for civil liability. In Chavez, the § 1983 plaintiff Mar tinez had made incriminating statements while in police custody without receiving Miranda warnings. He never was prosecuted, but filed a § 1983 action against Chavez, the officer who had questioned him. In that action, Martinez alleged that Chavez violated his Fifth Amendment right to be free from self-incrimination as well as his Fourteenth Amendment substantive due process right to be free from coercive questioning. The Supreme Court, in a plurality opinion, held that the police officer’s questioning of Martinez without Miranda warnings did not violate his rights under the Self-Incrimination Clause of the Fifth Amendment because his compelled statements had not been used against him in a criminal case. The plurality reasoned that Miranda “created prophylactic rules designed to safeguard the core constitutional right protected by the Self-Incrimination Clause,” id." }, { "docid": "14088696", "title": "", "text": "U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963); Chambers v. Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716 (1940)). The rule in Miranda arose out of a concern that the “possibility of coercion inherent in custodial interrogations unacceptably raises the risk that a suspect’s privilege against self-incrimination might be violated.” United States v. Patane, 542 U.S. 630, 639, 124 S.Ct. 2620, 159 L.Ed.2d 667 (2004) (citing Dickerson v. United States, 530 U.S. 428, 434-35, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000) and Miranda, 384 U.S. at 467, 86 S.Ct. 1602). As such, a police officer’s failure to administer Miranda warnings prior to a custodial interrogation “creates a presumption of compulsion,” Elstad, 470 U.S. at 307, 105 S.Ct. 1285, and the confession is inadmissible with no need for the “time-consuming and difficult enquiry into voluntariness,” Pa-tane, 542 U.S. at 646, 124 S.Ct. 2620 (Souter, J., dissenting). Unlike evidence obtained through a Fourth Amendment violation, however, the Miranda presumption does not require that the “fruits [of unlawfully obtained confessions] be discarded as inherently tainted.” Elstad, 470 U.S. at 307, 105 S.Ct. 1285. Indeed, the Supreme Court has rejected automatic application of the “fruits” doctrine to violations of the Miranda rule on several occasions. See Missouri v. Seibert, 542 U.S. 600, 619, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004) (Kennedy, J., concurring) (stating that “the scope of the Miranda suppression remedy depends on a consideration” of whether the central concerns of Miranda are implicated as well as the objectives of the criminal justice system). For example, the prosecution is still permitted to use statements taken in violation of Miranda for impeachment purposes on cross-examination, see Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971); the prosecution may still introduce testimony of a third party whose whereabouts were determined through statements obtained in violation of Miranda, see Michigan v. Tucker, 417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974); and the prosecution may still introduce physical evidence seized as a result of a Miranda violation, see Patane, 542 U.S. 630, 124 S.Ct. 2620, 159 L.Ed.2d" }, { "docid": "14088695", "title": "", "text": "in the only effectively available way — by removing the incentive to disregard it.” Brown v. Illinois, 422 U.S. 590, 599-600, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). Accordingly, the exclusionary rule as it applies to the Fourth Amendment is broad and witnesses and evidence (including confessions), no matter how probative, discovered only as a result of a Fourth Amendment violation, must be excluded from evidence. Wong Sun, 371 U.S. at 485-86, 83 S.Ct. 407; Oregon v. Elstad, 470 U.S. 298, 306, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985). On the other hand, Miranda’s exclusionary rule serves the Fifth Amendment. Elstad, 470 U.S. at 305-06, 105 S.Ct. 1285. The Fifth Amendment’s Self-Incrimination Clause bars the prosecution from using compelled testimony in its casein-chief and is therefore primarily concerned with conduct at trial. Id. at 306-07, 105 S.Ct. 1285. Prior to Miranda, the admissibility of a suspect’s in-custody statements “was judged solely by whether they were ‘voluntary’ within the meaning of the Due Process Clause.” Id. at 304, 105 S.Ct. 1285 (citing Haynes v. Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963); Chambers v. Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716 (1940)). The rule in Miranda arose out of a concern that the “possibility of coercion inherent in custodial interrogations unacceptably raises the risk that a suspect’s privilege against self-incrimination might be violated.” United States v. Patane, 542 U.S. 630, 639, 124 S.Ct. 2620, 159 L.Ed.2d 667 (2004) (citing Dickerson v. United States, 530 U.S. 428, 434-35, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000) and Miranda, 384 U.S. at 467, 86 S.Ct. 1602). As such, a police officer’s failure to administer Miranda warnings prior to a custodial interrogation “creates a presumption of compulsion,” Elstad, 470 U.S. at 307, 105 S.Ct. 1285, and the confession is inadmissible with no need for the “time-consuming and difficult enquiry into voluntariness,” Pa-tane, 542 U.S. at 646, 124 S.Ct. 2620 (Souter, J., dissenting). Unlike evidence obtained through a Fourth Amendment violation, however, the Miranda presumption does not require that the “fruits [of unlawfully obtained confessions] be discarded as inherently tainted.”" } ]

[ { "docid": "12538256", "title": "", "text": "F.Supp. 88 (1987). Since the court found that the removal of mail charge and the delay of mail charge were proper, the court declined to reach the issue of the Ethics Code’s constitutionality. II. Analysis The appellant makes a number of arguments concerning the propriety of the District Court’s decision. The appellant is faced at the outset, however, with an insurmountable hurdle. The appellee argues that under the Civil Service Reform Act of 1978, Pub.L. No. 95-454, 92 Stat. 1111 et seq., (the CSRA), the Federal Courts do not have jurisdiction to review the merits of this personnel decision. We agree. We begin by noting that the appellant fails to state the basis for his cause of action challenging the merits of the Postal Service’s decision. The only possible basis of which we are aware for the plaintiff’s cause of action are the laws governing personnel decisions of the Postal Service. We therefore turn to those statutes. In order to understand the procedural rights of the appellant, we must first examine the somewhat convoluted statutory scheme governing personnel decisions of the Postal Service. As- an initial matter, Congress provided, with certain exceptions, that no federal law dealing with employees shall apply to the exercise of the powers of the Postal Service. 39 U.S.C. § 410(a) (1980). Thus, unless specifically provided, the Postal Service is not bound by the federal employment laws governing other government agencies. The statute goes on, however, to provide a number of exceptions. The applicable exception for our purposes is that Chapter 75 of Title 5 shall apply to employees of the Postal Service. 39 U.S.C. § 1005(a) (1980). Chapter 75, as codified at 5 U.S.C. § 7501 et. seq. was enacted as part of Civil Service Reform Act of 1978 (CSRA), Pub.L. No. 95-454, 92 Stat. 1111 et seq. (codified, as amended, in various sections of 5 U.S.C. (1982 ed. and Supp. IV)). The CSRA completely revamped the traditional civil service system, and created an elaborate system for reviewing personnel actions taken by agencies. Lindahl v. Office of Personnel Management, 470 U.S. 768, 773, 105 S.Ct." } ]

[ { "docid": "621841", "title": "", "text": "has come to a decision.” I.A.M. Nat’l Pension Fund Benefit Plan C v. Stockton Tri Indus., 727 F.2d 1204, 1208 (D.C.Cir.1984) {quoted in Avocados Plus, 370 F.3d at 1248). ' This case involves a federal employee subject to the provisions of the Civil Service Reform Act, Pub.L. No. 95-454, 92 Stat.1111, as amended (codified at various sections of Title 5 of the United States Code). A principal purpose of the CSRA is to “provide increased protection for ‘whistleblowers,’ federal employees seeking to disclose wrongdoing in the government.” Frazier v. Merit Systems Protection Bd., 672 F.2d 150, 152 (D.C.Cir.1982); accord Wren v. Merit Systems Protection Bd., 681 F.2d 867, 872 (D.C.Cir.1982) (noting the “primary purpose” of the CSRA is to “safeguard employees ... who ‘blow the whistle’ on illegal or improper agency conduct”). Thus, the CSRA explicitly prohibits taking, failing to take, or threatening to take or fail to take, a personnel action “because of’ various forms of “whistle-blowing.” 5 U.S.C. § 2302(b)(8)-(b)(9) (2000). Section 2302 of the CSRA also provides that this subsection “shall not be construed to authorize the withholding of information from the Congress or the taking of any personnel action against an employee who discloses information to the Congress.” Id. § 2302(b). Thus, the facts alleged in Count I clearly give rise to claims cognizable under the CSRA’s administrative remedial process. The CSRA replaced the preexisting “patchwork system with an integrated scheme of administrative and judicial review, designed to balance the legitimate interests of various categories of federal employees with the needs of sound and efficient administration.” United States v. Fausto, 484 U.S. 439, 445, 108 S.Ct. 668, 98 L.Ed.2d 830 (1988). One of the fundamental “structural elements” of this integrated scheme of review “is the primacy of the MSPB [Merit Systems Protection Board] for administrative resolution” of personnel disputes, and “the primacy of the United States Court of Appeals for the Federal Circuit for judicial review.” Id. at 449, 108 S.Ct. 668. In Bush v. Lucas, the Supreme Court held that the CSRA consists of “comprehensive procedural and substantive provisions giving meaningful remedies against the United" }, { "docid": "21301219", "title": "", "text": "agreement’s coverage. Contrary to Albright’s assertion, there is no “statutory appeal procedure” that excepts his claims from the grievance procedures mandated by the agreement. First, the jurisdiction vested in the Court of Federal Claims by the Tucker Act, 28 U.S.C. § 1491(a)(1) (1988), does not create a “statutory appeal procedure” within the meaning of this agreement. It is a general grant of jurisdiction for cases meeting its conditions, in contrast to specific appellate procedures carefully delineated by statute, such as those with respect to cases before the Equal Employment Opportunity Commission, the Merit Systems Protection Board, and the Federal Labor Relations Authority. Accord Beall v. United States, 22 Cl.Ct. 59, 61 (1990). See also S.Rep. No. 969, 95th Cong., 2d Sess. 109-10, reprinted in 1978 U.S.C.C.A.N. 2723, 2831-32 (describing “appeal from the withholding of within-grade salary increases and appeal from reduction-in-force actions” and “procedures under 5 U.S.C. § 7701” as “statutory appeal procedures”); United States v. Fausto, 484 U.S. 439, 444, 108 S.Ct. 668, 672, 98 L.Ed.2d 830 (1988) (before the CSRA, “employees sought to appeal the decisions of the CSC, or the agency decision unreviewed by the CSC, to the district courts through the various forms of action traditionally used for so-called non-statutory review of agency action, including suits for mandamus.”) (emphasis added). Albright’s view would create a statutory exclusion for any dispute for which there might be general federal court jurisdiction. This would be at cross-purposes with the language of the CSRA, which requires a specific exclusion of claims from a negotiated grievance procedure. Nor did the FPM-L 551-9 letter establish a statutory appeal procedure; it merely set forth an administrative compliance and complaint system. It was not statutory at all. Finally, we can find no support, and Albright has offered none, for the proposition that a back pay claim to the General Accounting Office amounts to a statutory appeal procedure. Such an interpretation fails to overcome the presumption that grievance procedures are the exclusive method for resolving such grievances unless the parties specifically provide otherwise. The issues raised by Abright are not subject to statutory appeal procedures" }, { "docid": "17468879", "title": "", "text": "on behalf of the employee or others in furtherance of an action under this section, including investigation for, initiation of, testimony for, or assistance in an action filed or to be filed under this section, shall be entitled to all relief necessary to make the employee whole. 31 U.S.C. § 3730(h). He suggests that the statute’s “any employee” includes government employees, so that it expressly creates a remedy enforceable against the United States in the Court of Federal Claims. But whether or not we would agree with this interpretation if section 3730(h) stood in isolation, we must first consider the context, for Congress has spoken at some length on federal employment law. The Civil Service Reform Act of 1978 (CSRA), Pub.L. No. 95-454, 92 Stat. 1111 (codified as amended in scattered sections of 5 U.S.C. (1988 & Supp. V 1993)), created a comprehensive system of procedural protections for civil service employees faced with adverse personnel actions. This framework for review of certain types of personnel actions essentially preempted the field, superseding the haphazard arrangement of administrative and judicial avenues for appeals of adverse actions to the Civil Service Commission, the district courts, and the Court of Claims. See Fausto v. United States, 484 U.S. 439, 444-45, 108 S.Ct. 668, 671-72, 98 L.Ed.2d 830 (1988). The cornerstone of the CSRA’s protections is the aggrieved employee’s right to seek review of adverse agency action in the Merit Systems Protection Board. 5 U.S.C. § 7701. The board may review the record in support of the agency’s decision, and will reverse that decision where it is not supported by the facts, involves harmful legal or procedural error, or is based on certain “prohibited personnel practices.” 5 U.S.C. § 7701(c). “Prohibited personnel practices” include retaliation against whistleblowers: action taken (or not taken) because of “any disclosure of information by an employee or applicant which the employee or applicant reasonably believes evidences—(i) a violation of any law, rule, or regulation, or (ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety....” Id §" }, { "docid": "387348", "title": "", "text": "Opinion for the Court filed by Circuit Judge WILLIAMS. WILLIAMS, Circuit Judge: This case requires us to answer two important questions in the area of federal employment. First, we must decide the scope of Congress’s preclusion of judicial review of decisions of the Federal Labor Relations Authority (“FLRA” or “Authority”). Second, because we conclude that Congress did not intend to cut off review of constitutional claims, we must decide whether federal civil service employees have a “property” interest, of the sort protected by the Due Process clause of the Fifth Amendment, in annual within-grade pay increases. We find that they do not. I. Background In June 1982 the Internal Revenue Service denied a within-grade pay increase to one of its employees, Jacqueline Tommas Griffith, on the grounds that she was not performing at “an acceptable level of competence.” See 5 U.S.C. § 5335(a)(3)(B) (1982) (establishing that standard for such increases). Pursuant to 5 C.F.R. § 531.410 (1982), Griffith asked the agency to reconsider its decision. In preparing for this process, Griffith asked that her supervisor allow her to review documents relating to the denial. The supervisor refused to supply them, stating that they were either reports Griffith had prepared or reviews that she had previously received. The arbitrator later held, and the FLRA appeared to concede, that this withholding violated applicable regulations. See 5 C.F.R. § 531.410(a)(2); Joint Appendix (“J.A.”) at 9; NTEU v. IRS, 17 FLRA 1058, 1059 (May 13, 1985). On reconsideration, the IRS again denied the increase. In so doing, it relied on several documents not provided to Griffith, again in violation of 5 C.F.R. § 531.410(a)(2). Griffith next turned to arbitration under the grievance procedure established by the collective bargaining agreement between the National Treasury Employees Union and the IRS. Before the arbitrator, the union argued that the IRS had violated relevant procedural regulations in its reconsideration of the denial of Griffith’s pay increase, and that these violations entitled her to a retroactive pay increase with back pay under the Back Pay Act, 5 U.S.C. § 5596 (1982). The arbitrator largely agreed and awarded Griffith the" }, { "docid": "3910381", "title": "", "text": "branch. See Blankenship v. McDonald, 176 F.3d 1192, 1195 (9th Cir.1999). In that case, a federal court reporter alleged that her termination violated due process because it was in retaliation for her testimony at a court EEO hearing. The Ninth Circuit acknowledged that the CSRA afforded the reporter “no effective remedies,” id. at 1194; nevertheless, because it concluded that Congress’s decision in this regard had not been inadvertent, it declined to recognize a Bivens cause of action, see id. at 1195. We agree with the Ninth and Eleventh Circuits that Congress’s omission of review rights for judicial branch employees was not inadvertent and, therefore, precludes pursuit of a Bivens claim. Indeed, Congress’s intent on this point can be discerned in three ways. (b) Congress’s Withholding of CSRA Revieiv Rights from Judicial Branch Employees Was Not Inadvertent (1) The Statutory Structure Belies Inadvertence Congress’s intent to withhold CSRA review rights from judicial branch employees is discernable in the first instance from the structure of the CSRA. Title 5 does not ignore judicial branch personnel in establishing laws relevant to the civil service. To the contrary, it specifically includes such personnel within the civil service and defines them as “employees” for various purposes. See 5 U.S.C. §§ 2101, 2105; see also Blankenship v. McDonald, 176 F.3d at 1195 (noting that in Title 5 “Congress has given judicial employees certain employment benefits and remedies, such as back pay, severance pay, family and medical leave, and health and retirement benefits”). At the same time that Congress thus brought judicial branch employees within the CSRA scheme, however, it expressly excluded them, as members of the excepted service, from specific procedural rights and remedies. See 5 U.S.C. §§ 2302, 4301, 7511. Construing this exclusion of excepted service employees (including judicial branch employees) from the then-operative CSRA provisions granting review rights, the Supreme Court in Fausto concluded that Congress’s action was not inadvertent but deliberate: The comprehensive nature of the CSRA, the attention that it gives throughout to the rights of nonpreference excepted service employees, and the fact that it does not include them in provisions for" }, { "docid": "19296269", "title": "", "text": "Tucker Act (“Little Tucker”), the Postal Reorganization Act (“PRA”), and the Rehabilitation Act. However, it is clear that Mills must first exhaust available administrative remedies afforded him under the Civil Service Reform Act (“CSRA”) , and/or the applicable collective bargaining agreement (“CBA”) prior to bringing an action in this Court. A. Civil Service Reform Act Congress enacted the CSRA to replace the inconsistent procedures for administrative and judicial review of adverse employment actions against federal employees. See United States v. Fausto, 484 U.S. 439, 444-45, 108 S.Ct. 668, 672-73, 98 L.Ed.2d 830 (1988) (citing S.Rep. No. 95-969, p. 3 (1978)); Lindahl v. Office of Personnel Management, 470 U.S. 768, 773-74, 105 S.Ct. 1620, 1624-25, 84 L.Ed.2d 674 (1985). Chapter 75 of the CSRA overhauled the traditional civil service system and created a detailed scheme for review of personnel actions taken by federal agencies. Id. The CSRA created a series of procedural devices, including an appeal to the Merit System Protection Board (“MSPB”), for federal employees affected by certain adverse personnel actions, including removal. 5 U.S.C. §§ 7512, 7513(d). Congress created the MSPB to provide an initial administrative review of employment action before any judicial remedy may be sought. Courts have recognized that the CSRA creates remedies by which covered federal employees may seek redress for improper employment actions. See Bush v. Lucas, 462 U.S. 367, 385, 103 S.Ct. 2404, 2414-15, 76 L.Ed.2d 648 (1983); Roth v. United States, 952 F.2d 611, 614 (1st Cir.1991); Montplaisir v. Leighton, 875 F.2d 1, 3 (1st Cir.1989). Indeed, the Supreme Court has held that the CSRA’s comprehensive scheme may in some cases preclude entirely a judicial remedy. See Fausto, 484 U.S. at 448-49, 108 S.Ct. at 674-75. In Fausto, for example, the plaintiff was a non-preference member of the Federal Fish and Wildlife Service who had been suspended without pay for thirty days. As a non-preference employee, he had no right to appeal an adverse employment action to the MSPB. He thus challenged his suspension in the Claims Court, seeking back pay under the Back Pay Act, 5 U.S.C. § 5596, and the Tucker" }, { "docid": "22936376", "title": "", "text": "424 U.S. 392, 399, 96 S.Ct. 948, 953-54, 47 L.Ed.2d 114 (1976). Thus, this court must determine whether the United States has unequivocally consented to suits like Mr. Booth’s complaint in the Court of Federal Claims. Id. Mr. Booth bears the burden of showing that the United States waived immunity for his suit in the Court of Federal Claims. Rocovich v. United States, 933 F.2d 991, 993 (Fed.Cir.1991). Mr. Booth did not meet this burden. In denying the Government’s RCFC 12(b)(1) motion, the Court of Federal Claims determined that Mr. Booth’s complaint stated a claim within the court’s subject matter jurisdiction. The trial court reasoned that claims based on contracts with the Government fall within its general Tucker Act jurisdiction. With respect to Mr. Booth’s employment contract, however, the trial court erred. The Supreme Court has specifically held that the Civil Service Reform Act of 1978 (CSRA), Pub.L. 95-454, 92 Stat. 1111 (1978) (codified as amended in various sections of 5 U.S.C.), precludes Mr. Booth's type of suit in the Court of Federal Claims. United States v. Fausto, 484 U.S. 439, 454, 108 S.Ct. 668, 677, 98 L.Ed.2d 830 (1988). The CSRA exclusively governs federal personnel matters. Bobula v. United States, 970 F.2d 854, 857 (Fed.Cir.1992) (citing Fausto, 484 U.S. at 443, 108 S.Ct. at 671-72). Thus, the CSRA specifies the only avenues for relief in personnel matters covered by the Act. Fausto, 484 U.S. at 454, 108 S.Ct. at 677; Bobula, 970 F.2d at 857. The Supreme Court has stated: [Ujnder the comprehensive and integrated review scheme of the CSRA, the [Court of Federal Claims] (and any other court relying on Tucker Act jurisdiction) is not an “appropriate authority” to, review an agency’s personnel determination. Fausto, 484 U.S. at 454, 108 S.Ct. at 677. Because the CSRA provides an exclusive alternative remedy, the United States has not waived its immunity to suit on Mr. Booth’s personnel action in the Court of Federal Claims. The CSRA specifically excludes employees in Mr. Booth’s service category from its channels of administrative and judicial review. 5 U.S.C. § 7511(b)(5) (Supp. Ill 1991). Section" }, { "docid": "3897533", "title": "", "text": "complaint should be dismissed, but vacate the district court’s grant of summary judgment and instead remand for a dismissal for lack of subject matter jurisdiction. II. Jurisdiction over Pathak’s challenge to his seven day suspension is governed by United States v. Fausto, 484 U.S. 439, 108 S.Ct. 668, 98 L.Ed.2d 830 (1988). The Fausto Court reasoned that because the Civil Service Reform Act of 1978 (“CSRA”), Pub.L. No. 95-454, 92 Stat. 1111 (codified as amended in scattered sections of 5 U.S.C.), “established a comprehensive system for reviewing personnel action taken against federal employees,” the Act’s “deliberate exclusion of [nonpreference excepted service members] ... from the provisions establishing administrative and judicial review for personnel action ... prevents respondent from seeking judicial review ... under the Back Pay Act,” 484 U.S. at 455, 108 S.Ct. 668. Fausto stands for the general proposition that judicial review is unavailable to a federal employee who has suffered an adverse personnel action if CSRA does not provide judicial review. Id. at 447-49, 455, 108 S.Ct. 668. As a physician appointed to the Veterans Health Administration under 38 U.S.C. § 7401(1) (1994), Pathak is an “excepted service” employee. This is because, as a Veterans Health Administration physician, he is appointed “without regard to civil-service requirements,” id. § 7403(a), and so he is not in the “competitive service,” 5 U.S.C. § 2102 (1994), which means he is part of the “excepted service,” id. § 2103(a). As a nonpreference eligible member of the excepted service, Pathak is not entitled to CSRA’s protections for competitive service employees. See id. §§ 7501-7504; C.D. Moore, Personnel Ac tions that May Be Challenged, in Federal Civil Service Law and Procedures: A Basic Guide 3, 4-5 (E.M.Bussey, ed., 2d ed.1990). Even if Pathak were covered by CSRA’s provisions governing employees suspended for fourteen days or less, these protections do not provide for judicial review. 5 U.S.C. §§ 7501-7504; Fausto, 484 U.S. at 443, 108 S.Ct. 668 (“No provision of the CSRA gives nonpreference members of the excepted service the right to ... judicial review of suspension for misconduct”)- Accordingly, under Fausto, Pat-hak cannot obtain" }, { "docid": "19296270", "title": "", "text": "§§ 7512, 7513(d). Congress created the MSPB to provide an initial administrative review of employment action before any judicial remedy may be sought. Courts have recognized that the CSRA creates remedies by which covered federal employees may seek redress for improper employment actions. See Bush v. Lucas, 462 U.S. 367, 385, 103 S.Ct. 2404, 2414-15, 76 L.Ed.2d 648 (1983); Roth v. United States, 952 F.2d 611, 614 (1st Cir.1991); Montplaisir v. Leighton, 875 F.2d 1, 3 (1st Cir.1989). Indeed, the Supreme Court has held that the CSRA’s comprehensive scheme may in some cases preclude entirely a judicial remedy. See Fausto, 484 U.S. at 448-49, 108 S.Ct. at 674-75. In Fausto, for example, the plaintiff was a non-preference member of the Federal Fish and Wildlife Service who had been suspended without pay for thirty days. As a non-preference employee, he had no right to appeal an adverse employment action to the MSPB. He thus challenged his suspension in the Claims Court, seeking back pay under the Back Pay Act, 5 U.S.C. § 5596, and the Tucker Act, 28 U.S.C. § 1491. Fausto, 484 U.S. at 443, 108 S.Ct. at 671-72. The Supreme Court held that despite his inability to seek administrative review of his termination, the CSRA nevertheless precluded him from seeking judicial review. Id. The First Circuit clearly requires the exhaustion of administrative remedies provided for in the CSRA prior to allowing an aggrieved party to seek a judicial remedy. In Berrios v. Dep’t of the Army, 884 F.2d 28, 30 (1st Cir.1989), plaintiff alleged that defendants, in failing to provide him with a hearing prior to removal from a governmental position, deprived him of his due process rights under the Fifth Amendment. Defendants filed a motion to dismiss, arguing that the CSRA precluded plaintiffs federal claims. The Court held that the CSRA preempts challenges to personnel actions brought under federal law. Berrios, 884 F.2d at 30; see also Roth, 952 F.2d at 614 (“In general, a federal employee whose position comes within CSRA’s reach may seek redress for the untoward effects of a prohibited personnel practice only through the" }, { "docid": "3897532", "title": "", "text": "that this constituted a violation of due process of law. The district court entered summary judgment on all of Pathak’s claims. Pathak v. Dep’t of Veterans Affairs, 130 F.Supp.2d 140, 150 (D.Me.2001). I. Our review of the district court’s grant of summary judgment is de novo. Thomas v. Eastman Kodak Co., 183 F.3d 38, 47 (1st Cir.1999), cert. denied, 528 U.S. 1161, 120 S.Ct. 1174, 145 L.Ed.2d 1082 (2000). On Pathak’s appeal, the Department of Veterans Affairs for the first time raises a jurisdictional argument that Pathak’s challenge to the seven day suspension-is not subject to judicial review. Pathak responds to the Department’s argument by claiming that jurisdiction does in fact exist, at least as to his assertion of a violation of his constitutional rights. But, at best, judicial review would only be available for colorable constitutional claims, Webster v. Doe, 486 U.S. 592, 603, 108 S.Ct. 2047, 100 L.Ed.2d 632 (1988), and we agree with the Department that Pathak’s constitutional claims are not even colorable. Accordingly, we agree with the district court that Pathak’s complaint should be dismissed, but vacate the district court’s grant of summary judgment and instead remand for a dismissal for lack of subject matter jurisdiction. II. Jurisdiction over Pathak’s challenge to his seven day suspension is governed by United States v. Fausto, 484 U.S. 439, 108 S.Ct. 668, 98 L.Ed.2d 830 (1988). The Fausto Court reasoned that because the Civil Service Reform Act of 1978 (“CSRA”), Pub.L. No. 95-454, 92 Stat. 1111 (codified as amended in scattered sections of 5 U.S.C.), “established a comprehensive system for reviewing personnel action taken against federal employees,” the Act’s “deliberate exclusion of [nonpreference excepted service members] ... from the provisions establishing administrative and judicial review for personnel action ... prevents respondent from seeking judicial review ... under the Back Pay Act,” 484 U.S. at 455, 108 S.Ct. 668. Fausto stands for the general proposition that judicial review is unavailable to a federal employee who has suffered an adverse personnel action if CSRA does not provide judicial review. Id. at 447-49, 455, 108 S.Ct. 668. As a physician appointed to" }, { "docid": "14536234", "title": "", "text": "similarly situated, in the district court rather than go to arbitration, as the collective bargaining agreement required. The trial judge dismissed the suit under Fed.R. Civ.P. 12(b)(1), holding that the grievance procedures adopted in the collective bargaining agreement represented the exclusive remedy for appellant Harris and placed jurisdictional strictures on the district court’s ability to hear the suit. The district court would have had jurisdiction, if at all, only under the “Little Tucker Act,” 28 U.S.C. § 1346(a)(2). This court has taken jurisdiction of an appeal from a district court determination dealing with claims for premium pay for exposure to asbestos-laden air, O’Neall v. United States, 797 F.2d 1576 (Fed.Cir.1986). That case did not involve the question this one does, of preemption of jurisdiction by a collective bargaining agreement for arbitration. II Discussion Appellant cited this court’s decision in Fausto v. United States, 783 F.2d 1020, aff'd on rehearing, 791 F.2d 1554 (Fed.Cir.1986), so often in its briefs, that the case may be considered the linchpin of its argument. As the Supreme Court granted certiorari in Fausto about the time we heard oral argument, we decided to await the result of that review. The result was a reversal, United States v. Fausto, — U.S. -, 108 S.Ct. 668, 98 L.Ed.2d 830 (1988). While we almost could stop there, differences in the cases require some discussion, and the Supreme Court’s Fausto has its main importance here in the technique of statutory construction it teaches. Fausto deals with a money claim by an “excepted” employee of the United States Government, i.e., one who had no appeal right to the Merit Systems Protection Board (MSPB) under the Civil Service Reform Act of 1978 (CSRA), Pub.L. No. 95-454, 92 Stat. 1111, codified in various sections of Title 5, United States Code. Asserting an adverse action against him had been unlawful, Fausto sued in the Claims Court under the Back Pay Act, 5 U.S.C. § 5596, and the Tucker Act, 28 U.S.C. § 1491. That court held the CSRA took away whatever jurisdiction it had previously had. Our court, reversing, was of the view that" }, { "docid": "14536235", "title": "", "text": "in Fausto about the time we heard oral argument, we decided to await the result of that review. The result was a reversal, United States v. Fausto, — U.S. -, 108 S.Ct. 668, 98 L.Ed.2d 830 (1988). While we almost could stop there, differences in the cases require some discussion, and the Supreme Court’s Fausto has its main importance here in the technique of statutory construction it teaches. Fausto deals with a money claim by an “excepted” employee of the United States Government, i.e., one who had no appeal right to the Merit Systems Protection Board (MSPB) under the Civil Service Reform Act of 1978 (CSRA), Pub.L. No. 95-454, 92 Stat. 1111, codified in various sections of Title 5, United States Code. Asserting an adverse action against him had been unlawful, Fausto sued in the Claims Court under the Back Pay Act, 5 U.S.C. § 5596, and the Tucker Act, 28 U.S.C. § 1491. That court held the CSRA took away whatever jurisdiction it had previously had. Our court, reversing, was of the view that repeals by implication are not favored, especially when they would deprive an employee of a right previously well established. The position of the Supreme Court is that Congress was well aware of the existence of the “excepted” class of employees, and that the careful construction of a new mode of administrative and judicial review of disciplinary cases against other employees evidences an intention to abolish whatever other remedies might have been available to “excepted” employees, who are now made, in truth, mere “at will” employees, a category from which the prior law had to some extent removed them. The Court viewed the rule against repeals by implication as entitled to respect but not necessarily decisive where the prior rule was only a judge-made extension of statutory remedies not themselves expressly written to apply to the case of the “excepted” employee. In the case before us, the issue is not whether anyone’s judicial review is foreclosed, but only whether a claimant must pursue one route or another. The Supreme Court in Fausto mentions, but rebuts, the" }, { "docid": "4992764", "title": "", "text": "will not disclose his identity so as to preserve what he understands to be his absolute constitutional privilege against self-incrimination. In order to preserve their rights, the grantor Doe and the trustee Shepard invoke jurisdiction over the present case based on Federal Question. The faltering jurisdictional allegation is that the above-referenced laws are unconstitutional, inasmuch as they violate plaintiffs’ rights guaranteed under the Fifth and/or Fourteenth Amendments to the Constitution of the United States. It is further claimed that the area of regulation by said laws is preempted under Article VI of the Constitution of the United States and by The Federal Home Loan Banks Act, 12 U.S.C. §§ 1421-1459. Co-defendant First Federal Savings Bank of Puerto Rico, hereinafter referred to as “First Federal”, has presented a responsive allegation requesting that all actions pertaining to it be stayed. First Federal wants to be let alone. It states that the actual controversy is one between the Department of Treasury of Puerto Rico, (“De partment”), and plaintiff. The Department has requested the dismissal of the present case based on the statutory language of the Butler Act, 48 U.S.C. § 872. The matter was heard by the Court on December 3, 1985. Documentary evidence was received. The parties submitted the controversy on the basis of their pleadings, allegations, evidence, and argument. The Court is not convinced of the merits of the declaratory and injunctive relief sought by plaintiffs. The amended complaint governing the controversy will be dismissed based on the following findings and conclusions. Fed.R.Civ.P. 52. Law Number 1, August 12, 1985: Plaintiffs seek injunctive relief from the provisions of the above-quoted law and regulations promulgated thereunder. Generally, said law provides a mechanism under which the Department of the Treasury requires all banks and savings and loan institutions issuing bearer certificates of deposit to act as a withholding agent, retaining 20% of the total amount deposited. In the event that the taxpayer does not elect to request an administrative release of the retained monies, he must pay a 20% tax, be it through the mentioned withholding or by direct payment to the Department." }, { "docid": "19382452", "title": "", "text": "NICHOLS, Judge, delivered the opinion of the court: This civilian pay case is before us on plaintiffs petition for attorney fees, all other issues being disposed of. On December 13, 1978, this court rendered its decision on the merits holding for plaintiff. Nibali v. United States, 218 Ct. CL 547, 589 F.2d 514 (1978). The case was remanded to the trial division for a determination of quantum. The parties agreed to a stipulation which the trial judge recognized on October 19, 1978, in returning this case to the appellate division. His report stated that the stipulation reserved for our determination plaintiffs claim to attorney fees against the United States. Plaintiff argues that he is entitled to such fees under the Civil Service Reform Act of 1978 (the Act or CSRA), Pub. L. No. 96-454, 92 Stat. 1111, 5 U.S.C. §§ 552 et seq (1978). Specifically, plaintiff relies on 5 U.S.C. §§ 7701(g)(1) and (2), 5596(b), as amended by § 702, and § 1101 note (1976 & Supp. II 1978) for his theory of recovery. The sole question in . the case at bar is whether attorney fees may be awarded in a civilian pay case pending before this court on the CSRA effective date, January 11, 1979. We hold that such fees are not available. Initially, plaintiff asserts that § 5596(b)(1)(A), as amended by § 702, and § 7701(g)(1) and (2) entitle him to attorney fees against the United States. § 5596(b)(1)(A) reads in part: (b)(1) An employee of an agency who, on the basis of a timely appeal or an administrative determination (including a decision relating to an unfair labor practice or a grievance) is found by appropriate authority under applicable law, rule, regulation, or collective bargaining agreement, to have been affected by an unjustified or unwarranted personnel action which has resulted in the withdrawal or reduction of all or part of the pay, allowances, or differentials of the employee— (A) is entitled, on correction of the personnel action, to receive for the period for which the. personnel action was in effect— (i) an amount equal to all or" }, { "docid": "21301218", "title": "", "text": "subject to statutory appeal procedures and matters excluded from mandatory negotiations by Executive Order 11U91, as amended, are not subject to this grievance procedure except to the extent covered by this Agreement. (emphasis added). Interpretation of the terms of an agreement is an issue of law, subject to our de novo review on appeal. Muniz, 972 F.2d at 1309. Under the agreement, only matters subject to statutory appeal procedures and matters excluded from mandatory negotiations by Executive Order 11491 were not subject to the grievance-arbitration procedures. To bring his claims within the meaning of Article 29a’s exception, Albright cites a Federal Personnel Manual System Letter (FPM-L 551-9), issued by the Civil Service Commission (CSC), the predecessor to OPM, on March 30,1976. This letter sets forth the right of an employee alleging a FLSA violation to file a complaint directly with the CSC or to bring an action in a U.S. district court. Using FPM-L 551-9 as support, Albright asserts that his back pay claims are subject to “statutory appeal procedures” and therefore excluded from the agreement’s coverage. Contrary to Albright’s assertion, there is no “statutory appeal procedure” that excepts his claims from the grievance procedures mandated by the agreement. First, the jurisdiction vested in the Court of Federal Claims by the Tucker Act, 28 U.S.C. § 1491(a)(1) (1988), does not create a “statutory appeal procedure” within the meaning of this agreement. It is a general grant of jurisdiction for cases meeting its conditions, in contrast to specific appellate procedures carefully delineated by statute, such as those with respect to cases before the Equal Employment Opportunity Commission, the Merit Systems Protection Board, and the Federal Labor Relations Authority. Accord Beall v. United States, 22 Cl.Ct. 59, 61 (1990). See also S.Rep. No. 969, 95th Cong., 2d Sess. 109-10, reprinted in 1978 U.S.C.C.A.N. 2723, 2831-32 (describing “appeal from the withholding of within-grade salary increases and appeal from reduction-in-force actions” and “procedures under 5 U.S.C. § 7701” as “statutory appeal procedures”); United States v. Fausto, 484 U.S. 439, 444, 108 S.Ct. 668, 672, 98 L.Ed.2d 830 (1988) (before the CSRA, “employees sought to" }, { "docid": "15947883", "title": "", "text": "panel will treat the suggestion as a petition for rehearing. There has been no oral argument on the suggestion and Fausto, pro se, has not been ordered to respond to the government’s brief. The panel has carefully reviewed the arguments and the authority cited in the government’s brief. We conclude that the panel’s original decision is not contrary to the precedent of the Supreme Court, nor of this court, and is not in conflict with the decisions of the regional circuits. The government presents two questions for our review: 1. Whether the comprehensive remedial scheme established by Congress in the Civil Service Reform Act of 1978, Pub.L. No. 95-454, 92 Stat. 1111 (CSRA), precludes review of claims of former federal employees for back pay by the United States Claims Court under the Tucker Act. 2. Whether, prior to the enactment of the CSRA, there would have been jurisdiction under the Tucker Act to entertain Mr. Fausto’s claim. We first address the latter question. I The Tucker Act In its original opinion, this panel observed: “There is no doubt that prior to the CSRA an employee in Fausto’s situation could have maintained a suit in the Court of Claims.” Fausto, 783 F.2d at 1021. The government argues to the contrary that even if the CSRA had not been enacted Fausto “would not have had a Tucker Act cause of action.” First, the government argues that Fausto’s removal did not violate any agency regulation. It is the government’s position that the regulations which the agency violated, the grievance regulations, do not prescribe procedures that must be followed prior to removal. According to the government, “those regulations did not prescribe any pre-removal procedures,” they only provided “that, after certain excepted service employees have been removed from their positions, they may file grievances to contest the validity of removal actions.” [Emphasis in original.] We do not agree. The government is simply incorrect, the regulations do not require that grievances be filed only after the removal. Indeed, the regulations require that “[f|ormer employees must file a timely grievance concerning a matter appropriate for review under" }, { "docid": "5276578", "title": "", "text": "that it lacked jurisdiction over this claim. The alleged reprisal occurred after Krc’s Foreign Service appointment had been terminated. Although a current member of the Foreign Service may file a grievance for an “action alleged to be in the nature of reprisal,” 22 U.S.C. § 4131(a)(1)(F), a former member such as Krc may file a grievance “only with respect to allegations described in section 4131(a)(1)(G),” 22 U.S.C. § 4132, to wit “denial of an allowance, premium pay, or other financial benefit.” 22 U.S.C. § 4131(a)(1)(G). Krc is thus barred from seeking an administrative remedy for his reprisal claim. In withholding an administrative remedy from a former FSO alleging reprisal, it appears that the Congress intended also to deny him a judicial remedy. The Supreme Court considered a similar situation in United States v. Fausto, 484 U.S. 439, 108 S.Ct. 668, 98 L.Ed.2d 830 (1988). There the Court held that by precluding administrative review of dismissals of employees in the excepted service, the Civil Service Reform Act “displays a clear congressional intent to deny the excluded employees ... judicial review ... for personnel action[s] covered by” the CSRA. Id. at 447, 108 S.Ct. at 673. See also Block v. Community Nutrition Institute, 467 U.S. 340, 347, 104 S.Ct. 2450, 2454, 81 L.Ed.2d 270 (1984) (holding that Agricultural Marketing Agreement Act, which provides for administrative review at the instance of milk handler affected by a milk marketing order but not at the instance of consumer so affected, by implication precludes consumer from obtaining judicial review of order). Like the CSRA, the Foreign Service Act provides “a comprehensive system for reviewing personnel action[s] taken against federal employees.” Fausto, 484 U.S. at 455, 108 S.Ct. at 677; see also Senate Report No. 96-913, reprinted in 1980 U.S.Code Cong. & Admin.News 4419 (“Foreign Service Act is intended to be a companion measure” to the CSRA). Yet the Act clearly precludes an administrative grievance by a former FSO alleging reprisal. As in the CSRA, these factors “combine to establish a congressional judgment that [a former FSO] should not be able to demand judicial review” for a" }, { "docid": "11445245", "title": "", "text": "DAVIS, Circuit Judge: We are called upon to decide whether the Civil Service Reform Act of 1978, Pub.L. No. 95-454, 92 Stat. 1111 (codified, as amended, in scattered sections of 5 U.S.C. (1982)) (CSRA) precludes judicial review by a district court of a particular personnel action challenged by some federal employees. The National Treasury Employees Union (NTEU), on behalf of certain Internal Revenue Service (IRS) machine operators, brought suit in the district court below, alleging that the IRS’s reclassification of their positions from the Prevailing Rate pay category to the General Schedule pay system violated the Administrative Procedure Act, 5 U.S.C. § 701 et seq. (1976) (APA), and their Fifth Amendment right to due process. Citing this court’s decision in Carducci v. Regan, 714 F.2d 171 (D.C.Cir.1983), that the CSRA precluded judicial review of minor personnel actions, the district court dismissed appellants’ claims for lack of subject matter jurisdiction. We affirm. I. NTEU represents a class of workers including mailing, duplicating, and binding machine operators employed by the IRS at its Service Center. In addition to operating mail processing, duplicating, packaging and book-binding machines, these operators perform duties such as setting-up, adjusting, monitoring and repairing the various machines. Prior to 1980, the federal positions held by these employees were classified in the Wage Grade 400 series and the employees were paid in accordance with the Prevailing Rate system, 5 U.S.C. § 5341 et seq. In 1980, following the Civil Service Commission’s 1978 revisions of the classification standards for the General Schedule, GS-350 Equipment Operator series, and its subsequent amendment of the classification standards for the Wage Grade WG-4000 series, the positions were converted to the lower-paying General Schedule, 5 U.S.C. § 5332. In response to the reclassification decision, several IRS employees appealed to the Office of Personnel Management (OPM) as well as to the IRS. They asserted that the nature of their duties precluded classification of their position under the General Schedule pursuant to 5 U.S.C. § 5102(c)(7). Appellants’ classification appeals were denied by IRS and OPM. Appellants then sought judicial review of the reclassification decision through this suit in" }, { "docid": "22621076", "title": "", "text": "Justice Scalia delivered the opinion of the Court. Respondent Joseph A. Fausto, an employee of the Department of the Interior Fish and Wildlife Service (FWS), was suspended from his job for 30 days because of unauthorized use of a Government vehicle. The United States Court of Appeals for the Federal Circuit held that he could maintain a suit for backpay in the United States Claims Court alleging that his suspension was in violation of Department of the Interior regulations. We granted certiorari to decide whether the Civil Service Reform Act of 1978 (CSRA or Act), Pub. L. 95-454, 92 Stat. 1111 et seq. (codified, as amended, in various sections of 5 U. S. C. (1982 ed. and Supp. IV)), which affords an employee in respondent’s situation no review of the agency’s decision, precludes such a Claims Court suit. I Respondent was hired by FWS in January 1978, as an administrative officer for the Young Adult Conservation Corps camp in Virginia Beach, Virginia. His position was in the excepted service, and was to last for the duration of the Conservation Corps program at Virginia Beach, but not beyond September 30, 1982. In November 1980, FWS advised respondent that it intended to dismiss him for a number of reasons, including unauthorized use of a Government vehicle. After respondent replied to the charges, he received a memorandum from FWS informing him that he would be removed effective January 16,1981. That memorandum did not advise respondent of his grievance rights under Department of the Interior regulations, which included the right to a formal hearing con ducted by a grievance examiner. See Department of the Interior Federal Personnel Manual — 231, pt. 370 DM, ch. 771, subch. 3, 3.22A (May 4, 1981). Respondent sought review of his removal with the Merit Systems Protection Board (MSPB), which dismissed his appeal in August 1981, on the ground that under the CSRA a nonpreference eligible in the excepted service has no right to appeal to the MSPB. Fausto v. Department of Interior, No. PH 075281102271 (M. S. P. B. Aug. 27, 1981), aff’d, 738 F. 2d 454 (CA" }, { "docid": "22621079", "title": "", "text": "period covered by the suspension as well as for the period from the date on which the camp closed through the date on which FWS admitted that he should not have been removed. The Secretary of the Interior upheld FWS’s decision. In February 1983, respondent filed the present action under the Back Pay Act, 5 U. S. C. §5596, in the Claims Court. The Claims Court dismissed, holding that the CSRA comprised the exclusive catalog of remedies for civil servants affected by adverse personnel action. 7 Cl. Ct. 459, 461 (1985). The Federal Circuit reversed and remanded, 783 F. 2d 1020 (1986), holding that although the CSRA did not afford nonpreference excepted service employees a right of appeal to the MSPB, it did not preclude them from seeking the Claims Court review traditionally available under the Tucker Act, 28 U. S. C. § 1491, based on the Back Pay Act. 783 F. 2d, at 1022-1023. On the merits it found Fausto’s suspension wrongful and awarded backpay for the period of the suspension. Id., at 1023-1024. The Court of Appeals denied the Government’s petition for rehearing of the case en banc, but issued a second panel opinion reaffirming its decision. 791 F. 2d 1554 (1986). The Government petitioned for certiorari on the question whether a nonveteran member of the excepted service may obtain, under the Tucker Act, judicial review of adverse personnel action for which the CSRA does not provide him a right of review. II We have recognized that the CSRA “comprehensively overhauled the civil service system,” Lindahl v. OPM, 470 U. S. 768, 773 (1985), creating an elaborate “new framework for evaluating adverse personnel actions against [federal employees],” id., at 774. It prescribes in great detail the protections and remedies applicable to such action, including the availability of administrative and judicial review. No provision of the CSRA gives nonpreference members of the excepted service the right to administrative or judicial review of suspension for misconduct. The question we face is whether that withholding of remedy was meant to preclude judicial review for those employees, or rather merely to leave" } ]

[ { "docid": "8990823", "title": "", "text": "proffered jury instruction (Eighth Circuit Model Jury Instruction 5.06G on single versus multiple conspiracies) was not supported by the evidence. The proposed instruction would have informed the jury that multiple conspiracies may exist with different criminal purposes, and the Government must prove that the defendant was part of one single conspiracy instead of multiple conspiracies. Faulkner asserts that Harrington was involved in two separate conspiracies, one to distribute crack cocaine and one to distribute heroin, and that Faulkner was only a part of the separate conspiracy to distribute crack cocaine. “Whether a given case involves single or multiple conspiracies depends on whether there was one overall agreement to perform various functions to achieve the objectives of the conspiracy.” United States v. Radtke, 415 F.3d 826, 838 (8th Cir.2005) (internal quotation marks omitted). We look at the totality of the circumstances and review this as a question of fact, drawing all inferences in favor of the jury verdict. Id. Here, drawing all inferences in favor of the jury verdict, there was no evidence of multiple conspiracies that would support Faulkner’s proposed instruction. There was testimony that Faulkner and Harrington were partners and sold drugs together every day. Police found heroin and crack cocaine together in the car on the night of the October 31 traffic stop, and Faulkner admitted to Debaun that half of the drugs were his and half were Harrington’s. Faulkner asked Debaun where the proceeds from the heroin Harrington sold to Watson were, and Debaun testified that she believed Faulkner took the money. The testimony supports the Government’s position that there was only one conspiracy, and there was no evidence that Harrington was involved in a second conspiracy to sell only heroin apart from his conspiracy with Faulkner. Second, the proffered jury instruction regarding the buyer-seller relationship was not supported by the evidence. The proposed instruction stated that “the mere agreement of one person to buy what another agrees to sell, standing alone, does not support a conspiracy conviction.” (Add. at 18.) Faulkner asserts that the only direct evidence that Faulkner was involved in distributing heroin was when," } ]

[ { "docid": "16866217", "title": "", "text": "of fact and is reviewed for clear error. See United States v. England, 966 F.2d 403, 406 (8th Cir.1992). In determining whether a single or multiple conspiracy existed, this court reviews the evidence in the light most favorable to the jury’s verdict. United States v. Cabbell, 35 F.3d 1255, 1262 (8th Cir.1994). “If the evidence supports a single conspiracy, the failure to give a multiple conspiracy instruction is not reversible error.” United States v. Roach, 164 F.3d 403, 412 (8th Cir.1999) (citing Cabbell, 35 F.3d at 1262). “A multiple conspiracy instruction is not required just because there are a number of sources and independent dealers if there was a shared objective ‘to sell large quantities of drugs.’ ” Id. (quoting Cabbell, 35 F.3d at 1262). “A single conspiracy may exist even if the participants and their activities change over time, and even if many participants are unaware of, or uninvolved in, some of the transactions.” Id. Contreras unconvincingly asserts that there were at least two separate conspiracies: the first between Cikovich and Cheri Knowles to commit the crime of conspiracy to manufacture and distribute in South Dakota, and the second between appellant and his co-conspirators to commit the crime of conspiracy to manufacture and distribute methamphetamine in California. In response, the government produced evidence to show that Contreras conspired with Cikovich to manufacture and distribute methamphetamine in California to be sold in South Dakota, thus linking him to the same conspiracy as Cikovich and Knowles. The government also demonstrated that although Cikovich and Knowles were no longer a part of the conspiracy after their arrest in 1996, ceasing Contreras’s distribution of his drugs in South Dakota, Contreras continued to produce methamphetamine with the same people who assisted him in his manufacture of the drug in California. We agree with the government that Contreras’s role remained the same throughout the period of the conspiracy. Contreras knew at all times that he was manufacturing methamphetamine to be sold by someone, whether in or outside of California. As in United States v. Jones, “the evidence here established ... a single conspiracy to move" }, { "docid": "4179503", "title": "", "text": "of consequence to the determination of the action more probable or less probable than it would be without the evidence.’ ” Id. (quoting Fed.R.Evid. 401). To prove a conspiracy, the government need not show its precise contours, only its existence and the defendant’s willing participation. United States v. Slagg, 651 F.3d 832, 840 (8th Cir.2011). A conspiracy may be a “loosely knit organization.” United States v. Baker, 855 F.2d 1353, 1357 (8th Cir.1988). Members may change over time. Slagg, 651 F.3d at 840. A conspiracy to distribute controlled substances may be established by the testimony of co-conspirators, which is often corroborated by investigation. United States v. Espinoza, 684 F.3d 766, 776 (8th Cir. 2012); United States v. Rodriguez-Ramos, 663 F.3d 356, 362 (8th Cir.2011). The district court admitted testimony from multiple witnesses that tended to show Johnson was part of an organized group — a “gang” — that distributed narcotics. Among others, a witness testified he and Johnson sold drugs daily in the early 2000s. They possessed and swapped firearms to protect their drug business. Another witness testified that Johnson, after release from incarceration in the mid-2000s, drove around with others to sell drugs. One drove, another measured drugs, while Johnson, carrying a gun, watched for rivals. Confirming these witnesses were his numerous interactions with law enforcement. He was arrested nine times between 2001 and 2008. Each arrest involved drugs. Johnson’s final arrest was dramatic. His vehicle led police on a high-speed chase, with shots fired at the pursuing officer. After the car crashed, Johnson and the other occupants fled. When finally apprehended, he had drugs, a scale, and a large amount of cash. The admission of this evidence was not an error, much less an obvious error. The evidence was sufficient to support the jury’s verdict. II. Johnson challenges the district court’s denial of his jury instruction on withdrawal. The denial of a proffered defense is reviewed de novo. United States v. Shinn, 681 F.3d 924, 929 (8th Cir.2012); see also United States v. Young, 613 F.3d 735, 744 (8th Cir.2010) (noting that “although district courts exercise wide discretion" }, { "docid": "4268102", "title": "", "text": "was insufficient to support his convictions for conspiracy and money laundering. “We review the sufficiency of the evidence de novo, ‘viewing evidence in the light most favorable to the government, resolving conflicts in the government’s favor, and accepting all reasonable inferences that support the verdict.’ ” United States v. Teague, 646 F.3d 1119, 1121-22 (8th Cir.2011) (quoting United States v. Piwowar, 492 F.3d 953, 955 (8th Cir.2007)). We reverse “only if no reasonable jury could have found guilt beyond a reasonable doubt.” United States v. Herbst, 666 F.3d 504, 510 (8th Cir.2012). 1. Conspiracy “To establish that a defendant conspired to distribute drugs under 21 U.S.C. § 846, the government must prove: (1) that there was a conspiracy, i.e., an agreement to distribute the drugs; (2) that the defendant knew of the conspiracy; and (3) that the defendant intentionally joined the conspiracy.” United States v. Diaz-Pellegaud, 666 F.3d 492, 499 (8th Cir.2012) (quoting United States v. Jiminez, 487 F.3d 1140, 1146 (8th Cir.2007)) (internal quotation marks omitted). An agreement to join a conspiracy need not be explicit but may be inferred from the facts and circumstances of the case, and a single conspiracy may exist even if the participants and their activities change over time, and even if many participants are unaware of, or uninvolved in, some of the transactions. Further, it is not necessary to proof of a conspiracy that it have a discrete, identifiable organizational structure. United States v. Slagg, 651 F.3d 832, 840 (8th Cir.2011) (internal marks and quotations omitted). Davis argues the numerous cooperating witnesses who testified Davis distributed crack and powder cocaine in Cedar Rapids alleged “individualized buyer-seller relationships with Milo Davis,” but did not provide evidence Davis “was the center of a single, ongoing conspiracy lasting 18 years.” See United States v. Prieskorn, 658 F.2d 631, 633 (8th Cir.1981) (explaining buyer/seller relationships alone do not establish a conspiracy to distribute drugs). According to Davis, the government’s witnesses did not establish “they entered into any agreement with Milo Davis nor any other witness to distribute narcotics.” Davis’s argument is without merit. “[T]he buyer-seller relationship eases" }, { "docid": "16866216", "title": "", "text": "1996, Contreras continued to manufacture methamphetamine in several residences with his co-conspirators. Cikovich agreed to cooperate with the government in return for a significantly reduced sentence. His testimony led to Contreras’s arrest. II. Discussion Contreras argues that there were two distinct conspiracies, the first between Frank Cikovich and Cheri Knowles in South Dakota, and the second involving Contreras and his co-conspirators in California. The government contends that there was one conspiracy — Contreras operated his methamphetamine production before, during, and after his collaboration with Cikovich, and relied on other sources of supply for ephedrine after Cikovieh’s arrest. We find the evidence supports the district court’s determination that a multiple conspiracy instruction was unnecessary in light of Contreras’s unchanging role in his production of methamphetamine for distribution until his arrest. Whether there was sufficient evidence to sustain a multiple conspiracy instruction is a question of law and is reviewed de novo. United States v. Hall, 171 F.3d 1133, 1149 (8th Cir.1999). Whether the government has proven a single conspiracy or a multiple conspiracy is a question of fact and is reviewed for clear error. See United States v. England, 966 F.2d 403, 406 (8th Cir.1992). In determining whether a single or multiple conspiracy existed, this court reviews the evidence in the light most favorable to the jury’s verdict. United States v. Cabbell, 35 F.3d 1255, 1262 (8th Cir.1994). “If the evidence supports a single conspiracy, the failure to give a multiple conspiracy instruction is not reversible error.” United States v. Roach, 164 F.3d 403, 412 (8th Cir.1999) (citing Cabbell, 35 F.3d at 1262). “A multiple conspiracy instruction is not required just because there are a number of sources and independent dealers if there was a shared objective ‘to sell large quantities of drugs.’ ” Id. (quoting Cabbell, 35 F.3d at 1262). “A single conspiracy may exist even if the participants and their activities change over time, and even if many participants are unaware of, or uninvolved in, some of the transactions.” Id. Contreras unconvincingly asserts that there were at least two separate conspiracies: the first between Cikovich and Cheri Knowles to" }, { "docid": "9787374", "title": "", "text": "to impose the 2-level enhancement for obstruction of justice. C. Olugbenga Adeniran 1. Motion for Judgment of Acquittal Adeniran argues the government failed to prove the existence of a single conspiracy to- commit bank fraud. He asserts the nature of the activities involved in this case shows there were two conspiracies: the one in which he participated, involving the use of fraudulent credit cards to get cash advances and gift cards; and the other, involving the open ing of fraudulent bank accounts for the purpose of depositing, and then cashing, stolen and fraudulent checks. He notes that his use of fraudulent credit cards occurred solely in Minnesota during a two-month period, while the conspiracy involving the fraudulent bank accounts was a multi-state endeavor that spanned from 2006 to March 2011. He asserts the variance between the government’s indictment — which alleged a single conspiracy— and the evidence at trial — which, he asserts, proved two or more conspiracies— infringed on his substantial rights. Adeniran notes that he did not know many of the people involved in the overall conspiracy, including Okeayainneh, and few people knew him. “Whether a given case involves single or multiple conspiracies depends on whether there was one overall agreement to perform various functions to achieve the objective of the conspiracy.” United States v. Radtke, 415 F.3d 826, 838 (8th Cir.2005) (internal quotations and citation omitted). We look at the totality of the circumstances, and “because it is a question of fact, we draw all reasonable inferences in favor of the verdict.” Id. Adeniran’s arguments are well-taken,’ but he overlooks several key points. First, “to be guilty of a single conspiracy, the conspirators need not know each other or be privy to the details of each enterprise comprising the conspiracy as long as the evidence is sufficient to show that each defendant possessed full knowledge of the conspiracy’s general purpose and scope.” United States v. Chantharath, 705 F.3d 295, 301-02 (8th Cir.2013) (quotation omitted). “That the conspirators entered the conspiracy at different times and played discrete roles does not compel a finding of multiple conspiracies.” United States" }, { "docid": "14164767", "title": "", "text": "if the participants and them activities change over time, and even if many participants are unaware of, or uninvolved in, some of the transactions.” Contreras, 283 F.3d at 916 (quoting United States v. Roach, 164 F.3d 403, 412 (8th Cir.1998)). In order for Benford to prevail on his theory of fatal variance between the single conspiracy charged in the indictment and the government’s proof of multiple conspiracies at trial, Benford must first establish the existence of a variance, and he must also show the variance affected his substantial rights. United States v. Lopez-Arce, 267 F.3d 775, 781 (8th Cir.2001). We will reverse only if we find the evidence adduced at trial does not support a finding of a single conspiracy, and we determine Benford was prejudiced by the variance. Id. Viewing the evidence in the light most favorable to the verdict, the evidence adduced at trial amply supports the district court’s finding of a single conspiracy, which (1) had as its common goal the possession and sale of large quantities of crack cocaine in east Omaha, (2) continued over a long period of time, and (3) included members of the same street gang. Id. at 782. Furthermore, we conclude Benford suffered no prejudice because he was the only defendant being tried, and he would clearly be “implicated in any other conspiracy the evidence could [conceivably] prove.” Id. at 781. Next, Benford contends the district court erred in denying him a two-level reduction for being a minor participant. See U.S.S.G. § 3B1.2(b). The Application Notes define a minor participant as a participant “who is less culpable than most other participants, but whose role could not be described as minimal.” U.S.S.G. § 3B1.2, cmt. n. 5. Benford bears the burden of proving he is entitled to a minor participant role reduction. United States v. Speller, 356 F.3d 904, 907 (8th Cir.2004). Whether a particular defendant qualifies for a role reduction under the Sentencing Guidelines is a question of fact, United States v. Thurmon, 278 F.3d 790, 792 (8th Cir.2002), which we review for clear error, United States v. Surratt, 172 F.3d 559," }, { "docid": "15027067", "title": "", "text": "government proved the single conspiracy alleged in the indictment.” Id. And we give their verdict the benefit of all reasonable inferences. Montano, 506 F.3d at 1132. Furthermore, “[a] single conspiracy may exist even if the participants and their activities change over time, and even if many participants are unaware of, or uninvolved in, some of the transactions.” United States v. Roach, 164 F.3d 403, 412 (8th Cir.1998). Furthermore, “[a] single overall conspiracy can be made up of a number of separate transactions and of a number of groups involved in separate crimes or acts.” Id. Based on the testimony presented in this case, we conclude that the jury could have found an “ongoing, facilitative relationship between parties” who were engaging in a single overarching conspiracy even though the conspiracy may have been comprised of multiple disparate transactions. Id. Because we find that no variance existed between the indictment and the government’s proof, McGilberry’s argument that his substantial rights were violated is mooted. C. Rule WMb) Subsequent Propensity Evidence Finally, McGilberry argues that the trial court erred by permitting the government to introduce subsequent propensity evidence under Federal Rule of Evidence 404(b). McGilberry objected to the trial court’s admission of evidence that McGilberry, when arrested, possessed three ounces of marijuana in a lunch box along with $776. First, McGilberry contends that, contrary to the district court’s implication, neither knowledge nor mistake was at issue in this case. Thus, McGilberry submits that this admitted evidence tended only to show his propensity to deal in narcotics. Second, he argues that subsequent possession of marijuana and cash a year and a half after the alleged conspiracy ended is simply not probative of his earlier knowledge or lack of mistake. “We review admission of [404(b) ] evidence for abuse of discretion and will reverse only when the evidence clearly had no bearing on the case and was introduced solely to show defendant’s propensity to engage in criminal misconduct.” United States v. Walker, 428 F.3d 1165, 1169 (8th Cir.2005). “Admissibility of 404(b) evidence is governed by four factors: the evidence must be 1) relevant to a" }, { "docid": "18834758", "title": "", "text": "sufficient evidence for the district court to find that Craig conspired to violate section 856. 2. Single vs. Multiple Conspiracies The next issue is whether the court erred in refusing to give a multiple conspiracy instruction as a theory of defense. The indictment charged that Eddie Cabbell, Sylvia Cabbell, Craig, and Ken Nickless conspired to commit the various drug offenses charged. Craig argued that there were multiple conspiracies rather than a single conspiracy and that he was entitled to a jury instruction to that effect. He reasoned that some drugs came into Fort Dodge from California, other drugs came from Detroit, the sources were totally unrelated, and the dealers in Fort Dodge acted independently from one another. Craig also argued that there was no evidence in the record that he participated in any way in any of the drug-related activities until 1993 at the earliest. The district court refused to give a multiple conspiracy instruction, stating that some of the defendants charged with being co-conspirators pleaded guilty and that, although there may have been multiple sources of cocaine, at least as far as these defendants were concerned there was a single conspiracy. In determining whether a single or multiple conspiracy exists, we view the evidence in the light most favorable to the jury’s verdict. United States v. Baker, 855 F.2d 1353, 1356 (8th Cir.1988), cert. denied, 490 U.S. 1069, 109 S.Ct. 2072, 104 L.Ed.2d 636 (1989). If the jury could have found one overall agreement that existed among the conspirators, even if many of them were not involved in all of the transactions, a single conspiracy is not precluded. United States v. Lee, 782 F.2d 133, 134-35 (8th Cir.1986). Although the issue is a close one, we are not convinced that the district court erred in failing to give a multiple conspiracy instruction. We agree with the district court that the fact that there may have been multiple sources of cocaine does not create multiple conspiracies, and the evidence here supports the view that those charged in this case were members of a single conspiracy, even though there may have" }, { "docid": "20469785", "title": "", "text": "have proved he was a member of a conspiracy to distribute ecstasy, it did not prove he was a member of the overarching conspiracy charged in the indictment. That is, Nguyen suggests that the Government at best proved that multiple conspiracies existed, but the Government did not prove that he joined the particular conspiracy alleged in the indictment. In support of this argument, Nguyen observes that Derrick Seals’s operation was based in Kansas City, while Nguyen and Vu lived in Dallas, Texas. Nguyen argues this entitles him to a new trial, since proof of a different conspiracy would be an impermissible variance from the indictment. “We review a district court’s denial of a motion for a new trial for an abuse of discretion.” United States v. McClellon, 578 F.3d 846, 857 (8th Cir. 2009), cert. denied, — U.S. —, 130 S.Ct. 1106, — L.Ed.2d — (2010). “In reviewing claims of variances between the indictment and proof at trial, we examine whether a reasonable jury could have determined that the defendant participated in the single conspiracy charged in the indictment.” United States v. Sdoulam, 398 F.3d 981, 991 (8th Cir.2005). In doing so, “we view the evidence in the light most favorable to the verdict.” Id. In this case, the evidence was sufficient to allow a reasonable jury to find Nguyen guilty of participating in the conspiracy alleged in the indictment. A single conspiracy is composed of individuals sharing common purposes or objectives under one general agreement. A single conspiracy may exist even if the participants and their activities change over time, and even if many participants are unaware of, or uninvolved in, some of the transactions. Further, the agreement need not be explicit, but may be tacit, based upon the actions of the defendant. United States v. Ramon-Rodriguez, 492 F.3d 930, 941 (8th Cir.2007) (quoting United States v. Smith, 450 F.3d 856, 860 (8th Cir.2006)). “[T]he government may prove the agreement wholly by circumstantial evidence or by inference from the actions of the parties.” United States v. Pizano, 421 F.3d 707, 726 (8th Cir.2005). We have held that “[t]he evidence" }, { "docid": "16253591", "title": "", "text": "he needed to use her name for a cash check, and Donohoe recalled Galston instructing him not to use the social security numbers of dead people for cash checks, because doing so would risk detection. The evidence presented at trial, in sum, supported the jury’s determination that Donohoe had the state of mind required to join the fraudulent conspiracy. Also with respect to his conviction on the conspiracy count, Donohoe argues that while the indictment alleged a conspiracy to defraud both the IRS and “union workers,” (Donohoe Br. at 14), the government failed to prove that the fraud targeted at different victims constituted a single conspiracy rather than two separate conspiracies. Where the evidence at trial supports multiple conspiracies, but only a single conspiracy is charged in the indictment, we reverse only “if the evidence does not support the single conspiracy and the defendant was prejudiced by the variance between the indictment and the proof.” United States v. Pullman, 187 F.3d 816, 821 (8th Cir.1999); see also Kotteakos v. United States, 328 U.S. 750, 756-57, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). Whether a given case involves single or multiple conspiracies depends on “whether there was ‘one overall agreement’ to perform various functions to achieve the objectives of the conspiracy.” United States v. Massa, 740 F.2d 629, 636 (8th Cir.1984) (internal quotation omitted). This is determined by the totality of the circumstances, and because it is a question of fact, we draw all reasonable inferences in favor of the verdict. United States v. McCarthy, 97 F.3d 1562, 1571 (8th Cir.1996). Relevant factors “includ[e] the na ture of the activities involved, the location where the alleged events of the conspiracy took place, the identity of the conspirators involved, and the time frame in which the acts occurred.” Id. (internal quotation omitted). Here, the evidence supported a finding that there was a single conspiracy. The conspiracy in which Donohoe allegedly participated involved defrauding the IRS, but the conspiracy count of the indictment did not allege specifically that union workers were also the target of the appellants’ fraudulent scheme. Some of the conduct" }, { "docid": "4179502", "title": "", "text": "and “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. (quoting United States v. Troyer, 677 F.3d 356, 358-59 (8th Cir. 2012)). A sufficiency challenge is reviewed de novo, viewing the evidence most favorably to the jury verdict. United States v. Lee, 687 F.3d 935, 940 (8th Cir. 2012). The jury’s verdict is upheld “if there is an interpretation of the evidence that would allow a reasonable jury to find [the defendant] guilty beyond a reasonable doubt.” Id. (quoting United States v. Spencer, 592 F.3d 866, 876 (8th Cir.2010)). This court “will reverse only if the jury must have had a reasonable doubt about an essential element of the crime.” United States v. Tucker, 137 F.3d 1016, 1033 (8th Cir.1998), Evidence is admissible if it is relevant, except as otherwise provided by the Constitution, a statute, or the rules of evidence. United States v. Holmes, 413 F.3d 770, 773 (8th Cir.2005). “Evidence is relevant so long as it has ‘any tendency,’ however slight, ‘to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.’ ” Id. (quoting Fed.R.Evid. 401). To prove a conspiracy, the government need not show its precise contours, only its existence and the defendant’s willing participation. United States v. Slagg, 651 F.3d 832, 840 (8th Cir.2011). A conspiracy may be a “loosely knit organization.” United States v. Baker, 855 F.2d 1353, 1357 (8th Cir.1988). Members may change over time. Slagg, 651 F.3d at 840. A conspiracy to distribute controlled substances may be established by the testimony of co-conspirators, which is often corroborated by investigation. United States v. Espinoza, 684 F.3d 766, 776 (8th Cir. 2012); United States v. Rodriguez-Ramos, 663 F.3d 356, 362 (8th Cir.2011). The district court admitted testimony from multiple witnesses that tended to show Johnson was part of an organized group — a “gang” — that distributed narcotics. Among others, a witness testified he and Johnson sold drugs daily in the early 2000s. They possessed and swapped firearms to protect their drug business." }, { "docid": "22052024", "title": "", "text": "killed after he was released from prison. This overt act, committed after it was clear that Sanchez had joined the conspiracy, is the last necessary element that establishes Sanchez was a member of a conspiracy to murder Turscak. Both his challenge to his conviction on count fifteen (which alleged that he participated in this conspiracy for a particular purpose) and his challenge to count one (which included this conspiracy as one of the predicate acts in which Sanchez participated) fail. B. Counts Two, Three and Four: RICO Conspiracy, Drug ‘Taxing’ Conspiracy, Drug Trafficking in Jail Conspiracy 1. Existence of single interdependent conspiracy in each count Whether a single conspiracy has been proved is a question of the sufficiency of the evidence. United States v. Duran, 189 F.3d 1071, 1078 (9th Cir.1999) (citing United States v. Bibbero, 749 F.2d 581, 586 (9th Cir.1984)). The test for determining whether a single conspiracy, rather than multiple smaller conspiracies, has been proved was outlined most recently in Duran: A single conspiracy can only be demonstrated by proof that an overall agreement existed among the conspirators. Furthermore, the evidence must show that each defendant knew, or had reason to know, that his benefits were probably dependent upon the success of the entire operation. Typically, the inference of an overall agreement is drawn from proof of a single objective ... or from proof that the key participants and the method of operation remained constant throughout the conspiracy. The inference that a defendant had reason to believe that his benefits were dependent upon the success of the entire venture may be drawn from proof that the co-conspirators knew of each other’s participation or actually benefitted from the activities of his coconspirators. 189 F.3d at 1080 (internal citations, alterations, and quotation marks omitted); see also United States v. Bibbero, 749 F.2d 581, 587 (9th Cir.1984) (holding that “[t]he relevant factors include the nature of the scheme; the identity of the participants; the quality, frequency, and duration of each conspirator’s transactions; and the commonality of time and goals”). Appellants assert that instead of the single conspiracies charged in counts" }, { "docid": "21412013", "title": "", "text": "while Boatwright and Gascon-Guerrero waited. Mendez and Santamaría returned shortly thereafter with 1/4 pound of high purity “ice” methamphetamine and 1/4 pound of lower purity Mexican methamphetamine. The nature of Gascon-Guerrero’s actions, as described by Boatwright and as corroborated by Gascon-Guerrero’s presence at the residence with the hidden phone and methamphetamine when offi cers executed the search warrant, provide sufficient support for the jury’s determination. 2. Gascon-Guerrero: Multiple Conspiracy/Single Conspiracy Instruction Gascon-Guerrero challenges the district court’s failure to offer a “single conspiracy vs. multiple conspiracy” jury instruction. Gascon-Guerrero neither requested such an instruction nor objected to its absence, so our review is for plain error. Bamberg, 478 F.3d at 939. Here, there was no error in the absence of such an instruction. We have said that: A single conspiracy is composed of individuals sharing common purposes or objectives under one general agreement. A single conspiracy may exist even if the participants and their activities change over time, and even if many participants are unaware of, or uninvolved in, some of the transactions. Further, the agreement need not be explicit, but may be tacit, based upon the actions of the defendant. United States v. Smith, 450 F.3d 856, 860 (8th Cir.2006) (internal citations and quotation marks omitted). The government’s theory of the case was that Mendez and Santamaría were at the center of a single, “wheel and spoke” conspiracy to distribute methamphetamine with the other co-conspirators involved to varying degrees in different aspects of the transportation, delivery, and sale of the drugs. The evidence presented against Gascon-Guerrero consistently described a conspiracy to deliver and distribute methamphetamine from California to the Des Moines area. In United States v. Cubillos, 474 F.3d 1114, 1118 (8th Cir.2007), we stated that to determine whether there is one or more conspiracies, “we consider factors such as ‘the nature of the activities, the location where the alleged events of the conspiracy occurred, the identity of the co-conspirators, and the time frame.’ ” Id. (quoting United States v. Burns, 432 F.3d 856, 863 (8th Cir.2005)). Here, there were no allegations of a separate conspiracy with a separate purpose," }, { "docid": "4268124", "title": "", "text": "conspiracy instruction is not reversible error.” Roach, 164 F.3d at 412. Whether a given cáse involves single or multiple conspiracies depends on “whether there was ‘one overall agreement’ to perform various functions to achieve the objectives of the conspiracy.” United States v. Massa, 740 F.2d 629, 636 (8th Cir.1984) (internal quotation omitted). This is determined by the totality of the circumstances, and because it is a question of fact, we draw all reasonable inferences in favor of the verdict. United States v. McCarthy, 97 F.3d 1562, 1571 (8th Cir.1996). Relevant factors “includ[e] the nature of the activities involved, the location where the alleged events of the conspiracy took place, the identity of the conspirators involved, and the time frame in which the acts occurred.” Id. (internal quotation omitted). United States v. Radtke, 415 F.3d 826, 838-39 (8th Cir.2005). The evidence supported a reasonable jury finding one overall agreement to distribute crack and powder cocaine in Cedar Rapids as charged in the indictment. Insisting “the conspiracy claimed was divided into at least three periods,” Davis questions the jury’s verdict based on the existence of other “top-level suppliers,” “changing actors,” “change in roles,” “breaks in the timeline,” and “testimony concerning various activities during different periods of time.” But none of those factors precluded the jury from finding a single overarching conspiracy under the circumstances of this case. See, e.g., Slagg, 651 F.3d at 842 (concluding a reasonable jury could infer a single conspiracy from similar circumstances). “A single overall conspiracy can be made up of a number of separate transactions and of a number of groups involved in separate crimes or acts.” United States v. McGilberry, 620 F.3d 880, 885-86 (8th Cir.2010) (quoting Roach, 164 F.3d at 412) (internal quotation marks and alterations omitted). “A multiple conspiracy instruction is not required just because there are a number of sources and independent dealers if there was a shared objective to ‘sell large quantities of drugs.’ ” Roach, 164 F.3d at 412 (quoting United States v. Cabbell, 35 F.3d 1255, 1262 (8th Cir.1994)). Such is the case here. “[J]ust as the litany of interrelated" }, { "docid": "4268103", "title": "", "text": "be explicit but may be inferred from the facts and circumstances of the case, and a single conspiracy may exist even if the participants and their activities change over time, and even if many participants are unaware of, or uninvolved in, some of the transactions. Further, it is not necessary to proof of a conspiracy that it have a discrete, identifiable organizational structure. United States v. Slagg, 651 F.3d 832, 840 (8th Cir.2011) (internal marks and quotations omitted). Davis argues the numerous cooperating witnesses who testified Davis distributed crack and powder cocaine in Cedar Rapids alleged “individualized buyer-seller relationships with Milo Davis,” but did not provide evidence Davis “was the center of a single, ongoing conspiracy lasting 18 years.” See United States v. Prieskorn, 658 F.2d 631, 633 (8th Cir.1981) (explaining buyer/seller relationships alone do not establish a conspiracy to distribute drugs). According to Davis, the government’s witnesses did not establish “they entered into any agreement with Milo Davis nor any other witness to distribute narcotics.” Davis’s argument is without merit. “[T]he buyer-seller relationship eases upon which [Davis] relies involved only evidence of ‘a single transient sales agreement’ and small amounts of drugs consistent with personal use.” Prieskorn, 658 F.2d at 634 (quoting United States v. Mancillas, 580 F.2d 1301, 1307 (7th Cir.1978)). Here, the evidence established Davis had ongoing relationships with numerous coconspirators and consistently sold distribution quantities of crack and powder cocaine for most of two decades. Darryl Jackson testified that after meeting Davis in 1997, the two men traveled to Chicago, Illinois, together three times to purchase a kilogram of powder cocaine or crack, which they split for resale upon return to Cedar Rapids. See Slagg, 651 F.3d at 841 (recognizing “combining funds to purchase [drugs] is evidence of an agreement to distribute”). From 1999 to 2005, when Jackson and Davis were not in jail, Jackson regularly bought sixty-three grams of powder cocaine from Davis. Davis fronted Jackson cocaine knowing Jackson would distribute the drugs and repay Davis in cash. Jackson also introduced Davis to Christina McGowan, who testified Jackson arranged for her to buy distribution quantities" }, { "docid": "9787375", "title": "", "text": "in the overall conspiracy, including Okeayainneh, and few people knew him. “Whether a given case involves single or multiple conspiracies depends on whether there was one overall agreement to perform various functions to achieve the objective of the conspiracy.” United States v. Radtke, 415 F.3d 826, 838 (8th Cir.2005) (internal quotations and citation omitted). We look at the totality of the circumstances, and “because it is a question of fact, we draw all reasonable inferences in favor of the verdict.” Id. Adeniran’s arguments are well-taken,’ but he overlooks several key points. First, “to be guilty of a single conspiracy, the conspirators need not know each other or be privy to the details of each enterprise comprising the conspiracy as long as the evidence is sufficient to show that each defendant possessed full knowledge of the conspiracy’s general purpose and scope.” United States v. Chantharath, 705 F.3d 295, 301-02 (8th Cir.2013) (quotation omitted). “That the conspirators entered the conspiracy at different times and played discrete roles does not compel a finding of multiple conspiracies.” United States v. Santisteban, 501 F.3d 873, 881 (8th Cir.2007). It is sufficient that there was an agreement to commit bank fraud, that Adeniran knew of the agreement, and that he intentionally joined in the agreement. Morris, 723 F.3d at 939-40 (quotation omitted). “A single conspiracy may exist even if the participants and their activities change over time and even if many participants were unaware of, or uninvolved in, some the transactions. Further, the agreement need not be explicit, but may be tacit, based upon the actions of the defendant.” United States v. Ramon-Rodriguez, 492 F.3d 930, 941 (8th Cir.2007). Adeniran may have known a relatively small number of fellow conspirators, but that fact alone does not support a finding of multiple conspiracies. Second, the ultimate “objective of the conspiracy” in this case was to commit bank fraud by various means. As- the government notes, the indictment alleged that the purpose of the conspiracy to commit bank fraud “was to obtain and use means of identification of other persons to create false bank and credit card accounts" }, { "docid": "4268125", "title": "", "text": "the jury’s verdict based on the existence of other “top-level suppliers,” “changing actors,” “change in roles,” “breaks in the timeline,” and “testimony concerning various activities during different periods of time.” But none of those factors precluded the jury from finding a single overarching conspiracy under the circumstances of this case. See, e.g., Slagg, 651 F.3d at 842 (concluding a reasonable jury could infer a single conspiracy from similar circumstances). “A single overall conspiracy can be made up of a number of separate transactions and of a number of groups involved in separate crimes or acts.” United States v. McGilberry, 620 F.3d 880, 885-86 (8th Cir.2010) (quoting Roach, 164 F.3d at 412) (internal quotation marks and alterations omitted). “A multiple conspiracy instruction is not required just because there are a number of sources and independent dealers if there was a shared objective to ‘sell large quantities of drugs.’ ” Roach, 164 F.3d at 412 (quoting United States v. Cabbell, 35 F.3d 1255, 1262 (8th Cir.1994)). Such is the case here. “[J]ust as the litany of interrelated relationships recounted above could permit the jury to infer more than episodic buyer-seller transactions, so it could permit the jury to infer more than a series of multiple, smaller conspiracies.” See Slagg, 651 F.3d at 841. “That various conspirators join[ed] at different times, change[d] roles, or departed] from the conspiracy d[id] not convert a single conspiracy into multiple ones.” United States v. Delgado, 653 F.3d 729, 736 (8th Cir.2011). “And the fact[s] that [Davis] may have competed with some of his coconspirators,” id. (quoting United States v. Jeffers, 570 F.3d 557, 568 (4th Cir.2009)) (internal marks omitted), and was incarcerated “for a brief period [did] not prove the existence of a different conspiracy,” United States v. Dinwiddie, 618 F.3d 821, 832-33 (8th Cir.2010). The trial record supports a finding of a single conspiracy. The district court’s rejection of Davis’s multiple conspiracies instruction was not reversible error. E. Juror No. 1 On May 23, 2011, during voir dire, the magistrate judge assigned to conduct jury selection in Davis’s case asked the jury venire if any of" }, { "docid": "15027066", "title": "", "text": "that if mere multiple transactions are wrongly considered sufficient to have established a conspiracy, then given the number of transactions and participants the government proved there must perforce be proof of multiple conspiracies. Consequently, if multiple conspiracies are shown, then the government’s proof has established a different crime than what was charged in the indictment resulting in a variance. McGilberry contends that if the government’s proof could have established the existence of one conspiracy it had to also establish the existence of multiple conspiracies. We reject McGilberry’s argument as founded on the false premise that the government’s multiple transaction evidence could establish only either multiple transactions or multiple conspiracies. The evidence also could have established an extensive single conspiracy in which McGilberry largely insulated himself from the street sellers of his bulk transactions with intermediaries by having middlemen like Larson, Clemons, and Skiff. McGilberry has not shown the jury did not conclude the latter. First, “the jury determined that a single conspiracy existed after being properly instructed that they were not to convict unless the government proved the single conspiracy alleged in the indictment.” Id. And we give their verdict the benefit of all reasonable inferences. Montano, 506 F.3d at 1132. Furthermore, “[a] single conspiracy may exist even if the participants and their activities change over time, and even if many participants are unaware of, or uninvolved in, some of the transactions.” United States v. Roach, 164 F.3d 403, 412 (8th Cir.1998). Furthermore, “[a] single overall conspiracy can be made up of a number of separate transactions and of a number of groups involved in separate crimes or acts.” Id. Based on the testimony presented in this case, we conclude that the jury could have found an “ongoing, facilitative relationship between parties” who were engaging in a single overarching conspiracy even though the conspiracy may have been comprised of multiple disparate transactions. Id. Because we find that no variance existed between the indictment and the government’s proof, McGilberry’s argument that his substantial rights were violated is mooted. C. Rule WMb) Subsequent Propensity Evidence Finally, McGilberry argues that the trial court" }, { "docid": "14164766", "title": "", "text": "RILEY, Circuit Judge. James Benford (Benford) appeals his conviction and sentence. After waiving a jury trial, the district court found Ben-ford guilty of one count of conspiracy to possess with intent to distribute cocaine base. 21 U.S.C. §§ 841(a)(1) and 846. At sentencing, the district court denied Ben-ford a reduction for a minor role in the offense and sentenced him to 324 months imprisonment and a five-year term of supervised release. On appeal, Benford argues the district court erred in finding a single conspiracy rather than multiple conspiracies, and also erred in denying him a minor role reduction. We affirm. Whether the government’s proof at trial established only a single conspiracy or multiple conspiracies is a question of fact, United States v. Morales, 113 F.3d 116, 118 (8th Cir.1997), which we review for clear error, United States v. Contreras, 283 F.3d 914, 916 (8th Cir.2002). “A single conspiracy is composed of individuals sharing common purposes or objectives under one general agreement.” Morales, 113 F.3d at 118-19 (internal quotations omitted). “A single conspiracy may exist even if the participants and them activities change over time, and even if many participants are unaware of, or uninvolved in, some of the transactions.” Contreras, 283 F.3d at 916 (quoting United States v. Roach, 164 F.3d 403, 412 (8th Cir.1998)). In order for Benford to prevail on his theory of fatal variance between the single conspiracy charged in the indictment and the government’s proof of multiple conspiracies at trial, Benford must first establish the existence of a variance, and he must also show the variance affected his substantial rights. United States v. Lopez-Arce, 267 F.3d 775, 781 (8th Cir.2001). We will reverse only if we find the evidence adduced at trial does not support a finding of a single conspiracy, and we determine Benford was prejudiced by the variance. Id. Viewing the evidence in the light most favorable to the verdict, the evidence adduced at trial amply supports the district court’s finding of a single conspiracy, which (1) had as its common goal the possession and sale of large quantities of crack cocaine in east" }, { "docid": "20469786", "title": "", "text": "charged in the indictment.” United States v. Sdoulam, 398 F.3d 981, 991 (8th Cir.2005). In doing so, “we view the evidence in the light most favorable to the verdict.” Id. In this case, the evidence was sufficient to allow a reasonable jury to find Nguyen guilty of participating in the conspiracy alleged in the indictment. A single conspiracy is composed of individuals sharing common purposes or objectives under one general agreement. A single conspiracy may exist even if the participants and their activities change over time, and even if many participants are unaware of, or uninvolved in, some of the transactions. Further, the agreement need not be explicit, but may be tacit, based upon the actions of the defendant. United States v. Ramon-Rodriguez, 492 F.3d 930, 941 (8th Cir.2007) (quoting United States v. Smith, 450 F.3d 856, 860 (8th Cir.2006)). “[T]he government may prove the agreement wholly by circumstantial evidence or by inference from the actions of the parties.” United States v. Pizano, 421 F.3d 707, 726 (8th Cir.2005). We have held that “[t]he evidence is sufficient to support a conspiracy where the drugs were purchased for resale.” United States v. Romero, 150 F.3d 821, 826 (8th Cir. 1998). Vu’s testimony regarding Nguyen’s multiple sales to him of thousands of ecstasy pills is sufficient evidence to support a jury’s finding that he knowingly entered into a conspiracy to distribute ecstasy. And there was sufficient evidence to allow a reasonable jury to find that this was the same conspiracy alleged in the indictment. Indeed, the evidence in this case showed a typical “chain conspiracy.” [I]n the typical drug distribution conspiracy you may find a manufacturer who produces the product; a supplier who buys the contraband from the producer; [and] distributors who buy from the supplier and sell to smaller dealers or users.... Whatever the product, the purpose of the conspiracy is to put the commodity into the hands of the ultimate consumer. The success of the group as a whole is dependent upon the ability of each member to fulfill his responsibilities. Thus, ... the defendants’ knowledge of the existence of" } ]

[ { "docid": "23323739", "title": "", "text": "the basis of its earlier decision in United States v. Kershner, 228 F. 2d 142, this day reversed by us, sub nom. Lehmann v. United States ex rel. Carson, ante, p. 685 — that inasmuch as respondent’s conviction in 1925 of illicit traffic in narcotic drugs was not a ground for deportation prior to the Immigration and Nationality Act of 1952, respondent had a “status” of nondeportability which was preserved to him by the savings clause in § 405 (a) of that Act. We granted certiorari, 352 U. S. 915. [For dissenting opinion of Mr. Justice Black, joined by Mr. Justice Douglas, see ante, p. 690.] As we have said in Lehmann v. United States ex rel. Carson, ante, p. 685, § 405 (a) by its own terms does not apply to situations “otherwise specifically provided” for in the Act. Section 241 (a) (11) and §241 (d) specifically provide for the deportation of an alien notwithstanding that the offense for which he is being deported occurred prior to the 1952 Act. Section 241 (a) (11) makes an alien deportable if he has “at any time” been convicted of illicit traffic in narcotic drugs. And §241 (d) makes §241 (a) (11) applicable to all aliens covered thereby “notwithstanding . . . that the facts . . . occurred prior to the date of enactment of this Act.” It seems to us indisputable, therefore, that Congress was legislating retrospectively, as it may do, to cover offenses of the kind here involved. The case is, therefore, “otherwise specifically provided” for within the meaning of § 405 (a). The Court of Appeals was in error in holding to the contrary, and its judgment is Reversed. The sale of a quantity of cocaine hydrochloride and possession and purchase of 385 grains thereof. 66 Stat. 204, 8 U. S. C. § 1251. Section 241 (a) (11) and (d) of the Immigration and Nationality-Act of 1952 provides, in pertinent part, as follows: “(a) Any alien in the United States (including an alien crewman) shall, upon the order of the Attorney General, be deported who— “(11) is, or" } ]

[ { "docid": "3013417", "title": "", "text": "felons from obtaining an automatic stay if their convictions predated the passage of the ADAA. We disagree. The insertion of the “on, before, or after” language demonstrates a clear intent to bar from an automatic stay those aliens whose convictions fall under the definition of “aggravated felony,” regardless of the date of those convictions. Cf. United States v. Koziel, 954 F.2d 831, 833, (2d Cir.1992) (holding that “on, before, or after” language in IMMACT § 505(b) gives provision eliminating judicial recommendations against deportation full retroactive effect); United States v. Bodre, 948 F.2d 28, 35 (1st Cir.1991) (same). It would distort the plain meaning of this language to limit the application of the § 1105a(a)(3) bar to convictions for aggravated felonies following the enactment of the ADAA. Further, it is well settled that Congress has the authority to make past criminal activity a new ground for deportation. See id. at 32, citing Lehman v. United States ex rel. Carson, 353 U.S. 685, 690, 77 S.Ct. 1022, 1024, 1 L.Ed.2d 1122 (1957) (alien convicted of crimes involving moral turpitude in 1936 found deportable under Immigration and Nationality Act of 1952); Mulcahey v. Catalanotte, 353 U.S. 692, 694, 77 S.Ct. 1025, 1027, 1 L.Ed.2d 1127 (1957) (alien with 1923 narcotics convictions found deportable under 1952 Act); cf. Harisiades v. Shaughnessy, 342 U.S. 580, 593-96, 72 S.Ct. 512, 520-22, 96 L.Ed. 586 (1952) (upholding retroactive application of 1940 statute that made deportable aliens who had joined the communist party at any time after entering the United States). In view of the plain language of amended § 513(b) of IMMACT and this precedent, we hold that 8 U.S.C. § 1105a(a)(3) applies to any alien who has been convicted of an offense that falls within the definition of “aggravated felony” found at 8 U.S.C. § 1251(a)(2)(B)(i), regardless of the date of that conviction. Consequently, Ignacio is precluded from obtaining an automatic stay of deportation. B. Request for a discretionary stay Ignacio next contends that denial of a stay in his case would deprive him of his Fifth Amendment right to due process. Specifically, Ignacio argues that" }, { "docid": "23481837", "title": "", "text": "503 U.S. 181, 191, 112 S.Ct. 1105, 1112, 117 L.Ed.2d 328 (1992)) or were targeted to correct an unexpected loophole created by prior law. See United States v. Carlton, 512 U.S. 26, 114 S.Ct. 2018, 129 L.Ed.2d 22 (1994) (permitting one year retroactivity for statute correcting a mistake in prior law). The Supreme Court’s recognition of the need to evaluate separately the rationality of retroactivity post-dates older cases upholding retroactive deportation laws. Even those older deportation cases identified a congressional purpose in the retroactivity itself For example, in Harisiades v. Shaughnessy, 342 U.S. 580, 72 S.Ct. 512, 96 L.Ed. 586 (1952) and Galvan v. Press, 347 U.S. 522, 74 S.Ct. 737, 98 L.Ed. 911 (1954), the Court identified congressional security interests in the deportation of past and current members of the Communist Party. As the Court explained in Harisiades, the Communist Party’s action to “drop aliens from- membership, at least in form, in order to immunize them from the consequences of their party membership” made the distinction between past and present membership meaningless and required a statute that looked to past membership. Harisiades v. Shaughnessy, 342 U.S. 580, 593, 72 S.Ct. 512, 521, 96 L.Ed. 586 (1952). The statute considered in Marcello v. Bonds, 349 U.S. 302, 75 S.Ct. 757, 99 L.Ed. 1107 (1955), and Lehmann v. United States, 353 U.S. 685, 77 S.Ct. 1022, 1 L.Ed.2d 1122 (1957), was also plainly intended to be retroactive. See Lehmann, 353 U.S. at 689-90, 77 S.Ct. at 1024-25. The Court’s decisions, however, did not take up the question whether this clearly stated congressional policy satisfied due process requirements. Its decisions referred only to Ex Post Facto objections. In the instant situation courts- are left to guess at what purpose could be served by applying section 440(d) retroactively. Without any guidance from Congress, the court may be tempted to analogize to discover possible purposes supporting retroactivity. Such an exercise in hypothetical is not generally permissible. See Pension Benefit Guaranty Corp. v. R.A Gray & Co., 467 U.S. 717, 730, 104 S.Ct. 2709, 2718, 81 L.Ed.2d 601 (1984) (requiring an independent rationale for retroactive" }, { "docid": "2741112", "title": "", "text": "implicate the Ex Post Facto Clause because it is a “civil” matter. See, e.g., Marcello v. Bonds, 349 U.S. 302, 314, 75 S.Ct. 757, 99 L.Ed. 1107 (1955) (no reason to depart from precedent that Ex Post Facto Clause does not apply to deportation); Galvan v. Press, 347 U.S. 522, 531, 74 S.Ct. 737, 98 L.Ed. 911 (1954) (refusing to apply Ex Post Facto Clause to a deportation statute); Bugajewitz v. Adams, 228 U.S. 585, 591, 33 S.Ct. 607, 57 L.Ed. 978 (1913) (prohibition against ex post facto laws had no application to a statute that made prostitution grounds for deportation). This civil classification has not without reason been condemned as resting on the legal fiction that deportation is not punishment. See Galvan, 347 U.S. at 531, 74 S.Ct. 737 (“the intrinsic consequences of deportation are ... close to punishment for crime”); Fong Haw Tan v. Phelan, 333 U.S. 6, 10, 68 S.Ct. 374, 92 L.Ed. 433 (1948) (“deportation is a drastic measure and at times the equivalent of banishment or exile”); Lok v. INS, 548 F.2d 37, 39 (2d Cir.1977) (deportation is a “sanction which in severity surpasses all but the most Draconian criminal penalties”). Several features of the current statutory scheme illustrate the quasi-penal character of deportation. INA section 238(c) provides for the issuance of judicial orders of removal at the time of a deportable alien’s sentencing. See 8 U.S.C. § 1228(c)(1) (Supp. II 1996). In addition, courts may factor in an alien’s willingness to accept deportation at sentencing. See, e.g., United States v. Galvez-Falconi, 174 F.3d 255, 260 (2d Cir.1999) (stating conditions under which sentencing court may consider alien’s consent to deportation). Other provisions mandate that “special removal proceedings” be made available at certain federal, state and local correctional facilities for aliens convicted of “aggravated felonies” and other designated offenses, see 8 U.S.C. § 1228(a)(1) (Supp. II 1996), and that the removal proceedings of “aggravated felons” be expedited by initiating them, where possible, prior to their release from incarceration. See id. § 1228(a)(3) (Supp. II 1996). Particularly disturbing is the difficulty of adequate legal representation in such" }, { "docid": "14433825", "title": "", "text": "In United States v. Klein, 80 U.S. (13 Wall.) 128, 20 L.Ed. 519 (1872), the Supreme Court determined that a law which deemed a presidential pardon prima facie evidence of disloyalty and cause to enter judgment for the INS in court disputes was violative of separation of powers. Klein involved a judgment in favor of an intestate’s administrators, who asserted a claim for the proceeds of goods confiscated by the INS, based on a presidential pardon of the intestate for his participation in the rebellion which precipitated the Civil War. The Court held that the subsequently enacted congressional legislation which directed that pardons result in favorable judgments for the INS impermissi-bly encroached on the executive power of pardon and improperly attempted to direct courts to decide cases in a particular way. In this case, Congress did not run afoul of Klein or related Supreme Court authority, e.g., Pennsylvania v. Wheeling & Belmont Bridge Co., 59 U.S. (18 How.) 421, 15 L.Ed. 435 (1856), by amending 8 U.S.C. § 1251(a). Rather than “impermissibly directing] certain findings in pending litigation,” Gray v. First Winthrop Corp., 989 F.2d 1564, 1568 (9th Cir.1993) (internal quotation omitted), the amendments merely changed the underlying law so that aliens not previously de-portable became deportable. Nevertheless, it could be argued that the 1990 amendments are unconstitutional on two independent grounds: the due process clause and the principle that Congress may not direct courts to reverse final judgments. See id. at 1570-71, 1572-74. “[T]he Supreme Court has consistently held that Congress may enact legislation with retroactive effect so long as it comports with Due Process by passing constitutional muster under rational basis scrutiny.” Id. at 1570; see also Lehmann v. United States ex rel. Carson, 353 U.S. 685, 690, 77 S.Ct. 1022, 1024, 1 L.Ed.2d 1122 (1957) (determining that since Congress may legislate retrospectively, alien could be made deportable under the Immigration and Nationality Act of 1952 for 1936 convictions of crimes involving moral turpitude which were not unconditionally pardoned); Mulcahey v. Catalanotte, 353 U.S. 692, 694, 77 S.Ct. 1025, 1027, 1 L.Ed.2d 1127 (1957) (alien made deportable under" }, { "docid": "7856820", "title": "", "text": "(1955) (alien made deportable under the Immigration and Nationality Act of 1952 for a marihuana conviction in 1938); and Gardos v. I.N.S., 324 F.2d 179 (2d Cir.1963) (alien made deportable by previous marihuana conviction). To summarize, deportation has been staunchly classified as a civil rather than criminal proceeding. Deportation itself is not punishment for criminal acts but rather a governmental decision not to harbor an unwanted alien. The ex post facto clause has been unswervingly held as inapplicable to matters of deportation. Regarding matters of deportation, the Supreme Court has faithfully deferred to Congressional regulation. In order to succeed in her appeal, Appellant must surmount these formidable judicial hurdles which are “about as firmly embedded in the judicial tissue of our body politic as any aspect of government.” As we examine the arguments Appellant advances in her favor, we necessarily remain mindful that “whatever might have been said at an earlier date for applying the ex post facto clause, it has been the unbroken rule ... that it has no application to deportation.” Galvan, 347 U.S. at 531, 74 S.Ct. at 743. III. APPELLANT’S CLAIM Appellant does not question the body of law discussed above or suggest that the ex post facto clause applies to deportation proceedings. Rather, the Appellant claims that the Judicial Recommendation Against Deportation stood on separate footing from deportation measures. The crux of Appellant’s argument is that the JRAD was criminal in nature because it was an integral part of the sentencing stage of a criminal prosecution. Appellant maintains that once Congress entrusted the sentencing judge with the exclusive power to grant a JRAD under § 1251(b), the JRAD became a part of criminal sentencing and fell outside the civil sphere of deportation. Appellant contends that, because the JRAD was a part of criminal sentencing, Congressional repeal of the recommendation authority, as applied to crimes committed before the effective date of the repeal-er, violates the Constitutional prohibition of ex post facto laws. Because her crimes were committed prior to the effective date of the repealer, Appellant argues that application of the repealer to her is unconstitutional." }, { "docid": "7856816", "title": "", "text": "as purely civil in nature. See, e.g., I.N.S. v. Lopez-Mendoza, 468 U.S. 1032, 1038, 104 S.Ct. 3479, 3483, 82 L.Ed.2d 778 (1984) (“A deportation proceed ing is a purely civil action to determine eligibility to remain in this country, not to punish an unlawful entry, though entering or remaining in this country is itself a crime.” (citation omitted)); Harisiades v. Shaughnessy, 342 U.S. at 594, 72 S.Ct. at 521. Consequently, the ex post facto clause has no application to deportation proceedings. E.g., Galvan v. Press, 347 U.S. 522, 531, 74 S.Ct. 737, 743, 98 L.Ed. 911 (1954) (“[T]he ex post facto Clause ... has no application to deportation.”); Harisiades v. Shaughnessy, 342 U.S. at 594, 72 S.Ct. at 521 (“Deportation, however severe its consequences, has been consistently classified as a civil rather than criminal procedure ... the prohibition of ex post facto has no application.”) While noting the severe consequences that deportation may have on an alien, the Supreme Court has repeatedly held that deportation is not punishment for the commission of crimes. E.g., Harisiades v. Shaughnessy, 342 U.S. at 594-95, 72 S.Ct. at 521 (“The determination of facts that might constitute a crime under local law is not a conviction of a crime, nor is the deportation a punishment: it is simply a refusal by the government to harbor persons whom it does not want. The coincidence of the local penal law with the policy of Congress is an accident.”) (quoting Bugajewitz v. Adams, 228 U.S. 585, 591, 33 S.Ct. 607, 608, 57 L.Ed. 978 (1913)); Mahler v. Eby, 264 U.S. 32, 39, 44 S.Ct. 283, 286, 68 L.Ed. 549 (1924) (“It is well settled that deportation, while it may be burdensome and severe for the alien, is not a punishment.”); Fong Yue Ting v. United States, 149 U.S. 698, 730, 13 S.Ct. 1016, 1028, 37 L.Ed. 905 (1893). The Supreme Court has consistently deferred to Congress in matters of deportation. See Harisiades v. Shaughnessy, 342 U.S. at 594, 72 S.Ct. at 521 (“It is thoroughly established that Congress has power to order the deportation of aliens whose presence" }, { "docid": "14202190", "title": "", "text": "Congress has the power to legislate retroactively. St. Cyr, 533 U.S. at 315, 121 S.Ct. 2271. When a case implicates a federal statute enacted after the events in the suit, “the court’s first task is to determine whether Congress has expressly prescribed the statute’s proper reach.” Landgraf v. USI Film Prods., 511 U.S. 244, 280, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). In Sousa we concluded that Congress, when it enacted IIRI-RA, clearly expressed its intent that an alien convicted of an aggravated felony would be subject to removal regardless of the date of conviction. 226 F.3d at 34-35. In St. Cyr, the Supreme Court identified the amendments to the definition of aggravated felony as an example of “Congress’s willingness ... to indicate unambiguously its intention to apply specific provisions retroactively.” 533 U.S. at 318-19, 121 S.Ct. 2271. If an alien has been convicted of a crime that meets the definition of an aggravated felony he is subject to deportation, regardless of the date of conviction. Binding precedent also dooms Seale’s claims that the retroactive application of the statute violates the federal constitution. It is well established that neither the Ex Post Facto Clause nor the Double Jeopardy Clause is applicable to deportation proceedings. See Breed v. Jones, 421 U.S. 519, 528, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975) (concluding that the Double Jeopardy Clause is inapplicable to deportation proceedings); United States v. Bodre, 948 F.2d 28, 33 (1st Cir.1991) (stating “[t]he ex post facto clause has been unswervingly held as inapplicable to matters of deportation”). Deportation, however severe its consequences, has been consistently classified as a civil rather than a criminal procedure. As the Supreme Court has stated: It is thoroughly established that Congress has power to order the deportation of aliens whose presence in the country it deems hurtful. The determination by facts that might consti tute a crime under local law is not a conviction of crime, nor is the deportation a punishment; it is simply a refusal by the government to harbor persons whom it does not want. Bugajewitz v. Adams, 228 U.S. 585, 591, 33" }, { "docid": "22330227", "title": "", "text": "Due Process Clause qualifies the scope of political discretion heretofore recognized as belonging to Congress in regulating the entry and deportation of aliens. And since the intrinsic consequences of deportation are so close to punishment for crime, it might fairly be said also that the ex post facto Clause, even though applicable only to punitive legislation, should be applied to deportation. But the slate is not clean. As to the extent of the power of Congress under review, there is not merely “a page of history,” New York Trust Co. v. Eisner, 256 U. S. 345, 349, but a whole volume. Policies pertaining to the entry of aliens and their right to remain here are peculiarly concerned with the political conduct of government. In the enforcement of these policies, the Executive Branch of the Government must respect the procedural safeguards of due process. The Japanese Immigrant Case, 189 U. S. 86, 101; Wong Yang Sung v. McGrath, 339 U. S. 33, 49. But that the formulation of these policies is entrusted exclusively to Congress has become about as firmly imbedded in the legislative and judicial tissues of our body politic as any aspect of our government. And whatever might have been said at an earlier date for applying the ex post facto Clause, it has been the unbroken rule of this Court that it has no application to deportation. We are not prepared to deem ourselves wiser or more sensitive to human rights than our predecessors, especially those who have been most zealous in protecting civil liberties under the Constitution, and must therefore under our constitutional system recognize congressional power in dealing with aliens, on the basis of which we are unable to find the Act of 1950 unconstitutional. See Bugajewitz v. Adams, 228 U. S. 585, and Ng Fung Ho v. White, 259 U. S. 276, 280. Judgment affirmed. In his petition, petitioner also contended that- the procedure used against him was unfair because of the new charge lodged by the Examining Officer in the December 1950 hearing. Apart from the fact that this claim was not pressed in" }, { "docid": "6060038", "title": "", "text": "fact take place before passage of the relevant provision; he was convicted in 1988, and the immigration judge ordered Hamama deported under 8 U.S.C. § 1251(a)(2)(C), which Congress enacted two years later in section 602(a) of the Immigration Act of 1990 (the “1990 Act”). See Pub.L. No. 101-649, § 602(a), 1990 U.S.C.C.A.N. (104 Stat.) 4978, 5077-80 (mandating deportation of aliens convicted of crimes involving firearms). Nevertheless, we hold that the INS may apply the 1990 legislation to Hamama’s conviction. The Supreme Court has repeatedly upheld the constitutionality of deportation proceedings that apply new law to past criminal conduct. See, e.g., Lehmann v. United States, 353 U.S. 685, 690, 77 S.Ct. 1022, 1024-25, 1 L.Ed.2d 1122 (1957) (allowing deportation based on convictions that, because of conditional pardon, were not grounds for deportation when they occurred); Marcello v. Bonds, 349 U.S. 302, 314, 75 S.Ct. 757, 763-64, 99 L.Ed. 1107 (1955) (allowing deportation based on conviction that was not grounds for deportation when it occurred). With the recent enactment of new deportation laws, this and other circuits have had occasion to reemphasize the Supreme Court holdings. See, e.g., Campos v. INS, 16 F.3d 118, 122 (6th Cir.1994); De Osorio v. INS, 10 F.3d 1034, 1042 (4th Cir.1993); Ignacio v. INS, 955 F.2d 295, 298 (5th Cir.1992); United States v. Bodre, 948 F.2d 28, 32 (1st Cir.1991), cert. denied, 503 U.S. 941, 112 S.Ct. 1487, 117 L.Ed.2d 628 (1992). Neither the instant case nor any of the recent circuit decisions offers a basis for this court to depart from the Supreme Court’s longstanding willingness to allow application of new immigration law to prior criminal conduct. See Fiallo v. Bell, 430 U.S. 787, 792, 97 S.Ct. 1473, 1478, 52 L.Ed.2d 50 (1977) (explaining exceptionally limited nature of judicial examination of immigration legislation). Hamama cites Landgraf v. USI Film Products, — U.S. -, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), in support of his due process argument. Landgraf recognized that the retroactive application of legislation can raise due process concerns: “The Due Process Clause ... protects the interests in fair notice and repose that may" }, { "docid": "7856819", "title": "", "text": "political conduct of government ... That the formulation of these policies is entrusted exclusively to Congress has become about as firmly embedded in the legislative and judicial tissue of our body politic as any aspect of government. And whatever might have been said at an earlier date for applying the ex post facto Clause, it has been the unbroken rule of this Court that it has no application to deportation. Subsequent case history has reemphasized Justice Frankfurter’s words. Congressional legislation retroactively making past criminal activity a new basis for deportation has been repeatedly upheld. See, e.g., Lehman v. U.S. ex rel. Carson, 353 U.S. 685, 690, 77 S.Ct. 1022, 1024, 1 L.Ed.2d 1122 (1957) (alien made deportable under the Immigration and Nationality Act of 1952 for convictions of crimes involving moral turpitude in 1936); Mulcahey v. Catalanotte, 353 U.S. 692, 694, 77 S.Ct. 1025, 1027, 1 L.Ed.2d 1127 (1957) (alien made deportable under the 1952 Act for narcotics convictions in 1923); Marcello v. Bonds, 349 U.S. 302, 314, 75 S.Ct. 757, 764, 99 L.Ed. 1107 (1955) (alien made deportable under the Immigration and Nationality Act of 1952 for a marihuana conviction in 1938); and Gardos v. I.N.S., 324 F.2d 179 (2d Cir.1963) (alien made deportable by previous marihuana conviction). To summarize, deportation has been staunchly classified as a civil rather than criminal proceeding. Deportation itself is not punishment for criminal acts but rather a governmental decision not to harbor an unwanted alien. The ex post facto clause has been unswervingly held as inapplicable to matters of deportation. Regarding matters of deportation, the Supreme Court has faithfully deferred to Congressional regulation. In order to succeed in her appeal, Appellant must surmount these formidable judicial hurdles which are “about as firmly embedded in the judicial tissue of our body politic as any aspect of government.” As we examine the arguments Appellant advances in her favor, we necessarily remain mindful that “whatever might have been said at an earlier date for applying the ex post facto clause, it has been the unbroken rule ... that it has no application to deportation.” Galvan, 347" }, { "docid": "2163464", "title": "", "text": "specifically provided therein, hereby continued in force and effect....” This is merely a “savings clause” to insure that the 1917 Act would continue to apply to cases pending in 1952 if not “otherwise specifically provided” for in the 1952 Act. See Lehmann v. Carson, 353 U.S. 685, 77 S.Ct. 1022, 1 L.Ed.2d 1122 (1957). It does not bar Congress from passing legislation that affects the status of anyone whose immigration proceedings began before 1952. Moreover, the legislative history of the 1978 amendment indicates that Congress intended it to apply retroactively to Nazi war criminals who were not deportable under earlier immigration laws. H.Rep. No. 95-1452, 95th Cong., 2d Sess. 3, reprinted in 1978 U.S.Code Cong. & Ad.News 4700, 4702. The 1978 statute applies to this case. CONSTITUTIONALITY OF THE 1978 AMENDMENT TO § 243(h) Before 1978, § 243(h) of the Immigration Act of 1952 authorized the Attorney General to stay the deportation of any alien who would be subject to persecution if deported. The 1978 amendment withdrew the protection of § 243(h) from members of the Nazi governments of Europe who had “ordered, incited, assisted, or otherwise participated in the persecution of any person because of race, religion, national origin, or political opinion.” 8 U.S.C. §§ 1253(h)(2)(A) and 1251(a)(19). Artukovic contends that the 1978 amendment is a bill of attainder and ex post facto law because it withdrew the basis for his stay of deportation. Deportation, however, is not a punishment; it is simply a refusal by the government to harbor persons whom it does not wish to harbor. Bugajewitz v. Adams, 228 U.S. 585, 591, 33 S.Ct. 607, 608, 57 L.Ed. 978 (1913). The prohibition against ex post facto laws and bills of attainder does not apply to deportation statutes. Marcello v. Bonds, 349 U.S. 302, 314, 75 S.Ct. 757, 764, 99 L.Ed. 1107 (1955) (construing ex post facto clause); Rubio de Cachu v. Immigration & Naturalization Serv., 568 F.2d 625, 627-28 (9th Cir. 1977) (bill of attainder clause). Congress may establish grounds for deportation that apply retroactively. Lehmann v. Carson, 353 U.S. 685, 77 S.Ct. 1022, 1 L.Ed.2d" }, { "docid": "6060045", "title": "", "text": "government interest”). Rational basis review does not require us to identify the legislature’s actual rationale for the distinction; rather, we will uphold the statute if “there are plausible reasons for Congress’ action.” United States R.R. Retirement Bd. v. Fritz, 449 U.S. 166, 179, 101 S.Ct. 453, 461, 66 L.Ed.2d 368 (1980). Hamama points out that under section 602(d) of the 1990 Act one alien could be deportable and another not deportable—even if both engaged in identical criminal conduct at the same time—simply because one received notice of deportation proceedings before March 1, 1991, and the other did not. This inequity, however, does not make the statute unconstitutional unless Congress had no rational reason for making such a distinction. The decision to allow application of the 1990 Act’s new grounds for deportation only in proceedings for which notice was provided to the alien after March 1, 1991, was arguably based on a concern that pending proceedings not be disturbed by the insertion of a new ground for deportation. We cannot say that such reasoning is irrational. The equal protection argument therefore fails. C Hamama’s last constitutional claim is that the application of the 1990 Act’s provisions to his 1988 conviction violates the Ex Post Facto Clause of Article I, Section 9 of the Constitution. The case law, however, makes it abundantly clear that ex post facto principles do not apply in deportation proceedings. See, e.g., Marcello, 349 U.S. at 314, 75 S.Ct. at 764 (declining to overturn “decisions holding that the prohibition of the ex post facto clause does not apply to deportation”); Campos, 16 F.3d at 122 (holding that “the ex post facto principle has no application in a civil context such as [a deportation proceeding]”). Ill Hamama also challenges the BIA’s decision affirming denial of relief from deportation under three different sections of the Immigration and Nationality Act, Pub.L. No. 82-414, 1952 U.S.C.C.A.N. (66 Stat.) 166 (the “INA”): (1) discretionary relief under section 212(c) (codified as amended at 8 U.S.C. § 1182(c)); (2) withholding of deportation under section 243(h) (codified as amended at 8 U.S.C. § 1253(h)); and (3)" }, { "docid": "4463764", "title": "", "text": "example, in Reetz v. Michigan, the Supreme Court found that a regulatory statute purporting to disallow the continued practice of medicine by a previously licensed physician was not “punishment” for a past offense, and therefore did not violate the ex post facto clause. 188 U.S. 505, 23 S.Ct. 390, 47 L.Ed. 563 (1903). In Harisiades v. Shaughnessy, 342 U.S. 580, 72 S.Ct. 512, 96 L.Ed. 586 (1951) the Court rejected an ex post facto attack on the Alien Registration Act of 1940, which authorized the deportation of a legally resident alien because of membership in the Communist Party, even though such membership terminated before enactment of the Act. In rejecting what apparently was a \"quasi-criminal” argument similar to the one now presented, the Court remarked: However, even if the [Alien Registration] Act were found to be retroactive, to strike it down would require us to overrule the construction of the ex post facto provision which has been followed by this Court from earliest times. It always has been considered that that which it forbids is penal legislation which imposes or increases criminal punishment for conduct lawful previous to its enactment. Deportation, however, severe its consequences, has been consistently classified as a civil rather than a criminal procedure. Both of these doctrines as original proposals might be debatable, but both have been considered closed for many years and a body of statute and decisional law has been built upon them. In Bugajewitz v. Adams, 228 U.S. 585, 591, [33 S.Ct. 607,57 L.Ed. 978], Mr. Justice Holmes, for the Court, said: “It is thoroughly established that Congress has power to order the deportation of aliens whose presence in the country it deems hurtful. The determination by facts that might constitute a crime under local law is not a conviction of crime, nor is the deportation a punishment; it is simply a refusal by the government to harbor persons whom it does not want. The coincidence of the local penal law with the policy of Congress is an accident. . . . The prohibition of ex post facto laws in article I, §" }, { "docid": "14433826", "title": "", "text": "in pending litigation,” Gray v. First Winthrop Corp., 989 F.2d 1564, 1568 (9th Cir.1993) (internal quotation omitted), the amendments merely changed the underlying law so that aliens not previously de-portable became deportable. Nevertheless, it could be argued that the 1990 amendments are unconstitutional on two independent grounds: the due process clause and the principle that Congress may not direct courts to reverse final judgments. See id. at 1570-71, 1572-74. “[T]he Supreme Court has consistently held that Congress may enact legislation with retroactive effect so long as it comports with Due Process by passing constitutional muster under rational basis scrutiny.” Id. at 1570; see also Lehmann v. United States ex rel. Carson, 353 U.S. 685, 690, 77 S.Ct. 1022, 1024, 1 L.Ed.2d 1122 (1957) (determining that since Congress may legislate retrospectively, alien could be made deportable under the Immigration and Nationality Act of 1952 for 1936 convictions of crimes involving moral turpitude which were not unconditionally pardoned); Mulcahey v. Catalanotte, 353 U.S. 692, 694, 77 S.Ct. 1025, 1027, 1 L.Ed.2d 1127 (1957) (alien made deportable under the 1952 Act for 1923 narcotics convictions). While “retroactive legislation does have to meet a burden not faced by legislation that has only future effects,” that burden is met “simply by showing that the retroactive application of the legislation is itself justified by a rational legislative purpose.” Pension Benefit Guar. Corp. v. R.A. Gray & Co., 467 U.S. 717, 730, 104 S.Ct. 2709, 2718, 81 L.Ed.2d 601 (1984). Section 1251(a)(2)(C) survives this scrutiny because its means— retroactive application of the firearm (destructive device) conviction deportation provision — is rationally related to a legitimate governmental purpose. It results in uniform application of the deportation provision to aliens convicted of firearm offenses, no matter when those convictions occurred. See generally Gray, 989 F.2d at 1573 (setting forth rational basis rubric); H.R.Conf.Rep. No. 101-955, 101st Cong., 2d Sess. 119, 132 (1990), reprinted in 1990 U.S.C.C.A.N. 6710, 6784, 6797 (“[T]he Conference report broadens the list of serious crimes, conviction of which results in various disabilities and preclusion of benefits under the Immigration and Nationality Act.”); Statement by President George" }, { "docid": "12995677", "title": "", "text": "and affirmed by the Supreme Court, 1954, 347 U.S. 522, 74 S.Ct. 737, 98 L.Ed. 911. In the course of the administrative hearings in that case, after lodgment of the additional charge, all earlier proceedings were made part of the record by stipulation. It is implicit from the Supreme Court’s opinion that that court found no jurisdictional or due process objection to the integration of the original and the second charge to constitute an amended charge. In this regard it is interesting to read the comment in Harisiades v. Shaughnessy, 1952, 342 U.S. 580, 593, 72 S.Ct. 512, 520, 96 L.Ed. 586, in a situation somewhat comparable to the instant case. We quote from page 593 in the margin. Appellant argues that the order of deportation is invalid because it was not against the law to be a Communist or to belong to that Party at the time the warrant-charge issued, or during the period in which he was a member of the Communist Party. But in Marcello v. Bonds, 1955, 349 U.S. 302, 75 S.Ct. 757, 99 L.Ed. 1107, the appellant alien was under order of deportation because he had in the past been convicted of a crime which, at the time of commission and conviction, was not cause for deportation. The order of deportation there was affirmed. Appellant contends that the situation just outlined violates the ex post facto interdiction of the United States Constitution. Harisiades v. Shaughnessy, 1952, 342 U.S. 580, 593, 72 S.Ct. 512, 520, as quoted in note 12, supra, disposes on principle of this contention. Also see Galvan v. Press, 9 Cir., 1953, 201 F.2d 302, affirmed, 1954, 347 U.S. 522, 74 S.Ct. 737, 98 L.Ed. 911; Marcello v. Bonds, 1955, 349 U.S. 302, 75 S.Ct. 757, 99 L.Ed. 1107. We shall make no detailed reply to appellant’s philosophical discussion to the effect that the Immigration Act of 1952, and the orders under it, violate the Fifth, Seventh, Eighth, and Tenth Amendments to the Constitution of the United States. The argument is ingenious and interesting, but the points stressed have already been adversely ruled" }, { "docid": "2163465", "title": "", "text": "the Nazi governments of Europe who had “ordered, incited, assisted, or otherwise participated in the persecution of any person because of race, religion, national origin, or political opinion.” 8 U.S.C. §§ 1253(h)(2)(A) and 1251(a)(19). Artukovic contends that the 1978 amendment is a bill of attainder and ex post facto law because it withdrew the basis for his stay of deportation. Deportation, however, is not a punishment; it is simply a refusal by the government to harbor persons whom it does not wish to harbor. Bugajewitz v. Adams, 228 U.S. 585, 591, 33 S.Ct. 607, 608, 57 L.Ed. 978 (1913). The prohibition against ex post facto laws and bills of attainder does not apply to deportation statutes. Marcello v. Bonds, 349 U.S. 302, 314, 75 S.Ct. 757, 764, 99 L.Ed. 1107 (1955) (construing ex post facto clause); Rubio de Cachu v. Immigration & Naturalization Serv., 568 F.2d 625, 627-28 (9th Cir. 1977) (bill of attainder clause). Congress may establish grounds for deportation that apply retroactively. Lehmann v. Carson, 353 U.S. 685, 77 S.Ct. 1022, 1 L.Ed.2d 1122 (1957); Mulcahey v. Catalanotte, 353 U.S. 692, 77 S.Ct. 1025, 1 L.Ed.2d 1127 (1957). In this case, Congress has merely withdrawn the basis for Artukovic’s temporary, discretionary stay of deporta-, tion. If Congress may establish retroactive grounds for deportation, it has the privilege of restricting the discretionary relief available to aliens for whom there already exist grounds for deportation. Artukovic has no basis for asserting that the 1978 amendment does not apply to his case. Artukovic also argues that the word “persecution” in the 1978 amendment is unconstitutionally vague. The term “persecution” appears in at least two other immigration statutes. See 8 U.S.C. §§ 1153(a)(7), 1253(h). This court has interpreted “persecution” in § 1253(h) as “the infliction of suffering or harm upon those who differ (in race, religion, or political opinion) in a way regarded as offensive.” Kovac v. Immigration and Naturalization Service, 407 F.2d 102, 107 (9th Cir.1969). Accord, Moghanian v. U.S. Dept. of Justice, etc., 577 F.2d 141, 142 (9th Cir.1978). The Board of Immigration Appeals defines the term more narrowly in" }, { "docid": "22878865", "title": "", "text": "the IIRIRA amendments to his 1980 conviction violates constitutional due process. To the extent he contends that such retroactive application lacks any rational basis, the contention must fail. Congress has a legitimate interest in protecting society from the commission of aggravated felonies as well as the illegal trafficking, possession, and use of dangerous weapons, and legislation that deports aliens who presently commit or who have committed those acts in the past is a rational means of furthering that interest. Hamama v. INS, 78 F.3d 233, 236 (6th Cir.1996) (analyzing predecessor statute to INA § 237(a)(2)(C)). Congress also has a narrower and equally legitimate interest in expeditiously removing dangerous aliens from the country, and uniform application of the new statute to remove all aliens convicted of certain offenses rationally furthers that purpose as well. United States v. Yacoubian, 24 F.3d 1, 7-8 (9th Cir.1994) (same). To the extent petitioner relies on ex post facto concerns, that reliance is completely lacking in-merit. A long and constant line of precedent establishes that statutes retroactively setting criteria for deportation do not violate the ex post facto clause. Domond v. U.S. INS, 244 F.3d 81, 87 (2d Cir.2001); e.g., Galvan v. Press, 347 U.S. 522, 531, 74 S.Ct. 737, 98 L.Ed. 911 (1954) (“And whatever might have been said at an earlier date for applying the ex post facto Clause, it has been the unbroken rule of this Court that it has no application to deportation.”); United States v. Koziel, 954 F.2d 831, 834-35 (2d Cir.1992) (collecting decisions). The ex post facto clause protects against the retroactive application of penal legislation. Deportation is a civil, not a criminal, proceeding. See Harisiades v. Shaughnessy, 342 U.S. 580, 594, 72 S.Ct. 512, 96 L.Ed. 586 (1952). As a result, retroactively applying the 1996 amendments to petitioner’s 1980 conviction does not impair his due process rights. CONCLUSION For the reasons set forth above, the judgment of the district court denying Ku-hali’s petition for a writ of habeas corpus is affirmed." }, { "docid": "7856815", "title": "", "text": "facto clause allows individuals to rely on existing law regarding criminal conduct and prevents retrospective punishment for crimes committed before any changes in the law. E.g., Weaver v. Graham, 450 U.S. 24, 28-29, 101 S.Ct. 960, 964, 67 L.Ed.2d 17 (1981); Calder, 3 U.S. at 396 (Paterson, J.). In Calder, Justice Chase explained that the ex post facto clause was included by the Framers to assure that federal and state legislators were restrained from arbitrary or vindictive action. See Calder, 3 U.S. at 389. From the outset, then, the Supreme Court has ruled that the ex post facto prohibition is a safeguard against the “lack of fair notice and governmental restraint [that exists] when the legislature increases punishment beyond what was prescribed when the crime was consummated.” Weaver, 450 U.S. at 30, 101 S.Ct. at 965; see Miller v. Florida, 482 U.S. 423, 430, 107 S.Ct. 2446, 2451, 96 L.Ed.2d 351 (1987). B. The Clause in Deportation Proceedings It is well established that deportation proceedings are not criminal actions. Deportation proceedings have been consistently classified as purely civil in nature. See, e.g., I.N.S. v. Lopez-Mendoza, 468 U.S. 1032, 1038, 104 S.Ct. 3479, 3483, 82 L.Ed.2d 778 (1984) (“A deportation proceed ing is a purely civil action to determine eligibility to remain in this country, not to punish an unlawful entry, though entering or remaining in this country is itself a crime.” (citation omitted)); Harisiades v. Shaughnessy, 342 U.S. at 594, 72 S.Ct. at 521. Consequently, the ex post facto clause has no application to deportation proceedings. E.g., Galvan v. Press, 347 U.S. 522, 531, 74 S.Ct. 737, 743, 98 L.Ed. 911 (1954) (“[T]he ex post facto Clause ... has no application to deportation.”); Harisiades v. Shaughnessy, 342 U.S. at 594, 72 S.Ct. at 521 (“Deportation, however severe its consequences, has been consistently classified as a civil rather than criminal procedure ... the prohibition of ex post facto has no application.”) While noting the severe consequences that deportation may have on an alien, the Supreme Court has repeatedly held that deportation is not punishment for the commission of crimes. E.g., Harisiades" }, { "docid": "7856818", "title": "", "text": "in this country it deems hurtful.”) (quoting Bugajewitz v. Adams, 228 U.S. at 591, 33 S.Ct. at 608). While there have been credible arguments brought before the Court that the ex post facto clause should be applied to deportation proceedings, these arguments have never succeeded. That the ex post facto clause has no application to deportation proceedings is as axiomatic as any rubric in the law. In Galvan v. Press, 347 U.S. at 530-31, 74 S.Ct. at 742, Justice Frankfurter, writing for the Court, stated: [M]uch could be said for the view, were we writing on a clean slate, that ... since the intrinsic consequences of deportation are so close to punishment for crime, it might fairly be said also that the ex post facto Clause, even though applicable only to punitive legislation, should be applied to deportation. But the slate is not clean ... [T]here is not merely a page of history, but a whole volume. Policies pertaining to the entry of aliens and their right to remain here are peculiarly concerned with the political conduct of government ... That the formulation of these policies is entrusted exclusively to Congress has become about as firmly embedded in the legislative and judicial tissue of our body politic as any aspect of government. And whatever might have been said at an earlier date for applying the ex post facto Clause, it has been the unbroken rule of this Court that it has no application to deportation. Subsequent case history has reemphasized Justice Frankfurter’s words. Congressional legislation retroactively making past criminal activity a new basis for deportation has been repeatedly upheld. See, e.g., Lehman v. U.S. ex rel. Carson, 353 U.S. 685, 690, 77 S.Ct. 1022, 1024, 1 L.Ed.2d 1122 (1957) (alien made deportable under the Immigration and Nationality Act of 1952 for convictions of crimes involving moral turpitude in 1936); Mulcahey v. Catalanotte, 353 U.S. 692, 694, 77 S.Ct. 1025, 1027, 1 L.Ed.2d 1127 (1957) (alien made deportable under the 1952 Act for narcotics convictions in 1923); Marcello v. Bonds, 349 U.S. 302, 314, 75 S.Ct. 757, 764, 99 L.Ed. 1107" }, { "docid": "6060037", "title": "", "text": "new statute applied to any deportation proceeding for which notice was provided to the alien on or after March 1, 1991, regardless of the date of the firearms conviction. On remand, Hamama applied for asylum and other relief from deportation, but the immigration judge denied the requests on various grounds. The BIA agreed with the immigration judge’s decision and dismissed Hamama’s appeal. This petition followed. II We first address several constitutional claims. Hamama contends that the deportation order violates his Fifth Amendment rights to due process and equal protection and the Ex Post Facto Clause of Article I, Section 9 of the Constitution. These assertions present questions of law, which we review de novo. Kabongo v. INS, 837 F.2d 753, 756 (6th Cir.), cert. denied, 488 U.S. 982, 109 S.Ct. 533, 102 L.Ed.2d 564 (1988). A Hamama argues that the immigration judge’s order violates his constitutional right to due process because the statute authorizing deportation of aliens convicted of firearms offenses had not taken effect at the time of his conviction. Hamama’s conviction did in fact take place before passage of the relevant provision; he was convicted in 1988, and the immigration judge ordered Hamama deported under 8 U.S.C. § 1251(a)(2)(C), which Congress enacted two years later in section 602(a) of the Immigration Act of 1990 (the “1990 Act”). See Pub.L. No. 101-649, § 602(a), 1990 U.S.C.C.A.N. (104 Stat.) 4978, 5077-80 (mandating deportation of aliens convicted of crimes involving firearms). Nevertheless, we hold that the INS may apply the 1990 legislation to Hamama’s conviction. The Supreme Court has repeatedly upheld the constitutionality of deportation proceedings that apply new law to past criminal conduct. See, e.g., Lehmann v. United States, 353 U.S. 685, 690, 77 S.Ct. 1022, 1024-25, 1 L.Ed.2d 1122 (1957) (allowing deportation based on convictions that, because of conditional pardon, were not grounds for deportation when they occurred); Marcello v. Bonds, 349 U.S. 302, 314, 75 S.Ct. 757, 763-64, 99 L.Ed. 1107 (1955) (allowing deportation based on conviction that was not grounds for deportation when it occurred). With the recent enactment of new deportation laws, this and other circuits" } ]

[ { "docid": "1723499", "title": "", "text": "ever warrant a departure. BRIGHT, Circuit Judge, dissenting. I. INTRODUCTION I respectfully dissent. Federal judges, especially district court judges, are dismayed at the impact of mandatory and guideline sentencing. See United States v. Hiveley, 61 F.3d 1358, 1365 (8th Cir.1995) (Bright, J., concurring) (discussing, federal judges’ dissatisfaction with sentencing guidelines and citing Federal Judicial Center, Planning for the Future: Results of a 1992 Federal Judicial Center Survey of United States Judges (1994)). These sentencing schemes essentially take the discretionary power to determine the length of a defendant’s sentence away from Article III judges and place it in the hands of prosecutors who control the charges brought against a defendant. The Supreme Court in Koon v. United States, — U.S. -, -, 116 S.Ct. 2035, 2046-47, 135 L.Ed.2d 392 (1996), however, recognized that judicial discretion plays a role in sentencing and that sentences resulting from guideline departures are appropriate in certain circumstances. Koon sends a signal to appellate courts to extend a greater measure of deference to district courts’ discretion in sentencing. In this case, Judge Melloy, an experienced jurist, made a fair and reasonable decision supported by adequate grounds for departing. We should affirm. II. DISCUSSION In Koon, the Supreme Court instructed appellate courts to accord sentencing courts greater discretion in their decisions to depart from the guidelines. Koon, — U.S. at -, 116 S.Ct. at 2043 (recognizing abuse of discretion rather than de novo standard of review); see also United States v. McNeil, 90 F.3d 298, 300-01 (8th Cir.1996) (citing Koon). The Court emphasized that the Sentencing Guidelines “authorize! ] district courts to depart in cases that feature aggravating or mitigating circumstances of a kind or degree not adequately taken into consideration by the Commission.” Koon, — U.S. at -, 116 S.Ct. at 2044. Because the guidelines authorize a district court to depart, a district court’s decision to depart is entitled to “substantial deference, for it embodies the traditional exercise of discretion by a sentencing court.” Id. at -, 116 S.Ct. at 2046. On appeal, therefore, this court must ask whether the district court’s ground for departure “is a" } ]

[ { "docid": "10556496", "title": "", "text": "is to be imposed and “whether a departure from the guidelines is warranted,” the sentencing court “may consider, without limitation, any information concerning the background, character and conduct of the defendant, unless otherwise prohibited by law.” U.S.S.G. § 1B1.4. Nonetheless, the Supreme Court explained that before a sentencing court departs downward, it must determine that aspects of a case are “unusual enough for it to fall outside the heartland of cases in the Guideline. To resolve this question, the district court must make a refined assessment of the many facts bearing on the outcome, informed by its vantage point and day-to-day experience in criminal sentencing.” Koon v. United States, — U.S.-, ---, 116 S.Ct. 2035, 2046-47, 135 L.Ed.2d 392 (1996). And, the court continued: Whether a given factor is present to a degree not adequately considered by the Commission, or whether a discouraged factor nonetheless justifies departure because it is present in some unusual or exceptional way, are matters determined in large part by comparison with the facts of other Guidelines cases. District courts have an institutional advantage over appellate courts in making these sorts of determinations, especially as they see so many more Guidelines eases than appellate courts do. In 1994, for example, 93.9% of Guidelines eases were not appealed. To ignore the district court’s special competence — about the “ordinariness” or “unusualness” of a particular case — would risk depriving the Sentencing Commission of an important source of information, namely, the reactions of the trial judge to the fact-specific circumstances of the case[.] Id. at -, 116 S.Ct. at 2047. Because of these explanations, we do not engage in de novo review of the district court’s decision to depart downward, and overturn such departure only for an abuse of its discretion. Id. at -, 116 S.Ct. at 2043. Ill Review Applied in This Case In tackling review in the case at hand, we must deal with the government’s contentions that defendant’s family circumstances are ordinary and that the trial court improperly considered socio-economic conditions. A. Defendant’s Family Circumstances Not Ordinary The government first maintains that Judge McKenna erred" }, { "docid": "16172957", "title": "", "text": "basis to depart downward from the range imposed by the Guidelines. They contend that the disparity between the sentence imposed on Brown and their own sentences cannot be justified under a proper application of the Guidelines. For this reason, the district court should have considered this unjustified disparity in deciding whether to depart from the applicable Guidelines range in imposing their sentences. We review decisions regarding departures from the Guidelines for abuse of discretion. See United States v. Gonzalez-Portillo, 121 F.3d 1122, 1123 (7th Cir.1997). This standard applies “to both factual determinations and ... ‘review to determine that the discretion was not guided by erroneous legal conclusions.’ ” Id. at 1124 (quoting Koon v. United States, 518 U.S. 81, 100, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996)). In applying this standard, we recall that “whether a factor is a permissible basis for departure under any circumstances is a question of law, and the court of appeals need not defer to the district court’s resolution of the point” because “[a] district court by definition abuses its discretion when it makes an error of law.” Koon, 518 U.S. at 100, 116 S.Ct. 2035. 1. Koon and Meza Because defendants’ arguments are based on an understanding of the Supreme Court’s holding in Koon, and our own holding in United States v. Meza, 127 F.3d 545, 550 (7th Cir.1996), we must first review these decisions. In promulgating the Sentencing Guidelines, the Sentencing Commission intended “the sentencing courts to treat each guideline as carving out a ‘heartland,’ a set of typical cases embodying the conduct that each guideline describes.” Koon, 518 U.S. at 93, 116 S.Ct. 2035 (quoting U.S.S.G. ch. 1, pt. A, intro, cmt. 4(b) (1995)). While a court generally must impose a sentence within the applicable Guidelines range, the Sentencing Commission realized that certain cases that for one reason or another were “unusual” would fall outside the heartland. In such atypical cases, the sentencing court must consider whether particular factors warrant a departure from the applicable Guidelines range. See id. at 94, 116 S.Ct. 2035 (“Atypical cases were not ‘adequately taken into consideration,’" }, { "docid": "6585893", "title": "", "text": "in section 5K2.1. Dawson also speaks in dicta of a requirement that a departure under section 5K2.0 be based only on the offense of conviction and not on relevant conduct. But again, the district court based its ruling on section 5K2.1, which is worded as broadly as possible. We cannot say that the district court abused its discretion in departing upward on the basis of a death resulting from relevant conduct. Since our decision in Baldwin, the Supreme Court has addressed the subject of departures in Koon v. United States, — U.S. —, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). Although Koon does not expressly address whether a court may depart based on relevant conduct, Koon generally informs us that the district courts enjoy broad discretion in deciding whether to depart when the particular facts of the ease are outside the “heartland” of Guidelines cases. The Court stated that the sentencing court’s decision to depart will in most cases be due substantial deference: Before a departure is permitted, certain aspects of the case must be found unusual enough for it to fall outside the heartland of cases in the Guideline. To resolve this question, the district court must make a refined assessment of the many facts bearing on the outcome, informed by its vantage point and day-to-day experience in criminal sentencing. Whether a given factor is present to a degree not adequately considered by the Commission, or whether a discouraged factor nonetheless justifies departure because it is present in some unusual or exceptional way, are matters determined in large part by comparison with the facts of other Guidelines cases. — U.S. at—, 116 S.Ct. at 2046-47. Thus, the Court adopted deferential review to afford the district court the “necessary flexibility to resolve questions involving ‘multifarious, fleeting, special, narrow facts that utterly resist generalization.’ ” Id. We think this is such a case. The Guidelines authorized the court to augment Purehess’ sentence for the amounts of cocaine transported by Zurheide once the court found that Trip Five was relevant conduct under section 1B1.3. But neither section 1B1.3 (governing relevant conduct) nor" }, { "docid": "23071631", "title": "", "text": "(“[W]e learn that the Commission did not adequately take into account cases that are, for one reason or another, ‘unusual.’ ”). But when is a case so “unusual” that it is a candidate for a departure? The Supreme Court in Koon made clear that this question is largely for the district court to answer. The Court explained that “[t]o resolve this question, the district court must make a refined assessment of the many facts bearing on the outcome, informed by its vantage point and day-to-day experience in criminal sentencing.” Id. at -, 116 S.Ct. at 2046-47. Thus, Koon informs us that the district courts perform the most important function in sentencing, at least in the context of departures, because they have the responsibility of determining in the first instance whether the factual circumstances of a ease remove it from the applicable guideline heartland, making the case a candidate for a departure. 2. Review on Appeal What then is the role of an appellate court in reviewing a district court’s decision to depart from the Guidelines? The Tenth Circuit approach established prior to Koon in United States v. White, 893 F.2d 276 (10th Cir.1990), is framed somewhat differently than the approach announced in Koon. White requires an appellate court to engage in a three-step review of upward departures: (1) de novo review of whether the circumstances cited by the district court encompass a factor not adequately taken into consideration by the Sentencing Commission in formulating the Guidelines; (2) clearly erroneous review of the factual determinations underlying the decision to depart; and (3) reasonableness review of the degree of departure. Id. at 277-78; see also United States v. Maldonado-Campos, 920 F.2d 714, 719-20 (10th Cir.1990) (same three-step approach applies to downward departures). After Koon, appellate courts must now review departures under a unitary abuse-of-discretion standard which “includes review to determine that the discretion [of the district court] was not guided by erroneous legal conclusions.” Koon, at -, 116 S.Ct. at 2047-48. Koon made explicit that in promulgating the Guidelines, Congress did not intend “to vest in appellate courts wide-ranging authority over district" }, { "docid": "23190944", "title": "", "text": "trademark and its messages to virtually every state in the Union, Canada, Latin America, Mexico, and Asia.” Finally, the Mirage has ongoing relationships with “wholesalers” who bring in people from all over the country as well as Canada to fill the rooms on a weekly basis. We hold that the diversion of $1.45 million from a business engaged in interstate commerce clearly has a substantial effect on interstate commerce. BOTH DEFENDANTS Sentencing Both defendants appeal their sentences. Sherwood contends that the district court erred in departing upward pursuant to ■U.S.S.G. § 3A1.1 (vulnerable victim) and U.S.S.G. § 5K2.8 (extreme conduct). Cuddy contends that the district court erred in departing upward pursuant to U.S.S.G. § 5K2.8 (extreme conduct), Application Note 8 to U.S.S.G. § 2B3.2 (threat to a family member) and U.S.S.G. § 3C1.1 (obstructing the administration of justice). Departure is permitted when certain aspects of a case are “unusual enough for it to fall outside the heartland of eases in the Guideline,” and “[district courts have an institutional advantage over appellate courts in making these sorts of determinations.” Koon v. United States, — U.S.-,- -, 116 S.Ct. 2035, 2046-47, 135 L.Ed.2d 392 (1996). Consequently, “[a] district court’s decision to depart from the Guidelines ... will in most cases be due substantial deference, for it embodies the traditional exercise of discretion by a sentencing court.” Id. Of course, “whether a factor is a permissible basis for departure under any circumstances is a question of law” and a district court may be reversed under an abuse of discretion standard if the decision to depart is based upon an error of law. Koon, —— U.S. at -, 116 S.Ct. at 2047. However, we are not confronted with a question of law in this case because the district court chose to depart upward based upon circumstances that the Guidelines specifically set forth as a permissible basis for departure. U.S.S.G. § 5K2.8 Having reviewed the district court’s findings under an abuse of discretion standard, Koon, — U.S. at-, 116 S.Ct. at 2035, we leave undisturbed its finding that Cuddy and Sherwood’s conduct was “extreme” within" }, { "docid": "11038295", "title": "", "text": "departure from the Guidelines; (3) the district court violated his due process right to a fair and unbiased sentencing by determining the sentence prior to the resentencing hearing; and (4) the district judge should have recused himself from the resentencing pursuant to 28 U.S.C. § 455(a). DISCUSSION We review a departure from the Sentencing Guidelines for abuse of discretion. Koon v. United States, — U.S. —, —, 116 S.Ct. 2035, 2047-48, 135 L.Ed.2d 392 (1996). A district court is required to impose a sentence within the Guidelines unless it determines “that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.” 18 U.S.C. § 3553(b). In order for the district court to depart from the Guidelines, “certain aspects of the case must be found unusual enough for it to fall outside the heartland of eases in the Guideline.” Koon, — U.S. at —, 116 S.Ct. at 2046. The district court’s decision to depart from the Guidelines “will in most cases be due substantial deference, for it embodies the traditional exercise of discretion by a sentencing court.” Id. at —, 116 S.Ct. at 2046. A. The Sentencing Guidelines allow departure when “reliable information indicates that the criminal history category does not adequately reflect the seriousness of the defendant’s past criminal conduct or the likelihood that the defendant will commit other crimes.” USSG § 4A1.3, p.s. Furthermore, the Sentencing Commission determined: [TJhere may, on occasion, be a ease of an egregious, serious criminal record in which even the guideline range for a Criminal History Category VI is not adequate to reflect the seriousness of the defendant’s criminal history. In such a case, a departure above the guideline range for a defendant with Criminal History Category VI may be warranted. In determining whether an upward departure from Criminal History Category VI is warranted, the court should consider that the nature of the prior offenses rather than simply their number is often more indicative of the seriousness" }, { "docid": "6676815", "title": "", "text": "HANSEN, Circuit Judge. Following Lou Jiam Saelee’s plea of guilty to one count of possession with intent to distribute opium, in violation of 21 U.S.C. § 841(a)(1), and one count of conspiracy to possess and distribute opium, in violation of 21 U.S.C. §§ 841(a)(1) and 846, the district court denied Saelee’s downward departure motion and sentenced him within the applicable range as determined by the Sentencing Guidelines. Saelee appeals, contending the district court did not understand its authority to depart downward. We disagree and dismiss this appeal for lack of jurisdiction. A sentencing court may depart from the applicable guideline range if the court finds “that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.” 18 U.S.C. 3553(b) (1994); see also U.S. Sentencing Guidelines Manual § 5K2.0 (1995) (policy statement on the grounds for departure under 18 U.S.C. § 3553(b)). Under section 3553(b), a district court may depart from the Guidelines when “certain aspects of the case [are] unusual enough for it to fall outside the heartland of cases in the Guideline[s].” Koon v. United States, — U.S. —, —, 116 S.Ct. 2035, 2046, 135 L.Ed.2d 392 (1996). “We accord a unitary abuse-of-discretion review to ‘a district court’s decision to depart from the Guidelines,’ ... but a discretionary decision not to depart from the Guidelines is unreviewable on appeal absent an unconstitutional motive.” United States v. Field, 110 F.3d 587, 591 (8th Cir.1997) (quoting Koon, — U.S. at —, 116 S.Ct. at 2046). ‘We have jurisdiction to review a district court’s decision not to depart only where the decision is based on the district court’s legally erroneous determination that it lacked authority to consider a particular mitigating factor.” Id. Saelee moved for a downward departure based upon his circumstances as a political refugee. Saelee put on evidence showing that he resided in a refugee camp for ten years, beginning at age six, and had no opportunity there for formal education. Because of" }, { "docid": "23358893", "title": "", "text": "(emphasis added). The government met its burden of proof by introducing the statement of facts in the plea agreement and the testimony of Officer Ladnier, who stated that Pluta had dry-fired a handgun at motorists and fired a handgun at Ladnier. Because such evidence is more than adequate for the government to meet its burden of proof, we hold that the district court did not err in setting Pluta’s offense level at 34 pursuant to U.S.S.G. § 4B1.4(b)(3)(A). D. Upward Departure Finally, Pluta contends that the district court erred in granting a two-level upward departure. As is typical of the issues raised in sentencing departure appeals, Pluta challenges the district court’s grounds for departure as not being of the kind upon which a sentencing court could rely to justify a departure. We review a district court’s decision to depart from the sentencing ranges provided in the guidelines for abuse of discretion. Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035, 2043, 135 L.Ed.2d 392 (1996). Because questions concerning sentencing departures necessarily address the district court’s “refined assessment of the many facts bearing on the outcome, informed by its vantage point and day-to-day experience in criminal sentencing,” id, 116 S.Ct. at 2046-47, we normally accord substantial deference to the district court’s judgment on the matter. Id. Nevertheless, “the deference that is due depends on the nature of the question presented.” Id., 116 S.Ct. at 2046. When the question is “whether a factor is a permissible basis for departure[,] ... the courts of appeals need not defer to the district court’s resolution of the point.” Id. at 2047. In granting a two-level upward departure, the district court noted that four features of this case set it apart from the guidelines’ “heartland.” These features were the following: (1) “dry-firing” a handgun at motorists on a busy interstate, warranting an upward departure pursuant to U.S.S.G. § 5K2.14; (2) firing a handgun at a police officer, warranting an upward departure pursuant to U.S.S.G. § 5K2.6; (3) Pluta’s lengthy and violent criminal history, demonstrated by his twenty-five criminal history points, warranting an upward departure pursuant" }, { "docid": "7770", "title": "", "text": "minor” under U.S.S.G. § 2G2.4(b). II. Standard of Review In United States v. Collins, 122 F.3d 1297, 1302-03 (10th Cir.1997), we identified four inquiries that must be made in reviewing departure decisions following the Supreme Court’s significant decision in Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996): [I]n determining whether the district court abused its discretion in departing from the Guidelines, appellate courts after Koon must evaluate: (1) whether the factual circumstances supporting a departure are permissible departure factors; (2) whether the departure factors relied upon by the district court remove the Appellant from the applicable Guideline heartland thus warranting departure; (3) whether the record sufficiently supports the factual basis underlying the departure; and (4) whether the degree of departure is reasonable. Collins, 122 F.3d at 1303. Appellant challenges the district court’s decision regarding the first and third of these inquiries. As instructed in Koon, we review departures from the Sentencing Guidelines under a “unitary abuse of discretion” standard. Collins, 122 F.3d at 1302 (citing Koon, 518 U.S. at 96-100, 116 S.Ct. 2035). “A district court’s decision to depart from the Guidelines ... will in most cases be due substantial deference, for it embodies the traditional exercise of discretion by a sentencing court.” Koon, 518 U.S. at 98, 116 S.Ct. 2035. However, “whether a factor is a permissible basis for departure under any circumstances is a question of law, and the court of appeals need not defer to the district court’s resolution of the point.” Id. at 100, 116 S.Ct. 2035. III. Impermissible Factors Appellant first contends that the district court used an impermissible factor as a basis for its upward departure. The court noted that the Commission had made “the sexual abuse or exploitation of a minor” a specific offense characteristic for trafficking in child pornography, but not for child pornography possession. This, the court held, was “an oversight” by the Commis sion. Tr. at 60. The court then departed from the child pornography possession guideline, using the exploitation offense characteristic. Appellant disputes the district court’s conclusion, reasoning that it was incorrect to" }, { "docid": "275287", "title": "", "text": "Baytank (Houston), Inc., 934 F.2d 599, 609-610 (5th Cir.1991). Employing that standard, we note that Johns has raised no arguments on appeal that would warrant relief; accordingly, his claim is rejected. 4. The Government's Arguments as to Sentencing We have deep respect for the difficult task district courts face in arriving at sentencing decisions. We also understand that, especially after viewing a protracted jury trial, a district court may gain a certain perspective, about a case and a defendant that seems to justify a departure from the Sentencing Guidelines, regardless of whether the Guidelines permit the departure. In such cases and, indeed, in most cases, jury trial or otherwise, a district court's decision to depart from the Guidelines is due substantial deference, for it embodies the traditional exercise of discretion by a sentencing court. Koon v. United States, — U.S. —, 116 S.Ct. 2035, 2046, 135 L.Ed.2d 392 (1996). \"To ignore the district court's special compe-tencé-~-about the ordinariness or unusualness of a particular case-would risk depriving the Sentencing Commission of an important source of information, namely, the reactions of the trial judge to the fact-specific circumstances of the case.\" Koon, — U.S. — at 116 S.Ct. at 2047 (quotations and citations omitted). Nevertheless, \"[bjefore a departure is permitted, certain aspects of the case must b~ found unusual enough for it to fail outside the heartland of cases in the Guideline.\" Koon, — U.S. at —, 116 S.Ct. at 2046. Accordingly, a district court considering a departure from the sentencing Guidelines is required to make the following inqui- (1) What features of this case potentially take the case outside of the Guidelines' \"heartland\" and make it a special or unusual case? (2) Has the Commission forbidden, departures based on those features? (3) If not, has the Commission encouraged departures on those features? (4) If not, has the Commission discouraged departures based on those features? Koon, — U.S. at —, 116 S.Ct. at 2045: Discouraged factors ... are those not ordinarily relevant to the determination of whether a sentence should b~ outside the applicable guideline range. Examples include the defendant's family ties" }, { "docid": "13272314", "title": "", "text": "called for home confinement.” It then found that the sentence imposed had been served. In reaching its sentencing decision, the district court read Koon expansively in terms of the discretion that it vested in district court judges and therefore concluded “that a significant departure based upon good works ... is in fact merited.” It also relied upon Crouse’s exemplary behavior during the pen-dency of his appeals, Crouse’s loss of reputation and of his business, and the goal of reaching a proportional sentence in comparison to Crouse’s co-conspirators. II. This court reviews a district court’s decision to depart downward from the Guidelines for an abuse of discretion. Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). The Court held that “a district court’s decision to depart from the Guidelines ... will in most cases be due substantial deference, for it embodies the traditional exercise of discretion by a sentencing court.” Id. at 98, 116 S.Ct. at 2046 (citations omitted). “Before a departure is permitted, certain aspects of the case must be found unusual enough for it to fall outside the heartland of cases in the Guideline.” Id. This determination requires “a refined assessment of the many facts bearing on the outcome, informed by [the sentencing court’s] vantage point and day-to-day experience in criminal sentencing.” Id. at 98, 116 S.Ct. at 2046-47. The Court concluded that district courts have an “institutional advantage” over appellate courts in making this determination. Id. at 98, 116 S.Ct. at 2047. However, the Court also concluded that “whether a factor is a permissible basis for departure under any circumstances is a question of law, and the court of appeals need not defer to the district court’s resolution of the point.” Id. “The abuse of discretion standard includes review to determine that the discretion was not guided by erroneous legal conclusions.” Id. at 100, 116 S.Ct. at 2048. After determining that the departure by the district court was not based on impermissible factors, this court reviews any sentence that is “outside the applicable guideline range” for reasonableness. 18 U.S.C. § 3742(e)(3); United States" }, { "docid": "404307", "title": "", "text": "invalid factors.” Koon, 518 U.S. at - - -, 116 S.Ct. at 2053-54 (citing Williams v. United States, 503 U.S. 193, 203, 112 S.Ct. 1112, 1120, 117 L.Ed.2d 341 (1992)). Herein, the district court did not rely on the SCAMS Act as the sole basis for departure. The sentencing court also found the circumstances of this case were outside the heartland of the offenses for which Mr. Smith was being sentenced. We review this finding to determine' if the district court’s error was harmless. See Fed.R.Crim.P. 52(a). The district court may depart from the guidelines if an aggravating circumstance exists to a degree not adequately taken into consideration by the guidelines. 18 U.S.C. § 3553(b); U.S.S.G. § 5K2.0. A departure is permitted if aspects of the case are “found unusual enough for it to fall outside the heartland of eases in the Guideline.” Koon, 518 U.S. at -, 116 S.Ct. at 2046. A district court’s decision to depart from the guidelines based on the unusual nature of the case is due “substantial deference” because “[w]hether a given factor is present to a degree not adequately considered by the Commission ... [is] determined in large part by comparison with the facts of other Guidelines cases. District courts have an institutional advantage over appellate courts in making these sorts of determinations, especially as they see so many more Guidelines cases than appellate courts do.” Koon, 518 U.S. at - - -, 116 S.Ct. at 2046-47. In reviewing a district court’s decision to depart, this Court must evaluate (1) whether the factual circumstances supporting a departure are permissible departure factors; (2) whether the departure factors relied upon by the district court remove the defendant from the applicable Guideline heartland thus warranting a departure, (3) whether the record sufficiently supports the factual basis underlying the departure, and (4) whether the degree of departure is reasonable. Collins, 122 F.3d at 1303. We apply a unitary abuse of discretion standard throughout the Collins analysis. Id.; Koon, 518 U.S. at - - -, 116 S.Ct. at 2047-48. Whether the factual circumstances of the case provide a permissible" }, { "docid": "4775688", "title": "", "text": "of a young child to a sexual act that would have to be painful is excessively cruel and hence is sadistic within the meaning of § 2G2.2(b)(3). B. The Departures The Sentencing Reform Act provides that a sentencing court may impose a sentence higher or lower than the sentencing range established by the Guidelines if “the court finds that there exists an aggravating or mitigating circumstance of a kind, or ’to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines.” 18 U.S.C. § 3553(b). In seeking to determine whether a circumstance was adequately taken into consideration by the Commission, the courts are to “consider only the sentencing guide lines, policy statements, and official commentary of the Sentencing Commission.” Id. See generally Koon v. United States, — U.S. -, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). The Guidelines, in turn, state that the Commission has sought to set out a “heartland,” a set of typical cases embodying the conduct that each guideline describes. When a court finds an atypical case, one to which a particular guideline linguistically applies but where conduct significantly differs from the norm, the court may consider whether a departure is warranted. Guidelines ch. 1 pt. A, intro, cmt. 4(b). “A district court’s decision to depart from the Guidelines ... will in most cases be due substantial deference, for it embodies the traditional exercise of discretion by a sentencing court.” Koon v. United States, — U.S. at -, 116 S.Ct. at 2046. Because the courts of appeals see but a small fraction of the sentencing issues that arise under the Guidelines, see id. at -, 116 S.Ct. at 2047 (“In 1994, for example, 93.9% of Guidelines cases were not appealed”), the “[district courts have an institutional advantage over appellate courts” in determining whether or not a given case, considering all of its circumstances, is within the heartland of typical cases. See id. Accordingly, such determinations by the • district courts are subject to review under an abuse-of-discretion standard on appeal. Id. 1. The Offense-Level Departure Pursuant to § 5K2.0 Delmarle challenges the" }, { "docid": "11038294", "title": "", "text": "downward departure issues, and that’s all.” Id. at 11. Lowe argued that his sentence should not be enhanced because the career offender provision had already adequately accounted for his criminal history. Id. at 24-26, 34. Over defense counsel’s objections, the district court found that there were several grounds for upward departure. The court carefully tied its departure to the Guidelines by making an incremental increase from offense level 29 to offense level 31 under Criminal History Category VI to a guideline range of 188 to 235 months. • The court imposed a sentence at the high end of that range—228 months for count three and 60 months for count one, to run concurrently. Id. at 43. Lowe argues that: (1) the district court erroneously enhanced his sentence pursuant to USSG § 4A1.3 because his status as a career offender adequately represented his criminal past, and his relatively low criminal history score did not warrant an upward departure from criminal history category VI; (2) the district court did not adequately articulate the basis for its upward departure from the Guidelines; (3) the district court violated his due process right to a fair and unbiased sentencing by determining the sentence prior to the resentencing hearing; and (4) the district judge should have recused himself from the resentencing pursuant to 28 U.S.C. § 455(a). DISCUSSION We review a departure from the Sentencing Guidelines for abuse of discretion. Koon v. United States, — U.S. —, —, 116 S.Ct. 2035, 2047-48, 135 L.Ed.2d 392 (1996). A district court is required to impose a sentence within the Guidelines unless it determines “that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.” 18 U.S.C. § 3553(b). In order for the district court to depart from the Guidelines, “certain aspects of the case must be found unusual enough for it to fall outside the heartland of eases in the Guideline.” Koon, — U.S. at —, 116 S.Ct. at 2046. The" }, { "docid": "23071630", "title": "", "text": "to an exceptional degree or in some other way makes the case different from the ordinary ease where the factor is present. If a factor is unmentioned in the Guidelines, the court must, after considering the “structure and theory of both relevant individual guidelines and the Guidelines taken as a whole,” decide whether it is sufficient to take the case out of the Guideline’s heartland. The court must bear in mind the Commission’s expectation that departures based on grounds not mentioned in the Guidelines will be “highly infrequent.” Id. (citations omitted). After Koon, it is now apparent that a district court may consider a departure when “certain aspects of the ease [are] found unusual enough for it to fall outside the heartland of cases in the Guideline.” Id. at -, 116 S.Ct. at 2046. District courts are authorized to depart in this situation because “the Commission itself admits that it has not adequately considered ‘unusual’ cases.” United States v. Rivera, 994 F.2d 942, 947 (1st Cir.1993); see also Koon, at -, 116 S.Ct. at 2044 (“[W]e learn that the Commission did not adequately take into account cases that are, for one reason or another, ‘unusual.’ ”). But when is a case so “unusual” that it is a candidate for a departure? The Supreme Court in Koon made clear that this question is largely for the district court to answer. The Court explained that “[t]o resolve this question, the district court must make a refined assessment of the many facts bearing on the outcome, informed by its vantage point and day-to-day experience in criminal sentencing.” Id. at -, 116 S.Ct. at 2046-47. Thus, Koon informs us that the district courts perform the most important function in sentencing, at least in the context of departures, because they have the responsibility of determining in the first instance whether the factual circumstances of a ease remove it from the applicable guideline heartland, making the case a candidate for a departure. 2. Review on Appeal What then is the role of an appellate court in reviewing a district court’s decision to depart from the Guidelines?" }, { "docid": "8059325", "title": "", "text": "has appealed the sentence imposed by the district court. II. STANDARD OF REVIEW In Koon v. United States, — U.S. -, -, 116 S.Ct. 2035, 2043, 135 L.Ed.2d 392 (1996), the Supreme Court held that an appellate court reviewing a district court’s departure from the sentencing guidelines should ask “whether the sentencing court abused its discretion.” The Court explained that while an abuse of discretion review standard preserves the sentencing court’s “traditional discretion,” it does not render appellate review an empty exercise. Id. at -, 116 S.Ct. at 2046. A sentencing court’s factual findings continue to be afforded substantial deference, but a mistake of law is, by definition, an abuse of discretion. Id. at -, 116 S.Ct. at 2047. Whether to depart from the sentencing guidelines is a decision which requires a district court to make both factual and legal findings. Under 18 U.S.C. § 3553(b), a district court may depart from the applicable guideline range if “the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.” Thus, to depart from the sentencing guidelines, a district court must make two fundamental determinations: (1) what, if any, factor makes the case “atypical” (i.e., unlike the typical case found under the applicable sentencing guideline), and (2) should that factor result in a different sentence. The first of these determinations is factual in nature, see Koon, — U.S. at -, 116 S.Ct. at 2046-47, while the second involves both legal and factual considerations, see id. at -, 116 S.Ct. at 2047. Cases implicating a factor not adequately taken into consideration by the Sentencing Commission are said to fall outside the “heartland” of typical cases embodying the conduct described in the applicable guideline. See U.S.S.G. ch.l, pt. A, intro, comment. 4(b). A district court determines whether a case falls outside the heartland by making a refined assessment of the facts of the case, comparing those facts to the facts of other cases falling" }, { "docid": "7120444", "title": "", "text": "Guidelines for an abuse of discretion. See Koon v. United States, 518 U.S. 81, 100, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). A district court's findings of fact are afforded substantial deference. See id. at 98, 116 S.Ct. 2035. \"The abuse of discretion standard includes review to detei~mifte that the discretion was not guided by erroneous legal conclusions.\" Id. at 100, 116 S.Ct. 2035. A district court must impose a sentence within the Sentencing Guidelines unless the court determines \"that there exists an aggravating or mitigating circumstance of a kind or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.\" 18 U.S.C. § 3553(b). The Guidelines Manual explains: The Commission intends the sentencing courts to treat each guideline as carving out a \"heartland,\" a set of typical cases embodying the conduct that each guideline describes. When a court finds an atypical case, one to which a particular guideline linguistically applies but where the conduct significantly differs from the norm, the court may consider whether a departure is warranted. U.S.S.G. Ch. 1, Pt. A, intro, comment. 4(b). Before departing from the Guidelines, a district court must therefore determine that an aggravating factor exists that places the case outside of the Guidelines' heartland. See Koon, 518 U.S. at 98, 116 S.Ct. 2035. Whether a case is unusual enough to fall outside of the heartland is determined in large part by comparison with other Guidelines cases. See id. Because the district courts see so many Guidelines cases, district courts have an institutional advantage over appellate courts in determining whether a case is outside the heartland, and thus their decisions are entitled to substantial deference. See id. The examination of whether a factor is an appropriate basis for departure is limited to (1) whether the Sentencing Commission has prohibited consideration of the factor in departing from the Guidelines, and (2) whether the factor as occurring in the particular instance takes the case outside of the heartland of the applicable guideline. See Id. at 109, 116 S.Ct. 2035." }, { "docid": "23174936", "title": "", "text": "findings that address each element of the alleged perjury are preferable, a general finding that an enhancement is warranted suffices if it encompasses all of the factual predicates necessary for a perjury finding. Id. 507 U.S. at 95, 113 S.Ct. at 1116-17. This Court reviews such determinations for clear error. United States v. Jones, 32 F.3d 1512, 1519 (11th Cir.1994). The court found that the defendant’s testimony was a “concoction,” and that the victim had been sexually assaulted. The defendant denied forcing Showalter to perform oral sex upon him and denied raping her, contending instead that they had consensual sex. We attribute great deference to the court’s credibility determination. United States v. Lee, 68 F.3d 1267, 1276 (11th Cir.1995). The inconsistencies in the defendant’s testimony, as well as the contradictions with other witness testimony, support a conclusion that the defendant intended to testify falsely, without confusion, about material matters. Dunnigan, 507 U.S. at 94, 113 S.Ct. at 1116. The court did not err in enhancing the applicable offense level for obstruction of justice. D. The defendant alleges that the court erred in upwardly departing from the Guidelines because it relied on the degrading nature of his assaults without making the finding that' their nature removed the defendant’s case from the “heartland” of sexual assaults. See Koon v. United States, — U.S. —, —, 116 S.Ct. 2035, 2046, 135 L.Ed.2d 392 (1996). The defendant also argues that the extent of the departure (3 levels) was unreasonable. We disagree. This Court reviews guideline departures for abuse of discretion. United States v. Taylor, 88 F.3d 938, 942 (11th Cir.1996). A sentencing court may depart when it finds “that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the Guidelines....” 18 U.S.C. § 3553(b). The Supreme Court has referred to such circumstances as those that take the case out of the “heartland” of the applicable guidelines. Koon, — U.S. at -, 116 S.Ct. at 2046. In assessing whether a departure is appropriate, the Koon Court directed sentencing courts" }, { "docid": "23553571", "title": "", "text": "L.Ed.2d 124 (1993). The sentencing court can depart from the guideline range if it finds “that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines.” 18 U.S.C. § 3553(b). This Court reviews a district court’s decision to depart from the Sentencing Guidelines range for abuse of discretion, see Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035, 2043, 2046-48, 135 L.Ed.2d 392 (1996); United States v. Sprei, 145 F.3d 528, 533 (2d Cir.1998); United States v. Galante, 111 F.3d 1029, 1034 (2d Cir.1997); United States v. Rioux, 97 F.3d 648, 662-63 (2d Cir.1996), keeping in mind, however, that “[a] district court by definition abuses its discretion when it makes an error of law.” Koon, 116 S.Ct. at 2047. Because “the abuse of discretion standard includes review to determine that the [court’s discretion in the sentencing determination] was not guided by erroneous legal conclusions,” Koon, 116 S.Ct. at 2048, our review embraces the question of whether a particular factor is a permissible basis for departure. See Sprei, 145 F.3d at 533; Rioux, 97 F.3d at 663. Gonzalez pled guilty to possessing ammunition after having been convicted of a felony, in violation of 18 U.S.C. § 922(g) and 18 U.S.C. § 2. At the sentencing on July 2,1997, Judge Cote settled on a criminal history category of IV and an adjusted offense level of 20, and sentenced him at the top of the resulting 51 to 63 month range because he had attempted to flee when he was arrested. See U.S.S.G. § 3C1.1, Application Note 4d (1995). In calculating Gonzalez’ sentence, the district court made three separate departures from the Guidelines. Gonzalez challenges each of them. 1. Base offense level. The plea agreement and the presentence report (“PSR”) recommended a level of 14 on the basis of U.S.S.G. § 2K2.1(a)(6), which specifies a base level of 14 for a “prohibited person” in possession of ordinary guns or ammunition. The district court, however, found that Franklyn’s possession of the machine gun was relevant conduct" }, { "docid": "8059282", "title": "", "text": "imprisonment, followed by five years supervised release. DISCUSSION I. Departure from the Guidelines We review a district court’s decision to depart from the Sentencing Guidelines for abuse of discretion. Koon v. United States, — U.S. -, -, 116 S.Ct. 2035, 2047-48, 135 L.Ed.2d 392 (1996); United States v. Lowe, 106 F.3d 1498, 1501 (10th Cir.), cert. denied, — U.S. -, 117 S.Ct. 2494, 138 L.Ed.2d 1001 (1997). In Koon, the Court found “[a] district court’s decision to depart from the Guidelines ... will in most cases be due substantial deference, for it embodies the traditional exercise of discretion by a sentencing court.” Id. at -, 116 S.Ct. at 2046. The Court reasoned that district courts have an “institutional advantage” over appellate courts in making departure decisions since they deal with such determinations on a daily basis. Id. at -, 116 S.Ct. at 2046-47. Nevertheless, the Court also concluded that “whether a factor is a permissible basis for departure under any circumstances is a question of law, and the court of appeals need not defer to the district court’s resolution of the point.” Id. at -, 116 S.Ct. at 2047. “The abuse of discretion standard includes review to determine that the discretion was not guided by erroneous legal conclusions.” Id. at -, 116 S.Ct. at 2048. We have summarized our analysis as: (1) whether the factual circumstances supporting a departure are permissible departure factors; (2) whether the departure factors relied upon by the district court remove the defendant from the applicable Guideline heartland thus warranting a departure, (3) whether the record sufficiently supports the factual basis underlying the departure, and (4) whether the degree of departure is reasonable. United States v. Collins, 122 F.3d 1297, 1303 (10th Cir.1997). The first inquiry is a legal question, the second is factual. In general, a court must impose a sentence within the guideline range unless it finds “there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.”" } ]

[ { "docid": "23208598", "title": "", "text": "complaints filed with the EEOC, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. The Postal Service filed a motion to dismiss based on Doe’s violation of Fed. R.Civ.P. 10(a). Rule 10(a) requires a plaintiff to include the names of all parties in a complaint. In response, Doe filed a motion to proceed under the fictitious name, Bill W. Doe. The district court denied Doe’s motion and expressed its intention to grant the Postal Service’s motion to dismiss if Doe did not file an amended complaint within twenty days of the order substituting his full legal name for Bill W. Doe. Doe appeals the district court’s order denying his motion to proceed under a fictitious name. DISCUSSION This case requires us to decide under what circumstances a plaintiff may proceed under a fictitious name. Generally, parties to a lawsuit must identify themselves in their respective pleadings. Southern Methodist Univ. Ass’n of Women Law Students v. Wynne & Jaffe, 599 F.2d 707, 712 (5th Cir.1979). Fed.R.Civ.P. 10(a) requires a complaint to “include the names of all the parties.” This rule serves more than administrative convenience. It protects the public’s legitimate interest in knowing all of the facts involved, including the identities of the parties. Doe v. Rostker, 89 F.R.D. 158, 160 (N.D.Cal.1981); Doe v. Deschamps, 64 F.R.D. 652, 653 (D.Mont.1974). Doe points out that he is challenging government activity and that the prosecu tion of his suit would compel him to disclose information of the utmost secrecy, i.e., his alcoholism. Relying on Doe v. Stegall, 653 F.2d 180 (5th Cir. Unit A Aug. 1981), Doe argues that these circumstances are enough to overcome the clear mandate of Rule 10(a). The Postal Service agrees that Stegall sets out this Circuit’s test for anonymity, but argues that the circumstances in this case simply do not overcome Rule 10(a)’s explicit requirement of disclosure. The ultimate test for permitting a plaintiff to proceed anonymously is whether the plaintiff has a substantial privacy right which outweighs the “customary and constitutionally-embedded presumption of openness in judicial proceedings.” Stegall," } ]

[ { "docid": "18413414", "title": "", "text": "construes the complaint, and all of its reasonable inferences, most favorably to plaintiff. Westcott v. City of Omaha, 901 F.2d 1486, 1488 (8th Cir.1990). B. Unnamed Plaintiffs The complaint purports to set out the claims of two unnamed parties: John Doe and Mary Doe. The government denies there is any legal basis for anonymous plaintiffs in this lawsuit. Indeed, Fed. R.Civ.P. 10(a) is explicit: a complaint “shall include the names of all the parties.” Notwithstanding Rule 10(a), plaintiffs claim their ease falls within a limited realm of cases in which other interests—i.e., pri vacy and concern about embarrassment— outweigh the public’s interest in open disclosure. Plaintiffs are incorrect. There is a strong presumption against allowing parties to use a pseudonym. See, e.g., Doe v. Blue Cross & Blue Shield United of Wisconsin, 112 F.3d 869, 872 (7th Cir.1997); Doe v. Frank, 951 F.2d 320, 323-24 (11th Cir.1992); Southern Methodist Univ. Ass’n of Women Law Students v. Wynne & Jaffe, 599 F.2d 707, 712-13 (5th Cir.1979). The reasons are obvious and compelling: identification of litigants is recognized as important in a public proceeding. See Blue Cross, 112 F.3d at 872. A party who invokes the judicial powers of the United States invites public scrutiny. “The people have a right to know who is using their courts.” Id. Limited exceptions to the party-publicity rule exist. Case law has recognized three factors which, if present, might support anonymity. They have been found when “(1) plaintiffs seeking anonymity were suing to challenge governmental activity; (2) prosecution of the suit compelled plaintiffs to disclose information ‘of the utmost intimacy;’ and (3) plaintiffs were compelled to admit their intention to engage in illegal conduct, thereby risking criminal prosecution.” Doe v. Stegall, 653 F.2d 180, 185 (5th Cir.1981) (quoting Wynne & Jaffe, 599 F.2d at 712-13). Although the listed factors are not exhaustive, they provide valuable guidance. While the first factor is present here, the third is not. Plaintiffs argue their “wish to obtain legal advice from [plaintiff] attorneys ... about prebank-ruptcy planning and filing bankruptcy” (1st Am.Compl.l 10) suffices for the second factor. According to the" }, { "docid": "19022606", "title": "", "text": "3:95CV00409, 1995 WL 820124, 1995 U.S.Dist. Lexis 5340, at *1-2 (D.Conn. Mar. 20, 1995); Doe v. University of Rhode Island, Civ.A. No. 93-0560B, 1993 WL 667341, at *2 (D.R.I. Dec. 28,1993). In exercising its discretion, a court should consider certain factors in determining whether plaintiffs may proceed anonymously. These factors include (1) whether the plaintiff is challenging governmental activity; (2) whether the plaintiff would be required to disclose information of the utmost intimacy; (3) whether the plaintiff would be compelled to admit his or her intention to engage in illegal conduct, thereby risking criminal prosecution; (4) whether the plaintiff would risk suffering injury if identified; and (5) whether the party defending against a suit brought under a pseudonym would be prejudiced. See James v. Jacobson, 6 F.3d 233, 238 (4th Cir.1993); Doe v. Frank, 951 F.2d 320, 323 (11th Cir.1992); Bell Atlantic, 162 F.R.D. at 420; Rowe v. Burton, 884 F.Supp. 1372, 1386 (D.Alaska 1994); University of Rhode Island, 1993 WL 667341, at *2. In considering these and other factors, a court must engage in a balancing process. As the Eleventh Circuit has held, The ultimate test for permitting a plaintiff to proceed anonymously is whether the plaintiff has a substantial privacy right which outweighs the ‘customary and constitutionally-embedded presumption of openness in judicial proceedings.’ It is the exceptional ease in which a plaintiff may proceed under a fictitious name. Frank, 951 F.2d at 323 (citing Doe v. Stegall, 653 F.2d 180,186 (5th Cir.1981)). The present case is a difficult one. If the allegations of the complaint are true, plaintiff was the victim of a brutal sexual assault. Quite understandably, she does not want to be publicly identified and she has very legitimate privacy concerns. On balance, however, these concerns are outweighed by the following considerations. First, plaintiff has chosen to bring this lawsuit. She has made serious charges and has put her credibility in issue. Fairness requires that she be prepared to stand behind her charges publicly. See Bell Atlantic, 162 F.R.D. at 422. Second, this is a civil suit for damages, where plaintiff is seeking to vindicate primarily" }, { "docid": "14848186", "title": "", "text": "confidentiality as to his identity; I further find little if any evidence that the public interest in disclosure is sufficient to override plaintiff’s security interest. Nor do I find that any significant harm will befall defendant if plaintiff proceeds under a fictitious name. Accordingly, I authorize the plaintiff to pursue this litigation using a pseudonym, and I deny defendant’s motion to strike the amended complaint. SO ORDERED. . Under most circumstances, parties to a lawsuit are required to proceed under their real names. See, e.g., Fed.R.Civ.P. 10(a); Southern Methodist Univ. Ass’n. v. Wynne & Jaffe, 599 F.2d 707, 712 (5th Cir.1979). This general rule has been broken on occasion, however. See Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Doe v. Deschamps, 64 F.R.D. 652, 653 (D.Mont.1974). The present dispute focuses on whether plaintiff’s circumstances warrant such a departure from the general rule. . Blue Cross correctly points out McConn is distinguishable from the instant case in that the plaintiff transsexuals in McConn were in danger of prosecution for violating a city ordinance making it unlawful for persons to cross-dress in public. See Defendant’s Reply Memorandum at 4. Here, the plaintiff faces no such threat of criminal sanctions; nonetheless, the McConn plaintiffs and the present plaintiff share other, equally valid, concerns regarding divulgence of their true identities. .“The decision [as to whether a party may sue anonymously] requires a balancing of considerations calling for maintenance of a party’s privacy against the customary and constitutionally-embedded presumption of openness in judicial proceedings.\" Doe v. Stegall, 653 F.2d 180, 186 (5th Cir.1981). . Plaintiff argues that he has already, and will likely continue to, lose professional clients once his status as a transsexual is no longer confidential. The Court need not address this, since I find that the probability of social stigmatization is sufficient to override any public interest in identity disclosure in this case." }, { "docid": "4944928", "title": "", "text": "names since Roe v. New York). Thus, the central inquiry before the court is whether the plaintiff should be permitted to proceed in this cause under a pseudonym and if not, whether, as defendants contend, the cause must be dismissed in its entirety for plaintiff’s alleged failure to properly commence the action. The decision whether to allow the use of fictitious names based on a need for anonymity in a particular lawsuit is left to the discretion of the trial court. See Roe v. Borup, 500 F.Supp. 127, 130 (E.D.Wis. 1980). There is, however, no express standard to guide the court in making its decision. Rather, the court must balance the plaintiffs interest in maintaining anonymity against the “customary and constitutionally-embedded presumption of openness in judicial proceedings[,]” Doe v. Stegall, 653 F.2d 180, 186 (5th Cir.1981), since it is axiomatic that lawsuits are public events and that the public has a legitimate interest in knowing the facts involved, including the identities of the parties____ The defendant also has a strong interest in knowing who is suing him. Doe v. Rostker, 89 F.R.D. 158, 162 (N.D.Cal.1981). It must be borne in mind, though, that the policy under Rule 10 favors disclosure of the names of litigants, such that identifying a plaintiff only by a pseudonym is an unusual procedure, to be allowed only where there is an important privacy interest to be recognized. Lindsey v. Dayton-Hudson Corp., 592 F.2d 1118, 1125 (10th Cir.1979); see also Doe v. Deschamps, 64 F.R.D. 652, at 653 (D.Mont.1974) (court should grant permission to proceed under fictitious name only in exceptional circumstances where interest of justice so requires). That is, there are limited exceptions to the Rule 10 requirement of disclosure where parties have strong interests in proceeding anonymously. Doe v. Rostker, 89 F.R.D. at 161. In Southern Methodist University Association v. Wynne & Jaffe, 599 F.2d 707 (5th Cir.1979), the Fifth Circuit observed that while neither Title VII nor the Federal Rules of Civil Procedure make provision for plaintiff to proceed anonymously, there are certain special circumstances in which that technique has been allowed. “[W]here" }, { "docid": "14848176", "title": "", "text": "MEMORANDUM AND ORDER PETTINE, Senior District Judge. Defendant in the above-captioned case has filed a Motion to Strike Plaintiffs Amended Complaint. In essence, defendant objects to plaintiffs use of a fictitious name in his Complaint. For reasons which follow, the Court denies defendant’s motion, and authorizes plaintiff to proceed in this matter under a fictitious name. I. Plaintiff, a transsexual, has filed suit against Blue Cross & Blue Shield of Rhode Island (“Blue Cross”) in an attempt to recoup medical expenses he incurred in connection with his sex change. Blue Cross contends that sex changes are expressly excluded from the insurance coverage afforded plaintiff through his group employee benefits plan. Plaintiff wishes to pursue this litigation under a fictitious name in order to avoid public identification as a transsexual. Plaintiff seeks to avoid the social stigmatization which would flow from his identity as a transsexual. Plaintiff also seeks, through the use of a fictitious name, to protect his privacy, as well as to insulate himself from harassment that could result from his public identification as a transsexual. And plaintiff seeks to avoid the destruction of his ability to earn a living. Indeed Plaintiff, an insurance agent, lost the endorsement of two insurance carriers after they had learned that he was a transsexual. As a result, Plaintiff fears that other carriers would refuse to conduct business with him, and that his ability to pursue his chosen occupation, or any other, would be jeopardized by public revelation of his transsexuality. Plaintiff’s Memorandum at 1. Defendant counters that neither “social embarrassment [nor] potential economic loss ... is sufficient to overcome the presumption that one who seeks the assistance of the courts should conduct that litigation under his/her own name.” Defendant’s Reply Memorandum at 2. II. Few courts have been faced with the precise question of whether transsexuals are entitled to sue under pseudonymous names. However, in at least three such cases, transsexual litigants were permitted to proceed under fictitious names. In McClure v. Harris, 503 F.Supp. 409 (N.D.Cal.1980), rev’d on other grounds, Schweiker v. McClure, 456 U.S. 188, 102 S.Ct. 1665, 72 L.Ed.2d" }, { "docid": "21012588", "title": "", "text": "the parties.” Fed.R.Civ.P. 10(a). Moreover, the public has a right of access to judicial proceedings. See Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 598-99, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978); Huminski v. Corsones, 396 F.3d 53, 80 (2d Cir.2005). Nevertheless, the federal courts have permitted a party to proceed under a pseudonym when special circumstances warrant anonymity. See, e.g., Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.3d 678, 685-87 (11th Cir.2001); Does I thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1068-69 (9th Cir.2000); James v. Jacobson, 6 F.3d 233, 238-39 (4th Cir.1993); EW v. New York Blood Center, 213 F.R.D. 108, 110-12 (E.D.N.Y.2003); Javier v. Garcia-Botello, 211 F.R.D. 194, 196 (W.D.N.Y.2002); Doe v. Smith, 105 F.Supp.2d 40, 43-44 (E.D.N.Y.1999); Doe v. United Servs. Life Ins. Co., 123 F.R.D. 437, 439 (S.D.N.Y.1988). The Seventh Circuit, which disfavors the use of fictitious names, has recognized that sexual assault victims are a paradigmatic example of those entitled to a grant of anonymity. See Doe v. Blue Cross & Blue Shield United of Wisc., 112 F.3d 869, 872 (7th Cir.1997) (“fictitious names are allowed when necessary to protect the privacy of ... rape victims, and other particularly vulnerable parties or witnesses”); see also Doe v. City of Chicago, 360 F.3d 667, 669 (7th Cir.2004). Whether to allow a plaintiff to proceed anonymously is within the court’s discretion. See Aware Woman Ctr., 253 F.3d at 684; Javier, 211 F.R.D. at 195; EW, 213 F.R.D. at 110. Courts will permit a party to proceed under a pseudonym where “the party’s need for anonymity outweighs prejudice to the opposing party and the public’s interest in knowing the party’s identity.” Does I Thru XXIII, 214 F.3d at 1068; see Javier, 211 F.R.D. at 195; EW, 213 F.R.D. at 111; Smith, 105 F.Supp.2d at 42-44. Among the factors courts have considered in balancing these competing interests are: 1) whether the plaintiff is challenging governmental activity or an individual’s actions, 2) whether the plaintiffs action requires disclosure of information of the utmost intimacy, 3) whether identification would put the plaintiff at risk of suffering" }, { "docid": "20674839", "title": "", "text": "this matter fully and will be totally exonerated.” (internal quotations omitted)); id., Ex. 9 (Statement on www.abc2news.com) at 2 (similar); id., Ex. 10 (Statement on www. baltimore.cbslocal.com) at 1; id., Ex. 11 (Statement on www.usatoday.com) at 1. In response to the public commentary from the plaintiffs counsel, the defendant has filed the motion, which is the subject of this opinion. See Def.’s Mem. at 1. II. ANALYSIS Federal Rule of Civil Procedure 10(a) requires that a complaint state all of the names of the parties. “Disclosure of the parties’ identities furthers the public interest in knowing the facts surrounding judicial proceedings.” Nat’l Ass’n of Waterfront Emp’rs v. Chao, 587 F.Supp.2d 90, 99 (D.D.C.2008). However, courts in this district allow plaintiffs to proceed under a pseudonym in certain cases involving matters of a sensitive and highly personal nature. See id.; see also Doe v. De Amigos, LLC, No. 11-cv-1755, slip op. at 2 (D.D.C. Apr. 30, 2012); Yaman v. U.S. Dep’t of State, 786 F.Supp.2d 148, 153 (D.D.C.2011); Doe v. Von Eschenbach, No. 06-2131, 2007 WL 1848013, at *2 (D.D.C. June 27, 2007). “[I]t is within the discretion of the district court to grant the ‘rare dispensation’ of anonymity....” United States v. Microsoft Corp., 56 F.3d 1448, 1464 (D.C.Cir.1995) (quoting James v. Jacobson, 6 F.3d 233, 238 (4th Cir.1993)). In exercising this discretion, “the [C]ourt has ‘a judicial duty to inquire into the circumstances of particular cases to determine whether the dispensation is warranted.’ ” Id. (quoting James, 6 F.3d at 238). “As part of this inquiry, the [C]ourt should take into account the risk of unfairness to the opposing party, as well the ‘customary and constitutionally-embedded presumption of openness in judicial proceedings.’ ” Id. (quoting Doe v. Stegall, 653 F.2d 180, 186 (5th Cir.1981)) (internal citation omitted); see also Yaman, 786 F.Supp.2d at 152 (explaining that notwithstanding “ ‘this country’s strong tradition of access to judicial proceedings’ there are situations in which a ‘party’s interest in privacy or confidentiality ... outweighs this strong presumption in favor of public access’ ” (quoting Johnson v. Greater Se. Cmty. Hosp. Corp., 951 F.2d" }, { "docid": "21855333", "title": "", "text": "rule, as expressed in Rule 10(a), provides: Every pleading shall contain a caption setting forth the name of the Court, the title of the action, the file number, and a designation as in Rule 7(a). In the Complaint, the title of the action shall include the names of all the parties, but in other pleadings it is sufficient to state the name of the first party on each side with an appropriate indication of other parties. Fed.R.Civ.P. 10(a) (emphasis added). The Eleventh Circuit has noted that “[t]his rule serves more than administrative convenience. It protects the public’s legitimate interest in knowing all of the facts involved, including the identities of the parties.” Doe v. Frank, 951 F.2d 320 (11th Cir.1992). However, under certain limited circumstances, a plaintiff may seek leave of court to proceed under a pseudonym. “The ultimate test for permitting a plaintiff to proceed anonymously is whether the plaintiff has a substantial privacy right which outweighs the ‘customary and constitutionally-embedded presumption of openness in judicial proceedings.’ It is the exceptional case in which a plaintiff may proceed under a fictitious name.” Doe v. Frank, 951 F.2d at 323 (citing Doe v. Stegall, 653 F.2d 180, 186 (5th Cir. Unit A Aug.1981)). The Eleventh Circuit has allowed parties to proceed anonymously when the plaintiffs were challenging governmental activity, when the plaintiffs were required to disclose information of the utmost intimacy, and when the plaintiffs were compelled to admit their intention to engage in illegal conduct, thereby risking criminal prosecution. Doe v. Frank, 951 F.2d at 323 (citing Stegall, 653 F.2d at 185). The Doe v. Frank court summarized the rare instances when a plaintiff should be allowed to proceed anonymously as follows: “A plaintiff should be permitted to proceed anonymously only in those exceptional cases involving matters of a highly sensitive and personal nature, real danger of physical harm, or where the injury litigated against would be incurred as a result of the disclosure of the plaintiffs identity.” 951 F.2d at 324. In deciding whether to allow a party to proceed anonymously, the trial court “should carefully review all" }, { "docid": "4944927", "title": "", "text": "has been commenced. Roe v. State of New York, 49 F.R.D. at 281. The court further ruled that the subsequent disclosure of the true identities of the plaintiffs did not change the status of the case since, in that court’s opinion, no action had been commenced by filing of the complaint and nothing would serve to change that. The decision in Roe v. State of New York, upon which defendants heavily rely, was rendered in 1970, a time in which instances of parties suing pseudonymously were rare. See Steiner, Public Trial, Pseudonymous Parties: When Should Litigants be Permitted to Keep Their Identities Confidential? 37 Hastings L.J. 1 (1985). Since that time, however, increasing numbers of parties have sought for a variety of reasons to sue anonymously in order to keep their identities confidential, and in fact, “a practice has developed permitting individuals to sue under fictious names” under certain circumstances. 27 Fed.Proc., L.Ed. § 62:96 (1984); see also Doe v. Deschamps, 64 F.R.D. 652, 653 (D.Mont.1974) (noting host of cases have been prosecuted under fictitious names since Roe v. New York). Thus, the central inquiry before the court is whether the plaintiff should be permitted to proceed in this cause under a pseudonym and if not, whether, as defendants contend, the cause must be dismissed in its entirety for plaintiff’s alleged failure to properly commence the action. The decision whether to allow the use of fictitious names based on a need for anonymity in a particular lawsuit is left to the discretion of the trial court. See Roe v. Borup, 500 F.Supp. 127, 130 (E.D.Wis. 1980). There is, however, no express standard to guide the court in making its decision. Rather, the court must balance the plaintiffs interest in maintaining anonymity against the “customary and constitutionally-embedded presumption of openness in judicial proceedings[,]” Doe v. Stegall, 653 F.2d 180, 186 (5th Cir.1981), since it is axiomatic that lawsuits are public events and that the public has a legitimate interest in knowing the facts involved, including the identities of the parties____ The defendant also has a strong interest in knowing who is" }, { "docid": "21855332", "title": "", "text": "history.’ ” Yocom, 257 F.3d at 1173. Thus, the Tenth Circuit concluded that “[bjecause the district court never had jurisdiction over the plaintiffs when it granted defendants’ motion for summary judgment, [it had] no authority to consider an appeal of that decision.” Id. at 1173. Like the plaintiffs in Yocom, the plaintiffs in this case failed to seek leave to proceed anonymously. Thus, this court does not have jurisdiction over the unnamed plaintiffs because of this procedural error. Accordingly, the court grants Defendants’ Motion to Dismiss First Amended Complaint as to all unnamed plaintiffs. All claims asserted by the individual unnamed plaintiffs are dismissed without prejudice. Because plaintiffs indicated at oral argument that they will likely file a Motion for Leave to Proceed Anonymously in advance of filing a Second Amended Complaint, the court briefly addresses the legal requirements for proceeding anonymously. Rule 10(a) of the Federal Rules of Civil Procedure expressly requires that the parties be fully identified in the pleadings, absent a finding by the court that certain conditions are met. The general rule, as expressed in Rule 10(a), provides: Every pleading shall contain a caption setting forth the name of the Court, the title of the action, the file number, and a designation as in Rule 7(a). In the Complaint, the title of the action shall include the names of all the parties, but in other pleadings it is sufficient to state the name of the first party on each side with an appropriate indication of other parties. Fed.R.Civ.P. 10(a) (emphasis added). The Eleventh Circuit has noted that “[t]his rule serves more than administrative convenience. It protects the public’s legitimate interest in knowing all of the facts involved, including the identities of the parties.” Doe v. Frank, 951 F.2d 320 (11th Cir.1992). However, under certain limited circumstances, a plaintiff may seek leave of court to proceed under a pseudonym. “The ultimate test for permitting a plaintiff to proceed anonymously is whether the plaintiff has a substantial privacy right which outweighs the ‘customary and constitutionally-embedded presumption of openness in judicial proceedings.’ It is the exceptional case in which" }, { "docid": "19657517", "title": "", "text": "Cir.1993)). When a party raises a privacy interest, a court must balance that interest against the “customary and constitutionally-embedded presumption of openness in judicial proceedings.” Doe v. Stegall, 653 F.2d 180, 185-86 (5th Cir.1981); accord Yacovelli v. Moeser, No. 02-596, 2004 WL 1144183, at *6 (M.D.N.C. May 20, 2004). To determine whether a party may proceed anonymously, a court should consider the impact of the plaintiffs anonymity on the public interest in open proceedings and on fairness to the defendant. Microsoft, 56 F.3d at 1464. In balancing the competing interests involved, factors to consider include: (1) whether the justification asserted by the requesting party is merely to avoid the annoyance and criticism that may attend any litigation or is to preserve privacy in a matter of a sensitive and highly personal nature; (2) whether identification poses a risk of retaliatory physical or mental harm to the requesting party or even more critically, to innocent non-parties; (3) the ages of the persons whose privacy interests are sought to be protected; (4) whether the action is against a governmental or private party; and (5) the risk of unfairness to the opposing party from allowing an action against it to proceed anonymously. See Yacovelli 2004 WL 1144183, at *6-8. Pseudonymous litigation has been permitted “only in those exceptional cases involving matters of a highly sensitive and personal nature, real danger of physical harm, or where the injury litigated against would be incurred as a result of the disclosure of the plaintiffs identity.” Doe v. Frank, 951 F.2d 320, 322-23 (11th Cir.1992). In contrast, requests to proceed anonymously have been denied where the plaintiff merely cites personal embarrassment as the basis of the need for confidentiality. In Qualls, for example, the plaintiffs were soldiers serving in Iraq or en route to Iraq whose terms of service were involuntarily extended by the Department of Defense’s Stop Loss program. Qualls, 228 F.R.D. at 9. They claimed that if they were named they could be subject to retaliation including physical harm, and they submitted affidavits of unrelated third parties which alleged retaliation or bias against military personnel" }, { "docid": "19022607", "title": "", "text": "a balancing process. As the Eleventh Circuit has held, The ultimate test for permitting a plaintiff to proceed anonymously is whether the plaintiff has a substantial privacy right which outweighs the ‘customary and constitutionally-embedded presumption of openness in judicial proceedings.’ It is the exceptional ease in which a plaintiff may proceed under a fictitious name. Frank, 951 F.2d at 323 (citing Doe v. Stegall, 653 F.2d 180,186 (5th Cir.1981)). The present case is a difficult one. If the allegations of the complaint are true, plaintiff was the victim of a brutal sexual assault. Quite understandably, she does not want to be publicly identified and she has very legitimate privacy concerns. On balance, however, these concerns are outweighed by the following considerations. First, plaintiff has chosen to bring this lawsuit. She has made serious charges and has put her credibility in issue. Fairness requires that she be prepared to stand behind her charges publicly. See Bell Atlantic, 162 F.R.D. at 422. Second, this is a civil suit for damages, where plaintiff is seeking to vindicate primarily her own interests. This is not a criminal case where rape shield laws might provide some anonymity to encourage victims to testify to vindicate the public’s interest in enforcement of our laws. See id. (rape shield laws “apply to situations where the government chooses to prosecute a case, and offer[ ] anonymity to a victim who does not have a choice in or control over the prosecution”). Indeed, the public’s interest in bringing defendants to justice for breaking the law— assuming that they did — is being vindicated in the criminal proceedings. Third, Shakur has been publicly accused. If plaintiff were permitted to prosecute this case anonymously, Shakur would be placed at a serious disadvantage, for he would be required to defend himself publicly while plaintiff could make her accusations from behind a cloak of anonymity. See Southern Methodist Univ. Ass’n of Women Law Students, 599 F.2d at 713 (Because “the mere filing of a civil action against ... private parties may cause damage to their good names and reputation,” “[bjasic fairness” dictates that plaintiffs" }, { "docid": "23322209", "title": "", "text": "lightly. Certainly, “[i]dentifying the parties to the proceeding is an important dimension of pnblicness. The people have a right to know who is using their courts.” Doe v. Blue Cross & Blue Shield United, 112 F.3d 869, 872 (7th Cir.1997) (Posner, J.). Courts have nevertheless “carved out a limited number of exceptions to the general requirement of disclosure [of the names of parties], which permit plaintiffs to proceed anonymously.” Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.3d 678, 685 (11th Cir.2001). Indeed, we have approved of litigating under a pseudonym in certain circumstances, see, e.g., Smith v. Edwards, 175 F.3d 99, 99 n. 1 (2d Cir.1999) (“For the sake of the privacy of plaintiffs child, pseudonyms for plaintiff and his family are employed throughout this opinion.”), but we have not yet set forth the standard for permitting a plaintiff to do so, see, e.g., Doe v. Menefee, 391 F.3d 147, 149 n. 1 (2d Cir.2004) (“We decline to address the complex question of the applicable standards for litigating under a pseudonym under these circumstances.”). Other Circuits have established such a standard, and several district courts in this Circuit have recently grappled with this issue. Drawing on both the rules adopted by other Circuits and the experience of the district courts of our Circuit, we now set forth the standard governing the use of pseudonyms in civil litigation in our Circuit. The courts that have considered this issue have framed the relevant inquiry as a balancing test that weighs the plaintiffs need for anonymity against countervailing interests in full disclosure. In Aware Woman Center, the Eleventh Circuit explained that the “ultimate test for permitting a plaintiff to proceed anonymously is whether the plaintiff has a substantial privacy right which outweighs the customary and constitutionally-embedded presumption of openness in judicial proceedings.” 253 F.3d at 685 (internal quotation marks omitted). Likewise, the Tenth Circuit “weights] the plaintiffs claimed right to privacy against the countervailing public interest in [open proceedings],” M.M. v. Zavaras, 139 F.3d 798, 803 (10th Cir.1998), as does the Fifth Circuit, see Doe v. Stegall, 653 F.2d 180, 186" }, { "docid": "14954425", "title": "", "text": "on remand to enter an order allowing Plaintiffs B and V to remain anonymous, subject to the district court’s consideration of whether the restrictions sought would be an unconstitutional prior restraint on protected speech. We also remand Plaintiffs J and S’s request to maintain anonymity for reconsideration in light of the issues addressed in this opinion, also subject to the limitations posed by the First Amendment on prior restraints on speech. Federal Rule of Civil Procedure 10(a) requires that “every pleading” in federal court “must name all the parties.” Fed.R.Civ.P. 10(a) (2010). “This rule serves more than administrative convenience. It protects the public’s legitimate interest in knowing all of the facts involved, including the identities of the parties.” Frank, 951 F.2d at 322 (citing Doe v. Rostker, 89 F.R.D. 158, 160 (N.D.Cal.1981) and Doe v. Deschamps, 64 F.R.D. 652, 653 (D.Mont.1974)). This creates a strong presumption in favor of parties’ proceeding in their own names. Defendants have the right to know who their accusers are, as they may be subject to embarrassment or fundamental unfairness if they do not. See Doe v. Smith, 429 F.3d 706, 710 (7th Cir.2005) (“[The plaintiff] has denied [the defendant] the shelter of anonymity — yet it is [the defendant], and not the plaintiff, who faces disgrace if the complaint’s allegations can be substantiated. And if the complaint’s allegations are false, then anonymity provides a shield behind which defamatory charges may be launched without shame or liability.”). Nonetheless, the rule is not absolute. A party may proceed anonymously in a civil suit in federal court by showing that he “has a substantial privacy right which outweighs the ‘customary and constitutionally-embedded presumption of openness in judicial proceedings.’ ” Frank, 951 F.2d at 328 (quoting Stegall, 653 F.2d at 186). In evaluating whether a plaintiff has shown that he has such a right, the court “should carefully review all the circumstances of a given case and then decide whether the customary practice of disclosing the plaintiffs identity should yield to the plaintiffs privacy concerns.” Id. (citing S. Methodist Univ. Ass’n of Women Law Students v. Wynne &" }, { "docid": "15292369", "title": "", "text": "use of pseudonyms based on a need for anonymity in a particular lawsuit is left to the discretion of the court. Heather K, 887 F.Supp. at 1255 (citing, inter alia, James v. Jacobson, 6 F.3d 233, 235 (4th Cir.1993), and Frank, 951 F.2d at 323). Unfortunately, there is still no express standard to guide courts in exercising such discretion, because neither the Eighth Circuit Court of Appeals nor the United States Supreme Court has yet provided instruction on this issue, although both have permitted prosecution of suits under pseudonyms. Compare id. (noting the lack of such guidance and citing Supreme Court and Eighth Circuit cases permitting use of pseudonyms). In Heather K, this' court looked for guidance to a decision of the Eleventh Circuit Court of Appeals: In Doe v. Frank, 951 F.2d 320 ([11th Cir.] 1992), the plaintiff sought to proceed under a fictitious name to avoid social stigma that he argued would attach upon revelation of his alcoholism. The Eleventh Circuit concluded that a plaintiff may proceed anonymously in “exceptional cases,” where he “has a substantial privacy right which outweighs the ‘customary and constitutionally-embedded presumption of openness in judicial proceedings.’ ” Id. at 323 (quoting Doe v. Stegall, 653 F.2d 180, 186 (5th Cir.1981)). The court identified three circumstances common to those cases where a plaintiff was permitted to proceed under a fictitious name. Those circumstances were: (1) plaintiffs challenging governmental activity; (2) plaintiffs required to disclose information of the utmost intimacy; and (3) plaintiffs compelled to admit their intention to engage in illegal conduct, thereby risking criminal prosecution. Frank, 951 F.2d at 323 (citing Stegall, 653 F.2d at 185). The factors enumerated in Frank and Stegall were not intended as a “ ‘rigid, three-step test for the propriety of party anonymity.’ ” Id. (quoting Stegall, 653 F.2d at 185). The mere presence of one factor was not meant to be dispositive, but rather, these factors were “highlighted merely as factors deserving consideration.” Id. Instead, a court must “carefully review all the circumstances of a given case and then decide whether the customary practice of disclosing the plaintiffs" }, { "docid": "15292370", "title": "", "text": "“has a substantial privacy right which outweighs the ‘customary and constitutionally-embedded presumption of openness in judicial proceedings.’ ” Id. at 323 (quoting Doe v. Stegall, 653 F.2d 180, 186 (5th Cir.1981)). The court identified three circumstances common to those cases where a plaintiff was permitted to proceed under a fictitious name. Those circumstances were: (1) plaintiffs challenging governmental activity; (2) plaintiffs required to disclose information of the utmost intimacy; and (3) plaintiffs compelled to admit their intention to engage in illegal conduct, thereby risking criminal prosecution. Frank, 951 F.2d at 323 (citing Stegall, 653 F.2d at 185). The factors enumerated in Frank and Stegall were not intended as a “ ‘rigid, three-step test for the propriety of party anonymity.’ ” Id. (quoting Stegall, 653 F.2d at 185). The mere presence of one factor was not meant to be dispositive, but rather, these factors were “highlighted merely as factors deserving consideration.” Id. Instead, a court must “carefully review all the circumstances of a given case and then decide whether the customary practice of disclosing the plaintiffs identity should yield to the plaintiffs privacy concerns.” Id.; see' also [Methodist Univ. Ass’n of Women Law Students v.] Wynne & Jaffe, 599 F.2d [707,] 713 [(5th Cir.1979)]. Heather K., 887 F.Supp. at 1255-56; accord Luckett, 21 F.Supp.2d at 1029 (“Although the listed factors [from Frank and Stegall ] are not exhaustive, they provide valuable guidance.”). Some recent decisions have added to the three pertinent considerations suggested in Frank and Stegall.. These decisions suggest consideration of (4) whether the plaintiff would risk injury if identified; (5) whether the party defending against a suit brought under a pseudonym would thereby be prejudiced, see Free Speech, 1999 WL 47310 at *2 (citing Shakur, 164 F.R.D. at 360, as considering these factors in-addition to the three cited in Frank)-, (6) the extent to which the identity of the litigant has been kept confidential; (7) whether, because of the purely legal na ture of the issues presented or otherwise, there is an atypically weak public interest in knowing the litigants’ identities, see id. (citing Doe v. Provident Life and" }, { "docid": "23322210", "title": "", "text": "circumstances.”). Other Circuits have established such a standard, and several district courts in this Circuit have recently grappled with this issue. Drawing on both the rules adopted by other Circuits and the experience of the district courts of our Circuit, we now set forth the standard governing the use of pseudonyms in civil litigation in our Circuit. The courts that have considered this issue have framed the relevant inquiry as a balancing test that weighs the plaintiffs need for anonymity against countervailing interests in full disclosure. In Aware Woman Center, the Eleventh Circuit explained that the “ultimate test for permitting a plaintiff to proceed anonymously is whether the plaintiff has a substantial privacy right which outweighs the customary and constitutionally-embedded presumption of openness in judicial proceedings.” 253 F.3d at 685 (internal quotation marks omitted). Likewise, the Tenth Circuit “weights] the plaintiffs claimed right to privacy against the countervailing public interest in [open proceedings],” M.M. v. Zavaras, 139 F.3d 798, 803 (10th Cir.1998), as does the Fifth Circuit, see Doe v. Stegall, 653 F.2d 180, 186 (5th Cir. Unit A Aug.1981) (discussing “the balance pitting privacy concerns against the presumption of openness of judicial proceedings”). Similarly, the Ninth Circuit has held that “a party may preserve his or her anonymity in judicial proceedings in special circumstances when the party’s need for anonymity outweighs [1] prejudice to the opposing party and [2] the public’s interest in knowing the party’s identity.” Does I Thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1068 (9th Cir.2000). Variations of the Ninth Circuit’s formulation have been adopted previously by district courts in our Circuit. See, e.g., Doe v. Del Rio, 241 F.R.D. 154, 157 (S.D.N.Y.2006); EW v. N.Y. Blood Ctr., 213 F.R.D. 108, 110 (E.D.N.Y.2003). We agree that the interests of both the public and the opposing party should be considered when determining whether to grant an application to proceed under a pseudonym. Accordingly, we endorse the Ninth Circuit’s formulation and hold that when determining whether a plaintiff may be allowed to maintain an action under a pseudonym, the plaintiffs interest in anonymity must be balanced" }, { "docid": "11127992", "title": "", "text": "favor of allowing Company Doe to litigate its claims under a pseudonym, explaining that Company Doe initiated the underlying suit to prevent disclosure of its identity; disclosing Company Doe’s identity would cause harm to the company; and the Commission would not be prejudiced by allowing Company Doe to litigate its claims pseudonymously. Pseudonymous litigation undermines the public’s right of access to judicial proceedings. The public has an interest in knowing the names of the litigants, see Coe v. Cnty. of Cook, 162 F.3d 491, 498 (7th Cir.1998), and disclosing the parties’ identities furthers openness of judicial proceedings, see Jacobson, 6 F.3d at 238. It is unsurprising, then, that many of our sister circuits have adopted an approach for pseudonymity requests that balances a litigant’s stated need for anonymity against the public’s countervailing interests in full disclosure and openness. See, e.g., Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 189 (2d Cir.2008) (holding that “the plaintiffs interest in anonymity must be balanced against both the public interest in disclosure and any prejudice to the defendant”); Doe v. Porter, 370 F.3d 558, 560 (6th Cir.2004) (framing pseudonym issue by asking “whether a plaintiffs privacy interests substantially outweigh the presumption of open judicial proceedings”); Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.3d 678, 685 (11th Cir.2001) (explaining that the “ultimate test for permitting a plaintiff to proceed anonymously is whether the plaintiff has a substantial privacy right which outweighs the customary and constitutionally-embedded presumption of openness in judicial proceedings”); Does I Thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1068 (9th Cir.2000) (holding that “a party may preserve his or her anonymity in judicial proceedings in special circumstances when the party’s need for anonymity outweighs prejudice to the opposing party and the public’s interest in knowing the party’s identity”); M.M. v. Zavaras, 139 F.3d 798, 803 (10th Cir.1998) (adopting a test that “weigh[s] the plaintiffs claimed right to privacy against the countervailing public interest in [open proceedings]”). We agree that the public’s interest in open proceedings must inform a district court’s pseudonymity calculus. We therefore hold that, when a party" }, { "docid": "19022609", "title": "", "text": "who publicly accuse defendants in civil suits “must [sue] under their real names.”); Doe v. Hallock, 119 F.R.D. 640, 644 (S.D.Miss.1987) (“[B]y filing her complaint, the plaintiff has levelled serious charges against the defendants, and has specifically identified them in the complaint.”). Finally, the public has a right of access to the courts. Indeed, “lawsuits are public events and the public has a legitimate interest in knowing the facts involved in them. Among those facts is the identity of the parties.” Doe v. Deschamps, 64 F.R.D. 652, 653 (D.Mont.1974); accord Doe v. Rostker, 89 F.R.D. 158, 162 (N.D.Cal.1981); see also United States v. Amodeo, 71 F.3d 1044, 1047-49 (2d Cir.1995) (discussing the “presumption of access” in the context of the sealing of documents filed in court). Other courts faced with a request by a victim of a sexual assault seeking to prosecute a civil case under a pseudonym have also concluded that the plaintiff was not entitled to do so. See, e.g., Bell Atlantic, 162 F.R.D. at 422 (in sexual harassment case against employer and supervisor, plaintiff who was concerned that she might have been infected with the HIV virus as result of an alleged sexual assault by her supervisor was not permitted to proceed under a pseudonym, notwithstanding fears of “intense embarrassment and shame within her community”); University of Rhode Island, 1998 WL 667341, at *3 (student who was sexually assaulted allegedly as result of university’s negligence not permitted to proceed under pseudonym, despite claims of danger of personal embarrassment and ridicule). See also Hallock, 119 F.R.D. at 641-42 (in Title VII action, plaintiff who alleged sexual harassment and also asserted state law claims of assault and battery was not permitted to proceed under a pseudonym). Plaintiff argues that Shakur’s notoriety will likely cause this case to attract significant media attention, and she contends that disclosure of her name will cause her to be “publicly humiliated and embarrassed.” Such claims of public humiliation and embarrassment, however, are not sufficient grounds for allowing a plaintiff in a civil suit to proceed anonymously, as the cases cited above demonstrate. Moreover, plaintiff" }, { "docid": "19022605", "title": "", "text": "hold that plaintiff could prosecute the entire lawsuit under a pseudonym. Nor do I believe that Judge Sprizzo, sitting as Part I judge on the basis of an ex parte application, intended to foreclose defendants from being heard on the issue. Rule 10(a) of the Federal Rules of Civil Procedure provides that a complaint shall state the names of all the parties. The intention of this rule is to apprise parties of who their opponents are and to protect the public’s legitimate interest in knowing the facts at issue in court proceedings. Free Market Compensation v. Commodity Exchange, Inc., 98 F.R.D. 311, 312 (S.D.N.Y.1983); see also Doe v. United Servs. Life Ins. Co., 123 F.R.D. 437, 439 (S.D.N.Y.1988); Doe v. Deschamps, 64 F.R.D. 652, 653 (D.Mont. 1974). Nevertheless, in some circumstances a party may commence a suit using a fictitious name. It is within a court’s discretion to allow a plaintiff to proceed anonymously. Doe v. Bell Atlantic Business Sys. Servs., Inc., 162 F.R.D. 418, 420 (D.Mass.1995); J.R. v. Farmington Bd. of Ed., Civ. No. 3:95CV00409, 1995 WL 820124, 1995 U.S.Dist. Lexis 5340, at *1-2 (D.Conn. Mar. 20, 1995); Doe v. University of Rhode Island, Civ.A. No. 93-0560B, 1993 WL 667341, at *2 (D.R.I. Dec. 28,1993). In exercising its discretion, a court should consider certain factors in determining whether plaintiffs may proceed anonymously. These factors include (1) whether the plaintiff is challenging governmental activity; (2) whether the plaintiff would be required to disclose information of the utmost intimacy; (3) whether the plaintiff would be compelled to admit his or her intention to engage in illegal conduct, thereby risking criminal prosecution; (4) whether the plaintiff would risk suffering injury if identified; and (5) whether the party defending against a suit brought under a pseudonym would be prejudiced. See James v. Jacobson, 6 F.3d 233, 238 (4th Cir.1993); Doe v. Frank, 951 F.2d 320, 323 (11th Cir.1992); Bell Atlantic, 162 F.R.D. at 420; Rowe v. Burton, 884 F.Supp. 1372, 1386 (D.Alaska 1994); University of Rhode Island, 1993 WL 667341, at *2. In considering these and other factors, a court must engage in" } ]

[ { "docid": "5615261", "title": "", "text": "Circuit, in United States v. Miller, 379 F.2d 483, at 486, “to make easy or less difficult.” We do not believe that the patronizing by interstate gamblers of a gambling establishment fits within the terminology of “promote, manage, establish, carry on, or facilitate the promotion, management, establishment or carrying on of any unlawful activity.” It thus becomes unnecessary for us to determine whether the Florida statute which the government contends these two appellants crossed state lines to violate is itself violated by a person’s participating as a bettor as distinguished from a person acting in a proprietary manner. We conclude that the convictions against Fuller and Nightengale cannot stand because there was insufficient evidence to show that they were other than participators in placing bets at the Williams establishment, and, as such, they could not have been found by the jury to have been guilty of any overt act prohibited by the federal statute. What has been said thus far does not apply to Rewis and Williams. It is not in dispute that these two appellants were the actual proprietors of a numbers game which was frequented by patrons who crossed the Georgia state line to reach their place. Moreover, there is actual evidence of the participation in the gambling taking place at the Williams’ residence by these two particular nonresidents, Fuller and Nightengale. There is no merit in the argument, made on behalf of Rewis and Williams, that because we find Fuller and Nightengale were not members of the conspiracy their conviction as conspirators should be set aside. The jury verdict need not be construed as holding that Fuller and Nightengale did not utilize the facilities of interstate travel to patronize the gambling establishment operated by these appellants. Appellants further contend, however, that neither Rewis nor Williams was shown ever to have crossed any state lines in connection with their undoubted violation of the Florida anti-gambling statute. We must thus, therefore, determine whether their conduct in holding themselves out as a place where interstate travelers could place bets was itself a violation of subsection (3) of Section 1952(a), prohibiting" } ]

[ { "docid": "22807243", "title": "", "text": "he said, “clearly is organized crime.” The statute would not curtail “the sporadic, casual involvement in these offenses, but rather a continuous course of conduct sufficient for it to be termed a business enterprise.” S.Rep.No.644, at 3. See Rewis v. United States, 401 U.S. 808, 811-812 n. 6, 91 S.Ct. 1056, 1059, 28 L. Ed.2d 493 (1971). In his testimony before the House committee, the Attorney General “cited numerous instances of the use of the facilities of interstate commerce by racketeers and hoodlums to promote the illegal enterprises, to distribute the proceeds among the syndicate members of illegal gambling, liquor, narcotics, and prostitution businesses and the use of the facilities for the commission of crimes of violence in furtherance of the unlawful activities.” H.R. Rep.No.966, 2 U.S.Code Cong. & Adm. News, supra at p. 2665. Yet the bill he submitted, if read literally, would cover a $10 payment to fix a traffic ticket if only the person desiring the fix walked across a state line to pay off the policeman. The Senate did nothing to narrow the language to the stated purpose. 107 Cong.Rec. 13942-44 (1961). The House tried to do so by amending what is now § 1952(b)(2) to read “extortion or bribery in connection with such offenses” (emphasis supplied), to wit, gambling, liquor, narcotics or prostitution offenses “in violation of the laws of the State in which they are committed or of the United States.” H.R.Rep.No.966, 2 U. S.Code Cong. & Adm.News, supra at p. 2667. But the Senate, responsive to an objection from the -Department of Justice that the House amendment would eliminate “offenses such as ‘shakedown rackets’, ‘shylocking’ and labor extortion which were traditional sources of income for organized crime,” United States v. Nardello, supra, 393 U.S. at 292, 89 S. Ct. at 537, refused to agree to the change; the House Managers yielded, 107 Cong.Rec. 18814-15 (1961), and the bill was adopted in substantially its present form. It would go beyond the proper exercise of judicial power for courts to confine the Travel Act to its title, see Fraser v. United States, 145 F.2d 189," }, { "docid": "15049357", "title": "", "text": "prohibited in New York and whose possession is allowed only if an antique or assembled in state for out of state sale. See N.Y.Penal Law §§ 225.30 and 225.32. Moreover, the prohibitions contained in N.Y.Penal Law §§ 225.05 and 225.30 are listed in the penal law; violation of these statutes being a Class A misdemeanor punishable by up to one year in prison. New York’s General Municipal law § 185 et seq., while allowing “casino night” fund raising, does so only where all the proceeds go to the benefit and use of charitable causes. Gen.Mun.L. § 189 places strict limits, at low dollar amounts, on the amount of any prize or pot, as well as any individual bet; regulates who may sponsor such events; regulates who may provide the gaming devices; limits to five the number of different games which may be conducted; prohibits any person from being paid for operating or managing any of the games, and makes the unauthorized conduct of any game of chance, even by a charitable organization, punishable as a misdemeanor. Finally, the allegations against the defendants charged under 18 U.S.C. § 1955 portray extensive and on-going high stake gambling enterprises for individual rather than tribal profit. As such, this conduct falls more properly within the “criminal/prohibitory” side of New York law and public policy. See People v. Snyder, 141 Misc.2d 444, 532 N.Y.S.2d 827, 831-32 (Co.Ct.1988), see e.g., United States v. Farris, 624 F.2d 890 (9th Cir.1980) (a gambling enterprise operated by individual Indians which involved blackjack, poker, and dice, gaming violated public policy of State of Washington and thus United States could enforce 18 U.S.C. § 1955 against Indians). Therefore, this court concludes that New York Penal Law §§ 225.05 and 225.30 is an appropriate element of an indictment pursuant to 18 U.S.C. § 1955. Accordingly, having determined 18 U.S.C. § 1955 not preempted by 25 U.S.C. § 2701 et seq. and that the indictments set forth the necessary elements therein, the defendants’ motion to dismiss relative thereto is denied. III. Constitutionality of 15 U.S.C. §§ 1175 and 1176 Defendants contend that 15" }, { "docid": "5916499", "title": "", "text": "1653) would have covered only travel; the use of the telephone was to be proscribed by 18 U.S.C.A. § 1084 (H.R. 7039, S. 1656), which forbids the use of wire communication facilities for the transmission of gambling information in interstate commerce. See Hearings on [H.R. 6572, H.R. 7039] Legislation Relating to Organized Crime Before Subcomm. No. 5 of the House Comm, on the Judiciary, 87th Cong., 1st Sess., ser. 16, at 20, 24-25 (1961); Hearings on [S. 1653, S. 1656] the Attorney General’s Program to Curb Organized Crime and Racketeering Before the Senate Comm, on the Judiciary, 87th Cong., 1st Sess., at 11, 12, 15 (1961). The Senate Judiciary Committee amended the travel bill to add an identical section prohibiting the use of “any facility for transportation in interstate or foreign commerce, including the mail.” See S.Rep.No.644, 87th Cong., 1st Sess. (1961) U.S.Code Cong. & Admin. News p. 2664. In explaining the amendment Senator Eastland remarked on the floor: The committee is of the opinion that the bill should not be limited to the travel of individuals in interstate commerce. Other interstate transportation facilities may be used by organized crime to carry out unlawful activity. The bill therefore has been broadened 107 Cong.Rec. 13943 (Part 10, 1961). The conference committee then combined the two sections into the present form, but extended the scope of the Act in the process. For reasons that are not clear, all references to “transportation” in the Act were omitted, except for that which remains in its title. See H.R.Rep.No.1161, 87th Cong., 1st Sess., 1, 3 (1961). While there is some question whether Congress intended “use of any facility” to apply to anything other than travel or transportation, courts faced with the question have construed § 1952 to apply to interstate telephone calls. See United States v. Archer, 486 F.2d 670, 679 n. 10 (2d Cir.), and cases cited therein. We also construe the language of the Act to cover the interstate use of telephones. Such interpretation does not violate the maxim that penal statutes be strictly construed, we feel, since “[i]t is sufficient if the" }, { "docid": "22137576", "title": "", "text": "which involves gambling, liquor, narcotics, and prostitution offenses or extortions or bribery. Obviously, we are not trying to curtail the sporadic, casual involvement in these offenses, but rather a continuous course of conduct sufficient for it to be termed a business enterprise. * * * ” In the letter quoted in note 7, the Attorney General said: “The type of offenses which pose such a great threat to this country due to the involvement of organized crime are those offenses which are committed regularly and as a continuous course of conduct. The term ‘business enterprise involving’ those offenses was used in the definition of ‘unlawful activity, to connote a continous course of conduct in gambling etc. It was not the intent to include within the reach of the statute legitimate business enterprises which may touch upon offenses such as gambling.” At the House hearings, Herbert J. Miller, Criminal Division of the Department of Justice, testified: “The use of the term ‘business enterprise’ limits the application of this section to a continuous and organized course of conduct in these activities, and therefore, exempts casual or occasional travel which is not directly related to such a ‘business enterprise.’ ” In summarizing the bill on the floor, Senator Eastland stated simply, “The use of the term ‘business enterprise, requires that the activity be a continuous course of conduct.” 107 Cong.Rec. part 10, p. 13943. To the same effect see H.R.Rep.No.966, 2 U.S.Code Cong. & Admin.News, 87th Cong., 1st Sess., 1961, p. 2666. See United States v. Brennan, 394 F.2d 151, 153 (2d Cir. 1968). See also Rewis v. United States, 418 F.2d 1218 (5th Cir. 1969), where the court reversed the convictions of two defendants who did nothing more than cross a state line to place bets but affirmed the convictions of those who operated the gaming establishment. Poker was the game involved in South v. United States, 368 F.2d 202 (5th Cir. 1966), and bingo in Dillon v. United States, 391 F.2d 433 (10th Cir. 1968). Neither is the kind of game traditionally associated with organized crime. . California Penal Code section" }, { "docid": "22795202", "title": "", "text": "400 card rooms similar to the Cabazon card club flourish in California, and the State does not dispute this fact. Brief for Appellees 47-48. Also, as the Court of Appeals noted, bingo is legally sponsored by many different organizations and is widely played in California. There is no effort to forbid the playing of bingo by any member of the public over the age of 18. Indeed, the permitted bingo games must be open to the general public. Nor is there any limit on the number of games which eligible organizations may operate, the receipts which they may obtain from the games, the number of games which a participant may play, or the amount of money which a participant may spend, either per game or in total. In light of the fact that California permits a substantial amount of gambling activity, including bingo, and actually promotes gambling through its state lottery, we must conclude that California regulates rather than prohibits gambling in general and bingo in particular. California argues, however, that high stakes, unregulated bingo, the conduct which attracts organized crime, is a misdemeanor in California and may be prohibited on Indian reservations. But that an otherwise regulatory law is enforceable by criminal as well as civil means does not necessarily convert it into a criminal law within the meaning of Pub. L. 280. Otherwise, the distinction between § 2 and § 4 of that law could easily be avoided and total assimilation permitted. This view, adopted here and by the Fifth Circuit in the Butterworth case, we find persuasive. Accordingly, we conclude that Pub. L. 280 does not authorize California to enforce Cal. Penal Code Ann. §326.5 (West Supp. 1987) within the Cabazon and Morongo Reservations. California and Riverside County also argue that the Organized Crime Control Act (OCCA) authorizes the application of their gambling laws to the tribal bingo enterprises. The OCCA makes certain violations of state and local gambling laws violations of federal law. The Court of Appeals re jected appellants’ argument, relying on its earlier decisions in United States v. Farris, 624 F. 2d 890 (CA9" }, { "docid": "22137573", "title": "", "text": "conducted under the supervision of the Secretary of the Treasury.” 18 U.S.C. § 2314 provides in part: “Whoever transports in interstate commerce any * * * securities or money, of the value of $5,000 or more, knowing the same to have been * * * taken by fraud ; * * * shall be fined not more than $10,000 or imprisoned not more than ten years, or both.” . California Penal Code § 332 provides: “Every person who by the game of ‘three card monte’ so called, or any other game, device, sleight of hand, pretensions to fortune telling, trick or other means whatever, by use of cards or other implements or instruments, or while betting on sides or hands of any such play or game, fraudulently obtains from another person money or property of any description, shall be punished as in case of larceny of property of like value.” . Section 1952 was one of a package of bills referred to collectively in the Senate as the Attorney General’s Program to Curb Organized Crime and Racketeering (Hearings before Committee on Judiciary, U.S. Senate, 87th Cong., 1st Sess., on S. 1653-1658, S. 1665) ; and in the House as Legislation Relating to Organized Crime (Hearings before Committee on Judiciary of H. of Rep., 87th Cong., 1st Sess., on H.R. 468, H.R. 3021-3023, H.R. 3246, H.R. 5630, H.R. 6571-6572, H.R. 6909, H.R. 7039). The records of both hearings contain repeated assertions that all of the bills, including S. 1952, were aimed at organized crime. . When Congress wished to further restrict the categories of offenses covered by the statute it did so by express language. Thus the statute originally referred to liquor offenses generally as it now does to gambling, narcotics, and prostitution offenses ; but because this was considered too broad, language was added expressly limiting the category of liquor offenses to offenses relating to liquor “on which the Federal excise tax has not been paid.” S.Rep.No.644, 87th Cong., 1st Sess., pp. 1-2. Even this language described a general field of illicit activity and did not attempt to enumerate specific" }, { "docid": "22137575", "title": "", "text": "offenses within that field. . Appellants rely heavily upon a letter written by Attorney General Robert F. Kennedy to Representative Owen Harris, which states, “During the formulation of the proposal we were aware that to prohibit travel in furtherance of any unlawful activity would be a very broad and vague proscription which might not reach the type of activity in which we were interested. The term ‘unlawful activity’ was therefore defined to limit its application to those crimes which historically have been the forte of organized crime.\" (Emphasis added.) The Attorney General however, immediately identified the crimes he had in mind in the same general terms employed in the statute, stating, “Those crimes include gambling, liquor, narcotics, and prostitution offenses and extortion or bribery.” 107 Cong.Rec. part 12, p. 16542. . See, e. g., Senate Hearings at 67, 282 House Hearings at 24, 26. The Attorney General is quoted in S.Rep.No.644, page 3, as stating: “The target clearly is organized crime. The travel that would be banned is travel ‘in furtherance of a business enterprise’ which involves gambling, liquor, narcotics, and prostitution offenses or extortions or bribery. Obviously, we are not trying to curtail the sporadic, casual involvement in these offenses, but rather a continuous course of conduct sufficient for it to be termed a business enterprise. * * * ” In the letter quoted in note 7, the Attorney General said: “The type of offenses which pose such a great threat to this country due to the involvement of organized crime are those offenses which are committed regularly and as a continuous course of conduct. The term ‘business enterprise involving’ those offenses was used in the definition of ‘unlawful activity, to connote a continous course of conduct in gambling etc. It was not the intent to include within the reach of the statute legitimate business enterprises which may touch upon offenses such as gambling.” At the House hearings, Herbert J. Miller, Criminal Division of the Department of Justice, testified: “The use of the term ‘business enterprise’ limits the application of this section to a continuous and organized course of" }, { "docid": "15049355", "title": "", "text": "In Cabazon the Court held that the State of California could not prosecute Indians for the operation of tribal sponsored bingo and card gaming on Indian reservations because California’s laws with respect to gambling were civil/regulatory in nature. In making the determination, that California regulates rather than prohibits gambling, the Court noted that the state operated a lottery, permitted horse-race betting, and allowed bingo and other card games to be played widely. Id. at 1089. The defendants assert that New York Penal Law § 225.05 and 225.30 is civil/regulatory in nature and therefore cannot be used as an element of the federal crime. The Supreme Court in Cabazon expressly declined to decide whether State laws which are incorporated as an element of a federal crime are subject to the same civil/regulatory—criminal/prohibitory analysis. 107 S.Ct. at 1091. The Ninth Circuit has held that such an analysis applies to 18 U.S.C. § 1955, Cabazon Band v. County of Riverside, 783 F.2d 900, 903 (9th Cir.1986) aff'd on other grounds 480 U.S. 202, 107 S.Ct. 1083, 94 L.Ed.2d 244 (1987), while the Sixth Circuit has rejected this view. See United States v. Dakota, 796 F.2d 186, 188-89 (6th Cir.1986). The analysis presented by the Sixth Circuit appears to be more compelling. However, assuming arguendo that the civil/regulatory — criminal/prohibitory analysis applies, this court still holds that the violations of New York Law alleged in the indictment present conduct which is criminal in nature. It is true, as defendants assert, that New York permits horse-race betting, sponsors a lottery, permits bingo, and allows certain organizations to operate “casino nights” as part of their fund raising activities. Defendants argue that the since New York permits the use of games of chance in this manner, it only regulates gambling as opposed to criminally prohibiting such activities. However, New York Law as well as New York public policy strongly discourages the type of commercialized gambling activity for individual profit which is alleged in the indictment. The gaming activity is alleged to have involved the use and possession of slot machines — a device whose use is flatly" }, { "docid": "22191139", "title": "", "text": "the corporation must only be qualified to he licensed. See also Berman v. Riverside Casino Corporation, 354 F.2d 43 (9 Cir. 1965). . See footnote 13, supra. . “The violation of any of the provisions of this chapter, the penalty for which is not herein specifically fixed, shall be deemed a gross misdemeanor, and shall be punished by a fine of not less than $1,000, or by imprisonment in the county jail for not less than 6 months, or by both fine and imprisonment.” . The Chairman of the Nevada Gaming Commission during the time in question testified that under the law then in effect, “any violation” of that law by individuals would mean that those individuals were guilty of gross misdemeanors where no specific penalty was provided. Reporter’s Transcript, Vol. 15, pp. 3028-3029. Indeed, other than conducting a casino without a license, which is exceedingly unlikely, it is difficult to imagine what N.R.S. § 463.360 (2) would cover if it did not cover conduct such as that proved in this case. . Once a violation of a state criminal statute has been proved it is irrelevant whether that violation is classified as a felony or misdemeanor. United States v. Karigiannis, 430 F.2d 148, 150 (7 Cir. 1970) (Clark, J.), cert. denied, 400 U.S. 904, 91 S.Ct. 143, 27 L.Ed.2d 141 (1970). . Appellants rely heavily upon the statements of Assistant Attorney General Herbert J. Miller, Jr., of the Justice Department’s Criminal Division that: “[The Travel Act] bans unlawful businesses —not incidental illegal acts done in the course of lawful businesses.” (“Legislation Relating to Organized Crime,” Hearings on H.R. 468 et al., Before Subcommittee No. 5 of the House Committee on the Judiciary, 87th Cong., 1st Sess., p. 336 (1961).) “Under this bill we would have to show a business enterprise which was unlawful under the laws of the State * * (“The Attorney General’s Program to Curb Organized Crime and Racketeering,” Hearings on S. 1653 et al., Before the Senate Committee on the Judiciary, 87th Congress, 1st Sess., p. 260 (1961).) In a law review article, the Assistant Attorney" }, { "docid": "22137578", "title": "", "text": "330 prohibits the playing for money of certain listed card games, “or any banking or percentage game played with cards, dice, or any device.” Gin rummy is not among the games listed, and does not fall within the quoted description. . In Turf Center, Inc. v. United States, 325 F.2d 793, 795 (9th Cir. 1963), we held that “offenses” applies to “gambling” as well as to the other three types of conduct specified in section 1952. That “gambling * * * offenses” is a broader term than “gambling,” see United States v. Bergland, 318 F.2d 159, 161 (7th Cir. 1983). . No documentation is necessary as to the first three fields of activity. As to the fourth, see Nev.Rev.Stats. 201.300-.440, which regulate but do not prohibit prostitution. Raymond v. United States, 376 F.2d 581 (9th Cir. 1967). . Appellants call attention to occasional references to “illegal gambling” in the legislative proceedings. In context these references do not appear to us to be significant. . Senate Hearings at 113. See also 107 Cong.Rec. part 10, p. 13943. . The text of the prior statute is printed as an historical note following CaLPenal Code § 332 in West’s Annotated California Codes. . 107 Cong.Rev. parts 12, 14, pp. 16541-16542, 18815; House Hearings, pp. 335, 336, 339. The following excerpts from the House Hearings are illustrative: “[339] Mr. FOLEY [committee counsel]. At that point, may I interrupt you to clarify this. “Would you say that as a condition precedent, for any violation of this statute, the individual concerned must be engaged in a business enterprise which is illegal in these four categories that you are talking about? “Mr. MILLER [Assistant Attorney General, Department of Justice], Absolutely. “Mr. FOLEY. In other words, it cannot be a legitimate business with an incidental violation resulting from the interstate travel? “He must first be engaged in the unlawful activity, as a business man? “Mr. MILLER. That is exactly the concept we tried to embody in this bill, Mr. Foley. That is why I go back to the definition of business enterprise, in order to — ” *" }, { "docid": "22137577", "title": "", "text": "conduct in these activities, and therefore, exempts casual or occasional travel which is not directly related to such a ‘business enterprise.’ ” In summarizing the bill on the floor, Senator Eastland stated simply, “The use of the term ‘business enterprise, requires that the activity be a continuous course of conduct.” 107 Cong.Rec. part 10, p. 13943. To the same effect see H.R.Rep.No.966, 2 U.S.Code Cong. & Admin.News, 87th Cong., 1st Sess., 1961, p. 2666. See United States v. Brennan, 394 F.2d 151, 153 (2d Cir. 1968). See also Rewis v. United States, 418 F.2d 1218 (5th Cir. 1969), where the court reversed the convictions of two defendants who did nothing more than cross a state line to place bets but affirmed the convictions of those who operated the gaming establishment. Poker was the game involved in South v. United States, 368 F.2d 202 (5th Cir. 1966), and bingo in Dillon v. United States, 391 F.2d 433 (10th Cir. 1968). Neither is the kind of game traditionally associated with organized crime. . California Penal Code section 330 prohibits the playing for money of certain listed card games, “or any banking or percentage game played with cards, dice, or any device.” Gin rummy is not among the games listed, and does not fall within the quoted description. . In Turf Center, Inc. v. United States, 325 F.2d 793, 795 (9th Cir. 1963), we held that “offenses” applies to “gambling” as well as to the other three types of conduct specified in section 1952. That “gambling * * * offenses” is a broader term than “gambling,” see United States v. Bergland, 318 F.2d 159, 161 (7th Cir. 1983). . No documentation is necessary as to the first three fields of activity. As to the fourth, see Nev.Rev.Stats. 201.300-.440, which regulate but do not prohibit prostitution. Raymond v. United States, 376 F.2d 581 (9th Cir. 1967). . Appellants call attention to occasional references to “illegal gambling” in the legislative proceedings. In context these references do not appear to us to be significant. . Senate Hearings at 113. See also 107 Cong.Rec. part 10, p." }, { "docid": "22191140", "title": "", "text": "violation of a state criminal statute has been proved it is irrelevant whether that violation is classified as a felony or misdemeanor. United States v. Karigiannis, 430 F.2d 148, 150 (7 Cir. 1970) (Clark, J.), cert. denied, 400 U.S. 904, 91 S.Ct. 143, 27 L.Ed.2d 141 (1970). . Appellants rely heavily upon the statements of Assistant Attorney General Herbert J. Miller, Jr., of the Justice Department’s Criminal Division that: “[The Travel Act] bans unlawful businesses —not incidental illegal acts done in the course of lawful businesses.” (“Legislation Relating to Organized Crime,” Hearings on H.R. 468 et al., Before Subcommittee No. 5 of the House Committee on the Judiciary, 87th Cong., 1st Sess., p. 336 (1961).) “Under this bill we would have to show a business enterprise which was unlawful under the laws of the State * * (“The Attorney General’s Program to Curb Organized Crime and Racketeering,” Hearings on S. 1653 et al., Before the Senate Committee on the Judiciary, 87th Congress, 1st Sess., p. 260 (1961).) In a law review article, the Assistant Attorney General explained the impact of the statutory intention thusly: “[T]o turn a gambling * * * scheme into .an ‘unlawful activity’ within the meaning of the ‘Travel Act’ * * * the ‘business enterprise’ must involve illegal conduct. A program to establish a gambling casino in Las Vegas, Nevada, would not amount to ‘unlawful activity.’ ” (Miller, The “Travel Act”: A New Statutory Approach to Organized Crime in the United States, 1 Duquesne L.Rev. 181, 194 (1963) (emphasis in original).) . This history is outlined in some detail in United States v. Roselli, 432 F.2d 879, 884-888 (9 Cir. 1970). . Membership in an organized criminal group is not, of course, an element of an offense under § 1952. United States v. Roselli, 432 F.2d 879, 885 (9 Cir. 1970), cert. denied, 401 U.S. 924, 91 S.Ct. 883, 27 L.Ed.2d 828 (1971), rehearing denied, 402 U.S. 924, 91 S.Ct. 1366, 28 L.Ed.2d 665 (1971). It rests with the courts to determine the reach of § 1952 in a case-by-case manner. . See pages 869-873 supra." }, { "docid": "22137517", "title": "", "text": "BROWNING, Circuit Judge: Appellants participated in an organized scheme to cheat for profit in card games played at the Friars Club, a private social club in Beverly Hills, California. Victims were induced to join high stake gin rummy games. Observers stationed at ceiling peekholes transmitted playing instructions to confederates in the game via electronic signaling devices. The activity continued from the summer of 1962 to the summer of 1966. Games were “peeked” almost daily during a portion of this period. Appellants and other participants in the scheme made large profits. George Seach, an unindicted coconspirator who acted as “peekman” from late June 1962 to early April 1963, estimated the “take” during this period at $400,000. After a long and complex trial appellants were convicted of conspiracy to violate 18 U.S.C. § 1952 (interstate travel and use of interstate facilities in aid of racketeering enterprises) and § 2314 (interstate transportation of fraudulently taken securities), and substantive violations of these sections and of 26 U.S. C. § 7206 (false statements in income tax returns). I Appellants’ threshold contention that their conduct did not come within the terms of 18 U.S.C. § 1952, raises two issues regarding'the meaning of the statute. Section 1952 condemns interstate travel or the use of interstate facilities in furtherance of “any unlawful activity,” defined as including “any business enterprise involving gambling, liquor on which the federal excise tax has not been paid, narcotics, or prostitution offenses in violation of the laws of the State in which they are committed or of the United States.” The Government’s theory is that appellants’ conduct was a “business enterprise” within the meaning of the statute because it was a continuous course of conduct pursued for profit; and that it involved “gambling * * * offenses” in violation of California Penal Code section 332 Appellants’ first argument is that section 1952 was intended to reach only forms of gambling that were within the province of organized crime at the time the statute was enacted, numbers, bookmaking, and dice, for example; and that gin rummy does not fall in this category. It is true" }, { "docid": "22137572", "title": "", "text": "commerce or uses any facility in interstate or foreign commerce, including the mail, with intent to— “(1) distribute the proceeds of any unlawful activity; or “(2) commit any crime of violence to further any unlawful activity; or “(3) otherwise promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on, of any unlawful activity, and thereafter performs or attempts to perform any of the acts specified in sub-paragraphs (1), (2), and (3), shall be fined not more than $10,000 or imprisoned for not more than five years, or both. “(b) As used in this section ‘unlawful activity’ means (1) any business enterprise involving gambling, liquor on which the Federal excise tax has not been paid, narcotics, or prostitution offenses in violation of the laws of the State in which they are committed or of the United States, or (2) extortion, bribery, or arson in violation of the laws of the State in which committed or of the United States. “(c) Investigations of violations under this section involving liquor or narcotics shall be conducted under the supervision of the Secretary of the Treasury.” 18 U.S.C. § 2314 provides in part: “Whoever transports in interstate commerce any * * * securities or money, of the value of $5,000 or more, knowing the same to have been * * * taken by fraud ; * * * shall be fined not more than $10,000 or imprisoned not more than ten years, or both.” . California Penal Code § 332 provides: “Every person who by the game of ‘three card monte’ so called, or any other game, device, sleight of hand, pretensions to fortune telling, trick or other means whatever, by use of cards or other implements or instruments, or while betting on sides or hands of any such play or game, fraudulently obtains from another person money or property of any description, shall be punished as in case of larceny of property of like value.” . Section 1952 was one of a package of bills referred to collectively in the Senate as the Attorney General’s Program to Curb Organized Crime" }, { "docid": "22807242", "title": "", "text": "adopted with remarkable speed and little discussion, was a bill forwarded to Congress by Attorney General Kennedy on April 6, 1961. His letter of transmittal urged that: Because many rackets are conducted by highly organized syndicates whose influence extends over State and National borders, the Federal Government should come to the aid of local law enforcement authorities in an effort to stem such activity. 87th Cong. 1st Sess., S.Rep.No.644 at p. 4; H.R.Rep.No.966, reprinted in 2 U.S. Code Cong. & Adm.News pp. 2664, 2666 (1961). He told the Senate Judiciary Committee that the Act was necessary to aid local law enforcement officials in many instances where “the ‘top men’ of a given criminal operation resided in one State but conducted their illegal activities in another.” Hearings on S. 1653-1658, S.1665 before the Senate Judiciary Committee on the Attorney General’s Program to Crush Organized Crime and Racketeering, 87th Cong. 1st Sess. (1961) at 15-17 quoted in United States v. Nardello, 393 U.S. 286, 290-291, 89 S.Ct. 534, 21 L.Ed.2d 487 (1969). The target of the Act, he said, “clearly is organized crime.” The statute would not curtail “the sporadic, casual involvement in these offenses, but rather a continuous course of conduct sufficient for it to be termed a business enterprise.” S.Rep.No.644, at 3. See Rewis v. United States, 401 U.S. 808, 811-812 n. 6, 91 S.Ct. 1056, 1059, 28 L. Ed.2d 493 (1971). In his testimony before the House committee, the Attorney General “cited numerous instances of the use of the facilities of interstate commerce by racketeers and hoodlums to promote the illegal enterprises, to distribute the proceeds among the syndicate members of illegal gambling, liquor, narcotics, and prostitution businesses and the use of the facilities for the commission of crimes of violence in furtherance of the unlawful activities.” H.R. Rep.No.966, 2 U.S.Code Cong. & Adm. News, supra at p. 2665. Yet the bill he submitted, if read literally, would cover a $10 payment to fix a traffic ticket if only the person desiring the fix walked across a state line to pay off the policeman. The Senate did nothing to" }, { "docid": "23142488", "title": "", "text": "1083, 94 L.Ed.2d 244 (1987), on the final form of IGRA S.Rep. No. 446,100th Cong., 2d Sess. 4 (1988), reprinted in 1988 U.S.C.C.AN. 3071, 3073-74; see also Cheyenne River Sioux Tribe v. State of South Dakota, 3 F.3d 273, 275 (8th Cir.1993). In Cabazon, the Supreme Court had concluded that California could not apply its own laws regulating bingo prize limits and card games to Indian gaming because the relevant interests of the tribes and the federal government outweighed the state’s regulatory interest. 480 U.S. 202, 107 S.Ct. 1083, 94 L.Ed.2d 244. Indian sovereignty, self-sufficiency, and self-government were the “important federal interests” discussed. Id. at 216-20, 107 S.Ct. at 1091-94 . The state’s major interest was discouraging organized crime. After balancing these interests, the Court reasoned that “State regulation would imper-missibly infringe on tribal government.” Id. at 215, 222, 107 S.Ct. at 1091, 1095. IGRA incorporated Cabazon’s distinction between prohibition and regulation, see United States v. Sisseton-Wahpeton Sioux Tribe, 897 F.2d 358 (8th Cir.1990), but rather than directing the federal courts to perform the balancing of interests between the state on the one side and the tribe and federal government on the other, Congress conducted the balancing itself. S.Rep. No. 446, 100th Cong., 2d Sess. 6 (1988), reprinted in 1988 U.S.C.C.AN. 3071, 3076. It divided gaming into three separate classes, allowed states to prohibit class II and class III gaming if those activities were prohibited throughout a state, and required a tribal-state compact for class III gaming. The legislative history reveals the intent of Congress in setting up this tripartite scheme and in considering state, tribal, and federal interests: [I]n the final analysis, it is the responsibility of the Congress, consistent with its plenary power over Indian affairs, to balance competing policy interests and to adjust, where appropriate, the jurisdictional framework for regulation of gaming on Indian lands. S. 555 recognizes primary tribal jurisdiction over bingo and card parlor operations although oversight and certain other powers are vested in a federally established National Indian Gaming Commission. For class III casino, parimutuel and slot machine gaming, the bill authorizes tribal governments" }, { "docid": "22818719", "title": "", "text": "many unlawful enterprises which make up organized crime today.” House Hearings 20. See also H. R. Rep. No. 966, 87th Cong., 1st Sess., 3 (1961) (§ 1952); H. R. Rep. No. 968, 87th Cong., 1st Sess., 2 (1961) (§ 1953). Only common carriers acting in the usual course of their business, plus those materials specified in § 1953 (b), see n. 8, supra, are excluded from the statute’s prohibition. See also 18 U. S. C. § 1084. Representative Celler, who introduced the statute in the House, described its purposes as follows: “The primary purpose is to prevent the transportation in interstate commerce of wagering material. The purpose actually is to cutoff and shutoff gambling supplies, in reality to prevent these lotteries and kindred illegal diversions.” 107 Cong. Rec. 16537. See also S. Rep. No. 589, 87th Cong., 1st Sess., 2 (1961); H. R. Rep. No. 968, 87th Cong., 1st Sess., 2 (1961). “As used in this section ‘unlawful activity’ means (1) any business enterprise involving gambling, liquor on which the Federal excise tax has not been paid, narcotics, or controlled substances . . . or prostitution offenses in violation of the laws of the State in which they are committed or of the United States, or (2) extortion, bribery, or arson in violation of the laws of the State in which committed or of the United States.” “This bill will assist local law enforcement by denying interstate facilities to individuals engaged in illegal gambling, liquor, narcotics or prostitution business enterprises.” H. R. Rep. No. 966, 87th Cong., 1st Sess., 3 (1961). See also 107 Cong. Rec. 13943 (remarks of Sen. Eastland). In Rewis v. United States, 401 U. S. 808, 811 (1971), we observed that “§ 1962 was aimed primarily at organized crime and, more specifically, at persons who reside in one State while operating or managing illegal activities located in another.” We, of course, adhere to this view of the statute for “Congress would certainly recognize that an expansive Travel Act would alter sensitive federal-state relationships, could overextend limited federal police resources, and might well produce situations in which" }, { "docid": "7790618", "title": "", "text": "establishment where the gambling machine is located or by his agent. The committee bill broadens the definition of the term “gambling device” in the Johnson Act so as to include such pinball machines and any other mechanical devices which are designed and manufactured primarily for use in connection with gambling and which when operated may deliver as a result of the application of an element of chance any money or property, either directly or indirectly. Pinball and other machines, intended for amusement only, which award a limited number of free plays that are not convertible to money or other things of value, are not covered by this legislation. H.R.Rep. No. 1828, 87th Cong., 2d Sess., reprinted in [1962] U.S.Code Cong. & Ad. News 3809, 3811. From this recitation of legislative history, it is clear that the defendant draw poker-type machines, although technically more advanced, differ little in purpose and design from the machines that Congress sought to prohibit through the Gambling Devices Act of 1962. Indeed, these new machines have many of the same features described in the House Report over twenty years ago. These features include: (1) the option of paying from one to eight quarters for a single play, (2) the potential for winning an inordinate number of free games (e.g., up to 400 on a single play), (3) the ability to “knock off” or eliminate accumulated free games from a machine, and (4) devices for measuring the number of free games eliminated from the machine. See Affidavit of William L. Holmes (Dec. 27, 1983). In United States v. Two Coin-Operated Pinball Machine, 241 F.Supp. 57 (W.D.Ky. 1965), aff'd sub nom. United States v. M. Branson Distributing Co., 398 F.2d 929 (6th Cir.1968), the district court concluded that two machines with features similar to those in the present case were gambling devices within the meaning of 15 U.S.C. § 1171(a) and subject to forfeiture under 15 U.S.C. § 1177. The district court made the following pertinent findings of fact: 3. The great number of free games which can be achieved by players, the provision for multiple coin insertion" }, { "docid": "21546476", "title": "", "text": "the business enterprise of distributing cocaine,” in violation of 18 U.S.C. § 1952 (1988) and 18 U.S.C. § 2 (1982). At the close of the government’s case, Fox unsuccessfully moved for judgment of acquittal as to Count Six, arguing as he does here, that the government failed to establish the existence of a business enterprise within the meaning of the Travel Act. The Travel Act defines unlawful activity to include “any business enterprise involving ... narcotics or controlled substances.” 18 U.S.C. § 1952(b)(1). In Kendall, we held that the term “business enterprise” means a continuing course of conduct, rather than sporadic casual involvement in a proscribed activity. 766 F.2d at 1434 (citing Rewis v. United States, 401 U.S. 808, 811 n. 6, 91 S.Ct. 1056, 1059 n. 6, 28 L.Ed.2d 493 (1971)); see also United States v. Peveto, 881 F.2d 844, 861 (10th Cir.), cert. denied, — U.S. -, 110 S.Ct. 348, 107 L.Ed.2d 336 (1989). The legislative history of section 1952 makes clear that individual or isolated drug transactions in interstate commerce cannot be the predicate to a Travel Act violation. See Senate Comm, on the Judiciary, Racketeering Enterprises — Travel or Transportation, H.R.Rep. No. 966, 87th Cong., 1st Sess. 3, reprinted in 1961 U.S.Code Cong. & Admin.News 2664, 2666 (“individual or isolated violations would not come within the scope of this bill since they do not constitute a continuous course of conduct so as to be a business enterprise.”). We have already reviewed in detail the government’s evidence against Fox in connection with his conspiracy conviction. There was evidence that Fox regularly met with Moresco to carry on drug transactions; that Fox and Moresco traveled from Colorado to Las Vegas on several occasions, including December 1, 1987, to meet with and purchase quantities of cocaine from their supplier, Steve Boubon; and that Moresco and Fox pooled their money to purchase large quantities of cocaine at a favorable price for eventual distribution in Colorado. We believe that the record supports an inference that Fox and Moresco were engaged in a continuing business enterprise of purchasing and reselling cocaine for" }, { "docid": "2837106", "title": "", "text": "is not malicious. Conclusion The judgment of the district court is affirmed. . The IGRA was enacted by Pub.L. No. 100-497, 102 Stat. 2467 (1988), and is codified at 25 U.S.C. §§ 2701-2721 (1988) and 18 U.S.C. §§ 1166-1168 (1988). . \"The distinction is between those games where players play against each other rather than the house [ (nonbanking card games, e.g., poker) ] and those games where players play against the house and the house acts as banker [ (banking card games, e.g., blackjack) ].” S.Rep. No. 446, 100th Cong., 2nd Sess. 9, reprinted in 1988 U.S. Code Cong. & Admin.News 3071, 3079 (\"Senate Report”). . Class II gaming may be conducted, however, only \"within a State that permits such gaming for any purpose by any person, organization or entity,” § 2710(b)(1)(A), and \"[a] tribal ordinance or resolution may provide for the licensing or regulation of class II gaming activities owned by any person or entity other than the Indian tribe and conducted on Indian lands, only if the tribal licensing requirements ... are at least as restrictive as [applicable] State law governing similar gaming,” § 2710(b)(4)(A). In addition, nonbanking card games permitted as Class II gaming must be \"played in conformity with those laws and regulations (if any) of the State regarding hours or periods of operation of such card games or limitations on wagers or pot sizes in such card games.\" § 2703(7)(A)(ii). . The first chairman of the NIGC was confirmed by the United States Senate on May 26, 1990. . The games of chance that Connecticut permits at the \"Las Vegas nights\" include blackjack, poker, dice, money-wheels, roulette, baccarat, chuck-a-luck, pan game, over and under, horse race games, acey-ducey, beat the dealer, and bouncing ball. See Division of Special Revenue, Administrative Regulations: Operation and Conduct of Games of Chance § 7-186k-15 (1988). . We agree with the district court that, contrary to the State’s contention, no significance should be accorded to the modest difference between the introductory language of section 2710(b)(1) (\"An Indian tribe may engage in, or license and regulate, class II gaming on" } ]

[ { "docid": "18912694", "title": "", "text": "is a “final decision” creating appellate jurisdiction under 28 U.S.C. § 1291. 442 U.S. at 506, 99 S.Ct. at 2448. Nevertheless, the government suggests that the Speech or Debate Clause defense asserted in this case is frivolous, and therefore contends that despite Helstoski no pretrial appeal is available. There apparently is no precedential authority for the proposition that Helstoski does not apply to a frivolous Speech or Debate Clause defense. As such, the government relies on analogy to a line of cases beginning with United States v. Dunbar, 611 F.2d 985 (5th Cir.), cert. denied, 447 U.S. 926, 100 S.Ct. 3022, 65 L.Ed.2d 1120 (1980), concerning pretrial appeals of denials of “frivolous” double jeopardy motions made pursuant to the rule of Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). Under the Dunbar rule, an appeal of a denial of a double jeopardy motion does not divest the District Court from jurisdiction to proceed with the trial of the case where the District Court makes a written finding that the appeal is frivolous. 611 F.2d at 989. Defendant aptly points out a significant problem with this analogy. Unlike Speech or Debate claims, which only may be raised in prosecutions having some relation to Congress’ legislative functions, double jeopardy arguments conceivably can be raised in any type of case where circumstances warrant. The likelihood of abuse of the appeal right through the assertion of frivolous claims is much greater in the Abney context. See United States v. Brizendine, 659 F.2d 215, 225-26 (D.C.Cir.1981) (noting suspected abuse of double jeopardy claims in the Ninth Circuit). Accordingly, this Court is not persuaded that the Dunbar rule should apply to the denial of a motion to dismiss based on Speech or Debate Clause arguments. The lack of precedent regarding frivolous pretrial appeals on Speech or Debate grounds and this Court’s view of what the rule should be do not, of course, preclude this Court from entering written findings, if appropriate, as to whether the appeal is frivolous. Yet although the Court finds defendant’s arguments on this issue unpersuasive and" } ]

[ { "docid": "23274287", "title": "", "text": "286 (1982); United States v. Grabinski, 674 F.2d 677, 679 (8th Cir.) (in banc), cert. denied, 459 U.S. 829, 103 S.Ct. 67, 74 L.Ed.2d 67 (1982); United States v. Land, 669 F.2d 391, 394 (6th Cir.), cert. denied, 457 U.S. 1134, 102 S.Ct. 2960, 73 L.Ed.2d 1350 (1982); United States v. Leppo, 634 F.2d 101, 105 (3d Cir.1980); and United States v. Dunbar, 611 F.2d 985, 987-88 (5th Cir.) (in banc), cert. denied, 447 U.S. 926, 100 S.Ct. 3022, 65 L.Ed.2d 1120 (1980). Pérsico and Langella contend, however, that their double jeopardy appeal in Langella was not frivolous, as this court in effect certified by issuing a formal opinion of affirmance, so these cases have no application here. We disagree. Clearly, in all these cases, (1) no mandate had issued “restoring” jurisdiction to the district court, since trial was allowed to proceed simultaneously with the pendency of the interlocutory appeal, and (2) the trial was allowed to proceed because of the high likelihood, in view of the meritless nature of the appeal, that the district court’s ruling on double jeopardy would be affirmed. Here, however, that likelihood hardened into a certitude when this court issued its order on September 8, 1986 affirming the district court’s denial of Pérsico and Langella’s double jeopardy motion. Furthermore, the applicable “divestiture of jurisdiction rule is not based upon statutory provisions or the rules of civil or criminal procedure. Instead, it is a judge made rule originally devised in the context of civil appeals to avoid confusion or waste of time resulting from having the same issues before two courts at the same time.” United States v. Claiborne, 727 F.2d 842, 850 (9th Cir.), cert. denied, 469 U.S. 829, 105 S.Ct. 113, 83 L.Ed.2d 56 (1984); see United States v. Leppo, 634 F.2d at 104. On the admittedly unusual facts here presented, we conclude that the district court had jurisdiction to proceed with the trial of Pérsico and Langella on September 8, 1986. As to the claimed conflict with Rivera, we note that of the nine circuits cited above which allow concurrent jurisdiction in district" }, { "docid": "8915990", "title": "", "text": "reversals and would go well beyond the “forced motion for mistrial” rationale of the decisions applying the double jeopardy bar to retrials necessitated by prosecutorial misconduct. See United States v. Kessler, 530 F.2d 1246, 1258 (5th Cir. 1976); United States v. Barham, 608 F.2d 602, 604 (5th Cir. 1979), cert. denied, 450 U.S. 1002, 101 S.Ct. 1711, 68 L.Ed.2d 205 (1981). Had this Court on the prior appeal felt that the prosecutor’s misconduct was so egregious as to bar a retrial, it could have ordered the charges dismissed. See 28 U.S.C. § 2106 (1976). It not only failed to do so, but indeed affirmatively stated that its reversal and remand was “for a new trial.” 636 F.2d at 121. And this was the precise relief Passmore had requested on the prior appeal. We note these matters simply as being corroborative of our independently arrived at conclusion that the district court’s findings, that the prosecutor was guilty of no intentional or grossly negligent misconduct, are not clearly erroneous. Passmore’s other claims of prosecutorial misconduct sufficient to bar retrial we find totally without merit. The district court’s findings, quoted above, are not clearly erroneous. To the contrary, they are fully supported by the record and we find no reason to disapprove them or reach a contrary determination. The prosecutorial misconduct present at the first trial does not rise to the level required to prevent retrial on double jeopardy grounds. See United States v. Garza, supra; United States v. Crouch, supra; United States v. Charette, supra; United States v. Opager, supra; United States v. Fine, 644 F.2d 1018 (5th Cir.), cert. denied, - U.S. -, 102 S.Ct. 669, 70 L.Ed.2d 638 (1981); United States v. Romano, 482 F.2d 1183 (5th Cir. 1973). Accordingly, the order of the district court denying appellant’s motion to dismiss the indictment is affirmed. AFFIRMED. . Although Judge Suttle, responding to the directions in United States v. Dunbar, 611 F.2d 985, 988 (5th Cir. 1980) (en banc), on remand to panel, 614 F.2d 39 (5th Cir.), cert. denied, 447 U.S. 926, 100 S.Ct. 3022, 65 L.Ed.2d 1120 (1980), made" }, { "docid": "22250190", "title": "", "text": "seeking relief that is already theirs by virtue of [Mitchell v.J Forsyth, which authorizes pre-trial appeals.” Id. (first emphasis added). The court explained that it is only after the district court has determined the defendant’s appeal to be frivolous or forfeited that the defendant must seek a stay from the court of appeals to prevent the trial from proceeding. Apostol, 870 F.2d at 1339. At that point, the frivolousness or forfeiture determination is reviewable because “we have jurisdiction to determine our jurisdiction.” Id. Hines and Apostol both recognized that it is the district court’s certification of the defendant’s appeal as frivolous or forfeited rather than merely the fact that the appeal is frivolous which allows the district court to retain jurisdiction to conduct a trial. Other courts have similarly emphasized the need for a clear and reasoned finding of frivolousness or forfeiture by the district court in order to prevent the automatic divestiture of jurisdiction. See, e.g., United States v. Leppo, 634 F.2d 101, 105 (3d Cir.1980) (district court must have found the motion to be frivolous and must have supported its conclusion by written findings in order to prevent an interlocutory double jeopardy appeal from divesting it of jurisdiction); United States v. Dunbar, 611 F.2d 985, 988 (5th Cir.1980) (en banc), cert. denied 447 U.S. 926, 100 S.Ct. 3022, 65 L.Ed.2d 1120 (1980) (“Henceforth, the district courts, in any denial of a double jeopardy motion, should make written findings determining whether the motion is frivolous or nonfrivolous. ... If nonfrivolous, of course, the trial cannot proceed until a determination is made of the merits of an appeal.”). This rule provides valuable certainty and clarity by creating a bright jurisdictional line between the district court and the circuit court. A contrary rule which would allocate jurisdiction upon the actuality of whether the appeal is frivolous rather than upon the district court’s certification of frivolousness, would give rise to unwarranted confusion and uncertainty as district court jurisdiction could never be known until after the appellate court had ruled. Once a notice of appeal on an appealable issue such as qualified immunity" }, { "docid": "15065991", "title": "", "text": "business and participated in the operation of the illegal gambling business at the Kings Court Club. Cerasani allegedly conspired to rob the Landmark Union Trust Bank and to possess, sell, and distribute marihuana, cocaine, and heroin. C. The Proceedings Below On July 15, 1983, the appellants filed a motion to dismiss the Florida indictment on the grounds of double jeopardy. The district court conducted a hearing and, on December 6, 1983, denied the motion. The appellants then filed a notice of appeal. On December 15, 1983, the court ruled that the appellants’ double jeopardy claim was non-frivolous and, in accordance with United States v. Dunbar, 611 F.2d 985, 988 (5th Cir.) (en banc), cert. denied, 447 U.S. 926, 100 S.Ct. 3022, 65 L.Ed.2d 1120 (1980), continued the trial date until the merits of the claim could be resolved by this court on appeal. II. RICO AND DOUBLE JEOPARDY The Double Jeopardy Clause of the Fifth Amendment provides: “[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb____” U.S. Const, amend. V. The Supreme Court has emphasized that the Double Jeopardy Clause protects a person not only against being twice convicted of the same offense, but also against being twice put to trial for the same offense. See Abney v. United States, 431 U.S. 651, 660-61, 97 S.Ct. 2034, 2041, 52 L.Ed.2d 651 (1977). Therefore, we must dismiss the Florida indictment if we find that the indictment charges the appellants with the same offenses for which they previously were prosecuted in New York. Our task is made more difficult by the peculiar nature of the RICO statute. The subsection of RICO that the appellants are charged with violating and conspiring to violate, 18 U.S.C. § 1962(c), provides: (c) It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity or collection of unlawful debt. Unlike most" }, { "docid": "11832151", "title": "", "text": "made then in carrying out an earlier agreement to pay when the information had been delivered. As with Liberatore, there is no merit to Lanci’s assertion that the jury charge was either inadequate or erroneous. Further, the sentence imposed on Lanci did not violate the constitutional prohibition against double jeopardy. United States v. Austin, 529 F.2d 559 (6th Cir. 1976), is distinguishable. Each of the offenses for which Lanci was sentenced in the present case required proof of at least one element not required for conviction of the other. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). When the present cases were set for trial, all defendants took an interlocutory appeal to this court from the district court’s denial of their motions to dismiss the indictment on double jeopardy grounds. Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). Their claim was based on the fact that the State of Ohio had previously prosecuted the defendants for some of the same acts which are the basis of the charges in the present case. This court found no double jeopardy, applying the “dual sovereignty” doctrine in an unpublished order. United States v. Lanci, et al., (Nos. 79-5362, 79-5373, 79-5374, 80-5006, 80-5007, 80-5008, 80-5017 and 80-5018, decided and filed July 11, 1980). 627 F.2d 1093. During the pendency of the interlocutory appeal the district court reinstated the counts which are the basis of the convictions from which the present appeal was taken and proceeded with the trial. We conclude that the district court had jurisdiction to proceed, having determined that the interlocutory appeal lacked any “colorable foundation.” See United States v. Leppo, 634 F.2d 101 (3d Cir. 1980), cert. denied, - U.S. -, 102 S.Ct. 503, 70 L.Ed.2d 379 (1981); United States v. Dunbar, 611 F.2d 985 (5th Cir.), cert. denied, 447 U.S. 926, 100 S.Ct. 3022, 65 L.Ed.2d 1120 (1980). The claim that Lanci was denied a fair trial by exclusion of exculpatory evidence relates to testimony of the co-defendant Ciarcia given at his earlier state trial for murder. Ciarcia" }, { "docid": "14567637", "title": "", "text": "Kalish was tried on the EL COBRE indictment in March 1980. A jury found Kalish not guilty of both conspiracy counts of that indictment. Prior to this April 1980 trial on the MR. JAKE indictment, Kalish filed a plea in bar, contending that his trial on the conspiracy counts of that indictment was barred by the double jeopardy clause of the Fifth Amendment to the United States Constitution. After a full hearing, the court denied Kalish’s plea. Although Kalish immediately filed a notice of appeal from the trial court’s ruling, see Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed. 651 (1977), the trial court refused to stay Kalish’s trial pending appeal, expressly finding Kalish’s double jeopardy claim to be “frivolous,” see United States v. Dunbar, 611 F.2d 985 (5th Cir.) (en banc), cert. denied, 447 U.S. 926, 100 S.Ct. 3022, 65 L.Ed.2d 1120 (1980). The court did grant Kalish’s request to stay the trial pending his petition to this court for a writ of prohibition. This court denied the petition, and the trial commenced. A jury found Kalish guilty on all three counts of the MR. JAKE indictment. After judgment was entered on the verdict, Kalish filed his second notice of appeal. This is a consolidation of the two appeals. Kalish argues that trial on the conspiracy counts of the MR. JAKE indictment places him in double jeopardy. He also argues that his conviction on the substantive count should be reversed because the district court lacked jurisdiction to try him, because the government should have been collaterally estopped from introducing the evidence it presented at the EL COBRE trial, and because of an alleged evidentiary error. We reverse Kalish’s conviction on the two conspiracy counts. We affirm his conviction on the substantive count. I. Double Jeopardy A. Procedural Considerations In the usual Abney appeal from a pretrial ruling denying a double jeopardy plea, the court has only the record of the pretrial hearing on the question whether the impending trial concerns the same offenses previously tried. In such pretrial proceedings, the defendant has the burden “to" }, { "docid": "23274286", "title": "", "text": "3161(e) upon issuance of the mandate, in accordance with the rule adopted by the seven other circuits which had considered the issue. Rivera, 844 F,2d at 920 (collecting cases). Rivera distinguished the question presented by the prosecution of Pérsi-co and Langella in this case, id. at 921-22, which question we now address. Numerous circuit courts have ruled that a district court may retain jurisdiction to proceed with a trial, despite the pendency of a defendant’s interlocutory double jeopardy appeal, where the appeal is found to be frivolous. See, e.g., United States v. Black, 759 F.2d 71, 73 (D.C.Cir.1985); United States v. Cannon, 715 F.2d 1228, 1231 (7th Cir.1983), cert. denied, 464 U.S. 1045, 104 S.Ct. 716, 79 L.Ed.2d 178 (1984); United States v. Head, 697 F.2d 1200, 1204 & nn. 3-5 (4th Cir.1982), cert. denied, 462 U.S. 1132, 103 S.Ct. 3113, 77 L.Ed.2d 1367 (1983); United States v. Hines, 689 F.2d 934, 936-37 (10th Cir.1982); United States v. Bizzard, 674 F.2d 1382, 1385 (11th Cir.), cert. denied, 459 U.S. 973, 103 S.Ct. 305, 74 L.Ed.2d 286 (1982); United States v. Grabinski, 674 F.2d 677, 679 (8th Cir.) (in banc), cert. denied, 459 U.S. 829, 103 S.Ct. 67, 74 L.Ed.2d 67 (1982); United States v. Land, 669 F.2d 391, 394 (6th Cir.), cert. denied, 457 U.S. 1134, 102 S.Ct. 2960, 73 L.Ed.2d 1350 (1982); United States v. Leppo, 634 F.2d 101, 105 (3d Cir.1980); and United States v. Dunbar, 611 F.2d 985, 987-88 (5th Cir.) (in banc), cert. denied, 447 U.S. 926, 100 S.Ct. 3022, 65 L.Ed.2d 1120 (1980). Pérsico and Langella contend, however, that their double jeopardy appeal in Langella was not frivolous, as this court in effect certified by issuing a formal opinion of affirmance, so these cases have no application here. We disagree. Clearly, in all these cases, (1) no mandate had issued “restoring” jurisdiction to the district court, since trial was allowed to proceed simultaneously with the pendency of the interlocutory appeal, and (2) the trial was allowed to proceed because of the high likelihood, in view of the meritless nature of the appeal, that the district" }, { "docid": "2731287", "title": "", "text": "The denial of a motion to dismiss an indictment on the basis of prosecutorial misconduct is neither a final appealable order nor a proper subject for interlocutory appeal. United States v. Rosario, 677 F.2d 614 (7th Cir. 1982); United States v. Rey, 641 F.2d 222 (5th Cir.1981). We must next decide whether Cannon’s mere filing of a Notice of Appeal, albeit from a nonappealable order, was sufficient to divest the district court of jurisdiction over his retrial. The general rule is that an appeal suspends the district court’s power to proceed further in a cause. This rule, however, has no application where there is a purported appeal from a nonappealable order. United States v. Bastanipour, 697 F.2d 170, 173 (7th Cir.1982). Thus, where a defendant’s motion to dismiss on double jeopardy grounds is frivolous or fails to raise a colorable claim of double jeopardy, the mere filing of a Notice of Appeal is insufficient to divest the district court of jurisdiction. United States v. Dunbar, 611 F.2d 985 (5th Cir.) (en banc), cert, denied, 447 U.S. 926, 100 S.Ct. 3022, 65 L.Ed.2d 1120 (1980). Rather, we agree with the Third Circuit that an appeal from the denial of a double jeopardy motion does not divest the district court of jurisdiction to proceed with trial, if the district court has found the motion to be frivolous .... [B]oth the district court and court of appeals shall have jurisdiction to proceed. Thus the defendant is entitled ultimately to appellate review. United States v. McQuilkin, 673 F.2d 681, 687 (3d Cir.1982) (quoting United States v. Leppo, 634 F.2d 101, 105 (3d Cir.1981)). In this case the district court properly found Cannon’s motion to dismiss the indictment frivolous because the allegations of prosecutorial misconduct on which it was based had been twice considered and rejected by the trial judge. Moreover, we note that the substantive allegations of prosecutorial misconduct contained in Cannon’s motion have been considered and rejected by this court. See United States v. Wilson, 715 F.2d 1164, 1169-1170 (7th Cir.1983). Accordingly, we hold that the district court acted properly in proceeding with" }, { "docid": "12090883", "title": "", "text": "methods of achieving the goal are not unanimously agreed upon.” R6-321-22 (emphasis added). For the foregoing reasons, we hold that there was no double jeopardy or collateral estoppel bar to the second trial of the substantive count. B. Did the District Court have Jurisdiction to Proceed with the Trial Following Farmer’s Notice of Appeal? In Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977), the Supreme Court ruled that an order denying a motion to dismiss an indictment on double jeopardy grounds is immediately appeal-able. The filing of a notice of appeal generally strips the district court of jurisdiction as to the matters appealed. United States v. Rogers, 788 F.2d 1472, 1475 (11th Cir.1986) (citing Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 105 S.Ct. 1327, 1331, 84 L.Ed.2d 274 (1985)). However, the Abney Court approved the establishment by the lower courts of procedures designed “to weed out frivolous claims of former jeopardy.” Abney, 431 U.S. at 662 n. 8, 97 S.Ct. at 2042 n. 8. Our predecessor circuit responded to the Supreme Court’s invitation in United States v. Dunbar, 611 F.2d 985 (5th Cir.) (en banc), cert. denied, 447 U.S. 926, 100 S.Ct. 3022, 65 L.Ed.2d 1120 (1980). See also United States v. Bizzard, 674 F.2d 1382, 1385 (11th Cir.), cert. denied, 459 U.S. 973, 103 S.Ct. 305, 74 L.Ed.2d 286 (1982). Under Dunbar, the district court is not divested of jurisdiction if it makes written findings that the double jeopardy claim is frivolous or dilatory. Dunbar, 611 F.2d at 988. In the instant case, the district court denied Farmer’s pretrial motion to dismiss on double jeopardy grounds and refused to stay the second trial pending appeal. The district court found appellant’s claims to be frivolous within the meaning of Dunbar. Although we have rejected Farmer’s double jeopardy claims in this opinion, this does not necessarily mean that Farmer’s double jeopardy arguments were frivolous. Farmer argues that we must vacate his conviction for want of jurisdiction despite our holding rejecting the double jeopardy and collateral estoppel claims on the merits. Employing the" }, { "docid": "11832152", "title": "", "text": "the basis of the charges in the present case. This court found no double jeopardy, applying the “dual sovereignty” doctrine in an unpublished order. United States v. Lanci, et al., (Nos. 79-5362, 79-5373, 79-5374, 80-5006, 80-5007, 80-5008, 80-5017 and 80-5018, decided and filed July 11, 1980). 627 F.2d 1093. During the pendency of the interlocutory appeal the district court reinstated the counts which are the basis of the convictions from which the present appeal was taken and proceeded with the trial. We conclude that the district court had jurisdiction to proceed, having determined that the interlocutory appeal lacked any “colorable foundation.” See United States v. Leppo, 634 F.2d 101 (3d Cir. 1980), cert. denied, - U.S. -, 102 S.Ct. 503, 70 L.Ed.2d 379 (1981); United States v. Dunbar, 611 F.2d 985 (5th Cir.), cert. denied, 447 U.S. 926, 100 S.Ct. 3022, 65 L.Ed.2d 1120 (1980). The claim that Lanci was denied a fair trial by exclusion of exculpatory evidence relates to testimony of the co-defendant Ciarcia given at his earlier state trial for murder. Ciarcia exercised his constitutional right not to testify at the trial of Lanci because a charge was still pending against him. Thus the district court ruled that Ciarcia was unavailable as a witness but excluded the evidence on the ground that it would prejudice the rights of other co-defendants. In the state court testimony which Lanci proffered Ciarcia said that he “imagine[d]” Lanci’s fingerprints appeared on the FBI documents because of Lanci’s curiosity about the documents. Ciarcia testified that he didn’t know whether Lanci “read them [the documents] or glanced through them or what.” On appeal Lanci contends that the Ciarcia testimony would have explained the presence of his fingerprints on the FBI documents, and that it was reversible error to exclude it. He relies on Rule 804(b)(1), (3) and (5). Since the United States was not a party to the murder prosecution and the State of Ohio had no “similar motive” to develop the facts concerning the bribery of an FBI employee, Rule 804(b)(1) does not apply. Though the evidence came within the hearsay exception" }, { "docid": "8134073", "title": "", "text": "wholly without merit, as the summary of facts recited above — taken from testimony introduced at trial — demonstrates. Defendant Liberatore argues that there was insufficient evidence to establish that he and Ciarcia bribed Ms. Rabinowitz to provide them with confidential FBI information and documents. This Court dealt fully with this question and resolved it against Liberatore in United States v. Lanci and Liberatore, 669 F.2d 391, 393 (6th Cir.), cert. denied, 457 U.S. 1134, 102 S.Ct. 2960, 73 L.Ed.2d 1350 (1982), and we will not consider it further here. VII. Principles of Double Jeopardy Did Not Bar the Government from Using Bribery as a Predicate Offense for the RICO Convictions Defendants Liberatore and Ciarcia were convicted in federal court of bribing Ms. Rabinowitz. This bribery offense was also used as a predicate act for the RICO convictions of these two defendants. Liberatore and Ciarcia now claim that use of the bribery offense in the RICO prosecution violated the double jeopardy clause of the fifth amendment. The Supreme Court articulated the analysis to be applied to statutory schemes in order to evaluate them for double jeopardy purposes in Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980). First, courts should apply the “Bloekburger test” articulated in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), in order to determine whether the same act constitutes a violation of two distinct statutory provisions. To see whether there are two offenses or only one the court must determine whether each provision requires proof of a fact which the other does not. When the offenses are the same under the Bloekburger test, Whalen holds that “cumulative sentences are not permitted, unless elsewhere specifically authorized by Congress.” 445 U.S. at 692, 100 S.Ct. at 1438. Even if the predicate act of bribery and the RICO charge fail the Bloekburger test, which we do not decide, Congress did specifically authorize cumulative sentences under RICO. United States v. Hartley, 678 F.2d 961 (11th Cir.1982); United States v. Anderson, 626 F.2d 1358, 1367 (8th Cir. 1980), cert. denied," }, { "docid": "14567658", "title": "", "text": "to resolve the double jeopardy problem; there was none. We recognize that the Jeffers plurality responded to the defendant’s argument that he had a valid ground for opposing consolidation — the prejudicial joinder of co-defendants — by pointing out that the defendant could have moved for a severance rather than opposing the motion to consolidate, see id. at 143, 153 n.21, 97 S.Ct. at 2212, 2217 n.21, and by declaring that the defendant had a “responsibility to bring the [double jeopardy] issue to the District Court’s attention” at the time of the consolidation motion, id. at 154 n.22, 97 S.Ct. at 2218 n.22. We do not think, however, that this part of Jeffers’ rationale can be extended to Kalish’s case. To require a defendant facing two conspiracy indictments to make the initial motion to consolidate because there is only one conspiracy is to require him to inform the government that it misapprehends the facts. By contrast, the Jeffers plurality was merely pointing out that the defendant could have preserved his double jeopardy rights and avoided prejudicial joinder by requesting a severance rather than opposing the consolidation that would have resolved the double jeopardy problem. We hold that Kalish did not waive his double jeopardy claim. ■ II. The Substantive Conviction A. Trial Court Jurisdiction Kalish argues that the filing of his Abney appeal deprived the trial court of jurisdiction “to try the MR. JAKE case.” It is not clear from Kalish’s brief whether he believes that the district court was deprived of jurisdiction over the substantive count as well as the conspiracy counts. Nevertheless, we address the issue because the question of jurisdiction is one the court should raise on its own motion. In United States v. Dunbar, 611 F.2d 985 (5th Cir.), cert. denied, 447 U.S. 926, 100 S.Ct. 3022, 65 L.Ed.2d 1120 (1980), a unanimous en banc court held that an appeal from a pretrial double jeopardy motion which “the district court has found . . . to be frivolous” does not divest the trial court of jurisdiction. Id. at 986. Our con elusion that Kalish’s pretrial motion" }, { "docid": "15233314", "title": "", "text": "criminal law”). The Court in Abney, mindful of the need to balance these two interests, directed appellate courts to exercise their supervisory powers to establish summary procedures for quickly disposing of frivolous, dilatory pre-trial appeals. The Fifth Circuit in United States v. Dunbar, 611 F.2d 985, 987-89 (5th Cir.), cert. denied, 447 U.S. 926, 100 S.Ct. 3022, 65 L.Ed.2d 1120 (1980) (en banc; twenty five judges) followed Abney’s directive and adopted the “dual jurisdiction” rule that “appeal from the denial of a frivolous [Abney-type] motion does not divest the district court of jurisdiction to proceed with trial, if the district court has found the motion to be frivolous.” This approach has been uniformly followed by other circuits. United States v. Leppo, 634 F.2d 101, 104 (3rd Cir.1980); United States v. Head, 697 F.2d 1200, 1204 n. 4 (4th Cir.1982); United States v. Land, 669 F.2d 391, 394 (6th Cir. 1982); United States v. Cannon, 715 F.2d 1228 (7th Cir.1983); United States v. Grabinski, 674 F.2d 677, 679 (8th Cir.1982) (en banc). The Ninth Circuit implicitly adopted Dunbar’s dual jurisdiction approach in United States v. Spilotro, 680 F.2d 612, 615 (9th Cir.1982) and in United States v. Crozier, 674 F.2d 1293, 1297 (9th Cir.1982). Both Spilotro and Crozier held that the interlocutory review of a collateral order restraining the sale or transfer of defendant’s property did not divest the district court of jurisdiction to proceed. The Ninth Circuit, however, has yet to adopt Dunbar in the context of an Abney -type claim in volving a “right not to be tried”. This reluctance is due to the Ninth Circuit’s concern that a defendant who has raised a meritorious Abney-type claim would be irreparably harmed if the trial court were allowed to proceed to trial prior to the appellate court’s disposition of the claim. Burt, 619 F.2d at 838. This concern is not as vitally involved when only pre-trial hearings proceed in the district court rather than the trial itself. Because this court has now determined that Claiborne’s asserted “right not to be tried” claim lacks merit, the trial court’s continuation of pre-trial" }, { "docid": "14845673", "title": "", "text": "“lack of jurisdiction” element of this contention rises or falls with the more fundamental contention that Abney gave rise to an enforceable right to interlocutory review of the denial of the “double jeopardy” objections. Because in Part II we reject the contention that in this case any such special right to review could have existed, the “lack of jurisdiction” argument falls with it. . In the cited footnote, the Abney Court observed that in administering its announced rule of interlocutory appealability of double jeopardy claims, the courts of appeals might “establish summary procedures and calendars to weed out frivolous claims of former jeopardy.” See also United States v. Leppo, 634 F.2d 101 (3d Cir.1980) (district court retains jurisdiction when defendant notices appeal raising a frivolous double jeopardy claim); United States v. Dunbar, 611 F.2d 985 (5th Cir.) (same), cert. denied, 447 U.S. 926, 100 S.Ct. 3022, 65 L.Ed.2d 1120 (1980). . Because of our holding that the claims were “frivolous” in the Abney sense, we need not address Head’s novel contention that if they were not “frivolous” he is entitled to reversal of his conviction even if the claims were ultimately found to be without merit. This draconian theory builds off language in Abney arguably suggesting that interlocutory review of denied double jeopardy claims may be a matter of constitutional right because review at that stage is necessary to protect against second trials barred by double jeopardy. See Abney, 431 U.S. at 660, 662, 97 S.Ct. at 2040, 2041. We observe of this draconian theory only that it flies in the fact of the Abney Court’s introductory admonition that “there is no constitutional right to an appeal” and the corollary that “[t]he right ..., as we presently know it in criminal cases, is purely a creature of statute.” 431 U.S. at 656, 97 S.Ct. at 2038. See People ex rel. Mosley v. Carey, 74 Ill.2d 527, 537-39, 25 Ill.Dec. 669, 673-75, 387 N.E.2d 325, 329-31, cert. denied sub nom. Mosley v. Illinois, 444 U.S. 940, 100 S.Ct. 292, 62 L.Ed.2d 306 (1979). . They were before us as portions .of" }, { "docid": "14567659", "title": "", "text": "prejudicial joinder by requesting a severance rather than opposing the consolidation that would have resolved the double jeopardy problem. We hold that Kalish did not waive his double jeopardy claim. ■ II. The Substantive Conviction A. Trial Court Jurisdiction Kalish argues that the filing of his Abney appeal deprived the trial court of jurisdiction “to try the MR. JAKE case.” It is not clear from Kalish’s brief whether he believes that the district court was deprived of jurisdiction over the substantive count as well as the conspiracy counts. Nevertheless, we address the issue because the question of jurisdiction is one the court should raise on its own motion. In United States v. Dunbar, 611 F.2d 985 (5th Cir.), cert. denied, 447 U.S. 926, 100 S.Ct. 3022, 65 L.Ed.2d 1120 (1980), a unanimous en banc court held that an appeal from a pretrial double jeopardy motion which “the district court has found . . . to be frivolous” does not divest the trial court of jurisdiction. Id. at 986. Our con elusion that Kalish’s pretrial motion was meritorious, however, makes it plain that the district court’s finding of frivolity was erroneous. While the double jeopardy claim in Dunbar was frivolous, our opinion made it clear that it is the district court’s finding of frivolousness that creates “dual jurisdiction.” 611 F.2d at 989. “If the claim is found to be frivolous [by the district court], the filing of a notice of appeal shall not divest the district court of jurisdiction over the case.” Id at 988 (emphasis added). We later explained: If an appeal from a motion decided to be frivolous by the district court is found meritorious by the appellate court, the conviction in the district court would be reversed. If found not to have merit, jurisdiction for the trial which occurred during the appeal would be affirmed. Id. at 989 (emphasis added). Thus, our function on appeal is to' determine whether the double jeopardy claim has merit, not to review the district court’s finding of frivolousness. Even if the district court has erred in its finding, jurisdiction will be affirmed" }, { "docid": "8915991", "title": "", "text": "bar retrial we find totally without merit. The district court’s findings, quoted above, are not clearly erroneous. To the contrary, they are fully supported by the record and we find no reason to disapprove them or reach a contrary determination. The prosecutorial misconduct present at the first trial does not rise to the level required to prevent retrial on double jeopardy grounds. See United States v. Garza, supra; United States v. Crouch, supra; United States v. Charette, supra; United States v. Opager, supra; United States v. Fine, 644 F.2d 1018 (5th Cir.), cert. denied, - U.S. -, 102 S.Ct. 669, 70 L.Ed.2d 638 (1981); United States v. Romano, 482 F.2d 1183 (5th Cir. 1973). Accordingly, the order of the district court denying appellant’s motion to dismiss the indictment is affirmed. AFFIRMED. . Although Judge Suttle, responding to the directions in United States v. Dunbar, 611 F.2d 985, 988 (5th Cir. 1980) (en banc), on remand to panel, 614 F.2d 39 (5th Cir.), cert. denied, 447 U.S. 926, 100 S.Ct. 3022, 65 L.Ed.2d 1120 (1980), made a finding that the double jeopardy motion was frivolous, he nevertheless stayed the retrial pending the present appeal because the government and defense had agreed to such procedure. . Specifically, the government asks us (i) to disavow our language in United States v. Kessler, 530 F.2d 1246, 1256 (5th Cir. 1976), indicating that prosecutorial “gross negligence,” as well as “intentional” misconduct, may suffice to bar retrial; (ii) to hold that where the retrial for prosecutorial misconduct results from appellate reversal, rather than a mistrial during the initial proceeding, double jeopardy does not bar the second proceeding unless the prosecutor’s wrongdoing is not discovered until after the first trial is complete; and alternatively, (iii) to decline (presumably on grounds analogous to “law of the case”) to apply double jeopardy in any case of reversal for prosecutorial misconduct where the appellate court did not expressly direct that the charges be dismissed. . Specifically, there is no occasion for us to, and we do not, determine whether Passmore’s prior request for a “remand for a new trial” is" }, { "docid": "12090884", "title": "", "text": "circuit responded to the Supreme Court’s invitation in United States v. Dunbar, 611 F.2d 985 (5th Cir.) (en banc), cert. denied, 447 U.S. 926, 100 S.Ct. 3022, 65 L.Ed.2d 1120 (1980). See also United States v. Bizzard, 674 F.2d 1382, 1385 (11th Cir.), cert. denied, 459 U.S. 973, 103 S.Ct. 305, 74 L.Ed.2d 286 (1982). Under Dunbar, the district court is not divested of jurisdiction if it makes written findings that the double jeopardy claim is frivolous or dilatory. Dunbar, 611 F.2d at 988. In the instant case, the district court denied Farmer’s pretrial motion to dismiss on double jeopardy grounds and refused to stay the second trial pending appeal. The district court found appellant’s claims to be frivolous within the meaning of Dunbar. Although we have rejected Farmer’s double jeopardy claims in this opinion, this does not necessarily mean that Farmer’s double jeopardy arguments were frivolous. Farmer argues that we must vacate his conviction for want of jurisdiction despite our holding rejecting the double jeopardy and collateral estoppel claims on the merits. Employing the concept of dual jurisdiction, the Dunbar court held that if an appellant’s double jeopardy claim is “found [by the appellate court] not to have merit, jurisdiction for the trial which occurred during the [interlocutory] appeal would be affirmed.” Dunbar, 611 F.2d at 989. We interpret the procedure outlined in Dunbar to be as follows. If the district court makes written findings that a double jeopardy claim is frivolous or dilatory, then the interlocutory appeal does not divest the district court of jurisdiction, thus permitting the retrial to proceed. The double jeopardy claim is properly heard on appeal from the defendant’s conviction on retrial. If the appellate court rejects the double jeopardy claim on the merits, the jurisdiction of the district court with respect to the retrial is affirmed, without the necessity of examining whether or not the double jeopardy claim was in fact frivolous. This procedure adequately protects defendant’s double jeopardy interest in not running the gauntlet of a second trial because the defendant may Seek an appellate stay of the retrial in connection with" }, { "docid": "17215793", "title": "", "text": "the proper standard for double jeopardy questions involving successive prosecutions of conspiracy offenses and underlying substantive offenses. The Fifth Circuit’s position on whether a prosecution for conspiracy could bar a subsequent prosecution for the underlying substantive crime was articulated in United States v. Dunbar, 591 F.2d 1190 (5th Cir.1979), panel opinion adopted in relevant part and remanded, 611 F.2d 985 (5th Cir.) (en banc), cert. denied, 447 U.S. 926, 100 S.Ct. 3022, 65 L.Ed.2d 1120 (1980). In Dunbar, the defendant had been convicted on an indictment charging a conspiracy to possess Methaqualone with intent to distribute. In another indictment, the defendant was charged with distributing controlled substances in violation of 21 U.S.C. § 841(a)(1). Dunbar argued that, because the same evidence that was used to convict him in the conspiracy trial would be used against him in the trial for the substantive offense, the double jeopardy clause should bar the second prosecution. In addressing the double jeopardy claim, the court stated: A dominant factor in this interlocking procedural situation is that there can be no doubt, absolutely no doubt, that Dunbar’s double jeopardy plea was totally devoid of merit. As far as we are aware, no court in this country has ever held that a defendant may not be indicted and tried once for a conspiracy and thereafter tried for the crime of distributing controlled substances, especially where, as here, the drug named in the conspiracy count is not the same as the drugs specified in the substantive counts, [citation omitted] A conspiracy to commit a crime and the crime itself are separate offenses and a defendant may be tried in separate trials for these offenses. 591 F.2d at 1192. The court then stated that the Blockburger standard is the classic test for determining whether two offenses are the same for double jeopardy purposes. 591 F.2d at 1192 (quoting United States v. Smith, 574 F.2d 308, 309-10 (5th Cir.), cert. denied, 439 U.S. 931, 99 S.Ct. 321, 58 L.Ed.2d 325 (1978)). Kalish argues that Dunbar does not apply to the present case because its holding was qualified by the fact" }, { "docid": "14845672", "title": "", "text": "inter alia that the evidence was insufficient to support the jury verdicts; that the judge erred in refusing to inquire on voir dire concerning the venire’s attitudes on birth control; that the court erred in refusing to question veniremen individually in camera regarding their exposure to pretrial publicity; and that there was prejudicial error arising from the court’s failure to poll the jury about newspaper articles appearing during the trial. We have carefully examined all these arguments and find them without merit. VII The judgment of the district court is affirmed. AFFIRMED. . The government acquiesced in a suggestion by the district judge that it should not attempt to prove the Hare object of the conspiracy because in all likelihood the judge would dismiss that object at the end of the trial. . Head sought dismissal of the entire indictment in the district court on May 15, 1981. The information charging a substantive gratuity count under 18 U.S.C. § 201(f) was not filed and consolidated with the conspiracy count until May 18, 1981. . The “lack of jurisdiction” element of this contention rises or falls with the more fundamental contention that Abney gave rise to an enforceable right to interlocutory review of the denial of the “double jeopardy” objections. Because in Part II we reject the contention that in this case any such special right to review could have existed, the “lack of jurisdiction” argument falls with it. . In the cited footnote, the Abney Court observed that in administering its announced rule of interlocutory appealability of double jeopardy claims, the courts of appeals might “establish summary procedures and calendars to weed out frivolous claims of former jeopardy.” See also United States v. Leppo, 634 F.2d 101 (3d Cir.1980) (district court retains jurisdiction when defendant notices appeal raising a frivolous double jeopardy claim); United States v. Dunbar, 611 F.2d 985 (5th Cir.) (same), cert. denied, 447 U.S. 926, 100 S.Ct. 3022, 65 L.Ed.2d 1120 (1980). . Because of our holding that the claims were “frivolous” in the Abney sense, we need not address Head’s novel contention that if they were" }, { "docid": "15233313", "title": "", "text": "suggested that “the rule should not be employed to defeat its purpose or to induce needless paper shuffling.” 9 J. Moore, Federal Practice, 1203.11 at 3-44 n. 1 (1980); see also C. Wright, A. Miller, E. Cooper & E. Gressman, Federal Practice and Procedure, § 3949, at 358-59 (1977). The divestiture rule takes on added significance when applied to interlocutory Ab-ney-type criminal appeals since two important countervailing policies are at work. On the one hand, a defendant raising a meritorious Abney -type claim — asserting a valid, constitutional “right not to be tried” —would be irreparably harmed if the trial court continued to proceed to trial prior to the disposition of the appeal. On the other hand, under an automatic divestiture rule, a defendant raising a meritless Abney -type claim could significantly delay and disrupt criminal trial court proceedings. Burt, 619 F.2d at 838. See also Abney, 431 U.S. at 656-57, 97 S.Ct. at 2038-39 (“the delays and disruptions attendant upon intermediate appeal ... are especially inimical to the effective and fair administration of the criminal law”). The Court in Abney, mindful of the need to balance these two interests, directed appellate courts to exercise their supervisory powers to establish summary procedures for quickly disposing of frivolous, dilatory pre-trial appeals. The Fifth Circuit in United States v. Dunbar, 611 F.2d 985, 987-89 (5th Cir.), cert. denied, 447 U.S. 926, 100 S.Ct. 3022, 65 L.Ed.2d 1120 (1980) (en banc; twenty five judges) followed Abney’s directive and adopted the “dual jurisdiction” rule that “appeal from the denial of a frivolous [Abney-type] motion does not divest the district court of jurisdiction to proceed with trial, if the district court has found the motion to be frivolous.” This approach has been uniformly followed by other circuits. United States v. Leppo, 634 F.2d 101, 104 (3rd Cir.1980); United States v. Head, 697 F.2d 1200, 1204 n. 4 (4th Cir.1982); United States v. Land, 669 F.2d 391, 394 (6th Cir. 1982); United States v. Cannon, 715 F.2d 1228 (7th Cir.1983); United States v. Grabinski, 674 F.2d 677, 679 (8th Cir.1982) (en banc). The Ninth Circuit implicitly" } ]

[ { "docid": "23536755", "title": "", "text": "monument than if the surveyors had simply calculated that distance. Many arguments are urged upon us by counsel for the plaintiff for the purpose of sustaining this ruling. They say, that permission to answer this question was discretionary with the court below, and that its refusal was no abuse of discretion; that the answer to the question would have established an affirmative defense; and that the refusal to permit the introduction of the answer was not prejudicial to the defendant because it might have made the owner of this property its own witness and then have asked him the same question; and that in any event the expected testimony was only cumulative. But a fair and full cross-examination of a witness upon the subjects of his examination in chief is the absolute right, and not the mere privilege, of the party against whom he is called, and a denial of this right is a prejudicial and fatal error. It is only after the right has been substantially and fairly exercised that the allowance of cross-examination becomes discretionary with the trial court. Gilmer v. Higley, 110 U. S. 47, 50, 3 Sup. Ct. 471, 28 L. Ed. 62; Chandler v. Allison, 10 Mich. 460, 473; Heath v. Waters, 40 Mich. 457, 471; Sperry v. Moore’s Estate, 42 Mich. 353, 361, 4 N. W. 13; Martin v. Elden, 32 Ohio St. 282, 287; Wilson v. Wagar, 26 Mich. 452, 456, 458; Reeve v. Dennett, 141 Mass. 207, 6 N. E. 378; Taggart v. Bosch (Cal.) 48 Pac. 1092, 1096; New York Iron Mine v. Negaunee Bank, 39 Mich. 644, 660; Jackson v. Feather River W. Co., 14 Cal. 19, 24; Wendt v. Chicago, St. P., M. & O. Ry. Co., 4 S. D. 476, 484, 57 N. W. 226. The converse of this rule is equally controlling. In the courts of the United States the party on whose behalf a witness is called has the right to restrict his cross-examination to the subjects of his direct examination, and a violation of this right is reversible error. If the cross-examiner would inquire of" } ]

[ { "docid": "18433007", "title": "", "text": "at various times drinks for persons he suspected were in the narcotics traffic. Defendant’s counsel sought to cross examine McNealy in detail as to past disbursements charged to his expense account, as to his personal habits, and concerning circumstances surrounding his marriage. Defendant advised the court that the purpose of the cross examination was to develop that McNealy spent large sums of money for entertainment, and that in order to account for the money he had spent he had to produce evidence of alleged sales of heroin. The court, in sustaining the Government’s objection to such cross examination, stated that the manner in which the witness lived and operated was not material to any issue in the case, that this field of inquiry had not been opened by the witness’s direct examination, and that cross examination upon the activities of the witness would be limited to the three-day period covered by the transactions between the witness and defendant Mays. The trial court has a broad discretion with respect to the scope of cross examination of a witness upon collateral matter. Glasser v. United States, 315 U.S. 60, 83, 62 S.Ct. 457, 86 L.Ed. 680; Davis v. United States, 8 Cir., 229 F.2d 181, 185; United States v. Manton, 2 Cir., 107 F.2d 834, 845. In the Manton case, Justice Sutherland, sitting as a circuit judge, states (107 F.2d at page 845): “-* * * The extent to which cross-examination upon collateral matters shall go is a matter peculiarly within the discretion of the trial judge. And his action will not be interfered with unless there has been upon his part a plain abuse of discretion. 3 Wharton’s Criminal Evidence (11th Ed.) § 1308. See Alford v. United States, 282 U.S. 687, 694, 51 S.Ct. 218, 75 L.Ed. 624. * * * ” McNealy’s mode of life and his method of operating as undercover agent during the period prior to his negotiations with the defendant Mays have no direct or material bearing upon the issue of whether Mays aided and abetted in the sale of the narcotics involved in this case." }, { "docid": "23190590", "title": "", "text": "of which he was in fact guilty. This was clearly improper questioning and understandably drew criticism from the court. We also note that, regardless of the cause of any impatience or disdain, no harm was done. “The trial was long and the incidents relied on by petitioners few. We must guard against the magnification on appeal of instances which were of little importance in their setting.” Glasser v. United States, 315 U.S. 60, 83, 62 S.Ct. 457, 470, 86 L.Ed. 680 (1942). C. Limitations on cross-examination of Howard Defendants argue that “the court continuously and consistently, during the course of this trial, impeded effective permissible cross-examination, refused to exercise properly judicial discretion and hampered defense counsel in their attempts to put the weight of Wadie Howard’s testimony and his credibility to the test.” In support of this claim defendants have offered little more than citations to pages of the transcript. Thus, unenlightened by the briefs as to the exact nature of the impermissible restrictions placed upon the cross-examination, we must rely upon our own examination of the record to evaluate this argument. It is undisputed that a trial court has discretion to control the conduct of cross-examination. Smith v. Illinois, 390 U.S. 129, 132, 88 S.Ct. 748, 750, 19 L.Ed.2d 956 (1968); Alford v. United States, 282 U.S. 687, 694, 51 S.Ct. 218, 220, 75 L.Ed. 624 (1931). We recently noted that “a trial court has wide discretion to limit cross-examination, with the standard on review for the adequacy of cross-examination on bias or motive being whether the jury had sufficient information to make a discriminating appraisal of the witness’s bias or motive.” United States v. Hinton, 683 F.2d 195, 200 (7th Cir.1982). It is clear from our examination of the record that the trial court did not abuse its discretion in limiting the scope of cross-examination. Few restrictions were placed upon defense counsel, and those that were — such as the prohibition on mentioning the maximum penalty faced, by Howard, and the Xhekas — were proper. Defense counsel elicited a great deal of impeaching evidence from Howard, including past" }, { "docid": "1354753", "title": "", "text": "I don’t know. Q. More than once? A. Yeah; I’m sure. Q. Several times? A. Several times, maybe. Q. Were there any occasions when you observed both Bert Slone and Joe Cox there together getting the sugar? A. Yeah. Then, after cross-examination the trial judge asked, “how often would the Defendants pick up 600 pounds of sugar?” Waugh responded, “[w]ell, it may go five or six weeks....” While appellant is correct in noting that the prosecution did not ask Waugh the cost of the sugar on direct examination, the trial judge’s questions about price do clarify the point that defendants were buying a lot of sugar. Additionally, the record indicates that the trial judge did not interfere with appellant’s cross-examination rights since in each instance the trial judge waited until cross-examination was completed before he asked a question of the witness. Also, appellant's attorney was allowed further cross-examination after the judge’s questioning of Waugh. The fact that testimony elicited by the trial judge may have damaged appellant’s case, does not automatically cast the court in the improper role of surrogate prosecutor. Smith, 561 F.2d at 14. With respect to the curtailment of cross-examination of appellant, the judge has wide discretionary control. See E. Cleary, McCormick on Evidence § 20 (3d ed. 1984); Glosser, 315 U.S. at 83, 62 S.Ct. at 470. “ 'Cross-examination of a witness is a matter of right,’ ” and the cross-examiner must be given “ ‘reasonable latitude’ ” in developing facts tending to show that the testimony in chief was untrue or biased. United States v. Touchstone, 726 F.2d 1116, 1122 (6th Cir.) (quoting Alford v. United States, 282 U.S. 687, 691-92, 51 S.Ct. 218, 219-20, 75 L.Ed. 624 (1931)), reh’g and reh’g en banc denied, 726 F.2d 1116 (1984). However, since the extent of cross-examination is within the trial judge’s sound discretion, the judge may reasonably determine when a subject is exhausted. Touchstone, 726 F.2d at 1122 (citing Alford v. United States, 282 U.S. at 694, 51 S.Ct. at 220). Because the trial judge did not deny cross-examination altogether nor did he arbitrarily curtail cross-examination" }, { "docid": "9608895", "title": "", "text": "for an extension of time, stating at that time that such extension is necessary for the proper presentation of the case.” 6 A.L.R.3d at 608-609. In support of his contention that the time limit of thirty-five minutes was unreasonable, appellant points out that the trial extended over a period of five days, included the testimony of seventeen witnesses, and required a transcript of 518 typewritten pages, and that the same attorney represented both defendants. However, we do not reach this question, because the record does not disclose that counsel requested a longer period of time for argument. The following appears immediately preceding the charge of the court to the jury: “COURT: Now gentlemen, I believe thirty-five minutes for each side to give their closing argument is sufficient. “MR. JONES: Yes, Your Honor. “MR. NYBELL: Yes. “COURT: Gentlemen of the jury, the attorneys will now make what are known as final statements or closing arguments. These statements as in the case of opening statements are not evidence, and are not to be considered by you as evidence in any way. “Whereupon counsel gave their closing arguments.” In view of the fact that counsel did not request additional time or object to the limitation as fixed by the district court, we cannot say that the limitation of thirty-five minutes was an abuse of discretion. 3) Restriction of cross-examination Further appellant contends that the district judge erred in restricting the scope of cross-examination of government witnesses by defense counsel. It is well settled that a full cross-examination of a witness upon the subjects of his examination in chief is an absolute right, and not the mere privilege of the party against whom he is called. The denial of this right is reversible error. Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923; Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624; Spaeth v. United States, 232 F.2d 776 (C.A.6); Sandroff v. United States, 158 F.2d 623 (C.A.6), 174 F.2d 1014, cert. denied, 338 U.S. 947, 70 S.Ct. 485, 94 L.Ed. 584; Lindsey v. United" }, { "docid": "9608896", "title": "", "text": "evidence in any way. “Whereupon counsel gave their closing arguments.” In view of the fact that counsel did not request additional time or object to the limitation as fixed by the district court, we cannot say that the limitation of thirty-five minutes was an abuse of discretion. 3) Restriction of cross-examination Further appellant contends that the district judge erred in restricting the scope of cross-examination of government witnesses by defense counsel. It is well settled that a full cross-examination of a witness upon the subjects of his examination in chief is an absolute right, and not the mere privilege of the party against whom he is called. The denial of this right is reversible error. Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923; Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624; Spaeth v. United States, 232 F.2d 776 (C.A.6); Sandroff v. United States, 158 F.2d 623 (C.A.6), 174 F.2d 1014, cert. denied, 338 U.S. 947, 70 S.Ct. 485, 94 L.Ed. 584; Lindsey v. United States, 77 U.S.App. D.C. 1, 133 F.2d 368; Farkas v. United States, 2 F.2d 644 (C.A.6); Heard v. United States, 255 F. 829 (C.A.8). However, as said by Mr. Justice Stone in Alford v. United States, supra, 282 U.S. at 694, 51 S.Ct. at 220: “The extent of cross-examination with respect to an appropriate subject of inquiry is within the sound discretion of the trial court. It may exercise a reasonable judgment in determining when the subject is exhausted.” To like effect see Poliafico v. United States, 237 F.2d 97, 111 (C.A.6), cert. denied, 352 U.S. 1025, 77 S.Ct. 590, 1 L.Ed.2d 597, rehearing denied, 353 U.S. 931, 77 S.Ct. 718, 1 L.Ed.2d 725. In the present case the record reveals that counsel for appellant conducted extended cross-examination of government witnesses. In three instances the district judge shut off a continuation of extended cross-examination into collateral and immaterial matters. There is no showing that appellants’ counsel was deprived of the right of full cross-examination. Although the shutting off of cross-examination is not a practice to" }, { "docid": "11034209", "title": "", "text": "witness. The test does not rest upon, an erroneous assumption that one who has gone into bankruptcy is not to be believed. The legitimate purpose of the examination was to - determine whether the defendant spoke truthfully in assigning bankruptcy as his real motive for carrying on business in his wife’s name. Having volunteered his explanation, he subjected himself to cross-examination, within the sound discretion of the court, as to the truthfulness of that explanation. The extent of cross-examination with respect to an appropriate subject of inquiry is within the sound discretion of the trial court, which may exercise reasonable judgment in determining when a subject has been exhausted. Alford v. United States, 282 U.S. 687, 694, 51 S.Ct. 218, 75 L.Ed. 624; Banning v. United States, 6 Cir., 130 F.2d 330, 337. In the last cited case, this court said at page 339: “The rule prevails that it is competent on cross-examination to develop all circumstances within the knowledge of a witness which qualify or destroy his direct testimony, although strictly speaking they may constitute new matter and are a part of the cross-examiner’s own case.” Even greater latitude is permissible in the examination of a party; but always within the sound discretion of the trial court. Twachtman v. Connelly, 6 Cir., 106 F.2d 501, 507. The principle has been clearly enunciated in United States v. Mantón, 2 Cir., 107 F.2d 834, 845: “The office of cross-examination is to test the truth of the statements of the witness made on direct; and to this end it may be exerted directly to break down the testimony in chief, to affect the credibility of the witness, or to show intent. The extent to which cross-examination upon collateral matters shall go is a matter peculiarly within the discretion of the trial judge. And his action will not be interfered with unless there has been upon his part a plain abuse of discretion.” For further authority as to the discretion of the trial court, see Hider v. Gelbach, 4 Cir., 135 F.2d 693, 695; Weiss v. United States, 5 Cir., 122 F.2d 675," }, { "docid": "2197176", "title": "", "text": "167 Okl. 371, 29 P.2d 947; Hill v. Hill, 106 Colo. 492, 107 P.2d 597; Baum v. Denn, 187 Or. 401, 211 P.2d 478; Solon v. Lichtenstein, 39 Cal.2d 75, 244 P.2d 907; In re Munsell’s Guardianship, 239 Iowa 307, 31 N.W.2d 360. Error, is predicated upon asserted improper limitation of the cross examination of a certain witness for the Government. Cross examination is a right, not a mere privilege granted or withheld at the will of the court. But the extent of cross examination of a witness in respect to an appropriate subject of inquiry rests largely in the sound judicial discretion of the trial court. The discretion is to be exercised with due regard for the particular facts and circumstances. And the exercise of such discretion will not be disturbed on appeal unless it was clearly abused. Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624; Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680; Rose v. United States, 10 Cir., 128 F.2d 622, certiorari denied 317 U.S. 651, 63 S.Ct. 47, 87 L.Ed. 524; Dickson v. United States, 10 Cir., 182 F.2d 131. Without recapitulating the proceedings which give rise to the contention, it suffices to say that a painstaking examination of the record convinces us that no abuse of discretion occurred in connection with the cross examination of the witness and therefore the contention is without sustainable basis. The remaining contention for consideration is that the action of the court in refusing to grant a new trial on the ground that two witnesses for the Government testified without the oath having been interpreted to them in Spanish constituted reversible error. The contention is argued on the assumed premise that the situation was tantamount in law to the witnesses giving testimony without the oath being administered to them in any form; and, without so deciding, the contention may be considered in that manner. Prior to the introduction of any evidence, the witnesses for the Government and those for appellant were called. Upon being called, they came forward and the" }, { "docid": "6153731", "title": "", "text": "defense. Maj.Op. at - of 189 U.S.App.D.C., at 497 of 584 F.2d. . The court agrees that Ms. Roundtree might have helped. Maj.Op. at-of 189 U.S.App.D.C., at 498 of 584 F.2d. In Herring v. New York, 422 U.S. 853, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975), the Court held that elimination of final argument in bench trials was a denial “of the basic right of the accused to make his defense.” Id. at 859, 95 S.Ct. at 2554, 45 L.Ed.2d at 598. The Court dismissed the contention that the accused had failed to show prejudice, pointing out that “[tjhere is no way to know whether . . . any . appropriate arguments in summation might have affected the ultimate judgment in this case.” Id. at 864, 95 S.Ct. at 2556, 45 L.Ed.2d at 602. See also Smith v. Illinois, 390 U.S. 129, 132-133, 88 S.Ct. 748, 750-751, 19 L.Ed.2d 956, 959-960 (1968), quoting Alford v. United States, 282 U.S. 687, 692-694, 51 S.Ct. 218, 219-220, 75 L.Ed. 624, 628-629 (1931) (denial of right to cross-examine witness on name and place of residence is reversible error even if it would not “necessarily have brought out facts tending to discredit the testimony in chief’); Clancy v. United States, 365 U.S. 312, 316, 81 S.Ct. 645, 648, 5 L.Ed.2d 574, 577 (1961) (Court will not “speculate whether [statements withheld by the Government] could have been utilized effectively” for impeachment). . See note 92 supra. . Supra note 79. . The counsel thus appointed was ultimately the most active defense counsel, although it is unclear whether Glasser originally intended him to be lead counsel. 315 U.S. at 69, 62 S.Ct. at 464, 86 L.Ed. at 698-699. . Id. at 68-70, 62 S.Ct. at 464-465, 86 L.Ed. at 698-699. . Id. at 73-75, 62 S.Ct. at 466-467, 86 L.Ed. at 700-701. . Id. at 75-76, 62 S.Ct. at 467-468, 86 L.Ed. at 701-702. . Some courts have indicated that denial of the right freely to choose one’s counsel is harmless if counsel forced upon the accused performs competently. Williams v. United States, 332 F.2d 36," }, { "docid": "9604333", "title": "", "text": "of members. The limitation placed by the court in this regard was cured of prejudice by the cross-examination of the Chairman which in fact covered the same ground at a different stage of his testimony. Another example may be given. At one point the court stopped cross-examination of the Chairman about his previous testimony as to those present when the witness Thomas, who preceded appellant, was questioned; hut the record shows the Chairman had already been cross-examined quite closely on this exact subject. Some pertinent questions were left altogether unanswered, but the cross-examination as a whole was so full that we find no such abuse by the limitations imposed as warrants reversal. Counsel was accorded and availed himself of the opportunity substantially to exercise his right to cross-examine. Therefore a discretion as to its scope became lodged in the trial court. Glasser v. United States, 1942, 315 U.S. 60, 83, 62 S.Ct. 457, 86 L.Ed. 680; Collazo v. United States, 1952, 90 U.S.App.D.C. 241, 196 F.2d 573, certiorari denied, 343 U.S. 968; 72 S.Ct. 1065; Wright v. United States, 1950, 87 U.S.App.D.C. 67, 183. F.2d 821; Lindsey v. United States, supra. A reasonable latitude was allowed, including a probing of the precise issue of presence and whereabouts of Committee members when a quorum was essential. This issue was sufficiently and fairly tested before the jury through both direct and cross-examintion. III. Error is assigned to the admission in evidence on the second trial of a transcript of the testimony given at the first trial by Congressman Thomas L. Owens, who had since died. At the first trial he testified that he was present when the Committee convened for the afternoon session of March 1, 1947. The admission of the duly authenticated transcript of this testimony was permissible as an exception to the hearsay rule. Mattox v. United States, 1895, 156 U.S. 237 at page 240 et seq., 15 S.Ct. 337, 338, 39 L.Ed. 409. In the case cited the claim was made that in a criminal trial the introduction of such, previous testimony violated the constitutional right of the accused," }, { "docid": "13196343", "title": "", "text": "go is a matter peculiarly within the discretion of the trial judge. And his action will not be interfered with unless there has been upon his part a plain abuse of discretion. 3 Wharton’s Criminal Evidence (11th Ed.) § 1308. See Alford v. United States, 282 U.S. 687, 694, 51 S.Ct. 218, 75 L.Ed. 624. * * * \" See, also, Glasser v. United States, 315 U.S. 60, 83, 62 S.Ct. 457, 86 L.Ed. 680; Lovely v. United States, 4 Cir., 175 F.2d 312, 314, and Hewitt v. United States, 8 Cir., 110 F.2d 1, 8-9. We think that the cross-examination of Davis, in so far as it may have been improper, does not require a reversal of his conviction. The record shows that counsel for the Government acted in good faith and in the belief that the cross-examination was proper. He was in a position to establish that the wife of Davis had been arrested and convicted of prostitution in Minot. It is true, as this Court said in Salerno v. United States, 8 Cir., 61 F.2d 419, 424, that, “When, in the prosecution of a defendant, counsel for the government indulges in unfair and improper cross-examination, the only purpose of which is to degrade the defendant and to prejudice the jury against him, the government, upon appeal, will not ordinarily be heard to say that the methods which were used did not have the effect which they were obviously intended to have.” See, also, Echert v. United States, 8 Cir., 188 F.2d 336, 341-342. In the instant case the cross-examination which-is complained of was not indulged in for the sole purpose of degrading Davis. The fact that the cross-examination of a defendant exceeded the bounds of propriety does not call for reversal unless-it was prejudicial and amounted to a denial of some substantial right of the defendant. Morgan v. United States, 8 Cir., 98 F.2d 473, 476-477 and cases cited. In the instant case, the cross-examination elicited from Davis little, if any, evidence of a damaging character, and the trial court struck out all such evidence and instructed" }, { "docid": "21357520", "title": "", "text": "S.C.A. following section 687. Rule 33, New Trial, 18 U.S.C.A. following section 687. Rule 30, Instructions, 18 U.S.C.A, following section 687. Defense counsel in error views this as a question of the scope of cross examination and of the propriety of inquiring into the dishonesty of the witness to impeach his credibility. Cross examination is a matter of right. Alford v. United States, 1931, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624; United States v. Michenor, 3 Cir., 1945, 152 E.2d 880, 884. The discretion of the court comes into play only after a substantial opportunity is afforded to cross examine. Lindsey v. United States, 1942, 77 U.S.App.D.C. 1, 133 E.2d 368; as to scope see United States v. Oohen, 3 Cir., 1947, 163 F.2d 667 at page 669; Meeks v. United States, 9 Cir., 1947, 163 F.2d 598; Ewing v. United States, 1942, 77 U.S.App.D.C. 14, 135 F.2d 633. Counsel cites Greenbaum v. United States, 9 Cir., 1935, 80 F.2d 113, where cross examination was unduly restricted. We agree but in that case there was no plea against self-incrimination. “The guarantees of the Bill of Rights are the protecting bulwarks against the reach of arbitrary power * * * To pursue the protection of the Bill of Rights * * * we indulge every reasonable presumption against the waiver of fundamental rights.” Glasser v. United States, 1942, 315 U.S. 60, 69, 70, 62 S.Ct. 457, 464, 86 L.Ed. 680. See United States v. Fox, 3 Cir., 1942, 130 F.2d 56; Worthington v. United States, 7 Cir., 1933, 64 F.2d 936, at page 939. While the indictment averred the names of the defendants and other persons to the Grand Jury unknown, there was no evidence as to any other persons , so that the consideration of the jury of' necessity was restricted to the two defendants." }, { "docid": "8686384", "title": "", "text": "been the records of the insurance companies. The attorney for the government urged that it was incumbent upon defendants to have brought in the insurance companies “as part of the defense of this case.” Defendant’s attorneys asserted that they had been taken by surprise. The trial judge disagreed with them. As far as the record shows, appellant failed, after the incident, to call as witnesses the government agents who had made the investigations at the offices of the insurance companies; but introduced certain insurance company officials with the result that some of the payments were disclosed, but many records, according to the officials, had been destroyed after three years, or were at the home offices and not available for the trial, or such records had not been kept in complete form. It would seem that the trial court acted within the limits of its discretion in denying appellant the right to cross-examine Philpott concerning records which he, himself, had not made: and, moreover, appellant, in preparation of his defense, should not have relied upon eliciting by cross-examination facts which he deemed important to be proved but should have made timely preparation to present his affirmative proof. Cross-examination is, of course, of highest importance in an effort to elicit truth, but its limitation in the circumstances of each case rests largely within the sound discretion of the trial court. Glasser v. United States, 315 U.S. 60, 83, 62 S.Ct. 457, 86 L.Ed. 680; Banning v. United States, 6 Cir., 130 F.2d 330, 337, certiorari denied 317 U.S. 695, 63 S.Ct. 434, 87 L.Ed. 556. See also Bell v. United States, 4 Cir., 185 F.2d 302, 310, 311; United States v. Hornstein, 7 Cir., 176 F.2d 217, 220; Chevillard v. United States, 9 Cir., 155 F.2d 929; United States v. Stoehr, 3 Cir., 196 F.2d 276, 280, 33 A.L.R.2d 836, certiorari denied 344 U.S. 826, 73 S.Ct. 28, 97 L.Ed. 643. Appellant insists that the trial court committed reversible error in saying to the United States Attorney in the presence and hearing of the jury: “I think your case can be made" }, { "docid": "16773516", "title": "", "text": "amount to a denial of the constitutional right to confront the witness. The Sixth Amendment to the Constitution of the United States guarantees every accused the right to confront the witnesses against him. That right includes the right to cross-examine. Davis v. Alaska, 415 U.S. 308, 315, 94 S.Ct. 1105, 1109, 39 L.Ed.2d 347 (1974). The scope and extent of cross-examination is within the sound discretion of the trial judge. Alford v. United States, 282 U.S. 687, 694, 51 S.Ct. 218, 220, 75 L.Ed. 624 (1931); United States v. Contreras, 602 F.2d 1237, 1239 (5th Cir.), cert. denied, 444 U.S. 971, 100 S.Ct. 466, 62 L.Ed.2d 387 (1979); United States v. Holman, 680 F.2d 1340, 1350 (11th Cir.1982). Cross-examination of a government “star” witness is important, United States v. Summers, 598 F.2d 450, 460 (5th Cir.1979), and a presumption favors free cross-examination on possible bias, motive, ability to perceive and remember, and general character for truthfulness, Greene v. Wainwright, 634 F.2d 272, 275 (5th Cir.1981), United States v. Williams, 592 F.2d 1277, 1281 (5th Cir.1979), United States v. Barrentine, 591 F.2d 1069, 1081 (5th Cir.), cert. denied, 444 U.S. 990, 100 S.Ct. 521, 62 L.Ed.2d 419 (1979), but cross-examination must be relevant. Greene v. Wainwright, supra; United States v. Love, 599 F.2d 107, 108 (5th Cir.), cert. denied, 444 U.S. 944, 100 S.Ct. 302, 62 L.Ed.2d 312 (1979). The district court here committed no abuse of discretion. It allowed cross-examination of Yearout concerning his “psychiatric condition or medical condition” from as long as five years before the time of the critical events about which he testified on direct and up to the day of his testimony. The court limited the scope of cross-examination to exclude only events deemed so remote in time as to be irrelevant to Year-out’s credibility or ability to remember. Yearout was available for extensive cross-examination by questions on his psychiatric condition relevant to his ability to observe and remember during all the years mentioned in his testimony (1979-1982), and for the three previous years. That was more than adequate to place before the jury Yearout’s mental" }, { "docid": "17624816", "title": "", "text": "to the question as immaterial and appellant complains of it as an undue curtailment of the right of cross-examination touching the credibility of the witness. Undoubtedly the tenor of the question went to the credibility of the witness and of course it was permissible for the defense to develop any facts bearing upon his motives to falsify his testimony or to weaken or impair its probative value in the minds of the jury. If impeaching testimony affecting credibility is to be confined to cross-examination in the manner we have indicated, cross-examination of the witness on matters pertinent to his credibility ought to be given the “largest possible scope.” See Wigmore, op. cit., § 944; McCormick, Evidence, §§ 19-20, 22 (1954); United States v. Sweeney, supra. But in the last analysis the trial court is the governor of the trial with the duty to assure its proper conduct and the limits of cross-examination necessarily lie within its discretion. And we should not overrule the exercise of that discretion unless we are convinced that the ruling of the court was prejudicial. Glasser v. United States, 315 U. S. 60, 62 S.Ct. 457, 86 L.Ed. 680; Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624; District of Columbia v. Clawans, 300 U.S. 617, 57 S.Ct. 660, 81 L.Ed. 843; 58 Am.Jur., Witnesses, § 621. On the whole record we cannot say that the ruling of the court amounted to prejudicial curtailment of cross-examination of the witness. Judgment is affirmed." }, { "docid": "18433008", "title": "", "text": "a witness upon collateral matter. Glasser v. United States, 315 U.S. 60, 83, 62 S.Ct. 457, 86 L.Ed. 680; Davis v. United States, 8 Cir., 229 F.2d 181, 185; United States v. Manton, 2 Cir., 107 F.2d 834, 845. In the Manton case, Justice Sutherland, sitting as a circuit judge, states (107 F.2d at page 845): “-* * * The extent to which cross-examination upon collateral matters shall go is a matter peculiarly within the discretion of the trial judge. And his action will not be interfered with unless there has been upon his part a plain abuse of discretion. 3 Wharton’s Criminal Evidence (11th Ed.) § 1308. See Alford v. United States, 282 U.S. 687, 694, 51 S.Ct. 218, 75 L.Ed. 624. * * * ” McNealy’s mode of life and his method of operating as undercover agent during the period prior to his negotiations with the defendant Mays have no direct or material bearing upon the issue of whether Mays aided and abetted in the sale of the narcotics involved in this case. The court permitted some cross examination as to McNealy’s method of operation. We are satisfied that the court did not abuse its discretion in sustaining objections to further cross examination as to McNealy’s past operations. The judgment appealed from is affirmed." }, { "docid": "13196342", "title": "", "text": "is to be noted that Davis, on his direct examination, first injected the question of arrests into the trial. The questions about the convictions of the wife of Davis in the police court of Minot stand in a somewhat different situation, since they had some tendency to show what kind of a place it was probable that Davis and his wife were maintaining. It may be doubtful whether the questions about convictions constituted improper cross-examination. A trial court has a rather broad discretion with respect to cross-examination of a witness as to collateral matters. Mr. Justice Sutherland, sitting as a Circuit Justice in the case of United States v. Manton, 2 Cir., 107 F.2d 834, 845, said: “ * -x- * The office of cross-examination is to test the truth of the statements of the witness made on direct; and to this end it may be exerted directly to break down the testimony in chief, to affect the credibility of the witness, or to show intent. The extent to which cross-examination upon collateral matters shall go is a matter peculiarly within the discretion of the trial judge. And his action will not be interfered with unless there has been upon his part a plain abuse of discretion. 3 Wharton’s Criminal Evidence (11th Ed.) § 1308. See Alford v. United States, 282 U.S. 687, 694, 51 S.Ct. 218, 75 L.Ed. 624. * * * \" See, also, Glasser v. United States, 315 U.S. 60, 83, 62 S.Ct. 457, 86 L.Ed. 680; Lovely v. United States, 4 Cir., 175 F.2d 312, 314, and Hewitt v. United States, 8 Cir., 110 F.2d 1, 8-9. We think that the cross-examination of Davis, in so far as it may have been improper, does not require a reversal of his conviction. The record shows that counsel for the Government acted in good faith and in the belief that the cross-examination was proper. He was in a position to establish that the wife of Davis had been arrested and convicted of prostitution in Minot. It is true, as this Court said in Salerno v. United States, 8" }, { "docid": "1354754", "title": "", "text": "the improper role of surrogate prosecutor. Smith, 561 F.2d at 14. With respect to the curtailment of cross-examination of appellant, the judge has wide discretionary control. See E. Cleary, McCormick on Evidence § 20 (3d ed. 1984); Glosser, 315 U.S. at 83, 62 S.Ct. at 470. “ 'Cross-examination of a witness is a matter of right,’ ” and the cross-examiner must be given “ ‘reasonable latitude’ ” in developing facts tending to show that the testimony in chief was untrue or biased. United States v. Touchstone, 726 F.2d 1116, 1122 (6th Cir.) (quoting Alford v. United States, 282 U.S. 687, 691-92, 51 S.Ct. 218, 219-20, 75 L.Ed. 624 (1931)), reh’g and reh’g en banc denied, 726 F.2d 1116 (1984). However, since the extent of cross-examination is within the trial judge’s sound discretion, the judge may reasonably determine when a subject is exhausted. Touchstone, 726 F.2d at 1122 (citing Alford v. United States, 282 U.S. at 694, 51 S.Ct. at 220). Because the trial judge did not deny cross-examination altogether nor did he arbitrarily curtail cross-examination upon a proper subject, but instead merely prevented appellant from belaboring his point, the trial judge did not abuse his discretion. The final concern on this issue is the trial judge’s comment to co-defendant Cox that “you moved it in in one piece” and “they took it out in one piece.” This comment was probably unnecessary and imprudent, but it does not constitute plain error which requires reversal. Construed in the light most favorable to the government, see Glasser, 315 U.S. at 80, 62 S.Ct. at 469, this comment is merely an observation by the trial judge. The conclusion that the trial judge’s questions and comments do not constitute plain error is strengthened by his instructions to the jury: Also, during the course of a trial I have occasionally made comments to the lawyers, asked questions of a witness, or maybe admonished a witness concerning the manner in which he should respond to the questions of counsel. Do not assume from anything I may have said that I have any opinion concerning any of the" }, { "docid": "8686385", "title": "", "text": "by cross-examination facts which he deemed important to be proved but should have made timely preparation to present his affirmative proof. Cross-examination is, of course, of highest importance in an effort to elicit truth, but its limitation in the circumstances of each case rests largely within the sound discretion of the trial court. Glasser v. United States, 315 U.S. 60, 83, 62 S.Ct. 457, 86 L.Ed. 680; Banning v. United States, 6 Cir., 130 F.2d 330, 337, certiorari denied 317 U.S. 695, 63 S.Ct. 434, 87 L.Ed. 556. See also Bell v. United States, 4 Cir., 185 F.2d 302, 310, 311; United States v. Hornstein, 7 Cir., 176 F.2d 217, 220; Chevillard v. United States, 9 Cir., 155 F.2d 929; United States v. Stoehr, 3 Cir., 196 F.2d 276, 280, 33 A.L.R.2d 836, certiorari denied 344 U.S. 826, 73 S.Ct. 28, 97 L.Ed. 643. Appellant insists that the trial court committed reversible error in saying to the United States Attorney in the presence and hearing of the jury: “I think your case can be made without calling all those witnesses.” At the time of the judge’s comment, the government had introduced some seventy former patients of Dr. Gariepy who had testified that they had made payments to him for professional services. The judge stated that it would be a waste of both his and the jury’s time to call very many more witnesses testifying along the same line and that he would place a limitation upon such testimony. In the context, the judge’s remark would not tend to create the impression upon the jury that he considered the proof already adduced sufficient to establish the guilt of the accused. Defendant’s attorney made so much ado about it, however, that the judge, later on in the trial, thus addressed the jury: “Ladies and Gentlemen of the Jury, counsel seem to have thought that the court had made a mistake by indicating that I didn’t think that maybe it was necessary to call all the witnesses of this type. That is true, and I may find it necessary to place a limitation" }, { "docid": "2197175", "title": "", "text": "be made in confidence of the relationship and under circumstances from which it may reasonably be presumed that it will remain in confidence. The protection does not extend to a communication which cannot properly be termed the subject of a confidential disclosure. And a statement or communication made by a client to his attorney with the intent and purpose that it be communicated to others is not.privileged. In directing his attorney to propound the questions to the witness, it was the intent and purpose of appellant that the substance of such directions would be immediately repeated to the witness in the form of questions. It is manifest that in such circumstances, the directing of the attorney to ask the questions did not constitute a confidential communication within the purview of the general protective rule. Himmelfarb v. United States, 9 Cir., 175 F.2d 924, certiorari denied 338 U.S. 860, 70 S.Ct. 103, 94 L.Ed. 527; Rousseau v. Bleau, 131 N.Y. 177, 30 N.E. 52;. Spencer v. Burns, 413 Ill. 240, 108 N.E.2d 413; Howsley v. Clark, 167 Okl. 371, 29 P.2d 947; Hill v. Hill, 106 Colo. 492, 107 P.2d 597; Baum v. Denn, 187 Or. 401, 211 P.2d 478; Solon v. Lichtenstein, 39 Cal.2d 75, 244 P.2d 907; In re Munsell’s Guardianship, 239 Iowa 307, 31 N.W.2d 360. Error, is predicated upon asserted improper limitation of the cross examination of a certain witness for the Government. Cross examination is a right, not a mere privilege granted or withheld at the will of the court. But the extent of cross examination of a witness in respect to an appropriate subject of inquiry rests largely in the sound judicial discretion of the trial court. The discretion is to be exercised with due regard for the particular facts and circumstances. And the exercise of such discretion will not be disturbed on appeal unless it was clearly abused. Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624; Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680; Rose v. United States, 10 Cir., 128 F.2d 622, certiorari" }, { "docid": "11519526", "title": "", "text": "Hobart employee and Hobart could not lead him. Hobart views this ruling as a denial of its Sixth Amendment right to confront a witness. As authority for this contention, Hobart cites Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965). The Douglas case established that “a primary interest secured by the Confrontation Clause of the Sixth Amendment is the right of cross-examination.” (p. 418, 85 S.Ct. p. 1074). Therefore, we must decide whether the trial judge’s ruling in the instant case denied the defendant an effective opportunity for cross-examination. The extent of cross-examination and the restriction of the use of leading questions rest in the souiid discretion of the trial court. Glasser v. United States, 315 U.S. 60, 83, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Durham, 319 F.2d 590 (4th Cir. 1963); Mitchell v. United States, 213 F.2d 951, 956 (9th Cir. 1954), cert. denied, 348 U.S. 912, 75 S.Ct. 290, 99 L.Ed. 715 (1955); Stahl v. United States, 144 F.2d 909 (8th Cir. 1944). The exercise of the trial court’s discretion will not be reversed unless there is a clear abuse of discretion and prejudice to the defendant. In the instant case, we find neither an abuse of discretion nor prejudice to the defendant, much less the denial of a constitutional right. The testimony in question related to Burlis’s function in quoting prices of Hobart products to dealers. On direct examination, Burlis, in response to a leading question posed by the Government, testified that he made quotations guaranteeing prices for a certain period of time. On cross-examination, the Hobart attorney explored this matter further and it was on this subject that the controverted ruling was made. Nevertheless, Hobart was able to ask the witness several questions about his function in quoting prices which the witness answered, and it does not appear that his testimony was in any way incomplete on the subject. Hobart did not make an offer of proof at the trial and does not indicate on appeal why the denial of the right to ask leading questions prevented it" } ]

[ { "docid": "10346595", "title": "", "text": "term in Rhode Island, or sent to the ACI awaiting trial, is sentenced to a regime in which he will be forced to live in a state of constant fear of violence, in imminent danger to his bodily integrity and physical and psychological well-being, and without opportunity to seek a more promising future. 2. The evidence is overwhelming that the totality of conditions of confinement in Maximum and Medium do not provide the “tolerable living environment”, Rhem v. Malcolm, 371 F.Supp. 594, 627 (S.D.N.Y.), aff’d 507 F.2d 333 (2d Cir. 1974), that the Eighth and Fourteenth Amendments require for state prison inmates. Compare Williams v. Edwards, 547 F.2d 1206, 1211 (5th Cir. 1974); Holt v. Sarver, 442 F.2d 304, 308 (8th Cir. 1971); Mitchell v. Untreiner, 421 F.Supp. 886, 896 (N.D.Fla.1976); Pugh v. Locke, 406 F.Supp. at 329; Hamilton v. Schiro, 338 F.Supp. 1016, 1019 (E.D.La.1970). The lack of sanitation, lighting, heating, and ventilation, and the noise, idleness, fear and violence, and the absence or inadequacy of programs of classification, education, physical exercise, vocational training or other constructive activity create a total environment where debilitation is inevitable, and which is unfit for human habitation and shocking to the conscience of a reasonably civilized person. Pugh v. Locke, 406 F.Supp. at 329; Holt v. Sarver, 309 F.Supp. 362, 372-73 (E.D.Ark.1970), aff’d 442 F.2d 304 (8th Cir. 1972). See Trop v. Dulles, 356 U.S. at 100-101, 78 S.Ct. 590. See also Williams v. Edwards, 547 F.2d at 1214 (lack of sanitation); Miller v. Carson, 401 F.Supp. 835, 900 (M.D.Fla.1975) (exercise); Battle v. Anderson, 374 F.Supp. 402, 424 (E.D.Okl.1974) (same); Rhem v. Malcolm, 371 F.Supp. 594, 626-27 (S.D.N.Y.), aff’d 507 F.2d 333 (2d Cir. 1974) (same); Rozecki v. Gaughan, 459 F.2d 6, 8 (1st Cir. 1972) (heat); Hamilton v. Landrieu, 351 F.Supp. 549, 554-55 (E.D.La.1972) (ventilation, light); Pugh v. Locke, 406 F.Supp. at 330 (lack of constructive programs). These conditions of confinement serve no legitimate correctional purpose, Pell v. Procunier, 417 U.S. at 822-23, 94 S.Ct. 2800; see O’Brien v. Moriarty, 489 F.2d 941 at 944, and are so far beyond the pale" } ]

[ { "docid": "7078344", "title": "", "text": "lighting, heating, noise levels, and air circulation were all satisfactory. In contrast, many of the plaintiffs are required to remain in windowless cells of 48 square feet 23 V2 hours a day, and endure conditions which, as explained below, are violative of the federal and state prohibition against cruel and unusual punishment. Thus, whereas the institution in Rhodes was described as a “top-flight, first-class facility” (Rhodes, supra, 452 U.S. at 341, 101 S.Ct. at 2395, 69 L.Ed.2d at 65, defendants’ institutions are exactly the opposite. Since Rhodes, it has been suggested that the practice of double-celling violates the Eighth Amendment. See Heitman v. Gabriel (W.D.Mo.1981) 524 F.Supp. 622. This Court agrees with defendants Rush-en and Sumner that the practice of doublecelling prisoners in administrative segregation under conditions existing in the units challenged here is “inhuman” and concludes that it cannot withstand constitutional scrutiny. B. Clothing, Bedding, and Laundry Federal courts acknowledge the necessity for providing clean clothing and bedding on a regular basis. Pugh v. Locke (M.D.Ala.1976) 406 F.Supp. 318, 334, aff’d, in part, (5th Cir.1977) 559 F.2d 283, rev’d. in part on other grounds, (1978) 438 U.S. 781, 98 S.Ct. 3057, 56 L.Ed.2d 1114 (per curiam); Ahrens v. Thomas (W.D.Mo.1977) 434 F.Supp. 873, modif. in part, (8th Cir.1978) 570 F.2d 286. This Court concludes that the failure to provide inmates with regular laundry service poses a serious constitutional question. It also violates defendants’ own regulations, which require that laundry items be issued and exchanged for segregated prisoners no less often than is provided for general population prisoners. Cal. Admin.Code, tit. 15, § 3343(g). C. Lighting, Heating, Ventilation, and Plumbing. Inadequate lighting, heating, ventilation, and plumbing are all conditions subject to Eighth Amendment review. Hoptowit v. Ray, supra, 682 F.2d at 1256; Ramos v. Lamm (10th Cir.1980) 639 F.2d 559, 568, cert. denied, (1981) 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 239; Palmigiano v. Garrahy, supra, 443 F.Supp. at 961, aff’d, (1st Cir.1980) 616 F.2d 598, cert. denied, (1980) 449 U.S. 839, 101 S.Ct. 115, 66 L.Ed.2d 45; Jordan v. Fitzharris (N.D.Cal.1966) 257 F.Supp. 674, 683-84. The debilitating psychological" }, { "docid": "9614443", "title": "", "text": "fear and violence, absence or inadequacy of programs of classification, education, recreation, and vocational training). See also Villanueva v. George, 659 F.2d 851, 854 (8th Cir.1981) (en banc) (pretrial detainee) (“[Our decision] is ... based upon the totality of the circumstances .... ”); Madyun v. Thompson, 657 F.2d 868, 874 (7th Cir.1981) (“We are aware that the essence of an Eighth Amendment violation consists of the totality of the conditions of confinement.” (emphasis added)); Williams v. Edwards, supra, 547 F.2d at 1211 (“Totality of conditions violate Eighth Amendment.\" (emphasis in original)); Bono v. Saxbe, 527 F.Supp. 1187, 1195 (S.D.Ill.1981); Heitman v. Gabriel, 524 F.Supp. 622, 625 (W.D.Mo.1981). . Other misstatements I will merely leave to the judgment of the reader. . See also Meachum v. Fano, 427 U.S. 215, 229, 96 S.Ct. 2532, 2540, 49 L.Ed.2d 451 (1976) (“[F]ederal courts do not sit to supervise state prisons .... ”); Procunier v. Martinez, 416 U.S. 396, 404-05, 94 S.Ct. 1800, 1807, 40 L.Ed.2d 224 (1974) (“[T]he problems of prisons in America are complex and intractable, and ... they are not readily susceptible of resolution by decree.”); Sweet v. South Carolina Dept. of Corrections, 529 F.2d 854, 859 (4th Cir.1975) (en banc) (“Because of this want of judicial expertise, ‘prison officials must be accorded latitude in the administration of prison affairs,’ [citing cases] and their judgments are entitled to ‘great weight’ [citing cases].”). . That there were 14 assaults per year indicates that slightly less than 4 percent of the inmate population at Maximum were assaulted. By comparison, in Miller v. Carson, 563 F.2d 741, 745 (5th Cir.1977), some 27 percent of the inmates were assaulted in the year in question. If the assault record at Lorton for the last half of 1980 were assumed to continue at the same rate as during the first half of the year, the average per year would be increased to 15 (14.875) per year for the eight year period. An average assault figure over the period represents the most reliable approach to evaluating conditions, since appellees are seeking damages over the period; damages could not" }, { "docid": "3387588", "title": "", "text": "that constitutional provision. Appellants’ argument, which the majority largely endorses, proceeds on several levels. Appellants argue initially that, although there may have been proof of particular deprivations, each such denial does not, by itself, amount to cruel and unusual punishment, and that it was error for the court to aggregate the various problems to measure them in combination against the Eighth Amendment standard. The majority appears at times to agree with that contention, Maj.Op. at 834, 838, 842-43, while at other times it endorses a “totality of the circumstances” approach. Maj.Op. at 839. It is well established that a court is not reduced to weighing each of the institutional practices and conditions in isolation, but that, in order to determine whether serious deprivations of human needs exist, it may examine the totality of the conditions of confinement. Alberti v. Klevenhagen, 790 F.2d 1220, 1224 (5th Cir.1986); French v. Owens, supra, 111 F.2d at 1252; Ruiz v. Estelle, 679 F.2d 1115, 1139 (5th Cir.1982), modified on other grounds, 688 F.2d 266, cert. denied, 460 U.S. 1042, 103 S.Ct. 1438, 75 L.Ed.2d 795 (1983); Madyun v. Thompson, 657 F.2d 868, 874 (7th Cir.1981); Villanueva v. George, 659 F.2d 851, 854 (8th Cir.1981) (en banc). Indeed, the Court said in Rhodes, 452 U.S. at 347,101 S.Ct. at 2399, that prison conditions “alone or in combination, may deprive inmates of the minimal civilized measure of life’s necessities” (emphasis added). More seriously, the majority appears to read Rhodes as concluding that only the most critical denials of essential food, medical care, sanitation, and physical safety constitute the kind of deprivations of essen tial human needs that are protected by the Eighth Amendment. Maj.Op. at 836. As indicated above, the record in this case demonstrates at least some such deprivations. Moreover, far from establishing a narrow, compartmentalized category of unlawful correctional practices, the Court said in Rhodes that the words “cruel and unusual” should be interpreted “in a flexible and dynamic manner;” that no static test exists to determine whether conditions of confinement are cruel and unusual, citing Gregg v. Georgia, 428 U.S. 153, 171, 96" }, { "docid": "1788397", "title": "", "text": "with adequate food, clothing, shelter, sanitation, medical care, and personal safety.” See Hoptowit at 1246. In the present case there has been no challenge to the adequacy of the food. I have earlier dealt with the personal safety and medical care issues in this case. The present issue is the adequacy of “clothing, shelter, and sanitation” at the Umatilla County Jail, and whether minimum conditions have been met. 1. Adequate Shelter At relevant times in the past, the jail has been unfit for human habitation. Some of the problems with the facility have been ameliorated by the actions of Sheriff Carey both before and after the filing of this suit. However, major problems remain. One major problem which involves both “shelter” and “sanitation” has been the overflow of sewage into the cells. This constitutes a major threat to health and constitutes cruel and unusual punishment, proscribed by the Eighth Amendment, and punishment proscribed by the Fourteenth Amendment, to sentenced and unsentenced inmates respectively. Functioning plumbing, including toilets, sinks and showers, is a basic necessity of civilized life. The provision of adequate means of hygiene, and the sanitary disposal of bodily wastes so that the wastes do not contaminate the cells, are constitutionally required. Ramos v. Lamm, 639 F.2d 559, 569 (10th Cir.1980); cert. denied, 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 239 (1981); Gates v. Collier, 501 F.2d 1291, 1300-1302 (5th Cir.1974). This is so because the facility’s obligation to provide basic minima of shelter and sanitation will otherwise not be satisfied. Id.; Dimarzo v. Cahill, 575 F.2d 15, 16-19 (1st Cir.1978), cert. denied, 439 U.S. 927, 99 S.Ct. 312, 58 L.Ed.2d 320 (1978); see also Johnson v. Levine, 450 F.Supp. 648, 656 (D.Md.1978), affirmed, 588 F.2d 1378 (4th Cir.1978) (en banc); Valentine v. Englehardt, 474 F.Supp. 294, 296-297 (D.N.J.1979); Pugh v. Locke, 406 F.Supp. 318, 323-324 (M.D.Ala. 1976). I find that the conditions which I have described impose “cruel and unusual” punishment upon convicted persons and impose “punishment” upon pre-trial detainees. Another basic minimum of “adequate shelter” is a means for heating the cells in winter, and cooling" }, { "docid": "1788400", "title": "", "text": "activities of life may be conducted. Hoptowit, supra, at 1256; Bono v. Saxbe, 620 F.2d 609, 617 and n. 12 (7th Cir.1980); Ramos v. Lamm, 485 F.Supp. 122, 155 (D.Colo.1979), affirmed in relevant part, 639 F.2d 559 (10th Cir.1980), cert. denied, 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 239 (1981); Jones v. Wittenberg, 323 F.Supp. 93, 95, 99 (N.D.Ohio 1971), aff’d sub. nom. Jones v. Metzger, 456 F.2d 854 (6th Cir.1972); Dawson v. Kendrick, 527 F.Supp. 1252, 1288 (S.D.W.Va.1981). The discussion in Dawson of this issue is especially helpful, and I adopt the analysis of Judge Copenhaver in that opinion in holding that the denial of adequate light in the Umatilla County Jail constituted a violation of the Eighth Amendment. 2. Adequate Sanitation I have already discussed the overflow of sewage in the cells as a problem within the context of adequate shelter. It is also pertinent to the issue of adequate sanitation. That situation posed a threat to the well-being of inmates through the risk of disease. I need not repeat my analysis further here. In addition, the general level of sanitation at the jail, aside from the sewage problem, has been inadequate. Grand Jury reports and the testimony of witnesses has indicated that substandard sanitation has endangered inmates’ health and caused them to contract skin diseases. Such a state of affairs violates the Eighth Amendment. Hoptowit, supra, at 1246, 1256; Jones v. Wittenberg, supra, at 99, aff’d sub. nom. Jones v. Metzger, supra, at 854, 855 (6th Cir.1972). 3. Adequate Clothing The provision of clothing and bedding at the jail has not been adequate. These conditions have been earlier described, but it should be mentioned that inmates wore clothing up to 14 days at a time without change, due to the inadequacy of the laundry facilities. This compounded the problem described relative to the lack of blankets, sheets and clean mattresses. This matter has improved greatly since the filing of the action but, at that time, inmates' rights were violated by denying them adequate clothing. Conditions similar to those which prevailed at the Umatilla County Jail have" }, { "docid": "9614441", "title": "", "text": "trial does not add up to a constitutional violation; to hold that it does would trivialize constitutional violations. My colleague’s reliance upon unreported assaults, and the assaults he assumes were committed after the period covered by the lawsuit, constitutes a tacit admission that the evidence of assaults in the record is insufficient to support the verdict. However, as stated above, for reasons set forth in Judge Edwards’ opinion for the court, I concur in vacating the judgment and remanding the case for a new trial. As he indicates in his separate statement, Judge Robb shares the doubts expressed above that plaintiffs made a case in the District Court, but acquiesces in Judge Edwards’ opinion for the Court. . Lorton Reformatory is administered by the city officials and employees of the District of Columbia, which operates under a home rule charter. . The Eighth Amendment prohibits the infliction of “cruel and unusual punishment.” . Memorandum of Points and Authorities in Support of Motion of Defendants for Judgment Notwithstanding the Verdict or, in the Alternative, for a New Trial and Rehearing or, in the Alternative, for Remittitur; R. 187 at 8. The statement in the text describes the plaintiffs who would be the beneficiaries of the monetary award provided for by the jury verdict and the judgment of the District Court. . “Creepers” and “crawlers” are inmates who slither across dormitory floors to attack sleeping “enemies” in other parts of the dormitory. . See, e.g., Ruiz v. Estelle, 679 F.2d 1115 (5th Cir.), amended in part and vacated in part, 688 F.2d 266 (5th Cir.1982) (overcrowding, under-staffing, classification, sanitation, medical care, physical safety, isolation and segregation, rehabilitation); Ramos v. Lamm, 639 F.2d 559 (10th Cir.1980) (shelter, sanitation, food, overcrowding, inmate safety, understaffing, health and psychiatric care), cert. denied, 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 239 (1981); Williams v. Edwards, 547 F.2d 1206 (5th Cir.1977) (violence (270 stabbings, 20 deaths in three years), overcrowding, understaffing, fire and safety hazards, health care, sanitation); Palmigiano v. Garrahy, 443 F.Supp. 956 (D.R.I.1977), remanded, 599 F.2d 17 (1st Cir.1979) (sanitation, lights, heating, ventilation, noise, idleness," }, { "docid": "11528795", "title": "", "text": "numerous lower court decisions. To the extent that those cases are not inconsistent with Rhodes, they retain their vitality and will be looked to for guidance in the present case. The Eighth Amendment clearly requires states to furnish its inmates with “reasonably adequate food, clothing, shelter,' sanitation, medical care, and personal safety.” Newman v. Alabama, 559 F.2d 283, 291 (5th Cir.1977). Those areas are generally considered as the “core” areas entitled to Eighth Amendment protections. They are the basic necessities of civilized life, and are, during lawful incarceration for conviction of a crime, wholly controlled by prison officials. Inmates must necessarily rely upon prison officials and staff to ensure that those basic necessities are met. A corollary to the state’s obligation to provide inmates with constitutionally adequate shelter is the requirement of minimally adequate living space that includes “reasonably adequate ventilation, sanitation, bedding, hygienic materials, and utilities (i.e., hot and cold water, light, heat, plumbing).” Ramos v. Lamm, 639 F.2d 559, 568 (10th Cir.1980), cert. denied, 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 239 (1981). Other courts have held that adequate shelter must include adequate provisions for fire safety. Leeds v. Watson, 630 F.2d 674, 675-76 (9th Cir.1980); Ruiz v. Estelle, 503 F.Supp. 1265, 1383 (S.D.Tex.1980), aff’d in part, rev’d in part and remanded, 679 F.2d 1115 (1982); Gates v. Collier, 349 F.Supp. 881, 888 (N.D.Miss.1972), aff’d, 501 F.2d 1291 (5th Cir.1974). On the other hand, constitutionally adequate housing is not denied simply by uncomfortable temperatures inside cells, unless it is shown that the situation endan gers inmates’ health. Smith v. Sullivan, 553 F.2d 373, 381 (5th Cir.1977). Similarly, high levels of noise are not, without more, violations of the Eighth Amendment. Hutchings v. Corum, 501 F.Supp. 1276, 1293 (W.D.Mo.1980). As noted by the Supreme Court in Rhodes, the Constitution simply does not require complete comfort and does not prohibit double celling per se. 452 U.S. at 349, 101 S.Ct. at 2400, 69 L.Ed.2d at 70. The Eighth Amendment, as noted, does require the maintenance of reasonably sanitary conditions in prisons, especially in the housing and food preparation and" }, { "docid": "1788399", "title": "", "text": "or ventilating them in summer. A failure to maintain minimum requirements for human habitation violates the Eighth Amendment. Rozecki v. Gaughan, 459 F.2d 6, 8 (1st Cir. 1972); Kirby v. Blackledge, 530 F.2d 583, 586-587 (4th Cir.1976); Martinez v. Chavez, 574 F.2d 1043, 1046 (10th Cir.1978); Gates v. Collier, supra, at 1304-1305 (5th Cir. 1974). The conditions in the jail in this respect violated the Eighth Amendment at the time of the filing of the complaint. Obviously, the lack of ventilation has also exacerbated the offensive odors within the facility at relevant times in the past. Another basic minimum of “adequate shelter” is the provision of adequate natural or artificial light in the cells. Prior to the removal of the paint from the windows, the cells had been literally, “as dark as a dungeon.” Inmates were unable to read, even during daylight hours, and suffered eye strain when they attempted to do so. These conditions violated the Eighth Amendment, which has been recognized as requiring a minimum level of illumination in jails so that normal activities of life may be conducted. Hoptowit, supra, at 1256; Bono v. Saxbe, 620 F.2d 609, 617 and n. 12 (7th Cir.1980); Ramos v. Lamm, 485 F.Supp. 122, 155 (D.Colo.1979), affirmed in relevant part, 639 F.2d 559 (10th Cir.1980), cert. denied, 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 239 (1981); Jones v. Wittenberg, 323 F.Supp. 93, 95, 99 (N.D.Ohio 1971), aff’d sub. nom. Jones v. Metzger, 456 F.2d 854 (6th Cir.1972); Dawson v. Kendrick, 527 F.Supp. 1252, 1288 (S.D.W.Va.1981). The discussion in Dawson of this issue is especially helpful, and I adopt the analysis of Judge Copenhaver in that opinion in holding that the denial of adequate light in the Umatilla County Jail constituted a violation of the Eighth Amendment. 2. Adequate Sanitation I have already discussed the overflow of sewage in the cells as a problem within the context of adequate shelter. It is also pertinent to the issue of adequate sanitation. That situation posed a threat to the well-being of inmates through the risk of disease. I need not repeat my analysis" }, { "docid": "7390750", "title": "", "text": "with the administration of state prisons. See Procunier v. Martinez, 416 U.S. 396, 404, 94 S.Ct. 1800, 1807, 40 L.Ed.2d 224 (1974). However, increasing pressure for prison reform has resulted in broad based judicial intervention in challenges to the constitutionality of entire prison systems. See, e.g., Cody v. Hillard, 599 F.Supp. 1025 (D.S.D. 1984); Dawson v. Kendrick, 527 F.Supp. 1252 (S.W.Va.1981); Pugh v. Locke, 406 F.Supp. 318 (M.D.Ala.1976), affd sub nom. Newman v. Alabama, 559 F.2d 283 (5th Cir.1977), rev’d in part, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114, cert, denied, 438 U.S. 915, 98 S.Ct. 3144, 57 L.Ed.2d 1160 (1978). Federal courts no longer limit the prohibition against cruel and unusual punishment to specific acts directed at specific individuals; rather, it is applicable to the general conditions of confinement prevailing in state prisons. E.g., Ramos v. Lamm, 639 F.2d 559 (10th Cir.1980), cert, denied, 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 239 (1981); Williams v. Edwards, 547 F.2d 1206 (5th Cir.1977); Gates v. Collier, 501 F.2d 1291 (5th Cir.1974); Ruiz v. Estelle, 503 F.Supp. 1265 (S.D.Tex.1980); Palmigiano v. Garrahy, 443 F.Supp. 956 (D.R.I.1977), affd, 616 F.2d 598 (1 Cir.), cert, denied, 449 U.S. 839,101 S.Ct. 115, 66 L.Ed.2d 45 (1980). In cases challenging overall prison conditions and practices, courts often apply a totality of conditions analysis. See Inmates of Allegheny County Jail v. Wecht, 565 F.Supp. 1278, 1295 (W.D.Penn.1983); Dawson v. Kendrick, 527 F.Supp. at 1285. Properly applied, this approach requires examination of each element of the challenged prison conditions, recognizing the impact of its interdependent existence. Id. This analysis was employed by the Supreme Court in Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978), in affirming a remedial order of the lower court: The court was entitled to consider the severity of ... [past constitutional] violations in assessing the constitutionality of conditions in the isolation cells. The court took note of the inmates’ diet, the continued overcrowding, the rampant violence, the vandalized cells, and the “lack of professionalism and good judgment on the part of the maximum security personnel.” The" }, { "docid": "23165188", "title": "", "text": "F.2d 143 (3d Cir.1985) (inmate security); Ramos v. Lamm, 639 F.2d 559 (10th Cir.1980), cert. denied, 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 239 (1981) (overcrowding, sanitation). At a minimum, a correctional institution satisfies its obligations under the Eighth Amendment when it furnishes prisoners with adequate food, clothing, shelter, sanitation, medical care, and personal safety. See Hassine v. Jeffes, 846 F.2d 169, 174 (3d Cir.1988); Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir.1982). Segregated detention is not cruel and unusual punishment per se, as long as the conditions of confinement are not foul, inhuman or totally without penological justification. See Smith v. Coughlin, 748 F.2d 783, 787 (2d Cir.1984); Ford v. Board of Managers of New Jersey State Prison, 407 F.2d 937, 940 (3d Cir.1969); Mims v. Shapp, 399 F.Supp. 818, 822 (W.D.Pa.1975). It may be a necessary tool of prison discipline, both to punish infractions and to control and perhaps protect inmates whose presence within the general population would create unmanageable risks. See Hutto, 437 U.S. at 685-86, 98 S.Ct. at 2570-71; O’Brien v. Moriarty, 489 F.2d 941, 944 (1st Cir.1974). Courts, though, have universally condemned conditions of segregation inimi-cable to the inmate-occupants’ physical health, and, in some instances, have also considered conditions that jeopardize the mental health or stability of the inmates so confined. The touchstone is the health of the inmate. While the prison administration may punish, it may not do so in a manner that threatens the physical and mental health of prisoners. See Hutto, 437 U.S. at 685-87, 98 S.Ct. at 2570-71; Peterkin, 855 F.2d at 1029-30. There is a fundamental difference between depriving a prisoner of privileges he may enjoy and depriving him of the basic necessities of human existence. Isolation may differ from normal confinement only in the loss of freedom and privileges permitted to other prisoners. See Owens-El v. Robinson, 442 F.Supp. 1368 (W.D.Pa.1978). The duration and conditions of segregated confinement cannot be ignored in deciding whether such confinement meets constitutional standards. Hutto, 437 U.S. at 686-87, 98 S.Ct. at 2571; Smith, 748 F.2d at 787. We find that Young" }, { "docid": "9614442", "title": "", "text": "New Trial and Rehearing or, in the Alternative, for Remittitur; R. 187 at 8. The statement in the text describes the plaintiffs who would be the beneficiaries of the monetary award provided for by the jury verdict and the judgment of the District Court. . “Creepers” and “crawlers” are inmates who slither across dormitory floors to attack sleeping “enemies” in other parts of the dormitory. . See, e.g., Ruiz v. Estelle, 679 F.2d 1115 (5th Cir.), amended in part and vacated in part, 688 F.2d 266 (5th Cir.1982) (overcrowding, under-staffing, classification, sanitation, medical care, physical safety, isolation and segregation, rehabilitation); Ramos v. Lamm, 639 F.2d 559 (10th Cir.1980) (shelter, sanitation, food, overcrowding, inmate safety, understaffing, health and psychiatric care), cert. denied, 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 239 (1981); Williams v. Edwards, 547 F.2d 1206 (5th Cir.1977) (violence (270 stabbings, 20 deaths in three years), overcrowding, understaffing, fire and safety hazards, health care, sanitation); Palmigiano v. Garrahy, 443 F.Supp. 956 (D.R.I.1977), remanded, 599 F.2d 17 (1st Cir.1979) (sanitation, lights, heating, ventilation, noise, idleness, fear and violence, absence or inadequacy of programs of classification, education, recreation, and vocational training). See also Villanueva v. George, 659 F.2d 851, 854 (8th Cir.1981) (en banc) (pretrial detainee) (“[Our decision] is ... based upon the totality of the circumstances .... ”); Madyun v. Thompson, 657 F.2d 868, 874 (7th Cir.1981) (“We are aware that the essence of an Eighth Amendment violation consists of the totality of the conditions of confinement.” (emphasis added)); Williams v. Edwards, supra, 547 F.2d at 1211 (“Totality of conditions violate Eighth Amendment.\" (emphasis in original)); Bono v. Saxbe, 527 F.Supp. 1187, 1195 (S.D.Ill.1981); Heitman v. Gabriel, 524 F.Supp. 622, 625 (W.D.Mo.1981). . Other misstatements I will merely leave to the judgment of the reader. . See also Meachum v. Fano, 427 U.S. 215, 229, 96 S.Ct. 2532, 2540, 49 L.Ed.2d 451 (1976) (“[F]ederal courts do not sit to supervise state prisons .... ”); Procunier v. Martinez, 416 U.S. 396, 404-05, 94 S.Ct. 1800, 1807, 40 L.Ed.2d 224 (1974) (“[T]he problems of prisons in America are complex and intractable, and" }, { "docid": "23165187", "title": "", "text": "treatment far exceeded any reasonable disciplinary purpose. He claims that during the four day period when he was placed in a dry cell, prison officials permitted him to leave the cell to defecate only once, allowed him to empty his urinal only twice, failed to provide him with a plastic urinal for his first 29 hours of confinement, failed to provide him with toilet paper and water to drink, and did not allow him to wash his hands before eating. We believe that Young has raised a genuine question of fact regarding the constitutionality of his confinement. Inhumane prison conditions, including prolonged isolation in dehumanizing conditions, failure to provide adequate medical care, exposure to pervasive risks of physical assault, and unsanitary conditions have all been found to be cruel and unusual under contemporary standards of decency. See, e.g., Estelle, 429 U.S. at 104, 97 S.Ct. at 291 (1976) (medical care); Hutto v. Finney, 437 U.S. 678, 685, 98 S.Ct. 2565, 2570-71, 57 L.Ed.2d 522 (1978) (prolonged isolation in unsanitary, overcrowded cell); Riley v. Jeffes, 777 F.2d 143 (3d Cir.1985) (inmate security); Ramos v. Lamm, 639 F.2d 559 (10th Cir.1980), cert. denied, 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 239 (1981) (overcrowding, sanitation). At a minimum, a correctional institution satisfies its obligations under the Eighth Amendment when it furnishes prisoners with adequate food, clothing, shelter, sanitation, medical care, and personal safety. See Hassine v. Jeffes, 846 F.2d 169, 174 (3d Cir.1988); Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir.1982). Segregated detention is not cruel and unusual punishment per se, as long as the conditions of confinement are not foul, inhuman or totally without penological justification. See Smith v. Coughlin, 748 F.2d 783, 787 (2d Cir.1984); Ford v. Board of Managers of New Jersey State Prison, 407 F.2d 937, 940 (3d Cir.1969); Mims v. Shapp, 399 F.Supp. 818, 822 (W.D.Pa.1975). It may be a necessary tool of prison discipline, both to punish infractions and to control and perhaps protect inmates whose presence within the general population would create unmanageable risks. See Hutto, 437 U.S. at 685-86, 98 S.Ct. at 2570-71;" }, { "docid": "5223207", "title": "", "text": "U.S. at 104, 97 S.Ct. at 291 (“ ‘[i]t is but just that the public be required to care for the prisoner, who cannot by reason of the deprivation of his liberty, care for himself’ ”) (quoting Spicer v. Williamson, 191 N.C. 487, 490, 132 S.E. 291 (1926)). See also Battle v. Anderson, 564 F.2d 388, 395 (10th Cir.1977) (“Persons are sent to prison as punishment, not for punishment”). Courts have applied this general principle in a variety of situations relating to the maintenance of an inmate’s physical well being. See, e.g., Caldwell v. Miller, 790 F.2d 589, 600 (7th Cir.1986) (prolonged restriction on exercise that threatens an inmate’s physical health); Hoptowit v. Spellman, 753 F.2d 779, 783-84 (9th Cir.1985) (lack of adequate ventilation and air flow, inadequate cell-cleaning supplies, vermin infestation, poor lighting); Jones v. Diamond, 636 F.2d 1364, 1374 (5th Cir.) (en banc) (gross overcrowding, filthy mattresses, extreme heat, poor diet, lack of exercise), cert. dismissed, 453 U.S. 950, 102 S.Ct. 27, 69 L.Ed.2d 1033 (1981), overruled in part on other grounds, International Woodworkers v. Champion Int’l Corp., 790 F.2d 1174, 1175 (5th Cir.1986); Ruiz v. Estelle, 679 F.2d 1115, 1152 (5th Cir.1982) (inadequate regular exercise), vacated in part on other grounds, 688 F.2d 266, (5th Cir.1982) cert. denied, 460 U.S. 1042, 103 S.Ct. 1438, 75 L.Ed.2d 795 (1983); Spain v. Procunier, 600 F.2d 189, 199-200 (9th Cir.1979) (denial of regular outdoor exercise for period of years); Miller v. Carson, 563 F.2d 741, 751 n. 12 (5th Cir.1977) (deprivation of exercise). These decisions all reflect the same well-settled principle: the state is under a constitutional mandate to take reasonable steps to provide a safe and sanitary environment for those incarcerated. See generally J. Gobert & N. Cohen, Rights of Prisoners §§ 11.10, 11.14-.15, 11.17 (1981 & 1989 Cum.Supp.); cf. Ramos v. Lamm, 639 F.2d 559, 568 (10th Cir.1980) (state must provide inmate with a “ ‘healthy habilitative environment’ ”) (quoting Battle, 564 F.2d at 395), cert. denied, 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 239 (1981). My conclusion that there is an issue of fact regarding whether" }, { "docid": "7078346", "title": "", "text": "effects which inadequate lighting can have upon inmates was further noted in Palmigiano v. Garrahy, supra, 443 F.Supp. at 961, aff’d, (1st Cir.1980) 616 F.2d 598, cert. denied, (1980) 449 U.S. 839, 101 S.Ct. 115, 66 L.Ed.2d 45. This Court concludes that the lighting, heating, ventilating, and plumbing conditions which are challenged here conflict sharply with common notions of human decency and constitute a serious question of compliance with the federal and state prohibition against cruel and unusual punishment. D. Sanitation Lack of proper sanitation is likewise subject to constitutional scrutiny. Ramos v. Lamm, supra, 639 F.2d at 568, cert. denied, (1981) 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 239; Williams v. Edwards (5th Cir.1977) 547 F.2d 1206, 1211; Ahrens v. Thomas, supra, 434 F.Supp. at 902, modif. in part, (8th Cir.1978) 570 F.2d 286; Jordan v. Fitzharris, supra, 257 F.Supp. at 682. Defendants’ sanitary practices threaten common notions of humane living conditions. In addition, they have debilitating physical and psychological effects upon prisoners, resulting in physical illness, frustration, humiliation, and anger (Haney Deck, pp. 5-6, ¶¶ 11-12). As such, they create serious federal and state constitutional questions. E. Food Service Problems with provision of food support this Court’s conclusion that conditions in administrative segregation units raise serious constitutional questions. Such conditions are the proper subject of Eighth Amendment scrutiny. Hoptowit v. Ray, supra, 682 F.2d at 1256. Defendants’ feeding practices also violate their own regulations, which provide that prisoners in administrative segregation must be fed the same meal and ration as is provided general population prisoners, except that a sandwich meal may be served to prisoners in administrative segregation for lunch. Cal.Admin.Code, tit. 15, § 3343(d). F. Exercise The physical and psychological health hazards promoted by defendants’ failure to provide sufficient exercise to prisoners in administrative segregation affront all modern standards of human decency in a civilized society. The failure raises serious questions as to the constitutionality of defendants’ practices. Spain v. Procunier (9th Cir.1979) 600 F.2d 189, 199; Ruiz v. Estelle (5th Cir.1982) 679 F.2d 1115, 1152; Ramos v. Lamm, supra, 639 F.2d at 570-571, cert. denied," }, { "docid": "15135866", "title": "", "text": "necessarily violate the Eighth Amendment. The amendment is violated only where an inmate is deprived of “the minimal civilized measure of life’s necessities.” Rhodes, 452 U.S. at 347, 101 S.Ct. at 2399; see Inmates of Occoquan, 844 F.2d at 835-41; Cody v. Hillard, 830 F.2d 912 (8th Cir.1987) (en banc), cert. denied, 485 U.S. 906, 108 S.Ct. 1078, 99 L.Ed.2d 237 (1988). The denial of medical care, prolonged isolation in dehumanizing conditions, exposure to pervasive risk of physical assault, severe overcrowding, and unsanitary conditions have all been found to be cruel and unusual under contemporary standards of decency. See, e.g., Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (medical care); Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978) (prolonged isolation in unsanitary, overcrowded cell); Riley v. Jeffes, 777 F.2d 143 (3d Cir.1985) (security); Ramos v. Lamm, 639 F.2d 559 (10th Cir.1980) (overcrowding, sanitation), cert. denied, 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 239 (1981). Although prisoners are, undeniably, sent to prison as punishment, the prison environment itself may not be so brutal or unhealthy as to be in itself a punishment. Battle v. Anderson, 564 F.2d 388, 395 (10th Cir.1977). In challenging the district court’s holding, defendants contend that double-celling is not per se unconstitutional. They rely on the Supreme Court’s holding in Rhodes v. Chapman, 452 U.S. at 348-49, 101 S.Ct. at 2400-01, that double-celling inmates, under the circumstances in the prison at issue there, did not violate the Eighth Amendment. See also Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) (double-celling pre-trial detainees for short periods does not constitute punishment under due process clause); French v. Owens, 777 F.2d 1250, 1252 (7th Cir.1985) (practice of double-celling not per se unconstitutional); but see Battle, 564 F.2d at 395 (sixty square feet per inmate is constitutional minimum); Ramos, 639 F.2d at 568 (reaffirming Battle). However, in determining whether conditions of confinement violate the Eighth Amendment we must look at the totality of the conditions within the institution. The Supreme Court made this precept clear" }, { "docid": "7078345", "title": "", "text": "Cir.1977) 559 F.2d 283, rev’d. in part on other grounds, (1978) 438 U.S. 781, 98 S.Ct. 3057, 56 L.Ed.2d 1114 (per curiam); Ahrens v. Thomas (W.D.Mo.1977) 434 F.Supp. 873, modif. in part, (8th Cir.1978) 570 F.2d 286. This Court concludes that the failure to provide inmates with regular laundry service poses a serious constitutional question. It also violates defendants’ own regulations, which require that laundry items be issued and exchanged for segregated prisoners no less often than is provided for general population prisoners. Cal. Admin.Code, tit. 15, § 3343(g). C. Lighting, Heating, Ventilation, and Plumbing. Inadequate lighting, heating, ventilation, and plumbing are all conditions subject to Eighth Amendment review. Hoptowit v. Ray, supra, 682 F.2d at 1256; Ramos v. Lamm (10th Cir.1980) 639 F.2d 559, 568, cert. denied, (1981) 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 239; Palmigiano v. Garrahy, supra, 443 F.Supp. at 961, aff’d, (1st Cir.1980) 616 F.2d 598, cert. denied, (1980) 449 U.S. 839, 101 S.Ct. 115, 66 L.Ed.2d 45; Jordan v. Fitzharris (N.D.Cal.1966) 257 F.Supp. 674, 683-84. The debilitating psychological effects which inadequate lighting can have upon inmates was further noted in Palmigiano v. Garrahy, supra, 443 F.Supp. at 961, aff’d, (1st Cir.1980) 616 F.2d 598, cert. denied, (1980) 449 U.S. 839, 101 S.Ct. 115, 66 L.Ed.2d 45. This Court concludes that the lighting, heating, ventilating, and plumbing conditions which are challenged here conflict sharply with common notions of human decency and constitute a serious question of compliance with the federal and state prohibition against cruel and unusual punishment. D. Sanitation Lack of proper sanitation is likewise subject to constitutional scrutiny. Ramos v. Lamm, supra, 639 F.2d at 568, cert. denied, (1981) 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 239; Williams v. Edwards (5th Cir.1977) 547 F.2d 1206, 1211; Ahrens v. Thomas, supra, 434 F.Supp. at 902, modif. in part, (8th Cir.1978) 570 F.2d 286; Jordan v. Fitzharris, supra, 257 F.Supp. at 682. Defendants’ sanitary practices threaten common notions of humane living conditions. In addition, they have debilitating physical and psychological effects upon prisoners, resulting in physical illness, frustration, humiliation, and anger (Haney Deck," }, { "docid": "22405877", "title": "", "text": "65. . Id. at 341-343, 101 S.Ct. at 2396-97, 69 L.Ed.2d at 65-66. . The Supreme Court granted certiorari in Jones v. Diamond, 452 U.S. 959, 101 S.Ct. 3106, 69 L.Ed.2d 970 (1981), then limited the grant of certiorari to the issue of the court’s award of expert witness fees and expenses, 453 U.S. 911, 101 S.Ct. 3141, 69 L.Ed.2d 993 (1981); see Petition for Writ of Certiorari at 12-14, Ledbetter v. Jones (U.S. Apr. 28, 1981) (No. 80-1804). The parties settled this issue by consent decree. Jones v. Diamond, No. 73S-180(C) (S.D.Miss. Dec. 11, 1981). The Supreme Court then dismissed the writ of certiorari under Sup.Ct.R. 53. 453 U.S. 950, 102 S.Ct. 27, 69 L.Ed.2d 1033 (1981). . 452 U.S. at 363 n.10, 101 S.Ct. at 2407 n.10, 69 L.Ed.2d at 79 n.10 (“The Court today adopts the totality of the circumstances test.”). . The Stewart panel referred to Rhodes and the “totality of the circumstances” test while discussing whether a district judge had properly denied class certification in a lawsuit challenging conditions of confinement in several county jails. That panel did not actually apply the test, as we now do. . 452 U.S. at 346, 101 S.Ct. at 2399, 69 L.Ed.2d at 69. . Madyun v. Thompson, 657 F.2d 868, 874 (7th Cir. 1981) (“We are aware that the essence of an Eighth Amendment violation consists of the totality of the conditions of confinement.”); Villanueva v. George, 659 F.2d 851, 854 (8th Cir. 1981) (en banc) (pretrial detainee) (“our decision ... is ... based upon the totality of the circumstances”); Bono v. Saxbe, 527 F.Supp. 1187, 1195 (S.D.Ill.1981); Heitman v. Gabriel, 524 F.Supp. 622, 625 (W.D.Mo.1981); see Maxwell v. Mason, 668 F.2d 361, 363-65 (8th Cir. 1981) (by implication) (punitive confinement of inmate); Nelson v. Collins, 659 F.2d 420, 427-29 (4th Cir. 1981) (en banc); id. at 430 (Winter, C. J., concurring and dissenting); Smith v. Fairman, 528 F.Supp. 186 (C.D.Ill.1981). TDC argues that the Ninth Circuit, in Hoptowit v. Ray, 682 F.2d 1237 (9th Cir. 1982), read Rhodes as rejecting “the totality” test. The Hoptowit court said;" }, { "docid": "22405878", "title": "", "text": "confinement in several county jails. That panel did not actually apply the test, as we now do. . 452 U.S. at 346, 101 S.Ct. at 2399, 69 L.Ed.2d at 69. . Madyun v. Thompson, 657 F.2d 868, 874 (7th Cir. 1981) (“We are aware that the essence of an Eighth Amendment violation consists of the totality of the conditions of confinement.”); Villanueva v. George, 659 F.2d 851, 854 (8th Cir. 1981) (en banc) (pretrial detainee) (“our decision ... is ... based upon the totality of the circumstances”); Bono v. Saxbe, 527 F.Supp. 1187, 1195 (S.D.Ill.1981); Heitman v. Gabriel, 524 F.Supp. 622, 625 (W.D.Mo.1981); see Maxwell v. Mason, 668 F.2d 361, 363-65 (8th Cir. 1981) (by implication) (punitive confinement of inmate); Nelson v. Collins, 659 F.2d 420, 427-29 (4th Cir. 1981) (en banc); id. at 430 (Winter, C. J., concurring and dissenting); Smith v. Fairman, 528 F.Supp. 186 (C.D.Ill.1981). TDC argues that the Ninth Circuit, in Hoptowit v. Ray, 682 F.2d 1237 (9th Cir. 1982), read Rhodes as rejecting “the totality” test. The Hoptowit court said; In assessing claims of Eighth Amendment violations, and equally importantly, in tailoring a proper remedy, we must analyze each claimed violation in light of these requirements [i.e., “discrete areas of basic human needs”]. Courts may not find Eighth Amendment violations based on the “totality of conditions” at a prison. Id. at 1246. However, the court later observed: As we have said, however, “[E]ach condition of confinement does not exist in isolation; the court must consider the effect of each condition in the context of the prison environment, especially when the ill-effects of particular conditions are exacerbated by other related conditions.” [Wright v. Rushen, 642 F.2d 1129, 1133 (9th Cir. 1981)]. This is no more than a recognition that a particular violation may be the result of several contributing factors. “But the court’s principal focus must be on specific conditions of confinement. It may not use the totality of all conditions to justify federal intervention requiring remedies more extensive than are required to correct Eighth Amendment violations.” [Wright v. Rushen, 642 F.2d at 1133.] To find" }, { "docid": "15135865", "title": "", "text": "must place more weight on “ ‘the public attitude toward a given sanction.’ ” Rhodes, 452 U.S. at 348-49 n. 13, 101 S.Ct. at 2400 n. 13 (quoting Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 2925, 49 L.Ed.2d 859 (1976) (joint opinion)); see Peterkin v. Jeffes, 855 F.2d 1021, 1027 n. 9 (3d Cir.1988); Inmates of Occoquan v. Barry, 844 F.2d 828, 836-39 (D.C.Cir.1988). Although our understanding of the Eighth Amendment changes as our society progresses, “the inquiry that courts must conduct in eighth amendment cases is not consequently less exacting.” Peterkin, 855 F.2d at 1024. The court’s judgment must “ ‘be informed by objective factors to the maximum possible extent.’ ” Rhodes, 452 U.S. at 346, 101 S.Ct. at 2399 (quoting Rummel v. Estelle, 445 U.S. 263, 274-75, 100 S.Ct. 1133, 1139-40, 63 L.Ed.2d 382 (1980)). The Eighth Amendment does not give the court authority to impose its own “notions of enlightened policy.” Hassine v. Jeffes, 846 F.2d 169, 175 (3d Cir.1988). Thus, deficiencies and inadequacies in prison conditions do not necessarily violate the Eighth Amendment. The amendment is violated only where an inmate is deprived of “the minimal civilized measure of life’s necessities.” Rhodes, 452 U.S. at 347, 101 S.Ct. at 2399; see Inmates of Occoquan, 844 F.2d at 835-41; Cody v. Hillard, 830 F.2d 912 (8th Cir.1987) (en banc), cert. denied, 485 U.S. 906, 108 S.Ct. 1078, 99 L.Ed.2d 237 (1988). The denial of medical care, prolonged isolation in dehumanizing conditions, exposure to pervasive risk of physical assault, severe overcrowding, and unsanitary conditions have all been found to be cruel and unusual under contemporary standards of decency. See, e.g., Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (medical care); Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978) (prolonged isolation in unsanitary, overcrowded cell); Riley v. Jeffes, 777 F.2d 143 (3d Cir.1985) (security); Ramos v. Lamm, 639 F.2d 559 (10th Cir.1980) (overcrowding, sanitation), cert. denied, 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 239 (1981). Although prisoners are, undeniably, sent to prison as punishment, the" }, { "docid": "23282020", "title": "", "text": "and rodent and insect infestation. Routine maintenance in the cells, corridors and main food service area is deficient. As discussed above, the medical care system makes unnecessary suffering inevitable, and overcrowding simply heightens this pain. Overcrowding also has resulted in extremely limited time for outside recreation and unreasonable periods of time some prisoners must spend locked in exceedingly cramped cells. For example, prisoners in the A & O Unit have been spending between 22 and 23½ hours per day in their cells, although the cells’ floor space only amounts to 17 square feet. There was testimony that some inmates have not had outside recreation in five months. There has also been an extreme shortage of prison personnel in recent years. Hence, we agree with the district court that at current population levels Michigan City’s physical and personnel resources are so overtaxed that unnecessary suffering is serious and inevitable. Other Conditions of Confinement Various prison conditions do not exist in isolation. Rather, challenged conditions must be viewed in the light of other prison conditions that may aggravate or mitigate the effect of the challenged conditions. For example, “the constitutionality of doublecelling involves an assessment of many fac tors, including, inter alia, the duration of the confinement, the size of the cells and the opportunities for inmates to leave their cells during the normal prison routine.” Madyun v. Thompson; 657 F.2d 868, 872 n. 5 (7th Cir.1981). See Ruiz v. Estelle, 679 F.2d 1115, 1139-40 (5th Cir.), modified, 688 F.2d 266 (5th Cir.1982), cert, denied, - U.S. -, 103 S.Ct. 1438, 75 L.Ed.2d 795 (1983); Villanueva v. George, 659 F.2d 851, 854 (8th Cir.1981) (en banc). See also Smith v. Fair-man, 690 F.2d 122, 125 (7th Cir.1982). At the same time, “otherwise unquestionably constitutional conditions [do not] become unconstitutional by their aggregation.” Madyun, 657 F.2d at 874 n. 10. But see Rhodes v. Chapman, 452 U.S. 337, 362-63, 101 S.Ct. 2392, 2407-08, 69 L.Ed.2d 59 (Brennan, J., concurring). With these standards in mind, we have reviewed the evidence respecting plaintiffs’ challenges to the prison’s physical environment, the level of violence and several" } ]

[ { "docid": "22668743", "title": "", "text": "undercutting that logic. But it does not follow that if municipalities are persons then so are States. States are protected by the Eleventh Amendment while municipalities are not, Monell, 436 U. S., at 690, n. 54, and we consequently limited our holding in Monell “to local government units which are not considered part of the State for Eleventh Amendment purposes,” ibid. Conversely, our holding here does not cast any doubt on Monell, and applies only to States or governmental entities that are considered “arms of the State” for Eleventh Amendment purposes. See, e. g., Mt. Healthy Bd. of Ed. v. Doyle, 429 U. S. 274, 280 (1977). Petitioner asserts, alternatively, that state officials should be considered “persons” under § 1983 even though acting in their official capacities. In this case, petitioner named as defendant not only the Michigan Department of State Police but also the Director of State Police in his official capacity. Obviously, state officials literally are persons. But a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official’s office. Brandon v. Holt, 469 U. S. 464, 471 (1985). As such, it is no different from a suit against the State itself. See, e. g., Kentucky v. Graham, 473 U. S. 159, 165-166 (1985); Monell, supra, at 690, n. 55. We see no reason to adopt a different rule in the present context, particularly when such a rule would allow petitioner to circumvent congressional intent by a mere pleading device. We hold that neither a State nor its officials acting in their official capacities are “persons” under § 1983. The judgment of the Michigan Supreme Court is affirmed. It is so ordered. Section 1983 provides as follows: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution" } ]

[ { "docid": "3421539", "title": "", "text": "private litigants’ suits against nonconsenting states in federal courts, with the exception of causes of action where Congress has abrogated the states’ traditional immunity through its powers under the Fourteenth Amendment. The Supreme Court has held that state agencies, as “arms of the state,” Kroll v. Bd. of Trustees of Univ. of III, 934 F.2d 904, 907 (7th Cir.1991), and state officials in their official capacities are also immune from suit under the Eleventh Amendment. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 70-71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). Additionally, the Court has ruled that states and their departments are not “persons” within the meaning of § 1983. Id. at 66, 71,109 S.Ct. 2304. The Board is an “arm of the state” for Eleventh Amendment purposes. Rom-co Ltd. v. Outdoor Aluminum, Inc., 725 F.Supp. 1033 (WD.Wis.1989) (applying the factors in Kashani v. Purdue, 813 F.2d 843 (7th Cir.1987), to determine if the Board is an “arm of the state” for Eleventh Amendment purposes, and holding that it is); see also EEOC. v. Bd. of Regents of the Univ. of Wis. Sys., 288 F.3d 296, 299 (7th Cir. 2002) (“If this case was to be prosecuted in federal court, the EEOC had to do it. The individual charging parties were barred by the Eleventh Amendment from suing the state (and therefore the Board of Regents of the state university system).”). Joseph argues that Congress abrogated the Board’s immunity when passing § 1983. He cites three cases in support of his argument, none of which are convincing. The first, Vlandis v. Kline, 412 U.S. 441, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973), was a § 1983 suit involving a public university. That case does not, however, “definitively rule[] that students have the right under § 1983 to sue a state university,” as Joseph claims. The plaintiffs in that case sued the director of admissions as an individual, and therefore the Eleventh Amendment was not implicated. Joseph misplaces his reliance on Gratz v. Bollinger, 539 U.S. 244, 123 S.Ct. 2411, 156 L.Ed.2d 257 (2003), as well. The plaintiffs in" }, { "docid": "7269774", "title": "", "text": "10 S.Ct. 504, 33 L.Ed. 842 (1890). Plaintiff named the State as a defendant with the hope that the state would consent to federal jurisdiction and waive its immunity. [DE 35 at 21]; Lapides v. Bd. of Regents of the Univ. Syst. of Ga., 535 U.S. 613, 619, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002). However, as the State has raised Eleventh Amendment immunity as a defense, plaintiffs agree that their claim cannot proceed against the state. [DE 35 at 21]; [DE 33]. This Court lacks jurisdiction over the State here and therefore defendant State of North Carolina’s motion to dismiss pursuant to Rule 12(b)(1) is granted. II. PLAINTIFFS’ MOTION TO AMEND. Recognizing that the State has Eleventh Amendment immunity to suit here, plaintiffs seek to amend their complaint by dropping the State as a defendant and adding North Carolina Governor Patrick McCrory, North Carolina Senate President Pro Tern Phil Berger, and North Carolina House Speaker Thorn Tillis as defendants in their official capacities. [DE 33]. Under Fed.R.Civ.P. 15(a), “a party may amend the party’s pleadings only by leave of court or by written consent of the parties; and leave to amend a complaint shall be freely given when justice so requires.” “[L]eave to amend a pleading should be denied only when the amendment would be prejudicial to the opposing party, there has been bad faith on the part of the moving party, or the amendment would have been futile.” Laber v. Harvey, 438 F.3d 404, 426 (4th Cir.2006) (en banc) (citations and quotations omitted). A proposed amendment is futile when “it advances a claim or defense that is legally insufficient on its face.” Joyner v. Abbott Labs., 674 F.Supp. 185, 190 (E.D.N.C.1987). In this instance, plaintiffs’ amendment would be futile. Courts have consistently permitted suits against state actors as a way of enjoining a state from unconstitutional action. Ex Parte Young, 209 U.S. 123, 159-60, 28 S.Ct. 441, 52 L.Ed. 714 (1908). However, “[i]n making an officer of the State a party defendant in a suit to enjoin the enforcement of an act alleged to be unconstitutional it is" }, { "docid": "12469856", "title": "", "text": "that qualified immunity provides “ample room for mistaken judgments.” Hunter, 502 U.S. at 229, 112 S.Ct. 534 (quoting Malley v. Briggs, 475 U.S. 335, 343, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)). VI. State Law Negligence Claims Counts I, III, VI, and VII of the Fourth Amended Complaint are framed as negligence claims against Defendants in their official capacities, seeking $100,000 consistent with the cap imposed by R.I. Gen. Laws § 9-31-2. Count II alleges negligence against Ms. Gloria individually and seeks unspecified damages. There is no such individual negligence claim against Ms. Terry. The official negligence claims against Defendants are, in essence, claims against the entity (here a state agency) and thus are claims against the State of Rhode Island. See Pennhurst, 465 U.S. at 100-102, 104 S.Ct. 900; Carter v. Lindgren, 2006 WL 2850572, *6 n. 4 (D.R.I. Sept. 29, 2006), aff'd, 502 F.3d 26, 33 (1st Cir.2007) (state law claim against DCYF employees in official capacities subject to Eleventh Amendment). And, suits in federal court against the State are barred by Eleventh Amendment sovereign immunity absent consent or waiver. U.S. Const, amend. XI; Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993) (Eleventh Amendment immunity extends to state agencies). During argument the Court, sua sponte, inquired whether Defendants’ removal of the case affected Eleventh Amendment immunity on the pendent state law negligence claims and, if so, whether Plaintiffs had waived such an argument. See Lapides v. Bd. of Regents of Univ. Sys. of Georgia, 535 U.S. 613, 620-21, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002) (defendants waived immunity to state claims by removing § 1983 case). Plaintiffs offered no clear response but argued that Rhode Island waived immunity on the “official” negligence claims under the State Tort Claims Act, which provides in pertinent part, “The state of Rhode Island ... shall ... hereby be liable in all actions of tort in the same manner as a private individual or corporation.” R.I. Gen. Laws § 9-31-1. While the parties here have not developed these arguments," }, { "docid": "4061051", "title": "", "text": "however, noted in its written memorandum that Williams’s lawyer had abandoned any individual-capacity claims at a telephone conference. And although the record does not contain a transcript of this conference, Williams on appeal does not dispute the district court’s characterization of that call.) Williams’s decision to forego an individual-capacity suit blocks his claims for damages under § 1983. By suing the individual defendants in their official capacities, Williams made the state the only interested party, Kentucky v. Graham, 473 U.S. 159, 166, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985), and a state is not a “person” subject to a damages action under § 1983, Lapides v. Bd. of Regents, 535 U.S. 613, 617, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002). The defendants also assert that the Eleventh Amendment bars any damages claims. See, e.g., Quern v. Jordan, 440 U.S. 332, 338-40, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979). But any constitutional problem that may exist is subordinate to the statutory deficiency. Suits against states for damages should be resolved on the ground that they do not come within § 1983, not because states are protected by the Eleventh Amendment. Vt. Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, 779, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000); Power v. Summers, 226 F.3d 815, 818 (7th Cir.2000). To the extent Williams is seeking injunctive and declaratory relief against ongoing or anticipated violations of his rights to travel and marry, he is not barred at the outset from proceeding. Official-capacity suits against state officials seeking prospective relief are permitted by § 1983, Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 n. 10, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989), and under Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), they are not barred by the Eleventh Amendment. See, e.g., Verizon Md. Inc. v. Pub. Serv. Comm’n, 535 U.S. 635, 645-48, 122 S.Ct. 1753, 152 L.Ed.2d 871 (2002). That brings us to the merits of Williams’s claims that his constitutional rights to travel and to marry have been violated by Wisconsin." }, { "docid": "15009290", "title": "", "text": "first exception is not a point of contention in this appeal because Congress did not abrogate the States’ immunity from money damage claims under Title I of the ADA. See id. at 374,121 S.Ct. 955. Second, “the Eleventh Amendment permits suits for prospective injunctive relief against state officials acting in violation of federal law.” Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 437, 124 S.Ct. 899, 157 L.Ed.2d 855 (2004). The second exception is also inapplicable here, because the complaint does not name as defendants any officials of the State of Maryland. Third, “[a] State remains free to waive its Eleventh Amendment immunity from suit in a federal court.” Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613, 618, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002). The third exception, that of waiver, is at issue in this proceeding. The Board maintains that the waiver exception is inapplicable because Supreme Court preeedent compels the conclusion that the State of Maryland has not forgone its Eleventh Amendment immunity. The Board acknowledges that the Supreme Court long ago decided that the question of waiver of sovereign immunity by a state constitutional provision or statute is a matter of state law, “as to which the decision of the [state’s highest court] is controlling.” Palmer v. Ohio, 248 U.S. 32, 34, 39 S.Ct. 16, 63 L.Ed. 108 (1918). The Board contends, nevertheless, that the Court effectively overruled Palmer in its unanimous 2002 Lapides decision, by virtue of the following statement: As in analogous contexts, in which matters are questions of federal law, cf, e.g., Regents of Univ. of Cal. v. Doe, 519 U.S. 425, 429, n. 5 [117 S.Ct. 900,137 L.Ed.2d 55] (1997), whether a particular set of state laws, rules, or activities amounts to a waiver of the State’s Eleventh Amendment immunity is a question of federal law. 535 U.S. at 622-23,122 S.Ct. 1640. In Lapides — initiated as a state court action alleging state law claims against Georgia’s Board of Regents — the plaintiff sought to avail himself of a statutory waiver of Georgia’s immunity from suit in" }, { "docid": "6162030", "title": "", "text": "the fact that [Plaintiffs] complaint is the predicate document for a preliminary, and then permanent injunction.” (Pi’s Mem. in Opp’n at 11, Docket No. 31.) As a general rule, state governments and their agencies may not be sued in federal court unless they have waived their Eleventh Amendment immunity or there has been a valid abrogation of that immunity by Congress. Woods v. Rondout Valley Cent. Sch. Dist. Bd. of Educ., 466 F.3d 232, 236 (2d Cir.2006) (citing Lapides v. Bd. of Regents, 535 U.S. 613, 618-19, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002)); see Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). For Eleventh Amendment purposes, S.U.N.Y. is an integral part of the government of the State of New York and when it or one of its constituent campuses is sued the State is the real party. Dube v. State Univ. of N.Y., 900 F.2d 587, 594 (2d Cir.1990), cert. denied, 501 U.S. 1211, 111 S.Ct. 2814, 115 L.Ed.2d 986 (1991); see Feingold v. New York, 366 F.3d 138, 149 (2d Cir.2004). Thus, where, as here, there has been no clear consent to suit in this federal forum, neither legal nor equitable relief is available against S.U.N.Y. at Buffalo School of Medicine and Biomedical Sciences. Dube, 900 F.2d at 594. Indeed, this was the basis for the agreed-upon dismissal of the School from Plaintiffs prior lawsuit. Barsoumian v. Univ. at Buffalo, No. 06-CV-831S, 2009 WL 691297, *3 (W.D.N.Y. Mar. 11, 2009). Moreover, Plaintiffs § 1983 claim against the School could not be maintained in any event because a state entity is not a ‘person’ within the meaning of that section. Dube, 900 F.2d at 595 (citing Will v. Michigan Dep’t of State Police, 491 U.S. 58, 64 109 S.Ct. 2304, 2312, 105 L.Ed.2d 45 (1989)). The S.U.N.Y. School of Medicine and Biomedical 'Sciences is therefore dismissed from this action. With respect to the individual Defendants, Plaintiffs causes of action appear to be asserted against them in their official and individual capacities, and the relief sought is both injunctive and" }, { "docid": "6761820", "title": "", "text": "brought under 42 U.S.C. §§ 1983 and 1985. Defendants argue, however, that, in this case, Eleventh Amendment immunity and the Rooker-Feldman doctrine bar this Court from exercising subject matter jurisdiction. 1. Eleventh Amendment Immunity Defendants Oakland and Clinton County Circuit Courts, and Defendants Oakland and Clinton County Circuit Court Judges, sued in their official capacities, have argued that they are entitled to immunity from suit in federal court pursuant to the Eleventh Amendment as “arms of the state.” Eleventh Amendment immunity bars federal courts from exercising jurisdiction over a claim, where the party asserting immunity establishes that immunity applies. Ernst v. Roberts, 379 F.3d 373, (6th Cir.2004). The Eleventh Amendment states: The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. U.S. Const, am. 11. The Eleventh Amendment bars suits against a state by citizens of another state, and, pursuant to Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890), prohibits citizens from suing their own state. Ernst, 379 F.3d at 378-79 (citing Barton v. Summers, 293 F.3d 944, 948 (6th Cir.2002)). However, “[t]he bar of the Eleventh Amendment to suit in Federal courts extends to States and state officials in appropriate circumstances ... but does not extend to counties and similar municipal corporations.” Alkire v. Irving, 330 F.3d 802, 811 (6th Cir.2003)(quoting Mt. Healthy Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977)). Thus, to enjoy Eleventh Amendment immunity, Defendants must establish that they are “arms of the state” or “alter egos” of the state. However, as the Sixth Circuit noted in Ernst: Even if the party being sued is a state or an arm of the state, Eleventh Amendment immunity will not apply to a claim, under various circumstances. Immunity may be waived by the state or agency. Lapides v. Bd. of Regents, 535 U.S. 613, 619[, 122 S.Ct. 1640, 152 L.Ed.2d" }, { "docid": "8564680", "title": "", "text": "banc. The United States has appeared as amicus curiae in support of IPAS. II. The Eleventh Amendment and Ex parte Young The Eleventh Amendment to the Constitution provides that “the judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” Notwithstanding the phrase “Citizens of another State” the Supreme Court “has consistently held that an unconsenting State is immune from suits brought in federal courts by her own citizens as well as by citizens of another State.” Edelman v. Jordan, 415 U.S. 651, 662-63, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974) (internal citations omitted). If properly raised, the amendment bars actions in federal court against a state, state agencies, or state officials acting in their official capacities. Id. at 663, 94 S.Ct. 1347. The defendants engaged in two rounds of litigation of this case — one before the district court, and one before this court — without raising the Eleventh Amendment as a defense to IPAS’s action. After the panel raised the issue, defendants embraced it. The Eleventh Amendment is unusual in that it does not strictly involve subject matter jurisdiction and is thus waivable, see Lapides v. Board of Regents of Univ. System of Georgia, 535 U.S. 613, 620, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002), but a court may raise the issue itself, Higgins v. Mississippi, 217 F.3d 951, 954 (7th Cir.2000) (affirming dismissal on district court’s own initiative); see generally Reed Elsevier, Inc. v. Muchnick, — U.S.-, 130 S.Ct. 1237, 176 L.Ed.2d 17 (2010) (reminding lower federal courts to preserve distinction between genuine jurisdictional restrictions and other claim-processing requirements or elements of claims). If the panel had not chosen to raise the Eleventh Amendment issue, this non-jurisdictional defense would have been forfeited. See Wisconsin Dep’t of Corrections v. Schacht, 524 U.S. 381, 389, 118 S.Ct. 2047, 141 L.Ed.2d 364 (1998). Because the panel opened the door, however, we address the defense. There are three principal" }, { "docid": "13549700", "title": "", "text": "and Laws individually. II. We first address the district court’s conclusion that Reimer and Laws, as officers of OCHD, are entitled to Eleventh Amendment protection in suits against them in their official capacity. A. The Eleventh Amendment provides that “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const, amend. XI. Although by its terms the Amendment applies only to suits brought against a state by “Citizens of another State,” it is well established that “an unconsenting State is immune from suits brought in federal courts by her own citizens as well as by citizens of another State.” Edelman v. Jordan, 415 U.S. 651, 663, 94 S.Ct. 1347, 1355, 39 L.Ed.2d 662 (1974). This immunity extends as well to state agencies and other government entities properly characterized as “arm[s] of the State.” Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 572, 50 L.Ed.2d 471 (1977); see also Puerto Rico Aqueduct and Sewer Auth. v. Metcalf & Eddy, Inc., — U.S. -, -, 113 S.Ct. 684, 688, 121 L.Ed.2d 605 (1993) (“[A] State and its ‘arms’ are, in effect, immune from suit in federal court.”). Like the state itself, state officers acting in their official capacity are also entitled to Eleventh Amendment protection, because “a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official’s office,” and “[a]s such, it is no different from a suit against the State itself.” Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 2312, 105 L.Ed.2d 45 (1989) (citations omitted). While states, state entities, and state officials are protected by the Eleventh Amendment, the Amendment erects no jurisdictional, bar to suits against local governmental entities. See id. at 70, 109 S.Ct. at 2312 (“States are protected by the Eleventh Amendment" }, { "docid": "7269773", "title": "", "text": "a new redistricting plan for electing members of the Wake County School Board. Plaintiffs’ complaint seeks relief in the form of a declaratory judgment and a preliminary, mandatory injunction requiring the defendants to conduct lawful elections for the Wake County Board of Education using an election method and districting system which complies with the requirements of the Fourteenth Amendment to the United States Constitution and Article 1, § 19 of the North Carolina Constitution. DISCUSSION I. THIS COURT’S JURISDICTION OVER THE STATE. The State of North Carolina has moved to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1), claiming that this Court lacks jurisdiction over the State in this case because the State has immunity under the Eleventh Amendment to the United States Constitution. [DE 29]. It is firmly established in Supreme Court precedent that “a State may not be sued in federal court by one of its own citizens.” California v. Deep Sea Research, 523 U.S. 491, 501, 118 S.Ct. 1464, 140 L.Ed.2d 626 (1998); see also Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890). Plaintiff named the State as a defendant with the hope that the state would consent to federal jurisdiction and waive its immunity. [DE 35 at 21]; Lapides v. Bd. of Regents of the Univ. Syst. of Ga., 535 U.S. 613, 619, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002). However, as the State has raised Eleventh Amendment immunity as a defense, plaintiffs agree that their claim cannot proceed against the state. [DE 35 at 21]; [DE 33]. This Court lacks jurisdiction over the State here and therefore defendant State of North Carolina’s motion to dismiss pursuant to Rule 12(b)(1) is granted. II. PLAINTIFFS’ MOTION TO AMEND. Recognizing that the State has Eleventh Amendment immunity to suit here, plaintiffs seek to amend their complaint by dropping the State as a defendant and adding North Carolina Governor Patrick McCrory, North Carolina Senate President Pro Tern Phil Berger, and North Carolina House Speaker Thorn Tillis as defendants in their official capacities. [DE 33]. Under Fed.R.Civ.P. 15(a), “a party may amend the party’s" }, { "docid": "307319", "title": "", "text": "relied on Lapides v. Board of Regents, 535 U.S. 613, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002), in holding that Appellants waived sovereign immunity by voluntarily removing the case to federal court. The officials argue additionally that while the complaint purports to assert claims against them in their official and individual capacities, it is at bottom a complaint only against them in their official capacities. Thus, the officials maintain that they are entitled to dismissal of the claims against them in their individual capacities. II. The first issue presented is whether a state waives its sovereign immunity by voluntarily removing an action to federal court when it would have been immune from the same action in state court. This is an issue of first impression in the federal circuits. Because it is a legal question, our review is de novo. See Wessel v. Glendening, 306 F.3d 203, 207 (4th Cir.2002). A. We find it useful at the outset to distinguish the related but not identical concepts of Eleventh Amendment immunity and state sovereign immunity. This distinction has generated confusion in the past: We have ... sometimes referred to the States’ immunity from suit as “Eleventh Amendment immunity.” The phrase is convenient shorthand but something of a misnomer, for the sovereign immunity of the States neither derives from, nor is limited by, the terms of the Eleventh Amendment. Rather, as the Constitution’s structure, its history, and the authoritative interpretations by this Court make clear, the States’ immunity from suit is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution, and which they retain today (either literally or by virtue of their admission into the Union .upon an equal footing with the other States) except as altered by the plan of the Convention or certain constitutional Amendments. Alden v. Maine, 527 U.S. 706, 713, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999). State sovereign immunity is “based on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends.” Nevada v. Hall," }, { "docid": "20730190", "title": "", "text": "Section 1983’s express clause permitting these suits obviates the need to imply the same right under the general provisions of § 1981. Accordingly, we conclude that § 1983 is the exclusive mechanism to vindicate violations of § 1981 by an individual state actor acting in his individual capacity. We therefore AFFIRM the district court’s dismissal of the § 1981 claims against the individual defendants acting in their individual capacity. Claims against Miami University The appellant’s § 1981 claims against Miami University are barred by the Eleventh Amendment. The Eleventh Amendment provides: The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens of Subjects of any Foreign State. U.S. Const, amend. XI. Eleventh Amendment immunity “bars all suits, whether for injunctive, declaratory or monetary relief, against the state and its departments, by citizens of another state, foreigners or its own citizens.” Thiokol Corp. v. Dep’t of Treasury, 987 F.2d 376, 381 (6th Cir.1993) (internal citations omitted). Miami University is a public university in the state of Ohio. See Ohio Rev.Code § 3339. Since a public university qualifies as an arm of the state, see Johnson v. Univ. of Cincinnati, 215 F.3d 561, 571 (6th Cir.2000) (applying Eleventh Amendment immunity to a state university as an arm of the state), Miami University “is immune from suit under the Eleventh Amendment because it is well-settled that a plaintiff is precluded from directly suing a State in federal court,” id. Accordingly, the district court properly dismissed McCormick’s claims against Miami University. Insofar as McCormick is suing Schilling, Messman-Moore, and Wright in their official capacities for money damages, her claim is also barred by the Eleventh Amendment. Will v. Mich. Dept. of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) (“[A] suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official’s office. - As such, it is" }, { "docid": "2612841", "title": "", "text": "39 L.Ed.2d 662 (1974). Here, Appellants made a claim for monetary damages against Gilchrist in his official capacity. Such a claim, in effect, is against the governmental entity employing Gilchrist. See Kentucky v. Graham, 473 U.S. 159, 166, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985) (noting that the government entity is “the real party in interest” in an official capacity suit). Thus, “when the action is in essence one for the recovery of money from the state, the state is the real, substantial party in interest and is entitled to invoke its sovereign immunity from suit even though individual officials are nominal defendants.” Ford Motor Co. v. Dep’t of Treasury, 323 U.S. 459, 464, 65 S.Ct. 347, 89 L.Ed. 389 (1945), overruled on other grounds by Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002). In determining whether Gilchrist is entitled to Eleventh Amendment immunity, we “must first establish whether [North Carolina’s] treasury will be affected by the law suit. If the answer is yes, [Gilchrist] is immune under the Eleventh Amendment.” Harter v. Vernon, 101 F.3d 334, 340 (4th Cir.1996). The answer to this question here is clear. The North Carolina Constitution provides for creation of prosecutorial districts and notes that the district attorney shall “be responsible for the prosecution on behalf of the State of all criminal actions.” N.C. Const, art. IV, § 18. The district attorney prosecutes “in the name of the State all criminal actions and infractions requiring prosecution” and is undoubtedly a state official. N.C. Gen.Stat. Ann. § 7A-61 (Lexis-Nexis 2003). Most important, North Carolina must pay “a final judgment awarded in a court of competent jurisdiction against a State employee.” N.C. Gen.Stat. Ann. § 143-300.6 (Lexis-Nexis 2003). Thus, North Carolina’s treasury would be affected by the official capacity suit against Gilchrist and he is accordingly immune in his. official capacity from suit under the Eleventh Amendment. See Lynn, 134 F.3d at 587 (applying Eleventh Amendment and barring suit against North Carolina state officials in drug tax case). We therefore affirm the dismissal of" }, { "docid": "7240341", "title": "", "text": "provision in the Constitution but “is derived by implication” from the nature of sovereignty itself. Keifer & Keifer v. Reconstruction Fin. Corp., 306 U.S. 381, 388, 59 S.Ct. 516, 83 L.Ed. 784 (1939); see also Monaco, 292 U.S. at 321, 54 S.Ct. 745. For the States, that immunity flows from the nature of sovereignty itself as well as the Tenth and Eleventh Amendments to the United States Constitution. Alden, 527 U.S. at 713, 119 S.Ct. 2240 (“[T]he sovereign immunity of the States neither derives from, nor is limited by, the terms of the Eleventh Amendment. Rather, as the Constitution’s structure, its history, and the authoritative interpretations by this Court make clear, the States’ immunity from suit is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution, and which they retain today.”); id. at 713-14, 119 S.Ct. 2240 (“Any doubt regarding the constitutional role of the States as sovereign entities is removed by the Tenth Amendment.”). The States’ immunity from suits in federal court applies to claims against a State by citizens of the same State as well as to claims against a State by citizens of another State. See Hans, 134 U.S. at 21, 10 S.Ct. 504; Alden, 527 U.S. at 728, 119 S.Ct. 2240; Barton v. Summers, 293 F.3d 944, 948 (6th Cir.2002). The immunity also applies to actions against state officials sued in their official capacity for money damages. See Lapides v. Bd. of Regents, 535 U.S. 613, 616, 623, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002); Edelman v. Jordan, 415 U.S. 651, 664-66, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). The States’ federal-court immunity comes with a host of exceptions. A State may elect to waive that immunity through legislation, see Port Auth. Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 305-09, 110 S.Ct. 1868, 109 L.Ed.2d 264 (1990), or through its conduct in litigation, see, e.g., Lapides, 535 U.S. at 616, 122 S.Ct. 1640. The immunity does not attach if the lawsuit is not against the State or an “arm of the State.” Mt. Healthy City Sch. Dist. Bd. of" }, { "docid": "6761821", "title": "", "text": "v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890), prohibits citizens from suing their own state. Ernst, 379 F.3d at 378-79 (citing Barton v. Summers, 293 F.3d 944, 948 (6th Cir.2002)). However, “[t]he bar of the Eleventh Amendment to suit in Federal courts extends to States and state officials in appropriate circumstances ... but does not extend to counties and similar municipal corporations.” Alkire v. Irving, 330 F.3d 802, 811 (6th Cir.2003)(quoting Mt. Healthy Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977)). Thus, to enjoy Eleventh Amendment immunity, Defendants must establish that they are “arms of the state” or “alter egos” of the state. However, as the Sixth Circuit noted in Ernst: Even if the party being sued is a state or an arm of the state, Eleventh Amendment immunity will not apply to a claim, under various circumstances. Immunity may be waived by the state or agency. Lapides v. Bd. of Regents, 535 U.S. 613, 619[, 122 S.Ct. 1640, 152 L.Ed.2d 806] (2002); Lawson v. Shelby County, 211 F.3d 331, 334 (6th Cir.2000); Nelson v. Miller, 170 F.3d 641, 646 (6th Cir.1999). Immunity may be waived by Congress. Nelson v. Miller, 170 F.3d at 646; Will v. Mich. Dep’t of State Police, 491 U.S. 58, 66[, 109 S.Ct. 2304, 105 L.Ed.2d 45] (1989). There tvill be no immunity if the claim challenges the constitutionality of actions against state officials and seeks only prospective, non-monetary damages, such as an injunction. Rossborough Mfg. Co. v. Trimble, 301 F.3d 482, 489 (6th Cir.2002)(citing Edelman v. Jordan, 415 U.S. 651, 664, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974) and Ex Parte Young, 209 U.S. 123, 150-60, 28 S.Ct. 441, 52 L.Ed. 714 (1908)); Nelson v. Miller, 170 F.3d at 646. Ernst, 379 F.3d at 379 (emphasis added). In the instant case, the Smith Plaintiffs’ Second Amended Complaint, read in the light most favorable to the Smith Plaintiffs as the non-moving party, seeks prospective, non-monetary damages, such as an injunction or declaratory relief. In Alkire v. Irving, 330 F.3d 802 (6th" }, { "docid": "2612840", "title": "", "text": "may rely upon any matter appearing in the record in support of the judgment below.”); Blackwelder v. Millman, 522 F.2d 766, 771-72 (4th Cir.1975) (noting that a party prevailing below “may support the judgment by urging any theory, argument, or contention which is supported by the record, even though it was specifically rejected by the lower court” (internal quotation marks omitted)). We agree that Appellants’ claims for damages are plainly barred by (1) the Eleventh Amendment and (2) the doctrine of prosecutorial immunity. A. The Eleventh Amendment states: “The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State or by Citizens or Subjects of any Foreign States.” U.S. Const, amend, XI. The Amendment has been read to make “an unconsenting State ... immune from suits brought in federal courts by her own citizens as well as by citizens of another State.” Edelman v. Jordan, 415 U.S. 651, 662-63, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). Here, Appellants made a claim for monetary damages against Gilchrist in his official capacity. Such a claim, in effect, is against the governmental entity employing Gilchrist. See Kentucky v. Graham, 473 U.S. 159, 166, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985) (noting that the government entity is “the real party in interest” in an official capacity suit). Thus, “when the action is in essence one for the recovery of money from the state, the state is the real, substantial party in interest and is entitled to invoke its sovereign immunity from suit even though individual officials are nominal defendants.” Ford Motor Co. v. Dep’t of Treasury, 323 U.S. 459, 464, 65 S.Ct. 347, 89 L.Ed. 389 (1945), overruled on other grounds by Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002). In determining whether Gilchrist is entitled to Eleventh Amendment immunity, we “must first establish whether [North Carolina’s] treasury will be affected by the law suit. If the answer is" }, { "docid": "21277160", "title": "", "text": "(“[T]he Eleventh Amendment does not extend its immunity to units of local government.”); Beentjes v. Placer County Air Pollution Control Dist., 397 F.3d 775, 777-78 (9th Cir.2005) (Eleventh Amendment does not extend to municipal corporations or other political subdivisions that are not arms of the state). There are, however, exceptions to Eleventh Amendment immunity. When acting pursuant to its authority under § 5 of the Fourteenth Amendment, Congress can abrogate the sovereign immunity of the states. See Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 238, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985) (superseded by statute on other grounds). Sovereign immunity also does not bar suits for prospective injunctive relief against individual state officials acting in their official capacity. See Ex parte Young, 209 U.S. 123, 156-57, 28 S.Ct. 441, 52 L.Ed. 714 (1908). Moreover, a state may waive its Eleventh Amendment immunity — by, for example, removing an action to federal court, which is what happened in this case. See Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613, 620, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002) (by removing to federal court, a state “voluntarily invoke[s]” federal jurisdiction and thereby waives its immunity). Applying these principles of sovereign immunity to cases under § 1983 and § 1981, courts have held that states enjoy sovereign immunity from suits brought under both statutes. In Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979), the Supreme Court made clear that § 1983 “does not explicitly and by clear language indicate on its face an intent to sweep away the immunity of the States” as required for an abrogation of sovereign immunity. Id. at 345, 99 S.Ct. 1139. Similarly, we, like all of the courts of appeal that have reached the issue, have concluded that states enjoy sovereign immunity under § 1981 in the absence of waiver. Mitchell v. Los Angeles Cmty. Coll. Dist., 861 F.2d 198, 201 (9th Cir.1988) (“[T]he district is a state entity that possesses eleventh amendment immunity from the appellants section 1981, 1983, and 1985 claims.”); see also Singletary v. Missouri" }, { "docid": "6162029", "title": "", "text": "claims against Defendant Williams are unsustainable where she was acting in her role as Defendants’ attorney; (2) the cause of action for fraud is not stated with the particularity required by Rule 9(b) of the Federal Rules of Civil Procedure; (3) the Complaint fails to state either a procedural or substantive due process claim against any of the S.U.N.Y Defendants; (4) all claims against the S.U.N.Y. School of Medicine and Biomedical Sciences, as well as the state law and § 1983 claims asserted against the individually named Defendants in their official capacities, are barred by the Eleventh Amendment. The Court will begin with the issue of sovereign immunity- 1. Sovereign Immunity under the Eleventh Amendment Defendant argues that all claims against the State University of New York at Buffalo School of Medicine and Biomechanical Sciences must be dismissed, as well as the § 1983 claims asserted against the individually named Defendants to the extent they are sued in their official' capacities. (SUNY Mem. of Law at 16-18, Docket No. 25.) Plaintiff responds that “Defendants overlook the fact that [Plaintiffs] complaint is the predicate document for a preliminary, and then permanent injunction.” (Pi’s Mem. in Opp’n at 11, Docket No. 31.) As a general rule, state governments and their agencies may not be sued in federal court unless they have waived their Eleventh Amendment immunity or there has been a valid abrogation of that immunity by Congress. Woods v. Rondout Valley Cent. Sch. Dist. Bd. of Educ., 466 F.3d 232, 236 (2d Cir.2006) (citing Lapides v. Bd. of Regents, 535 U.S. 613, 618-19, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002)); see Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). For Eleventh Amendment purposes, S.U.N.Y. is an integral part of the government of the State of New York and when it or one of its constituent campuses is sued the State is the real party. Dube v. State Univ. of N.Y., 900 F.2d 587, 594 (2d Cir.1990), cert. denied, 501 U.S. 1211, 111 S.Ct. 2814, 115 L.Ed.2d 986 (1991); see Feingold v." }, { "docid": "9754452", "title": "", "text": "its differences from other issues of jurisdiction. Henry v. Metro. Sewer Dist., 922 F.2d 332, 338 (6th Cir.1990) (\"the atypical jurisdictional bar of the eleventh amendment”). . Even if the party being sued is a state or an arm of the state, Eleventh Amendment immunity will not apply to a claim, under various circumstances. Immunity may be waived by the state or agency. Lapides v. Bd. of Regents, 535 U.S. 613, 619, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002); Lawson v. Shelby County, 211 F.3d 331, 334 (6th Cir.2000); Nelson v. Miller, 170 F.3d 641, 646 (6th Cir.1999). Immunity may be waived by Congress. Nelson v. Miller, 170 F.3d at 646; Will v. Mich. Dep’t of State Police, 491 U.S. 58, 66, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). There will be no immunity if the claim challenges the constitutionality of actions against state officials and seeks only prospective, non-monetary damages, such as an injunction. Rossborough Mfg. Co. v. Trimble, 301 F.3d 482, 489 (6th Cir.2002) (citing Edelman v. Jordan, 415 U.S. 651, 664, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974) and Ex Parte Young, 209 U.S. 123, 150-60, 28 S.Ct. 441, 52 L.Ed. 714 (1908)); Nelson v. Miller, 170 F.3d at 646. . The dissent states, \"In fact, on the flip side, the Supreme Court has consistently held that a state does not waive its Eleventh Amendment immunily by consenting to suit only in its own courts.\" (Emphasis in original.) . \"In addition to the states themselves, the Eleventh Amendment immunizes departments and agencies of the states. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984).” Dubuc v. Mich. Bd. of Law Exam'rs, 342 F.3d 610, 615 (6th Cir.2003). When sued in their official capacities, individual defendants enjoy immunity if they are officials of a state agency that would enjoy immunity. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) (stating, regarding a claim against an individual state official, pursuant to 42 U.S.C. § 1983, \"a suit against a state official" }, { "docid": "15009289", "title": "", "text": "The Supreme Court “has drawn on principles of sovereign immunity to construe the Amendment to establish that an unconsenting State is immune from suits brought in federal courts by her own citizens as well as by citizens of another State.” Port Auth. Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 304, 110 S.Ct. 1868, 109 L.Ed.2d 264 (1990) (internal quotation marks omitted). The States’ immunity also extends to “state agents and state instrumentalities.” Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429, 117 S.Ct. 900, 137 L.Ed.2d 55 (1997). “The Elev- enth Amendment bar to suit is not absolute,” however. Feeney, 495 U.S. at 304, 110 S.Ct. 1868. There are three exceptions to that constitutional bar. First, “Congress may abrogate the States’ Eleventh Amendment immunity when it both unequivocally intends to do so and acts pursuant to a valid grant of constitutional authority.” Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 363, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001) (internal quotation marks and alterations omitted). The applicability of the first exception is not a point of contention in this appeal because Congress did not abrogate the States’ immunity from money damage claims under Title I of the ADA. See id. at 374,121 S.Ct. 955. Second, “the Eleventh Amendment permits suits for prospective injunctive relief against state officials acting in violation of federal law.” Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 437, 124 S.Ct. 899, 157 L.Ed.2d 855 (2004). The second exception is also inapplicable here, because the complaint does not name as defendants any officials of the State of Maryland. Third, “[a] State remains free to waive its Eleventh Amendment immunity from suit in a federal court.” Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613, 618, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002). The third exception, that of waiver, is at issue in this proceeding. The Board maintains that the waiver exception is inapplicable because Supreme Court preeedent compels the conclusion that the State of Maryland has not forgone its Eleventh Amendment immunity. The Board acknowledges that" } ]

[ { "docid": "22749638", "title": "", "text": "was eventually appointed, Yohey claims that the district court erred in waiting to appoint the psychiatrist until eleven days before trial. Yohey argues that this delay denied him the necessary time to develop unspecified critical testimony. However, Yohey has failed to specify the critical testimony or allege specific facts as to how the delay prejudiced him. Ake specifically left to the states the decision on how to implement the right of indigents to psychiatric experts and indicated that an indigent defendant did not have a constitutional right to choose a psychiatrist of his personal liking or to receive funds to hire his own. Ake 470 U.S. at 83, 105 S.Ct. at 1096. Therefore, the fact that the state trial court waited until eleven days before trial to appoint a psychiatric expert does not warrant federal habeas relief, especially in light of Yohey's vagueness as to how he was prejudiced. Yohey does claim for the first time on appeal that the delay resulted in an inaccurate evaluation of his psychological profile at the time of the shootings. However, this issue, raised for the first time on appeal, need not be reviewed. Garcia-Pillado, 898 F.2d at 39. Non-psychiatric Experts Yohey also requested the appointment and funding of forensic and ballistic experts to assist in preparing his defense that he fired in self-defense and the shot which mortally wounded his wife’s boyfriend was actually fired by his wife. He claims that such experts would have assisted his self defense theory and that their absence forced him to testify as to matters that were more appropriately within the purview of a crime scene expert. This Court has held that non-psychiatric experts, such as ballistic experts, should be provided only if the evidence is “both ‘critical’ to the conviction and subject to varying expert opinion.” Scott v. Louisiana, 934 F.2d 631, 633 (5th Cir.1991) (citations omitted). Further, the Elevénth Circuit has held that Ake and Caldwell v. Mississippi, 472 U.S. 320, 323 n. 1, 105 S.Ct. 2633, 2637 n. 1, 86 L.Ed.2d 231 (1985) taken together hold that the government is not required to automatically" } ]

[ { "docid": "6494740", "title": "", "text": "default of this Sixth Amendment claim, therefore, precludes federal habeas review. See id. . The State argued to the district court that Ake is limited to requiring the State to provide psychiatric assistance to an indigent defendant when it is necessary to prepare his defense. Although this court has extended Ake to the State's provision of investigators and other experts as well, see, e.g., Castro v. Ward, 138 F.3d 810, 826 (10th Cir.1998); see also, e.g., Rojem, 245 F.3d at 1139, the Supreme Court has not specifically done so. See Caldwell v. Mississippi, 472 U.S. 320, 323 n. 1, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985) (noting that, because habeas petitioner had failed to allege more than \"undeveloped assertions” that trial court’s appointment of defense investigator and forensic experts would have been beneficial, Court could not conclude that trial court's denying defendant these experts resulted in due process violation; declining, therefore, \"to determine as a matter of federal constitutional law what if any showing would have entitled a defendant to assistance of th[is] type”). But see Medina v. California, 505 U.S. 437, 444-45, 112 S.Ct. 2572, 120 L.Ed.2d 353 (1992) (noting that A7ce expanded earlier Supreme Court due process cases holding that an indigent criminal defendant is entitled to minimum assistance necessary to assure fair opportunity to present his defense). There may, therefore, be an unresolved question as to whether, under AEDPA, Ake would be the \"clearly established” Supreme Court precedent applicable here. See 28 U.S.C. § 2254(d)(1); cf. Rogers v. Gibson, 173 F.3d 1278, 1285 n. 5 (10th Cir.1999) (noting that it is unclear whether Tenth Circuit’s extending Ake to apply in cases where State did not offer psychiatric evidence is appropriate standard to apply under AEDPA). We need not address that issue here, however, because, even applying this court's expanded view of Ake, Hawkins is not entitled to habeas relief. . 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). . Even if the trial court had suppressed Hawkins's California custodial statements, there" }, { "docid": "23483824", "title": "", "text": "Supreme Court’s decision in Ake v. Oklahoma, 470 U.S. 68, 76, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), which held that the “Fourteenth Amendment’s due process guarantee of fundamental fairness” requires the government to provide an indigent defendant, whose sanity is in question, with access to that psychiatric assistance necessary for preparation of an effective defense. Id. at 74, 105 S.Ct. 1087. He argues that the logic of Ake should be extended to the facts of this case; in particular, the proposed expert psychological testimony. While Ake makes clear that indigent defendants may be afforded psychiatrists at the government’s expense, Ake has been extended to hold that other expert services also may be provided so long as the defendant shows that they are a basic tool necessary to an adequate defense. See Medina v. California, 505 U.S. 437, 444-45,112 S.Ct. 2572, 120 L.Ed.2d 353 (1992) (noting that Ake “can be understood as an expansion of earlier due process cases holding that an indigent criminal defendant is entitled to the minimum assistance necessary to assure him a fair opportunity to present his defense and to participate meaningfully in the judicial proceeding”) (internal marks omitted); see, e.g., Rojem v. Gibson, 245 F.3d 1130, 1139 (10th Cir.2001) (finding defendant failed to make a sufficient showing to appoint an investigator); Moore v. Johnson, 225 F.3d 495, 503 (5th Cir.2000) (finding defendant failed to make a sufficient showing to appoint either a jury-selection expert or a mitigation expert); Castro v. Ward, 138 F.3d 810, 826 (10th Cir.1998) (finding defendant failed to make a sufficient showing to appoint an investigator); Matthews v. Price, 83 F.3d 328, 335 (10th Cir.1996) (same); Terry v. Rees, 985 F.2d 283, 284 (6th Cir.1993) (finding that defendant was denied due process when he was not appointed an independent pathologist to rebut evidence of victim’s cause of death); Little v. Armontrout, 835 F.2d 1240, 1243-45 (8th Cir.1987) (finding reversible error where the trial court failed to appoint an expert on hypnosis to rebut an eyewitness’s hypnotically-induced identification); cf. Aguilar v. Dretke, 428 F.3d 526, 534 (5th Cir.2005) (finding no due process violation" }, { "docid": "1435102", "title": "", "text": "bar that would have precluded appellant from raising his third claim above on federal habeas. We address appellant’s claims (1) through (7) in the order in which they are presented above. Because of our disposition of appellant’s ineffective assistance of counsel claim, we need not and do not address claims (8) through (10) on this appeal. DISCUSSION I. Expert Ballistics Assistance Claim Stephens contends that he was deprived of his constitutional rights by the state’s failure to provide funds for the appointment of a ballistics expert to assist in the preparation of an adequate defense. In Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), the Supreme Court held that the state must provide an indigent defendant with a competent psychiatrist to conduct an appropriate exami nation provided the “defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial.” The issue of whether Ake extends beyond an indigent defendant seeking to assert the defense of insanity was argued before this Court in Moore v. Kemp, 809 F.2d 702 (11th Cir.1987) (en banc). The opinion for the court in Moore found it unnecessary to reach this issue: The Supreme Court’s statement in Caldwell [v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985)] implies that the government’s refusal to provide nonpsychiatric expert assistance could, in a given case, deny a defendant a fair trial. The implication is questionable, however, in light of the court’s subsequent statement that it had “no need to determine as a matter of federal constitutional law what if any showing would have entitled a defendant to assistance of the type [Caldwell] sought.” Id. (emphasis added). We nonetheless assume, for sake of argument, that the due process clause could require the government, both state and federal, to provide nonpsychiatric expert assistance to an indigent defendant upon a showing of need. Id. at 711. Five judges concurred in the opinion to express their belief that Ake was limited to its facts. Id. (Hill, J., concurring in part and dissenting in" }, { "docid": "9970846", "title": "", "text": "on the grounds that the prisoner had not established by a preponderance of the evidence that the result of his criminal proceeding would have been different, that decision would be ‘diametrically different,’ ‘opposite in character or nature,’ and ‘mutually opposed’ to our clearly established precedent because we held in Strickland that the prisoner need only demonstrate a ‘reasonable probability that ... the result of the proceeding would have been different.’ ”) (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052). But this error is of no consequence because, even under the correct standard, Tinsley has not established prejudice. Tinslalso claims that Hellings’ failure to hire a blood-spatter expert for the defense violated his rights to due process and a fair trial. See Ake v. Oklahoma, 470 U.S. 68, 86-87, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985) (requiring funds for a court-appointed psychiatrist when an indigent defendant raised an insanity defense). Even if we were to accept Tinsley’s argument that Ake “applies when an expert in blood spatter evidence is needed,” Tinsley Br. at 38 — see Terry v. Rees, 985 F.2d 283 (6th Cir.1993) (holding that an indigent defendant was entitled to funds for a pathologist to testify on the victim’s cause of death) — Tinsley has not shown how the government interfered with or failed to fund his request for an independent expert, which is fundamental to Ake. See 470 U.S. at 77, 105 S.Ct. 1087 (requiring that “basic tools of an adequate defense or appeal ... be provided to those defendants who cannot afford to pay for them ”) (emphasis added; quotation marks omitted). As Tinsley acknowledges, he provided sufficient funds to Hellings to hire an expert, but Hellings chose not to hire one. Tinsley Br. at 37. 4. Tinsley next points to several other alleged deficiencies in Hellings’ performance during the guilt phase of the trial, not one of which establishes deficient performance. He criticizes the following statement by Hellings during his voir dire— “[tjhere are no lie detectors in this case. There is no scientific evidence that would exclude my client from doing it or says" }, { "docid": "1849969", "title": "", "text": "evidence. (We assume the rule of Alsbach would be applied by the state courts at any retrial of Little’s case.) When the state brings criminal charges against an indigent defendant, it must take steps to insure that the accused has a meaningful chance to present his defense. See Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956). While the state need not provide the indigent with all the tools the wealthy may buy, it must provide the defendant with the “basic tools of an adequate defense.” Britt v. North Carolina, 404 U.S. 226, 227, 92 S.Ct. 431, 433, 30 L.Ed.2d 400 (1971). In Alce v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed. 2d 53 (1985), the Supreme Court extended the definition of “basic tools” to include the appointment of a psychiatric expert for a defendant in a capital case when the defendant’s sanity would be a significant issue at trial. Failure to appoint an expert in such a case would be a denial of due process. Justice Marshall, writing for the Court, noted that the defendant’s interest in preventing an inaccurate determination of guilt would outweigh the state’s interest in avoiding the additional cost in a case where the assistance of an expert could reduce the risk of an erroneous outcome. Id. 105 S.Ct. at 1094-95. In Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), the Court declined to rule explicitly on whether the state had an obligation to appoint a nonpsychiatric expert for an indigent defendant. However, the Court based its decision on the fact that the defendant only baldly asserted his need for aid, making no showing as to the reasonableness of his request. Id. at 323 n. 1, 105 S.Ct. at 2637 n. 1. We must first decide whether the rule of Ake should be applied at all in the present context, where the expert in question is not a psychiatrist, and the death penalty is not a possibility. We think the answer" }, { "docid": "202311", "title": "", "text": "the display would have not had any exculpatory value. VI. Refusal to Provide Psychiatric Expert for Defense A. Applicability of Ake v. Oklahoma The Court holds that Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), should not be read to include a defendant who contests the mental element of the crime and the appropriateness of the death penalty due to diminished capacity. I respectfully dissent. In Ake the Supreme Court held that an indigent defendant is entitled under the due process clause to expert psychiatric assistance where a defendant’s sanity is a significant issue. The Supreme Court further held that a defendant did not have “a constitutional right to choose a psychiatrist of his personal lik-ing_” Id. at 83, 105 S.Ct. at 1096. The Supreme Court expressed concern that the indigent defendant have access to a “competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.” Id. (emphasis added). The Supreme Court did not address the precise issue of whether an indigent defendant would be entitled to a psychiatric expert when diminished mental capacity rather than insanity is the issue at trial, or when diminished mental capacity is the issue at the capital sentencing hearing. In Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), the Supreme Court declined to reach an issue raised by petitioner that the state failed to appoint experts and investigators to aid him in his defense. The Court did not reject Caldwell’s argument that an expert may be constitutionally required on issues other than sanity. It stated that petitioner had not presented a strong enough case. Caldwell, 472 U.S. at 323 n. 1, 105 S.Ct. at 2637 n. 1. Caldwell’s motion requesting a ballistics expert did not adequately explain why such an expert was necessary. Id. Two reasons argue that Ake covers cases where mental capacity is seriously in issue both on the question of the existence of the intent element of the crime and the question of mitigation of a sentence of death because of diminished capacity:" }, { "docid": "7017421", "title": "", "text": "Ake suggests that a defendant is entitled to a competent defense expert. Skaggs, 235 F.3d at 272-73. We must first address whether Ake’s protections apply to Smith, given that he withdrew his insanity plea prior to trial. I believe that Ake still applies. A number of Circuits, including our own, have interpreted Ake to require expert assistance beyond psychiatric assistance in conjunction with an insanity plea. In Terry v. Rees, 985 F.2d 283 (6th Cir.1993), this Court noted that Ake stands for the proposition that criminal trials are fundamentally unfair “if a state proceeds against an indigent defendant without making certain that he has access to the raw materials integral to building a defense.” Terry, 985 F.2d at 284. Accordingly, we held that the trial court violated Ake in denying the defendant’s request for an independent pathologist in order to challenge the government’s position as to the victim’s cause of death. Id. Similarly, the Eighth Circuit has held that the rule of Ake applies when the expert in question is not a psychiatrist, finding “no principled way to distinguish between psychiatric and nonpsychiatric experts.” Little v. Armontrout, 835 F.2d 1240, 1243 (8th Cir.1987) (en banc). The Eighth Circuit has also held that Ake required the appointment of a psychiatrist when the defendant had not pleaded insanity, but where his mental retardation was his strongest argument in mitigation for sentencing purposes. Starr v. Lockhart, 23 F.3d 1280, 1288 (8th Cir.1994). Many courts have interpreted Ake’s command — to provide expert psychiatric assistance when a defendant’s sanity is a significant factor — to mean more than strictly whether or not the defendant has pleaded not guilty by reason of insanity. Rather, Ake has regularly been interpreted to require expert psychiatric assistance any time the defendant’s “mental condition” is shown to be a significant factor at trial. In other words, the Supreme Court’s use of the term “sanity” in Ake was not restricted to occasions when defendants have chosen to plead insanity, but rather, encompassed all significant issues concerning a defendant’s mental condition. Indeed, in Ake itself, the Supreme Court stated that, “when" }, { "docid": "22252518", "title": "", "text": "UNDER AKE v. OKLAHOMA The majority opinion concludes that petitioner’s due process rights were not violated by the trial court’s refusal to appoint experts to assist him in the presentation of his defense because he failed to make the requisite showing that an expert would aid the defense or that the denial of such assistance would result in a fundamentally unfair trial. See Ake v. Oklahoma, 470 U.S. 68, 82-83, 105 S.Ct. 1087, 1096-97, 84 L.Ed.2d 53 (1985); see also Caldwell v. Mississippi, 472 U.S. 320, 323 n. 1, 105 S.Ct. 2633, 2637 n. 1, 86 L.Ed.2d 321 (1985). I would not turn the analysis of this issue on that conclusion. Petitioner has probably shown that expert assistance would have aided his defense. I would thus proceed to an analysis of whether, under Ake, petitioner was constitutionally entitled to the expert assistance he sought. At the outset I observe that the holding in Ake is simply that where the defendant makes a pre-trial showing that his sanity is likely to be a significant issue in the case he is entitled to the assistance of an independent psychiatrist at state expense if he cannot afford one. The issue of sanity vel non is a peculiar issue in criminal law, and the holding in Ake was principally motivated by the Court’s recognition that to prove a valid insanity defense one must necessarily present the testimony of psychiatrists. Analyzing the probable value of the psychiatric assistance sought in Ake and the risk of error in the proceeding if the assistance were not offered, the Supreme Court obviously considered essential to its decision the “reality that we recognize today, namely, that when the State has made the defendant’s mental condition relevant to his criminal culpability and to the punishment he might suffer, the assistance of a psychiatrist may well be crucial to the defendant’s ability to marshal his defense.” Ake, 470 U.S. at 80, 105 S.Ct. at 1095. The court commented at length upon the arcane nature of the inquiry into whether one is legally insane, noting in particular the indispensable nature of psychiatric" }, { "docid": "202312", "title": "", "text": "defendant would be entitled to a psychiatric expert when diminished mental capacity rather than insanity is the issue at trial, or when diminished mental capacity is the issue at the capital sentencing hearing. In Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), the Supreme Court declined to reach an issue raised by petitioner that the state failed to appoint experts and investigators to aid him in his defense. The Court did not reject Caldwell’s argument that an expert may be constitutionally required on issues other than sanity. It stated that petitioner had not presented a strong enough case. Caldwell, 472 U.S. at 323 n. 1, 105 S.Ct. at 2637 n. 1. Caldwell’s motion requesting a ballistics expert did not adequately explain why such an expert was necessary. Id. Two reasons argue that Ake covers cases where mental capacity is seriously in issue both on the question of the existence of the intent element of the crime and the question of mitigation of a sentence of death because of diminished capacity: first, the law from other circuits and second, the reasoning of the Court in Ake. Other circuits have read Ake to apply to nonpsychiatric experts. See Little v. Armontrout, 835 F.2d 1240 (8th Cir.1987) (en banc), cert. denied, 487 U.S. 1210, 108 S.Ct. 2857, 101 L.Ed.2d 894 (1988); Moore v. Kemp, 809 F.2d 702, 711-12 (11th Cir.) (en banc), cert. denied, 481 U.S. 1054, 107 S.Ct. 2192, 95 L.Ed.2d 847 (1987) (Eleventh Circuit “assume[d], for sake of argument, that the due process clause could require the government, both state and federal, to provide nonpsychiatric expert assistance to an indigent defendant upon a sufficient showing of need.”). In Little, the Eighth Circuit held that the indigent defendant in that case was entitled to the assistance of a nonpsychiatric expert where mental state was not a factor and the death penalty was not possible. The dispute in Little arose from the victim’s identification of the defendant, which occurred only after the victim was hypnotized. The defendant in Little was denied funds to hire his own hypnotist expert" }, { "docid": "22408690", "title": "", "text": "The Britt Court itself recognized that “the outer limits of that principle are not clear.” Britt, 404 U.S. at 227, 92 S.Ct. at 433. Obviously, the basic tools needed for an effective defense are not contained in any list, and the Supreme Court has only begun to delineate what the basic tools might be. For example, in Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), the Court considered “whether, and under what conditions, the participation of a psychiatrist is important enough to preparation of a defense to require the State to provide an indigent defendant with access to competent psychiatric assistance in preparing the defense.” Id. at 77, 105 S.Ct. at 1093. The Court specifically mentioned that the language in Britt regarding providing an indigent defendant the “basic tools of an adequate defense or appeal,” was only the beginning of the inquiry. Id. Then, in Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), the Court considered whether and when an indigent defendant is entitled to nonpsy-chiatric expert assistance. See id. at 323 n. 1, 105 S.Ct. at 2637 n. 1. Thus, the Supreme Court has not completely answered the question of what basic tools are necessary for an adequate defense. Petitioner has not cited any Supreme Court authority extending the principles of Britt to an indigent defendant’s request for free copies of transcripts from a prior trial of his codefendants for purposes of impeaching witnesses. Such a rule would impose a new obligation on the state government under factual circumstances beyond that recognized by the Supreme Court. Consequently, we conclude that Supreme Court precedent existing at the time of petitioner’s trial did not dictate or compel a rule that a defendant is entitled to a free copy of a transcript of his codefendants’ previous. trial for impeachment of witnesses. Although a petitioner’s case need not be factually identical to the facts in the case before the Supreme Court, a better analog than as presented in this case is necessary. Thus, the result of the decision of the Michigan Court of" }, { "docid": "22252517", "title": "", "text": "Judges, and HENDERSON, Senior Circuit Judge, joins: I concur in the judgment of the court, insofar as the sentence of death is concerned. Without reaching the constitutionality of the instructions given in this case had the judge not misspoke and instructed the jury that if they found an aggravating circumstance their verdict “would be” death, I agree that the instructions that were given do not pass constitutional muster. I also agree that petitioner has not shown that, under the Supreme Court’s recent decision in Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), he was constitutionally entitled to the assistance of non-psychiatric experts to aid him in his defense. I write separately on that issue because my analysis of that question differs somewhat from that of the majority opinion. I must respectfully dissent, however, from the majority’s holding that petitioner is entitled to an evidentiary hearing on the Brady/Giglio claim he presents. I address petitioner’s Ake claim in Part I and the Brady/Giglio claim in Part II. I. NON-PSYCHIATRIC EXPERT ASSISTANCE UNDER AKE v. OKLAHOMA The majority opinion concludes that petitioner’s due process rights were not violated by the trial court’s refusal to appoint experts to assist him in the presentation of his defense because he failed to make the requisite showing that an expert would aid the defense or that the denial of such assistance would result in a fundamentally unfair trial. See Ake v. Oklahoma, 470 U.S. 68, 82-83, 105 S.Ct. 1087, 1096-97, 84 L.Ed.2d 53 (1985); see also Caldwell v. Mississippi, 472 U.S. 320, 323 n. 1, 105 S.Ct. 2633, 2637 n. 1, 86 L.Ed.2d 321 (1985). I would not turn the analysis of this issue on that conclusion. Petitioner has probably shown that expert assistance would have aided his defense. I would thus proceed to an analysis of whether, under Ake, petitioner was constitutionally entitled to the expert assistance he sought. At the outset I observe that the holding in Ake is simply that where the defendant makes a pre-trial showing that his sanity is likely to be a significant issue in" }, { "docid": "202386", "title": "", "text": "because Kentucky’s statute inaccurately described the jurors’ actual role. VI. Refusal to Provide Psychiatric Expert for the Defense A. Applicability of Ake v. Oklahoma I join Chief Judge Merritt’s dissent on this issue. The question is whether Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), is limited to providing an indigent defendant with a psychiatric expert for presenting only a sanity-related defense. I believe that such a limitation on Ake’s holding is an unusually myopic reading of the reasoning in that opinion. I fully agree with Chief Judge Merritt’s analysis of this issue. The extension of Ake beyond the sanity issue is supported both by Justice Marshall’s Mathews v. El-dridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), due process analysis in Ake and by the lower federal courts and state courts that have recognized that Ake stands for the proposition that the state must furnish the defense with the “basic tools” for an adequate defense. Ake, 470 U.S. at 77, 105 S.Ct. at 1093; see, e.g., Little v. Armontrout, 835 F.2d 1240, 1243 (8th Cir.1987) (en banc), cert. denied, 487 U.S. 1210, 108 S.Ct. 2857, 101 L.Ed.2d 894 (1988) (holding that Ake required even non-psychiatric experts); Moore v. Kemp, 809 F.2d 702 (11th Cir.) (en banc), cert. denied, 481 U.S. 1054, 107 S.Ct. 2192, 95 L.Ed.2d 847 (1987); State v. Coker, 412 N.W.2d 589, 593 (Iowa 1987) (defendant entitled under Ake to expert on intoxication defense); In re Allen R., 127 N.H. 718, 506 A.2d 329 (1986) (Ake entitled defendant to mental health expert on issue of defendant’s competency to waive Miranda rights); but see State v. Massey, 316 N.C. 558, 342 S.E.2d 811, 816 (1986) (defendant not entitled to expert on competency to waive Miranda rights); Stafford v. Love, 726 P.2d 894 (Okla.1986) (Ake limited to psychiatric experts only); Ex parte Grayson, 479 So.2d 76 (Ala.), cert. denied, 474 U.S. 865, 106 S.Ct. 189, 88 L.Ed.2d 157 (1985) (Ake limited to psychiatrists and the insanity defense). I believe that under Justice Marshall’s due process/fundamental fairness analysis, Ake provides for experts on" }, { "docid": "3853447", "title": "", "text": "the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense. Id. at 83, 105 S.Ct. 1087. Both the federal and state courts have resisted an expansive reading of Ake. After Ake, the Court held that its decision should not be construed to compel the Government to provide an indigent with the assistance of an expert outside the limited circumstances of Ake. Caldwell v. Mississippi, 472 U.S. 320, 323 n. 1, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985)(“We therefore have no need to determine as a matter of federal constitutional law what if any showing would have entitled a defendant to assistance of the type here sought,” i.e., a criminal investigator, a fingerprint expert, and a ballistic expert). Both Ake and Caldwell emphasize the minimum showing required of the defense. Like our cases, Ake sets out a balance among private interests, Government interests, and the probative value of testimony sought, noting that mental condition evidence may be crucial to the defense. But the defense must establish that fact. Both the precedent of federal and state courts and our own precedent require that the defendant show the necessity for expert assistance and that the lack of such assistance would result in a fundamentally unfair trial. See, e.g., Moore v. Kemp, 809 F.2d 702, 712 (11th Cir.1987); Gray v. Thompson, 58 F.3d 59, 66-67 (4th Cir.1995), vacated on other grounds, Gray v. Netherland, 518 U.S. 152, 116 S.Ct. 2074, 135 L.Ed.2d 457 (1996); Little v. Armontrout, 835 F.2d 1240, 1244 (8th Cir.1987). In People v. Burt, 168 Ill.2d 49, 212 Ill. Dec. 893, 658 N.E.2d 375 (1995), the court stated that Ake does not compel the appointment of a mitigation specialist. Id. at 389 (citing People v. Lear, 143 Ill.2d 138, 157 Ill.Dec. 412, 572 N.E.2d 876 (1991)). The Supreme Court of Illinois stated that: “We have specifically held that a trial court is not constitutionally required to appoint a mitigation expert, or even an investigator, because defense counsel is capable of obtaining" }, { "docid": "1435103", "title": "", "text": "before this Court in Moore v. Kemp, 809 F.2d 702 (11th Cir.1987) (en banc). The opinion for the court in Moore found it unnecessary to reach this issue: The Supreme Court’s statement in Caldwell [v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985)] implies that the government’s refusal to provide nonpsychiatric expert assistance could, in a given case, deny a defendant a fair trial. The implication is questionable, however, in light of the court’s subsequent statement that it had “no need to determine as a matter of federal constitutional law what if any showing would have entitled a defendant to assistance of the type [Caldwell] sought.” Id. (emphasis added). We nonetheless assume, for sake of argument, that the due process clause could require the government, both state and federal, to provide nonpsychiatric expert assistance to an indigent defendant upon a showing of need. Id. at 711. Five judges concurred in the opinion to express their belief that Ake was limited to its facts. Id. (Hill, J., concurring in part and dissenting in part). In the present case, we again postpone the resolution of this issue. As in Moore, the petitioner in this case is not entitled to relief even if we assume that states may be required to provide nonpsychiatric expert assistance to indigent defendants. Stephens’ claim fails for two reasons. First, the defendant is unable to overcome the “threshold showing that [the issue on which expert assistance is sought was] likely to be a significant factor in his defense.” Ake, 470 U.S. at 82-83, 105 S.Ct. at 1096. Second, the state’s failure to provide funds to employ a ballistic expert in this case did not render Stephens’ trial fundamentally unfair. In Caldwell v. Mississippi, 472 U.S. 320, 323 n. 1, 105 S.Ct. 2633, 2637 n. 1, 86 L.Ed.2d 231 (1985), the Supreme Court tersely rejected a defendant’s claim that the state had failed to appoint a criminal investigator, fingerprint expert and ballistics expert in violation of' the constitution. The court disposed of this claim in a footnote, writing: “Given that petitioner offered little more than undeveloped" }, { "docid": "15269805", "title": "", "text": "the judge or jury on behalf of the defendant, but also to “assist in preparing the cross-examination of a State’s psychiatric witnesses,” id., at 82, 105 S.Ct. 1087, and in determining “how to interpret their answers,” id., at 80,105 S.Ct. 1087. Just as an indigent defendant’s rights to legal assistance would not be satisfied by a State’s provision of a lawyer who, after consulting with the defendant and examining the facts of the case and the applicable law, presented everything he knew about the defendant’s guilt to the defendant, the prosecution, and the court, so his right to psychiatric assis tance is not satisfied by provision of a psychiatrist who must report to both parties and the court. Id. at 964-65,110 S.Ct. 2577. Today, we join with those circuits that have held that an indigent criminal defendant’s constitutional right to psychiatric assistance in preparing an insanity defense is not satisfied by court appointment of a “neutral” psychiatrist — i.e., one whose report is available to both the defense and the prosecution. See Starr, 23 F.3d at 1289; Smith, 914 F.2d at 1159; Sloan, 776 F.2d at 929; Byers, 740 F.2d at 1114. As a result, in the matter before us, so long as Petitioner made the requisite preliminary showing that his sanity at the time of the offense was to be a “significant factor at trial,” the trial court erred in failing to grant Petitioner’s motion for an independent psychiatrist. See Ake, 470 U.S. at 83, 105 S.Ct. 1087. Since Ake, the Supreme Court has ruled that an indigent criminal defendant seeking psychiatric assistance must base his preliminary showing on more than a general statement of need; rather, he must support his request with specific facts. See Caldwell v. Mississippi 472 U.S. 320, 323 n. 1, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). Here, one month pri- or to trial, Petitioner’s attorneys produced Petitioner’s juvenile court records and psychological evaluations, alleging that these documents revealed mental deficiencies that should lead to the appointment of an expert to assist the defense in the presentation of its case. One of the reports," }, { "docid": "9865252", "title": "", "text": "2254(d)(1). We can grant a COA only if courts could objectively disagree with regard to whether Texas has so erred, or if our jurisprudence would be ennobled by further consideration of the question. With regard to the mitigation expert, it appears that the trial court provided Moore the opportunity to present additional information to demonstrate that the expert “would be significantly more effective in marshaling the evidence in [Moore]’s behalf than his own counsel,” but that “no further request or showing of necessity for a mitigation expert was made.” Moore, as a result, did not enjoy the benefits of a mitigation expert. Later, before the Court of Criminal Appeals, Moore again failed to argue that he should have been provided a mitigation expert. That court held that “since appellant does not make any arguments regarding expert assistance on this issue, we will only address expert assistance on the jury selection issue.” Moore, 935 S.W.2d at 130 n. 2. If a petitioner “offer[s] little more than undeveloped assertions that the requested assistance would be beneficial, we find no deprivation of due process in the trial judge’s decision” not to provide that assistance. Caldwell v. Mississippi, 472 U.S. 320, 323 n. 1, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). Moreover, claims that are barred as a consequence of a failure to comply with state procedural rules do not merit habeas relief and therefore cannot warrant issuance of a COA. Moore’s claims that he was constitutionally entitled to either of these experts fail on their merits as well. He bases his argument on the pronouncement in Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), that states must provide indigent defendants “access to a competent psychiatrist” in cases in which “a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial.” Id. at 83, 105 S.Ct. 1087. Moore argues that the Ake holding compels a finding in his favor. In coming to its conclusion, the Court in Ake held that [t]his Court has long recognized that" }, { "docid": "7017420", "title": "", "text": "Constitution requires that a state provide access to a psychiatrist’s assistance on this issue, if the defendant cannot otherwise afford one.” 470 U.S. at 74, 105 S.Ct. 1087. The Court went on to state that “when a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.” Id. at 83, 105 S.Ct. 1087. Prior to our opinion in Powell, we noted that Ake requires that a defendant be provided with psychiatric assistance during the sentencing phase if the defendant’s sanity is a significant factor at trial, or if the state presents psychiatric evidence of future dangerousness. Mason v. Mitchell, 320 F.3d 604, 615-16 (6th Cir.2003); Skaggs v. Parker, 235 F.3d 261, 272 (6th Cir.2000); United States v. Osoba, 213 F.3d 913, 917 (6th Cir.2000). We had also recognized, however, the possibility that Ake suggests that a defendant is entitled to a competent defense expert. Skaggs, 235 F.3d at 272-73. We must first address whether Ake’s protections apply to Smith, given that he withdrew his insanity plea prior to trial. I believe that Ake still applies. A number of Circuits, including our own, have interpreted Ake to require expert assistance beyond psychiatric assistance in conjunction with an insanity plea. In Terry v. Rees, 985 F.2d 283 (6th Cir.1993), this Court noted that Ake stands for the proposition that criminal trials are fundamentally unfair “if a state proceeds against an indigent defendant without making certain that he has access to the raw materials integral to building a defense.” Terry, 985 F.2d at 284. Accordingly, we held that the trial court violated Ake in denying the defendant’s request for an independent pathologist in order to challenge the government’s position as to the victim’s cause of death. Id. Similarly, the Eighth Circuit has held that the rule of Ake applies when the expert in question is not a psychiatrist, finding “no" }, { "docid": "9865253", "title": "", "text": "find no deprivation of due process in the trial judge’s decision” not to provide that assistance. Caldwell v. Mississippi, 472 U.S. 320, 323 n. 1, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). Moreover, claims that are barred as a consequence of a failure to comply with state procedural rules do not merit habeas relief and therefore cannot warrant issuance of a COA. Moore’s claims that he was constitutionally entitled to either of these experts fail on their merits as well. He bases his argument on the pronouncement in Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), that states must provide indigent defendants “access to a competent psychiatrist” in cases in which “a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial.” Id. at 83, 105 S.Ct. 1087. Moore argues that the Ake holding compels a finding in his favor. In coming to its conclusion, the Court in Ake held that [t]his Court has long recognized that when a State brings its judicial power to bear on an indigent defendant in a criminal proceeding, it must take steps to assure that the defendant has a fair opportunity to present his defense.... [A] criminal trial is fundamentally unfair if the State proceeds against an indigent defendant without making certain that he has access to the raw materials integral to the Building of an effective defense. Thus, while the Court has not held that a State must purchase for the indigent defendant all the assistance that his wealthier counterpart might buy, it has often reaffirmed that fundamental fairness entitles indigent defendants to an adequate opportunity to present their claims fairly within the adversary system. Id. at 76-77, 105 S.Ct. 1087 (internal citations and quotation marks omitted; emphases added). This circuit has, in light of Ake, held that “non-psychiatric experts ... should be provided only if the evidence is both critical to the conviction and subject to varying expert opinion.” Yohey v. Collins, 985 F.2d 222, 227 (5th Cir.1993) (citations and internal quotation marks omitted)." }, { "docid": "5253870", "title": "", "text": "indigent criminal defendants was required by the Constitution. Supreme Court precedent establishes the principle that the government, upon request, must provide indigent defendants with the “basic tools of an adequate defense or appeal, when those tools are available for a price to other prisoners.” Britt v. North Carolina, 404 U.S. 226, 227, 92 S.Ct. 431, 30 L.Ed.2d 400 (1971); see Douglas v. California, 372 U.S. 353, 357-58, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); Griffin v. Illinois, 351 U.S. 12, 18-19, 76 S.Ct. 585, 100 L.Ed. 891 (1956) (plurality opinion). Although the government need not purchase for the indigent defendant all the assistance that a wealthier defendant might buy, fundamental fairness requires that indigent defendants have “an adequate opportunity to present their claims fairly within the adversary system.” Ross v. Moffitt, 417 U.S. 600, 612, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974). In Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), the Supreme Court held that as part of the basic tools of an adequate defense, an indigent defendant has a due process right to the appointment of a psychiatrist to assist him in his defense when he “demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial.” Id. at 83. Although there was broad language in Ake suggesting application to a variety of circumstances in which an indigent defendant requests expert assistance, its precise holding was limited to the facts at hand. See id. at 83. In fact, the Supreme Court soon thereafter declined to extend Ake’s holding to the appointment of a criminal investigator, fingerprint expert, and ballistics expert and declined to address the question of “what if any showing would [entitle] a defendant to [private non-psychiatric] assistance” as a matter of federal constitutional law. Caldwell v. Mississip pi 472 U.S. 320, 323 n. 1, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985) (emphasis added). We interpret Ake and Caldwell together to stand for the proposition that due process as of the time Weeks’s conviction became final only required that an indigent" }, { "docid": "23440929", "title": "", "text": "an investigator, particularly in light of the trial court’s offer to provide him with the testimony of the witnesses from the Pappan murder trial. We affirm the district court’s determination that Mr. Castro failed to meet his burden of showing that an investigator was necessary to an adequate defense. See Matthews, 83 F.3d at 335 (holding that “ ‘undeveloped assertions that the requested assistance would be beneficial’” are insufficient to establish error in the denial of the appointment of an investigator (quoting Caldwell v. Mississippi 472 U.S. 320, 323 n. 1, 105 S.Ct. 2633, 2637 n. 1, 86 L.Ed.2d 231 (1985))). We turn now to. his argument that the court provided insufficient funds for a mental health expert. B. Mental Health Expert The Supreme Court in Ake required the State to “assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.” Ake, 470 U.S. at 83, 105 S.Ct. at 1096. The Court also stated, “[t]his is not to say, of course, that the indigent defendant has a constitutional right to choose a psychiatrist of his personal liking or to receive funds to hire his own.” Id. Rather, he need only have access to “a competent psychiatrist.” Id. The expert who assisted in Mr. Castro’s defense, Dr. Steven Caldwell, evaluated Mr. Castro and testified in the guilVinnocence, but not the penalty, phase of the trial. However, he was the last defense witness called, and his testimony occurred three days before the sentencing proceeding. In Castro I, we held that Mr. Castro’s due process rights were violated under Ake where there was no psychiatric testimony in either the guilt/innocence or the penalty phase of trial. In Brewer v. Reynolds, 51 F.3d 1519, 1525 (10th Cir.1995), we criticized trial counsel’s failure to recall during sentencing a mental health expert who had testified as to the defendant’s sanity during the guilt/innocence phase of the trial: Dr. Gagliano’s testimony was given at a point in the proceedings when the jury was focused on guilt or innocence rather than the sentence to" } ]

[ { "docid": "23053231", "title": "", "text": "affirmed on second appeal, 5 Cir., 476 F.2d 373, cert. denied, 414 U.S. 979, 94 S.Ct. 270, 38 L.Ed.2d 223. When a person is adjudged in contempt of court, the first essential is to determine the nature of the proceeding, i. e., whether the contempt is civil or criminal. Proceedings by way of criminal contempt are to punish defiance of judicial authority, whereas civil contempt serves to compel obedience of the court order or to compensate the litigant for injuries suffered because of the disobedience, Norman Bridge Drug Company v. Banner, 5 Cir. 1976, 529 F.2d 822, 827; 7 Moore’s Fed. Practice 165.-02[4]. So, if a person is held in criminal contempt for violating a restraining order, the fact that the order is later set aside as incorrect will not effect the judgment of contempt; the purpose there is vindication of the court’s authority, United States v. United Mine Workers, 1947, 330 U.S. 258, 294, 67 S.Ct. 677, 91 L.Ed. 884. A judgment of civil contempt, being remedial in nature, stands or falls with the validity or invalidity of the order, and the opposing party should be compensated only if he was entitled to the order, United States v. United Mine Workers, supra, 330 U.S. at 295, 67 S.Ct. at 696; Norman Bridge Drug Company v. Banner, supra, 529 F.2d at 828. In the case at bar, the trial court, in its conclusions of law, denominated the proceedings as civil contempt. A court’s characterization of its proceedings is a factor to be considered in determining the character of a contempt, although it is not conclusive, Southern Railway Company v. Lanham, 5 Cir. 1968, 403 F.2d 119, 124. The contempt case was initiated and prosecuted by the Jamaican claimants and their attorneys; the government as a representative of the court was not a party. The “punitive damages” assessed against the appellants were awarded to the appellees as “some compensation for the ordeal and anxiety through which they were put,” and were not payable to the Court. Were we unable to determine whether this judgment of contempt was of a civil or" } ]

[ { "docid": "6802359", "title": "", "text": "to do so at trial. They will be free to raise it on remand. II As a threshold issue we must determine whether this contempt adjudication is an appealable order within the meaning of 28 U.S.C. § 1291. A civil contempt order is ordinarily not appealable as a final order, Fox v. Capital Co., 299 U.S. 105, 107, 57 S.Ct. 57, 81 L.Ed. 67 (1936); appeal is proper, however, from a finding of criminal contempt. Union Tool Co. v. Wilson, 259 U.S. 107, 111, 42 S.Ct. 427, 66 L.Ed. 848 (1922). Therefore the appealability of the contempt order in this case depends on whether it can be characterized as criminal or civil. The feature that distinguishes criminal from civil contempt is that the purpose of the former is primarily to punish for actions already taken while the latter intends to coerce for prospective compliance. Shillitani v. United States, 384 U.S. 364, 370, 86 S.Ct. 1531, 1535,16 L.Ed.2d 622 (1966). Both imprisonment and a fine may be imposed to achieve these results. The test to determine the nature of the contempt is to ask “ . . . what does the court primarily seek to accomplish by imposing sentence?” Id. In this case we have no doubt that the plaintiff intended the contempt proceeding to be civil in nature. On September 22 Pabst filed a motion asking the court to find the defendants in civil contempt. On the same day Pabst sent a notice to the defendants entitled “Notice of Civil Contempt Hearing.” At the outset of the hearing on Pabst’s motion the court also addressed the matter as one of “civil contempt.” However, what the parties labeled the proceedings or how the court initially regarded defendants’ conduct are not determinative of the character of the contempt sentence. Shillitani, supra, at 369, 86 S.Ct. 1531. Rather, we must discover the purpose of the contempt proceeding, whether it was to punish or to coerce compliance. The contempt hearing of September 23 focused on the defendants’ conduct on September 21 and 22. Pabst contended and the court subsequently found that the picketing by" }, { "docid": "8119866", "title": "", "text": "some order in its business” and that it “wasn’t a matter of anger or passion or arbitrariness . . .” He accordingly confirmed the total fine of $1,500. . Federal courts have “inherent power to enforce compliance with their lawful orders through civil contempt.” Shillitani v. United States, 384 U.S. 364, 370, 86 S.Ct. 1531, 1535, 16 L.Ed.2d 622 (1966). See United States v. Mitchell, 556 F.2d 371, 384 (6th Cir. 1977); In re Long Visitor, 523 F.2d 443, 448 (8th Cir. 1975) ; cf. In re Investigation Before April 1975 Grand Jury, 531 F.2d 600, 608 & n. 13 (D.C. Cir. 1976) (28 U.S.C. § 1826 “intended ... to codify existing civil contempt procedures for recalcitrant witnesses in court and grand jury proceedings); Palmer v. United States, 530 F.2d 787, 788 (8th Cir. 1976) (same); note 14 infra (18 U.S.C. § 401 source of criminal contempt power). See generally Sedler, The Summary Contempt Power and the Constitution: The View from Without and Within, 51 N.Y.U. L.Rev. 34, 36 (1976). . Arguably, appellant was really cited for criminal contempt. The traditional distinction between civil and criminal contempt has been the difference between refusing to do what has been ordered (civil) and doing what has been prohibited (criminal). Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 449, 31 S.Ct. 492, 55 L.Ed. 797 (1911). A civil contempt judgment is conditional on obedience to the order, Shillitani v. United States, supra, 384 U.S. at 386, 86 S.Ct. 1531, prospective in operation, id. at 370-71, 86 S.Ct. 1531, and often for the benefit of the other party to the litigation, 11 C. Wright & A. Miller, Federal Practice and Procedure § 2960, at 584 (1973). By contrast, a criminal contempt judgment is unconditional, see id. § 704, at 159-61, retrospective in effect, id. § 702, at 148, and in vindication of the state’s authority, id. See Note, Procedures for Trying Contempts in the Federal Courts, 73 Harv.L. Rev. 353, 353-60 (1959). While the occurrences here at issue may partake of the nature of both civil and criminal contempt, see United States" }, { "docid": "21862629", "title": "", "text": "v. United States, 384 U.S. 364, 370, 86 S.Ct. 1531, 1535, 16 L.Ed.2d 622 (1966), or to compensate for the injuries resulting from the noncompliance. McComb v. Jacksonville Paper Co., 336 U.S. 187, 191, 69 S.Ct. 497, 499, 93 L.Ed. 599 (1949); TWM Manufacturing Co. v. Dura, 722 F.2d 1261, 1273 (6th Cir. 1983). Here, the District Court not only stated that the purpose of Jaques’ fine was remedial and compensatory, but fashioned the fine so as to do no more than compensate the injured parties for their actual-damages. These facts show that the contempt proceedings were plainly civil. McCrone v. United States, 307 U.S. 61, 64, 59 S.Ct. 685, 686, 83 L.Ed. 1108 (1939); Perfect Fit Industries v. Acme Quilting Co., 673 F.2d 53, 57 (2d Cir.), cert. denied 459 U.S. 832, 103 S.Ct. 73, 74 L.Ed.2d 71 (1982). Jaques was therefore not entitled to the procedural protections afforded criminal defendants. Moreover, no prejudice to Jaques resulted from the District Court’s failure to specify whether the proceedings were civil or criminal. The show cause order sent long in advance of the hearing clearly indicated the factual basis of the charge against Jaques. That order was sent on November 2, 1983, well before the December 22 hearing. At the hearing, Jaques had a full and fair opportunity to explain his failure to appear. Instead, he referred to the hearing itself as an “indignity to counsel.” He then degraded his profession and insulted the court by stating that he was absent because “I would have been scratching (my) testicles constantly if I had been here.” Jaques was afforded procedural safeguards well exceeding the minimum of notice and a reasonable time to prepare a defense held to apply in all contempt proceedings in United States v. Hawkins, 501 F.2d 1029, 1031 (9th Cir.), cert. denied 419 U.S. 1079, 95 S.Ct. 668, 42 L.Ed.2d 674 (1974), and we find no merit in his claim that he was denied due process. The actions taken by the District Court find additional and independent justification in 28 U.S.C. § 1927 , which authorizes the court to" }, { "docid": "18513886", "title": "", "text": "punitive damages); Knaus v. Concordia Lumber Co. (In re Knaus), 889 F.2d 773 (8th Cir.1989) ($270 in fees and $750 in punitive damages). The Court denied the first stay relief motion Mr. Lytran filed not only because of the procedural failure to pay the filing fee, but also because it failed on the merits. Since the fee is due upon filing the motion, the Court’s ruling could have no effect on the movant’s liability to pay it. The Court imposed sanctions against Mr. Lytran and Kansas Collection Agency because it concluded they were guilty of civil contempt. The Court has since discovered that a contempt fine is considered civil if it either coerces the defendant into complying with a court order or compensates the complaining party for losses caused by the contemptuous conduct, but is a criminal fine if it is unconditional and to be paid to the court. Hicks v. Feiock, 485 U.S. 624, 632, 108 S.Ct. 1423, 1429-30, 99 L.Ed.2d 721 (1988); International Union, United Mine Workers v. Bagwell, 512 U.S. -, -, 114 S.Ct. 2552, 2558-59, 129 L.Ed.2d 642 (1994). In addition, 11 U.S.C.A. § 362(h), the provision the Court was relying on when it imposed the fíne, authorizes only sanctions payable to the party injured by the stay violation. Thus, the Court inadvertently imposed a fine for criminal contempt by directing the $150 to be paid to the Court. That order will be modified to direct the money to be paid instead to the debtor. So far as the Court is aware, the only possible source for a jury trial right here is the United States Constitution. There is no right to a jury trial in a civil contempt proceeding. Shillitani v. United States, 384 U.S. 364, 370-71, 86 S.Ct. 1531, 1535-36, 16 L.Ed.2d 622 (1966); United States v. Carroll, 567 F.2d 955, 958 (10th Cir.1977). Even as a criminal sanction, the Court believes the fine imposed here was not so large as to invoke a constitutional right to jury trial. See United Mine Workers v. Bagwell, - U.S. at - n. 5, 114 S.Ct. at" }, { "docid": "6883100", "title": "", "text": "place them in a better position to receive favorable consideration of their request than had they followed proper procedures. The attorneys’ conduct, although hardly praiseworthy, does not establish beyond a reasonable doubt criminal willfulness to disobey or resist a lawful order of the court. Yet one more matter need be addressed. In Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 107 S.Ct. 2124, 95 L.Ed.2d 740 (1987), the Supreme Court reiterated a suggestion it had previously made that “when confronted with a witness who refuses to testify, a trial judge should first consider the feasibility of prompting testimony through the imposition of civil contempt, utilizing criminal sanctions only if the civil remedy is deemed inadequate.” Id. at 801, 107 S.Ct. at 2134 (citing Shillitani v. United States, 384 U.S. 364, 371 n. 9, 86 S.Ct. 1531, 1536 n. 9, 16 L.Ed.2d 622 (1966)). Our full Court in United States v. North, 621 F.2d 1255, 1261 n. 9 (3d Cir.) (in banc), cert. denied, 449 U.S. 866, 101 S.Ct. 199, 66 L.Ed.2d 84 (1980), expressed doubt as to whether Shillitani requires trial judges to explicitly state that civil contempt had been considered before beginning a criminal contempt proceeding. A panel of this Court subsequently noted that uncertainty in In re Grand Jury Proceedings Harrisburg Grand Jury 79-1, 658 F.2d 211, 217-18 (3d Cir.1981). We consider our previous statement in North as directed only to the issue of whether the trial judge must state on the record that the lesser alternative was considered, and do not read it as taking issue with the policy articulated in Shillitani. In any event, the Supreme Court’s repetition of its Shillitani recommendation in Young gives additional force to the admonition. We therefore urge the district courts in this Circuit, in giving effect to the principle of invoking only “the least possible power adequate to the end proposed,” Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 231, 5 L.Ed. 242 (1821), to consider the imposition of civil contempt sanctions before resorting to criminal contempt. As we have stated, “The sole purpose of" }, { "docid": "8629768", "title": "", "text": "in civil contempt for his continued failure to produce the documents. In this appeal, Rylander challenges his criminal contempt convictions. II CRIMINAL AND CIVIL CONTEMPT The difference between criminal and civil contempt is not always clear. The same conduct may result in citations for both civil and criminal contempt. United States v. United Mine Workers, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884 (1946). The distinction between the two forms of contempt lies in the intended effects of the court’s punishment. United States v. Asay, 614 F.2d 655, 659 (9th Cir.1980). Punishment for civil contempt is intended to be either coercive or compensatory, whereas the purpose of criminal contempt punishment is punitive. We explained the difference in United States v. Powers, 629 F.2d 619, 627 (9th Cir.1980): Punishment for civil contempt is usually considered to be remedial. The penalty is designed to enforce compliance with a court order. In re Timmons, 607 F.2d 120, 124 (5th Cir.1979). For that reason civil contempt punishment is conditional and must be lifted if the contemnor obeys the order of the court. Shillitani v. United States, 384 U.S. 364, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1966). The term of punishment for civil contempt cannot extend beyond the trial proceedings since at the termination of the trial the contemnor’s actions can no longer be purged. Shillitani, supra at 371, 86 S.Ct. at 1536. Criminal contempt is established when there is a clear and definite order of the court, the contemnor knows of the order, and the contemnor willfully disobeys the order. Chapman v. Pacific Tel. & Tel. Co., 613 F.2d 193, 195 (9th Cir.1979). The penalty is punitive in nature. It serves to vindicate the authority of the court and does not terminate upon compliance with the court’s order. The punishment is unconditional and fixed. In re Timmons, supra at 124. At the conclusion of his trial, Rylander was ordered incarcerated until he produced the summoned records or testified as to why he could not do so. The purpose of this order was coercive, so the indefinite incarceration was for civil contempt. This order" }, { "docid": "12646930", "title": "", "text": "contemptuous conduct.” Id. at 34. In these circumstances, the district court did not abuse its discretion in trebling the damages and awarding attorney fees. 3. Finally, Schubert contends that the $2 million civil fine the court imposed, to be paid to Suessen, was improper because the fine was a penalty imposed as punishment for criminal contempt and the district court did not follow the procedures required for a criminal contempt conviction. We agree. The distinction “between civil and criminal contempt lies in ‘what ... the court primarily seek[s] to accomplish by imposing sentence’ in the proceedings.” Carbon Fuel Co. v. United Mine Workers of Am., 517 F.2d 1348, 1349 (4th Cir.1975) (quoting Shillitani v. United States, 384 U.S. 364, 370, 86 S.Ct. 1531, 1535, 16 L.Ed.2d 622 (1966)). A civil contempt sanction “is remedial, and for the benefit of the complainant” while a criminal contempt sentence “is punitive, to vindicate the authority of the court.” Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 441, 31 S.Ct. 492, 498, 55 L.Ed. 797 (1911). See also Penfield Co. v. Sec. & Exch. Comm’n, 330 U.S. 585, 593, 67 S.Ct. 918, 922, 91 L.Ed. 1117 (1947); Carbon Fuel Co., 517 F.2d at 1349. “Judicial sanctions in civil contempt proceedings may, in a proper case, be employed for either or both of two purposes: to coerce the defendant into compliance with the court’s order, and to compensate the complainant for losses sustained. Where compensation is intended, a fine is imposed, payable to the complainant. Such fine must of course be based upon evidence of complainant’s actual loss.... ” United States v. United Mine Workers of Am., 330 U.S. 258, 303-04, 67 S.Ct. 677, 701-02, 91 L.Ed. 884 (1947) (citation and footnote omitted). The Fourth Circuit, the decisions of which on this issue we follow, has held that a contempt proceeding is civil if the penalty is intended “to coerce compliance with an order of the court or to compensate for losses or damages caused by noncompliance.” Windsor Power House Coal Co. v. District 6 United Mine Workers of Am., 530 F.2d 312," }, { "docid": "1193208", "title": "", "text": "their activities constituted civil, not criminal contempt. Respondents argue that while criminal contempt proceedings are not stayed by § 362(a) pursuant to an exception found at § 362(b)(1), civil contempt proceedings are automatically stayed. The Court disagrees. The numerous cases cited in the body of this opinion indicate that certain civil contempt proceedings may continue even in the face of a bankruptcy petition. The absence of a specific exception to § 362 is not dispositive of the issue of the effect of the bankruptcy filing on the civil contempt action. Though IDC is not explicit as to the nature of the contempt it seeks, the Court determines that the instant motion suggests civil contempt. As the Second Circuit has stated: Though the use of judicial power to secure future compliance with a court order involves civil contempt remedies, Shillitani v. United States, 384 U.S. 364, 368-70, 86 S.Ct. 1531, 1534-35, 16 L.Ed.2d 622 (1966), the use of such power in the aftermath of past violations can take the form of either civil contempt remedies or criminal contempt punishments, or both, Backo v. Local 281, United Brotherhood of Carpenters & Joiners of America, 438 F.2d 176 (2d Cir.1970), cert. denied, 404 U.S. 858, 92 S.Ct. 110, 30 L.Ed.2d 99 (1971). When an injunction has been violated, civil contempt remedies are available to provide compensation or other remedial relief for the party for whose benefit the injunction was entered, and criminal contempt penalties may be imposed, where appropriate, to punish the violation and vindicate the court’s authority. Universal City Studios v. New York Broadway International Corp., 705 F.2d 94, 96 (2d Cir.1983). Certainly, one of the considerations on this motion is the Court’s interest in “securpng] future compliance,” with its Order. Shillitani v. United States, 384 U.S. 364, 368-70, 86 S.Ct. 1531, 1534-35, 16 L.Ed.2d 622 (1966). Thus, coercive, civil contempt seems the appropriate route. On the other hand, the thrust of IDC's argument is that respondents have already violated the Order. This argument would indicate that punitive relief in the form of criminal contempt is called for. Indeed, since the Court" }, { "docid": "21595447", "title": "", "text": "as civil. The district court’s characterization is not determinative, but it is one factor. United States v. Powers, 629 F.2d 619, 626 (9th Cir.1980). To determine whether a contempt order is civil or criminal we look to its purpose. If its purpose is to punish a past violation of a court order the contempt is criminal. If its purpose is remedial, i.e. to compensate for the costs of the contemptuous conduct or to coerce future compliance with the court’s order, the contempt order is civil. See, e.g, Hicks ex rel. Feiock v. Feiock, 485 U.S. 624, 108 S.Ct. 1423, 1429, 99 L.Ed.2d 721 (1988); Perry v. O’Donnell, 759 F.2d 702, 705 (9th Cir.1985); Powers, 629 F.2d at 627. If the sanction is a fine payable to the court, it is remedial if the defendant can avoid paying the fine by performing the act required by the court’s order. Feiock, 108 S.Ct. at 1429-30. In this case the district court imposed two types of sanctions against Bi-tans and Fleming. First, it held them jointly and severally liable (along with three others who are not parties to this appeal) for the plaintiffs’ costs of bringing the contempt proceeding, including reasonable attorney's fees. This was a remedial sanction. See Perry, 759 F.2d at 705. Second, it imposed a fine of $500 on each of them, suspended on the condition of future compliance with the June 9, 1986 injunction. This was also remedial, since the defendants can avoid paying the fine by complying with the order. See Scott and Fetzer Co. v. Dile, 643 F.2d 670, 675 (9th Cir.1981) (contempt order civil in nature where court suspended fine of $500, payable to court upon the next violation by contemnor). Significantly, they were not placed on probation. See Feiock, 108 S.Ct. at 1429-30. Because Bitans and Fleming were not held in criminal contempt, they were not entitled to an impartial prosecutor. AFFIRMED." }, { "docid": "23237415", "title": "", "text": "to the clerk of the court, representing one-fourth of the costs incurred in the private prosecutor’s truncated investigation. The court characterized this sanction as “strictly compensatory.” J.A. at 1009. B The appellants contend that the district court's ruling was in substance a finding of criminal contempt and that the sanctions are invalid because they were imposed without the procedural protections required for a criminal contempt finding. We agree, and accordingly vacate and remand the order imposing sanctions. The first issue in reviewing a contempt sanction is whether the contempt sanction is properly characterized as civil or criminal, as this determination may bear on the type of notice required, the applicable standard of proof, and other issues. Smith v. Sullivan, 611 F.2d 1050, 1052 (5th Cir.1980). A district court’s description of a contempt sanction as either civil or criminal is not determinative and must be scrutinized independently by the appellate court. See Shillitani v. United States, 384 U.S. 364, 369, 86 S.Ct. 1531, 1535, 16 L.Ed.2d 622 (1966). Although the distinctions between civil and criminal contempt often become blurred when applied to particular cases, they are clear enough in the abstract: When the nature of the relief and the purpose for which the contempt sanction is imposed is remedial and intended to coerce the contemnor into compliance with court orders or to compensate the complainant for losses sustained, the contempt is civil; if, on the other hand, the relief seeks to vindicate the authority of the court by punishing the contemnor and deterring future litigants’ misconduct, the contempt is criminal. See United States v. United Mine Workers, 330 U.S. 258, 302-04, 67 S.Ct. 677, 700-02, 91 L.Ed. 884 (1947); 3 C. Wright, Federal Practice & Procedure: Criminal 2d § 704, at 823-24 (1982). In treating a particular contempt sanction as civil or criminal, “the critical features are the substance of the proceeding and the character of the relief that the proceeding will afford.” Hicks v. Feiock, 485 U.S. 624, 631, 108 S.Ct. 1423, 1429, 99 L.Ed.2d 721 (1988). In Hicks, the Supreme Court clarified “a few straightforward rules” for ascertaining “the" }, { "docid": "16080453", "title": "", "text": "18 U.S.C. § 401 (1988) (“A court of the United States shall have the power to punish, by fine or imprisonment, at its discretion, such contempt of its authority ... [as] [disobedience or resistance to its lawful writ, process, order, rule, decree, or command”). Civil contempt is the power of the court to impose sanctions to coerce compliance with its orders. Hicks v. Feiock, 485 U.S. 624, 632, 108 S.Ct. 1423, 1429-30, 99 L.Ed.2d 721 (1988); Shillitani v. United States, 384 U.S. 364, 370, 86 S.Ct. 1531, 1535, 16 L.Ed.2d 622 (1966); Gompers, 221 U.S. at 442, 31 S.Ct. at 498. Both imprisonment and fines, when coercive or conditional, are legitimate civil contempt sanctions. See, e.g., Shillitani, 384 U.S. at 370, 86 S.Ct. at 1535 (imprisonment); United States v. Bayshore Assoc., Inc., 934 F.2d 1391, 1400 (6th Cir.1991) (fines). B. PURGING CONTEMPT 1. What Is It and What Is Its Purpose? Once subject to contempt for failure to comply with a court order, the contem-nor must be afforded an opportunity to purge itself of the contempt. International Union, United Mine Workers of Am. v. Bagwell, — U.S. -, -, 114 S.Ct. 2552, 2558, 129 L.Ed.2d 642 (1994); Shillitani, 384 U.S. at 371, 86 S.Ct. at 1536. Compliance with that court order will purge the contempt and free the contemnor from coercive sanctions. See Bayshore Assoc., 934 F.2d 1391, 1400 (6th Cir.1991) (“[0]nce the defendant performs the act required by the court, he must be released”). The determination of compliance, like all decisions relating to contempt, is at the discretion of the court. See Peppers v. Barry, 873 F.2d 967, 968 (6th Cir.1989); National Labor Relat. Bd. v. Aquabrom, Division of Great Lakes Chemical Corp., 855 F.2d 1174, 1187 (6th Cir.1988) (“The only limitation [on a court’s contempt power] is that in a civil proceeding, the sanctions must not be penal in nature, but must be coercive or remedial”). In making its determinations on compliance and the appropriateness of continued contempt sanctions, a court should be guided by the remedial purpose of contempt. See Aquabrom, 855 F.2d 1174, 1187 (6th Cir.1988)" }, { "docid": "21595446", "title": "", "text": "failed to include in the record a transcript to support her claim that the trial court's finding and judgment was unsupported by the evidence); see also Jensen v. United States, 326 F.2d 891, 893 (9th Cir.1964) (refusing to consider the appellant’s assertion that the district court’s findings of fact were clearly erroneous). Accordingly, we decline to consider wheth er the district court erred in finding that Bitans and Fleming acted in concert with the named defendants and possessed knowledge of the preliminary injunction. III. The Sanctions Finally, Bitans and Fleming argue that the district court erred in allowing the attorney for the Portland Feminist Women’s Health Center to prosecute the contempt proceeding because under Young v. United States ex rel. Vuitton et Fils, S.A., 481 U.S. 787, 107 S.Ct. 2124, 95 L.Ed.2d 740 (1987), the defendants in contempt proceedings are entitled to an independent prosecutor. Bitans’ and Fleming’s reliance on Young is misplaced because Young applies only to criminal contempt proceedings. Bi-tans and Fleming were held in civil contempt. The district court characterized the contempt as civil. The district court’s characterization is not determinative, but it is one factor. United States v. Powers, 629 F.2d 619, 626 (9th Cir.1980). To determine whether a contempt order is civil or criminal we look to its purpose. If its purpose is to punish a past violation of a court order the contempt is criminal. If its purpose is remedial, i.e. to compensate for the costs of the contemptuous conduct or to coerce future compliance with the court’s order, the contempt order is civil. See, e.g, Hicks ex rel. Feiock v. Feiock, 485 U.S. 624, 108 S.Ct. 1423, 1429, 99 L.Ed.2d 721 (1988); Perry v. O’Donnell, 759 F.2d 702, 705 (9th Cir.1985); Powers, 629 F.2d at 627. If the sanction is a fine payable to the court, it is remedial if the defendant can avoid paying the fine by performing the act required by the court’s order. Feiock, 108 S.Ct. at 1429-30. In this case the district court imposed two types of sanctions against Bi-tans and Fleming. First, it held them jointly and severally" }, { "docid": "22953868", "title": "", "text": "within ninety days ... the court may, upon motion by plaintiff, consider a refund of such a portion of the fine as this court deems appropriate ... (emphasis added). The amended order also clarified that the source of the court’s contempt power was Fed.R.Civ.P. 37(b)(2)(D). This rule provides that if a party fails to obey an order to provide or permit discovery, the court may “make such orders in regard to the failure as are just, and among others ...” an order of contempt. In all other respects, the court’s amended order contained verbatim the language of the original order. III. ANALYSIS A. The Contempt Order On appeal, Falstaff contends that it has been adjudicated guilty of criminal contempt without being afforded procedural due process. Falstaff argues that the confusion surrounding the nature of the contempt proceeding resulted in prejudice because Falstaff’s counsel, believing the proceeding to be civil in nature, waived a hearing on the matter and failed to request a jury trial. 1. Determining the Nature of Contempt To distinguish civil from criminal contempt, the focus of the inquiry is often “not [upon] the fact of punishment but rather its character and purpose. Shillitani v. United States, 384 U.S. 364, 369, 86 S.Ct. 1531, 1534, 16 L.Ed.2d 622 (1966) (quoting Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 441, 31 S.Ct. 492, 498, 55 L.Ed. 797 (1911)). The test, as formulated by the Shillitani Court, is “what does the court primarily seek to accomplish by imposing [the sanction]?” 384 U.S. at 370, 86 S.Ct. at 1535. The primary purpose of criminal contempt is to punish past defiance of a court’s judicial authority, thereby vindicating the court. See Shillitani, 384 U.S. at 369, 86 S.Ct. at 1534; Gompers, 221 U.S. at 441, 31 S.Ct. at 498; Accord United States v. Powers, 629 F.2d 619, 627 (9th Cir.1980). The principal beneficiaries of such an order are the courts and the public interest. Ager v. Jane C. Stormont Hospital & Training School for Nurses, 622 F.2d 496, 500 (10th Cir.1980). Civil contempt is characterized by the court’s desire to" }, { "docid": "21862640", "title": "", "text": "disregarded his obligation to the court. Such intentional disrespect is sanetionable by criminal contempt.” Memorandum and Opinion, p. 19. (Emphasis added). For these reasons, the district judge found Jaques guilty of contempt under 18 U.S.C. § 401(1) and § 401(3). Ja-ques was ordered to pay to the Clerk of the Court the costs of compensating the venire panel and to reimburse defendant for its counsel’s hotel expenses and attorney fees incurred on October 26, 1983. Although the district judge stated that this fine was “remedial,” this characterization is not dispositive. United States v. Powers, 629 F.2d 619, 626 (9th Cir.1980). The contempt proceedings were not brought by an injured party seeking reimbursement for costs and expenses, nor were they intended to coerce prospective compliance. The matter was prosecuted by the district judge after the Ahmed case had already been settled. The fine, a portion of which was to be paid directly to the Clerk of the Court, was imposed as punishment for past misconduct. Its purpose was to vindicate the authority of the court in the face of what it perceived to be willful and reckless disregard for the court’s order. Accordingly, I conclude that the contempt proceedings were criminal in nature. Nevertheless, it is apparent that the district judge was unclear herself whether she was citing appellant for criminal or civil contempt. The initial order to show cause referred to “sanctions,” yet at the hearing, no statement was made by the court clarifying whether the contempt was criminal or civil, despite appellant’s request to know the specifics of the charge he was facing. The trial court’s memorandum and order compounds the confusion. Her opinion retained the civil case caption (indicative of civil contempt), but the court specifically, and for the first time, used the term “criminal contempt” in describing appellant’s conduct. Thus, although I am convinced that the proceedings were for criminal contempt, the record is confusing on this point, as evidenced by this panel’s inability to agree whether it was civil or criminal. A lawyer has a right to know from the very beginning whether he is being" }, { "docid": "21862627", "title": "", "text": "especially in light of the misrepresentations made regarding his whereabouts, was punishable as misbehavior so near the presence of the court “as to obstruct the administration of justice” under section 401(1). The court also found that Jaques’ conduct was punishable under section 401(3) because he had failed to comply with the court’s order compelling his appearance on October 26. With the express purpose of compensating the “victims of Jaques’ prevarications,” the court ordered Jaques to pay a “remedial” fine equal to the cost of compensating the twenty two member venire panel plus the opposing counsel’s hotel and attorney’s fees for October 26, an amount totalling $1804.87. II. A. Jaques contends that the District Court’s order imposing sanctions must be overturned because the show cause order and the court’s opinion failed to state clearly whether the contempt proceedings were civil or criminal, and that these proceedings were in fact criminal and failed to afford him the procedural due process he was constitutionally entitled to as a criminal defendant. Both civil and criminal contempt proceedings may be brought under 18 U.S.C. § 401, United States ex rel. Shell Oil Co. v. Barco Co., 430 F.2d 998, 1000 (8th Cir.1970), and because of the frequency with which the two forms of contempt are confused, a lower court’s characterization of its proceedings is but one factor to consider in determining their true nature. United States v. Powers, 629 F.2d 619, 626 (9th Cir.1980), citing Lewis v. S.S. Baune, 534 F.2d 1115, 1119 (5th Cir.1976). We must look instead to the “totality of the circumstances” to determine both the proper form of proceeding and that actually used. United States v. North, 621 F.2d 1255 (3rd Cir.) (en banc), cert. denied 449 U.S. 866, 101 S.Ct. 199, 66 L.Ed.2d 84 (1980). The District Court imposed a fine which was explicitly fashioned merely.to compensate the government and the opposing counsel for the harm caused by Jaques’ failure to appear, and ordered the fine paid over to the victims of his misconduct. Generally, civil contempt may be either intended to coerce future compliance with a court’s order, Shillitani" }, { "docid": "21862628", "title": "", "text": "brought under 18 U.S.C. § 401, United States ex rel. Shell Oil Co. v. Barco Co., 430 F.2d 998, 1000 (8th Cir.1970), and because of the frequency with which the two forms of contempt are confused, a lower court’s characterization of its proceedings is but one factor to consider in determining their true nature. United States v. Powers, 629 F.2d 619, 626 (9th Cir.1980), citing Lewis v. S.S. Baune, 534 F.2d 1115, 1119 (5th Cir.1976). We must look instead to the “totality of the circumstances” to determine both the proper form of proceeding and that actually used. United States v. North, 621 F.2d 1255 (3rd Cir.) (en banc), cert. denied 449 U.S. 866, 101 S.Ct. 199, 66 L.Ed.2d 84 (1980). The District Court imposed a fine which was explicitly fashioned merely.to compensate the government and the opposing counsel for the harm caused by Jaques’ failure to appear, and ordered the fine paid over to the victims of his misconduct. Generally, civil contempt may be either intended to coerce future compliance with a court’s order, Shillitani v. United States, 384 U.S. 364, 370, 86 S.Ct. 1531, 1535, 16 L.Ed.2d 622 (1966), or to compensate for the injuries resulting from the noncompliance. McComb v. Jacksonville Paper Co., 336 U.S. 187, 191, 69 S.Ct. 497, 499, 93 L.Ed. 599 (1949); TWM Manufacturing Co. v. Dura, 722 F.2d 1261, 1273 (6th Cir. 1983). Here, the District Court not only stated that the purpose of Jaques’ fine was remedial and compensatory, but fashioned the fine so as to do no more than compensate the injured parties for their actual-damages. These facts show that the contempt proceedings were plainly civil. McCrone v. United States, 307 U.S. 61, 64, 59 S.Ct. 685, 686, 83 L.Ed. 1108 (1939); Perfect Fit Industries v. Acme Quilting Co., 673 F.2d 53, 57 (2d Cir.), cert. denied 459 U.S. 832, 103 S.Ct. 73, 74 L.Ed.2d 71 (1982). Jaques was therefore not entitled to the procedural protections afforded criminal defendants. Moreover, no prejudice to Jaques resulted from the District Court’s failure to specify whether the proceedings were civil or criminal. The show cause" }, { "docid": "8119865", "title": "", "text": "subsequently tried by Kassner. The defendant Harris was acquitted. . Reference to another judge is in accord with our suggestion in In re Sutter, supra, 543 F.2d at 1033-34 n. 4, that costs imposed pursuant to Eastern District Rule 8 are best determined by another judge. Avoiding the appearance of personal animosity, which militates in favor of such Rule 8 references, is equally operative in the contempt context. . Judge Griesa, to whom the matter was assigned, see note 10 supra, viewed the matter “as a civil contempt proceeding or civil contempt proceedings, plural . . . .” At the hearing before Judge Griesa, Wendy again argued that “there was no intent to disobey the Court’s orders,” because he “never intended to be the attorney of record”; rather he had written his name on the notice of appearance out of “ignorance or stupidity.” Judge Griesa, however, considered that he had “no rational reason to second guess Judge Goettel on this,” that the matter went “to the authority of the ■ Court to try to keep some order in its business” and that it “wasn’t a matter of anger or passion or arbitrariness . . .” He accordingly confirmed the total fine of $1,500. . Federal courts have “inherent power to enforce compliance with their lawful orders through civil contempt.” Shillitani v. United States, 384 U.S. 364, 370, 86 S.Ct. 1531, 1535, 16 L.Ed.2d 622 (1966). See United States v. Mitchell, 556 F.2d 371, 384 (6th Cir. 1977); In re Long Visitor, 523 F.2d 443, 448 (8th Cir. 1975) ; cf. In re Investigation Before April 1975 Grand Jury, 531 F.2d 600, 608 & n. 13 (D.C. Cir. 1976) (28 U.S.C. § 1826 “intended ... to codify existing civil contempt procedures for recalcitrant witnesses in court and grand jury proceedings); Palmer v. United States, 530 F.2d 787, 788 (8th Cir. 1976) (same); note 14 infra (18 U.S.C. § 401 source of criminal contempt power). See generally Sedler, The Summary Contempt Power and the Constitution: The View from Without and Within, 51 N.Y.U. L.Rev. 34, 36 (1976). . Arguably, appellant was really" }, { "docid": "22953869", "title": "", "text": "contempt, the focus of the inquiry is often “not [upon] the fact of punishment but rather its character and purpose. Shillitani v. United States, 384 U.S. 364, 369, 86 S.Ct. 1531, 1534, 16 L.Ed.2d 622 (1966) (quoting Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 441, 31 S.Ct. 492, 498, 55 L.Ed. 797 (1911)). The test, as formulated by the Shillitani Court, is “what does the court primarily seek to accomplish by imposing [the sanction]?” 384 U.S. at 370, 86 S.Ct. at 1535. The primary purpose of criminal contempt is to punish past defiance of a court’s judicial authority, thereby vindicating the court. See Shillitani, 384 U.S. at 369, 86 S.Ct. at 1534; Gompers, 221 U.S. at 441, 31 S.Ct. at 498; Accord United States v. Powers, 629 F.2d 619, 627 (9th Cir.1980). The principal beneficiaries of such an order are the courts and the public interest. Ager v. Jane C. Stormont Hospital & Training School for Nurses, 622 F.2d 496, 500 (10th Cir.1980). Civil contempt is characterized by the court’s desire to compel obedience to a court order, Shillitani, 384 U.S. at 370, 86 S.Ct. at 1535, or to compensate the contemnor’s adversary for the injuries which result from the noncompliance. Gompers, 221 U.S. 418, 448-449, 31 S.Ct. 492, 500-501, 55 L.Ed. 797. Thus, there are two forms of civil contempt: compensatory and coercive. United States v. Asay, 614 F.2d 655, 659 (9th Cir.1980). A contempt adjudication is plainly civil in nature when the sanction imposed is wholly remedial, serves only the purposes of the complainant, and is not intended as a deterrent to offenses against the public. McCrone v. United States, 307 U.S. 61, 64, 59 S.Ct. 685, 686, 83 L.Ed. 1108 (1939). A court’s power to impose coercive civil contempt depends upon the ability of the contemnor to comply with the court’s coercive order. See Shillitani v. United States, 384 U.S. at 371, 86 S.Ct. at 1536 (citing Maggio v. Zeitz, 333 U.S. 56, 76, 68 S.Ct. 401, 411, 92 L.Ed. 476 (1948). While civil contempt may have an incidental effect of vindicating the court’s" }, { "docid": "3940356", "title": "", "text": "24 S.Ct. 665, 666, 48 L.Ed. 997 (1904). If the disobedient behavior is conduct of a continuing nature which the contemnor has the power to terminate, the court may choose to hold the contemnor in civil contempt and impose a sanction that is designed to coerce the contemnor to terminate his contumacious conduct. E.g., Shillitani v. United States, 384 U.S. 364, 368, 86 S.Ct. 1531, 1534, 16 L.Ed.2d 622 (1966). The sanction generally takes the form of a jail term or a monetary fine; but it is not intended to be punitive, and the court’s order will normally provide that the imprisonment or fine is to end as soon as the contemnor ends his contumacious behavior. See, e.g., id.; Gompers v. Bucks Stove & Range Co., supra, 221 U.S. at 441-42, 31 S.Ct. at 498; In re Irving, 600 F.2d 1027, 1037 (2d Cir.), cert. denied, 444 U.S. 866, 100 S.Ct. 137, 62 L.Ed.2d 89 (1979); In re Nevitt, 117 F. 448, 461 (8th Cir.1902) (civil contemnors “are imprisoned only until they comply with the orders of the court .... They carry the keys of their prison in their own pockets.”). If the court seeks to punish the contemnor for his past contumacy, it may treat the conduct as criminal contempt and impose a jail term or a monetary fine as vindication of the court’s authority. See 18 U.S.C. § 401 (1976) (a federal court “shall have power to punish by fine or imprisonment, at its discretion, ... (3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or command.”). Since the sanction imposed following an adjudication of criminal contempt is designed to punish rather than to coerce obedience in the future, the court’s order does not permit the contemnor to terminate the punishment by ending his contumacious behavior. See Gompers v. Bucks Stove & Range Co., supra, 221 U.S. at 441-43, 31 S.Ct. at 498-99; In re Irving, supra. Many forms of disobedience may be dealt with either as acts of civil contempt, or as acts of criminal contempt, or as both. United States v. United Mine" }, { "docid": "2660061", "title": "", "text": "contempt fine is also evident. However, a reading of the district court’s order reveals that it did consider the full record and found no mitigating circumstances which would warrant reducing the fine. Thus, there is no basis for concluding that the denial of the motion was premised on an erroneous legal standard. In any event, it was not error for the court to consider the need to vindicate its authority. Criminal contempt exemplified by a fixed fine or sentence has as its principle purpose the vindication of judicial authority. See Gompers v. Bucks Stove and Range Co., 221 U.S. 418, 441, 31 S.Ct. 492, 55 L.Ed. 346 (1911). Civil contempt is meant to be remedial and to benefit the complainant either by coercing the defendant to comply with the Court’s order via a conditional fine or sentence or by compensating the complainant for any injury caused by the defendant’s disobedience. See Gompers, supra at 441-443, 31 S.Ct. 492. Nonetheless, it is clear that there is no bright line dividing civil and criminal contempt. Vindication of judicial authority is present in both. See Juidice v. Vail, 430 U.S. 327, 335-36 and n. 12, 97 S.Ct. 1211, and n. 12, 51 L.Ed.2d 376 (1977); Shillitani v. United States, 384 U.S. 364, 369-371, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1966); Gompers v. Bucks Stove, supra, 221 U.S. at 443, 31 S.Ct. 492. In the words of the Second Circuit, “[t]he civil nature of the contempt is not turned criminal by the court’s efforts at vindicating its authority, an interest which may be implicated in either civil or criminal proceedings.” United States v. Wendy, 575 F.2d 1025, 1029 n. 13 (2d Cir. 1978). This is particularly true here, where the contempt sanction imposed was a coercive daily fine, designed to secure compliance with and respect for the court’s order. See Latrobe Steel Co. v. United States Steelworkers, 545 F.2d 1336, 1344 (3d Cir. 1976); id. at 1350 (Garth, J. concurring); Brotherhood of Locomotive Fire and Engine v. Bangor and Aroostook Ry Co., 127 U.S.App. D.C. 23, 36, 380 F.2d 570, 583 cert. denied, 389" } ]

[ { "docid": "3468275", "title": "", "text": "loan him money if it was to be put into KBDC because of the previous instance when he had to immediately pay off a loan from the Bank when bank examiners combined his loan with KBDC loans for the purpose of determining the Bank’s legal lending limit. Because of the previous incident with the bank examiners, George knew that once the loan proceeds were deposited into KBDC the Bank would have potentially violated the law by exceed ing its legal lending limit. He knew, or at the very least, recklessly disregarded the fact that John was making fraudulent representations to obtain personal loans for him. Further, the testimony of the Bank’s officers clearly supports the Court’s finding that the Bank relied on the misrepresentations made by John concerning use of the loan proceeds. The Bank was assured orally at least twice and in writing that the loan proceeds were to be used for the brothers’ personal investment. Although reliance in this case was reasonable, it is not necessary to find that the reliance was reasonable under § 523(a)(2)(A). It is necessary only to find that there was, in fact, reliance, whether reasonable or unreasonable. Ophaug, 827 F.2d at 342-343[l] (8th Cir.1987). Finally, the element of proximate cause has been established. The Bank has been damaged in the amount of the unpaid balance on each note, the interest accrued on the notes, and the attorney’s fees incurred. Absent John’s misrepresentations the Bank would not have loaned the money to John and these damages would not have occurred. See Van Horne, 823 F.2d 1285, 1289, quoting In re Maier, 38 B.R. 231, 233 (Bankr.D.Minn.1984). For all these reasons the Court holds that John and George made fraudulent misrepresentations concerning the use of the loan proceeds to obtain credit from the Bank for themselves. Accordingly, neither John’s debt nor George’s debt is discharge-able under 11 U.S.C. § 523(a)(2)(A). These same facts support a holding that John acted tortiously in procuring George’s loan and should, therefore, be held personally liable for the debt incurred by George. For the same reasons previously stated, that liability" } ]

[ { "docid": "13126288", "title": "", "text": "upon this event, his comptroller failed to do so. On September 13, Sheridan deposited $100,000 on the Carol Stream property. Sheridan repaid the May loan in full on November 13, 1989, at which time he still owed City National $200,000, the total of his deposit on the Carol Stream property. At the end of November, Sheridan provided City National with his August, 1989 financial statement listing his net worth at approximately $31 million. The Carol Stream property purchase closed on December 15, 1989, but Sheridan did not inform City National of this occurrence. On February 26, 1990, Sheridan requested $300,000 for an earnest money deposit on industrial property in Florida as well as for short-term cash flow needs, which City National approved and paid. In February, Sheridan also negotiated for the renewal of the August, 1989 draw. He informed City National that the Carol Stream deal had closed but City National renewed the note without inquiring as to why Sheridan had not repaid the money at the time of the closing. Both notes came due on May 15, 1990, at which time Sheridan asked for a further extension. City National requested an updated financial statement which indicated Sheridan had a net worth of approximately $32 million. In response to City National’s inquiry whether he was in default on any other loans, Sheridan stated no, although evidence presented at trial showed he was in default to his primary lender, MHT. City National granted Sheridan’s request for an extension and, upon receipt of a $100,-000 payment, gave Sheridan an additional extension when the notes came due in June, 1990. Sheridan failed to repay either loan on their final due date, July 27, 1990. In August, he informed all of his lenders that he could not pay them. On February 26, 1991, City National obtained a judgment against Sheridan for $438,385.69. Sheridan filed for Chapter 11 bankruptcy on April 26,1991. In his petition, Sheridan stated he had a negative net worth of approximately $16.6 million. City National moved the bankruptcy court to hold its judgment against Sheridan non-dischargeable. It alleged that Sheridan had" }, { "docid": "1179028", "title": "", "text": "purposes. At the time of such entrusting, no corporation by the name of BEAURGARD ENTERPRISES, INC., existed and, further, BLAGAICH used said monies for repayment of insider loans rather than for the purpose for which MILLER had directed and intended. During the time period of May 7,1984, to August 24, 1984, BLAGAICH took money out of the seafood restaurant business (BE-AURGARD) to pay insider loans and intentionally concealed such activity from MILLER, inasmuch as such disbursements were contrary to the purposes for which the monies were entrusted to BLAGAICH. Section 523(a)(2)(A) of the Bankruptcy Code, 11 U.S.C., § 523(a)(2)(A), excepts from discharge any debt for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained by— (A) false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s or an insider’s financial condition ... Included within the ambit of the actual fraud provisions of § 523(a)(2)(A) of the Bankruptcy Code is the conversion of funds by a debtor who is entrusted with money to be used for a specific purpose where no apparent intention exists for using the money for that purpose. Merchants National Bank & Trust Company of Indianapolis v. Pappas, (In the Matter of Pappas), 661 F.2d 82 (7th Cir.1981). This Court is not the first to recognize that a cause of action exists under § 523(a)(2)(A) of the Bankruptcy Code, 11 U.S.C., § 523(a)(2)(A), where property, which is not owned or in the custody or control of the debtor, is conveyed to a creditor. Rodgers v. Fallon, (In the Matter of Fallon), 29 B.R. 491, 10 B.C.D. 1054 (M.D.Fla.1983). Further, in Cass v. Jones, (In the Matter of Jones), 50 B.R. 911 (Bankr.N.D.Tex.1985), the Bankruptcy Judge found that entrusting money or property to a debtor for a specific purpose, where that debtor has no intention of using said money for such purpose, constitutes a misrepresentation upon which a debt can be held to be not dischargeable. In the case sub judice, clearly BLAGAICH accepted monies from MILLER recognizing a two-fold purpose. Firstly, MILLER sought to purchase 20% of" }, { "docid": "13126310", "title": "", "text": "property and had requested the return of his earnest money deposits. The court found that the termination and refund letters did not necessarily signify the end of negotiations. We find nothing wrong with the court’s decision, which it based on Sheridan and Lederer’s uncontroverted and “completely credible” testimony. As the court found, Sheridan made deposits on the properties in question in the same amounts it borrowed from City National. Sheridan did not make the deposits with the exact money forwarded by City National, but the court correctly emphasized the fact that money is interchangeable. It does not matter that Sheridan had negative account balances at the time of the money transfers; it matters that he put money to the use he promised. Neither Sheridan’s failure to repay the May draw upon the return of the Aurora deposit nor his neglect to repay the August draw when the Carol Stream deal closed in December necessarily reflect his intent at the time he requested the draws. For the foregoing reasons, the decision of the district court affirming the decision of the bankruptcy court is Affirmed. . City National argues that the court found that Sheridan’s financial statements were materially false, a contention Sheridan disputes. We need not discuss this element because we hold that the court applied the correct legal standard." }, { "docid": "13126285", "title": "", "text": "testified that he intended City National to rely on the statement in determining whether to extend him financing. The statement had been compiled in the same form, using the same methodology, as financial statements Sheridan had previously produced and had regularly submitted to other financial institutions and third parties. City National’s Executive Vice President in Charge of Lending and Chairman of its lending committee, G. Craig Young, reviewed the statement and asked Sheridan several questions regarding its contents. On March 28,1989, City National’s lending committee approved a $500,000 line of credit for Sheridan, subject to City National’s approval of each draw request made by Sheridan. The parties agreed that the line of credit would only be used to finance earnest money deposits. Sheridan further agreed to repay the funds when a sale closed and he had secured permanent financing, or when negotiations broke down and a sale failed to close. City National’s letter of commitment stated that Sheridan had to submit a “complete breakdown of the investment which the funds will be used to acquire, together with supporting documentation” with every request for funds. By signing this letter, Sheridan recognized that City National had relied on his financial statement. On April 24, 1989, Sheridan made his first draw request for $300,000 to make a principal payment to another bank. City National told Sheridan’s comptroller that the line of credit was not intended for that purpose, and Sheridan withdrew the request. On May 10, 1989, Sheridan requested $200,000 for earnest money deposits on property located in Carol Stream and Aurora, Illinois. City National approved the request and wired the money to Sheridan’s general business account. At the time he requested the draw, Sheridan’s account had a negative balance of over $117,000, which grew to over $175,000 on the day of the transfer. The loan proceeds brought Sheridan’s account to a positive balance. On May 25, Sheridan made an earnest money deposit of $100,000 on the Carol Stream property. On the same day, Sheridan received the proceeds from the sale of another property, which City National asserts is the money he used" }, { "docid": "13126305", "title": "", "text": "incorrect legal standard and that its findings are clearly erroneous. To prevail on a false pretenses claim, the creditor must show that the debtor obtained the money “through representations which the debtor either knew to be false or made with such reckless disregard for the truth as to constitute willful misrepresentation.” Kimzey, 761 F.2d at 423. City National must also prove that Sheridan acted with an intent to deceive and that City National relied on Sheridan’s misrepresentations. Matter of Mayer, 51 F.3d 670, 674-76 (7th Cir.1995) (“Reliance means the conjunction of a material misrepresentation with causation in fact.” A misrepresentation is not material if the creditor knows it is false or “possesses information sufficient to call the representation into question...”); see also 11 U.S.C. § 523(a)(2)(A). We have held that when a creditor entrusts the debtor with money to use for a specific purpose and the debtor has no intention of using it in that manner, a misrepresentation exists upon which a debt can be held non-dischargeable. In re Pappas, 661 F.2d 82, 86 (7th Cir.1981). In other words, proof that the debtor never put the money toward the stated purpose allows a court to infer the requisite intent. City National argues that the bankruptcy court erroneously engrafted the requirement that City National have ordered Sheridan to segregate the loan proceeds in order to prove the misrepresentation. The court noted, in its findings of fact, that while Sheridan may not have used the exact funds loaned to him by City National, he did, either before or after receiving the money, make the deposits. The court stated that the order of receipt and deposits did not matter because the “effect on City National is the same as if the proceeds of the August Draw had been used directly for the deposit. Given City National’s practice of depositing funds into a general account and the fungibility of money, ... City National has not proven that [Sheridan] did not intend to use the proceeds of the August Draw for the stated purposes.” As Sheridan contends, if the bankruptcy court felt that the lack" }, { "docid": "1179029", "title": "", "text": "for a specific purpose where no apparent intention exists for using the money for that purpose. Merchants National Bank & Trust Company of Indianapolis v. Pappas, (In the Matter of Pappas), 661 F.2d 82 (7th Cir.1981). This Court is not the first to recognize that a cause of action exists under § 523(a)(2)(A) of the Bankruptcy Code, 11 U.S.C., § 523(a)(2)(A), where property, which is not owned or in the custody or control of the debtor, is conveyed to a creditor. Rodgers v. Fallon, (In the Matter of Fallon), 29 B.R. 491, 10 B.C.D. 1054 (M.D.Fla.1983). Further, in Cass v. Jones, (In the Matter of Jones), 50 B.R. 911 (Bankr.N.D.Tex.1985), the Bankruptcy Judge found that entrusting money or property to a debtor for a specific purpose, where that debtor has no intention of using said money for such purpose, constitutes a misrepresentation upon which a debt can be held to be not dischargeable. In the case sub judice, clearly BLAGAICH accepted monies from MILLER recognizing a two-fold purpose. Firstly, MILLER sought to purchase 20% of the shares of a corporation which BLAG-AICH knew was not in existence; secondly, BLAGAICH, with an intent to conceal his activity from MILLER, used those monies to repay insider loans rather than for the valid corporate purpose for which they were entrusted. For these reasons, the Court determines the debt due and owing from BLAGAICH to MILLER to be non-dischargeable, pursuant to 11 U.S.C., § 523(a)(2)(A). Accordingly, the lawsuit presently pending in the Court of Common Pleas, Trumbull County, Ohio, Case Number 84-CV-1472, entitled, Kenneth Miller v. Walter C. Blagaich, Jr., and Joseph A. Nigrin, shall proceed and the amount of the Judgment, when determined, shall not be affected by the discharge granted the Debtor herein, WALTER CARL BLAGAICH, JR., in this cause. A separate Final Judgment of even date has been entered in conformity herewith. FINAL JUDGMENT In conformity with the Findings of Fact and Conclusions of Law of even date herewith, it is ORDERED AND ADJUDGED as follows: 1. This Court grants the prayer of Plaintiff, KENNETH MILLER (“MILLER”), and enters Judgment for" }, { "docid": "13126299", "title": "", "text": "wrongful intent. We first note that some of the evidence discussed by the bankruptcy court is circumstantial, contrary to City National’s assertion that the court exclusively emphasized the lack of direct evidence. The court did not discuss all of City National’s submissions, but it cannot be faulted for failing to mention every piece of evidence presented, especially in an oral ruling. After discussing certain evidence, the court stated the conclusion it drew from the circumstantial evidence in the record, thus indicating an awareness of its relevance. In fact, the court specifically recognized that circumstantial evidence could prove intent: “[T]o me, the evidence is equally persuasive that the debtor did not [use an incorrect discount rate] with the intent to deceive ... or with such reckless disregard for the truth that such intention [can] be inferred.” Thus, we conclude that the bankruptcy court applied the correct legal standard, considered the circumstantial evidence, and determined that, in light of the other evidence (or lack thereof) presented in this case, it did not support a finding of wrongful intent. City National could have challenged the bankruptcy court’s finding as clearly erroneous, but chose not to do so. Instead, it asserts that the bankruptcy court must have used an incorrect legal standard because otherwise it would not have directed a verdict for Sheridan given the strong circumstantial evidence City National had presented. The court found that Sheridan had used an “incorrect discount rate in valuing the assets because he used a rate applicable to the property value rather than the equity value.” City National points to courts that have found an intent to deceive based on similar misrepresentations or omissions by an experienced debtor, such as Sheridan. See In re Cunningham, 163 B.R. 657, 661 (Bkrtcy.D.Mass.1994); In re Bailey, 145 B.R. 919, 931 (Bkrtcy.N.D.Ill.1992); In re Hall, 109 B.R. 149, 155 (Bkrtcy.W.D.Pa.1990); In re Janes, 51 B.R. 932, 936 (Bkrtcy.D.Kan.1985); In re Blatz, 37 B.R. 401, 404 (Bkrtcy.E.D.Wis.1984). In addition, City National cites to cases in which the court inferred an intent to deceive based on a dramatic decline in net worth, such as" }, { "docid": "13126294", "title": "", "text": "money deposits had been refunded a deal could remain open and negotiations could resume. Sheridan and three employees testified that they could never know how much or when earnest money would be needed. Sheridan thus tried to anticipate future needs and borrow in advance. Sometimes, however, he had to make a deposit before a draw request was processed and would then use the loan proceeds to replemsh those funds. After City National had presented its case, the bankruptcy court directed a verdict for Sheridan on all counts. In an oral ruling, the court found that while the evidence was persuasive that Sheridan had used an incorrect discount rate in valuing his assets on the three financial statements, City National had failed to prove that Sheridan had acted with an intent to deceive. As to the false pretenses claim, the court found that Sheridan used the loan proceeds as he had represented he would in the draw requests. The district court affirmed the bankruptcy court’s determination regarding the financial statements, finding that it had applied the correct legal standard, but remanded for specific findings on the false pretenses claim. On remand, the bankruptcy court made twenty-nine factual findings, once again concluding that Sheridan had made earnest money deposits on the properties he sought the loans for in amounts equal to the loans. The court held that because money is fungible, it did not matter that Sheridan had not made the deposits with the exact money transferred by City National. The district court affirmed the decision and tMs appeal followed. II. City National contends that the bankruptcy court applied incorrect legal standards by holding that it could not prove Sheridan’s intent to deceive through circumstantial evidence and by making a requirement of segregation of funds an element of proof that Sheridan obtained a loan under false pretenses. City National also argues that the court improperly prohibited its expert from testifying as to what Sheridan would have had to have known about his allegedly false financial statements. Finally, City National urges us to hold that the bankruptcy court’s factual findings regarding the false" }, { "docid": "11410375", "title": "", "text": "if the equipment lease did not materialize. The threshold issue is whether Monroe made these statements with intent to deceive CFC. Intent A party may prove intent to deceive through direct evidence or such intent may logically be inferred from a false representation which the debtor knows or should know will induce another to act. In re Sheridan, 57 F.3d 627 (7th Cir.1995). Proof of intent to deceive is measured by the debtor’s subjective intention at the time the representation was made. Mercantile Bank v. Canovas, 237 B.R. 423, 428 (Bankr.N.D.Ill.1998). It has been held in this Circuit that when a creditor entrusts the debtor with money to use for a specific purpose and the debtor has no intention of using it in that manner, a misrepresentation exists upon which debt can be held non-dis-chargeable. In re Sheridan, 57 F.3d at 635 (“[p]roof that the debtor never put the money toward the stated purpose allows a court to infer, the requisite intent.”); In re Pappas, 661 F.2d 82, 86 (7th Cir.1981). Monroe obtained the deposit funds by representing and agreeing that they would be applied to the lease payments. Pl.’s Trial Exh. 12. However, the parties never executed a lease agreement apparently because of delays in the manufacture of the CNC-20 and the absence of final Bank financing commitment. As stated in In re Sheridan, 57 F.3d at 636, “the important question is whether the debtor made use of equivalent amounts of money in the required manner.” The trial record has no direct evidence demonstrating that Monroe did not at the time he received the money intend to use the deposit funds towards lease payments. Moreover, Monroe took affirmative steps to ensure that the lease would materialize. He compiled and submitted a financial proposal to Park Bank, submitted a purchase order to OMCG, and attempted to fulfill his duties under the Quotation and Agreement. When the funding and lease did not materialize, in part because production was delayed, Monroe’s company at least had an arguable claim for damages and claim of right to set off that claim against funds then" }, { "docid": "13126307", "title": "", "text": "of a segregation requirement was fatal to City National’s claim, the court would have had no reason to address the facts of the case. It made, however, twenty-nine conclusions of fact and discussed the different loans and deposits by Sheridan. In these circumstances, we do not believe that the court’s mention of the lack of a segregation requirement raised the level of proof needed to show false pretenses. Rather, the court appropriately recognized the fungibility of money and found that absent a segregation provision, the important question is whether the debtor made use of equivalent amounts of money in the required manner. The cases cited by City National in which courts have followed the principle announced in Pappas are thus inapposite to this situation. In those cases, the debtor had put either no money or only a portion of the proceeds toward the purpose given in its loan request. The courts held non-dischargeable the amount of the loans not used in the required manner. See In re Segala, 133 B.R. 261, 264 (Bkrtcy.D.Mass.1991); In re Eversole, 110 B.R. 318, 323 (Bkrtcy.S.D.Ohio 1990); In re Norton, 34 B.R. 666, 668 (Bkrtcy.D.Ariz.1983); see also In re Kroh, 88 B.R. 972, 983 (Bkrtcy.W.D.Mo.1988); In re Blagaich, 67 B.R. 375, 377 (Bkrtcy.S.D.Fla.1986); In re Jones, 50 B.R. 911, 921 (Bkrtcy.N.D.Tex.1985); In re Wade, 26 B.R. 477, 483 (Bkrtcy.N.D.Ill.1983). These decisions contrast with the instant case, in which the court concluded that Sheridan did use money for the purposes he had represented on his draw requests. City National also claims that the court’s findings that Sheridan used the August loan for his stated purpose are clearly erroneous. The court noted that the draw request was for earnest money deposits on properties in Carol Stream and Aurora. The court found that Sheridan had made a $100,000 deposit on the Carol Stream property after receiving the August draw proceeds. The court further found that Sheridan had used the remainder to replenish his business account from which he had previously made a $100,-000 deposit on the Aurora property. Moreover, the court noted that after Sheridan repaid the May" }, { "docid": "13126309", "title": "", "text": "draw in November, he owed City National $200,000, the amount of his deposit on the Carol Stream property and the amount of the August draw. Sheridan testified, without contradiction, that he would sometimes need to deposit money before a loan was processed and then would use the funds when received to replenish his account. The court relied on this practice, which City National did not prohibit, to find that the August 3 deposit should be credited against the August draw. City National argues, however, that Sheridan testified he would use his own money while waiting for a loan to come through, not, as occurred here, use his own money and then first request the necessary loan two weeks later. While the timing does seem a bit strange, the court assessed Sheridan’s credibility and did not clearly err in inferring appropriate conduct from his testimony. City National further objects to the court’s finding that Sheridan did not obtain the loan under false pretenses by accepting the draw proceeds after he had terminated negotiations on the Aurora property and had requested the return of his earnest money deposits. The court found that the termination and refund letters did not necessarily signify the end of negotiations. We find nothing wrong with the court’s decision, which it based on Sheridan and Lederer’s uncontroverted and “completely credible” testimony. As the court found, Sheridan made deposits on the properties in question in the same amounts it borrowed from City National. Sheridan did not make the deposits with the exact money forwarded by City National, but the court correctly emphasized the fact that money is interchangeable. It does not matter that Sheridan had negative account balances at the time of the money transfers; it matters that he put money to the use he promised. Neither Sheridan’s failure to repay the May draw upon the return of the Aurora deposit nor his neglect to repay the August draw when the Carol Stream deal closed in December necessarily reflect his intent at the time he requested the draws. For the foregoing reasons, the decision of the district court affirming" }, { "docid": "13126308", "title": "", "text": "Eversole, 110 B.R. 318, 323 (Bkrtcy.S.D.Ohio 1990); In re Norton, 34 B.R. 666, 668 (Bkrtcy.D.Ariz.1983); see also In re Kroh, 88 B.R. 972, 983 (Bkrtcy.W.D.Mo.1988); In re Blagaich, 67 B.R. 375, 377 (Bkrtcy.S.D.Fla.1986); In re Jones, 50 B.R. 911, 921 (Bkrtcy.N.D.Tex.1985); In re Wade, 26 B.R. 477, 483 (Bkrtcy.N.D.Ill.1983). These decisions contrast with the instant case, in which the court concluded that Sheridan did use money for the purposes he had represented on his draw requests. City National also claims that the court’s findings that Sheridan used the August loan for his stated purpose are clearly erroneous. The court noted that the draw request was for earnest money deposits on properties in Carol Stream and Aurora. The court found that Sheridan had made a $100,000 deposit on the Carol Stream property after receiving the August draw proceeds. The court further found that Sheridan had used the remainder to replenish his business account from which he had previously made a $100,-000 deposit on the Aurora property. Moreover, the court noted that after Sheridan repaid the May draw in November, he owed City National $200,000, the amount of his deposit on the Carol Stream property and the amount of the August draw. Sheridan testified, without contradiction, that he would sometimes need to deposit money before a loan was processed and then would use the funds when received to replenish his account. The court relied on this practice, which City National did not prohibit, to find that the August 3 deposit should be credited against the August draw. City National argues, however, that Sheridan testified he would use his own money while waiting for a loan to come through, not, as occurred here, use his own money and then first request the necessary loan two weeks later. While the timing does seem a bit strange, the court assessed Sheridan’s credibility and did not clearly err in inferring appropriate conduct from his testimony. City National further objects to the court’s finding that Sheridan did not obtain the loan under false pretenses by accepting the draw proceeds after he had terminated negotiations on the Aurora" }, { "docid": "2113982", "title": "", "text": "considered the $10,600.00 as their property since they lost their commission due to plaintiffs inability to fund the trip. CONCLUSIONS OF LAW The five elements required to prove that an obligation is non-dischargeable under Section 523(a)(2)(A) are as follows: 1. that the debtor made a representation; 2. that the debtor knew the representation was false when he made it; 3. that the debtor made the representation with intent to deceive the creditor; 4. that the creditor relied on the representation; and 5. that the creditor sustained damage as a proximate result of the false representation. In re Houtman, 568 F.2d 651, 655 (9th Cir.1978) (construing § 17(a)(2) of the old Act); Matter of Nelson, 561 F.2d 1342, 1346 (9th Cir.1977). After observing the respective testimony and exhibits, I conclude George A. Norton was entrusted with $10,600.00 of plaintiff’s money for the purpose of seat deposits when he had no intention of solely using the money for that purpose. Where debtor is entrusted with money to be used for a specific purpose, and has no apparent intention of using the money for that purpose, a misrepresentation clearly exists upon which a debt may be held nondis-chargeable. Matter of Pappas, 661 F.2d 82, 86 (7th Cir.1981) (Act case); In re Wade, 26 B.R. 477, 483 (Bkrtcy.N.D.Ill.1983) (Code case). By so finding, I do not imply travel agents may not receive compensation for their efforts when a trip is cancelled. Rather, those dealing with such businesses are entitled not to be misled concerning the purposes for which their money is to be used. At the close of trial, I sua sponte dismissed plaintiff’s complaint as to Mrs. Norton. Nothing in the Club’s post-trial memorandum mandates change of that decision. The difficulty with plaintiff’s complaint against Mrs. Norton is that no evidence was presented indicating she made the deposit misrepresentations. Accordingly, fraud, which is never presumed, has not been shown. Matter of Curry, 12 B.R. 421, 424-25 (Bkrtcy.M.D.Fla.1981) (finding fraud as to wife, dismissing as to husband); Matter of Benedict, 15 B.R. 671, 675 (Bkrtcy.W.D.Mo.1981) (reverse). Certainly fraud cannot be imputed to Mrs. Norton" }, { "docid": "13126306", "title": "", "text": "Cir.1981). In other words, proof that the debtor never put the money toward the stated purpose allows a court to infer the requisite intent. City National argues that the bankruptcy court erroneously engrafted the requirement that City National have ordered Sheridan to segregate the loan proceeds in order to prove the misrepresentation. The court noted, in its findings of fact, that while Sheridan may not have used the exact funds loaned to him by City National, he did, either before or after receiving the money, make the deposits. The court stated that the order of receipt and deposits did not matter because the “effect on City National is the same as if the proceeds of the August Draw had been used directly for the deposit. Given City National’s practice of depositing funds into a general account and the fungibility of money, ... City National has not proven that [Sheridan] did not intend to use the proceeds of the August Draw for the stated purposes.” As Sheridan contends, if the bankruptcy court felt that the lack of a segregation requirement was fatal to City National’s claim, the court would have had no reason to address the facts of the case. It made, however, twenty-nine conclusions of fact and discussed the different loans and deposits by Sheridan. In these circumstances, we do not believe that the court’s mention of the lack of a segregation requirement raised the level of proof needed to show false pretenses. Rather, the court appropriately recognized the fungibility of money and found that absent a segregation provision, the important question is whether the debtor made use of equivalent amounts of money in the required manner. The cases cited by City National in which courts have followed the principle announced in Pappas are thus inapposite to this situation. In those cases, the debtor had put either no money or only a portion of the proceeds toward the purpose given in its loan request. The courts held non-dischargeable the amount of the loans not used in the required manner. See In re Segala, 133 B.R. 261, 264 (Bkrtcy.D.Mass.1991); In re" }, { "docid": "13126287", "title": "", "text": "for the Carol Stream deposit. Sheridan deposited $100,-000 on the Aurora property on June 20, bringing his total deposits to $200,000, the amount of the May draw. City National presented evidence that just prior to his request for the draw, Sheridan had borrowed $275,000 from Manufacturers Hanover Trust Company (“MHT”) for an earnest money deposit on the Aurora property, although he made no such deposit in May. On August 4, 1989, Sheridan deposited $150,000 on the Aurora property. He requested a $200,000 draw for down payments on that and the Carol Stream property on August 23, 1989. Two days later, Sheridan sent a letter terminating negotiations for the Aurora property, and on August 31, before he had received the money from City National, Sheridan requested the return of his Aurora deposits. City National transferred the draw proceeds to Sheridan on September 5, 1989, at which time Sheridan’s account had a negative balance of approximately $8,000. Sheridan received the $250,000 Aurora deposit refund on September 7, and although Sheridan knew he had to repay the bank upon this event, his comptroller failed to do so. On September 13, Sheridan deposited $100,000 on the Carol Stream property. Sheridan repaid the May loan in full on November 13, 1989, at which time he still owed City National $200,000, the total of his deposit on the Carol Stream property. At the end of November, Sheridan provided City National with his August, 1989 financial statement listing his net worth at approximately $31 million. The Carol Stream property purchase closed on December 15, 1989, but Sheridan did not inform City National of this occurrence. On February 26, 1990, Sheridan requested $300,000 for an earnest money deposit on industrial property in Florida as well as for short-term cash flow needs, which City National approved and paid. In February, Sheridan also negotiated for the renewal of the August, 1989 draw. He informed City National that the Carol Stream deal had closed but City National renewed the note without inquiring as to why Sheridan had not repaid the money at the time of the closing. Both notes came due" }, { "docid": "13126293", "title": "", "text": "Sheridan testified that he had input into the assumptions underlying the valuations and that he possessed the data regarding the properties’ actual performance when preparing the financial statements. Sheridan also testified that he had used the same procedures to evaluate whether to purchase property and that many different people participated in the process. Each of the financial statements stated that some or all of the real estate investment valuations had been based on projected net cash flow and included the range of discount rates used, but City National had never inquired into Sheridan’s underlying assumptions. Regarding the false pretenses claim, Sheridan and Stuart Lederer, the general partner in charge of real estate acquisitions, testified that the termination of negotiations and request for refund letters did not signify the true end of the Aurora deal because the whole course of those negotiations had been very volatile. Sheridan further stated that the Aurora deal “blew up for the last time sometime in September,” although he knew that fact only through Mndsight. Lederer testified that even after earnest money deposits had been refunded a deal could remain open and negotiations could resume. Sheridan and three employees testified that they could never know how much or when earnest money would be needed. Sheridan thus tried to anticipate future needs and borrow in advance. Sometimes, however, he had to make a deposit before a draw request was processed and would then use the loan proceeds to replemsh those funds. After City National had presented its case, the bankruptcy court directed a verdict for Sheridan on all counts. In an oral ruling, the court found that while the evidence was persuasive that Sheridan had used an incorrect discount rate in valuing his assets on the three financial statements, City National had failed to prove that Sheridan had acted with an intent to deceive. As to the false pretenses claim, the court found that Sheridan used the loan proceeds as he had represented he would in the draw requests. The district court affirmed the bankruptcy court’s determination regarding the financial statements, finding that it had applied the" }, { "docid": "13126289", "title": "", "text": "on May 15, 1990, at which time Sheridan asked for a further extension. City National requested an updated financial statement which indicated Sheridan had a net worth of approximately $32 million. In response to City National’s inquiry whether he was in default on any other loans, Sheridan stated no, although evidence presented at trial showed he was in default to his primary lender, MHT. City National granted Sheridan’s request for an extension and, upon receipt of a $100,-000 payment, gave Sheridan an additional extension when the notes came due in June, 1990. Sheridan failed to repay either loan on their final due date, July 27, 1990. In August, he informed all of his lenders that he could not pay them. On February 26, 1991, City National obtained a judgment against Sheridan for $438,385.69. Sheridan filed for Chapter 11 bankruptcy on April 26,1991. In his petition, Sheridan stated he had a negative net worth of approximately $16.6 million. City National moved the bankruptcy court to hold its judgment against Sheridan non-dischargeable. It alleged that Sheridan had made materially false written statements regarding his financial position on which City National had relied in lending him money, referring to the three financial statements. 11 U.S.C. § 523(a)(2)(B). City National also contended that Sheridan had obtained the August, 1989 loan under false pretenses by representing that he would use the proceeds as earnest money deposits on the Aurora property when he had no intention of doing so. 11 U.S.C. § 523(a)(2)(A). At trial before the bankruptcy court, City National presented the expert testimony of Harold Sullivan, a certified public accountant and the partner in charge of Ernst & Young’s reorganization practice. Sullivan is also certified as a business valuation appraiser and oversees Ernst & Young’s valuation department. He testified that each of Sheridan’s three financial statements materially overstated the value of his real estate investments and his net worth. Sullivan asserted that at all relevant times, Sheridan’s actual net worth was close to zero. Sullivan reached his conclusions after examining Sheridan’s five largest investments, which accounted for over 75% of the real estate holdings" }, { "docid": "13126300", "title": "", "text": "intent. City National could have challenged the bankruptcy court’s finding as clearly erroneous, but chose not to do so. Instead, it asserts that the bankruptcy court must have used an incorrect legal standard because otherwise it would not have directed a verdict for Sheridan given the strong circumstantial evidence City National had presented. The court found that Sheridan had used an “incorrect discount rate in valuing the assets because he used a rate applicable to the property value rather than the equity value.” City National points to courts that have found an intent to deceive based on similar misrepresentations or omissions by an experienced debtor, such as Sheridan. See In re Cunningham, 163 B.R. 657, 661 (Bkrtcy.D.Mass.1994); In re Bailey, 145 B.R. 919, 931 (Bkrtcy.N.D.Ill.1992); In re Hall, 109 B.R. 149, 155 (Bkrtcy.W.D.Pa.1990); In re Janes, 51 B.R. 932, 936 (Bkrtcy.D.Kan.1985); In re Blatz, 37 B.R. 401, 404 (Bkrtcy.E.D.Wis.1984). In addition, City National cites to cases in which the court inferred an intent to deceive based on a dramatic decline in net worth, such as occurred here. See Bailey, 145 B.R. at 931; In re Myers, 124 B.R. 735, 741 (Bkrtcy.S.D.Ohio 1991), district court dismissal aff'd, 961 F.2d 1577 (6th Cir.1992); Blatz, 37 B.R. at 401. While these cases would support the bankruptcy court’s decision had it inferred an intent to deceive from the circumstantial evidence admitted in this case, they do not compel such a finding and do not require us to reverse the court’s holding. Kimzey stated that an intent to deceive may be inferred from certain evidence and did not hold that a court must infer intent whenever a creditor presents circumstantial evidence of the type discussed above. Whether to infer the requisite intent is left to the bankruptcy court that presides over the case. Because that court is in the best position to observe the witnesses and presentment of the evidence, we review its findings only for clear error, an argument City National has not made. See Janes, 51 B.R. at 936 (court noted that it observed the debtor’s demeanor and evaluated his credibility when inferring" }, { "docid": "13126297", "title": "", "text": "here is whether Sheridan possessed the requisite intent when he submitted his financial statements to City National. Of course, a party can prove an intent to deceive through direct evidence. Alternatively, this court has held that wrongful intent may “logically be inferred from a false representation which the debtor knows or should know will induce another to make a loan.” In re Kimzey, 761 F.2d 421, 424 (7th Cir.1985); see also Matter of Garman, 643 F.2d 1252, 1260-61 (7th Cir.1980) (“[W]here ... a person knowingly or recklessly makes a false representation which the person knows or should know will induce another to make a loan, intent to deceive may be logically inferred.”) (quoting Carini v. Matera, 592 F.2d 378, 380 (7th Cir.1979)), cert. denied, 450 U.S. 910, 101 S.Ct. 1347, 67 L.Ed.2d 333 (1981); In re Olinger, 160 B.R. 1004, 1012 (Bkrtcy.S.D.Ind.1993); In re Austin, 138 B.R. 898, 914 (Bkrtcy.N.D.Ill.1992). City National argues that the bankruptcy court incorrectly held that circumstantial evidence can never prove an intent to deceive, contravening our teachings in Kimzey. The district court, reading the bankruptcy court’s oral ruling in its entirety, determined that the bankruptcy court had not so held, but rather had concluded that City National’s circumstantial evidence did not support a finding of wrongful intent in this case. We agree. The court stated that City National had presented no direct evidence that Sheridan knew or believed that the values of the properties contained in the financial statements were inflated. It also noted that witnesses had testified that Sheridan had used the same valuation process for internal business purposes and financial statements long before he had any dealings with City National. Sheridan did not prepare the statements by himself and did not unduly influence his employees to make certain valuation decisions or do anything other than follow their own best judgment. The court continued: The circumstantial evidence that may be in the record is consistent with an overly aggressive but nonfraudulent approach to real estate investments. That is circumstantial evidence and is not enough on which to base a finding of the reckless or" }, { "docid": "13126286", "title": "", "text": "together with supporting documentation” with every request for funds. By signing this letter, Sheridan recognized that City National had relied on his financial statement. On April 24, 1989, Sheridan made his first draw request for $300,000 to make a principal payment to another bank. City National told Sheridan’s comptroller that the line of credit was not intended for that purpose, and Sheridan withdrew the request. On May 10, 1989, Sheridan requested $200,000 for earnest money deposits on property located in Carol Stream and Aurora, Illinois. City National approved the request and wired the money to Sheridan’s general business account. At the time he requested the draw, Sheridan’s account had a negative balance of over $117,000, which grew to over $175,000 on the day of the transfer. The loan proceeds brought Sheridan’s account to a positive balance. On May 25, Sheridan made an earnest money deposit of $100,000 on the Carol Stream property. On the same day, Sheridan received the proceeds from the sale of another property, which City National asserts is the money he used for the Carol Stream deposit. Sheridan deposited $100,-000 on the Aurora property on June 20, bringing his total deposits to $200,000, the amount of the May draw. City National presented evidence that just prior to his request for the draw, Sheridan had borrowed $275,000 from Manufacturers Hanover Trust Company (“MHT”) for an earnest money deposit on the Aurora property, although he made no such deposit in May. On August 4, 1989, Sheridan deposited $150,000 on the Aurora property. He requested a $200,000 draw for down payments on that and the Carol Stream property on August 23, 1989. Two days later, Sheridan sent a letter terminating negotiations for the Aurora property, and on August 31, before he had received the money from City National, Sheridan requested the return of his Aurora deposits. City National transferred the draw proceeds to Sheridan on September 5, 1989, at which time Sheridan’s account had a negative balance of approximately $8,000. Sheridan received the $250,000 Aurora deposit refund on September 7, and although Sheridan knew he had to repay the bank" } ]

[ { "docid": "21529057", "title": "", "text": "exercising it; that having once acted he may not review his action, citing In re Faerstein (C. C. A.) 58 F.(2d) 942; Patents Process, Inc., et al. T. Durst (C. C. A.) 69 F.(2d) 283; In re Tomlinson & Dye, supra; In re Gouse (D. C.) 7 F. Supp. 106. That the order overruling the motion to set the June 7th order aside was therefore nugatory, and furnished nothing to appeal from, citing In re Gelino’s, Inc. (C. C. A.) 51 F.(2d) 875. He argues further that if the motion to set the June 7th order aside, followed by the petition to review the referee’s order on that motion, be considered an effort to review the June 7th order, it must fail, because not filed within the ten days required by the rule, citing Patents Process, Inc., v. Durst, supra; In re David (C. C. A.) 33 F.(2d) 748. We think appellant and the referee take a too rigid view of the finality, the irrevocability of the June 7th order, and generally of the powers of the referee and the District Judge to review and set aside such orders. Flexible and liberal, proceedings in bankruptcy are in their major aspects administrative. Such proceedings are intended to be, they are, usually carried out informally. It is not to orders entered like the June 7th order was, informally and without notice or hearing, but to formal orders, entered on petition, motion, and hearing, in adversary proceedings, that the rules the bankrupt and the referee invoke, apply. Orders, improvidently entered, like the one in question here, are subject to revision and review by the referee and the District Judge informally, either without or upon motion of interested parties, at any time before the estate is closed. Anderson v. Gray (C. C. A.) 284 F. 770, 771; Goodman v. Street (C. C. A.) 65 F.(2d) 686; In re De Ran (C. C. A.) 260 F. 732; In re Stillwell (C. C. A.) 12 F.(2d) 205; In re Lahongrais (C. C. A.) 5 F.(2d) 899; In re Pettingill & Co. (C. C. A.) 137 F." } ]

[ { "docid": "14721412", "title": "", "text": "more appears in the bill of exceptions, the cause proceeded on the merits, and the Judge directed a verdict for the plaintiff. The first assignment of error is to the judge’s “tentative” denial of the motion to dismiss. It is of course plain that the bankrupt could not have sued the defendant in the District Court; the parties would have both been citizens of New York. Under section 23a of the Bankruptcy Act, 11 USCA § 46(a), the trustee stood in the bankrupt’s position, and the court was equally without jurisdiction. Section 23b, 11 USCA § 46(b), however, provides that in cases of this kind a trustee may sue only in courts where the bankrupt might have sued, “unless by consent of the proposed defendant,” and the question has arisen whether this by implication gives jurisdiction to the District Court in case such consent is given. If section 23b affects substantive jurisdiction, as distinct from venue, section 23a appears to be redundant, for it adds nothing to what follows, and for this reason it was decided in Matthew v. Coppin, 32 F.(2d) 100 (C. C. A. 9), and Coyle v. Duncan Spangler Coal Co. (D. C.) 288 F. 897, that section 23b has nothing to do with jurisdiction, properly speaking. As much was said obiter in Lovell v. Isidore Newman & Son, 227 U. S. 412, 426, 33 S. Ct. 375, 57 L. Ed. 577; and McEldowney v. Card (C. C.) 193 F. 475, 480; and Bush v. Elliott, 202 U. S. 477, 483, 26 S. Ct. 668, 50 L. Ed. 1114, looks the same way. On the other hand, the opposite was held in Re White, 177 F. 194 (C. C. A. 7), and some of the language in Bardes v. Hawarden First Nat. Bank, 178 U. S. 524, 538, 20 S. Ct. 1000, 44 L. Ed. 1175, may perhaps be read as in accord. Without deciding the point, we may, however, assume arguendo that the defendant’s consent would have conferred substantive jurisdiction here. It was never given; indeed, it was refused. Objection to the jurisdiction was first taken" }, { "docid": "22225498", "title": "", "text": "considered valueless. Besides, though the trustee had been mistaken, the bank was not; it remembered the collateral and ex-' pected to include it because, as we have said, it thought the pledge valid. It is clear therefore that. the order should be amended, unless the referee had no power to amend it; it did not embody the parties’ intent. It did not embody the referee’s intent either; but on that we do not rest. The only question therefore is whether the referee had power to amend it. There is indeed considerable authority for the opinion that a referee has no such power. So far. as we can find, it had its origin in Judge McPherson’s ruling in Re Greek Manufacturing Co. (D. C. 1908) 164 F. 211, and arose from what with deference seems to us a mistaken understanding of General Order 27 (11 USCA following section 53). That order governs petitions to the District Court to review orders of referees, and it is indeed amply well settled that they may not be reviewed in any other way. Many of the authorities relied upon in support of the doctrine merely decide as much, and they are altogether beside the point, unless one assumes that the reconsideration by a court of its own judgments or decrees is a review within the intent of the General Order, which is the very question at issue. Nobody to-day would think of an order of the court itself vacating a judgment as an appeal, whatever were the archaic notions about it; and the General Order only lays down the procedure upon appeals to the District Court. This is apparent from the very form of the order which speaks of “review by the judge”; it fills a gap in the statute otherwise unprovided for, except as may be implied from section 39a (5) , Bankr. Act (11 USCA § 67 (a) (5). On the other hand, if a referee is a court at all, there is no warrant for saying because an appeal lies from his orders, that he has not the ancient and elementary power" }, { "docid": "11425240", "title": "", "text": "Since the offense charged is one included within section 14b of the Bankruptcy Act, the bankrupt should be advised of the acts charged which bring him within the inhibition of the statute in so far as his discharge is concerned. Troeder v. Lorsch, 150 F. 710 (C. C. A. 1); In re Brown, 112 F. 49 (C. C. A. 5); In re Adams (D. C.) 104 F. 72; In re Quackenbush (D. C.) 102 F. 282. Indeed, objections which are not specified will not be considered. In re Kuhlman, 279 F. 250 (C. C. A. 2); In re Adams (D. C.) 104 F. 72. The ground suggested for the denial of a discharge here is the obtaining of property upon a false statement. Such a statement must concern the financial condition of the bankrupt. In the words of the statute, Bankr. Act, § 14b (3), 11 USCA § 32 (b) (3), the bankrupt is discharged unless he has “(3) obtained money or property on credit, or obtained an extension or renewal of credit, by making or publishing, or causing to be made or published, in any manner whatsoever, a materially false statement in writing respecting his financial condition * * It is not claimed that any such statement was •ever made. The discharge should have been •granted, on this record and the district court is directed to do so. Appellant also appealed from that part of the order denying a stay of the state court garnishment proceeding pending discharge. This is a different question from that of the appellant’s right to a discharge under section 14b which we have just decided for appellant. Where a stay pending discharge is sought under section 11, of the act (11 USCA § 29) the bankruptcy court considers whether the debt is dischargeable under section 17 (11 USCA § 35). In re Byrne, 296 F. 98 (C. C. A. 2); In re Adler, 144 F. 659 (C. C. A. 2). But such a stay is not granted after discharge, and since the appellant will be discharged, the appeal from this part of the order" }, { "docid": "797864", "title": "", "text": "bankrupt “shall be exempt from * * * arrest when in attendance upon a court of bankruptcy or engaged in the performance of a duty imposed by the provisions of this title.” Of the General Orders, No. XII (11 USCA § 53) gives to referees the power tQ issue an order of general protection to a bankrupt, which however the court may “vacate or suspend”; No. XXX provides that if already imprisoned, the bankrupt may be produced on habeas corpus to testify before the referee, and if arrested pending the proceedings upon “a claim provable in bankruptcy,’! “if so provable he shall be discharged; if not, he shall be remanded.” The question arose in Re Baker (D. C.) 96 F. 954, whether a bankrupt, imprisoned on a provable, but not dischargeable, claim, should be released, in the face of the language of Order XXX (11 USCA § 53) Judge Hook thought that “provable,” as there used, must be understood as equivalent to “dischargea-ble,” and remanded the bankrupt, without considering the last clause of section 9a (2), 11 USCA § 27 (a) (2). In Re Lewensohn (D. C.) 99 F. 73, certain creditors had secured judgments for fraud against the bank rupt and were about to arrest him. Judge Brown stayed these executions until the determination of the bankrupt’s discharge, upon his giving security to obey all orders of the bankruptcy court, and not to leave the jurisdiction; and we affirmed his decision on his own opinion. 104 F. 1006. Judge Adams followed this in Re Dresser (D. C.) 124 F. 915, though in Re Kane (C. C. A.) 48 F.(2d) 96, we said that the granting of any immunity under Order XII (11 USCA § 53) and § 9a (2), 11 USCA § 27 (a) (2), rested in the discretion of the District Court. Order XII (11 USCA § 53) in permitting the referee to give a general protection to the bankrupt, meant no more than that prima facie he might be entitled to as much; as ta dischargeable debts, because he was so entitled without condition; as to those" }, { "docid": "1009281", "title": "", "text": "BREWSTER, District Judge. There is before the court for review, in the above-entitled matter, a certificate of the referee, from which it appears that the trustee petitioned the referee for leave to examine, under section 21a of the Bankruptcy Act (USCA title 11, § 44(a), one Daniel R. W. Murdock. The application did not state the purposes for which the examination' was to be held. Without notice to the witness, the petition was granted in ex parte proceedings, and a subpoena in the usual form issued out of this court commanding the witness to appear before the referee at a time and place stated. The witness appeared in response to the subpoena, and the examination was adjourned to a later date, at which time the witness again appeared with counsel, when an application was filed by the witness praying that the trustee be ordered to refrain from pressing his proposed examination of the petitioner, and that the subpoena be declared void and of no effect. In the petition of the witness, he represents that about a year ago the trustee instituted a suit against the William J. Murdock Company, which was still pending in this court, alleging that the company had received preferential payments from the bankrupt, and that he had reason to believe that he was to be examined as an officer of the defendant company. This application the referee denied, and certified the question for re-vi&w. Upon the facts set forth in the referee’s certificate, his action must be affirmed. While some of the courts have intimated that the better practice would be to give a bankrupt notice of an application for his examination under section 21a (11 USCA § 44(a), Rawlins v. Hall-Epps Clothing Co. (C. C. A.) 217 F. 884, 887, a failure to do so affords no ground for vacating the order to appear for the examination, In re Broward County Lumber Co. (D. C.) 15 F.(2d) 562; In re Youroveta Home & Foreign Trade Co., Inc. (C. C. A.) 288 F. 507, 519. I see no reason why the same rule should not apply" }, { "docid": "4336028", "title": "", "text": "SWAN, Circuit Judge. S. W. Straus & Co., Inc., is a New York corporation which was formerly engaged in the business of dealing in investment securities. A so-called Martin Act suit was instituted against it in a state court, and on March 3,1933, a decree was entered therein, with the corporation’s consent, appointing permanent receivers, who were later succeeded by Louis F. Sehultze as sole receiver. On the same date, March 3, 1933, and after the state court decree had been made, an involuntary petition in bankruptcy was filed against S. W. Straus & Co., Inc., by three of its creditors. Both the alleged bankrupt and receiver, Schultze, appeared in this proceeding and obtained successive extensions of time until August 1st to plead to the petition. In the meantime two ex parte orders of intervention were obtained, one by Rodelli and the other by Weisehedel, Glazier, Wiand, and White, upon intervening petitions, each of whieh alleged that the petitioner was a creditor of the bankrupt. Rodelli also obtained an ex parte order for examination of the bankrupt’s officers and other witnesses under section 21a of the act (11 USCA § 44 (a). Thereafter the bankrupt moved to vacate the three orders aforesaid, and has appealed from an order entered August 2d denying this motion. Determination of the bankrupt’s appeal turns upon whether the interveners are shown to have had provable claims in bankruptcy. If they have, they were entitled to intervene by virtue of section 59f of the Bankruptcy Act (11 USCA § 95 (f); if they have not, then they should have been denied intervention. See In re New York Tunnel Co., 166 F. 284 (C. C. A. 2); In re Neve Drug Stores, 48 F.(2d) 693, 696 (C. C. A. 2). It is the contention of the bankrupt that it appears on the very face of the intervening petitions that the petitioners are not creditors. This contention must be sustained as to Rodelli. He alleges that he purchased from Straus-Manhattan Co., Inc., five of its bonds, “the payment of principal and interest ón the said bonds, pursuant to" }, { "docid": "1336329", "title": "", "text": "210 U. S. 246, 28 S. Ct. 621, 52 L. Ed. 1046, nothing more was done than to re-examine the payments to determine the excess over what was reasonable compensation, and to direct the trustee to bring an action to recover such excess. But in that ease personal service had not been made on the attorneys within the district. Here personal jurisdiction was obtained over Haar, and tho return of anything due from him might he properly ordered as was done by the court in Slattery v. Dillon (C. C. A.) 17 F. (2d) 347. See In re Humphreys (D. C.) 221 F. 997. Indeed, Mr. Haar does not dispute that the referee had jurisdiction of the subject-matter, and he concedes that, if a proceeding had been instituted upon a proper petition and the court had held that the fee paid him was in excess of reasonable compensation, an order to return the overplus to the trustee would have been the proper procedure. See appellee’s brief, p. 21. The remaining question of law is as to what services come within the scope of section 60d. The referee seems to have allowed compensation for all the services which Haar recited in his affidavit, whether they were rendered prior to tho filing of the petition in bankruptcy or were rendered thereafter to aid the bankrupt to comply with the Act. But section 60d is only to fix compensation for services rendered before the filing of the petition. This we held in Re Rolnick, 294 F. 817, and the Circuit Court of Appeals of the Sixth Circuit is in accor d. Pratt v. Bothe, 130 F. 670. See, also, In re Stolp (D. C.) 199 F. 488; Slattery v. Dillon (C. C. A.) 17 F.(2d) 347; In re Habegger (C. C. A.) 139 F. 623, 3 Ann. Cas. 276; In re Klein-Moffett Co. (D. C.) 27 F.(2d) 444. There is a divergence of opinion as to whether section 60d allows payment providing the filing of a petition was in contempla.tion, for all kinds of services to the insolvents prior to the filing of" }, { "docid": "21002264", "title": "", "text": "reconsider but reviewed Referee Jer-man’s Order of June 27, 1963. The use of the word “reconsider” in the Sulmeyer Application instead of the word “review” could not confer upon Referee Abrott power which the July 14, 1960 amendment to § 39, sub. c of the Bankruptcy Act (11 U.S.C.A. § 67, sub. c) denied. Under the circumstances shown here, Referee Jerman’s Order had become final months prior to the filing of the Sulmeyer Application. The terms “reconsider” and “review” are not synonymous. No one could reconsider Referee Jerman’s Order but Referee Jerman, the author of it. This is not a case such as Judge Learned Hand considered in In re Pottasch Bros. Co., 2 Cir., 79 F.2d 613. There, as stated by Judge Hand, “[t]he only question therefore is whether the referee had power to amend it.” Then, continuing, he said, on p. 616: “[4] There is indeed considerable authority for the opinion that a referee has no such power. So far as we can find, it had its origin in Judge McPherson’s ruling in Re Greek Manufacturing Co. [D.C. 1908] 164 F. 211, and arose from what with deference seems to us a mistaken understanding of General Order 27 (11 U.S.C.A. following section 53). That order governs petitions to the District Court to review orders of referees, and it is indeed amply well settled that they may not be reviewed in any other way. Many of the authorities relied upon in support of the doeti’ine merely decide as much, and they are altogether beside the point, unless one assumes that the reconsideration by a court of its own judgments or decrees is a review within the intent of the General Order, which is the very question at issue. Nobody to-day would think of an order of the court itself vacating a judgment as an appeal, whatever were the archaic notions about it; and the General Order only lays down the procedure upon appeals to the District Court. This is apparent from the very form of the order which speaks of ‘review by the judge’; it fills a gap in" }, { "docid": "22225502", "title": "", "text": "did indeed give the doctrine its obiter approval, but it was an afterthought, added to a decision which had dealt with the merits of the original order that a later referee had undertaken to vacate. Except for this the only decisions of Circuit Courts of Appeal which have so decided are in the Ninth circuit. In re Faerstein, 58 F.(2d) 942, and Patents Process, Inc., v. Durst, 69 F. (2d) 283. The first repeated the reasoning of Judge McPherson and cited some other decisions, which decided only that appeals from orders of a referee must be under General Order 27,. which, as we have said, is irrelevant. The second case contained the merest dictum. We do not.forget Kelly v. National City Bank of New York, 71 F.(2d) 689 (C. C. A. 3), an appeal by a bankrupt from an order reversing an order of a referee which vacated an earlier order for examination under section 21a (11 USCA § 44 (a). In the District Court (In re Kelly, 7 F. Supp. 379), Judge Avis did indeed follow In re Greek Manufacturing Co., supra, 164 F. 211, but the Circuit Court of Appeals did not so dispose of the appeal. They treated it as though the bankrupt were appealing from the order for his examination and decided it on the merits. Fazakerly v. Kahn’s Sons Co. (C. C. A.) 75 F.(2d) 110, is at best an exception to the doctrine, and approves it no further than so far as it does not disapprove it. In re Renshaw’s Sons, 3 F. (2d) 75 (D. C. S. D. Ill.), really concerns the right to appeal, which had not been taken in time; so far as it touched the qtiestion, it was to decide that the referee’s oral statement that he would not change his opinion was not an appealable order. In re Dixie Canden Oil Co., Ltd.(D. C.) 3 F. Supp. 534, being in the Ninth circuit, necessarily followed In re Faerstein, supra, 58 F.(2d) 942, and adds nothing to it. What we said in Re Crosby Stores, Inc., 65 F.(2d) 360, 362," }, { "docid": "5919986", "title": "", "text": "this appeal. General Order No. 27 of the Supreme Court (11 USCA § 53) provides that, when a review is sought of any order of the referee, a petition shall be filed with the referee setting forth the error complained of and the referee shall certify to the United States District Judge the question presented, a summary of the evidence, and finding and the order of the referee thereon. The procedure is specific and is ¿dearly stated. Rule 84 of the trial court requires that a petition for review, as provided in General Order 27, supra, must be filed with the referee within ten days from the date of notice of such order. When an order is entered, the referee’s power over the order is ended. The remedy is exclusive and he may not review or change the order. In re Russell (D. C.) 105 F. 501; In re Wister & Co. (D. C.) 232 E. 898; also, In re Greek Mfg. Co. (D. C.) 164 F. 211; In re Marks (D. C.) 171 F. 281; In re Avoca Silk Co. (D. C.) 241 F. 607; Matter of J. W. Renshaw’s Sons, Bankrupt (D. C.) 3 F.(2d) 75; Matter of Wm. L. David (C. C. A.) 33 F.(2d) 748; David v. Hubbard, 280 U. S. 514, 50 S. Ct. 19, 74 L. Ed. 585. That the procedure of review is plainly defined and power limited in the interest of regularity and for the common good is clearly stated by Judge Sawtelle of this court, sitting as District Judge, in Re Octave Mining Co. (D. C.) 212 F. 457, 458, as follows: “It is manifest that the mode prescribed by General Order 27 is the only manner in which the decisions of the referee may be reviewed. 4 •• ” ” While the issue in that ease was of a different nature, the terse statement of the procedure to review has forceful application here. See In re Shelley (D. C.) 8 F.(2d) 878; Matter of D. F. Walser, Bankrupt (D. C.) 20 F.(2d) 136, 9 A. B. R. (N. S.) 610:" }, { "docid": "22225503", "title": "", "text": "indeed follow In re Greek Manufacturing Co., supra, 164 F. 211, but the Circuit Court of Appeals did not so dispose of the appeal. They treated it as though the bankrupt were appealing from the order for his examination and decided it on the merits. Fazakerly v. Kahn’s Sons Co. (C. C. A.) 75 F.(2d) 110, is at best an exception to the doctrine, and approves it no further than so far as it does not disapprove it. In re Renshaw’s Sons, 3 F. (2d) 75 (D. C. S. D. Ill.), really concerns the right to appeal, which had not been taken in time; so far as it touched the qtiestion, it was to decide that the referee’s oral statement that he would not change his opinion was not an appealable order. In re Dixie Canden Oil Co., Ltd.(D. C.) 3 F. Supp. 534, being in the Ninth circuit, necessarily followed In re Faerstein, supra, 58 F.(2d) 942, and adds nothing to it. What we said in Re Crosby Stores, Inc., 65 F.(2d) 360, 362, was indeed obiter, but upon deliberation we remain of that opinion. We hold that a referee has the same power over his orders as the District Judge has over his. Hence it is not necessary to consider whether there is an exception to the supposititious doctrine by which a referee may correct his orders for misprision of the clerk, as a court may correct its judgment after the expiration of the term. Order affirmed." }, { "docid": "11356009", "title": "", "text": "AYIS, District Judge. In this case an order was made by the referee requiring bankrupt to appear for examination under the provisions of section 21a, 11 USCA § 44 (a), of the Bankruptcy Act. At the time fixed for appearance bankrupt contested, before the referee, the right of the referee to make said order, and, after hearing, the referee, deciding upon the matters of law involved, revoked the order for examination. The interested creditor, having failed to file his petition for review within ten days, made application to this court for leave to file a petition out of time, which was granted. Subsequently the petition was filed, with the referee and a certificate of review issued and filed in this court. The matter is now before the court on the question of sustaining or setting aside the order of tlie referee vacating the original order for examination. Mainly, the law involved relates to the legal right of the referee to vacate the order of dismissal so made. I am satisfied that the referee, having once made an order requiring the examination, did not have the power to revoke it on objection by bankrupt. I made this statement in the memorandum, filed July 7,1933, in deciding the application of creditor for permission to file a petition for review [(D. C.) 7 F. Supp. 376], and an examination of the briefs and the cases submitted on the instant,motion confirms that view. While there are some eases seeming to hold otherwise, the weight of the decisions, to my mind, clearly sustains this view, except in cases where the order was illegal, or based upon a misunderstanding of the facts. See Remington on Bankruptcy (3d Ed.) vol. 2, p. 78 ; In re Greek Mfg. Co. (D. C. E. D. Pa.) 164 F. 211; In re Marks (D. C. E. D. Pa.) 171 F. 281; In re T. M. Lesher & Son (D. C. E. D. Pa.) 176 F. 659; In re Petersen (D. C. Nev.) 252 F. 846, 848; In re Faerstein (C. C. A. 9) 58 F.(2d) 942, 943. The other matters" }, { "docid": "1009284", "title": "", "text": "is not enough, in itself, to deprive the trustee of a right to examination under section 21a (11 USCA § 44(a). In re E. S. Wheeler & Co. (D. C.) 151 F. 542; In re Youroveta Home & Foreign Trade Co., supra. But it is apparent, from an examination of these eases, that the trustee was held strietly to the objects contemplated by the statute. The courts have had occasion to consider the scope of the purposes of these provisions. Thus it was said in Cameron v. United States, 231 U. S. 710, 34 S. Ct. 244, 246, 58 L. Ed. 448, that “the object of the examination of the bankrupt and other witnesses to show the condition of the estate is to enable the court to discover its extent and whereabouts, and to come into possession of it, that the rights of creditors may be preserved.” Again, it is said that the examination thus provided was not intended as a means of producing testimony pertinent to issues then on trial, but their object is to afford to the creditors and the officers charged with administering the trust full information touching the bankrupt’s estate, in order that necessary steps may be taken for its possession and preservation. In re Fixen (D. C.) 96 F: 748; In re Stell (D. C.) 269 F. 1008. “It would be a perversion of the purpose of section 21a to exercise the power it confers to obtain evidence for use on the trial of the issue of solvency or insolvency.” Abbott v. Wauchula Mfg. & Timber Co. (C. C. A.) 229 F. 677, 681. See, also, In re Madero Bros. (D. C.) 256 F. 859. And, when a party other than the bankrupt is to be examined, a more restricted application will be given to the section. In re Carley (D. C.) 106 F. 862. In view of the admission of the trustee that his purpose was to prepare for trial his suit against the corporation, of which the witness was an officer, it is difficult to see how he is likely to derive, from" }, { "docid": "1009282", "title": "", "text": "a year ago the trustee instituted a suit against the William J. Murdock Company, which was still pending in this court, alleging that the company had received preferential payments from the bankrupt, and that he had reason to believe that he was to be examined as an officer of the defendant company. This application the referee denied, and certified the question for re-vi&w. Upon the facts set forth in the referee’s certificate, his action must be affirmed. While some of the courts have intimated that the better practice would be to give a bankrupt notice of an application for his examination under section 21a (11 USCA § 44(a), Rawlins v. Hall-Epps Clothing Co. (C. C. A.) 217 F. 884, 887, a failure to do so affords no ground for vacating the order to appear for the examination, In re Broward County Lumber Co. (D. C.) 15 F.(2d) 562; In re Youroveta Home & Foreign Trade Co., Inc. (C. C. A.) 288 F. 507, 519. I see no reason why the same rule should not apply to an examination of a- witness other than the bankrupt when, as in the case at bar, the witness has not been prejudiced by the proceedings. Nor on the record presented by the certificate was the referee justified in ordering the trustee to refrain from the examination. There is nothing in his certificate which tends to indicate that the trustee is resorting to section 21a, 11 USCA § 44(a), for the purpose of conducting an improper examination into the conduct, acts, or property of the bankrupt. The referee could not, before the examination was actually under way, enter an order denying the rights of the trustee to hold an examination. The practical question arises upon a fact which does not appear in the certificate, but which, for the purposes of the case, was stipulated in open court. This fact is that the trustee desired to examine Murdock in order to prepare his ease against the William J. Murdock Company for trial. The mere fact that a suit is pending between the trustee and the witness" }, { "docid": "1009283", "title": "", "text": "to an examination of a- witness other than the bankrupt when, as in the case at bar, the witness has not been prejudiced by the proceedings. Nor on the record presented by the certificate was the referee justified in ordering the trustee to refrain from the examination. There is nothing in his certificate which tends to indicate that the trustee is resorting to section 21a, 11 USCA § 44(a), for the purpose of conducting an improper examination into the conduct, acts, or property of the bankrupt. The referee could not, before the examination was actually under way, enter an order denying the rights of the trustee to hold an examination. The practical question arises upon a fact which does not appear in the certificate, but which, for the purposes of the case, was stipulated in open court. This fact is that the trustee desired to examine Murdock in order to prepare his ease against the William J. Murdock Company for trial. The mere fact that a suit is pending between the trustee and the witness is not enough, in itself, to deprive the trustee of a right to examination under section 21a (11 USCA § 44(a). In re E. S. Wheeler & Co. (D. C.) 151 F. 542; In re Youroveta Home & Foreign Trade Co., supra. But it is apparent, from an examination of these eases, that the trustee was held strietly to the objects contemplated by the statute. The courts have had occasion to consider the scope of the purposes of these provisions. Thus it was said in Cameron v. United States, 231 U. S. 710, 34 S. Ct. 244, 246, 58 L. Ed. 448, that “the object of the examination of the bankrupt and other witnesses to show the condition of the estate is to enable the court to discover its extent and whereabouts, and to come into possession of it, that the rights of creditors may be preserved.” Again, it is said that the examination thus provided was not intended as a means of producing testimony pertinent to issues then on trial, but their object is" }, { "docid": "5919985", "title": "", "text": "NETERER, District Judge (after stating the facts). Referees are invested with certain powers, “subject always to a review by the judge.” Section 66> title 11,. USCA. The referee has no independent judicial authority. He is not a distinct court, and has rio power not conferred by order of reference, by law or general orders. “The district eourts of the United States in the several States ® ® ® are made eourts of bankruptcy.” 11 USCA § 11. A court is said by Blaékstone to be a vested judicial power to adjudicate issues between contending factors, and is composed of the actor, or plaintiff; the reus, or defendant; and the judex, the judicial power which examines the truth of the contending parties and applies the remedy. A referee is an instrumentality of the court, with limited powers. His jurisdiction is defined by section 66, title 11, USCA, supra, and his duties are given in section 67. Neither of these sections gives him the power to review and set aside the order made, and in issue on this appeal. General Order No. 27 of the Supreme Court (11 USCA § 53) provides that, when a review is sought of any order of the referee, a petition shall be filed with the referee setting forth the error complained of and the referee shall certify to the United States District Judge the question presented, a summary of the evidence, and finding and the order of the referee thereon. The procedure is specific and is ¿dearly stated. Rule 84 of the trial court requires that a petition for review, as provided in General Order 27, supra, must be filed with the referee within ten days from the date of notice of such order. When an order is entered, the referee’s power over the order is ended. The remedy is exclusive and he may not review or change the order. In re Russell (D. C.) 105 F. 501; In re Wister & Co. (D. C.) 232 E. 898; also, In re Greek Mfg. Co. (D. C.) 164 F. 211; In re Marks (D. C.) 171 F." }, { "docid": "11356010", "title": "", "text": "made an order requiring the examination, did not have the power to revoke it on objection by bankrupt. I made this statement in the memorandum, filed July 7,1933, in deciding the application of creditor for permission to file a petition for review [(D. C.) 7 F. Supp. 376], and an examination of the briefs and the cases submitted on the instant,motion confirms that view. While there are some eases seeming to hold otherwise, the weight of the decisions, to my mind, clearly sustains this view, except in cases where the order was illegal, or based upon a misunderstanding of the facts. See Remington on Bankruptcy (3d Ed.) vol. 2, p. 78 ; In re Greek Mfg. Co. (D. C. E. D. Pa.) 164 F. 211; In re Marks (D. C. E. D. Pa.) 171 F. 281; In re T. M. Lesher & Son (D. C. E. D. Pa.) 176 F. 659; In re Petersen (D. C. Nev.) 252 F. 846, 848; In re Faerstein (C. C. A. 9) 58 F.(2d) 942, 943. The other matters raised by bankrupt in the instant proceedings were disposed of in the memorandum filed as hereinbefore stated. The order of April 18, 1933, is set aside, and the ease re-referred to the referee, so that an examination of bankrupt may be had under the order of referee made February 21,1933." }, { "docid": "16317349", "title": "", "text": "any time, to make the judgment entry correspond with the judgment rendered. Freeman on Judgments, §§ 145, 146; Hickman v. Fort Scott, 141 U. S. 415, 12 S. Ct. 9, 35 L. Ed. 775; United States v. Mayer, 235 U. S. 55, 67, 35 S. Ct. 16, 59 L. Ed. 129. In the matter of approving the settlement, the referee was the court (Bankruptcy Act, § 27 (11 USCA § 50) ; General Order 12, 11 USCA following section 53), was exercising the judicial authority (White v. Schloerb, 178 U. S. 542, 546, 20 S. Ct. 1007, 44 L. Ed. 1183; Gilbertson v. United States, 168 F. 672, 674 (C. C. A. 7), and had as ample power as a judge would have to correct clerical error in an order made by him, to make the record speak the truth. The case relied on by the referee in refusing relief, In re Faerstein, 58 F.(2d) 942 (C. C. A. 9), was one where the referee tried to set aside his own order on the merits and is not in point here. The order of April 15, 1932, should have been corrected so as to conform to the decision actually made and so as to transfer to the Central-Illinois Company the collateral “held or claimed to be held” by it. The trustee suggests that a transfer of the claims against the United States pursuant to order of the court would be void. A transfer by a trustee in bankruptcy of a bankrupt’s claim against the United States, pursuant to order of the bankruptcy court, is regarded as a transfer by operation of law arid not in violation of the act forbidding assignments of such claims. Such a transfer has no tendency to promote traffic in claims against the United States and is not within the spirit of the statute. Western Pacific R. Co. v. United States, 268 U. S. 271, 45 S. Ct. 503, 69 L. Ed. 951; Bray v. United States Fidelity & Guaranty Co., 267 F. 533 (C. C. A. 4); In re Gerstenzang, 5 F. Supp. 904 (D." }, { "docid": "22225501", "title": "", "text": "proceedings.” All applications must 'be made to hiúi, and the court is forbidden to hear any motion in the cause thereafter. General Order 12 (1), 11 USCA following section 53 is to the same effect; after an order of reference “all the proceedings * * * shall be had before the refereq.” Thus it seems to us a perversion of General Order 27 (11 USCA following section 53) to seize upon the mere chance that appeals from referees were called “reviews,” and use it to strip them of powers so common and so necessary to the reasonable exercise of their jurisdiction. Why it is desirable that their orders, ruat coelum, should be as immutable as the Twelve Tables, once the ink is dry, we cannot understand^ The authorities which support such a conclusion are not numerous, and they merely repeat the original reasoning. Judge McPherson in Re Marks (D. C.) 171 F. 281, followed his earlier ruling, but that adds little. In International Agricultural Corporation v. Cary (C. C. A.) 240 F. 101,'the Sixth circuit did indeed give the doctrine its obiter approval, but it was an afterthought, added to a decision which had dealt with the merits of the original order that a later referee had undertaken to vacate. Except for this the only decisions of Circuit Courts of Appeal which have so decided are in the Ninth circuit. In re Faerstein, 58 F.(2d) 942, and Patents Process, Inc., v. Durst, 69 F. (2d) 283. The first repeated the reasoning of Judge McPherson and cited some other decisions, which decided only that appeals from orders of a referee must be under General Order 27,. which, as we have said, is irrelevant. The second case contained the merest dictum. We do not.forget Kelly v. National City Bank of New York, 71 F.(2d) 689 (C. C. A. 3), an appeal by a bankrupt from an order reversing an order of a referee which vacated an earlier order for examination under section 21a (11 USCA § 44 (a). In the District Court (In re Kelly, 7 F. Supp. 379), Judge Avis did" }, { "docid": "18285157", "title": "", "text": "of them may desire. “Dated June 4th, 1930.” The referee found that there was in the property a substantial equity over and above the mortgage and the mechanic’s liens filed. On petition for review, the District Court, considering itself bound by the decision of this court in First Savings Bank & Trust Co. v. Butler, 282 F. 866, overruled the exceptions to these orders of the referee. These appeals followed. This recital is found in the brief of McDonald Manufacturing Company: “Being uncertain as to proper mode of appeal, such appeals have all been taken both by orders of the lower court and this appellate court, resulting in four eases docketed on these appeals, as appear in the caption of transcript of record herein.” Reference is made to section 24b, Bankr. Act, as amended by Act May 27, 1926, § 9 (44 Stat. 664, 11 USCA § 47(b). This controversy is not one of the cases mentioned in section 25, Bankr. Act, as amended by Act May 27, 1926, § 10 (44 Stat. 665 [11 USCA § 48]), and, therefore, did not require allowance by this court. Appellants urge that a referee m bankruptcy is without jurisdiction to restrain the prosecution of a proceeding in a state court; that such restraining order, in a proper ease, can be issued only by the judge. We think this is a correct statement of the law. General Order No. XII, par. 3 (11 USCA § 53); Gatell v. Millian (C. C. A. 1) 2 F.(2d) 365. But appellants took these orders, upon petition for review, to the district judge, by whom they were affirmed, thereby becoming, in effect, his orders. The point is,-therefore, without substance in this appeal. In re Benjamin (D. C.) 140 F. 320; In re Roger Brown & Co. (C. C. A. 5) 196 F. 758, 762. It is next suggested, though not insisted upon by counsel, that the orders, being temporary in their nature, involving primarily the overruling of pleas to the jurisdiction, are not final and, therefore, not ap•pealable. It is ordinarily true that an order of the" } ]

[ { "docid": "15224409", "title": "", "text": "15223, created a system of strict liability. The Senate bill, S. 4057, authorized strict liability for corporations but created liability for employees only if they acted with knowledge, and it creates criminal sanctions for “knowing” violations. The Conference Committee spurned both options and rewrote the legislation. It authorized civil penalties only for “knowing” violations, and criminal sanctions for “willful” ones; it also raised the maximum penalties. So although the bills that went into the conference allowed civil liability on a “should have known” approach, the law that came out raised the necessary level of scienter. Section 107.299 effectively reinstates the original bills, but we must enforce what Congress enacted by bicameral action: the Conference substitute. Against this the Department contends that the law is a remedial statute, to be construed liberally. This is a useless maxim—useless not only because it invites the equal and opposite riposte that penal statutes are to be strictly construed but also because it does not answer the question “how far?”. Statutes do more than point in a direction, such as “more safety”. They achieve a particular amount of that objective, at a particular cost in other interests. An agency cannot treat a statute as authorizing an indefinite march in a single direction. “[N]o legislation pursues its purposes at all costs. Deciding what competing values will or will not be sacrificed to the achievement of a particular objective is the very essence of legislative choice— and it frustrates rather than effectuates legislative intent simplistically to assume that whatever furthers the statute’s primary objective must be the law.” Rodriguez v. United States, 480 U.S. 522, 525-26, 107 S.Ct. 1391, 1393, 94 L.Ed.2d 533 (1987) (emphasis in original); Pension Benefit Guaranty Corp. v. LTV Corp., — U.S.-, 110 S.Ct. 2668, 2676, 110 L.Ed.2d 579 (1990). See also Board of Governors v. Dimension Financial Corp., 474 U.S. 361, 374, 106 S.Ct. 681, 689, 88 L.Ed.2d 691 (1986); Amanda Acquisition Corp. v. Universal Foods Corp., 877 F.2d 496, 503 (7th Cir.1989); Mercado v. Calumet Federal Savings & Loan Ass’n, 763 F.2d 269 (7th Cir.1985); Walton v. United Consumers Club, Inc.," } ]

[ { "docid": "3824453", "title": "", "text": "values will or will not be sacrificed to the achievement of a particular objective is the very essence of legislative choice — and it frustrates rather than effectuates legislative intent simplistically to assume that whatever furthers the statute’s primary objective must be the law.” Rodriguez v. United States, 480 U.S. 522, 525-26, 107 S.Ct. 1391, 1393, 94 L.Ed.2d 533 (1987) (emphasis in original); Pension Benefit Guaranty Corp. v. LTV Corp., — U.S. -, 110 S.Ct. 2668, 2676, 110 L.Ed.2d 579 (1990). See also Board of Governors v. Dimension Financial Corp., 474 U.S. 361, 374, 106 S.Ct. 681, 689, 88 L.Ed.2d 691 (1986). Congress had a choice: it could legislate a means, or it could legislate a result. It could say that firms participating in pension plans that have such-and-such attributes are exempt from withdrawal liability, or it could say, for example, that the 50% of the pension plans having the largest share of contributions from the trucking industry are exempt. It chose the former method. It (at least Sen. Durenberger and the interest groups for which he spoke) might have anticipated that the rule would exempt a large fraction of the industry, but anticipations and goals are not themselves law. See Premier Electrical Construction Co. v. National Electrical Contractors Ass’n, Inc., 814 F.2d 358, 364-65 (7th Cir.1987). Statutory rules frequently differ from the goals animating their promot ers. Prussner v. CIR, 896 F.2d 218, 226 (7th Cir.1990) (in banc); Railway Labor Executives’ Ass’n v. ICC, 894 F.2d 915, 918 (7th Cir.1990). To see this, suppose that Congress had created an exclusion if “85% of the contributions required under the plan are made by employers primarily engaged in the long and short haul trucking industry”, and the committee reports contained a prediction that this would exclude two-thirds of the industry. Now suppose the prediction is wrong, that only 10% of the plans in the trucking industry get more than 85% of their contributions from truckers, and a withdrawing firm convincingly demonstrates that the only way to exclude % of the plans is to reduce the threshold from 85% to 60%. Would" }, { "docid": "12295769", "title": "", "text": "requirement,” thus breach of implied warranty claims hinge on state law, namely, Illinois’ adoption of UCC Article 2 requiring privity of contract. See Voelker, 353 F.3d at 525; see also Rothe, 119 Ill.2d at 294, 116 Ill.Dec. 207, 518 N.E.2d 1028 (under the UCC, implied warranty of merchantability arises only between buyer and immediate seller). In short, the Voelker court did not adopt the Illinois court’s interpretation that the MMWA broadened the UCC’s requirements by allowing for non-privity parties to bring implied warranty claims, and Plaintiff fails to persuade the Court why it should conclude otherwise. Indeed, other courts in this district have already rejected that precise argument. See Snyder v. Komfort Corp., 2008 WL 2952300, at *5-6 (N.D.Ill. July 30, 2008); Zaro v. Maserati N. Am., Inc., 2007 WL 4335431, at *3-4 (N.D.Ill.Dec.6, 2007); Howton v. Winnebago, Inc., 2005 WL 1500926, at *2 (N.D.Ill. June 13, 2005); Kowalke v. Bernard Chevrolet, Inc., 2000 WL 656660, at *5 (N.D.Ill. Mar.23, 2000); Lairy J. Soldinger Assocs., Ltd. v. Aston Martin Lagonda of N.A., Inc., 1999 WL 756174, at *6-10 (N.D.Ill. Sept.13, 1999). Because Plaintiff lacks privity of contract with Monaco, its implied warranty claim fails. See Voelker, 353 F.3d at 525. Plaintiff attempts to skirt the privity requirement by alleging that BMS is an agent of Monaco due to the “great control” Monaco exerts over BMS. PI. Resp. at 13. However, Plaintiff has not cited any Illinois law that accepts such a contention. In fact, in Illinois, bare allegations of an agency relationship between the manufacturer and dealer are insufficient. See, e.g., Bushendorf v. Freightliner Corp., 13 F.3d 1024, 1026 (7th Cir.1993). In Zaro v. Maserati N. Am., Inc., the court observed that there is “no Illinois case law supporting the proposition that a general agency prin ciple creates privity between a purchaser and a non-selling manufacturer. Moreover, ‘an automobile dealer or other similar type of dealer, who * * * merely buys goods from manufacturers or other suppliers for resale to the consuming public, is not his supplier’s agent.’ ” Zaro, 2007 WL 4335431, at *4 (quoting Bushendorf, 13 F.3d" }, { "docid": "18617869", "title": "", "text": "Employers Insurance of Wausau, — U.S. —, —, 113 S.Ct. 2085, 2090-91, 124 L.Ed.2d 194 (1993); Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350, 360-62, 111 S.Ct. 2773, 2781, 115 L.Ed.2d 321 (1991). Alyeska shows that Hall cannot be expanded to occupy the field in the way plaintiffs propose, and cases such as Bank of Denver suggest that the limits imposed by § 201(c) should be used under other titles of the LMRDA Plaintiffs’ claim depends on Title II of the LMRDA, and awards of attorneys’ fees under that title must be founded on § 201(c). See also Key Tronic Corp. v. United States, — U.S. —, 114 S.Ct. 1960, 128 L.Ed.2d 797 (1994) (emphasizing that only express statutory language authorizes awards of attorneys’ fees). Plaintiffs stress that the LMRDA is a remedial measure and seek a liberal construction. This maxim is useless in deciding concrete cases. Every statute is remedial in the sense that it alters the law or favors one group over another. The LMRDA extended new rights to union members and strengthened their hand against union hierarchies. Section 201(c) is a pro-member law, for it authorizes awards only to plaintiffs. But after we determine that a law favors some group, the question becomes: How much does it favor them? Knowing that a law is remedial does not tell a court how far to go. Every statute has a stopping point, beyond which, Congress concluded, the costs of doing more are excessive — or beyond which the interest groups opposed to the law were able to block further progress. A court must determine not only the direction in which a law points but also how far to go in that direction. Rodriguez v. United States, 480 U.S. 522, 525-26, 107 S.Ct. 1391, 1393, 94 L.Ed.2d 533 (1987); NAACP v. American Family Mutual Insurance Co., 978 F.2d 287, 298 (7th Cir.1992); In re Erickson, 815 F.2d 1090, 1094 (7th Cir.1987). We need to know which way the wind blows- — and how fast it is blowing. Sections 1988 and 2000e-5(k) are more favorable to plaintiffs than" }, { "docid": "15340363", "title": "", "text": "State.” As the Supreme Court has repeatedly warned, “it frustrates rather than effectuates legislative intent simplistically to assume that whatever furthers the statute’s primary objective must be the law” because “no legislation pursues its purposes at all costs.” Rodriguez v. United States, 480 U.S. 522, 525-26, 107 S.Ct. 1391, 94 L.Ed.2d 533 (1987) (per curiam); see also Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633, 646-47, 110 S.Ct. 2668, 110 L.Ed.2d 579 (1990); MetroPCS Cal., LLC v. FCC, 644 F.3d 410, 414 (D.C.Cir.2011) (“ ‘The Act must do everything necessary to achieve its broad purpose’ is the slogan of the enthusiast, not the analytical tool of the arbiter.”). Thus, if legislative intent is to be our lodestar, we cannot assume, as the government does, that section 36B sin gle-mindedly pursues the ACA’s lofty goals. The fact is that the legislative record provides little indication one way or the other of congressional intent, but the statutory text does. Section 36B plainly makes subsidies available only on Exchanges established by states. And in the absence of any contrary indications, that text is conclusive evidence of Congress’s intent. Cf. Ethyl Corp. v. EPA, 51 F.3d 1053, 1063 (D.C.Cir.1995) (“At best, the legislative history is cryptic, and this surely is not enough to overcome the plain meaning of the statute.”). To hold otherwise would be to say that enacted legislation, on its own, does not command our respect — an utterly untenable proposition. Accordingly, applying the statute’s plain meaning, we find that section 36B unambiguously forecloses the interpretation embodied in the IRS Rule and instead limits the availability of premium tax credits to state-established Exchanges. IV We reach this conclusion, frankly, with reluctance. At least until states that wish to can set up Exchanges, our ruling will likely have significant consequences both for the millions of individuals receiving tax credits through federal Exchanges and for health insurance markets more broadly. But, high as those stakes are, the principle of legislative supremacy that guides us is higher still. Within constitutional limits, Congress is supreme in matters of policy, and the consequence of that" }, { "docid": "22494421", "title": "", "text": "(noting the \"expansive meaning\" of \"any\"). And it uses the disjunctive word \"or\" three times. In fact, all agree that the third list in the exemption-\"automobiles, trucks, or farm implements\"-modifies every other noun and gerund. But it would be odd to read the exemption as starting with a distributive phrasing and then, halfway through and without warning, switching to a disjunctive phrasing-all the while using the same word (\"or\") to signal both meanings. See Brown v. Gardner, 513 U.S. 115, 118, 115 S.Ct. 552, 130 L.Ed.2d 462 (1994) (noting the \"vigorous\" presumption that, \"when a term is repeated within a given sentence,\" it \"is used to mean the same thing\"). The more natural reading is that the exemption covers any combination of its nouns, gerunds, and objects. D The Ninth Circuit also invoked the principle that exemptions to the FLSA should be construed narrowly. 845 F.3d, at 935-936. We reject this principle as a useful guidepost for interpreting the FLSA. Because the FLSA gives no \"textual indication\" that its exemptions should be construed narrowly, \"there is no reason to give [them] anything other than a fair (rather than a 'narrow') interpretation.\" Scalia, Reading Law, at 363. The narrow-construction principle relies on the flawed premise that the FLSA \" 'pursues' \" its remedial purpose \" 'at all costs.' \" American Express Co. v. Italian Colors Restaurant, 570 U.S. 228, 234, 133 S.Ct. 2304, 186 L.Ed.2d 417 (2013) (quoting Rodriguez v. United States, 480 U.S. 522, 525-526, 107 S.Ct. 1391, 94 L.Ed.2d 533 (1987) (per curiam )); see also Henson v. Santander Consumer USA Inc., 582 U.S. ----, ----, 137 S.Ct. 1718, 1725, 198 L.Ed.2d 177 (2017) (\"[I]t is quite mistaken to assume ... that whatever might appear to further the statute's primary objective must be the law\" (internal quotation marks and alterations omitted)). But the FLSA has over two dozen exemptions in § 213(b) alone, including the one at issue here. Those exemptions are as much a part of the FLSA's purpose as the overtime-pay requirement. See id., at ----, 137 S.Ct., at 1725 (\"Legislation is, after all, the art of" }, { "docid": "22946903", "title": "", "text": "426, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964). But Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), abandoned that approach, and since the 1970s the Court has lashed interpretation more closely to statutory text. “[N]o legislation pursues its purposes at all costs. Deciding what competing values will or will not be sacrificed to the achievement of a particular objective is the very essence of legislative choice — and it frustrates rather than effectuates legislative intent simplistically to assume that whatever furthers the statute’s primary objective must be the law.” Rodriguez v. United States, 480 U.S. 522, 525-26, 107 S.Ct. 1391, 94 L.Ed.2d 533 (1987) (emphasis in original). It is anachronistic to say that, because Sullivan engaged in a freewheeling “interpretation” of § 1982, we may today take liberties with § 1981. One might as well cite Borak for the proposition that “every right implies a remedy” so that courts should today create a private right of action for every statute other than those that the Supreme Court addressed in Cort and its successors. Yet that is the majority’s tack. The argument goes that, because Sullivan ignored the language of § 1982 and drafted an “improved” version of the statute, we are free to do the same today for § 1981, its neighbor. The Supreme Court requires us to proceed otherwise. Borak dealt with § 14(a) of the Securities Exchange Act of 1934,15 U.S.C. § 78n(a). It was as freewheeling in “interpreting” that law as Sullivan was with § 1982. Yet the Court has held that the change of interpretive method announced in Cort applies to all other sections of the Securities Exchange Act. See Piper v. Chris-Craft Industries, Inc., 430 U.S. 1, 97 S.Ct. 926, 51 L.Ed.2d 124 (1977) (§ 14(e)); Touche Ross & Co. v. Redington, 442 U.S. 560, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979) (§ 17(a)). Borak and similar decisions from the 1960s have not been overruled, but we have been told in no uncertain terms that they must not be extended. Indeed, in Virginia Bankshares, Inc. v. Sandberg, 501 U.S. 1083," }, { "docid": "6932410", "title": "", "text": "to an administrative agency,” the Court added, “is not the power to make law.” 425 U.S. at 213, 96 S.Ct. at 1391. It is instead “the power to adopt regulations to carry into effect the will of Congress as expressed by the statute.” Manhattan Gen. Equip. Co. v. Comm’r, 297 U.S. 129, 134, 56 S.Ct. 397, 400, 80 L.Ed. 528 (1936). The case before us differs from Ernst & Ernst in the respect that Rule 2(e) does not alter any statutory basis for suspending accountants from practicing before the Commission; there is none. That difference, petitioners say, cuts in their favor. Put in terms of the Commission’s rulemaking statute, their point is that a Commission regulation cannot be viewed as “necessary or appropriate” to implement a statutory provision when there is no provision to implement. As against this the Commission invokes Mourning v. Family Publications Service, Inc., 411 U.S. 356, 369, 93 S.Ct. 1652, 1660, 36 L.Ed.2d 318 (1973), a decision sustaining a Federal Reserve Board rule on the ground that it was “ ‘reasonably related to the purposes of the enabling legislation.’ ” Thorpe v. Housing Authority of the City of Durham, 393 U.S. 268, 280-81, 89 S.Ct. 518, 525, 21 L.Ed.2d 474 (1969). The Federal Reserve Board derived its power from a statute authorizing rules “necessary or proper to effectuate the purposes ” of the legislation. The Commission’s rulemaking authority is worded differently. It extends only to regulations implementing statutory “provisions,” which might be considered more confining. See Rodriguez v. United States, 480 U.S. 522, 525-26, 107 S.Ct. 1391, 1393, 94 L.Ed.2d 533 (1987) (per curiam). A distinction along these lines would lend support to petitioners, but we are not free to draw it. Like section 23(a)(1) of the 1934 Act, the rulemaking section in Thorpe, 393 U.S. at 280-81, 89 S.Ct. at 525-26 also authorized rules and regulations necessary to carry out statutory “provisions,” rather than purposes. Yet Mourning treated the two formulations as equivalent (411 U.S. at 369-70, 93 S.Ct. at 1660-61), and construed both to permit agencies to prescribe remedial measures “reasonably related” to statutory" }, { "docid": "13986918", "title": "", "text": "taxes were imposed as emergency wartime measures (either in World War II or the Korean War) or as an emergency method of raising revenues at the time of the depression of the 1930’s”). The Congress that enacted this legislation thus did not contemplate the continued application of the language past January 1, 1969, let alone to 1999. No matter how clear its design to include the lion’s share of long-distance service in existence between 1965 and 1969, that does not lead to the inference that the 1965 Congress meant to tax the lion’s share of long distance service in existence between 1999 and 2002. In the end, “application of ‘broad purposes’ of legislation at the expense of specific provisions ignores the complexity of the problems Congress is called upon to address and the dynamics of legislative action.” Board of Governors of Federal Reserve System v. Dimension Financial Corp., 474 U.S. 361, 373-74, 106 S.Ct. 681, 88 L.Ed.2d 691 (1986); Rodriguez v. United States, 480 U.S. 522, 526, 107 S.Ct. 1391, 94 L.Ed.2d 533 (1987) (per curiam) (“[I]t frustrates rather than effectuates legislative intent simplistically to assume that whatever furthers the statute’s primary objective must be the law.”). The government also fails to gain ground by emphasizing that “the statute does not state that the charge must vary with ‘both distance and elapsed time.’ ” U.S. Br. at 27. Thé presumption that “and” has a conjunctive meaning, however, spares legislative drafters from having to use a belt-and-suspenders approach (or, shall we say, both belt-and-suspenders approach) every time they deploy the term. The argument also comes perilously close to suggesting an interpretive presumption in favor of the government and against the taxpayer. Regardless of the current status of the “traditional canon that construes revenue-raising laws against their drafter,” United Dominion Indus. v. United States, 532 U.S. 822, 839, 121 S.Ct. 1934, 150 L.Ed.2d 45 (2001) (Thomas, J., concurring), the government has not identified any case establishing an opposite presumption. See Bowers v. New York & Albany Lighterage Co., 273 U.S. 346, 350, 47 S.Ct. 389, 71 L.Ed. 676 (1927) (“The provision is" }, { "docid": "7775563", "title": "", "text": "rights and sold limited numbers of games to superstations is that it cannot obtain the approval of the clubs to do this — for a change in the allocation of rights is apt to affect the allocation of revenues, making the bargaining problem difficult with 27 clubs. A league’s difficulty in rearranging its affairs to obtain the protection of the Sports Broadcasting Act is one source of protection for competition. What the NBA might have done, it did not do. The Sports Broadcasting Act is special interest legislation, a single-industry exception to a law designed for the protection of the public. When special interests claim that they have obtained favors from Congress, a court should ask to see the bill of sale. Special interest laws do not have “spirits,” and it is inappropriate to extend them to achieve more of the objective the lobbyists wanted. Pension Benefit Guaranty Corp. v. LTV Corp., 496 U.S. 633, 646-47, 110 S.Ct. 2668, 2676, 110 L.Ed.2d 579 (1990); Rodriguez v. United States, 480 U.S. 522, 525-26, 107 S.Ct. 1391, 1393, 94 L.Ed.2d 533 (1987); Board of Governors v. Dimension Financial Corp., 474 U.S. 361, 373-74, 106 S.Ct. 681, 688, 88 L.Ed.2d 691 (1986); In re Erickson, 815 F.2d 1090, 1094 (7th Cir.1987). What the industry obtained, the courts enforce; what it did not obtain from the legislature — even if similar to something within the exception — a court should not bestow. Compromises draw unprincipled lines between situations that strike an outside observer as all but identical. The limitation is part of the price of the victory achieved, a concession to opponents who might have been able tó delay or block a bill even slightly more favorable to the proponents. Recognition that special interest legislation enshrines results rather than principles is why courts read exceptions to the antitrust laws narrowly, with beady eyes and green eyeshades. E.g., Group Life & Health Insurance Co. v. Royal Drug Co., 440 U.S. 205, 231, 99 S.Ct. 1067, 1083, 59 L.Ed.2d 261 (1979); National Broiler Marketing Association v. United States, 436 U.S. 816, 827-29, 98 S.Ct. 2122, 2129-30," }, { "docid": "22946902", "title": "", "text": "Inc., 545 U.S. 546, 125 S.Ct. 2611, 2625-27, 162 L.Ed.2d 502 (2005); Dodd v. United States, 545 U.S. 353, 125 S.Ct. 2478, 162 L.Ed.2d 343 (2005); Tyler v. Cain, 533 U.S. 656, 663 n. 5, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001) — would accept such an atextual approach. I appreciate the temptation to make every law “the best it can be,” but that is not the Supreme Court’s current mode of statutory interpretation, as Domino’s Pizza shows for § 1981 in particular. Perhaps it was the approach that prevailed in 1969, when the Court decided Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 90 S.Ct. 400, 24 L.Ed.2d 386 (1969). The majority in Sullivan held that a plaintiff in litigation under 42 U.S.C. § 1982 has standing to complain about retaliation, and Jackson concluded that it must have had a substantive component too. So read, Sullivan is of a piece with other decisions holding that judges may supplement statutes to make them “more effective.” See, e.g., J.I. Case Co. v. Borak, 377 U.S. 426, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964). But Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), abandoned that approach, and since the 1970s the Court has lashed interpretation more closely to statutory text. “[N]o legislation pursues its purposes at all costs. Deciding what competing values will or will not be sacrificed to the achievement of a particular objective is the very essence of legislative choice — and it frustrates rather than effectuates legislative intent simplistically to assume that whatever furthers the statute’s primary objective must be the law.” Rodriguez v. United States, 480 U.S. 522, 525-26, 107 S.Ct. 1391, 94 L.Ed.2d 533 (1987) (emphasis in original). It is anachronistic to say that, because Sullivan engaged in a freewheeling “interpretation” of § 1982, we may today take liberties with § 1981. One might as well cite Borak for the proposition that “every right implies a remedy” so that courts should today create a private right of action for every statute other than those that the Supreme Court addressed in Cort" }, { "docid": "11658899", "title": "", "text": "be confident that if someone had told Congress in the deliberations leading up to enactment that it had neglected to say anything about the shifting of expert-witness fees, Congress would have added language making clear to the most literal-minded that such fees could be shifted. We think it would have, and one reason is simply that we are given and can think of no reason against such shifting — especially given our earlier point that expert fees for advice and consultation can be shifted along with paralegal and other incidental expenses normally incurred in litigation. There would be a reason if the civil rights fees statute had been a hard-fought compromise between those who wanted judges to have the broad equitable authority they had exercised before Alyeska and those who wanted no inroads made on Alyeska, for then the court’s duty would be to give effect to the compromise, not to give proponents a victory that had eluded them in the legislative arena. See Rodriguez v. United States, 480 U.S. 522, 525-26, 107 S.Ct. 1391, 1393-94, 94 L.Ed.2d 533 (1987) (per curiam). But there is no indication of compromise on any issue relevant to this case, and the defendants do not argue it. All the evidence is to the contrary. Recognizing that most civil rights suits were not lucrative for the plaintiffs’ lawyers, Congress wanted to make losing defendants bear the expenses of suit beyond the usual items taxable as costs. Why exclude expert-witness fees? Why in particular exclude those fees when they are incurred for testimony and its preparation but not when they are incurred for advice and consultation? The most telling clue to the statute’s meaning is the passage quoted above from the Senate committee report, discussing the equitable power exercised by courts prior to Alyeska, and a companion statement that “this bill creates no startling new remedy — it only meets the technical requirements that the Supreme Court has laid down if the Federal courts are to continue the practice of awarding attorneys’ fees which had been going on for years prior to the Court’s May decision" }, { "docid": "7293341", "title": "", "text": "essence of legislative choice—and it frustrates rather than effectuates legislative intent simplistically to assume that whatever furthers the statute’s primary objectives must be the law.” Rodriguez v. United States, 480 U.S. 522, 525-526, 107 S.Ct. 1391, 1393, 94 L.Ed.2d 533 (1987). It is a frequently stated principle of statutory construction that when legislation expressly provides a particular remedy or remedies, courts should not expand the coverage of the statute to subsume other remedies. Cheek v. United States, — U.S. -, 111 S.Ct. 604, 112 L.Ed.2d 617 (1991). If the intent of Congress is clear, that is the end of the matter. Pension Benefit Guaranty Corp. v. LTV Corp., — U.S. -, 110 S.Ct. 2668, 110 L.Ed.2d 579 (1990). If D’Oench and section 1823(e) were to be applied as suggested by the RTC, liability on any obligation (except, perhaps, insured deposits) not meeting the section 1823(e) requirements could be avoided. Would it be in the public interest if bank customers could not be sure of the validity of their transactions with banks? Would the RTC have boards of directors operating en banc as tellers, approving and contemporaneously recording each and every bank transaction, in order for these transactions to be excepted from D’Oench and section 1823(e)? The RTC claims that, since section 1823(e) represents a codification of D’Oench, the statutory requirements concerning the recording and approval of the transaction should be utilized when analyzing the circumstances of this case under D’Oench. Courts have indeed employed the analysis used in decisions under section 1823(e) as a guide to D’Oench interpretation. The Fifth Circuit has held, however, that D’Oench and section 1823(e) are not identical. Federal Deposit Ins. Corp. v. McClanahan, 795 F.2d 512, 514 (5th Cir.1986) (“it has not been suggested that the enactment of 1823(e) in 1950, as amended to the Federal Deposit Insurance Act, preempted the common law rule of D’Oench, Duhme. The discussion of the amendment in the legislative history does not mention D’Oench, Duhme ...”). While the statute expands D’Oench in that it applies to any agreement, whether or not it was “secret”, and regardless of the makers" }, { "docid": "16705330", "title": "", "text": "Co., 428 U.S. 1, 96 S.Ct. 2882, 49 L.Ed.2d 752 (1976) (describing the elaborate presumptions in the 1972 amendments). Another presumption, still in the statute, is that complicated pneumoconiosis is totally disabling. 30 U.S.C. § 921(c)(3). These and other presumptions made the program so generous to miners that Congress retrenched; claims filed after January 1, 1982, must satisfy a higher standard. Pitt-ston Coal Group v. Sebben, 488 U.S. 105, 109 S.Ct. 414, 102 L.Ed.2d 408 (1988), and Pauley v. Bethenergy Mines, Inc., — U.S.-, 111 S.Ct. 2524, 115 L.Ed.2d 604 (1991), describe many of these changes. Knowing that Congress meant to be generous with mine operators’ money does not tell us how generous. Legislative history frequently points in a direction, but to carry out the statute we must identify not only the direction but also the distance. “[N]o legislation pursues its purposes at all costs. Deciding what competing values will or will not be sacrificed to the achievement of a particular objective is the very essence of legislative choice — and it frustrates rather than effectuates legislative intent simplistically to assume that whatever furthers the statute’s primary objective must be the law.” Rodriguez v. United States, 480 U.S. 522, 525-26, 107 S.Ct. 1391, 1393, 94 L.Ed.2d 533 (1987) (emphasis in original); Pension Benefit Guaranty Corp. v. LTV Corp., 496 U.S. 633, 646-47, 110 S.Ct. 2668, 2675-76, 110 L.Ed.2d 579 (1990) (quoting Rodriguez). See also Board of Governors v. Dimension Financial Corp., 474 U.S. 361, 374, 106 S.Ct. 681, 689, 88 L.Ed.2d 691 (1986); NAACP v. American Family Mutual Insurance Co., 978 F.2d 287, 298 (7th Cir.1992); In re Erickson, 815 F.2d 1090, 1094 (7th Cir.1987). To find rules of law we must consult the statutory text. The Black Lung Benefits Act contains many substantive and evidentiary rules favorable to claimants, but no true doubt rule or any facsimile. To deploy such a rule on the basis of legislative, benevolence that also accounts for the statutory presumptions is to count the magnanimous impulse twice. Tilting the burdens in miners’ favor is especially questionable for claims filed in 1982 and later, for" }, { "docid": "22532676", "title": "", "text": "representative appointed. \"(ii) In the case of an incompetent individual, the date on which such individual becomes competent or has had a legal representative appointed.\" On the facts of this case, petitioner does not contend that North Carolina's 3-year statute of limitations bars respondents' suit. Though the suit was filed in 2011, more than 20 years after petitioner sold the property at issue, respondents allege that they learned about the contamination only in 2009. C The Court now examines in more detail the question whether the state statute of repose is pre-empted by the federal statute. The Court of Appeals supported its interpretation of § 9658 by invoking the proposition that remedial statutes should be interpreted in a liberal manner. The Court of Appeals was in error when it treated this as a substitute for a conclusion grounded in the statute's text and structure. After all, almost every statute might be described as remedial in the sense that all statutes are designed to remedy some problem. And even if the Court identified some subset of statutes as especially remedial, the Court has emphasized that \"no legislation pursues its purposes at all costs.\" Rodriguez v. United States, 480 U.S. 522, 525-526, 107 S.Ct. 1391, 94 L.Ed.2d 533 (1987) ( per curiam ). Congressional intent is discerned primarily from the statutory text. In any event, were the Court to adopt a presumption to help resolve ambiguity, substantial support also exists for the proposition that \"the States' coordinate role in government counsels against reading\" federal laws such as § 9658 \"to restrict the States' sovereign capacity to regulate\" in areas of traditional state concern. FTC v. Phoebe Putney Health System, Inc., 568 U.S. ----, ----, 133 S.Ct. 1003, 1016, 185 L.Ed.2d 43 (2013). Turning to the statutory text, the Court notes first that § 9658, in the caption of subsection (a), characterizes pre-emption as an \"[e]xception\" to the regular rule. § 9658(a)(1). Section 9658 contains another subsection, with the heading \"State law generally applicable,\" that provides the rule that \"the statute of limitations established under State law shall apply.\" § 9658(a)(2). Under this" }, { "docid": "4978395", "title": "", "text": "Servs., 655 F.2d 721, 724 (6th Cir.1981); see also Cohen, supra (dicta); O'Daniel v. Richardson, 458 F.2d 330, 334 (6th Cir.1972) (citing Haberman v. Finch, 418 F.2d 664, 667 (2d Cir.1969)). More recently, however, the Supreme Court, in reviewing the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. § 901 et seq. (1986 & Supp.1996), has called \"the proposition that the statute at hand should be liberally construed” the \"last redoubt of losing causes.... ” Director, Office of Workers’ Compensation v. Newport News Shipbuilding & Dry Dock Co., 514 U.S. -, -, 115 S.Ct. 1278, 1288, 131 L.Ed.2d 160 (1995). Liberal construction may apply, in the case of ambiguity, to find present rather than absent elements that are essential to the operation of a legislative scheme; but it does not add features that will achieve the statutory “purposes\" more effectively. Every statute proposes, not only to achieve certain ends, but also to achieve them by particular means&emdash;and there is often a considerable legislative battle over what those means ought to be. The withholding of agency authority is as significant as the granting of it, and we have no right to play favorites between the'two. Id. Addressing the Comprehensive Crime Control Act of 1984, Pub.L. 98-473, 98 Stat.1976, in Rodriguez v. United States, 480 U.S. 522, 107 S.Ct. 1391, 94 L.Ed.2d 533 (1987), the Court stated: Deciding what competing values will or will not be sacrificed to the achievement of a particular objective is the very essence of legislative choice&emdash;and it frustrates rather than effectuates legislative intent simplistically to assume that whatever furthers the statute’s primary objective must be the law. Where, as here, the language of a. provision is sufficiently clear in its context and not at odds with the legislative history, there- is no occasion to examine the additional considerations of policy that may have influenced the lawmakers in their formulation of the statute. Id. at 526, 107 S.Ct. at 1393 (citation, ellipses, brackets, and internal quotation marks omitted). . In the context of immigration law, the Supreme Court has interpreted the substantial evidence standard to mean that a" }, { "docid": "18617870", "title": "", "text": "members and strengthened their hand against union hierarchies. Section 201(c) is a pro-member law, for it authorizes awards only to plaintiffs. But after we determine that a law favors some group, the question becomes: How much does it favor them? Knowing that a law is remedial does not tell a court how far to go. Every statute has a stopping point, beyond which, Congress concluded, the costs of doing more are excessive — or beyond which the interest groups opposed to the law were able to block further progress. A court must determine not only the direction in which a law points but also how far to go in that direction. Rodriguez v. United States, 480 U.S. 522, 525-26, 107 S.Ct. 1391, 1393, 94 L.Ed.2d 533 (1987); NAACP v. American Family Mutual Insurance Co., 978 F.2d 287, 298 (7th Cir.1992); In re Erickson, 815 F.2d 1090, 1094 (7th Cir.1987). We need to know which way the wind blows- — and how fast it is blowing. Sections 1988 and 2000e-5(k) are more favorable to plaintiffs than is § 201(e), because they omit the “judgment” requirement § 201(e) contains. We would dishonor the laws Congress actually enacted were we, in the name of an interpretive maxim, to treat such different texts as if they meant the same thing. Searching for a “judgment” has a formal quality, to be sure. Plaintiffs could have insisted on obtaining a consent decree embodying the settlement, and if the union refused the plaintiffs could have proceeded to judgment on the documents that had not been produced. A favorable judgment by consent or by judicial decision could have served as the foundation for an award of fees. But Congress may choose when to observe forms and when to dispense with them. Standing on form has the advantage of letting everyone know what is at stake. Knowledge that a consent decree will create liability for attorneys’ fees permits both sides to negotiate with full information about the costs of litigation versus settlement. Whether the informal “prevailing party” approach under § 1988 is superior to the formal “judgment” approach under" }, { "docid": "3824452", "title": "", "text": "by the complex term “pepti”. English does not contain many such comprehensive words, so statutes are written using rules and exceptions. Necessary adaptations to the language should not cause us to read rules broadly, or narrowly, or somewhere in between. We must instead ascertain the meaning of the full law as best we can, without a thumb on the scales. Whether to shade the meaning of a term in order to achieve a particular effect (such as “more coverage of the exemption”) also is not a question to which there is a general answer. Continental Can tells us that Congress’ purpose was exclusion in the trucking industry and it wants more of this; the Fund tells us that Congress’ purpose was imposition of withdrawal liability for underfunded plans, and it wants more of that. Of course Congress’ purpose was both of these things, to a degree, and the question is: what degree? We cannot divine the balance between objectives by pointing to their existence. “[N]o legislation pursues its purposes at all costs. Deciding what competing values will or will not be sacrificed to the achievement of a particular objective is the very essence of legislative choice — and it frustrates rather than effectuates legislative intent simplistically to assume that whatever furthers the statute’s primary objective must be the law.” Rodriguez v. United States, 480 U.S. 522, 525-26, 107 S.Ct. 1391, 1393, 94 L.Ed.2d 533 (1987) (emphasis in original); Pension Benefit Guaranty Corp. v. LTV Corp., — U.S. -, 110 S.Ct. 2668, 2676, 110 L.Ed.2d 579 (1990). See also Board of Governors v. Dimension Financial Corp., 474 U.S. 361, 374, 106 S.Ct. 681, 689, 88 L.Ed.2d 691 (1986). Congress had a choice: it could legislate a means, or it could legislate a result. It could say that firms participating in pension plans that have such-and-such attributes are exempt from withdrawal liability, or it could say, for example, that the 50% of the pension plans having the largest share of contributions from the trucking industry are exempt. It chose the former method. It (at least Sen. Durenberger and the interest groups for" }, { "docid": "4643313", "title": "", "text": "480 U.S. 522, 525-26, 107 S.Ct. 1391, 1393, 94 L.Ed.2d 533 (1987); Board of Governors v. Dimension Financial Corp., 474 U.S. 361, 374, 106 S.Ct. 681, 689, 88 L.Ed.2d 691 (1986). Knowing the purpose behind a rule may help a court decode an ambiguous text, Sundstrand Corp. v. CIR, 17 F.3d 965, 967 (7th Cir.1994); Calderon v. Witvoet, 999 F.2d 1101, 1104 (7th Cir.1993), but first there must be some ambiguity. Lincoln v. Vigil, — U.S. -, -, 113 S.Ct. 2024, 2031-32, 124 L.Ed.2d 101 (1993); Puerto Rico Department of Consumer Affairs v. Isla Petroleum Corp., 485 U.S. 495, 108 S.Ct. 1350, 99 L.Ed.2d 582 (1988). Subject to the standard proviso about absurd results, when the statute itself resolves the problem at hand that is an end to matters. E.g., Connecticut National Bank v. Germain, — U.S. -, 112 S.Ct. 1146, 1149, 117 L.Ed.2d 391 (1992); Board of Governors v. MCorp Financial, Inc., — U.S. -, -, 112 S.Ct. 459, 463-64, 116 L.Ed.2d 358 (1991); Rodriguez, 480 U.S. at 526, 107 S.Ct. at 1393. Most subsections of § 362 are concerned, as the district court concluded, with efforts to obtain money from the estate or to reduce the estate’s ability to collect from others. Section 362(a)(3), however, reaches farther, encompassing every effort to “exercise control over property of the estate”. The right to collect from the general partners is “property of the estate”. See 11 U.S.C. § 541(a)(1) (property of the estate includes “all legal or equitable interests of the debtor in property as of the commencement of the case”). That the general partners made their promise to and for the benefit of the investors does not detract from the fact that the promise also is “property of the estate”. The district judge exercised control over that property. Q.E.D. This conclusion makes functional as well as formal sense. One of the principal means by which bankruptcy law operates is to concentrate, in a single forum, disputes affecting a debtor’s solvency and continuing operations. Covey v. Commercial National Bank of Peoria, 960 F.2d 657, 661-62 (7th Cir.1992); Levit v. Ingersoll Rand" }, { "docid": "6932411", "title": "", "text": "related to the purposes of the enabling legislation.’ ” Thorpe v. Housing Authority of the City of Durham, 393 U.S. 268, 280-81, 89 S.Ct. 518, 525, 21 L.Ed.2d 474 (1969). The Federal Reserve Board derived its power from a statute authorizing rules “necessary or proper to effectuate the purposes ” of the legislation. The Commission’s rulemaking authority is worded differently. It extends only to regulations implementing statutory “provisions,” which might be considered more confining. See Rodriguez v. United States, 480 U.S. 522, 525-26, 107 S.Ct. 1391, 1393, 94 L.Ed.2d 533 (1987) (per curiam). A distinction along these lines would lend support to petitioners, but we are not free to draw it. Like section 23(a)(1) of the 1934 Act, the rulemaking section in Thorpe, 393 U.S. at 280-81, 89 S.Ct. at 525-26 also authorized rules and regulations necessary to carry out statutory “provisions,” rather than purposes. Yet Mourning treated the two formulations as equivalent (411 U.S. at 369-70, 93 S.Ct. at 1660-61), and construed both to permit agencies to prescribe remedial measures “reasonably related” to statutory purposes. See also Ameri can Trucking Ass’ns v. United States, 344 U.S. 298, 73 S.Ct. 307, 97 L.Ed. 337 (1953), which the Court cited in conjunction with Thorpe. I therefore agree with the Commission, and with the Second Circuit in Touche, 609 F.2d at 579, that we are bound to apply Mourning’s test and thus must examine Rule 2(e)’s relationship to “the purposes of the enabling legislation.” Protecting those who rely on financial statements filed with the Commission and promoting accuracy in reporting are doubtless objectives of both the 1933 and 1934 Acts. See Touche, 609 F.2d at 580-81. But to ask simply whether Rule 2(e) is reasonably related to such sweeping objectives is to put the matter too generally. “[T]he purpose of a statute,” the Supreme Court has reminded us, “includes not only what it sets out to change, but also what it resolves to leave alone.” West Virginia Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 98, 111 S.Ct. 1138, 1147, 113 L.Ed.2d 68 (1991). In this regard, petitioners say that one subject" }, { "docid": "7293340", "title": "", "text": "integrity of the deposit insurance fund (which can be adequately protected by other more equitable means) outweigh the policy of equitable and ratable payment of creditors ... or permit the FDIC, whenever it felt its actions to be reasonable and to serve to protect the deposit insurance fund against loss, to prefer some creditors over others.” First Empire Bank v. Federal Deposit Ins. Corp., 572 F.2d 1361 (9th Cir.), cert. denied 439 U.S. 919, 99 S.Ct. 293, 58 L.Ed.2d 265 (1978), cert. denied 452 U.S. 906, 101 S.Ct. 3032, 69 L.Ed.2d 406 (1981). What the RTC and Universal Savings want is not a construction of a statute, but, in effect, an enlargement of it. The RTC urges expanding the scope of section 1823(e) in order to promote the goals of both D’Oench and 12 U.S.C. 1823(e) — that of protecting the publicly financed deposit insurance system. However, “[n]o legislation pursues its purposes at all costs. Deciding what competing values will or will not be sacrificed to the achievement of a particular objective is the very essence of legislative choice—and it frustrates rather than effectuates legislative intent simplistically to assume that whatever furthers the statute’s primary objectives must be the law.” Rodriguez v. United States, 480 U.S. 522, 525-526, 107 S.Ct. 1391, 1393, 94 L.Ed.2d 533 (1987). It is a frequently stated principle of statutory construction that when legislation expressly provides a particular remedy or remedies, courts should not expand the coverage of the statute to subsume other remedies. Cheek v. United States, — U.S. -, 111 S.Ct. 604, 112 L.Ed.2d 617 (1991). If the intent of Congress is clear, that is the end of the matter. Pension Benefit Guaranty Corp. v. LTV Corp., — U.S. -, 110 S.Ct. 2668, 110 L.Ed.2d 579 (1990). If D’Oench and section 1823(e) were to be applied as suggested by the RTC, liability on any obligation (except, perhaps, insured deposits) not meeting the section 1823(e) requirements could be avoided. Would it be in the public interest if bank customers could not be sure of the validity of their transactions with banks? Would the RTC have" } ]

[ { "docid": "18231676", "title": "", "text": "denial of departure is discretionary and not appealable. See United States v. Mariano, 983 F.2d 1150, 1153 (1st Cir.1993). There are, however, three situations in which a refusal to depart is appealable, including: “(1) the refusal to depart involves an incorrect application of the Sentencing Guidelines; (2) the refusal to depart otherwise violates the law, or (3) the district court mistakenly believed that it lacked the discretion to depart.” United States v. Dewire, 271 F.3d 333, 337 (1st Cir.2001) (citations omitted). Mills raises a challenge of the first kind, arguing that the district court failed to apply or misapplied Sentencing Guideline § 5K1.1 to his sentence. Before a court can consider a departure for substantial assistance, the government must first move for a downward departure under § 5K1.1. See Wade v. United States, 504 U.S. 181, 185, 112 S.Ct. 1840, 118 L.Ed.2d 524 (1992). The district court must then determine whether or not to depart from the sentencing guideline range, and if so, how far to depart. Mariano, 983 F.2d at 1155. Sentencing Guideline § 5K1.1 requires the district court to consider a range of factors in evaluating a substantial assistance motion. It states: (a) [t]he appropriate reduction shall be determined by the court for reasons stated that may include, but are not limited to, consideration of the following: (1) the court’s evaluation of the significance and usefulness of the defendant’s assistance, taking into consideration the government’s evaluation of the assistance rendered; (2) the truthfulness, completeness, and reliability of any information or testimony provided by the defendant; (3) the nature and extent of the defendant’s assistance; (4) any injury suffered, or any danger or risk of injury to the defendant or his family resulting from his assistance; (5) the timeliness of the defendant’s assistance, (emphasis added). We have held that a “district court, faced with a section 5K1.1 motion, must at a bare minimum indicate its cognizance of these factors.” Mariano, 983 F.2d at 1156. The use of the phrase “may include, but are not limited to ” in § 5K1.1 indicates that the district court may also examine factors" } ]

[ { "docid": "22448078", "title": "", "text": "Second, it viewed her as a somewhat atypical drug offender with a good chance at being rehabilitated. When determining the appropriate extent of a substantial-assistance downward departure, the district court should consider the following five factors: (1) the court’s evaluation of the significance and usefulness of the defendant’s assistance, taking into consideration the government’s evaluation of the assistance rendered; (2) the truthfulness, completeness, and reliability of any information or testimony provided by the defendant; (3) the nature and extent of the defendant’s assistance; (4) any injury suffered, or any danger or risk of injury to the defendant or his family resulting from his assistance; [and] (5) the timeliness of the defendant’s assistance. USSG § 5Kl.l(a). “Substantial weight should be given to the government’s evaluation of the extent of the defendant’s assistance, particularly where the extent and value of the assistance are difficult to ascertain.” USSG § 5K1.1, comment, (n.3). These five factors are not “an exhaustive list,” and the district court is not required “to examine each of the listed factors in § 5K1.1 on the record and explain exactly just what weight it gives to each in its departure decision.” United States v. McCarthy, 97 F.3d 1562, 1577 (8th Cir.1996), cert. denied, 519 U.S. 1139, 117 S.Ct. 1011, 136 L.Ed.2d 888 and 520 U.S. 1133, 117 S.Ct. 1284, 137 L.Ed.2d 359 (1997). Nonetheless, what the district court is required to do is act reasonably when exercising the discretion it is given, and we will not infer a reasoned exercise of discretion from a record that suggests otherwise or is silent. Here, we see no elucidation of why the district court valued the significance and usefulness of Dalton’s assistance so much more highly than the government did. Likewise, there is no indication that the district court gave substantial weight to the government’s evaluation of the extent of Dalton’s assistance before deciding to depart to a much greater extent. We are persuaded that the district court went beyond the permissible bounds of its discretion by imposing a sixty-month sentence, given that there is no quarrel about the timeliness, truthfulness, completeness, and" }, { "docid": "17655038", "title": "", "text": "then accepted the prosecutor’s recommendation and imposed an incarcerative sentence of 100 months. II The appellant’s principal argument is that he was entitled to a downward departure for what he characterizes as his “substantial assistance” to the government. In his view, the prosecutor acted improperly by refusing to move for one, and the district court erred in not remedying the situation. This argument lacks force. We made clear in Alegría, 192 F.3d at 189, that departures for substantial assistance must come within the confines of USSG § 5K1.1. Drawing on Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996), the appellant attempts to subvert this holding on the theory that USSG § 5K2.0 provides a separate and independent basis under which the district court can depart downward for substantial assistance. This is an argument that we confronted and rejected in Alegría, 192 F.3d at 189, and we have no hesitancy in rejecting it here. This brings us to section 5K1.1, which provides in pertinent part that “[u]pon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense, the court may depart from the guidelines.” The sine qua non for a section 5K1.1 departure is the filing of a motion to that effect by the government. See Alegría, 192 F.3d at 189; United States v. Mariano, 983 F.2d 1150, 1155 (1st Cir.1993). For the most part, the government has unbridled discretion in deciding whether to file such a motion. See Wade v. United States, 504 U.S. 181, 185, 112 S.Ct. 1840, 118 L.Ed.2d 524 (1992); United States v. Romolo, 937 F.2d 20, 25 (1st Cir.1991); United States v. La Guardia, 902 F.2d 1010, 1015 (1st Cir.1990). Thus far, we have identified only two situations in which the law constrains this discretion. The first involves cases in which the government’s failure to move for a substantial assistance departure is based on some constitutionally impermissible factor (say, race or religion), or is “not rationally related to [some] legitimate Government end.” Wade, 504 U.S." }, { "docid": "23495383", "title": "", "text": "than isolated snippets extracted from it. See, e.g., United States v. Santiago, 83 F.3d 20, 25 (1st Cir.1996); United States v. Rostoff, 53 F.3d 398, 407 (1st Cir. 1995); cf. United States v. Tavano, 12 F.3d 301, 304 (1st Cir.1993). Applying this tenet here, the record, read as a seamless whole, belies Vaknin’s contention. ■ We need not tarry. The sentencing transcript shows with pristine clarity that Judge Boyle knew he could depart once the government invoked USSG § 5K1.1, but chose instead to impose a sentence within the GSR. As we read the record, his reasons for demurring were clear — and entirely permissible. In his view, Vaknin’s cooperation had been adequately rewarded because (a) the government had prosecuted only one count of bribery despite the fact that Vaknin had paid multiple bribes referable to separate borrowings, and (b) Vaknin’s offense level (and, hence, the GSR) already had been reduced for acceptance of responsibility under USSG § 3E1.1. The transcript also reveals that the court weighed the quintet of factors under which a substantial assistance motion must be evaluated: the nature and extent of the assistance provided; its significance and utility to the prosecution; its timeliness; the truthfulness and reliability of the information conveyed; and the injury to, or risk exposure of, the defendant resulting from his cooperation. See Mariano, 983 F.2d at 1156 (enumerating factors and explaining that “[a], district court, faced with a section 5K1.1 motion, must at a bare minimum indicate its cognizance of these factors”). After mulling these and other relevant considerations, the court determined that, under the specific circumstances of Vaknin’s case, no departure was warranted. Such a decision is quintessentially a judgment call, and, thus, within the sentencing court’s discretion. See Tardiff, 969 F.2d at 1290. Consequently, we lack both the authority to second-guess the departure decision and the inclination to do so. IV. THE CAUSATION QUANDARY All three appellants challenge the district court’s restitutionary orders. Those challenges are similar insofar as they implicate the standard of causation. Therefore, we treat them in the ensemble to that extent. A. Standard of Review. Restitution" }, { "docid": "22597051", "title": "", "text": "depart from the guidelines.’ ” United States v. Medeiros, 884 F.2d 75, 78 (3d Cir.1989) (citations omitted). That discretion is as applicable to § 5K1.1 as it is to § 5K2.0, which covers other grounds for departure. The courts more frequently focus on the latter when emphasizing the discretion the sentencing court has in making departure decisions. See Koon, — U.S. at -, 116 S.Ct. at 2045. Although a government motion to depart is an essential predicate of § 5K1.1, once it files such a motion, the district court retains broad discretion in deciding whether or not to depart. This court, along with many others, has held that it is the district court’s decision, not the prosecutor’s, whether to depart and to what extent. See United States v. Spiropoulos, 976 F.2d 155, 162-63 (3d Cir.1992). As the court stated in United States v. Mariano, 983 F.2d 1150, 1155 (1st Cir.1993), the government’s filing of a § 5K1.1 motion, “does not bind a sentencing court to abdicate its responsibility [or] stifle its independent judgment____” A district court’s discretion not to depart in the face of a motion under § 5K1.1 should be as broad as its discretion not to depart under § 5K2.0, and therefore unless there has been legal error, it should be similarly immune from appellate review. Cf United States v. Denardi, 892 F.2d 269, 272 (3d Cir.1989) (court of appeals lacks jurisdiction to review the merits of a discretionary refusal to depart downward from the Sentencing Guidelines). Once the district court decides to grant a § 5K1.1 motion, however, there are some parameters to the exercise of the court’s discretion. Although by the terms of the guidelines the bases for substantial assistance departures listed in § 5K1.1 are not meant to be exhaustive, they are instructive. The enumerated factors all concern the degree, efficacy, timeliness, and circumstances of a defendant’s cooperation. See U.S.S.G. § 5Kl.l(a); see also Mariano, 983 F.2d at 1156; cf. United States v. King, 53 F.3d 589, 591 (3d Cir.1995) (individualized qualitative examination required). There is a growing body of precedent that holds that only" }, { "docid": "20457905", "title": "", "text": "in evaluating the ‘significance and usefulness of the de fendant’s assistance,’ but direct courts to give ‘substantial weight ... to the government’s evaluation’ of that assistance.” United States v. Awad, 371 F.3d 583, 586-87 (9th Cir.2004) (citing U.S.S.G. § 5Kl.l(a)(l) & cmt. background); see also U.S.S.G. § 5K1.1 cmt. n. 3 (providing that “[s]ubstantial weight should be given to the government’s evaluation of the extent of the defendant’s assistance, particularly where the extent and value of the assistance are difficult to ascertain”). When determining the appropriate extent of a substantial-assistance downward departure, the district court should consider the following five factors: (1) the court’s evaluation of the significance and usefulness of the defendant’s assistance, taking into consideration the government’s evaluation of the assistance rendered; (2) the truthfulness, completeness, and reliability of any information or testimony provided by the defendant; (3) the nature and extent of the defendant’s assistance; (4) any injury suffered, or any danger or risk of injury to the defendant or his family resulting from his assistance; [and] (5) the timeliness of the defendant’s assistance. U.S.S.G. § 5Kl.l(a). When imposing a sentence that is well below the advisory Guidelines range pursuant to a § 5K1.1 motion, however, there must be some indication that the district court’s departure is justified. See United States v. Haack, 403 F.3d 997 (8th Cir.2005) (examining the reasonableness of the sentence against the five factors outlined in U.S.S.G. § 5K1.1 and concluding that imposition of a 78-month sentence was not justified where the Guidelines range was 180 months and the assistance the defendant provided consisted of information regarding others who were either already under indictment or were suspects); see also United States v. Livesay, 525 F.3d 1081, 1093 (11th Cir.2008) (vacating and remanding sentence where the district court did not adequately explain its assessment of Livesay’s cooperation or the sentence imposed). 2 Once an appellate court has concluded that no procedural error has occurred, it must review sentences for substantive reasonableness. Carty, 520 F.3d at 993. “A substantively reasonable sentence is one that is ‘sufficient, but not greater than necessary’ to accomplish § 3553(a)(2)’s" }, { "docid": "21692217", "title": "", "text": "would likely recommend a greater departure. It then sentenced him to 18 months on each count, to run concurrently. The government contends on appeal that the departure granted by the district court was almost 75% below Pizano’s guideline range and that it was unreasonably excessive. It argues that the extent of the departure is not commensurate with the assistance Pizano rendered and that the court did not give proper consideration to its evaluation of his assistance and its recommendation of a 10% reduction. It states that substantial weight is due its recommendation according to the commentary in the guideline manual. U.S.S.G. § 5K1.1 cmt. n. 3. At oral argument it declined to specify any particular percentage point that would separate a reasonable departure in this case from an unreasonable one. The government also alleges that the court’s evaluation of the significance and usefulness of Pizano’s testimony was im-permissibly based on factors unrelated to assistance. The government contends that courts ruling On downward departure motions cannot consider factors unrelated to the defendant’s assistance, citing cases from other circuits and the commentary to § 5K1.1. It asserts that the district court relied on reasons that were too speculative to be tied to the assistance Pizano had provided. We disagree with the government’s contention that in this case the district court considered factors unrelated to assistance. The court made its decision based on its evaluation of how Pizano’s grand jury testimony had helped the government in prosecuting other members of the conspiracy. Moreover, the guideline commentary is not explicitly so limiting as the government contends. It discusses a court’s evaluation of the “nature, extent, and significance” of a defendant’s assistance but does not say that only these considerations are legitimate, and it refers to “relevant factors” without specifying what they are. See § 5K1.1 cmt. background; cf. United States v. Anzalone, 148 F.3d 940, 942 (8th Cir.1998) (suggesting that a district court may appropriately consider factors unre lated to substantial assistance when exercising its downward departure discretion). We review a sentence for unreasonableness, guided by the sentencing factors listed in 18 U.S.C. §" }, { "docid": "22597056", "title": "", "text": "945 F.2d 1013, 1014 (8th Cir.1991) (benefit defendant received from prosecution’s decision not to press an additional weapons charge permissible ground for limiting extent of downward departure). A departure for substantial assistance is a narrow, albeit authorized, exception to the established guideline sentencing range. Therefore, the discretion exercised by the district court when making such a departure is channeled by the Sentencing Guidelines. Determinations made pursuant to the guidelines are the norm. Departures, by contrast, are exceptions and are therefore circumscribed. Indeed, there is no general, unconstrained departure provision. The closest such provision, § 5K2.0, also includes certain express restrictions. See U.S.S.G. § 5K2.0 (1995) (applicable only if there is “an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration” by the Sentencing Commission). Similarly, departures provided for acceptance of responsibility are not within the district court’s discretion. See U.S.S.G. § 3E1.1. In light of the overall scheme of the Sentencing Guidelines, it was not inconsistent for the Sentencing Commission to have circumscribed the district court’s discretion for departures for substantial assistance in only one direction, i.e., when a district court does, in fact, depart. As the court noted in Mariano: “The limitations on the variety of considerations that a court may mull in withholding or curtailing a substantial assistance departure are not nearly so stringent as those which pertain when a court in fact departs downward.” Mariano, 983 F.2d at 1157. The cases disclose a variety of factors that have influenced a district court’s decision not to follow the government’s recommendation in a § 5K1.1 motion or to limit the extent of departure. See, e.g., United States v. Webster, 54 F.3d 1, 4 (1st Cir.1995) (limiting extent of § 5K1.1 departure so as not to “offset” impact of mandatory 60-day month consecutive sentence); United States v. Alvarez, 51 F.3d 36, 39-40 & n.5 (5th Cir.1995) (limiting departure to avoid disparity in sentences with less culpable co-conspirators); Carnes, 945 F.2d at 1014 (limiting departure in light of benefit to defendant of failure of prosecutor to press weapon charges). The factors relied on by" }, { "docid": "7192181", "title": "", "text": "convicting other persons. The prosecutor confirmed that assistance rendered by the defendant was “significant, useful, truthful, complete and reliable,” giving specific illustrations. The transcript makes manifest that the court not only recognized the salience of the Mañano factors but also understood the nature, timeliness, veracity, and value of the defendant’s aid. Having grasped the situation on the first day of the hearing, the court kept the defendant’s assistance at the forefront. On the last day of the hearing, the court gave each side an opportunity to rehearse the case for a departure. This was done, in the court’s words, to ensure that it “had in mind the nature of the defendant’s cooperation.” The parties availed themselves of this opportunity in full. Of particular pertinence for present purposes, the defendant walked the court through each of the five Mariano factors and argued for no less than a two-level downward departure referable to each one. It is, therefore, abundantly clear that the Mariano factors were squarely before the court when it excogitated the extent of the departure. To be sure, the court, in pronouncing sentence, could have expounded upon the Mañano factors one by one, welding each to the case at hand. But the law does not require such a level of specificity. Where, as here, the court’s reasoning is easily inferred and there is nothing in the record to suggest that it overlooked any pertinent factor, the claim of procedural error is nothing more than hopeful speculation. Consequently, the claim lacks force. See, e.g., United States v. Mills, 329 F.3d 24, 32 (1st Cir.2003); United States v. Torres, 251 F.3d 138, 148-49 (3d Cir.2001); see also Mariano, 983 F.2d at 1156. The defendant attempts to blunt the force of this reasoning by noting that the guidelines instruct sentencing courts to give substantial weight to “the government’s evaluation of the extent of the defendant’s assistance, particularly where the extent and value of the assistance are difficult to ascertain.” USSG § 5K1.1, cmt. n. 3. The defendant says that the court strayed too far from the government’s recommendation here. We think, however, that" }, { "docid": "3725930", "title": "", "text": "See 18 U.S.C. § 3553(e); 28 U.S.C. § 994(n). The Sentencing Guidelines provide the criteria to guide the sentencing court’s discretion in departing downward for substantial assistance. See U.S.S.G. § 5K1.1. Section 5K1.1 provides that upon the government’s motion to depart downward, the sentencing court may depart from guideline sentences, taking into account five specified factors, see § 5Kl.l(a), as well as other “relevant factors,” see § 5K1.1, comment, (backg’d). In every case, and particularly when the “extent and value of the assistance are difficult to ascertain,” the court should give “[s]ubstantial weight” to the government’s evaluation of the defendant’s assistance. U.S.S.G. § 5K1.1, comment, (n.3). In any event, any factor considered by the district court on a § 5K1.1 motion must relate to the “nature, extent, and significance” of the defendant’s assistance. U.S.S.G. § 5K1.1, comment, (backg’d). This holding, which is mandated by the text and purpose of the applicable statutes and the Sentencing Guidelines, is consistent with the law in other circuits that have considered this issue. See, e.g., Casiano, 113 F.3d at 429-30 (stating that in choosing to depart downward on a § 5K1.1 motion, a district court may only consider factors relating to a defendant’s cooperation); United States v. Aponte, 36 F.3d 1050, 1052 (11th Cir.1994) (holding that a court, in considering a § 5K1.1 motion to depart below a statutory minimum, should only consider factors relative to a defendant’s substantial assistance); United States v. Campbell, 995 F.2d 173, 175 (10th Cir.1993) (holding that a sentencing court may depart from a statutory minimum sentence “only to reflect substantial assistance” by the defendant); United States v. Mariano, 983 F.2d 1150, 1156 (1st Cir.1993) (holding that in departing from the guideline range on a § 5K1.1 motion, a court may consider mitigating factors “only to the extent that they can fairly be said to touch upon the degree, efficacy, timeliness, and circumstances of a defendant’s cooperation”); United States v. Valente, 961 F.2d 133, 134-35 (9th Cir.1992) (holding that a sentencing court may not, on a motion under § 5K1.1, depart downward from a statutory minimum sentence because of" }, { "docid": "7192183", "title": "", "text": "the defendant overstates the effect of this directive. A substantial assistance departure begins with a government motion. Wade, 504 U.S. at 184, 112 S.Ct. 1840. Once such a motion is filed, the government’s assessment of the defendant’s assistance deserves serious consideration. Withal, that assessment is neither a proxy for the sentencing court’s exercise of discretion nor a basis upon which the court can abdicate its responsibilities. See United States v. Burns, 577 F.3d 887, 893 (8th Cir.2009) (en banc) (noting that “the government’s recommendation is not controlling ... and it is the district court’s responsibility to determine an appropriate reduction”) (citation and internal quotation marks omitted). The directive to give substantial weight to the government’s evaluation was “never intended to rein in the district court’s discretion concerning the need for, and extent of, a downward departure” under section 5K1.1. Mariano, 983 F.2d at 1156; see Vaknin, 112 F.3d at 585 (observing that “the sentencing judge’s role cannot be usurped by agreements between the prosecutor and the defendant”). It follows inexorably that a court that chooses not to accept a prosecutor’s recommendation in full cannot, for that reason alone, be deemed to have misweighed the Mariano factors. 2. The Assault. Next, the defendant assails the sentencing court’s zealous attention to the assault charge. It was error, he asserts, for the court to look behind the face of the state-court record; and in any event, the lengthy evidentiary hearing resulted in a peripheral matter (the assault) overshadowing the central issue in the case (the defendant’s substantial assistance). This argument is unavailing. To begin, courts have long been permitted to consider more than charged conduct in fashioning sentences. See, e.g., United States v. Mays, 593 F.3d 603, 609-10 (7th Cir.2010); United States v. Lombard, 102 F.3d 1, 4 (1st Cir.1996). Moreover, a sentencing court is not bound by the face of a record in a different criminal proceeding; indeed, a sentencing court may even consider acquitted conduct, if proved by a preponderance of the evidence. See, e.g., United States v. Watts, 519 U.S. 148, 157, 117 S.Ct. 633, 136 L.Ed.2d 554 (1997) (per" }, { "docid": "7192182", "title": "", "text": "To be sure, the court, in pronouncing sentence, could have expounded upon the Mañano factors one by one, welding each to the case at hand. But the law does not require such a level of specificity. Where, as here, the court’s reasoning is easily inferred and there is nothing in the record to suggest that it overlooked any pertinent factor, the claim of procedural error is nothing more than hopeful speculation. Consequently, the claim lacks force. See, e.g., United States v. Mills, 329 F.3d 24, 32 (1st Cir.2003); United States v. Torres, 251 F.3d 138, 148-49 (3d Cir.2001); see also Mariano, 983 F.2d at 1156. The defendant attempts to blunt the force of this reasoning by noting that the guidelines instruct sentencing courts to give substantial weight to “the government’s evaluation of the extent of the defendant’s assistance, particularly where the extent and value of the assistance are difficult to ascertain.” USSG § 5K1.1, cmt. n. 3. The defendant says that the court strayed too far from the government’s recommendation here. We think, however, that the defendant overstates the effect of this directive. A substantial assistance departure begins with a government motion. Wade, 504 U.S. at 184, 112 S.Ct. 1840. Once such a motion is filed, the government’s assessment of the defendant’s assistance deserves serious consideration. Withal, that assessment is neither a proxy for the sentencing court’s exercise of discretion nor a basis upon which the court can abdicate its responsibilities. See United States v. Burns, 577 F.3d 887, 893 (8th Cir.2009) (en banc) (noting that “the government’s recommendation is not controlling ... and it is the district court’s responsibility to determine an appropriate reduction”) (citation and internal quotation marks omitted). The directive to give substantial weight to the government’s evaluation was “never intended to rein in the district court’s discretion concerning the need for, and extent of, a downward departure” under section 5K1.1. Mariano, 983 F.2d at 1156; see Vaknin, 112 F.3d at 585 (observing that “the sentencing judge’s role cannot be usurped by agreements between the prosecutor and the defendant”). It follows inexorably that a court that chooses" }, { "docid": "22090707", "title": "", "text": "he received from the prosecution's decision not to charge him with the use of additional weapons. Additionally, in United States v. Mittelstadt, 969 F.2d 335, 336-37 (7th Cir.1992), the Seventh Circuit Court of Appeals held that a district court did not err in considering a defendant's chronic alcoholism in making a § 5K1.1 determination. See also United States v. Lniz, 102 F.3d 466 (11th Cir.1996) (per curiam) (holding that a district court's comparison of a defendant's conduct to that of co-defendants to determine the extent of a sentencing reduction for substantial assistance was not a misapplication of § 5K1.1); United States v. Alvarez, 51 F.3d 36, 41 (5th Cir.1995) (\"{TJhe decision as to the extent of the departure is committed to the almost complete discretion of the district court, which may consider factors beyond the narrower set that could independently support a departure in the first instance.\"); Mariano, 983 F.2d at 1156-57 (\"Even if the five factors enumerated in section 5K1.1 weigh in a defendant's favor, the district court may, on the basis of other considerations . . . decide to forego or curtail a downward departure for substantial assistance.\"). Applying this standard to the present case, we conclude that the District Court, although marginally, met its burden under § 5K1.1. The transcripts of the sentencing hearing reveal that the Court heard and considered arguments that covered each factor enumerated in the Guidelines, and apparently read the government's letter. Although the Court failed to articulate the details of Torres’s substantial assistance when announcing its ruling, we are satisfied that it weighed § 5Kl.l’s factors nonetheless. Specifically, the Court stated, “[t]he motion for § 5K1.1 is granted. It’s barely granted, but we will grant it because of the effusive recommendation for such being made by the United States Attorney arising out of what appeared to be a successful investigation and prosecution of law enforcement officers.... ” J.A. at 99. Therefore, the court indicated its awareness of Torres’s assistance in relation to the § 5K1.1 factors. The transcript also reveals that the District Court balanced the seriousness of Torres’s offense against his" }, { "docid": "7192179", "title": "", "text": "reasonableness under the advisory guidelines, the jurisdictional restriction limned in our pr e-Booker cases is of no consequence. In following the dictates of Booker and deciding whether the imposed sentence is reasonable, the reviewing court, in effect, resolves any question as to whether the extent of the departure is reasonable. The authority to conduct that review is sufficient to confer jurisdiction here. B. Procedural Soundness. We turn now to the claim of procedural error. The defendant complains that the sentencing court erred by (i) failing to cogitate the Mariano factors and (ii) delving too deeply into the background of the assault charge. We consider these two claims separately. 1. The Mariano Factors. Both the decision to depart downward for substantial assistance and the related decision about the extent of the departure rest within the sound discretion of the sentencing court. Mariano, 983 F.2d at 1156. The so-called Mañano factors inform those decisions; in United States v. Ahlers, we summarized them: [T]he court’s evaluation of the significance and usefulness of the defendant’s assistance ...; the reliability of any information or testimony given by the defendant; the timeliness, nature, and extent of the assistance; and any danger to which the defendant or members of his family were exposed as a result of the assistance. 305 F.3d 54, 61 n. 6 (1st Cir.2002). A sentencing court’s discretion to assay these factors is wide, but not unbounded. Although a sentencing court “must at a bare minimum indicate its cognizance” of the Mariano factors, Mariano, 983 F.2d at 1156, we have prescribed no particular formula for evaluating and explicating these factors. In other words, a sentencing court is not required to use any magic words or chant any special mantra to show that it has considered the five factors. See Vaknin, 112 F.3d at 585. In this instance, the record shows with conspicuous clarity the sentencing court’s awareness of the Mañano factors. During the first day of the disposition hearing, the court noted that it would “measure the [defendant’s] cooperation” against the factors and inquired into the role that the defendant’s cooperation had played in" }, { "docid": "7192180", "title": "", "text": "of any information or testimony given by the defendant; the timeliness, nature, and extent of the assistance; and any danger to which the defendant or members of his family were exposed as a result of the assistance. 305 F.3d 54, 61 n. 6 (1st Cir.2002). A sentencing court’s discretion to assay these factors is wide, but not unbounded. Although a sentencing court “must at a bare minimum indicate its cognizance” of the Mariano factors, Mariano, 983 F.2d at 1156, we have prescribed no particular formula for evaluating and explicating these factors. In other words, a sentencing court is not required to use any magic words or chant any special mantra to show that it has considered the five factors. See Vaknin, 112 F.3d at 585. In this instance, the record shows with conspicuous clarity the sentencing court’s awareness of the Mañano factors. During the first day of the disposition hearing, the court noted that it would “measure the [defendant’s] cooperation” against the factors and inquired into the role that the defendant’s cooperation had played in convicting other persons. The prosecutor confirmed that assistance rendered by the defendant was “significant, useful, truthful, complete and reliable,” giving specific illustrations. The transcript makes manifest that the court not only recognized the salience of the Mañano factors but also understood the nature, timeliness, veracity, and value of the defendant’s aid. Having grasped the situation on the first day of the hearing, the court kept the defendant’s assistance at the forefront. On the last day of the hearing, the court gave each side an opportunity to rehearse the case for a departure. This was done, in the court’s words, to ensure that it “had in mind the nature of the defendant’s cooperation.” The parties availed themselves of this opportunity in full. Of particular pertinence for present purposes, the defendant walked the court through each of the five Mariano factors and argued for no less than a two-level downward departure referable to each one. It is, therefore, abundantly clear that the Mariano factors were squarely before the court when it excogitated the extent of the departure." }, { "docid": "7192178", "title": "", "text": "a sentence within a properly calculated GSR remained, as before Booker, “inherently unreviewable.” Id. at 517. The government argued the affirmative of this proposition, based in part on an analogy to pr e-Booker “case law governing review ... of a refusal to depart.” Id. (emphasis omitted). We rejected the government’s proposition, concluding that Booker rendered it “hopeless.” Id. The logic of the en banc decision in Jiménez-Beltre must prevail here. Under that logic, all sentences imposed under the advisory guidelines (subject, however, to the exemption mentioned above, see supra note 1) are open to reasonableness review, including those that entail either a discretionary refusal to depart or a departure whose extent is contested. No other rule will satisfy what we have determined to be the Booker Court’s mandate that all “sentences would be reviewable for reasonableness whether they fell within or without the guidelines.” Jiménez-Beltre, 440 F.3d at 517; see also id. at 517 n. 1. This holding disposes of the government’s jurisdictional objection. Where, as here, a departure sentence is subject to review for reasonableness under the advisory guidelines, the jurisdictional restriction limned in our pr e-Booker cases is of no consequence. In following the dictates of Booker and deciding whether the imposed sentence is reasonable, the reviewing court, in effect, resolves any question as to whether the extent of the departure is reasonable. The authority to conduct that review is sufficient to confer jurisdiction here. B. Procedural Soundness. We turn now to the claim of procedural error. The defendant complains that the sentencing court erred by (i) failing to cogitate the Mariano factors and (ii) delving too deeply into the background of the assault charge. We consider these two claims separately. 1. The Mariano Factors. Both the decision to depart downward for substantial assistance and the related decision about the extent of the departure rest within the sound discretion of the sentencing court. Mariano, 983 F.2d at 1156. The so-called Mañano factors inform those decisions; in United States v. Ahlers, we summarized them: [T]he court’s evaluation of the significance and usefulness of the defendant’s assistance ...; the reliability" }, { "docid": "22448077", "title": "", "text": "1023, 1026 & n. 4 (8th Cir.2003) (a district court’s determination that a sentence is reasonable is reviewed for abuse of discretion). We assume for the sake of argument that, at the time of sentencing, the district court was entitled to take into account factors other than Dalton’s substantial assistance when departing. See United States v. Anzalone, 148 F.3d 940, 942 (8th Cir.) (the district court may weigh factors other than the substantial assistance provided by the defendant in exercising its downward-departure discretion), reinstated, 161 F.3d 1125 (8th Cir.1998); but see United States v. Stockdall, 45 F.3d 1257, 1261 (8th Cir.1995) (only factors relating to the defendant’s cooperation should influence the extent of a substantial-assistance departure). After Booker, district courts must consult the Guidelines and take them into account, but they are certainly free to consider all of the other factors listed in § 3553(a). See Booker, 125 S.Ct. at 766-67. The district court imposed a sixty-month sentence for basically two reasons. First, it placed a higher value on Dalton’s assistance than the government did. Second, it viewed her as a somewhat atypical drug offender with a good chance at being rehabilitated. When determining the appropriate extent of a substantial-assistance downward departure, the district court should consider the following five factors: (1) the court’s evaluation of the significance and usefulness of the defendant’s assistance, taking into consideration the government’s evaluation of the assistance rendered; (2) the truthfulness, completeness, and reliability of any information or testimony provided by the defendant; (3) the nature and extent of the defendant’s assistance; (4) any injury suffered, or any danger or risk of injury to the defendant or his family resulting from his assistance; [and] (5) the timeliness of the defendant’s assistance. USSG § 5Kl.l(a). “Substantial weight should be given to the government’s evaluation of the extent of the defendant’s assistance, particularly where the extent and value of the assistance are difficult to ascertain.” USSG § 5K1.1, comment, (n.3). These five factors are not “an exhaustive list,” and the district court is not required “to examine each of the listed factors in § 5K1.1 on" }, { "docid": "22090702", "title": "", "text": "departure for substantial assistance under § 5K1.1. In United States v. Mariano, 983 F.2d 1150 (1st Cir.1993), the appellants argued that the District Court had confused the legal principles governing departures under § 5K1.1 and § 5K2.0. The Court of Appeals agreed. In order to determine whether the District Court’s error was harmless, it examined the proper standard under § 5K1.1. In so doing, the Court of Appeals initially noted that a district court has wide discretion in deciding whether to depart under § 5K1.1. However, it held that § 5Kl.l’s relevant factors “should be considered the mother lode of substantial assistance inquiries.” Id. at 1156. As such, the court instructed that “[a] district court, faced with a section 5K1.1 motion, must at a bare minimum indicate its cognizance of these factors.” Id. (emphasis added). We agree with the approach taken in the First Circuit. Thus, we hold that when considering a departure for substantial assistance, a sentencing court not only must conduct a qualitative, case-by-case analysis but also must examine § 5Kl.l’s enumerated factors. That is, when presented with a motion for downward departure a sentencing judge must, at the very minimum, indicate his or her consideration of § 5Kl.l’s five factors in determining whether and to what extent to grant a sentencing reduction. Further, a sentencing judge must indicate his or her consideration of any factors outside those listed in § 5K1.1. We strongly urge sentencing judges to make specific findings regarding each factor and articulate thoroughly whether and how they used any proffered evidence to reach their decision. In sum, it is incumbent upon a sentencing judge not only to conduct an individualized examination of the defendant’s substantial assistance, but also to acknowledge § 5Kl.l’s factors in his or her analysis. This holding not only comports with the specificity requirements of § 5K1.1 but also recognizes the considerable responsibility of a sentencing judge. As we stated in United States v. Faulks, 201 F.3d 208, 213 (3d Cir.2000), “the responsibility confronting a district court judge when he or she sentences a convicted defendant is an awesome one.” In" }, { "docid": "22597057", "title": "", "text": "departures for substantial assistance in only one direction, i.e., when a district court does, in fact, depart. As the court noted in Mariano: “The limitations on the variety of considerations that a court may mull in withholding or curtailing a substantial assistance departure are not nearly so stringent as those which pertain when a court in fact departs downward.” Mariano, 983 F.2d at 1157. The cases disclose a variety of factors that have influenced a district court’s decision not to follow the government’s recommendation in a § 5K1.1 motion or to limit the extent of departure. See, e.g., United States v. Webster, 54 F.3d 1, 4 (1st Cir.1995) (limiting extent of § 5K1.1 departure so as not to “offset” impact of mandatory 60-day month consecutive sentence); United States v. Alvarez, 51 F.3d 36, 39-40 & n.5 (5th Cir.1995) (limiting departure to avoid disparity in sentences with less culpable co-conspirators); Carnes, 945 F.2d at 1014 (limiting departure in light of benefit to defendant of failure of prosecutor to press weapon charges). The factors relied on by the district court not to depart more than three levels because of the “extreme seriousness of the crime” and “the impact on the victim” were well within its discretion. In fact, the seriousness of the offense is one of the factors that the underlying statute expressly refers to as a relevant consideration for sentencing decisions. See 18 U.S.C. § 3553(a)(2)(A). Accordingly, we find no error of law by the district court in its choice to take into account the nature and circumstances of the offense in limiting the extent of the § 5K1.1 departure for Casiano. B. DeJesus also poses an objection to his sentence. He claims that the district court’s decision to deny him a § 5K2.0 downward departure is reviewable as an error of law. U.S.S.G. § 5K2.0 states, in relevant part: Under 18 U.S.C. § 3553(b) the sentencing court may impose a sentence outside the range established by the applicable guideline, if the court finds ‘that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately" }, { "docid": "22597054", "title": "", "text": "134 (1991). In Chestna, the court of appeals rejected the defendant’s argument that once the district court decided to depart, it opened the door to consideration of factors unrelated to assistance to the government in determining the appropriateness of a departure. As the court stated, “We ... find no support in the language of § 5K1.1 for defendant’s argument that, once animated, § 5K1.1 does not cabin the grounds presented to the court to support a downward departure.” Chestna, 962 F.2d at 106; see also Mariano, 983 F.2d at 1156. The limitation of the grounds for departures under § 5K1.1 to factors relating to the defendant’s substantial assistance to the authorities finds support in the language of the guideline and its commentary. The guideline itself is entitled “Substantial Assistance to Authorities.” The background commentary states, inter alia, that “[[latitude is ... afforded the sentencing judge to reduce a sentence based upon variable relevant factors, including those listed above.” U.S.S.G. § 5K1.1, baekg’d. comment. (1995) (emphasis added). It follows that had the district court decided to depart downward on a § 5K1.1 motion because it determined that the crime was not serious or the victim was only injured insignificantly, it would have been error. Casiano’s contention raises the obverse of that situation. He argues that because a district court may not consider factors wholly unrelated to substantial assistance when it decides to depart from the guideline sentencing range pursuant to § 5K1.1, the court also may not consider factors unrelated to substantial assistance when it chooses not to depart from the guideline sentencing range. Notwithstanding the facial appeal of symmetry, it does not follow that limiting the district court’s basis for departure to the type of considerations outlined in § 5Kl.l(a) means that the court should be similarly limited in its decision not to depart at all or to limit the extent of the departure. See Mariano, 983 F.2d at 1156-57; see also United States v. Mittelstadt, 969 F.2d 335, 336-37 (7th Cir.1992) (consideration of defendant’s chronic alcoholism on a § 5K1.1 motion not abuse of discretion); United States v. Carnes," }, { "docid": "17655039", "title": "", "text": "government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense, the court may depart from the guidelines.” The sine qua non for a section 5K1.1 departure is the filing of a motion to that effect by the government. See Alegría, 192 F.3d at 189; United States v. Mariano, 983 F.2d 1150, 1155 (1st Cir.1993). For the most part, the government has unbridled discretion in deciding whether to file such a motion. See Wade v. United States, 504 U.S. 181, 185, 112 S.Ct. 1840, 118 L.Ed.2d 524 (1992); United States v. Romolo, 937 F.2d 20, 25 (1st Cir.1991); United States v. La Guardia, 902 F.2d 1010, 1015 (1st Cir.1990). Thus far, we have identified only two situations in which the law constrains this discretion. The first involves cases in which the government’s failure to move for a substantial assistance departure is based on some constitutionally impermissible factor (say, race or religion), or is “not rationally related to [some] legitimate Government end.” Wade, 504 U.S. at 185-86, 112 S.Ct. 1840. The second involves cases in which the government explicitly undertakes to make, or to consider making, such a motion. See Alegría, 192 F.3d at 187. The appellant entreats us to carve out a further exception and to hold that the government’s discretionary decision not to move for a downward departure under section 5K1.1 is judicially reviewable in a case in which no constitutional infirmity is alleged and in which the plea agreement does not mention substantial assistance (or any form of downward departure, for that matter). To grant this entreaty would fashion an exception that would swallow the general rule. The downside of such an approach is too easily envisioned to warrant much discussion. In earlier opinions, we recounted several potential hazards associated with overly zealous judicial review, see Alegría, 192 F.2d at 187-88 & n. 6; United States v. Doe, 170 F.3d 223, 225 (1st Cir.1999), and those same hazards certainly are present in the circumstances of this case. The problem is exacerbated where, as here, a defendant has" } ]

[ { "docid": "13121691", "title": "", "text": "proof of injury. Id. at 120, 115 S.Ct. 552. These Supreme Court decisions do not help the plaintiffs in the present case because the OPM regulation’s written order requirement does not contradict the language of FEPA. FEPA merely limits compensation to those employees whose overtime work has been “officially ordered or approved.” 5 U.S.C. § 5542(a). This statement in and of itself is not at odds with the regulation’s writing requirement, nor does it suggest that inducement is sufficient to constitute official order or approval. And the Act clearly contemplated that overtime would be “ordered or approved” through a somewhat formal procedure by providing an exception where such procedure is impossible. Where formal control is impractical, such as if “an employee [is] in a position in which the hours of duty cannot be controlled administratively” and “requires substantial amounts of irregular, unscheduled overtime duty,” FEPA allows the employee to “receive premium pay for this duty on an annual basis ... [at] an appropriate percentage, not less than 10 percent nor more than 25 percent, of the rate of basic pay for the position.” 5 U.S.C. § 5545(c)(2). Significantly too, the Fair Labor Standards Act of 1938, ch. 676, 52 Stat. 1060 (codified as amended at 29 U.S.C. §§ 201-219) (“FLSA”), enacted before FEPA, incorporated a different standard for overtime compensation that allowed recovery for inducement. Under FLSA, an employee is entitled to overtime pay if the employer “suffer[s] or permit[s]” the employee to work overtime. 29 U.S.C. § 203(g); see also 29 C.F.R. § 785.11 (2003). The Supreme Court has repeatedly emphasized the expansive nature of this particular language, stating that “[a] broader or more comprehensive coverage of employees ... would be difficult to frame.” United States v. Rosenwasser, 323 U.S. 360, 362, 65 S.Ct. 295, 89 L.Ed. 301 (1945); see also, e.g., Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 326, 112 S.Ct. 1344, 117 L.Ed.2d 581 (1992); Tony and Susan Alamo Found, v. Sec’y of Labor, 471 U.S. 290, 300 n. 21, 105 S.Ct. 1953, 85 L.Ed.2d 278 (1985). Our sister circuits have interpreted this standard as" } ]

[ { "docid": "20033219", "title": "", "text": "analyze adjuster discretion in partial loss claims. . Our sister circuits variously state that employers must meet this burden by a \"preponderance of the evidence,\" Yi v. Sterling Collision Ctrs., Inc., 480 F.3d 505, 507-08 (7th Cir.2007), by \"clear and affirmative evidence,” Archuleta v. Wal-Mart Stores, Inc., 543 F.3d 1226, 1233 (10th Cir.2008) (internal quotations omitted), or by \"clear and convincing evidence,” Desmond v. PNGI Charles Town Gaming, L.L.C., 564 F.3d 688, 692 n. 3 (4th Cir.2009). We have had no occasion to determine the proper standard but conclude that, on the largely undisputed record before us, GEICO has satisfied its burden no matter which standard applies. . Shortly after the district court granted summary judgment to the adjusters, the DOL substantially revised the FLSA overtime exemption regulations effective August 2004. The revisions were meant to “consolidate and streamline” the old regulations and to be \"consistent with” the old short test. 69 Fed. Reg. 22, 122, 22, 126 & 22, 139 (Apr. 23, 2004). For this reason, we cite the new regulations where appropriate. See Roe-Midgett, 512 F.3d at 870 (although not directly applicable, “the new regulations are nonetheless informative”). . In a footnote the appellees contend that the latter conclusion is incorrect, see Appellees’ Br. 28 n.19, but they otherwise fail to support that contention and thus give the court no basis on which to disturb the district court’s holding. We note, however, that the district court's conclusion is consistent with Labor’s regulations. See 29 C.F.R. § 541.205(c)(5) (listing “claim agents and adjusters” as examples of employees whose work is “directly related to management policies or general business operations”). . The Lindsay plaintiffs brought claims based on a New York statute that the parties agree is at least as protective as the FLSA because it incorporates the FLSA administrative employee exemption. See 12 N.Y.C.R.R. § 142-2.2 (requiring that overtime be paid \"in the manner and methods provided in and subject to the exemptions of” FLSA); Lindsay v. GEICO, C.A. No. 04-1213, slip op. at 1 (D.D.C. Mar. 27, 2007) (\"The parties agree that New York state law expressly adopts" }, { "docid": "1350385", "title": "", "text": "1291.’ We exercise plenary review over the District Court’s interpretation of the FLSA and its grant of summary judgment. Rosano v. Twp. of Teaneck, 754 F.3d 177, 184 (3d Cir. 2014). Additionally, we note that “the FLSA must be construed liberally in favor of employees” and “exemptions should be construed narrowly, that is, against the employer.” Lawrence v. City of Philadelphia, 527 F.3d 299, 310 (3d Cir. 2008). III. To provide context for the ultimate issue before us, we begin by reviewing the contours of the FLSA and the circumstances in which an employer may offset compensation already given to an employee against required overtime. A. Overtime and Calculating Regular Rate Under the FLSA We have noted that the FLSA has a “broad remedial purpose.” De Asencio v. Tyson Foods, Inc., 500 F.3d 361, 373 (3d Cir. 2007), “The central aim of the Act was to achieve ... certain minimum labor standards.” Mitchell v. Robert DeMario Jewelry, Inc., 361 U.S. 288, 292, 80 S.Ct. 332, 4 L.Ed.2d 323 (1960). The Act established baseline standards through “federal minimum-wage, maximum-hour, and overtime guarantees that cannot be modified by contract.” Genesis Healthcare Corp. v. Symczyk, — U.S. -, 138 S.Ct. 1523, 1527, 185 L.Ed.2d 636 (2013). Among the bedrock principles of the FLSA is the requirement that employers pay employees for all hours worked. 29 C.F.R. § 778.223 (“Under the Act an employee must be compensated for all hours worked.”); see also Ballaris v. Wacker Siltronic Corp., 370 F.3d 901, 913 (9th Cir. 2004) (“One of the principal purposes of the FLSA is to ensure that employees are provided appropriate compensation for all hours worked.”) (emphasis in original). Pursuant to the FLSA, employers cannot employ any employee “for a workweek longer than forty hours unless such employee receives compensation for his employment ... at a rate not less than one and one-half times the regular rate at which he is employed.” 29 U.S.C. § 207(a)(1). In other words, employers are required to compensate employees for time in excess of forty hours with overtime compensation, which is paid at a rate of one and" }, { "docid": "7467038", "title": "", "text": "to dismiss plaintiffs FLSA claims that accrued prior to October 20,2001 is GRANTED. Defendant moves for summary judgment with respect to plaintiff’s remaining FLSA claims. Del’s Mot. at 13-17; Def.’s Reply at 7-8. Defendant argues that plaintiff was not entitled to FLSA overtime pay as a matter of law during the period of time he worked in the FLSA-exempt position of CU-11 credit union examiner. Def.’s Mot. at 13-17. Defendant contends that plaintiff is exempt from the provisions of FLSA under the professional exemption. Def.’s Reply at 7. Although Mr. Corrigan has not challenged the classification of his position as FLSAexempt, see generally Compl.; Pl.’s Resp., he nonetheless argues that his remaining FLSA claims do not fail as a matter of law because he is “only exempt from certain provisions of the FLSA — not all of them.” Pl.’s Resp. at 2. Plaintiff acknowledges the Federal Circuit’s decision in Doe, 372 F.3d 1347, but asserts that Doe is distinguishable because it addressed claims by attorneys who “are exempt from all provisions of the FLSA.” See Pl.’s Resp. at 2. However, Mr. Corrigan has identified no authorities which support his view that he is “only exempt from certain provisions of the FLSA” and the court is not aware of any legal support for Mr. Corrigan’s view. Under the FLSA, an employee who works more than forty hours per week shall receive overtime pay “at a rate not less than one and one-half times the regular rate at which he is employed.” 29 U.S.C. § 207(a)(1). If “an[] employee [is] employed in a bona fide executive, administrative, or professional capacity,” however, the overtime provisions of the FLSA do not apply. 29 U.S.C. § 213(a)(1). Under the implementing regulations of the Office of Personnel Management (OPM), an employee is presumed to be non-exempt and thus, eligible for overtime pay under the FLSA. 5 C.F.R. § 551.202(a). An employee is ineligible for overtime pay under the FLSA if the employing agency correctly determines that the employee “clearly meets the criteria for exemption.” 5 C.F.R. § 551.202(d). The exemption criteria are to be “narrowly construed" }, { "docid": "7307595", "title": "", "text": "of the exemption had changed. Id. For the sake of clarity, the legislative sequence, as it bears on the issues in this case, may be summarized as follows: 1. Up to August 10, 2005 (the effective date of SAFETEA-LU): the MCA exemption applied regardless of vehicle weight; Defendants bore no liability for FLSA overtime. Plaintiffs claim no damages for this period. 2. August 10, 2005 to August 9, 2006: the MCA exemption did not apply to employers with vehicles of 10,000 pounds or less. Defendants are therefore liable for FLSA overtime, unless they qualify for the TCA’s “safe harbor” provisions. To be eligible for this protection, an employer must show that it did not have actual knowledge of the change in the MCA exemption. Plaintiffs concede the existence, in principle, of the “safe harbor” provision, but contend that a disputed issue of fact exists as to Defendants’ actual knowledge. The court will permit Plaintiffs to complete discovery before resolving this dispute. 3. August 10, 2006 to June 6, 2008: The scope of the exemption is disputed. Plaintiffs contend that Defendants are liable as a matter for law for overtime under the FLSA for any employee operating a vehicle of 10,000 pounds or less during this period. Defendants appear to concede implicitly that they are liable for overtime for the period from August 10, 2006 through March 12, 2007. However, they contend that this liability ceased on March 13, 2007 when they became a registered “motor carrier” under the revised requirements of SAFETEA-LU. This is the legal issue that has bedeviled a number of district courts and is the primary subject of this memorandum. 4. June 7, 2008 (the effective date of the TCA) to Present: Regardless of the MCA, all employees operating vehicles under 10,000 pounds are entitled to overtime compensation as mandated by the FLSA, pursuant to the TCA. Defendants contend that they have no liability for any FLSA overtime during this period, because they began paying their employees full FLSA wages, including time-and-a-half for overtime, starting on March 3, 2008 and up to the present. Plaintiffs contest this" }, { "docid": "7467045", "title": "", "text": "at 27-31 (Corrigan’s resume and transcripts). Prior to his employment with NCUA, Mr. Corrigan had worked as a financial consultant, an accountant, and a senior auditor with a public accounting firm. App. at 27-29 (Corrigan’s resume). As described in NCUA’s position description, a CU-11 credit union examiner must have: (1) “[k]nowledge of the theory, concepts and practices of accounting and auditing sufficient to analyze credit union financial statements and to apply Generally Accepted Accounting Principles;” (2) “[k]nowledge of business theory to understand credit unions and how they function;” and (3) “[k]nowledge of finance to understand the financial operations of credit unions.” App. at 85 (NCUA’s position description for CU-11 credit union examiner). Mr. Corrigan possesses and his position as a CU-11 examiner requires the type of specialized education and practical experience contemplated by the primary duty test set forth in 5 C.F.R. § 551.207(a)(1). The evaluative and analytical processes required to perform Mr. Corrigan’s work as a CU-11 examiner, particularly, his review and assessment of the records maintenance, handling of funds and assets, and compliance with regulations by the credit union that he is examining, satisfy the intellectual and varied work test set forth in 5 C.F.R. § 551.207(b). Moreover, the judgment and discretion that is required for Mr. Corrigan to plan, conduct and report on each examination of a credit union and to determine which identified risk areas require further attention satisfy the discretion and independent judgment test set forth in 5 C.F.R. § 551.207(c). The court is satisfied that Mr. Corrigan clearly meets the professional exemption criteria and therefore, is FLSA-exempt. Mr. Corrigan has not challenged the classification of his position as FLSA-exempt based on the professional exemption. See generally Compl.; Pl.’s Resp. Because Mr. Corrigan is not eligible for FLSA overtime as a matter of law, defendant is entitled to judgment. See RCFC 56(c). The court GRANTS defendant’s motion for summary judgment with respect to plaintiffs FLSA claims that are not time-barred. C. Plaintiffs Overtime Claims under FEPA Defendant argues that, from plaintiffs amended complaint, “it appears that Mr. Corrigan seeks overtime pay pursuant to FEPA, 5" }, { "docid": "7551360", "title": "", "text": "196-97, 94 S.Ct. 2223, 41 L.Ed.2d 1 (1974). As a remedial statute, the exemptions are narrowly drawn against the employers, Johnson v. Hix Wrecker Serv., Inc., 651 F.3d 658, 660 (7th Cir.2011), and “limited to those establishments plainly and unmistakably within their terms and spirit,” Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392, 80 S.Ct. 453, 4 L.Ed.2d 393 (1960). This approach ensures that we remain faithful to the plain wording of the statutory language as a whole and, consequently, to the intent of Congress. Yi v. Sterling Colli sion Ctrs., Inc., 480 F.3d 505, 508 (7th Cir.2007). B. The FLSA and Accompanying Department of Labor Regulations Under the FLSA, employees are entitled to overtime pay (i.e., one and one-half times the regular rate) for any hours worked in excess of forty hours per week, unless they come within one of the various exemptions set forth in the Act. 29 U.S.C. §§ 207, 213. Under the statute’s express delegation of rule-making authority, the Secretary has issued, after notice-and-comment procedures, detailed regulations that define each of the exemptions in § 213(a)(1). See 29 U.S.C. § 213(a)(1) (providing authority); Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees, 69 Fed.Reg. 22,122, 22,124 (Apr. 23, 2004) (acknowledging that the regulations were issued pursuant to statutory authority); see also Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 165-68, 127 S.Ct. 2339, 168 L.Ed.2d 54 (2007) (explaining the statutory and regulatory scheme); Haywood v. N. Am. Van Lines, Inc., 121 F.3d 1066, 1069 (7th Cir.1997) (discussing the regulations as having “the force and effect of law” (quotation marks omitted)). Among those exemptions is one that exempts from the overtime requirement of § 207 “any employee employed in a bona fide executive, administrative, or professional capacity.” 29 U.S.C. § 213(a)(1). With regard to the administrative exemption, the Secretary has promulgated the following regulations: (a) The term “employee employed in a bona fide administrative capacity” in section 13(a)(1) of the Act shall mean any employee: (1) Compensated on a salary or fee basis at a rate of not" }, { "docid": "13688183", "title": "", "text": "(2d Cir.1983). B. Fair Labor Standards Act For employees covered under its provisions, the FLSA generally requires overtime compensation of one and one-half times the regular rate of pay for time worked in excess of forty hours per workweek. See 29 U.S.C. § 207(a)(1). Under, the FLSA’s enforcement provisions, employers violating the Act may be required to pay uncompensated overtime, together with civil penalties and liquidated damages. See 29 U.S.C. § 216. However, the FLSA exempts from its overtime requirements any salaried employee who works in a “bona fide executive, administrative or professional” capacity. 29 U.S.C. § 213(a)(1); 29 C.F.R. § 541.1-.3; Davis v. City of Hollywood, 120 F.3d 1178, 1179 (11th Cir.1997), reh. and pet. for reh. en banc denied sub nom, Davis v. Rowe, 131 F.3d 157 (1997), cert. filed, No. 97-1320 (Feb 11, 1998). In this case, defendant asserts that plaintiff, as an engineer, falls under the professional exemption. Because the FLSA is a remedial act, the Court must construe its exemptions narrowly. Martin v. Malcolm Pirnie, Inc., 949 F.2d 611, 614 (2d Cir.1991), cert. denied, Malcolm Pirnie, Inc. v. Martin, 506 U.S. 905, 113 S.Ct. 298, 121 L.Ed.2d 222 (1992). Defendant, as the employer, bears the burden of proving that an employee falls within an exempted category. Id. The FLSA does not define what type of employee constitutes a “bona fide” professional for whom the FLSA does not require overtime pay. However, the Department of Labor has enacted regulations that establish a two-pronged analysis for determining whether an employee is an exempt professional, consisting of what is referred to as a “duties” test and a “salary” test. See 29 C.F.R. §§ 541.3, 541.103, 541.118, 541.312. In order to qualify under an exempt category, an employee’s position must meet both the duties test and the salary test. Cooke v. General Dynamics Corp., 993 F.Supp. 56, 57 (D.Conn.1997). 1. Duties Test The duties test for the professional exemption concerns whether the nature of the employee’s duties are appropriately considered professional. See Meringolo v. City of New York, 908 F.Supp. 160, 164 (S.D.N.Y.1995) (analyzing analogous test for “executive” exemption)." }, { "docid": "19997959", "title": "", "text": "se administrative work would negate § 207(k). Yet to find that § 207(k) law enforcement work can never be administrative work would be equally wrong. Were this court to find— and it does not — that performing criminal investigative work requires an employee to be sheltered from § 213(a)(1) under § 207(k), then the administrative, executive, and professional exemptions of § 213 would be meaningless for all positions la-belled “criminal investigator,” regardless of the work actually performed by the em ployee. In fact, OPM indicated that § 213(a)(1) is to be applied first, to screen out administrative employees from FLSA’s overtime provisions. Attachment to FPM Letter No. 551-5, at 6 (Jan. 15,1975). Only then is an agency to apply § 207(k) to nonexempt employees engaged in law enforcement activities in order to determine the amount of their overtime compensation. Id. In giving full meaning to both § 207(k) and § 213(a)(1), it is necessary to examine the actual work performed by plaintiffs, not simply the general category of their positions. OPM indicated that an employee’s classification title is not determinative of his or her exemption status. Attachment to FPM Letter No. 551-7 at 2 (July 1, 1975) (“Determinations as to the exempt or nonexempt status of a position ultimately rest on the actual duties of the position.”); see also 29 C.F.R. § 541.201(b) (1992). In practical terms, the court must examine the attributes of the position descriptions before it to determine whether or not § 213(a)(1) screens plaintiffs out of FLSA overtime coverage. B. Code of Federal Regulations The OPM has promulgated regulations for the implementation of FLSA at 5 C.F.R. § 551.101, et seq. (1992). These regulations are entitled to great deference. Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965). Under § 551.202, defendant bears the burden of proving that plaintiffs are exempt from FLSA overtime provisions, and thus that plaintiffs meet all of the criteria of § 551.205, 5 C.F.R. § 551.202(b); Attachment to FPM Letter No. 551-7 at 11. Any exemption to FLSA’s overtime provisions must be narrowly construed. 5" }, { "docid": "23420888", "title": "", "text": "the Port Authority classified helicopter pilots as “professional” employees under the FLSA, both Pignataro and Chase were deemed exempt from the overtime provisions of the FLSA. In April 2004, Pignataro and Chase filed a complaint in the District Court alleging that they were denied proper overtime pay under the FLSA for the previous three years. On February 9, 2006, the District Court held that helicopter pilots are not professional employees under the FLSA and granted summary judgment in favor of Pignataro and Chase on the issue of liability only. On March 3, 2006, the Port Authority appealed this ruling, but we dismissed the appeal on February 23, 2007 because the District Court’s order was not final. On August 11, 2008, the District Court entered a monetary judgment in favor of Pignataro and Chase, awarding Pignataro $67,907.23 in unpaid overtime wages plus $19,177.10 in prejudgment interest (totaling $87,084.33) and awarding Chase $50,626.80 in unpaid overtime wages plus $14,297.14 in prejudgment interest (totaling $64,923.94). Concluding that the Port Authority’s violation of the FLSA was not willful, the District Court’s award was based on two years of damages, instead of three. Summary judgment is appropriate if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c). After making all reasonable inferences in the nonmoving party’s favor, there is a genuine issue of material fact if a reasonable jury could find for the nonmoving party. Reliance Ins. Co. v. Moessner, 121 F.3d 895, 900 (3d Cir.1997). Our review of the District Court’s grant of summary judgment is plenary. Id. We have jurisdiction to hear this appeal under 28 U.S.C. § 1291. II. Helicopter Pilots’ Classification under the FLSA The FLSA mandates that if an employee works more than forty hours per week, he must be compensated for overtime hours at a rate at least one-and-one-half times the employee’s regular rate. 29 U.S.C. § 207(a)(1). Employees who work in a “professional capacity,” however, are exempt from this rule. 29 U.S.C. § 213(a)(1). Exemptions from the FLSA are to be narrowly construed" }, { "docid": "21442580", "title": "", "text": "and to Darveau on Detecon’s counterclaims for constructive fraud and breach of contract claims. Only Darveau appeals. II. Darveau initially argues that the district court erred in granting summary judgment to Detecon on his FLSA overtime compensation claim. We disagree. The FLSA establishes the general rule that employers must compensate each employee “at a rate not less than one and one-half times the regular rate” for all overtime hours that an employee works. 29 U.S.C. § 207(a)(1). The Act defines overtime as employment in excess of forty hours in a single workweek, id., but exempts from the general rule “any employee employed in a bona fide executive, administrative, or professional capacity,” id. § 213(a)(1) (2000). An employer bears the burden of proving that a particular employee’s job falls within such an exemption. Reich v. John Alden Life Ins. Co., 126 F.3d 1, 7 (1st Cir.1997). Additionally, “the remedial nature of the statute requires that FLSA exemptions be ‘narrowly construed against the employers seeking to assert them and their application limited to those establishments plainly and unmistakably within [the exemptions’] terms and spirit.’ ” Id. (quoting Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392, 80 S.Ct. 453, 4 L.Ed.2d 393 (I960)). We review de novo the district court’s grant of summary judgment in favor of Detecon, applying the same standard as did the district court and construing the facts in the light most favorable to Darveau, the nonmoving party. See Holland v. Washington Homes, Inc., 487 F.3d 208, 213 (2007). The Secretary of Labor, as directed by statute, has adopted regulations defining a bona fide administrative employee, as that term is used in 29 U.S.C. § 213(a)(1). 29 C.F.R. § 541.200 (2006). Although the Secretary amended these regulations effective August 23, 2004 — in the middle of Darveau’s tenure at Detecon — the amendments do not significantly change the criteria for the administrative exemption in Darveau’s case. Compare 29 C.F.R. §§ 541.2, 541.214(a) (2003) with 29 C.F.R. § 541.200(a) (2006); see also Dep’t of Labor, Op. Ltr., FLSA2006-11 at 3 (Sept. 8, 2006), available at http://www.dol.gov/esa/ whd/opinion/FLSA/2007/2007_02_08_06_ FLSA.pdf. An employee" }, { "docid": "7162077", "title": "", "text": "people.” A.H. Phillips, Inc., v. Walling, 324 U.S. 490, 493, 65 S.Ct. 807, 89 L.Ed. 1095 (1945). Accordingly, “an employer bears the burden of proving that its employees fall within an exempted category of the Act.” Martin, 949 F.2d at 614; see also Coming Glass Works v. Brennan, 417 U.S. 188, 196-97, 94 S.Ct. 2223, 41 L.Ed.2d 1 (1974). II. The FLSA Executive Exemption Section 7(a)(1) of the FLSA provides that, subject to certain exceptions, an employee who works more than forty hours per week must receive compensation for “employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.” 29 U.S.C. § 207(a)(1). One exception is that the overtime-pay rule “shall not apply with respect to ... any employee employed in a bona fide executive, administrative, or professional capacity.” 29 U.S.C. § 213(a)(1). The FLSA does not define “bona fide executive, administrative, or professional” employment, and instead directs the Secretary of Labor to “define[] and delimit[]” those terms “from time to time by regulations.” Id. Issued pursuant to statutory authority, the Department of Labor’s 2004 regulations defining the terms of the FLSA executive exemption “have the force of law, and are to be given controlling weight unless they are found to be arbitrary, capricious, or manifestly contrary to the statute.” Freeman v. Nat’l Broadcasting Co., 80 F.3d 78, 82 (2d Cir.1996) (citations omitted); see also Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 165, 127 S.Ct. 2339, 168 L.Ed.2d 54 (2007) (noting that the FLSA “explicitly leaves gaps” that the Department of Labor has “the power to fill ... through rules and regulations”); Fanelli v. U.S. Gypsum Co., 141 F.2d 216, 218 (2d Cir.1944); Dep’t of Labor, Wage & Hour Div., Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees, 69 Fed. Reg. 22,122, 22,124 (Apr. 23, 2004) (“Because the FLSA delegates to the Secretary of Labor the power to define and delimit the specific terms of these exemptions through notice-and-comment rule-making, the regulations so issued" }, { "docid": "7467046", "title": "", "text": "with regulations by the credit union that he is examining, satisfy the intellectual and varied work test set forth in 5 C.F.R. § 551.207(b). Moreover, the judgment and discretion that is required for Mr. Corrigan to plan, conduct and report on each examination of a credit union and to determine which identified risk areas require further attention satisfy the discretion and independent judgment test set forth in 5 C.F.R. § 551.207(c). The court is satisfied that Mr. Corrigan clearly meets the professional exemption criteria and therefore, is FLSA-exempt. Mr. Corrigan has not challenged the classification of his position as FLSA-exempt based on the professional exemption. See generally Compl.; Pl.’s Resp. Because Mr. Corrigan is not eligible for FLSA overtime as a matter of law, defendant is entitled to judgment. See RCFC 56(c). The court GRANTS defendant’s motion for summary judgment with respect to plaintiffs FLSA claims that are not time-barred. C. Plaintiffs Overtime Claims under FEPA Defendant argues that, from plaintiffs amended complaint, “it appears that Mr. Corrigan seeks overtime pay pursuant to FEPA, 5 U.S.C. § 5542, if he cannot recover pursuant to FLSA.” Def.’s Mot. at 11 (citing Am. Compl. ¶2). As defendant points out, plaintiff cannot recover overtime pay under both FLSA and FEPA. Id. (citing 5 U.S.C. § 5542(c)). FEPA authorizes the Office of Personnel Management (OPM) to “prescribe regulations ... necessary for the administration” of the statute. 5 U.S.C. § 5548(a). OPM regulation 5 C.F.R. § 550.111(c) requires that “overtime work ... be ordered or approved only in writing by an officer or employee to whom this authority has been specifically delegated.” 5 C.F.R. § 550.111(e) (emphasis added). In Doe, 372 F.3d at 1364, the Federal Circuit made clear that a federal employee cannot recover overtime pay under FEPA without prior written authorization or approval of the overtime work. That the employing agency may have induced the employee to work overtime is not enough. Id. In this ease, plaintiff conceded in his answers to Defendant’s First Set of Interrogatories that “[a]ll authorization to work overtime was oral.” App. at 466. The parties do not dispute" }, { "docid": "7467040", "title": "", "text": "to apply only to those employees who are clearly within the terms and spirit of the exemption.” 5 C.F.R. § 551.202(b). Whether an employee is exempt or non-exempt under the FLSA is determined by “the duties actually performed by the employee.” 5 C.F.R. § 551.202(i). The employing agency asserting the exemption bears the burden of proof. 5 C.F.R. § 551.202(c). To meet the criteria for the professional exemption, an employee must satisfy each of the three tests set forth in the OPM regulation, specifically, the primary duty test, the intellectual and varied work test, and the discretion and independent judgment test. 5 C.F.R. § 551.207. The primary duty test is met if the employee performs work that: requires knowledge in a field of ... learning customarily and characteristically acquired through education ... that meets the requirements for a bachelor’s or higher degree, with major study in or pertinent to the specialized field as distinguished from general education; or is performing work, comparable to that performed by professional employees, on the basis of specialized education or training and experience which has provided both theoretical and practical knowledge of the specialty, including knowledge of related disciplines and of new developments in the field. 5 C.F.R. § 551.207(a)(1). The intellectual and varied work test is met if the employee performs work that “is predominantly intellectual and varied in nature, requiring creative, analytical, evaluative, or interpretative thought processes for satisfactory performance.” 5 C.F.R. § 551.207(b). The discretion and independent judgment test is met if the employee “frequently exercises discretion and independent judgment, under only general supervision, in performing the normal day-to-day work.” 5 C.F.R. § 551.207(c). NCUA’s personnel form documenting Mr. Corrigan’s promotion to the position of CU-11 examiner on January 14, 2001 reflects the agency’s classification of the position as FLSA-exempt. See App. at 35 (Corrigan’s Promotion Notification of Personnel Action Form). Nonetheless, Mr. Corrigan filed an administrative claim with OPM on March 26, 2003 seeking FLSA overtime pay and reimbursement for certain work travel. App. at 43-44, 74 (Corrigan’s FLSA claim filed with OPM). On May 15, 2003, NCUA prepared a report" }, { "docid": "21174128", "title": "", "text": "PER CURIAM. On summary judgment, the Court of Federal Claims denied Mr. Corrigan’s overtime and travel expense claims. Because the Court of Federal Claims committed no reversible error, this court affirms. I Mr. Corrigan presented overtime pay claims for the period beginning in December, 1999. Mr. Corrigan’s claims include (1) “training travel on Sundays,” (2) “training travel on both non-working days and working days during regularly scheduled and non-scheduled working hours,” (3) “claimed ‘commuting’ time for overnight travel away from duty station,” and (4) “claimed ‘commuting’ time for travel to and from work site within the official duty station.” Corrigan v. United States, 68 Fed.Cl. 589, 591 (2005). After both the Office of Personnel Management (OPM) and the General Services Board of Contract Appeals (GSBCA) denied Mr. Corrigan’s claims in their entirety, he filed suit in the Court of Federal Claims seeking overtime pay under the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201-206 (2000), and under the Federal Employee Pay Act (FEPA), 5 U.S.C. §§ 5542, 5544, 5546. Mr. Corrigan’s suit also included claims for reimbursement of denied travel expenses under, inter alia, the Federal Travel Regulations (FTR), 41 C.F.R. §§ 300-304 (2004). Corrigan v. United States., 68 Fed.Cl. 589, 591 (2005). The Court of Federal Claims granted the Government’s motion to dismiss Mr. Corrigan’s FLSA overtime claims that accrued before October 20, 2001 as time-barred. Id. at 593. Next, the court granted the Government’s motion for summary judgment for the remaining FLSA claims because Mr. Corrigan was exempt from FLSA coverage. Id. at 593-595. The court also noted, with regard to his FEPA claims, that Mr. Corrigan conceded that he had not received written authorization to work overtime. As such, the Court of Federal Claims determined that Mr. Cor-rigan was not eligible for overtime pay because he did not receive the required written approval. Id. at 596. Lastly, the court granted the Government’s motion for summary judgment on Mr. Corrigan’s travel expense claims. Id. at 601. On reconsideration, Mr. Corrigan argued that his time-barred overtime claims deserve equitable tolling and treatment as continuing claims. Corrigan v. United" }, { "docid": "21216410", "title": "", "text": "the non-exempt employees the greater amount. See, e.g., Alexander v. United States, 32 F.3d 1571, 1575-76 (Fed.Cir.1994). In 1990, FEPA was amended by the Federal Employees Pay Comparability Act (“FEPCA”), Pub.L. No. 101-509, § 210, 104 Stat. 1389. Among other changes, FEPCA amended section 5542 by adding subsection (c). Following an amendment in 1992, that section now provides as follows: Subsection (a) [which requires that federal employees be paid overtime pay for work in excess of eight hours in a day or 40 hours in a week] shall not apply to an employee who is subject to the overtime pay provisions of section 7 of the Fair Labor Standards Act of 1938. In the case of an employee who would, were it not for the preceding sentence, be subject to this section, the Office of Personnel Management shall by regulation prescribe what hours shall be deemed to be hours of work and what hours of work shall be deemed to be overtime hours for the purpose of such section 7 so as to ensure that no employee receives less pay by reason of the preceding sentence. The effect of section 5542(c) was to “eliminate[ ] the need to calculate and compare an FLSA nonexempt employee’s overtime pay entitlement under two laws in order to pay the greater overtime benefit. Instead, employees who are nonexempt under the FLSA of 1938, as amended, always receive overtime pay under FLSA as provided in part 551 of title 5, Code of Federal Regulations.” Aaron, 56 Fed.Cl. at 102 (quoting Pay Administration Under the Fair Labor Standards Act; Overtime Pay Provisions, 57 Fed.Reg. 59,277 (Dec. 15, 1992)). Relying on Aaron for the proposition that the FLSA governs overtime compensation for non-exempt employees, the appellants argue that section 5542(c) prohibits the SSA from granting compensatory time to them because the FLSA does not authorize federal agencies to grant compensatory time in lieu of overtime pay. We reject that argument for two reasons. First, the appellants’ understanding of the line between the FLSA and FEPA conflicts with the plain language of section 5543 of FEPA, which permits" }, { "docid": "16298281", "title": "", "text": "summary judgment, the court declines to consider those claims. Plaintiff may not allege additional complaints on a motion for reconsideration; any claims not asserted at the time of initial briefing are waived. Lamle, 394 F.3d at 1359 n. 1 (holding that pro se party had waived issue where party had first raised issue on motion for reconsideration); Abbott, 334 F.3d at 1355 (holding that party had waived issue by failing to raise issue in opening brief); Seldovia, 36 Fed.Cl. at 594 (\"[A] motion for reconsideration ... should not be based on evidence that was readily available at the time the motion was heard.”). . Even if the court were to reconsider the merits of plaintiff’s claims for overtime travel that accrued on or after October 21, 2001, plaintiff's overtime claims would fail because plaintiff was exempt from the overtime provision of the FLSA under the professional exemption while he worked in the position of CU-11 credit union examiner. Corrigan, 68 Fed.Cl. at 595 (\"The court finds, as did NCUA and OPM, that Mr. Corrigan's work as a CU-11 credit union examiner met the criteria for the professional exemption from FLSA coverage.”). For covered employees, the FLSA prescribes maximum hours beyond which overtime pay is due. Section 207(a)(1) of 29 U.S.C. provides: Except as otherwise provided in this section, no employer shall employ any of his employees ... for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed. 29 U.S.C. § 207(a)(1) (2000). The FLSA exempts certain employees from the overtime provision. 29 U.S.C. § 213 provides: (a) The provisions of ... section 207 of this title shall not apply with respect to— (1) any employee employed in a bona fide executive, administrative, or professional capacity.... 29 U.S.C. § 213(a)(1) (2000). Plaintiff appears to argue that claims for overtime pay for travel beyond the forty-hour work week are not claims for overtime, and that plaintiff is therefore not exempt from those" }, { "docid": "20033200", "title": "", "text": "reasoning of other district court decisions persuasive, particularly In re Farmers Insurance Exchange Claims Representatives’ Overtime Pay Litigation, 300 F.Supp.2d 1020 (D.Or.2003). See Robinson-Smith, 323 F.Supp.2d at 25 n. 7 (“Although not controlling precedent in this Court, the facts surrounding the In re Farmers decision concerning the Farmers auto physical damage adjusters are nearly identical to those at issue here, and the Court finds the reasoning [in Farmers ] ... to be persuasive.”). Immediately after the district court order issued on July 1, 2004, GEICO converted its auto damage adjusters to non-exempt status pending the outcome of this appeal. The district court subsequently granted summary judgment to the Lindsay adjusters on their FLSA claims on September 8, 2006 and on their New York state claims on March 23, 2007. But the Farmers decision was reversed by the Ninth Circuit in October 2006, in an opinion that rejected the precise language the district court had relied on here. See In re Farmers Ins. Exch., Claims Representatives’ Overtime Pay Litig., 466 F.3d 853 (9th Cir.2006), as amended, 481 F.3d 1119, 1131 n. 9 (9th Cir.2007) (“For those reasons, we disagree with the district court’s legal conclusion, quoting the language of the regulations, that an automobile damage adjuster’s primary duties Tequire the use of skill in applying techniques, procedures and specific standards, not the use of discretion and independent judgment.’ ” (quoting 29 C.F.R. § 541.207(b))). One month later, in November 2006, GEICO moved for reconsideration of the summary judgment rulings in both Robinson-Smith and Lindsay, citing the Ninth Circuit’s reversal in Farmers as well as a recent Seventh Circuit decision, Roe-Midgett v. CC Servs., Inc., 512 F.3d 865, 874-75 (7th Cir.2008), holding automobile insurance adjusters exempt on similar facts. On January 24, 2008, the district court denied GEICO’s motion to reconsider and also explained that its earlier grant of summary judgment to the Lindsay plaintiffs was based on the reasoning in its 2004 RobinsomSmith opinion. The two appeals, which were consolidated on February 4, 2009, followed. III. Whether an employee comes within the FLSA administrative employee exemption from overtime benefits is a" }, { "docid": "12612324", "title": "", "text": "is consistent with the Secretary of Labor’s implementation of the FLSA. See House Report at 28. When the civil service and FLSA systems conflict, OPM must defer to the FLSA so that any employee entitled to overtime compensation under FLSA receives it under the civil service rules. FLSA, we reiterate, contains a presumptive rule that employees who work more than forty hours in a week must receive overtime compensation. See 29 U.S.C. § 207 (1982). Although employees who are determined to be executive, administrative, or professional are exempt from overtime, 29 U.S.C. § 213(a)(1) (1982); 29 C.F.R. § 541 (1986), the burden is on the employer to demonstrate the employee is in fact exempt. See Corning Glass Works v. Brennan, 417 U.S. 188, 196-97, 94 S.Ct. 2223, 2229, 41 L.Ed.2d 1 (1974); Clark v. J.M. Benson Co., Inc., 789 F.2d 282, 286 (4th Cir.1986). The regulations challenged here conflict in important ways with the FLSA. To be sure, OPM’s new regulations purport to exempt, as does the FLSA, only tightly defined executive, administrative, and professional employees from overtime eligibility. See 5 C.F.R. §§ 551.204, 551.205, 551.-206 (1986). But these provisions are completely undermined by another regulatory section which states that “[a]ny employee properly classified at GS-11 or above [without regard to the nature of his duties] ... shall be presumed to be exempt [from overtime eligibility].” 5 C.F.R. § 551.203(c). The regulations also purport to comply with the FLSA principle that employees are presumed eligible for overtime, affirming that “[t]he burden of proof [that an employee is exempt from overtime eligibility] rests with the agency that asserts the exemption.” See 5 C.F.R. § 551.202(b) (1986). But this provision too is modified by another section that provides: “[a]n agency that properly classifies an employee at GS-11 or above shall be deemed to have satisfied the burden of proof for asserting an exemption.” 5 C.F.R. § 551.203(c). Thus, while pledging fidelity to the FLSA in the “general principles” section of its overtime rules, OPM has, in the operative sections of those rules, undercut these very principles. The conflict between the regulations and" }, { "docid": "7467039", "title": "", "text": "Pl.’s Resp. at 2. However, Mr. Corrigan has identified no authorities which support his view that he is “only exempt from certain provisions of the FLSA” and the court is not aware of any legal support for Mr. Corrigan’s view. Under the FLSA, an employee who works more than forty hours per week shall receive overtime pay “at a rate not less than one and one-half times the regular rate at which he is employed.” 29 U.S.C. § 207(a)(1). If “an[] employee [is] employed in a bona fide executive, administrative, or professional capacity,” however, the overtime provisions of the FLSA do not apply. 29 U.S.C. § 213(a)(1). Under the implementing regulations of the Office of Personnel Management (OPM), an employee is presumed to be non-exempt and thus, eligible for overtime pay under the FLSA. 5 C.F.R. § 551.202(a). An employee is ineligible for overtime pay under the FLSA if the employing agency correctly determines that the employee “clearly meets the criteria for exemption.” 5 C.F.R. § 551.202(d). The exemption criteria are to be “narrowly construed to apply only to those employees who are clearly within the terms and spirit of the exemption.” 5 C.F.R. § 551.202(b). Whether an employee is exempt or non-exempt under the FLSA is determined by “the duties actually performed by the employee.” 5 C.F.R. § 551.202(i). The employing agency asserting the exemption bears the burden of proof. 5 C.F.R. § 551.202(c). To meet the criteria for the professional exemption, an employee must satisfy each of the three tests set forth in the OPM regulation, specifically, the primary duty test, the intellectual and varied work test, and the discretion and independent judgment test. 5 C.F.R. § 551.207. The primary duty test is met if the employee performs work that: requires knowledge in a field of ... learning customarily and characteristically acquired through education ... that meets the requirements for a bachelor’s or higher degree, with major study in or pertinent to the specialized field as distinguished from general education; or is performing work, comparable to that performed by professional employees, on the basis of specialized education or" }, { "docid": "4232161", "title": "", "text": "79 S.Ct. 260, 3 L.Ed.2d 243 (1959). \"Enterprise coverage” extends FLSA coverage to all employees of an “enterprise” as defined by 29 U.S.C. § 203(r). “Enterprise coverage” exists if an enterprise \"has employees engaged in commerce or the production of goods for commerce” and has \"annual gross volume of sales made or business done” in excess of $500,000.00. 29 U.S.C. § 203(s)(l). The term \"exempt” means the inapplicability of the FLSA's minimum wage or overtime provision to an employee who, although \"covered” by the FLSA, is subject to a statutory or regulatory exemption, such as the \"white collar exemptions” for executive, professional, and administrative employees paid a salary of more than $455.00 per week. See 29 U.S.C. § 213; 29 C.F.R. § 541.600 (2010). The term \"computation,” applied to a wage, assumes coverage and non-exempt status and means calculating \"hours worked” multiplied by “hourly wage,” plus overtime, to determine pay. . See 29 U.S.C. § 216(c) (\"The Secretary [of Labor] is authorized to supervise the payment of the unpaid minimum wages or the unpaid overtime compensation owing to any employee or employees under section 206 or section 207 of this title, and the agreement of any employee to accept such payment shall upon payment in full constitute a waiver by such employee of any right he may have under subsection (b) of this section to such unpaid minimum wages or unpaid overtime compensation and an additional equal amount as liquidated damages.”). . By settling with the Department of Labor, the employer may avoid paying liquidated damages. \"The waiver provision found in section 216(c) was intended to create an incentive for employers to voluntarily accept settlements supervised by the Department of Labor.” Lynn’s Food Stores, Inc. v. United States, 679 F.2d 1350, 1353 n. 6 (11th Cir.1982). . See Taylor v. Progress Energy, Inc., 493 F.3d 454, 460 (4th Cir.2007) (stating, in dicta, that \"[u]nder the FLSA, ... there is a judicial prohibition against the unsupervised waiver or settlement of claims.”); O’Connor v. United States, 308 F.3d 1233 (Fed.Cir.2002) (holding that public employees' FLSA claims were barred on the ground of" } ]

[ { "docid": "12373954", "title": "", "text": "for delay, whether delay was justified by the administrative steps that were necessary to be taken, such as transportation, booking and filing charges, and the number of people to be processed.” See Sanders v. City of Houston, 543 F.Supp. 694, 700-02 (S.D.Tx.1982). In Dommer v. Hatcher, 427 F.Supp. 1040 (N.D.Ind.1975), rev’d on other grounds, 653 F.2d 289 (7th Cir.1981), we adopted the 24-hour guideline of Sanders, where the court found that “administrative steps” include not only transportation, booking and filing, but also completing paperwork, taking fingerprints, etc., and that the city should be able to complete these within 24 hours. This court has further held that a detention of more than four hours, while not necessarily unconstitutional, requires “an explanation.” Moore v. Marketplace, 754 F.2d 1336, 1351 (7th Cir.1985); Gramenos v. Jewel Companies, Inc., 797 F.2d 432, 437 (7th Cir.1986). Both Moore and Gramenos (and the majority of other cases) address the reasonableness of the delay between an arrest and either a release or an appearance before a magistrate. While this is somewhat different than the delay in administrative processing such as Lewis alleges, the cases are clearly analogous. The plaintiff in Gramenos was arrested and sought compensation for the four hours and twenty minutes he was held by the police. We remanded the case in order to allow the jury to consider whether the detention was excessive. Judge Easter-brook wrote: It is premature to say how long is too long under the fourth amendment. On remand the police should explain what must be done after an arrest for shoplifting and why reasonably diligent officers need more than four hours to do it. Gramenos, 797 F.2d at 437. Here, the defendant explained that Lewis was detained because the first CCDOC bus returning to the jail left before his identity was verified and he had to wait five hours for the next available bus. Additionally, the sheriff claims that it “takes some time to sort out” the approximate 600-800 prisoners who are returned from court each day because the CCDOC [jail] covers fifty-two acres and consists of several buildings. We recognize" } ]

[ { "docid": "6182750", "title": "", "text": "detention purposes, of Jasper County policymaking officials — namely, the Jasper County Prosecutor and Sheriff Gilliland. See Patton v. Przybylski, 822 F.2d 697, 700 (7th Cir.1987). Patrick has failed to cite any authority to convince us otherwise. Indeed, he has presented nothing more than bald allegations and speculation in support of his proposition that Jasper County is responsible for the time he was detained in the LaPorte County Jail. As noted above, it is not our duty to research Patrick’s arguments in order to discover relevant authority, if any, to support his contentions on appeal. Beard, 840 F.2d at 408-09. Moreover, we consider it to be somewhat disingenuous for Patrick to argue on appeal that his “unconstitutional detention occurred solely as the result of a policy established by the concerted efforts of the Jasper County Prosecutor and Sheriff Gilli-land” in light of his argument in the district court that his detention in LaPorte County resulted from the policy of that county as formulated by LaPorte County Sheriff Jan Rose. Either LaPorte County was responsible for Patrick’s detention there or it was not. Patrick is not free to revamp his arguments simply because he has settled his claim with LaPorte County and Sheriff Rose and they are not parties to this appeal. Thus, we conclude that Jasper County is responsible only for the four hours Patrick was detained in the Jasper County Jail and we will analyze Patrick’s unconstitutional detention claim accordingly. See Patton, 822 F.2d at 700. Our conclusion that Jasper County is responsible only for the four hours Patrick spent in its jail essentially ends our analysis of Patrick’s unconstitutional detention claim. Despite the Jasper County defendants’ arguments that they are responsible only for Patrick’s four-hour detention in the Jasper County Jail and that this period of time was not unreasonably long, Patrick has failed to argue, both in this court and in the district court, that this four-hour detention violated his constitutional rights. Rather, Patrick premises his argument on appeal entirely on his assertion that forty hours (the total amount of time he was detained in Jasper County" }, { "docid": "6182735", "title": "", "text": "unconstitutional detention had been caused by an official policy or custom of the Jasper County Prosecutor’s office and Sheriff’s Department. La-Porte County and Sheriff Rose (“LaPorte County defendants”) had filed a similar motion on November 30, 1987. On May 26, 1988, the district court granted the Jasper County defendants’ motion, finding that Patrick’s statement in his deposition reiterating the conversation between Sheriff Gilliland and the Jasper County Prosecutor was inadmissible hearsay and that, in any event, the conversation was insufficient to establish policy or custom on the part of Jasper County. The court further found: “Gilliland could establish policy for Jasper County for any unconstitutional detention of Patrick.... However, in Answers to Interrogatories, Jasper County stated that the County had a legal duty to accept prisoners produced by federal or state government law enforce ment officials. Jasper County also stated that Gilliland asked the State Police to find another jail for Patrick due to overcrowding and that Patrick was transferred to LaPorte County Jail. Patrick does not dispute that Gilliland’s actions were taken pursuant to Indiana Code §§ 10-1-1-22 and 35-33-11-3. Patrick was transferred within four to six hours of his arrival at the Jasper County Jail. The statement made by Gilliland that Patrick could be held for seventy-two hours is irrelevant. Patrick was held only four to six hours at the Jasper County Jail, and Patrick does not dispute this. Instead, Patrick attempts to establish a custom or policy via joint action between Jasper County and LaPorte County. This, in essence, is a conspiracy claim, and Patrick’s Motion to Amend has been denied on that basis. Patrick does not claim that his detention for four to six hours was excessive.! ! In addition, he does not dispute that Gilliland requested that he be transferred to another facility. Certainly Patrick cannot argue that the Jasper County Sheriff has authority to dictate the actions of the LaPorte County Sheriff. Because his conspiracy and/or custom or policy claims are insufficient, his claims against Jasper County and Gilliland also must fail. As such, Patrick’s allegations are insufficient to state an unconstitutional policy or" }, { "docid": "6182748", "title": "", "text": "“wanted” checks, as well as the number of individuals to be processed with the detainee in question. See Lems v. O’Grady, 853 F.2d 1366, 1369-70 (7th Cir.1989); Moore, 754 F.2d at 1351-52. How ever, in order to determine whether Jasper County detained Patrick for an unreasonable period of time and, thus, whether Jasper County is liable to Patrick under section 1983, initially we must determine if Jasper County is responsible for Patrick’s detention in both Jasper and LaPorte Counties, or merely for Patrick’s confinement in the Jasper County Jail. Patrick claims that Jasper County is responsible for the time he was detained in both Jasper County and LaPorte County (approximately 40 hours) because Jasper County officials made the initial decision to hold him without charges and subsequently transferred him without complying with Indiana’s prisoner transfer statute, Indiana Code § 35-33-11-3. In his brief, Patrick states: “the only reason that Patrick’s full period of detention did not occur at the Jasper County Jail was simply that the Jasper County Jail was overcrowded. In transferring Patrick to the LaPorte County Jail, Jasper County did no more than simply move Patrick to a different facility_ Had there been another facility available in Jasper County in which to incarcerate Patrick, then Jasper County would likely have moved Patrick to that facility. Patrick was transferred to LaPorte County as a means of maintaining control of him for Jasper County until he could be brought back.” We are not persuaded by Patrick’s unfounded speculation concerning what might have happened had the Jasper County Jail not been overcrowded. The events surrounding Patrick’s detention as they occurred in this case dictate our analysis of Patrick’s constitutional claim, not some hypothetical situation proposed to bolster Patrick’s arguments on appeal. Patrick was detained in Jasper County for only four hours before he was transferred to LaPorte County because of the overcrowding resulting from the sixty to eighty individuals brought to the Jasper County Jail in association with the DEA/ISP “drug bust.” Once Patrick was transferred to the LaPorte County Jail, he was no longer within the control, at least for" }, { "docid": "6182746", "title": "", "text": "subside, the suspect’s need for a neutral determination of probable cause increases significantly. The consequences of prolonged detention may be more serious than the interference occasioned by arrest. Pretrial confinement may imperil the suspect's job, interrupt his source of income, and impair his family relationships. Even pretrial release may be accompanied by burdensome conditions that affect a significant restraint of liberty. When the stakes are this high, the detached judgment of a neutral magistrate is essential if the Fourth Amendment is to furnish meaningful protection from unfounded interference with liberty.” In Moore v. Marketplace Restaurant, Inc., 754 F.2d 1336, 1351 (7th Cir.1985), we agreed with the Fourth Circuit’s interpretation of Gerstein in Fisher v. Washington Metropolitan Area Transit Authority, 690 F.2d 1133 (4th Cir.1982), concerning the constitutional limits on the length of time an individual arrested without a warrant may be detained. As the Fisher court stated: “From this we must conclude that the Court considers that the reasonableness requirement of the fourth amendment does carry over past arrest to place limits of permissible duration upon this particular period [ ] of detention. The standard of reasonableness can only be that implied in the Court’s observation that it is to be ‘brief’ and, more specifically, that it is to be only that required ‘to take the administrative steps incident to arrest.’ ” Id. at 1140 (footnote and citations omitted). Thus, “[wjhen the ‘administrative steps’ have been completed, the police must take the suspect before a neutral magistrate to establish probable cause, or they must let him go.” Gramenos v. Jewel Tea Co., 797 F.2d 432, 437 (7th Cir.1986), cert. denied, 481 U.S. 1028, 107 S.Ct. 1952, 95 L.Ed.2d 525 (1987); Llaguno v. Mingey, 763 F.2d 1560, 1567-68 (7th Cir.1985) (en banc). Neither the Supreme Court nor this court has adopted a “bright-line” test establishing at what point the warrantless detention ceases to be brief. Rather, we have analyzed on a case-by-case basis whether the period of detention is reasonable in light of all the circumstances accompanying the detainee’s arrest, including transportation, booking, filing, photographing, fingerprinting, identity verification and criminal record" }, { "docid": "4538754", "title": "", "text": "promptness requirement, McLaughlin established forty-eight hours as the line of demarcation for a claim of extended detention. If an arrestee is provided with a probable cause hearing within forty-eight hours of his arrest, the presumption is that it was sufficiently prompt to comply with the Fourth Amendment. Id. at 1670. After two days of detention, the burden shifts to the government “to demonstrate the existence of a bona fide emergency or other extraordinary circumstances” justifying the delay in presentment of the arrestee to a judicial officer. Id. The Court made it clear, however, that the forty-eight hours period was only an outer limit and that each delay had to be examined in light of the individual circumstances of the case. The Court noted that lesser delays might be unreasonable if induced by such improper purposes as “gathering additional evidence to justify the arrest, a delay motivated by ill will against the arrested individual, or delay for delay’s sake.” Id. McLaughlin thus recognized the vagueness of the Gerstein guidelines. If Gerstein was too vague to give sufficient guidance to the courts, a police officer acting in 1984 could hardly be expected to fathom its fine constitutional nuances. That is not to say that any officer who detained an arrestee for a prolonged .eriod without a reasonable justification could evade liability on grounds of qualified immunity. As the Seventh Circuit noted in Patrick v. Jasper County, 901 F.2d 561, 567 (7th Cir.1990), whether a period of detention is reasonable must be analyzed “in light of the all the circumstances accompanying the detainees’ arrest, including transportation, booking, filing, photographing, fingerprinting, identity verification and criminal record ‘wanted’ checks, as well as the number of individuals to be processed with the detainee in question.” Certain actions, such as a detention for one of the improper purposes cited in McLaughlin, clearly were unreasonable even under Ger-stein. Thus, an officer who detained a suspect for nearly two days merely for the purposes of investigating a crime still could be held answerable in damages in 1984. Cf. Llaguno v. Mingey, 763 F.2d 1560, 1570 (7th Cir.1985) (en banc)" }, { "docid": "6182754", "title": "", "text": "responsible for his detention in both Jasper County and LaPorte County is without merit and Patrick has failed to allege that the four hours he was detained in the Jasper County jail was unreasonable. Thus, to a large degree, Patrick has waived his claim against the Jasper County defendants by failing to argue adequately his case in this court. That is, he has failed to allege sufficient facts and cite relevant judicial authority to support his claim that he was unconstitutionally detained by the Jasper County defendants. Accordingly, the district court’s grant of summary judgment in favor of Sheriff Gilliland and Jasper County is Affirmed. . The \"drug bust” was the culmination of an extensive DEA/ISP investigation into a large-scale marijuana harvesting and smuggling operation in northern Indiana. In early December 1982, undercover law enforcement officers negotiated with several individuals, including Jack Lucas and Ollie Bailey, for the delivery of several thousand pounds of marijuana. Immediately prior to the arrival of Patrick, Ritchie and Bailey at the Lucas residence, the undercover officers seized one ton of marijuana from Lucas’s residence and arrested him, as well as three other individuals participating in the delivery. . Although other detainees, including Ritchie, were transported to the LaPorte facility with Patrick, the record does not reflect the number of individuals actually transferred. . Charges were again filed against Patrick in April 1983, but were again dismissed for lack of probable cause. . In his complaint, Patrick also named as defendants the United States, the State of Indiana and various federal and state law enforcement officers. The district court granted summary judgment for these defendants on May 26, 1988. Patrick has not appealed the disposition of his claims against these defendants and, thus, we will discuss them only to the extent that they are relevant to his claims against Sheriff Gilliland and Jasper County. . Patrick also alleged several state law claims against the defendants, none of which are relevant to this appeal. . See Harlow v. Fitzgerald, 457 U.S. 800, 815-17, 102 S.Ct. 2727, 2736-38, 73 L.Ed.2d 396 (1982). . In a footnote, the" }, { "docid": "6182749", "title": "", "text": "the LaPorte County Jail, Jasper County did no more than simply move Patrick to a different facility_ Had there been another facility available in Jasper County in which to incarcerate Patrick, then Jasper County would likely have moved Patrick to that facility. Patrick was transferred to LaPorte County as a means of maintaining control of him for Jasper County until he could be brought back.” We are not persuaded by Patrick’s unfounded speculation concerning what might have happened had the Jasper County Jail not been overcrowded. The events surrounding Patrick’s detention as they occurred in this case dictate our analysis of Patrick’s constitutional claim, not some hypothetical situation proposed to bolster Patrick’s arguments on appeal. Patrick was detained in Jasper County for only four hours before he was transferred to LaPorte County because of the overcrowding resulting from the sixty to eighty individuals brought to the Jasper County Jail in association with the DEA/ISP “drug bust.” Once Patrick was transferred to the LaPorte County Jail, he was no longer within the control, at least for detention purposes, of Jasper County policymaking officials — namely, the Jasper County Prosecutor and Sheriff Gilliland. See Patton v. Przybylski, 822 F.2d 697, 700 (7th Cir.1987). Patrick has failed to cite any authority to convince us otherwise. Indeed, he has presented nothing more than bald allegations and speculation in support of his proposition that Jasper County is responsible for the time he was detained in the LaPorte County Jail. As noted above, it is not our duty to research Patrick’s arguments in order to discover relevant authority, if any, to support his contentions on appeal. Beard, 840 F.2d at 408-09. Moreover, we consider it to be somewhat disingenuous for Patrick to argue on appeal that his “unconstitutional detention occurred solely as the result of a policy established by the concerted efforts of the Jasper County Prosecutor and Sheriff Gilli-land” in light of his argument in the district court that his detention in LaPorte County resulted from the policy of that county as formulated by LaPorte County Sheriff Jan Rose. Either LaPorte County was responsible for" }, { "docid": "6182744", "title": "", "text": "is that Sheriff Gilliland, in transferring him to the LaPorte County Jail because of overcrowding, violated Indiana Code § 35-33-11-3 because he failed to obtain court authorization to transfer Patrick and that this failure to comply with the transfer statute “amounts to an unlawful transfer of Patrick, thereby violating Patrick’s rights under the Fourth, Fifth and Fourteenth Amendments.” However, because it was not presented to the district court, this argument is not properly before us and we therefore refuse to consider it on appeal. See Boyers v. Texaco Refining and Marketing, Inc., 848 F.2d 809, 811 (7th Cir.1988). Thus, Patrick has failed to present us with any properly preserved argument that is relevant to the question of Sheriff Gilliland’s liability under section 1983. Consequently, we hold that Patrick has waived his section 1983 claim against Gilliland on appeal and we will address the alleged merits of his unconstitutional detention claim only as they relate to Jasper County. The main thrust of Patrick’s complaint against Jasper County is that he was detained an unreasonable length of time without being taken in front of a magistrate for a determination that his warrant-less arrest was supported by probable cause and that what he refers to as an extended detention violated his rights under the fourth and fourteenth amendments. It is well settled that the fourth amendment requires a judicial determination of probable cause before an individual arrest ed without a warrant may be subjected to an extended restraint of liberty. In Gerstein v. Pugh, 420 U.S. 103, 113-14, 95 S.Ct. 854, 862-63, 43 L.Ed.2d 54 (1975), the Supreme Court stated: “[A] policemen’s on-the-scene assessment of probable cause provides legal justification for arresting a person suspected of crime, and for a brief period of detention to take the administrative steps incident to arrest. Once the suspect is in custody, however, the reasons that justify dispensing with the magistrate’s neutral judgment evaporate. There no longer is any danger that the suspect will escape or commit further crimes while the police submit their evidence to a magistrate. And, while the State’s reasons for taking summary action" }, { "docid": "6182761", "title": "", "text": "will be filed against the arrested person, the judicial officer shall order that the arrested person be released immediately.” Ind.Code § 36-8-3-11, which provides: “Whenever an arrest has been made by a police officer, the officer making the arrest shall bring the person arrested before the court having jurisdiction of the offense, to be dealt with according to law. If the arrest is made during the hours when court is not in session, or if the judge is not holding court, the person shall be detained in jail until there is an opportunity for a hearing at the earliest practicable time or until he is released on bail. But a person may not be detained longer than twenty-four [24] hours except when Sunday intervenes, in which case a person may not be detained longer than forty-eight [48] hours.” . As noted above, Patrick has waived the issue of whether his transfer under section 35-33-11-3 was unlawful because he failed to present this issue to the district court. In any event, this allegation is insufficient to allege a violation of the Constitution. See supra note 12 and accompanying text. . We take issue with the dissent’s statement that the Jasper County defendants engaged in \"abusive conduct by warehousing the prisoner outside the confines of the county_” There is nothing in the record to support what the dissent implies — namely, that Jasper County transferred Patrick to LaPorte County in order to avoid taking him before a magistrate — by the use of the term \"warehousing.\" On the contrary, it is undisputed that Patrick was transferred to the LaPorte County Jail due to the overcrowded conditions in the Jasper County Jail resulting from the number of individuals arrested in the \"drug bust” and transferred there for processing. Moreover, as we hold, infra, the four-hour period Patrick was detained in the Jasper County Jail was reasonable in light of the number of arrestees (sixty to eighty) that had to be booked (interviewed, fingerprinted, photographed and, possibly, checked through the National Crime Institute computer system) and processed in association with the ISP/DEA \"drug bust.”" }, { "docid": "6182752", "title": "", "text": "and LaPorte County) is the relevant time period for determining Jasper County’s liability under section 1983. Patrick has done so at his peril. In any case, there is ample evidence in the record that Patrick’s four-hour detention is attributable to the processing (booking, fingerprinting and photographing) of the sixty to eighty individuals brought to the Jasper County Jail in connection with the “drug bust.” In light of the number of individuals to be processed, we are of the opinion that the four-hour detention was not unreasonably long. Compare Moore, 754 F.2d at 1351 (“One could surmise that it took several hours to book the [arrestees] or that the jail was extremely busy that night; however, we are not willing to make these assumptions since there is no, evidence in the record warranting any conclusion justifying the four or more hour time period spent by the plaintiffs in the jail”). Thus, we hold that entry of summary judgment in favor of Jasper County is appropriate because Patrick has failed to set forth sufficient facts and legal precedent establishing a genuine issue of material fact on the question of whether Jasper County detained Patrick in violation of his constitutional rights. Although the district court disposed of Patrick’s claim against Jasper County based on his failure to establish that he was detained according to official county policy, it is well settled that “[i]n appeals from summary judgment, a reviewing court may affirm on any ground that finds support in the record.” Donald v. Polk County, supra, 836 F.2d at 379. III. Patrick has failed to present this court with an adequate basis for reversing the district court’s grant of summary judgment for the Jasper County defendants. By focusing largely on arguments relevant only to the liability of the county, Patrick has waived his claim against Sheriff Gilliland despite the district court’s erroneous determination that Gilliland was entitled to summary judgment based on Patrick’s failure to establish that Gilliland acted pursuant to the official policy or custom of Jasper County in detaining him. With regard to Jasper County, Patrick’s argument that the county is" }, { "docid": "6182736", "title": "", "text": "Indiana Code §§ 10-1-1-22 and 35-33-11-3. Patrick was transferred within four to six hours of his arrival at the Jasper County Jail. The statement made by Gilliland that Patrick could be held for seventy-two hours is irrelevant. Patrick was held only four to six hours at the Jasper County Jail, and Patrick does not dispute this. Instead, Patrick attempts to establish a custom or policy via joint action between Jasper County and LaPorte County. This, in essence, is a conspiracy claim, and Patrick’s Motion to Amend has been denied on that basis. Patrick does not claim that his detention for four to six hours was excessive.! ! In addition, he does not dispute that Gilliland requested that he be transferred to another facility. Certainly Patrick cannot argue that the Jasper County Sheriff has authority to dictate the actions of the LaPorte County Sheriff. Because his conspiracy and/or custom or policy claims are insufficient, his claims against Jasper County and Gilliland also must fail. As such, Patrick’s allegations are insufficient to state an unconstitutional policy or custom as regards Jasper County rendering summary judgment appropriate.” Patrick v. United States, No. H 84-808, slip op. at 19-20 (N.D.Ind. May 26, 1988). The court, however, denied the LaPorte County defendants’ summary judgment motion, finding that the evidence in the record was insufficient to determine whether the thirty-six hours Patrick was detained in the LaPorte County Jail was “the minimum period of time necessary to process charges against Patrick and to conduct a probable cause hearing.” Shortly after the trial court’s denial of their summary judgment motion, the LaPorte County defendants offered and Patrick accepted an out-of-court settlement in lieu of trial on Patrick’s claims under section 1983. Patrick now appeals the district court’s grant of summary judgment in favor of Sheriff Gilliland and Jasper County, arguing that: (1) Patrick’s deposition testimony relating the conversation between the Jasper County Prosecutor and Sheriff Gilliland was not hearsay; (2) the conversation between the prosecutor and Sheriff Gilliland in which the prosecutor stated that Patrick could be held for seventy-two hours without charges being filed, as well" }, { "docid": "6182762", "title": "", "text": "allege a violation of the Constitution. See supra note 12 and accompanying text. . We take issue with the dissent’s statement that the Jasper County defendants engaged in \"abusive conduct by warehousing the prisoner outside the confines of the county_” There is nothing in the record to support what the dissent implies — namely, that Jasper County transferred Patrick to LaPorte County in order to avoid taking him before a magistrate — by the use of the term \"warehousing.\" On the contrary, it is undisputed that Patrick was transferred to the LaPorte County Jail due to the overcrowded conditions in the Jasper County Jail resulting from the number of individuals arrested in the \"drug bust” and transferred there for processing. Moreover, as we hold, infra, the four-hour period Patrick was detained in the Jasper County Jail was reasonable in light of the number of arrestees (sixty to eighty) that had to be booked (interviewed, fingerprinted, photographed and, possibly, checked through the National Crime Institute computer system) and processed in association with the ISP/DEA \"drug bust.” Indeed, in light of the detailed booking procedures and necessity of checking for outstanding arrest warrants for each arres-tee from the \"drug bust,” taking, in all probability, a minimum of fifteen minutes per person, four hours seems most efficient for three ISP officers to process the sixty to eighty individuals arrested. It is also beyond dispute that county officials have a duty to maintain their jails to minimize the risks resulting from overcrowding, i.e., conflicts among and injury to those individuals incarcerated in the jail, lest they violate the prisoners’ constitutional rights (and subject themselves to liability under 42 U.S.C. § 1983!). See, e.g., Carver v. Knox County, 887 F.2d 1287 (6th Cir.1989); Union County Jail Inmates v. DiBuono, 713 F.2d 984 (3d Cir.1983), cert. denied, 465 U.S. 1102, 104 S.Ct. 1600, 80 L.Ed.2d 130 (1984). . We also wish to emphasize that Patrick was arrested by officers of the Indiana State Police, not the Jasper County Sheriff’s Department and was detained at the Jasper County Jail and, for that matter, at the LaPorte County" }, { "docid": "6182733", "title": "", "text": "up with something.’ ” Patrick was detained in the Jasper County Jail for approximately four hours (9:40 a.m. to 1:15 p.m.), but, due to overcrowding, Sheriff Gilliland requested his transfer to another facility. After Gilli-land made the necessary arrangements with LaPorte County Sheriff Jan Rose, Patrick was transported by an ISP officer to the LaPorte County Jail, in LaPorte, Indiana, where he was held for an additional thirty-six hours and released on bail after posting bond on Sunday, December 12, 1982. Patrick was not taken before a magistrate for a determination of probable cause to detain him pending the filing of formal charges during his forty hours of confinement. An ex \"parte probable cause hearing was held on Monday, December 13, 1982, after the Jasper County Prosecutor filed a criminal information charging Patrick with dealing in marijuana, a Class C felony in Indiana. See Ind.Code § 35 — 48—4—10(b)(2). However, Jasper County Superior Court Judge J. Philip McGraw dismissed the charge for lack of probable cause and denied the prosecutor’s request for the issuance of a warrant to arrest Patrick. Patrick filed this 42 U.S.C. § 1983 action in the district court on December 10, 1984, against Jasper County, Sheriff Terry Gilli-land, individually and in his official capacity as Jasper County Sheriff, LaPorte County and Sheriff Jan Rose, individually and in his official capacity as LaPorte County Sheriff, alleging that they had “unlawfully detainfed] him without a valid arrest warrant, probable cause or other legal basis” in violation of the fourth and fourteenth amendments. On December 1, 1987, Jasper County and Sheriff Gilliland (“Jasper County defendants”) filed a motion for summary judgment, arguing that they had not violated Patrick’s constitutional rights because his four-hour detention in the Jasper County Jail was not unreasonably long. Further, Sheriff Gilliland argued that he was entitled to qualified immunity because his conduct did not violate clearly established law at the time of Patrick’s detention. Finally, Jasper County argued that it was entitled to judgment as a matter of law because Patrick had failed to present any evidence on the question of whether Patrick’s allegedly" }, { "docid": "6182751", "title": "", "text": "Patrick’s detention there or it was not. Patrick is not free to revamp his arguments simply because he has settled his claim with LaPorte County and Sheriff Rose and they are not parties to this appeal. Thus, we conclude that Jasper County is responsible only for the four hours Patrick was detained in the Jasper County Jail and we will analyze Patrick’s unconstitutional detention claim accordingly. See Patton, 822 F.2d at 700. Our conclusion that Jasper County is responsible only for the four hours Patrick spent in its jail essentially ends our analysis of Patrick’s unconstitutional detention claim. Despite the Jasper County defendants’ arguments that they are responsible only for Patrick’s four-hour detention in the Jasper County Jail and that this period of time was not unreasonably long, Patrick has failed to argue, both in this court and in the district court, that this four-hour detention violated his constitutional rights. Rather, Patrick premises his argument on appeal entirely on his assertion that forty hours (the total amount of time he was detained in Jasper County and LaPorte County) is the relevant time period for determining Jasper County’s liability under section 1983. Patrick has done so at his peril. In any case, there is ample evidence in the record that Patrick’s four-hour detention is attributable to the processing (booking, fingerprinting and photographing) of the sixty to eighty individuals brought to the Jasper County Jail in connection with the “drug bust.” In light of the number of individuals to be processed, we are of the opinion that the four-hour detention was not unreasonably long. Compare Moore, 754 F.2d at 1351 (“One could surmise that it took several hours to book the [arrestees] or that the jail was extremely busy that night; however, we are not willing to make these assumptions since there is no, evidence in the record warranting any conclusion justifying the four or more hour time period spent by the plaintiffs in the jail”). Thus, we hold that entry of summary judgment in favor of Jasper County is appropriate because Patrick has failed to set forth sufficient facts and legal" }, { "docid": "6182732", "title": "", "text": "handgun for which Patrick did not have a valid license, a Swiss army knife, and a six-inch double-edged field knife. The record does not reflect whether the officers found Ritchie to be in possession of either weapons or narcotics. Patrick and Ritchie were subsequently arrested for visiting a common nuisance, transported to the Indiana State Police Post in Lowell, Indiana, and detained for several hours. Due to the large number of individuals arrested in association with the “drug bust,” the Lowell facility became overcrowded and ISP officials made arrangements to transfer Patrick and some sixty to eighty other detainees, including Ritchie, to the Jasper County Jail in Rens-selaer, Indiana, for booking, fingerprinting, photographing and criminal record “wanted” checks. In his deposition, Patrick stated that while he was being booked, he overheard Sheriff Gilliland tell the ISP offi cer “that he [Gilliland] just got off the phone with the Prosecuting Attorney [then-Jasper County Prosecutor, Thomas Fisher]. And he says, ‘We can hold him for seventy-two hours without charges.’ And he says, ‘By then we should come up with something.’ ” Patrick was detained in the Jasper County Jail for approximately four hours (9:40 a.m. to 1:15 p.m.), but, due to overcrowding, Sheriff Gilliland requested his transfer to another facility. After Gilli-land made the necessary arrangements with LaPorte County Sheriff Jan Rose, Patrick was transported by an ISP officer to the LaPorte County Jail, in LaPorte, Indiana, where he was held for an additional thirty-six hours and released on bail after posting bond on Sunday, December 12, 1982. Patrick was not taken before a magistrate for a determination of probable cause to detain him pending the filing of formal charges during his forty hours of confinement. An ex \"parte probable cause hearing was held on Monday, December 13, 1982, after the Jasper County Prosecutor filed a criminal information charging Patrick with dealing in marijuana, a Class C felony in Indiana. See Ind.Code § 35 — 48—4—10(b)(2). However, Jasper County Superior Court Judge J. Philip McGraw dismissed the charge for lack of probable cause and denied the prosecutor’s request for the issuance of" }, { "docid": "6182747", "title": "", "text": "upon this particular period [ ] of detention. The standard of reasonableness can only be that implied in the Court’s observation that it is to be ‘brief’ and, more specifically, that it is to be only that required ‘to take the administrative steps incident to arrest.’ ” Id. at 1140 (footnote and citations omitted). Thus, “[wjhen the ‘administrative steps’ have been completed, the police must take the suspect before a neutral magistrate to establish probable cause, or they must let him go.” Gramenos v. Jewel Tea Co., 797 F.2d 432, 437 (7th Cir.1986), cert. denied, 481 U.S. 1028, 107 S.Ct. 1952, 95 L.Ed.2d 525 (1987); Llaguno v. Mingey, 763 F.2d 1560, 1567-68 (7th Cir.1985) (en banc). Neither the Supreme Court nor this court has adopted a “bright-line” test establishing at what point the warrantless detention ceases to be brief. Rather, we have analyzed on a case-by-case basis whether the period of detention is reasonable in light of all the circumstances accompanying the detainee’s arrest, including transportation, booking, filing, photographing, fingerprinting, identity verification and criminal record “wanted” checks, as well as the number of individuals to be processed with the detainee in question. See Lems v. O’Grady, 853 F.2d 1366, 1369-70 (7th Cir.1989); Moore, 754 F.2d at 1351-52. How ever, in order to determine whether Jasper County detained Patrick for an unreasonable period of time and, thus, whether Jasper County is liable to Patrick under section 1983, initially we must determine if Jasper County is responsible for Patrick’s detention in both Jasper and LaPorte Counties, or merely for Patrick’s confinement in the Jasper County Jail. Patrick claims that Jasper County is responsible for the time he was detained in both Jasper County and LaPorte County (approximately 40 hours) because Jasper County officials made the initial decision to hold him without charges and subsequently transferred him without complying with Indiana’s prisoner transfer statute, Indiana Code § 35-33-11-3. In his brief, Patrick states: “the only reason that Patrick’s full period of detention did not occur at the Jasper County Jail was simply that the Jasper County Jail was overcrowded. In transferring Patrick to" }, { "docid": "6182743", "title": "", "text": "to Patrick under section 1983. Patrick’s emphasis on the “municipal policy or custom” question, in all probability, resulted from the district court’s determination that his failure to establish such policy relieved both Jasper County and Sheriff Gilliland of section 1983 liability. This fact, however, is irrelevant. It is Patrick’s burden as an appellant to bring to this court’s attention the alleged errors in the district court’s summary judgment order and cite relevant case law in support of his argument for reversal thereof. See Fed.R. App.P. 28(a)(4). Patrick has failed to fulfill this duty on appeal and, as we have stated previously, “ ‘[i]t is not the obligation of this court to research and construct the legal arguments open to the parties, especially when they are represented by counsel.’ ” Beard, supra, 840 F.2d at 408-09 (quoting Sanchez v. Miller, 792 F.2d 694, 703 (7th Cir.1986), cert. denied, 479 U.S. 1056, 107 S.Ct. 933, 93 L.Ed.2d 984 (1987)). Other than his argument concerning the “municipal policy or custom” question, the only argument Patrick presents on appeal is that Sheriff Gilliland, in transferring him to the LaPorte County Jail because of overcrowding, violated Indiana Code § 35-33-11-3 because he failed to obtain court authorization to transfer Patrick and that this failure to comply with the transfer statute “amounts to an unlawful transfer of Patrick, thereby violating Patrick’s rights under the Fourth, Fifth and Fourteenth Amendments.” However, because it was not presented to the district court, this argument is not properly before us and we therefore refuse to consider it on appeal. See Boyers v. Texaco Refining and Marketing, Inc., 848 F.2d 809, 811 (7th Cir.1988). Thus, Patrick has failed to present us with any properly preserved argument that is relevant to the question of Sheriff Gilliland’s liability under section 1983. Consequently, we hold that Patrick has waived his section 1983 claim against Gilliland on appeal and we will address the alleged merits of his unconstitutional detention claim only as they relate to Jasper County. The main thrust of Patrick’s complaint against Jasper County is that he was detained an unreasonable length of" }, { "docid": "6182763", "title": "", "text": "Indeed, in light of the detailed booking procedures and necessity of checking for outstanding arrest warrants for each arres-tee from the \"drug bust,” taking, in all probability, a minimum of fifteen minutes per person, four hours seems most efficient for three ISP officers to process the sixty to eighty individuals arrested. It is also beyond dispute that county officials have a duty to maintain their jails to minimize the risks resulting from overcrowding, i.e., conflicts among and injury to those individuals incarcerated in the jail, lest they violate the prisoners’ constitutional rights (and subject themselves to liability under 42 U.S.C. § 1983!). See, e.g., Carver v. Knox County, 887 F.2d 1287 (6th Cir.1989); Union County Jail Inmates v. DiBuono, 713 F.2d 984 (3d Cir.1983), cert. denied, 465 U.S. 1102, 104 S.Ct. 1600, 80 L.Ed.2d 130 (1984). . We also wish to emphasize that Patrick was arrested by officers of the Indiana State Police, not the Jasper County Sheriff’s Department and was detained at the Jasper County Jail and, for that matter, at the LaPorte County Jail under the authority of the Indiana State Police. See Ind.Code § 10-1-1-22. As noted above, Patrick sued the Indiana State Police and various ISP officers for his allegedly unconstitutional detention. See supra note 4. However, the district court granted summary judgment for the Indiana State Police based on the eleventh amendment which prohibits suits in federal court for monetary damages which would require payment from the state treasury. See Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979). The court also granted summary judgment for the ISP officers due to Patrick’s failure to establish their personal involvement in his detention. Patrick has not appealed the district court’s resolution of his claims against the Indiana State Police and its officers; thus, we will not address the question of whether they were responsible and, thus, liable for Patrick's detention. . Even if we agreed with Patrick's contention regarding the length of detention for which Jasper County is responsible, which we do not, he has failed to cite a single case in his" }, { "docid": "6182737", "title": "", "text": "custom as regards Jasper County rendering summary judgment appropriate.” Patrick v. United States, No. H 84-808, slip op. at 19-20 (N.D.Ind. May 26, 1988). The court, however, denied the LaPorte County defendants’ summary judgment motion, finding that the evidence in the record was insufficient to determine whether the thirty-six hours Patrick was detained in the LaPorte County Jail was “the minimum period of time necessary to process charges against Patrick and to conduct a probable cause hearing.” Shortly after the trial court’s denial of their summary judgment motion, the LaPorte County defendants offered and Patrick accepted an out-of-court settlement in lieu of trial on Patrick’s claims under section 1983. Patrick now appeals the district court’s grant of summary judgment in favor of Sheriff Gilliland and Jasper County, arguing that: (1) Patrick’s deposition testimony relating the conversation between the Jasper County Prosecutor and Sheriff Gilliland was not hearsay; (2) the conversation between the prosecutor and Sheriff Gilliland in which the prosecutor stated that Patrick could be held for seventy-two hours without charges being filed, as well as Gilli-land’s actions in detaining and transferring Patrick, constitute an official policy of Jasper County within the meaning of 42 U.S.C. § 1983; and (3) Patrick’s transfer to the LaPorte County Jail was in violation of Indiana Code § 35-33-11-3 and, thus, amounts to an unlawful transfer in violation of the fourth, fifth and fourteenth amendments. Jasper County and Sheriff Gilliland argue that Patrick has failed to raise an issue of material fact on the question of whether the length of his detention in the Jasper County Jail was unconstitutional and, further, urge us to affirm the district court’s finding that Patrick has failed as a matter of law to establish that his detention resulted from an unconstitutional policy or custom of Jasper County. At the outset, we note that we review de novo the district court’s grant of summary judgment for Jasper County and Sheriff Gilliland to determine whether there exists no genuine issue of material fact and whether the defendants are entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c). “In" }, { "docid": "6182731", "title": "", "text": "COFFEY, Circuit Judge. Plaintiff-Appellant Ronnie Patrick appeals the order of the district court granting summary judgment for defendants-ap-pellees, Jasper County, Indiana, and Jasper County Sheriff Terry Gilliland in this action filed under 42 U.S.C. § 1983. We affirm. I. At approximately 4:00 a.m. on Friday, December 10, 1982, Patrick, accompanied by Ed Ritchie and Ollie Bailey, drove to the Jack Lucas residence in rural Jasper County, Indiana, to retrieve Ritchie's company truck. Upon arriving at Lucas’s home, the three men were confronted by law enforcement officials of the United States Drug Enforcement Administration (“DEA”) and the Indiana State Police (“ISP”), who informed them that they had “walked into a drug bust.” Upon learning Bailey’s identity, the law enforcement officials immediately arrested him pursuant to a warrant and took him into custody. The law enforcement officers thereafter searched Patrick and Ritchie to determine if they were in possession of narcotics and/or weapons. Although finding no narcotics in Patrick’s possession, the officers did discover three weapons concealed under his jacket: a loaded and cocked .45 caliber semiautomatic handgun for which Patrick did not have a valid license, a Swiss army knife, and a six-inch double-edged field knife. The record does not reflect whether the officers found Ritchie to be in possession of either weapons or narcotics. Patrick and Ritchie were subsequently arrested for visiting a common nuisance, transported to the Indiana State Police Post in Lowell, Indiana, and detained for several hours. Due to the large number of individuals arrested in association with the “drug bust,” the Lowell facility became overcrowded and ISP officials made arrangements to transfer Patrick and some sixty to eighty other detainees, including Ritchie, to the Jasper County Jail in Rens-selaer, Indiana, for booking, fingerprinting, photographing and criminal record “wanted” checks. In his deposition, Patrick stated that while he was being booked, he overheard Sheriff Gilliland tell the ISP offi cer “that he [Gilliland] just got off the phone with the Prosecuting Attorney [then-Jasper County Prosecutor, Thomas Fisher]. And he says, ‘We can hold him for seventy-two hours without charges.’ And he says, ‘By then we should come" } ]

[ { "docid": "22689133", "title": "", "text": "as set forth in Part III of its opinion. The Chief Justice joins in this opinion, and Mr. Justice Black and Mr. Justice Douglas join in it except to the extent indicated in their dissents. The grant of diversity of citizenship jurisdiction contained in 28 U. S. C. § 1332 contains no language which would include a suit by one alien against another, even where there might also be citizen defendants. For the constitutionality of a broader statute, at least under Art. Ill, § 2, cl. 1, subclause 8, see Hodgson v. Bowerbank, 5 Cranch 303. At the time of the commencement of petitioner’s suit, § 1331 read: “The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $3,000, exclusive of interest and costs, and arises under the Constitution, laws or treaties of the United States.” Section 1, Act of July 25, 1958, 72 Stat. 415, increased the requisite jurisdictional amount to $10,000. It is true that to a certain extent state law may be consulted in this area, at least where it does not work “material prejudice to the characteristic features of the general maritime law” or interfere with “the proper harmony and uniformity of that law. . . .” Southern Pacific Co. v. Jensen, swpra, at 216. For example, recovery has made use of state wrongful death acts, The Hamilton, 207 U. S. 398; Western Fuel Co. v. Garda, 257 U. S. 233; Levinson v. Deupree, 345 U. S. 648, and of state survival statutes, Just v. Chambers, 312 U. S. 383. There is not presented here the problem, of interpreting, in its periphery where state and federal elements are blended, the scope of the arising-under provisions of § 1331. See Smith v. Kansas City Title & Trust Co., 255 U. S. 180; Gully v. First National Bank; 299 U. S. 109; Shelly Oil Co. v. Phillips Petroleum Co., 339 U. S. 667. Since § 1331 is derived from § 1 of the Judiciary Act of 1875, 18 Stat. 470, and since the language of the" } ]

[ { "docid": "22776311", "title": "", "text": "week prior to trial. Joseph Muller Corp. Zurich v. Societe Anonyme de Gerance et D’Armement, 508 F.2d 814 (2d Cir. 174); Messenger v. United States, 231 F.2d 328 (2d Cir. 1956). We therefore affirm on the merits and as to all collateral issues raised on appeal except the award of attorneys’ fees, which is remanded for a redetermination in accordance with this opinion. Costs will be assessed against appellants. . Although DASA had several classes of convertible debentures outstanding at the time of the events complained of, all references in this opinion to debentures and bondholders means only the class of 6% convertible subordinated debentures due 1987 and the holders thereof. . Our decision renders it unnecessary to determine whether the district court’s alternative ground for dismissal of Count 5 — failure to comply with Rule 23.1 of the Federal Rules of Civil Procedure — must be sustained. . First Amended Complaint ¶¶ 22(a)-(d), (l). . Id. ¶¶ 22(e), (m). . The complaint alleges that the letter failed to state that if consent were given but the sale not be consummated the directors would retain the power to sell the computers without having to seek further consent from the debenture holders. First Amended Complaint, ¶ 22(k). The first page of the letter, however, makes clear that the purpose of the amendment is “to provide DASA and its subsidiaries with the flexibility to sell, at any one time or from time to time, all or part, of the computer systems. . ” (emphasis added). The complaint also alleges that the letter falsely implied that in the absence of consent DASA would be forced into liquidation and the debenture holders would get nothing at all, whereas in fact there remained $4,000,000 in unencumbered assets to satisfy their claims. Id. ¶ 22(q). At the same time, the complaint inconsistently alleges that the letter fails to note that the sale may result in the elimination of all assets as to which the debenture holders have a preferred position, so that the debenture holders would end up with nothing at all in the event of" }, { "docid": "22776310", "title": "", "text": "recorders, we are satisfied that whatever may be the scope of a trial court’s discretion under Rule 30(b)(4), see UAW v. National Caucus of Labor Committees, 525 F.2d 323, 325-26 (2d Cir. 1975), the denial of the motion, even if error, was harmless in this case, in view of our ruling that the directors owed no federal fiduciary duties to the bondholders here, thereby eliminating any need for depositions on the question of the directors’ intentions and good faith. Nor is there any indication that plaintiffs were surprised by testimony at trial. The contention that Judge Owen should have recused himself and transferred the case to another judge must be viewed as frivolous. It is unsupported by any evidence of prejudice, impropriety, or even the appearance of impropriety on Judge Owen’s part. In view of our decision on the merits, the denial of appellants’ motion for class action determination becomes academic. The dismissal under Rule 41(b), F.R.Civ.P., of claims against certain directors was entirely proper, since appellants did not attempt to serve them until one week prior to trial. Joseph Muller Corp. Zurich v. Societe Anonyme de Gerance et D’Armement, 508 F.2d 814 (2d Cir. 174); Messenger v. United States, 231 F.2d 328 (2d Cir. 1956). We therefore affirm on the merits and as to all collateral issues raised on appeal except the award of attorneys’ fees, which is remanded for a redetermination in accordance with this opinion. Costs will be assessed against appellants. . Although DASA had several classes of convertible debentures outstanding at the time of the events complained of, all references in this opinion to debentures and bondholders means only the class of 6% convertible subordinated debentures due 1987 and the holders thereof. . Our decision renders it unnecessary to determine whether the district court’s alternative ground for dismissal of Count 5 — failure to comply with Rule 23.1 of the Federal Rules of Civil Procedure — must be sustained. . First Amended Complaint ¶¶ 22(a)-(d), (l). . Id. ¶¶ 22(e), (m). . The complaint alleges that the letter failed to state that if consent were given" }, { "docid": "23425841", "title": "", "text": "of Peter D. Trooboff, Chairman, Committee on Transnational Judicial Procedure, International Law Section, American Bar Association). Professor Moore finds a “plain intention ... to confer on the district court jurisdiction of an action by an alien against a foreign state if the action otherwise meets the requirements” of the Act. 1 J. Moore, Federal Practice and Procedure H 0.66[4] at 700.178-79 (2d ed. 1979). This conclusion is buttressed by the Act’s removal provision, 28 U.S.C. § 1441(d), which is not limited to suits brought by U.S. citizens, and purports to allow removal to federal court of “any civil action brought in a State court against a foreign state” (emphasis added). From this murky and confused legislative history, only one conclusion emerges: Congress formed no clear intent as to the citizenship of plaintiffs under the Act. It probably did not even consider the question. In the absence of determinative — or even persuasive — guidance from the legislative history, the words of the statute control. Section 1330(a) is not limited to suits brought by Americans. It applies to “any nonjury civil action against a foreign state” (emphasis added). Accordingly, we hold that a suit brought in a federal court by an alien against a foreign state is properly filed — at least under the terms of the Act. III. Having concluded that both plaintiff and defendant are within the class of parties contemplated by § 1330(a), we are forced to confront the constitutional dilemma: does Congress possess the power to grant jurisdiction over a suit such as this? Article III of the federal Constitution provides that the national government’s “judicial Power shall extend to” certain types of disputes, which it lists in clause 1 of section 2. That Congressional power to confer jurisdiction to those cases and no further has been established on a number of occasions. E. g., Hodgson v. Bowerbank, 9 U.S. (5 Cranch) 303, 3 L.Ed. 108 (1809). See also National Mutual Insurance Co. v. Tidewater Transfer Co., 337 U.S. 582, 604, 69 S.Ct. 1173, 1183, 93 L.Ed. 1556 (Rutledge and Murphy, JJ., concurring); 626, 69 S.Ct. 1195" }, { "docid": "6581818", "title": "", "text": "which citizens or subjects of a foreign state are additional parties; and (4) a foreign state ... as plaintiff and citizens of a State or of different States. For purposes of this section ... an alien admitted to the United States for permanent residence shall be deemed a citizen of the State in which such alien is domiciled. . We need not decide whether § 1332(a)(3) would confer jurisdiction over an action involving a citizen of a state and an alien on one side, and a citizen of a different state and an alien on the other side. See Ed & Fred, 506 F.2d at 758, 13B Chaex.es Alan Wright et al.. Federal Practice and Procedure, § 3604, at 390-91 (1984). . Under the diversity statute, a corporation is deemed to be a citizen of any state in which it is incorporated and in the state in which it has its principal place of business. 28 U.S.C. § 1332(c). The District of Columbia is deemed a state for diversity purposes. Id. § 1332(d); see National Mut. Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582, 69 S.Ct. 1173, 93 L.Ed. 1556 (1949). Although the record is unclear as to where L.R. Holdings had its principal place of business, Far-ouki states in his brief that it was “a defunct District of Columbia corporation.” As to the parties’ assertion that L.R. Holdings was “defunct” or “apparently defunct” as it filed no answer to the complaint, the record provides no support for the assertion. Our analysis proceeds, therefore, on the basis that L.R. Holdings existed for jurisdictional purposes; were it non-extant when Saadeh filed his complaint, not even minimal diversity would exist. . This court has yet to decide whether an alien corporation is deemed a citizen of its principal place of business for purposes of the diversity statute. See Jerguson v. Blue Dot Investment, Inc., 659 F.2d 31, 35 (5th Cir. Unit B Oct.1981), cert. denied, 456 U.S. 946, 102 S.Ct. 2013, 72 L.Ed.2d 469 (1982); see generally 13B Charles Alan Wright et al., Federal Practice and Procedure, § 3628 (1984). In" }, { "docid": "23425864", "title": "", "text": "Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; — to all Cases affecting Ambassadors, other public Ministers and Consuls; — to all Cases of admiralty and maritime Jurisdiction; — to Controversies to which the United States shall be a Party; — to Controversies between two or more States; — between a State and Citizens of another State; —between Citizens of different States; — between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. . See Ex parte Edelstein, 30 F.2d 636 (2d Cir.) (L. Hand, J.), cert. denied, 279 U.S. 851, 49 S.Ct. 347, 73 L.Ed. 994 (1929). . Cf. 28 U.S.C. § 1350, conferring jurisdiction over suits “by an alien for a tort only, committed in violation of the law of Nations.” Section 1350 permits suits between aliens through the federal question grant of Article III. Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980). So do, inter alia, the securities laws and antitrust laws, again operating through the federal question grant. IIT v. Vencap, Ltd., 519 F.2d 1001 (2d Cir. 1975) (securities laws); Joseph Muller Corp. Zurich v. Societe Anonyme de Gerance et D’Armement, 451 F.2d 727 (2d Cir. 1971), cert. denied, 406 U.S. 906, 92 S.Ct. 1609, 31 L.Ed.2d 816 (1972) (antitrust laws). We stated in Filartiga that physical torture violates the law of nations, and thereby transgresses the “laws of the United States.” 630 F.2d at 888. We have elsewhere held that commercial violations, such as those here alleged, do not constitute breaches of international law. See Dreyfus v. von Finck, 534 F.2d 24, 30-31 (2d Cir.), cert. denied, 429 U.S. 835, 97 S.Ct. 102, 50 L.Ed.2d 101 (1976); IIT v. Vencap, Ltd., supra, 519 F.2d at 1015. . At least, Congress is powerless to confer jurisdiction when, as here, the suit contains aliens only. If the case were between an alien and an American on one side and an alien on the" }, { "docid": "22945875", "title": "", "text": "that concurred in the judgment and determine whether one of those opinions sets forth a rationale that is the logical subset of other, broader opinions.” But I disagree with the majority’s assumption that we might be free to take dissenting opinions into account in future Marks analyses. Marks leaves some questions unanswered, but it plainly limits our review to the opinions of “those Members [of the Court] who concurred in the judgments.” Marks, 430 U.S. at 193, 97 S.Ct. 990 (emphasis added). Because I do not see that this language leaves any room for our court to consider dissenting opinions, I would go further than the majority does and expressly state that dissents play no role in a Marks analysis. This is not to say that dissents serve no purpose. They can and should be read to provide context and a deeper understanding of the Court’s decisions, but they do not inform our analysis of what binding rule, if any, emerges from a fractured decision. The dissent points to National Mutual Insurance Co. v. Tidewater Transfer Co., 337 U.S. 582, 69 S.Ct. 1173, 93 L.Ed. 1556 (1949), as support for its view that dissenting opinions should be considered. Tidewater, of course, says nothing about how to interpret fractured Supreme Court decisions, though it was a fractured decision itself. In Tidewater, two concurring justices and four dissenting justices relied on the rule that Congress lacks authority to expand federal court subject matter jurisdiction beyond that provided in Article III. See id. at 604-46, 69 S.Ct. 1173. Our dissenting colleague is correct that courts have universally accepted this rule, but doing so does not require looking to Tidewaters, dissenting opinions. Indeed, as recognized in Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 103 S.Ct. 1962, 76 L.Ed.2d 81 (1983), this rule pre-dates Tidewater by a long shot. See id. at 491, 103 S.Ct. 1962 (“This Court’s cases firmly establish that Congress may not expand the jurisdiction of the federal courts beyond the bounds established by the Constitution.” (citing Hodgson v. Bowerbank, 9 U.S. 303, 5 Cranch 303, 3 L.Ed. 108" }, { "docid": "22884885", "title": "", "text": "211), the late Court of Private Land Claims, the Consular courts, the Military Courts, the Superior Court of the District of Columbia, and the Courts of Bankruptcy are called courts, they are in reality agencies of the legislative or executive branch. Glidden Co. v. Zdanok, 370 U.S. 530, 599, 82 S.Ct. 1459, 1498, 8 L.Ed.2d 671 (1962) (Douglas, J., dissenting). . Canter indicates that within the states, admiralty cases, which are not cases “arising under the laws and Constitution of the United States,” but, nevertheless, are a form of Article III judicial power, cannot be tried by legislative courts. Id. at 544-46. Thus the valid exercise of admiralty jurisdiction by the bankruptcy court is cast in doubt. See also National Mutual Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582, 644, 69 S.Ct. 1173, 1208, 93 L.Ed. 1556 (1949) (Vinson, C. J., dissenting). . Interestingly, this approach has its own constitutional problems. If all cases and proceedings arising under title 11 arise as a result of the exercise by Congress of its legislative (Article I) powers, then 28 U.S.C. § 1471(a) and (b) which vest original jurisdiction of all cases under title 11, and all civil proceedings arising under or “related to” title 11 in the district courts, are an unconstitutional delegation of Article I power to an Article III tribunal. . Chief Justice Marshall left no doubt that “it is emphatically the province and the duty of the judicial department to say what the law is.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803). Note also, “An administrative officer in the discharge of his duties may have occasion to interpret and apply a law in order to enforce it, but he can have no such occasion in order to determine the rights of private litigants, since he may not be constitutionally authorized to take jurisdiction in respect to them.” Opinion of the Justices. 87 N.H. 492, 495, 179 A. 344 (1935). . In Glidden v. Zdanok, 370 U.S. 530, 82 S.Ct. 1459, 8 L.Ed.2d 671 (1962), the Supreme court held that Congress could not authorize" }, { "docid": "11655360", "title": "", "text": "is that lack of diligence and not prejudice to the movant is the test to be employed by the Court, with the consideration of prejudice being only a factor for the Court to consider. Joseph Muller Corporation Zurich v. Societe Anonyme de Gerance et D’Armement, supra, 508 F.2d 814; Messenger v. United States, supra, 231 F.2d 328. Several decisions have recognized that an assumption of prejudice in the case of long unexcused delays is warranted. States Steamship Company v. Philippine Air Lines, 426 F.2d 803 (9th Cir. 1970); Pearson v. Dennison, 353 F.2d 24 (9th Cir. 1965); S & K Airport Drive-In, Inc. v. Paramount Film Dist. Corp., 58 F.R.D. 4 (E.D.Pa.), aff’d, 491 F.2d 751 (3d Cir. 1973). This Court will therefore briefly examine the presence of prejudice to these defendants or the lack thereof. It is the conclusion of this Court that the prejudice to these defendants was substantial. The case had been pending for seven years (eight in the case of Ventures) when service was effected on these defendants. Several rulings had been made by the district court and the court of appeals which might substantially affect the interest of these defendants as litigants in this action. Yet, these defendants were denied the opportunity to participate in these proceedings. Despite plaintiff’s protestations to the contrary, once service on these defendants was deemed to be desirable, it was accomplished without difficulty thereby resulting in the instant motions. These defendants were named in the action from the first, an indication to this Court that plaintiff fully intended to make them parties to the action. Based upon the delay of seven and eight years, defendants were fully justified in believing that plaintiff had decided to abandon any claims against them. Also, it is clear that knowledge of these claims runs back twenty years. Memories have faded and witnesses have died or become unavailable (defendant Thayer Lindsley is now 92 years old and bedridden). Finally, the many persons who purchased Falcon-bridge stock after the action was commenced, but prior to service on Falcon-bridge, have suffered by not being made aware of" }, { "docid": "23425865", "title": "", "text": "876 (2d Cir. 1980). So do, inter alia, the securities laws and antitrust laws, again operating through the federal question grant. IIT v. Vencap, Ltd., 519 F.2d 1001 (2d Cir. 1975) (securities laws); Joseph Muller Corp. Zurich v. Societe Anonyme de Gerance et D’Armement, 451 F.2d 727 (2d Cir. 1971), cert. denied, 406 U.S. 906, 92 S.Ct. 1609, 31 L.Ed.2d 816 (1972) (antitrust laws). We stated in Filartiga that physical torture violates the law of nations, and thereby transgresses the “laws of the United States.” 630 F.2d at 888. We have elsewhere held that commercial violations, such as those here alleged, do not constitute breaches of international law. See Dreyfus v. von Finck, 534 F.2d 24, 30-31 (2d Cir.), cert. denied, 429 U.S. 835, 97 S.Ct. 102, 50 L.Ed.2d 101 (1976); IIT v. Vencap, Ltd., supra, 519 F.2d at 1015. . At least, Congress is powerless to confer jurisdiction when, as here, the suit contains aliens only. If the case were between an alien and an American on one side and an alien on the other, diversity jurisdiction would not exist under § 1332, IIT v. Vencap, Ltd., supra note 16, 519 F.2d at 1015, but it might be available to Congress under Article III. Compare State Farm Fire & Casualty Co. v. Tashire, 386 U.S. 523, 87 S.Ct. 1199, 18 L.Ed.2d 270 (1967), with Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 2 L.Ed. 435 (1806). . In Smith, the cause of action was created by state law; a shareholder sued to enjoin his corporation’s purchase of bonds, which purchase the shareholder considered unauthorized by the corporation’s charter. State law created the charter. But the ground on which the shareholder alleged the purchase to be improper — that the federal instrumentality which had issued them had done so unconstitutionally— clearly called for the interpretation of a federal law. Justice Holmes dissented. . That is, “whether state or federal law is to be applied will depend on the nature of the issue before the court,” not the presence of a foreign state. “Under the Erie doctrine state substantive law, including" }, { "docid": "5008112", "title": "", "text": "existence of an enforceable right, interest, cause of action, claim or defense, or whether a party is a real party in interest. See DeFranco v. United States, 18 F.R.D. 156, 159 (S.D. Cal.1955) (differentiated from cause of action) ; 6 C. Wright and A. Miller, Civil § 1559, at 727-28 (1971). Thus, the plaintiff’s assertion that if. a corporation retains any existence, however tenuous, it has “capacity” and therefore may be sued in federal court, is a misconception of Rule 17. The rule was meant to be an adoption of local rules on capacity to sue and be sued, not an equation of capacity with the concept of “doing business.” Uniformity is achieved among federal jurisdictions only insofar as the law interprets Rule 17(b) to provide that once a corporation is determined to have capacity to be sued in its original place of business, it may be sued in any federal court, regardless of the fact that the corporation may not have capacity to be sued in the particular state in which the federal court is sitting. Joseph Muller Corp. Zurich v. Societe Anonyme de Gerance et D’Armement, 314 F.Supp. 439, 441 (S.D.N.Y.1970), aff’d in part, rev’d in part on other grounds, 451 F.2d 727 (2d Cir. 1971), cert. denied, 406 U.S. 906, 92 S.Ct. 1609, 31 L.Ed.2d 816 (1972). The cases cited by the plaintiff refute the idea of “general capacity” and support instead the proposition that once state law is interpreted to determine that a corporation has capacity to be sued, the actual place of suit is irrelevant. Therefore, when turning to Delaware law, the appropriate inquiry is the capacity to be sued of a voluntarily dissolved Delaware corporation which has failed to surrender its certificate of authority to do business in New York and which is continuing to “wind up” its business after the three-year period provided in the Delaware corporation law for asserting claims against the corporation. DELAWARE LAW Since RAC was originally incorporated in Delaware, its capacity to be sued is governed by the law of that state. At common law, the dissolution of a" }, { "docid": "23425842", "title": "", "text": "applies to “any nonjury civil action against a foreign state” (emphasis added). Accordingly, we hold that a suit brought in a federal court by an alien against a foreign state is properly filed — at least under the terms of the Act. III. Having concluded that both plaintiff and defendant are within the class of parties contemplated by § 1330(a), we are forced to confront the constitutional dilemma: does Congress possess the power to grant jurisdiction over a suit such as this? Article III of the federal Constitution provides that the national government’s “judicial Power shall extend to” certain types of disputes, which it lists in clause 1 of section 2. That Congressional power to confer jurisdiction to those cases and no further has been established on a number of occasions. E. g., Hodgson v. Bowerbank, 9 U.S. (5 Cranch) 303, 3 L.Ed. 108 (1809). See also National Mutual Insurance Co. v. Tidewater Transfer Co., 337 U.S. 582, 604, 69 S.Ct. 1173, 1183, 93 L.Ed. 1556 (Rutledge and Murphy, JJ., concurring); 626, 69 S.Ct. 1195 (Vinson and Douglas, JJ., dissenting); 646, 69 S.Ct. 1209 (Frankfurter and Reed, JJ., dissenting); Federal Election Commission v. Central Long Island Tax Reform Immediately Committee, 616 F.2d 45, 51 (2d Cir. 1980) (per curiam) (en banc). To satisfy federal jurisdictional requirements, therefore, every case must be supported by both a Congres sional grant of jurisdiction and a constitutional base on which the statute rests. Kline v. Burke Construction Co., 260 U.S. 226, 234, 43 S.Ct. 79, 82, 67 L.Ed. 226 (1922). The legislative diversity grant, for example, 28 U.S.C. § 1332, stands squarely on similar words in Article III. The statutory federal question grant also tracks the constitutional phrase. 28 U.S.C. § 1331. Section 1330 can claim no such parallel language for support, and must seek it among the finite — and incongruent — words of Article III. A. The search for a constitutional basis for a § 1330 suit between two aliens brings us first, but only briefly, to Article Ill’s diversity grant. It provides, inter alia, that the judicial power shall extend to" }, { "docid": "18453750", "title": "", "text": "S.Ct. 1228, 2 L.Ed.2d 1283 (1958). Whether process was properly served on KI depends on whether Agencies was KI’s “managing or general agent” within the meaning of Fed.R. Civ.P. 4(d)(3). While much of Agen cies’ activity on behalf of KI involved merely the collection and payment of accounts, it also exercised significant discretionary authority, notably in the appointment of husbanding agents. See Grammenos v. Lemos, 457 F.2d 1067 (2d Cir. 1972). In general, the managing agent for purposes of service of process is that person or entity in charge of those activities within the state which justify the exercise of personal jurisdiction over the defendant. Grammenos v. Lemos, supra, at 1072; Bomze v. Nardis Sportswear, 165 F.2d 33, 37 (2d Cir. 1948). The delivery of the summons and complaint to Agencies therefore constituted sufficient service of process on KI. 2. Jurisdiction Over the Subject Matter No diversity jurisdiction is present in this case under 28 U.S.C. § 1332 since both plaintiff and defendant KI are aliens. Joseph Muller Corp. v. Societe Anonyme de Gerance et d’Armement, 451 F.2d 727, 729 (2d Cir. 1971), cert. denied, 406 U.S. 906, 92 S.Ct. 1609, 31 L.Ed.2d 816 (1972). Whether jurisdiction is conferred by 28 U.S.C. § 1331 depends on the applicability to the facts of the Jones Act. The plaintiff’s general maritime law claim included in the complaint does not raise a federal question under § 1331 and at all events would be subject to the same choice of law criteria as is the Jones Act. Romero v. International Terminal Operating Co., 358 U.S. 354, 79 S.Ct. 468, 3 L.Ed.2d 368 (1959). Section 1333 does confer admiralty jurisdiction on the federal courts; however, its use is subject to the discretion of the Court. See, infra. The focus of the Court’s inquiry in respect of the applicability of the Jones Act must be on the substantiality of the contacts of the controversy with the United States. See Hellenic Lines v. Rhoditis, 398 U.S. 306, 309, 90 S.Ct. 1731, 26 L.Ed.2d 252 n.4 (1970); Moncada v. Lemuria Shipping Corp., 491 F.2d 470, 472 (2d Cir.)," }, { "docid": "6860982", "title": "", "text": "in section 3184 is more consistent with a statute appointing commissioners “by official, instead of personal descriptions.” Hayburn’s Case, 2 U.S. (2 Dall.) at 410 n. 1. Having examined the text of the statute, its structural correlation with Article III, and the relevant historical precedents, we conclude that our holding in Austin was correct — extradition officers do not exercise judicial power under Article III of the Constitution. Austin, 5 F.3d at 603. We therefore turn to Lo Duca’s following arguments, which contend that section 3184 is unconstitutional precisely because it does not confer Article III power. A. Tidewater Claim Lo Duea first argues that section 3184 violates the doctrine of separation of powers insofar as it seeks to require Article III courts to conduct non-Article III extradition proceedings. See National Mutual Insurance Co. v. Tidewater Transfer Co., 337 U.S. 582, 69 S.Ct. 1173, 93 L.Ed. 1556 (1949). In Tidewater, the Supreme Court confronted the question whether Congress could expand the jurisdiction of federal courts beyond the class of cases and controversies enumerated in Article III. In three separate opinions, six Justices reaffirmed the traditional view that federal courts are courts of limited jurisdiction whose judicial powers are bounded by Article III. See id. at 607, 69 S.Ct. at 1185 (Rutledge, J., joined by Murphy, J., concurring in the judgment); id. at 635, 69 S.Ct. at 1204 (Vinson, C.J., joined by Douglas, J., dissenting); id. at 647, 69 S.Ct. at 1196 (Frankfurter, J., joined by Reed, J., dissenting). Justice Jackson expressed a contrary view in his plurality opinion announcing the judgment of the Court. Id. at 583, 69 S.Ct. at 1173 (Jackson, J., joined by Black and Burton, JJ.). He wrote that, under Article I, Congress could grant jurisdiction for federal courts to hear non-Article III cases. See Tidewater, 337 U.S. at 592-93, 69 S.Ct. at 1178. Justices Rutledge and Murphy, who “strongly dissent[ed]” from that reasoning, nonetheless concurred in the result on other grounds. See id. at 604, 626, 69 S.Ct. at 1184, 1195 (Rutledge, J., concurring in the judgment) (calling the opinion of Justice Jackson a “dangerous doctrine”)." }, { "docid": "22945876", "title": "", "text": "Transfer Co., 337 U.S. 582, 69 S.Ct. 1173, 93 L.Ed. 1556 (1949), as support for its view that dissenting opinions should be considered. Tidewater, of course, says nothing about how to interpret fractured Supreme Court decisions, though it was a fractured decision itself. In Tidewater, two concurring justices and four dissenting justices relied on the rule that Congress lacks authority to expand federal court subject matter jurisdiction beyond that provided in Article III. See id. at 604-46, 69 S.Ct. 1173. Our dissenting colleague is correct that courts have universally accepted this rule, but doing so does not require looking to Tidewaters, dissenting opinions. Indeed, as recognized in Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 103 S.Ct. 1962, 76 L.Ed.2d 81 (1983), this rule pre-dates Tidewater by a long shot. See id. at 491, 103 S.Ct. 1962 (“This Court’s cases firmly establish that Congress may not expand the jurisdiction of the federal courts beyond the bounds established by the Constitution.” (citing Hodgson v. Bowerbank, 9 U.S. 303, 5 Cranch 303, 3 L.Ed. 108 (1809); Kline v. Burke Constr. Co., 260 U.S. 226, 234, 43 S.Ct. 79, 67 L.Ed. 226 (1922))); see also Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 65, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996) (describing as “fundamental” that “Congress could not expand the jurisdiction of the federal courts beyond the bounds of Article III” (citing Marbury v. Madison, 5 U.S. 137, 1 Cranch 137, 2 L.Ed. 60 (1803))). The Supreme Court at times looks to dissenting opinions when interpreting its own splintered decisions. See United States v. Jacobsen, 466 U.S. 109, 115, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984); Moses H. Cone Mem’l Hosp. v. Mercury Const. Corp., 460 U.S. 1, 16-17, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). From this, the majority and dissent infer that we might be free to do the same. But the way the Supreme Court treats its own precedent says nothing about how lower courts must apply it. Marks, not Jacobsen or Moses H. Cone, is the Supreme Court authority that sets out the rule for lower" }, { "docid": "23297862", "title": "", "text": "to make timely response to Societe’s requests for instructions regarding payment of Olympic’s draft. Thus, it is quite conceivable that even if all the claims were tried together, So-ciete might be liable to Olympic but not entitled to indemnification from Protex. Therefore, although the benefits of impleader might be taken into account in a close case in deciding whether or not to dismiss for forum non conveniens, they are not so important as to counteract the overwhelming evidence that Olympic should be permitted to sue in the United States and that Protex should not be forced to defend here. Viewing the case in this light, we conclude that the district court exceeded the boundaries of its traditional discretion, see Gulf Oil, supra, 330 U.S. at 508, 511-512, 67 S.Ct. 839, in dismissing Olympic’s complaint against Soeiete. The judgment of dismissal of the complaint against Societe is reversed, the judgment of dismissal of the third-party-complaint against Protex is affirmed. Olympic and Protex may recover costs against Societe. . Havkong has filed no motions in the court below, but, with permission of this court, has filed a brief responding to the claims presented on appeal. It seeks affirmance of the decisions below and has agreed to submit to the jurisdiction of the French courts, if necessary, to avoid problems with multiple litigation. So far as we are aware, Protex has made no motion in the district court with respect to Havkong’s third-party complaint, which was filed after Protex moved to dismiss Societe’s third-party complaint. . Because the forum non conveniens ground is so clear, we intimate no opinion on the more difficult questions of whether or not there is personal jurisdiction over Protex under the New York “long-arm” statute, CPLB. § 302(a) (1), or whether or not the ancillary doctrine in federal diversity jurisdiction, Dery v. Wyer, 265 F.2d 804, 807-808 (2 Cir. 1959), should be extended to third-party actions between alien corporations, of. Joseph Muller Corp. Zurich v. Societe Anonyme de Gerance, 451 F.2d 727, 729 (2 Cir. 1971), cert. denied, 406 U.S. 906, 92 S.Ct. 1609, 31 L.Ed.2d 816 (1972)." }, { "docid": "5008113", "title": "", "text": "is sitting. Joseph Muller Corp. Zurich v. Societe Anonyme de Gerance et D’Armement, 314 F.Supp. 439, 441 (S.D.N.Y.1970), aff’d in part, rev’d in part on other grounds, 451 F.2d 727 (2d Cir. 1971), cert. denied, 406 U.S. 906, 92 S.Ct. 1609, 31 L.Ed.2d 816 (1972). The cases cited by the plaintiff refute the idea of “general capacity” and support instead the proposition that once state law is interpreted to determine that a corporation has capacity to be sued, the actual place of suit is irrelevant. Therefore, when turning to Delaware law, the appropriate inquiry is the capacity to be sued of a voluntarily dissolved Delaware corporation which has failed to surrender its certificate of authority to do business in New York and which is continuing to “wind up” its business after the three-year period provided in the Delaware corporation law for asserting claims against the corporation. DELAWARE LAW Since RAC was originally incorporated in Delaware, its capacity to be sued is governed by the law of that state. At common law, the dissolution of a corporation was its civil death; dissolution abated all pending actions by and against a corporation, thus terminating abruptly its capacity to sue and be sued. Melrose Distillers, Inc. v. United States, 359 U.S. 271, 272, 79 S.Ct. 763, 3 L.Ed.2d 800 (1959); Note, Suits By and Against Dissolved Corporations, 48 Iowa L.Rev. 1006 (1963). In order to alter the common law and prolong the life of a corporation past dissolution, statutory authority is necessary, Oklahoma Gas Co. v. Oklahoma, 273 U.S. 257, 259, 47 S.Ct. 391, 71 L.Ed. 634 (1927); Johnson v. RAC Corp., 491 F.2d 510, 511-12 n. 3 (4th Cir. 1974). The common law has been supplanted in Delaware, as in all states, by a statute which prolongs the life of a corporation in order to allow the corporation to dispose of its affairs in an orderly fashion. Section 278 of the Delaware Corporation Law, 8 Del.Code Ann. § 278 (1975), which provides for the continued limited existence of a corporation after dissolution, reads in part: 278. Continuation of corporation after dissolution for" }, { "docid": "11655354", "title": "", "text": "discretion of the district court. Link v. Wabash Railroad Co., 370 U.S. 626, 633, 82 S.Ct. 1386, 1390, 8 L.Ed.2d 734, 739 (1962); Joseph Muller Corporation Zurich v. Societe Anonyme de Gerance et D’Arme- meat, 508 F.2d 814, 815 (2d Cir. 1974); Taub v. Hale, 355 F.2d 201, 202 (2d Cir.), cert. denied, 384 U.S. 1007, 86 S.Ct. 1924, 16 L.Ed.2d 220 (1966). An unreasonable delay in service will support a motion under Rule 41(b) without the need to make a showing of actual prejudice. Finley v. Parvin/Dohrmann Company, Inc., 520 F.2d 386, 391 (2d Cir. 1975); Joseph Muller Corporation Zurich v. Societe Anonyme de Gerance et D'Armement, supra, 508 F.2d at 815; Messenger v. United States, 231 F.2d 328, 331 (2d Cir. 1956). Thus, the Court of Appeals for the Second Circuit set forth the test to be employed by the Court when considering a Rule 41(b) motion: “Under Rule 41(b), a motion to dismiss may be granted for lack of reasonable diligence in prosecuting. Hackner v. Guaranty Trust Co. of New York, [117 F.2d 95] supra; Salmon v. City of Stuart, 5 Cir., 194 F.2d 1004; Shotkin v. Westinghouse Electric & Mfg. Co., 10 Cir., 169 F.2d 825; Partridge v. St. Louis Joint Stock Land Bank, 8 Cir., 130 F.2d 281; Hicks v. Bekins Moving & Storage Co., 9 Cir., 115 F.2d 406. The operative condition of the Rule is lack of due diligence on the part of the plaintiff' — not a showing by the defendant that it will be prejudiced by denial of its motion. Hicks v. Bekins Moving & Storage Co., supra. It may well be that the latter factor may be considered by the court, especially in cases of moderate or excusable neglect, in the formulation of its discretionary ruling.” Messenger v. United States, supra, 231 F.2d at 331. What, then, does plaintiff cite to excuse the seven and eight year delay in the service of process in this case? Was there due diligence? The reasons given by plaintiff in the several voluminous memoranda in opposition to the motion range from the merely insubstantial" }, { "docid": "11655359", "title": "", "text": "the statements cited above which are made on personal knowledge. Plaintiff further cites the settlement negotiations, the stipulation of settlement, and the appeal therefrom as an excuse for delay. This is not a case, like Foxboro Company v. Fischer & Porter Co., 29 F.R.D. 522 (E.D.Pa.1961), where the stagnation in the case was attributable to the moving party’s assertions that opposing counsel’s constant “manuevering” in the case would upset any possible settlement of the action. Id. at 523. These defendants did not contribute to the delay by stalling any settlement negotiations. The Court could go on ad infinitum addressing the multitude of claims lodged by plaintiff in defense of the delay in service on these moving defendants. It will not do so as it considers plaintiff’s various assertions to be frivolous. The Court has indulged plaintiff this far only because the Court is extremely sensitive to the harshness of a dismissal with prejudice. Theil-mann v. Rutland Hospital, Inc., 455 F.2d 853, 855 (2d Cir. 1972). As the Court has stated, the rule in this Circuit is that lack of diligence and not prejudice to the movant is the test to be employed by the Court, with the consideration of prejudice being only a factor for the Court to consider. Joseph Muller Corporation Zurich v. Societe Anonyme de Gerance et D’Armement, supra, 508 F.2d 814; Messenger v. United States, supra, 231 F.2d 328. Several decisions have recognized that an assumption of prejudice in the case of long unexcused delays is warranted. States Steamship Company v. Philippine Air Lines, 426 F.2d 803 (9th Cir. 1970); Pearson v. Dennison, 353 F.2d 24 (9th Cir. 1965); S & K Airport Drive-In, Inc. v. Paramount Film Dist. Corp., 58 F.R.D. 4 (E.D.Pa.), aff’d, 491 F.2d 751 (3d Cir. 1973). This Court will therefore briefly examine the presence of prejudice to these defendants or the lack thereof. It is the conclusion of this Court that the prejudice to these defendants was substantial. The case had been pending for seven years (eight in the case of Ventures) when service was effected on these defendants. Several rulings had" }, { "docid": "6860983", "title": "", "text": "III. In three separate opinions, six Justices reaffirmed the traditional view that federal courts are courts of limited jurisdiction whose judicial powers are bounded by Article III. See id. at 607, 69 S.Ct. at 1185 (Rutledge, J., joined by Murphy, J., concurring in the judgment); id. at 635, 69 S.Ct. at 1204 (Vinson, C.J., joined by Douglas, J., dissenting); id. at 647, 69 S.Ct. at 1196 (Frankfurter, J., joined by Reed, J., dissenting). Justice Jackson expressed a contrary view in his plurality opinion announcing the judgment of the Court. Id. at 583, 69 S.Ct. at 1173 (Jackson, J., joined by Black and Burton, JJ.). He wrote that, under Article I, Congress could grant jurisdiction for federal courts to hear non-Article III cases. See Tidewater, 337 U.S. at 592-93, 69 S.Ct. at 1178. Justices Rutledge and Murphy, who “strongly dissent[ed]” from that reasoning, nonetheless concurred in the result on other grounds. See id. at 604, 626, 69 S.Ct. at 1184, 1195 (Rutledge, J., concurring in the judgment) (calling the opinion of Justice Jackson a “dangerous doctrine”). See generally Bator et al., Hart & Wechsler’s The Federal Courts and the Federal System, supra, at 474-75. In cases reaching as far back as Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803), the Supreme Court has held that Congress may not expand the jurisdiction of federal courts beyond the limits established by Article III. Id. at 174; see Kline v. Burke Construction Co., 260 U.S. 226, 234-35, 43 S.Ct. 79, 83, 67 L.Ed. 226 (1922) (“[Congress] may give, withhold or restrict such jurisdiction at its discretion, provided it be not extended beyond the boundaries fixed by the Constitution.”); Sheldon v. Sill, 49 U.S. (8 How.) 441, 449, 12 L.Ed. 1147 (1850) (“The Constitution has defined the limits of the judicial power of the United States-”); Hodgson v. Bowerbank, 9 U.S. (5 Cranch) 303, 304, 3 L.Ed. 108 (1809) (Marshall, C.J.) (“Turn to the article of the constitution of the United States, for the statute cannot extend the jurisdiction beyond the limits of the constitution.”). Most recently, in Seminole Tribe of" }, { "docid": "11655353", "title": "", "text": "While the defendants contend that the delay is per se prejudicial, they have cited several instances of what, in their view, is substantial actual prejudice, for example, the substantial proceedings had prior to their entrance into the litigation in which they had no opportunity to participate, the fading of the memories of some potential witnesses and the death of others, and the prejudice to those persons who became shareholders in Falconbridge after the commencement of the litigation and prior to service of the summons and complaint on Falconbridge. Rule 41(b) of the Federal Rules of Civil Procedure states in pertinent part: “(b) Involuntary Dismissal: Effect Thereof. For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against him. . . . Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision . . . operates as an adjudication upon the merits.” A .dismissal under Rule 41(b) is within the discretion of the district court. Link v. Wabash Railroad Co., 370 U.S. 626, 633, 82 S.Ct. 1386, 1390, 8 L.Ed.2d 734, 739 (1962); Joseph Muller Corporation Zurich v. Societe Anonyme de Gerance et D’Arme- meat, 508 F.2d 814, 815 (2d Cir. 1974); Taub v. Hale, 355 F.2d 201, 202 (2d Cir.), cert. denied, 384 U.S. 1007, 86 S.Ct. 1924, 16 L.Ed.2d 220 (1966). An unreasonable delay in service will support a motion under Rule 41(b) without the need to make a showing of actual prejudice. Finley v. Parvin/Dohrmann Company, Inc., 520 F.2d 386, 391 (2d Cir. 1975); Joseph Muller Corporation Zurich v. Societe Anonyme de Gerance et D'Armement, supra, 508 F.2d at 815; Messenger v. United States, 231 F.2d 328, 331 (2d Cir. 1956). Thus, the Court of Appeals for the Second Circuit set forth the test to be employed by the Court when considering a Rule 41(b) motion: “Under Rule 41(b), a motion to dismiss may be granted for lack of reasonable diligence in prosecuting. Hackner v. Guaranty Trust Co. of New York, [117" } ]